This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project to make the world's books discoverable online. It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. Marks, notations and other marginalia present in the original volume will appear in this file - a reminder of this book's long journey from the publisher to a library and finally to you. Usage guidelines Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we have taken steps to prevent abuse by commercial parties, including placing technical restrictions on automated querying. We also ask that you: + Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for personal, non-commercial purposes. + Refrain from automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the use of public domain materials for these purposes and may be able to help. + Maintain attribution The Google "watermark" you see on each file is essential for informing people about this project and helping them find additional materials through Google Book Search. Please do not remove it. + Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner anywhere in the world. Copyright infringement liability can be quite severe. About Google Book Search Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web at|http : //books . google . com/ UUHAIIY _LI IgJfJ 1 C^l Voc /. 1^73 Harvard College Library By Exchange LITTAUER LIBRARY, SSP HARVARD UNIVERSITY Digitized by Google Digitized by Google ' 1 Digitized by Google DEBATES AND PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF THE ('-■■■■■■■ '■'.■::.'■ ■■■ • ■■'•■ .. yf"'.' -7^, STATE OF CALIFORI^IA,- y^ (X)NVENED AT THE CITY OF SACRAMENTO, SATURDAY, SEPTEMBER 28, 1878. E. B. WILLIS AND P. K. STOCKTON, OrFZCZAX. STEirOORAPBERS. "Volume I. SACRAMENTO: STATE OFFICE, : : : : : J. D. young, supt. state printing. 1880. Digitized by Google ^nl 'T^^^ A ^1 ^ .V \-- ■,\ V r> ■ -V Digitized by VwjO »\ ^« , OFFICERS AND MEMBERS OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF CALIFORNIA, 1878 ^ND 1879. OFFICERS. Hon. J. P. HOGE President. Hon. I. S. BELCHER President pro ten. JOSEPH A. JOHNSON.. Secretary. ' E. L. CRAWFORD MinuU Oerk. ED. F. SMITH (after January 17th, 1879) Secretary. GEO. A. THORNTON and ED. F. SMITH Aa»i»tant Secrctariet. i. M. WRIGHT (after January 24th, 1879) Aesistant Secretary. GEO. E. MpSTAY Journal Otrk. T. J. SHERWOOD Sergeant-at-Armt. BENJ. CHAMBERS : A*»i*tant SergtatU-at-Amu MEM ANDREWS, A. R. Trinity and ShasU Counties. AYERS, JAMES J Fourth Congreagional District. BARBOUR, CLITnS City and County of San Francisco. BARNES, WM. H. L .V First Congressional District. BARRY, EDWARD jt Nevada and Sierra Counties. BARTON, JA8. N Mendocino, Humboldt, and Del Norte Counties. BEERSTECHER, CHAS. J City and County of San Francisco. BELCHER, ISAAC 8 Third Congressional District. BELL, PETER City and CJounty of San Francisco. BERRY, J. ..Siskiyou and Modoc Counties. BIGGS, MARION Third Congressional District. BLACKMEE, ELI T San Diego County. BOGGS, H. C Napa, Lake, and Sonoma Counties. BOUCHER, JOSIAH Butte 0)unty. BROWN, JOSEPH C Tulare County. BURT, SAMUEL B Placer County. CAMPBELL, A., Jr. Alameda County. CAPLES, JAMES Sacramento County. CAS3ERLY, EUGENE First Congressional District. CHAPMAN, AUGUSTUS H Plumas, Lassen, and Butte Counties. CHARLES, J. M L Sonoma County. CONDON, JOHN D City and County of San Francisco. COWDEN, D. H Yuba County. CROSS, C. W Nevada County. CROUCH, ROBERT Napa County. DAVIS, HAMLET Nevada County. DEAN, J. E El Dorado and Alpine Counties. BOWLING, PATRICK T City and County of San Francisco. DOYLE, LUKE City and County of San Francisco. DUDLEY, JAMES M Solano County. DUDLEY, W. L San Joaquin and Amador Counties. DUNLAP, PRESLEY Sacramento County. EAGON, JOHN A Amador County. EDGERTON, HENRY Sacramento County. B8TEE, MORRIS M First Congressional District. B8TEY, THOMAS H Contra Costa and Marin Counties. EVEY, EDWARD Loa Angeles County. FARRELL, SIMON J City and County of San Francisco. FAWCETT, EUGENE Santa Barbara County. FILCHIOt, J. A. Placer County. fOnOnr, CHAS. G Ventura county. BERS. FREEMAN, ABRAHAM C Sacramento County. FREUD, JACOB R City and County of San Francisco. GARVEY, J. B Calaveras County. GLASCOCK, B. B Colusa County. GORMAN, JOSEPH C City and County of San Francisco. GRACE, WILLIAM P City and County of San Francisco. GRAVES, WILLIAM J Fourth Congressional District. GREGG, V. A Kern County. HAGER, JOHN 8 First Congressional District. HAIGHT, H. H.» Second Clongressional District. HALE, JAMES E Second Congressional District. HALL, J. B. Second Congressional District. HARDWICK, G. M.» Mariposa and Merced Counties. HARRISON, THOMAS - City and County of San Francisco- HARVEY, JOEL A Solano County. HEISKELL, TYLER D Stanislaus County. HEROLD, CONRAD City and County of San Francisco. HERRINGTON,' DENNIS W Santa Clara County. HILBORN, 8. G Solano Ctounty. HITCHCOCK, JOHN B. W San Joaquin County. HOGE, JOSEPH P. First Congressional District. HOLMES, SAMUEL A Fresno (Jounty. HOWARD, VOLNEY E Los Angeles County. HOWARD, W. J.f Mariposa and Merced Counties. HUESTIS, W. F - Third Congressional District. HUGHEY, WM. P City and County of San Francisco. HUNTER, G. W El Dorado and Alpine Counties. INMAN, DANIEL Alameda County. .rOHNSON, G. A - - Sonoma County. JONES, L. F Mariposa, Mefced, and Stanislaus Counties. JOYCE, PETER J City and County of San Francisco. KELLEY, JOHN M Third Congressional District KENNY, BERNARD F.* City and County of San Francisco. KENNY, JOHN J«t City and County of San Francisco. KEYE8, JAMES H Yuba and Sutter Counties. KLEINE, CHARLES R. City and County of San Francisco. LAINE, THOMAS H Santa Clara County. LAMPSON, R. M. Tuolumne and Calaveras Counties. LARKIN, HENRY El Dorado County. LARUE, HUGH M Sacramento County. LAVIGNE, RAYMOND City and ConntyxSTBan Francisco. ^ Digitized by VjO ^ OFFICERS AND MEMBERS. LEWIS, DAVID - - -San Joaquin County. LINDOW, JOHN F City and County of Ban Francisco. MANSFIELD, JOHN Fourth Congressional District. MABTIN, EDWARD.. Fourth Congressional District. MARTIN, J. W.t Second Congressional District. McCALLUM, JOHN G Alameda County. McCOMAS, RUSH Santa Clara County. MoCONNELL, THOMAS Sacramento County. MoCOY, JOHN Nevada County. MoFARLAND, THOMAS B. Sacramento County. MoNUTT, JOHN F... Yuba County. MILLER, JOHN F First Congressional District MILLS, HIRAM Contra Costa County. MOFFAT, WM. 8 San Mateo County. MORELAND, W. Vf Sonoma County. MORRIS. THOMASt City and County of San Francisco. MORSE, LirCIUS D San Francisco and San Mateo Counties. MURPHY, JAMES E Del Norte County. NA80N, EDMUND San Benito County. NELSON, THOBWALD City and County of San Francisco. NEUNABEB, HENRY City and County of San Francisco. NOEL, ALONZO E Lake County. O'DONNELL, CHARLES C City and,County of San Francisco. OHLEYER, GEORGE Sutter County. O'SULLIVAN, JAMES City and County of San Francisco. OVERTON, A. r Third Congressional District. PORTER, J. M Second Congressional District. PROUTY, WM. H Amador County. PULLIAM, MARK B. C. -J. Butte County. REDDY, PATRICK Mono and Inyo Counties. REED, CHARLES F. Solano and Yolo Counties. REYNOLDS, JAMES 8 City and County of San Francisco. RHODES, JOHN M Yolo County. RINGOLD, CHARLES 8 City and County of San Francisco. ROLFE, HORACE C. San Diego and San Bernardino Counties. 8CHELL, GEORGE W ..Fourth Congressional District. SCHOMP, JUSTUS San Joaquin County. 8HAFTEB, JAMES McM Third Congressional District. SHOEMAKER, RUFUS— Second Congressional District. 8HUBTLEFF, BENJAMIN Third Congreseional District. SMITH, E. 0 iSanta C1m» County. SMITH, GEORGE V Fourth Congressional District. SMITH, HENBY W City and County of San Francisco. 80ULE, EZRA P Plumas and Lassen Countiea. 8TEDMAN, JOHN C City and County of San Francisco. STEELE, GEORGE San Luis Obispo County. STEVENSON, D. C Siskiyou, Modoc, Trinity, and Shasta Counties. STRONG, J. M.»t - ..Mariposa and Merced Counties. STUABT, C. V Sonoma County. 8WEASEY, W. J Humboldt County. SWEN80N, CHARLES City and County of San Francisco. SWING, RANDOLPH 8 San Bernardino County. TERRY, DAVID 8 San Joaquin County. THOMPSON, S. B.f City and County of San Francisco. TINNIN, W. J Third Congressional District, T0WN8END, F. 0 Mendocino County. TULLY, P. B - Fourth Congressional District. TUBNER, HENBY K Sierra County. TUTTLE, DANIEL Santa Crui County. VACQUEREL, ALPH0N8E City and County of San Francisco. VAN DYKE, WALTEB Second .Congressional District. VAN V00EHIE8, WILLIAM Alameda County. WALKEB, HUGH Marin County. WALKER, JOHN „ Tuolumne County. WATERS, BYRON.. - Fourth Congressional District. WEBSTER, JONATHAN V Alameda County. WELLER, JOSEPH B.. Santa Clara County. WELLIN, PATBICK M City and County of San Francisco. WEST, JOHN P Los Angeles County. WICKE8, JOHN T Nevada County. WHITE, WM. F Santa Cruz, llonterey, and San Benito Coimties. WILSON, H. C - Tehama County. WILSON, SAMUEL M First Congressional District. WINANS, JOSEPH W First Congressional District. WYATT, N. G - Monterey County. * Deceased. f Elected to fill vacancy. IBesigned. Digitized by Google CONSTITUTION OF CALIFORNIA. CONSTITUTION. AsOI-riD BT TH« COHTIKTIOK, OcTOBKB 10, 1844; RaTIFIID BT THE PiOPLB, KorEMBBB 13, 184U; Pkocla.ii(Ed, Sbcimbbb 20, 1849; ANP Ahxndbd, 1862. PREAMBLE. We, the people of California, grateful to Almighty God for our free- dom, in order to secure its blessings, do establish uiis Constitution. Abhcle I. Dkclabatiox or Riohtb. II. RioHT or SorrBAOB. III. DiaTBIBCTlON or PolTBBS. IV. Lboislatite Depabtment. V. ExECDTiTE Dbpaetment. VI. JODICIAL DBPAKTMESt. VII. MlUTIA. VIII. State Dbbts. IX. Edccation. X. Mode or Amendimo and Rbtisiho the Constitution. XI. Pbomiscoocs Pbotisions. XII. BODKDABT. SCHCDVLE. ARTICLE I. DECLABATIOK OF BI0BT8. Sbctiob 1. Inalienable rights. 2. Popular government. 3. Jur^ trial. 4. Religious worship, and liberty of conscience. 5. Hab^ corpus. 6. Excessive bail, fines and punishments. 7. All offenses bailable — one exception. 8. Personal rights, and rights of property. 9. Liberty of speech and press, and law of libel. 10. Popular assemblies. 11. Uniformity of general laws. 12. Militarjr power. 13. Quartering of soldiers. 14. Bepresentetion. 15. Imprisonment for debt. 16. Laws prohibited. 17. Rights of forei^ers. 18. Slavery prohibited. 19. Search warrants. 20. Treason defined, and how punished. 21 . Popular rights retained by the people. Bicnoic 1. All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and ' defending life and liberty ; a«|uiring, possessing, and protecting prop- ertv ; and pursuing and obtaining saiety and happiness. 6a:. 2. All political power la inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right to alter or reform the same whenever the public good may require it. Sec. 3. The right of trial by jury shall be secured to all, and re- main inviolate forever; but a jury trial may be waived by the parties, in all civil cases, in the manner to be prescribed by law. Sec. 4. The free exercise and enjoyment of religious profession and wonhip, without discrimination or preference, shall forever be allowed in this State ; and no person shall be rendered incompetent to be a wit- ness on account of his opinions on matters of religious belief; but the Uberty of conscience hereby secured shall not be so construed as to ex- eaie acts of licentiousness, or justify practices inconsistent with the peace or saiety of this State. Sic. 5. The privilege of the writ of habeas corpus shall not be sus- pmded, unless when in cases of rebellion or invasion the public safety may require its suspension. Sic 6. Excessive bail shall not be required, nor excessive fines im- posed; nor shall cruel or unusual punishment be inflicted; nor shall witnesses be unreasonably detained. Sic 7. All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident, or the presumption great. BBC 8. No person shall be held to answer for a capital or otherwise iaCunooB crime (except in cases of impeachment, and in cases of militia when in actual service, and the land and naval forces in time of war, or wbieh this State may keep, with the consent of Congress, in time of Maee, and in cases of petit larceny, under the regulation of the Legisla- tan) anlea on presentment or indictment of a Grand Jury ; and, in angy trial in any Court whatever, the party accused shall be allowed to i^fwer and defend, in person and with counsel, as in civil actions. Ko t diall be subject to be twice put in jeopardy for the same offense; 'Ihe he compelled, in aay criminal case, to be a witness against himself; nor be deprived of life, liberty, or property without due pro- cess of law ; nor shall private property be taken for public use without just compensation. Sbc. 9. Every citizen may freely speak, write, and publish his sen- timents on all subjects, being responsible for the abuse of that right ; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions on indictments for libels, the truth may be given in evidence to the jury ; and if it shall appear to the jury that the matter charged as libelous is true, and was published with gcmd motives and for justifiable ends, the party shall be acquitted ; and the jury shall have the right to determine the law and the fact Sec. 10. The people shall have the right freely to assemble together to consult for the common good, to instruct their Representatives, and to petition the Legislature for redress of grievances. BBC. 11. All laws of a general nature shall have a uniform opera- tion. Sec. 12. The military shall be subordinate to the civil power. No standing army shall be iejA up by this State in time of peace ; and, in time of war, no appropriation for a standing army shall be for a longer time than two years. Sec. 13. Ko soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war, except in the manner to be prescribed by law. Sec. 14. Representation shall be apportioned according to popula- tion. , Sbc. 15. Ko person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud; and no person shall he imprisoned for a militia fine in time of peace. Sic. 16. No bill of attainder, ex post facto law, or law impairing the obligation of contracts, shall ever be passed. Sec. 17. Foreigners who are or who may hereafter become bona fide residents of this State, shall enjoy the same rights in respect to the pos- session, enjoyment, and inheritance of property as native-bom citizens. Sic. 18. Neither slavery nor involuntary servitude, unless for the punishment of crime, shall ever be tolerated in this State. Sic. 19. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches, shall not be violated ; and no warrant shall issue, but for probable cause, sup- ported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized. Sbc. 20. Treason a^rnst the State shall consist only in levying war against it, adhering to its enemies, or giving them aid and comfort. No person shall be convicted of treason, unless on the evidence of two wit- nesses to the same overt act, or confession in open Court. Sec. 21. This enumeration of rights shall not be construed to im- pair or deny others retained bv the people. Sec. 22. ' The Legislature shall have no power to make an appropria- tion, for any purpose whatever, for a longer period than two years. —[Amended, 1871. ARTICLE II. BIOBT op SDrPBAOE. Section 1 . Who are or may be electors. 2. Privileges of electors. 3. Militia duty, when not to be performed by electors. 4. Residence of voters, gained or lost. b. Who are not electors. 6. Election by ballot. Sbctiok 1. Every white male citizen of the United States, and every white male citizen of Mexico who shall have elected to bectime a citizen of the United States, under the treaty of peace exchanged and ratified at Queretaro, on the thirteenth day of May, eighteen hundred and forty- eight, of the age of twenty-one years, who shall have been a resident of the State six months next preceding the election, and the county or dis- trict in which he claims his vote thirty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law; provided, that nothing herein contained shall be construed to prevent the Legislature, by a two-thirds concurrent vote, from admitting to the right of suffrage Indians, or the descendants of Indians, in such special cases as such a proportion of the legislative body may deem just and proper. Sic. 2. Electors shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest on the days of election, during their attendance at such election, and going to and returning therefrom. Sic. 3. No elector shall be obliged to perform militia duty on the day of election, except in time of war or public danger. Sbc. 4. For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while em- ployed in the service of the United States, nor while engaged in the navigation of the waters of this State or of the United States, or of the high seas; nor while a student at any seminary of learning; nor while kept at any almshouse, or other asylum, at public expense ; nor while confined in any public prison. Sic. 5. No idiot or insane person, or person convicted of any in- famous crime, shall he entitled to the privileges of an elector. Sic. 6. All elections by the people shall M by ball(H..,^ Digitized by Google CONSTITUTION OF CALIFORNIA. ARTICLE III. DISTB1BDTI0N OP POWKBS. Sbction 1. Three separate departments. SiCTiON I. The powers of the goTemment of the State of California shall be divided into three separate departments : the legislative, the ezecutire, and judicial; and no person charged vith the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the otners, except in the cases hereinafter expressly directed or permitted. ARTICLE IV. LEOISLITITI DEPABTMEiiT. SiOTiOM I. Senate and Assembly, and enacting clause of laws. 2. Sessions of the Legislature. 3. Election and term of AssemMymen. 4. Qualifications of legislators. 5. Election and term of Senators. 6. Number and classes of Senators. 7. Number of Senators, when increased. 8. Organization of legislative Houses. 9. What number constitute a quorum. 10. Rules for their government, and expulsion. 11. Each House to keep a journal. 12. Members privileged from arrest and summons. 13. Vacancies, how filled. 14. Open doors, and secret sessions. 15. Adjournment, how long and where to. 16. Origin and passage of bills. 17. Bills to be approved by the Governor or return vetoed; passage over the veto. 18. Assembly to present and Senate to try articles of impeach- ment. 19. What officers liable to impeachment. Judgment in what. 20. Member ineligible to office created during his term of office. 21. Persons holding lucrative offices under the United States Government, etc., ineligible to office under State Gov- ernment. Proviso. 22. Embezzlement or de&lcation of public funds by officer. Penalty. 23. Public moneys and accounts, how disposed of and kept, and published with laws. 24. Compensation, how fixed. 25. Title of laws ; how revised and amended. 26. Divorces shall not be granted by Legislature. 27. Lotteries prohibited. 28. Census, when and how taken. Basis of representation. 29. Apportionment of legislators. 30. Congressional, Senatorial, and Assembly Districts. 31. Corporations to be formed under general laws. 32. Dues of corporations, and individual liabilities therefor. 33. What are corporations. Their powers and duties. 34. Banks of deposit authorized. 35. Banks of circulation prohibited. 36. Individual liabilty of corporation for debt. 37. Organization of municipal corporations. 38. Legislative elections to oe viva voce. 39. Amendments to Article IV, not to affisct official incum- bency. Section I. The legislative power of this State shall be vested in a Senate and Assembly, which shall be designated the Legislature of the State of California, and the enacting clause of every law shall be as fol- lows: "The People of the State of California, represented in Senate and Assembly, do enact as follows." Sec. 2. The sessions of the Legislature shall be biennial, and shall commence on the first Monday of December next ensuing the election of its members, unless the Governor of the State shall, in the interim, convene the Legislature by proclamation. Ko session shall continue longer than one hundred and twenty days. — lAmended, 1862. Sec. 3. ' The members of the Assembly shall be chosen biennially, by the qualified electors of their respective districtii, on the first Wednesday in September, unless otherwise ordered by the Legislature, and their term of office shall be two years. Sec. 4. Senators and members of Assembly shall be duly qualified electors in the respective counties and districts which they represent. Sbc. 6. Senators shall be chosen for the term of four years, at the same time and places as members of the Assembly ; and no person shall be a member of the Senate or Assembly who has not been a citizen and inhabitant of the State and of the county or district for which he shall be chosen, one year next before his election. — [Amended, 1862. Skc. 6. The number of Senators shall not be less than one third, nor more than one half, of that of the members of the Assembly; and at the first session of the Legislature, after this section takes efiect, the Senators shall be divided by lot, as equally as may be, into two classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, so that one half shall be chosen biennially. Sec. 7. When the number of Senators is increased they shall be apportioned by lot, so as to keep the two classes as nearly equal in num- ber as possible. Sec. 8. Each House shall choose its own officers, and judge of the qualifications, elections, and returns of its own members. Skc. 9. A majority of each House shall constitute a quorum to do business; but a smaller number mtty adjourn froi9 day to day, and may compel the attendance of absent members, in such manner and under such penalties as each House may provide. Sec. 10. Each House shall determine the rule of its own proceedings, and may, with the concurrence of two thirds of all the membere elected, expel a member. Sec. II. Each House shall keep a journal of its own proceedings, and publish the same ; and the yeas and nays of the members of either House on any question shall, at the desire of any three members present, be entered on the Journal. Sec. 12. Members of the Legislature shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest, and shall not be subject to any civil process during the session of the Legislature, nor for fifteen days next before the commencement and after the termination of each session. Sec. 13. When vacancies occur in either House, the Governor, or the person exercising the functions of the Governor, shall issue writs of ehsc- tion to fill such vacancies. Sic. 14. The doors of each House shall be open, except on such occa- sions as, in the opinion of the House, may require secrecy. Sec. 15. Neitner House shall, without the consent of the other, adjourn for more than three days, nor to any other place, than that in which they may be sitting. Sec. 16. Any bill may originate in either House of the Legislature, and all bills passed b^ one House may be amended in the other. Sec. 17. Every bill which may have passed the Legislature shall, before it becomes a law, be presented to the Governor. If he approve it, he shall sign it, but if not he shall return it, with his objections, to the House in which it originated, which shall enter the same upon the Journal, and proceed to reconsider it. If, after such reconsideration, it again pass both Houses, by yeas and nays, by a majority of two thirds of the members of each House present, it shall become a law, notwith- standing the Governor's objections. If any bill shall not be returned within ten days after it shall have been presented to him ( Sundays excepted), the same shall become a law, in like manner as if he had signed it, unless the Legislature, by adjournment, prevent such return. Sec. 18. The Assembly shall have the sole power of impeachment, and all impeachments shall be tried by the Senate. When sitting for that purpose the Senators shall be upon oath or affirmation: and no person shall be convicted without the concurrence of two thirds of the members present. Sec. 19. The Governor, Lieutenant-Governor, Secretary of State, Controller, Treasurer, Attorney-General, Surveyor-General, Justices of the Supreme Court, and Judges of the District Court, shall be liable to impeachment for any misdemeanor in office; but judgment in such cases shall extend only to removal from office and disqualification to hold any office of honor, trust, or profit under the State ; but the party convicted or acquitted shall, nevertheless, be liable to indictment, trial, and punishment according to law. All other civil officers shall be tried for misdemeanor in office, in such a manner as the Legislature may provide. Sec. 20. Ko Senator or member of the Assembly shall, during the term for which he shall have been elected, be appointed to any civil office of profit under this State which shall have been created or the emoluments of which liave been increased during such term, except such office as may be filled b^ election by the people. Sec. 21. No person holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under this State; provided, that officers in the militia to which there is attached no annual salary, or local officers and Postmasters, whose com- pensation does not exceed five hundred dollars per annum, shall not be deemed lucrative. Skc. 22. No person who shall be convicted of the embezzlement or defalcation of the public funds of this State shall ever be eligible to any office of honor, trust, or profit under this State; and the Legislature shall, as soon as practicable, pass a law providing for the punishment of such embezzlement or defalcation as a felony. Sec. 23. No money shall be drawn from the treasury but in conse- quence of appropriations made by law. An accurate statement of the receipts and expenditures of the public moneys shall be attached to and published with the laws at every regular session of the Legislature. Sec. 24. The members of the Legislature shall receive for their services a compensation to be fixed by law, and paid out of the public treasury; but no increase of the compensation shall take efiect during the term for which the members of either House shall have been elected! Sec. 25. Every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title ; and no law shall be revised or amended by reference to its title ; but in such case the Act revised or section amended shall be reenacted and published at length. Sec. 26. No divorce shall be granted by the Legislature. Sec. 27. No lottery shall be allowed by this State, nor shall the sale of lottery-tickets be allowed. Skc. 28. The enumeration of the inhabitants of this State shall be taken, under the direction of the Legislature, in the years one thousand eight hundred and fifty-two and one thousand eight hundred and fifty- five, and at the end of every ten years thereafter; and these enumer- ations, together with the census that may be taken under the direction of the Congreiis of the United States, in the year one thousand eight hundred and fifty, and every subsequent ten years, shall serve as the basis of representation in both Houses of the Legislature. Sec. 29. The number of Senators and members of Assembly shall, at the first session of the Legislature holden after the enumerations herein provided for are made, be fixed by the Legislature, and apportioned among the several counties and districts to be established by law, accord- ing to the number of white inhabitants. The number of members of Assembly shall not be less than twenty-four, nor more than thirty-six, until the number of inhabitants within this State~shall amounk to one Digitized by VjOOQIC CONSTITUTION OF CALIFORNIA. hundred thousand ; and after that period, in euch ratio that the whole number of memben of Assembly shall never be less than thirty nor more than eighty. Sue. 30. WhenaCongreasional.Senatorial.or Assembly District shall be composed of two or more counties, it shall not be separated by any county belonginf; to another district. No county shall be divided in forming a Congressional, Senatorial, or Assembly District so as to attach one portion of a county to another county ; but the Legislature may divide each county into as many Congressional. Senatorial or Assembly Districts as such oountv may by apportionment be entitled to. — [AmentUd, J 862. 8«c. 31. Corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes. All gen- eral laws and special Acts passed pursuant to this section may be altered from time to time, or repealed. Sbc. 32. Dues from corporations shall be secured by such individual liabUity of the corporators and other means as may be prescribed by law. Sec 33. The'term corporations, as used in this article, shall be con- strued to include all associations and joint stock companies having any of the powers or privileges of corporations not possessed by individuals or partnershipe. And all corporations shall have the right to sue, and shall be subject to be sued in all Courts, in like cases as natural persons. Sic. 34. The Legislature shall have no power to pass any Art grant- ing any charter for banking purposes, but associations may be formed, onder general laws, for the deposit of ^Id and silver; but no such asso- ciation shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate a£ money. Sec. 35. The Legislature of this State shall prohibit, by law, any pereon or penons, association, company, or corporation, from exercising the privileges of banking or creating paper to circulate as money. Sec. 36. Each stockholder of a corporation or joint stock association shall be individually and personally liable for his proportion of all its debts and liabilities. Sbc. 37. It shall be the duty of the Ijegislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, aad loaniag their credit, so as to prevent abuses in assessments and in con- tracting debts by such municipal corporations. Sbc. 38. In all elections by the Legislature the members thereof shall vote viva voce, and the votes shall be entered on the Journal. Sbc 39. In order that no inconvenience may result to the public service from the taking effect of the amendments proposed to Article IV by the Legislature of eighteen hundred and sixty-one, no officer shall be suspended or superseded thereby until the election and qualification of the several officers provided for in said amendments. — Amended, 1862. ARTICLE V. ixicctivb dbpabtmint. Sbctioic 1. Governor is vested with supreme executive power. 2. Election of Governor and term of office. 3. Qualifications and eligibility to the office. 4. Returns of, and counting the vote for Governor. 5. Governor to be Commander-in-Chief. 6. Transact all executive business. 7. See to the execution of the laws. 8. Fill vacancies not otherwise provided for. 9. Convene special sessions of the Legislature. 10. Executive messages. 11. Adjourn the Legislature when the Houses disagree. 12. Must not be Governor and hold other office. 13. Reprieves and pardons for offenses. 14. Keeper of "The great seal of the State of California." 15. Sign and seal grants and commissions. 16. Of the Lieutenant-Governor. 17. When powers of Governor devolve on the Lieutenant- Governor. 18. Election and terms of other State officers. 19. Duties of Secretary of State. 20. Election of Stale officers for the first terra by Legislature; thereafter, as in section eighteen provided. 21. Compensation. Not to be increased or diminished. Sbctiok 1. The supreme executive power of this State shall be vested in a Chief Magistrate, who shall be styled the Governor of the State of California. Sbc 2. The Governor shall be elected by the qualified electors, at the time and places of voting for members of the Assembly, and shall hold hi» office for four years from and after the first Monday in Decem- ber subsequent to his election, and until his successor is elected and (juali&ed.~{ Amended, 1862. Sbc 3. No person shall be eligible to the office of Governor (except at the first election) who has not been a citizen of the United States and a resident of this State two years next preceding the election, and at- tained the age of twenty-five years at the time of said election. Sbc 4. The return of every election for Governor shall be sealed up and transmitted to the seat of government, directed to the Speaker of the Assembly, who, shall, during the first week of the session, open and pablish them in presence of both Houses of the Legislature. The per- son having the highest number of votes shall be Governor; but, in case any two or more have an equal and the highest number of votes, the Legislature shall, by joint vote of both Houses, choose one of said per- sona so having an equal and the highest number of votes, for Governor. Bbc i. The Governor shall be Commander-in-Chief of the militia, the army, and navy of this State. Sec. 6. He shall transact all executive business with the officers of government, civil and military, and may require information in writing from the officers of the Bxecutive Department, upon any subject relat ing to the duties of their respective ofiices. Sec. 7. He shall see that the laws are faithfully executed. Sec. 8. When any office shall, from any cause, become vacant, and no mode is provided by the Constitution and law for filling such vacancy, the Governor shall have power to fill such vacancy, by grant- ing a commission, which shall expire at the end of the next session of the Legislature, or at the next election by the people. Sec. 9. He may, on extraordinary occasions, convene the Legislature by proclamation, and shall state to both Houses, when assembled, the purpose for which they shall have been convened. Sec. 10. He shall communicate by message to the Legislature, at every session, the condition of the State, and recommend such matters as he shall deem expedient. Sec. 11. In case of a disagreement between the two Houses with re- spect to the time of adjournment, the Governor shall have power to ad- journ the Legislature to such time as he may think proper; ^provided, it he not beyond the time fixed for the meeting of the next Legislature. Sec. 12. No person shall, while holding any office under the United States, or this State, exercise the office of Governor, except as herein- after expresslv provided. Sec. 13. "fhe Governor shall have the power to grant reprieves and pardons after conviction, for all oflenses, except treason and cases of im- peachment, upon such conditions and with such restrictions and limita- tions as he may think proper, subject to such regulations as may be pro- vided by law relative to the manner of applying for pardons. Upon conviction for treason, he shall have the power to suspend the execution of the sentence until the case shall be reported to the Legislature at its next meeting, when the Legislature shall either pardon, direct the ex- ecution of the sentence, or grant a further reprieve. He shall communi- cate to the Legislature, at the beginning of everv session, everv case of reprieve or pardon granted, stating the name of' the convict, the crime of which he was convicted, the sentence and its date, and the date of the pardon or reprieve. Sec. 14. There shall be a seal of this State, which shall be kept by the Governor, and used bv him officially and shall be called " The . Great Seal of the State of California." Sec. is. All grants and commissions shall be in the name and by the authority of The People of the State of California, sealed with the Great Seal of the State, signed by the Governor, and countersigned by the Secretary of State. Sec. 16. A Lieutenant-Governor shall be elected at the same time and places, and in the same manner, as the Governor; and his term of office, and his qualifications of eligibility, shall also be the same. He shall be President of the Senate, out shall only have a casting vote therein. If, during a vacancv of the office of Governor, the Lieutenant- Governor shall be impeached, displaced, resign, die, or become incapa- ble of performing the duties of his office, or be absent from the State, the President of the Senate shall act as Governor until the vacancy be filled or the disability shall cease. Sec. 17. In case of the impeachment of the Governor, or his removal from office, death, inability to discharge the powers and duties of said office, resignation, or absence from the State, the powers and duties of the office shall devolve upon the Lieutenant-Governor for the residue of the term, or until the disability shall cease. But when the Governor shall, with the consent of the Legislature, be out of the State in time of war, at the head of any military force thereof, he shall continue Com- mander-in-Chief of all the military forces of the State. Sec. 18. A Secretary of State, a Controller, a Treasurer, an Attorney- General, and a Surveyor-General, shall be elected at the same time and place, and in the same manner, as the Governor and Lieutenant-Gov- ernor, and whose term of office shall be the same as the Governor. — [Amended, 1862. Sec. 19. The Secretary of State shall keep a fair record of the official acts of the legislative and executive departments of the Government, and shall, when required, lay the same^ and all matters relative thereto, before either branch of the Legislature, and shall perform such other duties as may be assigned hira by law; and in order that no inconven- ience may result to the public service from the taking effect of the amendments proposed to said Article V bv the Ijegislature of eighteen hundred and sixty-one, no officer shalf be superseded or suspended thereby, until the election and qualification of tne several officers pro- vided for in said amendments — [Amended, 1862. Sec. 20. The Controller, Treasurer, Attorney-General, and Surveyor- General, shall be chosen by joint vote of the two Houses of the Legis- lature at their first session under this Constitution, and thereafter shall be elected at the same time and places, and in the same manner, as the Governor and Lieutenant-Governor. Sec. 21. The Governor, Lieutenant-Governor, Secretary of State, Controller, Treasurer, Attorney-General, and Surveyor-General, shall each, at stated times during their continuance in office, receive for their services a compensation which shall not be increased or diminished during the term for which they shall have been elected ; but neither of these officers shall receive, for his own use, any fees for the performance of his official duties. ARTICLE VI. JUDICIAL DEPABTHENT. • Sectiom 1. Judicial powers. 2. Supreme Court, how constituted. Three Justices neces- sary to transact business. 3. Election of Supreme Court Justices. 4. Jurisdiction of the Supreme Court. Digitized by Google CONSTITUTION OF CALIFORNIA. Section 5. Judicial districts; Judges' terms; absence. 6. Jurisdiction of District Courts. 7. County Court; Judges; terms and powers of the Court, and Probate Judge of San Francisco. 8. Jurisdiction of County Court. 9. Justices of the Peace, their powers and duties. 10. Jurisdiction of Recorders' and other inferior municipal Courts. 11. Clerk of the Supreme Court, County Clerk, and other officers; their powers and duties. 12. Terms of the Courts, how to be fixed. IS. Fees and perquisites of judicial officers. 14. Decisions of the Supreme Court to be published. 15. Salaries of judicial officers, how fixed. It. Ineligibility of Judges for other offices. 17. Charge of Judges to juries. 1 8. Style of " process." 19. Amendments to Article VI not to affect official incum- bency. Skction 1. The judicial power of this State shall be vested in a Supreme Court, in District Courts, in County Courts, in Probate Courts, and in Justices of the Peace, and in such Recorders' and other inferior Courts as the Legislature may establish in any incorporated city or town.— [Amended, 1862. Sic. 2. The Supreme Court shall consist of a Chief Justice and four Associate Justices. The presence of three Justices shall be necessary for the transaction of business, excepting such business as may be done at chambers, and the concurrence of three Justices shall be necessary to pronounce a judgment. — {Amended, 1862. Sue. 3. The Justices of the Supreme Court shall be elected by the qualified electors of the State at special elections to be provided by law, at which elections no officer other than judicial shall be clectetl, except a Superintendent of Public Instruction. The first election for Justices of the Supreme Court shall be held in the year eighteen hundred and sixty-three. The Justices shall hold their offices for the term of ten years from the first day of January next after their election, except those elected at the first election, who, at their first meeting, shall so classify themselves by lot that one Justice shall go out of office every two years. The Justice having the shortest term to serve shall be the Chief Justice.— [^m«nderf, 1882. Sxc. 4. The Supreme Court shall have appellate jurisdiction in all cases in equity; also, in all cases at law which involve the title or pos- session of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest or the value of tne property in controversy, amounts to three hundred dollars; also, in all cases arising in the Probate Courts, and also in all criminal cases amounting to felony, on questions of law alone. The Court shall also have power to issue writs of mandamus, certiorari, prohibition, and habeas corpus, and also all writs neeessarv or proper to the complete exercise of its appellate jurisdiction. Eacii of the Justices shall nave power to issue writs of nabeas corpus to any part of the State, upon petition on behalf of any person held in actual custody, and may make such writs returnable before himself, or the Supreme Court, or before any District Court, or any County Court in the State, or before any Judge of said Courts. — [Amendai, 1892. Sec. 5. The State shall be divided, by the Legislature of eighteen hundred and sixty-three, into fourteen juillcial districts, subject to such alteration, from tune to time, by a two-thirds vote of all the members elected to both Houses, as the public good may require ; in each of which there shall be a District Court, and for each of which a District Judge shall be elected by the qualified electors of the district, at the special judicial elections to be held as provided for the election of Justices of the Supreme Court by section three of this article. The District Judges shall hold their offices for the term of six years from the first day of January next after their election. The Legislature shall have no power to grant leave of absence to a judicial officer; and any such officer who shall absent himself from the State for upwards of thirty consecutive days, shall be deemed to have forfeited his office. — [Amended, 18B2. Bec. 6. The District Courts shall have original jurisdiction in all cases in equity ; also, in all cases at law which involve the title or pos- session of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand, ex- clusive of interest or the value of the property in controversy, amounts to three hundred dollars, and also in all criminal cases not otherwise provided for. The District Courts and their Judges shall have power to issue writs of habeas corpus, on petition by or on behalf of any person held in actual custody, in their respective districts. — [Amended, 1862. Src. 7. There shall be in each of the organized counties of the State a County Court, for each of which a County Judge shall be elected by the qualified electors of the county, at the special judicial election to be held as provided for the election of Justices of the Supreme Court, by section three of this article. The County Judges shall hold their offices for the term of four years from the first day of January next after their election. Said Courts shall also have power to issue naturalization papers. In the City and County of San Francisco the Legislature may separate the office of Probate Judge from that of County Judge, and may provide for the election of a Probate Judge, who shall hold Bis office for the term of four yeais.-^[Amended, 1 862. Sec. 8. The County Courts shall have original jurisdiction of actions of forcible entry and detainer, of proceedings in insolvency, of actions to prevent or abate a nuisance, and of all such special cases and pro- ceedings as are not otherwise provided for, and also such criminal juris- diction as the Legislature may prescribe ; they shall also have appellate jurisdiction in allcases arising in Courts held by Justices of the Peace and Recorders, and in such inferior Courts as may be established in pursuance of section one of this article, in their respective counties. The County Judges shall also hold, in their several counties. Probate Courts, and perform such duties as Probate Judges as may be prescribed by law. The County Courts and their Judges shall also have power to issue writs of habeas corpus, on petition by or on behalf of any person in actual custody in their respective counties. — [Amended, 1862. Sec. 9. The Legislature shall determine the number of Justices of the Peace to be elected in each city and township of the State, and fix by law their powers, duties, and responsibilities ; provided, such powers shall not in any case trench upon the jurisdiction of the several Courts of record. The Supreme Court, the District Courts, County Courts, the Pro- bate Courts, and such other Courts as the Legislature shall prescribe, shall be Courts of record. — [Amended, 1862. Skc. 10. The LegisUture shall fix by law the jurisdiction of any Recorder's or other inferior municipal Court which may be established in pursuance of section one of this article, and shall fix by law the powers, duties, and responsibilities of the judges thereof. — [Amended, 1862. Sec. 11. The Legislature shall provide for the election of a Clerk of the Supreme Conrt, County Clerks, District Attorneys, SheriflTs, and other necessary officers, and shall fix by law their duties and compensa- tion. County Clerks shall be ex officio Clerks of the Courts of record in and for their respective counties. The Legislature may also provide for the appointment by the several District Courts of one or more Commis- sioners in the several counties of their respective districts, with authority to perform chamber business of the Judges of the District Courts and County Courts, and also to take depoeitions, and to perform such other business connected with the administration of justice as may be pre- scribed by \8lW.— [Amended, 1862. Sec. 12. The times and places of holding the terms of the several Courts of record shall be provided for by lav.— [Amended, 1862. Sec. 13. No judicial officer, except Justices of the Peace, Recorders, and Commissioners, shall receive to nis own use any fees or perquisites o( ot^ee.— [Amended, 1862. Sec. 14. The Legislature shall provide for the speedy publication of such opinions of the Supreme Court as it may deem expedient; and all opinions shall be free for publication by any person. — [Amended, 1862. Sec. 15. The Justices of the Supreme Court, District Judges, and County Judges, shall severally, at stated times during their continuance in office, receive for their services a compensation which shall not be increased or diminished during the term for which they shall have been elected ; protiided, that County Judges shall be paid out of the county treasury of their respective counties. — [Amended, 1862. Sec. 16. The Justices of the Supreme Court, and the District Judges, and the County Judges, shall be ineligible to any other office than a judicial office during the term for which they shall have been elected. — [Amended, 1662. Sec. 17. Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law. — [Amended, 1862. Sec. 1 8. The style of all process shall be : " The People of the State of California," and all prosecutions shall be conducted m their name and by their authority. — [Amended, 1862. Sec. 19. In order that no inconvenience may result to the public service from the taking effect of the amendments proposed to said Article VI by the Legislature of eighteen hundred and sixty-one, no officer shall T>e superceded thereby, nor shall the organization of the several Courts be changed thereby, until the election and qualification of the several officers provided for in said amendments. — [Amended, 1862. ARTICLE VII. Sectiok I. Organization and disciplining of the militia. 2. Officers, how elected or appointed. 3. Governor to call out the militia. Section 1. The Ijegislature shall provide by law for organiling and disciplining the militia in such manner as they shall- deem^expedient, not incompatible with the Constitution and laws of the United States. Sec. 2. Officers of the militia shall be elected or appointed in such manner as the Legislature shall from time to time direct, and shall be commissioned by the Governor. Sec. 3. The Governor shall have power to call forth the militia to execute the laws of the State, to suppress insurrections, and repel invasions. ARTICLE VIII. STATE DEBTS. Section 1. Restriction on the legislative power to contract debts. Section 1. The Legislature shall not in any manner create any debt or debts, liability or liabilities, which shall, singly or in the aggre- gate with any previous debts or liabilities, exceed the sum of three hundred thousand dollars, except in case of war, to repel invasion, or suppress insurrection, unless the same shall be authorized by some law for some single object or work, to be distinctly specified therein, which law shall provide ways and means, exclusive of loans, for the payment of the interest of such debt or liability as it falls due, and also to pay and discharge the principal of such debt or liability within twenty years from the time of the contracting thereof, and shall be irrepealable until the principal and interest thereon shall be paid and discharged; but no siich law shall take effect until, at a general election, it shall have been submitted to the people and have received a majority of all the votes cast for and against it at such election ; and all money raised by authority of such law shall be applietl only to the specific object therein stated, or to the payment of the debt therebx-c^eated. And such law Digitized by VjOOQIC OONSTITUTION OF CALIFORNIA. shall be published in at least one newspaper in ea«h judicial district, if one be published therein, throughout the State, for three months next preceding the election at which it is submitted to the people. ARTICLE IX. CDCCATION. SscTtox I. Superintendent of Public Instruction. 2. Duties of Legislature to promote and encourage education. Proceeds of school lands. School Fund. 3. To provide a system of common schools. 4. University Fund; how created, managed, and applie( Examiners shall be of continuous and consecutive days' proc(!eding8, in plain, legible, long-hand copy, properly prepared for the printer ; provided, that either House of the Legislature shall, upon the passage of this bill, be entitled to call for a transcription of such parts of the transactions and debates of the said Constitutional Convention, and of the Committee of the Whole thereof, as may be designated in a j'esolution calling for said transcription, and the transcription called for by either House shall be made and furnished without delay ; but the manuscript of transcription called for by either House shall be returned to said Willis and Stockton, but shall not be by them presented to the Board of Examiners until they are reached in their proper connection by a consecutive transcription of the short-hand notes. Skc. 4. Said Willis and Stockton shall verify the transcription of the report presented by them to said Board of Examiners, by an oath to be administered by the Governor. Skc. i. The said Board of Examiners shall have such power and authority as may be necessary to carry out, in good faith, the purposes and objects of this bill. Skc. 6. The State Board of Examiners shall cause to be printed, at the State Printing Office, such numbers of copies of the said^ reports of the proceedings, transactions, and debates of said Convention as may be by them deemed advisable, under the direction of the Superintendent of Public Printing, at a cost which shall not exceed the sum of eighteen thousand dollars. The Board of Examiners shall copyright said publi- cation, to the end that the State may be protected. Such copies, when printed, shall be placed in the hands of the Secretary of State, who shall dispose of them as follows, to wit: Ten full sets of volumes shall be fil«l in the State Library, for the use of members of the Legislature ; one set shall be sent to the State Librai^ of each of the States which have furnished the State Library of this State with volumes of the transactions and debates of the Constitutional Conventions held in such States ; one full set of the volumes to each of the Justices of the Supreme. Court; one full set of the volumes to each Judge of a Superior Court* in this State. The remainder of the volumes shall be sold at a sum to be fixed by said Board of Examiners, but which shall not exceed fifteen dollars per set of the volumes. Sic. 7. This Act shall take effect immediately> 1 .oogle CONSTITUTIONAL CONVENTION. Saturday, SACRAMENTO, CALIFORNIA. Sept. 28, 1878. IN CONVENTION FIRST DAY. Sacramento, Saturday, September 28, 1878. Pumiant to an Act of the Legislature of the State of California, entitled "An Act to provide for a Convention to frame a new Constitution for the State of California," approved Morch 30th, 1878, the delegates elect to said Convention met in the Assembly Chamber of the State Capitol this day, at 12 o'clock u.. His Excellency Governor William Irwin presiding. Upon calling the Convention to order, Grovemor Irwin said: The hour having arrived for the meeting of the Constitutional Con- vention to frame a Constitution for the State of California, all ])eraon8 on the floor of the Chamber whose names do not appear in the' proclama- tion of the Goremor as having been elected delegates to the Convention, will please retire outside the bar of the Chamoer. (Jentlemen whose names are mentioned in that proclamation will please take the seats assigned them by the Secretary of State. Article X, Section 2, of the Constitution, provides: "And if at any time two thirds of the Senate and Assembly shall think it necessary to revise and change this entire Constitution, they shall recommend to the electors at the next election for members of the Legislature to vote for or against a Convention ,- and if it shall appear that a majority of the electors voting at such election have voted in favor of calling a Conven- tion, the Legislature shall, at its next session, provide by law for calling a Ctrnvention, to be holden within six months after the passage of said law." At the Legislature of 1875-6 two thirds of both branches voted to recommend to the people of the State to vote for calling a Convention to amend or revise the Constitution. At the next general election a majority of those voting voted to call the Convention. Id purauance of this section of the Constitution, the last Legislature passed an Act calling this Convention. In that Act it is provided as follows : " It shall be the duty of the Governor to attend said Convention at the opening thereof, and to administer the constitutional oath of office to the delegates, and preside at all meetings thereof until a Presi- dent has been elected and taken his seat; and the Governor shall have neither the casting vote nor any other vote therein. The Secretary of State shall also attend at the opening of the Convention, and call the roll of delegates." In pursuance of the power conferred by this Act of the Legislature, I have now called this Convention to order, and I will direct the Secretary of State, Mr. Beck, to proceed and call the roll of delegates. Delegates will answer to their names as the roll is called. The Secretary of State, Hon. Thomas Beck, then called the roll, and the 6)liowing delegates answered to their names: Overton, , -, Porter, 1 • " Prouty, Pulliam, Reddy, Reed, \ Reynolds, Rhodes, Ringgold, Rolie, Scbell, Schomp, ' Shatter, Shoemaker, Shurtleff, Smith, of Santa Clara, Smith, of 4th District, Smitb,of San Francisco, Soule, Stedman, Steele, Stevenson, Stuart, Sweasey, Swenson, Swing, Tinnm, Townsend, Tully, • Turner, Tattle, Vacquerel, Van Dyke, Van Voorhies, Walker, of Marin, Walker, of Tuolnmne, Waters, Webster, Weller, Wellin, West, Wickea, White, Wilson, of Tehama, Wilson, of 1st District, Winans, Wvatt A. Campbell, Jr., David 8. Terry, George M. Hardwick, Daniel tnman, Thoa. Morris, resigned, deceased. John F. Miller, H. H. Haight, deceased, TBI OATB or OPFICK. Governor IRWIX. The members of the Convention have all re- sponded to their names, except four; there being a majority of the Con- vention present we will proceed to the next business in ortler, which will be to swear in the members. The Secretary will call the names of members in groups of four, in alphabetical order, and when their names are called members will come forward and take the constitutional oath of office. Delegates then came forward in grouiis of four to the right of the President's desk, and took and subscribed to the following oath : " I do solemnly affirm that I will support the Constitution of the United States and the Constitution of the State of California; and that I will faithfully discharge the duties of the office of member of the Conven- tion to frame a new Constitution for the State of California according to the best of my ability." The delegates subscribed to the oath in the following order : Andrews, Ayers, Barbour, Barnes, Barry, Barton, Beerstecher, Belcher, Bell. Berry, Biggs, Blackmer, Boucher, Brown, BoTt, Ga]des, Canerly, Chapman, CIi«riea,v* Coodon, Onrden, Crms, (Vouch, tvria. Dean, Doiwling, ftqrie, IladlC7,orSolana, DaOey, of San Joaquin ' Amador, %•<«. DELKOATBS rRKSINT. Edgerton, Estec, Eetey, Evey, Fanell, Fawcett, Filcher, Finney, Freeman, Freud, Garvey, Glascock, Gorman, Grace, Graves, Gregg, Hager, Hale, Hall, Harrison, Harvey, Heiskell, Herold, Herrington, Huestis, Hilbom, Hitehcock, Hoge, Holmes, Howard, Hughey, Hunter, Johnson, Jones, Jovce, Kelley, Kenny, Keyes, Kleine, Laine, Lampson, Larkin, Larue, Lavigne, Lewis, Lindow, Mansfield, , Martin, McCallum, McComas, McConnell, McCoy, McFarland, McNutt, Mills, Moffiit, Moreland, Morse, * Murphy, Nason, Nelson, Keunaber, Noel, O'Donnell, Ohleyer, O'Sullivan, A. R. Andrews, James J. Ayers, Clitus Barbour, W. H. L. Barnes, Edward Barry, James N. Barton, C. J. Beerstecher, Isaac S. Belcher, J. Benr, Peter Bell, Marion Big E. T. Black 8. B. Burt, A. C. Freeman, W. F. Huestis, T. D. Heiskell, Conrad Herold. D. W. Herrington, G. W. Hunter. V. E. Howard, William P. Hughey, J. P. Hoge, S. A. Holmes, J. R. W. Hitehcock, Augustus H. Chapman, S. G. Hilborn, James Caples, John D. Condon, D. H. Cowden, J. M. Charles, Charles W. Cross, P. T. Dowling, Hamlet Davis, James E. Dean, Rob. Crouch, Josiah Boucher, P. Dunlap, Jonathan M. Dudley, Luke Doyle, W. L. Dudley, Morris M. Estee, T. H. Estey, John A. Eagon, Henry Edgerton, Edward Evey, J. A. Filcher, Eugene Fawcett, 8. J. Farrell, Chas. G. Finney, Jr., Eugene Casserfy, J. Richard Freud, J. C. Gorman, W. P. Grace, J. B. Garvey, B. B. Glascock, J. E. Hale, W. J. Graves, Jno. 3. Hager, P. J. Joyce, J. M. Kelley, L. F. Jones, George A. Johnson, T. H. Laine, Charles R. Kleine, James H. Keys, Bernard F. Kenny, Henry Larkin, Hugh M. Larue, R. M. Lsmpson, H. C. Boggs, John Mansfield, John F. Lindoif, Raymond Lavigne, David Lewis, Thomas McConnell, Rush McComas, John G. McCallum, Edward Martin, John F. McNutt, William H. Prouty, A. P. Overton, J. M. Porter, M. R. C. Pulliam, James 8. Reynolds, Patrick Reddv, Jno. M. RhoJes, Charles F. Reed, J. Schomp, C. S. Ringgold, n. C. Rofie, George W. Schell, E. 0. Smith, Benj. Shurtleff, J. McM. Shafter, Rufus Shoemaker, E. P. Soule, H. W. Smith, Geo. Venable Smith, John C. Stedman, W. J. Sweasey, Geo. Steele, Chas. V. Stuart, F. 0. Townsend, Chas. Swenson, R. 8. Swing, W. J. Tinnin, P. B. Tully, A. P. Vacquerel. Daniel Tuttle, Henry K. Turner, Walter Van Dyke, W. Van Voorhies, Jno. Walker, Thos. Bond McFarland, Hugh Walker, Jno. F. Miller, John McCoy, Wm. 8. Moffat, H. Mills, Lucius D. Moss, W. W. Moreland, James E. Murphy, Henry Neunaber, k Thorwald Nelson, Edmund Nason, Joseph R. Weller, P. M. Wellin, J. V. Webster, Byron Waters, .lohn T. Wickes, Wm. F. White. H. C. Wilson, (Tehama) John P. West, Samuel^KL Wilson, Jos. '^'^" Digitized by ,t5nbgle 14 DEBATES AND PROCEEDINGS Monday, ^. Gregg, W. Harv Joel W. Harvey, Thomas Harrison, J. B. Hall, George Ohleycr, Chaa. C. O'Donnell, James O'Sullivan, A. E. Noel, N. G. Wyatt, Joseph C. Brown, D. C. Stevenson, A KIStOlCATION. GoviBNOE IKWIN — Gentlemen of the Convention : I have a paper here which has been handed to me, which purports to be a resignation of one of the members, or a gentleman who was elected as a member of the Convention. I will read it, and it will lay upon the table until the Oonvenlion shall be organized : Sax riAXCisoo, September 14, 18T8. To ths Prvaideiit and HemberB of the ConatltutloDml CoDT^ntloa of the State of Calf forDi»— Gontlemen : I herebj mign nij pufiitioo u D«le^ta to your Conreo- tion from th« Citr aad Conatj of !)an FrsactiKO. THOMAS MORBIS. Witneaa: CLrros BABBOca. GovKRicOR IRWIN. It will lay on the table until after the organiza- tion of the Convention, when the Convention can take such action ai it may deem proper. ADJOORMUKMT. Me. DUDLEY, of San Joaquin. I move now that the Convention adjourn until Monday morning at eleven o'clock, in order that members may have an opportunity to confer with each other in regard to the organization. GovKRNOR IBWIN. Mr. Dudley moves that the Convention now adjourn until eleven o'clock on Monday. Mr. HUESTIS. I second the motion. Mr. BEERSTECHER. I move to amend that resolution so that it will read that we do now adjourn until three o'clock this afternoon to assem- ble here and proceed to business. Mr. FREUD. I second the motion. Gotrrnor IRWIN. The question cornea on the amendment to the motion to adjourn until Monday at eleven o'clock. The amendment is that the Convention adjourn until three o'clock this afternoon. The question was put, and before the Chair decided Mr. BEER- STECHER demanded the ayes and noes. Govkbnor IRWIN. It requires three to rail for the ayes and noes. Mbssb.1. O'SULLIVAN and WHITE called for the ayes and noes. GovBBNOB IRWIN. Do you understand the question? The original motion was that the Convention adjourn to meet at eleven o'clock on Monday. To this an amendment is offered to adjourn until three o'clock this afternoon. The question now is on the adoption of the amendment. Those in favor of the amendment will say " aye " as their names are called, and those opposed " no." Mb. HAGER. I move to amend the amendment by substituting twelve o'clock on Monday. Govrrnor IRWI^. It is the opinion of the Chair that action on the adjournment to the shortest period will take precedence. Mr. HAGER. Not by any general rule we have Iwfore us. We have adopted no rule. Ordinarily in legislative bodies they have such a rule that a motion to adjourn to the shortest period shall tie put first, but that is by an express rule of that body, not by anj^ general parliamentary rule. Mr. BEERSTECHER. Mr. President : I rise to a point of order. The Chair has decided, and if he desires to take an appeal be has got the privilege of appealing from the decision of the Chair. Govrrnor IRWIN. The Chair has not finally decided. The Chair will decide in due time. Mr. HAGER. Then I might reply that the ^ntleman himself is out of order, as there is no rule that applies to him. I presume that the correct rule would be to put the propositions as they regularly come up. If I should offer a substitute which would be allowed by parliamentair rule, I mi^ht offer as a substitute that we adjourn to another period. My object is merely to test the sense of the Convention in the shortest and most expeditious way. Govrrnor IRWIN. If the Convention does not see proper to adopt the amendment the^ will vote it down, and the question will then come on the motion to adjourn until eleven o'clock on Monday. The question is now on the amendment offered by the gentleman from San Francisco, Mr. Beerstecher, to adjourn until three o'clock this afternoon. The members in favor of the amendment wfll answer " aye " as their names are called j those opposed will answer " no." The Secretary will call the roll. I beg that members will maintain perfect silence during the call of the roll, otherwise it will be impossible to hear the responses. Thr SECRETARY called the first name. Mb. HERRINGTON. I rise to a point of order, and object to the call ing of the roll. OovKRNOB IRWIN. The roll is being called. The gentleman will take his seat. The roll call will proceed. The roll was then called, with the following result : Andrews, Ayers, Barbour, Barton, Beerstecher, Bell, Blackmer, Brown, Condon, Cross, Davis, Dean, Dowling, Doyle, Evey, Farrell, Filcher, Finney, Freud, Gorman, Grace, Harrison, Herold, Howiuvl, Hugffey, Hunter, Joyce, Kenny, Kleine, Larkin, Lavigne, Lindow, McCoy, Morse, Noson, Nelson, Neunaber, O'Donnell, O'Sullivan, Reynolds, Sweasey, Rhodes, Swenson, Ringgold, Tuttle, Smith, of San Francisco, Vacquerel, Soule, Walker, of Tuolumne, Stedman, Webster, Barnes, Barry, Belcner, Berry, Boggs, Boucher, Burt, Caples, Casserly, Chapman, Charles, Cowden, Crouch, Dudley, of Solano, Dudley, of San Joaquin and Amador, Dunlap, Eagon, Edgerton, Estee, Estey, Fawcett, Freeman, Garvey, Glascock, Graves, Gregg, Hager, Hale, NORS. Hall, Harvey, Hciskell, Herrington, Huestis, Hilbom, Hitchcock, Hoge, Holmes, Johnson, Jones, Kelley, Ke^es, Ijaine, Lampson, Larue, Lewis, Mansfield, Martin, McCallum, McComas, McConnell, McFarland, McNutt, Miller, Mills, Moffat, Moreland, Murphy, Noel, Wellin, West, Wickes, White, Wilson, of Tehama, Wyatt^57. Ohieyer, Overton, Porter, Prouty, Pulliam, Reddy, Reed, Bolfe, Schell, Schomp, Shafter, Shoemaker, Shurtleff, Smith, of Santa ClarB, Smith, of 4th District, Steele, Stevenson, Stuart, Swin^, Tinnm, Townsend, Tully, Turner, Van Dyke, Van Voorhies, Walker, of Marin, Waters, Weller, Wilson, of Ist District, Winans — 89. During the call of the roll, when Mr. HERRINGTON'S name waa called he said : Mr. Chairman, I believe I am now in order. Govrrnor IRWIN. How does the gentleman vote? Mr. HERRlN(tTON. I vole " no," upon the ground that I do not believe that the Chairman of this Convention has any right to adjourn this body. Govkrkor IRWIN. The gentleman will please take his seat The Secretary will proceed with tne roll call. The calling of the roll was then finished. GovKBNOB IRWIN^ Aves, 57; noes, 89. The Convention refuses to adopt the amendment, "fhe question is now on the original motion, to adjourn until 11 o'clock on Monday. The motion prevailed, and the Governor, at 1:40 p. m., declared the Convention adjourned until Monday at 1 1 a. ii. THIRD DAY. Sacraurkto, Monday, September 30th, 1878. At eleven o'clock a. m., pursuant to adjournment, Govrrnor IRWIN called the Convention to order and requested all persons not members or who had not aents assigned them on the floor, to retire outside the bar of the chamber. The Sccrctaiy of State called the roll and the members were found in attendance as follows : Andrews, Aycrs, Barbour, Barnes, Barry, Barton, Beerstecher, Belcher, Bell, Berry, Biggs, Blackmer, Boucher, Brown, Burt, Caples, Casserly, Chapman, Charles, Condon, Cowden, Cross, Crouch, Davis, Dean, Dowling, Doyle, Dudley, of Solano, Dudley, of San Joaquin, DRLROATIS PRRSRNT. Dunlap, Eagon, Edgerton, Estee, Estcy, Evey, Farrell, Fawcett, Filcher, Finney, Freeman, Freud, Garvey, Glascock, Gorman, Grace, Graves, Gregg, Hager, Hale, Hall, Harrison, Harvey, Hciskell, Herold, Herrington, Hilbom, Hitchcock, Hoge, Holmes, Howard, Huestis, Hughey, Hunter, Johnson, Jbnes, Joyce. Kelley, Kenny, Keyes, Kleine, Laine, Lampson, Larkin, Larue, Lavigne, Lewis, Lindon, Mansfield, Martin, McCallum, McComas, McConnell, McCoy, McFarland, McNutt, Miller, Mills, Mofi'at, ^'-Morse, Digitized by Gorse, w oogle Sept. 30, 1878. OF THE CONSTITUTIONAL CONVENTION. 15 MoreUnd, Murphy, Vaaon, Seiaon, Ifeanaber, Koel, O'Donnell, Ohlever, CSullivan, Overton, Porter, Prouty, Pulliam, Beddy, Reed, Beynolda, Bhodea, Binegold, BoU Schell, Schomp, Sfaaller, . Shoemaker, Shurtleff, Smith, of Santa Clara, Smith, of 4th District, Smith, of San Franciaoo, Soule, Stedraan, Steele, Stevenson, Stuart, Sweaiey, Swenson, Swing, Tinnm, Townaend, Tully, IBS KMT. Turner, Tuttle, Vacqueral, VanDyke, VanVoorhies, Walker, of Marin, Walker, of Tuolumne, .Watera, Webster, Weller, Wellin, West, Wickos, White, Wilson, of Tehama, Wil8on,of San Francisco, Winans, Wyatt^Ue. Campbell, Inman, Terry — 3. GoTBRHOB IBWIK. The next business in order will be the reading of the minutes of the meeting on Saturday. The gentleman who kept the minutes will read them. THK SICKITART. Mb-WHITE. Mr.President: I desire to call the attention of the Con- Tention to a matter which several have spoken to me about. It appears to me, sir, that the law under which we are convened here has made one omiasioD. The Legislature undertook to give us a temporary orran- ization, but they have only gone so far a# to say that the Governor shall preside until the permanent President shall have been elected, and they My nothing about the Secretary, except that he shall be present and call the roll of delegates. For the purpose of correcting that omission I more that the Secretary of State De requested to act as temporary Secre- tary of this Convention, and upon his acceptance that he be declared the temporary Secretary of this body until the Convention shall have elected a permanent Secretary. GovKBNOK IHWIN. The Act does not specifically say that he shall continue to act until a permanent Secretary shall have been elected, but it is fairly implied, and is understood. That is the construction that both the Secretary of State and myself have put upon the Act, with reference to his duty, and I suppose he will continue to act. Mb. O'DONNELL. Mr. President: What is the question? Mb. ESTEE. Mr. President: I understand that the first business in order is the election of a President of this Convention, under the statute. The adoption of a resolution for the nomination of officers might be in order if we had any precedent or any authority under any known par- liamentary rules. As it is, I surest that the first business in order is the election of a President of this Convention, l^t us proceed in the usual order, as the statute indicates. Let us proceed to elect a President and then a Secretary of the Convention. Mb. VAN VOORHIES. Mr. President : There are three of the mem- bers who have not as yet been sworn in. I think that should be the first order of business. Mb. McFARLAND. Mr. President: If there be any doubt as to whether the Secretory of State is entitled to act as Secretary until a permanent Secretary has been elected, it would do no harm for this Convention to declare that he shall act until we shall have elected a permanent Secretary, and I don't see how there can be any objection to It. In my opinion, the resolution should pass. Mb. O'DONNELL. Mr. President: As there seems to be a doubt about the matter, let it be put to a vote of the Convention, and that will settle the matter. [Cries of " Question, question."] OTBBB niLBOATBS. Mb. VAN VOORHIES. Mr. President: If I understand it, we cannot act upon that resolution until these other members are sworn in. OovBBXOR IRWIN. It will be proper for them to be sworn in first. Gentlemen of the Convention, there are some two or three members, I anderstand, who were not present on Saturday, and have not yet been sworn in, and this matter will remain in temporary abeyance until these three members shall have been sworn in. The matter will lie on the table temporarily. The members who have not yet been sworn in will now please come forward and take the oath. Mb. BEEBSTECHER. Mr. President: I object to David S. Terry being sworn in, and base my objections upon this GoTBBSOK IRWIN. The gentleman is out of order. Mb. BEERSTECHER. Section seven of article eleven declares GovBBHOK IRWIN. The gentleman will take his seat — he is out ot order. The law makes it my duty to swear in the persons elected to the Convention. Then any objection to the eligibility of members can be raised. The power to determine who are members rests in the Conven- tion, and not in (he Governor, who presides temporarily. Mb. O'DONNELL. Mr. President: I think we have the right to enter our objections ' GovBBKoa IRWIN. The gentleman will please take his seat, be is oat of order. Mb. O'SULLIVAN. Mr. President: I think so also, and I protest •gainst the gentleman taking his seat. GoTBBSOB IRWIK. The gentleman will take his seat; the gentle- man is oat of order. n>. 8. Teny, of San Joaquin, Alexander Campbell, Jr., of Alameda, ■aa T'Bn*^* Iiuiian,of Alameda, were sworn in and subscribed to the oath THl SKOSITART AOAIR. GovKBHOB IRWIN. Gentlemen of the Convention, the Chair will hold that the law providing for the meeting of this Convention has pro- vided for a provisional organization, ana one of these provisions is, according to the construction of the Chair, that the Secretary of State shall act as Secretary of the Convention during the provisional existence of the Convention. That is the ruling of the Chair. If the gentleman who made the motion desires to except to the ruling, the Chair will put the question on appeal. Mr. WHITE. Mr. President: I appeal from the decision of the Chair; not that I desire to make any factious opposition, but merely that the Convention may give an expression of opmion on it. Mr. O'DONNELL. Mr. President: According to the statutes which I have here, " the Secretary of State shall attend the Convention and call the roll of delegates." GovKRNOR IRWIN. Has an appeal been taken from the decision of the Chair? Mr. WHITE. Mr. President: I appeal from the decision of the Chair. Mr. O'SULLIVAN. I second the appeal. GovRRKOR IRWIN. Gentlemen: "rhe ruling of the Chair on this point, to wit, that the Secretary of State is authorised to act without being appointed by the Convention, has been appealed from, and the question now is upon sustaining the decision of the Chair. Mr. ANDREWS. Mr. President: As I understand it, the question now is, shall the decision of the (Thair stand as the decision of the Conven- tion. GovRRNOR IRWIN. Yes, sir. Mr. ANDREWS. Does not the Act require that the vote shall be taken by ayes and noes? Governor IRWIN. Not on a question of that kind. The question was put, and the Convention sustained the ruling of the Chair. SUBORUINATR OPPICRRS. GovRRNOR IRWIN. The Chair will take occasion to announce that it has appointed the following gentlemen to act during the continuance of the provisional organization: Minute Clerk, A. J. Dobbins; Sergeant- at-Arms, J. M. p'arrclly ; Watchman, James Saltry ; Doorkeeper, B. F. Alexander; Porter, Hiram Clock. Their terms of office will expire on the orrauization of the Convention. I have here, also, a communica- tion addressed to the members of the Convention, which I will pass to the Secretary. It will lie on the table until the Convention shall have been organized. Mr. BARBOUR. I desm; to ask about the appointment of these offi- cers. GovKRNoR IRWIN. They will continue to act until the Convention shall have been organized. Mr. BARBOUR. I wish to know if that is the decision of the Chair, so as to take my appeal and prevent GovRRXOR IRWIN. I will slate to the gentleman that this action was taken by the Chair because it was deemed necessary that such offi- cers should be in existence. For instance, it is desirable to have the minutes of the Convention properly kept It was necessary to be done, and the Chair, recognizing the necessity, took the responsibility of appointing these officers. Mr. BARBOUR. I desire to know by what law or authority it is done. GovRRMOR IRWIN. Has the gentleman any motion to make? Mr. BARBOUB. Mr. President : I desire to appeal from the ruling of the Chair. * Mr. TULLY. Mr. President : ceed to ballot for President. Mr. murphy. I second the motion. GuvRRNOR IRWIN. It is moved and seconded that the Convention proceed — Mr. BEEBSTECHER. Mr. President : I rise to a point of order. My point of order is that the election is not to be by ballot at all, as the Act says it must be viva voee. Mr. BARBOUR. Mr. President : I have a resolution which I desire to offer. GoviRNOB IRWIN. The question is on taking a ballot for President of the (Convention, or taking a vote. The motion has been seconded. Gentlemen, are you ready to proceed to vote for President of the Con- vention? Mr. barton. Gentlemen of the Convention : I trust that you will act in this matter in a channel that is proper and respectable, quietly, and not proceed to vote for candidates for President until they have been properly presented to the Convention, thereby giving the members of the Convention an opportunity of knowing who are the candidates. GovKRNOR IRWIN. The question is on proceeding to vote. Are you ready for the question ? The motion was put by the Chair and carried. Mr. BARBOUR. Mr. President: I call for my resolution now. Mr. van dyke. Mr. President : I rise U> a point of order. GovKRNOR IRWIN. The Convention has just decided to vote now for a President of the Convention. That business is now in order. Mr. van dyke. Mr. President: I understand that it is to nomi- nate candidates to be voted for. GovRRNOR IRWIN. The Convention has just decided to vote. Mr. VAN DYKE. Mr. President: As I understand it, the only order of business now is to present names to be voted for. Govrrnor IRWIN. That is not strictly in order ; every member can vote as be chooses. Mr. VAN DYKE. Mr. President: Would it not be a part of that order of business to present names to be voted for, if any gentleman sees proper to present them ? I move that the Convention now pro- Digitized by Google 16 DEBATES AND PROCEEDINGS Monday, I do the same. The gentlemen will take their seats; I desire the GoTiRNOR IRWIN. If the resolution had been put in that form, it would have been proper, but it was not. The resolution is that the Con- vention proceed to vote. * M«. BARBOUB. Mr. President: I call for the reading of the resolu- tion I have sent up to the desk, which is in reference to this very matter of prnposine tlie names of candidates. Governor IEWIN. The gentleman is out of order. [Cries of " Call the roll."] Mr. SARBOUR. Mr. President: I would like to have some gentle- man point out wherein I am out of order. OoTERNOR IRWIN. The Convention has decided to proceed to vote for a President of the Convention, and the gentleman will take bis seat. Mr. BARBOUR. Mr. President: I call for the reading of the reso- lution. Governor IRWIN. The gentleman will please take his seat. Mr. BARBOUR. Mr. President : I wish to appeal from the decision of the chair, upon the ground that I have offered a resolution in refer- ence to this very subject-matter, requiring the candidates to come for- ward and define their position upon the true and only questions before this Convention, and I insist upon it before a single vote is cast. [Calls of order.] I deny your right to silence me, sir. I want to know your authoritv. I am elected here by the sovereign people of the State of California, and you are not. [Applause, loud and uproarious.] Governor IRWIN. The gentleman will come to order. Mr. BARBOUR. Mr. President : I hold my seat on this floor by better authority than you do yours, and I waut to know where your rules of order are. I hold my seat on this floor by virtue of the sovereign will of the people of the State of California, and I know no rule of order. [Applause.] ,1 want to know where your oflicers are to enforce those rules. I hold that you have no rules; there have never been any adopted. Governor IRWIN. The gentleman is out of order. Mr. BARBOUR. I am in order. Governor IRWIN. The gentleman is out of order, and must take his seat. Mr. BEERSTECHER. Mr. President: I second the appeal, and indorse every sentiment the gentleman has uttered here. Mr. O'BULLIVAN. Mr. President : I also hold that he has no right to be silenced. Mr. O'DONNELL. Governor IRWIN. Convention to Mr. BARBOUR. Mr. President: I call for the ayes and noes on the Mr. BEERSTECHER. I also call for the aves and noes. Mr. O'SULLIVAN. I second the call for tne ayes and noes. Governor IRWIN. The ayes and noes have been called for by the gentleman from San Francisco, Mr. O'Sullivan, the gentleman from San Francisco, Mr. Beerstecher, and the gentleman from San Francisco, Mr. Barbour. I wish to make a remark to the Convention. It is necessary to preserve order ita order to proceed with business, and there must tie no applause. It is not the proper thing to either express approbation or disapproval by persons in the lobby, nor is it, strictly speaking, by mem- bers of the Convention. Gentlemen who are members of the Conven- tion shall have their rights respected. I desire now, before this vote is taken, to state the position of the question. The gentleman from Santa Clara, Mr. Tully, moved that the Convention now proceed to vote for a President of the Convention. That question was put. The gentleman from San Francisco, Mr. Barbour, sent up some resolutions to be read. The Chair ruled that the resolutions at this time were out of order, and from that ruling the gentleman from San Francisco, Mr. Barbour, takes an appeal. The question now is : Shall the decision of the Chair stand as the decision of the Convention ? Mr. WATERS. Mr. President: I ask that the resolutions be read for information. I would like to know what we are voting on. Mr. O'DONNELL. Mr. President: I second that motion. Governor IRWIN. The question is properly upon Mr. INMAN. Mr. President: The gentleman is out of order. The question is now whether the decision of the Chair shall stand as the decision of the Convention. Governor IRWIN. The decision of the Chair is based on this: After the Convention had decided to proceed to vote these resolutions are introduced, and the decision is that they could not be read at that stage of the proceedings, after the Convention had determined to proceed with the ballot. After getting through with the ballot if the gentleman chooses to call up the resolutions they will then be in order. [Cries of "C&ll the roll."] The Secretary proceeded to call the roll, with the following result Andrews, Ayers, Barnes, Belcher, Berry, Biggs, Blockmer, Boggs, Boucher, Brown, Burt, Campbell, Caples, Casserly, Chapman, Charles, Cowden, Hall, Crouch, Harvey, Davis, Heiskell, Dean, Huestis, Dudley, of Solano, Hilbom, Dunlap, Hitchcock Eagon, Hoge, Edgerton, Holmes, Estee, Howard, Estey, Inman, Evey, Johnson, Fawcett, Jones, Filcher, Kelley, G&rvey, Kej'es, Graves, Laine, Gregg, Lampoon, Larue, Porter, Stuart, Lewis, Prouty, Swing, Mansfield, PuUiam, Terry, Martin. Reddy, Tinnin, McCallum, Reed, Townsend, McComas, Reynolds, Tully, McConnell, Rhodes, Turner, McFarland, Rolfe, Van Dyke. McNutt, Schell, Van Voorhies, Miller, Schomp, Walker, of Tuolumne, Mills, Shafter, Waters. Morelaud, Shoemaker, Webster, Murphy, ShurtleflT, Weller. Naaon, Smith, of Santa Clara, West, Noel, Smith, of 4th District, Wilson, of Tehama, Ohleyer, Overton^ Steele, Wilson,of San Francisco, Stevenson, Winaus— 99. NOES. Barbour, Herold, O'Donnell, Barton, Herriugton, O'Sullivan, Beerstecher, Hugbey, Ringold, Bell, Hunter, Smith, of San Francisco, Condon, Joyce, Soule, Cross, Kenny, Stedman. Dowling, Kleine, Sweasey, Doyle, Lark in, Swenson, Farrell. Lavigne, Tuttle, Finney, Lindow, Vacquerel, Walker, of Marin, Freeman, McCoy. Freud, Moifat^ Moree,^ Wellin, Gorman, Wickes, Grace, Nelson. White, Harrison, Neunaber, Wyatt— 45. Governor IRWIN. Ayes, 99 : noes, 45. The decision of the Chair stands as the decision of the Convention. ORQANIZATION. Mr. LAINE. Mr. President: I desire to ask the Chair whether it is now in order to make any nominations or whether there is anything in order, except to proceed to vote? Governor IRWIN. Nothing is in order but to proceed to vote. Mr. LAINE. Then. Mr. President, it seems to me that we should proceed decently and in order. We are occupjring no ordinary position here. It is not an ordinary Convention, but it is a Convention called by the sovereign will of the people of the State of California, and the eyes of the whole State are upon us here. We should allow no haste or anything to control us in this matter. We should remember that upon the flgor of this Convention we are all children of the State of California — called together by her behest — not to represent any branch of her family or any particular interest or ism. But the sovereign State has determined in her wisdom to reconstruct, so to speak, the political fabric in which we have been dwelling for over a quarter of a century. And in order that this matter may proceed decently, in order, it would be highly proper that we have regular nominations in this Convention, that all may be advised how to vote and for whom they desire to vot«. Many^f us are strangers to each other; all from distant parts of a State that has a very large territory. In order that this matter may get properly before the House, in my judgment it would be proper that we have nominations. But we seem to have arrived at a position where we can only proceed to a vote. I think that perhaps the House did not vote understandingly upon this question. I did not vote at all, because when the question was voted on I believed that it would place us in some confusion, and I did not desire to spring up and make any noise in the Convention, or to say anything. I am satisfied that the House did not vote understandingly, and in order that we may do so, I now move to reconsider the vote by which we determined to proceed to an immedi- ate vote. Governor IRWIN. I understood the gentleman to say that he did not vote. If any gentleman who voted in the affirmative on that proposition will move to reconsider it will be in order. Mr. LAINE. I believe the rule is different in the caae of a viva voce vote. Governor IRWIN. That is so. Mr. McCALLIUM. I second the motion to reconsider. Mr. ESTEE. It strikes me that no member will object to knowing who the nominees before this Convention are to be. Governor IRWIN. The question is on the-motion to reconsider the vote by which the Convention decided to proceed to a vote. Mr. murphy. I move that the order of business be temporarily suspended in order to give gentlemen a chance to put candidates in nomination. Governor IRWIN. If there be no objection to that suggestion it will be done. If there is any objection, however, we can only proceed to a vote. Mr. BEERSTECHER. I object to it. I desire to have the motion reconsidered. Mr. west. Mr. President: The law clearly defines the whole pro- cedure in the organization of this House, and I believe, sir, in the interest of order, it is best to follow the letter of the law as nearly as possible. It provides that we shall vote viva voce. The provision re(juiring the vote to be taken viva voce supposes that each member in this Convention shall nominate his own candidate. A nomination would be entirely superfluous. It is not established by anv precedent of parliamentary usage whatever, and would only occupy time. Each gentleman of the Convention is sovereign in regard to the individual Digitized by Coogle Sept. 30, 1878. OP THE CONSTITUTIONAL CONVENTION. 17 for whom he msv vote and to make his own choice. I hope the motion to reconsider will not prevail. Me. HILBOBN. Mr. President: 1 hope we shall not reconsider this rote. It is true, as has been stated by the eentleman from Banta CUra, Mr. Iiaine, that we come here aa the children of the State to revise our Constitution. Let us not then adopt any of the ways of the politician; let us go at it and take a vote without any nomi- nations at all. Let the vote of each member be his individual pref- erence for President. I shall vote for some gentleman as presiding officer, not because he is the nominee of any particalar party or clique, but I sh&ll vote for him because I believe he is the best man to preside over us in thie Convention. I believe that this is not the place to make nominatioDS, and that we should go on and vote, and vote for the best man. Ma. 6EERSTECHER. Mr. President: My position is that the vote •ught to be reconsidered. And when the gentleman who has just pre- ceded me stated that he objected to the reconsideration of this vote, and that we ought not to adopt the ways of the politician — which are the exact words that he used— I clearly and emphatically say that that is justtba reason why I desire to have this vote reconsidered. If we go into nominations we know who the men are, and we can vote intelli- gently. If we vote iu the dark, we vote a cut and dried ticket, made and manufactured by the political tricksters and wire-pullers who have mis in this Convention. And therefore, Mr. President Ma. ESTEE. Mr. Preaident: I beg to call the gentleman to order. My point of order is, that he says Uiat political tricksters and wire- pulleis have seals in this Convention. No gentleman in any delibcra- lire body has a right to use any such language. Mb. UILBORN. Mr. President: I desire also to enter my protest. Everything that haa been done here, except by the particular |>arty with which the gentleman is associated, nas oeen done openly and aboveboard. GoTiKSOB IRWIN. The gentleman will take his seat. The gentle- man from San Francisco, Mr. Beerstecher, will keep himself within the bounds of t»rliamentary usage so far as language is omcenied. Ma. BEERSTECHER. Mr. President : I did not intend U> bring that remark of mine to bear upon any individual at all. I martance. The President of this Convention holds an office of great importance, in the appointment of committees, and we should know the status of those who aspire to that position. The eyes of the people of California are upon us, and if there is any attempt to gag the minority of this Convention, the people will know it. • Mb. O'DONNBLL. Mr. President and fellow delegates: This Con- vention constitutes an important event in the history of the world. The circumstances which bronght it into existence are well known to the world. The people were suffering great social and political wrongs. There was sloth in the mart and schism in the temple; corruption in office and out of it. Murmurs of discontent arose among the (>cople. Ib Pennsylvania and other Eastern States these murmurs ripenef the imperial people of San Francisco. I demand that every man in 'Barbour, thi) Genreation get up on this floor and state his views on all questions 'Barry, that How agitate the public mind. By so doing, Mr. President, I will ~ blow br wDom I am voting. But if you don't grant us this privilej^, if this GiHirention tries to curb our rights here, Mr. President, we will oiprtatiie Constitution when it goes before the people for ratification. Ia.IAIKE. Mr. President: I assume, in the very beginning, that >tt gMlhiiuen who occupy seats upon this floor are the representatives of the people of the State of California, not of any ism, not of any party, not of any creed, but represent the people of the State in their organized capacity, embracing every man, woman and child, and interest, within the State. 1 should not feel it to be entirely manly — and it would be a species of egotism on my part — to undertake to drill and instruct them here. They are answerable to the whole people of this State for what- ever course of conduct they may take while in this august body. And I assume further, that all the men who are here, whether they be young men in the vigor of life, with all those promptings of ambition that are just enough to make them firmly believe that their conceptions are the brightest, the purest, and the noblest of all, for that is the fault of young men, and I can hardly say that it is a fault, because, without the spring of ambition and some inspiration even of egotism they will not accom- plish much — but, while tolerating that, I have been taught to reverence the wisdom that age brin^; I have' learned, from the very earliest [leriods of my life, that it is only age and experience that brings culti- vated wisdom. It was said, in olden times, of that great commonwealth: '• Young men for war, and old men for council." We should have a President of this Convention, allow me to say, in my judgment, whose age and experience we should reverence, and whose learning and ability sjiould challenge our admiration, because I have seen, in the short exhi- bition that we have had here, that there will he storms and whirlwinds in this Convention; that there are many here who imagine that they are crusaders, with lance in rest, against the crescent, or something else. I have no doubt that in these feeling they are as honest as I am. I do not desire to impugn anybody's motives. It is not the language of par- liamentary debate or discussion, nor is it the feeling of a heart prompted only for the public goooting lines, directly or indirectly; in preventing the watoring of their stock; in requiring fV«iuent sworn public reports of the proceedings of their Directors or Tnistees and of their business; in requiring them lo allow the agents of the State appointed for that pnrpoee, and the stockholders, to inspect their Ixjoks; in requiring all intending coriH>rutlons to file an executed acceptance of such pro- isioiiB of a (Jonstltutiuii prior to granting them any charter, and in debHrring all existing corponttlons from all future privileges or legislation unless they also flle such aoceptanoe; and whether the candidate is in favor of tho exercise of such or similar p9wer7 Second — Whether he is o)>poeed to land monopoly, and in fiivor of using the iKiwer of the State to wipe it out? Third— Whether be is In favor of sab- jocUng all incorporated companies furnishing water or gas to incorporated cities or t«>wns, to the control of sucb cities or towns, in respect to the rates they shall tie allowed to charge for these necessaries of life? Fourth — Whether he is in liivor of prohibitingall lotteries, and declaring stock dealing on *' margins," " puts and calls," and similar devioee, lotteries ? Fifth — Whether he Is in favor of abating the Chinese nuisance, and using the whole power of the State to do so? Sixth — Whether be is ill fikvor of taxing mortgages and reducing the rate of interest? The Chair ruled that the resolutions were not in order for action, but that any gentleman could express his views if he desired. No one appearing desirous of speaking, the roll was called with the following result : riRST BALI,OT — FOE TINNIK. Andrews, Berry, Burt, Filcher, Hale, Johnson, Avers, Blackmer, Brown, Glascock, Barton, Beerstecher, Bell, Condon, Cross, Davis, KeUey, Nason, Larkin, Ohleyer, Smith, of Santa Clara, ^ Martin, McComas, Townsend, MeConnell, Webster— 17. Moreland, FOR HOWARD Heiskell, Tinnin, Mansfield, Walker, of Tuolumne, Rolfe, Waters— 11. Swing, FOB^LARKIK. Dean, Grace, Dowling, Harrison, Doyle, Herold, •Evey, Herrington, Fanrell, Hughey, ^ Finney, Hunter, Freud, Joyce, Gorman, Kenny, Digitized by vjOO^ 20 DEBATES AND PROCEEDINGS Monday, Kleine, Lavigne, Lindow, McCoy, Moffat, Morse, Nelson, Neunaber, O'Donnell, O'Sulliran, TNittle, Reynolds, Vacquerel, Ringgold, Walker, of Marin, Smith, of San Francisco, Wellin, Soule, West, Bt^man, . Wickes, Sweasey, ^ White, Swenson, Wyatt— 49. Barnes, Belcher, Bigge, Boggs, Boucher, Campbell, Caples, Casserly, Chapman, Charles, ^Crouch, Dudley, of Solano, Dudley, of San Joaquin, Dunlap, Eagon, Edgerton, Estee, Estey, Fawcett, Freeman, Garvey, Graves, Gregg. Hager, Hall, Harvey, Heustis, Hilbom, Hitchcock, Holmes, Inman, Jones, Laine, Larapson, Lame, Lewis, McCallum, McFarland, Miller, Mills, Murphy, Noel, Overton, Porter, Prouty, Pulliam, Reddy, Reed, Rhodes, Schell, Schomp, Shafler, Shoemaker, ■^Shurtleft'. Smith, of 4th Dist. Steele, Stevenson, Sluart, Terry, Tully, Turner, Van Dyke, ■^ Van Voorhies, Weller, Wilson, of Tehama, -Wilson, of 1st Diet Winans— «7. FOB RXKD. Cowden, Keyes, McNutt — 3. Whole number of votes cast 147 • Necessary to a choice 74 Mr. Hoge received 67 Mr. Larkin received 49 * Mr. Howard received II Mr. Tinnin received 17 Mr. Reed received , . 3 SECOND BILLOT. No choice being had, the roll was again called with the following result: Barnes, Belcher, Biggs, Boggs, Boucher, Campbell, Caples, Caaserly, Chapman, Charles, Crouch, Dudley, of Solano, Dudley , of San Joaquin Dunlap, Eagon, Edgerton, E^, Estey, Fawcett, Freeman, Garvey, Graves, Gregg, Hager, Hall, Harvey, Heustis, Hilbom, Hitchcock, Holmes, Inman, Jones, Laine, Lampeon, Lame, Lewis, , McCallum, McFarland, MoNutt, Miller, Mills, Murphy, Noel, Ohieyer, Overton, Porter, Prouty, Pulliam, rOB LAKIIN. Barbour, Barry, Barton, Beerstecher, BeU, Condon, Cross, Davis, Dean, Dowling, Doyle, Evey, Fanell, Finney, Freud, Ooiman, Qnee, Harrison, Hemld, Herrington, Hughey, Hunter, Joyce, Kenny, Kleine, Lavigne, Lindow, McCoy, Moffat, Morse, Nelson, Neunaber, O'Donnell, O'SuUivan, Reddy, Reed, Rhodes, Schell, Schomp, Shatter, Shoemaker, Shurtleff, Smith, of 4th Dist. Steele, Stevenson, Stuart, Terry, Tully, Turner, Van Dyke, Van Voorhies, Walker, of Tuolumne, Weller, Wilson, of Tehama, Wilson, of Ist Dist. Winans— 70. Reynolds, Ringgold, Smith, of San Francisco, Soule, Stedman, Sweasey, Swenson, Tuttle, Vacquerel, Walker, of Marin, Wellin, West, Wickes, White, Wyatt— 49. 1'OR TIKNIIC. Andrews, Johnson, Moreland, Berry, Kellcy, Nason, Burt, « Larkin, Smith, of Santa Clara, Filcher, Martin, Townsend, Glascock, MWomas, Webster — 17. Hale, Mc<'i>nnell, POK HOWAKD. Avers, HciskcU, Swinp, Biaekmer, Mansfield, Tinnm, Brown, Ringgold, Waters — 9. FOR RRRD. Cowden, Keyes— 2. Whole number of votes ca*t 147 Necessary to a choice 74 Mr. lloeereceived 70 Mr. Larkin received 49 Mr. Tinnin received 17 Mr. Howard received 9 Mr. Reed received i At one o'clock and thirty-five minutes p. u. Mr. Waters moved to take a recess for one hour. Lost. THIRD BALLOT. No choice being had on the second ballot for President, the roll was again called, with the following result : Barnes, Belcher, Biggs, Boggs, Boucher, Campbell, Caples, Casserly, Chapman, Charles, Crouch, Dudley, of Solano, Dudley, of San Joaq' Dunlap, Eagon, Edgerto'n, Estee, Estey, Fawcett, Freeman, Garvey, Graves, Gregg, Hager, Avers, Biaekmer, Brown, Barbour, Barry, Barton, Beerstecher, Bell, <>>ndon. Cross, Davis, Dean, Oowling, Doyle, Evey, Farrell, Finney, Freud, Gorman, Grace, Andrews, Berry, Burt, Filcher, Glascock, Hale, Cowden, FOR HOOK. Hall, Harvey, Heustis, Hilbom, Hitchcock, Holmes, Inman, Jones, Laine, Lamjwon, Lewis, Lame, n, Martin, Mc*&ig, Howard, Nason, Nelson, Soule, Walker, of Marin, Neunaber, Stedman, Waters, O'Donnell, Sweasey, Webster, O'SuUivan, Swenson, Wellin, Reynolds, Swing, West, Ringgold, Rolie, Tinnin, Wickes, Tuttle, White, Smith, of San Francisco, Vacquerel, Wyatt— «9. K0C8. Barnes, Harvey, Prouty, Belcher, Heustis, Pulllam, Berry, Hilbom, Reddy, Biggs, Hitchcock, Reed, Boggs. Hoee. Holmes, Rhodes, Boucher, Schell, Campbell, Hunter, Schomp, Caples, Inman, ShaOer, Caaserly, Jones, Shoemaker, Chapman, Joyce, Shurtleff, Charles, Ke^es, Lame, Smith, of Santa Clara, C-owden, Smith, of 4tb Dist. Crouch, Lampoon, Steele, Dudley, of San Joaquin, Larkin, Stevenson, Dudley, of Solano, Larue, Stuart, Dunlap, Lewis, Terry, Eagon, Martin, Townsend, Edgerton, McCallum, Tully, Estee, McFarlaud, Turner, Estey, McNutt, Van Dyke, Fawcett, Miller, Van Voorhiee, Freeman, Mills, Walker, of Tuolumne, Garvey, Murphy, Wellin, Graves, Noel, Wilson, of Tehama, Gregg, Ohleyer, Wilson, of 1st Dist. Hager, Overton, Winans— 80. Porter, Mr. BARBOUR. I withdraw, by request, the name of Henry Larkin, and vote for W. J. Tinnin. FIFTH BALLOT. The roll was again called upon the nominations for President with the following result: FOB BOOK. Barnes, Hall, Pulliam, Belcher, Harvey, Reddy, Biggs, Heustis, Reed, Boggs, Hilbom, Rhodes, Boucher, Hitchcock, Schell, Campbell, Holmes, Schomp, Caples, Inman, Shafter, Caiserly, Jones, Shoemaker, (,'hapman. Ke^es, Shurtleff, Charles, Lame, Smith, of Santa Clara, Cowden, Lampson, Smith, of 4th District, Crouch, Larue, Steele, Dudley, of San Joaquii 1, Iiewls, Stevenson, Dudley, of Solano, McCallum, Stuart, Dunlap, Terry, Eagon, McFarland, Tully, Edgerton, McNutt, Turner, Estee, Miller, Van Dyke, Estey, Mills, Van Voorhies, Fawcett, Murphy, Noef Walker, of Tuolumne, Freeman, Weller, Garvey, Ohleyer, Wilson, of Tehama, Graves, Overton, Wilson, of Ist District, Gregg, Porter, Winans— 74. Hager, Prouty, FOB TINNIN. Andrews, Hale, Nelson, Ayers, Harrison, Neunaber, Barbour, Helskell, O'Donnell, Barry, Herold, O'SuUivan, Barton, Herrington, Howard, Reynolds, Beerstccher, Ringgold, Rolfe, Bell, Hughey, Bernr, Blackmer, Hunter, Smith, of San Francisco, Johnson, Soule, Brown, Joyce, Stedman, Burt, Kelley, Sweasey, Condon, Kenny, Swenson, Cross, Kleine, Swing, Davis, Larkin, Townsend, Dean, Lavigne, Tuttle, Dowling, Lindow, Vacquerel, Walker, of Marin, Doyle, Mansfield, Evey, Martin, Waters, Farrell, McConnell, Webster, Filcher, McCoy, Wellin, Finney, Moffat, West, Freud, Moreland, Wickes, Glascock, Morse, White. Gorman, Nason, Wyatt— 73. Grace, Digit zedbyGoOQl 22 DEBATES AND PROCEEDINGS Tuesday, Whole number of votes cast 147 Necessary to a choice .. 74 Mr. Hoge received 74 Mr. Tiunin received 73 Mr. Hoge having received a majority of all the votes cast, was declared duly elected President of the O>nvention. Before the announcement of the aliove vote Ma. BARBOUR said: Mr. President: I challenge the vote of Eugene Fawcett, on the ground that he is presumed not to be here, as he is District Judge of one of the Judicial Districts of this State. Mr. O'SULLIVAN. I also challenge Judge Fawcett's vote. Mr. BEER8TKCHER. I challenge the vot« of Judge Terry. The Chair then announced the result of the vote, which was received with applause. Mr. EDGERTON, I move that a committee of three be appointed by the Chair to escort Colonel Uoge to the chair. Carried. The Chair appointed Messrs. Edgerton, Tinniu, and Larkin. Colonel Hoge was conducted to the Speaker's desk between Messrs. Tinnin and I^kin. GovKRNOR IRWIN. Gentlemen of the Convention: Allow me to in*r.»duce t« you Colonel Hoge, who has just been elected President of thiii Convention. [Applause.] THR PRK.SIDRNT'S Rr'uaRKS. CoLONRt HOGE. Gentlemen of the Convention : It would be affecta- tion in me not to admit that I feel very highly honored by the distinc- tion which you have conferred upon me. I return those gentlemen who liavc stood by me during the whole of this contest, my thanks. I certainly have no unkind feeling as against any gentleman who voted against me — not the slightest,- and you will all find that I shall do everybody justice in the performance of the duties of this office which you have conferred upon me. I shall know no section, no party, no creed. I shall endeavor to perform the duties of this office with entire impartiality — with complete justice. I shall recognize the interests of every section upon this floor. This is not an ordinary convention. We have been sent here from every section of the State for the very great purpose of framing a new system of government for this glorious young State of ours — a Cnd hold its meetings at any place in said City of Sacramento other than the said Assembly Chamber, and all the committee rooms of the State Capitol building shall be under the control of said Convention. The President of the Convention may appoint not exceeding one Doorkeeper ud four Pages." And then this clause: "The Convention may select Phonographic Reporters and fix the amount of their compensation ; also, » Sergeant-at-Arms and an Assistant." The interpretation, sir, that I think is the correct one to be put upon that statute is to select our Presi- •lent and Secretary as preliminary to any other business, that the acta of the Convention may be recorded upon the Journal. After we have oiganized by the selection of a President and Secretary, then we proceed to the election of other officers. I move to amend this resolution to con- fine it for the present to the selection of a Secretary. Ma. CROSS. Mr. President : Judge Hoger has read the statute of the I^gidatore of the State passed in reference to this Constitutional Con- veatian. The statute is good until the Convention is organized. When this Convention is organized by the election of a Chairman and Secretary, the power of that legislative body to say what this Convention should do is It an end, and if they did not understand it when they made the law, Ikt)' durald understand it when this Convention acts : that when this CowvBtian is organized it is not to be controlled by any Act of the Leg- islature as to what minor officers it shall appoint, or what shall he the order in which it shall appoint them. Judge McParland makes a proposition in which the order proposed is different from that suggested by the law. I take the ground that this Convention is, in no manner, bound by the provisions of that Act. [Cries of " Question," " Question."] Thk PRESIDENT. The first question is on the amendment of the gentleman from Sacramento. A VOICE. What is that? Thk PRESIDENT. To strike out "Sergeant-at-Arms" from the seventh provision and insert it so as to make it the third. The amendment was lost. Thk PRESIDENT. The next question is on the motion by the gen- tleman from San Francisco, Judge Hager, to strike out all after the word "Secretary." Mb. HAUER. Mr. President, I move, as a substitute, that we pro- ceed now, first in the order of business, to the election of a Secretary, in order to perfect our organization. The PRESIDENT. The question is on the adoption of the substitute offered by the gentleman from San Francisco. The substitute was adopted. Tiff PRESIDENT. Under this resolution we now proceed to the election of a Secretary for this Convention. Are there any nominationsT NOMINATIONS FOR 8ICCBETABT. Mb. biggs. Mr. President : 1 place before this Convention the name of a gentleman who has not a superior on this coast as Secretary. We want a good Secretary. The gentleman I have the honor to name is known to every member of this Convention, Marcus D. Boruck, of San Francisco. Mb. EAGON. Mr. President: I rise to second the nomination of Marcus D. Boruck. I do not wish to be understood as doing so on any personal grounds, or friendship, or on account of any politioU or other sentiments which that gentleman has. I do so, sir, merely on the ground of his peculiar fitness for the distinguished position to which he has been nominated. I care not what his sentiments may be uiion politics; I care not what his opinions nuy be as to the great questions coming before this Convention ; I care not whether he is Democrat or Republican, Work- ingman or Non-Partisan; I care not whether he quito coincides with me on the great question of taxation ; I care not whether he agrees with Kearney or not on the great question of Chinese immigration and Chi- nese cheap labor. These things make no diiTerence to me. I see around me a number of gentlemen who have occupied positions in the Legisla- ture of this Stato time and time again, and, like myself, they all readily see that a great deal depends upon the efficiency and the ability of the Secretary. In fact, sir, it will oe almost impossible for a body of this kind to get along without one who thoroughly understands the bilsiuess, whose voice can fill this very poor chamber for persons to hear in, one who knows the duties of the position, and if we have such a man for the position the duties of the members will be greatly relieved and the interest of the Stato will be looked to more than if we had a man in that position who did not understand it. I do not wish to speak, sir, in a deroantory manner of any gentleman who has been nominated before this Convention here for that position, because I believe there are many men who can fill it ably ; but I am satisfied that none have been tried so thoroughly as Mr. Boruck. His voice is such that the delegate in the most remote seat from the Secretary's desk can hear cverj'thing that is read from the desk; and members will take notice that is a very impor- tant thiuKi in order that they may properly discharge their duties, and vote intelligently upon questions coming up in this body. This seems to me a good reason why we should vote for him. In regard to the gentle- man's views, as I have already taken occasion to state, I care not what his political convictions may be, because I do not intend that any gen- tleman at that desk, or on this floor, shall control my action on anything coming before this Convention; and I would be grieved to think that there is a single gentleman on this floor who would be so controlled. All we have to look to is, will he efficiently and faithfully discharge the duties at the desk? and if we do that, my impression is he will Be the unanimous choice of the Convention. Me. SHOEMAKER. Mr. President: I place in nomination for the office of Chief Secretary, A. M. S. Carpenter, who was Reading Clerk in the Assembly during the last Legislature. He is the peer of^any man in this State as a Secretary. Mb. TINNIN. Mr. President: It is essentially necessary that in all deliberative bodies their proceedings should be kept with fidelity and ability. It is a matter that every member of this body is interested in ; it is a matter in which the people of the whole State have an interest. They desire to have a gentleman placed in that position who will per- form these duties faithfully, and to the satisfaction of the people of the entire Stato, whom they serve. I am very well aware, Mr. President, that it is a most important position, and requires a peculiar fitness to discharge the duties of the office; and, Mr. President, while I do not desire to detract in the least from the honor, integrity, or ability of any gentlemen named as candidates for that office, I do not believe, sir, that an All-wise Providence has been so illiberal in His dispensations as to confine these qualities to only a few persons. I believe, sir, that they have been distributed around. I believe that the gentleman whom I have the honor of nominating is fully competent, and that he can dis- charge the duties with abilitv; and I believe that he will do it in the interest of this body, that Le will do it to your entire satisfaction, advancing the interests and convenience of the members of this body. I nominate for the position of Chief Secretary, W. S. Redding, of San Francisco. Mr. LARKIN. I rise to place in nomination another gentleman. Agreeiqg with the gentleman from Trinity, that there is more than one man in this State capable of discharging the duties satisfactorily and intelligently at that desk, I desire to place a man th»e-^ho has had Digitized by VjOOQ IC 24 DEBATES AND PROCEEDINGS Tuesday, experience in legislative departments, whose qualifications no man can doubt. While I beliere that candidates should have all these qualiii- cations, it is not so much what kind of a voice he has ; but what we want to know is, that the man will not be governed by any private intereealcer, and I know that he has a clear and distinct voice, and I am informed by those who have heard him (hat he is an able reader, which is a very important thing in a Secretary. That, Mr. President, is all that I deem it proper to say at this time. I rose not for the purpose of indulging in any ful- some eulogy of the candidate, but simply to say that he is able, anable, and honest. Me. BARBOUR. Mr. President: I second the nomination of Mr. Clark. He has never solicited the appointment; he is not here now log- rolling and wirepulling for the election. For that reason I support him. Nominations closed. FIRST BALLOT. The roll was then call on the nomination for Chief Secretary, with the following result : FOR BORUCK. Barnes, Hale, Reddy, Belcher, Hall, Reed, Biggs, Harvey, Rhodes, Boucher, Huestis, Rolfe, Campbell, Hilbom, Schell, Caples, Hitchcock, S<;homp, Caaaerly, Hoge, Shafler. Chapman, Johnson. Shurtloff, Charles, Jones, Smith, of 4th District, Cowden, Keyes, Steele, Crouch, Lampson, Stevenson, Dudley, of Solano, Lewis, Stuart, DudIey,of San Joaquin, Martin, Terry, Duulap, McOomas, Townsend, Eagon, McFarUnd, Tully, Edgerton, McNuU, Turner, Estee, Miller, Van Dyke, Estey, Mills, Van Voorhies, Fawcett, Moreland, Walker, of Tuolumne, Freeman, Murphy, Weller, Garvey, Overton, Wilson, of Tehama, Graves, Porter, Wilson, of 1st District, Gregg. Pulliam, POR CARPRNTRR. Winans— «9. Blackmer, Kelley, Shoemaker — 4. Heiskell, FOB RIDDIKO. Andrews, Hager, Prouty, Ayers, Mansfield, Swing, Berry, McConnell, Tinnin, Boggs, . Noel, Waters— 13. Glascock, FOR CLARK. Barbour, Freud, McCoy, Barry, Gorman, Moffat, Barton, Grace, Morse, Beerstecher, Harrison, Nelson, Bell. Herald, Neunaber, Condon, Herrington, O'Donnell, Cross, Hughey, O'Sullivan, Davis, Hunter, Reynolds, Dean, Joyce, Ringgold, Dowling, Kenny, Smith, of San Francisco, Doyle, Kleine, Soule, Evey, Larkin, Stedman, Farrell, Lavigne, Sweasey, Finney, Lindow, Swenson, ' Tuttle, Vacquerel, Walker, of Marin, Wellin, West. Wickes, FOB JOBKSOM. White, Wyattr-50. Burt. Filcher, Howard, Inman, Laine, Larue, McMcCallum, Nason, FOB THORVTOir. Ohiever, Smith, of Santa Clara, Webster— 11. Brown, Holmes— 2. Whole number of votes cast ..-14» Necessary to a choice 75 Mr. Bopuck received 69 Mr. Carpenter received 4 Mr. Reading received 13 Mr. Clark received . 50 Mr. Johnson received 11 Mr. Thornton received 2 No choice. Mb. BARBOUR. Before a vote is taken I would ask that pereons not members of this Convention repair without the bar. I think it is a shame that a candidate uhould be on the floor. * Tint PRESIDENT. Gentlemen not members of the Convention will please retire bevond the rail. Mr. R1NG Ringzold, Beerstecher, Howard, • Smith, of Santa Clara, Bell, Hughey, Smith, of San Francisco, Berry, Hunter, Soule, Blackmer, Inman, Stedman, Brown, Joyce, Sweasey, Bart, Kelley, Swenson, Condon, Kenny, Swin^, Cross, Eleine, Tinnm, Davis, Laine, Tuttle, Dean, Larkin, Vacquerel, Dowling, Larue, Van Dyke, Doyle, Lavigne, Van Voorhies, Evey, Liudow, Walker, of Marin, Fatrell, Mansfield, Waters, Fawcett, McCallum, Webster, Filcher, McConnell, Wellin, Finney, , McCoy, West, Freud, Mo&t, ■ Wickes, Olasoock, Kason, White, Oorman, Kelson, Wyatt — 77. ♦ Qrace, Neunaber, Whole number of votes cast 148 Necessary to a choice 76 Mr. Boruck received 71 Mr. Johnson received 77 Thb PRESIDENT. Mr. Johnson having received the majority of all the votes cast, I pronounce him the Becretuy of this Convention. [Ap- plause.] At twelve o'clock and fifty-five minutes p. ii., on motion of Mr. Smith, of Santa Clara, the Convention adjourned to three o'clock this afternoon. AFTERNOON SESSION. The Convention reassembled at three o'clock r. u., President Hooe in the Chair. Roll called and one hundred and forty-two members present. J. A. JOHNSON, Secretary elect of the Convention, came forward to the President's desk and took the oath of office, the same being admin- istered by President Hook. rCBTHBB OFFICBBS. Mb. WIIjSON, of San Francisco. Mr. President: I have a resolu- tion which I desire to offer. , The PRESIDENT. The gentleman will send up his resolution. The Secretary read the resolution, as follows: SfolMd, That tbo PrraldeDt ainoint a cominittw of wven, to »i>ort th« deiig- Dstlon and namber of oflBcen other than President, 8ecretar7, and SergeantH^t* Amu, as, in their opinion, are neeesaanr for tlie transaction of the buslnefla of this Oonvention, and the compeniatiott to be paid to each when not fixed by law, Mr. WILSON. Mr. President: I offer that resolution because the law authorizes this Convention to appoint such suitable officers as it may deem necessary for the transaction of its business, and I understand from gentlemen of greater legislative experience than I have, that we need certain specific officers ; and, to have it clearly before the Convention, I think it would be better to have a committee to report what officers would be necessary, and their compensation, where that is not fixed bv law. For instance, I understand that we shall need a Journal Clerk. Some other gentleman thinks we shall need an assistant or assistants; that we shall have a number of door- keepers, and gentlemen differ as to how many. Some tbink that we should have two Phonographic Reporters; others think that one will be enough. The resolution I have offered is simply to bring the matter intelligibly before the Convention, and I move its adoption. Mb. BEERSTECHER. Mr. President: I second the resolution of Mr. Wilson. I believe, sir, that such a committee ought to be appointed. Of course, the action of the committee will not be binding upon the House unless adopted. I second the resolution. Mb. BARBOUR. Mr. President : I move to amend the resolution by inserting at the end thereof the words "except a Phonographic Re- porter." I do so, because I believe that the committee who has in charge that matter ought to^ be experts. They should take the matter into consideration, and decide whether the work shoul^ie done by contract or a reporter elected. Mb. O'SULLIVAN. Mr. President: I second the amendment Mb. WILSON. Mr. President : Under the resolution which I offer, th6 committee can only recommend how many would be proper. This committee is only to recommend what officers, in their opinion, are necessary for the proper working of the Convention, and their com- pensation. Mb. FILCHER. Mr. President : I offer as a substitute for the whole matter the following resolution : BftolMd^ That thie Conrentlon now proceed to the election, firet, of a Phono- graphic Beporter ; aeoond, a SergeantHit. Anne ; third, an AMlstant Sergeant-at. Arms ; fonru. Minute Clen. Mb. FILCHER. Mr. President: While I agree with the sentiments of the original resolution, as offered by the gentleman from San Fran- cisco, I take it for granted that the officers named in the substitute are positively essential to the organization. While the officers I have mentioned are necessary, it is more than likely that if we go on blindly, and elect all the officers, we will elect officers which are not essential. I know there are candidates here for most of the offices of which it is usual to fill in legislative bodies, and having their friends they will be placed in nomination, and the Convention will likely proceed to elect them without stopping to consider whether we really need them or not. My idea is — or I take it for granted — that we need the officers I have mentioned, and I am in favor of proceeding at once to the election of these officers, and then provide for this committee asked for in the original resolution. In other words, I would go as far as the election of these officers that we know that we need, and then have this committee appointed to see what further officers we need. Mb. JOHNSON. Mr. President: I understand that the resolution was this morning that we proceed to the election of Secretaries. That resolution bas not been reconsidered. Thx PRESIDENT. That resolution has been carried out and the Secretary elected. Me. McFARLAND. Mr. President: I call your attention to the fact that the resolution specifies Secretaries in the Journal. The word used was Secretaries. Mr. WILSON, of First District In one portion of the law it sayt Secretaries, and in another place it says Secretary. I think we bad better have the report of a committee on the officers needed, and have their conipensdtion fixed, and then we can go ahead. The PRESIDENT. The original resolution will be read again. The Secretary read the resolution. Mb. BARBOUR. Mr. President : I move to amend by adding " ex- cept the Phonographic Reporters." The PRESIDENT. 'The question is now upon the amendment offered by the gentleman from San Francisco, Mr. Barbour. Mb. WATERS. Do I undersUnd the Chair that the question will be upon the amendment ? The president. The original resolution was offered by the gen- tleman from San Francisco, Mr. Wilson. Mr. Barbour moves to amend by adding the words "except the Phonographic Reporters." Mr. Filcher has also offered a substitute, and the Chair rules that the qaea- tion is now on the' amendment Mb. waters. Mr. President: I then appeal from the decision of the Chair. The president. The gentleman from San Francisco offered the original resolution. The gentleman from Placer, Mr. Filcher, offers a sulMtitute, and the gentleman from San Francisco, Mr. Barbour, offered an amendment to the resolution. The Chair decided to put the ques- tion on the amendment first, from which the gentleman from Ban Bernardino appeals. The question now is. Shall the decision of the Chair stand as the decision of the Convention ? Mb. ESTEE. I hope the appeal will be withdrawn, and that the Chair will change his views, oecause, according to all parliamentary usages, a substitute takes precedence — takes the place of the whole matter, including the original resolution. The president. The Chair does not change his opinion on th9 question. Mb. HAGEK. Mr. President: I concur with the views of Mr. Estee. A substitute is in the nature of an amendment — of a second amend- ment— and that comes first If the substitute is adopted, that takes the place of the whole matter. There will be no necessity of amending the first proposition if the substitute is adopted. Mb. WATERS. Mr. President: I take the appeal with no feelings of captiousness, but from the fact that I have seen that ruling made here three or four times in as many days, and it appeared wrong to me. I am firmly of the opinion that the ruling is wrong. Now, in order that we may not settle down into error in the very beginning, I raise this question now, and I think it behooves us to change that ruling. If we go wrong in a matter as trivial as this, if we start in in error we must follow it up. It is clearly the fact that the substitute offered by the gen- tleman from Placer is in the nature of an amendment; the substitute in reality is an amendment to th^amendment. Now, the question is upon the amendment to the amendment, or the substitute. We had better right ourselves now, and refuse to sustain the Chair. Digitized by Google Oct. 1, 1878. OF THE CONSTITUTIONAL CONVENTION. 27 Ml McFAKLAND. I will ask that the robatitnte be read again. Mr. President, there is always a great deal of learning expended upon questions of order at the opening. In my opinion the substitute is out of order. The niain proposition of the original resolution is that a oom- mittee be appointed for the purpose of determining what we need. Upon that an ameadment was offered by the gentleman from San Francisco, Mr. Baiinar, that a portion of the resolution be stricken out. That was in order. That was germane to the original proposition. And then comes the substitute. You call it a substitute, ignoring the whole prop- osition, and opposing any committee at all, and assuming that the Con- Tention ahall go on and elect its officers. I don't think it is a proper amendment at all. I do not think that any amendment ignoring the orijpnal proposition entirely, and saying that the Convention shtUl go on and elect officers, is germane to the question at all ; it is out of order. If the Convention is not in favor of it, the proper way is to vote down tbe amendment, and then comes the proposition of Mr. Filcher, to pro- ceed to elect officers. I do not understand that I can introduce a substi- tute that ignores the original subject-matter entirely. Therefore, I make the point of order, that the substitute is out of onier. Thi president. The Chair will assign his reasons for his decision. 1 nndentand that we have no rules yet and therefore we are governed by the general parliamentary law. I understand it to be well settled that the friends of a resolution have a ri^ht to put it in the shape they denre, perfect it by amendments and get it into the shape they want it. Then, if any one wants to move a substitute for it, it may be done ; but the vote is first taken on the amendments to the original resolution. Mi. EDGBBTON. Mr. President: From what little experience I have had, I had arrived at the same conclusion as expressed by the Chair, that the friends of a resolution have a right to perfect it before a mbditute can be considered; and I will state to the other eentleraen, Mr. Water: and Mr. Estee, that their impressions are derived from a rule of the Assembly and Senate, that is always understood to be a modifica- tion of the general principles of parliamentary law. It is a special rule of CaUfbmia. Ha. FILCHER. Mr. President : In order to facilitate maters, and to {Bevent this tanele, as the object can be obtained in another way, and 1 liad no further oDJect in view than to elect the officers we know we hare to have now, I will withdraw the substitute. Ma. WATERS. In that case, I will withdraw my appeal. Thi president. The question is now on the amendment as offered b^ the gentleman from San Frsncisco, Mr. Barbour, to add the words, "except the Phonographic Reporters." . The amendment was lost. Thi president. The question now comes on the original resolu- tion of the gentleman from San Francisco, Mr. Wilson. Ms. HALE. Mr. President: I move to amend the resolution by adding after the words " 8ergeant-at-Arms," the words " Assistant Ser- geant-at-Arms." Ma. WILSON. Mr. President: The reason I put it in that shape is, that we may want more than one Assistant Sergeant-at-Arms. This resolution does not change the power of the Convention at alL Ma. HALE. In that case I will withdraw my amendment. Tbi PRESIDENT. The question is now on lihe original resolution. The resolution was adopted. Thi PRESIDENT. I will appoint as such committee 8. M. Wilson, J. E. Murphy, Volney E. Howard, Henry Larkin, Joseph C. Brown, Walter Van Dyke, and Patrick Reddy. TO riLL VACINCIIS. Mb. REYNOLDS. Mr. President: I desire to offer a resolution: BaoiMd, That the President appoint a committee of five, whove duty it sliall be to ia^dn into, and to whom ahall b« referred all mattan concerning the ellgilillity of aemben and the filling of ncanciea, and that such committee sliall bo required to npoct at the morning ■eodon on Thnraday next. Ma. BARNES. Mr. President : I move to lay the resolution tempo- rarily on the table. Mi. REYNOLDS. Mr. President: That resolution refers to a matter of considerable importance, and to questions that should be settled at as early a day as possible. I do not wish to precipitate it with any undue hatte, bat merely introduce the resolution that the subject to which it refers may be referred to a committee appointed for that purpose, and the matters referred to the committee, so tnat such action may oe taken « the Convention may deem necessary, in order that they may report to the Convention as early as possible. This Convention, Mr. President, seems to me to be organized m a very informal and unusual manner; bat we will let that matter rest for the present. We have never had any Committee on Credentials; there never has been a report to this body, nw in any manner have we officially ascertained who are members of (hit Convention. It has been conceded that there are some vacancies, >nd I am sorry to say, by the hand of death, but there is no official knowledge of tiiat fact, and I know of no way to arrive at it, other than the way I have indicated. It has been conceded since we met, that there were questions of the eligibility of the sitting members. Now let US have a committee appointed to whom the whole thing may be ■iferied, with instructions to report at as early a day as possible. I think that is the best way to come at it. Mi. van DYKE. Mr. President : It strikes me that the gentleman's notion is entirely premature. He suggests as a reason for offering it list we do not know who are the members of the Convention. The law ^wignates that those who are proclaimed members by the Governor are entnied to be sworn in and take their seats and exerelse their duties latJI inquired into, usually by the Committee on Privileges and Elections, *hich I presame this body will in due time appoint That generally ■Wows after a body is organized. Therefore, I think that the resolu- oona are premature now. In reference to the appointment of it, he bM he did not know that we have any evidences of vacancies here. It u a narrenal rule that the suggestion to a Court is sufficient in refer- ence to the death of any party. It is sufficient in this Convention, and a single suggestion on the part of any member here is enough to eistab- llsh that fact. That is the custom of Courts, and therefore it is not necessary that a committee shall be appointed for that purpose. As I remarked, we will evidently have a Committee on Privileges and Elec- tions. Mb. BARNES. Mr. President: I quite agree with the gentleman from Alameda, Mr. Van Dyke, on this matter, that we do not need to appoint any committee for the purpose of ascertaining that which, if it needs to oe made known officially to the Convention, can be made by the suggestioiu of the delegates from those Congressional Districts where those vacancies exist. It is enough, it seems to me, to state that in the Second Congressional District there if a vacancy created by the death of a delegate at large, the Hon. H. H. Haight; that in the Counties of Merced and Mariposa there is also a vacancy created by the death of G. M. Hardwick. As to the vacancy caused by the absence of tbe mem- ber from San Francisco, the Convention has had that information com- municated through a letter signed by Thomas Morris, who was elected at the recent election, and the signature to it was witnessed by one of his colleagues from San Francisco,- Mr. Barbour. As far as that matter is concerned, sir, it seems to me that the resolution is out of order. Per- haps at the proper time, when the Convention shall hfve been f\iUy organized, when these vacant districts shall have been represented and shall be represented here, it will be proper to make inquiries as sug- gested by tne gentleman from San Francisco as to the eligibility of aU gentlemen claiming seats in this Convention, but so far as vacancies to which I have alluded are concerned, I think we have now got to that point when these vacancies should be filled, and, therefore, preliminary to introducing a resolution on that subject, I move to lay tbe resolution temporarily on the table. Mr. estee. Mr. President; I second the motion. Such a motion as that I never before heard of in any legislative body. The idea of a Committee on Credentials I never heard before. Thk PRESIDENT. This is a motion to lay on the table, and is not debatable. The motion was put pnd carried. Mb. BARNES. Mr. President: I desire to oS'er a resolution : Jtetoind, That this GonTonlion do forthwith proceed to til the Tacauidea In thla body, created by roaaon of tlie death of the Hon. H. H. Haight, of the Second Oon- greiirional District, and the death of the Hon. O. M. Hardwick, tn the Counties of Merced and Matlpoea, and by the redgnatinn of Thomaa Mania, of San Trandaoa. SetolMd, Tliat the nominationi for candidates tu fill that vacancy be named and made io the order named In tliia resolntlan. Mb. HOWARD. I rise to a point of order. The organic Act fixes the order of business until the officers mentioned therein are elected. We cannot proceed to any other business. That is the only rule under which we can proceed ; it is the only rule that we have now in force. It seems to me very clear that no other business of the Convention on any of these matters can be proceeded with until that order of business shall have been executed. Mb. BARNES. Mr. President: In respect to the resolution I will say my reasons are these : the Convention is now sufficiently organized to fill vacancies existing in this body — known vacancies. Each of the Congrenional Districts have a right to representation on this floor. Matters are coming up now on further organization of the Convention, upon which Congressional delegates are entitled to represent their con- stituency here. For that reason I suggest that before any further busi- ness is done we proceed to fill these vacancies. That is the object of the resolution. Tbb PRESIDENT. The Chair is of the opinion that the Convention is now sufficiently organized by the election of a President and Secre- tary ; that it has power to go on now and fill any vacancies in the body. The Chair overrules the point of order taken by the gentleman from Los Angeles. The question now is on the resolution offered by the gentle- man from San Francisco, Mr. Barnes. Mb. REYNOLDS. Mr. President: I desire to pay the gentleman the same compliment that he paid me. I therefore move to lay the resolu- tion temporarily on the table. My reasons for so doing Thi PRESIDENT. A motion to lay on the table is not debatable; the gentlentan will please take his seat. On the motion to lie on the table, the ayes and noes were demanded by Messrs. Howard, Ayers, and Huestis. On the call of the roll the motion was lost by the following vote : Andrews, Ayere, Barbour, Barry, Barton, Beerstecher, Bell, Brown, Burt, Condon, Cowden, Cross, Davis, Dean, , Dowling, Doyle, Dudley, of Solano, Evey, Farrell, Filcher, Freeman, Freud, arn. Gorman, Noel, Grace, O'Donnell, Hale, O'SuUivan, Hall, Reynolds, Harrison, Rinnold, Smith, of San Francisco, Heiskell, Herold, Soule, Herrington, Howard, Stedman, Stevenson, Hughey, Sweasey, Hunter, Swenson, Joyce, Swing, Kenny, Tuttle, Kleine, Vacquerel, Walker, of Marin, Larkin, Lavigne, Waters, Mansfield, Wellin, McCoy, West, Moffat, Wickes, Morse, White, Nelson, Wilson, of Tehama, Neunaber, Wyatt^-««. Digitized by VjOOQ 2S DEBATES AIJD PROCEEDINGS Wednesday, KOtf. Prou^, PuUiam, Reddy, Reed, Rhodes, Rolfe, ScheU, ShoenwkeT, Shurtleff, Smith, of Santa Clara, Smith, of 4th District, Steele, Stuart, Teny, Tinnin, Tovnsend, Tully, Turner, Van I^ke, Van Voorbies, Walker, of Tuolumne, Webster, Weller, Wilson, of 1st District, Winans — 77. Tax PRESIDENT. The Convention refuses to lay the resolution on the. table. The question is now on (he resolution. . Ujt. ANDREWS. Mr. President: I hope that resolution will not be si^opted at this stage of the proceedings. It seems to me rather soon to go into that matter. This Convantion is vested with the power to act in behalf of the people represented by these delegates. It seems to me that we should not exercise that power in the midst of the confusion con- sequent upon organization. It seems to me that we should have an assistant at that desk, and a SerKesnt-at-Arms elected by this Conven- tion. It seems to me that we should have a Minute Clerk. And I hope that the resolution will not be adopted at this stage of our pro- ceedings. ■ Thi PRESIDENT. The question is on the adoption of the resolution. The ayes and noes were demanded, and the resolution lost, by the following vote : Barnes, Hueatis, Belcher, Hilbom. Ben7, Hitchcock, Biggs, Blackmer, Hoge, Holmes, Boggs,. Inman, Boucher, Johnson, Campbell, Jones, Gaplea, KeUey, Ke7ee, Charles, Laxne, . Gcouoh, . Lampson, Dttdley.of San Joaqnin, Larue, Donlap, Lewis, Sagon, Martin, . Kdgerton, McCallum, Estee, McComaa. . Bstey. MuFatUnd, Fawcett, McNutt, Finney, Mills, Oarvey, Moreland, Glasmck, Murphy, Graves, Naaon, Gregg, Ohleyer, Eager, Overton, Harvey, Porter, Barnes, Belcher, Berry, Biggs, Boggs, , Campbell, Caples, Charles, Crouch, , Dudley, of oan Joaquin, Dunlap, Edgerton, Estee, Estey, Fawoett, Finn«y, Garvey, Graves, Gregg, Hager, Harvey, Hilbaai^ Hitchcock, Andrews, Ayers, Barbour, Barry, Barton, Beerstecher, Bell, Blackmer, Boucher, Brown, Burt, Chapman, Condon, Cowden, Cross, Davis, Dean, Dowling, Doyle, Dudley, of Solano, Evey, Farrell, Filcher, Freeman, Freud, Hoge, Holmes, Huestis, Inman, Johnson, Jones, Kelley, Laine,. Ijampson, Larue, Lewis, Martin, McCallum, McConus, McConneU, McFarland, NcNutt, Mills, Moreland, Murphy, Naaon, Overton, Porter, Prouty, Glascock, Gorman, Grace, Hale, Hall, Harrison, Heiskell, Herold, Herrington, Howard, Hughey, Hunter, Joyce, Kenny, Kejres, Kleine, Larkin, Lavigne, Lindow, Mansfield, McCoy, Mofht, Morse, Kelson, PulUam, Reddy, Reed. Rhodes, Rolfe, ScheU, Shoemaker, Shurtleff, Smith, of Santa Clara, Steely Stevenson, Stuart, Terry, Townsend, Tully, Turner, Van Dyke, Van Voorbies, Walker, of Tuolumne, Webster, Weller, Wilson, of Tehama, Wilson, of 1st District, Winans — 72. Neunaber, Noel, O'Donnell, Ohleyer, O'Sullivan, Reynolds, Ringgold, Sroiw, of 4th District, Smith, of Ban Francisco, Soule, Stedman, Sweasey, Swenson, Swing, Tinnin, Tuttle, Vaoquerel, Walker, of Marin, Waters, Wellin, West, Wickes, White, Wyatt— 73. paOKOOBArBIC BKPORTIES. Mr. O'SULLIVAN. Mr. President : I have a resolution to offer: Sttolvd, That a committM of fin t>« spfxnlntcd to examine, at experts, Into the onalifioatloiu ot the candlilatea for Phooognphic Reporten of this body ; alae, •• to toe probable cost of the reports, to report to-monow. Mr. O'SULLIVAN. Mr. President : I offer this resolution, sir, because I wish to have competent reporters appointed for this body,- and I want a committee of gentlemen who are capable of judging as to their quali- fications, and also because I have heard on the streets that there is a job in this — ^twenty-four thousand or twenty-five thousand dollars is to be made out of it. If there is any such sum in it, it must be a steal, and I want to see no stealing. Mr. EDGERTOK. Mr. President : I move to lay the resolution on the table, for the reason that in my judgment the subject-matter is covered by the resolution of the gentleman from San Francisoo, Mr. Wilson, passed by this body. Carried. BULKS AMD OBORR OP BCSINRSS. Mb. ESTEE. Mr. President: I offer the following resolution: Bmaivtd, That a committee of nine be appointed by the Ohair to dimft mles aad se order of biudneaB, and report the same to this Gonrentlon for Its coneideratioD. Mb. freeman. Mr. President: I move to amend by adding, "and that the committee report what standing committees shall M formed." Me. EDGERTON. I rise to a point of order. As I understand par- liamentar}r law, the duty of designating committees always falls upon the Committee on Rules. That is the rule in the Senate and Assembly in this State, in the House of Representatives, and in the United States Senate, and as far as I am advised, of every State in the Union. It is universally the custom for the Committee on Rules to designate the committees. Mr. FREEMAN. Mr. President: I think it is a perfectly proper amendment and makes the matter perfectly clear. Mb. EDGERTON. Mr. President: I withdraw my point of order; it is a very small matter. Mr. ESTEE. Mr. President: The araendmentdoes not do any harm, though it is not necessary; I accept the amendment. Tbr president. 'The qAeetion is now on the resolution as amended. Mb. west. Mr. President : I would offer a resolution as a substitute to that resolution : That the following standing committees be appointed by the Chair — First, on rules; second, privileges and elections; third, printing; fourth, accounts and expenditures; fifth, preamble and bill of rights; sixth, legislative department; seventh, executive department; eighth, judicial department; ninth, elective ^nchise; tentn, educa- tion; eleventh, public institutions; twelfth, public debt and public works; thirteenth, militia; fourteenth, county and township organisa- tion; fifteenth, apportionment of representation; sixteenth, revenue and taxation; seventeenth, municipal corporations; eighteenth, corporations other than municipal; nineteenth, miscellaneous subjects; twentieth, amendments to the Constitution; twenty-first, schedule ; twenty-second, intoxicating liquors; twenty-third, enrollment; twenty-fourth, revision; twenty-fiftii, agriculture. Mb. WEST. Mr. President: I offer the resolution at this time as a substitute, and I believe that the Committee on Rules should be a stand- ing committee. I am not particular about the adoption of the substi- tute at the present time, but I think the experience of this Convention is that the Committee on Rules should be one of the standing commit- tees of this Convention, and I move the adoption of the substitute. Mb. ESTEE. Mr. President: It is entirely unusual to adopt a resolu- tion in that way ; it is the universal custom with reeolutions of that char- acter that they be referred to the Committee on Rules, because it is necessary for us to fix the number, and it is one of the most important duties of this Convention. I would ask the gentleman to let the origi- nal resolution be adopted, and then refer his resolution to that committee for its consideration. Mb. west. Mr. President : I accept the suggestion of the gentlemaa. Mb. McFARLAND. Mr. President : I rise to a point of order that I would like to have decided at the commencement ; it is, that the substi- tute is entirely out of order. Tan PRESIDENT. The substitute is withdrawn, sir. Mr. EDGERTON. Mr. President: I move to amend the resolution of the gentleman from San Francisco by inserting the word " fifteen " instead of "nine," so that the committee may consist of fifteen members instead of nine. Mr. ESTEE. Mr. President: I accept the amendment The resolution was adopted. Mr. SMITH, of Santa Clara. Mr. President: I offer the following resolution : Jtooleed, That the thanks of the Convention are tendered to hie SxoellencT, Gov- ernor Irwin, for the reiy able, impartial, and courteoue manner in wldch he has dlacharged the duties of presiding ofllciT of this CoDTentiun : alio, that the tlianks of this l>>nTention be tendered to Secretary of State Beck, and the other officen who hare rendered serTlcee during the organisation of the Oonrention. The resolution was adopted. Mb. west. Mr. President : I now move that that resolution which I offered be referred to the Committee on Rules. Carried, Mb. EDGERTON. Mr. President: I move that the Convention do now adjourn until ten o'clock to-morrow. Division was called for, and the Convention, at four o'clock and forty- five minutes p. m., adjourned until to-morrow jsaeiming at tenjo'clock. Digitized by VjOOQIC Oct. 2, 1878. OF THE CONSTITUTIONAL CONVENTION. 29 FIFTH DAY. Wbdnibdat, October 2d, 1878. The Convention reassembled at ten o'clock a. m., Preeident Hoge in the chair. Roll called, and memljers found in attendance as follows: DKLIOATKS PBCSIDT. Andrevs, Hale, Overton, Avers, Hall, Porter, Barbour, Harrison, Prouty, Barnes, Harvey, Pulliam, Barry, Heiskell, Beddy, Barton, Herold, Reed, Beerstecher, Herrington, Reynolds, Belcher, Hilbom, Rhodes, BeU, Hitchcock, Ringgold, Boli^ Berry, Holmes, Biggs. Howard, Schell, Blackmer, Huestis, Schomp, Boggs, Hughey, Shatter, Boucher, Hunter, Shoemaker, Brown. Inman, Shurtleff, Bart, Johnson, Smith, of Santa Clara, Campbell, Jones, Smith, of 4th District^ Caplee, Joyce, Smith, of San Francisco, OasserlT, Kelley, Soule, Chapman, Kenny, Stedman, Charles, Keyes, Steele, Condon, Kleine, Stevenson, Cowden, Laine, Stuart, Cross, ^^-^ Sweasey, Crouch, Swenson, Davis, Larue, Swing, Dean, Lavigne, Terrjr, Dowling, Lewis, Tmnm, Doyle, Lindow, Townsend, Dudley, of San Joaqain , Mansfield, TuUy, Dudley, of Solano, Martin, of Santa Crui , Turner, Donlap, McCallum, Tuttle, Eagon, McComas, Vacquerel, Edgerton, McConnell, Van I^ke, Van Voorhies, Estey. of Contra Coeta , McCoy, Estee, of 1st Distria, McFarland, Walker, of Marin, Evey, McNutt, Walker, of Tuolumne, Farrell. Miller, Waters, Fawcetit, Mills, Webster, Filcher, Moffat, Weller, Finney, Morelond, Wellin, Freeman, Morae, West, Freud, Murphy, Wickea, Carrey, Nason, White, Glascock, Kelson, Wilson, of Tehama, Neunaber, Wilson, of 1st District, Grace, Noel, Winans, Graves, O'Donnell, Wyatt, Gragg. Ohleyer, O'Sullivan, Mr. President. Eager, The minutes of yesterday's proceedings were read and approved. Me. smith, of Santa Clara, asked two days' leave of absence for Mr. Laine. Leave granted. TO riLl. VACASCIKS. Ml. BABBOVR. Mr. President : I desire to offer a resolution : Saokti, nrst— Tbtt the delegatM at largs {torn the Second Oongmsional DIs- tiict,«iKl th« deletmtes from the City and County of San Frsnclaeo br, and the; are h«nbT iiQthortsed and empowpred to name tbo perBon* to fill the vacancies In their napectiTD ilrleiationi, caiued by the death of H. H. Halght and the reeiguation of Ttumu Morria, and that the penuns thos propoaed be considered the choice of tiis Conrention. :jceani1— That the vacancy in the representation from the Coantlee of Maripcea ud Untied be filled by an election to be had therefor by this Convention. Third — That the Oonrentlon reaerree Ita right to reject any person propoaed aa ftbore proTlded, who may be found ineligible or deemed unworthy. He. DUDLEY. Mr. President: I move that we lay the resolution on theUble. Ma. BARBOUB. I call for the ayes and noes. The ayes and noes were also called for by Messrs. Beerstecher and White. Ms. HILBOBK. Mr. President : I think the resolution cannot be entertained, because it is delegating to a member of the Convention a duty that can only be performed by the whole Convention, namely, the eledion of person's to nU vacancies. Thi PRESIDENT. The law provides that all vacancies shall be filled by the Convention. The Chair therefore decides that the point of order made by the gentleman from Solano is well taken, and that the molation is out of order. Mb. BARBOUR. Is it not the action of the Convention to authorize a committee to fill vacancies? Thi PBKSIDENT. The Chair has decided the question ; does the geatleraan take an appeal ? MlBABBOUB. fee, sir. Tbi PBESIDENT. The resolution that has just been offered to the GoBvention haa been read. The decision of the Chair is that the resolu- tka u out of order, inasmuch as the law provides that the Convention iUeif ihall fill all vacancies. The Chair decides the point well taken, fiota wUefa deeiaion the gentleman from San Francisco takes an appeal. The question is. Shall the decision of the Chair stand as the judgment of the House T Mb. HILBORN. Mr. President: By permission of the House, I would like to read Section 11 of the Act of the Legislature which pro- vides for this Convention : " In case any vacancy occurs by reason of^the death, resignation, or otherwise, of any delegate elected to said Conven- tion, the same shall be filled by the Convention." Thb president. The Chair has stated the question and the ayes and noes have been ordered. Mr. EDGERTON. Mr. President: Before this vote is taken I wish the Chair would read that portion of the law for the information of the House. Thb president. " In case any vacancy occurs by death, resigna- tion, or otherwise, of any delegate elected to said Convention, the same shall be filled by the Convention." Mr. AYERS. Mr. President : I do not consider that that resolution would make it incumbent upon this Convention to vote for the candi- dates who are to be presented. It is merely a mode to get those candi- dates before the Convention. It is not final, nor would that nomination be bindinz upon this Convention. Mb. BARNES. Mr. President: Those who sit in the rear of this assembly would respectfully request of those who enjoy proximity to the Chair, to bear in mind that what they say is of aa much interest to us aa him, and therefore would respectfully request that whatever is observed to the President be spoken in such a tone of voice that we may be able to hear at least an occnsional word. Mb. BROWN. Mr. President : It appears to me from the reading of that resolution, that the matter woula be final, and that what some of those interested in this matter decide upon and' report to this House, the report is final in the case. Mr. AYERS called for the reading of the resolution, and it was again read by the Secretary. Mr. BARBOUR. Mr. President: If gentlemen had not been so anxious to suppress debate, I would explain the resolution. I think I understand this law. It does not point out any .particular mode in which the Convention shall fill vacancies. As to the Counties of Mari- posa and Merced, the death of their representative, 1 believe, leaves no delegation from those counties except jointly with some other counties. I think the resolution does not confine the Convention to the nominee of this committee filling these vacancies, for they have a reserved right to pass on the member after he is nominated by this delegation. In the first place the proviso is that they shall name the person to fill the vacancy, and report the choice to the Convention. My object in mak- ing this proposition is to take that struggle out of this Convention. I believe it is conceded on alt hands, at least by a majority of this Convention, that this is a proper mode to proceed to fill those vacancies. If that be the case, my resolution is only to obtain the sense of the Con- vention upon this ]>ropot:ition ; and if they nominate persons acceptable to the Convention they can be notified of their nomination and come here and take their seats. I think it is the first and proper order of business that we should do so. There is no intention to bind the Con- vention. If they have already agreed upon the candidates, well and good; if not, let these delegates get together and name persons accepta- ble to their constituency. That is my object in presenting the resolu- tions. I have nothing to conceal. The San Francisco delegation have agreed unanimously on the man they propose to present; his name is John R. Sharpstein, who received the highest vote of any man in San Francisco. We claim that it is our privilege, and if the other delegates are ready we are willing to concede to them the same right. If they are not ready we will wait for them to present a candidate. We claim that the person called upon to fill a vacancy of this kind ought to corre- spond in sentiment, in political affiliation, as near as may be, with the person whose death has caused the vacancy. I see nothing, sir, wrong in that. It seems to be a matter of justice, and we place it on the grounds of justice, and we ask it of this Convention aa a matter of jus- tice. Mr. ESTEE. Mr. President: As I understand this question, this res- olution, divested of all circumlocution, means simply this : that the San Francisco delegation of thirty members shall elect a delegate represent- ing that district. That is all it means, and ^ust what it meaus, because the only power it leaves in the Convention is to reconsider their action if the membef' they recommend is ineligible. Now, sir, of course the thirty representatives from San Francisco, known as representing the workingmen of that city, so-called, will not present anybody here who is not qualified under the Constitution. Second, there is no power left in this Convention if the resolution should be adopted that the San Francisco delegation of thirty shall elect a delegate in the place of Mr. Morris, who has resigned. Now, that should be the resolution, and the question comes squarely before us. I hope it will not be adopted. I believe that this whole Convention should pass upon the qualifications of every member who is placed before the Convention. Mr. BROWN. Mr. President: I agree with the gentleman who has just occupied the floor. It appears to me that in this cose the matter to oe considered is, whether or not this body, according to the law under which we are acting, has a right to commission the delegates from San Francisco, or fVom any other portion of this State, to elect to fill vacan- cies that have occurred. This appears to me to be a plain proposition that is before us. If we find the men that they have elected, set forth, to fill these vacancies are ineligible, or that there are constitutional objections to their filling this place, we can expel them afterwards. But it does appear to me that the principle is plain in the law with regard to this matter, that it is the duty of this Convention not to set the San Francisco members, or any other members, to the transacting of business which this body is responsible for according to the law, but that this Convention itself should attend to this, as the law itself plainly requires. [Cries of " Question, question."] Digitized by' piuiuiy requin». Google 30 DEBATES AND PROCEEDINGS Wednesday, Mr. cross. Mr. President : In this matter I shall vote to sustain the Chair and for this reason : I believe that the law which piorides how this Constitutional Convention shall be composed, plainly provides that all vacancies shall be filled by the Convention, and that that takes away from this Convention the power to say that the presiding ofBcer shall fill vacancies, or that Governor Irwin shall fill vacancies, or that the San Francisco delegation shall fill vacancies, and I trust, sir, that the right feelings that exist in a majority of this Convention, that their feelings of justice and their disposition to require the law to be complied with — I say I trust to the right feelings of this Convention to elect men who will l»e satisfactorv to the men who elected Mr. Morris. Mb. BARBOUR. Mr. President: I withdraw my appeal. Tbk PRB^SIDENT. The resolution is ruled out of order. Mr. smith, of Santa Clara. Mr. President: I desire to offer a reso- lution : Rmohtd, That the S«cretat7 of State be requested to distribnte to each member of the CoDTentloo a oopjr of the Statatw of 1877-8, if he has a nifflcient number. Jvoai HAGER stated that any member could obtain the Statutes fh>m the Secretary of State or State Librarian, on application, and Mr. Smith thereupon withdrew his resolution. COMHITTKE APPOIKTKD. Tnr PRESIDENT here announced the following Committee on Rules and Order of Business: Messrs. Estee, Edgerton, Overton, Mans- field, Sehell, Berry, Fawcett, Reynolds, West, Holmes, Murphy, Dudley, PuUiam, Tinnin, and Waters. Me. WYATT. ABOOT PAY. I desire to offer a resolution : JZMoIved, That the PrufdoDt of the ConTention be Instructed to appoint a com- mittee of Are, whose duty it shall be to Mcertain and report to this Convention on Saturday, at Uie furenoun sceBlon thereof, the amount due each memlMr of the OoD- ventiou for mileage aud per diem to date of re jiort. Mr. WYATT. Mr. President: I hope that the resolution will meet with the unanimous vote of this Convention, and I have but little ques- tion but that it will. I was induced to offer it myself because I was aware of the known timidity of the members of the Convention on that subject, and, therefore, in onler to relieve them, I took the responsibility of offering it myself. I believe that the committee proposed by the resolution adopted yesterday and appointed this morning do not eon- template the duties mentioned in the committee which I propose, and it is for that purpose, to supply that omission, that I offer the resolution. Mb. VAN DYKE. Is there really any necessity for that resolution? The law fixes the compensation and mileage of every member here; it is simply a matter of computation. I don't see the necessity of the resolution. Mb. EDGERTON. I move to lay the resolution temporarily on the table, for the reason that the Code fixes the mileage and per diem of members of the Convention at the same rates as of members of the Legis- lature, and also fixes the distance from each county seat to the City of Sacramento. Mb. WYATT. Mr. President: If the gentlemen know the fact that a member can step into the Treasurer's office, or into the Controller's office, or into the office of the Secretary of State, or into the office of some other authorized State official, and draw his money, then I am satisfied that the resolution lay upon the table. But unless he can answer that that is a fact, then I want some way that this Convention can unlock the strong box of the State antl ti'I at some of that one hun- dred and fifty thousand dollars that is lying there rusting; and, as I understand it, Mr. President, there must be some authority from this Convention as a basis for those ofBcers to act upon. I do not understand that I can step into the Controller's and say, " My name is Wvatt. I am a member of the Constitutional Convention. I am from Wfonterey Countv; my legal distance is one hundred and ninety -six miles. I have been here ten days, and I want a warrant for one hundred and thirty dollars, or one hundred and ninety dollars, or one hundred and seventy-five dollars, as the case may be." I understand that this Con- vention is to certify to what I am entitled to receive from time to time. Mr. HAGER. It is well enough to understand this question at this time. I will inform the Convention that the statute provides how this money shall be drawn ftvm the treasury. The amount of pay shall be certified by the President, and shall be paid by the Treasurer, on the warrant of the Controller, in the same manner as members of the Legis- lature are paid. The President may now certify that there is so much due any member, if he sees fit to do that. The mileage question is generally ascertained by a Committee on Mileage and Expenses, which IS generally a standing committee. When the Committee on Rules make their report, there will be a provision for a Committee on Mileage or • Pay, or a committee that will control that question, and then they make a general report in regard to all the members. The per diem allowance that may be due, can be drawn upon the certificate of the President. I would therefore suggest to the gentleman to let the matter rest until the Com- mittee 6n Rules make their report, when the proper committee will be named that will have the power to regulate this matter. Mb. CAPLES. Mr. President: I second the motion to lay on the table, for the reason that it appears to me that this knocking at the doors of the treasury before we are organized is in bad taste. The motion to lay on the table prevailed. A motion by Mr. Noel, to grant an indefinite leave of absence to Mr. Campbell, was lost. BKPORT ON OBOANIZATION. Me. WILSON, of First District. Mr. President: The Committee on Further Organization desires to report : Mb. Pbesisiiit: Your committee, to whom wu referred the following resolution : BaMliiMi, That the PrMidentappointsoommltteeofaeren to report the dedgnatian and number of olllcen other than President, Secretary, and 6ergeant-at- ^rms, •• In their opinion are necessary lor the tianMction of the tnuines* of the Oonrentloii, and the compensation to be paid to each when not fixed by law — Beg leare to report that they have found the following additional offlcan neces- sary ; First, a President pro tern.; second, two .\Bsistant Secretaries ; thirl, one Miuute (Jlerk ; fourth, one Journal Clerk ; fifth, one Assistant SergeAnt'At-Arms; sixth, three Doorkeepen; seventh, two Porters; eigl^h, eight Pages; ninth, one Postmaster: tenth, one Hall Carrier; eleventh, one Hhonograpbic Beporter and one assistant. We recommend that the following compensation be allowed to the offi- cers : rirst, to the Assistant Secretaries and Journal Clerk, t6 per day ; second, to the Minute Clerk, t8 per day; third. Doorkeeper, $5 per liay ; fotirth, to the Portent $4 per day ; fifth, to the Pages, $3 per day ; sixth, to the Postmaster, t4 per day ; serentb, to the Mall OsTrler, tlOO per month ; eighth, to the Reporteni, 910 per day and 20 cents per folio for transcribing. We also recommend tlie election by the Con- vention of the following officers: President pro tern., ( ne Ri^porter, two Assistant Secretaries, one Minute Clerk, one Journal Clerk, one Anlstant Sergeant.at.ATnia: the other officers named to be appointed by the President of the Convention. All of which we respectfully submit. 8. M. WILSON, Chairman. October 2, 187S. Mr. AYERS. Mr. President : Before that report is adopted I would like, if it is not out of order, to move that the price be reduced from twenty cents to fifteen cents per folio for transcribmg. Thb PRESIDENT. The first question is upon the reception of the report. Mb. BEERSTECHEB. Mr. President: I move that the report be received. The motion prevailed and the report was received. Mb. HILBOkN. Mr. President: I did not observe that there was any provision for a Night Watchman. That is one of the most impor- tant offices about the building. It is essentially necessary. I move that the report be amended so as to include a Night Watchman, with a stlary of three dollars per day. Mb. lewis. Mr. President : I would ask for information, what is the duty of the Night Watchman? Mb. SHOEMAKER. Mr. President: The Night Watchman provided by the Secretary of State occupies the corridor below. It is very neces- sary that there should be somebody here to look after our desks, because any key will unlock our desks, and there should be some protection for our papers. Mb.HILBORN. Mr. President : I understand that the per diem here- tofore paid to the Night Watchman has been five dollars, and I ask to amend so that the compensation shall be five dollars instead of three dollars. Mb. biggs. Mr. President : It has been the rule to have a WatchnuJi for the day as well as for the night, and I therefore move to amend bj having a Day Watchman also. Thb PRESIDENT. The gentleman from Butte can make the motion as soon as the present one for a Night Watchman has been decided. The motion prevailed. Mr. biggs. Mr. President : I now move that we have a Day Watch- man at four dollars per day. Mr. van dyke. Mr. President: The Door-keeper can keep charge of the hall during the daytime when not in session. Mb. BEER8TECHER. Mr. President : I would like to know why we intend to employ three Door-keepers, a 8ergeant-at-Arms, and an Assis- tant Sergeant-at-Arms, if they are not to perform these duties in the daytime at the salary they are Ik receive. Mb. biggs. I withdraw the motion to save discussion. Thb PRESIDENT. The question now recurs upon the adoption of the report. PBONOOBAPHIO RKPORTIRS. Mr. AYERS. Mr. President: I shall renew my motion, that the figure for reporters' transcripts be reduced from twenty cents per folio to fifteen cents per folio. The figure now allowed by the State for the Reporter of the Supreme Court is twenty cents per folio, and the work there is not constant, but occasional. In this case we shall have a very large and important piece of work that will last perhaps for a hundred days, and I think that the compensation of fifteen cents per folio will amply repay the gentlemen who may be chosen as Phonographic Reporters. Mb. FREUD. I second the motion. Mb. WILSON, of First District Mr. President: The committee, in fixing the compensation for reporters, made some inquiries upon that sub- ject, and the price fixed is the price allowed by Conrta for making reporta of judicial proceedings. It seems to me that the labors of reporting the proceedings of a legislative body are much more difficult and arauons, and this is only the same rate allowed for Court reporting. The difference is very small between fifteen and twenty cents per folio. We thought on fix- ing it at the ordinary rate because it was more arduous than Court report- ing ; that it would be fair to the Convention and economical to the State. We made inquiries and learned that to be the fact. I think, therefore, that it ought to remain in the report as it is. We require them to be in con- stant attendance, we require the best skill, and I believe every gentle- man will want the proceedings written up very particularly. Under these circumstances, it seems to me that the compensation should remain as it is in the report. Mb. AYERS. Mr. President: I will merely state, in reply to the gentleman, that there certainly cannot be any difference in the labor of transcribing the proceedings of this Convention and in transcribing judi- cial proceedings. It is a mere mechanical process. The fact that there will be a great de»l of work will only make it necessary to have more men to do the work. I think the price paid to amanuenses through- out the State is ten cents per folio for like service. That will leave the persons who are going to be stenographers a clear gain of five cents per folio. If the proceedings should be printed in octavo fomt, there would be seven folios on a page. The debates of the Pennsylvania Convention occupied nine octavo volumes. The difference between the charges of twenty cents per folio and fifteeiL-eents would 8|ve to this Digitized by lyeents wouM save Google Oct. 2, 1878. OF THE CONSTITUTIONAL CONVENTION. ai state from tiro to three thousand dollars, perhaps, and I think we would have the work just as well performed for fifteen cents as for twenty cents. Ms. ESTEE. Mr. Presiaent : Much depends upon what these report- ers are to report. If it is intended to make a verbatim report, includ- ing all the speeches that are made, the expense will be something enormous, and twenty cents a folio would be too much, and I hope that the fifteen cent proposition of the gentleman from Los Angeles will be adopted. Why, I find here that if our reports will be as large and Toluminous as they have been, the reporting and transcribing for this Convention will OMt over thirty thousand dollars, according to a careful estimate. I do not think it is wise to make such a disbursement. I am aware that to transcribe from a reporter's notes requires professional skill; an ordinary scribe cannot do it. I think fifteen cents a folio, where the work is so large, is most ample. Hl WILSON, of Fir^ District. We accept the amendment. Uk. FILCHEB. Mr. President : I move to amend the report of the committee by striking out the words 'f and one assistant." One compe- tent reporter can take the notes of this Convention, and if he is allowed fifteen cents per folio for transcribing those notes he will come under bonds as a responsible party, and thus make this Convention secure. lla. GRACE. Mr. President : I now move that ten cents per folio be the compensation. Uk. WIL80N, of First District. Mr. President: I will state I under- stand that the reporters will not accept fifteen cents, and also that two will be necessary. The Convention would not like to elect two in conflict with each other. We, therefore, proposed that one should be elected, who ihoold select his assistant, and that would be necessary, in order to pre- pare the reports that we intend to have. It will require two. Ma. FILCHER. Do you allow the reporter's assistant ten dollars per day 7 Ur. WILSON, of First District. Undoubtedly, the reporters will each reeeire ten dollars per day; each will receive the per diem. It will require two reporters to do the work. ill. LARKIN. Mr. President : I will go as far as any gentleman on this floor, where the best interests of the people and this Convention are mfaaerved, and I desire to say that this committee considered this matter. We want a report that will be reliable, and we desire a reliable man to make it. I think that fifteen cents per folio is none too much, and I hope there will be no change in the report of the committee, and that, IS amended, it will be adopted by this Convention. Ml HAGEB. Mr. President: This, sir, is a very important question, and I do not know how we can, at this time, act very intelligently upon the subject. Those who are acquainted with bodies where the proceed- ings are reported, know what an enormous job the reporter has before him. Now, take the proceedings of Congress, which are reported ver- batim, every morning following the debiUes, filling a quarto volume of one hundred pages, and sometimes more, being a full report of every- thing that occurs. For this work the reporter's compensation ought to be adequate. When the report of the debates of this Convention are taken, as it is too great a labor for one man, they have to be written out in longhand by stenographers who can read the notes. In other words, the persons that have to write out the shorthand should be just as com- petent as those who take the notes. I think there ought to be a com- mittee appointed to ascertain in advance what portion of the proceed- ings we wish to report. Certainly we don't want them to report the committeee, or to report resolutions every time they are read by the Secretary. In that way the volume would be swelled to enormous dimensions. I do not think myself that twenty cents per folio is too much. The most important parts to be reported, perhaps, are the debates, because they illustrate the opinions of those who speak upon the propositions that come b^re the Convention. The proposition itself will be embodied in the reports, and the debates will be an illus- tration of what the views of the members were on the subject debated. And as for the writing out, I will move that for the time being we elect the reporters, and do not undertake to fix the compensation until we first ascertain, through the committee, what the stenographers are to report. Ma. BARBOUB. Mr. President : The Convention perceives now the very difficulty which I pointed out yesterday. So far as the per diem compensation is concerned I have no objection; it is not too much. But the important question for this Convention to determine is what •hall be reported and what the compensation shall be for transcribing in knghand thoae shorthand notes. It will make a very great difference to the treasury of this State what action is taken upon Uiis matter. If ererything is taken down and the proceedings reported in full there will be an immense amount to transcnbe. That ought to be regufated. I, therefore, second the amendment for the appointment of a committee skilled in the business, if you can find them. Ma. HAGEB. Mr. President: I move not to appoint the committee at this time, and to strike out the compensation to be allowed for tran- wibing into longhand. Ml WIL30N. Mr. President: It seems to me that we had better idopt this report. Let the committee then undertake, deliberately, to sacertain how far the debates shall be reported, whether there shall be UT limit at all, or report the entire proceedings. Ms. HALE. Mr. President: I observe, in looking over the proceed- tnn of the Constitutional Convention of the State of Illinois, held in ei^iteoi hundred and seventy, that the Convention provides, first, for a phonographic report of the debates. Likewise the Conven- tioB nvvides for the publication of those debates, furnishing to the membas of the Convention, each morning, so many copies, such a nomber to be filed with the State officers, and also providing for the publication, in the form of (Congressional debates, all the debates IB the Convention. A Committee was fintUly raised to receive prop- oitioBS to make such reports and to publish them. The whole Bttier was finally concluded, and the final result of their efibrts in that behalf, by common consent and conunon understanding, was that they had saved a large amount of money to the State, and at the same time secured a faithful report of the debates of the Conven- tion published officially in the manner that I have indicated. Each member was furnished a copv, so many was furnished to the library, and the balance was deposited with the Secretary of State ; copies were likewise provided to be furnished to the various States in the Union. It seems to me to be the part of wisdom that we shall take some action here that shall look to the accomplishment of a like result. As I have not heard the report on this matter, I would ask the Secretary to read ,so much of the report as applies to it. The SecretaiT read the eighth clause of the report. Mb. HERRINGTON. Mr. President: It seems to me that by the adoption of the suggestion of the gentleman from San Francisco, the most important feature in that resolution and the most important action on the part of this body will be lost sight of. If the report taken by the reporters of the proceedings of this (invention be taken down in phonographic character it wifl remain as Greek to this Convention and to the world. When that reporter is called upon for his longhand report of his transcription of the record, he will say to this Convention, " Gentlemen, it is under lock and key ; pay me one hundred thousand dollars for what is on that paper, and I will take it." Now I don't pretend to say that the reporters would say that ; they are all gentlemen, these reporters, every one of them ; but, Mr. President, I do not choose to accept the will of any gentleman to a contract after he has performed a portion, and left it in a condition where it is utterly useless to us unless it is transcribed, and he then fix the price. The proposition is now that we make a contract with these reporters to take the notes, not knowing at what rate it will be transcribed, and then to trust to what figures they may choose to place upon it after that is done. This is not the wisdom that should characterize this Convention — to make contracts in that way. I submit that this Convention will not act the part of wisdom to make any such agreement. If we intend to make any arrangements with these reporters, let us make a definite, oertein arrangement, whereby the transcription of these reports shall be made out at a certain fixed price, and not trust to what may be done afterwards after the report has been made up. Mr. STEDMAN. Mr. President: I move that we strike out all relating to reporters — and, as an amendment thereto, I desire to offer a resolution : A««o(p«2, That there 1m employed by the Convention a competent reporter, whose duty It shall be to make an accurate luid faithful rep^irt of the debatoe aod daily proceedings of the Convention. That a Committee on Reporting be appointed, who •hall l>e authorised to invite and receive propoeali from gentlemen qualified to discharge the duties of reporter as to the term* upon which they will undertake to perform aaid duties, and tliat said committee report to the Convention the proposals received, with such recommendations in respect thereto aa may be deemed expe- dient Mb. HAOEB. The amendment that I offered is before the Conven- tion. I think it has precedence. Mr. ESTEE. I hold in my hand a report of the proceedings and debates of the Constitutional Convention or the State of Illinois. Their expenses were fifty-seven thousand five hundred and fifty-two dollars and fifty cents ; so you can see how necessary it is to take this matter into serious consideration. Thx president. The amendment that is offered is to the eleventh clause, which reads "one Phonographic Reporter and one assistant." The gentleman from Placer moves to strike out " and one assistant." Mr. REYNOLDS. I hardly understand the intention of the question at present. I hope that amendment will not prevail. I speak from some experience, and I know that it is physically impossible for one man to report the proceedings of this entire Convention. The reporter must attend the morning session. It is us much as that man can do during the remaining part of the day to transcribe, or read to amanuenses, his notes. His assistant must come in at the afternoon session and do the same thing. We must therefore have two competent shorthand reporters; certainly not less, perhaps more. As to the compensation. There is no question about the per diem. The only question is about the cost of transcribing. Now it will cost ten cents per folio to hire the writing done. There remains but five cents per folio to compensate the reporter for reading notes, for writing his portion of it, and for overseeing the whole matter, and that is certainly not much. We do not want any second class work done. We cannot peddle it out to the lowest bidder. This Convention must choose the best workmen, and then pay them their price. I hope these amendments to cut down prices or let it out to the lowest biclder will not prevail, but that the report, with the amendment which the committee accepted, will be adopted. Mr. LARKIN. I have an idea that it is not necessary to perpetuate all the discussions in this body, but only such matters as pertain to the debates or propositions to amend the Constitution. The reasons why we adopt the Constitution is the only matter that should be reported — only just matters that are necessary to show to the future generations the reasons why this or that amendment was adopted, is all that should be paid for by the State, or declared by this Convention proper to be paid for as a record of this Convention. All this trifling debate, all these idle matters, are not necessary to be perpetuated. Mr. DUDLEY, of San Joaquin. It is evident that this question is one of great importance, and it is also manifest that the members of this Convention do not thoroughly understand it; therefore I move that the subject-matter be referred back to the committee with instructions to report to-morrow, ahd that it be made the special order for to-morrow at two o'clock p. M. Mr. white. We do not understand how this question stands now. We are anxious that the Stedmau resolution be read and referred to that committee with them. Mr. PRESIDENT. Regularly this report would be^«ead clause by- Digitized by V 32 DEBATES AND PROCEEDINGS Wednesday, clause, and would be open to amendment upon each clause. No amend- ment being offered to tne first clauses, the first amendment was by the gentleman from Placer, Mr. Filcher, to amend the eleventh clause by striking out "and one assistant." That is the first question in order, originally. Mb. HAGEB. I move that we adopt all that portion of the report with the exception of that relating to Phonographic Reporters and tneir compensation. Mb. DUDLEY, of San Joaquin. I suspend my motion. Mb. FRKEMAN. I think that twelve Pages are more than is neces- sary. The reiwrt provides for eight additional. That is too many. The statute provides fur four. Mb. HA6ER. By the statute the President has the power to appoint four Pages, and if the committee report four additional that would make eight. As it now stands we would nave twelve. ~ Mb. FREEMAN. I move that the word " eight" be stricken out and "four" inserted. Mb. van dyke. There seems to be some misapprehension in reference to that word " additional." It means ^ditionai to the Presi- dent, Secretary, and Sergeant-at- Arras, with those specified in the statute. It does not mean eight additional Pages added to the four specified in the Act. That is not what the report means. It means eight Pages in all. It is additional to the President, Secretary, and Sergeant-at-Arms. That is what the resolution was that was referred to the committee. It was to report what officers, other than President, Secretary, and Sergeant- atsArms, would be necessary. So in reference to Porters, Doorkeepers, etc. It is not in addition to those specified in the Act. Mb. president. The chair has so understood it. It provides for the entire number of officers of the Convention other than President, Secretary, and Sergeant-at-Arms, Ma. WINANS. Mr. President: It was the obvious intention of the committee t« have eight Pages in the aggre^pate, and three Doorkeepers. At most it can be only a clerical error. It is not necessary to reach by resolution that which can be met by a simple correction of their report. Mr. WILSON, of San Francisco. The entire number was the inten- tion of the committee, in addition to the President, Secretary, and Ser- geant-at-Arms. Mb. BEEKSTECHER. I move that the report be taken up seriatim. Mb. EDUERTON. This subject has already occupied the attention of the committee for a long time. It seems to me that the most judicious disposition to make of it is to sustain the motion to recommit the whole subject-matter to the committee. The PRESIDENT. There was no such motion. The motion was simply to refer the matter of Phonographic Reporters. Mb. EDOERTON. I move to amend by recommitting the whole subject-matter to the committee, with instructions to report this after- noon by three o'clock. Mb. HUESTIS. This is a question that the Convention wilt have to meet, and they are probably as well qualified to meet the question and deal with it justly and intelligently now as at any future time. Many of the objections that have arisen here if it is deferred will come up again, and the result will be much more consumption of time. I hope this matter will be disposed of now. Mb. DUDLEY, of San Joaquin. I accept the amendment of the gentleman from Sacramento, Mr. Edgerton. Mb. McCALLUM. I would suggest that instead of three o'clock it be amended so that the committee can report before three o'clock. Mb. EDGERTON. I move to amend so that the committee he in- structed to report as soon as practicable. Thk PRB^SIDENT. The motion is that the report M recommitted to the committee, with instructions to report at the earliest practicable moment. The motion prevailed. Mb. barton. Pending the deliberations of the committee I move that the Convention now proceed to the election of a President pro tem. Mr. Graves offered the following resolution : Reaolvtd^ That the Secretary of the Conrention have printed for the nfl« of the membera of the Convention, fire hundred eheet copies of the Act entitled "An Act to proTide for a CoDTentioii to fnme a new Constitutioo for tho Stale of Galiibmia," approved March 3Uth, 1878. Mb. AYERS. I believe that is the most economical way to place every member in possession of a copy of the law. The resolution was adopted. Mb. BLACKMER. I move that this Convention do now adjourn until two o'clock. The motion prevailed. AFTERNOON SESSION. The Convention reassembled at two o'clock; President Hoge in the chair. Roll called and one hundred and forty-two members found to be present. On request of Mr. Van Dyke, Mr. Campbell was granted leave of absence for the balance of the week. BBPOBT. Mr. Wilson submitted the following report of the Committee on Attaches : Ha. Pbbsident: Tour commlttde, appointed under a resolution if the Conven- tion, to report the designation, the ntiniber of olRcen other than Preeide nt and Sec- retary and Sergeant-at'Arme, as in their opinion are neceeiary for the tranMctlon of the bustnoee of thlf Convention, and the compeiuntion to be paid to each where not fixed by law, bog leave to report that they have Ibund the following offlceie, other tliaD Preeidont, Secretary, and Sergeant-at-Amu, neceaeary; First, President pro tem.; second, two AsRi^tant 8ecretaHe«; third, one Minute Clerk, fourth, Journal Clerk; Hith, Assistant Sergeant-at-Arms; sixth, three Doorkeepers; seventh, two Porters; eighth, eight Page* (two of whom shall be detailed from time tu time by the President a* paper-folders); ninth, Postmaster; tenth. Mall Carrier; eleventh, (ine Phonographic Beporter and his assistant, to be by him selected. We recom- mend that the following compensation be allowed to said officers respectively, viz.: To Asslitant Secrelariea, each six dollan pef day; to the Minute Clerk and Joamal Clork, eight dollars per day ; to the Asristaot Sergeont-at Arms, eight dollars per day ; to the Doorkeepen, each, fin dollan per day ; to the Pag,-*, each, three dollan per day ; to the Poatmaster, four dollan per day ; to the Mail Carrier, one hundred dollan per month ; to the Phonographic Reporter and his assistant, c«cli, ten dol- lan per day and such additional sum for tniucribing into longhand as the standing Committee of the Convention, to whom the same shall be referred, may detenntns. The matter to be transcribed to be also determined by such Committee. The ofBcen alwve named include aa well those specified in the statute as the additional ones deemed necenary, and only the President, Secretary, and Serg(«nt-at-Amia. We also recommend that of the foregoing, the following be elected by the Convention, vis ; First, the Preeideot pro tem.; second. Assistant Secretaries; third, one Min- ute Clerk ; fburth, one Journal Clerlt ; fifth, one Assistant Sergeant-at-Amu ; sixth, one Phonographic Beporter ; and that all the otben named above be appointed by the President of the ConveDtion, except the Phonographic Ki^porter, who shall ap* point his own aaalstant. All of which is rcspertftilty submitted. 8. M. WILSON, Chalnnaa. October ad, 1878. Mb. HOWARD. I move that ^e report be received. Carried. PHOHOOBArHIO BBrOBTBBB. Mb. BIOGS. I desire to detain this Convention but a few minutes. As we have oome here for retrenchment uod reform I propoee to offer amendments to that report. And the reason I propoee to is this : the people of this State are oppressed by taxation now oeyond endurance, ana I want to strike out the Phonographic Reporter, notwithstanding gentlemen may say it is an old fogy and exploded idea. Now, I ask this Convention if they want to pay forty thousand dollars or fiity thousand dolhuv for these debates wben they would be published in the Eapers and sent all over the world. I undertake to say that you may ave these debates published at the expense of the State, and you may send them out, and there is not one man in twenty that will ever read them. If the members want their speeches printea and sent broadcast to the world, I ask them to pay for it out of their own pockets. I am for retrenchment and reform, and I don't propose to saddle a burden upon the people of this State, when we can obviate it by striking out that portion of the report of the committee. Mb. WHITE. I rise to second the motion. Thi PRESIDENT. The Chair will state that it proposes to take up this report in the regular parliamentary way. I shall state each clause of it, and shall await any motion to amend. We will reach the propo- sition that the member irom Butte desires to amend in due course, and I will then receive his motion. Mb. BIG mitteen, beg leaTe to report the following committees, and number of each, to coo- eider the seTeiml parts of the ConstitntJon which relate to those snl^ects respectiTely, which may be referred to such committees : Firat, on Preamble and Bill of Rights, to consist of nine members; second, on the Bight of Suffrage, eleren msmbeis; third, on Legislatlre Department, fifteen memben; fourth, on Executire Depart* roent, nine memlien; fifth, on Judicial Department, nineteen memben; »lxth,OB Military Affairs, eleren members; serenlh. Stats and Mnnldpal Indebtedness, fifteen memben; eighth, on Education, nine memben; ninth. State Institntians and Public Buildings, seren memben; tenth, on City, County, and Township organ- liatlon, fifteen memben ; elerentb, on Apportionment and Representation, eievsa memben; twelth, on Berenue and Taxation, fifteen memben; thirteenth, on Cor* pontions other than MnniciisU, fifteen memben; fonrteenth, on Hlsoetlaneooa Sab- Jects, nine memben; fifteenth, on Future Amendments, nine memben; sixteenth, on Schedule, eleren memben ; seventeenth, on ReTlslon and Adjustment, nlns memben: eighteonth^n Water and Water Bights, fifteen memben; nineteenth, on Agriculture, Mining, Manulacturus, and Commerce, fifteen memben; twentieth, on Imniigrmtlon, fifteen memben ; twenty.first, on Beporttng and Printing, fire mem- ben ; twenty.second, on Privileges and Klection, fifteen memben ; twenty-thlnl, on Mileage anil Contingent Expenses, nine memben. The appointment of said com- mittees shall he made by the President. Bespectfully lubmitted. X. M. ESTEE, Chairman. The report was received. Mr. hager. I move that there be another standing committee, to be composed of the Chairmen of all the other committees, to be called the Committee on Schedule. Mr. ESTEE. The report provides for one now. Mr. EDGERTON. That report is only a partial report. The com- mittee agreed upon the designation and number of these so fax. Two or three committees have just occurred to me that are not provided for there, for example, a Committee on Engrossment and Enrollment The committee report these in order that the President mav go to work, and I hope that the report, so far as it goes, will be adopted. Thk PRESIDENT. This is a partial report from the committee. Mr. HERRINGTON. I move that a committee, consisting of fifteen members, be added, to be called the Committee on Federal Relations. Mr. TINNIN. 'That subject is included in the Committee on Immi- gration, which includes also the Chinese question, and is so understood. Mr. keyes. 1 think it would be well to make one Committee on Agriculture and one on Mining. Mr. estee. There is very little that can be put in a Constitution on these siibjei'ts. while a great deal can be put in a statute. We found by examining the proceefUngs of other Constitutional Conventions that they were usually m one committee, and then they bad very little to do. We examined it with a good deal of care. This is only a partial report, but it was made this morning so that it could be printed, and so that the President could go on with the work of forming the committees. It will be found bv examining the proceedings of Conventions in other States that where t^ere were only eighty or ninety members they usually fixed the number of members on each committee at seven' or nine. Here there are one hundred and fifty-two members, and the committees range from seven to fifteen. On the most important questions there are fifteen members. Mr. DUDLEY, of Solano. It is well known that there is a serious conflict, real or apparent, between the agricultural and mining interests, and it strikes me that it would be well that there be different commit- tees, and that the Committee on Agriculture should not include the Committee on Mining. They should be separate and distinct. Mr. blackmer. I would ask the Secretary to read the section regarding the Committee on Agriculture and Mining. Does it include agriculture, mining, and commerce? Mr. ESTEE. 'fbat is what it includes. Mr. blackmer. There is no objection to combining the subjects of agriculture and commerce, but the subject of mining should be dele- gated to a separate committee. It is very true that in other States, where they have made Constitutions, these subjects have been put into the hands' of one committee, but we have a State here in which the mining interest is larger than in any State where they have made a Constitution. As the gentleman has said who preceded me, there is a real or apparent conflict of interest between these two industries of min- ing and agriculture. I move that a separate committee be appointed on the subject of mining. Ma. ESTEE. It was understood that there would be a conflict of interest, or that there was a conflict of interest, and for that reason the committee decided to do as they did in Pennsylvania, where the mining interest is six times as much as it is here in Cal ilomia, so that the provisions of the Constitution should harmonize. It was supposed that by making dbvV Digitized by Oct. 3, 1878. OF THE CONSTITUTIONAL CONVENTION. 37 the committee large, these questions could be discussed in the committee, ud the differences settled and adjusted in the amendments reported by them. We fonnd that in Pennsylvania, New York, and in other lead- IsgStstcs in the Union, they adopted this rule. The committee thought it well to follow well established precedents in arranging the com- mittees, d we say to you, this is what other Conventions have done upon this subject, bat if the Convention desires, this portion can be recommitted and the balance of the report adopted. M«. BLACKMER. The point I made was that the mining interest ins of vital importance and that it came in (inflict with the agricul- tural interest I supposed the gentleman would take into consideration the character of the mining here. If they mine gold in Pennsylvania npon the plan we do here, then it is a parallel case. I do believe that this question ought to be separated. Ms. DUDLEY, of Solano. I move to amend the nineteenth clause hf striking out the words "mining, manufactures, and commerce." Hi. O'SULLIVAN. I move thai we consider the whole report seri- atim. Ml. EDGERTON. I do not see any rarticular affinity between the sub- jects of mining and manufacturing. The Chairman of the committee, when he says that it was supposed that it would be judicious to bring the friends of the mining interest and the friends of the agricultural interest together in consultation upon this subject, that by a comparison of views thcT might arrive at some solution of the question, has touched upon a point worthy of careful consideration, and I hope that the gentleman m>m Solano will withdraw his motion for the purpose of having this dsose recommitted and considered further. There is certainly an amnity between these subjects, but if it is deemed advisable to separate them and have a standing committee on mining alone, they can make that report Mb. DUDLEY, of Solano. With the understanding that that part of the report is to be recommitted, I withdraw my motion. Ml EDGERTON. I now move that that part of the report be ncommitted to the Committee on Rules, and that the remainder of the report be adopted. Ma. WICKE3. The action of other States on this important ques- tion in their Constitutional Conventions could not be a precedent for us. Mining is a large and important interest in this State, and would seem to call for a special Committee on Mining. I do not see that there oQtht to be any conflict between the rAining and agricultural interests, and we should' endeavor to harmoniie them as much as possible ; there- fore, 1 second the motion to recommit. The motion of Mr. Edgerton prevailed, and the President announced the report adopted, with the exception of the nineteenth clause. Tbs president. The question now recurs on the motion to recom- mit the nimeteenth clause to the Committee on Rules. Ma. BARBOUR. I did not understand the motion to be to adopt the report. TBI PRESIDENT. The motion was regularly made and has been carried by the Convention. The question now is on recomntitting the nineteenth clause to the Committee on Rules. The motion prevailed. Mb. BARNES oflered the following resolution : fnolrad, That when the mlee and ord«r of tmsfnosa for the regulation of this bodjr ira adoptod and the standing commlttaes appointed, five haadred copies thsreof tw primed for ;h« convenieacv of membefii,and that the iianiea and r«ala«nc« In 8«cia- Bsflto of the nMintwra be alM prlntMl therewith; that the oost of ancb printing be [«id Mit of the money appropriated by law for the expense of th« OonTention. Me. HAGER. The law provides that the printing shall be done at the Stole Printing Office. Ma. BARNES. I withdraw the last part of it. Ma. TINNIN. I move that the resolution be referred to the com- mittee on contingent expeii^. That is a portion of the contingent exKnaes. The motion prevailed. . FCBTHIB OBOAMIZATIOM. Ml. WATERS. I move that we proceed to the election of Assistant Secretaries. Mi. BARNES. There is a special order for eleven o'clock. Tbi president. It is moved and seconded that the Convention pnxeed to the election of two Assistant Secretaries. Carried. Ma. EDGERTON. I place in nomination E. F. Smith, of Sacramento. Ma. WYATT. I desire to place in nomination for the position of Rrat Ateistant Secretary, the name of R. D. Pitt, of Los Angeles County. Ut. HOWARD. I second that nomination. I have known Mr. Pitt for some time, and I regard him as every way competent and worthy of UuDliee. Kb. HITCHCOCK. I nominate George A. Thornton, of Sonoma. Ml. VAN DYKE. I move that both Secretaries be voted for at the Mmetime. Ut. FREUD. I would ask if these two Secretaries are to be voted for toother. Tbi PRBBIDENT. Not unless the Convention so orders. Ml. HCESTIS. I offer a resolution. Ml. EDGERTON. I understand they are designated in the law as iabttat Secretaries. I move that each gentleman voting vote for two ttatime. Ml. HVESTIS. I have introduced a resolution on that subject The Secretary read the resolution, as follows : That in the election ot Aaaistant Secretaries of thia CoDTealion, two be Tot*d for at the same time. Hi. IiASKIN. That will produce confusion, and delay this Conven- ^ Eun than double the time it would take otherwise, unless there inliMB 1 ancos and the matter is cut and dried by our friends on the opposite side of this contest. I hope this Convention will proceed to elect one at a time. Mr. edgerton. It is quite refreshing to hear the gentleman talk about caucuses, but my object is to secure an organization of this Con- vention at the earliest practical moment. We have been here four days in securing two officers. By a mathematical calculation it will take about a month longer to organize, voting in the way we have heretofore. My experience teaches me that voting for two at a time greatly focili- tatee business, when it takes the Secretary three quarters of an nour to call the roll once. Mr. LARKIN. We are not responsible for the delay. We have not come here for the spoils, and we do not ask for any of them. We wish to organize this Convention and proceed to business. Mb. McCALLUM. I ask to have the list of candidates read. The Secretary read the list. Mr. Huestis' resolution was adopted. Mb. BEERSTECHER. I would ask whether, under this resolution, it is necessary to put them all in nomination now. Tax PRESIDENT. Put them all in nomination before the vote com- mences. Mr. FREUD. By request, I have the honor to nominate for Assistant Secretary of this Convention Jas. J. Flynn, of San Francisco. Mr. Flynn is a voung man of exceptional ability and integrity and a native of Califom'a. I hope this nomination will receive your generous con- sideration. Mr. AYERS. I rise for the purpose of placing in nomination John McC«mb, Jr., of San Francisco, a young man who has had experience in public clerical office, and is well qualified to perform the duties of Assistant Secretary. On motion of Mr. Eatee, the special order for eleven o'clock was post- poned until after the election of officers. At the request of the President, Mr. Boruck came forward and called the roll. Mr. O'DONNELL. I do not think the gentleman has a right to call that roll. He is not an elected officer of this Convention. Thb PRESIDENT. The gentleman is out of order. The result of the ballot was as follows : FOR 8HITH Aim THORNTOil. Andrews, Barnes, Belcher, Biggs, Blackmer, Boggs, Boucher, Burt, Caples, Chapman, Charles, Cowden, Crouch, Dudley, of Solano, Dudley, of San Joaquin, Edgerton, Estee, Estey, Fawcett, Freeman, Garvey, Glascock, Graves, Gregg, Hager, Hale, Hall, Barry, Barton, Beerstecher, Bell, Condon, Cross, Davis, Dean, Dowling, Doyle, Evey, Farrell, Finney, Freud, Gorman, Grace, Hilbom, Prouty, Hitchcock, Pulliam, Hoge, Holmes, Reddy, Reed, Heustis, Rhodes, Inman, Rolfe, Johnson, Schell, Jones, Schomp, Kelley, Shoemaker, Keyes, Shurtleff, Lampson, • Smith, of Santa Clara, Larue, Smith, of 4th District, Lewis, Steele, Mansfield, Stevenson, Martin, Stuart, McCallum, Townsend, McComaa, TuUy, McConnell, Turner, McFarland, Van Dyke, McNutt, Van Voorhies, Mills, Walker, of Tuolumne, Moreland, Webster, Nason, Weller, Noel, Wilson, of Tehama, Ohieyer, Wilson, of 1st District, Overton, Winaas— 80. Porter, FOl PITT Aim FLTNH. Harrison, O'Sullivan, Herold, Reynolds, Herrington, Rinraold, Smith, of San Francisco, Hughey, Hunter, Soule, Joyce, Stedman, Kenny, Sweasey, Kleine, Swenson, Larkin, Tuttle, Lavigne, Vacquerel, Walker, of Marin, Lindow, McCoy, Wilson, Morse, West, Nelson, Wickes, Neunaber, White, O'Donnell, Wyatt— 48. Barbour, Berry, Brown, FOB PITT ARD TBOBMTOit. Heiskell, Tinnin, Murphy, Waters— 8. Swing, FOR emTB AMn mccohb. Ayers — 1. FOR THORKTOR AND MCCOHB. Filcher— 1. FOB SHITH AMD FLTNK. Harvey — 1. Digitized by Google 38 DEBATES AND PROCEEDINGS Thursday, FOB Fin AND MCCOHB. Howard — 1. Whole niimtwr of votes cart 143. Kece^arr to n rJioice. — 72. Mr. fliiiitli rfi'cived 83. Mr. ThorDliiii n-ceived 92. Mr, ritt r^ct'ivi'^U 59. Mr. Flynti rpwived 62. Mr. M(-l'miil) n-iiiived 3. Bniitli aud TLomtnn were declared elected. Mr. ESTEE, I move that we proceed with the next regular order of bu!jnp«9 — IhP plectifin of a 8ergeant-at-Arms. Mr. McCUJI.^S. 1 withdraw the name of Mr. French, and tender hiB thnnkB to Ibo ftotitlemen who supported him yesterday. Mr. Tt'LLY. I withdraw the name of Mr. Farrelly. Me. O'DONNELL. I move to take a recess until two o'clock , this aAijmoon. Ii0«t. The roll WDA «4lle4 en nominations for Sergeant-atrArms, with the following renuU ; FOB 8TEWABT. AvoT.s, Heiskell, Walker, of Tuolurane-3. FOB M08BLT. Harvpy, Hilbom, Nason — 3. FOB SHBBWOOO. Andrews, Hitchcock, Prouty, Barnes, Hoge, Pulliam, Belcher, Holmes, Reddy, Bigge, Huestis, Seed, Bo^^, Inman, Rhodes, Boiifhpr, Johnson, Rolfe, Bun, Jones, Schell, Cnplefl, Kelley, Bchomp, Chapninu, Keyes, Shoemaker, Charles, Lampson, Shurtleff, Cowden, Larue, Smith, of Santa Clara, Hreuch, Lewis, Smith, of 4th District, Dudley, of Solsino, Mansfield, Steele, Diidleyiof Sail Joaqtiin, Martin, • Stevenson, Dunliip, McCallum, Stuart, Eflgnrtoti, McComas, Tinnin, Estee, McConnell, Townsend, Eetcy , McFarland, Turner, Frecdian, McNutt, Van Dyke, Garvey, Mills, Van Voorhies, GlBscork, Moreland, Webster, Graves, Murphy, Weller, Gregg, Noel, Wilson, of Tehama, Hager, Ohleyer, Wilson, of Ist District, HuJe, Overton, Winans — 77. Hall, Porter, FOB IHOX. Berrr, Filcher, TuUy, Bliickjner, Howard, Waters — 8. Brown, Swing, FOB O'CORMOB. Barbour, Harrison, O'Sullivan, Barrj', Herold, Reynolds, Bartdn , Herrington, Ringsold, Beerstechor, Hughey, Smiu,of San Francisco, Bell, Hunter, Soule, Condon , Joyce, Stedman, Crosfi, Kenny, Sweasey, Davis, " Eleine, Swenson, Dean, Larkin, Tuttle, Dowlitig, Lavigne, Vacquerel, Doyle, Lindow, Walker, of Marin, Evey, McCoy, Wellin, Fan-pit, Morse, West, Finney, Nelson, Wickes, Freud, Neunaber, White, Rormsn, O'Donnell, Wyatt — 49. fimcc, Whole number of votes cast— 1» 143 Neeesaary to a fholce 72 Mr. Stewart rereived 3 Mr. Mosely ri'ecived 3 Mr, Sherwujd n?ceived 77 Mr. Knox received 8 Mr. O'Connor A?peiYed 49 Mr. fSHERWOOD was declared to be duly elected Sergeant-at-Arms. Mb, O'DOXNELL. I now move that these clerks that were elected wa,lk forward aod Uike their seats at the desk. Mb, EDGEHTOX. The law requires that these gentlemen shall exe- cute a bond bvforc^ entering upon the discharge of their duties, and that bond ha^ to be. executed. Trae TRESI DEN T. The Convention will proceed to the election of a Preeidfiiit pro tern. Mr. BARNES. I would suggest, as the Secretary has a very bad ooldji that until the btdloting is over Mr. Boruck continue at the desk. The president. It is so ordered. Mb. WILSON, of San Franqisco. I have the honor to place in nom- ination for the position of President pro tem., a gentleman so well known throughout the State of California, and to all of us here, that any eulogy upon him seems to be entirely a matter of supererogation. I refer to the Hon. Isaac S. Belcher, of Yuba County. His character is so well known for probity, honor, fairness, and impartiality, that he cannot but make us an excellent President pro tem. I therefore place him in nomination before this body for that position. Mr. larkin. I rise for the purpose of placing in nomination for this position a gentleman from the southern portion of the State, who has been an old resident of the State, and if elected to that position I believe will make an excellent officer. I believe that he is a represen- tative man of the interests of the State, a true man in all the walks of life. I nominate N. G. Wyatt, of Monterey. ' The roll was called, with the following result : FOB bilchbb. Andrews, Harvey, Porter, Ayers, Hilbom, Prouty, Barnes, Hitchcock, Pulliam, Biggs, Hoge, Reddy, Blackmer, Heustis, Reed, Boggs, Inman, Rhodes, Boucher, Johnson, Rolfe, Burt, Jones, Schell, Caples, Kelley, Schomp, Chapman, Keyes, Shoemaker, Charles, Lampson, Shurtleff, Cowden, Larue, Smith, of Santa Clara, Crouch, Lewis, Smith, of 4th Diet., Dudley, of Solano, Mansfield, Steele, Dudley, of Ban Joaq'n, Martin, Stevenson, Dunlap, McCallum, Stuart, Edgerton, McComas, Swin^, Estee, McConnell, Tinnin, i Estey, McFarland, Townsend, Fawcett, McNutt, Tully, Filcher, Mills, Turner, Freeman, MoSat, Van Dyke, Glascock, Moreland, V&a Voorhies, Graves, Murphy, Walker, of Tuolumne, Gregg, Nason, Webster, Hager, Noel, -Wilson, of Tehama, Hale, Ohleyer, Wilson, of 1st Dist, Hall, Overton, Winans— 84. FOB HOTABD. Brown, Holmes, Wyatt — 4. Heiskell, FOB WTAIT. Barbour, Grace, O'Donnell, Barry, Harrison, O'Sullivan, Barton, Herold, Reynolds, Beerstecher, Herrington, Ringgold, Bell, Howara, Smith, of San Francieoo, Beny, Hughey, Soule, Condon, Hunter, Stedman, Cross, Joyce, Sweasey, Davis, Kenny, Swenson, Dean, Kleine, Tuttle, Dowling, Larkin, Vacquerel, Doyle, Lavigne, Walker, of Marin, Etey, Lindow, Waters, Farrell, McCoy, Wellin, Finney, Morse, West, Freud, Nelson, Wickes, Gar^-ey, Neunaber, White — 52. Gorman, Whole number of votes cast 144 Necessary to a choice 73 Mr. Belcher received ' 84 Mr. Wyatt received 52 Mr. Howard received 4 Mb. BELCHER was declared to be*duly elected President pro tem. The PRESIDENT. Nominations are in order for Minute Clerk. Mb. CAPLES. I rise, Mr. President, to place in nomination for the position of Minute Clerk, E. L. Crawford, of El Dorado County. I believe I may be permitted to say, Mr. President, that Mr. Crawfonl is eminently qualified to fill the duties expected of him in this position. He has served several terms in a similar capacity in this chamber, and I believe that gentlemen who are conversant with his record and his abil- ity will bear me out in the assertion that he is eminently qualified to discharge the duties of that position. Mb. BEERSTECHER. I present the najne of J. C. Leonard, of San Francisco. Mb. O'DONNELL. I move that we adjourn until two o'clock F. h. Lost. The roll was called, with the following result : FOB CBAWFOBD. Andrews, Biggs, Caples, Ayers, Blackmer, Chapmao, Barnes, Boggs, Charles, Belcher, Boucher, Cowden, Beny, Burt, /^'^A'/^z-sT/r* Digitized by VjOOQ IC Oct. 3, 1878. OF THE CONSTITUTIONAL CONVENTION. 39 DwUeyjOfSan Joaquin, Lampson, Rolfe, DunUp, Larue, Schell, Edgerton, Lewis, Schomp, &toe, Mansfield, Shoemaker, Brtey, Martin, Shurtleff, Fawoett, McCallum, Smith, of Santa Clara, Pilcfaer, McComas, Smith, of 4th District, Carrey, HcConneli, Steele, GlascxKk, HcFarland, SteTenson, Grnres, McKutt, Stuart, Gregg, Hills, Swing, Eager, Horeland, Tinnin, Haie, Murphy, Townsend, HaU, Kaaon, Tully, Hitchcock, Noel, Turner, Hoge, Ohleyer, Van Dyke, Holmes, Overton, Van Voorhies, Heostis, Porter, Walker, of Tuolumne, Inman, Prouty, Waters, Johnson, PuUiam, Webster, Jon«, Roddy, Weller, KeUey, Heed, Wilson, of Ist District, Keyee, Rhodes, Winans — 84. FOB LEONARD. Barbour, Grace, O'Donnell, Bany, Harrison, O'Sullivan, Barton, Herold, Reynolds, Seentecher, Herrington, Ringgold, Bell, Hughey, . Smith, of San Francisco, Brown, Hunter, Stedman, Condon, Joyce, Sweasey, CroM, Kenny, Swenson, Davis, Kleine, Tuttle, Dean, Larkin, Vaoquerel, Cowling, Lavigne, Walker, of Marin, Doyle, Lindow, Wellin, Evey, McCoy, West, Farrell, Morse, Wickes, Finney, Kelson, White, Freod, Neunaber, Wyatt— 4S. Gorman, Whole number of votes cast 140 Keceaeary to a choice 71 Mr. Crawford received 84 Mr. Leonard received &0 Scattering . S Mb. CRAWFORD waa declared duly elected Minute Clerk. M'B. HALL. I beg leave, sir, to present to the consideration of this Convention, for the office of Journal Clerk, the name of George E. McStay, a resident of the County of San Joaquin. I can vouch for him myself, personally, as being a man of honor and probity, and one that, in my judgment, is altogether qualified to discharge the duties of this position. He is not widely known, sir, but he is favorably known where to be favorably known is the highest honor — among his friends and neighbors at home. I believe, sir, that if Qeorge E. McStay shall be the choice of this Convention you will find in him an honest, painstaking, faithful, and efficient officer. I ask for him the {avomble consideration of this Convention. Mb. BARRY. It would aeem like a waste of time for any gentleman Dpon our side to mention any one for a position in this Convention, but at the same time I have a gentleman who is eminently fitted for this posi- tion by nature, education, and experience. For several years prior to coming to this State he filled the position of Assistant Secretary in the Nebraska State Senate, and discharged the duties of that position with credit to himself and that body. The gentleman I place in nomination is J. R. Patrick, of Sierra County. He is a gentleman in every sense of the word, and I am satisfied that if he were selected by the members of this Convention as Journal Clerk, be would discharge the duties in an efficient and able manner. The roll was called, with the following result: rOB HC8TAT. Andrews, Glascock, McCallum, Ayera, Graves, McComas, Barnes, Gregg, McConnell, Bekdier, Hager, McFarland, KggK . Hale, McNutt, Blaekmer, HaU, Mills, Boggs, Harvey, Moreland, Boocher, Hilbom, Murphy, Burt, Hitchcock, Nason, Copies, Hoze, Koel, Chapman, Holmes, Ohleyer, Charles, Heustis, Overton, Cowden, Inman, Porter, Cnncfa, Johnson, Prouty, Dudley, of Solano, Jones, FuUiam, Dudley, of San Joaquin, Kelley, Reddy, Danlap, Keyes, Reed, Edgwton, Lampoon, Rhodes, Estee, Larue, Rolfe, B«^, Lewis, Schell, Fmett, Mansfield, Schomp,. ftmaua, Martin, Shoemaker, | Shurtleff, Swing, Walker, of Tuolumne, Smith, of Santa Clara, Townsend, Webster, Smith, of 4th District, Tully, Weller, Steele, Turner, Wilson, of Tehama, Stevenson, Van I)yke, Wilson, of 1st District, Stuart, Van Voorhies, Winans — 84. rOB FATBtCK. Barbour, Gorman, O'Donnell, Barry, Grace, O'Sullivan, Barton, Harrison, Reynolds, Beerstecber, Heiskell, Ringgold, Bell, Herold, Smith, of San Francisco, Berry, Herrington, Soule, Brown, Howard, Stedman, Condon, Hughey, Sweasey, Cross, Hunter, Swenson, Davis, Joyce, Tinnin, Dean, Kenny, Tuttle, Dowling, Kleine, Vacquerel, Doyle, Larkin, Walker, of Marin, Evey, Lavigne, Waters, ^ Farrell, Lindow, Wellin, ^ Filcher, McCoy, West, Finney, Morse, Wickes, Freud, Nelson, White, Garvey, Neunaber, Wyatt^-67. Whole number of votes cast 141 Necessary to a choice 71 Mr. McStay received 84 Mr. Patrick received 57 Mb. McSTAY was declared to be duly elected Journal Clerk. Me. CONDON. I desire to place in nomination for the position of Assistant Sergeant-at-Arma, a gentleman who is competent, and I am confident, if elected to this position, will do credit to himself and this Convention — Thomas Donnelly, of San Francisco. Mb. AYERS. I nominate A. H. Miller, of Los Aneeles; a gentle- man fully qualified to fill the position, and who will reflect honor upon this Convention if elected. Mb. garvey. I nominate P. H. Keene, of Calaveras. Mb. SHURTLEFF. I nominate Benjamin Chambers, of Stanislaus County. The roll was called, with the following result : FOB CHAHBKBS. Andrews, Harvey, Pulliam, Barnes, Hilbom, Reddy, Belcher, Hitehcock, Reed, Berry, Hoge, Rhodes, Biggs, Heustis, Rolfe, Boggs, Inman, Schell, Burt, Johnson, Schomp, Caples, Jones, Shoemaker, Chapman, Kelley, Shurtleff, Charles, Keyes, Smith, of Santa Clara, Cowden, Lane, Smith, of 4th Dist. Crouch, Lewis, Steele, Dudley, of Solano, Mansfield, Stevenson, Dudley,of San Joaquin, McCallum, Stuart, Dunlap, McConnell, Swing, Edgerton, McFarland, Townsend, Estee, McNutt, Tully, Estey, Mills, Turner, Fawoett, Moreland, Van Dyke, Freeman, • Murphy, Van Voorhies, Glascock, Naaon, Waters, Graves, Noel, Webster, Gregg, Ohleyer, Weller, Hager, Overton, Wilson, of Tehama, Hale, Porter, Wilson, of Ist Dist. Hall, Prouty, Winans— 78. FOB DOMMILLT. Barbour, Grace, O'Donnell, Barry, Harrison, O'Sullivan, Barton, Herold, Reynolds, Beerstecher, Herrington, Ringgold, Bell, Hughey Smith.of San Francisco, Condon, Hunter, Soule, Cross, Joyce, Stedman, Davis, Kenny, Sweasey, Dean, Kleine, Swenson, Dowling, Iiarkin, Tuttle, Doyle, Lavigne, Vacquerel, Evey, Lindow, Walker, of Marin, Farrell, McCoy, Wellin, Finney, Morse, Wickes, Freud, Nelson, White, Gorman, Neunaber, Wyatt— 48. FOB MILLEB. Avers, Heiskell, McComaa, Blaekmer, Howard, Tinnin, Brown, Martin, West— 10. Filcher, Digitized by VjOOQ IC 40 DEBATES AND PROCEEDINGS Thursday, Walker, of Tuoluiniie-6, POB KIKNK. Oarroy, Lampaon, Holmes, Beddy, Whole number of votes cast 143 Necessary to a choice „ 72 Hr. Chambers received 78 Mr. Donnelly received 48 Mr. Miller received 10 Mr. Keene received & Mb. chambers was declared to be duly elected Assistant Sergeant- at-Arms. OK ADJODBKHBIIT. Mb. E8TEE. I move that when we adjourn to-day we adjourn to meet on Monday, at one p. u. The reason for my motion is this, that the Chair has had no opportunity to appoint committees. There would be no reason for sitting here; there is nothing that could be done. I hope that the motion will prevail, as it will take at least a couple of days to complete the rules. The rules that govern a body of this kind are very dilTerent from the rules that have been adopted by the Assembly, and therefore I hope that this action will be taken by this CoDvenliki. Mb. BEERSTECHER. I would call attention, sir, to the provision in the clause, namely, section live of the Act calling this Constitutional Convention : " Provided no compensation shall be allowed delegates after the expiration of one hundred days. Ko pay shall be allowed for any recess longer than three days at one time." I desire to oppose this motion, and call for the ayes and noes. Mb. ESTEE. I wish to state, first, that there are only three days; and, second, that I do not know as anybody wants any compensation if they do not do anything. It is only three days from now until Monday. Mr. HAUEK. The rule that has been adopted heretofore in the Leg- islature, with the same clause in the statute, nas been that an adjourn- ment for more than three days could only be had by a concurrent vote of the Senate and Assembly, but in the other case it requires a mere vote of either chamber. It was held there, on various occasions, that we could adjourn from Friday until Monday ; but if we adjourn lo-day , it is beyond the three days. Sunday counts as a day. I would therefore move to amend so that when we adjourn to-morrow morning at recess, we adjourn until Monday. We may probably not get through with this Phono- graphic Reporter matter until to-morrow morning; and if it is late this afternoon, nobody could go down to the city. I propose that we adjourn to-morrow, after the morning hour, until Monday. Mb. BARBOUR. I shall vote against this proposition to take this recess until I see a better reason assigned than want of time to prepare rules. I presume there is not a gentleman in this Convention that can- not in an hour's time prepare, from the innumerable rules already in the State Library, a set of rules sufficient for the government of this Convention. I maintain, sir, that we have no ri^ht, unless for a more potent reason than that of our own business, to adjourn over, and to draw the pay from the treasury for being here, there, and everywhere, when we are expected to be here performing the duties we have been called to per- form, and that is, preparing a Constitution. I further object, sir, to this adjournment, because this Convention is not yet pcoperly or sufficiently organized. There are vacancies here to be filled, which ought to be fillea. Portions of the people of this State are unrepresented. I insist that these vacancies ought to be filled. Therefore I shall oppose this motion. I cannot see any reason for this adjournment that is worthy of consideration. Me. WINANS. The language of the Act is, that members shall draw no pay for an adjournment of more than three days. If we adjourn on Thursday afternoon until Monday, the recess is during Friday, Saturday, and Sunday, because we meet again on Monday. By no possible inter- pretation that I can comprehend, can that be construed into a four days adjournment — from Thursday afternoon until Monday morning. There are but three intervening days. If we leave here on Thursday, or cease work here on Thursday afternoon and resume on Monday, we have a recess of more than throe 'days. It is certainly very important that there should be an opportunity for completing our organixation, and the reason for the adjournment is as much on account of giving the Presi- dent time to arrange bis appointments as for the Committee on Rules. Three days would be none too long. I shall therefore support the reso- lution, and I think that every member, on reflection upon the subject, when he considers how much there is to be thought of outside of the action of this body, will see that three days is not too long for us to con- sider what to do and take steps to complete our organization b^ getting a full report of this committee, and the action of the Chair in refer- ence to the appointment of committee. Mb. ESTEE. I will withdraw my motion. The PRESIDENT. The gentleman cannot withdraw a motion with- out consent of the Convention. The question is, on the adoption of the resolution offered by the gentleman from San Francisco, Mr. Estee. Mb. McCALLUM. I cannot agree at all with the idea that there is not work enough for the balance of this week, however pleasant it may be for us who live in the neighborhood of the Bay to visit our homes. With such a presiding officer as we have, we can, in fact, proceed with- out special rules until the work of the Convention is laid out And, sir, the special rules — if there is always parliamentary law for all par- liamentary bodies — these special rules can be adopted, I undertake to say, in a session of two hours of the Committee on Rules; my idea is that that committee ought to report to-morrow. These rules will per- haps involve some discussion. That will take some time. That ought to be settled this week. I think, further, that these important committees ought to be appointed before the adjournment this week. I believe further, sir, that these vacancies ought to be filled before these important committees are apjiointed. So it cannot be that the adjournment is wanted for want of business to do, if we want to do it. Mr. WILSOK, of San Francisco. I find that in some cases we make baste by moving slowly. I am satisfied that this adjournment embraces but three days; we are here to-day, Thursday; we will be away on Friday, Saturday, and Sunday; we will be here again on Monday. It will not be an acyoumment for more than three days. It is really a question of only Friday and Saturday, because we would not work on Sunday. I have obtained from the Chairman of the committee on stand- ing committees a memorandum as to the number of appointments the President has to make upon these committees. There are some twenty- two committees, involving the appointment of two hundred and sev- enty-three members. Now, if anybody thinks the Chair has not got quite an arduous duty to perform, he is mistaken. The Chair will deure to select men of experience as Chairmen of these several committees. He wants to distribute the labor among these several gentlemen that are here., For Chairman of the Committee on Agriculture he wants a gentleman experienced in that line of business, and so with the other committees. I should not myself like, in two days, to arrange the organization of these committees, and who would announce himself as able to fill properly these committees within two days time? Besides that we have the rules and regulations. The law does not require us to work nights and Sundays, but we worked pretty faithfully since laat Saturday. We have been here days and nights and I think we will save time by taking the adjournment. I think we will save money by it, and we will be in a better condition on Monday to facilitate business than if we proceed to-day.^ Me. LARKIN. The position the gentleman takes as to the duties imposed upon the President, is obviated by the fact that we have a dis- tinguished ^ntleman as President pro tem. The Chair can turn over the duties of that position to him, and then we can proceed; and the main reason why we should proceed, is to fill these vacancies. Theee vacancies should be filled before these committees are made up. We should proceed to that work of filling the vacancies. The Chair, during the time, can prepcue the committees, and the President pro tem. can fiU the chair. Mr. REYNOLDS. It seems to me that there is no need of adjourning over until Monday. There is a vast amount of business on our hands here that can just as well be disposed of now as any other time. Here is not only the question of filling vacancies in the Convention, but also the matter of reporting and pnnting the debates. That is a question which will require, perhaps, one, or two, or three days to seUle, if the experience of yesterday is any guide to go by. We have to determine first, whether we will have a reporter or not; whether he will report the debates verbatim or not; and then we have to make provision for printing them. That is another question. Mr. DUDLEY, of Solano. I move we now take a recess until two o'clock. Mb. HAGER. a motion to adjourn itself is a privileged question. A motion to adjourn to a fixed time is not, and we have a question pend- ing. Mb. EDGERTON. I move that the matter under consideratiom be made the special order for half-past two o'clock this afternoon. Mr. WILSON, of San Francisco. We bad better make it two. Mr. MURPHY. Make it two o'clock. Mr. EDGERTON. I accept the amendment. The motion prevailed. On motion of Mr. LARKIN, the Convention took a recen until two o'clock p. M. . ■ AFTERNOON SESSION. The Convention reassembled at two o'clock and fifteen minutes p. m.. President Hoge in the chair. Roll called and a quorum present. A QGBSTIOK OP PBtVILIOB. Mb. WHITE. Mr. President: I desire to ask for a privilege, and to take your attention for a moment A ^ntleman on this floor is reported in the morning papers of San Francisco to have made a most unwar- rantable attack upon about one third of the members of the Convention, and I desire to say a word in reply. Mr. BARNES. Mr. President: I rise to a point of order. It is not his privilege to make a speech, but to state the matter of complaint, or submit it in writing. Mb. WHITE. I ask the Secretary to read the passage of which com- plaint is made. Thc PRESIDENT. The gentleman will please state his question briefly, without any remarks. Mb. WHITE. I ask the Secretary to read the remarks, and then I will say a few words. the Secretary read the following, being a quotation from the San Francisco Call's report of last night's Non-Partisan caucus: "8 H. Wilson nUd Uiat memben of all Uie dilTertnt parties had been slecteil Id opposilion to the Worklngmon's party, aad they had 1 fly one aulid votes on ev«v qnratloii, being well orgaulied. Thus, oTary day, two thirds of ths OoDTentlon an benten by one third, and Ihe rnuon ii tliey did not know one another. All have a common cause agalnet Socialists and Oonimunista, who are endearoring to ander- miiie the State. Do we know what Is taking place among those Communlats who are meeting in other chambers? 01 coiime not, because they are in prirate. The small number wields for good or evil the destiniM of the Convention . It is propoaed to harmonise views, and see it we cannot elect the beet men, without wnngUng." Thi PRESIDENT. The Chair decides that this is not a question of privilege, having been spoken outside of the Convention. Mb. WHITE. Very well, sir, I appeal from the decision to the house on that question. Mr. WYATT. I second the appeal. The ayes and noes were demanded by Messrs. Beerstecher, O'Sulli van. and Wyatt Me. HALE. Is the question debatable T Thb PRESI»ENT. I will state the question. The gentleman from Santa Cruz rises to a question of privile^, and ha^^read an extract from Digitized byLjOOQlC Oct. 3, 1878. OF THE CONSTITUTIONAL CONVENTION. 4] a pablic journal, purportinz to be a report of remarks made by a cer- tain gentlerain outside of tnis Convention. The Chair decides thnl it is not a question of privilo^, and from that decision the gentleman lakes an appeal to the Convention. The question is whether the decis- ion of the Chair eball stand as the judgment of the Convention, and opon that the ayes and noes are demanded. Ma. HOWARD. Is the appeal debatable? Thi president. 1 think it is, sir. Ma. WHITE. My object is, sir, to set a portion of this Convention in good feeling and harmony with the others, and my only object is to prodnoe harmony. If we were what we arc described in that paragraph we would be unworthv of positions on this floor. Thb president. ' The gentleman is out of order. The question is upon sustaining the decision of the Chair. You will confine yourself to toat question. Mk. white. I presume this ought to be a subject for consideration here. We ought to be allowed to relieve ourselves from accusations (oming frona individuals as well as from public journals. In Congress, members frequently rise to questions of privilege, on account of articles appearing in the public journals. It is done in Congress constantly, and I hope, gentlemen, you will stand up and allow us to have the pririlege of explaining. We mean nothing unfair. All we ask is a air show, and to be treated as equals. Kg. McKARLlAND. It seems to me that the Chair should be sus- tained, for this reason : I suppose we are likely to be pestored with ques- tions of personal privilege. Now, I understand that (question arises «hen some charge or statement is made about some individual member of the body. I don't understand that any gentlemen here has a right to rise to a question of personal privilege bemuse some political party of whieh he is a member has been assailed. I might say I belong to the Republican party, and that certain gentlemen in this house hM called that party a set of thieves, but we certainly could not hold that to be a question of personal privilege. If these ore to be considered ques- tions of privilege, you might spent the whole of the session here in that way. If there had been any allusion to the gentlenukn from Santa Cnii, Mr. White, I would have no objection. But it is not about the gentleman, but about his political party, and that certainly is not a qnestioD of personal privilege. Me. white. It IS about fifty-one of the members of this Conven- tion, and they are individually alluded to as the fifty-one members from the other side of the room. Mt. INMAN. I think this whole thing is out of order, and to settle the thing right here I move to lay the ap^al on the table. The ares and noes were demanded oy Messrs. Becrstecher, O'Sulli- van, and White, and the motion to lie on the table prevailed by the following vole : Noel, Ohleyer, Overton, Porter, Prouty, PuUiam, Reed, Rhodes, Rolfe, Schell, Schomp, Schafter, Shoemaker, Shurtlefl", Steele, Stuart, Townsend, Tully, Turner, Van Dyke, Van Voorhies, Wilson, of Tehama, Winans— 70. Reddy, Reynolds, Ringgold, Smith, of 4th District, Smith, of San Francisco, Soule, Stedraan, Stevenson, Sweascy, Swenson, Swing, Tuttle, Vacquerel, Walker, of Marin, Walker, of Tuolumne, Webst«r, Weller, Wellin, West, Wickes, White, Wyatt— 66. Banies, LT' BeSir, Hall, Berrr, Harvey, Bigpi, Hilbom, Blaekmer, Hitchcock, B»gg», Holmes, Boucher, . Bart, / Hnestis, Inman, Caples, Johnson, Chapman, Jones, Charles, Kelley, Cowden, Keyes, Crouch, Larue. Dndley , of San Joaquin, Lewis) Dudley, of Solano, Martin, Edgeiion, McConnell, EHee, McFarland, Estey, McNutt, Fawcett, Mills, Garvey, Mor«land, Glaswk, Murphy, Graves, Nason, Gregg, Andrews, Heiskell, Ayen, Herold, Barbour, Barton, Herrington, Howard, Beentecher, Hughey, Bell, Hunter, Condon, Joyce, Cnw, Kenny, DavU, Kleine, Dean, Lampson, Larkin, Bowling, Doyle, Lavigne, DtuUap, Lindow, Ever, Mansfield, Fariell, HcCallum, Fifcher, McComas, Fmney, McCoy, Freeman, Morse, Fiend, Nelson, Gorman, Nennaber, Giaee, O'Donnell, Hatriaon, O'SulUvan, Mr. BGERSTECHER. There must be a mistake in the count, as I have kept it myself, and it doe« not tally with that of the Secretary. PHONOORArBIO KtrORTBRS. The PRE.SIDENT. The next thing in order is the special order in relation to an official short-hand reporter, and his compensation. Tb^ report of the committee is before the body for their action. Mr. ATERS. I call for the reading of the/eport. The report was read as follows: Tu the PrMldent and meml)enf of the Convention: Tour commktco appointed to examine into the mbject of reporting the procecdingt and delj«t«aof this Conveo. tiun, hfg leave to labmit the following report: That the Convention elect a Phono- graphic Reporttn-, who shall be empowered to aelect his aasistant, the two tu be the shorthand roporten of this Convention, and to tM entitled to the per diem fixed bj law fur their eervicea. That tlie reporters so selected be required to furnish a iong- liand vertMfctim report of the proceedings of this Convention on the following terms, to wtt: at the rate of twenty cents per folio, with the flirtlier provision that if the Convetitton last one hundred days, the entire oompeniation aald reporters shall receive fur transcribing their notes into longhand shall not exceed six thousand dollars. That the reporter who may be elected by this Convention Hhail enter into g(K)d and Rufflcient lionds, in thesum of ten thousand dollars, for the efficient and faithful perfurmatice of his dutj^Bnd guarantee the State against recovery by him of any cumpensatiun fur his services in this connection, exceeding the gross mm of eight thousand dollars, including the per diem of himself and aaaiatant and coat of transcribing, for the entire session, should it last one hundred daya, or twenty cents per (uliu fur transcribing Into longhand their notes should tha seseion not last one hundnMi daya. JAMES E. UUBPHT, Chairman. Mr. ESTEE. At the request of several members, I move that Colonel Barnes be added to the Committee on Rules, as he has had experience in that line. The motion prevailed. Mr. ESTEE. The first thing in order is the motion of the gentleman from San Francisco, that when this Convention adjourns to-day, it ad- journ until Monday, at one o'clock r. u. Mr. van dyke. I move that it be postponed. Mr. McCALLUM. I move that it be laid on the table — the motion that when we adjourn we adjourn to meet on Monday. The motion prevailed, and the motion laid on the table. Mr. AYERS. Mr. President : In explanation of this report I will state to the members of the Convention that under this arrangement by no possibility could the expense of reporting and transcribing the pro- ceetlings of this Convention exceed the sum of eight thousand dollars. That would be the limit that it could reach for a session of one hundred days. If, however, the session should be shorter, the State would have the advantage of the economy in the amount of matter that would have to be handled. The committee have examined the question thoroughly, and if its report is carried out, and the bond executed, the entire expense of the Convention will not exceed that laid down. That, however, is entirely disconnected from the printing. The printing will be done at ^he State Printing Office, and as I understand it there is a separate appropriation to pay for it. I have made a hasty estimate of what the printing will cost. A volume of eight hundred pages, of about the same size as the Illinois and Ohio debates, in the same form and same type, will cost for one thousand copies |ierhaps two thousand dollars, "rho entire cost, therefore, of the reporting and transcribing, and the printing of the debates and proceedings, will not exceed that sum. Mr. FA'.VCETT. How many volumes will this report fill if the Con- vention should last one hundred days. Mr. AYERS. I hold in my hand the debates of the Ohio Conven- tion, and they consist of two volumes: the one before me having one thc«isand three hundred and thirty-three pages. I don't know how long that Convention lasted, but my estimate is made on eight hundred pages, of about that size [showing], perhaps smaller type. Mr. FAWCETf. I venture to say that it will be a physical impossi- bility, if this Convention remains in session one hundred days, to put the debates ii^hat small a space. In my judgment it will require at least three volumes. Mr. .\YER8. I understand from Mr. Van Dyke that the Ohio Con- vention was in session for one hundred and ninety days, and the reports only fill two volumes. Mr. EDRERTON. I hope the gentleman will allow me to answer the question as to the time covered by these reports. I see this volume covers a period intervening between the third of May and August eighth — three months — and still there is another volume. Mr. FAWCETT. I proceed upon the theory that the debates will fill (ive volumes. The debates and proceedings cannot be fairly com- pressed into one volume, unless we lay down very stringent rules as to what shall be printed. Now, if we undertake to print these debates, I think the sentiment of the Convention will be in favor of full reports; that no committee and no reporter can be entrusted with the power to say what matters shall or snail not be printed, and I say it will be impossible to compress the debates in one or two volumes. It will not do to proceed upon that idea, so that it is safe to say that the total cost will exceed ten thou-saud dollars. Let that be understood. There is no question about it. The total expense will be at least as fnuch as fifteen uiousand dollars. I am desirous of getting; at the facts of the case, and the cost of the work before voting upon it, and I don't desire to vote uix)n it under any misapprehension. The gentleman cannot point to a single instance in the United States where the reports of the debates and proceedings of a Convention of this kind have not exceeded the figures which he has made. He has had a great deal of knowledge on this kind of work, but the proposition that the composition, printing, and bindin,ut two volumes. Mb. FILCHER. I rise to a point of order. The re|K>rt of the com- mittee only contemplated the securing of a longhand copy of the debates and proceedings. The question of printing was not mentioned in the report, and my point is, that the gentlemen who are discussing the print- ing are going away from the point. I insist upon my point of order. Thii president. The Chair cannot undertake to limit the gentle- men in their remarks. The point of order is overruled. Me. swing. The Ohio Convention was^ session, actual session, one hundred and eighty-eight days, and the reports were published in full. The reports comprise some speeches which nave no more in them than a great many speeches made in this Convention, and the actual cost of the reporting and transcribing amounted to thirteen thousand six hundred and ninety-five dollars ana seventy-eight cents. The printing amounted to a little over eight thousand dollars. That statement reached up to the eighth day of May, eighteen hundred and seventv-four, and the Convention adjourned on tlie eighteenth day ; so that it does not com- prise the last ten days, but it would give reports for one hundred and seventy-eight days. Now this Constitutional Convention cannot be in session more than seventy -five or eigiitv days, and I believe these reimrta will be contained in two volumes, and ibat will bring the expense within eight thousand or ten thousand dollars altogether. Mb. BEERSTECHEB. I believe I offered a resolution on this sub- ject this morning, and I desire to call it up in connection with the report of the committee. I desire to offer it as a substitute for the report of the committee. Mr. freeman. There seems to be so wide a difference in regard to the probable cost of doing this printing, that I move that a committee of five be appointed to ascertain the probable coet of printing the re{>orts of this Convention, and that the report now under consideration be deferred until we have the report of tne committee to be appointed. Mb. ROLFE. I think the gentleman from Sacramento is out of order. I think I was myself the one who spoke about the printing. It is the reporting we have now before ua. This matter of the printing is another thing, and can be taken up at another time. We can print it ourselves, or leave it to the Legislature, or not have it printed at all. Mr. LARKIN. r move to lay the whole subject-matter on the table until we get further information. Mb. HAGER. If this motion is debatable, I want to say that under this Act we are bound to elect a reporter. If it goes to the table the rule requires two thirds to take it up again. Aia. McCALLUM. The motion is to lie on the table until we get farther information as to this subject, and there is no proposition made to get that information officially. The PRESIDENT. It will only require a majority vote to take it from the table. Mb. INMAN. These gentlemen are not going to stop here for a month and report our proceedings for nothing. I would like to know the gentleman's object. I can't see no reason for such a motion. I would like to have him state the object. If it is only for de'ay I hope gentlemen will gee the impropriety of it. Let us get down to business. This is only buncomlje. For my part I have had enough of their bun- combe. Mb. LARKIN. I will withdraw the motion to lie on the table, and ask to have it referred to some committee to make an estimate, or have it referred hack to the same committee to get the information. Mr. DUDLEY, of Solano. If it is true, as suggested by the gentle- man, that we have no authority to print these reports, but that is to be dependent on the Legislature, then I don't see (hat we have anything to do with that part of it. I suppose the law means that we are to re|>ort the proceedings, and leave it to the next Legislature to publish them or not. In that case the question of the cost of printing is not one for us to consider. Mb. AYERS. I would say that it will be useless for this Convention to have the proceedings reported unless they are to be printed. We can- not read the shorthand notes. We have authority under the law to print them, and it is necessary that they should be printed. The motion to refer back to the committee prevailed. On motion of Mr. Van Dyke, at three o'clock and nine minutes r. u., the Convention adjourned until to-morrow morning at ten o'clock. SEVENTH DAY. Sacramknto, Friday, October 4th, 1878. The Convention rea*sembled at ten o'clock a. u., pursuant to adjourn- ment. President Hoge in the chair. The roll was called, and members found in attendance as follows: PRESENT. Andrews, Beerstecher, Blackmer, Barbour, Belcher, B«gK». Barnes, Bell, Boucher, Barry, Berry, Brown, Barton, Biggs, Burt, Caples, Hughey, Rhodes. Chapman, Hunter, Ringgold, Charles, Inman, Rolfe, Condon, Johnson, Schell, Cowden, Jones, Schomp, Cross, Jovce, Shafter, Crouch, Kelley, Shoemaker, Davis, Kenny, Shurtleff, Dean, Keyes, Smith, of Santa Clara, Dowling, Kleine, Smith, of 4th District, Doyle, Lampeon, Smith, of San Francisco, Dudley . of San Joaquic , Larkin, Soule, Dudley, of Solano, Larue, Stedman, Dunla'p, Lavigne, Steele, Edgerton, Lindow, Stevenson, Estey, Mansfield, Stuart, Evey, Martin, Sweasey, Farrell, McCallum, Swenso'n, Fawcett, McComas, Swing, Tinnin, Filcher, McConnell, Finney, McCoy, Townsend, Freeman, McFarUnd, Tully, Freud, McNutt, Turner, Garvey, Miller, Tuttle, Glascock, Mills, Vacquerel, Gorman, Moreland, Van Dyke, Grace, Morse, Van Voorhiee, Gregg, Murphy, Walker, of Marin, Hager, Nason, Walker, of Tuolumne, Hale, Nelson, Waters, Hall. Neunaber, Webster, Harrison, Noel, Weller, Har\-ev, Ohlever, Wellin, Ileiskell, O'Suilivan, West. Herold, Overton, Wickes, Ilerrington, Portej, White, Ililbom, Prouty, Wilson, of Tehama, Hitchcock,, PuUiam, Wilson, of 1st District, Holmes, Reddv, Winans, Howard, Reed,' Wyatt, Huestis, Reynolds, ABSENT. Mr. President. Avers, Estee, Moffat, Campbell, Laine, O'Donnell, Ca.sserly, Lewis, Terry. Eagon, The PRESIDENT. If there be no objection, the Journal will stand approved as read. CORRECTION OF JOCBNAL. Mb. BEERSTECHER. Upon the motion to lav Mr. White's motion — being Mr. White's appeal from the decision of the Chair — upon the table, I find, upon examination, that the gentleman who kept the account at that time has made a number of errors in the vote that was taken at that time, and I would like to have the ayes and noes called as he has got them. Thk PRESIDENT. The Convention has disposed of that question. Mr. BEERSTECJIER. Mr. President: I am down in the aves and noes as voting '• aye " — to lay the appeal upon the table. I desire to have it corre<;ted. I voted " no." Mr. Volney E. Howard is on the roll as not having voted at all. The PREvSl DENT. The gentleman is out of order. The Chair has announced Mr. BEERSTECHER. I would like to have my vote corrected. I do not desire to change my vote. I voted not to lay the appeal upon the table. With due deference to the Chair The PRESIDENT. The question was disposed of finally. Mr. BEERSTECHER. I merely desire to have corrected The PRESIDENT. The Chair has announced that it cannot go back to what wos done vesterdny. Mr. HEIBKELL. Do I understand that these proceedings cannot be corrected? I supposed that the proceedings were read for that purpose. The president. The gentleman is out of order. Mr. HEISKELL. I appeal from the decision of the Chair and call for the ayes and noes. Messrs. BEERSTECHER and O'SULLIVAN also called for the ayes and noes. Mr. McCALLUM. This gentleman had no opportunity to have bis name corrected yesterday, l)ecau9e the names were not read as recorded.. Now, I Understand that any gentleman has a right to have his vote cor- rected. This is the first opportunity that he has to know that his vote is incorrectly recorded. I think the Chair misunderstands the gentle- man. The gentleman simply desires to have his vote corrected, and this is the first opportunity he has had to correct it. The president. I understand the gentleman that he wanted to go back to the whole question. If the gentleman's vole is improperly- recorded it can be corrected. Mr. JOYCE. I would like to have my vote corrected, as I understand I have been incorrectly recorded. Mr. EDGERTON. The question is whether this Journal correctly represents the vote as cast. These gentlemen may have voted under a. misapprehension. Mr. J0Y(.E. I would say that I voted "no." Mr. EDGERTON. Then the Journal ought to be corrected. Mr. stedman. I hold in my hand a tally of that vote yesterday, which I kept, and the motion to lay the appet^^olt the table ^as lost Digitized by VjOOQ IC Oct. 4, 1878. OF THE CONSTITUTIONAL CONVENTION. 43 a4k>rdin;; to that taller. I being a young man I did not like4o get up, but there is the tallv, sir. Mr. BEERSTECilER. I am satisfied that there was eight errors in the voting. Thk President, if there is any gentleman desires his vote cor- rected he can apply to the Chair and nave his vote corrected. Mb. S"WENS05. I would desire to ask how my vote is recorded? Thk SECRET.\RY. Swenson, " no." Mb. 8 WEN SON. That is all right. Mb. DOYLE. How am I recorded? Tbb secretary. "No." Mb. DOYLE. I wish to have it changed to " ave." Mb. JOYCE. How am I recorded? Thb SECRETARY. Recorded as voting " aye." Mb. JOYCE. I voted " no," sir; I want it so recorded. Mb. 'WATERS. I would like to have the Secretary announce how I Tot«d. • Thb SECRETARY. Recorded as voting "aye." ' Mb. "WATERS. That is wrong; I voted " no." Mb. HITNTER. How am I recorded? 1 voted "no." Mr. KLEINE. How I am recorded? Tbb SECRETARY. '• No." Mr. MoFABLAND. Mr. President: If upon any occasion I vote "no" and I am found to l>e recorded "aye," I have a right to correct that vot« next morning with the consent of the body. There might be a qaestjon of fact as to how I voted. I might not vote as I intended, and then certainlv I cannot change my vote next morning. If I am miarepresented, of course, with the consent of the t)onvention, I may have the correction made. It depends entirely upon a question of fact. I understand that some gentlemen are somewhat in doubt as to how they did vote. Tbb PRESIDENT. The Chair has permitted these corrections to be made. Mb. TIXNIK. That is a privileged matter with the members of this Ijody. These votes go forth to the world, as the acta of the individual members of this body, and they have a right to be placed right on that record. A mistake of a clerk ought not to be allowed to misreprexent a member. It is a personal right and every one who has voted has a rijrht to be placed on that record as he vot^'d. Mb. smith, of San Francisco. Have it read over. Tbb president. If any gentleman desires to correct his vote he has an opportunity to do so. Mb. smith, of San Francisco. It is for the reason that the men don't understand how they voted yesterday. They claim, sir, that it i; a mistake of the Secretary. I claim that the motion yesterday to lay on the table was lost. Mb. EDOERTON. I rise to a Doint of order. There is nothing before this Ifouse for discussion. The Chair has announced that if any gentleman's name is not recorded correctly, that it may be corrected. All he has got to do is to say so. Tbb president. Does the gentleman from San Francisco desire to have his vote corrected ? Mb. smith, of San Francisco. I don't know whether my vote is recorded properly or not. Thb SECKETARY. Mr. Smith is recorded as voting " no." Mb. SMITH, of San Francisco. That is correct. Mb. WICKIB. I move that the vote as recorded be read. Thb president. If there is no objection the Chair will allow the vote to be read. The Secretary read the roll call. Mb. STEDM'AN. For the information of this house I would like to hear the result of that corrected vote. Mb. van dyke. This is simply U) correct the vote of each gentle- man. Now this proceeding shows the danger that we are liable to fall into by following this plan. I understood some gentlemen distinctly to vote as recorded by the Secretary. Afterwards it is called to their atten- tion that they inadvertently voted diSierent from what they intended. and then, of course, it is thrown on the clerk. Of course every man has a right to be on the record as he votes, but he has not the right to oome here the next morning and vote as he intended to vote but did not vo4e. Thb president. If there are no more corrections the Journal will stand approved. rnosooRAPHic rkportkrs. Mb. murphy, from the Committee on Phonographic Refiorting and I^ntinjf, presented the following report: To the Pr*«ident of the Conrention : :«ir : Yonr committee on reporting tii<> proceeiiings of the Convention, liarliig had itM powers enlarged bo aa to talte in the antiject of printing the rep. rta, beg leave to aaalLe th* following report on the whole sat^ect: That the coat of reporting the pr^jceedingn and debates in abortliancl, and traimcribing them into longhand, ready finr tbe printer, will not exceed eiglit thonsand dollani fur the aeasion, if it laat one liQTMireo dBjs, and this sum inclndea the per diem of the re{K)rtera ; that if the aeu- ^oB dora iHJt iaat sed of. Mr. AYERS. I would suggestthat thereportoftbeoommiltceyestcr- day and the report to-day are connected ; that this is a subsidiary re- port to that. In that there is a clear proposition made. Mr. murphy. I move that this report be adopted and then we will vote upon the resolution. Mr. FILCHER. Mr. President, I desire to offer this resolution, for the purpose of presenting the matter in a shape that will disclose the sense of^ the Convention on the substance of the re)K>rt : Keaohied, That this GoDTention do now proceed to the election of a Phono- graphic Reporter, whose duties and paj ali&ll be govomed bj the pioTisloDS of the reports of the Committee on Beportiog and Printiog. Mr. McFARLAND. Mr. President: When the question of phono- graphic reporting first came up before this bod^r, I was in grave doubt about the propriety of the action of this body in regard to it. I cer- tainly think that we ought to have a report of the proceedings of this body. Nearly every other State of the Union which has had a Consti- tutional Convention, has submitted in a permanent form to the world its deliberations, and I have only been deterred from advocating the matter myself by a consideration of cost. I knew nothing about it my- self, and nave been waiting for information from those better informed. Now, it seems to me that we have come to a fair calculation of one portion of the cost, and we certainly know, if we adopt this resolution, the bounds which the reporter shall not exceed. It says that the whole cost of reporting and transcribing shall not exceed ei^ht thousand dol- lars, and that the gentleman we shall select shall give bonds that he will present no bill exceeding eight thousand dollars. We know, there- fore, now much that will cost at the outside. Now, the only additional cost is the cost of printing. It seems to me we ought to consider, to some extent, where that money is going. I understand that the expen- diture of public money, when it goes to an individual on a claim that is doubtful, is a very different thing from the expenditure of the same amount of money when it is distributed through a large class of per- sons. Political economy is composed of two great departments— first, the creation of wealth; second, its distribution. One party now seems to be greatly exercised about the distribution of wealth. I, sir, am not in favor at all of any of those wild schemes that have been lately agi- tatem Los Angeles, Mr. Howard, to strike out the words " whose duties and pay shall be governed by the provisions of the reports of the Com- mittee on Reporting and Printing." The resolution would then stand : B—And, " That this CoDTcotion do now proceed to the election of a Phonographic Reporter " Mr. HAGER. I have said heretofore that I thought by the Act of the Legislature we were substantially instructed to appoint Phonographic Reporters. The Act reads: "The Convention may select Phonographic Reporters and fix the amount of their compensation ; also, a Sergeant- at-Arms and one assistant." Now it is true that perhaps we may not select Phonographic Reporters under a fair ccmstniction of this Act, but Digitized by VjOOQIC Oct. 4, 1878. OP THE CONSTITUTIONAL CONVENTION. 45 I look upon it as equivalent to an instruction so far as the Legislature is concerned, ther having evidently thought that wo ought to select Pho- nographic Reporters to make a report of the proceedings and debates of this Convention. That is the view that I take of it, that it is an instruction from the Legislature, and so far as any one feela bound to follow that instruction, I think it is his duty to obey it in voting to have these proceedings reported. Me. AYER-S. In order to place the whole subject more clearly Mb. HAGER. Mr. President: lam not done. Now, in regard to the printing. We are not instructed in regard to the printing one way or the other. If we simply conclude to have the reports made they will be placed on file, and a future Legislature may order them printed or not. Now the Convention may take that view of it, to have tne pro- ceedings reported and to allow them to be placed among the archives, to be published hereafter if they see fit. I presume that by the Act we •re authorized to order the printing, inasmuch as it provides for the frintine of any other matter that may be necessary for the Convention. should say that they should be printed so that they could be placed upon our desks the morning after the debates occur. That can be done. That is the course in Congress. If they are printed at all during the session they should be placed on the desks of members on the following day. I have no desire to perpetuate my name through the printed debates of this Convention. liet it be printed or not, it is immaterial to me. I do not know that I would vote for the printing. Men can bo immortalized in books, and I understand there is a gentleman getting up the biographies of members here so that they can acquire immor- tality in that way. It is not necessary that we have these proceedings published, but tlie question is whether it is most desirable. I think, perhaps in most views it is desirable, but so far as personal considera- tions are conoemed I do not care a snap of niv finger whether they are published or not. I would wish now to make an amendment to the proposition of the member from Los Angeles, Mr. Howard. I offer this amendment: "That in the opinion of this Convention Phonographic Report«rs should be appointed to report the proceedings of this Conven- tion." That will bring the question directly before the Convention. If this resolution should pass, I should then be in fuvor of appointing a committee to interview the different rep'>rters and then report the names of those who nre competent and the price for which it can be done. I would like to have the question first decided whether we will have Pho- oogrsphic Reporters. I offer this resolution : Saolctd, That, tn the oplDion of this CanTention, Phonographic Reporton should b« ap|ioiat«d to report the proceedings of this CotiTentlun. Mr. McC.^LLUM. I rise simply for information. I heard the report of the committee, but there have been some amendments offered since that I did not hear. The PRESIDENT. The amendment of the gentleman from Los Angeles is to strike out the latter clause of the resolution, so that it will simply proceed to the election of a Phonographic Reporter. Mr. McF.\RLAND. We do not know, from the resolution, what the reporter is going to do, or what pay he will receive. It does seem to me that the fairest way is to vote upon the original resolution. Mb. biggs. I want to see the gentlemen come right square up to the question, whether thev are in favor of reporting their speecnes. The resolution offered by Mr. Filcher brings that question to a direct iasae. And I want it understood that I am opposed to the election of a Phonographic Reporter; and I must say, that I am very much sur- prised at the delegate from San Francisco, .ludge Hager, to come here and advocate the taxation of the downtrodden people of this State. The law says we may have a reporter; he says that it is implied that we should have one. Then he goes on and says, so far as he is con- cerned, he don't care whether the proceedings are reported or not. He cares not whether his name is handed down to posterity with the last declaration ; he don't care whether he cinches the people of this State thirty or forty thousand dollars. Mr. HAGER. If my friend will allow me, I said that, so far as I was personally concerned, I did not care a snap of my finger whether the debates were printed or nut; but so far as the expenses are concerned, I ear« just as much about them as the old watchdog of the treasury. [Laughter.] Mr. BIGGS. I accept the appellation. I came here pledged to the people of California, of the whole State, that I will coajterate with the men of this Convention that they shall not be taxed to death. I pro- pose to notice the remark of the distinguished gentleman from Sacra- mento, Judge McFarland. He rays every dollar is paid to the printers, and goes to the working men. Wno pays the money into the treasury? Who puts it there to be paid out? It aint the Ijondholders and mort- gageholders. It is the working men that puts this money into the treas- ury, and I want it to remain there and go out to legitimate purposes. This will amount to more than eighteen thousand dollars. I tell you, you go on and it will soon come up. Before you have spent such an amount for the purpose of having these reports — the debates reported — and they will all be lost, unless you make a further appropriation. I srant the Constitution so plain that you don't need to spend fifty-seven thousand dollars, like the Illinois Convention. And I ask this Convention to place themselves on the record for retrenchment and reform, and against robbing the State of twenty or thirty thousand dollars ; and I aak my ft-iends to stand by me, and stand by the State, and save the State that large amount of money. Mr. DOWLIKG. I would like to understand if that resolution deter- minee first, that we have a reporter, or that we are going to determine about the salary, or what the reporter will get. Now, Mr. President, if tbat is so, the proper way is, to determine what the whole thing will east, and then let us have a reporter afterwards. But it seems to me, Mr. President, that California, ever since she was admitted into the Union, was nSTer in a condition tbat she was better able to dispense with the services of a Phonographic Reporter than she is at this date. I think, sir, that she trembles from San Bernardino to Siskiyou from the amount of taxation that is already piled upon her, and I, for one, will positively, first, last, and all the time, vote against piling ony more taxation upon this State. I do it, sir, because jobs of this kind have been attempted many a time before, and were carried 4ut very successfully, in order to defraud the public. Now if we get started in this reporting business it is only an entering wedge. - We cannot tell where it will stop. 'This reporting will cost, the lowest sum is eighteen thousand dollars. Mr. AYER8. Including the printing. Me. DOWLING. I say eighteen thousand five hundred and twenty. Is it not paying for the shadow of the substance? Is not the Constitu- tion going to lie the substance, and these debates and deliberations are to be the shadow. It is simply throwing money out of the treasury to immortalize a few eloquent men on this floor, who will have speeches in there to transmit to posterity. 1 hanker after no such notoriety, though I will help to build a Constitution that will protect that posterity and keep them from being robbed even now. 1 want to build it so strong, so compact, that it will be like a stone wall; and then, Mr. President, when it is built 1 want it plastered over, so that there won't be a crack in it, because these corporations and monopolies would ran a locomotive or steamboot through a keyhole. When 1 hear these men advocate in this House, I hear it from the great buglers of corporations ; and any- thing I hear from them, I will object and protest, first, last, and all the time against them. Now, Mr. President, 1 contend that the minutes of this meeting are sufficient for Us to refer to in future years. My vote is my record. When 1 leave this Convention I go back to the obscurity from whence I cain«. I don't want to deify any man. I vote against this thing first, la.Ht, and all the time. Mr. SHOEMAKER. The question of printing the debates is an entirely different one from that of the reporting. It has nothing to do with it whatever. Mr. BARTON. Inasmuch as the Chair has decided that the report of the committee is not subject to division, I hope that the amendment of the gentleman from Los Angeles, Mr. Howard, will prevail. I think that this is a useless waste of time. I do not rise fur the purpose of making a speech. Wo will have ample time for that when the matter comes before this body in its proper light. I hope the motion of the gentleman from Los Angeles, or the amendment of the gentleman from Los Angeles, will prevail, and that we will bring this matter squarely before tnis body. Me. FILCHER. Mr. President: While I do not come here to make any buncombe speeches on matters of reform, economy, etc., yet, if any member of this Convention can point out to me clearly where I can save to the people of California a dollar, without restricting their rights, 1 stand here ready and willing to do so. At the same time, since the econ- omical feature of'^ this matter is being discussed, I rise to state that it pre- sents itself to my mind in a different light than it seems to have done to some of the members. As I understand it, one hundred and fifty thou- sand dollars have been appropriated by the Legislature of the State of Cal- ifornia to defray the exi)enses of this Convention. And it would seem to me that if we expend that money in simply wasting our time here in debating and wrangling, and then the result of our action should he repudiated by the people, then the people whom we represent have not one solitary dot to show as a return for the expenditure of their money. On the other hand, if we extend our liberality and manifest a little more generosity, we can devote this money, or a portion of it at least, to hand- ing down to the people the ideas we have suggested, if, perchance, they may be of any use to them in the future in considering important con- stitutional matters. To my economical friends, the Workingmen, and my distinguished friend from Butte, who would save to this State every dollar they can — and I believe that they are honest in their convictions — it would seem at a glance that they want to gobble up all of it to pay salaries and not let a dollar of it go to the poor printer. ^ Mr. BIUGS. I call the gentleman to order. Mb. FILt^HER. I do say that it seems that these gentlemen who are opposing this proposition on the ground of economy, it would seem to me, that their motives must be that they wish to exclude the printers and reporters and all outsiders from getting, their hands on any of this money in order that it may be retained in toto among the members in their per diem. Now, for my part, Mr. President, I repeat that I want to save every dollar possible to the people of the State of California, but since it is possible that we may expend this money and have nothing left to show for it, it seems to me that we should let the people know what is said upon this floor, and place them in a position that they can use our words here, and put them in a shape that will be of some serv- ice, and I offer the resolution, knowing what I do, in order to bring this matter to a head. I know that the State Printer is now sitting on the anxious seat to know what the Convention is going to do — whether we are going to print these reports or not. The reporters are also on the anxious seat waiting to know whether or not they are going to work. They are waiting here on time and expense. I know that tnere are a large number of printers in Sacramento anxious to know if the reports are to be printed. It is definitely understood from the most liberal calculations that the reports — the verbatim longhand reports — of the Sroceedings shall not in any event, cost the Stale over eight thousand ollars, if the outside limit is attained, and if the session does not last one hundred days, the reports cannot cost more than six thousand five hundred dollars. Mb. CAPLES. I desire merely to make a suggestion. There has been talk enough upon this subject in its present shape, and I merely desire to suggest to the members that before we consume any more val- uable time in discussing this question, we had better decide whether we want a reporter. If it be a fact, and probably it is, that a majority of this Convention have predetermined against the employment of an official reporter — have predetermined that they will j£f« the State this Digitized by VjO 46 DEBATES AND PROCEEDINGS FRlDAt, expense, why, then, it muat be apparent to every member that this is a waste of time. My suggestion is simply this: let us first determine whether we want an official reporter. If we determine that we do want an official reporter, then let us discuss the details; but if we don't desire an official reporter, it is, as I remarked, a waste of time. There- fore, I think we should first determine whether we want en official reporter. Having so determined, then let us go into the details. Mr. TULLY. This is a subject that I know but little about. I listened to the statement of Colonel Avers, who, I am informed, is a practical printer and newspaper man, and he assures this Convention that the whole proceeding would not cost the State over eighteen thou- sand dollars in round numbers. The Hon. Mr. Edgerton, the gentle- man from Sacramento, I believe is a gentleman of large experience in these matters, rises and says that it would be about eight thousand dollars. Another distinguished gentleman from Sacramento, Mr. Free- man, who I am sure is a sound, practical, and safe man, assures us that these proceedings involve an expenditure of about thirty thousand dollars. Now, I am not willing to vote upon such an uncertainty as that, and I think gentlemen of this Convention should know what they are voting upon. Another gentleman from Sm'ramento, Mr. McFar- land, desires making this appropriation for the benefit of his constitu- ents— hard-working printers and such. I, for one, am not disjxwed to be niggardly on any of these questions. I think that there should be a decent record made of the proceedings and of the debates of this (Con- vention, and I for one am willing to vote for the proposition, provided I can be assured with some degree of certainty what the proceedings are going to cost. Some gentlemen have argued that we should first elect a reporter, and then a-scertain what it is to cost. It seems to me that we should first ascertain what the cost of the proceeding will be. I think that, in a vety great degree, will determine the fact of whether we elect a, reporter or not. It seems to me that the friends of this report are taking the very measures to defeat themselves, because I shall certainly vote against this resolution with the light I now have, and I will rely upon the newspapers to report all that f may wish to say upon this Hoor. I will make me a scrap-book and have my children set down at nights and read what I had to say in this Convention. I presume some of the gentlemen desire to have the debates printed and bound in leather, that their grandchildren may read the grand Ri)eeche8 that their grandfathers made nere. I certainly shall vote against the prujKisition as it now stands. Mb. AYER3. I merely wish to call the attention of this Convention to one feature of this debate. Gentlemen rise in their seats and speak about fastening upon the people of this State a heavy debt for this print- ing. I will say that as far as I have learned, this expense has to come out of the one hundreos Angeles is to strike out a portion of the resolution. The motion of the gentleman from San Francisco is to strike out the whole of it end insert something else. Mb. HAGER. My motion is to amend the clause left standing. If the proposition is adopted, my amendment fails, because then by a vote of the House the first proposition has carried. Thk president. The Chair differs with the gentleman. Mb. HAGER. Here 1 have the law: "All amendments of which a proposition is susceptible, so far as form is concerned, must be effected in one of three ways, namely, by inserting or adding certain words; or by leaving out certain words; or by leaving out certain words and inserting or adding others. These several forms of amendment are subject to certain general rules, which are equally applicable to them all." One of these rules is : " Whatever is disagreed to by the Assem- bly cannot be afterwards moved again. This rule is the converse of the preceding. Thus, if it is moved to amend A B by inserting C, and the amendment is rejected, C cannot be moved again ; or, if it is moved to amend A 6 by leaving out B, and the amendment prevails, B cannot be restored ; because in the first case C, and, in the other B, have been disagreed to." That is the case here. That is, the authors of a measure may perfect what is left standing by a motion to strike out before the motion is put, otherwise if we vote to strike out they have no opportunity to perfect it. We cannot recede from it unless we reconsider. Thr president. The gentleman has not moved to strike out any- thing. The gentleman from San Francisco moves this resolution: " That in the opinion of this Convention Phonographic Reporters should be appointed to report the proceedings of this Convention." The gen- tleman has not moved to strike out anything. Mr. HAGER. The Chair does not understand the ]>oint I make. I only wish the Chair to correct what he has alreadv stated. Thr president. I think I have corrected it already. The gentle- man from Placer, Mr. Filcher, offered a resolution. The gentleman from Los Angeles, Mr. Howard, moves to amend by striking out the latter clause. The gentleman from San Francisco makes this motion : " That in the opinion of this Convention Phonographic Reporters should be appointed to report the proceedings of tlu&.^onveutiou.'l Digitized by Google Oct. 4, 1878. OF THE CONSTITUTIONAL CONVENTION. 47 Mr. HAGER. ilr proposition Thb PBISIDENT. The gentleman will wait until the Chair has finished. Now, after the motion of the gentleman from Los Angeles, the gentleman's motion will be put. He offered it as a substitute. If the motion of the gentleman from Los Angeles does prevail, still the gentleman from San Francisco is in order to move to strike out the bal- ance of it and insert, so that his rote is after that of the gentleman from Los .\ngeles, and the third vote is upon the original resolution. The previous question will bring the Convention to a vote in the order I iuTe stated it. Me. HAGEB. Now, Mr. President The president. All debate is out of order. M«. HAGER. The point I raised was as to the correctness of the statement. The PRESIDENT. The gentleman is out of order. Mr. HAGER. I merely wish to state that the Chair has not correctly aatforter,t24. Adopted. Me. WILSON, of San Francisco. I move that when this Conven- tion adjourns to-day, it adjourn until Monday at one o'clock. Mb. WHITE. I move that we adjourn until to-morrow morning at ten o'clock. Mr. Wilson's motion was lost by a standing vote of seventy ayes to seventy-one noes. Mb. edgerton, at twelve o'clock and forty-five minutes p. m., moved that we now take a recess until two o'clock. Carried. AFTERNOON SESSION. The Convention reassembled at two o'clock. President Hoge in the Chair. Roll called and quorum present. On motion of Ms. TULLY, Mr. Iiaine's leave of absence was extended until Tuesday next. On motion of Mb. EDGERTON, to correct a mistake, the Convention reconsidered its action in regard to the per diem of the Assistant Ser- geant-at-Arms, and fixed it at six dollars instead of eight dollars, so as to comply with the law. Mb. HEU8TI8 offered the following resolution : Digitized by Google 48 DEBATES AND PROCEEDINGS Friday, Booked^ That the Controller of State be and is hereby antborlserl to draw war* rante In fihvor of W. T. Deveridge and Aaron Wilson in the sum of eighteen dollan each, for scrrices rendered as Fagiv, pending the organixatfon of this Convention, Sayablf out of the appropriation for the expenses of this ConTention, and that the tate Treasurer is hereby authorized to pay the same as alwve prurided. Adopted. FILLING or VACAMCIKS. Mb. TINNIN offered the following resolution : Jieseiiwi, That the Convention now proceed to elections to SII the vacancies in the following order: First, to All the vacancy canned by Ihu resignation of Thomas Morris, of Sun Francisco; second, to fill tlie vncaitcy caused by the death of H. H. Height, from the Second Congressional District ; tliird, to flll liie vncuncy caused liy the death of G H. Bardwick, irom the Counties of Uercod and MarlpoM. Mr. McCALLUM. I moTe to amend that by making the election for the delegate at large first; by filling the vacancy caused by the death of Governor Hiiight first. Mb. EDGEKTON. I move to amend the resolution by striking out the word "now" in the first line, after the word "Convention," and insert "at two o'clock p. u. on Tuesday next." Mb. TIKNIN. I offered that resolution in good faith and for the pur- pose of advancing the labors of this Convention. In drawing the resolu- tion I had no preference for any individual, and if other parties here h.ive made agreements about which election shall come first, I have no knowledge of them. Now, sir, in answer to the last motion made, we have bei-n here for three or four days simply doing nothing. It has been a contest here without seemingly accomplishing anything, and it is essen- tially necessary that this election be had in order to fill the vacancies, that' the President in making up his committees may know the individ- uals he is to place on the committees. The President does not know who is elected. He does not know what peculiar capacities these pcraons have who will be elected. It is essentially necessaiy that ho sliouid know before he makes up his committees, and for this reason I contend that we should immediately go into this election. If gentlemen desire to go to San Francisco on private business I see no reason why this Conven- tion should delay its labors. Mb. VAN^ dyke. I hope this body will take this matter into con- sideration and force this election at the present time. I hope the mover of the resolution will accept the amendment offered by the gentleman from Alameda. It seems a matter of propriety that a delegate at large should be elected first to fill the vacancy caused' by the death of Governor Haight. Mb. EDGERTON. I withdraw my motion. Mb. McFARLAND. If we are gomg to pass this resolution I do not see aiiy reason for changing it. There is no particular object in it. I do not see why the delegate from San Francisco should not be elected first as well as the one from the Second Congressional District. Mb. CAPLES. It appears to me that there is a misnomer, perhaps unintentional, in the original resolution. The word "resignation" is used instead of " ineligibility." Mb. TINNIN. I see no point in that That gentleman did resign. His resignation was read from the President's desk, and there can be no object in this only to hold forth certain ideas concerning the individual. Mb. CAPLES. I think that no man can resign what he does not pos- sess. It is a misnomer, an abuse of language or terms. I therefore insist on my amendment. Mb. TINNIN. I do not care to enter into any debate, but I wish to say that the Governor of the State of California, by his certificate, declared that Thomas Morris was a member of this Convention, and considering that fact his resignation was in order. It was legal under the circumstances, and was a fact that we au know, and I see no reason for debating it here. Mb. hall. The member from Sacramento proposes to amend the resolution by substituting " ineligibility" for "resignation." I suggest, Mr. President, that if the word " ineligibility " is substituted for the word "resignation" it would seem to me, in the present state of the law, that the resolution would show upon its face that there is no vacancy whatever. If Mr. Morris, who is prima facia a delegate by the proclamation of the Governor, was, by reason of not being a citizen of the United States at the time of the election, ineligible, then it seems to me that there was no election. The election would be void, and he has not become an incumbent of the office. Never having become an incumbent of the office he has not resigned the office, of course. The provisions of the law in our Political Code provides for cases of this kind. It declares what shall be deemed a vacancy in office. It goes on to say that vacan- cies shall be created by the death of the incumbent, by the resignation of the incumbent, and so on. But in this case he has never become the incumbent of the office, because it appears this resignation was presented to the temporary President prior to the organization of the Convention. Hence he has never been admitted to a seat in tiiis body. He has never become an incumbent of the office. Now, sir, the question has arisen before the Supreme Court of this State in a case in which I was person- ally connected, in a case decided not very long since, and I presume will be reported in the next volume. It was the case of Carver vs. Dun- bar, and it is with respect to the office of County Superintendent of Public Schools in the county. Mr. Dunbar received the highest number of votes, Mr. Carver having received the next highest number. But Mr. Dunbar, at the time of election, held the office of Inspector of Customs of the United States, at the city of Stockton, and the question arose whether or not he was eligible. The Supreme Court decided he was not eligible, and the result of his ineligibility was that the election was void — entirely void. So, the election being void. Carver was not entitled to it, and the Board of Supervisors proceeded, under the direction of the Supreme Court, to declare a vacancy, but the declaration of the vacancy preceded the action of the Board. After the office was declared vacant the Board of Supervisors proceeded, as by law directed, to fill that vacancy. Now, sir, applying that principle here, it would seem, upon the facts before this Convention, that Mr. Morris was not eligible to the office at the time of the election. Mb. BARBOUR. What provision of the law prescribes that? Mb. hall, a general provision of the Political Code. Mr. BARBOUR. What section? Mb. hall. I cannot say what section ; but there is a general pro- vision in the Political Code, and a qualification which requires citizen- ship as one of those qualifications required to hold office by this law. That being a qualification necessary, and he not having that qualifica- tion, it would seem to me that he was ineligible, and I respectfully submit to the Convention that he never did oeoome an incumbent of the office. He never was elected to the office. It was absolutely null and void. Again, sir, in this Convention, I may be permitted to say, inasmuch as we are on the question, that some action should be taken, if we do not want to cast a cloud upon the title of the successor of this gentleman. It would seem that his resignation has not come before this body. It was addressed to the President and members of this Conven- tion. Now it would seem, sir, to me, that he ought to pursue the coarse prescribed by another general provision describing the manner in which resignations may be made. There is a general provision covering his case, requiring him to file his written resignation with the Secretary of State. There is such a general clause existing in our Codes touching and concerning subjects of this kind. That resignation has not gone to that officer yet, so far as I am informed. He has never been admitted, and his resignation is not legal. Again, sir, a vacancy may be worked out in anotlier way. There is a provision in our Code to this effect: that an officer elected at the hands of the people, who fails to present himself and qualify within ten days after the performance of that act is required by the law, is equivalent to abandoning the office. But these ten days have not as yet expired, sir. It strikes me, Mr. President, in the state uf the law, that there is no vacancy existing in that office, but the honorable gentleman from Sacramento has proposed an amendment to the resolution by which the word "ineligibility" is substituted for "resignation," thereby setting it as a matter of record that we have proceeded to fill a vacancy where no vacancy existed at all; for, if he was ineligible, I do maintain, according to the decision of the Supreme Court, the election was null and void, and there is no vacancy. Mb. MURPHY. I think a great deal of time is being wasted here on this amendment. It is a matter of no consequence whether he is eligible or not. There is a vacancy to fill, and I move we proceed to fill it, and on that I move the previous question. Mb. CAPLES. I will withdraw the amendment. The motion to transpose the first and second clauses was lost. The question recurring on the adoption of the resolution, it was adopted. Thi PRESIDENT. Nominations are now in order to fill the Taxxacy caused by the resignation of Thomas Morris. Mr. BARBOUR. Mr. President: I have the honor to name Judge J. R. Sbarpstein as a candidate to fill the vacancy in the San Francisco delegation, caused by. the resignation of Thomas Morris. I present this name in obedience to the request of the San Francisco delegation as their unanimous choice, and I present him as the choice of the majority of the electors of the City and County of San Francisco, whose will was expressed at the last election. The usual course in the other States upon the happening of these vacancies appears to have been to order a special election to fill the vacancy. That is the true democratic method, because thus the will of the people is ascertained. The Legislature of this State has seen fit to clothe this Convention with power to fill these vacancies, not, as I should be sorry to believe, to be exercised arbitrarily, and ruck- less of the popular will, but in strict accord therewith. I have here the figures, taken from the official record, to show the votes cast and the general majorities given for each candidate. The majority given for the candidate which I present. Judge Sharpstein, is thirteen thousand nine hundred and thirteen votes out of a total of twenty-seven thousand votes. Nearly fourteen thousand out of a total of twenty>seven thousand. That of his opponent, M. M. Estee, was eight thousand three hundred and ninety-two votes, leaving a plurality in favor of Judge Sharpstein of five thousand three hundred and eighty-seven votes. Some have objected to him as a candidate because he was on the ticket at large, while M r. Morris was on the local ticket. I would remind the people that at large or at small, it is only a difference in names. They were both on the same plat- form, were voted for by the same men in San Francisco, they are to sit in the same Convention, and the objections as to the difference in names I deem unworthy of consideration. It has been said that I am, as it were, presenting the name of a man who has been repudiated by the people of the State for a scat in this Convention. It is not true, sir. It is for the people of San Francisco, and not for the people of the State, to name the men to fill the vacancy. I suppose it will be next claimed that it is a man's misfortune to be popular and strong at home, and that the true test of his qualifications is to be impular abroad and weak at home. The whole question is summed up in this inquiry ; Would the same vote, the same majority, have been given to Judge Sharpstein on the local ticket as on the ticket at large? That is certainly a fair, sensible con- struction. The question as to the eligibility or ineligibility of Mr. Morris, whose vacant seat is to be filled Mb. EDGERTON. I raise the point of order that this is not a legiti- mate subject for discussion. Thk PRESIDENT. The point of order is well taken. Mb. BARBOUR. I say it is a proper matter for discussion, but I was proceeding to show, when interrupted, that we had taken the proper course in selecting a candidate. 'The San Francisco delegation, upon the first intimation that Morris was not a citizen of San Francisco, drew from him, after an examination, his resignation. We might have brought him here with his certificate of election under the procjamation of the Governor. We might have voted him here upon all the propo- sitions of the organization of this Couventiini^as the geutlemeu w«U Digitized by Uoogle Oct. 4, 1878. OF THE CONSTITUTIONAL CONVENTION. 49 know, and oiight perhaps have thangod the resulto. We might have itood on the ground that his nnn-citiieuship did not disqualifr him from tailing a seat on the floor of this Convention ; his case would not have been passed apon until after the organization had been completed. But, sir, I se; we stood not upon anr of these technicalities. We said we went by the spirit of the law, and the spirit of tho law was that this Conrentinn should be composed of citizens of the United States. That the people voted for him thus under the impression that he was a citizen of the United States, and sinoe it turns out that he was not, the delega- lioD resolved not to stand by him, and we exacted a resignation from him. The delegation want the spirit of the law carried out, and hence they announced the candidate they intended to propose weeks ago in San Francisco. That name was before the people for their considera- tion, and I believe the universal verdict is that he ought to have the place. The people never intended by their votes to elect a non-citizen, but they did not intend to elect anybody else. Therefore, as a matter of right and Justice, we demand that the seat be given to the man we pre- sent as the unanimous choice of the people of San Francisco. Ma. CROSS. Mr. President: It is my privilege to second the nom- ination of Judge Sharpetein. I shall state the reasons why he is a can- didate, and why he should receive the votes of this Convention. I will state them briefly. He is a man who is well able to fill this position. If the constituency which elected Mr. Morris oonld be heard hero, they would speak in favor of Judge Sbarpstein as represeutiug their views. When they elected Mr. Moms from San Francisco they did so because be was a representative of their views. But when Mr. Morris proves to have been meligible, by reason of not being a citizen, then it becomes a proper question whether it is not our duty aa well as our privilege, to respect that sentiment. It becomes a question whether the man who is chosen to fill this position should not be a man who is able to rvpre- aeot the sentiments of the people of the particular locality. We claim that the Workingmen's party of San Francisco aud uf the State has been greatly misunderstood. That some of the gentlemen on Ihis floor have a wrong impression in regard to the principles and purposes of the Workingmen's party. Ma. BARNES. I call the gentleman to order. He is not speaking to the queslinn. Ma. CROSS. I hold that it is germane to the question, and I will come to the bearing of it. Now, to the delegates in this Convention, let me say that it is not merely for the interest of the Workingmen's party that Judge Sharpstein -should hold this position, fur really the results cannot be changM b^ Judge Sbarpetein's vote, fur we stand fifty-one to one hundred ; but smce we haVe, unfortunately, very few in our dele- guiun who are able to present before this body, in a clear aud plain man- ner, the real eeutimenU of the Workingmen's Party of California; and since there is standing back of Judge Sharpstein a strong public senti- ment: and since that public sentiment is now misunderstood in this body; and since this candidate is a man of the kind who will be able to bring before this body, in its true light, the real views of the party, thus enabling »oy member of this Convention to be properly informed as to their wishes, snd intentions, and purposes, before they vote — for these reasons, I say. Judge Sharpstein is the proper man for this place. He is not a Commu- nist; he is not a Socialist; he is a man who will be able to represent the views and sentiments of this party — the Workingmen's Party, as it is called — in this Convention, in such a way that this Convention, when- ever it acta upon any of the propositions which the party proposes, they will be able to know what the wish is,andknow the true sentiments of the people who stand bock of him. When this sentiment is clearly expressed, aiJiidge Sharpetein can express it, then this (V>nvention will have that information as to the intentions and purposes of the party which will enable them to vote intelligently upon all propositions which shall be presented here. Let me say, farther, that the Workingmen's Party not only claim their right to be thus represented, but they concede the same right to the Non-Partisans, and are ready to vote for their nominee upon the same principle. The people elected Mr. Haight to represent them »nd their particular views, and the same people now have the right to have a man elected who will carry out those views, and faithfully repre- sent their sentiments on the floor of. this Convention. So, Mr. Presi- dent, with regard to the other case; the Workingmen's Party proposes to vote for a man who will represent San Francisco. We place this case upon the same principle. Judge Sharpstein would be the choice of that peo- ple. He would be able to represent the views of the Workingmen's Party in such a way that it could not be misunderstood. Ml BARNES. Mr. President : It is true, as the gentleman from San Francisco, Mr. Barbour, has said, that it was determined by the local delegates from the City and County of San Francisco to insist that they and thev alone had the right to be beard in this Convention, and were crowned with some immortal principle of representation that should enable them to stand here and demand from the Convention its support for Mr. Sharpstein. Ha. REYNOLDS. Mr. President: I raise the point of order that the gentleman is not speaking to the question concerning the nominations ve have made. The PRESIDENT. The point of order is overruled ; the gentleman will proceed. , Mi BARNES. This is that same spirit of intolerance and self-asser- twn which has found expression sundry times upon this floor; which iiond expression when the delegate who named the gentleman, sddreiaed the Governor of this State, when presiding over this Conven- tion, in a manner to which I will not refer, but which every gentleman DB IJiia floor remembers; a spirit which found expression in uie resolu- tion vhidi proposed, in efl*ect, to give the power to appoint a delegate to ihis Convention to one portion of the delegates from the City and Onmt^ of San Francisco. Now, sir, I contend — and I think the propo- BtioD w nnanswerable — that if the law calling this Convention together kaddasnied to bestow upon the delegation from San Francisco the absolute and indefeasible right to name tho candidate to fill the vacancy created upon the local ticket, it would have said so. We are not to go outside of the law ; we are not to stand here and argue it upon any vague or general principle, or assumed vague and general principle, that finds expression in the speech made by the gentleman who declared that wherever or whenever he heard anything coming from what, in his own expressive language, he called the corporations' jugglers or fug- lers, he would vote against it. I suppose he went upon the principle which actuates gentlemen from the happy land from which he comes, at Donnyhrook Fair, " Whenever you see a head hit it." I submit that it is unfair for the gentlemen from San Francisco to be forever arrogat- ing all virtue to themselves, and denouncing in unmeasured terms everybody else. I submit that the proof of worK is in the work itself. And in rising to propose a gentleman for this place I desire once for all to enter my protest against the spirit manifested here by my col- leagues from San Francisco on the local ticket. I say it is unworthy of them, and unworthy of the cause which they represent. Now, sir, the i>n>position seems to be that one portion of the delegation ffv>m San ''rauciaro has the sole right to be heard on this floor. There are eight gentlemen here from San Francisco, and though voted for all over the State, are equally the representatives of the people of the First Con- gressional District — gentlemen at least as distinguished as those who have made this deiiwnd. We have a right to be heard. We have a right to stand upon the law and to say that if this statute had intended that the local ticket in San Francisco should nominate and fill vacancies when occurring, the statute would have expressed it so. Mr. President, it does nut belong to them; it belongs to you all, gentlemen. It is for you to say who shall fill these vacancies. It belongs to no locality. No man has a right to claim it. No man who ran on the ticket at large and was defeated has the right to say that because he got a plurality of votes in one portion of the State it belongs to him by sovereign right, .and that the right to reign and rule, like the sacred oil poured upon the heads of kings, has made his claims indefeasible. The statute says the Convention shall determine that subject, and the members of this body, sitting in calm delilieration, have a right to look beyond the results of the upheaval that occurred in San Francisco— or, as it has been expressed, the wail of universal discontent — and select the best man. As to selecting a man for this vacancy, the Convention has a right to go to Shasta or San Bernardino. The Convention has the right, if it can obtain the services of some able, distinguished man — some one whose wisdom, experience, and ability would guide us through the difficulty — to go to San Bernardino and bring him nere. If it is to be determined upon by the number of votes, then I contend, without discussing the question whether Morris was eligible or not, we have the right to pre- sent some pro()er person coming from San Francisco for that position. On the local ticket there was a vacancy. The gentleman claims credit for not perpetrating a fraud — credit for not perpetrating a political crime — and for demanding the resignation of a man who had been standing on bogus naturalization papers. That is not the point. The question is, who is the best manf There was no election. That is clear enough. Judge Sharpetein was not standing upon the local issues of San Fran- cisco. As far as appears the Workiugmen didn't want him as a repre- sentative at all. lie was put on the ticket at large, and it is a matter of political history, pretty well understood from the outset, that the men who were put on the ticket at large were put there for the purpose of giving them something in the shaiie of a complimentary testimonial, but it was never intended, expected, or anticipated that they would be elected. If local votes on local candidates is to be the test, 1 hold in my hand a certificate of Louis Kaplan, Registrar of Voters, saying that R. H. Lloyd received the largest number of votes after Mr. Morris. As a legal proposition it may be laid down'that when a candidate was voted for, at the time ineligible, the vote was thrown away, and the man pav- ing the next highest vote was entitled to the place. I don't base it on any such erounds. I am a representative at large, and a representative of a very Targe voice of San Francisco, so fur as personal votes are con- cerned, and, as a representative from San Francisco, I claim that Mr. Lloyd is entitled to the suflfroge of this Convention. I ask this Conven- tion to vote for him, because I know him. I also know Judge Sharp- stein. I knew his history before he came to the State. I know it now. 1 knew him as a Democrat. I knew him again as a red-hot Republican, when Booth came to the surface. I knew him as the Judge of the Twelfth District Court, and I know that when he came up for reflection he was defeated. Mr. DOWLING. I raise the point of order that the gentleman is not speaking to the question hefiffe the House. Thb PRESIDENT. The point of order is not well taken. The Choir understands that the gentleman is speaking to the precise point. Ma. CROSS. Mr. President: I rise to a point of order. Mr. Barnes objected to Mr. Barbour speaking upon this very same branch of the question, and the Chair held that Mr. Barbour was out of order when he was speaking to the eligibility of Mr. Morris. Tn« PRESIDENT. I don't recollect that there waa any such ruling. Ma. B.\RNES. My friend is mistaken about that, as he generally is. Now, Mr. President, they claim this nomination upon the ground that Judge Sharpetein has the unanimous indorsement of the people of San Francisco. I deny it. The people of San Francisco know, and every lawyer knows, that while on the bench in San Francisco, he gave uni- versal dissatisfaction. He was caught up like a chip upon the surface of this great wave of popular discontent, and waa put upon the ticket at large, where he had no possible hope of being elected. Now the only time 1 know when the people of San Francisco had any opportunity to express their approval of nim was in the judicial canvass. I have no charges to make, but every lawyer knows that he gave universal dis- satisraction. The gentleman speaks about his being the representative of the Workingmen's party. Now, the most remarkable decision that I ever knew Judge Sharpstein to make was made in th^j^terest of the Digitized byLjOOQlC 50 DEBATES AND PROCEEDINGS Fripay, Spring Valley Water Company, and the Supreme Court reversed bis decision from the bench. That is his record upon the subject of corpora- tions. He had ridden the Democrats, he had ridden Booth, and now he jumps on top of the Workingnien's movement. For these reasons, if there was no other candidate here, I would not vote for bim. So far as his record is concerned, he baa fiivored those corporate monopolies of which complaint is made; and right here I want to say one word on that subject. The gentleman alluded to the corporation bugler, against whom he was going to vote. When we shall have finished the worlt of this Convention I think it will be apparent who are the men about whose necks the corporation collar stands. It is not upon mine, and I hope the gentleman will not repeat what he has said this morning. I believe in the right of the State to control every corporation in it. It has the right and should have the power, and such a provision should be put in this Constitution that shall hold them with a grasp of iron, so that never again in this State shall there be any unjust discriminations, any outrage or wrong inflicted upon persons or communities from the day this Constitution takes its place as the organic law of the State, until time shall be no more. [Applause.] I am not going to be put down as a corporation bugler. The charge is not correct, as the result will eventually prove. Mr. Lloyd has been a resident of San Francisco since boyhood. He was an errand boy in the office of Sharp A McDougall, and did the work of the office from day to day, and month to month, and ^ear to year, and educated and trained himself. No university has put its degree upon his head, but he has honest manhood and self- culture, and is as good and careful a lawyer as there is in San Francisco. He has the approval of every lawyer who ever knew him. No human bein^ can say a word against him. If you take the best man, I know he will be elected. He was a candidate on the Non-Partisan ticket, and had the support of all classes of men, Germans, French, and Americans — thank God there are a few left. [Applause.] Mr. Lloyd has always had their sanction and indorsement. No man can lay charges at his door, and I commend him to you, gentlemen of the Non- partisan party. And I ask you whether you are going to be dictated to and controlled because the representatives" from San Francisco represent one political party, or whether you will in your consciences and on your oaths select the man who shall seem to be the best qualified for the Slaoe? I know of no indorsement that could be given nigher than to [r. Lloyd. Nothing better could be said of him than that he is an honest man, a self-educated and trained lawyer, of thorough good sense, of perfect capacity, of perfect honesty, and even in this time he ran far ahead of the Non-Partisan ticket, and was the next in order to the gentleman whose seat has been relinquished. I ask you, gentlemen of the Non-Partisan party, to give him your suffrages, that you will not entertain the idea that because there is a large delegation here from San Francisco, that the minority from that city and county have no right to be heard. The law puts the power in your hands; that if it had designed to give it to the gentlemen on the other side of the House, it would have said that the vacancy should have been filled bv the gentle- men from that locality. I think it is fair and just to take t^e best men. I know both candidates, and I think there is not a delegate on the ticket at large who does not know both. There is no comparison between the fitness of the two. It is altogether and in every way in favor of Mr. Lloyd, and I hope he will be elected. Mr. BHOWN, of Tulare. Mr. President: I think in so Important a matter.as this there should be a great deal of latitude given to members who make nominations, so that the character and standing of the gen- tlemen presented before this body may be known, so that we may be able to vote intelligently. I rise liefore you to present before this body the name of a gentleman that you all know, and with whose family you are all well acquainted ; it is a family whose name is connected with the early history of California, and for such every old settler in this State, at least, must have some degree of respect. I refer to Major Jos^ R. Kco as a representative native Califomian. Ma. BARNES. I would inquire if Mr. Pico was not also a candidate as delerate at large on the Workingmen's ticket? Me. BARBOUR. Mr. Pico was repudiated by the delegation. [Ap- plause.] Mb. brown. I will proceed further. I know that party sentiments are in conflict here. Men are in favor of certain men. It is not forme to say to you whether or not this feeling runs so high as to endanger justice and right. That is a matter for this body to take Into considera- tion. As range has been given to some extent, I presume it will not be out of the way for me to refer to some extent to the Pico family and their ancestors. Now, I don't intend to take up as much time as has already been taken up here. I shall be brief In my remarks ; and if I am not too frequently interrupted, shall soon bring my remarks to a close. Mr. Pico's father was in the Constitution^ Convention— that great Convention which brought forth the Constitution under which we have been living for so many years. He took a prominent part in the proceedings of that bo<^, and all of us remember his name with some degree of reverence. We all remember him as a philanthropic man, whose donations to the State mark him as a liberal as well as a wealthy man and most worthy citizen, one to be admired and loved by every jwrson. Now, for instance, we find that he had donated to this State a site for a State Ca}>itol, in San Jos^. We find that this illustrious man, almost forgotten in the heat and strife of political contests, presented the grounds for the State Prison at San Quentin. Is this all he has done? Had he stopped at that he would have been worthy the honor of being a member of this Constitutional Convention ; but he went farther, and gave to this State the grounds for the Insane Asylum at Stockton. This has been the manner of this illustrious man from that time down. Here, to the Capitol of this State, he gave stone worth five hundred dollars. Now, these are acta which show the intentions and TOod feelings of the man. Now we have before us Major Jos^ R. Pico. He is a gentleman of refinement and a scholar. I shall not advert to the lauds given by this gentleman to' the Slate, which lands are now worth one thousand dollars an acre. Mr. President, I would say that it is a matter of some consequence that the members of this Convention take into consideration the claims of this gentleman. I believe he is the only man of that race, that once possesseathis whole country, that is on hand here, and I believe none of the representative Califomians are here In this House ; and I would state that the Spanish and Mexican popu- lation amounts to twenty-three thousand. Thev are in that respect without representation ; and I think they shoulcf be allowed a repre- sentative on this floor. Now, it does appear to me that in all justice and fair dealing, that a family that has done so much for this State, so much for the welfare of this State, should Ije recognized, and that one of the family at least should occupy a position uj>on this floor in the councils of the State. It seems to nie to be reasonable that we should consider the matter in this light. I am fully convinced that in this case it is proper that we should give this office to this honorable gentleman. He IS a gentleman of refinement. He is a gentleman of ability and learn- ing. His name is now before you, and I hope his claims may be fairly considered. Mr. BARBOUR. Mr. President: I would not again trespass upon the time of the Convention, but I should feel myself recreant to my trust if I did not rise to defend the name of the candidate presented by me. In presenting my candidate, sir, I never felt it incumbent upon me to assail the candidates of any other party. The gentleman I have named for this position has been attacked. It is an outrage upon the delegates here, and upon tlie candidate himself, who is not here. He has stayed at home, tending to his business, relying on his friends here. The other has been here and his friends have been digging into the records and laboring to find some way by which his repudlHtion by the people of San Francisco could be transformed into an indorsement. Not find- ing that, he has gone back home and left the gentlemen here to assail our candidate here by making statements to this Convention which we are not prepared to deny and which we had no reason to anticipate. How does it appear to this Convention? Certainly it is unjust. It is disgraceful, and I stand upon that statement. Judge Sharpetein is known, and respected and honored by the people of San Francisco, and that ought to be enough. The vote shows it. The vote is a complete refutation of the statements made by the gentleman from San Fran- cisco, and I state now to bim that it would have been in far better taste to have allowed that statement to have come from somebody who could bring a better indorsement than that. Now I have a word to say, and I did not intend to have said it, and should not have said it, but the gentleman's own candidate, I have no doubt, is an attorney for the Spring Valley Water Company to-day. He is a partner and relation — a son-in-law — of Senator Sharon, and they have all that business, and know all about the monopolies of the deepest and blackest dye. I don't wish to go into his character, or to know anything about it; I don't care anything about it, or to make any statement here in regard to this matter, and if the gentleman had leu our candidate alone, 1 would never have said anything about it. I admire bis spunk, but it was not necessary for, him to assail the absent. Mr. BEERSTECHER. Mr. President : We don't make this nomina- tion in the spirit of Intolerance. We don't make this nomination for the purpose of forcing upon this Convention the person of Judge Sharp- stein, nor the purpose of any other man. If we did come here with any such object it would be ridiculous and absurd in the extreme. We come here simply naming this man. Simply presenting the claims of Judge Sharpetein for your consideration, nothing further. We don't deny the right of this Convention to choose a man to fill this vacancy, one'that they believe to be the best qualified and the most proper per- son for the place. But we do come here presenting the name of Judge Sharpstein, not in any partisan spirit, but because be is a gentleman who has the indorsement of a majority of the voters of the City and County of San Francisco. Judge Sharpetein received thirteen thou- sand nine hundred and thirteen votes in the last campaign. Mr. Lloyd received eight thousand five hundred and twenty-six votes. Judge Sharpstein has a majority over Lloyd of five thousand three hundred and eighty-seven votes. The total vote cast in the City and County of San Francisco was about twenty-seven thousand, anci Judge Sharp- stein has received, not a plurality vote, but he has received a major- ity, an absolute, positive majority. We come here appealing to you, and saying to you that we recognize these grand principles which underlie this system of government, which is that the will of the people must be respected ; that the people are the source of all power, and that when they indicate through the medium of the ballot their choice, their choice ought to be respected. Gentlemen, we don't come here sayingto you that you must take Jud^ Sharpstein. We don't desire to be understood that we are att^mptingto force any solitary man upon you, for tliat would be an absurdity. We simply present the claims of this gentleman, saying that he received five thousand three hundred and eighty-seven more votes than were received by the other candidate, Mr. Lloyd. I have nothing, gentlemen, to say against the character or reputation of Mr. Lloyd. Nothing at all. Absolutely nothing. That is a matter for your consideration and inquiry. Nor do we come here |>re- sentlng the name of any one who would be unfit to sit in this Convention along with us. Nor do I think Col. Barnes would present any one here who was not qualified and worthy to sit here. I urge nothing against the candidate he has presented. The San Franeisco delegation ut^ges nothing against him. But we do say that Judge Sharpstein is the choice of the people of San Francisco, and the man who has received a majority of all the votes cast should be chosen. With all due defereneo to the gentleman from San Francisco, Col. Barnes, I do say that the express indorsement of the people of San Francisco is better than the charges that the gentleman has brought against Judge Sharpetein, and we ask that Judge Sharpstein be electra to fill this vacancy. I ask it as a matter of justice. We appeal'-t» you, representing the Digitized by VjO Oct. 4, 1878. OF THE CONSTITUTIONAL CONVENTION. 51 majority of the people of S«n Prancisoo ; and, gentlemen, the vote here will determine whether we respect the voice of the people as the voice of God, orwhether we expect to vote from a partisan spirit in this cam- paign. I am free ^oy tnat if Mr. Lloyd had received the indorsement of the people of San Francisco, as Judge Sharpstein has received that indorsement, I should rote for Mr. Lloyd. Though I was elected on a partisan ticket, I am prepared to vote for your choice from the County of Heroed, as I am prepared to vote for your choice in the other case, because these vacancies belong to you. You received an express indoraement of the people in that part of the country, and we respect and honor that indorsement, and we ask you, as a raattei; of simple jostice, as a matter of right, involving the democratic principle upon which our system of government is based, that Judge Sharpstein rweivc your'indorsement. Mk. WINANS. Mr. President: I do not intend to participate in any of the altercations or eulogies of this debate. But when one member says that Judge Sharpstein is the choice of the people, meaning the people of San Francisco, he himself forgets to tell you that the voice of the people of San Francisco has no expression on the floor of this Onn- Tsntion. The old political parties were divided and split among them- selves. The result was brought about by unhappy dissensions among the old parties. The present local delegation does not represent a major- ity of the votere of San Francisco. We divided among ourselves and fell a victim to our own dissensions. Had it not been so this local dele- gation would never have been here. They do not by any means repre- sent the majority of the people of San Francisco. M«. SHAFTEB. Mr. President: I would take great pleasure in supporting Mr. Pico, the nominee of the gentleman from Tulare, if I nmid do so with propriety and safety. I am a man of exceeding timid- ity, and am apprehensive that I should be exposed to considerable per- ianal danger from Mr. Pico, were he a member of this Convention. In hiscanvaas, Mr. Pico declared his intention to bring his lasso here, and with it, subject all the thieves iind rascals in the State and Convention to the discipline of that instrument. As he includes me in his incul|)a- tory terms, I think I have a right to increase my chances for security by excluding him, if possible, from this Convention. In republican gov- ernments, there seems to be a pmprietv in not bestowing too much honor upon one family. Those familiar wfth the public life and conduct of Pio Pico will, I think, all a^;ree that be has given sufficient distinction to bis family, at least for this generation. It is said, however, that Mr. Rco gave lands to the State for the purposes of our State Prison, and that we owe him some return for such generosity. I am quite familiar with the State title to its prison property. The title to the lands in ^nestion never was in any of the Fico family, and the State paid to Its jrrantor all such land was worth. The nomination of Judge Sharpstein is of somewhat different char- acter. I have known this gentleman for twenty-six years. In eighteen liundred and fifly-two, he was in the State Senate of Wisconsin, while I was Speaker of the Assembly. He was subsequently District Attorney of the United States. I have known him since his residence in San Francisco. First a Democrat, he became a Republican, when that party became dominant, andthe has returned to his wallowing at the earliest opportunity. He was assailed for malpractice in Wisconsin, as shown by its law reports, though it is but fair to say that it is chiimed his con- duct was fully explained at the time he was appointed Judge by Gov- ernor Booth. Nothing that I have seen or heard, however, oaa created with me confidence in him. Leaving doubtful objections, there are mme which put him beyond the pale of favorable consideration. After the termination of his appointment, the people preferred another can- didate for Judge. Neglected by both Democrats and Republicans, Judge Sharpstein turned with gi'eat celerity to the sand lots. In a speech made on that classic ground, in language somewhat different iiubrro from the coarseness of Kearney, though the same in virulen», he attributed to the Government of this State, and the influences controlling wir people, to the Executive, to the Judiciary, and to the profession of which he was a member, every wickedness and villainy. These charges and assertions were unaccompanied h^ any explanation or specification ; they were simply examples of vindictive vituperation. This violent ana vile language was used by this man (long engaged injudicial haaineas), and was uttered to a mob, utterly incapable of reason, already heated to the point of threatening the lives and property of quiet men and good citizens, and was apparently used for the sole purpose of still further exciting the mob to not, violence, and bloodshed. Every gen- tleman must use his own judgment as to these nominations; mine forbids me to vote for a man who casts dishonor upon himself, his pro- fession, and the institutions created for the purpose of securinp the public peace. It is said we ought not to attack Judge Sharpstein in his abaence. It is difficult, at leaat for me, to see a more proper time ^d place to investigate the character and claims of a candidate for office than the time when, and the place where, they are submitted to, and are to be acted upon, by those who have the power of election or refusal. It seems to me tnat a man who makes such assaults upon the character and conduct of those occupying the highest official positions in the State, and upon the whole legal profession, to a mob where an attempt at defense would be met by howling insult, if not with personal assault, is a very poor case to challenge decent and i^uiet discussion here. I beg * 1 to the gentlemen from San Francisco that they instruct their eaodidiate, that if he is to give blows, he might expect blows in return, and that they earnestly endeavor to reform the sand lots, of 'which they are the fruit, so as to entitle them to the courteous treatment they elaun, and which they have hitherto refused to all with whom they >av« disagreed. Ut. MURPHT. Mr. President : I don't rise, sir, for the purpose of ^Koodiiig the nomination of any of the gentlemen who have been placed ia neiniagtion here. Keither do I intend to make a lengthy speech, but >>U]i)y (ogiT« to the delegates In this Convention the reasons for the vote which I intend to cast. I occupy a position probably different from roost of the members on this floor, lutving been elected as an Independent. Not having received my nomination from any party, whether Non-Par- tisan. Democratic, or Biepublican, or Workingmen, but being supported by the great majority of the district which I have the honor to represent here. Now, sir, I claim it to be the duty of the members on this floor to throw aside all partisan prejudice and vote according to the dictates and will of the majority. The question presented' here for our consideration at the present time, is to fill the vacancy caused by the resignation of Thomas Morris, of San Francisco. The question whether he was eligible or not does not enter into the contest at the present time. I claim, sir, that the seat should be filled by a representative of the same constituency which he r^Ments. I don't claim thatanjr body of men upon the floor of this housHpie Workingmen — have the right exclusively to name the man to fill tRTs position, but I do claim that the wishes of these gentle- men should be respected. I understand that the people of San Fran- cisco, at the last election, indorsed the principles and the platform upon which this man Thomas Morris was elected, and I intend, as far as I am concerned, to act independently of all imrties, and cast my vote for Sharpstein. [Great applause on the Workingmen's side.] Mk. JOYCE. Mr. President: I rise to indorse the nomination of Judge Sharpstein. I don't intend to occupy your attention for any long lengSi of time, by any long speeches. It is a well known fact that this famous sand lot that the gentleman speaks about is the decJared enemy of all forms of monopolies, bank rings, railroad monopolies, land monopolies, [Applause.] 'That is the reason, Mr. President, that these men are not going to sit still and allow the name of Judge Sharpstein to come np without a fight. That is the reason they bring it up. Mr. SMITH, of Kern. Mr. President: I do not rise for the purpose of seconding any nomination, but for the purpose of explaining m^ vote. I was elected as a Non-Parilsan delegate at large, and I deem it necessary for me to explain the vote I shall cast for Sharpstein. I liolieve that this Oonveutlon has the legal right to choose any man it .'^es fit to fill this vacancy, but I do not believe the Convention has the moral right to ignore the expressed will of the majority of the voters of San Francisco. I believe that I have never met Judge Sharpstein. I know I do not know him personally. I am personally acouainted with the other gentleman nominated here, and 1 have all confidence in him, and all respect for him. If I but consulted my own wishes and opin- ions in this matter, I would cast my vote for the other gentleman ; but respecting the will of the majority of the voters of San Francisco, I shall cast my vote for Sharpstein. [Applause.] Mr. HAGER. Mr. President: I rise, sir, to place in nomination another candidate for this position, and in performing this pleaaant duty I have nothing to say regarding the other gentlemen who have been named here. I have known Judge Sharpstein, not intimately, and I have nothing to say against him, for I know nothing of my own knowl- edge. As to Mr. Lloyd, I have known him for tncnty-hve years, as a bright student at law. But after the eulogy pronounced upon him by Colonel Barnes, it would be unbecoming of me to say one word against him ; on the contrary, I rather feel proud of him. But I desire to place another candidate before the Convention, and inasmuch as there is a lack of harmony among the San Francisco delegation, I am in hopes that I can pour oil on the troubled waters by presenting a man against whose character and qualifications nothing can be urged, as far as I know. I present the name of J. C. Burch, a gentleman who has been honored by the people with a seat in the LoglUature of this State, and a position in the Congress of the United States; a gentleman who was appointed by Governor Haight a member of the Code Commission, which position he filled with peculiar ability. He is particularly well qualified for the duties which he will be required to perform if elected to a seat in this body. I am not inclined to indulge in words of praise, or to pass any eulogy upon Judge Burch, but his name is associated with tne early political history of the State. It has been said — I have heard it reported — that Judge Bun-h sought a nomination In the Non- Partisan Convention In San Francisco. He informs me that such is not the fact. He did not seek the nomination of the Non-Partisan Convention ; did not seek the nomination of any Convention. He was placed upon one of the local tickets — the ticket of the party to which he belongs-— and defeated. But he did not seek that or any other nomination. Mr. TINNIN. Mr. President: Nothing short of a public duty would induce me to inflict a speech upon this Convention, for I am satisfied that they have been sufficiently talked to. But I shall claim a few moments indulgence to state the reasons why I second the nomination, and will supi>ort Mr. Burch for the position to which he has been nom- inated. I have known the gentleman, and been almost constantly asso- ciated with him, for twenty-six years in this State. I knew him first as County Clerk of Trinity (jounty ; afterwards as District Attorney of the same county; afterwards as a member of the Assembly, then as a mem- ber of Congress from the northern part of the State, and afterwards as a member of the Code Commission, which office he filled for about four years. In all these positions in which he has been intrusted, he dis- charged his duties honestly and faithfully, and with marked ability; and I am satisfied that from his long experience and long association with the people of this State, he will fully comprehend what is wanted in the organic law. I think in the discharge of that arduous duty he will give satisfaction to the people of this State. Mr. HEISKELL. Mr. President: It gives me great pleasure to sec- ond the nomination of Mr. Burch. He is a life-long Democrat, and has held high and responsible positions, and has filled them with ability. He does not come here with long petitions in his behalf, but bis spotless record is his shield, and on that he rests. Mr. HAIfVEY. Mr. President: It may seem preposterous, in view of all that has been said, and the eloquence that has been expended in behalf of the several candidates, for me to name another gentleman for the position of delegate to fill this vacancy. But I shall do so, never- , Digitized by Laoogle 52 DEBATES AND PROCEEDINGS Friday, thnlen. I have the honor and the pleasure to nominate for this position Mr, Smith B. Thctnfisoii, of San Franeiieo; and in placing this gentle- iDRii in uoniinnlion, vvith all due deference to the legal gentlemen on this ITcnir, ntlnir me tri Miy that the legal fraternity is well enough repre- 3?nl«d, nad in nrviiiinuting Mr. Thompson I will say that he is a carpen- ter liy iic(>iij^itiiin, and is known as such throughout the City of San Fmnpiisco; and I will ray further, that he has received the indorsement of n \arff aiinibrr nf the business men of San Francisco, as well as of ii)«mher> of thi^ Bft>-: gnd in connection with his occupation I will state llinl I bcliI.■v<^ liiin U> lie a true working man, and he is in all respects welt (|uallfii'd tn fill the position. It is an old saying, hut a true one, Ihnt tixi mnny conkn spoil the broth. I intend no reflection upon the liignl fratcrnilY here, but as long as they are so ably repc^^ed, and as their murk!) will appear so frequently in the ConstitutmrfB' us have a carpenter to plane nnwn these little technicalities. FIRST BALLOT. The n>ll wm calleil. with the following result: FOB BHABPSTKIX. Ayen, Harrison, Reddy. ^rbjouT, Herold, Reynolds, Hurry, Herrington, Ringgold, Burton. Hughey, Rolfe, BeeiBlccher, Hunter, Smith, of 4th District, Boll. Joyce, Smith, of San Francisco, Bnrt, Kenny, Soule, ConitoD, Rleine, Stedman, Croi*!, Ijarkin, Sweasey, DflviB, Lavigne, Swenson, Dnftti, Lindow, Tuttle, Dowlrng, Mansfield, Vacquerel, Doylr, McCoy, Walker, of Marin, Eipy, Morse, Wellin, Farrell, Murphy, West, Finney, Nason, Wickes, Krend. Nelson, White, Omduui, ^feun8be^, Wyatt — 56. (Trace, O'SuUivan, FOB LLATD. Bame?, Graves, Schell, Belcher, Gregg, Shatter, Bittgs, Hale, Shoemaker, Boucher, Hoge, Shurtleff, CnjiSi-s. Jones, Stuart, (Ihiipman, Larue, Townsend, Olmrles, McCallum, TuUy, ('i)Wileii, McComas, Turner, Uod ley , nf San Jnnqu in, McConnell , Van Dyke, DunJaji, McFarland, Van Voorhies, Eftgon, McNutt, Walker, of Tuolumne, fklferton, Mills, Waters, Brtny. Porter, Wil8on,of San Francisco, Frer>ttioiii FuUiam, Winans — 44. fHiiatiek, Reed, FOB TBOMFSOH. Andrew!, Inman, Schomp, Hlt•l^k^lL'f, Lampson, Smith, of Santa Clara, Diidley, of Siilftno, Lewis, Steele, ftall, Martin, Stevenson, Harvey, Moreland, Webster, Uilbom, Prouty, Weller— 20. HitchtiH-lt, Rhodes, FOB BDBCH. Bta?'i Holmes, Ohleyer, Bogge. Howard, Overton, OhTvey, Johnson, Swing, Hftper, Keyes, Tinnin, Hftukell. Noel, Wilson, of Tehama— 15. FOB PICO. Brown— t, Wliiil»> iMiriilMriir rotes cast . 136 Ni?<*e«ary bin vUftk^e 69 Mr. ShHr|KnnM It will b* antil Mondajr next at half-pMt twelve A. n. Mr. white. I move to amend that it be until to-morrow morning at ten o'clock. The president. The question is on the resolution of the gentle- man from Sacramento, Mr. Edgerton. Mr. McCALLUM. The question is on the shortest time — on the amendment. Thk PRESIDENT. According to the opinion of the Chair the ques- tion is on the adoption of the resolution. The motion of the gentleman from Santa Cruz, Mr. White, is a separate and distinct motion. Mr. edgerton. The Question is on the longest time first. By a special rule here in the California Legislature it is the shortest time, but not so in general parliamentary law. The ayes and noes were demanded, and the rerolution loet by the following vote : ATES. Belcher, Harvey, Pulliam, Bernr, Hilbom, Rolfe, Blackmer, Hitchcock, Schell, Baggs, Holmes, Schomp, Boucher, Jones, Shailer, Cowden, Kclley, Shoemaker, Eagon, Larue, Smith, of 4th District, Edgerton, Mansfield, Stuart, Freeman, Martin, of Santa Cruz, Swing, Glascock, McFarland, Tully, Graves, McNutt, Van Voorhies, Gregg, Murphy, Waters, Hager, Noel, Wilson, of 1st District, Hale, Overton, Winans — 13. Hall, NOIS. Andrews, Finney, Moffat, Ayers, Freud, Moreland, Barbour, Garvey, Morse, Barnes, Gorman, Nason, Barry, Grace, Nelson, Barton, Harrison, Neanaber, Beersteicher, Heiskell, Ohleyer, Bell, Herold, O'Sullivan, Biggs, Herrington, Porter, Brown, Howard, . Prouty, Burt, Hughey, Beddy, Caples, Hunter, Reynolds, Chapman, Inman, Rhodes, Charles, Johnson, Ringgold, Condon, Joyce, Shurileff, Cross, Kenny, Smith, of San Francisco, Crouch, Eeyes, Soule, Davis, Eleine, Stedman, Dean, Lampeon, Steele, Dowling, Larkin, Stevenson, Doyle, Lavigne, Sweasey, Dudley, of Solano, Lewis, Swenson, Dunlap, Lindow, Tinnin, Estey, of Contra Costa, McCallum, Townsend, £vey, McComas, Tnttle, Farrell, McConnell, Vacquerel, Filcher, McCoy, Van I^ke, White, Wilson, of Tehama. Wvatt— 91. " Walker, of Marin, Wellin, Walker, of Tuolumne, West, Webster, Wickes, Weller, Mr. HILBORN. I move that we do now adjourn until to-morrow morning at ten o'clock. On this I demand the ayes and noes. Mr. WHITE. I move as an amendment, that when the Convention adjourns to-day it be to meet to-morrow at ten o'clock a. m. Mr. WILSON, of San Francisco. I move as an amendment, to adjourn until eight o'clock this evening. Mr. McCALLUM. A motion to adjourn now cannot be coupled vrith a motion which fixes the time. It must be fixed first before we adjourn. Thi PRESIDENT. The gentleman from Santa Crux, Mr. White. moves that when this Convention adjourns it adjourn to meet to-morro«r morning at ten o'clock. The motion prevailed. At five o'clock and thirty minutes r. x., dn motion of Mr. Hilbom, the Convention adjourned. EIGHTH DAY. SACRAMRirro, Saturday, October Sth, 1878. The Convention reassembled at ten o'clock a. m., pursuant to adjoam- ment. President Hoge in the chair. The roll was called, and members found in attendance as follows : rRISRNT. Andrews, Hall, Proutv, Ayers, Harrison, Pulliam, Barbour, Harvey, Reddv, Barnes, HeiskeU, Reed, Barry, Herold, Reynolds, Barton, Herrington, Rhodes, Beerstecher, Hilbom, Ringgold, Belcher, Hitchcock, Rolfe, Bell, Holmes, Schell, Berry, Howard, Schomp, Biggs, Hughey, Shaaer, Boggs, Hunter, Shoemaker, Boucher, Inman, Shurtleff, Brown, Johnson, Smith, of 4th District, Burt, Jones, Smith, of San Francisco, Campbell, Joyce, Soule, Caples, Rennv, Stedman, Chapman, Keves. Steele, Charles, Kleine, Stevenson, Condon, Lampson, Stuart, Cowden, Larkm, Sweasey, Cross, Larue, Swenson, Crouch, Lavigne, Swing, Davis, Lindow, Tinnin, Dean, Mansfield, Townsend, Dowling, Martin, Tully, Doyle, McCallum, Turner, Dudley, of Solano, McComas. Tuttle, Dunlap, McConnell, Vacquerel, Eagon, McCov, Van Dyke, Edgerton, McFarland, Van Voorhies, Estey, of Contra Costa , McNutt, Walker, of Marin. Evey, Moffat, Walker, of Tuolumne, Farrell, Moreland, Waters, Filcher, Morse, Webster, Finney, Murphy, Weller, Freud, Nason, Wellin, Garvey, Nelson, West, Gorman, Neunaber, Wickes, Grace, Noel, White, Graves, Ohleyer, O'Sullivan, Wilson, of Tehama, Gregg, Winans, iX' Overton, Wyatt, Porter, Mr. President. Blackmer, Glascock, Casserly, Huestis, Dudley, of San Joaquin, Kelley, Estee, of 1st District, Laine, Fawcett, Lewis, Freeman, Miller, Mills, O'Donnell, Smith, of Santa Clara, Terry, Wilson, of Ist District. LIAVR OF ABSERCR. One day's leave of absence was granted to Messrs. Lewis and Glas- cock, and leave of absence during the morning session was granted to Mr. Blackmer. The Journal of yesterday was read. THR JOVRMAL. Mr. STEDMAN. I notice that we have never had a full Journal read. Now, it is evident to the minds of all this Convention, and there was conclusive proof yesterday, that mistakes will occur, and that they will disagree. I submit that it is proper, when the ayes and noes are called, that they should be read the loUnwing morning for correctioD. I understand that it is customary in all legislative bodies to do so. I would call for the full reading of the Journal. Digitized by Google Oct. 5, 1878. OF THE CONSTITUTIONAL CONVENTION. 55 The PRiiBIDENT. If the Couvention desires to have the ballots read over, the Secretary will read. Ma. ROLFE. I move that the further reading of the Journal be dis- pensed with. Carried. PKIKTINO OP TBI JODBXAL. Mb. BEERSTECHER presented the following resolutio^: Bmolrtd, That tb« daily Journal of this CoDTcntlon be printed by the State PrJBttDs Offlce, and that five coplea of the previoos day's procMdings be placed upon csch member's desk in the Assembly Chamber each morning daring the session of tlis CoaTeation. Mb. BEERSTECHER. It seems to be a proper thing, in view of the bet that it would show each member exactly how the ayes and noes sre recorded on the previous day's Journal. He can take up the printed Journal that is upon his desk, and he can examine the previous day's proceedings, and if there is any errors in those proceedings he can call attention to the fact, and he can have it corrected. Of course the daily Joomal we expect to have printed, and it is proper that it be printxl and placed upon our desks the succeeding mommg after the proceedings are taken. I believe that has been the regular course in the Senate and the Assembly. Ma. BARNES. Mr. President: In view of the fact that the people of this State are grcnning nnder the burden of taxation, and that the mover of the reeolution, as well as myself, is here for the purpose of pre- venting any public expenditure of any form or description, whether necessary or otherwise, I move that the resolution ofTered by my friend from San Francisco be referred to the Committee on Expenditures and Contingent Expenses, to ascertain and report the probable cost of the extravagance proposed by the gentleman from San Francisco. [Laugh- ter and applause.] Ms. REYNOLDS. My facetious friend from San Francisco has talked away five dollars worth of time upon that point. Perhaps I will exceed him in expense to the State. The Act calling this Convention provides that the Convention shall keep a Journal, and print it. Now there are two objects in printing the Journal. One is, that it may be kept for the daily use of the members; the other is, for preservation. Now we do not incur any additional expense if we cause the Journal to be printed daily, and the proof-sheets laid on the desks of the members, tu show what were the proceedings of the previous day. Afterwards the forms will be made up and a suflScient number — whatever number the Con vention orders — will be struck off, and, at the end, bound for preserva tion. When the Secretary reads the journal there at the desk in the morning, half of the members in this ball cannot understand a quarter of what is read. The Journal is read, and now and then a member moves to correct something, but two thirds of the members are unable to hear half that is read, and so the matter goes over and we know noth- ing about what is in the Journal. At my desk I could not hear a dozen words of the Journal read this morning. I am unfavorably situated, as compared to sonae others, it is true. If we are going to print the Journal tt all, we may just as well have it printed now, and have the proof- eheets laid upon our desks every morning for our use. So far as the expense is oonoem«d, I am sorry that the dignified gentleman from San Frsncisoo, Mr. Barnes, should waste time in raising such a question as that. He. NOEL. I am opposed to the resolution for this reason : when we have appointed an official reporter, the object of the resolution will be fully attained without any additional expense to the people of the Sute. Mb. EDGERTOX. The gentleman from San Francisco, Mr. Rey- nolds, is io error when he says that the law provides for the printing of this Journal. Section six provides that " a Journal of the proceedings of the said Convention shall be kept, and shall, at the final adjournment thereof, be filed in the office of the Secretary of State, and the Constitu- tion agreed to by the Convention shall be recorded in his office." I know, >ir, by experience as a member of the Legislature, that very great oon- venienee baa ensued from having a resolution adopted similar to this, and I suppose that this Convention will certainly order this Journal to be printed, or preserved in some form, and deposited in the State Library. I am in favor of the resolution, except in this particular: I do not see vbat necessity there is for five copies of the Journal to each member. I would like to hear from the gentleman why five copies should be pnoted. Me. BEERSTECHER. I merely inserted the word five copies, and I am perfectly willing that if the Convention sees proper that two copies ahonld be substitutes for five copies. As the gentleman from Sacra- mento has very aptly said, this Journal, when pnnted and preserved by OS, can be used as s matter of reference. We can turn back and see what has been done. Unless we have a Journal of this character we unnot see what resolutions have been offered here nor what business its been done. This does not necessitate the appointment of a Fhono- grapbie Reporter. It is merely the printing of the minutes thfit are read here every morning, and it seems to me a matter of absolute neoes- ■ity that we should have a memorandum of the proceedings. It will be imponible to retain In our memory everything that has taken place here. If we have a printed Journal it shows us clearly what motions and what resolutions have been made, voted down, lost, or carried. I have examined the proceedings of a number of the Constitutional Conven- tions that have been held in this country during the last forty years, and ia every one of them have Journals of this character been preserved and printed. Even those Conventions that have had their debates and pntceedings printed in full, have also,in addition thereto, kept a Journal whidi has been printed and placed upon the members' tables in the Docmng. And, gentlemen, it is a matter of absolute economy and a matter of neoesaity, and I hope that the motion will prevail, and that we will have the benefit of a printed Journal. The PRESIDENT. If there he no objection to the amendment making it two copies, instead of five, it will be so amended. Mb. EDGERTON. 1 accept the amendment. I only rise to say that if any gentleman votes upon the theory that a Journal is to be published — and I suppose every gentleman is in favor of preserving the proceedings in some authentic form — that as to cost, the Journals can be laid on our tables every morning, with but little additional cost The only addi- tional cost will be the paper involved, and a little ink. That is all there is of it Mb. TINNIN. I desire to sustain the reeolution oflfered by the gen- tleman from San Francisco, Mr. Beerstecher. The same matter was brought forward in the State Senate two years ago. Members could find the proceedings of the day before on their desks, and see whether any mistakes had oeen made m the proceedings of the day before. Now, so far as the number of copies are concerned, I say that there can be no necessity for the amendment, for the reason that five copies will cost little more than two copies. I am sorry that the gentleman accepted the amendment offered by the gentleman from Sacramento. The PRESIDENT. The question is on the motion of the gentleman fh>m San Francisco, Colonel Barnes, to refer the matter to the Commit- tee on Expenditures and Contingent Expenses. Mb. EDGEBTON. I hope that will be voted down. Mr. HA6ER. Mr. President: This Act, sir, does not require this Journal shall be printed; that is a mistake, so far as my investigation goes. Is looking at it there is no requirement in the Act for the print- mg of this Journal. If my friend can find any such provision I should like to have it pointed out. It says that a Journal shall be kept and certified by the proper officers of the Convention, and then filed in the Secretary of State's office, and I presume some future Legislature would have it printed if the Constitution should be adopted. At all events it will bo there as a memorandum in case any person wants to refer to it I am not very tenacious whether this Journal is printed or not; but I think that it is very important that reference should be made to a committee 4o ascertain what shall be printed in that Journal. In the course of time various propositions will come before this Convention, embodying the points which it is desired to incorporate in the new Constitution. They will come forward in the shape of resolutions, and all these propositions would have to be printed in the Journal. At the same time, under the rule for printing, they will have to be printed in another form for the use of the members. Therefore I think it is very important to send it to a committee, who shall judge what shall be printed, excluding all propositions that may be o^red as amendments to the Constitution and that must necessarily be printed by themselves; otherwise we will have a volume of perhaps two hundred pages every morning. Mb. BARRY. Mr. President: i think the Journal should be printed, but I would not favor more than two copies. I think two copies would be sufficient. I agree with iny friend Colonel B^nes that the resolu- tion should be referred to the Committee on Contingent Expenses. Mb. BARNES. Mr. President: I wish to say, in explanation of my motion, that I quite agree with my friend from San Francisco that something of the kind should be done, and the reason I moved to refer to the committee is because I think that anything that involves an expenditure of monev ought to be baaed upon an examination, and as it does not hurt anybody to-day, I think it ought to go there. That is all. Mb. RINGGOLD. Mr. President: I understand that this rule would require an additional clerk. The PRESIDENT. No addiUonal clerk would be required. The question is on the motion to refer to the Committee on Expenditures, with instructions to examine into and report the probable cost The motion to refer prevailed. FHOHOOBAPBIC BEPOBTEB*. Mb. NOEL. Mr. President: I offer a resolution : Smoked, That a committee of five be sppoiDtrd by the President, whose dnty tt •liall be to prepare and report to the Conveutlou, at its UHmbling on Monday next, a resolntion for Its considention, defining the dnties of the official reporter of the proceedings and debates of the Convention, aad fixing definitely his oonipensation. Mr. NOEL. Mr. President: We have expended a very considerable portion of time here wrangling over this subject and in idle debate, and nothing has been accomplished. The object of the resolution is simply to have the matter presented to the Convention in such a shape that we can act upon it definitely, and that without delay. Mb. LARKIN. Mr. President : I think this Convention has indi- cated its views very clearly on this proposition. I therefore move to lay the resolution on the table. The resolution was laid on the table. THB CORSTITDTIONS. Mb. HOLMES presented the following resolution : Bttolvad, Tbtt the State Printer be instmcted to print five hundred copies of the present SUte ConttituMon, with the law pwsed by the last Legiilature calling this Convention, and that each member be furnished with two copies. Mb. BARNES. Mr. President: There has already been laid upon the desks of the members, and I presume of the gentleman who offers the resolution, a very handsomely gotten up copy of the present Consti- tution of the State of California, interlined with blank leaves for the purpose of annotation, and I hardly think we require another. More than that, any person who desires a copy of the law can have it on application to the Secretaij of State, who will furnish him with a copy of the statutes containing it. Mb. HOLMES. As the effect of my resolution was simply to author- ise the State Printer to do what he had already done without authority, I withdraw it ' Mb. EDGERTON. Mr. President: I move that five hundred copies of the Constitution of the United States be printed and distributed among the members. The copy alluded to by Colonel Barnes embraces only the | Digitized by V^.' il^ 56 DEBATES AND PROCEEDINGS Saturday, Constitution of the Slate. It is important for members to have the Con- stitution of the United States in convenient form as well as the Constitu- tion of the State. I move, tlierefore, that five hundred copira of the Constitution of the United States be printed and laid on the desks. Mb. FILCHEK. Mr. President: I would state, perhaps, for the edi- fication of the gentleman from Sacnmento as well as of this body, that I have had furnished me, on requisition, by the Secretary of State, a handsomelv and neatly bound volume of the Constitution. Mb. £DGERTON. Mr. President: As I am already sufficiently edi- fied, I withdraw the motion. PILLING TACANCIBS. Thk PBESICENT. The Convention will now proceed to the special order, which is the election to fill vacancies. Mr. hager. Mr. President: On behalf of Mr. Burch and at his request, I desire to return to the Convention — to those who have sup- Sirted Mr. Burch — his thanks: and at his request I withdraw his name, e is under obligations to his friends for their support. Mb. BARNES. Mr. President : As my colleague from San Francisco has already so well expressed it, I desire' to thank the members of this Convention for the support which they have given to the gentleman whom I nominated. It is not his desire to continue the contest here. His name was submitted more at the urgent re(|uest of others than from any ambitious sentiments of his own, and I therefore, at his request, with- draw him from this contest Thi secretary began to call the roll. When Mb. BROWK'S name was called that gentleman said: Mr. President: I wish to state some of the reasons why I shall vote in a certain way. Kow, for instance, I was elected by a certain constitu- ency holding certain political proclivities. If there had been a vacancy cauaed by my death, or by any other cause. I am satisfied — -yes, I am thoroughly convinc«l — that ray constituents, those that supported me, would have thought very strange if this Convention had taken into con* sideration the case of filling the vacant^ and filled it with a man of dif- ferent sentiments — with sentiments different from those of a majority of the people i those that put me in this (xisition. And I am under the impression that the same principles will apply throughout to San Fran- cisco, and tliat,as the Workingmeu won there, it is, upon that principle, right and proper that we should put a man in who is of their political views. And m view of this sentiment in regard to it, as a principle which I think should prevail, I shall vote for Mr. Sharpstein. The roll was called. Mb. BARNES. Mr. President: I ask now that before the vote is announced the roll shall be called with the statement aa to how each member voted, in order that there may be no mistake. It was so ordered, and the President announced the result of the bal- lot as follows : SBVIHTH BALLOT — FOB SBABrSTEIN. Ayers, HeiskeU, O'Sullivan, Barbour, Herold, Reynolds, Barry, Barton, Herrington, Howard, Ringgold, Beerstecher, Hughey, Smith, of 4th District, Bell, Hunter, Smith, of San Francisco, Brown, Joyce, Soule, Condon, Kenny, Stedmau, Cross, Kleine, Sweasey, Davis, Larkin, Swenson, Dean, Ijavigne, Swing, Dowling, Lindow, Tuttle, Doyle, Mansfield, Vacquerel, Walker, of Marin, Evey, McCoy, Farrell, Moffat, Waters, Finney, Morse, Wellin, Freud, Murphy, West, Garvey, Nason, Wickes, Gorman, Nelson, White, Grace, Neunaber, Wyatt— 01. Harrison, FOB TBOHPSON. Andrews, Hall, Prouty," Barnes, Harvey, Pulliam, Belcher, Hilbom, Reed, Berry, Hitchcock, , Rhodes, Biggs, Hoge, Holmes, Schell, Blackmer, Schomp, Boggs, Inman, Sbafter, Boucher, Johnson, Shoemaker, Campbell, Jones, Shurtleff, Caples, Keyes, Steele, Chapman, Lampson, Stevenson, Charles, Larue, Stuart, Cowden, Martin, Tinnin, Crouch, McCallum, Townsend, Dudley, of Solano, McComas, Tully, Dunlap, McConnell, Turner, Eagon, MeFarland, Van Dyke, Edgerton, McNutt, Van Voorhies, Estey, Moreland, Walker, of Tuolumne, Graves, Noel, Webster, Gregg, Ohleyer, Weller, Hager, Hale, Overton, Wilson, of Tehama, Porter, Winans— «». Whole number of votes cast 1 131 Necessary to a choice . 66 Mr. Sharpstein received 81 Mr. Thompson received 69 Mr. 8. B. THOMPSON, having received a majority of all the votes cast, was declared duly elected as a delegate to fill the vacancy caused by the resignation of Thomas Morris of San Francisco. Mr. Thompson was escorted to the bar of the Convention by Messrs. Edgerton and Sliafter and took the nonstitutional oath of office. Thb PRESIDENT. The next order of business is the election of a member to fill the vacancy caused by the death of H. H. Haight. Mb. van dyke. Mr. President: I have the honor, as it is a pleas- ure, to put in nomination to fill the vacancy caused by the death of ex- Govemor Haight, Mr. J. West Martin, of Alameda County. It was known some time before the assembling of the Convention, in Alameda County, by a conference of the delegates from that county, that Mr. Martin would be put forward in this Convention from that county to supply that vacancy. So that we present to this Convention, so &r as that part of the State is concerned, a name that is known, and the sug- ge-stion of his name for that place, I may state to the Convention, met with the entire approbation of Alameda County, as being a man in every way suitable for tne place. Mr. Martin has heen on the Board of Re- gents of the University of California from its organization to the present time, and I am informed by his associates on that Board that he has been one of the most active members of that Board. He would be a most valuable member of this Convention in matters pertaining to the educational interests of this State. Mr. President, I will state further, that in addition to having the full support of the Alameda delegation, he has a majority of the district delegates from the Second Congressional District, and, with these indorsements, I appeal to the Convention to elect him to supply the place of Governor Uai^ht. I will state further, that Mr. Martin was in the County Convention in which Governor Haight was proposed as a candidate for delegate at large, and put Mr. Haight in nomination and indorsed the platform on which Governor Haight was nominated and elected. Mb. O'SULLIVAN. Mr. President: As we, the delegates of the Workin^en's P&rty, have appealed in vain to the sense of justice and magnanimity or this Convention to regard the will of the people in the selection of Judge Sharpstein to fill the vacancy from that city, I feel under no obligations to pay any regard to the desires of the majority here in filling the vacancy from the Second Congressional District I shall certainly not vote for Mr. Peachy, the author of the infamous Coolie bill of eighteen hundred and fifty-two and eighteen hundred and fiflv-three. Mb. HOWARD. I call the gentleman to order. Mb. BARNES. Mr. Peachy has not been nominated before this Con- vention. It will be time enough for gentlemen to attack him afWr he is put in nomination. Until then, such remarks are out of order. The president. The point of order is well taken; it is for the Convention to say whether the gentleman shall be allowed to proceed in order. Mb. HOWARD. Mr. President: I have to say that Mr. Peachy is not only not nominated, but that his name will not be presented to this Convention. Mb. DUDLEY. I move that the gentleman be allowed to proceed in order. Mr. O'SULLIVAN. Mr. President: I nominate G. Thom for the vacancy from the Second Congressional District — a gentleman who ran as delegate at large on the Workingmen's ticket — a gentleman indorsed by the people of Alameda County and the people of the State — a Work- ingman, and a gentleman who is capable of filling this position as well as any of those named in opposition. Mr. van VOORHIES. Mr. President: I am authorised by Judge Lamar to state that he is not a candidate before this Convention for any position whatever; and he desires that his friends do not vote for him. Mb. MURPHY inquired if Mr. Peachy was a candidate, and was informed that he was not. The CHAIR declared the nominations closed. The secretary began to call the roll. Mb. REYNOLDS. Mr. President: I beg leave to place in nomination the name of that inveterate foe to corponUions, that life-long friend of the people, the name of that great and good man, Leland Stanford. I do this, Mr. Chairman, on the ground that I prefer to deal with princi- pals rather than agents. The suggestion The president. It is out of order for the gentleman to make any remarks while we are voting. The gentleman can make his nomination but not a speech. [Cries of^ " Leave," " Leave."] The president. If there he no objection the gentleman may go on with his speech. The gentleman has leave to proceed. Mb. REYNOLDS did not avail himself of the privilege. The roll was called, with the following result : Andrews, Ayers, Barnes, Belcher, Berry, Bigg». Blackmer, Boggs, Boucher, Brown, Burt, POB mabtin. Campbell, Evey, Caples, Pilcher, Chapman, Charles, Garvey, Graves, Cowden, Gregg, Crouch, Hager, Hafe, Dudley, of Solano, Dunlap, Hall, Eagon, Harvey, Edgerton, Heiskell. Estey, ^ilbom. Digitized by' >mmittee on Lands. Mr. EDGERTON, There is a Committee on Public Lands. This is an additional report, in addition to the committee established the other day. Mb. AYERS. I intended to move such a committee. If other committees should be wanted they can be appointed at any time by a motion. Mb. BARBOUR. This is the reason I wish to have the reports printed, in order that members may know what the committees are. These committees are provided for. There is no disposition to strike out of the report any of these committees, but this Convention must know what the standing committees are. Now, it is just as necessanr, and then if we find it necessary to have more committees we .will have before us a light with which to govern our conduct. That part of the report comes in the report of the Committee on Rules. The number of the committees is printed in the rules, and provision is made for print- ing five hundred copies of the whole thing. Thr chair. The gentleman from San Francisco, Mr. Estee, moves that this report be adopted. The gentleman from San Francisco moves that the matter be postponed until to-morrow at eleven o'clock, and that five hundred copies, both of this report and the former report, be printed. The question is on the motion of the gentleman fh>m Son Francisco. Mr. REYNOLDS. I would suggest that the gentleman from Saa Francisco for the present withdraw his motion to postpone and print until the whole report of the Committee on Rules be read. And the reason is this : there is not much probability that the house will adopt the report of the Committee on Rules as a whole, or perhaps that part of it relating to standing committees, until the members have had an opportunity to examine the report. 'They can only do that when it has been printed, and it will doubtless be read as a whole, ordered printed, and further action delayed until to-morrow morning. I think that will be the shortest way of'^ getting at it More time will be consumed in members attempting to find out what the report is than it will take to print the proof sheets. It can be easily printed and laid on the tables of members. Mk. EDGERTON. I think the ^ntleman who last addressed the Convention is under a misapprehension in this matter. As I said, this Convention has already adopted a partial report as to what committees should be appointed. I think some twenty-five or twenty-eight com- mittees have already been provided for in the report adopted by this Convention and is now the law of this body, and the President is now engaged in making up those committees. The question now before the Convention does not go to the rules recommended for the government of this body, but simply whether the Convention shall have the addi- tional committees whicn have been recommended. That is all the ques- tion that there is now before this house. The rules are not before the house at all. The committee have recommended the appointment of six or seven additional committees, and that is all there is before the Convention. Mr. ESTEE. Mr. President: If it is necessary to have this partial report, merely suggesting five more committees, printed for the members before they can understand it, then, sir, lam in favor of having it printed; but it strikes me that a half dozen lines can be understood by all the mem- bers of this Convention, and every member in this Convention can tell right now whether we want a Committee on Engrossment, whether we want a Committee on Navigable Waters, on Tide Waters, on Harbors, on Mining, or on Agriculture, Commerce, and Manufactures. That is all the point there is in it. Now, the motion is to put off until to-morrow. I think we might as well settle it right now. If we have reported a com- mittee there that we should not have, let it be stricken out by the vote of this body now; or, if there is any committee to be added, let it be added now. Every gentleman has the right to-morrow, or any day, to move for additional committees, as the necessity for them presents it^lf. That is the practice. Whenever it is found that we need a committee on any particular subject, a member will rise in his place and move for such a committee. It is not expected that your committee will understand all the possible exigencies, but by special request we have reported these, because the President is making up the committees, and because we were expected to report all the committees that we thought ought to be adopted by this Convention. We have done our duty as we understood it, and ask this Convention now to adopt that report, if right, and remedy it, if wrong. Let us not deceive ourselves with the idea that we have got to put it off until to-morrow in order to understand it. I think we all understand it now. I hope the motion to postpone and print will be voted down, for we have more time to-day than we will have to-morrow. Mr. REYNOLDS. I have no objection to the adoption of this part of the supplementary report, and I suggest to the gentleman from San Pranciscco, Mr. Barbour, to withdraw his motion to postpone and print, and that we adopt this part of the report solely with a view to mcili- tating business, for the reason that amendments may be made by the Convention afterwards. Mb. BARBOUR. It seems very difficult for me to make myself understood. I have not objected to these additional committees. I have simply asked that a list of the committees proposed up to the present time, be printed and laid on our desks to-morrow morning, and then if we want additional committees we can have them. I am willing to have the rejwrt adopted now, but I want it printed so that we can see what committees we have provided for. Thr CHAIR. I do not know whether the Convention fairly under- stands the question. The committee made a report the other day report- ing a number of committees, and to-day they make a report suggesting additional committees. The motion of the gentleman from San Fran- cisco, Mr. Estee, is that that report be adopted. The question as to the report on Rules and Regulations is not now involved in this motion. Mr. BARBOUR. I withdraw the part in reference to printing. MRv HALE. Mr. President: I rise to inquire of the Cnairman of the Committee on Rules if it would occasion any inconvenience to have the report printed. If it will not, I desire to renew the motion of the fentleman from San Francisco, and I desire to state wlnr I renew it. Tow, we all know, sir, from our general knowledge of'^ the course of deliberative bodies, that the constituting of its standing committees is a matter of the greatest moment. One of our important committees here, on rules, have made two reports — a primary and a secondary one — the two ostensibly to cover or to provide for the appointment of all the standing committees which will be necessary. Now, sir, while from the reading, or rather from my hearing read this report, I see no reason to demur to it, yet I submit that it would be the part of prudence to have this report printed, showing what the committee recommend, and then when, to-morrow, that report has been examined by every member, if they desire to make amendments they can do it then. Now, I think it will be wise for us not only to have this report printed, but all the reports of our standing committees should be printed and laid upon our desks, to give us a chance to examine them before they are a^ed upon. I therefore renew the motion to print. Mr. EDGERTON. Does the gentleman remember that the Conven- Digitized by Google Oct. 7, 1878. OF THE CONSTITUTIONAL CONVENTION. 59 tim has adopted one re|)oii fixing the number and designation of some twentT-fi'e T twenty-six oommittecs. M«.' HALE. I believe I am correctly informed upon the action of the Coavention. Heretolore a report lias been made, which was announced to be partial in its character; that the Convention adopted that report so far as it goes ,- that now a report is made providing for the appointment of additional committees. The motion is to print the entire report, original and supplementary, and then when it shall come up before the Convention they will all have a better opportunity to eiamioe it in detail, and will be able to say whether they are entirely aatisGed with it. Ma. EDGERTON. Mr. President : I repeat that as to the report of yesterday, it has already become a law of this Convention. The Con- vention almost unanimously adopted that partial report and fixed the mode in which these committees should be appointed. As I said before, the only question before the Convention is whether these five additional committees shall be appointed, and that is for the Convention to deter- mine; audit is suggested by the gentleman from San Francisco, Mr. Barbour, that then his motion to print the entire report would be in order. I hope the report will be acted upon soon, because it is a very important duty in which the President is engaged. Ma. JOYCE. It seems to me, Mr. President, if there is any one thing more than another that deserves the consideration of this Convention, that subject is the Chinese subject. It is one that there has been no rolitical party for the last ten years that has not given it serious atten- tion; yet it seems that the committee has lost sight of it. It seems that it was not sufficiently important for our committee to create a special oommittee for that one subject. Now, I believe that it is para- mount to all other subjects, and I desire that there should be a special committee on that subject alone, and I would now move that the Chinese subject has a special committee for itself. Ma. EDGERTON. The report which was adopted the other day pro- vided for.a committee that covers this case — the Committee on Immi- gration. Ml. JOYCE. My point is this : I do not believe that this Committee on Immigration can deal with this. That affects the United States. We calcuhited to deal with its domestic relations with this State. Ma. EDGERTON. There is in that rejiort a provision for a Committee on Capital and Labor. These two committees cover the whole subject. M«. SHOEMAKER. I move the previous question. M«. CROSS. I second the motion for a committee on the Chinese question. Ts« CHAIR. It is moved and seconded that there be a Committee on Cbraese. Mr. JOHNSON. Mr. President : This Committee on Rules have Imported in favor of certain standing committees. On further advising tme^ themselves they make an addititional, or supplementary report, that four or five additional standing committees are necessary, in their jndyinent Now this is merely a matter of convenience. It is merely dividing out the labor of this Convention among these gentlemen who constitute these different committees. It is simply a division of labor. They have thought that by adding four or five additional committees that they can divide out the labor of the Convention more completely, so that the business of the Convention may be more properly transacted. It does not involve any principle. It does not involve any policy. Therefore I can see no possiole objection at all to the addition of these four or five standing committees to the list which we have already adopted. It seems to me eminently proper that in making his appoint- ments the President should have the names of these committees before him. so as to assign to the different committees those gentlemen who are moet suitable to & on those committees. Now, I understand there is a Committee on Immigration. It occurs to me that the Chinese question can properly come before that committee. It is also suggested to have a Cofflmittee on Labor and Capital, and if the Committee on Immigration is not the proper committee, this Chinese question can be referred to the Committee on Labor and Capital. In other words, whenever there is Miy question as to the proper reference of any particular subject, if the title of the committee does not sufficiently specify or indicate it, the Prraident can say, if it meets with the approval of this Convention, to which committee the subject-matter should be referred. I, too, hold that this Chinese matter should be investigated, but it seems to me there is no occasion for making supernumerary committees. There is no neces- sity for making more committees than are necessary. This Committee on Mes and Order of Business is not discharged, and if any gentleman in this Convention deems that an additional standing committee is neces- sary, that gentleman can rise here and indicate what additional com- jnittee shall be named by this Convention. But it occurs to me that mere is no occasion whatever to make too many committees. We have tkis Committee on Rules, consisting of several gentlemen of experience, •Jotliey report to this Convention that in their judgment five additional "^diiig committees are necessary. It occurs to me that there is no bisection to them at all. It is a mere matter of routine. It does not ttvolve a principle or policy. I am in favor of the motion of Uie gen- "«»»» from San Francisco, Mr. Eetee. Ul BEGRSTECHER. I have a resolution to offer. Va. SHOEMAKER. I call attention to the fact that I moved the P^iousquesUon. »iH 1 *' *!^' Those in favor of the main question being now put _^™^a8c rise. "• previous question was ordered. T»i CHAIR. The original motion was to adopt the report— to that amendment is offered that there be an additional Committee on n.™**- The first question is on the amendment to add an additional '^'tteeonChin^. ^^ayea and noes were demanded by Messrs. Joyce, O'Sullivan, and Mk. BARTON— (When his name was called). I shall vote for the appointment of a Committee on Chinese, and my reason for doing so is this: I believe that the Committee on Immigration has nothing to do whatever with the labors of this Convention. It is strictly and purely legislative in its bearings, and the subject of Chinese is one of local importance to us, which we are determined to handle in this Conven- tion. Therefore I hope that there will be a Committee on Chinese appointed, and that the House will sustain the motion. I vote "aye" for the appointment of the committee. Mk. CAPLB:S— (When his name was called). I am in favor of a special oommittee to consider this subject, but the proposition is thrust in here at an improper time, as I conceive to the confusion of legitimate business. I will say this to the gentlemen in favor of this committee, when they propose such a committee at the proper time I shall vote for it with them ; but as I bi^fore remarked, it has been thrust in here before the question on the adoption of the report of the committee. The question ought to have been simply on adopting the report of the com- mittee. Then, every gentleman on the floor will concede that the gen- tleman could move for an additional oommittee. Therefore I vote " no." Mr. E8TEG — (When his name was called). I do not wish to explain my vote. I wish to aixplain to the Convention exactly how the matter stands. It stands in this way : in the Convention the committee were unanimous in permitting one of the members of that committee, from San Francisco, if be so desired and if this house so desired, to move this house to have such a committee, and then he would necessarily be Chairman of the committee. And with due respect to that gentleman he does not now appear to care about being Chairman of that oom- mittee. I make this statement to show that the committee were not opposed to having one of the standing committees of this House inves- tigate this question. It was done as a matter of propriety and delicacy, and itshould not be charged that this committee were tryiiigto evade it. The committee were unanimous in all these questions, and were unani- mous in permitting, if the house saw fit, the fullest examination of the best committee that could be made to investigate it. I vote "ave." Mb. FREUD— (When his name was called). Mr. President: By leave of the Convention, I should like very respectfully to explain my vote. I concede a great deal that has been said by the Chairman of the oommittee. Undoubtedly much that pertains to the Chinese question probably will and ought to come before the Committees on Immigra- tion, and Capital and Labor; nevertheless the question is so broad, and of such an anamolous character, that in my opinion it should have a special oommittee. Therefore, I shall vote " aye." Mb. JOHNSON— (When his name was called). I think, Mr. Presi- dent, that the committee's report sufficiently covers this ca£e, but inas- much as there is a question of doubt, and inasmuch as this q'uestion ought to be thoroughly investigated, I shall vote "aye." Mr. WICKES — (When his name was called). I do not intend to cast any reflection on the committee when I vote " aye." The roll being completed, the Chair announced the result of the vote as follows : Andrews, Ayers, Barbour, Barry, Barton, Bcerstecher, Bell, Berry, Biggs, Blackmer, Boucher, Brown, Burt, Campbell, Condon, Cowden, Crouch, Davis, Dean, Dowling, Doyle, Dudley, of Solano, Dunlap, Eagon, Edgerton, Estee, Estey, Evey, Fawoett, Filcher, Finney, Freeman, Freud, Garvey, Glascock, Gorman, Grace, Harrison, Harvey, Heiskell, Herold, Herrington, Hilborn, Holmes, Howard, Huestis, Hughey, Hunter, Inman, Johnson, Jones, Joyce, Kelley, Kenny, Keyes, Kleine, Ijampson, Larkin, Larue, Lavigne, Lindow, Mansfield, Martin, of Alameda, Martin, of Santa Cruz, McCallum, McComas, McConnell, McFarland, McNutt, MiHer, Moffat, Moreland, Morse, Nason, Nelson, Neunaber, Noel, Ohleyer, O'Sullivan, Overton, Porter, Prouty, Pulliam, Reddy, Reed, Reynolds, Rhodes, Ringgold, Schell, Shoemaker, Shnrtleff, Smith, of 4th District, Smith, of San Francisco, Soule, Stedman, Steele, Stevenson, Sweasey, Swenson, Swing, Terry, Thompson, Tinnin, Townsend, Tully, Turner, Tuttle, Vacquerel, Van Voorhies, Walker, of Marin, Walker, of Tuolumne, Waters, Webster, WeUer, West, Wickes, White, Winans, Wyatt— 120. Caples, Charles, Gregg, And the amendment was adopted. Stuart — 4. Digitized by Google 60 DEBATES AND PROCEEDINGS Monday, The question being on the adoption of the report, ae amended, it was adopted. Mb. ESTEE. There is another report I think we had better have read. Thk president. No objection, the report of the committee will now be taken ap. BKPORT or COMMITTIS ON BULKS. Mr. FiMldent: Tour Committes on Bnln, Ordpr of BnainMi, and Standing Codi- mlttaes. report the followlag rvlea for the goTemment of the Convention, and respectfolly recommend their adoption. A 0ub.committee compoied of Hesirn. Edgertott, Finney, Unrphjr, Weet, Waters, And Bstee, gATe spectHl attention tu the lalwriouB duty of preparing these nilee, and which rules were in tnm aabmitted to your committee of fifteen, and by them considered and unanimoosly adopted. fieapectfnlly submitted. K. M. ESTEE, Cbalnnan Committee. Hour of meeting. Rule 1. — The Convention shall meet each day of sitting at ten o'clock A. M., unless it shall adjourn to some other hour. Bece»$. Rule 2. — The Convention shall take a recess each day from twelve o'clock M. to one o'clock p. u. Number of members to congtitute a quorum. Rule 3. — Not less than sevenl^-seven members shall constitute a quorum for the transaction of busmesa. Duties of Pregident. Rule 4. — The President, or in his absence the President pro tem., or in the absence of both, such Chairman as shall be selected by the members E resent, shall take the Chair at the hour to which the Convention shall ave adjourned, and shall immediately call the members to order. 2b preserve order, to decide points of order, and may speak to same. Rule 5. — He shall preserve decorum and order ; may speak to points of order in preference to other members, and shall decide all questions of order, subject to an appeal to the Convention by any five members, on which appeal no memoer shall speak more than once, except by leave of the Convention. Appointment of committees. Rule 6. — All committees shall be appointed and announced by iho President, unless otherwise specially directed by the Convention. Signing (^ urrits, vxrrrants, and subpoenas. Rule' 7. — All writs, warrants, and subpoanas, issued by order of the Convention, shall be under his hand and attested by the Secretary. May call any member to the Chair. Rule 8. — The President shall have the right to name any member to perform the duties of the Chair, but such substitution shall not extend beyond an adjournment. 7b have direction of the halL Rule 9. — The President shall have the gen^^ direction of the hall of the Convention and of the galleries. Ko persons, excepting members, oflScers, and attach^ of the Convention, and such persons as may be invited by the Convention, or by the President, shall be admitted within the bar of the Convention. The Chairman of each Committee of the Whole, during the sitting of such committee, shall have the like power of preserving order in the hall and in the galleries. Duties of Secretary. Rule 10. — The Secretary must attend each day, and call the roll, read the Journal and all propositions or resolutions. He shall have the direction of the Assistant Secretaries unless otherwise ordered. Duties qf AssistaM Secretaries. Rule II. The Assistant Secretaries must attend each day, take charge of all resolutions, propositions, petitions, memorials, and other papers presented to the Convention, file and enter the same in the books pro- vided for that purpose, and perform such other duties as may be directed by the Secretary of the Convention. Duties of Minute Clerk. Rule 12. — ^The Minute Clerk must keep a correct record of the pro- ceedings of the Convention. Duties of Journal Clerk. Rule 13. — ^The Journal Clerk must record each day's proceedings in the Journal, from which they must be read eacb, day by the Secretary, and then be authenticated by the signature of the President. Duties of Sergeant-at-Arms. Rule 14. — The Seneant-at-Arms must give a general supervision, under the direction of the President, to the nail of the Convention and rooms attached ; attend during the sittings of the Cpnvention, execute its commands and all process issued by itsauthority ; keep an account of pay and mileage of members, attache, and employ^, and prepare checks for the same. Duties of Assistant Sergeant-at-Arms. Rule 15. — The Assistant Sergeant-at-Arms must attend the sittings of the Convention each day, prohibit all persons except members, officers, and employee, and such other persons as may have the privilege of the floor assigned them by the rules of the Convention, from entering within the iMtr unless upon invitation, and keep order in (he halls, lot^ bies and galleries. Duties of officers at the close of the session. Rule 1*. — The Secretary and Assistant Secretaries, at the close of the session of the Convention, must deliver to the Secretary of State, duly marked, labeled, and arranged, all propositions, resolutions, petitions, memorials, and other papers belongmg to the Convention, and also all books belonging to the same. Order of business. Rule 17. — 1. Roll call. 2. Reading and approval of the Journal. 3. Presentation of petitions and memorials ; under which head shall be included remonstrances, communications from individuals and public bodies. 4. Communications from State officerB; under which head shall be embraced, also, communications from public officers, and from corporations in response to calls for information. 5. Reports of standing committees, in the order in which they stand in the rules. 6. Reports of select committees. 7. Introduction of resolutions and prop- ositions relating to the Constitution. 8. Unfinished business. 0. Special orders. 10. General order. 11. Miscellaneous motions and resolutions. Precedence of motions during debate. Rule 18. — ^When a question is under debate, or before the Convention, no motion shall be received but : 1. To adjourn. 2. To lay on the table. 3. For the previous question. 4. To postpone to a day certain. 5. To commit or amend. 6. To jjostpone indefinitely. Which several motions shall have precedence in the order in which they are named ; but the first three shall be decided without debate ; and no motion to postpone to a day certain, to commit, or to postpone indefinitely, being decided, shall again be allowed on the same day, and at the same stage of the proceedings. Priority of business. Rule 19. — All questions relating to the priority of business shall be decided without debate. Stference of resolutions f when committees must report. Rule 20. — When a motion is made to refer any subject, and different committees should be proposed, the question shall be taken in the fol- lowing order : 1. "The Committee of the whole Convention. 2. A Standing Committee. 3. A Select Committee. Every committee of the Convention to whom a resolution or proposi- tion has been referred, shall report the same to the Convention within fifteen days from the time it is received by the Chairman of the com- mittee, unless further time to report is granted, unless otherwise ordered by the Convention. Every proposition or resolution shall be referred to the appropriate standing committees as indicated by its name given herein. Motion to divide question; to strike out or insert. Rule 21. — Any member may call for the division of a question when the sense will admit of it. A motion to strike out shall be deemed indi- visible; but a motion to strike out, being lost, shall neither preclude amendment nor a motion to strike out and insert. Call of the Convention. Rule 22. — Upon a call of the Convention, the names of the members shall be called over by the Secretary, and the absentees noted; after which the names of the absentees shall again be called over. The doors shall then be shut, and those for whom no sufficient excuses are mode may, by order of those present, be taken into custody as they appear, or may be sent for and taken into custody wherever founa, by the Sergeant-at-Arms, or by a special messenger to be appointed for thstt purpose. Division and count of Omrention. Rule 23. — Upon a division or count of the Convention on any question, no person without the bar shall be counted. Calling the ayes and noes. Rule 24. — On all questions and motions whatsoever, the President shall take the sense of the Convention by ayes and noes, provided five members present shall so require it. When the ayes and noes are taken, no member shall be allowed to vote who shall have entered the Con- vention after the calling of the roll is finished. The names of members shall be called in alphabetical order. Provided, further, that on all resolutions and propositions relating to the Constitution, the final vote shall be taken by ayes and noes. Explaining or changing vote. Rule 25. — No member shall be allowed to explain his vote or discuss the question while the ayes and noes are' being called ; and no member shall be allowed to change his vote after the vote is announced ttova the Chair. Motion to instruct committee. Rule 26. — It shall be the duty of each member who moves that any committee be instructed to inquire into the expediency of amending or revising the existing Constitution, to point out tne amendment which he deems expedient, in writing, to accompany his motion. Commitment and recommitment of motions and reports. Rule 27. — Motions and reports may be committed or recommitted at the pleasure of the Convention, and with or without instructions from the Convention. Motion, or proposition of a subject, different from that under consideration, inadmissible under color of amend?nenL Rule 28. — No motion, or proposition of a subject, different from that under consideration, shall be admitted under colpc^f amendment. Digitized byLaOOgle Oct. 7, 1878. OF THE CONSTITUTIONAL CONVENTION. 61 L Wken THotioH or reaolution may be mtMrmm. Bale 29. — A motion may be withdrawn, by leave of the Convention, at any time before amendment or decision. MoHoM to adJouTti. Rule 30. — A motion to adjourn shall always be in order. The Minute Clerk shall enter on the mmutes the name of any member moving an adjournment; and, also, the hour at which the motion is made. Motiom, to be slated by tht Pretident, to be reduced to uniting. Role 31. — Ko motion shall be debated until the same shall be seconded •md distinctly announced by the President; and it shall be reduced to writing, if desired by the President or any member; and shall be read by the Secretary, before the same shall be debated. SubstUvteg. Rule 32. — A substitute shall be deemed an amendment, and be treated in aU respects as such. Precious question; koto demanded. Rule 33. — The previous question shall only be put when demanded by five members. QuesUom of order after previous question is ordered. Rule 34. — All incidental q^uestions of order arising after a motion is made for the previous question, and pending such motion or previous question, shall be decided, whether on appeal or otherwise, without debate. Tie previous question ; hme put. Rule 35. — The previous question shall bo put in the following form : " Shall the main question be now put?" And all debate upon the main question shall be suspended until the previous question shall be decided. After the adoption of the previous question, the sense of the Convention shall forthwith be taken upon original amendments reported by a com- mittee, upon pending amendments, and then upon the main question, without debate. • Question to inde_finilefy postpone. Rule 36. — When a question is indefinitely postponed, the same shall not be again introduced during the session of tne Convention. XoUce ((f reconsideration. Rnle 37. — On the day succeeding that on which a final vote on any proposition or resolution concerning the Constitution, or other resolution, nas been taken, said vote may be reconsidered, on motion of any mem- ber; provided, notice of intention to move such reconsideration shall have Ijeen ^ven on the day on which such final vote was taken, by a member voting with the majority; and it shall not be in order for any member to move a reconsideration on the day on which such final vote w^as taken. Such motion of reconsideration shall have precedence over every other motion except a motion to adjourn. No notice of recon- sideration akall be in order on the day preceding the last day of the aession. Protest of moKbers. Rule 38. — It shall be in order for any member, or members, to protest in writing against action of the Convention, and have such protest entered upon the minutes. Question of privilege. Rule 39. — A question of privilege shall be entitled to supersede other business; but when a member brings forward such question, he shall first present his complaint, either verbally or in writing; and the pre- siding officer shall decide, in the first instance, whether such statement, however brought forward, involves a question of privilege. If such decision shall be in favor of the quration of privilege, the member may then make such observations as may be pertinent to the question of privilege, and may submit such resolution or motion as he may desire for the consideration of the Convention. AuOufr to speak last. Rule 40.— The author of a motion, proposition, or resolution, shall have the privilege of closing the debate, unless the previous question has been sustained. , J>uty of member rising to speak. Rule 41. — EveiT member, when about to speak, shall rise and resptct- fnlly address the President, shall confine himself to the question under detate, and avoid personality, and shall sit down when he is finished. No member shall speak out of bis place without leave of the President. JVo interruption of member while speaking. Rule 42. — Ko member speaking shall be' interrupted by another, but by rising up to call to order. Times a member may speak. Rule 43. — ITo member shall speak more than twice on one question, without first obtaining leave or the Convention, nor more than once nntil other members who have not spoken shall speak, if they desire to. out to order for offensive words in debate. Bale 44. — If any member be called to order for ofiensive words spoken in debate, the person calling him to order shall report the words excepted to,and they shall be taken down in writing at the Secretary's table; and no member shall be held to answer or be subject to censure of the Con- Teotioo for language used in debate if any member has spoken or other bosiiieaB has intervened after the words spoken and before exception to them shall have been taken. Order in speaking to questions lost by adjourranent. Rule 45. — If a question pending be lost by adjournment of the Con- vention, and revived on the succeeding day, no member who shall have spoken on the preceding day shall be permitted again to speak without leave of two thirds of the Convention. aUling members to order when transgressing rules. Rule 48. — If any member, in speaking or otherwise, transgress the rules of the Convention, the President shall, or any member may call to order. In which case, the member so called to order shall immedi- ately sit down, unless permitted to explain ; and if called to order by a member, such member shall immediately state the point of order. If the point of order be sustained by the Chair, the member shall not be allowed to proceed; but if it be not sustained, then he shall be permit- ted to go on. Every such decision from the Chair shall be subject to an appeal to the Convention, but no discussion of a question of onler shall be allowed unless an appeal be taken from a decision of the Chair. The President to decide who is entitled to the floor. Rule 47. — When two or more members shall rise at once, the President shall decide who is first to speak. Taking up propositions or resolutions out of order. Rule 48. — When a member shall ask leave to have a proposition or resolution taken up out of its regular order, he shall, in making the motion, give the number and title of the same. Reading of resolutions b^ore final action thereon. Rule 49. — Every resolution proposing any alteration in the Constitution shall be read on two several days before it is finally acted upon and adopted by the Convention. IndorsemerU and statement of object of papers introduced. Rule 50. — Every member presenting to the Convention a petition, memorial, or remonstrance, shall indorse his name thereon, together with a brief statement of the nature and object of the instrument. Title and numbering of propositions and resolutions. Rule 51. — Propositions and resolutions proposing matter to be incor- porated in the Constitution shall be prefaced with a title briefly indi- cating the subject to which they refer. They shall be in writing, on legal cap paper, or printed, and shall be numbered by the Secretary in the order m which they are introduced. Resolutions limited to one subject ; reading and reference of same. Rule 52. — Propositions and resolutions mentioned in the last forego- ing rule shall embrace but one subject; they shall be read once when introduced, and then referred, without debate, to an appropriate com- mittee. Oemeral file. Rule 93. — All propositions and resolutions, embracing matter pro- posed to be incorporated in the Constitution, reported by a standing or special committee, shall he read when reported, and shall be placed on a general file, to be kept by the Secretaiy, in the order in which they are reported. They shall be taken from the file and acted upon in the order in which they are placed thereon, unless otherwise ordered by t'-e Ck>nvention; provided, that engrossed propositions and resolutions shall be placed at the head of the file, in the order in which they are re- ceived. Two hundred and forty copies of the file for each day shall be printed. Committees not to sit during session. Rule 54. — No committee shall sit during the session of the Conven- tion without leave. Committee qf the Whole. Rule 65. — In forming a Committee of the Whole Convention, the President may preside or a4)point a member to preside. Propositions or resolutions relating to the Constitution shall be committed to a Commit- tee of the .Whole Convention, and shall bo read in Committee of the Whole by sections. All amendments shall he noted and reportee riHjnisite for the proper recording of the proceodlnga of such committees. Mr. IIERRINGTON. I think it is useless to make any extra expendi- tures for clerical help, for there will always be some member of each committee who will be qualified to perform these duties. Me. EAGON. The rules provide for that in substance. It regulates that matter entirely, and there is no necessitv for that resolution. The president. The Chair will suggest to the Convention that, perhaps, they had better wait until they hear the report of the commit- tee before introducing such resolutions, without knowing what the report is. Mb. HERRIN6T0N. I withdraw the resolution for the present Mb. CAPLES. I now call for the reading of the resolution which I sent to the desk. Mb. HILBORN. I sent up a resolution before that. The president. The Chair will recognize the gentleman fk>m Sacramento, Mr. Caples, and the Secretary will read his resolution. Mr. niLBORN. I insist upon my resolution being read first, as it was sent to the desk first. The PRESIDENT. I don't recollect of reco^izing the ^ntleman from Solano. It does not matter which resolution was received first; he was not recognized by the Chair. The gentleman from Sacramento has the floor. Mr. HILBORN. I was recognized. The report was sent up and claimed the attention of the Convention, and that being disposed of, I claim my resolution comes next. Tbe president. This is a matter of no importance. The Chair has recognized the gentleman from Sacramento. Mr. TULLY'. I think it is a matter of justice. Mr. TINNIN. I am positive that the gentleman from Solano sent his resolution to the desk first, and that he was recognized by the Chair. Mb. McCALLUM. Mr. Chairman : I wish to add my testimony M to the question of fact Digitized by Google Oct. 8, 1878. OF THE CONSTITUTIONAL CONVENTION. 63 Ml EDGEBTON. I rise to a point of order. The Chair has already decided. Tn PBESIDENT. The Chair recognized the gentlemen ftvm Sacra- mento. Mb. CAPLES. The gentleman can appeal. Ml HILBORN. I appeal from the decision of the Chair. Tbi president. The Chair understands it to be the province of tilt Chair to Kcogniie the first person addressing him. My recollection iidiatiiict that I recognized Mr. Caples. Hl McCALLUM. That was the point I was making when the gen- tlemui called me to order. Ml HILBORN. The gentleman overlooks one thing; my resolution "xpioperly before the House. It was not improperly sent up. I will, »^«»er, withdraw the appeal. ' ■>« Becretaiy read the resolution offered by Mr. Caples, as follows : f'»Imi, Tlut J. P. Diajr be appointed Night Watchman at the Mm* per di«m as IWii Id the Soockeepen. He. HILBORN. I ask the courtesy to have my resolution read as an unendment. I offer it as an amendment : Smektd, That Jam«a Baultry be and ha ia herpby appolDt«d Night Watchman at apar diem of Ave dolUn a dajr, to tw paid unt uf the appropriatJona lor the expenava 01 tiw ConTenttoD. Ml. ESGERTON. I suggest that the gentleman move to strike out ind inert. Ml HILBORN. No, sir, I want to fix this up to mit myself. Ht. WHITE. I move as an amendment that one of the Doorkeepers l)e detailed for that purpose, for the reason that I understand that there are more attach^ now than are necessary. We have more Pages than neeeamrv, and more Porters and Gatekeepers than are necessary. Ml. E'DGERTON. I rise to a point of order. We passed a rule the other day that all such matters should be referred to the Committee on Mileage and Contingent Expenses. Ml. HILBORN. I think the gentleman is mistaken. I don't think wepasscd any such resolution. Tbi president. I don't think there is any standing rule of that kind. But it seems to me that the Convention the other day resolved to leave the appointment of Night Watchman to the President of the Con- vention. I am so informed. Ma. HILBORN. Mr. President: If you recollect, when the com- mittee was appointed to designate the necessary officers for this bouse, and made their report, we railed the attention of the house to the fact that the Night Watchman had not been provided for in their report. 1 pointed out how necessary it was that there should be such an oflScer, aad my friend on the right corroborated my statements, and has made a report recommending t&t that officer should be appointed by the Presi- dent That report was recommitted to the committee, and when they reported again they left it out, so that, though the house has declared Uatthey will have this officer, yet thepr have adopted a report and left it out I doubt if the Chair has any right to appoint that officer. Ma. BARBOUR. I have a resolution which I wish to offer as a sub- Ititute for the motion and the amendment. Ml HILBORN. I move that this whole matter go back to the com- Bittee, and leave it to them to say whether such an officer is necessary ornot. Ml BARBOUR. I offer the following resolution : Itodcid, That this Conventlun dispenaea with tbo aenrices of the two aids Door- iMpen ud the Hail Unier. Ul BARBOUB. I offer that as a substitute, to vacate those offices, upon the ground, as I am informed by the Secretory of State, that they "« entirely unneceeaary. In the beginning I objected to the appoint- ment of these officers, and now I am convinced of the absolute uselese- iwof these officers. The Secretary of State informs me that the Mail i^d' "" '"''"^'y unnecessary and useless to the Convention, and that ™ Postmaster might bring all the mail without any assistance. I It in economy and reform, and every time a gentleman moves for * ^ ' ' *'" tnove to strike off some of them. Ml McCALLUM. That motion has nothing to do with the motion 01 the gentleman. I was going to make another motion by moving to '*^>t to the Committee on Contingent Expenses. I make that motion. tne motion prevailed. M». West. Mr. President : I desire to offer the following resolution : Oti^^ Tbat an additional committee Im appointed, which ihall tie known aa e appointed. "* teaolatioii waa eo referred. to proper Mb. BHOEMAEEB. I offer the following resolution : fissehxd. That • member of each conunittee be detailed to do the FDiter*a vofk In the committee rooms. Mr. shoemaker. I move that it be referred to the Committee on Contingent Expenses. The resolution was so referred. On motion of Mr. Freeman, at three o'clock and forty-eight minutes, the Convention adjourned until to-morrow morning at ten o'clock. ELEVENTH DAY. Sacbihikto, Tuesday, October 8th, 1878. The Convention reassembled at ten o'clock a. m., pursuant to adjourn- ment. President Hoge in the chair. The roll was called and members found in attendance as follow* : Andrews, Ayers, Barbour, Barnes, Barry, Barton, Beerstecher, Belcher, Bell, Berry, Biggs, Blackmer, Hoggs, Boucher, Brown, Burt, Campbell, Caples, Charles, Condon, Cowden, Cross, Crouch, Davis, Dowling, Doyle, Dudley, of San Joaqui Dudley, of Solano, Dunlap, Edgerton, Estee, Estey, Evey, Farrell, Fawoett, Pilcher, Finney, Freeman, Freud, Garvey, Glascock, Gorman, Grace, Graves, Gregg, Hale, Hall, Harrison, Harvey, Heiskell, Herold, Herrington, Hilbom, Hitohcock, Hdlmes, Howard, Huestis, Hughey, Hunter, Inman, Johnson, Jones, Joyce, KoUey, Kenny, Keyes, Kleiue, Lainc, Lampon, Lnrkin, I speak longer on any subject that is of importance. Mb. EDGERTON. I am decidedly in favor of the amendment pro- posed by the gentleman from Son Francisco, Mr. Barbour. If it should ever occur that a question arises here of great importance the Conven- tion can grant any gentleman leave to speak for a greater length of time. I hope the amendment will be adopted. The amendment was adopted. Mb. McCALLUM. I notice that this rule five provides that " he shall preserve decorum and order; may speak to points of order in preference to other members." I would say that I thmk that is an unusual pro- ceeding. ' I think that is something new. But here is another: "He shall (leoide all questions of order, subject to an appeal to the Convention by any five memtwrs." I think it is the right of any member to appeal. I move to strike out the word " five " and insert " any member." Mb. McFARLAND. I do not think that any one gentleman should have the right to compel a vote of the House upon an appeal without he is able to get four of us to second it. It seems to me that this rule would protect us from frivolous appeals. Certainly if the ruling of the Chair is so doubtful there would always be five members to take an appeal. It seems to me that we had better let the rule stand as it is. Wny should one gentleman compel a vote of this Convention when he cannot find any other gentleman to agree with him? He certainly should have five to support a proposition that the Convention would he compelled to vote on. Mr. BEERSTECHER. It seems to me that each member oo^ht to have the privilege of appealing. If we make it five meiobers we simply puUeach member to the necessity of forming a combination with four of bis friends, so that when he desires to appeal his four friends will respond to that appeal. It is the easiest thing m the world, only it makes & man have an understanding with four of his friends, so that when he appeals they will respond, ^t seems to me that in every deliberative assembly it is the privilege of each individual member to appeal from the decision of the Chair. . Mb. larkin. I am certainly opposed to the amendment. I would increase that number to ten. We are here for the purpose of framing a new Constitution, and I do not desire to see any frivolous appeals taken. Any appeal that is properly made will draw a sufficient number of the members of this Convention to its support. I would prefer much to increase the number than reduce it. Mb. WYATT. I do trust that the amendment will prevail, because I think it is universally the practice in deliberative bodies that any mem- ber has a right to appeal. It is putting more power than is necessary into the bands of the President of the Convention. I trust that a spirit of fairness will adopt this amendment. Mr. DUDLEY, of Solano. It is the privilege of any member upon this floor to appeal when he has a second. I suggest to the gentleman from Alameda, Mr. McCallnm, that he amend his amendment ao that an appeal may be taken when asked by two members instead of one. Mr. McCALLUM. I agree to that. Mr. EIHiERTON. I understand the ^ntleman firom Alameda, Mr. McTallum, to except to that provision which provides that the President may speak to points of order in preference to all other members. That is a universal rule in all deliberative bodies, that the presiding officer may state his reasons first, and in mnnj cases this practice saves debat«. That is borrowed from the rules governing several legislative bodies, and I believe from Mr. Cushing. Now, in regard to an appeal, the rules of the California Assembly require that an appeal Shoula be demanded by two members. That is a Dody of only eighty members,-and there is a limitation put upon that. Now, sir, I hold that this rule, as it stands here, will greatly expedite the business of this body. It is very easy for any member to receive the support of four others if his appeal has any merit. I hope the nile will stand as reported by the committee. Mr. FREEMAN. The reason why I think any member ought to have tlie ri^ht to appeal is that when an appeal is taken the original point of order is not deoatable, and it is not until after the appeal is taken that a motion begins to be discussed and the attention of other memben are directed to it sufficiently to have them join in an appeal. I remem- ber the other day, when the gentleman from San Francisco desired to correct the recora of his vote, the Chair three or four times decided him to be out of order. As soon as the appeal was taken, and the matter began to be discussed, the Chair at once receded from the decision and allowed the gentleman the point which he claimed. I think that any one ought to have the right to bring an appeal or point of order before the house and have it discussed. Mb. ESTEE. Mr. President: Your committee, in adopting that rule, did not deviate from the well established rules adopted by all deliberative bodies, and I can safely challenge an^ gentleman to find an instance in the history of legislation where one single member upon the floor, by the rules of that body, can take an appeal from the decision of the Chair. In Parliament, in the Congress of the ITnited States, in both departments of the Legislature of California, and of every legislative body of which I have any knowledge, it takes from three to ten members to take an appeal, and the reason is an obvious one. If one member can rise in his place and appeal from every indifi°erent question, one member upon this floor can clog the wheels of business, can stand in his place, if he so desires, and for hours keep the Convention under his control instead of the control of the Chair. I challenge any gentleman upon this floor to point to the rules of ony deliberative body where one member can rise in his place and appeal from the decision of the Chair unless sustained by some other members on the floor. It is a wise and judicious provision, and I certainly hope that thus early in the historr of this Convention, we will not deviate from well and long tried rules which have been established by the wisdom of deliberative bodies tracing back through the whole history of civilization, especially when this Convention is com- posed of such a large number of members. The members of your com- mittee were the representatives of this whole body. That rule was adopted unanimously by the fifteen members of that committee, after carefully examining the rules of five or six other Constitutional Con- ventions, the rules of the Senate and Assembly, and the parliamentary law, and we concluded that that was a wise practice. We say it would be extraordinary and unusual to permit one member on this floor, when- ever the Chair shall rule upon any indiflerent subject, poesibly not mat«riat, to take an appeal ; and I hope that this House, in its own inter- est, and not for the purpose of sustaining the committee, in the interest of legislation, in the light of the exjierience of the best legislators of the time, not here, but elsewhere, will stand up to that rule, in that it shall take at least five to appeal from the decision of the Chair. One woid more and I will be seated. The gentleman from Alameda took occasion to say that the portion of the rule which provides that the Chair may speak to points of order in preference to other members, was unusual. Mb. McCALLUM. I rise to a point of order. The point is that as to that portion of the rule there is no question pending. Digitized by Google Oct. 8, 1878. OF THE CONSTITUTIONAL CONVENTION. 65 Ml. E8TE£. I was unable to bear the gentleman before, and if he withdmir< that I have nothing more to say. Ml. McCALLUM. Now, Mr. President, I wish to say in answer to Mr. Eitee, that whenever any evidence proves to be true I will adopt it, but this positive assertion that this rule has universally prevailed I most emphatically deny. During my brief term in the Senate any member omU take an appeal, and aner being seconded he had the rient to have STOl* of the Senate. I inquired of ^ntlemen around me whom I hap- pened to have met at the seme time mthe Assembly. Ml EDGERTON. The rule of the Assembly is not as you state. Mr. McCALLUH. I have not said that the rule of the Assembly is not w now. If the gentleman will allow me, I said that when I was in the Senate the gentlemen who were then in the Assembly tell me that the rale then was in the Assembly as it then was in the Senate, that any gentleman could appeal, and on being seconded have a right to have that appeal aubmitted to the Senate or Assembly. I< ow the idea is not that these appeals always involve the calling of the ayes and noes, and it ii the calling of the ayes and noes that occupies so much time. That TeqnitM to be demanded by five members. But the mere right of appeal— and 1 have accepted the suggestion of my friend here — which I Eappne would imply, in the first place, that on being seconded, any member should have the right to appeal. The occasion cited by the gen- tleman from Sacramento, Mr. Freeman, was in point. Here the other moraine, the gentleman from San Prancisco demanded that hi^ vote ihould oe recorded as he voted. By some misapprehension he was ruled out of order. He took an appeal and had but one second. The Hook, or rather the Chair, corrected the division. I undertake to say that if that member had depended upon five members noticing what WW goinr on here, he would have failed to have received the second miaired by this rule. I desire to see time saved, and regret to hear gen- tlemen tpeaking frequently, and at length, upon questions of little im- portuice. But this is a question of some moment, coming right home 10 the rights of members upon this floor. I have to assume, and it is proper to assume, that every member here has some reputation of his own to protect, and would not desire to get the reputation of taking Irirolous appeals. I have never seen a body of such dignity as this but what eveiT member had intelligence enough to know that he would injure himself and lose his influence if he practiced anything of that kind. Now these questions will be voted upon without a call of the •jeeand noes usually, and will be disposed of m much less time than is onnpied in the discuaaions of questions of order. 111. WICKES. I move that "two members" be inserted instead of "ivememben." Ml. MoCALLUM. I accept the amendment. Ml. SMITH, of Sent* Clara. I move tor a diviaion of the question, bke the question on the motion to strike out first. Tai CHAIR. The Chair hardly thinks the question is divisible. Ml DCDLET, of Bolano. When the Chairman of this Committee on Rales had the honor of representing Sacramento County in the AiKmbljr wven yean ago, the rule was uiat two members could take •nippeal. That is the case to-day in the House of Representatives of the United States at Washington. Two members can appeal, and I think that ia the common rule. I hope the motion of the gentleman from Alameda will prevaiL I say that was the rule at the time when the gentleman from Sao Francisco, Mr. Estee, represented Sacramento Cmintj in the Assembly. Ul estee. On the contrary, it was three. Hl DUDLEY, of Solano. It was two. It is two in the House of fiepreaentatives — rule two of the House of Representatives. Ml estee. It was three. Ml ANDREWS. Mr. President: I believe that the question now itudi on the moUon to make it two. I hope that will prevail. It "enn to me, Mr. President, that this is a privilege that pertains to every member to have his position on any question, so that it can be enter- tained by the house. So Car as my experience goes in legislative bodies, I hive Been but very few factious sppeals. It is very rarely the case. In the hurry of matters of that kind, a member may be cut off from his privilege if be has to have fouror five members second his appeal before be hai the privilege of stating his gmunds. I think two is suflisient. I hare no knowledge of any legislative body where it has required five members to take an appeal. Ml REYNOLDS. I deaire to accept the challenge of the gentleman Aim San Francisco, Mr. Estee, to know where there is any legislative i»dy that required but one-member to take an appeal. I will read three lines inn rale eight, of the rules adopted by the Constitutional Con- vention of Illinois : ^ "tbePreddent maj speak to points of order in preference to other members, riaina "^"s ^ Mat for that parpose, and afaall decide points of onler, subject to an appeal to die CoDTendun by any one member." _ Ml ESTEE. Well, what was the rule in Ohio, Pennsylvania, and Hew York? > J ' . Ml FREEMAN. In further reply to the gentleman from San Fran- osco, Mr. Estee, rule twenty-eight, of the Senate says: *Knry (gneetton of order shall be decided by the President, suhject to an appeal to toe Seaate by any member." *«. ESTEE. Of course. But, Mr. President, the Senate was only oopoasd of forty members. The Assembly, with eighty members, as '■'M my memory goes, always required three members to appeal. In niilioiSithe gentleman may be right. There is a case where the Con- vutioa only ooaaisted of eighty members. I will say this: that this rale (ama up ibr adoption in the committee, and the gentleman from ™nFi!meisco, Mr. Reynolds, voted for it. I do not umlerstand why a °>sBdKrdM>DldToteforarulein the committee,and then come into the <>«>« sad attampt to defeat it. Kl REYNOLDS. I desire to correct the gentleman, by saying that 9 I have said not one word except to correct the gentleman's statement. He seems to be very sensitive on the subject, and I do not wonder at it, in view of the extravagant statements that he has made here in regard to the legislative experience of all past time. Mb. EDGERTON. I desire to say one word. The rule of the Assem- bly—and as I understand that rule has prevailed every session — is at follows: " He shall preserve order, and may speak to points of order in prefer- ence to the members, rising from his seat for that purpose, ana shall decide questions of order, subject to an appeal to the house by any two members." As 1 understand it, the rule in California never was that one member can appeal, and if this Convention should adopt such a rule any factious person in this Convention can delay its proceedings for a whole day at any time. The Assembly has eighty members. This Convention baa nearly double that number. Your committee, consisting of fifteen mem- bers, carefully considered the question and came to the conclusion that it should take five memben,and the gentleman from San Francisco, Mr. Reynolds, cordially assented to that rule. Ma. REYNOLDS. I desire to say one word in vindication. Thi CHAIR. Does the gentleman rise to a question of privilegeT Ma. REYNOLDS. Yes. When this Committee on Rules was appointed, at the first session of that committee a sub-committee of five was appointed. They put Mr. Barnes upon the committee and then proceeded to construct itiese rules. Yesterday morning the committee was called together, the rules were read over to the committee, and there was no such time given to the committee to consider these rules as is now given to this house. It is unfair in the gentleman to say that there has l>een any due consideration of these rules by this com- mittee. There has been no due consideration of the rules by the com- mittee. A sub-committ«e of five was sprung, and they have been the men who have considered these rules and not the committee. And fur- ther, it makes no difference to me whether the Senate of California, or the Legislature of California, have provided that five members shall take an appeal, or two, or three, or any other number. It is well known that the rules of the Legislature of California have been constructed under the most outrageous and unheard-of tyranny, and for the purpose of squelching and intimidating, and running through that Legislature any measure Ibat was required by the powers that be. Now, sir, it makes no difference what the rule of the Legislature has been, but it does make a difference what the rule shall be. Ma. EDOERTON. I rise to a point of order. The gentlenoan merely rose to a question of privilege, and is not at liberty to discuss the merits of the question. Mr. REYNOLDS. I yield the floor. I have said all I want to. Mr. HEISKELL. My experience differs from that of the gentleman ' from Sacramento, Mr, Edgerton. The rule may have been changed, but at one time in the history of California it was the rule that one member oould appeal provided be had a second. Tbr chair. The question is on the motion of the gentleman from Me. McCALLUM. To strike out "five" and insert "two." The motion was lost, on a standing vote, ayes sixty-seven, noes seventy. Ma. FREEMAN. I move that the wonl "five" be stricken out and the word "three" inserted. Mr. van dyke. Mr. President : In view of the large number in this Convention, I would be in favor of increasing that number rather than diminishing it. I think if there is any attempt by the Chair to abuse his privilege there will be no difficulty in getting five members here to iiemand an appeal. I do not understand that it is the particular privilege of any member. It is a matter that affects the house, and not individuals. I do not tfiink there will be any difficulty in getting five members to demand an appeal from anything that appears to violate the privileges of the house. The amendment was adopted, on a standing vote, ayes seventy-five, noes sixty-two. Mr. STEDMAN. I desire to move the addition of the following words to that section : " Except the party appealing, who may speak twice." Ma. ROLFE. That would mean that the three members appealing could speak twice. It requires three members to appeal, and the amendf- ment would therefore allow them all to speak twice. Mr. STEDMAN. In offering the amendment, X referred to the party first appealing. There would certainly be one to appeal first, and then two to second the call. Under my amendment it is intended that the first party appealing should have the right to speak twice. The amendment was lost. Mr. COWDEN. I move to amend by inserting after the word "com- mittees," "officers and attach^ not now appointed, who shall be deemed by the Convention." Mr. LARKIN. I rise to a point of order — that the amendment is not germane to the rule. Thr chair. The point of order is well taken. Rule five was adopted. Rule 0. — All committees shall be appointed and announced by the President, unless otherwise specially directed by the Convention. Adopted. Rule 7. — All writs, warrants, and subposnas, issued by order of the Convention, shall be under his hand and attested by the Secretary. Adopted. Rule 8 — The President shall have the right to name any member to perform the duties of the Chair, but such substitution shall not extend oeyond an adjournment. . Mr. BARBOUR. I move that the words " perform the duties of the Chair" be stricken out. and the word "preside" be inserted. The amendment was lost and the rule adopted. Rule S.— The President shall have the general direction of the n of the haB .oogie 66 DEBATES AND PROCEEDINGS Tuesday, of the Conrention and of the golleries. No peraong, excepting members, officers, and attaches of the Convention, and guch persons as ma^ be invited by the Convention, or by the President, shall be admitted within the bar of the Convention. The Chairman of each Committee of the Whole, during the sitting of such committee, shall have the like power of preserving order in the hall and in the galleries. Adopted. Rule 10. — The Secretary must attend each day, and call the roll, read the Journal, and all propositions or resolutions. He shall have the direction of the Assistant Secretaries unless otherwise ordered. Adopted. Rule 11. — The Assistant Secretaries must attend each day, take charge of all resolutions, propositions, petitions, memorials, and other papers presented to the Convention, file and enter the same in the books provided for that purpose, and perform such other duties as may be directed by the Secretary of the Convention. Adopted. Rule 12. — The Minute Clerk must keep a correct record of the pro- ceedings of the Convention. Adopted. Rule 13. — The Journal Clerk must record each day's proceedings in the Journal, from which they must be read each day by the Secre&ry, and then be authenticated by the signature of the President. Adopted. Rule 14. — The Sergeant-at-Arms must give a general supervision, under the direction of the President, to the hall of the Convention and rooms attached, attend during the sittings of the Convention, execute its commands and all process issued by its authority, keep an account of pay and mileage of members, attaches and employ^, and prepare checks for the same. Mb. FREEMAN. I would like to inquire about this expression, " and prepare checks for the same." The CHAIR. Warrants, I suppose. Mh. EDGERTON. That rule is almost in the language of the rule of the Assembly. I suppose the Sergeant-at-Arms gives the check to the Con- 'troUer of State to draw the warrant. There are other rules here. There is a rule which provides that there is no pay in some cases to be allowed ; that persons who are absent on business, except committee duty, or sickness, shall not have any pay at all. The Sergeant-at-Arms keeps the accounts and gives a statement to the Controller of State. It will be found in the Assembly rule. I think it is also in that section of the Code regulating the duties of the Sergeants-at-Arms of the Senate and Assembly. Mr. freeman. I cannot see any meaning in the words. I move to strike out the words " and prepare checks for the same." Mb. EDGERTON. The words " prejiare checks" are copied from the Code. Mb. ESTEE. Because the Controller has to have a voucher in order to settle with the State. Thb CHAIR. I am informed by the Serveant-at-Arms that the pay- roll is already printed and he has only to fill them out. The motion was lost. Mb. FILCHER. I move to insert in place of "prepared checks for the" the words "receipt for warrants for the." Me. EDGERTON. Every gentleman has to receipt for his warrant when he draws it. This is an authority for the Controller of State to draw his warrant. It is proper as it stands. The motion was lost. Mb. HERRINGTON. I think it would be satisfactory to the mem- bens to strike out the words "and prepare cheeks for the same," and insert " and fill up the pay-rolls of members for the Controller." Mr. EDGERTON. The Sergeant-at-Arms keeps the pay-roll, and the Controller acts independent of the pay-roll. I hope the motion will not prevail. Mr. HUESTIS. Would a motion to strike out and insert be in order? I move to insert as follows: "and prepare for the Controller of State a pay-roll of members and attaches of tois Convention." The motion was lost and the rule adopted. Rule 15. — The Assistant Sergeant-at-Arms must attend the sittings of the Convention each day, prohibit all persons except members, officers, and employes, and such other persons as may have the privilege of the floor assigned them by the Rules of the Convention, from entering within the bar unless upon invitation, and keep order in the halls, lob- bies, and galleries. Adopted. Rule 16. — ^The Secretary and Assistant Secretaries, at the close of the session of the Convention, must deliver to the Secretary of State, duly marked, labeled, and arranged, all propositions, resolutions, petitions, memorials, and other papers belonging to the Convention, and also all books belonging to the same. Adopted. Rule 17. — Order of Business. — I. Roll call. 2. Reading and approval of the Journal. 3. Presentation of petitions and memorials; under which head shall be included remonstrances, communications from individuals and public bodies. 4. Communications from State officers; under which head shall be embraced, also, communications from public officers, and from corporations in response to calls for information. 5. Reports of standing committees, in tne order in which they stand in the rules. 6. Reports of select committees. 7. Introduction of reso- lutions and propositions relating to the Constitution. 8. Unfinished business. 9. Special orders. 10. General order. 11. Miscellaneous motions and resolutions. Mb'. SHAFTER. I move to strike out of the fourth clause the words " in response to calls for information." Mb. LARKIN. I deem this one of the most important provisions in this rule. This Convention should have the power at any time to call for information from any corporation. It may be very important for us to ascertain some things. Mb. SHAFTER. That rule excludes any communication from corpo- rations, except those that are made in response to a call for information. I want them all, either voluntary or .otnerwise, made subject to that order of business. As it is now they are excluded entirely. Mr. WYATT. I hope, Mr. President, that the fourth clause, under discussion, will not be stricken out. It will certainly be competent for this Convention to receive anv and all proper communications from State officers, corporations, or any liody or individual, and it will be the high- est privilege and pleasure of the Convention to do so; but we certainly ought to have a rule by which we assert our authority, by which wo intend to claim the authority, and by which we intend to exercise the authority of gaining information Arom State officers, from corporate bodies, or from any other body within the jurisdiction of the State of California. I hope, therefore, that the fourth clause of the rule under consideration will not be stricken out. Mr. McFARLAND. I do not think that the Convention apprehenda the scope and purpose of the amendment. Now the clause as it reads is, "and irom corporations in response to calls for information." Now, if you allow that clause to stand, you say, virtually, that a corporation shall not communicate with this Convention unless in response to a call for information. Mr. EDGERTON. The third order of business is the presentation of petitions and memorials. Now, any individual, or any corporation, can communicate with this Convention under that head. Mr. McFARLAND. From individuals and public bodies; itseemsto me that it would exclude corporations, and that the fourth clause would be construed to mean that the corporations should not be allowed to oom- municate at all, except in reqwnse to calls for information. If you strike out these words, we can receive communications whether demanded or not. If any gentleman desires any information, of course by calling for it, he can get it. But it seems to me that if you leave these words in, we say in efiect that we shall not receive any com- munications from corporations unless upon a call for information. Therefore I am in &vor of the motion to strike out. Mb. SHAFTER. If the amendment is construed in this way, I aak leave to withdraw it. Leave was ^nted, and the amendment withdrawn. The resolution was then adopted. Rule 18.— When a question is under debate, or before the Convention, no motion shall be received but: 1. To adjourn. 2. To lay on the table. 3. For the previous question. 4. To postpone to a dav certain. 5. To commit or amend. 6. To postpone indefinitely. Which several motions shall have precedence in the order in which they are named ; but the first three shall be decided without debate; and no motion to postpone to a day certain, to commit, or to postpone indefinitely, being decided, shall si^n be allowed on the same day, and at the same stage of the proceedings. Mb. FREEMAN. X see that in the latter part of this rule certain motions are spoken of. This last clause seems to be ambiguous. I there- fore move to strike out "and at the same stage of the proceedings." Mb. EDGERTON. That rule was adopted from the rule of the Assembly of California. The committee thought that it was not proper that it should come np again at the same stage of the prooeediuga, but upon further deliberation, at some other hour of the day, it might be deemed advisable to take it up again. The motion to strike out was lost, and the rule adopted. Rule 19. — All questions relating to the priority of business shall be decided without debate. Adopted. Rule 20. — When a motion is made to refer any subject, and different committees should be proposed, the question shall be taken in the fol- lowing order: 1. The Committee of the Whole Convention. 2. A Standing Committee. 3. A Select Committee. Every committee of the Convention to whom a resolution or propo- sition has been referred shall report the same to the Convention within fifteen days from the time it is received by the Chairman of the com- mittee, unless further time to report is granted, unless otherwise ordered by the Convention. Every proposition or resolution shall be referred to the appropriate standing committees as indicated by its name given herein. Adopted. Rule 21. — Any member may call for the division of a question ^hen the sense will admit of it, A motion to strike out shall be deemed indi- visible ; but a motion to strike out being lost, shall neither preclude amendment nor a motion to strike out and insert. Mr. barton. I move to amend by inserting the following : " Pro- vided, that in no case when the ayes and noes are called shall any two members of this Convention be permitted to pair off." Mr. EDGERTON. I rise to a point of order. That is not germane. Thr CHAIR. The point of order is well taken. The rule was adopted. Rule 22. — Upon a call of the Convention the names of the members shall be called over by the Secretary and the absentees noted; ailer which the names of the absentees shall again be called over. The doors shall then be shut, and those for whom no sufficient excuses are-made may, by order of those present, be taken into custody as they appear, or may be sent for and taken into custody wherever found by the Sergeant- at-Arms, or by a special messenger, to be appointed for that purpose. Mb. STEDMAN. I move that the following be orefixed to the rule : " Any three members have a right to demand a call of the Convention, but if any objection be made the demand shall be sustained by one fifth of the members present and." Digitized by Google Oct. 8, 1878. OF THE CONSTITUTIONAL CONVENTION. 67 Ml EDGERTON. I think, perhaps, that the gentleman does not know that a call of the Convention cannot be had except bv a majority rote of those present. A call of the Convention is never had except by t nujoritr vote of the Convention or house itself. I hope the gentle- man will' withdraw his motion. Ml. STEDMAJT. I must differ with the gentleman from Sacramento. The Ohio Convention, from which I get that rule, was a body with one hundred and five members. Now I understand that any member can Older acall of the house, no matter if there is not a majority present, no nittterif certain members are present, if there is any Iwdy that three members can call for a call of the house. That is the reason that I hare offered this, in order that it can be done by any three members at any lime. M«. WATERS. Under the rules that we have, it does seem to me that any gentleman may move a call of the house. Any gentleman nis^ second the motion. The motion will then be put, and if a majority vote for the call of the bouse, it is ordered. The rule that the gentleman announced was more strict even than ours. There a certain nnmber had to move before a call could be voted on. As we have it here, if we find at any time our quorum is growing small, any gentle- nun may more for a call of the house. He gets a second to the motion, ud the motion is put by the Chair, tf a m^ority vote for it, the call Uoidered. Then this rule comes into play. It seems to me that there i< no amendment necessary to this rule. MiSTEDMAN. I withdraw it Mt CSULLIVAN. I move to strike out the words " to be," be- tween the words " wherever" and " found." The motion prevailed and the rule was adopted. Bole J3.— Upon a division or count of the Convention on any ques- tion, no person without the bar shall be counted. Adopted. Role J4.— On all questions and motions whatsoever, the President shsll lake the sens^oi the Convention by ayes and noes, provided five members present shall so require it. When the ayes and noes are taken no member shall be allowed to vote who shall have entered the Conven- tion after the calling of the roll is finished. The names of members shall be called in alphabetical order; provided further, that on all res- olutions and propositions relating to the Constitution, the final vote shall be taken by ayes and noes. ' Adopted. Kole 25.— No member shall be allowed to explain his vote or discuss the qnestion while the ayes and noes are being called ; and no member shall be allowed to change his rote after the vote is announced from the Chair. M«. BABTOK. I believe that my amendment would apply to this ™ie. I, therefore, move to amend by inserting " provided that in no a« where the ayes and noes are called shall any two members of this Convention be permitted te pair off." TBI SECRETARY. Where is it to be put in T Ml EDOERTON. Let it be put in where it ought to be and then Totejtdown. The amendment was lost. M«. MORSE. I move to ameml rule twenty-four by inserting after the word "finished," in the fifth line, the words " nor shall a member be entitled to vote unless he is in his seal." Mt E8TEE. I hope this amendment will not be adopted. Some- tones it is a matter of convenience for a member to be in another part of the hall, and if he is not interfering with the work of the Conven- tion, I tee no reason why he should be deprived af bis vote. Ml CROSS. It seems to me that there is goflr reason for requiring members to rote from their seats. It is the only way the Secretary can Kll whether the person answering is the person entitled to vote. Now, onnng the past few days members have been answering to other mem- bers'names. A' mistake is very easily discovered and corrected where a pember is required to vote from his seat. An absent member's name b" been voted here. Mt MORSE. I oflfered the amendment for the very reason stated by jhe gentleman from Nevada, Mr. Cross. I think I have noticed^ mem- bers rote sometimes at a distance from their places, and it is difficult for jbe Secretary to tell whether a gentleman has voted, or whether some- body else Toted by mistake. I think the member voting should be in huseat. MiLARKIN. I regret very much to differ with my friend, Mr. M™*, upon this question. I might desire to vote upon a measure, and 1 believe that the Secretvy will soon ascertain whether the person voting » the proper voting person. I don't think that the lobby is going to get in here and vote for us. I don't think we ought to be compelled to sit ra our seats during a session of ten or twelve hours. If members should Jraire to stand at the side, or anywhere within the rail, they should be entitled to vote. If he is within the mil he should be entitled to vote. Ms. McCALLCM. I wish to offer another amendment. There is no ooubt but that the Secretary can tell who votes, by their personal *PP«r»nce, and by their voices. I propose this amendment: after the Word "finished" insert "except by consent of the Convention." As this reads, no member coming in after the roll has been called, this long "Ai a! one hundred and fifty members, can vote at all, under any cir- ""fflstances. ^i CHAIR. After the roll is finished? Ml. McCALLUM. By consentof the Convention. I ask to insert the words "except by consent of the Convention." That is, not after the "•"It has bron announced; that would be too late, I admit, but after *«B>II is finished, and the result not announced, a member coming in ft' '" ** Penn'tted to vote. Ml EDGERTON. I hope that the suggestion of the gentleman from *»»«aa, Mr. McCallum, will not prevaH. The rule reads: "When *• »yes and noes are taken no member shall be allowed to vote who shall have entered the Convention after the calling of the roll is figished." I do not think any gentleman here ought to be permitted to leave the Convention and speculate upon results and then come in and vote. There is another general rule that any of these, rules may be temporarily suspended by a two-third vote, and there is no danger of injustice being done. Ma. McCALLUM. I withdraw my motion. Mk. 4iOR8E'S amendment was loet. Mr. 8TEDMAN. I move to amend rule twenty-five by adding the following words: "All members of this Convention must vote on every question, unless a sufficient excuse, to be accepted by the Convention, he given." Mr. EDOERTON. I rise to a point of order. My point is that it is not germane to the subject-matter. Mr. ESTEE. I am in favor of embodying that rule somewhere, but I do not think this is the proper place for it. I suggest to the gentle- man that he withdraw it^ and nave it placed in a separate rule. Mr. STEDMAN. I will withdraw it, Mr. LAINE. I would like to inquire of the Chairman of the Com- mittee on Rules in regard to the meaning of the first clause of this rule. It reads : " No member shall be allowed to explain his vote or discuss the question while the ayes and noes are being called," Mr, ESTEB, We understand it to be this: after the first name is called that no business can intervene, but that any member, when he rises to vote, of course, by leave of the house, can make an explanation. The object is that the roll call shall not be disturbed by any member rising to speak upon any question, and if he explains his vote he must confine himself to the explanation. Rule twenty-five was adopted. Rule 26. — It shall be the duty of each member who moves that any committee be instructed to inquire into the expediency of amending or revising the existing Constitution, to point out the amendment which he deems expedient, in writing, to accompany his motion. Mr. WYATT. I hope the gentleman will explain what is meant by that rule. Mr. ESTEE. I would ask the gentleman to state in what respect. It seems to me to be plain language. " It shall be the duty of each mem- ber who moves that any committee be instructed to inquire into the expediency of amending or revising the existing Constitution, to point out the amendment which he deems expedient, in writing, to accom- pany his motion." The proposition is this, Mr. President: A gentle- man may feel a deep interest in the question of taxation. He intro- duces a resolution that the Committee on Taxation report to this (Con- vention a certain section declaring that mortgages shall be taxed, for instance, and the object of this rule is that the gentleman shall embody in his resolution the identical instructions to be conveyed to the com- mittee, so that the committee shall fully understand the wish of the house. The rule was adopted. Rule 27. — Motions and reports may be committed or recommitted at the pleasure of the Convention, and with or without instructions from the Convention. Adopted. Rule 28. — No motion or proposition of a subject different from that under consideration shall be admitted under color of amendment. Ma. HERRINGTON. I move to strike out the word " of" and insert the word " on " after the word " proposition," Mr, EDGERTON, The rule is right as it is. The proposition is of a suUect, not on a subject. The amendment was lost. Mr. McCALLUM. I move to amend by eliding after the word "amendment" the words " or substitute." * Mr. ESTEE. There is no substitute in the rules. Thi CHAIR. Rule thirty-two makes a substitute an amendment. Mr, McCALLUM. I withdraw the amendment. Mr. waters. I rise to a point of order. It is twelve o'clock. Under the rule that has been adopted, the Convention must take a recess until one p. u. Thk chair. The point of onler is well taken. The Convention will take a recess until one r. m. AFTERNOON SESSION. The Convention reassembled at one o'clock. Mr. Murphy in the chair. Roll call dispensed with. Mr. BIGGS. I think the roll should be called. Thk CHAIR. Does the gentleman insist upon the roll. Mr, BIGGS. I move that the absentees of this morning be called. Thk CHAIR. I will suggest if there are any absentees in the hall, they will rise and be recorded. The question is upon the adoption of rule twenty-nine. Mr, ESTEE. Before ]>as8ing to rule twenty-nine, I understood we were considering rule twenty-eight, when we took a recess, Thk CHAIR. Rule twenty -eight was adopted — no, it was not adopted. The question was on the adoption of rule twenty-eight. Mr. ESTEE. I move to amend by striking out the words " motion or proposition of a." 'The motion prevailed, and the rule, as amended, was adopted. Rule 29. — A motion may be withdrawn, by leave of the Convention, at any time before amendment or decision. Adopted. Rule 30. — A motion to adjourn shall always be in order. The Secre- tary shall entar on the minutes the name of any member moving an adjournment, and, also, the hour at which the motion is made. Mr. TINNIN. I move to strike out the word "Secretary," and insert " Minute Clerk." The Secretary has nothing to do with it^ Thk chair. No objection, the correction will be made. .oogle 68 DEBATES AND PROCEEDINGS Tuesday, Mb. McCALLtJM. I move to amend rule thirty, by inserting after the word "order" In the first line, the words, "and shall be decidfstitutes entirely. Now, if I understand the law properly, an amend- ment to an amendment to an amendment is not in order. But a substi- tute for a pending resolution, and the amendment to that resolution, is in order, and the resolution and its amendment may be superseded by a sulMtitute. I am not in favor of this radical innovation. If a resolu- tion is presented, to which an amendment is offered, and the Convention is opp<»ed to the whole theory of the proposition, the most expeditious way to dispose of it, ia to adopt a substitute for the whole thmg, and then use the substitute as a basis of action. Mb. TINNIN. I rise to a point of order. The gentleman has not offered any amendment. Thk chair. The point of order is well taken. Mb. McCALLUM. I am speaking against the resolution itself. Now, I move now, Mr. President, that this substitute be recommitted — that this rule thirty-two be recommitted to the Committee on Rules, and I ask this Convention whether it is prepared to dispense entirely with the practice of legislative bodies of using substitutes. I say it is a conven- ient and practical mode of arriving at the sense of the majority of the Convention ; much more expeditious than the mode here proposed. Mb. TINNIN. In answer to the gentleman, and for hii information, I will state that this rule has govern«i the legislative bodiesof this Stale for a good many years, and as a general thmg I think it has worked well, and given general satisfaction. Mr. ESTEG. This rule was interposed to do away with the queation as to whether it was possible to have a substitute that was not an amendment in itself; ai\d second, because it was not thought wise that there should be four questions pending before the house at one time. Now, sir, there can be the original question, and there can be tlie first and second amendments, and then there would be a substitute besides. That would be four. Now, we propose to treat a substitute as an amend- ment, and there will be but three questions before the house, and if the gentleman wants to reach the sense of the house by adopting any new proposition, be can refer it to a committee with instructions, and in half a dozen different ways, that are familiar to him. I trust this rule, of all others, will be adopted, as it will be found to facilitate the business of this Ixxly. You will 6nd, by and by, in considering these amendments, the different members jumping up and proposing this amendment and that amendment, and we will get very much mixed, and if you will treat these substitutes as amendments, then there never can be any con- fusion. Then there will be the main auestion, the amendment, and the amendment to the amendment, and tnose three questions are familiar to all persons on this floor. I hone, for the sake of simplifying matters, the rule will be adopted. It has oeen the rule in our legislative assem- tflies for a number of years, and it has worked well. Mb. waters. I will state that under this rule we may have two amendments. One of these amendments, or both of them, may be sub- stitutes. We call them amendments, althoujgh they may be substitutes. Now, the committee have recommended this rule so that there cannot be so many motions pending at one time. It cuts off the possibility of there being four or five questions before the house at one time. Mb. cross. Mr. President: It seems to me if we adopt this rule as it reads, it will in a great measure do away with the real benefits arising from the use of suostitutes. It was illustrated yesterday, when one gentleman offered a resolution that "A" be appointed Doorkeeper. Now, if this rule is adopted, another gentleman might amend by mak- ing the salary fifty dollars a month, and another might amend the amendment by making it thirty dollars a month. Now, under this rule, if another member wantD to move that "B" be appointed Doorkeeper instead of "A," before that can be done we will have to take three sep- arate votes ; vote the amendment to the amendment down, and then vote the amendment down, and then vote the original resolution down, and then take up the resolution to appoint " B " Doorkeeper. Now when there are three such motions before the house, the whole business can be closed out at one stroke, and that stroke is the substitute. That is the advantage which a substitute has ; it enables us to arrive at the sense of the Convention by a single vote, and I think we should adhere to the principle of the substitute. A substitute, by one vote, can take the place of three or four. Mb. McCALLUM. Suppose this to be the case. Suppose an amend- ment to the Constitution is proposed, the whole theory of the proposi- tion the majority of this Convention are opposed to. An amendment is offered, and an amendment t^ the amendment; so far you can go with amendments; but the third amendment, which would be a substitute, would be ruled out of order, Itecause, as has been suggested, you can't propose an amendment to an amendment to an amendment. Now, we will suppose that all the time it is clearly the judgment of the Conven- tion that the whole proposition is the wrong basis of action. Now, the matter being an important one, the roll is called. We have to call the roll on amendment one and on amendment two, and spend all that time calling the roll twice, whereas, if the Convention can have the oppor- tunity, it can vote on a substitute to take the' place of the ongmal motion. I know that many innovations have been made in the customs, but whether wisely made or not, I cannot say, but as far as my own judgment is concerned, I think not. I don't believe but what, with the intelligence of this Convention, they will be able to keep the run of even four propositions — the resolution, the amendment, the amendment to the amendment, and the sutistitute — for in that case, without this rule, the first question will be on the adoption of the amendment, which will take the place of the resolution and the two amendments, which- ever is in accordance with the will of the majority of the Convention. The question in that case is on the substitute. Mb. WATERS. It does seem to me that the logic of the gentleman is entirely out of the way. He is presuming that the substitute, or in other words, that the last motion to be put is always right, and that the substitute will always represent the wishes of the majority of the Con- vention. If the rule is to allow four or five amendments, lie is presum- ing that the last one is always going to be the best. If we limit it to two amendments the matter can l>e reached just as quickly as the other way. There is no reason to presume that the last amendment offered, if we allow four or five, is going to be the best one. Let us limit the number, and then we can keep straight and know what we ore doing. Mb. WEST. I am not at all particular whether this sectioKJs adopted or not. I am clearly of the opinion that the committee intended to shorten the process in this Convention by the adoption of that rule. Now it is well known by gentlemen of experience in parliamentary law that there are fourpropositions, the original, the amendment, the amend- ment to the amendment, and the substitute. It is an established rule of parliamentary usage that the mover of the original proposition, and the friends of the original proposition, should have the benefit of all the amendments; in other words, that the friends have the privilege of amending the original proposition, and putting it in the best light pos- sible. Then if a member offers a substitute the two propositions come up ou their respective merits. Now, your committee endeavored to shorten and simplify matters as much as possible. Mr. HERRINGTON. It occur* to me that these two rules, twenty- nine and tliirty-two, taken together, solve this problem. "A substitute shall be deemed an amendment and be treated in all respecta as such." Then rule twenty-eight: "No subject different from that under oonsid- eration shall be admitted under color of an amendment." That does away entirely with any such thing as a substitute, and makes a substi- tute actually an amendment, because it must pertain to the same subject. Mr. KOLFE. I am in favor of adopting the rule as originally recom- mended by the committee. I call tne gentleman's attention to rule twenty-eight, which says: "Nosubjectdiffereut from tBat under tsonsid- eration shall be admitted under color of an amendment." Now, unless a substitute is treated as an amendment, why any gentleman might get up here and move that when this Convention adjourn it do adjourn until next Monday. Another gentleman might get up and move as a aubsU- tute that this Couvention appoint an additional Page. Now, if a sub- stitute is not treated as an amendment — and I will confess right here that I have had no experience in parliamentary law, never was in a legislative btxly in my life — but it di^ seem to ine that unless a substi- tiiu! is treated as an amendment a man may make an amendment to a motion, nnotlier may offer an amendment to the amendment, then another gentleman rises and makes a motion, or offers something as a substitute to the whole thing, and then another gentleman will move an amendment to the substiiute, and another will get up and move an amendment to the atiiAdniont to the substitute, and thus we will have about six prufmsitions bolore the Convention at one time. If gentle- men want so many propositions to be entertained, let them amend the rule so that an amendment lo an amendment to an amendment may be entertained. Let them do it directly, and not try to accomplish it in this roundabout way. I am in favor of the rule as it stands. Mr. WELLIN. I move to strike out the rule entirely. Mb. DUDLEY, of Solano. I move to strike out the rule under con- sideration and insert the following: The chair. There is a motion before the house to recommit this to the Committee on Rules. The motion to recommit was lost. The question being on a motion to strike out, it was lost. Mr. DUDLEY, of Solano. I offer an amendment. "A substitute shall be in order, but shall not take precedence of pending amend- ments; but after all pending amendments have been acted upon, the substitute shall take precedence of the original motion." Mr. ESTEE. That defeats the very object of the rule. The amendment was rejected. The question being on the adoption of the rule, it was adopted. Rule 33. — The previous question shall only be put when demanded by five members. Adopted. Rule 34. — All incidental questions of order arising after a motion is made for the previous question, shall be decided, whether on appeal or otherwise, without debate. Adopted. Rule 35. — The previous question shall be put in the following form : " Shall the main question be now put?" and all debate upon the main question shall be suspended until the previous question shall be decided. After the adoption of the previous question, the sense of the Conven- tion shall forthwith be taken upon original amendments reported by a committee, upon {tending amendments, and then upon the main ques- tion, without debate. Mb. ESTEE. I move to amend so that it will read, "after the adoption of the previous question the sense of the Convention shall forthwith be taken: first, upon original a^keitdments reported by a Digitized byUoogie Oct. 8, 1878. OF THE CONSTITUTIONAL CONVENTION. eommittoe, then upon pending amendments, and then upon the main question, without delxate." Tlie motionprevailed, and the rule as amended was adopted. Bule 30.— Wheu a question is indefinitely postponed, the tame shall not be afiain introduced during the session of the Convention. Me. McFABLAND. I don't know that I understand the purport of that role: "When a question is indefinitely jxistponed, the same shall not be again introduced during the session of the Convention." Now, lir, I undeistand that this Convention, at the l.-u)t moment, at any time, mtr lake any action it pleases upon any pro|iosition that has been pre- sented. I do not understand that if it votes one way to-day it cannot vote another way to-morrow. Is the majority of the Convention to be bound hand and foot because a question has been indefinitely post- poned! If it is, I am not in favor of any such rule. Ml. ESTEE. The purpose seems to be very clear. It is that when a question is brought before this body for discussion and disposition, and is disptsed of by indefinite postponement, it cannot be brought before the body again during this session, unless by suspending the rules. Sow, any one of these rules can be suspended by a two-thirds vote, and if at any period it shall be found that we have madle a mistake, you can certainly get two thirds of this Convention to agree to suspend the rules. The object is to facilitate business, and I hope the rule will be adopted. Mb. white. I move to insert the words " without the consent of the Convention." Ml. McFARLAND. Now the explanation given by the Chairman Ktis6e8 me that we ought not to adopt this rule. He says the rules may be suspended by a' two-thirds vote. Now, suppose a majority ol this Conrention vote to-day to indefinitely postpone a proposition, and snppose next week, or next month, after further consideration, the majority are in favor of the same proposition. According to the gentle- man's motion you cannot act upon it again unless you can get a two- thirds vote. I say it is not right. I think we ought to be open to the last moment to conviction and reason. If I should vote to- a a Ml E8TEE. If the gentleman would take the trouble to study par- liamentary law a little, he would have some idea of these things. If ji'« riile is not adopted there will be no end to the debate. A question will be indefinitely pc«tponed to-day, and to-morrow it will be brought up Jpin and a long deoate will again ensue, and the next day the same ^sg over again. This rule was intended to be in the interest of the "troiesB of the Convention and not as a gag. Ml. BISGGOU). This is a gag law, sir, and strikes directly at the "nuprity.and I hope the minority will be wise enough to defeat it. Ml HERRINGTON. I move to amend by inserting after the the word "question," in line one, the following: "other than such as re- '•j*' to the Constitution directly," so as to read, " When a question, other than such as relates to the Constitution directly," etc. Ml HEUSTI8. I move to amend by adding "except by a majority T*." It seems to me that this is right and proper. '•1. FILCUEB. I raise the point of order that anything can be done by a majority vote any way, without the rule, and such a rale would be entirely useless. Mr. HEUSTI8. I don't think the gentleman's point is well taken. I think it is nothing more than right that if this Convention to-day should arrive at a conclusion upon some proposition to be embodied in the Con- stitution, and in three wcCks hence it clearly appeared to them that the^ were wrong in the first instance, they should have the right, by a majority vote, to undo what they had done and reverse their former action. Mb. shoemaker. The rule, as it stands now, is very old. We find it in Jefierson's Manual, |iage one hundred and forty-four. There is no gag about it. Ma. McFARLAND. I am very sorry that in making a set of rules, party questions should be sprung here. I have no idea that this rule was ever intended to gag any member or any number of members in this Convention, but I am opposed to the adoption of the rule on principle. I understand a Convention of this kind to be very different from a Legislature. The Legislature does its work every two years. If any wrong i; done it can be remedied within two years. A Constitu- tional Convention does its work for a generation. I do not apprehend that any clause can be put in the Constitution which we intend to sub- mit to the people, unless the majority is in favor of it; but I do not believe that any clause the majority wants to put in there ought to be kept out by the minority, and I do not believe that the minority are going to be bound up with a rule like that Now, there are a num- ber of questions to come up here, upon which I have no decided opinion at present ; I desire to hear the reasoning and views of others. Now, a proposition may be brought up here, and without discussion may be indefinitely postponed, and be forgotten. Afterwards, it may become apparent that such a proposition is proper, and then a minority of the Convention can prevent it. This is the direct effect of the rule. I understand that such a rule as this is common in legislative bodies. I do not know whether such is the case or not. But there is no com- parison between the two bodies. The majority of this Convention, if they make a mistake, should be able to get right at any moment Mr. CAMPBELL. Mr. President: These rules are for the future government of this Convention. As has well been said by the gentleman from Sacramento, Mr. McFarland, this is no ordinary lt;gislative body. We should have the utmost freedom in the cousiderution of all questions relating to the organic law, and it would be unjust to the people of this State — it would be unreasonable in the extreme — if at some time when there is a thin house, a proposition by a Ijare majority vote should be indefinitely postponed, to say in our rules, that at some future time a majority of the whole Convention could not call it up again and reopen the subject. It seems to me that the amendment offered by Mr. Heustis exactly meets the case. Let the question be considered as disposed of unless the Convention, by a majority vote, sees fit to do otherwise. Mr. IIAGER. Mr. President : In the first place, it is well enough to ascertain what the question is, as we all know it is not a new one. Now, this rule is as old as legislative assemblies themselves. It is recorded in Jefferson's Manual, which is nearly one hundree brought up again if this rale is notadopted, day after day, until it finally succeeds. Now, I do not see why the majority have not the right to end that matter at once by indefinitely postponing it. I would agree to an amendment similar to the one proposed by the gentleman from Los Angeles, Mr. Howard, and if a proposition which hat been voted down should be presented again, let it first be referred to a stand- ing committee before again being considered by the Convention. Sup- pose some member should propose that the Judges should be appointed by the Governor, and he gets up day after day and moves to have that proposition inserted in the Constitution, and it is debated two or three hours each time, would it be anything unfair — would it be any hard- ship— for some member to say, we have had enough of this matter, and move that it be indefinitely postponed ; that_ would end the matter. Now, if we don't have some rale of that kind by which we can suppress some ambitious man, we may be kept here one hundred days witnont doing anything. Thr CilAIR. The question is on the amendment offered by Mr. Heustis, to add the words '■ except by a majority vote." Mr. McCALLUM. I will withdraw my amendment, and ask the gentleman to add to his amendment, " to be decided without debate." Mr. HEUSTIS. I accept the amendment The ayes and noes were demanded by Messrs. Barbour, Cross, and White, and the roll was called, with the following result : Ayers, Hall, O'Sullivan, Barbour, Harrison, Reddy, Barton, Harvey, Reed, Beerstecher, Heiskell, Reynolds, Belcher, Herold, Rhodes, Bell, Herrington, Ringgold, Rolfe! Berry, Blackmer, Hilborn, Hitchcock, Schomp, Boggs, Holmes, Shatter, Brown, ■ Huestis, Shoemaker, Burt, Hunter, Smith, of 4th Distriet, Campbell, Inman, Smith, of San Franciaco, Caples, Johnson, Soule, Charles, Jones, Stedman, Condon, Joyce, Steele, Cowden, Kenny, Sweasey, Cross, Kleine, Swenson, Crouch, Lampson, Swing, Davis, Larkin, Thompson, Dean, Lavigne, TuUy, Tuttle, Dowling, Lindow, Dudley, of Solano, Martin, of Alameda, Vacquerel, Van^ke, Estey, McCallum, Evey, McComas, Van Voorhies, Farrell, McCoy, Walker, of Marin, Filcher, McFarland, Waters, Finney, Miller, Webster, Freeman, Mills, Weller, Freud, Morse, Wellin, Garvey, Murphy, West, Glascock, Nason," Wickes, Gorman, Nelson, White, Grace, Neunaber, Wilson, of Tehama, Graves, Noel, Wyatt^l04. Hale, O'Donnell, Digitized by GooqIc ^£-L Oct. 8, 1878. OP THE CONSTITUTIONAL CONVENTION. 71 Anilrews, Bany, Hager, Howard, Kelley, Boucher, Ijaine, Chtpman, Larue, DoTle, Lewis, Pu'dJej, of San Joaquin, Mansfield, Dunlap, Edgerton, Eatee, of Ist District, Fawcett, Gregg, Martin, of Santa Cruz, McConnell, McNutt, Ohleyer, Overton, Porter, Pulliam, Schell, Shurtleff, Smith, of Santa Clara, Stevenson, Stuart, Terry, Tinnin, Turner, Winans — 35. Ms. WATERS. Mr. President: From the vote taien, it appears to be the sense of the Convention that a majority vote has power to take up a motion that has been defeated. Now, the rule as it reads, allows this wivilege only on questions that may have been indefinitely postponed. There are other questions than indefinite postponement. If it is the aense of this Convention that a majority may take up a proposition that has been defeated, I now move to amend the rule by striking out the words " indefinitely postponed," and insert " when a question is lost," so as to read : " When a question is lost on any final vote," etc. Ul FR££MA2(. I think that comes more properly under the next Kction, under the head of reconsideration. Ms. WATERS. It is germane to this very section. I see no reason why a matter that has been defeated by indefinite postponement can be a^n considered, when a inatter that has been defeated by any other kind of s final vote cannot come in on the same footing. Why should questions that have been indefinitely postponed have this preference over matters that have been lost by any other kind of a final vote? I eiimot see the justice of it. Thi CHAIB. The question is on the adoption of the amendment of the gentleman from San Bernardino. Us. TINNIN. Mr. President: By the vote taken it is clearly the established ruling of the Oauvention that a majority can take up a ques- tion that has been finally disposed of. Now, I fully concur with the gentleman from San Bernardino, Mr. Waters, that there should be no privileged matters in this body. Now, we have decided that when a question has been indefinitely postponed, it can be again taken up by a majority vote, and why should we require a two-thirds vote to take up propositions that have been defeated by other means? I don't see how the house can do otherwise than sustain this amendment, and be consist- ent. The Convention cannot surely go back on its own act. Thi CHAIR. The question is on the amendment proposed by Mr. Waters. Mr. DUDLEY, of Solano. Mr. President: Now, the efiect of the vote is not as represented by the gentleman. It does not make it a privileged question, for at any time, if any question is lost on one day, if it is not l(»t on a motion to indefinitely postpone, it may come up upon a simple motion, and may be considered on the following day after being voted down. Ms. BEERSTECHEB. As I understand the gentleman's amendment (mm San Bernardino, it is where there has been a final vdte upon any question. Now, the vote on indefinite postponement is not a final vote in any sense of the term, and I shall vote against his amendment. Mb. ESTEE. Mr. President: I think the motion to indefinitely postpone is one of the most final votes it is possible to have, and I hope now, if the majority of this Convention wants to control these matters, after they have been indefinitely postponed, it will be true to itself and ay that on every final vote when a question is lost, it shall be con- sidered again by a bare majority ; and that is but fair, because some of the gravest questions may come under this head. Now, if we adopt this report, and adopt Cushing's Manual, we will be in this position : when a question comes up, and is postponed indefinitely, it can be brought up •gain the next day by a bare majority, but when a question has been defeated by any other kind of a final vote, a majority cannot bring it up again. Let us have uniformity in the rules, and if it is the inten- tion that a majority can reexamine a question after it is lost, let that rule apply to all questions alike. Ms. BEERSTECHEB. I call attention to section thirty-seven of the report of the committee : " On the day succeeding that on which a final vote on any proposition or resolution concerning the Constitution, or other resolution, has been taken, said vote may be reconsidered on motion of any member, provided notice of intention to move such reconsideration shall have been given on the day on which such final vote was taken, by a member voting with the majority ; and it shall not be in order for any member to move a reconsideration ou the day on which the final vote was taken." Now, it seems to me, as suggested by the gentle- men from Sacramento, that the motion of the gentleman, Mr. Waters, ought to refer to that section and not to section thirty -six. I think we should have a clear, positive, distinct declaration of the position a motion to indefinitely postpone shall occupy in the rules of this body, uid it seems to me this is an attempt to get round the vote just taken, We desire to have it distinct declaration of what position this occupies, and if we desire a further declaration on other propositions, let it be iuerted in section thirty-seven. I hope the gentleman's amendment will be voted down. Mt. HERRINGTON. Mr. President: I hope this amendment will be voted down. I desire to ofier a substitute to take its place, to be added at the end of the section, as follows : " Provided, such questions as do Mt directly relate to the Constitution shall not be again introduced ezeept by a two-thirds vote." TBI cThAIR. The gentleman had better wait until Mr. Waters' amendment is disposed of. There is already an amendment to an affleadmeot. The amendment offered by Mr. Waters was lost, on a standing vote — ayes forty-six, noes fifty-four. Thi chair. The question is now on the amendment proposed by Mr. Herrington. Me. HERRINGTON. Mr. President: What we are endeavoring to get at, as I understand it, is to preserve the main important rights ofthe body in the framing of the Constitution, and at the same time get rid of as much useless Ialx>r as possible. By cutting off the reconsideration of foolish motions, relating to unimportant subjects, you do avoid very much useless labor. The way the rule now stands we have preserved our rights under the circumstances, and it leaves us to use cur best judgment as to whether a motion, having once been disposed of, shall be again brought up; but we are not precluded by our iwn rules from doing as we may see fit. That is our right — it is the dearest right which this Convention has — and I am glad that this has been established as clearly and dis- tinctly as it has been. By reason of this amendment we have secured all the advantages that we could have secured by the original form of the rule in relation to the minor subjects coining before the'Convention, while we have preserved the most important rights in relation to sub- jects of great importance. Thi chair. The question is on the amendment proposed by the gentleman from Santa Qlara, Mr. Herrington. The amendment was rejected, on a standing vote — ayes forty-two, noes "sixty-two. Thi chair. The question is now on the original rule as amended. Mb. BLACKMER. Mr. President : I desire to offer an amendment. Strike out the first clause as far as the word " postpone," and substitute the following in lieu thereof: " When a question has been disposed of, either by indefinite postponement or by any other final vote," so that (be rule will read : " Rule 36. — When a question has been disposed of, either by indefinite postponement, or by any other final vote, it shall not again be introduced. The chair. That same proposition was contained in the amend- ment proposed by the gentleman from San Bernardino, Mr. Waters, and has been voted down. Mb. BLACKMER. Mr. President: It hardly comes under the same clause. I think by comparing them there will be found a radical differ- ence in the two propositions. The CHAIB. The question is on the amendment proposed by Mr. Blackmer. Mb. HEDSTIS. If the gentleman will allow me; I understand that question has already been disposed of when the bouse refused to adopt the amendment of the gentleman from Santa Clara. Tax CHAIR. The Chair will bold that it is a little different. I think it is in order. Mb. FREUD. I hope, Mr. President, the amendment will prevail. Me. freeman. I hope the amendment will not prevail. We have two rules now, one on indefinite postponement and one on reconsidera- tion. If we can dispose of this one on indefinite postponement then we can take up the next one, in relation to reoonsideration, which is embraced in rule thirty-seven. This amendment should be voted down, and if necessary it can be considered when we come to rule thirty-seven. Mb. BLACKMER. The question of reconsideration has this diffi- culty in it, when you take it upon this proposition, that the motion to reconsider must be given notice of immediately after the passage of the measure, and it does not provide for a change in the views and opinions of the Convention after the lapse of any considerable period of time. After one day, then the matter of reconsideration is of no avail what- ever, and it seems to me the only way out of this difficulty is to pass this amendment. Mb. freeman. I merely rise to say in reply that an amendment can be offered to rule thirty-seven which can provide for the method of notice. There is no reason why notice should be given to reconsider on the same day. On the other hand the Convention may have rule thirty-seven amended so that notice of reconsideration may be given at any time when it sees proper, and we can better regulate these matters then. The question being on the amendment proposed by Mr. Blackmer, it was lost on a standing vote — ayes thirty-four, noes sixty -eight. The rule as amended was then adopted, residing as follows: Rule 38. — When a question is indefinitely postponed it shall not again be introduced during the session of the Convention, except by a majority vote, to be decided without debate. Rule 37. — On the day succeeding that on which a final vote on any proposition or resolution concerning the Constitution, or other resolu- tion, has been taken, said vote may be reconsidered on motion of any member; provided, notice of intention to move such reconsideration shall have been given on the day on which such final vote was taken, by a member voting with the majority ; and it shall not be in order for any member to move a reoonsideration on the day on which such final vote was taken. Such motion of reconsideration shall have precedence over every other motion, except a motion to adjourn. No notice of reconsideration shall be in order on the d{iy preceding the last day of the session. Me. freeman. Mr. President: I desire to offer an amendment to rule thirty-seven : Strike out all down to the word "such," and insert as follows : " At any time after the final vote ou any proposition or resolution concerning the Constitution, or other resolution, has been taken, the vote may be reconsidered on motion of any member who voted with the majority, provided, it shall not be in order for any member to move a reconsideration without giving one day's notice of such motion." The amendment was rejected and the rule was adopted. Rule 38. — It shall be in order for any member or members to protest in writing against action of the Convention, and have such protest entered upon the minutes. Digitized by Google 72 DEBATES AND PROCEEDINGS Tuesday, Adopted. Bule 39. — A question of privilege 8liall be entitled to supersede other business; but when a member brings forward such question, ho shall first present his complaint, either verbally or in writing ; and the presiding officer shall decide, in the first iustanoe, whether such state- ment, however brought forward, involves a question of privilege. If such decision shall be in favor of the question of privilege, the member may then make such observations as mar be pertinent to the question of privilege, and may submit such reaaiution or motion as he may desire for the consideration of the Convention. Adopted. Rule 40. The author of a motion, proposition, or resolution, shall have the privilege of closing the debste, unless the previous question has been sustained. Mb. E8TEE. I think that should be amended so as to read, the author of a motion or the Chairman of a committee. The point I wish to make is this : that under our rules the committees will present most of the questions for the consideration of the Convention, and it will be hard to determine who the author is. I make no motion, I only throw this out as a suggestion. The rule was adopted. Hule 41. — Every member, when about to 8peal(, shall rise and respect- fully address the President, shall confine himself to the question under debate, and avoid personality, and shall sit down when ne is finished. No member shall speak out of his place without leave of the President. Mr. EDGERTON. Does that read "is finished" or "has finished?" Is the Clerk reading from the original notes? If it is that way, I hope the word " is" will be changed to " has." The rule was adopted. Rale 42. — No member speaking shall be interrupted by another, but by rising up to call to order. Adopted. Rule 43. — No member shall speak more tlutn twice on one question without first obtainiugleaveof the Convention, nor more than once until other members who have not spoken shall speak, if they desire to. Mb. GREGG. I move to amend by inserting after the word "twice" the following words: "No member shall sp^k more than twice nor more than thirty minutes at one time upon the same question." Mr. ESTEE. I hope that will not be adopted so early in the session. There will be some of the gravest questions to come before this Conven- tion, and there are gentlemen probably prepared to come before this Con- vention and give us a great deal of information, and oertainly it would be unusual to limit them to thirty minutes. Ma. GREGG. The purpose is simply to cat off useless debate. The amendment was rejected. Mr. BARBOUR. I move to amend the rule by adding at the end of the rule, " A majority of the Convention may rescind or suspend this rule." I don't think it would be right to require a two-third vote. The amendment was rejected, and the rule was adopted. Rule 44. — If any member be called to order for offensive words spoken in debate, the person calling him to order shsU report the words excepted to, and they shall be taken down in writing at the Secretary's table ; and no member shall be held to answer or be subject to censure of the Con- vention for language used in debate if any member has spoken, or other business has intervened, after the wonU spoken and before exception to them shall have been taken. Adopted. Rule 45. — If a question pending be lost by adjournment of the Con- vention, and revived on the succeeding day, no member who shall have spoken on the preceding day shall be permitted again to speak without leave of two thirds of the Convention. Adopted. Bule 40. — If any member in speaking or otherwise transgress the rules of the Convention, the President shall, or any member niay, call to order; in which case, the member so called to order shall immediately sit down, unless permitted to explain; and if called to order by a mem- ber, such member shall immediately state the point of order. If the poinlof order be sustained by the Chair,tiie member shall not be allowed to proceed ; but if it be not sustained, then he shall be permitted to go on. Every such decision from the Chair shall be subject to an appeal to the Convention, but no discussion of a question of order shall be allowed unless an appeal be taken from a decision of the Chair. Adopted. Rule 47. — When two or more nrembera shall rise at once, the President shall decide who is first to speak. Adopted. Rule 48. — When a member shall ask leave to have a proposition or resolution taken up out of its regular order, he shall, in making the motion, give the number and title of the same. Adopted. Rule 49. — Every resolution proposing any alteration in the Constitu- tion shall be read on two severe! days before it is finally acted upon and adopted by the Convention. . Adopted. Rule &0. — Every member presenting to the Convention a petition, memorial, or remonstrance, shall indorse his name thereon, together with a brief statement of Uie nature and object of the instrument Adopted. Rule SI. — Propositions and resolutions proposing matter to be incor- porated in the Constitution shall be prefaced with a title briefly indicat- ing the subject to which they refer. They shall be in writing, on legal cap paper, or printed, and shall be numbered by the Secretary in the order in which they are introduced. Adopted. Bule 62. — Propositions and resolutions mentioned in the last fore^ing rule shall embrace but one subject; they shall be read once when intro- duced, and then referred, without debate, to an appropriate com- mittee. Mr. LAINE. Mr. President: I desire to offer an amendment to rules fifty-one and fifty-two. The object of the committee in preparing these two rules seems to have been to simplify the work of the Convention. In my judgment they have confused it, and it will take weeks to introduce a very small amount of matter. In other words, every propo- sition must be written out separately and introduced. There are a nam- her of members who have prepared drafts of the Constitution with some care. They may contain valuable matter, and they may not. But having devoted some study to them it is proper that they should be introduced in this condition, that the press and the people of the State may know what is contained in them. They must see the instrument together in all its parts, because, In my estimation, it will be perfectly useless to send the Bill of Rights to one committee and the Judicial Department to another, and so on, without having some knowledge of the whole instrument as an instrument. In other words, we are recon- structing the whole political structure, and it must be a house complete in all its parts, and all its chambers and divisions must be in harmony. In other words, put it together as reasonable architects, and in order to do that we must see the instrument together; and if gentlemen desire to offer amendments to the instrument it will be necessary to have it all together, in order to see how they will fit and harmonise. In my judgment that will simplify the work ; if not, these gentlemen who nave prepared Constitutions will hare to spilt them apart, and it will require a long time to introduce them section b^ section and article by article. There will be a great deal of confusion if this Convention refuses to do so. In this way I cannot see any difficulty whatever. For that reason we adopt that rule in Congress in reference to the President's Message, and in the Legislative Assemblies in reference to the Gov- ernor's Message. They are not cut up and the part relating to one subject sent to this committee and anotner to anotner. The document must be considered in its entirety. Let the Constitutions that are intro- duced be printed and distributed among the members. Then if it ia desirable to have the different articles considered by different commit- tees it can be done, but the document will be kefore each committee and they can see the relation that the parts bear to one another. As far aa I am individually concerned, if these rules are adopted in this shape, I shall simply oner all the propositions to the committee and not to the Convention, because it will impose too much labor. I offer to amend aa follows: Amend rule fifty -one to read as follows : " Propositions and resolutions proposing matters to be incorporated into the Constitution, or proposing an entire draft of a Constitution, or of any separate article or section, shall be in writing on legal cap paper, signed by the member offering the same, and shall be numberea oy the Secare- tary in the order in which they are Introduced." 'Thi chair. The question is on the adoption of the amendment offered by the gentleman from Santa Clara, Mr. Laine. Ma, EDGERTON. Mr. President: I regard those two rules asamong the most important, as far as they relate to the procedure of this body. The gentleman from Santa Clara, Mr. Laine, tells us that he has been to a great deal of labor in preparing drafts of a Constitution, and he moves to amend so that an entire Constitution may be sent up. Now, it will have to be cut up and sent to the several committees, and the question is, who shall do this? Everything sent up has to be sent to appropriate committees, and who is to dcternHne what committees it shall go toT I think there are about thirty committees, and if the entire document is to go to the committees, somebody has got to rummage through it and see which goes to this committee, and which to that. Now, the course of procedure marked out in those two rules is this: if anybody has a proposition to make, it shall be prefaced with the proper title; read onoe when sent up, and then referred to a committee. Wnen it comes from the committee it is read again, and then goes to the general file, as pro- videil for in mle fifty-three, and then it is open to debate. Here is a resolution that such and such a provision be inserted in the Legislative Department. It is headed so the Secretary knows what committee to refer it to, and when it comes back it is placed under that head. Mr. LAINE. It seems to me that every member of this Convention would know what the Bill of Rights was, what the article on revenue and taxation was, and all the various articles of the Constitution , as well as if there were memoranda attached, because the draft of the Constitu- tion is prepared with reference to that matter. I can see none of this difficulty. It will take weeks the other way to introduce these proposi- tions, if they have to bp prepared article by article. It will take six weeks to get anything into this Convention to work upon. Ma. BIGGS. ' I am in hopes this amendment will be adopted. Every member will know what committee he is on. I hope this Convention will adopt it. Mr. HAGER. Mr. President: This is a matter of much greater importance than it seems at first glance. Now, we hare a neat manv standing committees, how many I do not know, probably thirty. Eack committee is charged with certain of these branches. No one committee is charged with the whole matter, and the rule proposed here, as I understand it, is that when a proposition is introduced by any member it must be referred to the proper committee. Now, suppose a gentle- man gets up here and offera an entire Constitution, to what committee must that Constitution be referred? It is not a single propoeition, and the member who has prerared it may himself divide it up into as many parts as are necessary. I do not see as it is necessary that the proposi- tions should be on legal cap paper. I do not see any need of that. The next rule says that the propositions shall be read onoe and referred to appropriate committees. 'That is the correct method. No one commit- tee should have charge of the entire Constitution, and they should oome here in separate propositions, and be referred to the several committees who hare charge of the various subjects. Otherwise we will never get to any conclusion. I think my friend from &mta Clara, Mr.iLaine, it Digitized by VjOOQ IC Oct. 8, 1878. OF THE CONSTITUTIONAL CONVENTION. 73 vroDg in his oonduaions, and that the amendment ought not to be adopted. fke amendment proposed by Mr. Laine was rejected. The rules, fifty-one and fifty-two, were adopted. * Rule S3.— All propoeitions and resolutions embracing matter proposed to be incorporated in the Constitution, reported by a landing or special committee, shall be read when reported, and shall be placed on a general Hie, to be kept by the Secretary, in the order in which they are reported. Tbey ahsU be taken from the file and acted upon in the order in which (hej are placed thereon, unless otherwise ordered by the Convention ; prorided, that engroeeed propoeitions and resolutions shall be placed at the head of the file, in the onier in which they are received. Two hun- dred and forty copies of the file for each day shall be printed. Adopted. o Bole M.— No oonunittee shall sit during the session of the Conven- tion without leave. Adopted. Bnl« Si.— In forming a Committee of the Whole Convention, the President mav {>reside or appoint a member to preaide. Propositions or resolutions relating to the Constitution shall be committed to a Commit- tee of the Whole Convention, and shall be read in Committee of the Vhole br sections. All amendments shall be noted and reported to the Convention by the Chairman. A^r report, the proposition or resolu- tion shall agam be subject to amendment before the final question is taken. Hi. WHITE. I move to amend, that the President shall not preside in the Committee of the Whole — that he shall appoint a member to preside. Ml. TIKNIN. The object of this committee in fixing it that way Wat to expedite business. That has been >he custom in the Senate of this State ibr years, and has been found to work well, and I can see no leason why it should be changed. Ut. BEER3TECHER. The only objection I see to the section as it stands now is this : it provides that the regular President presiding over the Committee of the Whole shall report. Now, who is he to report to when the Committee of the Whole resolves itself back into Convention? The Chairman of the Committee of the Whole makes a report of the work done in the committee. Kow, if the President of the Convention is Chairman of the committee, who is be going to make bis report to? Ml. ESTEE. Why, it is made to the Conv^tion. This has been the practice in your Senate here for years. The Chairman merely rises and states to the Convention what has transpired in the Committee of the Wbde, that they have had under consideration so and so, and report it back with amendments, recommending that they be adopted. The amendment was rejected, and the rule was adopted. Bile M.— The rules of the Convention shall be observed in Commit- tee of the Whole, so far as they may be applicable, except for limiting the times of speaking, and except that the ayes and noes shall not be taken, and that the previous qumtion shall not be moved. Bale 57.— A motion that the committee rise shall always be in order, and shall be decided without debate. > Adopted. Bole 58.— Every order or resolution which proposes an alteration in the Constitution, and all reports of committees appointed to consider the propriety and expediency of making any alteration therein, shall be coniideivd in Committee of the Whole before they are debated and finally acted on in Convention. Adopted. • Buleit.— The rules of parliamentary practice contained in "Cush- hig's Law and Practice of Legislative Assemblies," shall govern the Convention in all cases to which they are applicable, and in which they ut not inconsistent with the standing rules and orders of the Con- Tention. Adopted. Bole to.— No standing rule or order of the Convention shall he rescinded or changed without a vote of two thirds and one day's notice being given of the motion therefor; but a rule or order may be sus- pended temporarily by a vote of two thirds of the members present, sxeept rales filly, fifty-one, fifty-two, fifty-three, and fifty-five. Ma. WYATT. I move to amend rule sixty so as to make it conform with mie thirty-six, on the question of indefinite postponement. The motionpre vailed, and the rule as amended was adopted. Bule (1. — When the reading of a paper is called for, except petitions and memorials, and the same is objected to by any member, it shall be nvention by a committee." Mr. ESTEE. As far as the committee is concerned, and as for as I am concerned, I will vote to limit the expenses of this biody, but I think it would be extraordinary for this body to say that propositions and amendments to the Constitution should not be printed. These proposi- tions go before the various committees for their consideration, and it is of the utmost importance to have them printed. We cannot intelli- gently dispose of these propositions in any other manner. I do not believe there are any gentlemen on this floor, however wise, or however much experience they may have had in legislative matters, who can know the various amendments to the Constitution that may be proposed and act intelligently on them in committee or in this Convention unless they are printed. I hope the greatest latitude will be allowed in print- ing. I hope the thoughtful members in this body will take this into careful consideration. This is the most important rule reported by the committee, and I hope it will be adopted as reported. Mr. BIGGS. I have had the honor, Mr. Chairman, to serve in the Legislature of the State of California, and every gentleman knows that when a bill is introduced and is referred to a committee — everything is referred to a committee before it is printed — and you take the action of the committee and print it, and I dare the gentleman to deny it. What is the use of one hundred and fifty memwrs on this floor 'having one hundred and fifty propositions alike? Let these propositions go to a committee, and then let the action of the committ<« be printed. Why, sir, upon the subject of taxation, if you please, I ask this Convention, do they propose to have every resolution printed which is nearly the same? Why not refer them to the proper lopaifnitteea and Jet the com- Digitized byLaOOgle Oct. 8, 1878. OP THE CONSTITUTIONAL CONVENTION. 76 mittees act on them, and after they are reported to the Convention have them printed and laid before the Convention ? Miu LARKIN. I ask the gentleman, in all seriousnew, whether he propoees that these committees shall be the grave of every proposition snbmitted here that does not please them? Unless the majority of a committee sees tit to report it back and order it printed it will not be printed. Mb. biggs. Mr. Larkln knows very well that every committee has the right to make a minority and majority report. The House may take the minority or majority report, just as they see fit, and every resolution Till be acted on by the majority. It can always be brought before the Convention by a majority vote, when every other means fail. I say it is a waste of the people's money to have every resolution and proposi- tion that is submitted, without referring it to« committee, printed. One gentleman eavs every bill is printed. Every bill is reported to the proper committee, and their action is printed.-and that's the way it's none. I ask this Convention to let us change that rule, and let us refer these resolutions and propositions to the appropriate committees, and let them act on it as the action of that committee. Mb. ESTEE. Suppose the gentleman from Alameda, Mr. Van Dyke. has been incubating upon a proposition in reference to the Constitution that he regards as of great importance to the welfare of the State. He sends that up and it is read once and referred to a committee, without printing. The committee reports a substitute, something relating to the same matter, but different altogether. Now, I would like to know how this Convention is going to }inderstand which is the best measure to adopt, except by comparison of the original and the substitute. To do »,8re the gentlemen all going to flock to the Secretary's desk to examine it! Isliali,forone, want to have a copy of every proposition. I want to stndy it there and after a committee has reported something else in place of it. I want the original proposition at my oisposal, so that I iniuLcoiupare the two and arrive at a conclusion for myself. Now, in referOTce to the lug^ion of Major Biggs, that no bill is ever printed in the Legislature until afler it goes to a committee, he is verv much off his reckoning. I hold in my hand the rules of the Assembly of California. The same rale is there, which provides that two hundred and forty copies of every bill of a general nature shall be printed. Now, in the name of common sense, let me ask him if the propositions to be embodied in the organic law of a great State, to last, perhaps, for a generation, are not of as much importance as bills of a general character in the lower branch of the legislature. Let us have them printed, so that we may study them, and digest them, and thoroughly understand them when we come to »otc. The people do not appreciate this cheese paring economy, for eyerr dollar saved in this way may be the loss of thousands in other directions. As to the cost, I think I am entirely within the bounds of reason when I say the total cost of printing for this Convention will not be four thousand dollars. Ma. HIIiBORN.. Does the gentleman know what it cost for printing in the Senate last fall? Mb. ESTEE. Yes, sir; bat the gentleman does not seem to take into consideraticm the limit that is being placed in this ruie, limiting it to luch matters as pertains directly to the Conslitutiou. Mb. UILBORN. It cost for printing that fall eleven thousand dol- hirs. Mb. ESTEE. Now, sir, suppose it should cost fifty thousand dollars, or one hundred thousand dollars, and here I deny that the newspa- penwill publish this mass of matter. I undertake to say that the articles tn judiciary will make so much that" no pajicr in this State *ill undertake to print the half of it, and these gentlemen who are trying so hard to iurry favor with the dear people, will soon find themselves covered up by an avalanche of letters from their constitu- ents, praying them not to hide their light under a bushel. I tell you tbis IS no economy. Let the broad sunlight shine upon our actions bere, and let the people know what we are doing. Mb, JOHNSON. Mr. President: It occurs to me that this is a very important rule. If wo print these various propositions and rules they come under our immediate notice, and are subject to our close scrutiny. If, on the other hand, these propositions arc sent to the committee with- 2°t printing, we know not what disposition will be made of them. Tkey may .never sec daylight They may be buried out of sight, and It will be for us to unearth them. Here is a proposition on some sub- ject, not in the old Constitution, but on some particular thing, the Judi- cial Department, or Taxation, or some other particular thing. On the other hand, gentlemen will have a whole Constitution submitted as a proposition. Now, is it to be supposed that the newspapers will print these entire Constitutions? Is it to be supposed that tne newspapers "ill print these entire propositions and resolutions? No, sir. "rhey »ill print certain propositions and resolutions^ they see fit, or certain l»rt8of the propcned Constitution, and that will be the extent to which the members of this Convention will be advised of the purport of these propositions and resolutions. On the other hand, if we have them all pHnted and distributed among the members, then we can keep them before us, and scan them and criticise them, and we can then form some definite idea of the merits of the various proposed amendments and reso- lutions. It occurs to me that this is not the proper kind of economy to practice in the interests of the State. These propositions and resolu- tions should be printed. We have a State Printing Office, and all it coels is the bare material and labor. We are in a better position in that j*^«ct than many of the other States, which I believe are growing more bbeial in regard to printing public documents. In my opinion the VOf thing to do is to have these propositions all printed, and the JMiber to be printed, after they are in type, will make very little dif- ^•nee in the cost, so there is no economy in cutting down the number. If this is done we will be better able to vot« right. Mb. VAN DYKE. My amendment docs not go upon the theory that It » impoasible to print any other matter except that relating to the Constitution. It is within the power of the body at any time to print propositions or resolutions submitted by any member. Mh. BEERSTECHEB. Mr. President: It seems to me that we" are here for a purpose, not merely to consume this one hundred and fifty thou- sand dollars for salaries. There seems to be a fear on the part of some of the members that some of this one hundred and fifty thousand dollars may ^ssibly be diverted intootherchannels than for mere 6alarie3,and their pay correspondingly reducej::. t^ Oct. 9, 1878. OF THE CONSTITUTIONAL CONVENTION. 77 Bter, Larue, Townsend, Larkin, Fawcett, Johnson, H. C. Wilfon, White, Freud. On Mining— Pulliam, Tinnin, Hale, Kejes, Lampeon, Jonea, HcCoy, Burt, Strong, Dowling, HcNutt. On Pardoning Power — Shatter, Laine, Johnson, Barry, Rolfe, pall, Huestis, Kelley, George V. Smith. On Harbore, Tide Waters, and Navigable Streams — Ayers, Mills, Hil- bom, Cowden, J. West Martin, Barnes, Webster, II. Walker, Mansfield. On Labor snd Capital— Belcher, Holmes, £. 0. Smith, Ed. Martin, Hall, Barton, Stedman, Caples, Harvey. On Engroesnient and Enrollment — Moel, Wickes, Blaokmer, Ringgold, Johnson, Chapman, Stevenson. On Chinese— Miller, 8. M. Wilson, Barbour, Larkin, Shurtleff, Van Voorhies, Murphy, McFarland, Crouch, Andrews, Finney, White, Tuttle, Ed. Martin) Erey. On Immigntion — Barbour, Miller, 8. M. Wilson, Erey, Larkin, Shurt- leff, Van Voorhies, Murphy, McFarland, Crouch, Andrews, Finney, White, TutUe, Ed. Martin. On Lands and Htimesteart Exemption — E. 0. Smith, Glascock, West, SsTis, Schonip, Charles, Ohleyer, Brown, McConnell. Additional to the Committee on State Institutions and Public Build- ings—Beerstecher, Porter, MeComaa, Thompson. TBR BDLIS. Mb. ESTEE oflered the following resolutien : Betoind, That tb* mlea, ■• adapted, be renferred to the Oommlttee on Balfv, with iiutractioiu to prepare an index to the same, and have It printed in pamphlft fnai, with the namea of the offlceri and attach^ of the GuoTentlun attached thereto. Adopted. Mr. O'DONNELL. I have a reeolution to ofler. Ma. WATERS. I rise to a point of order. liesolutions are not now in order. Thi PRESIDENT. Introduction of propositions in relation to the Constitution are now in order. IRTEODCCTIOIC OP FEOFOSITIOIIS. On motion of Mr. Edgerton, Mr. Barbour had leave to offer the fol- lowing resolution : BmiMi That on praaentatioa of rasolntlons and propoetUoni, at provided for Id part seven of rale seventeen, Che Secretary shall call the Mst of delegates alphabeti- cally, sad «ach delegate, when bla name Is calle<>, ihall l,e allowed to present two Independent resolntlons or pro|>aaitlons relating to the proimeed Oonstltation, which ■hell tie read and referred wlthont debate If the call be not completed on the day it if commenced, the Secretary khall commence the call on the next day where he left off on the previons day, and so on fur the next day after, coming back, whan thnmsh, to the bead of the list, until the further order of the Convention. Adopted. Mb. WATERS. I would suggest that it be made a rule of the Con- vestion. Tai PRESIDENT. Under that mle the Secretary will call the roll. OOmilTTBE BOOII8.. Ms. VAN DYKE offered the following resolution : Bmolrtd, That the SergeantHit-Arma be instnicted to prepare suitable rooms for the ose of the standing committees. Ms. VAN DTKE. Some of these committees are already prepared to go to work, and it is necessary to have rooms assigned them in order to perform their duties. Mb. EDGERTON. I rise to a point of order. We have a rule fixing our order of business. That resolution will be in the eleventh, or last order of business. Trb PRESIDENT. The point of order is well taken. The Chair ■opposed that the house was willing to receive the resolution. The Becretary will call the roll. PBOI*OB1TIONS aiCD BBSOLDTIOKS. The Secretary called the roll, and propositions and resolutions were Knt up as follows : OrnCB OP LIBVTBHAirr-OOVBBNOB. Mb. BARBOUR introduced the following resolution to abolish oflice of Lieutenant-Governor: Baolvtd, That the Committee on Execntive Department be directed lo inquire into the expediency of abolishing the office of Lieutenant- Governor. X Referred to Committee on Executive Department SIMOLB LEGISLATIVE CHAMBER. Mb. BARBOUR inttx>duced the following resolution on single Legis- lative Chamber: Baohfd, That the Committee on the Iiegislative Department be directed to inquire into the expediency of establishing a single Legisla- tive Chamber. Referred to Committee on Legislative Department. Ml. DUDLEY, of Solano, f rise to a point of order. Rule twenty- >x, which has been adopted, says : " It shall be the duty of each mem- (wrwbo moves that any committee be instructed to inquire into the (xpediency of amending or revising the existing Constitution, to point out ths amendment which he deems expedient, in writing, to accompany his nntlon.'' These amendments do not accompany the motion of the gen- ttsaaa ftom 8aa Traneisoo, Mr. Barbour. Tn FRBSIIHGNT. I think these resolutions sufficiently point out tiu iBlmtion. The point of order is overruled. HOUBS OP LABOR. H*. OOVDOK' •fibred the following resolution establishing hours of Unr: I >*-.«>< Setolved, That the Committee on Labor and Capital be instructed to report a provision firmly establishing eight hours as a legal day's work. Referred to Committee on Labor and Capital. LIEM LAW. Mb. CONDON offered the following resolution relative to mechanics liens: JUwietd, That the Committee on Labor and Capital be instructed lo report provisions creating a perfect lien in favor of mechanics and all laboring men, upon the thing whereon the labor is performed and the laud whereon fixed, for their compensation. Referred to Committee on Labor and Capital. LICENSE)) TO CHINESE. Mb. DOWLING introduced the following proposed amendment to the Constitution, prohibiting the granting of licenses to aliens: Whebiab, The immigration of aliens, ineligible to become citisens of the United States, to this 8tat«, is detrimental to our well-being and dan- gerous to our institutions; therefore the following article should be inserted in the Constitution of California: Saalved, That no alien ineligible to become a citizen of the United States shall ever be granted a license to trade, peddle, or carry on any kind of mercantile business in this State after the adoption of this Con- stitution. Referred to Committee on Chinese. IBBIOATIOK. Mb. dowling introduced the following proposed amendment to the Constitution, relative to irrigation : Whkrras, The subject of irrigation is one of paramount importance to the State of California, and one which deserves the serious considera- tion of this Convention, as on it depends, in a great measure, the future prosperity and greatness of this State, and, in view of this fact, the fol- lowing Article should be entitled to a place in the Constitution : The Legislature shall provide for the construction and maintenance of a system of irrigating canals and ditches in this State, said canals and ditches to belong forever to the State, and remain under its direct con- trol. Referred to Committee on Water and Water Rights. THE Bl'PREME COURT. Mb. edgerton introduced the following proposed amendment to the Constitution, concerning the Supreme Court: Seso/ved, That the following provision bo adopted in the Constitution : All terms of the Supreme C.ourt shall be held at the seat of govern- ment; but the times for holding such terms shall be provided by law. Referred to Committee on Judiciary and Judicial Department. SEAT OP OOVERNHEKT. Mr. edgerton introduced the following proposed amendment to the Constitution, concerning the seat of government: Remlwl, That the following provision be adopted in the Constitution : The seat of government shall be at Sacramento, until otherwise directed by law ; but no law proposing a change thereof shall be effectual for any purpose until it is submitted to the electors of the State, at a general election, for approval, and is approved by a majority of two thirds of all the votes cast at such general election for or against such proposed change. Referred to Committee on Legislative Department. CHAB0E8 ox BAILBOAOg ANO VESSELS. Mb. ESTEE introduced the following proposed amendment to the Constitution, relative to discrimination of charges of railroads and ves- sels: Section 1. All individuals, associations, and corporations shall have the equal right to have persons and property transported over railroads in this State, or upon vessels plving upon the waters of this State, and no discriminations shall be made in charges for or in facilities for trans- portation of freight or passengers within this State, or coming from or going to any other State. Persons and property transported over any railroad shall be delivered at any station or landing at charges not exceeding the charges of transportation of persons and property of the same class, in the same direction, to any more distant station, but excur- sions and commutation tickets mar be issued at special rates. Sec. 2. No discrimination in charges or facilities for transportation shall be made between transportation companies and individuals, or in favor of either, by abatement, drawback, or otherwise, and no railroad, or owner or master of a vessel, or any leasee, manager, or employ^ thereof, shall make any preferences in furnishing cars, or motive power, or facil- ities for loading or unloading freight. 8bo. 3. No railroad, railway, or other transportation company shall grant free passes, or passes at a discount, to any person except officers or employes of the company. Referred to Committee on Corporations other than Municipal. HOMESTEAn exemption. Mb. EVEY introduced the following proposed amendment to the Con- stitution, relative lo homestead exemption : The homestead is the place on which the owner resides, who shall, at all times, have the right to point out and designate the same by any mode be may choose, and shall embrace and consist of one or more lots or parcels of land not in excess of one hundred and sixty acres, not exceeding the value of five thousand dollars, which shall be and remain free and exempt from incumbrance by debt or contract of every kind whatsoever, and free and exempt from forced sale by any and all writs or process whatever; and with the growing and grown^p^uoe there^ V/ Digitized by Google 78 DEBATES AND PROCEEDINGS Wednesday, upon, shall not be alienated by any penon or process, if the owner be a married man and under ooverture, without the written consent of his wife, taken and acknowledged in the manner as now established by law. Referred to Committee on Land and Homestead Exemption. EMPLOTHKNT OF CHILOKKN. Ma. FARRELL offered the following resolution in regard to the em- ployment of children under fourteen years of age : Raolved, That the Committee on Miscellaneous Subjects be requested to insert a clause in the Constitution prohibiting the employment of children under the age of fourteen years, in factories or other manufac- turing establishments. Referred to Committee ou Miscellaneous Subjects. mdmicipjil corpobations. M«. FAWCETT introduced the following proposition to incorporate new matter in the Constitution : No municipal corporation shall hereafter be created by special Act, nor shall any existing charter be changed or amended \>j special Act. The Legislature shall provide a uniform system of municipal ^vernments, ana may divide the same into classes according to population. Referred to Committee on City, County, and Township Organisations, CORPOBATIONS. - Mb. FAWCETT'introduced the following proposed amendment to the Constitution to amend section thirty-one, article four, of the Constitu tion, relative to corporations. Amend so as to read as follows : Corporations may be formed under general laws, but shall not be created by special Act. All general laws passed pursuant to this section may be altered from time to time, or repealed. Referred to Committee on City, County, and Township Organizations. TRIAL JCRIRS. Mr. FREEMAN offered the following resolution in regard to Trial Juries: Seaolved, That the Constitution be so amended as to permit two thirds of the trial jurors in any case to render a verdict. Referred to Committee on Judiciary and Judicial Department QRAKD JCRIK8. Mb. freeman offered the following resolution in regard to Grand Juries: Raolved, That the Constitution be so amended as to authorize the Legislature to dispense with Grand Juries, by general laws, in such oases as it may deem proper. Referred to Committee on Judiciary and Judicial Department. DECLABATION OP BIGHTS. Mb. GREGG introduced the following proposed amendment to the Constitution, concerning the " Declaration of Rights:" Amendment suggested to section seventeen of the " Declaration of Rights." Be it retolved, That foreigners who, under the laws of the United States, are privileged to become citizens of the United States, and who are or may hereafter become bona fide residents of this State, shall eiyoy the same rights in respect to the possession, enjoyment, and inher- itance of property as native-born citizens. Referred to Committee on Preamble and Bill of Rights. JUDICIAL STSTRH. Me. HAGER introduced the following proposed judicial system — sug- gested amendments of the present, proposed to be incorporated in the new Constitution as a judicial system : TO THE DECLARATION OP RI0RT8. Section 1. The right of trial by jury shall be secured to all, and remain inviolate ; but hereafter the concurrence of only three fourths of the jury shall be necessary to render a verdict. In criminal rases, where the punishment may be death or imprisonment in the State Prison, the jury shall consist of sixteen persons; in all other actions, either criminal or civil, the jury shall consist of twelve perscms; but by the agreement of the parties the jury, in a civil action, may consist oi eight persons, or a trial by jury may be waived. Sec. 2. No person shall Iks held to answer for a crime or any public offense punishable by death or imprisonment in the State Prison (except in cases of impeachment, or in cases arising in the militia when in actual service, or in the land or naval forces m time of war, or which this State may keep, with the consent of Congress, in time of peace), unless on presentment or indictment of a Grand Jury. In all other cases offenses shall be prosecuted criminally by indictment, information, or complaint, as concurrent remedies; and in any trial in any Court whatever, the party accused shall be allowed to appear and'defcnd in person, and with counsel, as in civil actions. Hereafter a Grand Jury shall consist of nineteen men, any ten (10) of whom concurring may find an indictment or true bill. The Legislature, by a two-thirds vote of all the members elected to each House, may abolish or establish and restore the Grand Jury system in all or any county of the State. Sec. 3. No person shall be compelled in any criminal case to be a witness against himself, but if he voluntarily becomes a witness he may be fully cross-examined ; nor shall any person, after being once acquitted by a jury, be again, for the same offense, put in jeopardy of life or liberty ; out if the jury fail to render a verdict, or if judgment after ver- dict be arrested or reversed, nothing herein contained shall prevent a new trial. Sec. 4. No person shall be deprived of life, liberty, or property with- out due process of law; nor shall private property be taken' or damaged for public use without just compensation. Such compensation shall be ascertained by a jury in such manner as may be prescribed by law ; and until "'® same shall be paid to the owner, or into Court for the ovener, the property shall not be disturbed, or the proprietary rights of the owner therein divested. The fee of lands taken for railroad tracks or canals, without the consent of the owner thereof, shall remain in such T)wner, subject to the use for which it is taken. Sic. 5. The provisions of this Constitution are mandatory and pro- hibitory, unless oy express words it is declared to be otherwise. to the judicial depabtmekt. Section I. The judicial power of this State, in matters of law and equity, shall be vested in a Supreme Court, in District Courts, in County Courts, and in Justices of the Peace, and in such municipal Courts of inferior criminal jurisdiction as the Legislature, with the concurrence of two thirds of all the members elected to each house, may establish in any incorporated city or town. . • Sec. 2. The Supreme Court shall consist of eight Justices. The Jus- tices of the Supreme Court shall be learned in the law, and not less than thirty-five years of age. They must be citizens of the United States and of this State for five years next preceding their electioif or appointment. Sec. 3. The Supreme Court shall have a general superintendini? con- trol over all inferior tribunals, and shall have appellate jurisdiction as follows: In all cases involving the construction of the Constitution of the United States or of this State; in all cases where the validity of anjr statute or treaty of, or authority exercised under, the United States is drawn in question; in all civil ca-ses arising in the District Courts whereof sucn Courts have exclusive original jurisdiction : in all cases of probate in the County or Probate Courts; and in all criminal cases amounting to felony, on questions of law alone; and it shall also ha^e power to issue writs of mandamus, certiorari, prohibition, quo warranto, and such other writs as may be necessary to the complete exercise of its appellate jurisdiction. The Justices, and each of them, upon petition in behalf of any person held in actual custody, may issue writs of habeas corpus to any part of the State, and make such writs returnable before the Supreme Court, or a Justice thereof, or before any District Court, or County Court, or before any Judge of such Courts. Sec. 4. The Justices of tbe Supreme Court, except as in this Consti- tution otherwise provided, shall be elected by the qualified electors of the State — two every two years at each general election — and shall bold office for the term o? eight years. But the Legislature may. in its dis- cretion, provide separate tickets and ballot-boxes for the election of Jus- tices of the Supreme Court at a general election, or raav change the tinae of election of such Justices from a general to a specral election, to be held every two years. Sec. i. The full terms of office of the Justices of the Supreme Court, and the unexpired terras of those elected to fill any vacancies, shall com- mence on the first Tuesday after the first Monday in January next ensuing their election. Those appointed shall enter upon the discharge of their duties as soon as qualified. ~ Sec. C. The Justices of^ the Supreme Court shall be So classified that only two of them shall go out of office every two years, and at tbe same time. If a vacancy occurs in the office of Justice of the Supreme Court, it shall be filled by the Governor. The person so appointed shall only hold the office until the next election appointed for the election of Jus- tices of the Supreme Court by the people, when tbe vacancy shall be filled by the election of a Justice, who shall hold the office only for the unexpired term. Sec. 7. The State shall, from time lo time, be divided by the Licgis- lature into two territorial districts, oach district to be composed of entire contiguous counties. A Supreme Court, to consist of any four of the eight Justices of the Supreme Court, shall be held in each territorial district, and the concurrence of three Justices shall be necessary to pro- nounce a judgment or render a decision. Appeals to the Supreme Court from judgments entered of record in a county within a territorial district shall be to the Supreme Court in tbe same district. Sec. 8. If in any case pending in the Supreme Court, in either dis- trict, the Justices be e(]ually divided in opinion, or the Court overrules an authoritative decision previously made by any Supreme Court of this Stale, such case shall, with a statement of the reason therefor, be certi- fied and transmitted to the Supreme &)Urt in full bench, to consist of eight Justices. All cases so certified and transmitted shall be heard in tbe Supreme Court in full bench, and only, unless the Court otherwise direct, upon written arguments; and the concurrence of five Justices shall be necessary to pronounce a judgment or render a decision therein. If five Justices fail to concur the judgment appealed from must be affirmed. Sec. 9. The Supreme Court, in full bench of eight Justices, and the Supreme Court in the territorial districts, of four Justices, shall be held at such times and places, and appeals thereto, respectively, shall be taken, certified, transmitted, and the business of the Courts regulated as may be prescribed by law. Sec. 10. At any session of the Supreme Court the Justice holding a commission oldest in date shall be Chief Justice, and if there be more than one commission of the same date the Justices may select the Chief Justice. Sec II. The State shall provide suitable Court-rooms and accommo- dations for holding the sessions of tbe Supreme Court, and for the Jus- tices and officers. Sec. 12. When any Justice of the Supreme Court, through interest or other disability, is disijualified from taking part in the nearing or decision of any case pending before the Supremo Court, in full bench, ' the remaining Justices may call to their assistance a disinterested Dis- trict Judge, who shall act in such case as a Justice o(Jho Supreme Digitized by VjOO'. Oct 9, 1878. OF THE CONSTITUTIONAL CONVENTION. 79 Court In like casea the Supreme Court, in either territorial district, may all to '^ assietance another .Tuetice of the Supreme Court of a District Judge. Stc. 13- The present Justices of the Supreme Court shall remain in office (unless sooner succeeded by those elected under this Constitution) until the expiration of the terms of oflice respectively to which they vere elected; but their terms of office shall expire, and the payment of further salaries or compensation cease, and they shall severally retire ftom office in the order of their election (the Justice of the shortest unexpired term first) at the commencement of the terms of office, respertivelv, of Justices elected under this Constitution. To succeed the present Justices of the Supreme Court two Justices shall be elected «l the election in the year and in the year . Sic. H. All judicial decisions in this State shall be free for publica- tion by any person ; but the Supreme Court may designate what decisions «nd opinions delivered by that Court, or the Justices thereof, shall be printed at the expense of the State ; and no payment shall be made by the State for the publication of any decisions or opinions not so desig- nated. All cases finally submitted to the Supreme Court must be decided vithnut unneoessary delay, and within three months after suc^ sub- mission. Sic \i. The Stat«, except as otherwise provided in this Constitution, shall be divided into convenient judicial districts of entire contiguous counties, in each of which one District Judge shall be elected by the qaalified electors of the district, at the general or special elections pro- Tided for the election of Justices of the Supreme Court. Such judicial districts may be changed, enlarged, diminished, or abolished by the Legislature, by a two-thirds vote of all the members elected to each house, as public convenience may require; and whenever a judicial district shall be abolished the office of the Judge and his salary and compensation shall cease. The District Judges shall hold their offices for the term of eight years. Sic. K. Any single county containing fifty thousand inhabitants may of itself constitute a judicial district. In a judicial district com- posed of a single county, the Legislature, by a two-thirds vote of all the members elected to each house, may, from time to time, as the public convenience may require, provide for an additional District Judge for every additional filly thousand inhabitants in such county, each of whom may separately hold District Courts, hear and tiy cases, perform all the duties imposed upon District Jud^s, and exercise the full jurisdic- tion of District Courts. In any judicial district where there may be more than one District Judge, the several District Courts therein, for business purposes, shall be known and designated as the First, Second, etc., DiDtrictCourt of the Judicial District, in numerical order, accord- ing to their respective numbers and judicial districts, as may be pre- scribed by law. The business, practice, and proceedings, and the times »nd manner of holding such Courts, may be regulated by general and special laws applicable to such judicial districts. Stc. 17. T^e District Courts shall have original jurisdiction in all cases in equity ; in all cases involving the title of real property or min- ing claims; the construction of the revenue laws of this State; the le^lity of any tax, impost, assessment, toll, or municipal fine, forfeiture or penalty, or the title to any office under this State; and in all other esses in which the demand, exclusive of interest or the value of personal property in controversy amounts to three hundred dollars; and, also, m all criminal cases not otherwise provided for, or which may be con- ferred by law. They shall also have such concurrent jurisdiction with, and such appellate jurisdiction from, inferior tribunals as may be con- ferred by law. Sic. 18. No person shall be eligible to the office of District Judge unless he be learned in the law and has attained the a^ of thirty-five years; and who has not, for five years next preceding his election, been t resident of the district, and a citizen of the United States and of this State. Sic. It. The District Courts shall exercise a superintending control over County Courts, Probate Courts, and other inferior Courts in each county of their respective districts; and they and the Judges thereof shall have power to issue orders and writs of mandamus, quo warranto, certiorari, prohibition, ne exeat, injunction, habeas corpus, and all other oidere and writs necessary and proper to the complete exercise of their jurisdiction, and to bear and determine the same. Sic. 20. In each of the counties of the State there shall be a County Court, and, except as otherwise provided in this Constitution, for each a County Judge shall be elected W the qualified electors of the county. County Judges shall hold their offices for the term of four years. Sic. 21. In any county containing over fifty thousand inhabitants, the Legislature, by a two-third vote of all the members elected to each house, may, from time to time, as the public convenience may require, provide for such county one additional County Judge for each additional fifty thousand inhabitants; each of whom shall separately hold County Courts, hear and try cases, exercise the jurisdiction and perform all other duties imposed upon County Courts and Judges. The business, practice, end proceedings of, and the manner and times of holding such ''Onrts, mav be regulated by general and special laws applicable to such counties. 8k. 22. The County Courts shall have original jurisdiction of actions of forable entry and detainer and to prevent or abate a nuisance ; of proceedings in insolvency, and of all such special cases and proceed- wp as are not otherwise provided for; they shall also have such criminal jurisdiction as the Legislature may prescribe; and shall have P*»er to hear applications for and to issue naturalization papers. They ■Itall also have appellate jurisdiction in all cases arising in Courts held I? Juiticee of the Peace, and in snch inferior municipal Courts as may w esttUiahed under this Constitution. County Judges shall hold, in their ra^iectivo counties. Probate Courts, and in sucJi Probate Courts, udtB Probate Judges, shall perform such duties as may be prescribed by law. In any county where there may be two or more County Judges the Probate Court shall be held, and the duties of Probate Judge per- formed, by one or more of such County Judges, oa the public convenience may require, and as may be prescribed by law. Src. 23. The County Courts, in their respective counties, shall exer- cise a superintending control over Justices of the Peace and all muni- cipal Courts, and shall have authority to issue writs of habeas corpus on petition by, or on behalf of, any person in actual custody, unless com- mitted or imprisoned by the order or judgment of the Supreme Court, or a Justice thereof, or by a District Court, or a Judge thereof. Sic. 24. Ko person shall be eligible to the office of County or Probate Judge unless he has attained the age of thirty years, and for five years next preceding his election or appointment has bcien a resident of the county, a citizen of the United States and of this State. Sec. 2S. District, County, and Probate Judges shall be elected at the general or special elections, and in the same manner prescribed for the election of Justices of the Supreme Court, and shall enter upon the duties of their respective offices on the first Tuesday after the first Monday in January next after their election. Sue. 26. The election of all Justices and Judges of Courts of record shall be held and conducted as this Constitution, and laws in harmony therewith, may provide; and in case of a tie, or contested election between any candidates, the same shall be determined as prescribed by law. 8(0. 27. District Judges may interchange with each other in holding District Courts, and in the performance of official duties, in the several judicial districts throughout the State; and if, from any cause, a County or Probate Judge be unable or disqualified from holding Court in any county, such Court may he held by any other County or Probate Judge. Sic. 28. The Supremo Court, District Courta, County Courts, and Probate Courts shall be Courts of record. Sic. 29. The Legislature shall provide for the election , in each county, of as many Justices of the Peace as the public convenience may require, with such duties, powers, jurisdiction (inferior to the Courts of record), and terms of office as prescribed by law. Sbc. 30. The Justices of the Supreme Court, District Judges, County and Probate Judges shall, at stated times during their continuance in office, receive for their services such compensation as is or may be pre- scribed by law, which shall not be increased or diminished after their election, or during their terras of office. The compensation to County and Probate Judges shall be paid out of the county treasury of their respective counties. No judicial officer, except Justices of the Peaoe when authorized by law, shall receive to his own use any fees or per- quisites of office. Skc. 31. The Justices of the Supreme Court, District Judges, County and Probate Judges, during the term for which they shall have been elected shall not oe eligible to any other office, State or Federal, than a judicial office, nor shall they hold any other office of profit under this State or under the Govorniuent of the United States, or of any other State, or practice as an attorney or counselor in any Court in this State. Src. 32. In jury trials, Judges may state the testimony and declare the law, but shall not charge juries as to conclusions of fact. Src. 33. The Legislature shall have no power to grant leave of absence to any judicial officer, and if any such officer shall absent him- self from the State for more than thirty consecutive days his office shall be forfeited and become vacant. Sbo. 34. If a Justice or Judge of any Court of record willfully vio- lates his oath of office, or neglects, or by reason of prolonged sickness or physical or mental infirmity becomes unable to perform tlic duties of his office with efficiency, the Legislature shall have power, by a two-thirds vote of the members of each house concurring, and with the approval of the Governor, to remove such Justice or Judge from office; but the cause of such removal shall be first stated on the Journal of each house, and notice thereof given to such Justice or Jud^, with such reasonable time to be heard in uis defense as may be prescribed by law. Sec. 35. The style of all process shall be " The People of the State of California," and all prosecutions shall be conducted in their name and by their authority. Sec. 30. The salaries and compensation allowed to judicial officers must be fixed by law. The yearly salary and compensation of Justices of the Supreme Court shall not exceed the sum of dollars ; that of a District Judge shall not exceed the sum of dollars; and that of a County Judge, or a Judge of a Municipal Court, shall not exceed the sum of dollars. Justices'of the Peace shall receive such salaries or fees as prescribed by law. Sue. 37. Judicial officers, before entering upon the duties of their respective offices, shall take and subscribe before a Judge of a Court of record the following oath or affirmation, in writing: " I do solemnly swear (or affirm, as the case may be,) that I will support the Constitu- tion of the United States; that 1 will support and fully sustain, observe, and obey the Constitution of the State of California, in all its parts and provisions, and that I will faithfully discharge the duties of (here insert title of office), according to the best of my ability and understanding." The oath or affirmation of a Justice of the Supreme Court, or of a Dis- trict Judge, must, before the issuance of his commission, be filed and deposited in the office of the Secretary of State ; that of a County Judge, the Judge of a Municipal Court, and of a Justice of the Peace, must; in like manner, be filed and deposited in the office of the County Clerk of the county. Referred to Committee on Preamble and Bill of Bights, and Com- mittee on Judicianr and Judicial System. Mb. van dyke. I believe that violates the rule. These propo- sitions are on difierent branches, and referred to diflerent committees. The fore part was in reference to the Bill of Rights and the latter part to the Judicial Department. Ma. HAOEB. Some portions of the Bill of Bightsrelate to the Digitized by Google 80 DEBATES AND PROCEEDINGS Wednesday, judioial system, and that portion of it was rererred to the Coinmitt«« on rreainble and Bill of Rights. That which relates to Jury Trials is nisu a part of the judicial system, which is now embodied in the Bill of Rights. This is a proposition for a new judicial system. Thk president. The Chair decides that the resolutions sent up by the gentleman from San Francisco, Mr. Hager, relate to but one sub- ject. Portions of them may be referred to different committees. There- fore the point of order is not well taken. RAtLKOAD CORPORATIOMS. Hr. HOWARD introduced the following proposed amendment to the Constitution, relative to corporations: JUsolvei, That the Constitution should embrace the following pro- visions in relation to railways : Railroad corporations in this State are common carriers, and their ways public highways, and such corporations subject to legislative con- trol. They shall be chartered under general and uniform laws. Each shall have the right to connect with any other, and transfer and receive freight and passengers without delay or discriraiuatiou ; but no such corpo- ration shall consolidate directly or indirectly with a parallel or competing line. The railroad and steamship corporations or companies in this State, under pain of forfeiture of charters, are prohibited irom combining or pooling freights or fares, or in any manner combining or pooling with each other. No railroad or canal company in this State shall charge more than cents per mile as fare for passengers for a distance over thirty miles, or more than cents per ton per mile for freight for any distance over thirty miles. Freight shall include delivery, wharfage, and storage for forty-eight hours after notice to the consignee. Rates never shall be higher from a given point to another on any such way than from the first point to one more distant on the same way, except on excursion trains or commutation. Discrimiuktion in rates between individuals or corporations asking to be served is prohibited; and no railroad, canal, or steamship officer shall be permitted to become pri- vately interested in transportation or fumishiu)^ supplies. Common- carrying corporations are forbidden to engage in mining or other business. The Legislature of this Slate shall pass laws to more fully enforce the provisions of this article, and to correct abuses and prevent discrimina- tion and extortion in the rates of freights and fares on the public ways of this State, and fix, from time to time, by proper euactmeuts and laws, reasonable maximum rates of charges for transportation of passengers and freight on the different railroads and canals m this State, not inoon- sistent with the foregoing; and shall enforce such laws by adequate penalties, to the extent, if necessary, of forfeiture of franchises held by any corporation ofTending against such laws. Referred to Committee on Corporations other than Municipal. TAXATION. Mr. HUESTIS introduced the following proposed amendment to the Constitution, concerning revenue and taxation: Beaolved, That the Committee on Revenue and Taxation be requested to embody in their report the following propositions: Sic. — . Every person and corporation shall pay a tax in propor- tion to the value of his, her, or its property within this State. All moneys due and owing to any person, or to become due, by a solvent debtor, whether secured by mortgage or otherwise, are property within the meaning of this Constitution, and shall be taxed; provided, that all property of the United States, of the State, of counties, cities and coun- ties, cities, or other municipal corporations, and all growing crops, shall be exempt from taxation. The Legislature shall enact such laws as may be necessary to carry into effect the provisions of this section. Sec. — . For the purpose of preventing double taxation, the Legisla- ture shall enact laws necessary to authorize Assessors to deduct the just debts, evidenced by note, mortgage, or other written instrument of the person taxed, fmm the cstimatea value of his, her, or its taxable prop- erty. Solvent debts, secured by mortgage owned or held by non-resi- dents of the State, shall be assessed to such non-residents, and the tax so assessed shall be a lien upon, and collectible from, the property described in the mortgage; provided, that the amount of the tax so col- lected from such mortgaged pro])crty may be deducted by the mortgagor from the debt secured oy the mortgage. All contracts by one party for the payment of taxes assessed to another are hereby prohibited and declared null and void. Referred to the Committee on Revenue and Taxation. ■HFLOYMRKT Or CBINISR BY CORPORATIONS. Mr. FREUD introduced the following proposed amendment to the \j Constitution, relative to the employment of Chinese by corporations: Shction — . No charter, contract, grant, or subsidy shall be issued by this State to any railroad, mining, or other corporation unless it shall contain the express stipulation that no Mongolian shall ever be used, hired, or employed by such corporation in any capacity whatever. Sko. — . Violation of the foregoing provision shall work a forfeiture of said charter, contract, grant, or subsidy. Skc. — . No railroad, mining, or other corporation in existence at the time of the adoption of this Constitution shall have the benefit of any future legislation, except on condition of complete acceptance of all the prqyisions of this Constitution applicable to railroads, mines, or other corporations. ^ Referred to Committee on Corporations other than Municipal. LICENSKS FOR ALIRN8. Mr. FREUD introduced the following proposed amendment to the Constitution, relative to granting licenses, franchises, or privileges to aliens not eligible to become citizens of the United States. Scmlvcd, That the following sections be inserted in the new Consti- tution : LROI8LATIVB DKPARTMRHT. Suction — . The Legislature shall frame such laws for the regulation of franchises, privileges, permits, or licenses for the carrying on of any business or inoustry as shall prohibit the granting, issuing, or use of any such franchise, privilege, permit, or license to any alien resident of this State who by law is ineligible to citiienship. Src. — . Violation of tho foregoing provision shall he declared a felony, punishable in accordance with the laws of this State. Referred to Committee on Legislative Department. IXCI88IVI BAIU Mr. HU6HEY introduced the following proposed amendment to the Constitution, relative to excessive bails and fines : Jiemlved, That the Judiciary Committee insert the following section in Bill of Rights, in their draft of the new Constitution : Articlk — . Section — . Excessive bail shall not be required, nor excessive fines imposed, nor shall witnesses be imprisoned, in default of bail, as such. Referred to Committee on Judiciary and Judicial Department. tendke or orncE. Mr. JOHNSON introduced the following proposition as to officers and their tenure of office : All otficera of this State, county officers, members of the Legislature, and township officers, shall be elected on the first Tuesday after the first Monday in November, eighteen hundred and eighty, and every four years thereafter, and shall hold their offices until their successors ore elected and qualified ; said officers, so elected, to enter upon the dis- charge of their duties on the first Wednesday in January next after their election ; and officers holding office at the time of the adoption of this Constitution shall hold over till the first Wednesday in January, eighteen hundred and eighty-one. Judges of Courts of record are excepted from the operation of the foregoing proposition. Referred to Committee on Privileges and Elections. REAL ESTATE TO ALIENS. Mr. JOYCE introduced the following proposed amendment to the Constitution, relative to the lease or sale of real estate to aliens not eli- gible to become eitixens : Section 1. No alien or aliens shall ever be capable of taking, hold- ing, transmitting, or transferring title to any real estate within this State, or of acquiring or transferring any right, title, or interest in any real estate in this Slate, under lease or otherwise. Referred to Committee on Chinese. Mr. JOYCE also introduced the following proposed amendment to the Constitution, relative to the same subject: Sec. 2. All real estate in this State which shall hereafter be con veyed or leased to any alien who does not first legitimately declare his inten- tions to become a citizeu of the United States, under the laws thereof, shall escheat to the State. Referred to Committee on Chinese. A THOLE constitution. Mr. LAINE, I confess that I do not fully understand the scope of this rule, but it appears a proposition must embrace a single idea, ft seemed to me upon the introduction of the proposition by the gentleman from San Francisco, Mr. Hager, that it embraced a number of ideas, but was placed under the head of one proposition. Now, I do not desire to in- fract the rules of this Convention, but I desire to offer a proposed Con- stitution for the State of California, as one proposition, il I may be in order in doing so. It takes it all in, and of course there is more than one idea embraced in it. It is on legal cap and otherwise meets all the rules of the Convention. If I can be allowed to introduce it, I desire that it be referred to the Committee on Revision and Adjustment. The PRESIDENT. By unanimous consent of the Convention it caa be introduced. Mb. BARBOUR. I object. The PRESIDENT. It is out of order, then. Mr. HAUER. I wish to correct the gentleman, so for as the proposi- tion I introduced is concerned. It relates to one subject entirely — to the administration of justice alone. Mr. LAINE. I would ask a ruling of the Chair. The PRESIDENT. I rule the proposition out of order. Mr. McCALLUM. Will the Chair entertain a motion lo suspend the rule? I move that the rule be suspended, in order that he may oflBr his Constitution as a whole — that rule fifty-two be temporarily sus- pended. Lost. aliens brcomimo settlers. Mr. LARKIN introduced the following proposed amendment to the Constitution, relative to aliens becoming settlers in this State: Article — . Section I. No person shall be permitted to settle in this State who is not eligible to become a citizen of the United States after the adoption of this Constitution. Skc. 2. All contracts made with any such person or persons, oomins into this State contrary to the provisions of the foregoing section, shall be void; and any person who shall employ such person or persons, lease, rent lands or houses to him or them, or encourage any such per- son or persons to remain in the State, shall be fined in any sum not leas than twenty dollars nor more than one thousand dollars. Sec. 3. All fines which may be collected for a violation of the pro- visions of this article, or of any law which may hereafter be passed for the purpose of carrying the same into execution, shall be set apart and appropriated to the Common School Fund of the State. Digitized by Google Oct. 9, 1878. OF THE C0N8TITUTI0IJAL CONVENTION. 81 8ic 4. The Legislature shall paas laws to cai;ry out the provisions of thia article. Befemd to Committee on Legislative Department. LAND SCBSIDIIS. Ms. LINDOW offered the following resolution relative to land subsi- diei: Saolvei, No land or other subsidiea should be granted to any corpor»- tioiis. Boohed, Land grabbing must be stopped. Rtfened to Committee on Corporations other than Municipal. ABOLITIOR or OKAND JDBIIS. 111. MANSFIELD offered the following resolution in relation to Grand Jaries: JIaolved, That Grand Juries be abolished in this Stato by an appropri- tte provision in the new Constitution. Referred to Committee on Judiciary and Judicial Department. QVALiriOATIOH OF VOTKB8. Ml. MARTIN, of Santa Crox, offered OA following resolution rela- tiTc to peraoDB voting who have not been naturalised six months prior to an election : Raolvtd, Thst the Committee on Suffrage be instructed to in(|nire into tli« expediency of making provision that persons entitled to citisenship ihill not be allowed to vote at any election in this State, unless they ihall have obtained final naturalisation papers six months prior to any election. Kefetred to Committee on Right of Sufiiage. BKADIKO or BILLS. Hb. McCALLUM offered the following resolution to amend the Con- ititntion relative to the reading of all bills by sections, on the question of their passage, and taking and recording the final vote on such ques- tion: Saolved, That the Constitution should be so amended as to provide Uut every bill ahall be read in full on the question of its passage, and further, that the ayes and noes shall be always taken and recorded on inch qaestioD. Referred to Committee on Legislative DepartmenL mrriNO or the lbqislatcbi. Hi. McCALLUM offered the following resolution relative to the meeting of the Legislature : Saolved, That the Committee on the Legislative Department are ^reby instructed to report an amendment to article four of the Consli- totion,8o as to provide that the time of meeting of the Legislature shall be fixed to commence on the first Wednesday after the first Monday in Janiury ensuing the election of its members. Beferred to Cemmittee on Legislative Department. BioHT or SCrrBAOK. Ms. McFARLAND introduced the following proposed amendment to lie Constitution relative to the right of suffrage: Senhtd, That the following provisions be inserted in the Constitu- tion: £ver^ unmarried woman having such qualifications of age, residence, ud citiaenship as are prescribed in this Constitution for male voters, who is or may hereafter be the oWner of property of the value of one tbouatnd dollars, shall be entitled to vote at all elections in this State; and every married woman having the said qualifications of age, resi- dence, tod citixenship, who is orahall be the owner of separate property <^ the value of two tnousand dollars, shall be entitled to vote at all elec- liois in this State ; providtd, that the Legislature shall have the power to extend the elective franchise to any or all other women having the ihove named qualifications of age, residence, and citixenship. Deferred to the Committee on Right of Suffrage. PABDOMS AND BKFBISVE8. Hl MORGLAND introduced the following suggested amendment to lotion thirteen, article five, of the present Constitution : The power to grant pardons and reprieves after conviction, for all ofleiaet except treason and cases of impeachment, shall be lod^«d in a Commiieion to consist of three persons, to be chosen as proyi»ed by I". They shall have power to grant such pardons and reprieves upon nch conditions and with such restrictions and limitetions as they may funk proper, subject to such regulations as may be provided by law niatire to the manner of applying for pardon. Upon conviction for '''saon, they shall have power to suspend the execution of sentence antil the case shall be reported to the Legislature at its next meeting, *hen the Legislature shall either pardon, direct the execution of the "oUoce, w grant a further reprieve. They shall communicate to the ''(gidatnre, at the beginning of every session, every case of reprieve or penton gnmted, stating the name of the convict, the crime of which he *aa eoivietad, the sentence and ite date, and the date of the pardon or I to Committee on Pardoning Power. ABOLITION or riNin. . Ml. Morse offered the following resolution to abolish fines: -iooM, That the Committee on Preamble and Bill of Righto be in- '''wted Is report a section abolishing fines upon conviction of crime, "opt h eases of petty misdemeanor. Beftmd to Committee on Preamble and Bill of Rights. 11 CHINBSB TXSTIUOXr. Mb. MURPHT offered the following resolution, relative to Chinese testimony : lUtolvei, That the Committee on Chinese be instructed to prepare a / clause in the new Constitution forbidding the employment of Chinese testimony in cases where white persons are parties. Referred to the Committee on Chinese. TAXATION. Mb. murphy introduced the following proposed amendment to section thirteen, article eleven, of the present Constitution: Staolvtd, That the Committee on Taxation and Revenue insert the following amendment in the Constitution : Sbc. 13. Taxation shall be equal apd uniform throughout the Steto. Mortgages, bonds, notes, book accounts, and all other evidences of indebtedness shall be taxed to their full cash value. All property in this Stete shall be taxed in proportion to its value, to be ascertained and directed by law, but Assessors and Collectors of town, county, and State texes shall be elected by the qualified electors of the district, county, or town in which the property taxed for Stete, county, or town purposes is situated. Referred to Committee on Revenue and Taxation. mPLOTIIKNT or ALIIHB. Mb. nelson introduced the following proposed amendment to the Constitution, relative to employment of aliens : Rttahtd, That no alien, ineligible to become a citixen of the United Vi.' States, shall ever be employed on any Stete, county, mnnici^, or other public work in this Stete after the adoption of this Constitution. Referred to Committee on Chinese. DICLABATION or BI0HT8. Mb. NOEL introduced the following proposed amendment to this Declaration of Rights, article one, section twenty -two: The Legislature shall not grant to any citixen, or class of citixens, Erivileges or immunities which upon the same terms shall not equally elong to all citizens. Sbc. 23. Aliens who are, or who by the laws of the United States may become, citixens of the United States, and who are bona fide resi- dente of this State, shall en^oy the same righte in respect to the posses- sion, enjoyment, and inheritance of property as native-bom citixens. Sec. 24. The Stete, by virtue of ite sovereignty, has the absolute right to control the police regulations within ite limits. Referred to Committee on Preamble and Bill of Rights. ABOLITION or POLL TAX. Mb. O'BULLIVAN introduced the following proposed amendment to the Constitution, relative to the prohibition of a poll tax : Saolved, That the following provision should be inserted in the Con- stitution : A tax on human existence being an absurdity, antagonistic to tne institutions, therefore taxes by the poll are forever prohibited in this State. Referred to Committee on Revenue and Taxation. ACqOISITION or LAND. Mb. REYNOLDS offered the following resolution, relative to the acquisition of land : Ruolvei, That the Committee on be and are hereby instructed to inquire into and report as to the expediency of so amending the Consti- tution as to limit the future acquisition of land by any one person, or association of persons, or corporation. Mr. REYNOLDS. I ask to lay that resolution temporarily on the table, for the reason that I have only heard the names or the committees called, and hardly know to what committee I would like to have it referred. Thk PRESIDENT. It would go to the Committee on Miscellaneous Subjects. Mb. REYNOLDS. I do not desire it referred to a committee unless I know who the committee are. I understand Thb PRESIDENT. The resolution is not debatable. Mb. REYNOLDS. I desire only to state that I hope to get a commit- tee reported by the Committee on Rules and Order of Business, on Land Limitations, and if so I will then ask to have it referred to that com- mittee. The president. The resolution will lie on the table as the gentle- man desires it. WATEB BI0HT8. Mb. OHLEYER introduced the following proposed amendment to the Constitution, relative to water righte: Saolved, That all the waters of the State are the common property of the people, and no individual or corporation shall be permitted to use the same to the injury of their neighix>rs. Referred to Committee on Water and Water Righte. The hour having arrived, the Convention took a recess until one o'clock p. M. AFTERNOON SESSION. The Convention reassembled at one o'clock, the I'resident pro tem.. Belcher, in the chair. On motion of Mb. McFARLAND, the roll call was dispensed with. Mb. EDOERTON. Mr. President: I move that four hundred and eighty copies of the list of committees and the members constituting the same be printed. Digitized by' Google >w 82 DEBATES AND PROCEEDINGS Wednesday, Mb. BARBOUR. I second that motion. Mk. EST£E. It ia already ordered. Mb. EDGERTON. The list of committees is ordered, but not the names of the members constituting the committees. Mb. ESTEE. Then put in the residence of the members. Me. REYNOLDS. I hope the motion will prevail, for this reason Mb. murphy. I rise to a point of order. We are not now under the head of motions and resolutions. The president pro tern. The point of onler i« well taken. The Secretary will proceed to call the roll on receiving propositions. PB0P08BD AMBNDMBXTS AKD BESOLUTIONS. Mb. RINGGOLD offered the following resolution, relative to an oath, which was read by the Secretary and reTerred as noted : Saolvtd, After the adoption of this Constitution, no person shall ever be allowed to either vote at any State, county, township, or municipal election in this State, or the election of officers of any corporation for profit, nor be allowed to prosecute or defend any civil action in any of the State, county, or municipal Courts of this State, who, when cnal- len^ed so to do by any citizen of the State, shall refuse to take the fol- luwmg oath or affirmation : " I do solemnly swear (or affirm) that since the expiration of ninety days after the adoption of the now existing Constitution of the State of California, I have not directly or indirectly em{>loyed in this State, or elsewhere to render service in this State, any foreign-bom Mongolian, nor any alien resident of this State who is not entitled under the laws of the United States to become a citizen thereof, either as a laborer, servant, mechanic, manufacturer, .or otherwise, and I have not, since the expiration of ninety days after the adoption of said Constitution, knowingly bought, sold, or used, either for food, raiment, or any other purpose, any article manufactured, produced, or prepared in this State, in whole or in part, by the labor of any such Mongolian, or other alien resident of this State who is not entitled,' under the laws of the United States, to become a citizen thereof." All executive, legis- lative, and judicial officers of this State, and all county, township, and municipal officers shall, before entering upon the discharge of the duties of their respective offices, take and subscribe the above oath (or affirmation), together with the following: " And I will support the Con- stitution of the United States, and the Constitution of the State of Cali- fornia, and will faithfully discharge the duties of the office of according to the best of my ability." Referred to the Committee on Right of SuSrage. JUDICIAL DBFABTMEIIT. Mb. ROLFE introduced the following proposed amendment to the Constitution, to take the place of sections one, two, three, and four, of article six. The reading was dispensed with. Abtiolb VI. JVDICIAI, DBPAETMBlfT. SxcTioN 1. The judicial power of this State shall be vested in a Supreme Court, in District Courta, in County Courts, in Probate Courts, •nd in Justices of the Peace, and in such Recorders' and other inferior Courts as the Legislature may establish in any incorporated ci ty or town. Sbc. 2. The Supreme Court shall consist of a Chief Justice and five Associate Justices. The Justice having the shortest term to serve shall be the Chief Justice. The Justices of the Supreme Court shall be elected by the qualified electors of the State, at the general elections next after vacancies may occur in any of such offices respectively, either by expira- tion of term, death, resignation, or otherwise. They shall hold their offices for the term of twelve years from the first day of January next after their election. Sec. 3. The Supreme Court shall have appellate jurisdiction in all cases in equity; also, in all cases at law which involve the title or right to the possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest or the value of the property in controversy, amounta to hundred dollars; also, in all cases arising in the Probate Courta, and also in all criminal cases amounting to felony, on questions of law alone. The Court shall also have power to issue write of mandamus, certiorari, prohibition, and habeas corpus, and all writs necessary or proper to the complete exercise of its appellate jurisdiction. One Jus- tice may issue writs of habeas corpus to any part of the State upon peti- tion .and behalf of any person held in actual custody, and may make such writ returnable before himself, or the Supreme Court, or before any District Court or any County Court in the State, or before any Judge of said Courts. Sec. 4. The Supreme Court shall be dividpd into two divisions, of three members each. The Justice of each division having the shortest term to serve shall be the Presiding Justice thereof. Such division shall be made by the Justices by mutual agreement among themselves, or if in any case they cannot agree, then by the Chief Justice. One division shall be known as the Equity Division, and the other as the Law Divi- sion. The Equity Division shall hear and determine all appeals in equity cases, or in which questions of equity constitute the principal or important questions involved. The Law Division shall hear and deter- mine appeals, and have jurisdiction in all other cases. The Chief Justice shall allot to each division ita appropriate cases, in accordance with the foregoing division, but his allotment of any case or cases shall be subject to revision and change by the full bench, on the application of any two Justices of the Division to which such allotments so asked to be chanmd may be made by the Chief Justice, the decision ther«on by the full bench to be made as in any other case of appeal. Sec. 5. Terms of the full bench of the Supreme Court shall be held by the Justices of both Divisions sitting together aa one Court. The full bench of the Sitpreroe Court (hall have jurisdiction in all decided by either Division, in which there shall not be a ooncurrenee of all the Justices thereof, and in all cases which, on account of their importance, may be transferred to the full bench by order of the Division having the jurisdiction thereof, after judgment or decision by the Division. Sec. 8. Terms of the full bench and of each Division of the Supreme Court shall be held at such timet and place or placet aa may be pre- scribed by law. The pretence of four Justices shall be necessary to constitute a quorum or the lull bench to transact businets, and the concurrence of a majority of Justices present shall be necetnuy to pronounce a judgment or decision of the full bench. The judgment or decision in all cases coming to the full bench from either Division, in which the judgment or decision of the Division shall have been con- curred in by two of the Justices thereof, shall be considered as affirmed by the full bench, unless a majority of the Justices present, constituting a quorum of the full bench, shall concur in a reversal or modification. The presence of two Justices shall be necessary to constitute a quorum of either Division to transact business. Referred to the Committee on Judiciary and Judicial Department. A BE80LUTI0H COKCtBKIKO THE LEOISLATIVX DEPABTKKIIT. Mb. SCHELL introduced the following resolution : Raolvtd, That the following provision be incorporated in the Con- stitution : No new bill shall be introduced into either Home of the Legislature during the last ten days of the session thereof. Read and referred to the Committee on Legislative Depaitment. * BELATIVE TO TAXATIOX. Mb. SCHOMP introduced the following resolution: Rtaotvtd, That all farming lands, of equal producing capacity, tbould be subject to equal taxation, without reference to cultivation. Read and referred to the Committee on Revenue and Taxation. BELATIVE TO THE BIOBTB OF POBEIOK-BOBH CTrlXEIIS. Mb. SHOEMAKER introduced the following amendment to section seventeen, article one, of the Constitution, relative to rights of foreign- bom residents: Proposition to amend section seventeen, article one, of the Conttitu- tion, so as to read as follows : Sec. it. Foreigners (except Mon^lians) who are or who may here- after become bona fide residents of this State, shall enjoy the same rights in respect to the possession, enjoyment, and inheritance of proper^^ as native-bom citizens, restricted only by such regulations as the Congreit of the United States may impose. Read and referred to the Committee on Preamble and Bill of Rights. BELATIVE TO BILLS OP ATTAINDEB. Mb. shoemaker introduced the following amendment to tection sixteen, article one, of the Constitution, relative to bills of attainder, ex post facto laws, etc Proposition to ain«nd section sixteen, article one, of the Constitution, so that it will read as follows : Sec. It. No bill of attainder, ex post facto law, or law impairing the obligation of contracts or making irrevocable any grant of special priri- lege or immunities, shall ever be passed. Read and referred to the Committee on Preamble and Bill of Rights. PB0P08ITI0N*Itl PAVOB OP THE MINOBITT STSTEM FOE THE SLECTIOX OP mM- BEB8 OP THE SENATE AND HOUSE OP EEPBESENTATITES. Mr. smith, of Santa Clara, introduced the following resolution : Setolved, That the Committee on the Legislative Department be requested to inquire into the propriety of incorporating into the new Constitution the following provisions: The Legislature shall apportion the State every ten years, beginning with the year , by dividing the population of the State into as ascertained by the last Federal cen- sus by the number of twenty-five, and the quotient shall be the ratio of representation in the Senate. The State shall be divided into twenty- five Senatorial districts, each of which shall elect one Senator, whose term of office shall be four years. The Senators elected in the year shall vacate their office at the end of two years, and those elected bearing even numbers at the end of four years, and vacancies occurring by the expiratloq of term shall be filled by the election of Senators for the full term. Senatorial districts shall be formed of contiguous and comp#«t territory bounded by county lines, and contain as nearly as practical equal number of Inhabitants, but no district shall contain less than four fifths of the Senatorial ratio. Counties containing not less than the ratio and three fourths may be divided into separate dis- tricts, and shall be entitled to two Senators, and to one additional Sena- tor for each number of Inhabitants equal to the ratio contained by such county in excess of twice the number of said votes. The House of Rep- resentatives shall consist of three times the number of the Senators, and their term of office shall be two years. Three Representatives shall be elected to each Senatorial district at the general election In the year , and every two years thereafter in all elections of Representatives aforesaid each qualified voter may cast as many for one candidate as there are Representatives to be elected, or may distribute the same in equal parts thereof among the candidates as he shall see fit, and the candidates highest In votes shall be declared elected. Read and referred to the Committee on Apportionment and Repre- sentation. EELATIVE TO BAILWAT8. Mb. smith, of Santa Clara, introduced the following proposition — declaring railways public highways; requiring the Legislature to estab- lish maximum rates and charges for freight u^d carrying pastengeis; Digitized byLjOOQlC Oct. 9, 1878. OF THE CONSTITUTIONAL CONVENTION. 83 the rolling stock of a railroad companv made personal property, and liable to execution and sale; prohibiting the consolidation of railroad cominnies; majority of Directors to be citizeKS or residents of State; proliibit companies from inflating stock, etc. Beaolved, That the Committee on Corporations other than Municipal be rec^uested to inquire of the propriety of the following provisions for the Constitution : Bailwaya heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways, and shall be free to til persons for the transportation of their persons'and property thereon, nnoer such regulations as may be prescribed b^ law ; and the Legisla- ture shall, from time to time, pass laws establishing reasonable niaxi- mnm rat« of charges for the transportation of passengers and freight on the different railroads in this State. The rolling stock, and all other movable property belonging to any railroad company or corporation in this State, shall be considers personal property, and shall be liable to execution and sale in the same manner as the personal property of indi- viduals, and the Legislature shall pass no law exempting any such property ih>m execution and sale. No railroad corporation shall con- solidate its stock, property, or franchise with any other railroad corpora- tion ranning a parallel or competing line. A majority of the Directors of any railroad corporation now incorporated or hereafter to be incorpo- rated by the laws of this State, shall be citizens and residents of tnia State. So railroad corporation shall issue any stock or bonds, except for money, labor, or property actually reserved and applied to the pur- poses for which such corporation was created, and all dividends and other fictitious increase of the capital stock or indebtedness of au^ such corporation shall be void. The exercise of the power and the right of eminent domain shall never be so construed or abridged as to prevent the taking by the Legislature of the property and franchise of incorpo- rated companies already organized and subjecting them to the public necessity the same as of individuals. The right of trial by jury dull be held inviolate; in all trials by jury shall be held invio- late; in all trials of claims for compensation, when, in the exercise of the said right of eminent domain, any incorporated company ihall be interested either for or against the exercise of said right. The Le^sl«ture shall pass laws to correct abuses and prevent unjust discrimi- nation and extortion in the rates of freight and passenger tariffs on the different railroads in this State, and enforce such laws by adequate pen- alties to the extent, if necefflary for that purpose, of forfeiture of their property and franchise. Reading dispensed with. Referred to the Committee on Corporations other than Municipal. BELATIVS TO TAXATION. Ml. SMITH, of Eem, introduced the following proposed amendment to the Constitution : Senhei, That the following be incorporated in the Constitution of this State as a part of the system of taxation, and be known as article dght, sections one, two, three, and four of said Constitution : Abticli VIJI. SiCTioK 1. Taxation shall be equal and uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and taxes shall be levied and collected under general laws; all private piuperty in the State, not exempt herein or under the lawsof the United States, shall bo taxed in proportion to its value in money, to be ascer- tained as provided by law. The word property, as used in this article and section, is hereby declared to include choses in action, money at interest, at band, or on deposit; credits, whether evidenced by notes, mortgages, or otherwise; goods, chattels, and effects, wherever they are; ships and vessels at home or abroad ; public stocks and securities; stocks in moneyed corporations, owned in the Slate, whether within or without the State; interest or increase on the bonds of the Government of the United States when owned within the State, whether the same be within or without the State; credits or money due on a debt at the time of uaegsment to be assessed to the debtor who shall have a lien on the debt, and against the creditor, for the amount of the tax, and to be deducted from the debt from the date of tlie payment of the tax. But when a debt is secured by mortgage, and the debt is assessed against the debtor, »ho shall pay the tax thereon, in the assessment of land upon which such mortgage rests to the amount of the mortgage debt resting on said i land shall be deducted from the valuation of said land, or real property, *hen the same would, without such deduction, result in double taxation, t>f such land not being fully paid for by the owner tliereof. But it shall not be considered double taxation when such real property is used for' I secarity purposes only by the mortgage, and in the assessment of credits their valuation shall be measured by the amount of assets of the debtor and the security of the credits. Property owned by the United States, \ir this State, or b^ municipal corporations under the laws of this State, all necessary public school property, public cemeteries in actual use, and groving crops, shall be exempt from taxation. ' Sic. 2. There shall be a State Board of Equalization, consisting of the Secretary of State, the Controller, and the Attorney-General. Said Soini shall equalize the valuation of the taxable property in the State lor State purposes; shall have appellate jurisdiction from County Boards ' of Equalization, and shall perforin such other duties as may be pre- scribed by law. The Boards of Supervisors of the various counties of the State shall constitute Boards of Equalization of their respective connUes, and for the purposes of equalization shall have full power (subject to appeal) to review and to raise or lower any county assess- nent, either upon complaint or upon their own motion; and it shall be their duty, at any convenient time, to be by such Boards previously tied, before the reguUr assessmenta in each county, to classify and grade the huida in their respective counties subject to taxation, under «Kh ngoJatjons as shall be provided by law ; and for the purposes of classifying and grading lands said Boards ma^ appoint deputies, whose duties shall be subjccs to the coi^rol and revision By said Boards. And said Boards shall perform such OTner duties in equalizing, grading, and classifying as the Legislature may prescribe. Skc. 3. Before any agricultural, grazing, mineral, or wild lands shall be assessed, they shall be so graded and classified by the Board of Equali- zation of each county that lands of the same kind and location shall bo placed in a separate clas'^, each class to be graded as to value in numeri- cal onler from first upwards. But cultivated lands sliall not be graded as lands of a greater value than the same kind and class of lands uncul- tivated. Lands, whether cultivated or not, of the same kind and quality, shall be graded and classified in the same grade and class. The assessment of lands shall be based upon their grade and classification; but lands belonging to the Government of the United States upon which preemption or United States Government homestead rights have not been perfected, and possessory rights, shall not be graded nor classified, nor subject to taxation, until such rights have been perfected into a fee- simple ownership. And in the taxation of lands the improvements shall be separately assessed. Skc. 4. There shall never be levied or collected, by general levy and collection, any special rood tax. Where funds other than such aa may come from county treasuries are needed for the construction and repair uf county roads, bridges, and ferries, the same may be levied upon the owners of property adjacent to such proposed roods, bridges, and ferries, or improvements, in proportion to the amount and value of such prop- erty and the convenience and value of such roads, bridges, and ferries to such property, or the owners and inhabitants thereof. Sue. i. No corporations, except for benevolent, religious, scientific, or education purposes, shall be hereafter formed under the laws of this State, unless the persons named as corporators shall, at or before the filing of the articles of incorporation, pay into the State treasury one hundred dollars fur the first fifty thousand dollars or less stock, and a further sum of twenty dollars for every additional ten thousand dollars of its capital ; and no such corporation shall hereafter increase its capi- tal stock without first paying into the State treasury twenty dollars for every ten thousand dollars of increase; and laws shall be passed to pre- vent and to punish, by heav;|r penalties and forfeitures, evasions of any of the provisions of this section. Beading dispensed with. Referred to the Committee on Revenue and Taxation. rklativk to kdooatiok. Mk. SMITH, of San Francisco, introduced the following: Seaolved, That neither the General Assembly, nor any county, town, township, school district, municipal or other corporation, shall ever make any appropriation to, or pay from any public fund whatever, any- thing in aid of any sectarian purpose, or to help support or sustain any school, academy, seminary, college, or university, or other institution of learning controlled by any sectarian denomination whatever; nor shall any grant nr donation of land or personal property ever be made by any such public corporation for any sectarian purpose whatever. Reading dispensed with. Referred to the Committee on Education. BKLATIVR TO PARDOKINO POWBB. Mr. SMITH, of San Francisco, introduced the following resolution, relative to the pardoning power: Raolvti, That the Constitntion ought to be so amended as to abolish the power of inrdon now vested in the State Executive. Read, and referred to the Committee on Pardoning Power. RKLATINO TO COBPOBATI0H8. Mb. STEDMAN introduced the following proposed amendment to the Constitution : Seaolved, That the following section be incorporated into the new Constitution : Section — . Every corporation or person having work done by con- tract shall be liable for all dues from contractors or sub-contractors to laborers and material-men for service or material hereafter done or fur- nished on such work ; provided, that notice of the amount of such dues be given to such person nr company within thirty days after the date when payable. Referred to Committee on Corporations other than Municipal. DISPINSINQ WITH GRAND JCBIIS. Mb. STEDMAN introduced the following resolution : JUaolved, That the Standing Committee on the Judiciary be instructed to inquire into and report to the Convention the propriety of dispensing with Grand Juries, and that if the committee should be in favor of dis- pensing with Grand Juries they report a section of the Constitution on that suoject. Referred to Committee on Judiciary and Judicial Department. RELATIVR TO TBK ILBCTIVE PRABCHISR FOR WOMEN. Mr. STEELE introduced the following resolution : JUaolved, That the Committee on Privileges and Elections be in- structed to inquire into the justice and expediency of extending the elective franchise to women on the same basis of qualification as estab- lished by law for the male voter. Referred to the Committee on Privileges and Elections. IKLATIVE TO THE WORDS " WHITE UALK." Mr. SWEASEY introduced the following resolution : Jiesolved, That article two, section one, of the present Constitution be amended by striking out the words, in line one, " white male," and wherever the same words may occur. Digitized by Google 84 DEBATES AND PROCEEDINGS Wednesday, Beferred to the Coiumittoe oc Right of Suffrage. Mb. BWEASEY introduoed th« following resolution : TXXATIOlt OF TISSKLS. Setolvei, That all water-craft, Bteamera, aail vessels, steam-tugs, etc., shall be assessed for taxes in the counties where the ntajority of the owners reside. Referred to the Committee on Commerce and Navigation. ■■LATITI TO XQCAL TAXATION OF LAND. Ml. SWENSON introduoed the following resolution : Seaolved, That all lands in this 8tat«, of equal productiye capacity, shall be taxed alike, without reference to improvements. Referred to the Committee on Revenue and Taxation. LIABILITY OF ST0CKH0LDBB8 IN OORFOBATIOHS. Mb. swing introduced the following resolution : Resolved, That there be incorporated in the Constitution a clause making each stockholder of a corporation or joint stock company indi- vidually and personally liable, in the amount of the face value of his stock, for all debts and liabilities of the corporation or joint stock com- pany. Referred to Committee on Corporations other than Municipal. BXLATIVB TO VOTIBS. Me. THOMPSON introduced the following resolution : RtMlved, That all citizens of this State who are entitled to exercise the elective franchise shall be required to vote at all municipal or State elections, under penalty of a fine of not less than ten dollars nor 6ver five hundred dollars, as the next Legislature of this State shall deter- mine, the same to go to the School Fund of the State. And in case of any such citizen neglecting to vote for three consecutive elections, he shall thereby be disfranchised for the term of three years thereafter, unless prevented by sickness, or absence from the State. Referred to the Committee on the Right of Suffrage. THK VITO rOWEB. Mb. TOWNSEND introduced the following resolution relative to the veto power of the Governor : RXECCTIVZ DXrABTllINT. Betolved, That the committee be instructed to put a clause in the Constitution authorizing the Governor to veto anjr item of appropriation bills without afiecting the other portions of the bill. Referred to the Committee on the Executive Department. RIGHT or BDFFRAOK. Mb. TULLY introduced the following proposed amendment to the Constitution, in regard to the right of sunrage : Besolved, That the Legislature of the State of California shall pass no law requiring a property qualification for office. Referred to the Committee on Right of Suffrage. BRLATIVB TO THK CRIHESI. Mb. turner introduced the following proposed amendment to the Constitution : Setolved, "The Chinese must go." Referred to the Committee on Chinese. TAXATION WITHOUT BBPBISXNTATION. Mr. T0TTLE introduced the following resolution relative to taxation without representation : Beaolved, That no citizen shall be taxed without representation. Referred to the Committee on Right of Suffrage. GRAND JVRIBS. Mb. TUTTLE introduced the following proposed amendment to the Constitution, relative to Grand Juries : Baolved, That the Judiciary Committee recommend that the Grand Jury shall consist of thirteen membets. Referred to the Committee on Judiciary and Judicial Department. TBIAL BT JDBT. Ub. van dyke introduced the following proposed amendment to the Constitution, relative to trial by jury: Seaolved, That section three of the Bill of Rights of the present Con- stitution be so amended that a trial jury may be constituted of a less number than twelve members, and for the rendition of a verdict by a vote less than the whole number of jurors. Also, for dispensing with a jury in civil actions, except in certain specified cases, such as cases sounding in tort. Referred to Committee on Preamble and Bill of Rights. fRRieaTS AND FABK8. Mb. WATERS introduced the following proposed amendment to the Constitution, relative to freights and fares : Sesolved, That there be incorporated in the Constitution a provision, mandatory in its terms, requiring the Legislature to pass laws prohibit- ing discrimination in freights and fares, for or against any persons or places, by common carriers in this State. Beferred to Committee on Corporations other than Municipal. TAXATION OF STOCKS. Mr. WELLIN introduced the following resolution in relation to a more uniform collection «f taxes: Seaolved, That all bank, mining, and other stocks shall be anened at their full value in money. Referred to the Committee on Revenue and Taxation. MKCHAHICS' LIXH8. Mb. WELLIN introduced the following resolution, in relation to the protection of laborers' wages, and the security of persons selling mate- rials: Seaoloed, That all improvements, buildings, railroads, flumes, dams, bridges, or other structures shall be held, together with the land belong- ing to such works or improvements, for the full payment of all labor and materials used in such works. Referred to the Committee on L^slative Department. BRLATITR TO THE DUTIES OF RAILROAD OFFICERS. Mr. WEST offered the following proposed amendment to the Consti- tution : Section — . The General Assembly shall enforce by fine and impris- onment, and such other penalties and forfeitures as may be efiiBCtual prohibitions: First — Against any director or officer of any railroad company, dur- ing his term of office, buying, selling, or in any manner dealing in the capital stock of such company, or being individually interested in any contract with it, except as an ordinary shipper or passenger. Second — Against officers and employ^ of railroad companies giving or issuing any free or discriminating passes or bills of lading, or other discriminating gratuities, to any person elected to or holding any office of profit or trust under the public authority of this State or of the United States. Referred to Committee on Corporations other than Municipal. RELATIVE TO rRRAMBLR. Mb. WICKES introduced the following proposed amendment, relative to the preamble : Seaolved, That the following preamble be referred to the Committee on Preamble and Bill of Rights, as presenting a basis for an organic law that shall claim obeiience, command respect, insure progreaa, and give a dignity and especial guarantee to the Bill of Rignta 'ioamedi- ately following it: PRXAHBLE. We, the people of the State of California, declare that God, being the author of order and law, is the final umpire of all government ; that He delegates authority to the people to frame, amend, or change its form, according to their necessities and principles of justice; that He clothes them with power to enforce it ; that he holds each and all amenable for the use or abuse of such delegated power; that, in this connection, allegianoe to God and to the State are one. And upon these fundamental truths we establish this Constitution. Referred to the Committee on Preamble and Bill of Rights. RELATIVE TO IIEIIBEB8 OF THE LBOISLATDRE. Mr. white introduced the following proposed amendment to the Constitution, relative to members of the Legislature : Seaolved, That the Committee on Miscellaneous Subjects be instructed to report the following : Section 1. A member of the Legislature who shall solicit, demand, or receive, or consent to receive, directly or indirectly, fbr himself or for another, from any company, corporation, or person, any money, office, appointment, employment, testimonial, reward, thing of value or enjoy- ment, or of personal advantage, or promise thereof, for his vote or official influence, or for withholding the same, or with an understanding, expressed or implied, that his vote or official action shall be in any way influenced thereby, or who shall solicit or demand any such money or other advantage, matter, or thing aforesaid for another, as the consider- ation of the payment or promise of snch money, advantage, matter, or thing to another, shall be held guilty of bribepr within the meaning of this Constitution, and shall incur the disabilities provided thereby for said ofiense, and such additional punishment as is now or shall be pro- vided by law. Sec. 2. Any person who shall, directly or indirectly, offer, give, or promise, any money, or thing of value, testimonial, privilege, or per- sonal advantage, to any executive or judicial officer, or member of the Legislature, to influence him in the performance of anv of his public or official duties, shall be guilty of bribery, and be punished in such man- ner as shall be provided by law. Sec. 3. The offense of corrupt solicitation of members of the I«i^sla- tnre, or of public officers of the State, or of any municipal division thereof, and any occupation or practice of solicitation of such members or officers to influence their official action, shall be defined by law, and shall be punished by fine and imprisonment Sec. 4. Any person may be compelled to testify in any lawful inves- tigation or judicial proceeding against any person who may be charged with having committed the offense of bribery or corrupt solicitation, or practices of solicitation, and shall not be permitted to withhold his tes- timony upon the ground that it may criminate himself or subject him to Eublic infamy ; but such testimony shall not afterwards be used ag^nst im in any judicial proceeding, except for perjury in giving such testi- mony, and any person convicted of either of the ofienses aforesaid shall, as part of the punishment therefor, be disqualified from holding any office or position of honor, trust, or profit in this State. Referred to the Committee on Miscellaneous Subjects. Digitized by Google Oct. 9, 1878. OF THE CONSTITUTIONAL CONVENTION. 85 KILATITI TO ■DDCATION. Ml. VHITE introduoed the follotring proposed amendment to the Constitution, relative to education : Bix^ved, That the Committee on Education be instructed to report the fbllowiag article for the new Constitution of Califomja: Articli — . Smiox I. A Superintendent of Public Instruction shall be ele<:ted \!j the qualified electors of the State at the same time that the Governor ii elected, and shall hold his ofSce for the saiiio time as the Governor. His duties shall be provided by law. He shall receive an annual salary of two thousand four hundred dollars, to be paid quarterly. 6k. 1. The Legislature shall foster by all suitable means the public tchool sratem of the State. The proceeds of all lands that may be rranted t>y the United States to this State for educational purposes, or mat hsTe been heretofore granted, all estates of deceased persons who may hare died without leaving a will or heirs, and also such per cent. at may be granted by Congress on the sale of lands in this State, shall be and remain a perpetual fund, the interest of which, together with the rents of the unsold lands, and such other means as the Legislature may provide, shall be inviolably appropriated to the support of common schools throughout the State, and no pert of such fund, or any money rsiswl by taxation for school purposes, shall ever be appropriated (o or divided oetween sectarian schools. 8ic. 3. Instruction in the common schools shall be in the English language, and confined to the following: reading, writing, orthogra- phy, grammar, geography, arithmetic, book-keeping, algebra, geometry, surveying, navigation, and ancient and modem history. Sic. 4. The Legislature shall provide that no relif^ious books shall be Died in the common schools, or any particular religion taught or ailvo- caled, and that care shall be taken to guard the rights of conscience of all children attending the public schools. Bk. 6. The Legislature shall by law provide that none but teachers of unquestioned sooriety and good moral character shall be employed as teachers in the public schools. Sic. t. The Legislature shall provide by law that a lecture on the nobility of labor shall be delivered at least once a month in every public school in the State by the Princijjal thereof, dwelling on its paramount importance in the adairs of men in every walk of lire. Die 7. The common schools of this State -shall be kept op and sup- ported in each district for at least four months of every year, and the legislature shall by law provide the necessary funds for doing so. Sic. 8. Education in the public schools shall be free to alt, and each ■cholar shall be furnished with such school books as his studies require, »* 0>e expense of the State. Sic. 8. The Legislature may require, by law, that every parent or Pli'dian of children under fourteen years of age shall give them as good U education as that to be obtained in the common schools, in cases where they do not send them to the public schools by choice. 8tc 19. The Legislature shall enact laws for the modification and managefflent of the State University, so that hereafter all instruction ■h^ M of s practical character, and confined to all such teaching as ahsll jmperly belong to all mechanical arts and sciences, and to all sciences properly relating to agriculture, and no other. The system tdopted shall provide that every student shall spend at least two hours every day in manual labor, at some mechanical art or in cultivating the ground. The students in attendance at the University shall be entitled iouutruction in all studies they may select consistent with the rules of 1x University, all necessary tiaoln, and board and lodging, free of all 'I'Of. The privilege of sending to the University shall be divided Ixlween the cities and counties of the State, according to population, in well manner as the Legislature may provide. 8k. 11. When the University of California is modified as provided l^n the foregoing section, the Legislature shall make such appropria- tionsfiom the State treasury as they shall deem prudent to assist in its Wpt; snd the proceeds of all lands granted by Congress to the State *» University purposes shall be properly invested as a perpetual fund •Of its support; but until such modification is provided for by law, no iMney whatever shall be expended by the State for its support. °K. 12. In order that every child in this State may have a fair '>IJK>rtanity to learn the privileges, rights, duties, and obligations per- •""•'ig to fineemen, the Legislature shall, by appropriate legislation, ••** to be published, at the expense of the State, in one well-bound wnune, of convenient size, the Declaration of American Independence, j™ Constitution of the United States of America, the Constitution of the ^^ of California, and Washington's Farewell Address; and shall cause iMssine to be distributed, free of cost, to the children in the common """Is, and to be used and taught therein as a text-book ; and also in •« Cniveniity of California, "t'erred to the Committee on Education. KILATIVK TO. TAXATION. Ml WILSON, of Tehama, introduced the following proposed amend- iMot to the Constitution, relative to taxation : ^'>'l«d, That the cause of the most of the wrongs that the people sow complain of is the unjust legislation in favor of capital ; ^'"l^i—All men should pay taxes on what he is actually worth ; "W—No person should pay taxes on his indebtedness. Rsferred to the Committee on Revenue and Taxation. RCLATIVC TO EDUCATION. Vi. Wt](^}(g introduced the following proposition to incorporate the y'l'^'Bg into the new Constitution, under the article entitled" Educa- '^ >' ud as part of that article : oKnoi L A Superintendent of Public Instruction shall be elected by the qualified electors of this State at the same time the Governor is elected. He shall bold his office for four years from the second Monday in January next after his election. His duties shall be prescribed by law. Sao. 2. There shall be elected by the qualified electors of this State, at the same time the Governor is elected, four members of a State Board of Education, one for two years, one for four yeaas, one for six years, and one for eight years, and at each succeeding biennial election there shall be electea one member of such Board, who shall hold office for eight years. The Superintendent of Public Instruction shall be ez officio a member and Secretary of said Board. The Board shall have the same pay and mileage as members of the Legislature when in session. Sic. S. The State Board of Education shall meet at the Capital of the State, under the call of the Secretary of the Board, on the first Tuesday in February next succeeding their election, and .continue in session not longer than twenty days, and annually thereafter for not to exceed twenty days at each annual session. A majority shall constitute a quorum. Sic. 4. The State Board of Education shall have power to legislate and make rules in relation to common schools, and the Slate Normal School, and perform such other duties as may be required by law. The State Board of Education, in fixing the course of study, shall include the following branches: reading, writing, s|ielling, arithmetic, geo- graphy, grammar, history of the United States, and in the higher classes some manual of government. The proceedings of the Board shall be printed by the Superintendent of State Printing, under the direction of the 8uperintentd, That the seats to be occupied by memben of the Constitutional Conven- tion be drawn by lot, Mb. STEDMAN offered the following substitute : Retolved. Tliat the member* of the Convention now proceed to select their seats by lot, proTided that before any such selection, the temporary President of the Con- vention be permllted to select his seat; and Setolrtd, That the friends of any absent member may select his seat for him. Mb. SMITH,of Santa Clara. I move to lay the resolution on the table. The motion to table prevailed — ayes, eightjr-five. Mb. van dyke. Mr. President: There is a resolution now on the table that was ruled out of order before we commenced on this order of business, and I wish to call it up now. It was to the effect that the Bergeant-at-Arms be instructed to prepare rooms for the committees. Mr. ESTEE. If the object is to go outside of the Capitol, I am opposed to it. Mb. van dyke. That is not the object. It is to have rooms in the building prepared for the use of the standing committees. Mr. ESTEE. I move to amend by adding " ro building." The amendment was adopted, and the resolution as amended was also adopted . Mr. barton. Would it be in order to move to amend one of the standing rules at this stage of the business. I have a resolution to offer amending rule two, but if there is any objection I will not offer it. Mr. LARKIN. I raise the point of order that no notice has been given, and therefore the resolution is out of order. Mb. barton. Then I will withdraw it and give notice of a motion to amend. Mb. CAMPBELL. Mr. President: I wish to offer a resolution and have it referred to the Committee on Printing: Resolved, That the Committee ou Reporting and Printing ascertain from the publisher of the Dally Record-Union upon what terms he will publish In said paper daily a Ibll report of the debates of this Convention. Mb. GREGG offered the following as a substitute: Beaolvedf That a committee of three be appointed to determine and report at what coat the Kecord-Union, or any other dally paper in this city, will publish in the dally issue a full and true report of the debates and proceedings of this Con- vention, and fumlffh to the members of the Convention two hundred and fifty copies every morning. Mb. O'SULLIVAN. I move to indefinitelypostpone the resolutions. Mr. AYERS. I raise the point of oi^der. Tne Act calling this Con- vention requires that the printing necessary to be done by the Conven- tion shall be done at the State Printing Office— not in a newspaper office, but in the State Printing Office. Tbi: president pro tem. The point of order is well taken, and the resolutions are out of order. Mr. O'SULLIVAN. I moved to indefinitely postpone. Thb PRESIDENT pro tem. The gentleman is out of order. Mb. FILCHER offered the following: Renlved, That J. West Martin, of Alameda, and J. T. Wickea, of Nevada, be added to the Committee on Kdncation. Mb. ROLFE moved to add Mr. Blackmer to the committee. Referred to Committee on Rules and Order of Business. 'rooms in the Capitol Mb. HUESTIS. By request, I introduce a resolution, and ask to have it referred to the Committee on Contingent Expenses: Jtetohed, That the Controller of State be and be is hereby autboriied to dn« a warrant in favor of W. T. Germatne, In the sum of eighteen dollars, for ssrvicss rendered as Page during the organisation of this Convention. Referred to the Committee on Mileage and Contingent Expenses. Mb. EAGON offered the following: Jtuolenf, That the Oonttoller of State be and he is hareby aathoriied and dincted to draw his warrant in fitvor of O. E. MrStay (br the sum of forty dollais, Ibr ssrv- icss rendered in writing the Jonmal of piuoeadlnKs daring the orgsni»tfciii of this (invention, prior to October third, eighteen hundred and seventy-eigfat; that the State Treasurer Is hereby authorised to pay the same out of Ihs appropriation tor •xpenses of this Convention. Referred to Committee on Mileage and Contingent Expenses. Mb. HILBORN offered the following: Ketalred, That in printing matters Introduced Into the Convention required to be printed, the Superintendent of the State Printing shall use for the pnsent the original papers Introduced ; he or his chief clerk reoeiptliig to th* Secretary at the Conventian Ibr the same, and returning them to the Secretary's dssk as soon as possible. Adopted. At tnree o'clock and five minutes r. m., on motion of Mr. Murphy, the Convention adjourned until to-morrow. THIRTEENTH DAY. SacBAMBitTO, Thursday, October lOtb, 1878. The Convention met in regular session at ten o'clock a. m.. President Hoge in the chair. 'The roll was called, and members found in attendance as follows: Andrews, Hale, O'Sullivan, Ayen, Hall, Overton, Barbour, Harrison, Porter, Barnes, Harvey, PuUiam, Barry, Heiskell, Reddy, Barton, Herold, R«ed, Beerstecher, Herrington, Reynolds, Belcher, Hilbom, Rhodes, Bell, Hitchcock, Rinsgold, Berry, Howard, Biggs, Huestis, Scheli, Blackmer, Hughey, Schomp, Boggg, Hunter, Shafter, Boucher, Inman, Shoemaker, Brown, Johnson, Shurtleff, Burt, Jones, Smith, of Santa Clara, Campbell, Joyce, Smith, of 4th District, Caples, Kelley, Smith, of Ban Fiaadiw, Casserly, Kenny, Soule, Chapman, Keyes, Stedman, Charles, Kleine, Steele, Condon, Laine, Stevenson, Cowden, Lampson, Strong, Oroea, Larkin, Stuart, Crouch, Larue, Sweasey, Davis, Lavigne, Swenson, Dean, Lewis, Swing, Dowling, Lindow, Terry, Doyle, Mansfield, Thompson, Dudley,of San Joaquin, Martin, of Alameda, Townsend, Dudley, of Solano, Martin, of Santa Cruz . TuUy, Dunlap, McCallum, Turner, Eagon, McComas, Tattle, Edgerton, McConnell, Vacquerel, Estee, McCoy, Van Dyke, Estey, McFarland, Van Voorhiee, Evey, McNutt, Walker, of Marin, Farrell, Miller, Waters, Fawcett, Mills, Webster, Filcher, Moffitt, Weller, Finney, Moreland, Wellin, Freeman, Morse, West, Freud, Murphy, Wickes, Glascock, Nason, White, Gorman, Nelson, Wilson, of Tehama, Grace. Neunaber, Winans, Graves, Noel, Wyatt, Gregg, O'Donnell, Mr. Prendent. Hager, Ohieyer, ABSBNT. Garvey, Prouty, Walker, of Tuolumne, Holmes, Tinnin, Wilson, of 1st District. LBAVB or AB8BKCB. Leave of absence was granted, for one day each, to Messrs. Jones and Holmes. The Journal of yesterday was read and approved. PKTJTI01I8 AND MBMOBIALS. Mb. MANSFIELD. I desire to offer the foUq^ing resolution : Digitized by VjOOQ IC Oct. 10, 1878. OF THE CONSTITUTIONAL CONVENTION. 89 WasssAS, It ii reprewnted that the Unltad StAtcs ts abuut to conclude a oom- merrUl trmty with the Republic of Franco, that will in effect prove doetnsctiTe to the wine int^reete of the Unlbn] States, and eapeclall; to California ; therofon*, Sieved, That the subject be referred to the Committee on Agriculture, Manu> fitcturc, and Commerce, with instrucUooa to tuqulro into and report, at as early a tifflr u practicable, to this honae, for Ita prot«*t or for anch other action as it may deem expedienL Mb. MANSFIELD also offered the followinf^: IiO« Anoblks, October 5lh, IS78. To the Hon. John M. Manafleld, member of the Oonstitatlooal Convention, Sacra* nento, California : Dear Sir: At a public meeting of the bualneta men and TlnlculturitU of Iam Angeles Oonuty, hold at the (V>urt Huuao this day, with the Hon. John G. Downey In th«<^air, a committvewaa appointed to draft tultablo reeulutiona in relation to the tboTe mliject-inattar. [Signed by a lai^e number of buaiuen men.] Mb. BABBOUR offered the following: Rmlwed, Thai tfila Convention memorialiie the President of the Cnlted States to tskeiodi measures to abrogate or modify the Burllngame treaty; and also memo- ritUie Congress to prohibit Chinese immigration. Mr. NOEL. I raise the point of order that the resolution is out of order, because that is a resolution^ and not a memorial. Tbk president. That comes within the rule, and is in order. It will be referred to the Committee on Chinese. ACKNOWLRDOINU ODD IN THR OONSTITUTION. Ms. CROUCH presented the following memorial : To the Constitutional Convention, to meet at Sacramento^ California, on the 28th (Uj of September. 1878 : BeiierlDg that Almighty Ood Is the sonree of all power and authority in civil gov* ernraeDt, that the Lord Jesus Christ is the Ruler of Nations, aud that the revealed wlll^Ood ta of supreme authority in civil affairs; Bemembfflng that this country was settled by Christian men, with Christian ends Iq Tiew, and that they gave a distinctly Christian chanuster to the Institutions which tb^j estAblislied ; PerceiTiDg the persevering attempts which are made to prohibit the reading of the Blbls in our public sehoola, to overthrow our Sabbath laws, to aliollsh the oath. pnj6r in our State Legislature, and other Christian features of our institutions, and to to diTorce the Government from ail connection with the (^bristian religiun ; Yiewfng with grave apprehension the corruption of our politics, and the prevalent lack of moral and religions character In those who hold office In the State ; and BeUevIng that a written Constitution should contain explicit evidence of the ChiMan character and purpose of the State which frames it; and perceiving that the sileace of the Constitution of the Sute, as well as of the United States, In this respect, is nsed as an argument ac&inst all that is ChrisUan in the usage and admlu- istrstion of the Government ; We, the undersigned, citixens of the State of Callfumla, petition your honorable body to frame the Constitution so that it shall suitably express our aeknowlndgmont of Almighty God as the source of all authority in civil government, of the L'lrd Jesus Hirist ss the Ruler of Nations, and of Ute ravealed will as of supreme authority ; and thus indicate that this is a Christian commonwealth, and place all the Christian lawi, iastitutioiM, and osagsa of the State on an undeniable legal basis In tiie fund»- Bental law of the same. [Signed by James Mitchell, and fifty others.] Mb. MILI^ presented a petition to the same effect as the above^ sinied by about fifty persons. Mk. Overton presented a memorial to the same effect, signed by thirty persons. Mb. HAGER presented a memorial on the sjtme subject, same as above, signed by one hundred and ten persons. Mr. van dyke presented a memorial on the same subject, signed by seventy persons. Mr. HAGER presented the following memorial, which was referred to the Committee on Preamble and Bill of Rights: To the Constltntkinal Convention, to meet at Sacramento on the 28th day of Sep- tenber. 1878: We, the undersigned, ciUxens of the State of California, believing that dvjl government is a divine instltntion, and that the Constitution of a com- uoQwealth composed of Christian people should be framed so as to promote Uio UglisBt interests of all the people, by fostering justice, morality, l>snevo)ence, and Christian institutions and usages, do hereby petiUun your hononible body to frame the new Con«titutk)n of California In acconJance with this theory. And, more spe- cifically: 1. So that there will be In the Constitution a fhll and explicit acknowledgment of Alsigfaty Ood as the source of all authority in civil government, of tho Lord Jesus Cbriit as the Rnler of nationa, and uf the supreme authority of the moral law of God, St revealed In the Bible; and thus indicate tliat California is a ('liristian com- ■onwealth, and place all Christian laws, Institutions, and usages of the State on an utdeniable basis in the ftindameiital law of the same. 2. S»that under the Constitntlon there may be statnte laws to prevent, not only pnbUeacts of blasphemy and gross forms of profiinlty, but also all such gross viola- tioos of the Divine law of the Christian Sabtiath as tend to prevent Christian pao> pie from peaceably enjoying thsfr right to rest and worship on the Lord*s day. 3. So thftt it may be coostHationat to pass statutory laws tn prohibit the manufacture sad sale •( qiirttuous liquors for common drinks ; and especiaiiy so that the sale of nch eommon drinks cannot be on the Christian Sabbatli. 4. So that murder shall be punished only by the death penalty, and that the Gov- fnwr cannot have power to pardon mnrderen or commute their punishment 6. So that no law can be enacted by which the religious exorciie of prayer, or the Mdiagof the Blhle, in the pablfc schools of the State, can be prohibited, or by wtiicfa prayer at the opaoing of the dally sessions of the ]>gislatore can be pre- Tented. 6- So that all such persons as are doalgnated or described below shall forever be iBsHgtble to any ofSce of the State, viz : ih) All persons not bom in the United State*, unless they have lived In the same •snthaa ten ysan; (2.) All who deny the existence of a Supreme Being—the Ood of the Bible ; g.) All who declare that they are enemies of ttie Christian religion, or deny ths niveme authority of the law of God contained In the Holy Scriptures ; (1) All who are guilty of any of the gross acts of Immorality, such as blasphemy, P(Viuw swearing, Sabbatli desecration, drunkennras, traffic In Intoxicating iiquots Of iwmsn drink, adultery or similar acts of Ucentioasneai, gamMing, lying, for a.) All who have ever taken op arms In rebellion gainst the Government of the l^Bital States, or against this Stute ; ((•) All who have been justly condemned prisoners In any State Prison ; and, n.)Afiwboare known to not have tho scriptural qualifications of civil rulers. sisKxodas,18, 21: ** Provide out of all the people able men, such as fear Ood, men of Mh, hating eovetonsDeas; ami place such over them to be rulers." And II Samuel, QfS: ** He that mleth overmen must be Just, ruling in the fear of God/' T. So tiiat all oaths of offloa, or oatiis required of witnesses, jnrors, etc.,shall be lo ^ MBS pf Ood, and ■^Rr•ya with uplifted hand. 12 ♦ 8. Bo thAt no one can be doprired of th« elective fimncbiMT, or of the right of citi* leiuhlp, or of education in the public sdioole, on account of nationality^ color, or MX, tt. So that tho elective franchise maj not be granted to persons of foreign birth, except those who speak the English language, until after they have been in the lliiitetl States Ave years, and to no one who ia unable to read the English language tutelligently. 10. So that in trials by jury verdicts may be rendered by nine out of twelve. JOHN RICE, N. A. JOHNSTON, 8. RICE, N. J. RICE, R. B. JOHNSTON T. B. BICE, GEOaOK HOWE; WM. MOORE, U A JOHNSTON, ■ K E. JOHNSTON. Mb. LAIXE presented a memorial on the same subject as above, signed by eighty persons. RKLATIVK TO FKMALE BCFFBAOK. Mb. ROLFE presented the following petition, relative to female suf- frage: To the Ooostitntional Convention, in Sacramento, California, assembled : The undentigned, cltixens of California, respectfully petition your honorable body to so amend the Constitution that no citiien of the State shall be disfranchised on account of sex. [Signed by Samuel Morton and Hevenil hundred otheiv.] LOCIL OfTION. Mb. HOWAKD presented a petition from citizens of Los Angeles County, asking for tne passage of a local option law, as follows: To tlie Constitutional Convention ; We respectfully represent that we have a rii^ht to be by law protected in life, penMn, and property, ttxmi intempemnce ; our lives are in danger, )in>perty Is stolen and destroyed in consequence of whisky, and our taxes doubled ; snares are set all over onr land to draw our sons ani daughtera from virtue to vice, from plent.v to poverty, and frum honor to degrodatfun. Vfe demand that the Convention mIihU " lead us not into temptation, but deliver na from evil " of intemperance. Give us a local option law. [Signed by J. O. Matthewson, and one hundred and nine others.} Referred to the Committee on Legislative Department. Mr, HILBORN presented the following fietitinu from citizens of Solano Couhty, OS follows: Tho honorable members of the Constitutional Convention ; WuERKAS, it seems right, rt-aaonaljle, and proper that a minority of the citizens in any comniunity should have the right t4i decide in regard to the Mle of intoxicating llquoni within Its bounds; and WHiiRRAS, the highest Judicial anthority of this State has declared that our preaent State Constitutluu does nut allow such ducliiion ; therefore, Me, the undersigned citi- sens of Solano County, State of California, hereby re.)i(tctfully petition the memliera of our State t^jnstttutlonal Convention to Insert an article in the Constitution to bo presented tj the people, giving them the power at every general election to vote for or against the granting of license for the sale of intoxicating llquon in any town- ship, village, town, or ward u{ a city. • [Signed by J. W. Jones, and fifty-four others ] BKPURTS OF CUMHirrKE8. Mr. HILBORK, from Committee on Mileage, made the following report: Mr. President : Your Committee on Mileage and Contingent Expenses beg leave to report that the members .^f the Convention are entitled to mileage for number of miles and amounts, as follows: Nambs. Miles. I Amounts. Andrews Avers Barbour Barnes Barry Barton Bcerstecher Belcher Bell Berry Biggs Blackmer Boggs Boucher Brown Burt Campbell Caples Cnsserly Chapman Charles Condon Cowden Cross Crouch Davis Dean Dowling ., Doyle Dudley, J, M,. Dudley, W. L,. Dunlap Eagon Edgerton Estee. Estey Kvey Farrell 354 ».'>6 168 16S 238 674 168 Ifl4 168 570 150 1141 408 192 516 122 182 40 168 194 250 168 104 142 122 238 122 168 168 44 96 118 Digitized by 168 220 1016 G $53 10 143 40 25 20 25 10 35 70 101 10 25 20 15 60 25 20 85 30 22 5U 171 00 61 20 28 80 77 40 18 30 27 30 6 00 25 20 29 10 37 50 25 20 15 60 21 30 18 .30 35 70 18 30 25 20 25 20 6 60 14 40 17 70 25 20 33 00 152 40 25 21 OO le 90 Fawcett. . Filcher — Finney... Freeman . Freud... Garvey... Glascock.. Gorman. . Grace. ... Graves... Gregg Hager Hale. DEBATES AND PROCEEDINGS Thursday, Namis. Hall.- Harrison Harvey Heiskell Herold Herrington Hilbom Hitchcock. Hogc Holmes Howard Huestia Hughey .'. Hunter Inman . Johnson Jones Joyce Kelley Kenny Keyes Kline... Laiue Lampson Larkin Lame Lavigne Lewis Lindow Mans6eld Martin, E. ». McCallum McComaa McConncll McCoy McForland McNutt Miller Mills Moffat Moreland Morse. Murphy Nason Kelson Neunaber Noel O'Donnell Ohlever O'Suilivan. Overton Porter Prouty Palliam. Reddy Reed Reynolds Rhodes . Ringgold Rolfe. Schell Bchomp Shafter Shoemaker Bhurtleff. Smith, E. 0 Smith, 6. V , Smith, H. W Soule - Stedman Steele Stevenson Stuart , Sweasey Swenson Swing Terry Tinnin Townsend TuUy Miles. Amounts. 738 74 792 $110 TO 11 10 118 80 168 146 90 168 168 686 566 168 74 96 168 120 166 168 306 120 120 168 308 974 624 168 122 252 282 312 168 40 168 100 168 306 180 100 168 120 168 9S6 410 182 316 38 1&2 140 168 180 220 314 196 728 346 168 168 408 168 106 168 282 118 90 180 942 S8 168 44 168 ,200 1&4 70 232 134 122 304 bb6 168 366 168 596 354 252 624 168 ,176 96 434 410 256 25 20 31 90 13 50 25 20 25 20 87 90 83 40 25 20 II 10 14 40 25 20 18 00 24 90 25 20 45 90 18 00 18 00 25 20 46 20 146 10 93 60 25 20 18 30 37 80 42 30 46 80 25 20 6 00 25 20 15 00 25 20 45 90 27 00 15 00 25 20 18 00 25 20 143 40 61 50 27 30 47 40 5 70 22 80 21 00 25 20 27 00 33 00 47 10 29 40 119 20 51 90 25 20 25 20 61 20 25 20 15 90 25 20 42 30 17 70 13 50 27 00 141 30 8 70 25 20 6 60 25 20 180 00 23 10 10 50 34 80 20 10 18 30 45 60 83 40 25 20 54 90 25 20 89 40 53 10 37 80 93 60 25 20 176 40 14 40 65 10 61 50 38 40 Namks. Miles. Amonnti. Turner 298 Tuttle , 410 Vacquerel ' 168 Van Dyke..., i 182 Van Voorhies 182 Walker, J j 200 Waters 1,176 Webster ' 188 Weller ', 286 Wollin I 168 West I 980 Wickes ' 122 White 410 Wilson, H.C i 286 Wilson, 8. M 168 Winans 168 Wyatt , 392 Martin, J. W 182 Stmng I 260 Thompson 168 $44 7« 61 it 25 20 27 30 27 SO 30 00 176 40 28 20 42 90 25 20 147 00 18 30 61 50 42 to 25 20 25 20 58 80 27 30 39 00 25 20 We therefore recommend the adoption of the following resolution: Rttolvfd, That (he Cootroll«r of State be authoriied and directed to dn* hb warntnti, payable out of the approprtatiou for tliU ConreutioD, in favor of tb« par- tiea named, and for the amounts stated la the abore reiiort. HILBOBN.Chainnaa. Mb. HILBORN moved that the reading be dispensed with, and the report printM and laid on the desks of members. rto ordered. Mk. HILBORN, from the Committee on Mileage and Contingent Expenses, also made the following re|)ort: Your Committee on Hiteaee and CoDtlngent Kxpenaea, to whom was referred the resolution by Mr. Caples, and also the resolution by Ur. Hilbom provldlnic for the employment of a Night Watclinian, bare had the same under consideration, and hereby report as folluwfl: Tlmt the attendance of a Ni^ht Watchman in the hsll of this Convention is atisulutely necessary; that one person can perform the dnty of both Day and NiKlit Watchman, and that flvo dollars per day is a reasonable com pensatlon for said serricee. The committee ofTered the following roeolutioD ; Kejolvril, That James Saultry bo and he is hereby appolnt«l Night Watchman of this Convention, at a salai7 of five dollan per day, the same to date from the beginning of this Convention. Mr. CAPLES. Is the question debatable? Thb PRESIDENT. Yes. sir. Mr. CAPLES. Mr. President : I offered the first resolution for the appointment of a gentleman to fill that position. I did so because I believed him to be a sober, truthful, honest, conscientious, faithftil gen- tleman, and that he will perform the duties of the position creditably. The gentleman proposed by the other resolution may be equally quali- fied. On that I do nut undertake to say ; but I understand that Mr. Saultry is now on the payroll of the State Prison, I don't know in what capacity. I see he is also performing some function here. Mr. HILBURN. I am informed that such is not the fact. I don't want him to he misrepresented. Mr. FAWCETT. The Convention passed a rule yesterday that all einplovcs should be appointed by the President, with certain exceptions. Thr' PRESIDENT. The Chair undersUnds that the Night Watchman was not mentioned. Mr. McCALLUM. The report goes to the table until we reach reao- lutions. We have not yet reached resolutions. We are now under the head of standing committees. Thr PRESIDENT. That is a report from a standing committee, and the question is always on the adoption of the resolution. It belongs to the report and comes up with the report. Mb. CAPLES. Whether it be true or not that Mr. Saultry is on the payroll, I shall not undertake to say, but it does appear that he is here in some capacity, I don't know what. He appears to be engaged during the day, and there is to be an effort made to enforce the eight-hour law, and it seems to me that to work this gentleman, Mr. Saultry, twenty-fnor hours in a day, would be to call down upon our heads the wrath and indignation of the Workingmen. It does appear to me that one position of ten, or twelve, or fourteen hours a day is enough for him to fill, whether he is or not on the payroll at San Quentin. As I remarked before I shall not undertake to say which of the two ^ntlemen are best qualified to fill the position, but I do think, and submit to the candor of the gentleman, whether it is not more proper, other things being equal, to give the position to the gentleman who is at liberty to devote his entire time to the duties of the position. Now if this gentleman performs these functions during the day, it seems to me we are working bim too hard. I think twelve hours is enough without imposing any more, and there- fore I am opposed to his appointment. Mr. HEISKELL. Mr. President: It is proposed to take the appoint- ment of these subordinate officers from the Cnair, and I wish to protest against this manner of appointing by resolution. There are other gentle- men here as competent to fill this position as Mr. Saultir. Give them all a fair chance to compete. The great argument in his favor that he is familiar with the duties of the place has no great weight; I know other gentlemen equally competent. As to this matter of his being on the pay- roll, I wish to make a statement. It appears that he was on the payroll in eighteen hundred and seventy-seven. When the Legislature convened he laid down his arms and came here and got a position as Night Watch- man. The Legislature adjourned and he again appears on the payroll. His name appears on the payroll for the month of August just past. Thr PRB!sIDENT. The question is on the adoption of uie resolution reported by the Committee on Mileage. Digitized by Google Oct. 10, 1878. OF THE CONSTITUTIONAL CONVENTION. 91 Mb. white. I move as an amendment that one of these Door- keepers be detailed to do that duty. We already have more attaches than are necessary. We have eight Pages when four would do. I am oppoeed to Kjuandering the people's money, earned by the sweat of their brow, in any such way. We should study economy in all we do. We have one Mail-carrier and one Postmaster, when one would do for both. I move that one of the Doorkeepers be detailed to do this work. I move to strike out the name of Saullry and put in one of the Doorkeepers. 1 don't know the names — let the Chair selecU M«. GREGG. I offer a substitute for both, to be referred to the same committee: Smkid, Tlut the Preaident of th« OonventloD appoint A. 0. Wan, of Kern Conoljr, Nigbt Watchnian, at a salary of five dollan a day. Ms. AYERS. I move that the whole matter be laid on the table. The motion prevailed. Mt HILBORN presented the following further report from the Committee on Mileage and Contingent Expenses: Hr. Pmfdent: Tour Committee on Mileage and Contingent Bxpensea, to whom wM referred tiie reeoiutlon offered by Mr. Beerstpoher, providing that liie Journal of this ConTcntloD shall be prinred each day and laid upon the deetcs of the member*, hoa bftd Ihe same under conBideiation, and hereby reiiurt the same baclc and recom- mend that it be not adopted. Th« president. The question is on the adoption of the report of the committee. Ml. HILBORN. Mr. President: In connection with this matter I beg leave to say that I addressed a note to the State Printer to get an ideaof the pro&able cost, and I would like to have his letter read. I would call the attention of the Convention also to the faot that if this is done it will make it neces.sary to have another clerk at the desk, at a Ealarj of eight dollars a day, or eight hundred dollars for the session. The Secretary read the letter as follows : Orricx or Stats SuriaiMTi.vDEKT Piintino,) October 9th, 1878. ; S. G. Hilbom, Chairman of Committee on Mileage and Contingent Expenses— Sir: 1 hire taken five hundred pagee as a basis on which to malce an estimate as to the proUiile cost of printing three hundred and fifty c«)pies of the Journal of th? Conati- tutioflsl GonreDtion, and find the following : Compueition, five hundred and seventy dollsn; prtssworit, seventy-six dollars and eighty cents; paper, seventy-five dollars and ten cents; fuiding and stitching, two hundred and twenty-seven dollars and fifty eeoti— total, nine bnndrtni and forty-nine dollars and fifty cents, or a fraction lees than tTo dollan per page. The resolution does not contemplate the printing and binding of extm copies at the end of the session, i>ut, supposing it to be an oversight, vfaid] the CooTcntion will discuss, I hereby take the liberty of giving you an addi- tionsl Mtiniate, based on five hundred copies, printed and Iwund, one composition of the matter to be used in both regular and extra editions : I'aper, one hundred and fivedollars; presswork.seventy-eix dollars and eighty cents; binding, three hundred and tweotjr-fiTe dollars ; make-up, sixty-four dollars — total, five hundred and seventy dollars and eigbty cento, or total of one thousand five hundred and twenty dollars sad lixty cents for eight hundred and fifty copies of Ihe Journal, of five hundred pagttnch. BeipeQ8iat of nine members, and report that in ils opinion no committee on that sub- ject is necessary. Serond— Yonr committee also had under consideration the resolution presented by Mr. 0*8iil]iTan, of San Francisco, asking that the Committee on Land and Home- stead Exemption be Increased from nine to fifteen members, and recommend that tiiat committee be iucreaaod from nine to eleven members. Thinl— Tonr committee have also had under consideration the resolution oflfered by Mr DowUng, of San Francisco, requesting the formation of a new Committee on irrigation and ^n^royIng, and respectfully report the same back to the Convention, and recommend that it be not adopted, "rhere is already a Committee on Water and Water lUghts, and one on Agriculture. The further multiplicity of committees on BiJBliar snl^ecta is deemed by your committee inadvisable. Fonrth— Tour committee has also considered the resolution introdnced by Mr. wyatt demanding that there Informed a standing committee on State Affairs, whose duty ihonld be to report the names of all persons employed under tiie present State orisanlalion, the dutfee required of each, and the time spent by eacli in the perform- ance of such duties, with compensation. We respectfnily submit timt such a com- mittee ia whoilr nnneceeeary ; that the present Constitution and the Political Code will show what State officers and employes are authorized by law, and- the Control- nft books will show who are under jay of the State, and the amount each receives. If the investigation asked for is necessary, the cummittees ainwiy appointed have amplsieope for the performance of that dnty. In conclusion, on this subject, your oonmlttee cannot too highly deprecate the making of useless or unnecessary com- mittees. The maltiplicity of committeea, and the increase of the meml>eis of the some, instead of facilitating busiaess, will, in the opinion of your committee, greatly atbarrase the bnainesB of the Convention by dividing up the duties and responsi- l^itJes of committee work into such small parts that no marked result will be teKied. FWb— Tonr committee has also considered the resolution Introduced by Mr. Cowden, relative to the appointment of officers and attaches, which was to lie known sa nils leventy-flre, and report the following, to be known as rule seventy five, and "JjetWIy aak Its adoption : ^laiile 75— Appointment of attachfis. All officers and attaches except clerks of Gmmlttsesand Phonographic Be|)ortera, not yet elected or apiwinted, which shall t>y the GoQvention be deemed necessary, shall be appointed by the President of the Cooveation.'' M. M. ESTEE, Chairman. Tm president. The question is on the adoption of the report. Ml. FILCHER. What has become of the resolution offered by me, •Bd Wfenred to that committee? What disposition was made of it ? M». B8TEE. The committee has not yet disposed of it. «» report of tho committee was adopted. Hk, EIIiBORK. I rise to make a motion in relation to the printing of tte icptnt of the Committee on Mileage and Contingent Expenses. 1 ■■wveUuit it b« sent at once to the printing office. Thk president. There being no objection, it is so ordered. Me. BEERSTECHER. I rise for information. Rule seventy-five, on printing, says there shall be four hundred and eighty copies of each proposition and resolution relating to the Constitution, printed and laid on the desks. I will ask if the resolutions and propositions introduced yesterdav are printed, and if so why they are not laid on the desks? This PRESIDENT. The Chair is informed that the Secretary was unable to get them out in time. MOTIONS AND RK8OLUTI0NS. Mr. BEERSTECHER. Mr. President: I have a resolution which I wish to offer: Resotvfd, That the Secretary of State is hereby raqneated to have such rooms in the Capitol building as may be used for meetings of oommlttees, membeis, etc., lighted on the nights said meetings are held, and that Patrick Levey, the Porter wlio has charge of the gas department here, is hereby allowed two dollars for the per formance of such extra service, to be paid out of Uie appropriation for the expenses of the l>>nvention. Mb. BEERSTECHER. Mr. President: I understand that unless a resolution of this character is adopted, there is no authority anywhere for lighting the committee rooms, or such rooms as may be occupied in this building, other than those usually occupied when there is no ses- !e elected by the qualified electors of their respective districts, at the general election to be held in the year eighteen , and every four years thereafter, ivhose duty it shall be to equalize the valuation of the taxable property in the State for the purposes of State taxation. The Boards of Supervisors of the several counties in the State shall constitute Boards of Equalization for their respective counties, whose duty it shall be to equalize the val- oatiou of the taxable property in the county for the purposes of county taxation. The Legislature shall provide, by law, for carrying into effect the provisions of this section. Referred to the Committee on Revenue and Taxation. IN BirKKENCK TO THB LAW DKPAETUKNT. Mb. BELCHER introduced the following proposed amendment to tbe Constitution : Raolvei, That the following proposition be embodied in the Consti- tatiou, and referred to Committee on Judicial Department : Sec. I. A law department is established. It consists of a Senior and Junior Commissioner, who shall hold their offices, the Senior until he is seventy years of age, the Junior until he succeeds the Senior by right of auoccssion, which is hereby secured in case of vacancy iu the office of the Senior. To be eligible for the first appointment under this Cbnsti- tation, the Senior Commissioner must not M less than fifty years of age, and must have served not less than six years as Judge of the District or Supreme Court of the State, or of both. The Junior Commissioner, to be elij^ble, must in all cases be a counselor at law of at least four years' atandiug since his admission to the bar of the Supreme Court of the State, and most not be over forty years of age. Their salaries must be gaid in like time, manner, and amounts as the Associate Justices of the ajprcme Court. Sbc. 2. The Commissioners must be appointed without reference to their political opinions. They must be nominated by a majority of the Judges of the Supreme Court, appointed by the Governor, and confirmed by the Senate. The Judges of the Supreme Court may retire a Com- missioner on half-pay for life, when satisfied that he is mentally or physically too infirm to discharge the duties of his office, and that the infirmity is apparently incurable. When a Commissioner serves till the age of seventy he shall draw half-pay the remainder of his life. A CoRuniaeioner cannot resign unless nis resignation is accepted by the pow^ers which nominated, appointed, and confirmed him. Sbc. 3. The Supreme Court must remove a Commissioner when, upon pet ition and hearing, it finds either one or more of the following facts : 1. Participation in the practice of law since bis appointment, or accepting or agreeing to accept a fee or reward for professional service or advice. 2. Habitual intemperance. 3. Commission of a felony. 4. Gross neglect of official duty. 5. Incompetency ; to be determined upon the inspectioh of the official works as they appiear in writing or print. Sec 4. The Commissioners must, subject to adoption by the Legisla- ture: 1. Perfect bj^mendment the Code system of the State; 2. Reduce to Code form of expression all uncodified statutes that are reasonably capable of being incorporated into the Codes, and insert their contents in places where they logically belong; 3. Insert, in proper places, at their discretion, such rules of the com- mon law as have feen omitted from the Codes; 4. Distribute provisions to and intheirpropertitle,when found clearly out of their place ; 6. Make but one expression of a rule in the four Codes except by way of reference; 6. Revise the expression in sections containing unreasonable redun- dancy, giving them the most condensed form consistent with clearness and certainty; 7. Subdivide sections of unreasonable length into two or more, in such manjier as will secure single or separate expression of each particular (abject, as far as reasonably practicable ; 8. Insert all additional sections where they logically belong, by 'niuaaerical or alphabetical designation, as 100, 100a, 100b, etc.; or, 100-1, ' 100-3; 100-3, etc; 9. Remove all doubts or conflicts, supply defects, and give uniformity in style, expression, and in the form and length of sections, so far as mav be reasonably practicable. rfsc. 5. The Commissioners must: 1. Annotate the work as they proceed and make references by the correlative use of numerals, indicating the particular point, word, or clause to which the citation specially refers, and add such brief assign- ment of reasons for particular expression as their judgment may dictate; 2. Prepare for puolication, within four years from the adopti'on of the Constitution, an annotated edition of the Codes, and continue the pro- cess of annotation and amendment, and prepare subsequent revised editions, to be published from time to time, at least once in every ten years. The Legislature must provide for their publication, but the Com- missioners must supervise it. They must prepare the form of bills or Acts when requestcHJ by resolution of either house, particularly specify- ing the objects to be attained. Sitc. 8. The Commissioners shall report their labors to each succeed- ing Legislature, and shall act advisory of the two houses touching the amendment of the Codes and the preparation of the form of expression of all laws to bypassed, and shall, during the recess of the Legislature, examine all bills referred to them for consideration by either House, and report thereon ton the duties of his office, shall take and subscribe the following oath or affirmation : " I do solemnly swear, or affirm, that I will support the Constitution of the United Slates and of the State of California, and faithfully perform the duties of my office; and that I will not knowingly receive, directly or indirectly, any money or other valuable thing for the performance or non-performance of any act or duty pertaining to my office, other than the compensation allowed by law." The oath shall be administered iu the halls of their respective houses to the members thereof, by some Judge of the Supreme Court, or the District Court, or the County Court of Sacramento County, or, after the organization, by the presiding officer of either house, and shall be filed in the office of the Secretary of State. Any member of either bouse refusing to take said oath, or affirmation, shall be deemed to have thereby vacated his office, and any member convicted of having violated his oath, or affirmation, shall be deemol guilty of perjury, and be for- ever thereafter disqualified from holding any office of trust or profit in this State. Sec. 2. The members of the Senate and Assembly shall severally receive from the public treasury such compensation as may, from time to time, be provided by law, not to exceed five dollars per day for the first days of each session, and after that not to exceed one dollar per day for the remainder of the session. In addition to per diem, the members shall be entitled to receive traveling expenses or mileage for any regular and extra session, not greater than now provided bylaw; but no member shall be entitled to traveling expenses or mileage ler any extra session that may be called within one day after an adjournment of a regular session. Each member may receive, at each regular session, an additional sum of twenty-five dollars, which shall be in full for all stationery used in his official capacity, and all postage and other inci- dental expenses and perquisites. Sko. 3. No bill shall become a law unless on its final passage the vote be taken by the yeas and nays, the names of the members voting for and against the same be entered ou the Journal, and a majority of the members elected to each house be recorded thereon as voting in its favor. Skc. 4. No amendment to bills by one house shall be concurred in by the other, except by a vote of a majority of the members elected thereto, taken by yeas and nays, and the names of those voting for and against recorded upon the Journal thereof; and reports of Committees of Conference shall be adopted in either house only by the vote of a majority of the members elected thereto, taken by the yeas and nays, and the names of those voting recorded upon the' Journal. Referred to the Committee on Legislative Deportmest- Digitized by oogle 94 DEBATES AND PROCEEDINGS Thursday, Mr. murphy. I moTe-that all propositions be read bjr title, and not in accordance with rule fifty-one, ana referred to a committee. Thk president. It is so ordered. Mr. BLAOKMER. I send up two propositions. Mr. cross. It seems to me, Mr. President, that it is not right, sim- ply having the title read, and then lay the bill aside. For instanra, one man introduces a proposition on the Chinese question, and it is read ; it may be the same proposition that several other members have in con- templation, and they can save themselves the trouble when they see that it has been introduced. There may be a number of plans intro- duced. There is one introduced by Judge Hale, and one by Mr. Filcher, and there is no use in having any more introduced. I say that the propositions ought to be read. Mb. HAGER. This rule, fifty-two, requires it to be read, and to dis- pense with it the Convention will have to dispense with the rule. Any member may move that a proposition be not read, and any mem- ber may demand the reading of a pro|K>sition. Mr. BLACKMER. 1 call the attention of the Secretary to the fact that I sent up two propositions which have not been read. The president. The Chair will rule now that they must be read, under the rule, unless the Convention suspends the rule and dispenses with the reading. RKLATINO TO RDl-CATION. Mr. BLACKMER introduced the following proposed section, to be incurpor,iled into article nine of the present Constitution, relating to education : Skction — . There shall be a State Board of Education, consisting of two members from each Congressional District, who shall be nominated by the Governor and confirmed by the Senate, for the term of four years. The State Superintendent shall be ex officio a member of said Board. Referred to the Committee on Etiucation. BELATIKO TO SCFFRAOK. Mr. BLACKMER introduced the following proposed amendment to the Constitution: Amend section one, article two, so as to rend aS' follows: All persons bom or naturalized in the United States, and subject to the j urisdiction thereof (except such as are now or may hereafter be debarred by treaty from attaining to the rights of citizenship, and Indians who continue (o mainttiiu their tribal relations), of the age of twenty-one years, who shall have been a resident of the State one year, and of an election district six months next preceding an election, shall be entitled to vote at all elections which are now or may hereafter be authorized by law. Referred to the Committee on Right of SuSrage. Mb. NOEL. I move that the rules be suspended and that the resolu- tions and propositions be read by title and referred to the proper com- mittees. Ms. BEER8TECHER. I rise to a point of order. I call the atten- tion of the house to section sixty, which says, on suspension or change of the rules, that no standing rule or order shall be rescinded without a vote of two thirds and one day's notice being given, but a rule or order may be temporarily sus|>ended by a vote of two thirds, except rules fifty-one, fifty-two, fifty-three, and fifty-five, which includes this rule among those excepted. Thk PRESIDENT. The point of order is well taken, and the motion is out of order. PBOTKCTION OP RIGHTS. Mb. BROWN introduced the following projiosed amendment to the Constitution : No clause in this Constitution shall be so construed as to invalidate rights to property that have been acquired under the laws of this State prior to llie adoption of this Constitution. Referred to the Committee on Preamble and Bill of Rights. RELATIVE TO A BOABD OF RAILROAD C0IIMI8RI0NER.S. Mr. CAMPBELL introduced the following proposed amendment to the Constitution, entitled a proposition to establish a Board of Railroad Commissioners : Saotved, That the following provision be incorporated in the Consti- tution : Article — . Section — . The Governor shall appoint three Railroad Commission- ers, who shall hold their offices during the pleasure of the Governor. Said Commissioners shall have power, and it shall be- their duty, to examine the books, papers, and documents of all railroad corporations, other than street railroad corporations, oroanized under the laws of this State, or any portion of whose road shall be within the limits of this State; to investigate their affairs, ascertain their receipts and disburse- ments, and, by vote of a majority, to establish reasonable rates of fares and freights upon any of such roads whenever and as often as they shall deem nece-isary, and alter the same when in their judgment it sliall be proper. Said Commissioners, and each of them, shall have access to all the books, papers, and documents of all such corporations, and any oRioer of any such corporation having the care, custody, or control of such books, papers, or documents, who shall, at any reasonable time, refuse to any Commissioner access thereto, shall be <}ceraed guilty of a misde- meanor, and fined not more than five thousand dollars, or imprisoned in the County Jail not exceeding one year.. Said Commissioners, and each of them, shall have power, in the discharge of their duties, to administer oaths, issue subpoenas for and examine witnesses upon oath; and any witness who shall perjure himself before said Commissioners, or either of them, shall be liable t« all the pains and penalties affixed by law to the crime of perjury ; and any witness who shall fail to attend, or shall refuse to testify in any material matter, shall be punished for contempt by the District Court, as in other cases of contempt. Such Commissioners shall, annually, and whenever requested by him, report to the Governor such information as may be proper. Any such corpo- ration refusing to conform to such rates as shall be established by said Commissioners, shall be deemed guilty of a misdemeanor, and shall be punished by a fine not exceeding twenty thousand dollars: and every officer, servant, or employ^ thereof who shall willfully refuse to conform to such rates, and shall demand or receive rates in excess thereof, shall be guilty of a misdemeanor, and be fined not exceeding five thousand dollars, or by imprisonment in the County Jail not exceeding one year. These provisions shall be deemed self-executing, but the Legislature may enforce them by additional legislation. Nothing herein contained shall be construed to prohibit the Legislature from altering, by law, the rates of frei^hta and fares fixed by said Commissioners. The salary of said Commissioners shall be fixed by law. Referred to Committee on Corporations other than Municipal. IN RKLATtON TO EXCESSIVE BAIL. Mr. CAPLES introduced the following proposed amendment to the Constitution, as a substitute for section six, article one: Excessive bail shall not be required nor excessive fines imposed, nor shall witnes-ses be unreasonably detained. Referred to the Committee on Preamble and Bill of Rights. Mb. CAPLES also offered a proposition instructing the Committee on Judiciary and Judicial Deimrtment to report an article in relation to jury trials. Mb. BARBOUR (pending the reading). I raise the point of order that the proposition does not comply with the rule adopted this morning. Mb. CAPLES. I ask unanimous' consent of the Convention to have it read and referred. Objection being made, the document was returned to the author. RELATIVE TO LABOB AND CAPITAL. Mb. CONDON introduced the following proposed amendment to the Constitution, relative to labor and capital : Se it rego/txd. That labor in prisons and other iustitntions under the control of the State, or of any county, city, town, village, or municipal- ity within the State, shall not be let out by contract, nor shall the inmates of State Prisons be employed in any manufacture in such a manner as to w>m|iete or come in conflict with private manufacture within the State. But they shall be employed in tabor on land or buildings, or in making any or all articles to be us^l in the prison in which tney may be respectively confined. Referred to the Committee on Labor and Capital. A JUDICIABT 8TSTE1I. Mr. CROSS introduced the following proposed amendment to the Constitution, in relation to a new judiciary system : Article — . Skctiok 1. The judicial power of this State shall be vested in one Supreme Court, County Courts, Justices of the Peace, and such Police and other inferior Con'rts for cities and towns as may be created by the Legislature, with such inferior jurisdiction as the IJegislature may con- fer upon them. Sec. 2. The Supreme Court shall have appellate jurisdiction of all cases on appeal, of which the County Courts nave original jurisdiction. Sec. 3. The County Courts shall have original jurisdiction in all cases arising in law, equity, and probate, and in all special cases, excepting where money or personal property only is in dispute, and the amount or value thereof is less than five hundred dollars; and except, also, in such cases of misdemeanor as the Legislature may direct to De tried and determined before Justices of the Peace, or the inferior Ourts of cities and towns. Tlje Coiintv Courta shall also have appellate juris- diction of all cases of which Justices of the Peace, and the inferior Courts of cities and towns, have original jurisdiction. Sec. 4. The County Courts shall always be open for the transaction of business, except upon legal holidays. Sko. 5. There shall be one County Court in every county, and the Legislature may provide for as many more, in any county having more than twenty thousand people, as it shall deem necessary. Sec 6. Each townsuip of each county shall have two Justices of the Peace. Their jurisdiction shall extend to all cases where the matter in controversy is money or personal property, and the amount or value thereof does not exceed five hundred dollars. Sec. 7. All judicial officers shall be elected at general elections — Supreme Court Judges, for ten years; County Judges, for six years, and Justices of the Peace and Judges of inferior Couria in cities and towns, for four years. Referred to Committee on Judiciary and Judicial Department. TO PROHIBIT SPECIAL LEQISLATION. Mr. CROUCH introduced the following proposed amyidmeDt to the Constitution, in relation to the declaration of rights: Semlved, That the following be adopted in the institution, under the head of Bill of Rights, as— Sec — . All laws shall be general and have a uniform operation throughout the State. The Legislature shall have no power to pass any local or special laws. Referred to Committee on Preamble and Bill of Rights. SUPrBAOR AND ELECTIONS. Mb. DAVIS introduced the following proposed amendment to the Constitution, in relation to suffrage and elections : Saolved, Every person shall be disqualified from holdtng office, dur- ing the term for which he may have been elected, who shall have given or offered a bribe or rewards to procure his election. Digitized by Google Oct. 10, 1878. OF THE CONSTITUTIONAL CONVENTION. d5 Referred to Committee on Right of Suffrage. KLIOIBIUTT FOB OPflCK. Mb. DAVIS introduced the following proposed amendment to the Conititution entitled "Suffrage and Eleotiona — Eligibility for Office:" Beaaltxd, No person holding a lucrative office or appointment under the Goremment of the United States, or under this State, shall be eligi- ble to the Legislature, nor shall one person hold more than one lucra- tive office at the seme time ; provided, that offices of the militia, to which there is attached no annual salary, and the office of Postmaster, where the compensation does not exceed one hundred dollars per annum, shall not be deemed lucrative. Referred to Committee on Privileges and Elections. aKLATISO TO THK JCDIOIABT. Mr. dean introduced the following proposed amendment to the Constitation, reUting to the Judicial Department : , Setohed, That the following be incorporated in the Constitution : Sicnox — . Each county is a judicial district. District Judges shall be eleded by the qualified electors of their respective districts at the general State election, and hold their respective offices for the term of nx yeare and until their successors are elected and qualified. If a Tacancy occur in the office of District Judge, from causes other than the expiration of a- full term, the Governor shall fill such vacancy by appointment for the remainder of the term, and the appointee shall only hold the office for the remainder of the said terra, and until his (accessor is elected and qualified. Sec. — . Every county containing less than twenty thousand inhab- itants shall elect one District Judge. Counties, or consolidated cities and (ounties, containing more than twenty thousand inhabitants, shall elect u additional Judge for every twenty thousand inhabitants and for such fraction as shall exceed fifteen tliousand. The Legislature, by a two- thirds vote of all the members elected to each house, may increase or decrease the number of District Judges for such districts as have more than one District Judge. Sic. — . Each District Court shall be held by one District Judge; and when two or more Judges are elected for one county, or city and county. Courts shall be held separate, but the judgments and orders of each shall be entered and enfor(>ed as of the distriet of such county, or city and conn^. Beierred to the Committee on Judiciary and Judicial Department. TBR LAKD DKPABTMKilT. Mb.DOWLING introduced the following proposition in relation to land Department : In view of the fact that a great portion of the public lands of Cali- fornia have been and are being appropriated by individuals and corpo- rations, either under the guise or in open violation of the law — it is also a fact, that is but too apparent, that thousands of acres of the fairest lands in the State are held by proxy without the shadow of a title— ^nd as it is an essential necessity for the future well-being of the State that all lands of equal productive value should be equally taxed, it follows that the only means left to carry out our intentions, and correct the abuses of the past, is by ha ving a eeneral re-survey of the State ; there- fore the Committee on Lands should recommend favorably the following article: Abticlb — . The Legislature diall provide for a general re-survey of the State. Referred to the Committee on Land and Homestead Exemptions. BKLATIVK TO MININO. Ma. DOWLIKG introduced the following proposed amendment to the Constitution, relating to mining ; WauiAs, A considerable portion of the most precious grounds in the State are owned and worked by a class of aliens who add nothing to our wealth or industry, and are by nature and the law of our land ineligible to become good and respected citizens of this commonwealth, hence the following article should and ought to be inserted in the new Constitution : Abticlb — . No alien, ineligible to become a citizen of the United States, shall ever be permitted to hold, own, or work any of the placers, or any other pld-bearing grounds, in the State of California. Nor shall any citizen nold in trust, bv proxy or otherwise, any such lands for such aliens. Referred to the Committee on Mining. Mb. BARNES. I desire to offer a resolution in respect to adjourn- ment: Ketehtd, That when the Conrention >4]oama to^tj it sdloums till Monday, the Ofttenth, at an« o'clock r. «. Mb. COND#|f. I move that the resolution be laid on the table. The motion to lie on the table prevailed. The hour having arrived, the Convention took a recess until one o'clock r. u. AFTERNOON SESSION. The Convention reassambled at one o'clock p. m.. President Hoge in the chair. Soil call dispensed with. bklativb to taxation. Ml DUDLEY, of Solano, introduced the following proposed amend- nxDt to the Oohstitutioo, relative to taxation : Baohei, Thai the tbllowing proposition be incorporated in the new ('oB'titation: Abticlb — . Section 1. Taxation shall be equal and uniform throughout the State. All property in this State not exempt under the laws of the Unitod States, except property belonging to the State, county, or other municipal corporations, shall be taxed in proportion to its value, to be ascertained as provided by law. The wora "property," as used in this article and section, is hereby declared to include all moneys, credits, dues, franchises, investments in bonds, stocks,joint stock com panics, and all other matters and things capable of ownership and having value in exchange. Sbc. 2. The Legislature shall have power to provide by law for the assessment and collection of a tax upon incomes derived from bonds, notes (whether secured by mortage or not), or securities of any kind, other than shares or stocks in joint stock companies, corporations, or associations formed for profit, and doing business in this State j provided, that if the income tax provided for in this section shall be levied, then the property from which such incomes are derived shall be exempt from the payment of a direct or ad valorem tax. Sbc. 3. The Legislature shall have power to provide for tho assess- ment and collection of a tax upon the iucoinesof all railroad, navigation, or banking corporations, bank and exchange agencies, and insurance companies, foreign or domestic, or any other corporations (other than municipal) or associations whatever, formed for profit, and doing busi- ness in this State; provided, that if the Legislature shall provide for the assessment of a tax upon incomes as set forlh in this section, all property owned by and necessarily used by such corporation in producing such income shall be exempt from an ad valorem tax. Sbc. 4. If the Legislature shall provide for the payment of a tax upon incomes, as provided in sections two and three of this article, such income tax shall be made to approximate as near as practicable to equality with the direct or ad valorem tax on other classes of property. Sbc. 5. Should the Legislature tieem it inadvisable to levy a tax upon incomes, as provided in sections two and three of this article, then all property shall be taxed according to the true intent and meaning of section one of this article. Sec. S. Growing crops shall not be subject to taxation. Referred to the Q>mmitlee on Revenue and Taxation. watbb akd vateb biohts. Mb. DUNIiAP introduced the following proposed amendment to the Constitution, in reference to water and water rights: Resolved, That there be introduced into the Constitution a clause as follows : Section — . There shall be no further appropriation of the waters of the streams and lakes of this State by individuals or corporations. Referred to the Committee on Water and Water Rights. CONCBBNINQ LICENSE. Me. EAGON introduced the following proposed amendment to the Constitution, concerning license: No license tax shall be assessed against, or collected from, any person for carrying on any business, trade, or profession in this State. Referred to Committee on Revenue and Taxation.- CONCEBMINO THE LEQISLATIVB DEPABTUENT. Mb. EDGERTON introduced the following proposed amendment to the Constitution, concerning the Legislative Department : Seaolved, That the following provision be adopted in that article of the Constitution which relates to the Legislative Department: Section 1. The Legislature shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; provided, hoteever, that the liOgislature may, by general laws, authorize the Courts to carry into effect the manifest intention of parties and officers, by curing omis- sions, defects, and errors in the instruments and proceedings, arising out of their want of conformity with the laws of this Stote, and upon such terms as shall be just and equitable. Referred to the Committee on Legislative Department. IN BELATION TO SPBCIAL LAWS. Mb. EDGERTON introduced the following proposed amendment to the Constitution, concerning the Legislative Department : Resolved, That the following provisions be adopted in that article of the Constitution which relates to the Legislative Department : Section 1. The Legislature shall not pass any special or local law in the following cases: Authorizing tho creation, extension, or impairing of liens; regulating the affairs of counties, cities, townships, wards, or school districts; changing the names of [lersons or places; changing the venue in civil or criminal cases; authorizing the laying out, opening, altering, or mainteining roads, highways, streets, or alleys; relating to ferries or bridges, except for the erection of bridges crossing streams which form boundaries between this and any other State; vacating roads, town plats, streets, or alleys; relating to cemeteries, or public grounds, not of the State; authorizing the adoption or legitimation of children; locating or changing county seats ; incorporating cities, towns, or villages, or changing their charters; for the opening or conducting of elections, or fixing or changing the place of voting; granting divorces; erecting new townships, clbanging township lines or school districts;' creating offices, or prescribing the powers and duties of officers in coun- ties, cities, townships, election or school, districte; changing the law of descent or succession ; regulating the practice or jurisdiction of, or chang- ing the rules of evidence in, any judicial proceeding or inquiry before Courts. Sheriffs, Commissioners, Arbitrators, Referees, or other tribunals, or providing or changing methods for the collection of debts, or the enforcing of^'udgments, or prescribing the effect of judicial sales of real estate; regulating the fees or extending the powers or duties of any county, cify, or township officer; regulating the management of pabhc Digitized u_ Ogle % DEBATES AND PROCEEDINGS Thursday, schools, the building or repairing of school houses, or the raising of money for such purpose ; fixing the rate of interest ; affecting the estate of minors, or persons under disabilitv; remitting fines, penalties, or forfeitures, or refunding moneys legally paid into the State treasury ; exempting property from taxation; regulating labor, trade, mining, or manufacturing; granting to any corporation, association, or individual, any speAal or exclusive privilege or immunity, or to any eorporation. association, or individual, the right to lay down a railroad track; nor shall the Legislature indirectly enact such special or local law by the partial repeal of a general law, but laws repealing local or special laws may be passed ; nor shall any law be pasiied granting powers or privi- leges in any case where the granting of such powers and privileges shall have been provided for by a general law, nor where the Courts have jurisdiction to grant the same, or give the relief asked for. In all the cases above enumerated, and in all other cases where a general law can be made applicable, all laws shall be general and of a uniform operation throughout the State. Keferrea to the Committee on Legislative Department. RELATIVE TO BUrrSAOK. Mr. EVET introduced the following proposed amendment to the Constitution, relating to the right of suffrage: Every citizen of the United States and of this State, who shall have resided within this State one year, and within the county ninety davs, or thirty days within the district, next before any election to be holtfen in compliance with any law of this State, shall have the right and privi- lege to vote, except he may have been convicted of felony bv the laws of this State, and is at the time uncommitted thereof. And should such citizen be deprived of such privilege by any person or persons holding such election, upon any pretense or cause whatever, such citizen shall have the right to sue the State, in any Court thereof having jurisdiction, free of cost; and upairlng of bridges; or establishing, altering, or vacating any street, avenue, or alley of any city and county, city, or town ; or extend- ing the time for the assessment or collection of taxes, or otherwise relieving any Assessor or Collector of taxes from the due performance of his official duties; or giving efi°ect to informal or invalid wills or deeds ; or legalizing, except as against the State, the unauthorized or invalidactsof any officer; or granting to any individual, company, or cor- poration, the right to lay down railroad tracks in the streets of any city and county, city, or town; or establishing fees of public officers; or exempting any propeKy of any named person or corporation from taxa- tion ; but for such cases the Legislature shall provide by general laws; and in all cases where a general law can be made applicable, no special law shall be enacted. Referred to the Committee on Legislative Department. COMPCLSOaT BDDOATIOK. Mb. HARRISON introduced the following proposed amendment to the Constitution, in relation to compulsory education: SicTiON — . It shall be the duty of the Legislature to provide for a system of compulsory education for all children under the age of four- teen, such education to be entirely secular, and for ^iB>purpose it shall Digitized by VjO ^ DEBATES AND PROCEEDINGS Thursday, provide for the creation of a special fund, for the purpose of giving such assistance to indigent children as will enable them to partake of the bene- fits of such system. Beferred to the Committee on Education. aiLATtVI TO PUBLIC SCHOOLS. Ms. HASRISON introduced the following proposed amendment to the Constitution, for incorporation in the article on education : SiCTiOH — . It shall be the duty of the Legislature to provide, by appropriate legislation, for the giving of lectures in the public schools of this State, at least once every week, upon the subject of labor, and its paramount importance in the afiairs of men in every walk of life. Beferred to the Committee on Education. BILATIVI TO TBI BILL OF BIOHTS. Me. HARVEY introduced the following proposition to amend section two, article one, of the Constitution, relative to declaration of rights: Skc. 2. All free govemmenta are created for the benefit of the peo- ple and by their authority, and all laws should be so framed as to promote the welfare of the governed ; therefore, the burdens of the State ought to be, and of right should be, so imposed as to bear uniformly and equally on all its citizens. Referred to the Committee on Preamble and Bill of Rights, BBLATITB TO TBK HtLlTU. Mb. HARVEY introduced the followin^p proposition to amend article seven of the Constitution, in relation to militia. Proposition to amend article seven of the Constitution, in relation to militia, by addition of the following eections : Sec. 4. The militia shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest during their attendance at musters and elections, and ia goine to and returning from the same. Sec. 6. Ko person having oonscientious scruples against bearing arms shall be compelled to do militia duty in time ol^ peace. Sec. 7. The Legislature shall provide by law for the exemption of members of voluntary military companies from jury duty, and from the psirment of poll tax, or bead tax of any description. Referred to the Committee on Military Aflairs. IN BBLATION TO THE MILITIA. Mb. HEISEELL introduced the following proposed amendment to the Constitution in relation to militia: The Legislature shalf not appropriate any money for the organisation or maintenance of the militia of this State. Belerred to the Committee on Military Affiurs. BELATIVE TO THE PABDONINO rOWEE. f Mb. HEROLD introduced the following proposed amendment to the Constitution, relative to pardoning power : Raolved, That the pardoning power be invested in a committee of three. Referred to the Committee on Pardoning Power. BILATITE TO C0BPOBATION8. Mb. HEROLD introduced the following proposed amendment to the Constitution, relative to corporations : Saolved, That all corporations depending on the patronage of the public be restricted from charging exorbitant rates; snd, therefore, Henolved, That under no consideration such corporatiuns be permitted to derive from such investment a gain of no more than nine per cent, per annum on the cash capital so invested. Referred to Coramitt«e on Corporations other than Municipal. LIMITINO THE POWER OP THE LBOISLATCBK. Mb. HERRINGTOK introduced the following proposed amendment to the Constitution : Mr. President : I offer the following, limiting the powers of the Legislature under the new Constitution, and suggest that it be made a section of an article therein, to be known as Legislative Department: Section — . The Legislature shall have no power : 1 . To make any appropriation for a longer period than four years ; 2. To create an^ forfeiture which shall be determinable by any process inferior to a judicial inquiry and determination by a Court of competent jurisdiction, in which the existence of the dereliction of person or.prop- erty, the condition upon the occurrence of which the forfeiture attaches, shall be judicially declared; S. To grant or authorize the payment of any private claim for loss or hardship suffered in the fulfillment or discharge of any contract, public o£Bce, or duty ; or for the relief of the principal or sureties upon any bond or obligation for the fulfillment of any contract with the State, or any municipUity or ]>olitical subdivision thereof, or for the faithful dis- charge of any obligation or official duty arising under any law of the State; 4. To ymsa xdj special law whatever. But this section shall not be construed to prohibit the enactment of local laws of a general nature. Referred to the Committee on Legislative Department. rights of aliens. Mr. HERRINOTOK introduced the following proposed amendment to the Constitution. Mr. President: I offer the following, defining the rights of aliens under the new Constitution, and sunest that it be made a section of an article therein, to be known as Bill ot Rights : Section — . Aliens who, by the laws of the United States, can be- «ome citizens thereof, and who are or may hereafter become bona fide residents of this State, shall have the same rights in respect to possess- m^, enjoying, and inheriting property as native-born citizens; but aliens who, by the laws of the United States, are prevented beoom- ing citizens thereof, shall not take by purchase, gift, devise, or inheri- tance any estate or interest in real property; and all property, real and personal, owned by such alien at the time of his deatn shall, at the death of such alien, escheat to and vest in the State of California, and shall be disposed of and the proceeds applied to the support of common schools, unaer such regulations as the Legislature shall prescribe. Bat this section shall not apply to property acquired by such alien prior to the adoption of this Constitution, if owned by him at the time of his death. Referred to the Committee on Preamble and Bill of Rights. disposition op the pdblic funds. Mr. HEUSTIS introduced the following proposed amendment to the Constitution, concerning the appropriation of the public funds: Raolved, That the following be incorporated in the Constitution : Article — . Section — Ko appropriation of the public funds shall ever be made except for the actual expenses of the government and the support of in- stitutions controlled by the State; and no appropriation shall ever be made for the maintenance, support, or benefit of any corporation, pri- vate enterprise, or sectarian institution. Referred to the Committee on Legislative Department RELATIVE TO TAXATION. Mr. HUGHEY introduced the following proposed amendment to the Constitution, relative to taxation : > Article — . Section — . All lands of this State shall be graded in quality, as to tillage, or grazing, or desert, which gradation shall be done by a proper Board of Appraisers in each county. The Legislature shall iwss sll suitable Acts in relation to the said Board. Article — . Section — . All lands of the same grade shall be taxed at the ssme valuation, whether improved or not improved. Improvements on land shall be taxed separately from the land. Article — . Section — . Church property, to the value of five thousand (&,000) dollars, shall be exempt from taxation. Referred to Committee on Revenue and Taxation. EXTBA compensation. Mr. JOHNSOlf introduced the following proposed amendment to the Constitution, in relation to extra compensation to public officers. A firoposition to amend article fourth of the Constitution, by adding the bllowing: * Ko extra compensation shall be made to any officer, public agent, employe, or contractor, after the services shall have been rendered on the contract entered into, nor shall any money be paid out of any fund whatever by way of additional compensation to any of said persons, nor shall any money bo appropriated or paid on any claim, the subject-mat- ter of which shall not have been provided for by preexisting law. Referred to the Committee on Legislative Depiartment EIOHT-HOUB law. Mb> JOYCE introduced the following proposed amendment to the Constitution, in reference to an eight-hour law : Be it remlved, That the Committee on Capital and Labor are hereby recommended to embody in their report the following provision : That all State, county, munici)ial, town, and corporation, other Qma municipal corporation, work be done by the day, and that eight boars' labor be a day's work. Referred to the Committee on Ijabor and Capital. THE NUMBER OP SENATORS. Mr. JOYCE introduced the following proposed amendment to the Constitution, regulating the number of Senators : Be U resolved, That the Committee on Legislation are hereby recom- mended to report the following amendment to article four, section six, of the present Constitution : The number of Senators shall not be less than forty nor more than fifty, and that the same shall be divided into two classes. The seats of the first class shal! be vacated at the expiration of the second year; the seats of the second class to be vacated at the expiration of the fourth year, so that one half shall be chosen biennially ; the same to commence from the first election after the adoption of this Constitution. Referred to the Committee on Legislative Department. BELATINO TO CHINESE. Mr. KENNY introduced the following proposed amendment to the Constitution : lUxolved, No alien, ineligible to become a citizen of the United States, shall ever be permitted to catch fish, either by hook, net, or seine, in the waters of (Mifomia, or any place under its jurisdiction. Referred to the Committee on Chinese. CHINE.SE IMMIGRATION. Mb. RLEINE introduced the following proposed amendment-to the Constitution : - j Setolved, That a per capita tax of two hundred and'fiity dollaia shall be levied upon each coolie immigrant arriving in California. Referred to the Committee on Chinese. Digitized by Google Oct. 10, 1878. OF THE CONSTITUTIONAL CONVENTION. 99 ON SUSriNOIKO TBI BDLia. Uc TEBRY. Mr. I^resident : I move that the rules be suspended, in order to allow the gentleman from Santa Clara, Mr. Ijaine, to introduce the whole draft of a Constitution prepared by him. A great many bstches of resolutions have been introauced here, and a great deal of labor has been performed here. This Constitution is the work of a man who has hsd a great deal of legislative experience, of a man of a great deal of ability, and he has devoted months of labor to this work, and I adc that the rules be suspended and that he be allowed to introduce it as a whole. Thi president. Rule fifty-two governs this matter: "Proposi- tions and resolutions mentioned in the last foregoing rule shall embrace but one subject." Rule sixty prohibits the suspension of rule fifly-two. Ms. TERRT. The motion is to suspend the rule, and the rule that prohibits it. Ms. McCALLCM. We mar be able to suspend rule sixty, which Bys that rule fifty-two cannot be suspended, because rule sixty does not pTDTide that rule sixty itself shall not be suspended. Thi president. The Convention can suspend rule sixty, but rule fifty-two will remain in force. Mb. CAMPBELL. Why not suspend that in that way? Tai PRESIDENT. The motion is to suspend rule sixty. Ma. CAMPBELL. Mr. President : I hope this rule will be suspended. I have examined the draft of the Constitution which, the gentleman from Santa Clara, Mr. Laine, has prepared, and I am satisfied that it contains a great number of valuable sumestions which will be of great OK to the committees. It is a work ot great labor, as stated by the gentleman from Ban Joaquin, Mr. Terry, and it is good service to the public if we suspend the rules and allow it to be intKMuced. Ub. BARBOUR. Mr. President: It seems to me the proposition of the gentleman obviates the necessity of having any rules at all. We are frying to beat the devil round the stump. Here is a rule Vhich pro- hibits the temporary suspension of the niles, and it is now proposed to so^nd the rule which prohibits suspension. It seems to me, Mr. Pres- ident, we might as well wipe out the rules at once, because if this pre- cedent is established to accommodate this case, we can at any time the ooosion arises wipe out the rules by two motions — one for the rule which forbids suspension, and the second for the rule which stands in the way. I can see no nse of rules at all if this can be done. Mb. McCALLUM. I don't suppose the committee intended to do what the gentleman says they have done. There should be no such oonstruction placed upon it. Ml. BEERSTECHER. Mr. President : It seems to me that the rul- ing of the Chair, in this instance, was correct. We have here rule sixty, which says that certain rules cannot be suspended. The rule which we propose to suspend is one that can only be suspended, under the rules, oy a two-thinis vote and one day's notice. Now, if you can get around that rule by suspending rule sixty, why, rule sixty means just nothing tt all. It means nothing at all. And if that rule is to have any force and effect here at all, it must not be suspended on every occasion that it is found lo stand in the way of the aocomplishroent of some particular thing. I think the decision of the Chair, m this instance, was entirely osrrect, otherwise, the rule is a dead letter and means nothing at all. Mb. BARNES. Mr. President : I do not see any reason why the rule ihould be suspended in favor of Santa Clara. All the gentleman requires lo get the instrument properly before the Convention, is to take the instru- ment to pieces, and introduce each article separately, and have them referred to the proper committees. There are other gentlemen here who hsT* had to do this in order to get their Constitutions before the com- mittees. I .think Mr. Beeratecher is right In no instanoe do I think the roles should be suspended for the purpose of allowing one gentle- man to introduce in solido a Constitution for the State of California. If it can be done in any other way in conformity with the rules we will help him. MB. FILCHER. Mr. President : With all deference to the gentleman from Santa Clara, Mr. Laine, notwithstanding I would like very much to be placed in possession of a copy of his Constitution, I hope that the motion to suspend the rules will not prevail. As I understand from declarations made here there are some twenty drafts of Constitutions held by various members of this body. It seems to me, Mr. President, that we (annot aSbrd to do it. If we suspend the rules and receive the Conititation drafted by Mr. Laine in its entirety, under our rules we oust print it as a whole, and we will establish a precedent that will compel us to print the twenty Constitutions. I desire that members shoiud see the bearing of this thing before they vote. I would like, for °>J P*rt, to have the benefit of the knowledge and experience of the gentleman from Santa Clara, Mr. Laine, but I think he can i^ord to come under the same rule that the rest of us have to. Ml. BEERSTECHER. I raise the point of order: can rule sixty be suspended T TBI PRESIDENT. It may be suspended by the Convention. Mb. ESTEE. Mr. President: I hope this rule will not be suspended, wcaaseif we adopt the precedent of suspending rules which stand in the way, upon every occasion of seeming necessity, where will we land. n>eie will be absolutely no protection for the Convention, if we lay down the precedent that rules are only made to be broken. This rule reads that no standing rule shall be suspendml except by a two-thirds vote and <"W day's notice being given. If that language means anything, it means that the only possible way to suspend this rule is to give one day's notice ™ then rescind or change it by a two-thirds vote. I hope this Conven- Bon will not stultify itself by permitting the suspension of that rule. . Ub. W1CKE3. Mr. President : I trust this rule will not be suspended IB Older to pro the ^ntleman from Santa Clara a chance to get in •■•ponstitatioii. '. think he can get it through another channel. Mb. RKYHOLDS. I move to suspend the further consideration of tnordar. Tbc PRESIDENT. The question is upon suspending rule sixty. The motion was lost. Mb. REYNOLDS. Now, Mr. President, I move to suspend the fur- ther consideration of order number seven, and proceed with the next order of business. The reason I make this motion is that the table of the Secretary is loaded with matter which it will require three or four dayi to print, and we might as well suspend the further consideration for the present at least. Mb. WHITE. I move that the resolution be sent to the table, because if it was adopted it would be an act of injustice to those whose propositions have not been reached, and they would be cut off from getting their propositions before the Convention. Tbb PRESIDENT. The question is on laying the motion on the table. The motion prevailed. The Sacretaiy proceeded to call over the list of members. COMPVLSOBT . (DnCATIOIC. Mr. LAVIGNE introduced the following proposed amendment to the Constitution, in reference to compulsory education : Seaolved, That a system of compulsory education for children under the age of fourteeA years should be adopted, and all books used in the public schools, academies, colleges, and universities of this State shall be furnished free of charge to the pupils of said schools, academies, colleges, and universities under the control of this State. Referred to the Committee on Education. TBI VITO POWBB. Mb. lewis introduced the following proposed amendment to the Constitution, in reference to the "veto power of Governor." Proposition to amend section seventeen, article four, by adding the subjoined : The Governor shall have power to disapprove of any section in a biU passed by the Legislature, or any part of said bill, and the part or parts of the bill approved shall be the law, and the pait or parts disap- firoved shall be void unless repassed according to the foregoing rules and imitations prescribed by said section. Referred to the Committee on the Executive Department. LAKO UONOrOLT. . Me. LINDOW introduced a proposition in relation to -vested rights and the prohibition of land monopoly. Mb. van dyke (pending the retiding). I raise the point of order, that the proposition is not in the form required by the rules. Tax PRESIDENT. The point of order is well taken, and the docu- ment will be returned to the author. Mb. REYNOLDS. I move that we do now postpone the further consideration of order number seven, and if gentlemen will only con- sider Mb. BEERSTECHER. I rise to a point of order. The gentleman, Mr. Reynolds, made a motion a few moments ago to the same effect, which motion was voted down, and now he renews it again. I think he is out of order. Thi PRESIDENT. Other business has intervened since the motion was made, and the motion is in order. Mb. REYNOLDS. Mr. President: If gentlemen will only consider this subject, they will be ready to vote for the postponement of the further consideration Tbb PRESIDENT. Debate is out of order. These resolutions and propositions are to be received without debate, and referred. The motion is in order, but debate is out of order. The question is on the motion to postpone the consideration of this order of business. The motion was lost. BXLATIVB TO OIVOBCES. Mb. MANSFIELD introduced the following proposition to amend section twenty-six, article four, of the present Constitution, in relation to divorce : Saolved, That section twenty-six, of article four, of the present Con- stitution, be so amended as to read as follows : No divorce shall be granted by the Legislature of this State, nor by the Courts thereof, except for adultery. Referred to the Committee on Legislative Department. LEAVB OP ABSIMCI OBANTBD. Mb. SHAFTER. Mr. President : I am obliged to ask a favor of this Convention, and that is an indefinite leave of absence. I have two entire Constitutions drawn [laughter], and if I can be allowed this time I can look over them and see what to leave out. As I am trving to get up some homesteads for poor men, I know the members will look favor- ablv on my request. I have not been able to bear a word that has gone on liere to-day. Four or five days will have to elapse before this matter can be printed, and I ask this Convention to allow me to go away. There being objections raised, the question was put to a vote of the Convention, and on a standing vote, leave of absence was granted, ayes 103, a clear majority. Mb. ESTEE. Mr. President: I would like to have two days leave of absence. It is absolutely necessary for me to got away. I understand that there can be no printed matter presented to the Convention to amount to anything before Sunday or Monday, and I can be back here Sunday morning. Mb. HAGER. Mr. President: I want to move an amendment, and ask leave of absence, or rather I will move that all the balance of the members have leave of absence until Monday nest at one o'clock. I am willing that every one shall have the same privileges that I ask for myself. We have more business now than the printer can get through ^ hj-, t^ 100 DEBATES AND PROCEEDINGS Thursday, with, and we make nothing b^ staying here, and we had better adjourn over. I move to adjourn until Monday next at one o'clock p. m. Mb. white. I move to lay the motion on the table. The ayea and noea were denuinded by Measrs. White, Stedman, and Beerstecher. The roll was called, and the motion prevailed by the following vote : ATES. Andrews, Ayers, Barbour, Barry, Barton, Beerstecher, BeU, Biggs, BUckmer, Brown, Caples, Chapman, Charles, Condon, Cowden, Davis, Doyle, Dudley, of San Jeaquin, Estey, Evey, Farrell, Fawcett, Finney, Freeman, Frend, Barnes, Belcher, Berry, Boggs, Boucher, Burt, Campbell, Crouch, Dudley, of Solano, Donlap, Eagon, Edgerton, Eetee, Glascock, Graves, Gregg, Hager, Hale, Hall, Harvey, Garvey, Gorman, Grace, Harrison, Herrington, Hilbom, Howard, Hughey, Hunter, Joyce, Kenny, Kleine, Laine, Larkin, Larue, Lavigne, Lindow, Martin, of Santa Crux, McComas, McConneU, Moflat, Horeland, Kelson, Keunaber, O'SuUivan, Porter, Reddy, Reed, Rhodes, Ringgold, Shoemaker, Shurtleff, Smith, of San Francisco, Soule, ■Stevenson, Sweasey, Swenson, Swing, Towiisend, Tully, Tuttle, Vacquerel, Waters, Webster, West, Wickes, White, Wyatt^73. Heiskell, Reynolds, Herald, Rolfe, Hitchcock, Schell, Inman, Schomp, Johnson, Smith, of Santa Clara, Kelley, Smith, of 4th District, Keyea, Stedman, Lampson, Steele, Lewis, Strong, Mansfield, Stuart, McCallum, Terry, McNutt, Thompson, Miller, Turner, Mills, Van Dyke, Morse, Van Voorhies, Kason, Weller, Noel, Wellin, Ohleyer, Wilson, of Tehama, Overton, Winans, Pulliam, Mr. President — 00. of absence be granted to Mr. Estee. Mb. swing. I move that leave The motion prevailed. The Secretary proceeded with the call of the roll. LAWS TO BI PDBLISHBD IK IM0LI8B. Mb. MARTIN, of Santa Cruz, introduced the following proposed amendment to section twenty-one, of article eleven, of present Consti- tution : All laws, decrees, regulations, which from their nature require publi- cation, shall be published in the Enj^lish language only. Referred to the Committee on Legislative Department. STATK AND HCNICIPAL IKDIBTIDHCSS. Mb. MILLER introduced the following amendment to the Constitu- tion, relative to State and municipal indebtedness. Section proposed for adoption in the Constitution : SiCTiON — . The State shall not have power to borrow money except for purposes of defense aeainst invasion, or for the suppression of insurrection or rebellion. No county, city, town, or other municipal corporation shall have power to borrow money for any purpose, except for supplying cities or towns uf more than five thousand inhabitants with water, and no indebtedness for that purpose shall be incurred until authorized by a vote of a majority of the legal voters of the city or town to be affected thereby ; but nothing herein shall be so construed as to proltibit the Xjcgislature from authorizing the State, or any county, city, or town to pay its existing bouded indebtedness by the substitu- tion or exchange of bonds bearing a lower rate of interest than is now paid upon the existing indebtedness. Referred to Committee on State and Municipal Indebtedness. BKLATIVI TO THE MILITIA. Mb. MILLS introduced the following proposed amendment to article seven, section one, of the Constitution of the State of California: Add to said section first the following words, " or the Constitution of the State of California." Also, add to said article seven an additional section, to be known as section four, and to read as follows : Sec. 4. There shall not be any independent military company, or other armed body of persons, other than troops of the United States, but such as are expressly authorized by some law of this State ; and all military companies, or other armed bodies, other than the troops or military of the United States, at any time organized or existing in this State, shall be subject to the control of the Governor, as provided by section three of this article, and it is hereb^r made the duty of the Legislature to fix by law the duties and liabilities of such companies and armed bodies of persons. Referred to the Committee on Military Aflairs. LIMITIRO THE AMOUNT OP STATE TAX. Mb. MOREL and introduced the following proposed amendment to the Constitution, to limit amount of State tax. Abticlk — . Section — . The State tax on taxable property, exclusive of the tax necessary to pay the bonded debt of the State, shall not exceed forty cents on the one hundred dollars valuation ; and whenever the taxable property of the State shall amount to seven hundred million dollars the rate shall not exceed thirty cents. Referred to the Committee on Revenue and Taxation. IN SKOABD to BANKS. Mb. MORELAND introduced the following proposed amendment to the Constitution, in regard to banking institutions. Abticlk — . Skction — . It shall be a crime, the nature and punishment of whidi shall be prescribed by law, for &ny President, Director, Manager, Cashier, or other officer of any banking institution, to receive or assent to the reception of deposits, or create or assent to the creation of debts by such banking institution, after he shall have had knowledge of the fact that it is insolvent or in failing ciroumstances; and any officer, agent, or manager shall be individually responsible for such deposits so received, and all such debts so created with his assent. Referred to Committee on Corporations other than Municipal. IN BEOARD to A STATE BOABn OP BKALTH. Mb. MORSE introduced the following proposed amendment to the Constitution, in relation to a State Board of Health : The Legislature shall provide by law for the maintenance and effi- ciency of a State Board of Health. > Referred to the Committee on Miscellaneous Subjects. LKAVB OP AB8KN0K. Mr. O'Donnell was granted leave of absence until Monday. KIOBTS OP WIPB AS ADMINISTBATBIX. Mb. NASON introduced the following proposed amendment to the Constitution, in relation to the right of the wife to administer on the estate ot a deceased husband. Proposition to amend section fourteen, of article eleven, of the present Constitution, by addition of the following : And also giving the surviving wife the right to administer on the estate of her husband without giving bonds, whenever the property belonging to the estate has been acquired by the joint efforts of herself and husband. Referred to the Committee on Miscellaneous Subjects. TBE SESSIONS OF THE LKQISLATDBK. Mr. NASON introduced the following proposition to amend section two (2), of article four (4), of the Constitution, relative to Legislative Department. Amended so as to read as follows: Sec. 2. The sessions of the Legislature shall be quadrennial, and shall commence at twelve (12) o'clock M., on Wednesday next after the first Monday in January next ensuing the election of its members, unless the Governor of the State shall, in the interim, convene the Leg- islature bv proclamation. No session shall continue longer than one hundred days. Referred to the Committee on Legislative Department. BBLATINO TO LAND TKNCBKS. Mr. O'SULLIVAN introduced the following proposed amendment to the Constitution, in relation to land tenures and limitation of ownership : xtaolved, That the following provisions regarding land tenures and limitation of ownership of land, in the future, should be adopted as part of the Constitution of this State: Section 1. Periietuities and monopolies are contrary to the genius of a free government, and shall never be allowed; nor shall the law of primogeniture or entailments ever be in force in this State. Sec. 2. All lands within the State are declared to be allodial, and feudal tenures are prohibited. Leases and grants of land for a longer term than teu years, in which rent or service of any kind shall be reserved, and all fines and like restraints upon alienation, reserved in any grant of land hereafter made, are declared to be void. No lessee shall sublet any portion of the land held in his name. Sec. 3. No person other than citizens, or those who have declared their intentions to become such, shall ever acquire or own, either by purchase or otherwise, real property in this State; and in case any alien dies possessed of real property in this State, contrary to this provision, such property shall escheat to the State. Nor shall any lands in this State be held in trust for any alien ; but the creation of any trust in lands for the benefit of an alien shall at once escheat the land to the Slate. Sic. 4. No person shall forever hereafter be permitted to acquire, in any manner, more than six hundred and forty (640) acres of land in this State. Copartnerships, joint, or other ownership of lands, shall not be allowed contrary to this provision. No person who dies possessed of landed property in this State shall have the right to will or devise more than six hundred and forty (640) acres of land to any one heir; other- wise the said will shall be void; provided, however, that all land over and above the six hundred and forty (640) acres so devised to each law- t^ Oct. 10, 1878. OF THE CONSTITUTIONAL CONVENTION. 101 ful heir, of which such deceased peraon died lawfully poaseaaed, shall be sold to the highest bidders for cash, in quantities not exceeding six hundred and forty (640) acres each, and the proceeds divided equally among the lawful heirs. Sec. 5. Actual occupation and continuous use for agricultural pur- poses during a period of one year shall constitute a title to the owner- ship of land in this State. Tracts of land of over six hundred and forty (MO) acres in extent, which shall remain unoccupied and unused for sgricultural purposes during a period of one year, shall be open to the occupation and use of citizens of the United' States, in quantities not exceeding one hundred and sixt^ (lAO) acres; provided, if it shall appear that any other person has previous title to such tract of land, the party occupying and using the same shall pay to said person the assessed value of the property. Skc. 6. Ko more than one hundred and sixty (160) acres of land shall hereafter be eranted or patented by the State, in any manner, to any one person. No grant or patent of lands by the State shall hereafter lie made otherwise than upon the basis of actual settlement and use. No land scrip or land location certificates shall ever be issued in this State. Beferred to the Committee on Land and Homestead Exemption. THK o*7(iitaHir or watkr. Mr. O'SULLIVAN introduced the following proposed amendment to the Constitution, relative to rivers and lakes : Saofved, That the persistent attempts to monopolize Nature's fteo gift U> all, water, demand the insertion of the following emphatic declara- tion in the Constitution : Skctiok 1. All the rivers and fresh water lakes within the boundaries of this State are common property, and shall be controlled by the gov- ernment for public uses alone. Referred to the Committee on Water and Water Rights. THE ILECTtVE PEAKCBI8I. Mr. reed introduced the following proposed amendment to the Con- stitution, relative to the elective franchise : Article — . No person shall have the right to vote, or be eligible to office under the Constitution of this State, who shall not be able to read the Consti- tution of this State and write his name ; provided, however, that the pro- visions of this amendment shall not apply to any person prevented by physical disability from complying witn its requisitions, nor to any per- son who now has the right to vote, nor to any person who shall be sixty years of sice or upward at the time this amendment shall take effect. Referred to the Committee on Privileges and Elections. DECLARATION Or RIOBTS. Hr. R£ED introduced the following proposed amendment to the Constitution : Bectiox — . No money shall be drawn from the State treasury for the benefit of any religious or theological institution. Beferred to the Committee on Preamble and Bill of Rights. POWERS AND DUTIKS Or CERTAIN CORPORATIONS. Mr. RHODES introduced the following proposed amendments to the Constitution, creating a Board to supervise and prescribe the duties, powers, and liabilities of certain corporations, and for other purposes: Reaolved, That the following sections be appropriately numbered and incorporated into the proposed Constitution: SscnoK — . A State Board of Supervisors shall be formed, to consist of seven members. The Attorney-General and the Surveyor-General shall be ex officio members of such Board. One member shall be elected by the qualified voters of the State at large, and one member in each Congressional District by the qualified voters thereof. The five Super- visors to be elected as herein provided, shall be elected at the same time as the Governor of the State, and shall hold their office for the term of four years, and until their successors shall have been elected and qual- ified. Sec. — . No person shall be elected Supervisor who, at the time of his election, is a stockholder in, or officer or employ^ of any banking company, insurance company, railroad company, or other incorporated company doing business in this State for profit. When any Supervisor, elected aa provided in section — — of this article, shall become inter- ested, either as stockholder, officer, or employ^ of any company named in this section, he shall thereby become ineligible as a member of the Board of Supervisors, and his seat therein shall then become vacant. 8ic — . The Governor of the State shall, by appointment, fill any vacancy occurring in the Board of Supervisors, but in making such appointment no Congressional District shall be deprived of its repre- sentative in the Board. The person so appointed shall hold his office until the next general election, and until nis successor is elected and qualified. Sec. — . The State Board of Supervisors shall have power, and it shall be the duty of the Board : Rrti — ^To sit as s S(hte Board of Equalization, to equalize and adjust tsKssmente made in the several counties of the State for the purpose of taxation, under regulations to be prescribed by law. Second — ^To supervise the public institutions of the State, and exercise sodi powers in relation thereto as may be conferred upon the Board by law. TUri — ^To examine into and report upon the condition of all bankiog ioititatioiu, insurance companies, and .other incorporated companies daiii2 bnsineas for profit in the State, exercising therein, among other faaaSons, those of Bonk Commissioner and Insurance Commissioner. fbwrtk — ^To fix and determine rates to be charged for freights and ftna by aU railroad companies within this State, and to classify the diObtent ODinmodities carried as freight on such railroads. Fifth — To prescribe such rules for the ^vemment and control of such railroad, and other incorporated companies, as may be necessary to pro- tect the people of the State against unjust exactions, fovoritism, and other discriminations. iSuM— To file in the office of the County Clerk of each of the several counties of this Stete a schedule of freights and fares as fixed by said Board, as often as the same shall be changed, showing the classifications and rates to be charged for each class ; and it shall be lawftil for all rail- road companies in this State to charge and receive the rates fixed upon by such Board for freight and for passenger fare, and none other. Seventh — The Board shall have such further powers and shall perform such further duties as may be prescribed by law. Skc. — . The Board of Supervisors shall keep an office at the Capitol of the State, and shall meet as often as the public good may require, but not less often than once in each month. It shall organize by electing a President and Vice President from its own members, and a Secretary, who may Or may not be token from its own members. Four members shall constitute a quorum to transact business. Src. — . The five members of the Board, to be elected as herein pro- vided, shall receive as compensation for their services each the sum of dollars per annum, payable as the salaries of other State officers are paid, and the further sum of cents per mile for every mile necessa- rily traveled in the performance of their duties. Each member, before entering upon the discharge of the duties of his office, shall take the accustomed oath of office. Referred to Committee on Miscellaneous Subjects. CONCERNING VACANCIES IN OPPICE. Mr. SHOEMAKER introduced the following proposed amendment to the Constitution, concerning vacancies in office : Amend section eight, article five, of the Constitution, so as to read as follows : Skc. 8. When anv office shall ih>m any cause become vacant, and no mod^s provided by the Constitution and law for filling such vacancy, the Governor shall have the power to fill such vacancy for the unexpired term, if an executive office; if a United States Senator, he shall fill the vacancy by granting a commission which shall expire at the end of the next session of the Legislature; if a judicial officer, he shall fill such vacancy by issuing a commission until the next election for judicial offi- cers, when an election shall be had for the unexpired term. Referred to the Committee on Executive Department. OONCEBNINO THE VETO POWER. Mr. SHOEMAKER introduced the following proposed amendment to the Constitution, concerning the veto power : Amend section sixteen, article five, of the Constitution, so as to read as follows : Sec. 10. The Governor shall have the power to disapprove of any item or items of any bill making appropriations of money, embracing distinct items, and the part or parts of the bill approved shall be the law, and the item or items of appropriation disapproved shall be void, unless repassed according to the rules and limitations prescribed for the passage of other bills over the Executive veto. Referred to the Committee on Executive Department. OOKCERNINO TAXATION. Mr. shoemaker introduced the following proposed amendment to the Constitution, concerning taxation : Amend section thirteen, article eleven, of the Constitution, so as to read as follows : Sec. 13. Taxation shall be uniform and equal throughout the State. All property of every kind and character, whether land, notes, certifi- cates ol^ deposit, bonds, or other securities in this State, shall be taxed in proportion to its value, to be ascertained as directed by law; but Asses- sors and Collectors of State, county, city, town, or district taxes, shall be elected or appointed, as the Legislature may direct. Referred to the Committee on Revenue and Taxation. Mr. smith, of Kern. I rise to a point of order. There are more than two propositions. Mr. shoemaker. They only relate to one subject. Objection withdrawn. TAXATION or corporate pbopertt. Mr. shoemaker also introduced the following amendment to sec- tion fourteen, article eleven, of the Constitution, relative to taxing corporations : Amend section fourteen, article eleven, of the Constitution, so as to read as follows : Skc. 14. The power to tax coroorations and corporate property, or to regulate the affairs thereof, shaft not be surrendered or suspended by any contract or grant to which the State may be a party. Referred to the Committee on Legislative Department. FAY or STATE OPPICEKS. Mr. shoemaker also introduced the following proposed amend- ment to the Constitution, relating to the compensation of Stete officers : Amend section twenty-one, article five, of^ the Constitution, so as to read as follows : Skc 21. The Governor, Lieutenant-Governor, Secretary of State, Controller, Treasurer, Attorney-General, Surveyor-General, and Super- intendent of Public Instruction shall each, at stated times during their continuance in office, receive for their services a compensation, which shall not be increased or diminished during the term for which they shall have been elected, but neither of those officers shall receive for his own use any fees for the performance of his official duties. The Attor- ney-General shall not practice in any Court other than the Supreme Court, except in the discharge of his official duties. Referred to the Committee on Legislative Department. - ^ •^■— .oogle 102 DEBATES AND PROCEEDINGS Thuksdat, TBI PBSAinLI. Ms. SHURTLEFF introduced the following resolution, in referenoenstitution; provided, that in every county, or city and county, containing less than twenty thousand inhabitants, shall elect one Dis- trict Judge. Counties, or cities and counties, containing more than twenty thousand inhabitants, may elect such further number of District Judges as shall be prescribed by law, not exceeding one for every twenty thousand inhabitants and one ior such fraction as shall exceed ten thou- sand, which shall be the number for the purposes of the next election. Where there is more than one such Court in a county, or city and county, they shall be numbered as the Legislature shall direct. Tbe District Judges shall bold their offices for the term of ten years from the first Monday of January, A. D. eighteen hundred and seventy-nine. In districts where there shall bo more than one District Judge, a Pre- siding Judge shall be elected by lot, who shall distribute the labor per- forms! by each. Each District Court shall be held by one District Judge, and the Courts shall be separate, but the judgments and ordereof each shall be entered and enforced as of the District Court of each county, or city and county. Sic. 7. The District Court shall have original jurisdiction in all cases in equity, and in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which tbe demand, exclusive of interest, amounts to three hundred and fifty dollars; and in all criminal cases not otherwise provided for; also in actions of foreible entry and detainer, of proceedings in insolvency, of actions to prevent or abate a nuisance, and all such special cases and proceedings as are not otherwise provided for; also of all matters of probate; and said Courts shall have tbe powers of naturalization and to issue papers there- for. Said Courts and their Judges shall have the power to issue writs of habeas corpus, on petition by or on behalf of any person in actoal custody, in their respective counties. Said Courts shall be always open (legal holidays and non-judicial days excepted, and during such vaca- tions as the Legislature may see proper to grant, never to exceed fifteen days), and their original jurisdiction shall extend to all parts of the State. They shall have appellate jurisdiction in all cases arising in Municipal Courts, in all criminal cases arising in Justicesof the Peace, and such other inferior Courts aa the Legislature may establish in incorporated cities and towns, and in all civil cases arising in such inferior Courts, in which the demand, exclusive of interest, exceeds the sum of one hundred dollars ; all of said appeals to be taken only on questions of law, and only to the District Court of the county in which the appeal is taken. The said District Courts shall also have power to issue writs of mandamus, Digitized by Oct. 10, 1878. OP THE CONSTITUTIONAL CONVENTION. 103 iBJunction, prohibition, certiorari, quo warranto, and all other writs Beceeauy and proper to complete the exercise of their jurisdiction. In case of sickness, absence, or other incapacity of a District Judge, his Court may be held by any other District Judge of the State. Sec. 8. Each city, town, and village in the State, having over five hundred inhabitants shall have as many Municipal Courts, and there dull be established in towns and villaees having five hundred inhabi- tants and under, and in townships and districts outside of towns, cities, and villages, such Justices of the Peace as the Legiidature shall prescribe. The jurisdiction of Municipal Courts shall extend to all cases where the amount in controversy, exclusive of interest, does not exceed three hun- dred and fifty dollars; to cases of forcible entry and detainer, their jurisdiction shall be concurrent with that of the District Courts; to the foreclosure of mechanics' liens and mortgages, where the amount claimed, exclusive of interest, does not exceed three hundred and fifty dollars; and to such cases of misdemeanor and special cases as shall l>e fixed by law. The jurisdiction of Justices of the Peace shall extend to all cases where the amount claimed does not exceed one hundred dollars, exclusive of interest, and to such cases of misdemeanor and ipecisl cases as may be provided by law. Judges at Municipal Courts snail hold their omces for four years, and Justices of the Peace shall hold their offices for two years. Sic 9. The Supreme Court, the District Courts, and such other Courts as the Legislature may declare, shall be Courts of record. The L^slature shall fix by law the jurisdiction of such inferior Courts as it may establish in incorporated cities and towns, and shall fix by law the powers, duties, and responsibilities of the Judges thereof; prcmded, that the jurisdiction of such inferior Courts shall extend to the trial of mis- demeanors and cases arising under ordinances of such cities and towns. The times and places of holding the several Courts of record, except as herein provided, shall be provided by law. No judicial officer, except Justices of the Peace, Justices or Judges of such inferior Courts as may be established in incorporated cities ana towns, and Commissioners, shall receive to his own use any fees or perquisites of office. Sic. 10. The unfinished business remaining in the Probate Court of the City and County of San Francisco shall be apportioned between the leveral ^strict Courts therein established under this Constitution, in such manner as the Legislature shall direct. 8«c. 11. The Supreme Court and the District Courts now in existence aie continued until the first Monday in January, A. D. eighteen hun- dred and seventy-nine, but after said first Monday in January next theu' powen shall only extend to the determination of such cases or proceedings pending therein as may hftve been submitted for decision prior to that time; and for that purpose the Justices and Judges of said Courts shall hold their offices until the first day of April, A. D. eighteen hundred and aeventy , but said Justices and Judges shall not, by reason of so holding over, be ineligible to hold any office under this Con- stitution during said holding over. Sec. 12. The Justices of the Supreme Court shall appoint a Reporter of the decisions of the Supreme Court rendered in each of the sections thereof, and in bank, who shall receive an annual salary of two tbou- lend dollars. Sic. 13. The Legislature shall provide for the speedy publication of each opinions of the Supreme Court as it may deem expedient; and all opinions shall be free for publication by any person. Sic. 14. The Justices of the Supreme Cburt and the District Judges shall be ineligible to any other office than a judicial office during the term for which they shall have been elected, except in case of resigna- tion, and then not until two years after such resignation. In addition to the oath of office, they shall, before entering upon their offices, take and subscribe an oath that they will not, during such term, accept any Federal office, other tlian a judicial office. Sec is. The Justices of the Supreme Court and District Judges shall severally, at stated times during their continuance in office, receive for their services a compensation which shall not be increased or dimin- ished during the term for which they shall be elected ; provided, that District Judges shall be paid out of the county treasury of their remective counties. BIO. 16. The Justices of the Supreme Court and the District Judges shall be ineligible to any other office than a judicial office during the term for which they shall have been elected. Sic. it. Judges shall not charge juries with respect to matters of fact, but may state the testimony and dedare the law. Sic. 18. The style of all process shall be: "The People of the State of California," and all prosecutions shall be conducted in their name and by their authority. Sic. 19. The Legislature shall provide for the election of a Clerk of the Supreme Court, of County Clerks, District Attorneys, Sheriffs, Assess- ors, and other necessary officers, and shall fix by law their duties and compensations. The Legislature may also provide for the appointment by the several Courts of record of one or more Commissioners, with authority to perform chamber business connected with the administration of jurtice, as may be prescribed by law. Until the Legislature provides dioerent offices, and their terms of office, other than Judges, the same ooonty offices, and their terms, as now exist, shall continue as if this Constitution had not been adopted. Bkj. 20. The Justices of the Supreme Court, and the Judges of the Municipal Courts, shall not practice law, and shall not act as counsel, nor *Pfttir as attorney at law, in any case or proceeding in any Court, during taaar conlinoance in office. Bafened to Committee on Judiciary and Judicial Department. IK BISABD TO PBIVATK COBPORATIOIIS^ Kb. smite, of Kem, introduced the following proposed amendment to Mtide tenth of the Constitution^ in regard to private corporations. Abticli X. BiGTiON 1. Corporations may be formed under general laws, but shall not be created by special Act. All general laws passed pursuant to this section may be altered from time to time or repealed. Bio. 2. 'Each stockholder shall be Individually and personally liable for bis proportion of all debts and liabilities of a corporation created or incurred while he remains such stockholder. Sic. 3. The exercise of the right of eminent domain shall never be abridged, or so construed as to prevent the Legislature from taking the property and franchises of corporations and subjecting them to public use, the same as the property of individuals ; and the exercise of the police power of the State snail never be abridged, or so construed as to permit corporations to conduct their business in such manner as to mfringe the equal rights of individuals, or the general well-being of the State. Sic. 4. In all elections for Directors or managers of any incorporated company, each shareholder shall have the right to cast as many votes in the aggregate as shall equal the number of shares so held by him or her in said company, multiplied by the number of Directors or managers to be elected at such election ; and each shareholder may cast the whole number of votes, either in person or by proxy, for one candidate, or dis- tribute such votes among two or more candidates; and such Directors or managers shall not be elected in any other manner. Sic. S. No corporation shall engage in any business other than that expressly authorized in its charter ; nor shall it take or hold any real estate except such as may be necessary and proper for its legitimato business. Sbo. 6. No corporation shall issue stocks or bonds, except for money, labor done, or property actually received ; and all fictitious increase of stock or indebtedness shall be void. The stock of corporations shall not be increased, except in pursuance of general law, nor without the con- sent of the persons holding the two thirds in value of the stock, first obtained at a meeting to be held, after sixty days' notice given' in pur- suance of law. Sic. 7. Ho railroad or telegraph company shall consolidate with or hold an interest in the stock or bonds of any other railroad or telegraph company ; nor shall the same persons be officers in corporations owning competing lines of railroads or telegraphs. Sbo. 8. No railroad or telegraph company shall lease or in any man- ner manage or control the railroad or telegraph llneof another company. Sic. 9. All individuals, associations, and corporations shall have equal rights to have persons and property transported over railroads, and no undue or unreasonable discrimination shall be made in charges for or in facilities for transportation of freight or passengers within the State. Persons and property transported over any railroad shall be delivered at any station at charges not exceeding the charges for trans- portation of persons and property of the same class in the same direction, to any more distant station ; but excursion and commutation tickets may be issued at special rates. Sko. 10. The Legislature shall pass statutes to correct abuses and pre- vent unjust discrimination and extortion in the rates of freights and lares on the railroads in the State, and provide for the enforcement of such statutes by adequate penalties, to tne extent, if necessair for that pur- pose, of forfeiture of property and franchise ; and shall from time to time pass laws establishing reasonable maximum and minimum rates of charges for the transportation of passengers and freight on said railroads, and enforce all such laws by adequate penalties, to the extent of forfeit- ures, if necessary. Seo. 11. Every railroad corporation organized in this State shall maintain an office therein, where transfers of its stock shall be made, and where Its books shall be kept for inspection by any stockholder or creditor of such corporation, in which books shall be recorded the amount of capital stock subscribed or paid in, and by whom, the names of the owners of its stock, and the amounts owned by them respect- ively, the transfers of said stock, and the names and places of residence of its officers. Sic. 12. All railroads shall be public highways, and all railroad com- panies shall be common carriers. -Any corporation organized foi the purpose shall have the right to construct and operate a railroad between any points within this State, and to connect at the State line with rail- roads in other States. Every railroad company shall have the right with its roads to intersect, connect with, or cross any other railroad ; and shall receive and transport each other's passengers, tonnage, and cars, loaded or empty, without delay or discrimination, in such manner as may be prescribed hy general statute. Sic. 13. No President, Director, officer, or employ^ of any railroad company shall be interested, directly or indirectly, in the furnishing of material or supplies to such company, or in the business of transporta- tion as a common carrier of freight or passengers ever the works owned, leased, controlled, or worked by such company. Sic. 14. No railroad, railway, or other transportation company, shall grant free passes, or passes at a discount, to any public officer. Sec. 13. No foreign corporation shall do any business in this State without having one or more known places of business, and an author- ized agent or agents in the same upon whom process may be served. Sbo. 18. The rolling stock and all other movable property belong- ing to any railroad company, corporation, or individual in this State, shall be considered personal property, and shall be liable to execution and sale, in the same manner as the personal property of individuals; and the Legislature shall pass no law exempting such property from execution and sale. Seo. 17. No railroad or other corporation, or the lessees, purchasers, or managers of any railroad corporation, shall consolidate the stock, property, or franchises of such corporation with, or lease, or purchase the works or franchise of, or in any way control any railway or railroad corporation owning or having under its control a parallel~or oom^ti^f Digitized by VjOOQ^lC 104 DEBATES AND PROCEEDINGS Thursday, line ; nor ehall tutj officer of such railroad corjwration act aa an officer of any other railroad corporation owning or having the control of a jwr- allel or oompetinK line. The question whether railroads are parallel or competing lines snail, when demanded, be decided bj a Jury, as in other civil cases. Sec. 18. If an^ railroad company, organized under the laws of this State, shall consolidate, by sale or otherwise, with any railroad company organiied under the laws of any other Btate, or of the United States, the same shall not thereby become a foreign corporation ; but the Courts of this State shall retain in all matters which may arise as if said consoli- dation had not taken place. In no case shall any consolidation take place, except upon public notice of at least sixty days to all stockholders in such manner as may be provided by law. Sic. 18. No law shall be passed for the benefit of a railroad, or other corporation, or any individual, or association of individuals, retrospect- ive in its operation, or which imposes on the people of any county or municipal subdivision of the State, a new liability in respect to transac- tions or considerations already passed. Sxc. 20. No law shall be ptisBed granting the right to construct and operate a street railroad within any city, town, vilUwe, or on any public highway, without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad; and the franchise so granted shall not be transferred without similar assent first obtained. Sic. 21. No railroad corporation in existence at the time of the adoption of this Constitution, or any individual, shall have the benefit of any future legislation, except on condition of complete acceptance of all the provisions of this Constitution applicable to railroads. Referred to Committee on Corporations other than Municipal. aiCTARIAX TIACHINO. Mb. smith, of San Francisco, offered the following resolution, con- cerning the public schools : Besolved, That no sectarian book, or sectarian creed, shall ever be allowed in any of the public schools of this State. Mr. ROLFE. I raise the point of order that it does not conform to the requirements of the rule. Thk president. Return it to the author as not in the proper form. Mb. smith also offered a resolution prohibiting the increase of sala- ries for State officers. Mb. ROLFE. I raise the same point of order, that it is not in proper form. Th« PRESIDENT. The resolution is not in the proper form, and the Secretary will return it to the author. TAXATION. Mb. STEDMAN introduced the following proposed amendment to the Constitution, relative to taxation : Rtaolved, That the Committee on Revenue and Taxation be instructed to report the following section to be incorporated into the new Consti- tution : Section — . Banks now existing, or to be hereafter created, and all bankers, shall be taxed by such equitable rules, based upon capital employed and amount of business done by them, as will require them to share equally with other business interests in the burden of taxation. Referred to the Committee on Revenue and Taxation. LKOISLATIVK rOWRBS. Mb. STEDMAN introduced the following proposed amendment to the Constitution, relative to legislative powers: Setolved, That the following section be referred to the Committee on Legislative Powers for insertion in article on Legislative Department: Section — . The assent of three fourths of the members elected to each house, of the Legislature shall be required to every bill appropri- ating the public money or public propertjr for any purpose. Referred to the Committee on Legislative Department. IN bepibbncb to scbsidiis. Mb. STRONG introduced the following proposed amendment to article two, section ten : No county, township, city, town, village, or other political or muni- cipal division of the State, shall become a stockholder, either directly or indirectly, in anv joint stock company, corporation, or association, or shall raise money for, or loan its credit to, or in aid of, any company, oor{>aration, or association, or shall purchase or contract, or in anv way aid in purchasing or constructing, any railroad, or appurtenances tnereto belonging. Referred to Committee on City, County, and Town Organizations. ON Sl'PrBAOK. Mb. STUART introduced the following proposed amendment to the Constitution : The Constitution shall contain the following provisions in relation to the right of suffrage : Every male citizen, twenty-one years of age, possessing the following qualifications, shall be entitled to vote at all elections: First — He shall have been a citizen of the United States at least one month. Second — He shall have resided in the State one year. Third — He shall have resided in the election district where he shall offer to vote at least two months immediately preceding the election. Fourth — If twenty-two years of age or upwards, he shall have paid within two years a State or county tax, which shall have been assessed at least two months, and paid at least one month before elections. Referred to the Committee on Right of Suffrage. Ruled out of order. Mb. SWEASEY introduced a resolution in relation to the salary of State officers, which was ruled out of order, as not in the proper form. HOQBa OF LABOB. Mb. THOMPSON introduced the following proposed amendment to the Constitution, in relation to the hours of State labor, etc : Abticli — SioTioN 1. All offices. State, county, and municipal, shall remain open for the transaction of business eight hours each business day. Sic. 2. Eight hours shall constitute a legal day's work in each and every department of the State, county, and municipal governments. Referred to the Committee on Miscellaneous Subjects. OK goriBAOi. Mb. TULLY introduced the following proposed amendment to the Constitution, relative to suS)«ge. Incorporate the following in the Constitution : The Le^slature of the State of California shall pass no law requiring an educational qualification for suffrage. Referred to the Committee on Education. IMINKNT I>OMAIN. Mb. TULLY introduced the following proposed amendment to the Constitution, in relation to the taking of private property for public use. Amend section eight, article one, of the Constitution, as follows: Private property shall not be taken for public uae without just com- pensation be first made, or secured by a deposit of money to the owner, and such compensation shall be ascertained by a jury of twelve men, without deduction for benefit to any property of the owner, in a Court of record, as shall be prescribed by law. Referred to the Committee on Miscellaneous Subjects. TAXATION or CHCBCH PROriBTT. Mb. VACQUEREL introduced the following proposed amendment to the Constitution, in relation to the taxation of church property: Seaolved, That all church property, of whatever nature, shall be Bub- ject to taxation. Only benevolent institutions, under the direct control of the State, shall be exempt from taxation. Referred to the Committee on Revenue and Taxation. BILIOIOUB rBIEOOH. Mb. VACQUEREL introduced the following proposed amendment to the Constitution, in relation to the Bill of Rights: ^ Religious freedom being the fundamental principle of republican gov- ernment, the Legislature shall not, under any consideration, enact any law giving preference to any religious sect or mode of worship. Referred to the Committee on Preamble and Bill of Rights. mechanics' libns. Mb. van dyke introduced the following proposed amendment to the Constitution, in relation to mechanics' liens: Abticle — . Section — . Mechanics, material-men, artisans, and laborers of every class shall have a lien upon the property on which they have bertowed labor or furnished materials, for the value of such labor done and mate- rials furnished, and the Legislature shall provide by law for the speedy and efficient enforcement of said liens. Referred to the Committee on Miscellaneous Subjects. IN relation to cobporationb. Me. van VOORHIES introduced the following proposed amendment to section thirty-two, article four, of the existing Constitution. Amend said section so as to read as follows: Sec. 32. Dues from corporations shall be secured by such individual liability of the corporators and other means as may be prescribed by law. 'I'he property of corporations now existing, or hereafter created, shall forever be subject to taxation the same as the property of individ- uals, and the franchises of such corporations shall be assessed at their actual cash value and taxed accordingly. Referred to Committee on Corporations other than Municipal. ON 8DPPBAGE. Mb. van VOORHIES introduced the following proposed amendment to section one, article two, of the existing Constitution : Strike out the word "male," wherever it occurs in said section. In the sixth line (copy of the Constitution furnished the Convention) after the word " he " insert " or she," and after the word " his," in the same line, insert " or her." Referred to the Committee on Right of Suffrage. IN BEPEBINCE TO THE PBEAHBLE. Mb. WEBSTER introduced the following proposed amendment to the Constitution, in reference to the Preamble: We, the people of California, in order to form a more perfect govern- ment, establish justice, insure domestic tranquillity, provide forthe com- mon defense, promote the general welfare, and secure the blessings oi liberty to ourselves and our posterity, do ordain and establish this Constitution. Referred to the Committee on Preamble and Bill of Rights. bill or BI0BT8. Mb. WEBSTER introduced the following proposed amendment to the Constitution, in relation to the Bill of Rights: Sbc. 3. That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property ; and whenever tHe government assumes other functions than those herein enumerated its tendency is towards usurpation and oppression. Referred to the Committee on Preamble and Bil| of Rights. | Digitized by VjOOQ IC Oct. 10, 1878. OF THE CONSTITUTIONAL CONVENTION. 105 LAKEa AMD BITRRS. Mr. WELLIN introduced the following proposed amendment to the Constitution: That the waters of Lake Bitter or Tahoe should be taken possession of 1>7 the State and used for irrigating the dry lands, and that we do not rerognize any individual rights to that or any other lake. Referred to the Committee on Water and Water Rights. ALIKKS AS LAND-H0LDRB9. Mb. WELLIN introduced the following proposed amendment to the Constitution, in reference to prohibiting aliens from holding lands, etu. : Raolved, That no alien shall ever be allowed to take fish in the waters ^ of the State. Xaolved, That no alien shall be allowed to hold lands either by fee- simple or by lease in this State. Sesotved, That no citizen shall ever be allowed to hold lands in trust or otherwise for aliens. Reaolixd, That no license to carry on any kind of business shall ever be granted to any Asiatic or Chinaman. Seaoltxd, That no Chinaman shall ever be allowed to bring suit in any Court against a white person or to testify against a white i>erson. Sesalved, That no citizen or other person shall ever be allowed to bring suit as trustee or hy assignment for any Chinaman. Referred to the Committee on Chinese. CRIMINAI, PROSKCCTIONS. Mb. West introduced the following proposed amendment to the Constitution, on the subject of criminal prosecutions: 1. Prosecutions for crimes and misdemeanors may be begun by indict- ment found by a Grand Jury, or by infonnation laid before a Justice of the Peace. 2. The Grand Jury shall consist of fifteen men, and an indictment may be found upon the concurrence of nine of their number. 3. The Grand Jury shall be ordered by the County Judge, at his dis- cretion, but not oftener than once in each year. 4. An information Is a writing verified by a ^lerson called a prosecutor, charging another with the commission of a crime or misdemeanor, and setting forth the facts necessary to constitute the offense. 5. Such infonnation may be presented to a Justice of the Peace, and when such Justice has not jurisdiction to try the oflense charged there shall be had a preliminary examination, in which defendant shall have right to be heard by himself and counsel. 6. Should it appear that the offense charged has been committed, and the Justice be satisfied of defendant's guilt, he shall adjudge and bind the defendant to appear before the Court having jurisdiction of the ofienae. 7. Upon this information, and the judgment of the Justice thereon bein^ filed in the Court having jurisdiction, the District Attomev shall file in such Court a complaint signed by him, officially, changing the defendant with the offense for which he is held to answer. This com- plaint shall state the facts necessary to constitute a cause of action. 8. Upon such complaint the defendant may be tried. 9. After the defendant has been bound to appear, and within ten days thereafter, or at any time prior to filing the complaint, he shall have the right to be heard on a writ of habeas corpus before a Judge of a Court of record, and if such Judge shall find, on reviewing the evidence taken at the preliminary examination, that the defendant has been held without reasonable or probable cause, he shall order the defendant discharged, and the District Attorney shall not further prose- cute the proceeding. 10. Should the information be dismissed by the Justice, after a hear- ing on a preliminary examination, or the defendant be so discharged on baoeaa corpus, no second information shall be prosecuted against the defendant on the same charge, unless the second information be approved and signed by the District Attorney of some Court having jurisdiction to try the case. 11. A person may lie prosecuted by indictment for any offense of which the District or County Court has jurisdiction, although the infor- mation has been dismissed by a Justice, or the defendant discharged on habeas ooipns. Referred to Committee on Judiciary and Judicial Department. ON CORPOBATIOiiS. Ma. WICKES introduced the following proposed amendment to the Constitution, in relation to the jurisdiction of State over corporations : Seaolved, That the State, by right of eminent domain, holds siiper- TiBory jurisdiction over all railways, public highways, or toll-roads, routes of transportation ; over all natural and artificial re.«ervoirs, and waterways; and such right entitles her to regulate fares and rates, annul vested rights or call for their reversion, and to adopt such meas- nrea as will protect her people from extortion and monopolies. Referred to Committee on Corporations other than Municl}ial. IN BRLATION TO INTEREST ON HONRY. • Mb. white introduced the following proposed amendment to the Constitution, in relation to interest on money : Sbctioh 1. No agreement, or contract, or obligation hereafter made or entered into in this State shall be of any validity whatever, or be enforced in any of the Courts of this State, or be entitled to a record, that provides, directly or indirectly, for the payment of more than seven per cent, interest on money, or for the payment of the taxes, or any part at the taxes, of the lender of money, or anything of value by the Mrrower upon the money or thing loaned, or that provides for the pav- ment of the lender's attorney fees in case of a forced collection of tte taaaej or thing of value lent. And the Ijeglslature shall enforce this ■ftovimtm (rf the Constitution by an enactment of law which shall pro- 14 vide for the forfeiture, by the lender of money, of at least one fourth of the money or value of the thing lent, for any attempt to evade this section by receiving a premium of any sort whatever as a condition of lending the money. Sec. 2. All bonds and mortgages, notes and contracts for the pay- ment of money, in existence at the date of the adoption of this Consti- tution, shall be subject to the rate of interest and other conditions as provided for in said instrument up to the date of their maturity, and no longer. Inferred to the Committee on Miscellaneous Subjects. LR0I8LATIVE DEPARTHENT. Mr. white introduced the following proposed amendment to the Constitution, in relation to the Legislative Department : The article in the new Constitution relating to the Legislature shall be as follows : Article — . Section 1. The legislative power of this State shall be vested in a Senate and Assembly, which shall be designated the Legislature of the State of California, and the enacting clause of every law shall be as follows: " The People of the State of California, represented in Senate and Assembly, do enact as follows." Sec. 2. The Senate shall consist of fifteen members, and the Assem- bly of forty-five members, all to be elected by single districts, as herein- after provided. Mr. McCALLUM. Mr. President: That is evidently a very volumi- nous document: Mb. BARNES. I would like to know what that publication is. M a. EDGERTON. If it has a title, I move that the title only be read. The president. There being no objections it is so oi-dered. Sec. 3. The members of the Senate and Assembly shall be chosen by the qualified electors of their respective districts, under this Consti- tution, as follows : The first election for members of both houses of the Legislature shall be on the first Wednesday of September, eighteen hundred and seventy-nine, and their term of office shall l)e three years. The second election for members of the Legislature shall be on the first Tuesday after the first Monday in November, eighteen hundred and eighty-two, and their term of office shall be four years; and every four years thereafter, on the same day of the same month, the members of the Legislature shall continue to be chosen for the same term of office of four years. Skc. 4. No person shall be qualified to be a member of the Legisla- ture of the State of California except he shall have been a citizen of the United States for at least three years, and a bona fide resident of the State for the two years preceding his election, and a qualified elector in the district he represents. Sec. 5. The first regular session of the Legislature shall commence on the first Tuesday after the first Monday in January, eighteen hundred and eighty, and may continue in session for one hundred days, exclusive of Sundays, at the jjer diem pay for each member of six cfollars. The second regular session shall commence on the first Tuesday after the first Monday in January, of the year eighteen hundred and eighty- three, and may continue in session for sixty days at the same per diem pay for the members as that of the preceding Legislature. Thence, aftenvards, at the expiration of each four years, dating from the first Tuesday after the first Monday in January, eighteen hundred and eighty-three, the Legislature shall convene in regular session, and con- tinue as long in session as shall seem to be for the welfare of the State, and no longer; for which the members shall be paid a per diem of ten dollars for the first thirty working days, and nothing after the expira- tion of said thirty days. Sec. 8. Members of the Legislature, before they enter upon their official duties, shall take and subscribe the following oath or aflirmation : " I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and I will faithfully discharge the duties of Senator or Assemblyman accord- ing to the beat of my ability. That I have not knowingly or intention- ally paid or contributed anything, or made any promise in the nature of a nribe, to directly or indirectly influence any vote at the election at which I was chosen to fill the said office; that I have not accepted, nor will I accept or receive, directly or indirectly, any money, office, prom- ise, position, place, or thing from any corporation, company, or jwrson, for any vote or influence I may give or withhold on any bill, resolution, or other official act." This oath, or affirmation, shall be administered by a Judge of the Supreme Court or District Court, in the hall of the house to which the member is elected; and the Secretary of State shall record said oath subscribed by each member. Any member who shall refuse to take the oath or affirmation herein presented shall thereupon forfeit his office; and every member who shall be convicted of having sworn or affirmed falsely to or in violation of said oath or affirmation, shall thereupon forfeit his office, and be disqualified thereafter from holding any office of profit or trust in this State, and may be punished as provided for perjury In other eases. Sec. 7. At the first session of the Legislature after the adoption of this Cimstitution, and as often as once in ten years thereafter, it shall apportion the State into as many Congressional Districts as California is allowed members in Congress; and, also. Info fifteen State Senatorial Districts and forty-five Assembly Districts. In making these apportion- ments, the division of counties must be avoided except where a county is entitled to two or more Assemblymen or Senators. Equality in popu- lation must also be observed as far as it is practicable, and no one county shall ever be entitled to more than three of the State Senators. Every district named In this section shall be composed of contiguous and com- pact territory as far as that may bo practicable. Sec. 8. For the purpose of the election to take Digitized by' p^ic?^in.tl^^Dnth of '^ o 106 DEBATES AND PROCEEDINGS Thursday, September, eighteen hundred and seventy-nine, the State is hereby divided into Senate and Assembly Districts as follows: • ••••••• Skc. v. The sessions of the Legislature shall commence at twelve o'clock on the days and years heretofore provided. Sic. 10. The Secretary of State shall call the Senate to order at the opening of each new Senate, and preside over it until a temporary pre- siding officer thereof shall have been chosen and shall have taken his seat. Skc. 11. The Attorney -General of the State shall call the Assemblv to order at the opening of each new Assembly, and preside over it until a temporary presiding officer thereof shall have been chosen and taken his seat. Sue. 12. The Senate shall choose from its own body a President, and the Assembly from its own body a Speaker. Sec. 13. Each house shall choose its own officers, and judge of the qualifications, elections, and returns of its own members. Sec. 14. A majority of the members elected to each house shall con- stitute a quorum to do business; but a smaller number may adjourn from day to day, and may compel the attendance of absent members, in such manner and under such peualties as each house may provide. Sec. 15. Each House shall determine the rules of its own proceed- ings, and may, with the concurrence of two thirds of all the members elected, expel a member, but no member shall be twice expelled for the same offense. Skc. 16. Each house may punish by imprisonment any person, not a member, for disorderly or contemptuous b«havior in its presence, but such imprisonment shall not extend beyond that session. Sec. 17. Each house shall keep a Journal of its own proceedings, and publish the same ; and the yeas and nays of the members of either House, on any question, shall, at the request of any three members present, be entered on the Journal. Sec. 18. The enacting clause of every law shall be : " The People of the State of California do enact as follows." Sec. 19. All bills shall originate in the house of Assembly, but may be amended by the Senate. Sec. 20. So bill shall become a law without the concurrence of a majority of the members elected to each house. Every bill, having passed both houses, shall be signed by the President of the Senate and Speaker of the House, and submitted to the Governor for bis approval. Sec. 21. No Act of the Legislature shall embrace more than one sub- ject, and that shall be expressed in its title; but if any subject shall be embraced in an Act which is not expressed in its title, such Act shall be void only as to so much thereof as is not so expressed. Sec. 22. No law shall be revised or amended by reference to its title ^ only, but the law revised or the section amended shall be inserted at ' length in the new Act, and no Act shall be revised by the repeal of a repealing Act. Sec. 23. No Act of the Legislature shall take effect until the first day of July next after its passage, unless otherwise expressed in the last section of the Act. FRIVILEOBS AND DISABILITIKS. Sec. 24. Members of the Legislature shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest while the Legislature is in session; and they shall not be suUect to any civil pro- cess during the session of the Legislature, nor for fifteen days next before the commencement and after the termination of each session. Sec. 25. Ko person elected to the Legislatur^shall receive any civil appointment witliiu this State, from the Governor, the Governor and Senate, or from the Lcf^islature, during the term for which he shall have been elected, nor within a year thereafter, under any law passed while he was a member; and all such appointments shall lie void. Sec. 26. Xo member of the legislature shall be interested, directly or indirectly, in any contract with the State, or any county, or city anil countv, or other municipal corporation thereof, authorized by any law passed during the term for which he shall have been elected, or within one year after the expiration of his term of office. Sec. 27. The Ijegislature shall make no appropriation of money out of the treasury in any private bill. Sec. 28. Bills making appropriations for the pay of members and officers of the Legislature, and lur salaries of the officers of the State, shall contain no provision on any other subject. Sec. 29. Bills making appropriations for the support of institutions of the State and asylums snaA contain no provisions on any other subject. Sec. 30. No money shall be drawn from the State treasury except in pursuance of an appropriation made by law. Sec. 31. In addition to the pay heretofore provided for members of the Legislature, each member shall be entitled to receive as mileage three dollars for every twenty miles of travel to and from their resi- dence to the place of holding the session. Each mem)>er shall also receive at each regular session an additional sum of fifty dollars, which shall be in full for all stationery used, and all postage and all other incidental expenses ; and no allowance or emolument for any purpose whatever shall be made to or received by any member of either house for his use, out of the Contingent Fund or otherwise, except as herein expressly provided; and no allowance, extra pay, or emoluments, for any purpose whatever, shall ever be paid to any officer, agent, clerk, servant, or employ^ of either house of the Legislature, or of any com- mittee thereof, except such per diem as may be provided for by law, not exceeding five dollars per day. Sec. 32. The Legislature shall have no power to authorize lotteries or gift enterprises for any purpose, and shall pass laws to prohibit the sale of lotteiy or gift enterprise tickets, or tickets in any scheme in the nature of a lottery, in this State. Sec. 33. The census taken under the direction of the Congress of the United States in every ten vears shall be the basis of fixing and adjusting the Congressional and Legislative Districts. Sec. 34. No person holding any office under the United States, or any other powers, shall be eligible to any civil office of profit under this State government. Sec. 3b. No person who shall be convicted of the embezzlement or defalcation of the public funds of this Stale, shall ever be eligible to any office of honor, trust, or profit under this State ; and the Legislature should, as soon as practicable, pass a law providing for the punishment of such embezzlement or defalcation as a felony. Sec. 36. An accurate statement of the receipts and expenditures of the public moneys shall be attached to and published with the laws at every regular seasion of the Legislature. Sec. 37. Every bill shall be read at length on three different days in •ach house, and all amendments made thereto shall be printed for the use of the members before the final vote is taken on its passage. Sec. 38. The Governor and Justices of the Supreme Court, and Judges of the District Courts, shall be liable to impeachment for misde- meanor in office, but judgment in such cases shall extend only to removal from office and disqualification to hold an^ office of honor, trust, or profit under the State; but the party convicted or acquitted shall, nevertheless, be liable to indictment, trial, and punishment, according to law. All other officers shall be tried for misdemeanor m office as the Legislature may provide. Sec. 39. The Assembly shall have the sole power of impeachment, and all impeachments shall be tried by the Senate. When sitting fur this purpose the Senators shall be upon oath or affirmation ; and no person shall be convicted without the concurrence of two thirds of the whole number of Senators. Sec. 40. When vacancies occur in either house, the Governor, or the person exercising the functions of the Governor, shall issue writs of elec- tion to fill such vacancies. Sec. 41. The doors of each house shall be open, except upon such occasions as, in the opinion of the house, may require secrecy. Sec. 42. Neither house shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which they may be sitting. Sec. 43. Every bill which may have passed the Legislature shall, before it becomes a law, be presented to the Governor. If he approve it he shall sign it, but if not he shall return it, with his objections, to the house of the Assembly, which shall enter the same upon the Journal, and proceed to reconsider it. If, after such reconsideration, it again pass both houses, by yeas and nays, by a majority of two thirds of tne mem- bers of each house present, it shall become a law, notwithstanding the Governor's objections. If any bill shall not be returned within ten days after it shall have been presented to him (Sundays excepted) the same shall become a law, in like manner as if he had signed it, unleas the Legislature, by adjournment, prevents such return, in which case it shall not become a law, unless the Governor within ten days after such adjournment (Sundays excepted) shall sign and deposit the same in the office of the Secretary of State, in which case it shall become a law, in like manner as if it had been signed by bira before adjournment. If any bill prescuted to the Governor contain several items of appropriation of money, he may object to one or more items, while approving other por- tious of the bill; in such case be shall append to the bill, at the Ume of signing it, a statement of the items to which he objects, and the reasons therefor; and the appropriations so objected to shall not take effect, unless passed over the Governor's veto, as hereinbefore provided. If the Legislature be in session, the Governor shall transmit to the house of Assembly a copy of such statement, and th'e items so objected to shall be separately reconsidered in the same manner as bills which have been disapproved by the Governor. Sec. 44. Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant any- thing to or in aid of any religious sect, church, creed, or sectarian pur- pose, or help to support or sustain any school, college, or university, or other institution controlled by any religious creed, church, or sectarian denomination whatever ; nor shall any grant or donation of personal property or real estate ever be made by the State, or by any city, city and county, town, or other municipal corporation, for any religious creed, church, or sectarian purpo« wliatever. Sec. 45. The Legislature shall have no power to give or to lend, or to authorize the giving or lending of the credit of the State, or of any county, city and county, city, township, or other political corporation or subdivision of the State now existing, or that may be herealler estab- lished, in aid of or to any person, association, or corporation, whether municipal or otherwise, or to pledge the credit thereof in any manner whatever for the payment oi the liabilities of any individual, associ- ation, municipal or other corporation whatever, nor shall it have power to make any grant or authorize the making of any grant of any public money or thing of value to anv individual, municipal or other corpo- ration whatever; and it shall not have power to authorize ijie State, or any political subdivision thereof, to subscribe for stock, or to become a stockholder in any corporation whatever. Sec. 46. The Legislature shall have no power to grant, or to author- ize any county or municiiuil authority to grant, any extra compensation or allowance to any public officer, agent, servant, or contractor, after service has been rendered or a contract has been entered into or per- formed in whole or in part, nor to pay or authorize the payment of any claim hereafter created against the State, or any county or municipality of the State, under any agreement or contract made without express authority of law, and all such unauthorized agreements or contntcls shall be null and void. Sec. 47. No bill shall be considered for final passage unless the same Digitized (^ i Oct. 10, 1878. OF THE CONSTITUTIONAL CONVENTION. 107 has been reported upon by a committee and printed for the use of the members. Sic. 48. Upon the final passage of every bill in each house, the vote shall be taken by yeas and nays aud entered upon the Journal ; and no bill shall be passed unless a majority of all the members elected to each house shall vote therefor on its final passage. Sec. 49. The Legislature shall not pass local or special laws in any of the following enumerated cases — that is to say, changing the names of persons or places; changing county seats or locating tnem. except upon the organization of a new county; regulating county and township aSaire; regulating the practice in Courts of justice; regulating the juris- diction and duties of Justices of the Peace, Police Judges, and Con- stables; providing for changes of venue in civil or criminal cases; pro- viding for the election of members of the Boards of Supervisors; sum- moning and impaneling grand and petit juries; providing for the management of common schools; the opening and conducting of elec- tions, or designating the place of voting ; the sale or mortgage of any property belonging to minors or others under disability; the protection of game or fish; charteringor licensing ferries or toll-bridges; remitting fines, penalties, or forfeitures; creating, increasing, or decreasing salaries, fees, percentage, or allowance of public officers during the term for which said officers are elected or appointed; changing the law of descent; aothorising or directinjj the payment of money by any county, city and county, or other municipal corporation. All legislation of this charac- ter, and which is strictly local in its operation, and which cannot be beneficially reached by general laws, snail be intrusted to the Board of Supervisors of the respective counties of the State, and there guarded from abuse by appropriate State legislation. 8k. 50. Corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes. All gen- eral laws and special Acts, passed pursuant to this section, may be altered, from time to time, or repealed. Sec. &1. Dues from corporations shall be secured by such individual liability of the corporators, and other means, as may be prescribed by law. Sic. 52. The term "corporation," when used in this Constitution, shall be construed to include all associations and joint stock companies having any of the powers or privileees of corporations not possessed by individuals or partnerships. And all corporations shall have the right to me, and shall be subject to be sued, m all Courts, in like cases as natural persons. Sic. bS. The Legislature shall have no power to pass any Act grant- ing any charter for banking purposes, but associations may be formed, nndergenerallaws, for the deposit of gold and silver; but no such associa- tion shall make, issue, or put in circulation any bill, check, ticket, certi- ficate, promissory note, or other paper, or the paper of any bank, to circulate as monev. Sic. 64. The Ijegislature of this State shall prohibit by law any per- son or persons, association or company, or corporation from exercising the privilege of creating paper to circulate as money. Sic. 55. Each stockholder of a corporation or joint stock association shall be individually and personally liable for his proportion of all its debts and liabilities. Sic. 58. It shall be the duty of the Legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and in con- tracting debts by such municipal corporations. Sic. 57. The Legislature shall never grant divorces, but divorces may be obtained by civil action in the District Courts for the causes provided by law,. but no person from whom a divorce is obtained shall, during the lifetime of theperson obtaining the divorce, be allowed again to contract a marriage. This provision shall be enforced by suitable legislation. Sec 58. A member of the Legislature who shall solicit, demand, or receive, or consent to receive, directly or indirectly, for himself or for another, from any company, corporation, or person, any money, office, appointment, employment, testimonial, reward, thing of value or enjoy- ment, or of personal advantage, or promise thereof, for his vote or offi- cial influence, or for withholding the same, or with an understanding, expressed or implied, that his vote or official action shall be in any way innnenced thereby, or who shall solicit or demand any such money or other advantage, matter, or thing aforesaid for another, as the consider- ation of the payment or promise of such money, advantage, matter, or thing to another, shall be held guilty of bribery within the meaning of this Constitution, and shall incur the disabilities provided thereby for said offense, and such additional punishment as is or shall be provided bylaw. Sic. 59. Any person who shall, directly or indirectly, offer, give, or promise any money, or thing of value, testimonial, privilege, or per- sonal advantage to any executive or judicial officer, or member of the L^slatnre, to influence him in the performance of any of his public or official duties, shall be guilty of bribery, and be punished in such manner as shall be provided by law. Sic. 60. The offense of corrupt solicitation of members of the Le^is- ktore, or of public officers of the State, or of any municipal division thereof, and any occupation or practice of solicitation of such members or officers to influence their official action, shall be defined by law, and shall be punished by fine and imprisonment. Sic 61. Any person may be compelled to testify in any lawful inves- tigation or judicial proceeding against any person who may be charged with having committed the offense of bribery, or corrupt solicitation, or pnetiees of solicitation, and shall not be permitted to withhold his tes- wnonv upon the ground that it may criminate himself or subject him >• public mfamy: but such testimony shall not afterwards be used apimi him in any judicial proceeding, except for perjury in giving such totimony; and any person convicted of either of the offenses aforesaid shall, as part of the punishment therefor, be disqualified from holding any office or position of honor, trust, or profit in this Slate. Referred to the Committee on Legislative Department. Mb. hale. Mr. President : I move we do now adjourn until Mon- day, at ten o'clock. Mb. waters. I move to amend the motion, that we do now adjourn until ten o'clock to-morrow morning. The amendment was lost. The motion to adjonm until Monday at ten o'clock was lost. Mr. BARKES. I move that when the roll call is completed, and all the propositions have been submitted, that the Convention adjourn until Monday, at one o'clock. Tai PRESIDENT. The motion is out of order. No business has intervened. AHKKDINO TBI BULKS. Mb. CAMPBELL gave the following notice: Notice Is hereby given that, on to-morrow, or u soon thereafter as I can i^ith ref- erence to the ortler of bnainees, I shall more to amcnfl the sixtieth rale, hy striking out the words " except rules fifty, fifty-one, fifly-two, fifty-three, and fifty-fire ; " also ] shall move to repeal mle eeven^-one. ALEXANDER CAMPBELI,. Mb. BARTON. Mr. President: I gave notice yesterday of a motion to amend standing rule number two, as follows: RfMlvtd, That rule two, relating to recess, be amended so as to extend the time from twelve o'clock v. to two o'clock p. h. Mb. swing. Mr. President: I move we now adjourn. Lost Thb PRESIDENT. The question now is on the resolution offered by Mr. Barton. The resolution was adopted, and the rule amended accordingly. MOTIONS TO ADJOUBN. Mb. BARBOUR. Mr. President: I move now that this Convention do now take a recess for three days. Mb. waters. I move to amend, that the Convention do now ndjoum until ten o'clock to-morrow morning. The amendment was rejected. The president. The question is now on the motion of the gen- tleman from San Francisco, Mr. Barbour, to take a recess for three days. 'The ayes and noes were demanded by Messrs. Barbour, Waters, and White. The roll was called, and the motion was lost by the following vote : Barbour, Barnes, Beerstecher, Belcher, Bell, Beny, Blackmer, (!ampbell. Chapman, Charles, Cowden, Dean, Dudley,ofSan Kagon, JMgerton, Estey, Farrell, Garvey, Glascock, Graves, Gregg, Hager, ATKS. Hale, Hall, Heiskell, Herold, Hitchcock, Hughey, Inman, Johnson, Kelley, Kenny, Lampson, Lewis, Joaquin, Lindow, Mansfield, McCallum, Mills, Nason, Nelson, Noel, Overton, Porter, PuUiam, Reddy, Reed, Reynolds, Rhodes, Ringgold, Schell, Sehomp, Smith, of 4th District, Stedman, Steele, Stuart, Terry, Thompson, Townsend, Turner, Van Dyke, Van Voorhies, Walker, of Marin, Weller, Wellin, Winans, Mr. President — 66. Andrews, Ayers, Barry, Barton, Biggs, Boucher, Brown, Burt, Caples, Condon, Cross, Crouch, Davis, Dowling, Doyle, Dudley, of Solano, Dunlap, Evey, Fawcett, Filcher, Finney, Freeman, Mb. shoemaker. Mb. REYNOLDS. Convention. thk president, out of order. Freud, Neunaber, Gorman, Obleyer, Grace, O'SuUivan, Harrison, Rolfe, Harvey, Shoemaker, Herrington, Shurtleff, Hilbom, Smith,of San Francisco, Howard, Soule, Huestis, Stevenson, Hunter, Strong, Joyce, Swenson, Keyes, Swing, Kleine, Tully, Laine, Tuttle, Larue, Vacquerel, Lavigne, Waters, Martin, of Santa Crui, Webster, McComas, West, McConnell, Wickes, Moffat, White, Moreland, Wilson, of Tehama, Morse, Wyatt— 66. I move to adjourn until to-morrow. I appeal to the good sense of the members of this The motion is not debatable. The gentleman is Digitized by' Google .1 108 DEBATES AND PROCEEDINGS Friday, The ayes and noes i^ere demanded by Messrs. Waters, White, and Vaoquerel. The roll was called lost, by the following , and the motion to adjourn until to-morrow was vote: ATBS. Andrews, Gorman, Ohlever, Ayers, Grace, O'Sullivan, Barbour, Harrison, Rolfe, Barry, Harvey, Herold, Shoemaker, Barton, ShuHleff, Blackmer, Herrington, Smith, of San Francisco, Boucher, Hilbom, Soule, Brown, Howard, Stevenson, Burt, Hunter, Stuart, Campbell, Kleine, Swenson, Caples, Laine, Swing, Chapman, Larkin, Townsend, Charles, Larue, Tally, Cross, Lavi^e, Vaoquerel, Dowling, Martin, of Santa Cruz, Van Dyke, Dudley, of Solano, McComas, Van Voorhies, Dunlap, McConnell, Waters, Evey, Moffat, Webster, Fnweett, Moreland, West, Filcher, Morse, White, Finney, Nason, Wilson, of Tehama, Freud, Neunabcr, KOKS. Wyatt— «i. Barnes, Hale, PuUiam, Beerstecher, Hall, Heddy, Belcher, Heiskell, Reed, Bell, Hitchcock, Reynolds, Biggs, Heustis, Rhodes, Boggs, Hughey, Ringgold, Coddon, Inman, Schell, Cowdcn, Johnson, Sohomp, Crouch, Joyce, Smith, of 4th District, Davis, Kelley, Stedman, Dean, Kenny, Steele, Doyle, Keyes, Strong, Dudley,of San Joaquin, Lam]ison, Terry, Eagon, L^wis, Thompson, Edgerton, Lindow, Turner, •Sstey, Mansfield, Tuttle, Farrell, McCallum, Walker, of Marin, Freeman, McNutt, Weller, Garvey, Mills, Wellin, Glascock, Nelson, Wickes, Graves, Noel, Winans, Gregg, Overton, Mr. President — 68. Hager, Porter, Me. edgerton. I move we do now adjourn until next Monday at one o'clock. Me. WHITE. I move to amend by making it to-morrow morning at nine o'clock. Me. EDGERTON. Mr. President : The motion to adjourn to a day certain, is debatable. Now, sir, there is a vast mass of matter sent up to the de^k relating to the Constitution, and it has gone to the printer. It will not be back here for three or four days, and what there is for this Convention to do between this and the proposed day of adjournment, I do not see. We are occupving our time with these frivolous matters, and there is no business before the Oinvention. Me. BEERSTECHER. Mr. President: I desire to state why I sup- port this motion. It is upon the ground that there is no business at all for this Convention to do oetween this time and Monday. There is such a vaM amount of matter now in the hands of the printer that it is impossible for him to get it out and place it on our desks before Monday. It IS just as well to wljoum now and give the members an opportunity to draw up what amendments and resolutions they may desire to intro- duce next week. It will expedite business to adjourn, and I am in favor of adjourning. Mr. WIII'TE. Mr. Chairman: I desire to state the reasons why I oppose this ailjoumment. We are establishing a precedent for all time if^ we adopt this proposition. If we adjourn we will lose two days, liecause the business done here to-morrow will have to be done on Tues- day, and the amount of matter on the desk amounts to nothing, because all thoie propositions in the bends of gentlemen will have to come in, and they might as well come in now as any time. We had better occupy to-morrow and the da^after in doing this, and if some men want to go away, the (Convention will grant them the privilege of doing so, but lot the Convention go on with ita work. Me. BARNES. Mr. President: In support of this motion to adjourn, I call the attention of the members of the Convention to the fact that many of the propositious coming in to-day are duplicate, and in many instances quadruplicate, all embodying the same idea, and many of them, for what rea-son I do not know, are simply copies of articles in the Constitution as it stands to-day. You will all remember that every one of these propositions has to go to the printer. The exfienses of this printing oomes out of the appropriation (or this Convention, as I under- stand it— I liclieve the Board of Examiners have so decided. Now, as a matter of economy, I appeal to gentlemen if it is not better to stop this flood of matter until we have what has already been introduced printed and laid on our desks. If we meet to-morrow, gentlemeu will continue to present propositions, whereas, if we wait until Monday it will be found that the same matter has been embodied in a dozen different pro- positions. I think we should adjourn. The committeea cannot i nobody can act. It may not come up to the high standard of industry raised by the gentleman from Sant« Crut, Mr. White, who is an active, industrious man, but I think we had better adjourn until Monday, so as to know what we are doing. Mr. McCALLUM. Mr. President: I have uniformly, until now, voted against these motions to adjourn over; but I shall vote in favor of it now, because I am satisfied that economy, as well as expedition of business, demands it. I don't know whether the form of the motion is to adjourn until Monday, or whether it is in proper form or not. I sug- gest that the other is the proper form in which to put it, because we shall take the sense of this Convention as to rule seventy-one, as to its sus- pension as to printing. I say, upon a computation, that the printing in the lait two days will amount to two thousand dollars. All this stuff is going to the printer. Now, gentlemen can stay here and work in com- mittee. It is no loss of time, it is a saving of time; and, besides, I say that we should try and see if we cannot get at the business of this Con- vention in a more expeditious mauner than now. Yesterday it was said that that vast mass of resolutions would be the principal part. Why, it was nothing in oomparisnvention to rescind that rule. Let us ^o on to-mor- row and do all the business instead of laying it over until next week. I am free to admit that if it was not in the power of the Convention to rescind the rule, I would vote to adjourn over until next week, as I see, and every member sees, that this matter is accumulating too fast. I submit to gentlemen that the rule may be rescinded^ [Digitized by Google Oct. 11, 1878. OF THE CONSTITUTIONAL CONVENTION. 109 Mb. ANDREWS. It aeems to me, Mr. President, that we can cer- tainly do this. The Chairmen of the different committees can call their cnmmitteea together and have the committees organized. If it is post- poned until Monday there will be no organization at that time, and it looks to me to be preposterous to say that this Convention, organized for the pnrpose of framing a Constitution for the people, can do nothing for two days. It looks to me to be singular that they can do nothing for two days. We can organize the committees, and if we wait until next Mon- day there will be no organization of committees at that time, until the middle of the week. Mb. DUDLEY, of Solano. Mr. President: One word. There has been a mass of this matter introduced here, but if we stay here we can rescind this ru'.e and have these propositions sent to the committees, where they can be a:98orted by the committees, and those worthy to be printed can be printed. Ms. TULLY. We are going over the same arguments that were offered last Thursday. The same gentlemen argued then, and urged that it would be a matter of economy. It is strange that it is a matter of economy every Thursday afternoon to adjourn till Monday. I think to-morrow can be put in profitably. This reporter business has got to be disposed of. The clerkships have got to be disposed of. And f under- stand that the gentleman from Alameda is going to suspend the rule, or try to. by which the gentleman from Santa Clara will be allowed to introduii his whole Constitution. If it don't come up to-morrow, it will have to come up on Monday, and be disposed of in some sort of way. I think it is better to stay here and dispose of these subjects. It is not necessary that we should continue to receive this heavy stream of pro- positions; it is in the power of the Convention to cut them off. I, for one, think we can find profitable employment for to-mocrow and next day. If these gentlemen are so anxious to go home, let them ask leave of aljeence, and I think the Convention will grant it. Mb. O'SUXiLIVAN. Mr. President : I am opposed to adjourning for more than twenty-four hours. I came here to serve the people, in the interests of the people of the State of California, and of the City and County of San Francisco, and I intend to work for my ten dollars a day. If gentlemen are so economical, I am sorry to see them throwing out hints about the accumulation of printing, because I think that is the smallest item of expense. That money goes to the support of labor, and I am sorry to see them throwing out hints. There are other holes that money will go to. They don't look to the employment of two or three useless Doorkeepers here. Mr. cross. Mr. President : We have no right to waste two davs. There is a great deal of work to be done in the one hundred days. If tdis sdjoumment takes ploce, fifteen days of tjie session will have gone. We should stay in a boay and attend to the work. There are two kinds of economy; economy of work, and economy of money. I think this economy is economy of work. Mb. LAINE. Mr. President: I desire to call the attention of the Convention to one or two matters. It seems to me we should notadjoum, and I do not desire to criticise anything that has been introduced. There are many propositions in the hands of members in relation to the Con- stitution, and the quicker they are introduced, the better for the State and the better for us. To-morrow they can all be put in, and then we will have the matter ready, and can go to work, and we never can do anything until they are exhausted. Tiiere has been no meeting of the committees, and I desire that the Convention shall not adjourn. The law provides that we shall not adjourn longer than three days. This is three full days and part of the fourth. Thb PRESIDENT. The question is on the motion of the gentleman from Santa Cruz, Mr. White, to adjourn until to-morrow, at ten o'clock. The ayes and noes were demanded by the requisite number. The roll was called, and the motion prevailed by the following vote, at four o'clock and fifty minutes f. h.: Ohieyer, O'Sullivan, Reddy, Rolfe, Schell, Schomp, Shoemaker, Shartleff, Smith, of San Francisco, Soule, Stevenson, Strong, Stuart, Swenson, Swing, Tully, Tuttle, Vacquerel, Van Dyke, Waters, Webster, Wellin, West, Wickes, White, Wilson, of TehAma, Wyatt— 81. Andrews, Gorman, Avers, Grace, Barry, Graves, Barton, Harrison, BeU, Harvey, BUekmer, Herrington, Boucher, Hilbom, Brown, Howard, Burt, Huestis, Caples, Hunter, Chapman, Inman, Charles, Joyce, Condon, Keyes, Cross, Kleine, Crouch, Laine, Davis, Larkin, Dowling, Lame, Doyle, Lavigne, Dudley, of Solano, Mansfield, Danlap, Martin, of Santa Cruz Evey, HcComaa, Fanell, McConnell, Faweett, Moffat, Fik^er, Horeland, Finney, Morse, Freeman, NoBon, Fnmd, Neunaber, NOBS. Buhoor, Beerstecher, Batnei, Belcher, 1 • Berry, Boggs, Campbell, Cowaen, Dean, Eagon, Edgorton, Estey, (larvey, Glascock, Gregg, Hager, Hale, Hall, Heiskcll, Herold, Hitchcock, Hughey, Johnson, Kelley, Kenny, Lampson, Lewis, Lindow, McCallum, McNutt, Mills, Nelson, Noel, Overton, Porter, Pulliam, Reed, Reynolds, Rhodes, Ringgold, Smith, of 4th District, Stedman, Steele, Terry, Thompson, Turner, Van Voorhies, Walker, of Marin, WcUer, Winans, Mr. President— &2. FOURTEENTH DAY. Sacramento, Friday, October llth, 1878. The Convention met in regular session at ten o'clock a. u.. President Iloge in the chair. 'The roll was called, and members found in attendance as follows: Andrews, Ayers, Barbour, Barnes, Borry, Barton, Beerstecher, Belcher, Bell, Berry, Biggs, Blackmer, Boggs, Boucher, Brown, Burt, Campbell, Caples, Chapman, Charles, Condon, Cowden, Cross, Crouch, Davis, Dean, Dowling, Doyle, Dudley, of Solano, Dunlap, Eagon, Edgerton, Estey, Evey, Farrell, Fawcett, Filcher, Finney, Freeman, Freud, Garvey, Glascock, Gorman, Grace, Graves, Caaserly, Dudley, of San Joaquin, Estee, ■Tones, McFarland, McNutt, Miller, Gregg, Hager, Hale, Hall, Harrison, Harvey, Heiskell, Herold, Herrington, Hilbom, Hitchcock, Holmes, Howard, Huestis, Hughey, Hunter, Inman, Johnson, Joyce, Kelley, Kenny, Keyes, Kleine, liaine. Lam peon, Lorkin, Larue, Lavi^ue, Lewis, Lindow, Mansfield, Martin, of Alameda, Martin, of Santa Cruz, McCallum, McComas, McConnell, McCoy, Moffat, Moreland, Morse, Naaon, Nelson, Neunaber, Noel, abscnt. Mills, Murphy, O'Donnell, Prouty, Schell, Shafler, LKATK OF ABSENCI. Ohieyer, O'Sullivan, Overton, Porter, Pulliam, Reddy, Reed, Reynolds, Rhodes, Ringgold, Rolfe, Schomp, Shoemaker, Shurtleff, Smith, of 4th District, Smith, of San Francisco, Soule, Stedman, Steele, Stevenson, Strong, Stuart, Swenson, Swing, Terry, Thompson, Town send, Tully, Turner, Tuttle, Vacquerel, Van Dyke, Van Voorhies, Walker, of Marin, Waters, Webster, Wellin, West, Wickes,' White, Wilson, of Tehama, Wyatt, Mr. President. Smith, of Santa Clara, Tinnin, Walker, of Tuolumne, Weller, Wilson, of 1st District, Winans. Iieave of absence for two days was granted to Messrs. McFarland, Schell, Dudley, of San Joaquin, Tinnin, and Miller. Leave of absence for three days was granted to Messrs. Miller and Smith of Santa Clara. Leave of absence for one day was granted to Mr. Jones. The reading of the Journal was dispensed with. Mb. BARBOUR asked to have corrected the statement in the Journal in regard to the resolution he presented yesterday. The resolution was to memorialixe the President of the United States, not Congress. MILBAOK. Mb. HILBORN. I ask the indulgence of the Convention to make a motion. The motion is to take up the report of the Committee on Mileage, which was laid on the table yesterday. It has been printed, and is now on the desks of members, and any errors can be easily cor- rected. I make the motion in order that it may go to the Controller. I move that the report be taken from the table for consideration. ion. T 110 DEBATES AND PROCEEDINGS Friday, There being no objection, it was so ordered. Mb. HILBORN. I more that the report be adopted. Mb. ROLFE. I call the attention of the Conrention to one error. The report credits me with twelve hundred miles travel, when it should be eleven hundred and seventy-six. I ask that the amount due be reduced from one hundred and eighty dollars to one hundred and sev- enty-six dollars and forty cents. The correction was made without objection. Mb. HILBOBN also had corrected the mileage of Mr. Tully, reducing it from fifly-tbree dollars to thirty-eight dollars and forty cents. The report was adopted. Mr. HILBORN oSered the following resolution : Raolved, That the Controller of State be anthorised and dtrKted to draw h<| varrant, payable ont of the appropriation for the expeiisee of thU ConTenHon, in libTor of the parttee named, and for the amonntB iet opposlto their namee. In that report. Adopted. LKAVK or ABSKNCK. Mb. EDGERTON introduced the following resolution, outof order: Saolrtd, That E. L. Crawford, Minute Clerk, be and he la hereby granted leave of absence on the 14th, 15th and 16th of tlie present month ; pruTided that he leavM eome competent person to att«nd to the duties of bis office, wUbont Hirther expense e made levying a poll tax or requiring |ienHmal service, except upon military or other public necessity, found and declarereme Court, the Stete shall be divided into five districts, and each district shall be com- posed of six legislative districts. The first district shall be composed of the first, second, third, fourth, fifth, and sixth legislative districts; the second, of the seventh, eighth, ninth, tenth, eleventh, and twelfth; the third, of the thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, and eighteenth; the fourth, of the nineteenth, twentieth, twenty-first, twenty-second, twenty-third, and twenty-fourth; and the fifth, of the twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty- ninth, and thirtieth legislative districte. Sbo. 4. The Supreme Court shall have appellate jurisdiction in all cases in equity, also in all cases at law which involve the title or posses- sion of real estate, or the legality of any tex, impost, assessment, toll, or municipal fine, or In which the demand, exclusive of interest, amounts to five hundred dollars; also in cases of forcible entry and detainer, and in all probate matters; also in all criminal cases amount- ing to felony, on questions of law alone. The Court shall also have power to Issue writs of mandamus, certiorari, prohibition, and habeas corpus, and also all writs necessary or proper to the complete exercise of its appellate jurisdiction. Each of the Justices shall have power to issue wnte of habeas corpus to any part of the Stete upon petition by or on behalf of any person held in actual custody, and may make such writs returnable before himself, or in the Supreme Court, or before any County Court or Judge thereat. Sbc. 5. The Legislature shall have nopower to grant leave of absence to any judicial officer; and any such officer who shall absent himself from the Stete for more than thirty consecutive days shall be deemed to have forfeited his office. Sbc. 6. The County Courte shall have original jurisdiction in all cases in equity, and in all cases at law which involve the title or pos- session of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand, exclusive of interest, amounte to two hundred dollars, and in all crimi- nal cases not otherwise provided for; also in actions of forcible entry and deteiner, of proceedings in insolvency, of actions to prevent or abate a nuisance, and all such special cases and proceedinra as are not otherwise provided for; also of all matters of probate; and said Courts shall have the power of naturalization and to issue papers therefor. They shall have appellate jurisdiction in all cases arising in Justices', Bbcorders', and such other inferior Courts as may be esteblished by the Legislature in their respective counties, upon questions of law alone. Said Court shall be always open (legal holidays and non-judicial days excepted), and their original jurisdiction shall extend to all parte of the Stete. Said CourU and their Judges shall have poweE4^ issue writsjof L Digitized byLjOOQlC 114 DEBATES AND PROCEEDINGS Friday. habeas corpus on petition by or on behalf of any person in actual cus- tody, in their respective counties. Skc. 7. There shall be in each of the organized counties, or cities and counties of the State, a County Court; for each of which a County Judge shall be elected by the qualified electors of the county, or city and county, at the general State election; provided, that in all the said counties, or citiee and counties, containing more than fifty thousand inhabitants, there shall be one such County Court and County Judge for every forty thousand inhabitants: and in all such cases said Courts to be numbered from one upwards, in numerical order, as the Legisla- ture shall direct. The County Judges shall hold their offices for the term of twelve years from the first Monday of January next af^r their election. Skc. 8. The unfinished business remaining in the Probate Court of the City and County of San Francisco shall be apportioned between the Several County Courts therein established, by the Board of Supervisors thereof, in such manner as the legislature shall direct. Skc. 9. There shall be one Justice of the Peace elected in each town- ship in the State, and the Legislature shall determine the number of Justices of the Peace to be elected in each incorporated city and town, and shall fix by law the powers, duties, and responsibilities of Justices of the Peace: provided, such powers shall not in any case trench upon the jurisdiction of the several Courts of record. The Supreme Court, the County Courts, and such other Courts as the Legislature shall declare to be, shall be Courts of record. Skc. 10. The Legislature shall fix by law the jurisdiction of any Recorders' or Municipal Courts which may be established in pursuance of section one of this article, and shall fix by law the powers, duties, and responsibilities of the Judges thereof. Skc. 11. The Legislature shall provide for the election of a Clerk of the Supreme Court, County Clerics, District Attorneys, Sheriffs, and other necessary officers, and shall fix by law their duties and compensa- tion. County Clerks shall be ex officio Clerks of the Courts of record and the Boards of Supervisors in and for their respective counties. The Legislature may also provide for the appointment by the several County Judges of one or more Commissioners in their several counties, with authority to perform chamber business of the Judges of the County Courts, to take depositions, and perform such other duties connected with the administration of justice as may be prescribed by law. Sic. 12. The times and places of holding tne several Courts of record shall be provided for by law. No judicial officer, except Justices of the Peace, Recorders, and Commissioners, shall receive to his own use any fees or perquisites of office. 8kc. 13. The Legislature shall provide for the speedy publication of such opinions of the Supreme Court as it may deem expedient, and all opinions shall be free for publication by any person. Skc. 14. The Justices of the Supreme Court and County Judges shall severally, during their continuance in office, receive for their services, quarterly, an annual salary, which shall not be increased or diminished during the term for which they shall have been elected. County Jud^ shall be paid out of the county treasury of their respective counties. The annual salaries of the Justices of the Supreme Court shall be five thousand dollars, and the annual salaries of the County Judges shall be fixed by the Legislature, not to exceed four thousand dollars. No County Judge or Justice of the Supreme Court shall, after the first day of July, one thousand eight hundred and eighty, be allowed to draw or receive any quarter's salary unless they shall severally take and sub- scribe an oath, before the disbursing ofjRcer, that no cause in their respective Courts remains undecided that has been submitted for decision for the period of sixty days. The Legislature shall enforce thi^ pro- vision by appropriate legislation. Skc. 15. County Judges shall be ineligible to any other office than a judicial office during the terra for which they shall have been elected. Skc. 16. Judges shall not charge juries with respect to matters of fact, nor state the testimony. Skc. 17. The style of all process shall be, " The People of the State of California," and all prosecutions shall be conducted in their name and by their authority. Sec. 18. The Justices of the Supreme Court shall, before they enter upon the discharge of the dutie.i of their offices, qualify by taking and subscribing the following oath or affirmation: " I do solemnly swear (or affirm, as the case may be) that I will support and maintain the Consti- tution of the United States and the Constitution of the State of Califor- nia, and that I will discharge the duties of the office of a Justice of the Supreme Court to the best of my ability; and that 1 will not accept any office, State or Federal, nor be a candidate for any office, during the term for which I have been elected Justice of the Supreme Court." Any Justice of the Supreme Court accepting any office, or offisring himself as a candidate for any office, during the term for which he may have been elected, shall be guilty of and subject to all the pains and penalties of perjury, shall forfeit his office, and be forever disqualified from holding any office in this State. Skc. 19. The Justices shall appoint a reporter of the decisions of the Supreme Court, who shall hold his office and be removable at their Sleasure. He shall receive an annual salary of twenty-five hundred ollars, payable quarterly. Skc. 20. The Judges and Justices of the Peace shall not practice law in any Court of the State during their continuance in office. Skc. 21. A grand jury shall be composed of thirteen jurors, and a concurrence of eight shall be necessary to the making of a presentment or the finding of an indictment. • Skc. 22. In criminal cases), a concurrence of three fourths of the jur^ is sufficient to find a ^«rdict, except in cases where the punishment is death upon conviction; in such cases, all the jurors must concur to ren- der a verdict. Skc. 23. In all civil cases, a concurrence of two thirds of the jury a sufficient to render a verdict. Referred to Committee on Judiciary and Judicial Department, LKOMLATIVK OKrABTUKRT. Mb. LAINE introduced the following: Article four for a revised Con- stitution of the State of California — Legislative Department: ARTictK IV — Lkoislativk Dkpartmkxt. SwrnoK 1. The legislative power of this State shall be vested in a Senate and Assembly, which siiall be designated the Legislature of the State of California, and the enacting clause of every law shall be as fol- lows : " The People of the State of California, represented in Senate and Assembly, do enact as follows." Skc. 2. The regular sessions of the Legislature shall be biennial; the first session under this Constitution shall commence on the second Mon- day in January, one thousand eight hundred and eighty; and there- after the Legislature shall meet in regular session once in two years, on the second Monday in January. No session shall continue longer than ninety days. Skc. 3. The members of the Assembly shall be chosen by the quali- ■ fied electors of their respective districts on the first Wednesday in Sep- tember, and their term of office shall be four years. Skc 4. No person shall be qualified to be a Senator unless he shall have attained the age of thirty years and been eight years a citizen of the United States. No person shall be qualified to be an Asseniblymao unless he shall have attained the age of twenty-five years and been four years a citizen of the United States. Senators and Assemblymen shall be qualified electors in the districts they represent. Skc &. Senators shall be chosen for the term of eight years, at the same time and places as members of the Assembly. Skc *. The Senate shall consist of thirty members, and the Assem- bly of sixty members, to be elected by districts as hereinafter provided. The seals of the fifteen Senators from the odd numbered districts, chosen at the first election under this Constitution, shall be vacated at the expiration of the fourth year, so that one half of the Senate after the first election shall be chosen every four years. Skc 7. P'or the purpose of choosing members of the Ijegislatnre, the State shall bo divided into thirty districts, as nearly equal in population as may be, and composed of contiguous territory, to be called Legislative Districts; each district shall choose one Senator and two members of the Assembly. The districts shall be numbered from one to thirty inclusive, in numerical order, commencing at the northern boundary of the State and ending at the southern boundary thereof. In the formation of said districts no county, or city and county, shall be divided, unless it con- tain sufficient population within itself to form two or more districts, nor shall a part of any county, or city and county, bo united with any other county, or city and county, in forming any district. The first Legisla- ture that shall convene, after the taking and publishing of each and every decennial census or enumeration of the inhabitants of the United States under the direction ol Congress, shall adjust said districts so as to preserve them as near uniform in population as may be. Until sach adjustment shall be made, the First District shall consist of the Counties of Del Norte, Siskiyou, Modoc, Lassen, Shasta, and Trinity ; the Second, of the Counties of Humboldt, Mendocino, and Lake ; the Third, of the Counties of Tehama, Butte, and Plumas; the Fourth, of the Counties of Sierra and Yuba ; the Fifth, of the County of Nevada; the Sixth, of the Counties of Sutter, Colusa, and Yolo; the Seventh, of the Counties of Placer and El Dorado; the Eighth, of the County of Sacramento; the Ninth, of the County of Soiu>ma; the Tenth, of the Counties of Marin and Contra Costa ; the Eleventh, of the Counties of Amador, Calaveras, and Alpine; the Twelfth, of the Counties of Tuolumne, Msnposa, Mono, and Inyo; the Thirteenth, of the County of San Joaquin; the Fourteenth, of the County of Alameda ; the Fifteenth, Sixteenth, Seven- teenth, Eighteenth, Nineteenth, Twentieth, Twenty-first, Twenty-Sec- ond, and Twenty-third, of (he City and County of San Francisco; the Twenty.fourth, of the Counties of San Mateo, Santa Cruz, and Monte- rey; the Twenty-fifth, of the County lof Santa Clara; the Twenty-sixth, of the Counties of Stanislaus, Merced, and San Benito; the Twenty- seventh, of the Counties of Fresno, Tulare, and Kern ; the Twenty- eight, of the Counties of San Luis Obispo, Santa Barbara, and Ventura; the "rwenty-ninth, of the t>>nnty of Ix>s Angeles; and the Thirtieth, of the Counties of San Bernardino and San Diego. Skc 8. Each house shall choose its own officers, and judge of the qualifications, elections, and returns of its own members. Skc. 9. A majority of each house shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may compel the attendance of absent members, in such manner and under such penalties as each house may provide. Skc. 10. Each house shall determine the rule of its own proceedings, and may, with the concurrence of two thirds of all the members elected, expel a member. Skc. 11. Each house shall keep a Journal of its own proceedings, and publish the same: and the yeas and nays of the members of either house on any question shall, at the desire of'^any three members present, be entered on the .Tournal. Skc 12. Membersof the Legislature shall, in all eases except treason, felony, and breach of the peace, be privileged from arrest, and shall not be subject to any civil process during the session of the Legislature, nor for fifteen days next before the commencement and after the termination of each session. Skc. 13. When vacancies occur in either house, the Governor, or the person exercising the functionsof the Oovemor, shall issue writs of elec- tion to fill such vacancies. Skc 14. The doors of each house shall be open, except on such ooca- sioos as, in the opinion of the house, may require aecre(^. Digitized by Google Oct. 11, 1878. OF THE CONSTITUTIONAL CONVENTION. 115 Sic. 15. Keither house shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which they may be sitting. Sio. 16. Any bill may originate in either house of the Legislature, and all bills paMed by one house mar be amended in the other. Sic. 17. Every bill which may nave passed the Lef;islature shall, before it becomes a law, be presented to the Governor. If he approve it he shall sign it, but if not, be shall return it, with his objections, to the house in which it originated, which shall enter the same upon the Jour- nal, and proceed to reconsider it. If, after such reconsideration, it again paw both houses, by yeas and nays, by a majority of two thirds of the members of each house present, it shall become a law, notwithstanding the Governor's objections. If any bill shall not be returned within ten days after it shall have been presented to him (Sundays excepted), the same shall become a law, in like manner as If he had signed it, unless the Legislature, by adjournment, prevents such return, in which caae it shall not become a law, unless the Governor, within ten days afler such adjournment (Sundays excepted^, shall sign and deposit the mme in the office of the Secretary of State, m which case it shall become a law, in like manner as if it had been signed by him before adjoum- 'raent. If any bill presented to the Governor contain several items of appropriation of money, he may object to one or more items, while approving the ether portions of the bill ; in such case he shall append to the bill at the time of signing it a statement of the items to which he objects, and the rettsons therefor ; and the appropriations bo objected to ■hall not take effect unless passed over the Governor's veto, as hereinbe- fore provided. If the liCgislature be in session, the Governor shall tnnsmit to the house in which the bill originated a copy of such state- ment, and the items so objected to shall be separately reconsidered , in the same manner as bills which have been disapproved by the Governor. Sic. 18. The Assembly shall have the sole power of impeachment, and all impeachments shall be tried by the Senate. While sitting for that purpose, the Senators shall be upon oath or affirmation ; and no person shall be convicted without the concurrence of two thirds of the members present. Sic. 19. The Governor, Secretary of State, Controller, Treasurer, Attorney General, Surveyor-General, Justices of the Supreme Court, and County Judges shall be liable to impeachment for any misdemeanor in oflfice; but jndgmcnt in such coses shall extend only to removal from office, and disqualification to hold any office of honor, trust, or profit under the State ; but the. party convicted or acquitted shall, neverthe- 1«SB, be liable to indictment, trial, and punishment, according to law. All other officers shall be tried for misdemeanor in office as the Legisla- ture may provide. Sec 20. No Senator or member of Assembly shall, during the term for which he shall have been elected, be appointed to any civil office of profit under this State, which shall have been created, or the emolu- ments of which shall have been increased, during such term, except such offices as may be filled by election by the people. Sic. 21. No person holding any office under the United States, or any other power, shall be eligible to any civil office of profit under this State. Sic. 22. No person who shall be convicted or the embezzlement or defalcation of the public funds of this State shall ever be eligible to any office of honor, trust, or profit, under this State; and the Legislature shall, as soon as practicable, pass a law providing for the punishment of sach embezzlement or defalcation as a felony. Sic. 23., No money shall be drawn from the treasury but in conse- quence of appropriations made by law. An accurate statement of the receipts and expenditures of the public moneys shall be attached to and published with the laws at every regular session of the Legislature. Sic 24. The members of the Legislature shall severally receive for their services five dollars per day. In addition to the above per diem, the members shall bo entitled to receive as mileage three dollars for every twenty miles of travel to and from their residences to the place of holding the sessions. Each member shall also receive at each regular Mssion, an additional sum of fifty dollars, which shall be in full for all stationery used, all postage, and all other incidental expenses; and no allowance or emoluments for an^ purpose whatever, shall be made to, or received by any member of cither house for his use, out of the Con- tingent Fund or otherwise, except as herein expressly provided ; and no allowance, extra pay, or emoluments, for any purpose whatever, shall ever be paid to any officer, agent, clerk, servant, or employ^ of either boose of the Legislature, or of any committee thereof, except such per diem as may be provided for by law, not exceeding five dollars per day. 8bc. 25. Every law enacted by the Legislature shall embrace but one object, and shall be expressed in its title; and no law shall be revised or amended by reference to its title, but in such case, the part of the Act revised, or section amended, shall be reenacted and published at length, as revised or amended. Sic. 26. No divorce shall be granted by the Legislature'. Sic. 27. The Legislature shall have no power to authorize lotteries or gift enterprises for any purpose, and shall pass laws to prohibit the sale of lotteiy or gift enterprise tickets, or tickets in any scneme in the nature of a lottery in this State. Sic. 28. The census taken under the direction of the Congress of the Cnited States, in the year one thousand eight hundred and seventy, and every ten years thereafter, shall be the basis of fixing and adjusting the L^islative Dirtricts. Sic. 2B. No local law shall be passed unless notice of the intention jo propose the same to the Legislature shall have been published in the locality to lie affected thereby, which notice shall state the substance of Hie contemplated law, and shall be published at least twenty days in some newspaper of general circulation, in the locality to be affected, piior to its introduction into the Legislature. The evidence of such notice having been published shall be exhibited to the Legislature before "Kh Act shall be passed. Sic. 30. When a Congressional District shall be composed of two or more counties, it shall not be separated by any county belonging to another district. No county, or city and county, shall be divided in forming a Congressional District so as to attach one portion of a county, or city and county, to another county, or city and county ; but the Leg- islature may divide any county, or city and county, into as many Con- gressional Districts as it may be entitled to by law. Sic. 31. Corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes. All gen- ci^^aws and special Acts passed pursuant to this section may be altered fr^n time to time, or repealed. Skc. 32. Dues from corporations shall be secured by such individual liability of the corporators and other means as may be prescribed by law. Sec. 33. The term corporations, as used in this article, shall he con- strued to include all associations and joint stock companies having any of the powers or privileges of corporations not possessed by individuals or partnerships. And all corporations shall have the right to sue and shall be subject to be sued, in all Courts, in like cases as natural persons. Skc. 34. The Legislature shall have no power to pass any Act grant- ing any charter for banking purposes; but associations maybe formed, under general laws, for the deposit of ^Id and silver; but no such asso- ciation shall make, issue, or put in circulation, any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate as money. Sic. 35. The Legislature of this State shall prohibit, by law, any per- son or persons, association, company, or corporation from exercising the privileges of banking, or creating paper to circulate as money. Sko. 36. Each stockholder of corporation or joint stock association shall be individually and personally liable for his proportion of all ita ilebts and liabilities. Skc. 37. It shall be the duty of the Legislature to provide for the organization of cities end incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and in con- tracting debts by such municipal corporations. Sec. 38. In all elections by the Legislature the members thereof shall vote viva voce, and the votes shall be entered on the Journal. Sic. 39. The general appropriation bill shall contain no item or items of appropriation other than such as are required to pay the sala- ries of the State officers, the expenses of the government, and of the institutions under the exclusive control and management of the State. Sec. 40. No bill making an appropriation of money, except the gen- eral appropriation bill, shall contain more than one item of appropria- tion, and that for one single and certain purpose, to be therein expressed. DEC. 41. No bill shall be considered for final passage unless the same has been reported upon by a committee, and printed for the use of the members. Sec 42. Upon the final passage of every bill in each house, the vote shall be taken by yeas and nays, and entered upon the Journal'; and no bill shall be passea unless a majority of all the members elected to each house shall vote therefor on its final passage. Sec. 43. Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, or other institution controlled by any religious creed, church, or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by tne State, or any city, city and county, towd, or other municipal corporation, for any religious creed, church, or sectarian purpose whatever. Sec. 44. The Legislature shall have no power to give or to lend, or to authorize the giving or lending of the credit of the State, or of any county, city and county, city, township, or other political corporation or subdivision of the State now existing, or that may be hereafter established, in aid of or to any person, association, or corporation, whrther municipal or otherwise, or to pledge the credit thereof in any manner whatever for the payment of the liabilities of any individual, association, municipal or other corporation whatever, nor shall it have power to make any grant or authorize the making of any grant of any public money or thing of value to any individual, municipal or other corporation whatever; and it shall not have power to authorize the State, or any political subdivision thereof, to subscribe for stock, or to become a stockholder in any corporation whatever. Sec. 45. The Legislature shall have no power to grant, or to author- ize any county or municipal authority to grant, any extra compensation or allowance to any public officer, agent, servant, or contractor, after service has been rendered or a contract has been entered into and per- formed in whole or in part, nor to pay or authorize the payment of any claim hereafter created against the State, or any county or municipality of the State, under any agreement or contract made, without express authority of law; and all such unauthorized agreements or contract! shall be null and void. Sec. 46. All railways heretofore constructed, or that may be hereafter constructed, in this State, are hereby declared to be public highways, and railroad companies common carriers. The Legislature shall pass laws to correct abuses and prevent unjust discriminations and extortions in the rates of freight and passenger tariffs on the different railroads in this State, and shall from time to time pass laws establishing maxi- mum rates of charges for the transportation Of passengers and freight on said railroads, and enforce all such laws by adequate penalties. Sec. 47. No railroad or other transportation company shall grant any free pass or ticket, or grant any pa.is or ticket at a discount, to any niemoer of the Legislature, or any State, county, or municipal officer, and the acceptance of any such pass or ticket by a member of the Digitized by Google 116 DEBATES AND PROCEEDINGS Friday, Legislature, or hj any such officer, shall be a forfeiture of his office, ana he shall be subject to the pains and penalties of a bribe-taker. Sio. 48. In case of a contested election in either branch of the Legis- lature, only the claimant decided entitled to the seat shall receive from the State per diem, compensation, or mileage. Sic. 49. The Legislature shall not pass local or special laws in any of the following enumerated cases, that is to say : changing the names of persons or places ; changing county seats, or locating them except upon the organization of a new county; regulating county and township affairs; regulating the practice in Courte of justice; regulating the j^u- diction and duties of Justices of the Peace, Police Judges, and MR- stables; providing for changes of venue in civil or criminal cases; providing for the election of members of the Boards of Supervisors ; Bummonmg and impaneling grand and petit juries; providing for the management of common schools ; the openmg and conducting of elections, or designating the place of voting ; the sale or mortgage of any prop- erty belonging to minors or others under disability ; the protection of game or fish; chartering or licensing ferries or toll-bridges; remitting fines, penalties, or forfeitures ; creating, increasing, or decreasing salaries, fees, percentage, or allowance of public ofScers during the term for which said officers are elected or appointed ; changing the law of descent; authorizing or directingj the payment of money by any county, city and county, or other municipal corporation. Referred to (Committee on Legislative Department. ILECtlTK PKAKCHISE AND PBITILKOKS. Mb. LIKDOW introduced the following proposed amendment to the Constitution, relative to the elective franchise. I beg leave to submit the following, in relation to elective fhuichise and pnvileges, to be incorporated into the proposed Constitution : Abticlk — . Seotioii I. All elections shall be free and equal. 8io. 2. All elections shall be by ballot. Sec. 3. No Chinaman, Asiatic, or any descendant thereof, shall be entitled to the right of suffrage. Sec. 4. Every male citizen of the United States, of the age of twenty- one years or over, who shall have been a resident of this State for six months, of the county in which he resides for thirty days, of the election district fifteen days preceding any election therein, shall be entitled to vote. Sec. 5. Electors shall in all cases, except treason, felony, or breach of the peace, be privileged from arrest on the day of election, during their attendance at such election, and in going to and returning from the same. No elector shall be obliged to do military duty on the day of election, except in time of war or public danger. Sec. 6. For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of absence while employed in the service of the United States, nor while engaged in the navigation of the waters of this State or of the United States, or of the high seas, nor while a student in any institution of learning, nor while kept at any alms- house or other asylum, nor while confined in any public prison; but no person while confined in any prison shall have any right to vote during such confinement. No person who shall have been convicted of any crime which is punishable by imprisonment in a penitentiary shall be entitled to the privileges of an elector. Sec. 7. No soldier, seaman, or mariner in the army or navy of the United States shall be deemed a resident of this State in consequence of being stationed therein. Sec. 8. No person shall be elected or appointed to any office in this State, civil or military, who is not a citizen of the United States, and who shall not have resided in this State one year next preceding the ' election or appointment. Sec. 9. No idiot or insane person shall be entitled to the privileges of an elector. Sic. 10. Every male citizen of Mexico, who shall have been elected to become a citizen of the United States under the treaty of peace estab- lished and ratified at Queretaro, on the thirtieth day of May, eighteen hundred and forty-eight, shall be an elector and citizen of this State, and entitled to all the privileges of a native-bom citizen of the United States. Sec. 11. Every person shall be disqualified from holding office during the term for which he may have been elected, who shall have given or offered a bribe, threat, or reward to procure his election. Sec. 12. The Legislature shall enact laws to support the privilege of free suffrage, prescribing the manner of regulating and conducting elections, and prohibiting, under adequate penalties, all undue influ- ence therein from power, bribery, intimidation, and other improper con- duct; provided, that no law shall be passed which shall deprive a citizen of his vote at any election where proof of citizenship and resi- dence can be given. Sec. 13. Any citizen of this State who shall, after the adoption of this Constitution, fight a duel with deadly weapons, or send or accept a challenge to fight a duel with deadly weapons, either within this State or out of it, or who shall act as second, or knowingly aid or assist in any manner those thus offending, shall be deprived of holding any office of trust or profit, and of enjoying the right of suffrage under this Constitution; any State officer, member of the I/e^slature, or any other person holding office, or of any person holding office of profit or trust under the Constitution and the laws made in pursuance thereof, shall be, ipso facto, vacated by the fact of any such person committing the offense mentioned in this article, and the Legislature shall provide by law for ascertaining and declaration of such forfeiture. Sic. 14. No person holding a lucrative office or appointment under the Government of the United States, or under this State, shall be eligi- ble to the Legislature until he has resigned his position and such resig- nation has taken effect. Nor shall one petwm hold more than one lucrative office at one time; fyrovided, that offioen in the militia to which there is attached no annual salary, and the office of Poetmastar, when the compensation does not exceed one hundred dollars per annum, shall not be deemed lucrative. Sec. li. No person shall be in receipt at the same time of more than one official salary or compensation beyond that fixed by law at the time of his election or appointment. Sec. is. No person who shall hereafter be a collector or holder of public money, or receiver of money as an officer, shall be eligible to any office of trust or profit until he shall have accounted for and paid, according to law, all money for which he is or may be liable. Sec. 17. All elections by the Legislature, or either house thereof, shall be viva voce. Sec. 18. General municipal elections shall be held biennially on the first Tuesday after the first Monday in November. At all elections by the people the polls shall be open from six a. m. to seven r. u. Referred to Committee on Privileges and Elections. EXECCTIVI DirARTMniT. Ml. MARTIN, of Santa Cruz, introduced the following proposed ' article five for a revised Constitution of the State of California, on Uie Executive Department: Abticlb V. EXECUTIVE DEFABTXEITT. Sectioh 1 . The supreme executive power of this State shall be vested in a Chief Magistrate, who shall be styled the Governor of the State of California. Sec. 2. The Governor shall be elected by the qualified electors at the time and places of voting for members of the Assembly, and shall hold his office lour years from and after the second Monday in January sub- sequent to his election, and until his successor is elected and qualified. Sec. 3. No person shall be eligible to the office of Governor who has not been a citizen of the United Statm, and a resident of this Slate, five years next' preceding the election, and attained the age of thirty-five years at the time of said election. Sec. 4. The returns of every election for Governor shall be sealed np and transmitted to the seat of Government, directed to the Speaker of the Assembly, who shall, during the first week of the session, open and publish them in presence of both houses of the Legislature. The per- son having the highest number of votes shall be Governor; but in case any two or more have an equal and the highest number of votes, the Legislature shall, by joint vote of both houses, choose one of said per- sons so having an equal and the highest number of votes for Governor. Sec. i. The Governor shall be Commander-in-Chief of the militia, the army and navy of this State. Sec. 6. He shall transact all executive businea with the officers of government, civil and military, and may require information, in writ- ing, from the officers of the Executive Department upon any sutgeat relating to the duties of their respective offices. Sec. 7. He shall see that the laws are faithfully executed. Sec. 8. When any office shall, from any cause, become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have power to fill such vacancy by grant- ing a commission, which shall expire at the end of the next session of the Legislature, or at the next election by the people. Sec. 9. lie may, on extraordinary occasions, convene the Legislature by proclamation, and shall state to' both houses, when assembled, the purpose for which they shall have been convened. Sec. 10. He shall communicate by message to the Legislature, at every session, the condition of the State, and recommend such matten as he shall deem expedient. Sec. 11. In case of a disagreement between the two houses with respect to the time of adjournment, the Governor shall have power to adjourn the Legislature to such time as he may think proper; promdei, it be not beyond the time fixed fur the meeting of the next Legislature. Sec. 12. No person shall, wbile.holding any office under the United States or this State, exereise the office of Governor, or be eligible thereto. Sec. 13. The Governor shall have the power to grant reprieves and pardons, after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and reg- ulations as may be provided by law. Upon conviction for treason, he shall have the power to suspend the execution of the sentence until the case shall be reported to the Legislature at its next meeting, when the Legislature shall either pardon, direct the execution of the sentence, or grant a further reprieve. He shall communicate to the Legislature, at the beginning of every session, every case of reprieve or pardon granted, stating the name of the convict, the crime for which he was convicted, the seutence-and its date, and the date of the pardon or reprieve. Sic. 14. There shall be a seal of this State, which shall be kept by the Governor, and used by him officially, and diall be called "The Great Seal of the State of California." Sec. 15. All grants and commissions shall be in the name and by the authority of the people of the State of California, sealed with the great seal of State, signed by the Governor, and countersigned by the Secre- tary of State. Sec. 1 6. The Governor shall receive an annual salary of five thou- sand dollars, to be paid at stated times, as provided by law, which shall be in full for all services performed by him for the State as Governor, or in any other official capacity, and the Legislature shall have no power to grant him any extra compensation whatever for ex officio service of any kind. Sec. 17. In case of the impeachment of the Governor, or his removal from office, death, inability to discharge the powers and duties of the said office, resignation, or absence from the St{^ the powers.aud duties Digitized by Uoogle Oct. 11, 1878. OF THE CONSTITUTIONAL CONVENTION. 117 of the office, with its emolumenta, shall devolve upon the President of the Senate for the residue of ihe term, or until the disability shall cease. 8«c. 18. A Secretary of State, a Controller, a Treasurer, an Attomey- Oeneral, and a Surveyor-General, who shall bo ex officio Register of the State Land Office, shall be elected at the same time and places, and in the same manner, as the Governor, whose term of office shall be the same as the Governor. They shall each receive an annual salary of three thousand dollars, to be paid at stated times, as provided by law, which annual salary shall be in full lor all services to be rendered by them, of every kind, name, and nature. No person shall be eligible to either of said offices unless be shall have attained the age of thirty years, and been five years a citizen of the United States and resident of this SUte. Sic 19. The Secretary of State shall keep a fair record of the official acts of the Legislative and Executive Departments of the government, and shall, when required, lay the same, and all matters relative thereto, before either branch of the Legislature, and shall perform such other duties as may be assigned him by law. Beferred to Committee on Executive Department MOOC or AHINDIKO AND SXTISINO TBI COXSTITUTIOX. Ha. MARTIN, of Santa Cruz, introduced the following: Proposed article ten for a revised Constitution of the State of Califor- nia— mode of amending and revising the Constitution : Artiolk X. MODI or AMINDIKO AXD SIVISIKO THK CONSTITDTIOM. SicnoN 1. Whenever a majority of both houses of the Legislature shall deem it necessary to alter or amend this Constitution, they may propose such alterations or amendments, which proposed amendments ahall be published with the laws which have been passed at the same session ; and said amendments shall be submitted to the people fur their approval nr rejection at the next general election; and if it shall appear, in a manner to be provided by law, that a majority of the qualified electors present and voting at such election shall have ratified such alterations or amendments, the same shall be valid to all intents and purposes as a part of this Constitution. If two or more alterations or amendments shall be submitted at the same time it shall be so regu- lated that the electors shall vote for or against each separately. Sic. 2. Whenever two thirds of the members elected to each branch of the Legislature shall think it necessary to call a Convention to revise this Constitution, they shall recommend to the electors to vote, at the next election for members of the Legislature, for or against a Con- vention ; and if a majority of electors voting at said election on the proposition for a Convention shall have voted for a Convention, the Legislature shall, at the next session, provide by law for calling the same. The Convention shall consist of as many members as the Anem- bly, and shall be chosen in the game manner, aud shall have the quali- fiottions of Senators. They shall meet within throe months after their election for the purpose aforesaid. Beferred to Committee on Future Amendments. coaroRATioNS. Mb. McCALLUM introduced the following proposition for an amend- ment defining and declaring the right of the State to regulate aud limit the rates to be charged for rreights and fares, and for gas and water, and rates of other service and commodities, by corporations, and making the exercise of that right mandatory : " Amend the Constitution so as to read as follows : AXTICLR IV. Btc. 31. Corporations other than municipal may be formed under general laws, but shall not be created by special Act. All laws hereto- fore paawd, or which shall hereafter be parsed in pursuance of this sec- tion, may be altered, from time to time, or repealed. Laws shall be passed for the regulation and limitation of the rates of freights and lares, and the rates of gas and water, and other services and commodities, per- formed and furnished by such corporations. In case of the selection of any persons or officers to regulate such rates, they shall be selected as may be provided by law, which shall in no case authorize the naming of any such person or officer by any corporation. Referred to Committee on Corporations other than Municipal. XDDOATIOK. Mr. McCOMAS introdnced the following proposed amendment to the Constitution, relative to education : Abticlr IX. RDCCATION. SicnoK 1. A Superintendent of Public Instniction shall be elected by the qualified electors of this State at the same time the Governor is elected. He shall hold his office for four years from the second Monday in January next after his election. His duties shall be prescribed by law. He shall receive an annual salary of two thousand dollars, to be paid qoarterly. Sia 2. The Legislature shall encourage, by all suitable means, the promotion of intellectual, scientific, moral, and agricultural improve- ment. The proceeds of all lands that may be grunted by the United States to this State for the support of schools, which may be sold or dis- posed of, and the five hundred thousand acres of land granted to the new States, under an Act of Congress distributing the pro^eds of the public lands among the several States of the Union, approved A. D. one thou- sand eight hundred and forty-one, and all estates of deceased persons who may have died without leaving a will or heir, and also such per sent, as may be granted by Congress on the sale of lands in this State, iball ba and remain a perpetual fund, the interest of which, together with all the renta of the unsold lauds, and such other means as the fca. Xt,; Legislature may provide, shall he inviolably appropriated to the support of common schools throughout the State. Sxc. 3. The Legislature shall provide for a system of common schools, by which a school shall be kept up and supported in each district at least three months in every year, and any district neglecting to keep up and support' such a school may be deprived of its proportion of the inter- est of the public fund during such neglect. Sic. 4. The Legislature shall take measures for the protection, improvement, or other disposition of such lands as have been or may hereafter be reserved or granted by the United States, or any person or persons, to thisBcate, forthe use of aUniversity; and the funds accruing from the rents or sale of such lands, on from any other source for the purpose aforesaid, shall he and remain a permanent fund, the interest of which shall be applied to the support of said University, with such branches as the public convenience may demand, for tbe promotion of literature, the arts, and sciences, as ma^ be authorized by the terms of said grant. And it shall be the duty of'^the Legislature, as soon as may be, to provide effectual means for the improvement and permanent security of the funds of said University. Sic. 6. All instruction in the common schools shall be in the English language, and no other language shall be there taught; nor shall instru- mental music be taught in them. 8ic. 6. No religious sect or sects shall ever have use of or control any part of the school or University funds of this State. Sro. 7. In order that every child in this State may have a fairoppor- tunity to learn the privileges, rights, duties, and obligations pertaining to freemen, the Legislature shall, by appropriate legislation, cause to he published, at the expense of the State, in one well-hound volume of con venient size, the Declaration of American Independence, the Constitu- tion of the United States of America, the Constitution of the Stato of California, and Washington's Farewell Address, and shall cause the same to be distributed, free of cost, to the children in the common schools, and to be used and taught therein as a text-book, and also in the University of California. Referred to Committee on Education. HISCXLLAMIOna PBOVISIOMS. Mr. McCOMAS introduced tbe following proposed article eleven, for a revised Constitution, on miscellaneous subjects: Articli XI. HISCXLLANXOIIS rROVISIONS. SccTioN 1. The City of Sacramento is hereby declared to bo the seat of government of this State, and shall so remain until changed by law; but no law changing the seat of government shall be valid or binding unless the same be approved and ratified by a majority of the qualified electors of tbe State voting therefor at a ^neral Slate election, under such regulations and provisions as tbe Legislature may provide, submit- ting the question of change to the people. Sro. 2. Any citizeu of this State who shall, after the adoption of this Constitution, fight a duel with deadly weapons, or send or accept a chal- lenge to fight a duel with deadly weapons, either within this State or out of it, or who shall act as second, or knowingly aid or assist in any manner those thus offending, Ehall not be allowed to hold any office of profit or enjoy tbe right of suffrage under this Constitution. Src. 3. Members of the Legislature, and all officers, executive and judicial, except such inferior officers as may be by law exempted, and Justices of the Supreme Court shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirma- tion : I do solemnly swear (or affirm, as the case may be,) that I will support the Constitution of tbe United States, and the Constitution of the State of California, and that I will faithfully discbarge the duties of the office of , according to the best of my ability. And no other oath, declaration, or test shall be required as a (Qualification for any office or public trust, other than those in this Constitution prescribed. Site. 4. The county governments now established by law are hereby confirmed. The Legislature may alter them from time to time, or establish new ones, as occasion may require; and the system of county governments shall be as nearly uniform as practicable throughout the Stete. Sic. 5. The Legislature shall provide for the election of a Board of Supervisors in each county in this State, to consist of not less than three nor more than five members, and to be elected by districts. The Super- visors shall jointly and individually perform such duties as may be pre- scribed by law. Src. a. All officers whose election or appointment is not provided for by this Constitution, and all officers whose offices may be hereafter cre- ated by law, shall be elected by tbe people, or appointed, as the Legisla- ture may direct. 8io. 7. When the duration of any office is not provided for in this Constitution, it may be declared by law, and if not so declared such office shall be held during the pleasure of the authority making the appointment; nor shall the duration of any office, not fixed by this (jonstitulion, ever exceed four years. Src 8. The fiscal year shall commence on the first day of July. Skc. S. Each county, town, city, and incorporated village shall make provision for the support of ita own officers, subject to such restrictions and regulations as tne Legislature may prescribe. Src. 10. The credit of tbe State shall not, in any manner, be given or loaned to or in aid of anv individual, association, or corporation ; nor shall the State, directly or fndirectly, become a stockholder in any asso- ciation or corporation. Sec. 11. Suits may be brought against the State in such manner, and in such Courts, as shall be dir^ted by law. Sro. 12. No contract of marriage shall be invalidated for want of conformity to the requirements of any religious sect. ^^But no marriage Digitized by VjO 118 DEBATES AND PROCEEDINGS Friday, hereafter contracted in this State shall be valid between the parties thereto unless a public record thereof be made at the time in such manner as may be provided by law. Sic. 13. All Statej county, township, district, and municipal officers, except as herein otherwise expressly provided, shall be elect«i and hold office for the term of four years from the second Monday in January next after their election. Skc. 14. All property, real and personal, owned by either husband or wife before marriage, and that acquired by either of them afterwards by gift, or descent, shall be their separate property. Skc. 15. The homestead, not exceeding five thousand dollars in value, and such other reasonable amount of property as may be determined by law, of all heads of families, shall be exempt from forced sale. Sio. 16. No perpetuities shall be allowed except for eleemosynary purposes. Sec. 17. Every person shall be disqualified from holding any office of profit in this State, who shall have been convicted of having given or offered a bribe to procure his election or appointment. Skc. 18. laws shall be made to exclude from office, serving on juries, and from the right of suffrage, those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes. The privilege of free suffrage shall be supported by laws regulating elections, and prohibiting, under adequate penalties, all undue influence thereon from power, brib- ery, tumult, or other improper practice. Sic. 19. Absence from this State on business of the State or of the United States shall not affect the question of residence of any person. Sbc. 20. A pluralitv of the vot^ given at any election shall constitute a choice, where not otKerwise directed in this Constitution. Skc. 21. There shall be a general election in this State on the first Wednesday in September in the year eighteen hundred and seventy- nine, for the election of State, county, township, district, and municipal officers ; and one such election for the same purpose on the first Wednes- day in September every four years thereafter. Referred to Committee on Miscellaneous Subjects. MURICirAL CORPORATIONS. Me. KOEL introduced the following proposed amendment to article four of the Constitution, relative to municipal coqmrations : Sec. 37. It shall be the duty of the Legislature to provide for the organization of county, city, and town governments. But such muni- cipal corporations shall have no power to contract debts, or incur liabili- ties in excess of one per centum of the assessed value of the property within the limits of such municipal corporations. Referred to Committee on City, County, and Township Organizations. RDOCATION — TEXT- BOOKS. Mr. O'SITLLIVAN introduced the following proposed amendment to the Constitution, relating to education: Besolved, That the following provisions relating to education should be embodied in the new Constitution: Section — . The Legislature, at the first session after the adoption of this Constitution, shall provide by law for the compilation and printing of a complete series of ^hool text-books, all the necessary mechanical work connected therewith to be done in the State Printing Office. The text-books thus compiled and printed shall be the only text-books used in the public schools of this Slate afterthe first day of January, eighteen hundred and eighty-one, and sbaJl be furnished to all scholars in said schools free of cost. Skc. — . There shall be a Department nf Agriculture and a Depart- ment of Mechanics attached to the State University. And there shall be suitable professors in said University to give practical instruction in agriculture and the mechanical arts. Sec. — . Lectures shall be delivered, at stated periods, in the State University, the Normal School, and in each one of the public schools of the State, by one of the professors or teachers thereof, upon the subject of labor, its necessity ana importance in the promotion of human hap- piness. Sec. — . No sectarian instruction shall be imparted in the State Uni- versity, the Normal School, or any of the public schools of this State, and no sectarian books, or books having a sectarian bias, shall ever be used in the State University or the public schools; nor shall any money ever be appropriated for the support of religious or denominational schools. Referred to the Committee on Education. ROAD TAX. Mb. O'SULLIVAN introduced the following proposed amendment to .. the Constitution, concerning road tax: ',^^_ BeDolved, That the following provision concerning a general road tax i^W^ should be embodied in the Constitution: Skctiok — . It shall be the duty of the Legislature, after the adop- tion of this Constitution, to levy a special road tax upon the taxable property of all persons in this State, and appropriate the same to the building of bridges and the improvement of public roads in the differ- ent counties of the State, under such rules and regulations as the Legis- lature shall provide ; and no law shall be passed authorizing a poll tax for, or requiring the personal service of any portion of the people on, public roads. Referred to Committee on Revenue and Taxation. REVENUE AND TAXATION. Mr. OVERTON introduced the following proposed amendment to the Constitution, relating to revenue and taxation : Se-'olved, That the Constitution be so framed as to require all persons to make a statement, on the first Monday of March of each year, under oath, of all property owned or controlled by them in this State subject to taxation. Referred to Committee on Revenue and Taxation. Mr. REDDY introduced the following resolution to incorporate a new section in the Constitution, under miscellaneous provisions: Article XI. Seaolved, That the following section be incorporated in the Constitu- tion: That any citizen of this State who shall, after the adoption of this Con- stitution, join any mob or other unlawful aasemblv of persons for the pur- pose of destroying human life or property, or who shall knowingly aid or assist those thus offending, shall not be allowed to hold any office of profit, or to enjoy the right of suffrage under this Constitution. Referred to Committee on Miscellaneous Subjects. legislative dipartment. Mr. SHOEMAKER introduced the following amendments to article four of the Constitution : Amend section two, article four, of the Constitution, so as to read as follows: Sec. 2. The sessions of the Legislature shall be biennial, and shall commence on the first Wednesday after the first Monday of January next ensuing the election of its members, unless the Governor of this State shall, in the interim, convene the Legislature by proclamation. No session shall continue longer than one hundred days. Amend section three, article four, of the Constitution, so as to read as follows: Skc. 3. Members of the Assembly shall be chosen biennially, by the qualified electors of their respective districts, in November, on tbe days of Presidential and Congressional elections, or on the even years ; and their term of office shall be two years. Amenil section five, article four, of tbe Constitution, so as to read as follows: Sec. 6. Senators shall be chosen for tbe terra of four yean, at the same time and place as members of the Assembly ; and no person shall be a member of the Senate or Assembly who has not been a citizen and inhabitant of the State, and of the county or district for which he shall be.cbosen, one year next before his election. Twenty Senators shall be elected at each general election, beginning in eighteen hundred and eighty, and every two years thereafter. Amend section six, article four, of the Constitution, so as to read as follows: Sec. 6. The State shall be divided into forty Senatorial Districts, of compact and contiguous territory, as nearly equal in population as may be ; and each district shall be entitled to elect one Senator, but no city and county shall be entitled to representation exceeding one fifth the whole number of Senators; no county shall be divided in the formation of a district. Amend section seven, article four, of the Constitution, so as to read as follows : Sec. 7. The members of the Assembly shall be apportioned among the several counties on a ratio obtained by dividing the population of the State, as ascertained by the latest United States census, by eighty. Every countv containing one ratio, or fractional part thereof exceeding one half, shall be entitled to one member; every city, or city and county, entitled to more than four members of the Assembly, or tHree Senators, shall be divided into districts; each district to elect its proportion of members of tbe Senate and Assembly according to its population. Amend section ten, article four, of tbe Constitution, so as to read as follows: Sec. 10. Each house shall determine the rule of its own proceedings, and may, with consent of two thirds of all the members elected, expela member; to enforce obedience to its process; to punish for contempt and disorderly conduct in its presence. Amend section sixteen, article four, of the Constitution, so as to read as follows: Sec. 16. Any bill may originate in either house of the Legislatore, and all bills passed by one house may be amended in the other; but no bill shall be so altered or amended on its passage through either house as to change its original purpose. Amend section twenty, article four, of the Constitution, so as to read as follows : Skc. 20. No Senator or member of the Assembly shall, during the term for which ho shall have been elected, be appointed to any civil office of profit in this State which shall have been created or tbe emolu- ments of which shall have been increased by his vote during such tenn; and in no case without first resigning the office he holds, except such offices as may be filled by election by the people. Amend section twenty-eight, article four, of the Constitution, so as to rend as follows : Sec. 28. The enumeration of the inhabitants of this State, taken under the direction of the Congress of the United States, shall serve as a basis of apportioning representation in both houses of the Legislature- Amend section twenty-nine, article four, of the Constitution, so as to read as follows : Sec. 29. The apportionment of members of the Senate and AsBembly shall be fixed by the Legislature, at its first session after the official pub- lication of the census taken under the direction of the Congress of^ the United States, among the several counties and districts, in pursuance of section six of this article. Amend section thirty-one, article four, of the Constitution, so as to read as follows: Sec. 31. Corporations may be formed under general laws, but shall not be created by special Act except for municipal purposes. Each cor- poration shall be subject to such restrictions^ may be prescribed by Digitized by Coogk ^ ■!. .V.^ Oct. 11, 1878. OF THE CONSTITUTIONAL CONVENTION. lid law; and all ^neral laws or special Acts passed pursuant to this section may be alterM from time to time, or repealed. Amend section thirty-seven, article four, of the Constitution, so as to read as follows : Sic. 37. It shall be the duty of the Legislature to provide for the organisation of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit. No city and county, county, city, village, or town, shall ever contract any debt or debts which singly, or in the aggregate, shall exceed five per cent, of the assessed value of the property therein as assessed for State purposes, and then only for purely public purposes. Amend section thirty-nine, article four, of the Constitution, so as to read as follows : Sec. 39. So law shall extend the term of any public officer, or increase or diminish his salary or emoluments, uter his election or appointment. Amend article four of the Constitution by adding a new section, to be known and designated as section forty : Sec. 40. The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative, and judicial departments of the State government, interest on the pub- lic debt, and for the public schools. All other appropriations shall be mtde by separate bills, embracing but one subject. . Amend article four of the Constitution by adding a new section, to be known and designated as section forty-one : Sic. 41. The Legislature may make appropriations of money to institutions organized for the purpose of maintaining orphans who are destitute, but such appropriation snail be applied exdusively to the sup- port of such orphans. Referred to Committee on Legislative Department. JUDICIAL DIPARTHKKT. Ml. SHOEMAKER introduced the following proposed amendments to article six of the Constitution : Amend section two, article six, of the Constitution, so as to read as follows : Sic. 2. The Supreme Court shall consist of a Chief Justice and six Associate Justices. The presence of four Justices shall be necessary for the transaction of business, excepting such business as may be done at chambers ; and the concurrence of four Justices shall be necessary to pronounce judgment. Amend section three, article six, of the Constitution, so as to read as follows : Sic. 3. The Justices of the Supreme Court shall be -elected by the qualified electors of the State at the general election of State officers and members of the Legislature, in November, one thousand eight hundred and eighty. At the first election for Justices of the Supreme Court, three Justices shall be elected, whose terms of office shall be fourteen, twelve, and ten years, respectively, to be determined by lot. Every two years thereafter one Justice shall be elected at the general election for members of the Legislature, and whose term of office shall be fourteen yeare. The Justice whose commission first expires shall be Chief Justice. Any vacancy occurring in the office of Justice of the Supreme Court, District Court, County and Probate Court, shall be filled by appointment of the Governor until the next general election, when a person shall be elected to serve the balance of the unexpired term, and in order that no inconvenience may result to the public service from the taking effect of this Constitution, no officer, either legislative, executive, judicial, or county, shall be superseded or suspended thereby, until the election and qualification of the several officers provided for by this Con- vention, in November, eighteen hundred and eighty. Amend section five, article six, of the Constitution, so as to read as follows : Sic. i. Twenty-three judicial districts are hereby constituted, as now defined by law, whicli may be altered from time to time as the public good may require, by a two-thirds vote of all the members elected to both houses of the Legislature j in each of which there shall be a Dis- trict Court, and for eadi of which a District Judge shall be .elected by the qualified electors of the district, at the general election for State officers and members of the Legislature. The District Judges shall hold their offices for the term of eight years, from the first day of January next after their election. The Legislature shall have nopower to grant leave of absence to a judicial officer, and any such officer who shall absent himself from the State for upwards of thirty consecutive days •hall be deemed to have forfeited his office. Amend section seven, article six, of the Constitution, so as to read as fallows : 8ic 7. There shall be in each of the organized counties of this State a County Court, for each of which a County Judge shall be elected by the tjualified electors of the county, at the general election to be held, as provided, for the election of State officers and members of the Legisla- ture. The County Judges shall hold their offices for the term of six yean from the first day of January next after their election. Said Courts shall also have power to issue naturalization papers. In the City ■nd County of San Krancisco, and in counties of one hundred thousand inhabitants and upwards, the Legislature may separate the office of I'refcate Judge from that of County Judge, and may provide for the election of a Probate Judge, who shall hold his office for the term of six yean. Amend section fifteen, article six, of the Constitution, so as to read as Ubm: Bis. 15. The Justices of the Supreme Court, District Judges, and Csiaty Jadge*, shall severally, at stated times during their continuance in omoe, leoeive for their services a compensation which shall not be 1 or diminished during the term for which thev shall have been d, nor for fonr months prior to their assuming the duties of their office; provided, that County Judges shall -be paid out of the county treasury of their respective counties. Amend section nineteen, article six, of the Constitution, so as to read as follows : Src. 19. In order that no inconvenience may result to the public service from tbe taking effect of this Constitution, no officer shall be superseded thereby, nor shall the organization of the several Courts be changed thereby, nor shall the tenure of any officer be changed, unless it expire in the year one thousand eight hundred and seventy-nine, in which case the term is extended till January first, one thousand eight hundred and eighty-one, and until their successors are elected and qualified. Referred to Committee on Judiciary and Judicial Department. SALABIBI or omciRS. Mb. smith, of San Francisco, introduced the following proposed amendment to the Constitution, in relation to increase of salaries of officials : Abticli — . SiCTiOM 1. That the increase of salaries, or compensation, of any State, county, or township officers, elected or appointed, in this State, shall be prohibited by law, during the term of office to which he has been appointed or elected, or any part thereof. Referred to Committee on Legislative Department. BRLIOIOIIS TEACBIKQ IN PUBLIC BCROOLS. Mb. smith, of San Francisco, introduced the following proposed amendment to the Constitution, in relation to religious teaching in pub- lie schools : Abticli — . SiCTioK —I. That no sectarian books or sectarian creed shall ever be allowed in any of the public schools, academies, universities, or colleges in this State. Referred to Committee on Education. MCNICIPAL COBPORATIONa. Mb. STEDMAN introduced the following proposed amendment to the Constitution, in relation to municipalcorporations; Srcxion — . The indebtedness of any municipal corporation shall never exceed in the aggregate five per centum of the value of the property within such corporation, as ascertained from time to time by the tax duplicate thereof, without the consent first obtained to such increase of indebtedness, and the approval of the objects for which the same is created, of at least three fourths of the qualified voters of such corporation, to be ascertained in the mode prescribed by law ; and in no case shall such indebtedness exceed ten percentum of such taxable value. In ascertaining such indebtedness, at any time, there shall be included an amount which, at the rate of seven per centum per annum, will produce a sum equal to the aggregate amount payable by such cor- poration for the rent of property l«is^ to it. This section shall not be construed to prevent any municipal corporation from incurring any indebtedness necessary to complete any work authorized by law and undertaken before the adoption of this Constitution; nor until the first valuation of real estate for taxation after the adoption of this Consti- tution, to prevent the borrowing of money in anticipation of the collec- tion of assessments actually levied; nor shall the restrictions of this section apply to necessary expenditures for military purposes in time of war. Referred to Committee on State and Municipal Indebtedness. TAXATIOK OP CORPOBATIONS. Mb. SWENSON introduced the following proposed amendment to the Constitution, relative to the taxation of corporations : Abticli — . Srction — . The power to tax corporations or corporate property shall not be surrendered or suspended by any contract or grant to which the State shall be a party. Referred to Committee on Revenue and Taxation. TAXATION. Mb. TULLT introduced the following proposed article thirteen for the revised Constitution of the State of California : Abticli XIII. TAXATION. Skction 1. Taxation shall be equal and uniform throughout the State. All private property in the State, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascer- tained as provided by law. The word " property " as used in this article and section, is hereby declared to include moneys, credits, bonds, slocks, dues, franchises, and all other matters and things capable of private ownership, real, personal, and mixed. Sbo. 2. The Legislature shall cause to be levied and collected, annu- ally, a State poll tax of three dollars for school purposes, from every male inhabitant of this State over twenty-one and under sixty years of age, from which tax no one of said class shall be exempt, except idiots and insane persons; and no other poll tax shall be imposed in this State by the State or any political division thereof. Sic. 3. No license tax shall be imposed by this State, or any munici- pality thereof, upon any trade, calling, occupation, or business, except the following, viz.: the manufacture and sale of all kinds of wine, spiritouB and malt liquors; shows, theaters, menageries, sleight of hand performances, exhibitions for profit, and such other business and occu- pations of like character as the Legislature may judge the public peace or good order may require to be under special State or municipal regu- lation and control. I Digitized by Google 120 DEBATES AND PROCEEDINGS Friday. Sic. 4. In the asaeasment and taxation of land the iraproyementa ■ball be separately asecseed, but erowinE crops shall not be; and uncul- tivated land shall be assessed and taxed at the same price as cultivated land of the same quality similarly located. Sio. i. No corporation, except for benevolent, religious, scientific, or educational purposes, shall be hereafter formed under the lavs of this State, unless the persons named as corporators shall, at or before the filing of the articles of incorporation, pay into the State treasury one hundred dollars for the first filly thousand dollars or less stock, and a further sum of twenty dollars for every additional ten thousand dollars of its capital stock; and no such corporation shall hereafter increase its capital stock without first paying into the State treasury twenty dollars for every ten thousand dollars of increase. Sic. 8. There shall be a State Board of Equaliaition in this State, consisting of the Governor, Secretarr of State, Controller, Treasurer, and Attorney-General; said Board shall equalise the valuation of the tax- able property in the State for State purposes, and perform such duties as may oe prescribed by law. The Boards of Supervisors of the various counties of the State shall constitute Boards of Equalization of their respective counties, for county purposes, and discharge such duties as the Legislature may prescribe. Sic. 7. No agreement, contract, or obligation hereafter made or entered into in this State, shall be of any validity whatever, or be enforced in any of the Courts of this State, or be entitled to record, that provides, directly or indirectly, for the payment of the taxes, or any part of the taxes, of the lender nf money, or anything of value, by the borrower, upon the money or things loanenth and thirty-etxlh section grant for common acfaool purpoaea, and the lieu lands granted supplemental to the Slate grant of school lands ; Seventh — The grant commonly known as the Agricultural and Hechanics* Art College grant; KiKhth— The Toeemlte Valley grant; Ninth — The Uaripoea Big Tree Grove grant; Tenth — The nuuiber ol acrea of land so listed or certified to the State under each of mid grants; Kleventh— What nnmber of acre* of land belonging toeachofsnld grants bars been f>o1d or dlspoaed of by the State ; Twelfth — What nnmber of acres of land does the Stateown and hold nndlspoaed of under each of mid grants; Thirtpculh—The total cash value rvcelved by the State for the lands which have been M>ld by her under mid grants. Also, whnt nnmlier of acres of land has the State now in pocsemion, or sold or dla- po«ed of by virtue of her sovereignty, as mlt maiah and tide landa. Also, the total amount received in cash by the State for the sale ofaald lands. Adopted. NKWRPAPEBS. Mb. HUESTIS oflTered the following resolution : Hetoirtd, That tho Sergeant-at-Arms bo and he la hereby Instructed to supply the desks of the newspaper correspondents with a copy of all the printed documents ordered by this Convention. Adopted. Mb. SWENSON offered the following resolution: Jfesolvedf That Jacob R. Freud, of San Francisco, be and be is hereby added to the Committee ou Education. The PRESI DENT. The Chair is of opinion that that resolution is out of order at present. The gentleman must give notice if he wishes to change a standing rule. The committees are all appointed under a standing rule, and that rule cannot be changed excepting by one da^'s notice, and a two-third vote. Mb. BLACKMER. I move that it be referred to the Committee on Rules and Order of Business. Mb. ROLFE. I rise to a point of order. I believe it is out of order to consider that at all. The PRESIDENT. The point of order is well taken. The motion is out of order. THE BULKS. Mb. CAMPBELL, pursuant to notice, offered the following resolution: Retolvtdt That rule sixty be and the same is hereby amended by striking out the words and Bgures "except niiss Sfty, Ulty-one, flfty.two, Afly-|bree, and Sfty-f '~ Digitized by V^-> ty-JvJ," :.J:-.- 122 DEBATES AND PROCEEDINGS Friday, Mr. CAMPBELIj. The object is merely to have the right to suspend the rules, tlie same as any of the others, by a two-third vote. The ayes and noes were demanded, and the resolution was lost, by the following vote : ATtS. A^ers, Harvey, McCoy, B'gg9, Heiskell, McNutt. Blackmer, Hilbom, Moffat, Boggs, Hitchcock, Nason, Brown, Holmes, Ohleyer, Burt, Howard, PuUiam, Campbell, Heustis, Schomp, Caples, Hunter, Shoemaker, Charles, Inman, Stuart, Condon, Kelley, Thompson, Cross, Keyes, TuUy, Crouch, Lame, Van Dyke, Van Voorhies, Dean, Larkin, Dudley, of Solano, Larue, Webster, Eagon, Ijewis, Wickes, Filcher, Martin, of Alameda, Wilson, of Tehama. Freeman, McCallum, Winans. Glascock, McComas, Wyatt— 4S. Graves, HOIS. Andrews, Gregg, Reed, Barbour, Hal^ Reynolds, Barnes, Hetold, Rhodes, Barry, Herrington, Ringgold, Barton, Johnson, Sburtleff, Beerstecher, Joyce, Smith, of 4th District, Belcher, Kenny, Smith, of San Francisco Bell, Kleine, Stedman, Boucher, Lampson, Steele, Chapman, Lavigne, Stevenson, Cowden, Lindow, Strong, Davis, Mansfield, Sweasey, Dowling, Martin, of Santa Cruz , Swenson, Doyle, McConnell, Swing, Dunlap, Mills, Townsend, Edgerton, Moreland, Turner, Estey, Morse, Tattle, Evey, Kelson, Vacquerel, Walker, of Marin, Farrell, Neunaber, Fawcett, Noel, Waters, Finney, O'Sullivan, Wellin, Freud, Overton, West, Garvey, Porter, White, Gorman, Reddy, Mr. President— 78. Grace, • STATIOMERT FOB CORMSPONDKKTS. Mr. REYNOLDS offered the following resolution : Kaolved, That the Committee on Mileage and Contingent Expensee aball furnish to tbo Secretary of State, a lUl of all the accredited newspaper correapoodontB who have been Bs-(if$ned ieata on the floor of this Convention, whicli list shall contain the name of such correspondent and the news[tuper by whom accredited, and that tbo Secretary of State be and be Is hereby autliorized to furnish to such newspaper corrvepondents on such list such stationery as they may require for tlioir newspaper correspondence, not exceeding in value ten doUan to each. Mr. REYNOLDS. I move that the resolution be adopted. I think it but fair that the Convention extend to the newspaper correspondents the usual courtesy extended b^ all legislative bodies. The Legislature has been in the habit of allowing them fifteen and twenty dollars worth, but in order to meet the views oi this Convention, which seem to be in the line of curtailing expenses, I have inserted the sum of ten dollars. Ma. LARKIN. I would rise to a point of order. I think that is proper for the Committee on Mileage and Contingent Expenses. Mb. FAWCETT. I make the further point of order that it is not within the power of this Convention to appropriate money to private men and purposes. I ask for a ruling of the President upon that point. Tbk PRESIDENT. The Chair is informed that it is the usual prac- tice of the Legislature to make this kind of appropriations, yet I should myself think it would not be within the power of the Convention to make them. I think it is not within the power of the Convention to make such an appropriation. As at present advised, I should sustain the point of order, that the resolution is out of order. proposed CHAMOE op BDLI. Mr. WINANS. I rise for the purpose of presenting for the considera- tion of this body a series of resolutions of vital consequence, in my judgment, in determining the character of our future deliberations and action in this body. In order to pass the resolutions it would be neces- sary to modify part of the existing rules. The resolutions, therefore, would not be strictly in order, nor even the reading of them, without ^ving the requisit« notice, but as I have occupied venr little of the atten- tion of this Ixxly, and as it is desirable that I should express the char- acter and purpose of the resolutions, in order that gentlemen may deter- mine whether they will modify the rules to adopt them or not, I ask leave not only to read the resolutions, but to state their character and object, and I hope that the gentlemen will grant it on the present occa- sion. The resolutions are as follows : JZesotved, That the form and order of the present Conilitutlon shall be adopted bv this Convention In the new Constitution formed by It, to the fallowing extent: that the new Coiislitution shall consist of a preamble, to be followed by twelve consecu- tive articles, which shall be numbered, entitled, and have sequence respectively in the same manner, and comprise the same objects, as the twelve articles of the present Constitution. That to theae shall be added such new articles, numbered In proper order alter said twelve, as this Convention shall adopt, after which shall follow the schedule as the'flnal division of the new Constitution. Ittsolvtd Tliat the said preamble and articles shah be considered and acted upon by the Convention in the onler and sequence afureoaid, and no ooe of them nor any Buhject-niatter belouging to any one of them, aball be adopted or diacufsed until all other articles and matters pertaining to those having priority as a/oreaaid ehall have been dispoeed of in their order. Resolvfd, That for the purpose of giving effect and enforcement to the reatdotions aforeaaid, the several committees liaving charge of the matters embraced in said preamble and twelve articles shall make their reports in the order herein named, and none of said committees shall report upon the subject-matter of any of aid articles until all the articles having priority thereto, as aforesaid, shall have been considered and disposc'd of by this Convention ; and that the other committees having charge of mattera not embraced in the said articlee shall report aftemids and in such onler as the Convention sliall determine. Rettivfd, That all rules Inconsistent with the foregoing reeolutions shall be modi- fle«l, or so Car as neceasary revoked, to the extent ofinsuring conformity therewith, Mb. 'winans. The object of these resolutions is apparent on the face of them, it appears to me, but it is a subject that requires some thought. In the first place, sir, we want to make as few changes in the present Constitution as can be made with consistency. No man wants to change the present Constitution just for the sake of change, or unless such change is neoessaiy. No change is necessary in the form, plan, or order of the present Constitution. We ba\'e there the departments into which they are divided, and all the regular sequence and order, such as usually obtains in the framing of a fundamental compact. Let us determine to adhere tu that order and form so far as it extends, and then apply new propositions where they belong, to the extent of the changes we propose to make. Again, as regards the proposition that the committee shall ntake reports in the order named in the present Constitution. The object of that is to prevent confusion. There will be the direst and most inextricable entanglement if things proceed in the order which is now dictated. If members will reflect they will see that not only will committees come in with articles not existing in consecutive form but articles thrown pell mell, one coming in present to another where it should follow it. Not only that, but under the fifteen day rule the articles of the respective committees will come in bv piecemeal. A committee has referred to it a certain subject-matter. That committee is compelled to report in fif- teen days, and the cousequeiice is that there will come in here from one committee one thin^ and from another something else, all thrown together confusedly into one di^ointed mass. Such a plan will never work. It is to obviate that that I proposed the method suggested in these resolutions — that each subject be disposed of before we proceed to the next. That will not consume more time, because it will take the same period of time to discuss these relative propositions and articles in their proper order, as to discuss them in disonler and disconnection and in unnatural sequence. It would take a much longer time to dispose of them under the present rule. If the objection be urged that this calls upon committees to report in regular order, and that they can be com- pelled to do so, I answer that they can just as well report in order as to report pell raell. Moreover, the questions raised, excepting perhaps the declaration of rights, are those which will involve but little contest or confusion. They are not likely to be the debatable points of the con- flict which will be presented here and which will array the antagonism of this body. Again, sir, in regard to the reports of the other committees that consti- tute committees on subjects existing in the present Constitution. This aims at no disparagement, and involves no destruction of their purposes. In a regular turn every subject will come up and be debated. Every subject will have the attention bestowed on it which this body is will- ing to bestow. In view of these facts I have proposed these resolutions, the result of which will be of incalculable benefit. As regards the modification of the rules, I do not see that there can be anv impropriety in that. We have now, perhops, too many rules. Our ruteswcre formed upon legislative precedents rather than upon the par- liamentary law at large. They are to meet the wants of this Conven- tion, and they will grow as time develops them and the deliberations of this body progress. If they stand in the way of these resolutions, and to the extent to which they do, then we should amend the two thirds rule which prevents a real expression of the views of this Convention. Our plan should be to reach the will of the majority. I ask the mem- ben, inasmuch as it cannot be reached until another day, to give con- sideration to this whole subject, and see if in their judgment it will not be well to adopt the suggestion before we get entirely lost in the con- fusion which will ensue if we continue under the present rule. Thk PRESIDENT. The resolution will lie on the table for one day. Mr. HAGER. Mr. President: With the consent of the Convention, I would like to soy a few words in regord to that proposition. It is entirely unnecessary that we should pass any such resolution, because we have a committee appointed now on that very iftatter — the Com- mittee on Revision and Adjustment j and when anj^ proposition comes in here re[>orted by a committee, and is adopted, it will go to that commit- tee for adjustment. The Committees on the Legislative Department, on Preamble and Bill of Rights, on the Judiciary and Judicial Depart- ment, on Miscellaneous Subjects, may report the same matter, but of course, it will only be incorporated in the Constitution under one head. Now, take the Constitution of the State of Pennsylvania, which I think is quite a model ; there all the different subjects are branched off in a way that will be a guide to us here when we come to arrange the matter. After the Convention has adopted them, they go to this committee to be arranged in their proper place; but to endeavor to do it through the committees generally, woiild be useless; it is impossible. . It cannot be done in the way projwsed by the resolution. Mb. winans. I move that these resolutions be referred to the Com- mittee on Rules and Order of Business, with instructions to report as speedily as possible. Digitized by Google Oct. 11, 1878. OF THE CONSTITUTIONAL CONVENTION. 123 Tb( PKE8IDEKT. The gentleman has already given notice of his re9olutions, and they will be on the table one day. Mb. Vfl^AyiS. I withdraw that notice, and ask that they go to the Committee on Rules and Order of Business. Thk president. The gentleman will be out of order, because he hss announced that the resolutions will alter or change the rules. He must, therefore, give one day's notice. Mb. LAIKE. I am in favor of having them immediately printed, so that we can see them at once. Th» president. They are not before the body. Mb. WINANS. I suppose they should be printed. Thi president. Not before they are acted on by the Convention. NOTICS. Mb. WINAN3. I hereby give notice that, on the next day of session of this Convention, I shall move the adoption of the following resolu- tions, or, if necessary, the revocation of those rules which prevent their enforcement if adopted : Resotved, That the form and onter of the present Conttltatlon shall be adopted by this CoDTBDtlon, in the new Constitation funned bj it, to the following extent: that the ni'W Constitution shall consUtof a preamble, to be followed by twelve con- secatiTe articlea, which shall be nnmbered, entitled, and have sequence, respect- iTely, la the same manner, and comprise the same subjects as the tweWe articles of the present Constitution ; that to these sliail be added such new articles, numbered In proper onler after said tweWe, as this Convention shall adopt, after which shall Allow the schedule as the final division of said new Constitution. Baohedy That said preamble and articles shall be considered and acted upon bj thifl^onvention in the order and sequence aforesaid, and no one of them, nor any f1lh|ec^^ultter belonging to any one of them, shall l>e adopted or discussed until all other articles and matter pertaining to them, having priority as aforesaid, shall have been dispoavd of In their order. Bttahtd, That for the purpose of giving effect and enforeement ti^ the mlea afore- gsid, the several committees havicg charge uf the matters embraced In the said pre- tmble and twelve articles stuill make their reports iu the order herein named, and Done of said committees shall report upon the subject-matter of any of said articles Qotll all the articles having priority thereUi.as afure8aid,8hall have been considered and disposed of by this Convention, and that the other committees having charge of matter not embraced in said articles sbatl report afterwards and fu sach order as this Convention may determine. iZeioIeaf, That all rales inconsistent with the foregoing resolnlions shall b« mod- ified, or, BO fiiT as necessary, revoked, to the extent of insuring oouformlty therewith. MRWSPAPRBS. Mb. REYNOLDS offered the following resolution: Baolvtdy That each member of this Convention be and he Is hereby authorized to order not more than daily newspapers or their equivalent cost In weeklle>mmittee 00 Mileage and Contingent Expenses with a list of the same. Said committee sliall todit all Idlls for newspapers so furnished at the end of each four weeks of the Con- vention. Mb. BEERSTECHER. I move to amend the resolution so that it shall read that " each gentleman shall pay for his own newspapers." Ue. LARKIN. I move to lay the resolution on the table. Carried. NOTICKS. Uk. west. Mr. President : I hereby give notice that I shall move, at the next session of this Convention, to amend rule seventy-three, by amendingsubdi vision eight to read : " On Education, to consist'of thirteen members." Laid over one day, under the rule. Mr. NOEL. Notice is hereby given that I will move, on the twelfth instant, to amend rule fifty-two, so that it shall read : " Propositions and resolutions mentioned In the last foregoing rule shall embrace but one subject.. They shall be read once by title when introduced, and then referred without debate to the appropriate committee." Laid over for one day, under the rule. Mr. McCALLUM. Notice is hereby given that I will, on to-morrow, or as soon as the motion can be heard thereafter, move to strike out rule sixty, and insert as follows: Rule 60. — No standing rule or order of the Convention shall be rescinded or changed without a vote of a majority, and one day's notice being given therefor, but a rule or order may be suspended temporarily by a two-thirds vote of the members iiresent. ■ Laid over for one day under the rule. PAT DDRIIiO ABSKKCR. Mr. REYNOLDS offered the following resolution : Baobitd, No member tliall receive pay for any week day on which he has not •ctoally attended the Convention, except In case of sicknesa, or when he is absent ra committee duty, or upon adjournment over of the Convention. Tbb PRESIDENT. The Chair decides that resolution out of order. Mr. REYNOLDS. I appeal from the decision of the chair. Mk HUESTIS. I move to lay the appeal of the gentleman on the table. Mb. REYNOLDS. I hope the gentleman will do me the favor to withdraw that motion to lay on the table. This appeal has been taken once or twice. Mb. H (TESTIS. I will grant it. I withdraw the motion. Mb. REYNOLDS. I thank the gentleman. Thr president. The Chair decides the resolution out of order, on thecround that it is in violation of the statute. Ml. HUE8TI8. Can one member appeal from the decision of the OiaSrT Mw STEDHAN. I also appeal. Ms. BARNES. I second the appeal. T«R PRESIDENT. The question is. Shall the decision of the Chair Xaad as the judgment of the Convention? Kasers. Barbour, Stedraan, and Barnes called for the ayes and noes. K*. EAGON. I would ask for information. M^ judgment is, that a ""~i een a vote taken iipon it yet. Thk PRESIDEN'T. That question can only be decided by an exami- nation of the Journal. Mr. BARNES. My recollection of that matter is, that when the pro- pisition was advanced, it was decided by the President that it was out of order, just as it has been decided this morning. Mr. BARBOUR. That was on the question of adopting the rule pro- IK)Bed by the gentleman from San Francisco, and the laying on the table of the appeal. There was no motion to indefinitely postpone. That was upon rule sixty-five, and it was ]>ostixined to be inserted as rule seventy- three. • Mb. LAINE. My recollection is quite distinct that this matter was indefinitely postponed three davs ago. Mb. BEEBSTECIIER. That is my recollection. Tbk president. The Chair can only decide that this question has been indefinitely postponed; but that it is within the power of the Con- vention, by a majority vote, to take it up again. Mr. REYNOLDS. Mr. President: There was never any motion made or entertained to indefinitely postpone this question. Thr president. The gentleman is out of order. The motion is out of order. Mb. REYNOLDS. I move now that we take up this motion. NOTICR. Mr. NOEL. I give notice that I will move, on the fourteenth instant, to amend rule flfty-two, so as to read : " Resolutions and propositions mentioned in the last foregoing rule shall embrace but one suoject ; they Bhall he read once by title when introduced, and then referred, without debate, to the appropriate committee." abodt pat. Mr. TULLY offered the following resolution : Rrtdved, That any gentleman on this floor wishing to donate bis per diem may l»e allowed to do so. Mr. REYNOLDS. I ask for the reading of my resolution. The Secretary read : Kaolred, No member shall receive pay for any week day on which ha has not actually attended the Conventiun, except in case of sickness, or when he Is absent on committee duty, or upon adjournment over of the Convention. Mr. van dyke. Won't it be necessary to reconsider the vote by which that proposition was Uid on the table? Mb. REYTfOLDS. That motion was not laid on the table. The appeal was laid on the table. Thr PRESIDENT. The question now is whether the Convention will take up this resolution. The question was put, and the Convention refused to take up the resolution. ADJOUBNMKNT. Mr. EDGERTON. I move that the Convention adjourn until two o'clock on Monday. Mr. white. I move to lay the motion on the table. Thk president. That is the first time the Chair ever heard a motion to lay a motion to adjourn on the table. [Laughter.] Mb. EDGERTON'S motion to adjourn until Monday was lost. The hour having arrived, the Convention took a recess till one o'clock r. u. ArTRRNOOX SKSSIOK. The Convention reassembled at one r. u., the President pro tern, in the chair. Roll call dispensed with. PAT DCRINO ABaRMCE. Mr. STEDMAN. Mr. President: I have a resolution to offer, and before it is read I would ask that no gentleman move to lay it on the table, because I desire to have a vote on it : Jiaolred, That after Saturday, October twelfth, no certificates of pay to any officer or member shall cover any period of absence from any session, with or without leave of the Convention, except in case of sickness, or on committee duty, or where any officer who may be absent shall provide a substitute. Mr. STEDMAN. I move that the resolution be adopted, and I call for the ayes and noes. Mr. ROLFE. I move that the resolution be indefinitely postponed. Mr. CAMPBELL. Under the rule the resolution cannot be voted on. It has to be referred and take its regular course. The PRESIDENT pro tem. The point of order is well taken. Ma. STEDMAN. I move that the resolution be referred to the Com- mittee on Rules. Digitized by Google 124 DEBATES AND PROCEEDINGS Friday, Mb. TULLT. I raise the point of order tbat the subject has been ruled out two or three times. This Convention has no control orer the pay or per diem of the members of the Convention. Thk president. The resolution will go to the Committee on Rules. Mb. WELLIN offered the following resolution : Auolvflcf, That ft fine of ton dollan be nnd 1« hereby Imposed upon memben for each and every day*i abeence tmm thii Conveutlon. except in caae of slckneei or abeence on oommittoe duty. Mb. FILCHER. I would like to inquire what order of business we are working under. Thb president pro tem. Miscellaneous. [Laughter.) Mb. HUESTIS. I move that the resolution ofl^red by the gentleman from San Francisco, Mr. Wellin, be referred to the Committee on Rules and Order of Business. Carried. PAT or PAOKS. Mb. HILBORN presented the following report: Ha FaBincirr: Tour Commiltae on Mileage and Contingent Bxpenaea, to whoDl wu referreil reflulution Iwenty-eeren, respecting the paymfnt of eighteen dollttra to W. F. (jiermaine, fur senricee as Page during the temporary organfsiitton of this Cunrention, lure tiad the Mine under consideration, and herewith report the same back, with a recommendation tbat it be adopted. Also, resolution number thirty-flTe, mppctiiig the payment of fifteen dollan to Edwin H. Mori is, forservtcee as Page up to the oiueof the permanent organliation, and ncommend tbat the same be adopted. 8. 0. BILBOBN, Cbalnnao. Mb. BEERSTECHER. I would inquire whether these Pages were appointed by the Governor to do this duty T Mb. HILBORN. I will say that the other young gentleman was one of the Pages of the Assembly, an4 they were designated by the Governor to perform that duty until the organization of the Convention. They performed that duty, and these resolutions simpiv provide for their pay. Mb. BEERSTECHER. I move that the resolutions be re-referred to the committee, and that they make a further report as to how much haa already been expended on the Pages, and how many Paf;ee have already been paid. I believe six or eight have already been paid. Mr. HILBORN. The committee have no mfnrmatinn to that effect. This is the only resolution that has been before our onnimittee. I am satisfied that these young gentlemen were designated by the Governor. Mb. HAGER. If he nas certified to that fact, I suppose that is all that can be done. The Chairman says that the Governor baa certified to their appointment. Now, it matters not whether we pay six or eight, if he has gone through the regular channel. Mb. HILBORN. I am informed that there are only two who have been previously paid; that there were four during the temporary onranization. The motion to recommit was lost. The resolutions were adopted. ADDITION TO COMIIITTBB. Mb. FILCHER offered the following resolution: Kaolved, That the name of William P. Grace, of San Francisco, be added to the Committee on State Institutions and Public Buildings. Mb. FILCHER. Mr. Grace is a builder and an architect, and his services on the Committee would be valuable. I ask the reference of the resolution to the Committee on Rules and Order of Business. So ordered. BBPOBTIKO OF THE DKBAT1CS. Mb. HILBORN presented the following report : Ma. Prrsiortt Yonr Committee on Mileage and Gontingvnt Expenses, to whom were referred Rosolutions numbers twenty-three, twenty-four, and twonty-flTe, all relating to the employment of Phonogreiiliic Reporters fur this ConYentlon, hare had the same under cunsidpration, and herewith report the same bacli, with a recom- mentlation that thpy be not imssed. In the opinion of this committee. It is not expedient to report the proceedings of this GonTentiou at the expense of the State It Is Impoesible to ascertain the exact cost of reporting and printing onr proceed- ings, but the sum would necetisarily lie rery large. If the Constitution wliich this body shail frame is rejected by the people, then the reports would lie useless, and the money they cost wili be thrown away. If, on the other hand, we are succmsfol in framing a Constitution which is adopted by the people, then private enterprise will produce a report of our proceedings which is likely to be better than one produced onder direction of this CouTention, and with- ont expense to the State. 8. 0. HILBORN, Chairman. Mb. LARKIN. I move the adoption of the report and the aoncur- rence of this Convention with the report. Mb. ROLFh~ I move as an amendment that the resolutions be referred to the Committee on Printing and Reporting, with instructions to ascertaiu what ex[>ense will be involved. As I understand it similar instructions were given this Committee on Mileage and Contingent Exfienscs, which I see they have not complied with. From the reading of the report the committee do not appear to have complied with the instructions of the Convention. If I remember, the instructions were that they should ascertain the probable cost. They seem only to report their ideas as to the propriety of reporting the debalea at all. If we ascertain the probable cost by a careful investigation by the proper com- mittee, it may be that the Convention will conclude to have a report of the proceedings of the Convention, at least of the debates snbsequent to the present time — I mean a report of the debates when we get to work on the Constitution itself. I therefore make the motion that it be referred to the Committee on Printing and Reporting, with instructions to report the probable cost. Mb. BIGGS. I am very much opposed to the motion. That question has been brought up time and again before this Convention. It has been voted down repeatedly. I liope the report will be adopted. This house has had several votes on that There was over a hundred mem- bers voted against a Phonographic Reporter. It has been re-referred and re-referred. 1 think bythe timethisConventiongelathrough priDlingall the propositions for amendments to this Constitution, they will have a freat deal to pay for, and there will not be much left to pay reporlen. am op|iu«ed to the motion of the gentleman from San Bemanlino, Mr. Rolfp, and insist on the motion being adopted by the gentleman from El Dorado, Mr. Larkin. The motion to refer was lost. ADJODBXMBRT. . Mb. EAGON. Mr. President : With the indulgence of the Con- vention, before we enter into the calling of the ayes and noes on the adoption of the report, I desire to make a motion, and state my reasons for it. It is a motion that when we adjourn to-day, we adjourn to meet at two o'clock p. M. on next Monday. Now, air, 1 wish to say a word as to why I make this motion. It is well known that there are gentle- men here who have business to attend to at home, and others who desire lo see their familira, and we have been here now for two weeks. There is no particular necessity for remaining in session to-morrow, and all we ilo is ueaping additional expenses upon the State. These gentlemen desire to be away for a day, and if there is no important business to be done, I do not think that our constituents would think it wrong at all for us to adjourn, for the purpose of attending to our private business. It is nut expected that we, as representatives of the people on this floor, are to neglect entirely our own business. We ouzbt to have a little time to go to our homes, and I believe that the people of the Slate will be well satisfied with our action in that respect. I hope that this motkin will prevail at this time. Mr. BEERSTECHER. I rise to a point of order. A motion to adjourn to a particular time is not a privileged question. There is a motion before the house already. Mr. EAGON. I asked the privilege of the house to make the motion if there was no objection. Ma. BEER.STE('HER. I object. The PRESI DENT pro tem. The motion was made without objection. The Chair will put the question. All those in favor of the motion will, when their names are called, say "aye;" those opposed, "no." The roll was called, and the motion prevailed oy the following vote: Ayers, Heiskell, Ohleyer, Barbour, Herold, Overton, Barnes, Hilbom, Porter, Barry, Hitchcock, Pulliam, Barton, Howard, Reed, Belcher, Hughey, Reynolds, Berry, Inman, Ringgold, Rolfe, B'Kgs, Johnson, Blackmer, Jovce, Schomp, Boggs, Kelley, Shoemaker, Boucher, Kenny, Smith, of 4th District, Brown, Keyes, Smith, of San Francisco, Campbell, Laine, Soule, Chapman, Lampson, Stedman, ("harles, Larue, Steele, Cowden, Lavigne, Strong, Dean, Lewis. Stuart, Dudley, of Solano, Lindow, Swenson, Dunlap, Mansfield, Thompson, Eagon, Martin, of Alameda, Townsend, Edgerton, Martin, of Santa Cms , Turner, Farrcll, MoCallum, Vacquerel, I'awcett, McFarland, Van Dyke, Freud, McNutt, Van Voorhies, Garvey, Mills, Walker, of Marin, Glascock, Moffat, Waters, Grace, Morse, Wellin, Gregg, Nelson, West, Hagcr, Neunaber, Winans, Hale, Noel, Mr. President— 91. Harvey, NOKit. •Vndrews, Gorman, Reddy, Beersteoher, Harrison, Rhodes, Bell, Herrington, Shurtleff, Burt, Holmes, Stevenson, Caples, Huestis, Sweasey, Condon, Hunter, Swing, Cross, Kleine. Tullv, Crouch, Larkin, Tuttle, Davis, McOomas, Webster, Dowling, McCoy, Wickes, Doyle, Morcland, White, Evey, Filchcr, Nason, Wilson, of Tehama, O-Sullivan, Wyatt— 40. Finney, BKPOBTINO THK DKBATKS. [Mb. EDGERTON in the chair:] Mb. BROWN. I would like to hear read the resAlutions under which the committee have made this report. TiikSECRET,\RY read the reeolutions which had been referred to the Committee on Mileage and Contingent Expenses, as follows : (Offered by Mr. McFARLAND :) WuKasAS, It is of the greatest importance that the notes of the proceedings of this Convention should be taken in full, in order tbat the same may be published la case the Constitution shall be adopted by the people; ihv^fore, be it digitized by Google Oct. 11, 1878. OF THE CONSTITUTIONAL CONVENTION. 125 RtMlredf That one ofBcial reporter ihall be elected, who shall have power to aMHiJDt one awlftant eacli to receive a per diem of ten dollan. The ilutfeti of the ofllcml reporter and bis aaslstant shall be to take down In short- hand, TerUitim, all the debate* and proceedings of the Convention, from the begin- ninff tu the end. The official reporter shall be re<}(ilred to give a good and sufficient bond In the Slim of ten thous;ind dollars that ho will, upon the order of this Convention, at any time.orapon the order of the Legislature, or upon the t-fquestof any member of Ibis Convention, write out In tnll or In part, as may be directed, the debates and pro- ceedings of the Convention, at a cost not to exceed twenty cents per folio for tran- scribing. (Offered by Mb. SMITH, of Kern : ) Raalrtd, That there be elected by this Convention an offlclal shorthand - re-' porter, whose duty it shall be to report such debates as may be made upon the fol- lowing Ipading questions, to wit ; 1st. Chinese Immigration. 2d. Taxation and finance. *1. The Judiciary. 4th. State and Municipal Indebtedness. 5th. Education. 6tli. ^bits, County, and Township Organization. 7th. Kailroada and other Corporations. nh. Water and Water Rights. 9th. Siiifrsge. Provided^ the expense of sach reporting shall not exceed six thousand dollars for the session of the Convention. (Offered by Mb. McCALLUM:) Sesolrtd^ That a Phonographic Reporter and an assistant should be appointed to report and transcribe the proceedings of this Convention ; provided, that such ser- vicee can be fd*ta.ined on satisfactory terms to the Convention. B^tolrtd furiher, That the committee heretofore appointed on Plionographic Reporters is herel'y instnict(>tl to ascertain oti what terms such services can be obtained, and report thereon by resolution or otherwise ss soon as practicable ; such report to Includo the per diem, the amount per folio fur transcribing and cost of isdexing, and if printed, when and on what terms can the same be placed on the deslts of the members. Ms. BARNES. I think, and all the gentlemen will agree with me, that reeolutioiu of this character, when submitted to a committee, arc entitled to fair treatment. I mean fair treatment in the parliamentary sense. The resolutions, all of them, look favorably upon the appoint- ment of an official reporter. None of them are arainst it; and the romtnittee was requested by the resolutions, if I understand them, to inquire and report to this Convention what the coat of this thing shall be. Now I submit, Mr. President, that this has not been done. The committee have ignored the resolutions, and have undertaken to dispose of the question in a manner in accordance with their own views. These I gentleman were not requested to give us their opinion as to whether it was desirable or jindesirable to have official reporters of this Conven- tion. They were simply required to find out and let us know what it would cost to do the work. I hope that the report will not be accepted. I move that the report of the committee be recommitted, with instruc- tions to them to comply with the orders of this Convention. Mb. McCALLUM, The committee had a perfect right, so far as that i» concerned, to report as they have reported. The gentleman from the First District, Mr. Barnes, is in error in supposing that the first of the resolutions offered by mc had been adopted. I drew that resolution, and the intention was to adopt the first resolution first, and after that had been adopted then adopt the second, and have the committee named ascertain the facta referred to in the second resolution. But, as to the reference to the Committee on Contingent Expenses, they had the right •« Report as they have, because the Convention had not adopted any- thing in regard to their action. I have said nothing upon this question so far, and desire to say but a word now. It is not true that there has been any test vote upon this question. The only question was, "That the Convention now proceed to elect a Phonographic Reporter," and upon which the gentleman from the First District, and all those who favor having the reports, with scarcely an exception, voted " no," on the proposition that we were then to proceed to an election of a re- porter. I was opposed to that, with many others, because I believed we ought to know the terms that could be obtained. Therefore I offered ihis resolution which was last read, which, if gentlemen will remember, was substantially this: that a Phonographic Reporter and his assist- ant shall be selected, provided their services can be obtained on satis- .factoiT terms to the Convention. Then follows the second resolution, providing that the committee heretofore appointed upon this subject should be required to ascertain the cost of such transcribing, the cost of indexing, which we never learned anything about heretofore, the cost of the whole work of the reporting of the Convention. It does not propose that we shall have a reporter under any circumstances, but only in case his services can be obtained on satisfactory terms. If it did I would vote against it. If this motion to adopt the report is lost, I propose to call up my reso- lution.«, so that we can take a test vote, which we have never yet had, on the proposition whether we are going to have a Phonographic Re- porter on any terms. The idea that if the Constitution should be adopted then private enterprise will get out something in the shape of a report — that private eateiprise could possibly reach it — seems to me to be very inconsistent in itself. It would be absolutely impossible. Now, Mr. President, when the Constitution is adopted it will be too late. If reporters are to be elected in any Constitutional Convention, of course it must be decided beforehand whether the rejwrt ought to be niade. It is a thing which necessarily you must take your chances on, whether the Constitution will be adopted or not. My distinguished friend seems to rely upon the argument that it is doubtful wheflier the Constitution will be adopted, but if we wait until that is decided', tlien thequestion can never come up as to whether there ought to have been a report or not. It must be decided now if the report is to be made; and so 6ir as the probabilities are contremed, I take occasion to say that I mtertain not one doubt about the adoption of the Constitution which will be presented to the people by this Convention, unless the two extremes in this Convention should fail to agree upon any document to submit to the people. Mr. McFAKLAND. Mr. President: I believe I introduced the first resolution which was referred to the committee. That resolution simply provides that two reporters shall be elected ; that they shall keep short- hand notes of all the proceedings and debates of the Convention ; that they shall report the whole or any part in longhand writing when required either by this Convention or by the Legislature, or Dy'any member of the Convention. Now, that is all that it provides. There is no question about the cost. It is simply twenty dollars a day. Now, the report of tho committee, to the effect that if we want a report here- after private enterprise will furnish it, is certainly, upon its face, foolish. We cannot get a report of the proceedings of this Convention after the Convention is over, unless you have taken it during the progress of the Convention. Now, this proposition does not include the traniwribina; or the publi- cation. It simply provides for a state of things upon which hereafter, if you choose, you can have the reports transcribed and published. If you adopt the report of the committee, you simply prevent any founda- tion for any reports hereafter, whether the Constitution be adopted or whether it be not adopted. The proposition is simply to employ two shorthand reporters at twenty dollars a day to take down the debates and proceedings, to b$ transcribed and published in whole or in part hereafter, as the Convention may order, or the Legislature, or any par- ticular member who desires to have any particular portion of it tran- scribed. That is all there is of the proposition. We know what it will cost. If we choose to have it transcribed and published hereafter, that is a matter for the future. Mb. LARKIN. We understand it fully. If we arc going to do any- thing, let's do it. Let us fix it positively for a definite sum. Now, I look uiion my motion as one that will bring a test vote. I move to indefinitely postpone the whole subject-matter. Thb president. The question is on the motion to recommit, upon the ground that the report is not in compliance with the resolutions referred to the commiftee. The merits of the question are not under discussion. Mr. brown. We have heard that there has been nothing presented by this committee, jn accordance with the instructions which they received as to that resolution. Now it is highly probable to me that several of the members of this body were absent when the instructions were given. That committee was required to ascertain the amount of expense, not only of reporting, but of transcribing; and it was the wish of the members of this body to know, so far as could be ascertained, the entire expense connected with this work. The committee are supposed to have investigated, and they find the expense to be beyond what they hod anticipated. They say they cannot tell what the exiiense will be, but that it will be large. AnS then they advise something, perhaps, that was not exa<'lly required — that we have none such. Now, I am under the impression it was their right, as they could not give us the cost, to tell us what they had learned of the extent of expense. Mr. AYERS. I think, Mr. President, if this Convention requires the information which these resolutions call for, that the subject-matter should be referred to the proiicr committee. I think that the Commit- tee on Mileage and Contingent Expenses have made all the examination they could make. I do not suppose that that committee was appointed with a view to their knowing anj'thing about these technical questions. I submit — I will not do it myself, because I em a member of tnat com- mittee— that this whole matter can be cleared up if some gentleman will move to refer it to the Committee on Reporting and Printing. If not, I think you had better discharge that committee. Mr. McCALLUM. That is the motion I wish to make; that this whole matter be referred to the Committee on Reporting and Printing. Mr. BARNES. 1 accept the amendment. , Me. JOHNSON. Mr. President: There is no question but that the foundation of our constitutional structure should oe upon the basis of economy. I fully approve of that position, but at the same time there are other matters to be considered. We sit here as a Constitutional Convention, not as a mere legislative body ; not for a day ; not to enact ephemeral laws, but to frame a Constitution, which, if adopted, is to govern the people of California to-day and their descendants. There is no telling, sir, now long this Constitution, if it is ratified b^ the people, may last. It may last for half a century. Those rude miners who sat in Convention in eighteen hundred and forty-nine, came together and put forth a Constitution which has stood the test of nearly thirty years. Now, I am not in favor of the great State of California standing m the background. I fully realixe the fact that those great imperial Slates of this Union that have recently adopted Constitutions, have also hod their debates published for future reference, and it seems to mo that our State should take the same position, unless this economical spirit prevails to such an extent as to preclude us from voting for a Phonographic Reporter. Now, it is said that some gentlemen may erect monuments for them- selves ; that they are desirous of having these debates published for that purpose. Well, that might to some extent be proper, but that argument would not govern me at all. Thr president. The question is on referring the whole matter t» the Committee on Reporting and Printing. Mb. JOHNSON. I am in favor of referring these resolutions to that committee, and it occurs to me that the resolution of the gentleman from Sacramento, Mr. McFarland, is the only tangible one that has been suggested before this Convention. I shall, therefore, vote to recom- mit and against the adoption of tho report. Mb. hale. Mr. President: I wish to add one word to what has been said on behalf of the recommitment of this subject-matter of reporting. The specific reason that I wish to assign is, that the house is not full to-day. There are a very large number of members excused Digitized by VjOOQ IC 126 DEBATES AND PROCEEDINGS Friday, one way aod the other — probably thirty members absent. Mr. Presi- dent, I have not any doubt whatever that when this Convention really expresses its judgment upon the subject by a majority vote, it will favor the adoption of a reasonably economic plan of reporting the debates of this Convention. I believe that every member of this body who will stop to redect upon the subject and realize what they are about to do, will make up their minds that it is their duty to preserve in some offi- cial, authentic form the proceedings and debates or this Convention. It is, I think, certain that the committee whose report we are now consid- ering or dealing with, failed, no doubt, through misapprehension, to obey the behests of the Convention. They were instructed to ascerUiin certain matters of fact. They neglected to do so. Now, the committee to whom it is proposed to send this matter is a standing committee. It is in the exact line of their duty, and if they have any duties to perform, they are such as is proposed to assign them. They will give such a report as the Convention desires, and when this Convention is full — when these members are present and we can have a fair discusision upon this question, I do not doubt that we shall adopt the wisdom and fore- sight of all the other States and preserve in an authentic form the pro- ceedings and debates of this Convention. I therefore trust that this motion will prevail and that this matter will be sent to an appropriate committee. Mr. BEEK8TECUEB. I desire to say why I favorsending this matter to this eommittee. This is not an expression as^o whether we favor phonographic reporting, or whether we repudiate it. It is merely to have a full examination on the subject, and to have a full report, anle, to know the record which these members have made in this Convention, to guide them in •electing officials in the future. I am in favor of every man in this Con- vention standing upon his record. I am not in favor of suppressing that record, but I am in favor of giving an official report of it to the people of the State of California. It is the right of the people to have it, and it is not our right, as their representatives, to suppress what may be done here, and give them a bare skeleton of what has taken place. They have delegated this power to us, and shall we simply give them the bare Con- stitution itself, or shall we also give them that of which It is made, that they may see and be able to judge of that Constitution hereafter? Mr. LAINE. I have said nothing upon this question, but I desire to «ay a word or two. Now, it has been my fortune to wade through a auinber of constitutional debates, and I have found them, in the main, trashy and worthless. I have found men inveighing — advocating one way and voting another; and the best speech we can make to the pe<^le of the State of California — the one that will make or mar — is the CoBstitution that we band them, not to exceed forty pages. I do not propose to suppress anything. Eveiy word and every vote goes out upon the vinp of the wind. It is printed in every quarter of the State. We ■iunat joatify it by any sort of talk we may have here. The question ■oipiy turns upon this proposition : will the cost and expense of doing this thing pay the people? In my judgment, it will not. In my judg- ment, there is not one man, woman, or child out of every ten thousand that would ever read it. I have no doubt that political hucksters, when they went before the people for office, might use it, so as to twist and turn it to the convenience of some ]>olitical character. But when the people of this State instruct me to vote away their money, or to so act that it may be spent in reporting useless debates, then I will obey, or resign ; but I do not believe the intelligent voters of this State demand anything of the kind. They do demand that we should give them a Constitution that, in all its parts, shall guard their liberties and secure their rights. If we can do this, I shall be content. Ms. McFA'RIjAND. There may be some gentleman like the gentle- man from Santa Clara, whose simple word is enough to carry a proposi- tion; there may be some gentleman whose personal force is so great that when he simply says, " I vote for this Constitution," it is enough for the people. But there are many of us whose reputation has not such stand- ing, and it certainly is important to the people to see, if they desire to see, what reasons are given for or against any particular proposition that we want put into the Constitution. Now, sir, the gentleman says that everything we say here will go out upon the wings of the wind. That is a very practical cxpreBslon,T)Ut it is not true. Tlie proceedings of this Convention are not reported so that they go out upon the wings of the wind. There is but one paper that pretends to give anything like a report, and its report is by no means full, though it gives as full reports as a newspaper can be expected to do. But I call tne attention of the gentleman to the fact, that no single debate whioli has occurred here so far, has ever been fully reported In that paper, simply because the paper was not able to do it without being paid. Now I call attention to the exciting debate upon the election of a gentleman to fill the place of the gentleman from San Francisco who resigned, Mr. Morris. It was an exciting discussion. It turned out that the gentleuian who happened to speak first upon that question were reported very fully in that paper, but when you come to the end of the debate, you find that some are not reported at all. The gentleman from Marin, Mr. Shafter, made per- haps, as lengthy and interesting a speech as was made upon that ques- tiou, and ho was reported In two lines. Not because that )iaper had any desire to do any injustice to that gentleman, but because when he made these remarks, there was not time, nor space, nor labor enough to tran- scribe and print them. I do not believe that these reports are going to be published in full iiTany paper. I desire to call the attention of the Convention again to this fact. If you adopt the report of this Committee you simply vote down every proposition that has been presented, and you vote down with others the proposition contained in the first resolution, that we should appoint reporters to take down in shorthand all the proceeon the order of the Convention, or upoii the order of the Legislature, or upon the request of any member of this Con- vention. That Is the proposition, and there is no ex|)cnse to it except twenty dollars a day, and if you adopt the report, you vote that down, with all the other propositions about the reporting and printing. Ma. LABKIN. Bo far as a record of our votes here is concerned, we have a Journal there, and that Journal will be printed, with every vote ujwn every important question. Every gentleman's name will be called, and, if he is here, he will have an opportunity there to leave his mark. I shall insist upon the ayes and noes on all imjxirtant propositions, and I believe in men standing upon the record. But I believe we can make a record there better than the reports of a shorthand reporter. We have also directed, hv resolution, every projKisition submitted to the Conven- tion printed. ileml)er3 can keep them on file, and in this way make a record of our acta, without puhllahing in full the debates which, accord- ing to the statement of the Chairman of the Committee on Reporting and Printing, will cost eighteen thousand six hundred dollars, beside the indexes. Mr. AYERS. The printing was ten thousand five hundred dollars, two volumes, and there was the printing of the JoUmal included in that report. Mr. LARKIN. My experience as a legislator is, that these things are never settled. There were claims came in against this State, there were claims from every county of the State, and it has spent thousands and thousands of dollars for these old claims. The Legi^ature will be asked to have volumes of these debates printed. You continue the rule to print every proposition submitted here by every member In the Con- vention, and you will print the Journal, and you cannot tell how much you are going to spend for all this work. Mr. AYERS. 'This Convention has already refused even to print the Journal. Mr. LARKIN. I am in favor of printing that Journal. Mr. AYERS. You voted it down yesterday. Mr. L.\RK1N. That Journal ought to be printed. Mr. AYERS. If we print the Journal, to lay on our desks, it would only cost a little more to have it in book form. One thousand and fifty dollars for printing in book form, and about two hundred dollars extra to lay it on our desks. After the matter is set up, it witTeost very littfe ■■ *ih ■^' Digitized by VjOOQ IC 128 DEBATES AND PROCEEDINGS MOKDAY, more to put it in book form. That was the idea yesterday, and you voted it down. Mb. LARKIN. I am in favor of printing the Journal, but that is not the question here. There is the place for us to get upon the record. Mk. McFARLAKD. It astonishes n)e to hear some gentlemen eter- nally talking about their records. Who has been talking about anv record of individual action? I have not said anvthing about my recorrl. The gentleman from El Dorado seems to thitilc that his record is the most important thing to get before the people of this State. I do not understand that we are here for the purpose of making individual rec- ords. If a man is looking for office, he can certainly make a record by his vote. The object in keeping these reports in some permanent form is to show the reasons that are assigned lor the adoption or rejection of any proposition, not that the gentleman from El Dorado voted one way or the other. I do not care a continental how he votes, and I do not know that the people of the State care particularly. When gentlemen are looking for political preferment they seem to be very particular how their record is going to be. The idea of making a jwrsonal record never entered my mind. I do not care about the genlleinen's records. They can make their records if they choose. The gentleman from El Dorado has the habit of calling for the ayes and noes on every proposition, and he can put himself on the record whenever he wants to. I do not 8U|>- pose that the people of this State care particularly about us, except so far as our actions go in regard to framing a Constitution, but 1 do under- stand that they may desire to know the reasons given — not bv me, or the gentleman from El Dorado, or by anybody else — why a certain provision should be adopted, or why it should not. It is not (o make a record. These gentlemen have records now. They have been in the Legislature long enough to have records, and if they have none now they never will have. [Laughter.] I do not care anything about their records, nor anybody else's record. Mb. FILCHER. While I was opposed to any further reference to this subject, and am iii favor of a speedy settlement of the question, I did hope, and I do hope now, that when this Convention places itself finally upon history upon this subject, that it will be right: that the conclusion will be a credit to the intelligence of this body. Mr. President, it seems to me that the importance of preserving a record of the proceedings and debates of this (Viuvention cannot be overestimated. Why, sir, the very thought thatHhe great and wealthy State of California shall refuse to follow the precedent so well established by the older States, of preserving a record of debates on so important a matter as this, is to me ast^mishing. To my friends on the other side of the house who have determined to set their vote on this question as an evidence of their desire for economy — as one portion of their record to which they hope to point to in future days as evidence of their economi- cal tendencies — I wish to sav that perhaps the day may yet come when that economy may be consitiered penuriousness if not selfishnese. It is not economy at all times to refuse to spend a dollar. We might, sir, by curtailing the expenses by a few dollars here to-day, involve the State in a tenfold expenditure hereafter. I know, sir, that a verbatim report of these proceedings is being taken down, and I know that it is the intention that a verbatim report of these proceedings and debates will be taken, whether this Convention derides t» have an official report or not. And, Mr. President, when some future Legislature, considering that we have not shown a wise disposition, decides that these reports are of great value to the people of California, and the question comes up of purchasing a longhand report of these proceedings from the parties who are now taking them, these parties will have less judgment than I am disposed to give them credit for, if they do not make California pay for the whistle. But we can now secure to the State a State right, for two thousand dollars or less, to that which California may, perhagis, within ten years or less, pay forty or fifty thousand dollars for. Then the judgment of the pmple of the State of California will be that we were penurious, short-sighted, and unintelligent. While, sir, I would save the State every dollar that I can, yet I do not think that a disposition to be selfish in this matter and withhold from this appropriation a few thousand dollars for so important a pur- pose, is any evidence of my desire for economy. I am anxious to see these gentlemen who are so firmly opposcenditure of two thousand dollars to-day out of this appropriation of one hundreil and fifty thousand dollars, set apart for our use, will secure these reports; and I say, Mr. President, that it is more in the line of economy to expend this amount than it is to say that no report iii which the State has an interest shall be taken. In regard to the newspaper reports, I will ask my friends who are now favoring the adoption of this report, are you willing to stand by the reports that will be given in the pa|¥>r that has the ability and the facilities forgiving more fully the reports of the proceedings of this Convention than any other? Are you willing to leave it to the monopolists and the conductors of tliat pa|)er? I say, sir, if it is your record you wish to preserve, you had better have it frotii an official standpoint. It is of little consequence what any member on this floor may or may not say, except that it may be valuable in the future 08 a matter of reference. I believe that this State has produced some great minds, and I believe there are minds on this floor to-day, sir, who will be able to give to the civilized world new and brilliant ideas on this immigration question, on the corporation question, on the question of taxation, and on many other important questions that will be dis- cussed here — ideas that will be valuable, not only to the people of the State and nation to-day, but to generations yet to come. I appeal to members, when they vote finally upon this question, to bear in mind some of these points. Expand your ideas, if you can, upon this ques- tion, and look beyond to-day. Do not stop foi' the selfish consideration of two thousand dollars, but pre^rve these reports, and you will receive the approbation, not only of the people of thij State, but of the world. I hope this report will not be adopted. Let us at least secure a tbort- hand report of the proceedings and debates which the State shall own, and leave the matter of printing to the future if yon desire. We will then have a report, the property of the State, with the privilege of going to it individually if we wish, and with the privilege of the State demanding a longhand report and making the most of it wbenever such a demand shall be deemed advisable. Ma. DOWLIXG. This question has occupied a good deal of the time of this Convention already — not but what it is important. I know this Question of phonographic reporting deserves consideration , but, Mr. Pres- ent, I believe that twenty thousand or thirty thousand dollars saved to the State of California will be better appreciated by the taxpayers of this State than all the windy speeches that can be made during the ses- sion. I think retrenchment is not a taking disease. I am sorry that certain gentlemen have not taken the disease. When any malt gets ap on this floor and tells me that the reporting business of this Convention will be received with approbation by the people of the State, in prefer- ence to economy, I believe that man is belying his owu intelligeBoe. He knows well that it will not. I would like to have every man to see his speeches in full, but we are not here to glorify ourselves. Mr. Pres- ident, by disjiensing with these reports we will coincide with the views of the people of the State of California. Already the newspapers of Ban Francisco, and all the principal papers published in the Slat«, have spoken plain and earnest regarding this business. Mr. CXJNDON. I move the previous question. Seconded by Mean. Barbour, (iomiaii, Tully, and iJarue. The main question was ordered. The ayes and noes were demanded, and the report adopted by the fol- lowing vote: Ayers, hX . Naaon, Barbour, Nelson, Barton, Harrison, Neunaber, Boerstecher, Herold, O'Sullivan, Bell, Herrington, Prouty, Berry, Hilbom, Rhodes, Biggs, Hitchcock, Ringgold, Boucher, II nest is. Schomp, Burt, Hughey, Smith, of San Francisco Caples, Hunter, Soule, Chapman, Condon, Joyce, Stedman, Kelley, Sweasey, Cowden, Kenny, Swenson, Crouch, Kleine, Thompson, Davis, Laine, Tully, Tuttle, Dean, Larkin, Dowling, Larue, Vacquerel, Doyle, Lavigne, Van Voorhies, Dudley, of Solano, Lindow, Webster. Evey, Martin, of Santa Cruz Wellin, Farrell, McComas, West, Fawcett, McFarland, White, Freud, McNutt, Wilson, of Tehama, Glascock, Oorman, Moffat, More land, Wyatt— 76. Grace, Morse, NOBS. Andrews, Holmes, Shoemaker, Barrj-, Howard, Shurtleff, Blackmer, Inman, Smith, of 4th District. Brown, Johnson, Steele, Charles, LamjMon, Stevenson, ('rose. Lewis, Strong, Dunlap, McCallum, Stuart, Edgerton, McCoy, Swing, Filcher, Mills, Townsend, Finney, Dverton, Van Dvke, Garvev, Porter, Waters', Hale,' Reddy, Wickes, Ilarvev, Reed, Winans— 41. Heiskell, Rolfe, Mr. Barnes, "no," was paired with Mr. Turner, "aye." The votes of Messrs. Ayers, Huestis, McFarland, and Gregg were changed from "no" to "aye," for the purpose of giving notice of * motion to reconsider. Mb. huestis. I now give notice that on Monday next I will move a reconsideration of this vote. RESOLUTIOKS. Mb. WINANS offered the following resolution : Rfjaived^ Tbst It b<^ referrtnl to the Cnuiniitt'e on Rnlps to Inquire and report tlie expediency of adding Mr SB. Thompson to the Uimmltlee on BdncatloB. Referred to the ('ommittee on Rules and Order of Business. Mr. shoemaker offered the following resolution : Ketoleed, That Mr McUojr, of NeTwIs County, be added to the CummiIKe on Water and Water Rights. Referrert of the ODaimilteo on' Mileage and Contingent KxpeiU4« upon the resolution of Mr Reeretecber. pr»- riding tliat the .ToumAl of thia c'-onvenUon eiiall l>e printed each day and laid upon the desks of the membera, be reconsidered. Thb president. The Chair rules Ihera^luUon oute exhibited in the Legislature before such Act snail be passed. Sic. 31. No Act shall be passed giving extra or additional pay, or relief, or oompensati($n, to any public officer, servant, employ^, or agent of, or contract under this State, or any department thereof, or of or under any county or city in this State. Sic. 32. No Act shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment. eic. 33. No Act of the Legislature shall limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property. In cases of death from injuries received by or through the nrelessness, negligence, or willful misconduct of any person or corpo- ration, the right of action shall survive, and the Legislature shall prceeribe by and for whose benefit such shall be prosecuted. Until the Legislature shall so prescribe, such right of action shall survive to, and may be prosecuted by, the personal representavies of the deceased, ^o Act shall prescribe any limitations of time within which suits may be brought against corporations for injuries to person or« property , or for other causes different from those fixed by general laws regulating actions against natural persons. Sic. 34. No State office shall be continued or created for the ipspec- tion or measurement of any merchandise, or manufacture, or com- niodity ; but the Iiegislature may, by general law, provide for such inspection and measurement by municipal or county officers. oia 35. The Legislature shall pass no statute agreeing to pay, or providing for the pavment from the State treasuiy, or by any municipal corporation, of any bonds or other obligations of'^any person or corpo- ration, or to provide for the payment of any interest on such bonds or obligations; and shall pass no statute loaning or authorizing the loan of the credit of the State, or any municipal corporation, to any person or oonoration. OK. 36. The Legislature shall never grant, or authorize extra com- pensation, fee, or ulowance, to any public officer, agent, servant, or contractor, after service has been rendered or contract made, nor author- ise the payment of any claim or part thereof hereafter created against the State, under any agreement or contract made without express aathoritT of law; and all such unauthorized agreements shall be null sodroia; prooided, this section shall not extend to and prevent appro- friitiana for expenditures incurred in suppressing insurrection or repel- liu jnvaaion. MQ. 37. The Legislature shall have no power to release or eztin- gvUi, in whm or paid out of the Treasury of State, except it be pursuant to and in accordance with a specific appropriation for a particular purpose made by statute, and then only on warrants drawn W the proper officer; and no appropriation shall De made for more than four years. Sic. 47. All general appropriation bills shall be sent to the Governor for his signature at lea^t ten days before the close of the session. Skc. 48. The Governor, Lieutenant-Governor, Secretary of State, Controller, Treasurer, Attorney-General, Surveyor-General, Superin- tendent of Public Instruction, the Justices of the Supreme Court, and District Judges, shall be liable to impeachment for misdemeanor in office. All other officers under this Constitution may be tried by jury, on indictment for misdemeanor in office, and if convicted, be removed from office and disqualified from holding any office of honor or profit. Skc. 49. The Assembly shall have the sole power of impeachment, and all impeachments shall be tried by the Senate. Each Senator, at the time the Senate shall resolve itself' into a Court of Impeachment, shall swear (or affirm), that he will do impartial justice between the accuser and the accused, uninfluenced by party feeling. No person shall be convicted on such impeachment without the concurrence of two thirds of the Senators elected, and the judgment on conviction shall extend only to removal from office and disqualification to hold office thereafter. A majority of the Senators elected may affix the penalty, but such judgment on impeachment shall not be a bar to indictment for the same offense. Sec 50. No Senator or member of the Assembly shall be elected or appointed to any civil office of profit in this State during the term for which he shall have been elected, or for one year thereafter, which office shall have been created, or the emoluments of which thall have been increased during his term of office. Sic. 51. Any member of the Legislature who shall solicit, demand, receive, or consent to receive, directly or indirectly, for himself or for another, from any company, corporation, or person, any money, office, appointment, employment, testimonial, reward, thing of value, enjoy- ment, or of personal advantage or promise thereof, or the influence of another to obtain for himself any office of honor or profit for his vote or official influence, or for withholding the same, or with an understanding expressed or implied, that his vote or official action shall be in any way influenced thereby, or who shall solicit or demand any such money or other advantage, matter, or thing aforesaid, for another as the consider- ation of his vote or official influence, or for withholding the same, or shall give or withhold his vote or influence in consideration of the pay- ment or promise of such money, advantage, matter, or thing, to another, shall be neld guilty of bribery within the meaning of this Constitution and the Penal Code, and shall incur the penalties provided in such Code, and be subject to such further punishment as shall be provided by statute. Sic. 52. Any person who shall directly or indirectly offer, give, or promise any money, thing of value, testimonial, privilege, or personal advantage to any officer, legislative, executive, or judicial, to influence him in the performance of any of his public or onicial duties, shall bo deemed guilty of bribery, and punished as provided by statute. Skc. 53. The offense of corrupting of members of the Legislature, or of public officers of this State, or of any municipal division thereof, and any occupation or practice of solicitation of such member or officers to influence their official action, shall be defined by law, and shall be punishable by fine and imprisonment. Sic. 54. Any person may be compelled to testify in anjc^lawfiil inveft' Digitized byLjOOQlC 132 DEBATES AND PROCEEDINGS Monday, tigation or judicial proceedings against any person who may be charged with having committed the ofiense of bribery or corrupt solicitation, and shall not be permitted to withhold his testimony upon the ground that it may criminate himself, or subject him to public infamy; but such testimony shall not be used against him in any judicial proceeding, except for perjury in giving such testimony; and any person convicted of either of the offenses aforesaid, shall, as part of the punishment there- for, be disqualified from holding any oCBce of honor or profit in this State. Sic. 56. The Legislature shall not act upon any amendment pro- posed to the Constitution of the United States, until at least one general election intervene between the time such amendment is propoE^ and the time of the action thereon. Akticli V. CXBCOTIVS OIPAKTMIKT. Section 1. The Executive Department of this State shall consist of a Governor, Lieutenant-Governor, Secretary of State, Controller, Treasurer, Attorney-General, Surveyor-General, and Superintendent of Public Instruction, who shall each be independent of Ine other, and have and exercise the powers prescribed for him in this Constitution and by statutes. Skc. 2. The Governor shall be elected by the qualified electors of the State, at the general election in the year eighteen hundred and seventy- nine, and every four years thereafter. Sic. S. No person shall be eligible to the office of Governor who is not over the age of thirty years, and who has not been a citixen of the United States, and a resident of the State, for four years next preceding his election. Sic. 4. The Governor shall hold his office during four years from the first Tuesday after the first Monday in January next ensuing his election, and shall not be eligible to the office for the next succeeding term. Bio. 5. The returns of every election for Governor shall be sealed up and indorsed, " Election returns for Governor," and by the County Clerks of the different counties be transmitted to the Secretary of State, who shall safely keep the same unopened, and deliver them to the Speaker of the Assembly. The Speaker shall, in the presence of both bouses of the Legislature, on the day next after the organization of both houses, open such returns and publish them. The person having the highest number of votes shall oe Governor; but in case any two or more have an equal, and the highest number of votes, the Legislature shall, by joint vote of both houses, choose one of said persons for Governor. Sic. «. The Governor shall be Coinmander-in-Chief of the army, navy, and militia of the State, except when they are called into actual ' service of the United States. Sic. 7. The Governor shall transact all executive business with the officers of the Federal Government end with Governors of other States. He shall see that the laws are faithfully executed, and he may require information, in writing, from all other executive officers of the State upon any subject relating to the business of their respective offices. Sic. 8. When any State executive office, other than Governor or Lieutenant-Governor, shall become vacant, the Governor shall fill such vacancy, for the unexpired term, by appointment; and if any vacancy occur in any judicial o6Sce In this State, other than Justice of the Peace, the Governor shall fill such vacancy, by appointment, as prescribed in Article VI of this Constitution. In other cases the Legislature may provide, by statute, for filling vacancies in office, and if no such provis- ion shall exist, and a vacancy occur, the Governor shall fill the same, by appointment, for the unexpired term. The Governor shall report to the Senate all appointments for State offices, and all appointments to judicial offices,' for its confirmation, at the earliest practicable time, and if the Senate shall refuse to confirm such appoiutment, a vacancy shall then occur, to be filled as provided in this section. Sic. 9. The Governor may, on extraordinary occasions, convene the Legislature in special session, by proclamation, which proclamation shall designate Uie' subject upon which le^slation is desired. Skc. 10. The Governor shall communicate by message to the Legis- lature at every session the condition of the State, and from time to time recommend to its consideration such measures as he may deem expedient. Sic. 11. The Governor shall have power to remit' fines and forfeit- ures imposed as a punishment for crimes, to grant reprieves, commuta- tions of sentences, and pardons, except in cases of impeachment, and cases of disqualification from holding office, or enjoying the right of suffrage, declared by this Constitution as a punishment for crime. But no pardon shall be granted, or sentence commuted, except upon the recommendation, in writing, of the Lieutenant-Governor, Secretary of State, and Attorney-General, or a majority of them, after full hearing, upon due public notice of time and place ; and such recommendations, and the reasons therefor, shall be filed in the office of the Secretary of State. Sic. 12. There shall be a seal of this State kept in the office of the Secretary of State, to be used by him and the Governor to authenticate papers and documents issued by them, or either of them, to be called "The Great Seal of the State of California," and all grants and commis- sions shall be in the name and by the authority of the people of the State of California, sealed with said seal, signed by the Governor, and countersigned by the Secretary of State. ^ Sic. 13. In case of the impeachment of the Governor, or his removal from office, death, inability to discharge the powers and duties of the said office, resignation, or absence from the State, the power and duties of the office shall devolve upon the Lieutenant-Governor for the residue of the term, or until the disability shall cease. But when the Governor shall, with the consent of the Legislature, be out of the State in time of war, at the head of any military force thereof, he shall continue Com- mander-in-Chief of all the military forces of the State not in the sctoal service of the United States. Skc. 14. Every bill which shall have passed both houses shall be presented to the Governor. If he approve, he shall sign it ; but if he shall not approve, he shall return it, with his objections, to the house in which it shall have originated, which house shall enter the objections at large upon their Journal and proceed to reconsider it. If, after such reoonsiaeration, two thirds of all the members elected to that house shall agree to pass the bill, it shall be sent, with the objections, to the other bouse, by which likewise it shall be reconsidered, and if aroroved by two thirds of all the members elected to that house, it shalJ be a law; but in such cases the vote of both houses shall be determined by ayei and noes, and the names of the members voting for and against the bill shall be entered on the Journals of each house respectively. If any bill shall not be returned by the Governor within ten da^s after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Legislature, by their 'adjournment, by limita- tion, or otherwise, prevent its return, in which case it shall be a law, unless he shall file the same, with his objections, in the office of the Secretary of State, and give notice thereof, by public proclamation, within thirty days after such adjournment. Sic. 15. The Governor shall have power to disapprove of any item or items of any bill making appropriations of money, embracing distiixt items, and the part or parts of the bill approved shall be the law, and the item or items of appropriation disapproved shall be void, unless rroassed according to the rules and limitations prescribed for the passage ofother bills over the executive veto. Sec. 16. The Lieutenant-Governor, Treasurer, and Atiomey-Oeneral, shall each have the same qualifications as the Governor; each shall be elected at the same time and places, and their terms of office shall b« the same as that of the Governor. Site. 17. The Controller, Secretary of State, Surveyor-General, and Superintendent of Public Instruction, shall each have the same qualifi- cations as the Governor, and shall be elected at the general election ia the year eighteen hundred and seventy-nine, and every four yean thereafter. Sue. 18. Each of the officers mentioned in the preceding section shall hold his office during four years from the first Tuesday after the first Monday in January next ensuing after his election. Sin. 19. The Lieutenant-Governor shall be President of the Senate, but shall only have a vote therein when the Senate is equally divided, and he shall perform such other duties as may be prescribed by statute. In case of the death, conviction, or impeachment, absence from the State, failure to qualify, resignation, or other disability of the Governor, the powers, duties, obligations, and emoluments of the office for the remainder of the term, or until the disability be removed, shall devolve upon the Lieutenant-Governor. Sio. 20. !• case of a vacancy in the office of Lieatenanl-Oovemor by his death, assumption of the office of Governor, conviction on impeachment, or for any other cause, the powers, duties, and emolu- ments thereof for the remainder of the term, or until the disability be removed, shall devolve upon the President pro tempore of the Senate; and the President pro tempore of the Senate shall, in like manner, become Governor if a vacancy or disability shall occur in the office of Governor while he is acting Lientenant-Gfovemor, but his seat in the Senate shall become vacant whenever he shall become Governor. Skc. 21. The Secretary of State shall keep a record of all official arts of the Governor, preserve the archives and papers pertaining to the office of Governor, ajid the Legislature, and shall perform such other duties as mav be prescribed by statute. Sic. 22. 5'he emoluments of all State officers shall be fixed prior to to the election to such office, and such emoluments shall not be increased or diminished during such term, nor shall any additional pay be allowed for additional services required of such officer. AlTICLI VI. judicial dipabtmiht. Skctior 1. The judicial power of this State shall be vested in a Supreme Court, District Courts, Courts of Justices of the Peace, and in sucl) Municipal Courts as shall be established by statute for cities, or consolidated cities and counties. Sec. 2. The Supreme Court shall consist of a Chief Justice and six Associate Justices. The presence of four Justices shall be necessary for the transaction of business in Court, and the concurrence of four Justices shall be necessary to pronounce a judgment. Sic. 3. The Justices of the Supreme Court shall be elected by the qualified electors of the State at the general election next after the adop- tion of this Constitution, and each shall take his seat on the first Tues- day after the first Monday in January next after bis election. The full term of Justices of the Supreme Court is fourteen years; at the meeting of such Justices on the said Tuesday next alter the first Monday in January, they shall so classify themselves by lot that the term of one Justice shall expire every two years, and his successor shall be elected at the general election next preceding the expiration of such term, or at an election for Congressmen. Skc. 4. At the election for Justices of the Supreme Court next after the adoption of this Constitution, no elector shall vote for more than four persons for Justices of the Supreme Court. Sec. 5. If a vacancy occur in the office of Justice of the Supreme Court from other causes than the expiration of a full tenn, the Governor shall fill such vacancy by appointment, and the appointee shall hold until the election and qualification of his successor. At the next general election after such vacancy, it shall be filled by election, and the pereon so elected hold office from the first Tuesday after the first Monday in January next ensuing until the expiration of the unexpired term. Sec. 6. No Justice appointed or elected to fiU-an unexpired term shall Digitized by Google Oct. 14, 1878. OF THE CONSTITUTIONAL CONVENTION. 133 be Chief Jaslice. The Justice not so appointed, or elected, having the shortest term to serve, shall be Chief Justice. Skc. 7. The jurisdiction of the Supreme Court is of two kinds : iiVr»i— Original ; and. Second — Appellate. Sic. 8. The original jurisdiction of the Supreme Court extends to the issuance of writs ot mandate, review, prohibitinii, and habeas corpos. Sic t. The appellate jurisdiction of the Supreme Court extends : First — To all civil cases and special proceedings arising in the District Courts; Steond — To all criminal actions amounting to a felony ; Third — To the issuance of all writs necessary to the exercise of its appellate jurisdiction ; and, fburlli — To such other cases and proceedings as the Legislature may by general statute prescribe. Sic 10. Each county is a judicial district. District Judges shall be elected by the qualified electors of their respective districts, at the gen- eral election next after the adoption of this Constitution, and shall hold their respective offices for the term of six years, and until their succes- sors shall be elected and qualified. Sec. 11. If a vacancy occur in th& office of District Judge from causes other than the expiration of a full term, the Governor shall fill such vacancy by appointment, and the appointee shall hold until the election and qualification of his successor. At the next general election after inch vacancy it shall be filled by election, and the person so elected shall hold office from the Tuesday after the first Monday in January next ensuing, for the term of six years. Sic. 12. Every county containing less than twenty thousand inhabit- ants shall elect one District Judge; counties containing more than twenty thousand inhabitants may elect such further number of Dis- trict Judges as shall be prescribed by statute, not exceeding one for every twenty'thousand inhabitants, and one for such fraction as shall exceed ten thousand. Sec 13. In districts where there shall be more than one, a presiding Judge shall be elected by lot, who shall distribute the labor to be per- formed by each. Sic. 14. Each District Court shall be held by one District Judge, and when two or more Judges are elected for one county, Courts shall be held separate, bat the judgments and orders of each shall be entered and enforced, as of the District Court of such county. Skc. 15. The jurisdiction of the District Court is of two kinds: Ftr»t — Appellate; and. Second — Origi nal. Sic. 18. The appellate jurisdiction of the District Courts extend : Fir»f — To all cases arising in Justices' Courts. Second— To such cases and proceedings arising in Municipal Courts as the Legislature ma^ prescribe. Sic it. The original jurisdiction of District Courts extend: Firit — To all civil actions for relief formerly given in Courts of equity. Second — To all civil actions in which the subject of litigation is not capable of pecuniary estimation. Third — To all civil actions in which Iht subject of litigation is capa- ble of pecuniary estimation, which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars. Fourth — To actions to prevent or abate a nuisance. Fifth — To actions of forcible entry and detainer. Sixth — To proceedings in insolvency. • Seventh — To probate cases and proceedings. Eighth — To all other special proceedings. 2finlh — To inquiring, by the intervention of a Grand Jury, of all public ofienses committed or triable within the district. Tenth — To the trial of all indictments. Elecenth — To such other cases and proceedings as the Ijegislature may prescribe. Sbc. 18. The Legislature shall determine the number of Justices of the Peace to be elected in each city and township of the State, and fix by law their powers, duties, and responsibilities: but such powers shall aot, in any ease, trench upon the jurisdiction of the several Courts of racord. The Supreme Court, and District Courts, and such other Courts SB the Legislature shall prescribe, shall be Courta of record. Sic. ly. The jurisdiction of Municipal Courts established by statute for cities, and consolidated cities and counties, shall extend oiilv to the trial of misdemeanors, and to the trial of cases arising under oniinances of such cities, or cities and counties. Sec 20. The Legislature shall provide for the election of a Clerk of the Supreme Court, of County Clerks, District Attorneys, Sheriffs, and other necessary officers, and sliall fix h-^ law their duties and compensa- tions. County Clerks shall be ex officio Clerks of the Courts of record in and for their respective counties. The Xjeglslature may also provide for the appointment, by the several Courts of record, of one or more Commissioners, with authority to perform chamber business, and also to take depositions, and to perform such other business conuected with the administration of justice as may be prescribed by statute. Sic. 21. The time and place of holding the terms of the Supreme Orart shall be provided for oy statute. The District Courts shall always be open for the transaction of business. 8ic. 22. Ho judicial officer, except Justices of the Peace and Com- nissioners, shall receive to his own use any fees or perquisities of office. 8ic. 23. The Legislature shall provide for the speedy publication of neh opinions of the Supreme Court as it may deem expedient; and all o^nions shall be free for publication by any person. Bk. 14. The Justices of the Supreme Court and District Judges, •ball severally at stated times during their continuance in office, receive for their services out of the State Treasury a compensation which shall not be increased or diminished after their election, or during the term for which they shall have been elected. Sic. 25. The Justice of the Supreme Court, and the District Judges, shall bo ineligible to any other office than a judicial office during the term in which they shall have been elected, and shall, before entering upon their office, in addition to the oath of office, take and subscribe an oath that they will not, during such term, accept any Federal office. Sic. 26. Judges shall not charge juries with respect to matters of fact, but they may state the testimony and declare the law. Skc. 27. 'The style of all process shall be, " The People of the State of California," and all prosecutions shall be conducted in their name and by their authority. Sec. 28. The Supreme Court now in existence is continued until the first Monday in July, eighteen hundred and eightjr ; but after the first Monday in January, eiguteen hundred and eighty, its power shall only extend to the determination of such cases or proceedings pending therein as may have been submitted for decision prior to that time. Skc. 29. The Justices of said Court in commission at the time this Constitution takes effect, may hold their office as Justices thereof, until the first Monday in July, eighteen hundred and eighty. Sec. 30. If any Justice of said Court is elected a Justice of the Supreme Court, created by this article, his office as a Justice of the Supreme Court now in existence, shall become vacant on the first Mon- day in January, eighteen hundred and eighty; and the Governor shall, by appointment, fill the vacancy. Abticli VII. MILITIA. Section 1. The Legislature shall provide by law for organising and disciplining the militia, in such manner as they shall deem expedient, not incompatible with the Constitution and the laws of the United States. Sic. 2. Officera of the militia shall be elected or appointed in such a manner as the Legislature shall from time to time direct, and shall be commissioned by the Governor. Sec 3. The Governor shall have power to call forth the militia to execute the laws of the State, to suppress insurrections and repel in- vasions. AaTicLi VIII. TAXATION ANO FINANCE. Section 1. Taxation shall be equal and uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and taxes shall be levied and collected under general laws. All property shall be taxed in proportion to its value. All property subject to taxa- tion shall be listed for that purpose at its cash value, to be ascertained as , provided by statute. All things and choses in action, subject to owner- ship, sale, devise, descent, distribution, or assignment, shall be deemed property for purposes of taxation. Property owned by the United States, by this State, or by 9 municipal corpf)ration under the laws of this State, growing crops, and stock under six months of age shall be exempt from taxation. Sec. 2. The present bonded debt of this State is valid, and the Legis- lature shall provide by statute for the payment thereof. Sec. 3. The Legislature shall not, in any manner, create any debt or debts, liability or liabilities, which shall singly or in the aggregate, with all previous debts and liabilities, exceed the sum of three hundred thou- sand dollars, except in case of war to repel invasion or suppress insur- rection. 8ko. 4. The Governor, Controller, and Treasurer shall, jointly, during the first week aher the organization of the Legislature, exhibit to the Assembly detailed estimates of the sums of money necessary to be raised and expended during the four years next after the first day of July of that year. Sec. 5. The Controller shall determine and publish when the limit of the public debt, allowed by this Constitution, has been reached, and all other or further obligations of the State shall be void. Sec. 6. Neither tlie credit of the State, nor of any municipal corpo- ration authorized under the laws thereof, shall be pledged or loaned to any individual, company, corporation, or association; nor shall the State, or any municipal corporation, become a joint owner of,ora stock- holder in, any company, corporation, or association ; nor shall the State, or any municipal corporation, become bound to pay any bond, or inter- est on any bond, or other obligation, of any individual, association, or corporation; and no county, or other municipal corporation under the laws of this State, shall incur any obligation to raise money for the con- struction of any work not exclusively under the control of public officers. Sec. 7. The Ijegislature must, at its first session after the adoption of this Constitution, by statute provide for a State Board of Equalization, and fix its powers and duties. Article IX. MUNICIPAL COEPORATION8. Section 1. Municipal corporations under the laws of this State are : JVr«<— Counties ; Second — Cities; and Third — Consolidated cities and counties. Sec. 2. The Legislature shall establish a system of county and city government, which shall be as nearly uniform as practicable. Sec. 3. The boundaries of counties shall be established by statute, and no statute shall be passed changing a county boundary, until it be shown to the Legislature that a notice was published in some newspaper of general circulation in the counties to be affected by such change, at least thirty days before the last general election, stating that application would be made to the Legislature for such change. ■Ti .Jfai-hii r Digitized I by Google 134 DEBATES AND PROCEEDINGS Monday, 8ic. 4. The compenaation of county ofliren (hall be regulated by law. Salariee of county offieen and pay allowed by law shall not be increased or diminished during the time for which they shall be elected. Bko. i. The Legislature shall provide by statute for a strict accounta- bilitv of all county, township, and city officers, for all public moneys coming into their hands. Sic. 6. Township officers are Justices of the Peace and Constables, and each shall have such power and be subject to such duties and obli- gations as are prescribed in this Constitution or by statute. Sec. 7. The Legislature shall provide by statute for such officesas may be necessary in administering the affairs of school districts, road districts, swamp land districts, or other division created by statute. Sic 8. Cities with charters already given, shall remain such under their present charters, subject to amendment, or shall become incorporate under general laws. Sic. 9. Vo debt shall be incurred by any municipal corporation, except in pursuance of an order or ordinance previously made therefor, by the municipal authorities, which order or ordinance shall provide for the payment thereof. Sic. 10. Private property shall not be liable to be taken or sold for the payment of the corporate debts of a municipal corporation. Skc. 11. The Legislature may vest the corporate authorities of cities, or consolidated cities and counties, with power to make local improve- ments, by special assessment, or by special taxation of contiguous prop- erty, or otherwise. For all other corporate purposes, all municipal corporations may be vested with authority to aaaeas and collect taxes; but such taxes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same. Abticli X. PEIVATS COBPORATIOK8. SicTioir I. Corporations may be formed under general laws, but shall not be created by special Act. All general laws passed pursuant to this section may be altered, from time to time, or repealed. Sic. 2. Each stockholder shall be individually and personally liable for all debts and liabilities of a corporation created or incurred while he remains such stockholder. Sic. 3. The exercise of the right of eminent domain shall never be abridged, or so construed as to prevent the Legislature from taking the property and franchises of corporations and subjecting them to public use, the same as the property of individuals; and the exercise of the police power of the State shall never be abridged, or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the State. Sic. 4. In all elections for directors or managers of a corporation, ' each member or shareholder may cast the whole number of bis votes for one candidate, or distribute them upon two or more candidates, as he may prefer. Sic. 5. Ko corporation shall engage in aDY business other than that expressly authorized in its charter; nor shall it take or hold any real estate except such as may be necessary and proper for its legitimate business. Sic. t. Ko corporation shall issue stocks or bonds except for money, labor done, or property actually received ; and all fictitious increase of stock or indebtedness shall be void. Tbe stock of corporations shall not be increased, except in pursuance of gencrnl law, nor without the consent ol the persons holding the two thirds in vaiiie of the stock first obtained at a meeting to be held afler sixty days notice given in pursuance of law. Sic 7. Mo railroad or telegraph company shall consolidate with or hold an interest in the stock or bonds of any other railmad or telegraph company, nor shall the same persons be officers in corporations owning competing lines of railroads or telegraphs. Sec. 8. No railroad or telegraph company shall lease or in any man- ner manage or control the railroad or telegraph line of another company. Sec. S. AUindividuals, associations, and corporations shall have eaual right to have persons and property transported over railroads; ana no undue or unreasonable discnmination shall be made in charges for, or. in facilities for transportation of freight or passengers within the State or coming from or going to any other State. Persons and property transported over any railroad shall be delivered at any station, at charges not exceeding the charges for transportation of persons and property of the same class in the same direction to any more distant station ; but excursion and commutation tickets may be issued at special rates. Sic. 10. The liCgislature shall pass ftatutes to correct abuses and pre- vent unjust discrimination and extortion in tbe rates of freights and fares on the railroads in this State, and provide for the enforcement of such statutes by adequate penalties, to the extent, if necessary for that purpose, of forfeiture of property and franchises. Sic. 11. Every railroad corporation organized in this State shall maintain an office therein where transfers of its stock shall be made, and where its books shall be kept for inspection by any stockholder or creditor of such corporation, in which books shall be recorded the amount of capital stock subscribed or paid in, and by whom, the names of the owners of its stock, and tbe amounts owned by them respectively, the transfers of said stock, and the names and places of residence of its officers. Sic. 12. All railroads shall be public highways, and all railroad com- panies shall be common carriers. Any coiporation organized for the purpose, shall have the right to construct and operate a railroad between any points within this State, and to connect at the State line with rail- roads in other States. Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad ; and shall receive and transport each other's passengers, tonnage, and cars, loaded or empty, without delay or discrimination, in such maimer aa may be prescrit>ed by general statute. Sic. 13. No President, Director, officer, or employ^ of any railroad company shall be interested directly or indirectly in the furnishing of material or supplies to such company, or in the business of transporta- tion as a common carrier of freight or passengers over the works owned, leased, controlled, or worked by such company. Sec. 14. Any public officer of or in this State, legislative, executive, or judicial, who shall accept or use a free pass or free ticket, or a pass or a ticket paying therefor less than the usual rates, from any railroad com- pany or other transportation company, or who shall ride on or over asj railroad for less than the usual rate of fare, shall be ineligible l« lU offices of honor or trust in this State, and shall lose his saia office, and tbe Legislature shall provide for the punishment of such act as a felony. Sic. 15. The Legislature shall provide by statute for the punishment as a felony of any officer or employ^ of any railroad company or other transportation company who shall give, or offer to give, to any public officer of or in this State, legislative, executive, or judicial, a free pass or free ticket, or a pass or ticket for a less price than the usual rates, or who shall knowingly permit such officer to ride in or over such railroad without paying therefor the usual rates. Sec. is. No foreign corporation shall do any business in this State without having one or more known places of business, and an author ized agent or agents in the same, upon whom process may be served. Akticli XI. IDDCATIOR. Section 1. A Superintendent of Public Instruction shall be elected by the qualified electors, at the same time and place, and in the same manner, and for the same term of office, as the Governor. He shall receive a salary equal to that of Secretary of State. Sic. 2. A County Superintendent of Schools, for each county in the Stote, shall be elected at the general election of Governor and Superin- tendent of Public Instruction, by a vote of the qualified electors of each county, and shall hold office for "the terra of four years. Sic'. 3. The Legislature shall provide for a system of public schools by which a free public school shall be maintained for at least six months in each school district in every year after the first year in which a school is established. Sec. 4. There shall be a State Board of Education, consisting of two members from each Congressional district, who shall be nominated by the Governor and confirmed by the Senate, for a term of four years. The Stote Superintendent shall be ex officio a member of this Board. Sic. 5. The Legislature shall encourage, by all suitable means, the promotion of education among the people. The proceeds of the sale of the five hundred thousand acres of land granted to the new Stetes under an Act of Congress approved A. D. eighteen hundred and forty-one, and of the sale of sixteenth and thirty-sixth sections of township lands reserved for school purposes, shall constitute an inviolable school fund, the income from which shall be apportioned by the Superintendent of Public Instruction to each school district pro rate, according to the num- ber of school census children. Sec. 0. No public moneys shall ever be appropriated for the support, directly or indirectly, of any religious sect or denomination whatever, nor for any school not under the direct and entire control of public school officers. Sic. 7. The revenue derived from the State School Fund, and from the Stote school tax, shall be applied exclusively to the support of primary and grammar schools. Articli XII. MODI or AHINDINO AKD KIVISINO TBI COKSTITCTtOH. SicTtoK 1 . Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly, and if the same are agreed to by a majority of the members elected to each of the two houses, such pro- posea amendment or amendments shall be entered on their Journals, with the ayes and noes taken thereon, and shall be published for three months before the next general election. In his proclamation calling such election, the Governor shall submit such proposed amendments to the qualified electors of the State for adoption or rejection, and if a majority of the votes cast shall be for the adoption of such amendment or amendments, it or they shall become part of this Constitution. Sec. 2. And if, at any time, two thirds of the Senate and Assembly shall think it necessary to revise and change this entire Constitution, they shall recommend to the electors, at the next election for members of the Legislature, to voto for or against a Convention ; and if it shall appear that a majority of the electors voting at such election have voted in favor of calling a Convention, the Legislature shall, at the next see- sion, provide by law for calling a Convention, to be holden within six months after the passage of such law ; and such Convention shall con- sist of a number of members not less than that of both branches of the Legislature. The Constitution that may have been agreed upon and adopted by such Convention shall be submitted to the people, at a special election to be provided for by law, for their ratification or rejection. Each voter shall express his opinion by depositing in the ballot-box a ticket, whereon shall be written or printed tbe words, " For the new Constitution " or " Against the new Constitution." The returns of such election shall, in such manner as the Convention shall direct, be certi- fied to the Executive of the State, who shall call to his assistance the Controller, Treasurer, and Secretory of State, and compare the votes so certified to him. If, by such examination, it be ascertained that a majority of the whole number of votes cast at such election be in favor of such new Constitution, the Executive of this State shall, by his procla- mation, declare such new Constitution to be the Constitution of the State of California. Digitized by Google Oct. 14, 1878. OF THE CONSTITUTIONAL CONVENTION. 1Z6 Abticlk XIII. SicnON I. Any eitiMD of this Stale who shall, after the adoption of (bi< CoDstitation, fight a duel with deadly weapons, or send or accept a challenge to fight a duel with deadly weapona, either withiu this State or out of it, or who shall act as second, or knowingly aid or assist in any manner those thus offending, shall not be allowed to hold any office of profit, or to enjoy the right of suffrage under this Constitution. Sw. 2. Members of (he Legislature, and all officers, executive and judicial, except such inferior officers as may be by law exempted, shall, Wore they enter on the duties of their respective offices, take and sub- icribe the following oath or affirmation : "I do solemnly swear (or affirm, as the case may be,) that I will sup- pgrt the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of looording to the best of my ability." And no other oath, declaration, or test, shall be required as a qualifi cation for any office or public trust. Sic. 3. All officers whose election or appointment is not provided for by this Constitution, and all officers whose office may hereafter be created by law, shall be elected by the people or appointed, as theljegis- Isture may direct. Sk. 4. No person shall be elected or appointed to, or hold any office created bj,thi8 Constitution, who is not an elector and resident of this State, lio person shall be elected or appointed to, or hold any district, county, or local office created by this Constitution, unless he is an elector and resident of the district, oounty, or other political division for which he is elected or appointed. And every judicial officer must reside at the place where tne sessions of the Court of which he is a member are held. Sw. i. When the duration of any office is not provided for by this Constitution, it may be declared by law; and if not so declared, such office shall be held during the pleasure of the authority making the appointment; nor shall the duration of any office not fixed by this Cou- Mitution ever exceed four years. 8ic. 6. The fiscal year shall commence on the first day of July. Sic. 7. Each county, city, and incorporated town, shall made pro- vision for the support of its own officers, subject to such restrictions and rMnlations as the Legislature may prescribe. Sic. 8. Suits may be brought t^inst the State in such manner and in such Courts as shall be directed by law. Bw. 9. The seat of government shall not be removed firom Sacra- mento except by operation of a statute enacted for that purpose and rati- fied by a majority of the votes cast at the next general election after the psange of such statute. Bw. 10. All property, both real and peraonal, of the wife, owned or claimed by her hefore marriage, and that acquired afterward by gift, devise, or descent, shall be her separate property, and laws shall be passed more clearly defining the rights of the wife in relation as well to oer separate property, as to that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property. Bw. 11. So contract of marriage, if otherwise duly made, shall be invaUdated for want of conformity to the requirements of any religious MCt. Sw. 12. So perpetuities shall be allowed except for eleemosynary purposes. Sk. 13. £venr person shall be disqualified from holding any office of profit in this State, who shall have been convicted of having given or oflered a bribe to procure his election or appointment. Bic 14. Ko person holding lucrative office under the United States or any other power, shall be eligible to any office of honor, trust, or profit in this State; but officers in the militia who receive no annual •alaiy, and local officers and Postmasters whose compensation does not exceed five hundred dollars per annum, shall not be deemed persons holding lucrative offices. Sw. 15. Laws shall be made to exclude from office, serving on juries, «nd from the right of suffrage, those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes. The privilege of free suffrage shall be supported by laws regulating elections, and prohibit- ing, under adequate penalties, all undue influence thereon from power, bribery, tumult, or other improper practice. Bw. It. Absence from this State on business of the State, or of the United States, shall not affect the question of residence of any person. Sw. 17. If this Constitution is adopted by the people, the Legislature of which the members of the Assembly are elected at the general elec- tion, in the year eighteen hundred and seventy-nine, shall meet on Tuesday after the first Monday in January, eighteen hundred and eighty. Sw. 18. The Legislature, at its first session, or aa soon as may be after the adoption of this Constitution, shall pass such laws as may be "•ceisary to carry the same into full force and effect. Sk. 19. All persons in office in this State at the timeof the adoption of this Constitution, shall hold their respective offices until the term for *IUdi they have been elected or appointed shall expire, and until their MeoMSor shall be duly qualified, unless otherwise provided in this Con- «itatioa. 8k. 20. At the general election next after the adoption of this Con- rtifBtJon, there shall be elected in the City and County of San Francisco •even Judges of the District Court of said city and county. Bw. 21. The Legislature, at the first session after the adoption of Uui Constitution, shall fix and determine the compensation of the •nsUess of the Supreme Court and of the Judges of the several Judicial MMiieto of the State, and the provisions of section twenty-four of article ■Xlhall not be deemed inconsistent herewith. . ffi*"- ^ ^ existing Court* shall continue in existence until the first I luaday in July, eighteen hundred and eighty, without abridgment of their present jurisdiction and powers, unless otherwise provided in this Constitution. Sec. 23. All actions and proceedings pending in the District, County, and Probate Courts of the several counties of this State, and in the Munici[)al Criminal Court of Ban Francisco, on tke firet Monday in July, eighteen hundred and eighty, shall be transferred to, and tried and determined in, the District Court of the oounty in which such actions or proceedings are pending. Sic. 24. All actions or proceedings pending and undetermined in the Supreme Court now in existence, on the first Monday in July, eighteen hundred and eighty, must be transferred for determination to the Supreme Court created by this Constitution. Sw. 2i. All rights, prosecutions, claims, and contracts existing, and all laws in force, at the time of the adoption of this Constitution, and not inconsistent therewith, until altered or repealed by the Legislature, shall continue as if this Constitution had not oeen adopted. Skc. 26. In all laws which shall be in force on the first Mondav in July, eighteen hundred and eighty, and in which the words " Prot>ate Court," " Probate Judge," " County Court," " County* Judge," " Munic- ipal Criminal Court of San Francisco," and "Judge of the Municipal Criminal Court of San Francisco" appear, such words shall have the same effect as if written " District Court " and "Judge of the District Court " respectively. Sic. 27. The Legislature shall provide for establishing and opening public and private roads; and in awarding damages for private property taken for such purpose, the benefits that shall accrue to the owtaers of land so taken from the establishing of such roads shall be considered in estimating such damages. Sic. 28. The Legislature may pass laws permitting the owners or occupants of land to construct drains and ditches for agricultural and sanitary pumoses across the lands of others. Sec. 29. No money collected by taxation in this State shall be placed in the hands of or be controlled by any religious sect, or by any person other than an officer duly elected or appoints under the laws thereof. Sic. 30. Neither this State nor any municipal corporation under the laws thereof, shall hereafter issue any bonds with coupons or other evidence of debt-bearing interest, except that the State may issue such evidence of debt only pursuant to section three of article eight of this Constitution. 8kc. 31 . The salary of any public officer in this State shall not exceed five thousand dollars per annum. AHKNDMIHT TO RULK. Mk. NOEL offered the following amendment to rule fifty-two: Rule 52. — Propositions and resolutions mentioned in the last fore- going rule shall embrace but one subject; they shall be read onoe by title, when introduced, and then referred, without debate, to an appro- priate committee. Mb. NOEL. The only alteration proposed is to dispense with the reading of the propoeitions when they are introduced. It simply pro- vides that they shall be read by title, and referred to the appropriate committees, without debate. Mr. BEEB8TECHEB. I rise to a point of order. We are now under section seven, intrdduction of propositions. Tbx PRESIDENT. We have passed that, and have got down to the sixth order of business, general orders. Mr. BEERSTECHER. I understood that the roll was to be called. TBI PRESIDENT. No one called for the calling of the roll, and it was passed to the next head. The question is, on the adoption of the amendment offered by Mr. Noel. The amendment was adopted. 'modi or PROCEDOBB. Mr. WINANS. I desire to call up my resolution in reference to the mode of procedure in our deliberations. Mr. BELCHER. I move that the gentleman's resolution be printed, and that it be made the special order for to-morrow, at two o'clock. Mb. ESTEE. I would suggest that we suspend the rule. Wa will have to suspend the rule if we consider it now. Mr. WINANS. I move that the rules be suspended for the purpose of considering this question now. Mb. ROLFE. It seems to me that we do not half of us know what the rules are. There was a resolution that they be printed and laid on our desks. I have not seen them or heard of them since. I simply rise more to make inquiry than anything else. Tax PRESIDENT. I understand that the amendments have not been printed. Mb. ESTEE. It has been impossible to print them while so many motions to amend were pending. When the Convention concludes that they have got about enough rules, then we will have them printed. They are standing in type now waiting for more rules. Mb. BELCHER'S motion prevailed. Mb. WEST. I move that clause eight, in rule seventy-three, be amended by striking out " nine " and inserting " thirteen," as the num- ber of members of the Committee on Education. Mb. BEERSTECHER. I rise to inquire whether the motion made by Mr. Larkin, to introduce this voluminous mass of matter, was to have it printed, or whether it was merely to be introduced here and not printed. Tbb PRESIDENT. What, Mr. McConnell's Constitution T Mb. BEERSTECHER. Yes, this Constitution. TBI PRESIDENT. Not to be printed. Me. BEERSTECHER. I move that we do now return to section seven, of rule seventeen, relating to the introduction of resolutions and propositions relating to the Constitution. I make this motion because I Know that there are a number of pen It^iyhiii II ' persons who have Digitized by G^"^gle 136 DEBATES AKD PROCEEDINGS Monday, introduce, and the rule was passed without really giving them an opportunity to introduce them. Of course it was witoout any intention. Thk PRE8IDEKT. The gentleman is out of order. FBIKTINO or PB0PU8ITI0N8. Mr. CAMPBELL offered the following: Rtulvtd, Thut rale MTentj-ona b« and 1> herrb; repmled ; bat nothing henin contained •hall be conitroed to prerent the printing of an; raoulation or propodtlon heretofore pr>«ented. Mb. CAMPBELL. I think we have certainly had enough printing done. Every gentleman has had an opportunity to have printed four propositions. Our tables are now incumbered with a mass of matter, in many eases mere copies of existing provisions of the Constitution ; in many cases mere repetitions of propositions made in twenty different forms, and substantially alike. It does seem to me that it is a waste of time and money to go any further in this matter of printing propositions that may be presented nere. There will be an opportunity for gentle- men, when tne^veral committees report, if their propositions are rejected, to prcseS them to the Convention in the fonn of amendments, and then they will be printed. It seems to me useless to go on and print them now. Many gentlemen seem to be under the impression that unless they present propositions now, and unless those propositions are printed now, that they will be cut off forever from any opjwrtunitjr to introduce what they may deem beneficial propositions. But that is entirely a mistake. Every proposition that they desire to make can be presented here, referred to the appropriate committee, and after that committee has acted upon it, if they do not choose to adopt it, the gen- tleman offering any such proposition will have an opportunity of presenting it here in the form of an amendment to the report of the committee. It seems to uie that we ought to repeal this rule. Mb. BEERSTECHER. When the matter of rule seventy-one, in relation to printing the propositions that were introduced here, came up for consideration, it occupied the time of this Convention for over two hours. It was then determined, after mature deliberation, and after a number of persons had spoken upon the subject, that these propositions should be printed. We have had, as the gentleman from San Francisco, Mr. Estee, has said, such a change in the rules of order that it has been impossible to print Mb. NOEL. I rise to a point of order. Under rule sixty this propo- sition must lie over one day. Thr PRESIDENT. The resolution is offered in accordance with pre- vious notice. The gentleman from San Francisco will proceed. ' Mb. BEERSTECHER. As stated by the gentleman from San' Fran- cisco, Mr. Estee, the changes have been so frequent, and the propositions to change so numerous, that it has been impossible to furnish this Con- vention with a properly corrected set of rules. Not a day comes but a dozen propositions come floating iu here to change the standing rules. These rules were referred to a committee of competent and qualified persons, and, after deliberation, they were reported upon here in the Convention, discussed at length, and adopted. They were the sense of the Convention at that time, and I cannot see at this time why these rules should be changed, and more particularly this rule in relation to printing the propositions that are introduced here. If this rule is abro- gated or wiped out, many of the propositions that are introduced will be consigned to oblivion, because sending the propositions to these commit- tees is equivalent to consigning them to oblivion forever. Therefore, I hope that the resolution of the gentleman from Alameda, Mr. Camp- bell, will be promptly voted down. I hope we will stand by the rule as it now reads — that four hundred and eighty copies of the propositions be printed. It is the only true way ; it is the only proper way. Every man that introduces a resolution introduces it in good laith, and in just exactly such a manner as he is able to introduce it. It ought to be recognized by the Convention. Every individual member of this Con- vention ought to have an opportunity of examining every proposition that is brought before the Convention' and examining the propositions at leisure; not only the members but the reporters of the press should have a chance to get them and canvass them and report on them for their papers. It is the only method that we have now in order to give the people any light upon the subjects that are introduced here. I hope the resolution will be promptly voted down. Mb. NOEL. I move to refer the resolution to the Committee on Rules. Mb. WEST. I move to amend by referring the matter to the Com mittee on Reporting and Printing. Thb president. The Committee on Printinf; would have nothing to do with that proposition. It is simply a resolution in reference to one of the rules. Mb. west. It is the opinion of many members that there are questions involved in this matter that might be considered by the Com- mittee on Printing. It is suggested that the form of printing these propositions might be changed so that it would not be so expensive. Mb. CAMPBELL. I do not see what light we can get by any refer- ence to either of these committees. It seems to me to be a perfectly plain proposition. We have been for three days, I think, receiving these propositions. They have come in in vast volumes, and it is time, I think, that we should stop printing the same matter, substantially, over and over again, and wasting the mone^ of the State on what can be productive of no benefit whatever. Now, the gentleman is entirely mistaken in saying that any proposition which any gentleman may have to make will be smothered, because it is not printed now and laid on our desks now. I have a great many propositions that I shall make at the proper time, but if every gentleman undertook to have printed every amendment that he desires to have made to the Constitution, there would not be enough money in the entire appropriation to pay for the printing of what would be introduced by one hundred and flft^-two membera. There will be an ample opportunity when the committees oome in and report upon the several subjects. Their reports will be printed. If the proposition which any gentleman desires to engraft on the Constitution is not found in this report, he will have an ample opportunity to present his proposition in the form of an amend- ment. It will be taken up and discussed in Committee of the Whole. There will be no smothering or concealment about it, and none is posN- ble. M^ only object is to stop the printing of this mass of resolutioni coming m on the same subject, with the same things stated over and over again, and the enormous expense which is entailed. Let gentle- men present their propositions, have them referred to the appropriate committees, and then, if they are not adopted by the committee, InoTe them as amendments in Committee of the Whole. Mb. NOEL. I rise to a point of order, in regard to the amendment to my motion. Rule twenty reads: "Every proposition or resolution shall be referred to the appropriate standing committee, as indicated by its name given herein." I submit that the Committee on Rules and Order of Business is the appropriate committee to refer this to, and that the amendment to my motion is out of order. If the resolution ii referred, it must be to the appropriate committee, and that committee is the Committee on Rules and Order of Business. Thb PRESIDENT. The Chair did not entertain the motion to refer to the Committee on Reporting and Printing as an amendment, but as a se|>arate motion. The first question is on. the motion to refer to the Committee on Rules and Order of Business. If that motion is lost, the question will be on the motion to refer to the Committee on Reporting and Printing. Mb. BARBOUR. I hope the Convention will not refer this question. There is nothing to refer to the Committee on Rules. I think the gen- tleman could accomplish his object by having the rules amended so that propositions which have been already printed, as will appear by an examination of those printed, shall not be printed again. I am in uvor of adhering to the rule calling for the printing of the propositions, bat I agree with the gentleman that we should not have these propositions printed over and over again. Let him propose an amendment (o the rule, so that whenever a proposition is introduced, which appears to be subbtantially the same as one already introduced, it shall not be printed. Mb. van dyke. I hope that the resolution of the gentleman from Alameda, Mr. Campbell, will be adopted. If that rule is repealed, it does not prevent this body from ordering the printing of any proposition the importance of which may demand it. But to repeal it will prevent the printing of a great many, to say the least, immature and ill-consid- ered propositions, and it certainly will do no harm if they are smoth- ered. But, Mr. President, if these propositions are not printed, it does not follow that they will be smothered. They will go to the proper oommiltees and will receive that fair treatment and consideration which their importance may demand. If the proper committees fail to approve, in whole or in part, those propositions so referred, the mover can renew the proposition in the shape of an amendment, and then they can be ordered printed. It strikes me that this matter was not maturely con- sidered, with all dtie respect to the gentlemen. I think it was not maturely considered. I think we have made a mistake in sending all these propositions out. It will entail a large bill of expense. The gentlemen who speak long and loud in reference to extravagance should bear this in mind. I hope that the motion to repeal the rule will prevail, and then, if any proposition of importance is presented, it can be printed by order of the Convention. Mr. ESTEE. The Committee on Rules and Order of Business are not desirous of examining this or any other proposition that tliis house does not wish should go to them, but there are other committees in this body and by-and-by when other resolutions are introduced, and when this house undertakes todetermine which is the appropriate committee to refer them to, I apprehend that members of this body will call attention to rule twcuty and claim that a certain reference was contrary to rule twenty, and contrary to the rights of this body. I maintain that the whole proposition is out of order, unless this rul6 is suspended. All questions of this character must be referred to a standing committee of this house, under rule twenty, and under a special rule that all questions relative to the rules should be referred to the Committee on Rules and Order of Business. I raise the point of order that this question should be referred to the Committee on Rules and Order of Business as a standing committee of this house. When the President passes upon that I desire Thi PRESIDENT. The Chair rules that the motion of the gentle- man from Alameda, Mr. Campbell, will go to the Committee on Roles and Order of Business, under the previous order of the Convention. KOTICK. Mb. EDGERTON. I give notice that I will, on to-morrow, move the following amendment to rule seventy -one: " But no proposition, so far as the same contains the matter in the existing Constitution, shall be printed; nor shall any proposition be printed which is in substance the same as one already printed." BKFKBRED. Mb. McCALLUM. I gave notice, on yesterday, that I would move to amend rule sixty. After the ruling of the Cliair in the case of Mr. Campbell's resolution, I ask that my motion go to the Committee on Rules. Ta« PRESIDENT. It is so ordered. RIPORTINO THK OEBATIS. Mb. HUESTIS. In accordance with the notice given on Friday, I now move to reconsider the vote by which the Convention adopted the report of the Committee on Mileage and Contingent Expenses, in rejpid to the matter of reporting the proceedings and debates of this Convention. Me. NOEL. I move to lay the motion on the table. The motion prevailed. Digitized by' on tue laoie. Google Oct. 14, 1878. OF THE CONSTITUTIONAL CONVENTION. 137 RErKBISCK. Mb. west. I ask that my motion in reference to rule seventy-three be referred to the Committee on Rules and Order of Business. So ordered. BISOLnTIONS AND PROPUSITtOSS. Mb. white. I more that we now return to the seventh order of bosinees, seventh subdivision of rule seventeen, relative to the introduc- tion of resolutions and propositions relating to the Constitution. Carried. MODI or SCBHITTINQ THK COKSTITCTION. Mb. BARBOUR offered the following resolution, relative to the mode of submitting the proposed new Constitution to the people : Boohed, Ttwt it is oompetent for tliia ConTention, in addition to Bubmittlng for ntific«Uoa or rejection the Gouatitotlon it nuy dnft, to submit 8cp«rat« propcsitions to b« inserted therein. proTided n majority of the electors of this State so decide by their Totsa at the election to be held on such submission. Mb. BARBOUR. I move its reference to the Committee of the Whole. Mk. C.\MPB£LL. It seems to me that the Committee on Judiciary and Judicial Department is the proper committee to refer that to. I move, as an amendment, that it be referred to the Committee on Judiciary and Judicial Department. Mb. BARBOUR. Is the question on referring to the Committee of the Whole? Thb president. That is the first q^uestion. Mb. McCALLUM. That is the order m which the question must be put; first to the Compiittee of the Whole, and then to a standing com- mittee. Kow I submit, in one word, that the resolution involving, as it docs, so great a legal question as is presented in that resolution, ought to go to the Committee on Judiciary. It might involve the success or the defeat of the work of this whole Convention. I understand that it is thought, notwithstanding the action of the Legislature, that we may submit any portion of the Constitution or a separate proposition, but the Committee on Judiciary, in my judgment, ought to pass upon all such questions. Mb. CAPLES. It seems to me, Mr. President Thb president. It is not debatable. Mb. McCALLUM. I ask the Chair under what rule he is deriding? Thb president. Under the rule under which we are working. Mb. ESTEE. I raise the point of order, that under rule twenty all qaestions of this kind must go to a standing committee. The question was put, and Mr. Barbour's motion was lost on a stand- ing Tote ; ayes, forty-three, noes, eighty-four. The resolution was then referred to the Committee on Judiciary. wabxboosrs. Mb. BEERSTECHER introduced the following proposed amendment lo the Constitution, relative to subjecting warehouses to legislative control: Abticlk — . Sbctioh 1. All buildings or other structures used exclusively or par- tially for the storage of grain or other property, for a direct compensa- tioDjor where such storage is incidental to some other compensatory traDsacUon, and whether the property stored be kept separated or not, are declared to be public warehouses, subject to legislative control as to rates of storage and otherwise. Sbc. 2. The owner, lessee, or manager of every public warehouse shall make weekly statements, under oath, before an authorized officer ; shall keep a copy of such statement posted in a conspicuous place in said warenouse; shall file a copy of sucn statement without delay in the office of the County Clerk of the county wherein such warehouse may be; and, also, file a copy with the Secretary of State. Such statement shall let forth the amount and grade of each kind of grain, and of other property, in such warehouse ; what warehouse receipts have been issued, and to whom ; which are, at time of statement, outstanding. On the copy posted in the warehouse there shall be daily noted all changes that occur in the quantity and grade of property on storage. Sbt. 3. The owners, consignees, aud holders of warehouse receipts shall have the right to examine such property, and all books and records relating thereto, and ever^ citizen, within business hours of any day, shall have a right to examine the statement mentioned in section two of this article. Sbc. 4. Railroad companies and other common carriers shall weigh grain and other property at place of shipment, and receipt for full amoont, and shall be responsible for the delivery of such amount, to the owner or consignee, at the place of destination. Sbc. 5. Railroad companies receiving and transporting grain and other property shall deliver the some, without delay, to any consignee thereof, or to any public warehouse or other place of deposit to which it may be consigned, without compensation other than the regular freight rates ; ptwrided, such consignee, public warehouse, or other plac<' of deposit can be reached by any track owned, leased, or used, or whicB can he used, by such railroad companies; and railroad companies shall permit connections to be made with their tracks, so that any consignee, poblie warehouse, or other place of deposit may be reached by the cars mnning on said railroads. Bbc. 6. The Legislature shall provide, by law, for the inspection of grain and other prwiucts used for food. Sbc. 7. The Legislature shall past all necessary laws to give full **ci to this article of the Constitution, which shall be liberally con- ■irned, K) as to protect producers and shippers. And this article shall Bet be constmed to deny the Legislature tno power to prescribe, by law, otter and further remedies, as may be found expedient, or to deprive mm-w T»-^g jf existing common law remedies. cd to Committee on Miscellaneous Subjects. 18 BBVENOB AND TAXATION. Mr. BEERSTECHER introduced the following proposed amendment to the Constitution, relative to revenue and taxation : Articlk — . Sbction 1. Taxation, except as hereinafter provided, whether im- posed by the State, county, or other political corporate bodies, shall be equal and uniform. All property, both real, personal, and mixed, shall be taxed in proportion to its true and full value, to be ascertained by law. No species of property from which a tax may be collected shall be taxed higher than any other species of property of'^equal value. Bkc. 2. The property, real and personal, of the State, of counties, and other corporate subdivisions of the State, shall be exempt from taxation. Sbc. 3. The property, real and personal, of blind and of deaf and dumb persons, to the value of five thousand dollars; the wearing apparel, household furniture, end utensils of every family, to the value of three hundred dollars; the tools of every laborer, miner, and mechanic, to the value of two hundred dollars; the fanning implements and team of every cultivator of land (farmer), to the value of five hun- dred dollars, and all growing crops, shall be exempt from taxation. There shall be no poll tax levied or collected in this State. Skc. 4. All laws exempting propertj^ from taxation, other than the property above enumerated, shall be void. Sbc. 5. No county, or subdivision of the State, nor the inhabitants thereof, por the property therein, shall be released or discharged from their or its proportionate share of taxes, nor shall commutation for taxes be authorized in any form. Sbc. 6. The Legislature shall, by general laws, vest in the corporate authorities of counties and subdivisions of the State the power to levy, assess, and collect the necessary taxes other than State taxes. Sbc. 7. The rolling stock and all movable property, also all credits, and all certificates of stock, belonging to and held by any railroad com- pany or corporation in this State, shall be considered personal property, and taxed as such. All other property owned and held by any such company or corporation shall be considered real estate, and taxed as such. SxG. 8. Mining aud other stocks shall be assessed and taxed at their ruling money value at the time of assessment. Sbc. 9. All property employed in banking shall bear a burden of taxation equal to that imposed on like property of private persons, and all notes and bills discounted or purchased, moneys loaned, and all property, effects and dues, without deduction, shall be taxed. Sec. 10. The property of all corporations, whether heretofore, or hereafter incorporated, shall be subject to taxation, the same as other property. Sbo. 11. When property is mortgaged, the amount of money bor- rowed on such mortgage shall l>e deiTucted from the actual value of the property, and the amount of the mortgage assessed to the mortgagee. If the. mortgagee fail to pay the tax levied on the mortgage, the mortgagor shall; and in such case the mortgagor shall deduct the amount so paid from the interest or principal due or to become due on said mortgage. Sto. 12. All agricultural lands of equal producing capacity, whether cultivated or wild, improved or nmimprored, shall be subject to the same rate of taxation, regardless of improvements. Sbc. 13. All property, over and above the value of five thousand dollars, owned by any one person, or by any company, corporation, or copartnership, shall be subject to a graduated progressive tax, on an ascending scale, to be assessed on each additional five thousand dol- lars or less. Sbc. 14. No tax shall be levied except in pursuance of a law which shall distinctly state the objectof the same, to which object, only, such tax shall be applied. Sbc 15. Taxes for county, city, town, and school purposes may be levied on all subjects of taxation, but the valuation of property therefor shall not exceed the valuation of the same property for State purposes. For county purposes the annual rate on property, in counties having five million dollars or less, shall not, in the aggregate, exceed fifty cents on the hundred dollars' valuation; in counties having five million dol- lars, and under ten million dollars, said rate shall not exceed fifty cents on the hundred dollars' valuation ; in counties having ten million dol- lars, and under twenty million dollars, said rate shall not exceed thirty- five cents on the hundred dollars' valuation ; in counties having over thirty million dollars, said rate shall not exceed thirty cents on the hunnrcd dollars' valuation. For city and town, or city and county (where city and county are united) purposes, the annual rate on prop- erty in cities and towns having thirty thousand inhabitants or more, shall not, in the aggregate, exceed one hundred cents on the hundred dollars' valuation; in cities and towns having less than thirty thousand and over ten thousand inhabitants, said rate shall not exceed sixty cents on the hundred dollars' valuation ; in cities and towns having less than ten thousand and more than one thousand inhabitants, said rate shall not exceed fifty cents on the hundred dollars' valuation ; and in towns having one thousand or less inhabitants, said rate shall not exceed twenty-five cents on the hundred dollars' valuation. For school pur- poses the annual rate on property shall not exceed fifty cents on the hundred dollars' valuation ; provided, that the annual rates for school purposes may be increased in districts formed of cities and towns, or cities and counties, to an amount not toexceee carried out by the State Wardens. Sic. 34. The Legislature shall, if practicable, provide a system of labor for the convicts which shall make them self-supporting, but not in any way that shall seriously conQict with the free labor of mechanics. Beferred to Committee on Pardoning Power. BEIBINO LBQIBLATOBS. Ma. DOWLING introduced the following proposed amendment to the Constitution, authorizing the State to grant rewards : Sic — . The Legislature shall provide that a reward often thousand dollars. United States gold coin, shall be paid out of the State treasury to any member of the Assembly or the Senate of the State of California who shall produce such evidence as will convict any person or persons of having offered a bribe to an/ member of the Legislature, to any Judge of the Supreme Court, or to any District Judge of the State of California. Sic — . Any member of the Legislature giving such information will be exonerated from all collusion in or with the person offering said bribe. Referred to Committee on Legislative Department. APPRKNTICX LAW. Mb. DOWLIKO introduced the following proposed amendment to the Constitution, authorizing the State to found ab apprentice law : Sic — . Persons apprenticed to any trade, or calling, business, or profession, shall serve the specified time acconling and m compliance with a written or printed agreement, stating the terms on which the laid apprenticeship is based. Sic — . The Governor of the State shall sign, and cause to be issued, s State certificate of apprenticeship to any and all apprentices who shall have served, in compliance with tne stipulated agreement, the term of fire years, in the State of California. Bic — . The person or persons to whom the apprentice is bound shall be considered, by law, his or her guardian, and shall not inflict any harsh, arbitrary, or cruel treatment on the said apprentice. Sic. — . The term harsh, arbitrary, or cruel treatment does not imply to chastisement reasonably expected from parents on disobedient chil- dren. Sic. — . The maximom term of apprenticeship shall not exceed five years. Sic. — . The apprentice shall he diligent, obedient, and respectful to his or her guardian. Sic — . The guardian shall be kind, affable, and courteous to his or her apprentice. Sec — . The agreement entered into by the guardian and apprentice ■hall be signed by a Notary Public and two witnesses. Sec — . At the expiration of the term of apprenticeship, the Stale shall five a premium of ($200) two hundred dollars to said apprentice; provided, that the stipulations of agreement shall have been complied with. Ssc — . No person shall be apprenticed to any trade, calling, busi- ness, or profession, who shall not have attained the age of years. Beferred to Committee on Legislative Department. MIIIBKBS or THI LIOISLATCBK. Mb. FARRELL introduced the following proposition for incorporation in the proposed new Constitution, in relation to the Legislative Depart- ment: Sicnox — . Ko member of the Legislature shall vote upon any question in which he, individually, or any corporation for which he is agent or attorney, is directly interested. Referred to Committee on Legislative Department. BBLIOIOX IN SCHOOLS. Hb. FARRELL introduced the following proposed amendment to the Constitution, in relation to education : Proposition for incorporation in the proposed new Constitution, in relation to education : Sktiox — . Ko political, sectarian, or partisan test shall ever be allowed or exercised in the appointment or employment of officers or instructors in any of the public schools or State institutions of learning; and no religious or other sect, denomination, or class, shall ever have any exclusive right to, or control of, any part of the school or educa- tional funds of this State. Referred to Committee on Education. APFBOPBIATIONS. Mb. FAWCETT introduced the following proposed amendment to the Constitntion, prohibiting the appropriation of money by the Legislature ^m county and city treasuries, etc. ; Inoorporate the following section in the Constitution : 81CT10K — . The Legislature shall not, by special law, appropriate sny money from the treasury of any county, city, district, or other polit- iouor municipal subdivision, nor allow or direct the allowance 01 any claim or demand against the same. Beferred to the (%mmittee on Legislative Department. DICLARATIOH UP BIGHTS. ° Hi. FAWCETT introduced the following proposed amendment to the preamble and Bill of Rights : Amend section sixteen, article one, of the Constitution, as follows: Sm. U. No bill of attainder, ex post facto law, or law impairing the ■■Uigaiioa of contracts, or impairing the remedy for the enforcement of the same, or changing the rules of evidence or measure of damages so OS to destroy or impair existing riglfls of action, shall ever he passed. Referred to Committee on Preamble and Bill of Rights. ABOLITIOX op PINKS. Mr. FREUD introduced the following proposed amendment to the Constitution, relative to the penalty for crimes : StcTioH — . The penalty for all crimes shall be imprisonment; and punishment by money fines is hereby abolished. Imprisonment shall DC proportioned to the character and aegrce of the crime. Referred to the Committee on Preamble and Bill of Rii Rights. SPftCIAL LKOISLATIOR. Mr. FREUD introduced the following proposed amendment to the Constitution, relative to special legislation : SicTioif — . The Legislature shall not pass local or special laws in any of the following cases : i. Granting any corporation, association, or individual, any special or exclusive privilege, immunity, or franchise. 2. Creating, increasing, or decreasing Ihlaries, fees, or allowances of public officers during the time for which said officers are elected or appointed. 3. Creating offices, or prescribing the powers or duties of officers, in cities, counties, townships, or other municipal corporations. 4. Regulating or changing city, county, or township affairs, or appoint- ing commissioners to transact the same. 4. Authorizing or directing the payment of money by any city, county, township, or other municipal corporation. 6. Restricting any town, city, or school district from supporting high iK-hools,or causing instruction to be given in branches of study additional to those defined by State law. 7. Laying out, opening, closing, altering, or working streets, roads, or highways. RefeiTed to the Committee on Legislative Department. SISSIONS OP TBI LEOI8LATDRK. Mr. grace introduced the following proposition, in relation to Leg- islative Department: SiCTiox — . The regular sessions of the Legislature shall be held once in every four years, and shall commence on the first Monda;^ suc- ceeding the first Tuesday in January next ensuing after the election of its members, which regular session shall be limited to one hundred days. Sec. — . No special session of the Legislature, convened by procla- mation of the Governor, shall continue longer than fifty days. Sic. — . All laws, before taking effect, shall be submitted to the people for ratification. Referred to the Committee on Legislative Department. TAXATION. Mr. HERRINGTON introduced the following proposed amendment to the Constitution, relating to revenue and taxation : Mr. President: I offer the following relating to revenue and taxation nnd sugi;pst that it be incorporated as sectiims of an article in the new Constitution, to be known as Revenue and Taxation : Srction — . The following property is exempt from taxation : Firtt — ^The property of the widow and orphan, to the value of one thousand dollars, when no greater amount in value is owned by such widow or orphan. Second — Lands exclusively used as public cemeteries. Third — Growing crope. Fourth — The lands and improvements thereon belonging to any per- sersons, are a nuisance or a menace, and detrimental to the morals and rights of its citizens. Sec. — . Each county, city and county, or other municipal (»rpora- tion, shall have the right to suppress, and remove from its borders, ail things or persons so declared ta*De nuisances, or detrimental to the rights and morals of its citizens. Referred to Committee on Preamble and Bill of Rights. EXECUTIVE DEPARTMENT. Mb. JOYCE introduced the following amendment to article five, to take the place of sections one, two, and three, of the present Constitu- tion : Raoletd, That the following amendments to article five, sections one, two, and three, of the present Constitution, be incorporatetl in the new Constitution : Section 1. The Executive Department shall consist of a Governor, Lieutenant-Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Superintendent of Public InstpaeUon,aDd Attorney-General, who shall qach hold his office for the term of two years from and alter the first Monday in December, eighteen hundred and seventy-nine, and until their successors are elected and qualified. Sec. 2. No person shall be eligible to the office of Governor, Lieu- tenant-Governor, Secretary of State, Auditor of Public Accounts, Treas- urer, Superintendent of Public Instruction, «nd Attorney-General, who shall not have attained the age of thirty years, and been for five yean next preceding their election a citizen of the United States and of this State. Neither the Governor, Lieutenant-Governor, Secretary of State, Auditor of Public Accounts, Superintendent of Public Instruction, Dor Attorney-General shall be eligible to any other office, ooromissioneiship, or position of trust, during the period for which they shall hare been elected. Referred to Committee on Executive Department. CBINEaE DEAD. Mb. KLGINE introduced the foUo^nng proposed amendment to the Constitution, relative to the exportation of uunuui remains: Abticle — , Section 1. It shall be a criminal offense to send &om this to any foreign country the bones or remains of any alien after the person has been interred for a |>eriod of two months or more. Referred to Committee on Chinese. COMMON schools. Mb. LARUE introduced the following proposed amendment to the Constitution, relating to a system of common schools : Amend section two, article nine, of the Ck>nstitution, so as to read as follows : Section 2. The Legislature shall provide for a system of common schools by which a school shall be kept up and supported in each dis- trict at least six months in every year. No district snail be deprived of its portion of the interest in the public fund unless throngn willful neglect to comply with the law. Referred to Committee on Education. CBEATION op DEBTS. Mb. LARUE introduced the following proposed amendment to the Constitution, relative to the creation of debts. Amend article eight of the Constitutiou by adding a new section, to be known and designated as section two, and to read as follows : Sec. 2. No debt shall be authorized to be created on any county, city and county, or town, or municipal corporation, in excess of five per cent, of the assessed valuation of the property therein, as equalized in pursuance of law ; and no authority shall be given to donate, appro- |>riate, or devise any money, or to loan the credit of any such county, city and county, or town, or municipal corporation, in aia of any private (nrpomtion, association, or person. The Legislature shall enforce this article by appropriate legislation. All public debts heretofore authorized and contracted for, in pursuance of law, are hereby made binding upon the State, county, or municipality contracting the same. Referred to the Committee on Legislative Department. ' DIVOBCES, Mr. LINDOW introduced the following proposed amendment to the Constitution, in relation to divorces : Abticle — . Section I. No person from whom a divorce has been obtained shall, during the lifetime of the person obtaining the divorce, be again allowed to contract a marriage; such divorces to be obtained by civil action, in the District Courts only, for causes provided by law. Referred to Legislative Committee. SALABT OP THE OOVESNOB. Mb. LINDOW introduced the following proposed amendment to the CoDstitutiim, relative to the Executive Department: Abtiolb — . Section I. The Governor of this State shall receive an annual aalaiy of five thousand dollars ($i,000), and shall be ineligible to hold any additional office of trust or profit in the gift of this government during his term of office as Governor. Referred to the Committee on Executive Department. EXEMPTION PBOM PORCXD SALES. Mb. MANSFIELD introduced the following proposition, to exempt from forced sale for taxes the property exempt oy law from sale on exe- cution : Saoived, That provision be made in the revised Constitution to exempt from forced sale for delinquent taxes all property exempt from sale by law on execution. Referred to Committee on Revenue and Taxation. APPOINTMENT OP JDDICIAL OPPICEBS. Mb. MANSFIELD introduced the following proposition, to appoint all judicial officers, except Justices of the Peace, and fix their term of office: Remlved, That section three, of article six, of the present Constitution, be so amended and revised in the new Constitution as to provide for the ap|>ointment of all judicial officers, except Justices of the Peace, and to fix their terms of omce during good behavior. - Referred to Committee on Judiciary and Judicial Department OENERAL PROVISIONS. Mr. martin, of Santa Cruz, introduced the following proposed amendments to the Constitutiou : Digitized by Google Oct. 14, 1878. OF THE CONSTITUTIONAL CONVENTION. 141 Abticlb — . Sictlox 1. The Legislature shall not, in any manner, create any debt or debts, liability or liabilities, which shall, singly or in the aggre- nte, with any previous debts or liabllities,exceerovided for; also in actions of forcible entnr and detainer, of nroceedings in insolvency, of actions to prevent or abate a nuisance, ana all sucji special cases and proceedings as are not otherwise provided for; also, of all matters of probate; and said Courts shall have the power of naturalization and to issue papers therefor. They shall h^ve appellate jurisdiction in all cases arising in Justices' and such other inferior Courts as may be estab- lished by the Legislature in their respective counties, upon questions of law alone. Said Courts shall be always open (le^l holidavs and non- judicial days excepted), and their original jurisdiction shall extend to all parts of the State. Said Courts and their Judges shall have power to- issue writs of habeas corpus, on petition by or on behalf of any person in actual custody, in their respective counties. There shall be ■n each of the organized counties, or cities and counties, of the State, a District Court, for each of which a District Judge shall be elected by the qualified electors of the county, or city and county, at the general State election ; provided, that in all the Aiid counties, or cities and coun- ties, containing more than fifty thousand inhabitants, there shall be one such District Court and District Judge for every forty thousand inhabitants, and in all such cases said Courts to be numbered from one upward, in numerical order, as the Legislature majr direct. The Dis- tnct Judgvs shall hold their offices for six years, dating from the second Monday after the first Tuesday in January next after their election. Sko. 9. Any District Judge, who shall be twice reelected, shall hold bis office during good behavior after the second reflection, but not after he shall have reached the age of seventy-one years. Skc. 10. The Justices of the Supreme Court and District Judges shall severally, during their continuance in office, receive for their services (quarterly) an annual salary, which shall not be increased or diminished during the term for which they shall have been elected. District Judges shall be paid out of the county treasury of their respective counties. The annual salary of the District .fudges shall be fixed by the Legisla- ture, not to exceed three thousand six hundred dollars in districts hav- ing more than thirty thousand inhabitants, and not to exceed two thousand dollars in districts having less than twenty thousand inhabi- tants. No district Judge or Justice of the Supreme Court shall, after the first day of July, eighteen hundree allowed to draw or receive any quarterly salary, unless they k1i:i!1 severally take and sub- scribe an oath before the disbursing officer that no case in their respect- ive Courts remains undecided, that has been submitted for decision for the (>eriod of sixty days. The Legislature shall enforce this provision by appropriate lef^islation. Sec. 1 1. District Judges shall be ineligible to any other office than a judicial office during the term for which they shall have been elected, except in cases of resignation, and then not until two years after such resignation. Skc. 12. Judges shall not charge juries with respect to matters of fact, nor state the testimony, 8eo. 13. The style of all processes shall be, " We, the People of the Slate of California," and all prosecutions shall be conducted in their name and by their authority. Sec. 14. The Justices of the Supreme Court shall be ineligible to any other office, State or Federal, during the tc-m for which they shall have been elected, except in cases of resignation, and then not until two years after such resignation. Sec. l&. The Justices shall appoint a reporter of the decisions of the Supreme Court, who shall hold his office and be removable at their fileasure. He shall receive an annual salary of eighteen hundred dol- ars, payable quarterly. Skc. 16. The Legislature shall fix by law the jurisdiction of any Criminal Court authorized to be established in large cities, and shall fix by law the powers, duties, and responsibilities of the Judges thereof. Sec. 17. The unfinished business remaining in the Probate Court of the City and County of San Francisco shall be apportioned between the several District Courts therein established, by the Board of Supervisors thereof, in such manner as the Legislature shall direct. Sec. 18. There shall he one Justice of the Peace elected in each town- ship in the State, and the Iiegislature shall determine the number of Justices of the Peace to be elected in each incorporated city and town, and shall fix by law the powers, duties, and responsibilities of Justices of the Peace ; provided, such powers shall not in any case trencli upon the jurisdiction of the several Courts of record. The Supreme Court, the District Courts, and such other Courts as the Legislature shall declare to be, shall be Courts of record. Sec. 19. The Legislature shall provide for the election of a Clerk of the Supreme Conrt, County Clerks, District Attorneys, Sherifls, and other necessary officers, and shall fix by law their duties and compen- sation. County Clerks shall be ex officio Clerks of the Courts of record and the Boards of Supervisors in and for their respective counties. . The legislature may also provide for the appointment, by the several Dis- trict Judges, or one or more Commissioners in their several counties, with authority to perform chamber business of the Judges of the Dis- trict (V>urts,lo take depositions, and perform such other duties connected with the administration of justice as may be prescribed by law. Sec. 20. The Legislature shall provide for the speedy publication of such opinions of the Supreme Court as it may deem expedient, and all opinions shall be free for publication by any person. The times and {ilaces of holding the sevenil Courts of record shall be provided for by aw. Referred to the Judiciary Committee. 8FBEDT DECiaiOKS. Mb. McCALLUM introduced the following proposed amendment to the Constitutinling to law, all money for which he is or may be liable. Sic. 16. No person shall be in the receipt, at the same time, of more than one official salary or oompensation. Sic. 17. All elections by tne Legislature, or either house thereof, shall be viva voce. Referred to Committee on Right of Suffrage. MILITU. Mb. NEUNABEB introduced the following proposed amendment to the Constitution, in relation to the militia : Srction 1. The Legislature shall provide by law for the organization and discipline of the militia in such manner as they shall deem expe- dient, not incompatible with the Constitution and laws of the Uuited SUtes. Sic. 2. Except in cases of war or insurrection, the Legislature shall Dot autboriie to be expended, or appropriate, more than twenty-five thousand dollars, in any one year, for organising and disciplining the militia, which shall include all salaries, ail rents and disbursements of every character relating to the militia of the State, and the care of the arms belon^g to the State. Sic. 3. The Governor shall have power to call forth the militia to execute the laws of the State, to repress insurrection, and repel invasion. Referred to Committee on Military Affairs. COBPOBATIONS. Ma. O'DONKELL introduced the following proposed amendment to the Constitution, concerning corporations: StCTiOM — . Individual citizens are hereby declared to be entitled to the same privileges as corporations in respect to the exercise of the right of eminent domain, and the taking of private property for public uses. Railroad corporations in possession of any part of the public lands, not necessarily required for conducting the business of such cor- poration, shall, on demand, deliver to any citizen a conveyance of any part of such lands not exceeding one hundred anerintendent of Public Instruction, or Schools, shall receive a salary exceeding two thousand four hundred dollars per annum ; and no Deputy Superintendent a salary exceeding one thousand eight hundred dollars. Skc. 9. No Police Judge of any city of this State shall receive a salary exceeding three thousand dollars per annum. Nor shall any appointee of any Ik>ard of Supervisors, or Board of Education, receive a salary exceeding two thousand dollars per annum. Skc. 10. No municipal officer, State or county, shall receive a salary exceeding two thousand dollars [)cr annum, other than the above named, except Governor, who shall not receive a salary exceeding five thousand dollars |)er annum. And the District, Supreme Court, and other Judges, shall not receive a salary higher than they are at present receiving. Skc. 1 1 . The above article shall be enforced by appropriate legislation to enforce and carry out the same. Referred to Committee on Legislative Department. BKVKNUK AND TAXATION. Mr. TOWNSEND introduced the following proposed amendment to the Constitution, in relation to revenue and taxation : Beaolved, That article eleven, section thirteen, be amended so as to read as follows : Articlk XI. Skc. 13. That all property within this State, except the property of the United States, of the State, and of municipal corporations, be subject to taxation. Taxation shall be equal and uniform throughout the State, and no one species of projicrty from which a tax may be collected shall be taxed higher than any other species of property of equal value. Lands and improvements shall be taxed separately, but every tax due upon the improvements shall be a lien upon the land upon which such improvements shall be, whether such improvements be assessed to the owner of such land or not. All lands and improve- ments thereon, all moneys, goods, chnttcls, real or personal, investment in bonds, slocks, and other personal property, except growing crops, shall be taxed in pmportion to their unincumbered value, to be ascer- taineaid by such owner as is equal to the fractional part that such debt bears to the unincumbered value thereof, shall be a credit upon such debt as of the day such tax shall lie so paid; and the o%vner of money, goods, chattels, real and personal, bonds, stocks, and other taxable personal property, shall, in the first instance pay all taxes assessed aeainst the same; but so much of any such tax »o paid by such owner as is equal to the fractional part that the unsecured debts of such owner, evidenced by notes or promises in writ- ing, bears to the assessed value thereof, shall be a credit upon such debts as of the day such tax shall be so paid. Beferred to the Committee on Revenue and Taxation. LKOISLATIVK DKPARTHKNT. Mr. TOWNSEND introduced the following proposed amendment to the Constitution, relative to the Iiegislative Department: Resoloed, That article four, sections two, three, five, six, sixteen, tui seventeen, be amended so as to read as follows : Articlk IV. Skc. 2. The sessions of the Legislature shall be quadrennial, and shall commence on the first Monday of January next ensuing the elec- tion of its members, unless the Governor of the State shall, in the interim, convene the Legislature by proclamation. No session shall continue longer than ninety days. Skc. 3. Members of the Assembly and Senate shall be chosen quad- rennially, by the qualified electors of their reepective districts, on the first Wednesday in September, unless otherwise ordered by the Legisla- ture, and their term of office shall be four years. Skc. 5. Members of the Assembly and Senate shall be qualified electors in their respective counties and districts which they represent, and no person shall be a member of the Assembly or Senate who hsi not been a citizen, inhabitant, and qualified elector, for one year next before his election, of the State and of the county or district for which he shall be chosen. Skc. 6. The number of Senators shall not be less than one third nor more than one half of that of the members of the Assembly. Skc. 16. Any bill may originate in either house of the Legislature, and all bills passed by one house may be amended in the other. Ko bill shall be introduced in either bouse on and after the tenth day next preceding the day fixed for the final adjournment of the Legislature, nor shall any bill be passed by either house after twelve o'clock, noon, of the last day of any session ; out veto messages may be considered up to the hour of final adjournment. Skc. 17. Every bill which may have passed the Legislature shall, before it becomes a law, be presented to tue Governor. If he approve it, he shall sign it; but if not, he shall return it, with his objections, to the house in which it originated, which shall enter the same upon the Journal, and proceed to reconsider it. If, after such reconsideration, it again passes both houses, by yeas and nays, by a majority of two thirds of the members of each house, it shall become a law, notwithstanding the Oovernor's objections. If any bill shall not be returned within ten days after it shall have been presented to him (Sundays excepted), the same shall become a law in like manner as if he had signed it, unless the Legislature, by adjournment, prevent such return. The Governor may approve any appropriation, and disapprove any other appropria- tion, in the same bill, by signing the bill and designating the appro- priation disapproved, and sending a copy of such appropriation, with his objections, t4> the bouse in which it originated ; and the same pro- ceedings shall he had on that part disapproved as on other bills dissp- proved by him. Referreid to the Committee on Legislative Department. JCOIOIAL OKPABTHKNT. Mr. TULLY introduced the following proposed amendment to the Constitution, relating to the Judicial Department : Skction 1. The judicial power of this Stale shall be vested in a Supreme Court, in District Courts of Appeals, in District Courts, and in Justices of the Peace. Skc. 2. The Supreme Court shall consist of nine Justices, one of whom shall be commissioned by the Governor aa Chief Justice. The presence of seven Justices shall be necessary for the transaction of busi- ness, except such as may be done at chambers ; and the concnrreDce of five Justices shall be necessary to pronounce a judgment. Skc. 3. The Justices of the Supreme Court shall be elected by the qualified electors of the State, at the general elections, for the term of fifteen years; provided, that whenever more than one Justice is to be elected at the same time, each elector may vote for only one half the number to he electeart of the State, upon petition on behalf of any person held in actual custody, and may make such writ returnable tefore himself, or the Supreme Court, or before any District Court of Appeals, or liefore any District Judge in the State. Skc. 5. The State shall be divided into nine judicial districts, suliject to alteration from time to time by the Legislature: provided, that the number thereof shall not be increased. There shall be four District Judges in each judicial district, except the first, in which there shall be nine District Judges. The District Judgessball be elected at the general elections, for the term of twelve years; proiniicd, that whenever more than one Judge is to be elected at the same time, in the same dietrict, each elector may vote only for one half the number to be elected, jf an even number, or if an odd number, then for only one more than a half- Skc. B. Terms of the District Court shall be' held in each county of the State by a single Jud|;e, and when so held shall have original juris- diction in all cases; provided, that in the First District one or more of said Judges, to be designated by the Governor, shall have exclusive Digitized by VjOOQIC Oct. 14, 1878. OF THE CONSTITUTIONAL CONVENTION. 145 inrisdiction in all criminal cases, jurisdiction of which shall not have Wn Tested by the LegisUtare in Justices of the Peace. Sic. 7. The Chief Justice of the Supreme Court shall assign one of the Justices of the Supreme Court to each judicial district, who shall, with at least two District Judges, hold the District Court of Appeals in his district : provided, that in the absence of the Justice of the Supreme Court, the District Court of Appeals may be held by three or more Dis- trict Judges, The Justice of the Supreme Court, or, in his absence, the senior Dirtrict Judge of the district, shall preside in the District Court of Sic. 8. The District Court of Appeals shall have appellate jurisdic- tion in all cases commenced in the District Courts or Courts of Justices of the Peace. And no appeal shall be allowed to the Supreme Court except from the District Court of Appeals. Sic 9. The District Courts of Appeals shall hear and determine all motions for a new trial made in the District Courts; and when a new trial is granted it may proceed and try the ease de novo. No appeal shall be allowed to the Supreme Court from an order granting or refus- ing a new trial. Sic. 10. The Legislature shall determine the number of Justices of the Peace in each city and township of the State, and fix, by law, their powers, duties, and responsibilities; frovided, that their jurisdiction shall not extend to any criminal case amounting to felony, or to any civil case in which the amount or value of the property in controversy exceeds three hundred dollars. The Supreme Court and the District Courts shall be Courts of record. Sic. 11. The Legislature shall provide for the election of a Clerk of the Supreme Court, County Clerks, District Attorneys, Sheriffs, and other necessary officials, and shall fix b^ law their duties and compen- sation. County Clerks shall be ex officio Clerks of the Courts of record in ind for their respective counties. The Legislature may also provide for the appointment, by the District Court of Appeals, in each judicial district, of one or more Commissioners for each county in the district, with authority to perform chamber business of the District Judges, and also to take depositions and acknowledgments. Sic 12. The times and places of holding the terms of the several Courts shall be provided by law. Sic. 13. No judicial officer, except Justices of the Peace and Com- missioners, shall receive to his own use any fees or perquisites of office. Sic. 14. The Legislature shall provide for the speedy publication of neh opinions of the Supreme Court as it may deem expedient ; but til opinions shall be free for publication by any person. Sic 15. The Justices of the Supreme (luurt and District Judges shall severally receive, at stated times, for their services, a compensation which snail not be increased or diminished during the term for which they shall have been elected ; provided, that the Justices of the Supreme Court first elected under this Constitution shall receive an annual salary of six thousand dollars each ; and the District Judges first elected under this Constitution shall receive an annual salary of five thousand dollars each. Sic. K. The Justices of the Supreme Court and the District Judges shall be ineligible to any other than a judicial office during the term for which they shall have been elected. Sic 17. Judges shall not charge juries with respect to matters of bet, but may state the testimony and declare the law. Sic. 18. The style of all process shall be, " The people of the State of California," and all prosecutions shall be conducted in their name and by their authority. Sic 19. The Supreme Court shall prescribe uniform rules of practice for all Courts of record in the State. 6ic 20. The City and County of San Francisco shall constitute the Pint Judicial District; [here will follow the other districts]. Beferred to the Committee on Judiciary and Judicial Department. Mb. TUTTLE introduced the following proposed amendment to the Constitution, in relation to Chinese : SicnoK I. Any corporation receiving its charter or act of incorpora- tion by or under the laws of this State, shall forfeit such charter and all legal rights thereunder, if it ever employs, in any capacity whatever, foreigneni who are not eligible to beooino citizens of the United States under the laws of Congress. This section shall be enforced by appro- priate legislation. Sic 2. The Governor of the State shall, by proclamation, forbid the entrance into this State, from and alter the fourth day of July, eighteen handred and eighty, of any foreigner who is ineligible, under the laws of Congress, to become a citiien of the United States; and the Legisla- ture shall empower the Governor, in case of disobedience of his proc- lamation, to expel by force any such foreigner who shall have arrived in the State after the fourth day of July, eighteen hundred and eighty, upon giving him thirty days' notice of the intention to expel him; pnmded, that nothing in this section shall authorize the Governor or any other State officer to forcibly resist any law officer, or the civil or military power of the United States. 6ic. S. If, by any law of Congress, or by any active interference in the government of the United Statoa, the Governor should be prevented from expelling the class of foreigners named in the preceding section in tbe manner prescribed in said section, he shall have the constitution- •lity of such laws of Congress, or of such interference of the govem- uent ot the United States in the affairs of the government of the State of California, tested in the United States Supreme Court, and yield obedience- to the decision of said Court if it should be adverse to the State of California. Beferred to Committee on Chinese. 19 TAXATION. Me. TUTTLE introduced the following proposed amendment to the Constitution, in relation to taxation : Sectiok 1. The taxing power shall be exercised by the Legislature for State purposes, and by counties and incorporated cities and towns when authorized by the Legislature. Sic 2. Taxes shall be levied and collected for public purposes onlpr, and shall be uniform, and levied and collected b^ general laws; and m order to insure a just levy and collection there is nereby constituted a State Board of Equalization.composedof the Secretary of State, Secretary uf Interior Affairs, and Attorney-General, which shall have the power to revise all levies of taxes for the purposes of State, and the Tax Col- lectors throughout the State shall bo governed by the rules and regula- tions prescribed by the Board of Equalization; and the Boanl of Supervisors of their respective counties, and cities and counties, shall be a Board of Equalization for such counties, or cities and counties. Sic. 3. The Legislature shall provide for an annual tax sufficient to meet all necessarv appropriations for the ordinary expenses of the State Government, including any portion of the Stale debt becoming due or the interest thereon, toe support of all State officers, and all institutions under the care and management, and for the necessary support of the public schools, as may be provided bylaw; but no State tax levied in any one year shall exceea twenty cents on the one hundred dollars of property taxed. Sic. 4. The several counties of the State, and consolidated cities and counties, shall have the right to levy a tax for necessary county pur- poses, but no such tax, for any one year, shall exceed thirty cents on the one hundred dollars of property; provided, that a reasonable additional tax may be levied by a unanimous vote of the Supervisors of any county, or consolidated city and county, to pay debts already legally incurred. Src. S. Taxes collected for State purposes shall be paid into the Stale treasury, and all taxes collected for county, and city and county purposes, shall be paid into the county treasury. Sic. 6. Every person and corporation shall pay taxes in proportion to the value of his, her, or its property within the State, except as hereinafter provided. Src. 7. All real estate shall be taxed, and in the assessment of land for taxation the improvements shall be separately assessed, and unculti- vated land, whether fenced or unfenced, shall be taxed at the same price as cultivated land of the same quality similarly located. Sic. 8. All personal property of^ every character and description, that baa a cash value in the market, shall be assessed and taxed at its market value, except as herein provided. AH bonds and mortgages shall be taxed to the owner of the same. All money, whether on hand or on deposit, in charge of others, shall be taxed to the owner. All solvent debts shall be assessed and taxed to the party to whom they are owing, but no debts due on open account with farmer, mechanics, and tradespeople shall be subject to taxation. All mining stock shall be taxed. All water stocks and gas stocks shall be taxed at their market value. All railroad slock shall be taxed at its market value. All the projierty, real and personal, of corporations, except as hereinafter pro- vided, shall be assessed and taxed. Sic 9. In assessing the property of any person for taxation, all his debts, of every description, owing to any one within the limits of the State, except those owed on open running accounts to merchants, traders, and profesaional men, shall be deducted from the total amount of prop- erty found in his possession and ownership, and the surplus only shall be assessed for taxation. Skc. 10. No corporation, except for benevolent, religious, scientific, or educational purposes, shall be hereafter formed under the -laws of this State, unices the persons named as corporators shall, at or before the fil- ing of the articles of incorporation, pay into the State treasury one hundred dollars for the first fifty thousand dollars of its stock, and a further sum of twenty dollara for every additional ten thousand dollars uf its capital stock, and no such corporation shall hereafter increase its capital stock without first paying into the State treasury twenty dollars for every ten thousand dollars of increase. Skc. 11. No license tax shall be imposed by this State on any muni- cipality thereof, upon any trade, calling, occu{iation, or business, except the following: Tlie manufacture and sale of all kinds of wine, spiritu- ous and matt liquors, shows, theaters, menageries, sleight of hand per- formances, exhibitions for profit, and such other business and occupa- tions of like character as the Legislature may judge the public peace or good order may require to be under special State or municipal regulation and control. Skc. 12. A succession tax shall be imposed and collected upon all legacies and distributive shares derived from the estates of all deceased person ; provided, that no child, brother, sister, father, mother, husband, or wife of any deceased person shall pay such succession tax (non-resi- dent aliens excepted) unless the distributive share of such person amounts in the aggregate to more than five thousand dollars in value, in which case all such persons shall pay atax of one per cent, on the excess of five thousand dollars. All other persons, corporations, and associa- tions (except non-resident aliens and foreign associalions and corpora- tions) shall poy a like tax of one percent, on the value of what they may respectively receive. Non-resident aliens and foreign corporations and associations shall pay a tax of two per cent, on the aggregate value of any distributive share they may respectively receive. Skc. 13. The net yearly proceeds of all newspapers published in the State shall be taxed as personal property. Sko. 14. The Iiegislature shall, by law, exempt five hundred dollars' worth of every one's property from taxation. Skc. I&. The following property, and no other, in addition to the amount named in the preoeaing sectfon, shall be exempt fpo^i taxation : Digitized by Google 146 DEBATES AND PROCEEDINGS Monday, Property belonging to the State, lands ceded to or belonging to the United States, buildings for free public schools, buildings Tor religious worship and the land upon which they stand and immediately surrounding the tame, to an extent not exceeding one acre, provided said building and land are occupied and used exclusively for religious, literary, or Muca- tional purposes. Property, real and personal, held for or by any incor- porated library society or free public library, or any free public library society, provided said property is held exclusively for library purposes; or land for the aid or support of poor, friendless children, or for the aid or support of the agM poor, or for a free hospital for the sick or disabled, or any fund given or held for the purpose of free public education. Also, all bonds and securities issued ana exempt from taxation by the laws of the United States. Also, money lent to farmers aud secured by mort- .gage on the farm of the borrower, to the amount of three thousand dol- uirs to any one farmer, and no more. Also, money lent on growing crops, when secured by a mortgage of the crop, tfl the amount of one thousand dollars, and no more. The type, presses, and furniture of all newspaper establishments. The pipes and all other fixtures of water and gas companies. The railroad beds and rolling stock of all railroad com- panies. Sic. 16. For the first year,and no longer,that any person isengaged in the business of farming or cultivation of the soil, all of his or her property of every kind and description shall be exempt from taxation. Beferred to Committee on Revenue and Taxation. FABOONINO POWIB. Mb. VACQUEREL introduced the following proposed amendment to article five, section thirteen, of the Constitution of California: S«c. 13. The Governor shall have power to grant reprieves, com- mutations, and pardons, after convictions, for all onenses, subject to such regulations as may be prescribed by law relative to the manner of apply- ing therefor. But when a criminal has been sentenced to death, and the execution should fail to take place on the day set, said sentence shall be commuted and another penalty inflicted. Referred to Committee on Pardoning Power. BIOHT OF aOFFBAOK. Mb. WEliLIN introduced the following proposed amendment to the Constitution, relative to the right of suffrage : Abticli — . Any alien who shall hereafter declare his intention of becoming an American citizen, and take out his first papers, shall enjoy all the rights of a citizen except the right to vote or hold office. Referred to Committee on Right of Suffrage. TAXATIOK. Mb. WELLIN introduced the following proposed amendment to the Constitution, relative to taxation : All companies incorporated within the State of California whose stock is of high and unknown value, or held privately as a close corporation, shall be assessed upon the full par value of their stocks. All foreign incorporations doing business in the State of California shall be taxed upon the amount of capital used within the State to carry on such business. All railroads shall be assessed upon their roadbed for the full amount of the cost of constructing such roadway. • Farm utensils in actual use, &rm houses, fences, fruit trees, and forest trees planted by the people, and all growing crops, shall be exempt &om taxation. For non-payment of taxes, State, county, or incorporated towns shall sell such property as the tax becomes delinquent upon, such sales and deeds of conveyance to be governed by Acts of the Legislature. Farm- ing, mineral, and timber lands, for non-payment of tax, shall revert to the State. Referred to Conunittee on Revenue and Taxation. MOBAt IKSTBCCTION IM THK PUBLIC SCH00I.8. Mb. WICKES introduced the following proposed amendment to the Constitution, relative to the standard of moral instruction in our public schools : To article on education : Section — . The standard of moral instruction in our public schools shall be that set forth in the Bible, precluding sectarianism. Referred to Committee on Education. COBPOBATIONS. Mb. white introduced the following proposed amendment to the Constitution, in relation to corporations other than municipal : Abticlb — . Sbctiok 1. The Legislature shall provide by law for the election of a Board of Commissioners, to be known as " The Railroad and Harbor Commissioners." Sec. 2. Three Commissioners shall constitute the Board, and they shall be elected by single districts, to hold their office for six years, except as hereinafter provided. The districts shall be equal in popula- tion, or near as may De, and shall be numbered, beginning with the most southern one, one, two, and three. Sec. 3. The Commissioners shall be elected on the same day with all other State officers, and inaugurated in like manner on the same day. The Commissioner of District Number One shall hold his office for two years; the Commissioner of District Number Two shall hold his office for four years; the Commissioner of District Number Three shall bold office for the full term of six years, and thence afterwards all their successors shall hold office for a term of six years, except Commissioners elected to fill vacancies, and they s^all only hold office for the unex- pired part of the term of their predecessors. Skc. 4. The duties of the Board of Harbor and Railroad Commis- sioners shall be as follows, subject to such alteration and chanro by the Legislature, from time to time, as may be found necessarv for the public good : they shall perform all the duties now performed by the Boaid of State Harbor Commissioners, and all the duties in relation to rail- roads that are assigned to them by this Constitution or by any enactment of the Legislature. The said Board of Commissioners shall receive an annual salary of three thousand dollars each, which shall be in full compensation for all services rendered. They shall be entitled to the services of one or two clerks, as the fulfillment of their duties may require. Such clerks shall not receive a higher compensation for their services than eighteen hundred dollars per annum. Seo. i. Railways heretofore constructed, or that may hereafter bs constructed in this State, are hereby declared public highways, and rail- road companies common carriers. Sec. 6. Any railroad corporation or association, organized for the purpose, shall have the right to construct and operate a railroad between any points within this State, and to connect at the State line with nil- roads of other States. Every railroad company stall have the right, with its road, to intersect, connect with, or cross any other railroad, and shall receive and transport each the other's passengers, tonnage, and cars, loaded or empty, without dalay or discrimination. Sec. 7. The exercise of the right of eminent domain shall never be abridged or so construed as to prevent the Legislature from taking the property and franchises of incorporated companies, and subjecting them to publift use, the same as the property of individuals; and the exercise of the police power of the State shall never be abridged or so construed as to permit corporations to conduct their business m such manner as «o infringe the equal rights of individuals or the general well-being of the State. Sec. 8. The Legislature shall pass no law for the benefit of a railroad or other corporation, or any individual or association of individuals, retros))ective in its operation, or which imposes on the people of any county or municipal subdivision of the State a new liability in req>ect to transactions or considerations already past. Skc. 9. No railroad or other transportation company shall grant any free pass or ticket, or grant any pass or ticket at a discount, to any member of the Legislature, or any State, county, or municipal officer, and the acceptance of any such pass or ticket by a member of the Legis- lature, or by any such officer, shall be a forfeiture of his office, and he shall be subject to the pains and penalties of a bribe-taker. Sec. 10. The rolling stock and all other movable property belonging to any railroad company or corporation in this State shall be considered personal property, and shall be liable to execution and sale in the same manner as tne personal property of individuals; and the Legislatore shall pass no law exempting any such property from execution and sale. Sec. 11. No law shall be pas.^ by the Legislature granting the right to construct and operate a street railroad within any city, town, village, or on any public highway, without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad; and the franchise so granted shall not be transferred without similar assent first obtained. Sec. 12. No railroad corporation in existence at the time of the adop- tion of this Constitution shall have the benefit of any future legislation, except on condition of complete acceptance of all the provisions of this Constitution applicable to railroads. Sec. 13. No rresident,Director,officer,agent,oremploj^^ofanyrBil- road company shall be interested, directly or indirectly, in furnishing material or supplies to such company, or in the business of transporta- tion as a common carrier oC freight or passengers over the works owned, leased, controlled, or worked by such coinpany. Sec. 14. It shall not be lawful in this State for any railway company to charge for freight or passengers a greater amount for the transporta- tion of the same for a less distance than the amount charged for any greater distance. Sec. 15. Every railroad or other corporation, organized or doing business in this State under the laws or authority thereof, shall have and maintain a public office or place in this State for the transaction of business, where transfers of stock shall bo made, and where shall be kept, for public inspection, books in which shall be recorded the amount of capital stock subscribed, the names of the owners of the stock, the amounts owned by them respectively, the amount of stock paid and by whom, the said transfer of stock, with the date of transfer, the amount of its assets and liabilities, and the names and places of residence of its officers. The Directors of every railroad company shall hold one meet- ing annually in this State, public notice of which shall be given thirty days previously, and shall report annually, under oath, to the Governor of the State, all of their acts and doings, which report shall include such matters relating to railroads as may be prescribed by law. Sec. 16. The Railroad Commissioners provided for in this Constitu- tion shall have absolute power to fix the rates of faree and freights of all railroads in this State, and shall reflate and establish them as in their judgment shall seem just and fair to the railroad owners and to the public generally. Sec. 17. Once in each year the Railroad Commissioners shall re- adjust the rates of fares and freights of all railroads in the State, and cause a printed schedule of such rates and fares to be properly framed and hung in a conspicuous place at every railroad depot and every rail- road station in the Slate. Sec. is. The Railroad Commissioners shall perform all duties in relation to the railroads, other than those prescribed in the last two sec- tions, as may be required of them by law. Sec. 19. All railroad companies shall be responsible for all damages to life or property that may occur on their roads, tlirough carelessness or any neglect whatever. Digitized by Google Oct. 14, 1878. OF THE CONSTITUTIONAL CONVENTION. 147 Sic. 20. The foreeoing provisions in relation to railroad companies and corporations shall be enforced by appropriate legislation. Sic. 21. Every chapter and section of an Act of the State Legislature, entitled "An Act to create the office of Commissioner of Transportation, ind to define its powers and duties, to fix the maximum charges for tnusporting passengers and freights on certain railroads, and to prevent extortion and unjust discrimination thereon," approved April first, eighteen hundred and seventy-eight, except chapter three of said Act, ihsll be null and void, and of no validity whatever from and after the adoption of this Constitution by the people of the State. S^erred to the Committee on Cor]X>rations other than Municipal. KXICDTIVK DRPAHTMENT. Me. white introduced the following proposed amendment to the Constitution, in relation to Executive Department; SiciioN I. The supreme executive power of this State shall be vested in a Chief Magistrate, who shall be styled the Governor of the State of California. Stc 2. The Governor, and all 8tat« and county officers, shall be elected by the qualified electors of the State of California, as hereinafter provided. Sic. 3. Ko person shall be eligible to the office of Governor who has not been a citizen of the United States, and an elector of the State of California, for five years next preceding his election. Sic. i. The returns of the election of Governor, and all State officers, shall be sealed up and transmitted to the seat of government, directed to the President of the Senate, who shall open and publish them in prraence of the Senate. The person having the highest number of votes for each office shall be declared elected ; but in case that any two or more persons shall be found to have an equal and the highest vote for tlie eaiue office, the Senate shall, by vote, choose one of said persons so having an equal and the highest number of votes for that office. Sic. i. The State Senate shall convene at the Capitol of the State on the second Monday after the first Tuesday in every January that is subsequent to a general election, for the purpose of opening the returns and declaring the result, as prescribed in the preceding section. Sic. 6. The Governor shall be Commander-in-Chief of the militia, the army, and navy of this State. Sic 7. He shall transact all executive business with the officers of lovemment, civil and military, and may require information, in writing, Rom the officers of the Executive Department upon any subject relating to the duties of their respective offices. Sic 8. He shall see that the laws are faithfully executed. Sic. 9. When any office shall, from any cause, become vacant, and no mode is provided by the Constitution and law for filling such vacancy, the Governor shall pave power to fill such vacancy by granting a com- mission, which shall expire at the end of the next session of the Legis- lature, or at the next election b^ the people. Sic. 10. He shall communicate, by message, to the Legislature, at eveiy session, the condition of the State, and recommend such matters as he shall deem expedient Sic. 11. In case of a disagreement between the two houses, with respect to the time of adjournment, the Governor shall have power to adjourn the Legislature to such time as he may think proper; provided, it be not beyond the time fixed for the meeting of the next Legislature. Sic 12. No person shall, while holding any office under the United States, or this State, exercise the office of Governor, or be eligible thereto. Sic 13. There shall be a seal of this State, which shall be kept by the Governor and used by him officially, and shall be called " The Great Seal of the State of California." Sic. 14. All grants and commissions shall be in the name and by the authority of "The People of the State of California," sealed with the great seal of the State, signed by the Governor and countersigned by the Secretary of State. Sic li. The Governor shall receive an annual salary of five thousand dollais, to be paid at stated times, as provided by law, which shall be in full for all services to be performed by him for the State, as Governor, or in any other official capacity, and the Legislature shall have no power to grant him an extra compensation whatever for any ex officio service of any kind. Sic 16. In cases of impeachment of the Governor, his removal from office, death, or inability to discharge the powers and duties of the said office, resignation, or absence from the State, the power and duties of the office, with its emoluments, shall devolve upon the President of the Senate, or in case there shall be no President of the Senate, or if from any cause he be disqualified to act, then it shall devolve on the Speaker of the Assembly. 8ic 17. A 8ecreJ»ry of State, a Treasurer, and Attorney-General, and a Secretary of Interior Afiairs, shall be elected at the same time luid place and in the same manner as the Governor, and their qualifica- tion tor office shall in all respects be similar to that of the Governor ; they shall each receive an annual salary of three thousand dollars, to be paid at stated times, as provided by law, which annual salary shall be in full for all services to be rendered by them of every kind, name and nature, as may bo prescribed by law. Sic. 18. The Secretary of State shall keep a fair record of the Execu- tive Department of the government, and shall, when required, lay the ame, and all matters relative thereto, before either branch of the legislature, and shall perform all other duties as may be assigned to him by law, including many of those now performed b^ the Controller. The Secretary of Interior Afiairs shall perform the duties now assigned to the Bnrveyor-Greneral and Registrar of the Land Office, and all other dnties that may be assigned to him bylaw. The Treasurer shall take chai]ge of all moneys belonging to the State in such manner as shall be "liwrted by law. The Attorney-General shall be the legal adviser of the Governor, and shall conduct the legal business of the State as may be prescribed by law. Sic. 19. The first election for Governor, Secretary of State, Secretary of Interior Affairs, Treasurer, Attorney-General, and all State and county officers, shall be on the first Wednesday in September, eighteen hundred and seventy-nine; and they shall be qualified and enter on the discharge of their official duties on the second Monday after the first Tuesday in January, eighteen hundred and eightv, and their term of office shall extend to the second Monday after the first Tuesday in January, eighteen hundred and eighty-five. The second election under this Constitution for State and county officers shall be on the first Tuesday after the first Monday in November, eighteen hundred and eighty-four; and all subsequent such elections shall be every four years therefrom. Src. 20. All State and county officers shall be inaugurated in office on the second Monday after the first Tuesday in January subsequent to their election. Skc. 21. The term of all State and county officers, other than those of the judiciary and County Supervisors, shall be for the term of four years. Sec. 22. When any office shall, from any cause, become vacant, and no rule is provided by the Constitution or laws for filling such vacancy, the Governor shall have power to fill such vacancy by appointment for the unexpired term, or until the next general election Sec. 23. The Governor shall have power to grant reprieve or stay of execution of the sentences in all criminal cases after conviction, but no such reprieve or stay of execution shall extend beyond sixty days, except on a unanimous recommendation of the Board of Pardons, as hereinafter provided for. Skc. 24. The Governor shall nominate, and by and with the advice and consent of the Senate (a majority of all the Senators elected concur- ring, by ayes and noes), appoint all officers whose offices are established by this Constitution, or which may be created by law, and whose appointment or election is not otherwise provided for; and no such officer shall be appointed or elected by the Legislature, or by any legis- lative enactment. Sbo. 25. The Governor shall have power to remove any officer whom he may appoint, in case of incompetency, drunkenness, or malfeasance in office, and to declare such office vacant, and to fill the same as is herein provided in other cases of vacancy. Sbo. 26. The Governor may, on extraordinary occasions, convene the Legislature by proclamation, stating therein the purpose for which they are convened, and the Legislature shall enter on no business except that for which they shall be called together. Sec. 27. No person, after being rejected by the Senate, shall be again nominated for the same office at the same session, unless at the request of the Senate, or be appointed to the same office during the recess of the Senate. Sec. 26. An account shall be kept by the officers of the Executive Department, and of all the public institutions of the State, of all the money received or disbursed by them, severally, from all sources, and for every service performed, and an annual report thereof, under oath, at the end of each fiscal year shall be made to the Governor ; and any officer or State employ^ who makes a false report shall be guilty of per- jury, and punished accordingly, and the Governor shall transmit all such reports to the Legislature at each of its regular sessions, and at extra sessions wheifcver he may deem it for the public good to do so. Sec. 29. The Governor may at any time require information in writing, under oath, from all persons holding onice unde^ the State Government in any capacity whatever, upon any subject relating to the condition, management, receipts, expenses, and disbursements of their respective offices. Seo. 30. The Governor shall have unquestioned liberty at all times, either personally or by an expert, to examine the books and accounts of any person holding office^under the State Government, relating to the business of such office. Sic. 31 . The Governor shall have the right to be present at any meet- ing that shall be held for the transaction of business by any Board of Commissioners created by the constitutional laws of this State for State administration purposes. Bec. 32. The Governor shall have power to suspend any officer, other than those of the judiciary, holding position in any capacity under the State Government, for incapacity, drunkenness, or malieasance in office, and fill the office by temporary appointments; but any officer so sus- pended, who shall have been elected by the people, shall receive from the Governor a written statement of the charges against him, and he shall have, if he demand it, a speedy jury trial to determine the truth of the charge as set forth by the Governor, and if the jury in such a case shall find the Governor's charges true, the suspension shall be per- petual, and the person suspended shall be fined one thousand dollars, to gQ to the School Fund, and the Governor shall forthwith appoint a suit- able person to fill the place, as provided in all cases of vacancy ; but if the jury shall find the Governor's charges not true, the person suspended shall forthwith be restored to his office, without any reduction from its original emoluments. Sec. 33. All civil officers, except members of the Legislature, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation : " I do solemnly swear (or affirm, as the case may be,) that I will support the Constitution of the United States of Araerita, and the Constitution of the State of California, and that I will faithfully discharge the duties of ." Sec. 34. For any reasonable cause which shall not be sufficient ground for impeachment, the Governor may remove any Justice of the Supreme Court, or any District Judge, and retire them from office; provided, that in all such cases three fourths of the State Senate shall approve his doing so, in such manner as shall be prescribed by law. Referred to Committee on Executive T tive Department. f^ r^r^n]t> Digitized by VjOO^ IC 148 DEBATES AND PROCEEDINGS Tuesday, RWAXP LAKD DUTEICT8. Mr. barton introduced the following propoeition relating to swamp land districts in this State: Seaolved, That a proposition be engrafted in the new Constitution as follows : SicTioif 1. That all rotes for assessment for the purpose of reclama- tion, in reclamation land districts in this State, be baaed on the actual number of residents, or settlers, in such districts, and not on the basis of acres in such districts, as at present provided. Referred to the Committee on Agriculture. TKKHs or orricK. Mr, shoemaker introduced the following proposed amendment to the Constitution, relative to term of office when not provided for. Amend section seven, article eleven, of the Constitution, so as to read as follows : Sko. 7. When the duration of any office is not provided for by this Constitution, it may be declared by law, and if not so declared, such office shall be held during the pleasure of tlie authority making the appointment. When the duration of any office is fixed by this Constitu- tion, or any law nnder it, the incumbent shall be entitled to serve the fall time be is commissioned to serve, if he behaves himself. Referred to the Committee on Legislative Department. THE STATE CREDIT. Mr. shoemaker introduced the following proposed amendment to the Constitution, prohibiting the credit of the State being given or loaned. Amend section ten, article eleven, of the Constitution, so as to read as follows : Sec. 10. The credit of the State shall not, in an^ manner, be given or loaned to, or in aid of, any individual, association, or corpora- tion, directly or indirectly ; nor pledge its faith and credit to, or in aid of, any county, city, city and county, or town; neither shall the State, directly or indirectly, Wome a stockholder in any association or cor- poration. Referred to the Committee on Legislative Department. STATE BOARD OP EQUALIZATION. Mr. shoemaker introduced the following proposed amendment to article eleven of the Constitution, providing a State Board of Equali- zation. Amend article eleven of the Constitution by adding a new sec- tion, to be known as section twenty-three, and to read as follows: Sec. 23. The Governor, Controller, and Treasurer shall constitute a State Board of Equalization, with power to revise assessments made by County and District Assessors, in such manner as may be prescribed by law. Referred to Committee on Legislative Department. corporations. Mr. O'DOKNELL introduced the following proposed amendment to the Constitution, coiuerning corporations: Section — . Every association organized for banking purposes shall keep on deposit with the State Treasurer, as security to actual deposit- ors, bonds of the United Slates equal in amount of the total amount of deposits in said banking association. Referred to Committee on Corporations. On motion of Mr. Noel, at three o'clock and forty-five minutes p. ii., the Convention adjourned. EIGHTEENTH DAY. Sacramento, Tuesday, October ISth, 1878. The Convention met in regular session at ten o'clock a. u., President Hoge in the chair. 'The roll was called, and members found in attendance as follows: Andrews, Ayers, Barbour, Barry, Barton, Beetstecher, Belcher, Bell, Biggs, Blackmer, Boggs, Boucher, Brown, Burt, CampbSlI, Caples, Chapman, Charles, Condon, Cowden, Oross, Crouch, Davis, Dean, Dowling, Doyle, Dudley, of Sai Dunlap, PRESRNT. Eagon, Inman, Edgerton, Johnson, Estee, Jones, Estey, Jovce, Evey, Kelley, Farrell, Kenny, Fawcett, Keyes, Filcher, Kleine, Finney, Lampson, Freeman, Larkm, Freud, Larue, Gorman, Lavigne, Grace, Lewis, Gregg, Lindow, Hale, Mansfield, Hall, Martin, of Alameda, Harrison, McCallum, Harvey, McComas, Heiskell, McConnell, Herald, McCoy, Herrington, McFarland, Hilborn, McNutt, Hitchcock, Miller, Holmes, Mills, Howard, Moffat, Huestis, Moreland, Hughey, Morse, Hunter, Murphy, Nason, Schomp, Turner, Nelson, Shurtleff, TutUe, Neunaber, Smith, of 4th District, Vacquerel, Noel, 8mith,of San Francisco, Van "Dyke, O'Donnell, Soule, Van Voorhies, O'SuIlivan, Steele, Walker, of Tuolumne, Porter, Stevenson, Webster, Pmuty, Strong, Wellin, Pulliam, Sweasey, West, Reddy, Swenson, Wickes, Reed, Swing, White, Reynolds, Terry, Wilson, of Tehama, Rhodes, Thompson, Winans, Ringgold, Tinnin, Wyatt, Rolfc. Townsend, Mr. President Schell, Tully. ABSENT. Barnes, Hager, Smith, of Santa Clam, Berry, Laine, Stedman, Casjierly, Martin, of Santa Cms , Stuart, Dudley, of Solano, Ohieyer, Walker, of Marin, Garvey, Overton, Waters, Glascock, Shafter, Weller, Graves, Shoemaker, Wilson, of 1st District. LKATI or ABSBNCB. « Leave of absence for one dav was granted Messrs. Ohieyer, Stedman^ and Walker, of Marin. Two days' leave was granted to Mr. Glaacx>ek. Journal of yesterday read and approved. rrriTioKs — aioht op surpRAOB. Mr. blackmer presented the following {tetition from nine hundred and ninety-five citizens of this State, from the Counties of Santa Bar- bara, Ventura^ and Los Angeles : To tbo ConsUtutional ConTentlon In S«cr»inento, OtllfemU^ assembled : The onderrigned, citli^aa of iUlfornla, reepectfullj pedtloD yoor bonoimblc hoij to BO smend the Conitltutlon that no cittsea of this Stale shall be dJifnn(^lsed on •coouut of eex. LOCAL OPTtOlt. Mr. hale presented the following petition, signed by 0. Eeeler and one hundred and fifty other citixens of Ophir, Placer County, Cali- fornia: To the honorable geatlemea, the members of the GoostitatiouA] CooTeotloD now aiHembled : We, the residentB and taxpayers of the State of California, fblly realliinf the itnponaoce of thU seealon and the ardnoua duties and reaponaibiUtiei Ibst oeoee- ■uily rMt upon tnich indtridual member of said body In the exercise of the poveit veetfd In him; and rrallzlng tbat many grave quefltion« will preaent theauelree to any body uf men who Bhall wMemble to ctmslder each gTMtt facts u mtut nec«*> ■arlly Rrifie in the framing of a Constitution to gorern and direct the people of any conntry, Stat», or district, and MpcciftUy our own loved and endeared State of CUi- fumia, where Nature has be^n bo laTlMh, and Providence bo wjee. And yet, with all our buast«d advantagee of climate, prodactiona, miaeral wealth, Bcenery, etc., we have observed with eorruw and pain the rapid and constant increaie of crime and the alarming tendency toward idleneaa, with all Its attendant elements of mij*«-ry, wretchedneen, and want, and in vain do we try to Wind oiineliee to the frequent neccsHity of enlarging our State PrisonH and lunatic asylDmB, for even now thry are crowded to their utmoet capacity. And believing tbat no greater queatioD can prraent iU^lt to your lionurable body than the education and protection of society, and while we cheerfully submit to and pay the taxes levied upon ns for edn- cational and other purpuees, we beiifve that it is unwise and inexpedient to aprad niillionB of dolUm for education and then admit of the mannfectnre and tnffic q( that which destroys the mental faculties and poisons and dcatroys the mind. While we have explicit cunfldeuco in the judgment and integrity in thoee we have chosen tti represent us, and behoving that it will be their htgbeat aim to carry oat the will of the people ttiey n-presont when boch will is made known; therefore we wonM petition your honorable body : That you will Insert In the Constltntlon a clause, granting to the people the li^t to say whether they wilt allow the sale of intoxicating liquors Id their midst or not, (better known as Ijocal Option), or a Civil Damage Law, or both. And your petitiuneni will ever pray. Referred to the Committee on Legislative Department Mr. SCUELL presented the following petition from Samuel M. McLean and many other citizens of Stanislaus County : To the honorable the Constitutional Convention of the State of California: We, the underslgnt^, seepectfully petition yoar honorable body to Insert Id the new Constitution of this State, a clause similar to that now In force In the Stste (^ Texas, to wit : Section — . Tlie Legislature shall, at Its first session, enact a law whereby the qualified voters of any county, voting precinct, town or ciiy, by a majority vote, from time to time, may determine whether the sale of intoxicating Uqaocs shall bs pco> bibited within the prescribed Umlu. SAMUEL M. McLBAN, M. D., and many otheia Mr. SOULE presented a petition, signed by a large number of citixeDi of Lassen County, the same as the above presented by Mr. Schell. RKPOBT OF COMMITTKK ON Rt7LB8. Mr. estee, from the Committee on Rules and Order of Businest, made the following report : Ma. PaniDKNT: Tour Committee on Rules and Order of Bodnoas, to whom «** referred a number of proposed amendments, report the same back with reoommen- dations as follows: First— Resolution number thlrty*eight, offered by Mr Filcher, providing thst W. P. Gntco be added to the Committee on Sute Institntlons aud Putillc BalldlngB» rec* ommend that the reaulutlon l>e indefinitely postponed Second— Resolution number forty, offered by Mr. Shoemaker, providing that Kr. McCoy )>e added to the (^mmittee on Water and Water IMgbta, recommend tbat the rortt'lution be indefinitely postponed. Third — Reeolntlon number thirty-nine, offered by Mr. Wl nana, suggesting thit Mr Thompson be added to the (kimmittee on Education, recommend that It be indefinitely postponed The Committee reepoctfuUy suggests that nnderraledzsll appointments on committees rests with the President ofuie Convention. Foarth-^Retiolutlons numbers thirty-six and thirty-seven, offered by Messrs.9ted- man and Wellin, respectively, tbat no member shall sjt>e allowed pay for any dsy Digitized by V^jO'-. ^r.' Oct. 15, 1878. OF THE CONSTITUTIONAL CONVENTION. 149 Abaent with or without leare except In case of sicknem or on «>mmltto«dnty. Tour oomnilttee recommend that the two reeohitionii last named be Indefluitely poiitponed. The Political Code pnivldea that meraben of the Legislature shall receire ten dol* Uni per day for the se.'vion, and the Act creating this Conrention pruvidee that the membera thereof shall receive the same per diem as members of the Legislature; hence the \my of members of this Conrention Is fixed bj law. yirih — Your committee recommends the adoption of the resolution offered by Mr. Vest, that the Commttteo on Education be increased frmu nine to thirteen members. Sixth — Your committee recommends that the resolution offered by Mr. Canipltelii to Binend rule sixty by striking out the words and figures. " except rules fifty, fifty- ORp, fifty-two, fifty-three, and hlly-flTe," aud to repeal rule sereuty-oue, be Indefl- nitelj postponed. 2teventh-— Your committee again earnestly protests against the dally changing of the nilesof this Conrention; such practice, instead of facilitating bustneas, clogs the wheels of legislation, and too frequently is done to meet individual cases mther than to expedite the general business of legislation. Eighth — Your committee also recommend the indefinite postponement of the reS' ointlon offered by Sir. Noel, that rule sereuty-one be repealed. Ninth — Your committee recommend that rule forty-one, offered by McCallum, proTidIng that rule sixty be changed so that a mjynrity only, instead of two thirds, caa change the rules, bo indefinitely postponed; also, Saeived^ That the Contrulter be and Is hereby authorlxed and directed to draw his warrant in farorof J. Steppacher for the sum of dollars, for serrlces as Clerk of the CV}mmittee on Bulee, payable out of the appropriation for this CouTeutJon, and that the State Treasurer be and is hereby authorlxed to pay the same. M. M. ESTEK, Chairman of Committee on Bules and Onler of Business. The resolation was referred to the Commitl^e on Contingent Expenses. Mb. GKAC£. I don't know what authority they have to employ a clerk. Mr. ESTEE. That will come up when the Committee on Contingent Expenses report. The president. The question is on the report of the Committee on Rules and Order of Business. Me. grace. I supposed we were to have no clerks. The PRESIDENT. That matter will come up when the report comes from the Committee on Contingent Expenses. Mb. BEERSTECHER. I move that the report of the Committee on Rules and Order of Business be received and adopted. Mx. NOEL. I would like to have a decision of the question. Thb PRESIDENT. Eveiy clause of the report will come up in time. The Secretary will read the first clause. Tail SECRETARY read, without objection, to the end of the sixth clause. Is the question now on the adoption of that Mb. CAMPBELL, clause? Thb PRESIDENT. Mr. CAMPBELL. The clause is now open to any amendment. I presume we can have the question divided, so we can vote on the two propositions separately. I ask to have it so divided. Tb» PRESIDENT. The report has been taken up clause by clause, and the Chair pauses so that any amendment may be ^oved. We have passed to this clause now, and if the gentleman desires, be can move an amendment. Ma. CAMPBELL. I move to amend, by adopting the amendment which provides that two thirds of the Convention may suspend these rales, just as any other rule may be suspended; that we shall not be compelled, if a smgle member objects, to adhere to the rule for the time being. It provides that the rules may be suspended by a two-thirds vote ; and certainly it is proper that they should be suspended. I move, therefore, that the report be so amended, and that that amendment be adopted. Mb. BEERSTECHER. As I understand the report of the committee upon the resolution heretofore offered by Mr. Campbell, it is not only to amend rule sixty so as to admit of a suspension of these rules by a two- thirds vote, but it is also to strike out rule seventy -one, in relation to printing. Mb. CAMPBELL. That is a separate proposition by itself. This is a proposition in regard to amending rule sixty, by striking out of it the words and figures " except Rules 50, SI, 52, 53, and 55." If that motion is adopted, then the Convention will be able to suspend these rules by a two-thirds vote. At present it cannot suspend them at all. And that is the whole object of my amendment now. The amendment in regard to rale seventy-one is a separate amendment. Mb. BEERSTECHER. As I stated yesterday, I see no occasion to change my opinion. These rules were well considered, well digested, thoroughly examined by the Convention, and adopted. The matter has been referred back to the committee. They have again examined the rales, and they report that the rules( remam as they now are. I hope that the amendment of the gentleman from Alameda, Mr. Campbell, will be voted down ; and I hope that we will bo able to settle these rules, and not spend hours and hours debating them, and wasting money in that way at the rate of five dollars a minute. Mb ESTEE. The Committee on Rules and Order of Business, in recommending the indefinite postponement of the resolution of the gentleman from Alameda, only carried out the view expressed by the committee when the rules were adopted. They have seen no reason to change their views and tliey did not think the Convention had changed its views relative to the necessity of protecting minorities in the Con- vention. The rule proposed to be amended was rule sixty. It provides tlut " no rule or order of the Convention shall be rescinded or changed without a vote of two thirds and one day's notice being given of the motion therefor; bat a rule or order may be suspended temporarily by a vote of two thirds of iBe members present, except rules fifty, fifty- one, fifty-two, fifty-three, and fifty-five." Rule fifty-five provides : " In forming a Committee of the Whole Convention, the President may pntide or appoint a member to preside. Propositions or resolutions nikting to the Constitution shall be committed to a Committee of the Whole Convention and shall be read in Committee of the Whole by wctiaiia. All amendments shall be noted and reported to the Conven- tion by the Chairman. After report, the proposition or resolution shall again be subject to amendment before the final question is taken." The point in that rule is that the humblest member on the floor has the right individually to demand that every proposition to be engrafted in the Constitution should be disposed of or heard in the Committee of the Whole. One individual member has a right to demand it, and it is a rieht that this committtee and this Convention heretofore considered a necessary right: that is, that the Committee of the Whole should give consideration to all these propositions. Now the gentleman proposes to set that aside at any moment and not let the minority go into Commit- tee of the Whole to consider and carefully examine questions of consti- tutional law. I hope that the amendment of the gentleman from Alameda, Mr. Campbell, will not be adopted, and that the report of the committee will be. Now, sir, there is a rule of the Assembly and Senate that all rules may be suspended temporarily by a two-third vote, except the third reading of a bill ; that a bill should not be read a third time on the day it was introduced. The point is that a bill should not be rushed through the day of ita presentation, so that members would be able to give it full and fair consideration. Rule fifty-five is of the same character. The reason for going into Committee of the Whole is to place it in the reach of any member to demand that the Convention go into Committee of the Whole up<)n any proposition before it is disposed of. The gentleman from Alameda is going to leave it to a two-third vote; then, after an eloquent speech has been made by the gentleman from Alameda, or some other gentleman, the Convention might be carried away and refuse to go into Committee of the Whole, and thereby deprive a minority of the right that they ought to have. I hope that the report of the committee will be adopted. Mb. McCALLUM. The theory on which these rules are presented and adopted is this: that this Convention, the first week of its session, is so much wiser than the majority of the Convention that to be over- ruled it must require two thirds of the Convention when it shall have hod more experience. The resolution proposed to be changed, and it is one of a great deal of consequence, is that two thirds of this Convention may change a standing rule — two thirds may Bus{)end a standing rule. Argument proceeds upon the ground that a majority having decided that that should be the rule, must not be overruled, even by a unani- mous vote ; and this Convention, more than once, has done this incon- sistent thing, from the very necessity of the case overruling its own standing rule upon that subject. There seems to be a sensitiveness about changing these rules. Hero are seventy odd of them, an unusually large number. Assuming that the Committee on Rules have a vast amount of experience and wisdom, yet it is barely possible that experience has shown that some of these rules ought to be changed. What is there so sacred about rules fifty, fiftv-one, fifty-two, fifty-three, and fifty-five that two thirds of the Convention might not suspend any, one, or all of them? The idea upon which the rule as it stands proceeds is that the majority of the Convention is not to be trusted, ana the argument seems to be addressed to what is assumed to be a minority of the Convention, to be careful of their rights, or they might lose something by what the majority, or even two thirds, of the Convention might do — for that is all the amend- ment asks. For my part, I do not know who the minority or who the majority of this Convention are. I expect that minorities or majorities may assume various positions. I do not know who will be associated in the majority, or who will be associated in the minority; and when gen- tlemen talk about the minority in the Convention, I mnst confess that I do not know to whom that language is addressed. I proceed upon the idea that two thirds of this Convention moy be aj! wise as a majority o^ the Committee on Rules, and as a majority of the Convention itself was at the beginning of the session when the rules were adopted. That is all that the amendment of my colleague asks, and that is that rule sixty may be so changed that these other rules, the same as all the balance, may be suspended by a two-third vote. The difficulty has come up here again and again with reference to the printing of these propositions. Here is a mass of propositions laid upon our tables, printed at an expense of some two thousand dollars to the State. Some of these resolve, in general terms, that " the Chinese must go," and others that " land-grab- bing must bo stopped," at an expense of about ten dollars for each lot, and in the aggregate about two thousand dollars has already been expended. Mr. BEERSTECHER. I have a sUtement from the printer here in relation to the cost of the printing and paper of the whole matter — that the printing that has been done up to this time, the total cost of the whole matter, does not exceed eight hundred d.ollar8. Mr. McCALLUM. I do not object to the interruption, but I would inquire if that includes what we ordered yesterday? Mr. BEERSTECHER. Up to this morning at ten o'clock. Mr. McCALLUM. It is well known that there was a great deal of matter ordered printed yesterday. Perhaps two thousand dollars may be too high, but certainly eight hundred dollars does not indicate it. This rule fifty-two, requiring the printing of propositions, is one of the very propositions whicn cannot be suspended even by a two-third vote. It cannot, under rule sixty be suspended at all. There is the proposi- tion introduced by Mr. McConnell, which, by his consent, was not printe of its own officers, subject to such restric- tions and regulations as the Legislature may prescribe, and every city, town, and village shall have power to adopt such police regulations for the exclusion and removal of (>ersons of Asiatic descent as the public good may require. Referred to the Committee on Chinese. qrand jrRT ststeh. Mr. MANSFIELD introduced the following propositions to modify the present Grand Jury system : 1. Prosecutions for crimes and misdemeanors mav be begun by indict- ment found by a Grand Jury, or by information laid before a Justice of the Peace. 2. The Grand Jury shall consist of fifteen men, and an indictment may be found upon the concurrence of nine of their number. 3. The Grand Jury shall be ordered by the County Judge, at his dis- cretion, but not oftener than once in each year. 4. An information-is a writing, verified by a person called a prosecu- tor, charging another with the commission of a crime or misdemeanor, and setting forth the facts necessary to constitute the offense. 5. Such information may be presented to a Justice of the Peace, and when such Justice has not juri^iction to try the offense charged, there shall be had a preliminary examination, in which defendant wall have right to be heard by himself and counsel. 6. Should it appear that the offense charged has been committed, and the Justice be satisfied of defendant's guilt, he shall adjudge and bind the defendant to appear before the Court having jurisdiction of the offense. 7. Upon this information, and the judgment of the Justice thereon, being filed in the Court having jurisdiction, the District Attorney shall file m such Court a complaint si^ed b^ him, officially, charging the defendant with the offense for which he is held to answer. This com- plaint shall state the facts necessary to constitute a cause of action. 8. Upon such complaint the defendant may be tried. 9. After the defendant has been bound to appear, and within ten days thereafter, or at any time prior to filing the complaint, he shall have the right to be heard on a writ of habeas corpus before a Judge of a Court of record, and if such Judge shall find, on reviewing the evi- dence taken at the preliminary. examination, that the defendant has been held without reasonable or probable cause, he shall order the defendant discharged, and the District Attorney shall not further prose- cute the proceeding. 10. Should the information be dismissed by the Justice after a hear- ing on a preliminary examination, or the defendant be so discharged on habeas corpus, no second information shall be prosecuted against the defendant on the same charge, unless the second information be approved and signed by the District Attorney of some Court having jurisdiction to try the case. 11. A person may be prosecuted by indictment for anv offense of which the District or County Court has jurisdiction, although the information has been dismissed by a Justice, or the defendant dis- charged on habeas corpus. Referred to Committee on Legislative Department. FUTURE AMENDMENTS. Mr. white introduced the following proposed amendment to the Constitution, in relation to future amendments: Skction 1. There shall be a Constitutional Convention at the Stat* Capital, in the year one thousand nine hundred and three (1903), to review, and, if deemed best, amend this Constitution. Sec. 2. 'The Convention shall consist of one4iundred and three mem- bers, all to be elected by single districts, as near equal in population is may be. Sec. 3. Elach member of the Convention shall receive six hundred dollars, and the same mileage as may be then paid to members of the Legislature, which shall be in full compen^ion for services. Sec. 4. The Legislature shall, at the propeB^irae, carry outi this pro- Digitized by VjOOQ IC Oct. 15, 1878. OF THE CONSTITUTIONAL CONVENTION. 151 vision of this Constitution by appropriate let;islation, and provide by law that the new or amended Constitution shall be submitted to the electors of the State for their approval or r^ection. Sec. 5. Whenever two thirds of the members elected to each branch of the Legislature shall think it necessary to alter or amend this Consti- tution, they may propose such alterations or amendments, which pro- posed amendments shall be published with the laws which have been passed at the same session; and said amendments shall be submitted to the people, for their approval or rejection, at the next eeneral elec- tion ; and if it shall appear, in a manner to be provided by law, that a majority of the qualified electors present and voting at such election shall have ratified such alterations or amendments, the same shall be valid to all intents and purposes as a part of this Constitution. If two or more alterations or amenaments shall be submitted at the same time, it shall be so regulated that the electors shall vote for or against each serarately. Iteferred to Committee on Future Amendments. IXICDTIVI DIPABTMKNT. Mb. BCHELL introduced the following proposed amendment to the Constitution, relating to the Executive Department: Raoiotd, That the following amendment to section fourteen, article five, of the Constitution, be incorporated in the new Constitution: Sicnox — . There shall be a seal of the SUte, to be called "The Great Seal of the State of California," which shall bo kept and used by Uie Governor officially; and the one heretofore in use shall continue to be the great seal of the State. Beferred to Committee on Executive Department. CHIKESX TAX. / Ub. O'DOKNELL introduced the following proposed amendment to the Constitution, revenue and taxation : Section seventeen, of article first, of the Constitution, is amended as follows : 8(c. IT. Foreigners (of Caucasian descent) who are or who may hereafter become Bona fide residents of this State, shall enjoy the same rights in respect to the possession, enjoyment, and inheritance of prop- erty as native-born citizens. Sec. — . The Legislature shall, by appropriate enactments, discourage the importation of Chinese coolies into the State of California. Section fourteen, of article eleven, of the Constitution, is amended as follows : Sec. 14. Taxation of all property, except articles of Chinese manu- Cucture, shall be equal and uniform tbroughout the State; all real and personal property, except property owmd by Mongolians, shall be taxed m proportion to its value, to be ascertained as directed by law. Sec. li. No poll tax shall be levied or collected from the citizens of this State, but the Legislature shall have power to provide for the col- lection of such tax from aliens by law. Referred to Committee on Revenue and Taxation. IHPORTATION OF COOLIES, (TO. Mb. O'SULLIVAK introduced the following proposed amendment to y the Constitution, relative to the importation of coolies, criminals, pau- pers, lepers, and immoral women prohibited. Section — . Importations of persons under the name of "coolies," or any other designation, or the adoption of any other system of peonage whereby the helpless and unfortunate may be reduced to practical bond- age, shall never be authorized or tolerated by the laws of this State. Sec. — . Persons engaging in the importation of " coolies," or men or women bound by contract to labor or service for a specified time, shall be deemed guilty of felony; and persons employing such "coolies," by contract, to labor for a specified time in this State, shall also be deemed guilty of felony. Sec. — . Every contract whereby the compensation for the labor of any person is made payable to any person, company, or corporation, other than the one performing the laoor, is hereby declared void ; pro- vidtd, that it shall be lawful for parents to secure for themselves and receive the wages of their minor children. Sec. — The importation of criminals, paupers, lepers, and immoral women from foreign countries is forever prohibited. And any ship, the captain and owner of any ship, and the consignees of the same, shall be held responsible for an infraction of this provision, and must transport back to the port whence they were brought said foreign criminals, paupers, lepers, and immoral women. Sic. — . The Legislature, at the first session after the adoption of this Constitution, shall provide, by suitable enactments, for the etfectual enforcement of the provisions of sections , , , and . Referred to Committee on Legislative Department. UIFLOTMIKT or CHAPLAINS. Mb. O'SULLIVAN introduced the following proposed amendment to the Constitution, prohibiting the employment of Chaplains in State institutions: Sectio.v — . No persfln shall ever be employed as a Chaplain in any department of the Slate Government, or in any of the public institutions of this State; and no money shall ever be appropriated out of the State treasury for the payment of persons to recite prayers or to give religious leaching of any character. Refeired to Committee on Legislative Department. APPROPBIATIONS. Mb. EVET introduced the following proposed amendment to the Constitution, relative to the Iiegislative Department: All bills making appropriations of money out of the treasury for the pay of members and officers of the General Assembly, and for the sala- ries of the officers of the government, shall contain no provision on any other subject. The compensation of the members of the General Assembly shall be five hundred dollars each per session, except extra session, and for then they shall each be allowed one hundred dollars, and ten cents a mile in going to and returning from the seat of government. Referred to the Committee on Legislative Department. I'NAPPBOPBIATED WATERS. Mr. brown introduced the following proposed amendment to the Constitution, relative to the unappropriated waters of the lakes and rivers of this State : Raolvtd, That the unappropriated waters of the lakes and rivers of this State belong to the public, and such waters ma;y be appropriated by individuals and companies. Priority of appropriation of water entitles individuals or companies to a priority of right to the amount of water appropriated by them. The uses of waters shall be controlled by legisla- tive enactments. Referred to the Committee on Water and Water Rights. UNIFOBH TAXATION. Mb. grace introduced the following proposed amendment to the Constitution, in relation to revenue and taxation : Taxation shall be equal and uniform throughout the State; all prop- erty in the State, not exempt under the laws of the United States, shall lie taxed in proportion to its value, to be ascertained as provided by law. The word "property," as used in this article and section, is hereby declared to include moneys, notes secured by mortgage or otherwise, credits, bonds, stocks, dues, frauchises, and all other matters and things capable of being converted into money, either real or personal. Referred to Committee on Revenue and Taxation. pbanchise. Mr. SWEASEY introduced the following proposed substitute for section one, article two, of the present Constitution : Every citizen of the United States, of the age of twenty-one years, who shall have been a resident of this State one year next preceding the election, and the county or district in which ho or she resides for the term of ninety days, shall be entitled to vote at all electious which are now or may be hereafter authorized by law ; provided, that no Court in this Slate shall issue any naturalization papers within thirty days of any general election. Sec. 7. That the Legislature shall pass and amend, from time to time, such laws OS may be necessary to preserve the purity of elections and the free exercise of the vote by ballot. Referred to the Committee on Right of SufiVage. LBOISLATIVI DEPABTUENT. Mb. GORMAN introduced the following proposed amendment to the Constitution, relative to the Legislative Department: The Legislature shall pass such laws governing counties, cities, towns, and other corporations, as will restrict tneir powers of taxation, borrow- ingmouey,and contracting debts and loaning their credit so as to prevent abuses in taxation, and alf propositions for extraordinary debta snail be, by consent of the people, expressed through the ballot-box. Referred to Committee on Legislative Department. ELECTION OF CNITED STATES SENATORS. Mb. GRACE introduced the following proposed amendment to the Constitution, in relation to Legislative Department: Section — . It shall be the duty of the Legislature to provide for all future elections of United States Senators, from this State, to be by direct vote of the people. Referred to Committee on Legislative Department. ABOLITION OF OBAND JURIES. Mb. HUESTIS introduced the following proposed amendment to the Constitution, aboljshing Grand Juries: Remlved, That the following provision be adopted in that article of the Constitution which relates to Grand Juries : Section — . The Grand Jury system is hereby abolished ; and in lieu thereof the Legislature shall devise and provide, by legislative enact- ment, a more economical and expeditious system of criminal procedure. Referred to Committee on Preamble and Bill of Rights. JURY STSTIM. Mb. HUESTIS introduced the following proposed amendment to the Constitution, concerning the jury system : Saolved, That the following provision be adopted in that article of the Constitution which relates to the jury system : Section — . The right of trial by jury shall be inviolate in all cases of felony, in such cases of misdemeanor as the Legislature may deter- mine, in all civil actions sounding in tort, and in all cases arising from breach of contract, where punitory or exemplary damages are sought to be recovere; at Uie present montli, »U tliat part of rule seventceu after the sixth order of biulncei be and the aame is hereby suspended ; second, that from and after this day, and aatfl such twenty-third instant, the Convention adjourn each day inimedlatety after cos. eluding the sixth order of Inislneas, fur the purpose of enablinK the standing com* mittees to consider the sttlijects referiYKl to them and to nmtur« a plan of action concerning the same; third, that immediately after snch adjournment said com* niittecB proceed tuhold dally sessions for the dispoaal of the business befbre them, and that on such twenty-third Instant, or sooner if practJcable, they report inch plan to the CouTention for its action. Mb. EDGERTON. That rule, if adopted, wiU be our order of busi- ness until one week from to-morrow. After to-day we meet, and this will be the order of business: " Roll call; reading and approval of the Journal ; presentation of petitions and memorials ; conununications from State oflficers ; reportsof standing committees; and reports of select com- mittees." It suspends the remainder of the rule. It also temporarily suspends another rule — I forget which it is, now — which provides that eacn standing committee shall report within fifteen days from the day of reference. The PRESIDENT.. Rule twenty. Mr. EDGERTON. Now, sir, in my judgment, if that resolution be adopted it will greatly facilitate the business of this body. We have been five days receiving propositions relative to the O>nstitution, and there certainly is, by this time, enough material upon the tables of the various committees from which to extract some plan to present for the action of this Ixxly. Me. HERRINGTON. I rise to a point of order. The proposition is to change a standing rule. There has been no notice given of^it Mr. EDGERTON. The last part of rule sixty says that any rule mav be temjxirarily suspended. fHR PRESIDENT. The i point of order is not well taken. Me. EDGERTON. This rule provides merely for the temporary suspension of these rules until next Wednesday. The resolution also conveys the instruction that immediately upon the adjournment the committees go to work during the daytime and perfect and mature some plan of action by that day, or sooner if practicable. Now the resolu- tion does not preclude any gentleman from sending to the desk any proposition that he has in his mind. It facilitates tSe business of the Convention in this, that, if the committee covers the views of any gen- tleman, it saves him the necessity or the trouble of sending up a pro- position. If it does not, any gentlenmu, either in Committee of the Whole, or afterwards in Convention, can send up any proposition he pleases by way of amendment to the plan reported. Such a mode of procedure was adopted, I believe, in the Convention in Pennsylvania. After the propositions were received, I think they broke up for some fif- teen or twenty days, to give the various committees an opportunity to look over the various propositions and out of them to extract some plan and present it for the action of the Convention. I hope the resolution will be adopted. Me. van DYKE. I entirely agree with the proposition in this reso- lution. I think it will expedite the transaction of our business- Our committee has met three evenings and there is a rule that prevents us meeting during the session of the (Jonvention, and some of our members are on other committees, and it will be utterly impossible for the corn- Digitized by Google Oct. 15, 1878. OF THE CONSTITUTIONAL CONVENTION. 163 mittee to discharge their duties unless the ConTention takes a recexs during the day. Mb. BEERSTECHGR. As there is a special order of business for two o'clock, namely, the consideration of the resolution offered by the gen- tleman from San Francisco, Mr. Winans, I therefore move the resolu- tion offered by the gentleman from Sacramento, Mr. Edgerton, be made the special order of business at three o'clock this afternoon. That will gjTe each member an opportunity of considering the subject until that time. The motion prevailed. CLSSK. Mt EBGEKTON offered the following resolution: Baohtd^ That th« Oommltte* on ReTenns and Taxation be and It hereby aathor. iaed to emploj a clerk at a cumpeoaatlou of fire dollari per day for each day that be ia actually employed. It was referred to the Ck)mmitt«e on Contingent Expenses. NIQHT WATCHMIN. Mr. DCNLAP offered the following resolution : Saobttd, That the Preddent of this Convention appoint a Night Watrhmaii, whole dntiee shall be to take charge of thle chamber, and see that no unauthorized penoiu enter the aame. Said Night Watchman ehall not permit any bookH or papers to be taken from members* desks without orden from the owners thoreuf. Ejald Migllt Watchman shall receive the same compensation as U now paid to the Door keepers of this CoDTentlou. Mk. TIN}7IN. That question has been up once before, and it is an established rule of this Convention that all matters of this kind shall gu to the Committee on Contingent Expenses. I hope that the Convention will not depart from that rule. Thk president. The subject has been referreer8ons were suggesteil as amendments to the report. After some discussion the whole matter was laid on the table, where it now rests. I move that the resolution lie on the table, with the report of that committee, to be brought up at the aune time with it. Carried. COST or PBINTIMO. Mb. BARTON offered the following resolution : BaUtti, That the Superintendent of State Printing be requested to furalah tbin CniTention, at the earliest day poaslble, a statement showing the coat to date of printing the rcaolntioDS and pmpoaitions relating to the new ConstltuUon that hare been presented to this CoDTeDtioD. Mb. BARTON. I move its adoption. Mb. BEERSTECHER. I move that it be referred to the Committee on Printing. The PRESIDENT. It is not necessary that it should go to any com- mittee. The resolution was adopted. COBRKSPO.VDRNTS IN COHMITTH HRgTINOS. Mb. BEERSTECHER offered the following: WaxaiAS, The delegates here aaaembled are the agents and serranta of the soth rdgn people of thia 8tate,and aa such their actiooa should at all times 1« open to poiiUc scrutiny and critidam ; therelbre, iKesofeed, That the accredited newspaper reporters and correapondenlsof the press reporting the prooeedinga of this Coaventiun be priTileged to be preoent at all regu- lar meetioga of ataiidiug oommltteea. Mb. BEERSTECHER. I move the adoption of that resolution. I onderatand that some of the regular accredited reporters have been denied admission to the committee rooms; and 1 hope that the news- paper reporters and the newspaper correspondents will have the privilege of entering to any of the committee rooms and attend the aeliberotions of every committee of this body, in order that the work of this Convention maybe given to the people at large; and the only way to do that is to allow the newsimper reporters and the newspaper correspondents full liberty and full privilege of attending the meetings of this Convention, both as a whole or in committee ; and I move the adoption of the resolution. Mb. INMAN. It seems to me that belcmgiiMhe committees. Each committee has a right to decide for itself. I have no objection to the reporters being in any committee where 1 am, but it is not a question that belongs to the Convention. Mb. van DYKE. I would like to have an expression of the Con- vention. Mb. EDGERTON. I hope the resolution, with all respect to the aothor, will not be adopted. It certainly misconceives the very object of these committees. They are designed for the purpose of private deliberation and consultation; for informal interchange and comparison of views; and many things occur in committee that are perfectly proper that no gentleman desires to have in the newspapers. I never have heard of such proceedings in a deliberative body. Mb. grace. I don't want anything to pass through these commit- tee-rooms or through this body but what the public may know. Every- thing that I do, or that any aelegate does, 1 think the world is entitled to know it, and I am in hopes that the reporters will be allowed in the oHnmittee-rooms and that everrthing that is done there by members, tlxir eooatituents may know, 'j'his is a Convention of the people for theporpoae of making a Constitution for the people, to be ratified by jb« piople, to make a government for the people, and we want the peo- V» to blow what we are doing, and we don't want to do anything that *• m ashamed of. 20 Mb. INMAN. I have no objection to reporters coming into any com- mittee-room, and I don't want to be misunderstood, but f deny the right of this Convention to say who shall be there as reporters. It' is a thing unheard of. I am not ashamed of what I do any more than the gentle- man. I am perfectly willing that this State sliall know. I am not a stickler for any proposition and I hope that this Convention will take that view of it. I do not care who knows what I do. I don't do any- thing in the dark and I don't suppose any gentleman proposes to. Mr. ROLFE. I am not ashamed of anything I do, but I do not be- lieve in this Convention prescribing a rule for these committees that was not prescribed for the Convention by the Legislature. The Legislature, in its wisdom, has provided in the statute that its sessions shall be open, except when the Convention shall be disposed to hold secret sessions. I do not suppose that there is a legislative body in the United States but what has the same provision. It is the practice in the Congress of the United States. I do not propose to hold any secret sessions, but I am opposed to prescribing a rule to the committees of this Convention which is not prescribed to the Convention itself. Mb. FILCHER. In order that the re^lution may not be mandatory and yet arrive at an expression, I move to amend the resolution so that it shall read : " It is the sense of this Convention that the meetings of the standing committees should be open to reporters." Then if anr committee should choose not to admit reporters, that committee itself will be responsible /or its action and not this Convention. If, on the other band, a committee should choose to admit them, it would be privileged to do so. I would like to have an expression of this body on that subject, and to arrive at that expression, I would ask the gentleman to so change the resolution as to reaa : " Resolved, that it is the sense of this Convention that the meetings of the standing committees should be open to reporters." Mb. BEERSTECHER. I accept the amendment Mb. GREGG. I move to lay the whole proceeding on the table. Mr. ESTEE. I would like to have it include, also, the Constitu- tional Club organized by my colleagues, the delegates from San Fran- cisco; end, with that amendment, I would be well pleased to vote for it. The ayes and noes were demanded by Messrs. Beerstecher, Filcber, and Inman. The roll was called, and the motion prevailed by the following vote : Andrews, Hall, Prouty, Barton, Harvey, Pulliam, Belcher, Hitchcock, Reddy, B'gg». Holmes, Reed, Blackraer, Huestis, Rhodes, Boggs, Inman, Rolfe, Boucher, Johnson, Schell, Brown, .Tones, Schomp, Burt, Kelley, Shurtleff, Campbell, Keyes, Steele, Chapman, Lampson, Stevenson, Cowden, Larue, Swing, Crouch, Lewis, Terry, Dud ley, of San Joaquin, Mansfield, Thompson, Dunlap, . Martin, of Alameda, Townsend, Eagon, Martin, of Santa Cms Tully, Edgerton, McConnell, Turner, Estee, McCoy, Van Voorhies, Estcv, McFariand, Walker, of Tuolumne, Fawcett, McNutt, Wilson, of Tehama, Finney, Miller, Winans, Garvey, Mills, Wyatt, Gregg, Hall; Porter, HUB. Mr. President— 70. Avers, Herrington, Neunaber, Barbour, Hilbom, O'Donnell, Beerstecher, Howard, O'SulKvan, Berry, Hughoy, Reynolds, Caples, Hunter, RiiijKold, Smith, of 4th District, Condon, Joyce, Cross, Kenny, Smith, of San Francisco, Davis, Kleine, Soule, Dean, Larkin, Strong, Dowling, Lavigne, Sweasey, Evev, Lindow, Swenson, Farrell, McCallum, Tinnin, Filcher, McComas, Tuttle, Freeman, Moffat, Vacquerel, Freud, Moreland, Van Dyke, Gorman, Morse, Webster, Grace, Murphy, Wellin, Harrison, Nason, West, Heiskell, Nelson, White— 59. Herold, PAY or PAOB. Mr. estee offered the following resolution : Rrxivtd. That the Controller of State shall Issue his wamut, and the Treasurer shall pay to Willie CHmpbelt the sum of eighteen dollars, for alx days' pay as Page, fur services rendered before his appointment Referred to the Committee on Contingent Expenses. Me. O'DONNELL. CHINBSB. I wish to offer this resolution : RaUved^ That it Is incumbent upon this Convention to incorporate in the Consti- tution a aeotion which shall forever disqualify aliens—^ Digitized by Google 154 DEBATES AND PROCEEDINGS Tuesday, Thb president. It is out oC order. Mb. BARBOUR offered the following: Wrikkai, Tb« mduber of tbi« ConTentton tmm Saota Buteta, Mr. Kngene Tawceit, ia tbe pnsent incambent oT the olBce of DUtrict Judf* of th» 8*T«ntli Jodicial DIatrict ; thcrefora, Resolved^ That the Committee on PrivllegM mod Election* be and they are berebj instructed to inquire lato the eligibility of aaid member and his light to a teat in thia Convention, and report thereon at an early day. Mb. HOWARD. I suggest that the resolution should go to the Judiciary Committee. The president. It will be so ordered. Mb. O'DONNELL. I send up ray resolution again. The president. The gentleman is out of order. We passed that order of business some time ago. Mb. McCALLUM. Do I understand the Chair to rule that the reso- lution goes to the Committee on Judiciary? As I understand it, where there is a difference as to which committee a resolution shall be referred to, it is for the Conventioa to decide, and not the President. Thb president. Undoubtedly so. But there was no objection to its being referred to the ComniTttee on Judiciary. Mb. McCALLUM. The resolution itself asks that it go to the Com- mittee on Privileges and Elections. Thb secretary read the resolution. Mr. McCALLUM. Now, I am in favor of the motion made by Gen- eral Howard, but I think that where a question of reference arises the Convention ought to decide. . Thb PRESIDENT. That is very true. The Chair was not aware that the gentleman bad moved a reference to the Committee on Privi- leges and Elections. If it is desired the question will be put. The motion to refer to the Committee on Privileges ana Elections was lost, on a standing vote, by a vote of 54 ayes to 61 noes. Thb president. The question now recurs on the motion to refer to the Committee on Judicial^. Mb. DUDLEY, of San Joaquin. I raise the point of order that the Act calling the Convention provided that no member should be expelled until after the report of a special committee appointed to investigate charges. There is a provision in the Act for appointing a committit* where a question of eligibility arises. It reads as follows; "The Con- vention snail have the power to expel any of its members, and to pun- ish its members and officers for disorderly behavior, by imprisonment or otherwise; but no member shall be expelled until the report of a committee appointe>nstlIutlon formed by It, to the following extent; Toat the new Constitution sluill coniflst of a preamble, to be followed by twelve conaecn- tive articles, which shall be numbered, entitled and have seijuence, respectively, la the same manner and comprise the same subjects aa the twelve articles of the prc^ ent Constitution ; that to these shall be added such new articles, numbered in proper order after said twelve, aa this Convention shall adopt, after which shall follow the schedule as the final dlvisit/n of said new Constitution. RttUvrd, That said preamble and articles shall be conaidered and acted opoo by this Convention in the order and sequeuce aforesaid, and no one of them, nor any sumect-mstter belonging to any one of them, shall be adopted or diacuaaed UDtil ail other articles and matter pertaining to them, having priority aa aforeMid, ahall have been disposed of In their order. Hrtolvtd, That for the purpose of giving effect and enforcement to the rules afbie* said, the Mfvetal committ<.ee having charge of the matters embraced in the aid pre- amble and twelve article* shall make their reports in the order herein named, and n me of said committees stiall report npon the subject-matter of any of aaid articles until all the articles having priority thereto, aa aforesaid, ahall have been considered and dispoeed of by this Convention, and that the other committees having charge eS matter not embntced in said artiolea shall report afterwards and Id each otdcraa this ('^invention may determine. Retolr«d, That as rules inconsistent with the forecolng resolattons shall be nodi- fled, or, so liar all neceeaary, revoked, to the extent of insuring conformity therewith. Mb. winans. Mr. President: Under the system which now exists and the confusion into which the system may expand, I can see no pros- pect for the future but confusion and disorder. Nearly or quite three nundred resolutions and amendments have now been proposed, of every variety of character, quality, and kind, belonging to every department of constitutional propositions. Bought to be incorporated together, and by virtue of the rule of this body, tliey having been sent U> committees, required to report them within fifteen days, they will all come into the Convention in a rude, incongruous, ill-assorted mass, and when they reach here they will demand action, according to their severe! priorities. The consequence will be, unless this change is wrought, that this body will be tossed on a sea of turbulence and utter confusion. There can lie no such thing as harmonizing matters under this system. One man brings up his proposition, which embraces a section on the Chineseqnes- tion. Another man attempts to get the floor in order that be may bring up the subject of taxation, and so on, and men who have special topics ot their own to look after pay little attention to anything else. Now, sir, we must not ignore the old Constitution entirely. We are proceed- ing at present to the demolition of all that exists, and attempting to make something entirely new. We should not go so far as to entirely ignore the present doetunent which now stands as the Constitution of the State. I think we should pre.-ferve it in all its forms and features, as far as it is possible, in the making up of the new instrument. To that end I have proposed. In this resolution, that the articles of the Constitution be taken up in their respective orders as they now exist The main object of this resolution is U> consider every article to be put in the new Constitution by itself, in all its parts and dejmrtments, and finish that particular article before entering upon the consideration of another. Tnat is the only method, in mv judgment, whereby we can secure order and form of procedure, and It will certainly quiclcen our action and expedite the busineas of the Convention. Then, there is a part of this plan that every article ahall be considered in its proiier place, and all there is to be said and done in reference to it shall be done while it is the subject of debate, so that we can pass rap- idly from one to another. Let us not work blindly, grasping blindly after results. that cannot be attained. If we do not adopt sucn a mode of procedure, you will find that it will be up-hill work. If a skillfiil artisan were about to construct a model of the human body, he would nut first form a portion of an arm, and then a toe, and then a foot, and then a section of the spine, and then a fragment of the leg, but he would finish it in its proper order of joining, making member by member, and Digitized by Google Oct. 15, 1878. OF THE CONSTITUTIONAL CONVENTION. 155 then adjust the members together, and form a harmonioaa whole. This is the coarse of action for ua to pursue. Objection has been made by the minority of the Committee on Bules and Older of Business that this resolution retjuired committees to report in a stated order. As far as that proposition is concerned, it is not a vital ' point with me. If some committees are readjr to report before others, upon an entire subject or article of the Constitution, then their report an be considered when it comes up. But the main object is to consider ind dispose of one subject entirely before entering upon the consideration of soother. This is the main purpose of this resolution, and if that pur- pose is carried out, I am satisfied the Conreution will never see the day when it will have occasion to regret its act. Ml LABKIN. I desire to retain in the present Constitution every item that is good, and every item that satisfies the people. But the resolution berore us, that is proposed by the gentleman from San Fian- ciseo, Mr. Winans, I believe will delay action in this Convention — will hinder the work of this Convention, "hinder the committees, and may block the work of the Convention entirely. It has been charged repeatedly that certain gentlemen on this floor desire to defeat this Constitution, and obstruct the business of the Con- vention. I hope the gentleman from San Francisco is not one of them ; bat these resolutions will, I am certain, delay action in the Convention. There can be no final act upon any proposition submitted here from any committee. This Convention has met to frame a Constitution. As far asthii proposition is concerned — as far as the distinguished gentleman has illustrated his remarks — it is to make one harmonious whole by com- mencing at the first provision to be embodied in the Constitution. Now, I see no reason for the adoption of this resolution at this particular time. If all the committees had reported, then such a resolution might be in Older. If we had all the subjects franjed, it might not be improj)er for this Convention to say in what order they should be joined together. While everything is in chaos here, i^hile the committees are filled with propositions and resolutions, let us go on with the work, and let each committee stick to its duty, and not by any delay postpone the action of this Convention until the funds are exhausted ana we are compelled to return home without making a Constitution. We want no delays here. Let us vote down the proposition and go on with the work, and then come together in Committee of the Whole and consider each proposition, and adjust it so that it will be in harmony, one section with the other. We vant no final action by any committee ; no final action upon aiiy proposition submitted now, because we may change our views upon many of tlie questions to come before us. I hope the resolution will be voted down, for it will be sure to delay the Convention in its work. Me. B£ER8T£CUKK. Mr. President : I am opposed to this resolu- tion, because I think the adoption of this resolution would clog the wheels of the Convention and result in an absolute loss of time. The resolution, takei) as a whole, provides: "That for the parpoee of rivins efTect and enforc«inent to th« rulos aforesaid, the wnnl commltteM having charge of the matters embraced In the laid preamble ud twelve articlee stiall make their reports in the order herein named." That would be, first, the Committee on Preamble and Bill of Rights, the Committee on the Right of Suffrage, the Committee on the Dis- ■ributioa of Powers, the Committee on Legislative Department, and so on to the end. I don't believe it is good policy to have every committee in this bodv wait the action of any other committee. Ma. WINANS. As I stated, I am perfectly willing to modify the resolution to that extent. Alter that, and allow each committee to nmrl when it is ready. Ma. BEEH8TECHER. The difficulty is that the resolution, accord- ing to the statement of the gentleman from 8nn Francisco, Mr. Winans, is acknowledged to be defective, and of course it is not proper to ask us to vote for it in its present condition. Farther, Mr. President, it seems to me that a resolution of that character is entirely unnecessary. The gentleman from Sacramento, Mr. Edgerton, this morning introduced a resolution which was adopted, which particularly specified that partic- nhir matters should be sent to particular committees designated for such matters, and that they should be sent nowhere else. Consequently, the Committee on Declaration of Rights has nothing else to do, save solely and alone to consider subjects relating to the declaration of rights. The Coinmittee on Legislative Department has nothing to do but to consider subjects relating to the legislative department. Mr. Edgerton's resolu- tion provides for the matter that these committees shall consider these specific things and nothing else; and when these committees are ready to report, they will come before this house and bring their report, and the Douse will act on it. Of course the house will not act on two reports at the same time. That proposition is absurd. It is just as >«urd as that two bodies can occupy the same space at one time, for this house to ael upon two reports at one time. When a report is broueht in, the house will take it up and consider it seriatim on one day, or whenever it is necessary, and I think the resolution of the gentleman from Sacramento provides for the whole matter, and I hope the resolu- tion as offered by the gentleman from San Frafccisco will be voted down. I dont see an^ analogy between the arms and toes of a human form and this Constitution. We propose to take up reports as they come in. If we provide that a committee can only report in the order it is designated upon any particular schedule, the consequence will be that if another oommittee is ready to report, it cannot report because the schedule will net allow it, and the consequence is, we would be obliged to adjourn nom time to time waiting for the report of the proper committees. Mt O'DONNELL. I move that the resolution be laid on the table. Th« PRESIDENT. The motion is to lay the resolution on the table. The motion prevailed and the resolution was tabled. BIOONSI DEK ATION. M». EDOERTON. Mr. President : I move to reconsider the vote by *luch tiie resolution was passed this morning in relation to the different articles in the Constitution. There seems to be some misunderstanding of the effect. I do this in order to enable me to withdraw the resolution ill order to make an amendment or colrection. Mb. INMAN. What is the object? Mb. edgerton. There are some matters in the Legislative Depart- ment that properly belong to the Committee on Bill of Rights, and it lakes away from the Committee on Bill of Rights and sends to the Com- mittee on liCgislative Department, matters properly within its jurisdic- tion. And it is the same way as to other committees, and the object is to correct it in that particular. Thb PRESIDENT. The question is on reconsidering the vote by which the resolution was adopted. The motion to reconsider prevailed. Mb. edgerton. I ask leave to withdraw the resolution for the purpose of correcting it. Tub PRESIDENT. There being no objection, the gentleman will have leave to withdraw the resolution. SPECIAL OBDKB. Mb. ESTEE. Mr. President: I move that we lake up the next sjiecial order, set for three o'clock. The PRESIDENT. There being no objections, the special order for three o'clock will be taken up. The Secretary will read the resolution. The SECRETARY read the resolution, as follows: Retained, First— That after this day, and until Wedneedajr, the twenty-third day of the present month, a;i that part of rule suvcnteen after the sixth order of biui- ni>w be and the aamo li hereby suspended. Second— That from and after this day, and until such twentj-thtrd instant, the Convention adjourn each day immediately after concluding the sixth order of busi- nt-«, for the purpose of enabling the standing conimltteoe to condder the subjects ri'ferred to them, and to mature a plan of action concerning the same. Third — That immediately after such adjournment, mid comniitteee proceed to hold dully 8«eelon8 for the dlspooal of the business before them, and that on such twenty- thiitl inalant, or sooner if practicable, they report such plau to the OonTention for Its action. The PRESIDENT. The question is on the adoption of the resMution. The resolution was adopted. AOJOUBNliENT — PBOP08ITION8. Mb. AYERS. I move that the Convention do now adjourn. Mb. UAGER. Before adjourning, Mr. President, I ask leave to introduce some propositions. The president. There being no objection, the gentleman will have leave. DECLABATION OP BIGHTS. Mb. HAOER, by consent, introduced the following proposed amend- ment to the Constitution, in relation to the declaration of rights: 1. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect, or supjiort any place of worship, or to maintain any ministry, against his consent ; no human authority can, in any case whatever, control or interfere with the rights of eon- science, and no preference shall ever be given by law to any religious establishments or modes of worship. 2. No power of suspending laws shall be exercised, unless by the Legislature, or by its authority. 3. No ex post &cto law, nor any law impairing the obligation of con- tracts, or making irrevocable any grant of exclusive or special privileges or immunities, sliall be passed. 4. The printing press shall be free to every person who may under- toke to examine the proceedings of the Legislature, or an^ branch of giivernment, and no law shall ever be made to restrain the right thereof. The free communication ofthoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, or print, on any subject, being responsible for the abuse of that liberty. No convic- tion shall be had in any prosecution for the publication of papers relat- ing to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negli^ntly made shall be established to the satisfaction of the jury; and in all indict- ments for libels the jury shall have the right to determine the law and the facts, under the direction of the Court, as in other cases. b. The citizens have a right, in a peaceable manner, to assemble together for their common good, and to apply to those invested with the powers of government for redress of grievances, or other proper pur- poses, by petition, address, or remonstrance. 0. The Legislature shall not grant any title of nobility, hereditary distinction, or exclusive privilege, nor create any office the appointment to which shall be for a longer term than during good behavior. 7. The Courts of justice shall be open to all, and every man for an injury done him in his property, person, or reputation, shall have remedy by due course of law, and right and justice administered with- out safe, clenial, or dela^. No law can limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property ; and in case of death from such injuries the right of action shall survive, and the Legislature shall prescribe for whose benefit such actions shall bo prosecuted. No law shall prescribe any limitations of time within which suits may be brought against corporations for injuries to persons or property, or for other causes different from those fixed by general laws regulating actions against natural persons. Referred to the Committee on Preamble and Bill of Rights. JUDICIAL DBPABTHENT. Mb. HAGER, by consent, introduced the following proposed amend- ments to the Judiciary Department, to be added to those heretofore made in amendment number ten : 1. Whenever two Justices of the Supreme Court are to be chosen for the same term of service, each voter shall vote for one c Digitized by .re CO oe cnosen lor *- -"^ 156 DEBATES AND PROCEEDINGS Wednesday, when Can- or four are to be choaen, he shall vote for no more than two, and five or six are to be choaen, he shall vote for no more than three, didates highest in vote shall be declared elected. 2. The Justices of the Supreme Court, during their continuance in office, shall reside within this State, and the District and Countv Judges, during their continuance in ofiice, shall reside within the districts or counties for which they may be res|>ectively elected. 3. No duties shall be imposed by law upon the Supreme, District, or County 0>urt8, or the Justices or Judges thereof, except such as are judicial. 4. Whenever a Judicial District is composed of two or more counties, the County Jud^ in the District Courts of their respective counties may act for and in the place of a District Judge, when he may be absent from the county, and in such capacity shall have power in actions and proceedings in such District Court to issue orders and writs of man- damus, quo warranto, certiorari, prohibition, ne exeat, injunction, and habeas corpus, and to bear and determine the same. 5. Until otherwise directed by law, the District Courts and the County Courts shall continue as at present established, except as in this Consti tution changed. Referred to the Committee on Judiciary and Judicial Department At two o'clock and twenty-eight minutes, on motion of Mr. Ayers, the Convention adjourned until to-morrow. NINETEENTH DAY. Sacbahikto, Wednesday, October 10th, 1878. The Convention met in regular session at ten a. h.. President Hoge in the chair. The roll was called, and members found in attendance as follows : Andrews, Herold, Porter, Ayers, Herrington, Prouty, Barbour, Hilbom, Pulliam, Beerstecher, Hitchcock, Reddv, Belcher, Holmes, Reed, Bell, Howard, Reynolds, Biggs. Huestis, Rhodes, Blackmer, Hughey, Ringgold, Boggs, Hunter, Rolfe, Boucher, Inraau, Schcll, Brown, Johnson, Schomp, Burt, Jones, Shafter, Campbell, Joyce, Shoemaker, Caples, Ke'lley, Shurtleff, Chapman^ Kenny, Smith, of Santa Clara, Charlea, Keyes, Smith, of 4th District, Condon, Eleine, Smith, of San Francisc Cowden, Laine, Soule, Cross, Larkin, Stedman, Crouch, Larue, Steele, Davis, Lavigne, Stevenson, Dean, Lewis, Strong, Dowling, Lindow, Sweasey, Doyle, Mans6eld, Swenson, Dudley, of San Joaquin, Martin, of Alameda, Swing, Dudley, of Sniano, Martin, of Santa Cnw , Terry, Dunlap, McCallum, Thompson, Eagon, McComas, Tinnin, Edgerton, McConnell, Townsend, Eatee, McCoy, TuUy, Estey, McFarland, Turner, Evey, McNutt, Tuttle, Farrell, Miller, Vacquerel, Fawcett, Mills, Van Dyke, Filcher, Moffat, Van Voorhies, Finney, Moreland, Walker, of Marin, Freud, Morse, Walker, of Tuolumne, Garvey, Murphy, Webster, Gorman, Nason, Wellin, Grace, Nelson, West, Gregg, Neunaber, Wickes, Haser, Noel, White, Hall, O'Donnell, Wilson, of Tehama, Harrison, Ohleyer, Winans, Harvev, O'SuUivan, Wyatt, Heiskell, Overton, ABSENT. Mr. President. Barnes, Freeman, Stuart, Barry, Glascock, Waters, Barton, Graves, Weller, Berry, Hale, Wilson, of let District, Caaserly, Lampson, LEAVK OF ABSKHOS. One day's leave of absence was granted Mr. Journal of yesterday read and approved. Keyes. XCMORIAL. Mb. HAGER presented the following memorial, signed hy K. Johnston and sixteen other citizens of California: To th« Oonatltattonal Oonventton, to meet at SiiCfmmeDto, CUtfornU, on tbe twraly* eighth day of September, eighteen hundred and WTenty -eight: BelipTing that AlmtghtyCod ti tho sonrcw of all power and aotlioritj In civil kot* eminent, that the Lord Jettiut Christ ts the Ruler nvenlion, authorised to prepare a Oooiti- tntlon for said Statt*, to retain sertlon four, article one, of tlie same, and to add to said section a provision declaring the Sabbath daj, or Sunday, a day of rest. LOCAL OPTIOK. Thr president presented the following memorial, signed by E. White and several hundred other citizens of Humboldt County : To the President and Uembera of the Gonstltatlonal OonTeotloii of tha State of Caltfomia: The people of the State of Oallfomla recognise the bet that It Is the oltfect and duty of the pre«ent Convention to promote the welfare of oor people by toe enact- ment of wise and Just laws, and to advance their common Interests by the eooonr* ngement of every IrglUmate, and the supprension of every pemldoas, traffic. Your memorialists are of the opinion that a great portion of the more obstimUe and painrul moral diHorders that afflict the human family are engendered by the use of Bpiritnoos and intoxicating Uqaors; that the common use of surh intoxicating liqnors is not only destructive to health and happiness, but also impairs the frenltlct of the mind, and thereby tends equally to dishonor onr dumuteras a natioo as wM as to lower us in the scale of clvitlzation. Your memorialists have no doubt but that the presence of the plagne or any other pfstnentiat disorder, which might sweep away thousands of onr fellow cttlsens, would elicit the most strenuous Hnd enei^etlc efforts on the part of onr govemmsnt tosuMue It, and to guard against its possible occnirenoe. Your mrmoriallsts can discpm no just reason why the mors certain and distress- ing ravages of intoxicating liquors uiM)n the lives and happiness of our cititeiu,and the welt.bolng and quiet of our community, should not be guarded against with correspondtng vigilance and anxiety by the present rulers of the United States, and more |>articularly by the present law-makers of our own fiiir State. Yonr memorialists beg leave to add further that, In their belief, the ose of spirit uous and intoxicating liqnors Is, in any case whatever, wholly junnecessary; that they neither fortlty the body against the influences of heat or cold, nor render labor more easy or more productive; and that there are many other articles of diet and drink which are not only perfectly safe and salutary, bnt in every way snperhv and preferable to intoxicating liquors for any of the purposes above mentloDed. Your memorialists also believe that It is a grave defect in onr present Constito* tion, in that it denies to the people of the different counties, townshlpe, and districts the privilege of fairly determining, at the ballot-box, whether liquor saloons shall cmtlnne to exist In their midst, with their attendant trains of flvil, of vlcca, pollo- tion, want, and woe. We are fully convinced that the law passed in March, eighteen hondredaod seventy-four, and known as the ** Local Option Law,'* was a proper and Just law, and one meeting with the general approbation ot our people, as was vfMenced by the fact that, out of over one hundred elections held under its provisions, the svccesi of Local Option was In the ratio of two and a half to one. We, therefore, ounmsnd It to your consideration. Your memorialists have beheld with regret the hitherto feebia and Ineffectoal endeavors put forth to stop or Impede this giant evil, and the proportionally barren results which have resnltod therefrom. They center their hopes, therefore, of an effectual remedy. In tlie wisdom and |M>wer of your honorable body, and In behalf of oor common humanlly entreat i^ you, by alt your obligations, to protect the lives and comfort of our citleens, and by your regard for our national character and respect for our land In the scale of intelli- gent and civllixed beings, to Impose such heavy duties on intoxicating Ilquora, or adopt such other remedial and preventive measures as shall. In yoar sober Jndgmsat, tend most efficiently to subdue and eradicate these evils. Therefore, with an honest belief in the Justness of our demand, and with a Arm reliance in the honor, wisdom, and sincerity of yonr honorable body, we handily crave at your hands a prompt and impartial consideration of our request, and if possible an nltlmate exemption from this distressing evil. cocntirs and couktt skats. Mb. BOUCHER waa granted leave to introduce, out of order, the fol- lowing proposed amendment to the Constitution, in relation to counties and county seats: Ahticli — . covktiis. Skction 1. No new county shall be formed or established by the ]>g- islature from any county or counties, which will reduce the county or counties, or either of them from which it shall be taken, to less oontenta than six hundred square miles; nor shall any county be formed of less contents; nor ehall any line thereof paaa in less than ten miles of any county seat of the county or counties proposed to be divided. Skc. 2. No county shall be divided, or have any part stricken there- from, without submitting the question to a vote of the people of the county, nor unless a majority of all the legal voters of the county voting on the question shall vote for the same. Skc 3. No countv shall be so formed unless the assessed value of the property contained therein shall amount to six millions of dollars. Skc. 4. There shall be no territory stricken from any county onlflSB Digitized by V^jO . Oct. 16, 1878. OF THE CONSTITUTIONAL CONVENTION. 157 a majority of the voters living in aueh territory shall petition for such diriaon; and no territory shall be added to any county without the conseut of the majority of the voters of the county to which it is proposed 10 be added, but the portion suBtrieken offaftd added to another county, or formed in whole or in part into a new county, nhall be holden for and obliged to pay its proportion of the indebtedness of the county from which it has been taken. An equitable division of all county property, owned at the time of such division, shall be made between the old and new counties. OODKTT SEATS. No county seat shall be removed until the point to which it is to be removed has been determined by a majority of the voters of the county, ia such manner as shall have been prescribed by general law. Read and referred to Committee on City, County, and Township Organisations. REPOBT ON CHINKSR. Mk. MIIiLER, from the Committee on Chinese, made the following report: Mr. Pkisidknt: The Committee on Chlneee, to whom was referred resolution Domber twentj'eight, relating tn a memorial to be preeented to the Prerident of the TToitMl States for the raodiflcatlon of the Burlingame Treaty, beg .leare to report the noie to the Conrentlon, together with the following subetitute therefor, unan* inonal; agreed upon by the committee, with the recommeudatioi^ that the subatitute herein be adopted. Saohr^ That the Oonrention memorialiae the President and Senate of the United States to modify the Burlingame Treaty no aa to prohibit Chlneae Immlgra- |j(n, and that the Chair appoint a committee of seTen to draft lucb memorial, to be labmitled to the Convention. Ml grace. I call for the reading of the original resolution. TBI SECRETARY read the original resolution, as follows : Raotrtd, That this Conrontlon memorialize the Prtetdent of the United States to sbrogHtf or modify the Biirllugnme Treaty ; and also memorialiae Congress to pro- hibit Chinese Immigration; and that the Chair appoint a committee of aeren to dnA »Dch memoriala, to be submitted to this Conveutloj^. Ms. HAGER. I would like to move to amend that report in this respect, that this standing Committee on Chinese be authorized to draw that memorial. They are. more conversant with the subject. They hare the matter before them, they are charged with it, and they are the proper committee to draw the memorial. I move to amend, that the Committee on Chinese be aalhoriied to draw the memorial. Tn PRESIDENT. The gentleman will send his amendment in writing Ut the desk. Hi. miller. The committee have no objection to this amendment and will accept it. The president. The Chair cannot tell what the amendment is unless it is sent up in writing. Ml, BLACKMER. I desire to ask the Secretary to read the first part of that resolution a^in. My recollection is that it memorializes the President of the United States to modify the treaty. Thi SECRETARY again read the resolution and then read Mr. Hager's amendment. The amendment was adopted. The resolution as amended was adopted. STXTIONKBT. Ml. HILBORN, from the Committee on Mileage and Contingent Expenses, offered the following resolution : Boolrrd, That the Secretary of State be re<|U(«ted to fnmlnh the Convention with a statement of the amount of atntionery Ismed fiom his office up to this date which bts been charged to the approiiriatlon for the payment of the expenses of thia Con- nation. Mr. McCOMAS. I would like to know if we ar« informed ifhether the stationery used here is to be charged against the appropriation for the expenses of the Convention. I do not think, from the wording of the law, that it is so intended. Me. HILBORN. I will say, in justification, that we have ascertained that the Secretary of State and all thq other members of the State Board of Examiners so construe the law that all the stationery used here shall be charged to the one hundred and fifty thousand dollars appropriated for running this Convention. I take this method of bringing the matter to the attention of the Convention, that they may know the fact, and also that they m^y have some idea as to how much stationery is being nsed — that they may know what inroads are being made upon that appropriation. The resolution was adopted. Ml. NOEL. I desire to offer a resolution. Tbi PRESIDENT. The gentleman's resolution is out of order at pnsent. COHHITTKR MKRINOS. Mr. CAMPBELL. I desire to give notice that the Committee on Executive Demirtment will meet in room fifty-five after the adjournment. Mr. EDGERTON. The Committee on Revenue and Taxation will meet in the Supreme Court room this evening at seven o'clock. Mr. ESTEE. The Committee on Corporations other than Municipal will meet at room fiftv-six immediately after adjournment. Mr. VAN DYKE. ' The Committee on Preamble and Bill of RighU will meet in room seventy-two immediately after adjournment. LIST or OOXMITTIKS. Hl BOLFE. I desire to ask for information. I would like to know what eommitteea I am on and who are my Chairmen, and I would like *^ blow why these printed lists of committees are not printed. I WisTe there was a special order made requiring them to be printed mnediatdy. T«t PBE8IDENT. The Chair is informed that they will be ready uusaAamoon. Mr. ROLFE, I understood that the resolution required them to be printed separately from the rules. Thr president. It reauired them to be printed out of theirorder. Mr. SHAFTER. I ask the Committee on Pardoning Power to meet at my desk immediately after adjournment. SKRORANT-AT-ARHS' CLRRK. Mr. GARVEY offered the following resolution : Resolved, That P. K. Keene be and he la hereby appointed Clerk of the Sergeant- at-Arms, and his pay shall be the same aa Minute Clerk, payable ont of the appro- priation for the expenses of the Convention. Referred to the Committee on Contingent Expenses. COmilTTEK ROOMS. Mr. HII^ORN offered the following resolution : Retolvfd, That the Sergeant^tAnna be directed to aa^ign the chamben of the Supreme Court for committee rooma for thia Convention. Adopted. COHHITTKR CLRRK. Me. NOEL offered the following: Aejolrerf, That the Committee on Enrollment and flngroasment be authorlxed and empowered to employ a elerk, at a saluy of five dollars per day, whenever necea- sary. Referred to the Committee on Contingent Expenses. ADJODRNUKNT. The sixth order of business being finished, the President, at ten o'clock and forty minutes a. h., declared the Convention adjourned until to-mor- row, at ten o'clock a. h., under the rule adopted yesterday. TWENTIETH DAY. Sacrahkkto, Thursday, October ITth, 1878. The Convention met in regular session at ten o'clock a. h.. President Iloge in the chair. The roll was called, and members found in attendance as follows : Andrews, Harrison, Porter, Ayers, Harvey, Prouty, Barbour, Heiskell, Pulliam, Barry, Herold, Beddy, Barton, Herrington, Reynolds, Beerstecher, Hilbom, Rhodes, Belcher, Hitchcock, Ringgold, Bell, Holmes, Bolfe, Biggs, Howard, Schell, Blackmer, Huestis, Schomp, Boggs, Hughey, Shatter, Boucher, Hunter, Shurtleff, Brown, Inman, Smith, of Santa Clara, Burt, Johnson, Smith, of 4th District, Campbell, Jones, Smith, of San Francisco, Caples, Kelley, Soule, Chapman, Kenny, Stedman, Charles, . Kleine, Steele, Condon, Laine, Stevenson, Cross, Lampson, Strong, Crouch, Larkin, Stuart, Davis, Larue, Sweasey, Dean, Lavigne, Swenson, Dowling, liewis. Swing, Doyle, Lindow, Terry, Dudley, of San Joaquin , Mansfield, Thompson, Dudley, of Solano, Martin, of Alameda, Tinnin, Dunlap, Martin, of Santa Cras , Townsend, . Eagon, McCallum, Tully, Edgerton, McComas, Turner, Estee, McConnell, Tuttle, Estey, McCoy, Vacquerel, Evey, McFarland, Van Dyke, Farrell, McNutt, VauVoorhies, Fawcett, Mills, Walker, of Marin, Filcher, Moffat, ■Walker, of Tuolumne, Finney, Moreland, Webster, Freud, Morse, Weller, Garvey, Nason, Wellin, Glascock, Nelson, West. Gorman, Neunaber, Wickes, Grace, Noel, White, Graves, O'Donnell, Wilson, of Tehama, Gregg, Ohleyer, Winans, gr* O'SuUivan, ' Wyatt, Overton, Mr. President. Hall, ABSENT. Barnes, Joyce, Reed, Berry, Keyes, Miller, Shoemaker, Casserly, Waters, Cowden, Murphy, Wilson, of 1st District. Freeman, Journal of yesterday read and approved. /'^ r^/-\/^ Digitized byVjOOv 168 DEBATES AND PROCEEDINGS Thursday, LEATI or ABSENCK. Xieave of absence was granted to Messrs. Shoemaker and Reed for one day, to Messrs. Cowden and Joyce for two days, to Mr. Ilughey for three days, and to Mr. O'DonncIl until Monday next. Mb. smith, of Santa Clara, presented a memorial respecting reclaimed lands. Referred to Committee on Agriculture. STATK PBI90N8. Ms. CAMPBELL. I ask leave of the Convention to present and have referred a propoaition which was prepared by the late Governor Haight, who intended to introduce it before the Convention. It is in relation to the organization of a Board of State Prison Directors. It was his inten- tion, in his lifetime, to have introduced this proposition, and it has been forwarded to me by the Secretary of State Prison Commission. I ask to have it referred to the Committee on State Institutions and Public Buildings. So ordered. The proposition was as follows : PBOPOSITION TO B.STABLISH A BOABD OF PBISOM DIBECTOBS. There shall be a Board of Prison Directors, to consist of five persons, to he appointed by the Governor, with the advice and consent of the 6ointed shall, in such manner as the Legislature may direct, be so classified that the terra of one person so appointed shall expire at the end of each two years during the first ten years, and vacancies in said ofiice thta or otherwise occurring shall be filled in like manner. The appointee to a vacancy occurring before the expiration of a term shall hold only for the unexpired term of his predecessor. The Governor shall have the power to remove either of the Directors for misconduct, incompetency, or neglect of duty, alter an opportunity to be heard, upon written charges. The Board of Directors shall have the charge and superintendence of the State Prison, and shall possess sucli powers and perform such duties in respect to County Jails, and other penal and reformatory institutions in the State, as the Legislature may prescribe. The members of the Board shall receive no compensation other than reasonable traveling and other expenses incurred while engaged in the performance of official duties, to be audited as the liOgislature may direct. The Board shall appoint the Warden, Physician, and Clerk, and determine the other uecessair officers of the prison. The Board shall have power to remove the Warden, Physician, and Clerk for miscon- duct, incompetency, or neglect of duty, after an opportunity to be heard, on written charges. All other officers of the prison shall he appointed by the Warden thereof, and be removed at his pleasure. whenever section twenty-two, twenty-three, twenty-four, and thirty- five of this article shall be finally adopted, they shall take effect without further legislative action, and it shall be the duty of the Governor thereupon to appoint the Board of Prison Directors as pro- vided therein. Referred to Committee on State Institutions and Public Buildings. ATTACH K8. Mb. TINNIN offered the following resolution: Wbcreas, great inconToniencv exists to the members of this Oonveittion, In con* MOiience of pome of its attaches failing to perform their duties; thervforr, be it Raolvtd, Th«t the 8ergeaiit-Rt-Arms ts hereby dirort«d to aasume control of all attaches, other than those nctiiigaa ciprkt, anil ]i'- i* further anthoHuHl to detail anv of the attaches under his control to pei&rm any dutlM required In the boildlng. He shall report any negligence on the part of said attach^ to the Committee on Mileage and Contingent Expense*, who may take such action as they think proper. Adopted. Mb. AYERS offered the following resolution: RetolTtd, That the Judiciary Committee be instnicled to report to this Conren- tlon whether. In their opinion, the expennps of printing and stationery ordered by the Convention and members, for their use, are legally chargeable to the fiind approprl-ited In the Act under the authority olf which this Conrenttoii has met. Adopted. Mb. terry offered the following resolution : Retolved^ That the Committee on Leginlatlre Department be and la hereby author- ised to employ a clerk, at a compensation of Atc dollars per day, for each day that he is actually employed. Referred to the Committee on Mileage and Contingent Ibcpenses. COBPOBATIONS. Mb. hale offered the following resolution: Aeaotved, That the Secretary of State be requested to (Ornish to the Convention all Information in bla ]>o«iG8slon npnn the following subjects, to wit: F^rit — The number and clafletficatlon of all corimmtlnnn other than municipal now existing In the State of Oallfomia, and formtMl under the laws of this Slate. Second — The aggn-gate amount of the capital stock of all said corpomtions and the aggregate amount uf said capital stock of each claas thereof. Third — \ declared statement of the principal place of business and locations of the principal offices of each corporation. nurth — A detailed statement uf the amount of capital stock actually paid up by the said corporations. Mb. hale. I desire to say one word upon that subject. We all know that in the State of California, at an early day, we made a depart- ure upon the subject of corporations other than municipal. We cut off the power of forming corporations other than municipal, except under general law. Since that time we have had a system of law authorizing the formation of corporations. We have now had an experience of one quarter of a century under this system. We are convened here again upon a call of the people to reform our organic law. It seems to me, sir, that it would be the part of wisdom to lay before this body all the infor- mation that can be furnished by the office of the Secretary of State, which is the depository of that information, showing our experience thus far upon this subject. It is to throw as much light as possible to the minds of this Convention in determining whether they wish to conlinae the system as heretofore adopted, and, if^ modifications be needed, what those' modifications should be. The resolution is intended to call for this information in detail that it may be laid before this Convention in a form that we can understand. The resolution was adopted. STATIOKIBT BXPEKSEa. The president. The Chair has received the following communi- cation from the Secretary of State, which the Socretarv will read. The secretary read : State or CALiroxNiA, DxPABTiirirr or State,) R»caA««liTo, October 16th, 1878. / To the honorable President and Members of the Oonstituilonal Convention: QaKTLeiiEK : 1 have the honor to ackno« lodge the receipt of Beeolutlon No. — , adopled by your body to-day, requesting me to fUmlsh a statement of the amount of stationery furnished to nieniben thereof up to date. In reply to the same I would say, that just at this time, when the full force of my offlce is required to perform the usual routine of businrae, and such extra labor as has been created by the Convention, it has been impossible to keep the many rvqai* sltlons for stationery, etc., properly entered up to each member^ account, so that the amount delivered to each, or In aggregate, could be ascertained on abort notice. The law of tlie Legislature under which stationery is disbursed, nmkes the manner of keeping accounts very complex and tedious, as every item, even as to the dlffelent qualities or kinds of pens and pencils, etc., must be carried out In full, and charged at exactly awt price, necenvltating a constant reference to bills of putrhase. and striking aver«<;ea where the same vary with the tlmoa; and I wonid rMpectfally My to your honorable body. Iliat it will bo impnesible for me to comply at once wim the request contained in i«id resolution, a« such special lalior must Ite secondary to the regular buslnem of the ofllce. At the earliest opportunity, however, consistent with official duties, I shall be pleased to aiford the Informatlun desired. ■ le hoi 1 have the honor to be your obedient servant. THOMAS BECK, Secretaiy of State. The president. If there be no objection the communication will be received and laid on the table. BEPOBT. Mb. HILBORN, from the Committee on Mileage and ConUngent Expenses, made the following report: Ma. PaisiSEHT: Yonr Committer on Mileage and Contingent Expenses, tn whom was referred reeolutlon number forty-three. Introduced by Mr. Bstee, providing f* the payment of J Steppacher, for services as Clerk of the Committee on Sulea, hav* had the same under consideration, and find the following fiacis: The committee, while preparing the rules for this Convention, found It neecaiaiT to employ a clerk, who was promptly discharged when the rules were oompleted. Mr. ('teppacher served In that capacity thirteen days, and we think five dollars per day is a reasonable compensation. We therefore recommend the ad^ ption of the resolution. Your committee have also had under consideration resolution number forty-four. Introduced by Mr. E'lg»rton, authorising the Committee on Revenue and TaxatioD to employ a clerk, and herewith report the same back, and recommend that It be adopted Your committee are of the opinion that this Is one qf tht eery /no oosi- miUrtx who will need the servicw of a clerk. Your commitieo have alno had under oonsldetation reaolation number tvreuty- iiine, Intruduceil by Mr. Boerstecher, providing for the payment of two dollars per day to Patrick Levy, for lighting up the rooms of this building used by the Conreo. tion. There is no |»erson in the service of the Stote whose especial duty it Is to tight the gas and extinguish thesame. The duty Is performed by Mr. Levy, who is one of the regular porters, employed about the building at seventy-five dollars per month, and under the law bis day's work ends at five o'clock p. a. He receivea no addi- tional pay from the State for attending at night to took after tlie gas. It is nqjost to exi>ect him to remain ab* lit thn Capitol building until late at night to extinguish the lights without extra compensation The Board of Rxaminerv claim that there is no fund at their disposal out of which the extra compensation can be paid, and we see no alternative but for the OMivention to pay it out of their appropriation. Ws I therefor* recommend the adftptlon of tho resolution. We have also had under considorHtion resolution number twenty-six, introduced by Mr. Kagon, which provides tor paying O. K. M^i^tay for writing np theJoomal prior to the election of the Journal Clerk, and herewith report the same lack, and recommend its adoption We have aWt had un'ler consideration resolution number forty-flve, offend by Mr. Kstee, providing for the payment of eighteen dollars to Willie itampbell, for services as Page prior to his appointment, and lierowlth leport the same back, and recommend that it be indefinitely ixtetponed. We have also had under consideration resolution nnmber forty-seven, introduced by Mr. Garvey, providing for the appointment of a Clerk to the Sergeant-at-Anns, and herewith report the same back, and recommend that It be Indefinitely postpoaed. S. O. EILBOHN.Chalnnaa. PAY FOB CLBBICAL BEBVICE. The report was taken up, and the SECRETARY read the first resolu- tion, as follows: Retotved^ That the Controller be and Is hereby authorised and directed to draw his warrant In favor of J. Steppacher, for tho sum of sixty-five dollars, for servkeB as clerk of the Committee on Rules, payable out of the appropriation for this Conveo- tlon, and that the State Treasurer be and la hereby authorized to pay the same. Mb. ESTEE. Mr. President: When this committee was appointed there was no rule by which we were controlled, and it was necessary to have a clerk. A clerk was appointed by the committee, and the clerk rendered these services. I think they were well and faithfully rendered, and were worth five dollars a day, and I hope the committee will pay it. Mb. DUDLEY, of Solano. It seems to me that seventy-five dollars— that is five dollars a day for the time the Convention has been in session, is a very large sum to pay for the work. Mb. HILBORN. It is sixty-five dollars— thirteen days at five dollais a day. Mb. DUDLET, of Solano. I do not know what services this clerk rendered. I understand that he has been writing up the rules. It seems to me that is a very large sum to pay him, even if he had to copy the rules three times over. Me. BARBOUR. I would like to ask the committee if they know that any thirteen days' work has been j Digitized asK tne eommiuee it tne ;r;efeogle Oct. 17, 1878. OF THE CONSTITaTIONAL CONVENTION. 159 Mk. HILBORN. All I know about it is, that the Chairman of the committee appeared before UB and made a statement that this clerk had perfonned these services, and we take it for granted that he did. Mb. EDGERTON. I have been a memoer of that Committee on Rules and I know something about this matter, although I do not pre- tend to know the number of days which that committee has been in session. But I do know this : that this committee ordered these rules to be indexed, for instance ; that there have been several reports, references, and changes of tlio rules, and that this gentleman has always beat in attendance upon the committee, and has performed all the clerical duties which have devolved upon them, and it has amounted to a Terr considerable duty. I have no doubt that he has either been in actual service, or in attendance and waiting upon that committee during these thirteen days. He has also prepared the list of standing commit- tees, vhich will be found printed with the rules, and that was also done by order of this Convention. There have been a great many changes msde in the rules, and all that clerical work has been done by this gen- tleman. He certainly ought to be paid something, and, in my judg- ment, that is not too much. Me. cross. I am not in favor of paying out aay money unneces- sarily, but I believe in doing justice, and since a question seems to have arisen, I would like to sair that I have been in the habit of writing here late, evening after evenmg and night after night. I have seen Mr. Steppacher working here until between nine and ten o'clock under the dictation of that committee. Hk. EDGERTON. To my knowledge be has been running between this committee and the State Printing Office, and doing other work irbich would otherwise have fallen upon the members of the commit- tee. I do not believe the people sent us here to perform that class of work. The resolution was adopted. COHHITTKK OLKEK. TBI SECRETARY read the next resolution, as follows: Boohed, That the Committee on Rerenne and Taxation bt and la taervby author- iicd to employ a clerk at a conipenaation of flT« dollars per da; for each day that b» Ii mctually employed. .Uopted. QAS PORTKK. Th( secretary read the next resolution, as follows: SaUvd, That the Secretary of State Is hereby requested to have such rooma In the Capitol Imildlug as may be used fur meetingii uf commilteea, lighted up on Digfataof meeting; and that Patrick Lery, the Porter, who haa charge of the gaa, be and he U hereby allowed two dollara por day for the performance of such extra lerrice. to tie paid oat of the appropriation fur the expenaea of this Convention. Itfa. LARKIN. We have employed porters to do that work. I shall oppose the motion on that ground. I move the indefinite postponement 01 the resol utiou. Mb. HILBORK. In regard to this matter I would say that we have not as yet employed porters to take charge of the gas. Even if we had, it woald be better to employ the man who has charge of the gas works. I think it would be economy. This ]iarticular man saved this State last winter about nine hundred dollars by his judicious management of the gu. He is thoroughly familiar with the works, and it would be a long time before any stranger could gain that familiarity. I am told by the Secratary of State, and other persons around the building, that he is a very competent person, and I have no doubt that it would be economy to employ this man to perform this duty rather than any stranger. Mr. terry. I would ask the Secretary to again read that portion of the report which relates to this matter. Thb secretary read : "Foorcommittee have also hnd under cott-lderatlon rceolotton number twenty- bine, tutroduced by Mr. Beeratecher, prorlding for the payment of two dollara per day to Patrick Le^, for lighting up the rooma of this building ufed by the Conven- tiwi. There ii no person in the aerrice of the State wboae especial duty it la to liglit the gaa and extinguish the lame. The duty ia performed by Mr. Lery, who la one of tbe regular Portera employed atMut the building at sorenty- Are dollara per month, and QDder tbe law hia day'a work enda at fire o'clock p. ■. He receives no addi- Donal pay Tnaa the ijtate for attending at night to look alter the gaa. It ia unjunt la expect him to remain about the Capitol building unlll late at night to eitingniah the light*, without extra compenaation Tbe Board of Examinera claim that there U DO fund at their dlaioaal out of which the extra conipenaation can he paid, and we •ee no altematlTe bnt for the Conrentlon to pay It out of their appropriation. We therefore recommend the adoption of the report." Mt. BEERSTECHER. I do not think it can be charged against me that I have advocated any extravagant expenditures in this Convention, and when I introduced this resolution it seemed to me that it was no more than just that Mr. Levy should receive this two dollars for the extra services that he rendered, jle has to remain seven hours after the day's work is done to perform this duty. He is not compelled to be here after five o'clock, out he generally does not go home until twelve o'clock at ni^ht. It is a matter of absolute economy and a saving to this Convention ; and the idea that the Porters of the several committee rooms can discharge these duties seems to me to be absurd in the extreme. A great number of the lights are outside of any of the com- mittee rooms, and who is going to attend to the lights on the outside? As the gentleman from Solano has aptly said, Mr. Levy saved this State somewhere in the neighborhood of a thousand dollars by reason of nndentanding the business of attending to the gas. He knows exactly I how many flames to have and how many not to have, and the conse- quenoe is an absolute saving to the State. I think it is a matter of economy for the State, and matter of justice towards Mr. Levy, that ha receive this two dollars. Ml. LARKIN. I misunderstood the reading of the resolution, and I 'ilhdraw my motion to indefinitely postpone. Ml. OSEGG. I understand that this man already receives a salary ' far peribrming this duty about the building. If that is so, there is no need of increasing his compensation, and this is only to increase bis com- pensation for services already called for. Me. EDGERTON. In reply to the gentlenutn from Kern, Mr. Gregg, I understand that this gentleman, Mr. Levy, is in the employment of the State, and while he nas charge of the gas, he has charge of it only for eight hours in the day. When these duties are discharged he can go home, and nobody can get at it ; and it is a mere question as to this Convention whether its committees shall have lights, fecause, if Mr. Levy sees fit to go away when his day's work is done, there is an end to it. Now, last evening I had to go to Mr. Levy and make a personal request of him to light up the Supreme Court room for the benefit of the Committee on Revenue and Taxation. If the resolution does not pass, the committees will all come in to-morrow asking that it be passed, so that they can have lights. Mb. DUDLEY, of Solano. Mr. President: If this man is in the ser- vice of the State for the purpose of having charge of tbe gas, and has only to serve eight hours out of the twenty-four, it would certainly seem very strange that his hours of service should commence at eight o'clock in the morning anil end at five o'clock in the aflernoon. I do not see any particular necessity for anybody to have charge of the gas during those hours. It is very certain that the various State offices are lighted up here at night, and somebody has charge of it. It seems to me that it is just a matter of strike on his part. There being more committee rooms to light, he takes this opportunity to increase his pay. Mb. SMITH, of Santa Clara. I move to strike out the" words " two dollars" from the resolution. Mb. EDGERTON. I will ask the gentleman how he supposes these committee rooms will be lighted? Mb. smith, of Santa t;lara. I propose to get some other man. Mb. EDGERTON. You cannot do it. This man performs his duties, and is onlv required under the law to remain eight hours. Mr. B£ER8TE(;HER. This man iweives seventy-five dollars per month. The resolution is to pay him two dollars extra }ierday; and then he will receive less than bve dollars per day. The gentleman says that if this man does not do the work we will get some other person to do the work. Well, this Convention has not t»en able to get any man to do anything, no matter what it was, for less than five dollars. We are paying five dollars for every man that comes into this Convention, provided he has some official employment here. The gentleman says if we do not take this man, we will take some one else. If we take any one else, we have got to pay five dollars a day, and it will be an absolute loss to the State of three dollars a day, and then the man that we take will not understand his business as Mr. Levy understands his business. I understand this man to be a general Porter, who has to attend to business here around the building for eight hours in the day, and after his general duties are finished he can go home at five o'clock. It seems to me that this man is justly entitled to receive this pay. Mr. HILBORN. There seems to beageneral misapprehension exist- ing here. Gentlemen seem to think that this man is employed by the Slate to look after the gas works. That is not so. He is a general Por- ter about the building. There are three of them. He comes here at the same time and works at the same kind of labor as the others. Go down into the stationery room and you will find him doing up books to send off, the same as the other Porters. As an accommodation to the officers of the building he stays here and lights up in the library and several State offices. That is all extra, and he is not required to do it by law. He is not paid for it b^ the State. Formerly there was a person spe- cially employed for this work ; now this man does it. This has been asked on account of the fact that he is obliged to stay hero until twelve o'clock at night and look after the gas and economize, and it has been found that by bis skillful manngement of the gas he saved the State a large amount of money, and the Legislature have found it economical to employ him and give him a little extra pay for staying up here until twelve o'clock at night. We have got to have somebody. In any event this Convention will lie charged about nine hundred dollars a month, and if we get an unskillful man who does not understand taking care of the gas we will find that it will come up to twelve hundred or fifteen hundred dollars a month. I confess that when this resolution was first referred, I was prejudiced against the idea. I thought ho was crowding us a little. When we came to iind out that this man, after having per- formed a full day's work as a Porter, stays here until twelve or one o'clock at night, for our convenience, I think it unjust to ask him to do it without pay. We tried to saddle this on tbe State in some way, but we found there was no fund out uf which the State Board of Exam- iners could pay it. Mr. grace. This discussion is costing the State more than the whole proposition contemplates. I move the previous question. No second. Me. HAGER. I want to ascertain the fact. It is said bv some gen- tlemen that this is a man employed by the State to do this particular business, and therefore they object to paying him any further compen- sation. Now, if he be employed to do this particular business, if that be his duty, why of course he is paid for it. We do not want gas here in the daytime. I gtiess we have enough of that without the artificial gas. But if, as others say, be is a Porter, employed here about the building to do certain duties in the davtime, and this burden is not imposed upon him now, then he should be paid if he does this work. I am in doubt as to what the man's position is. The resolution was adopted. PAT OF paob. The Secretary read the next resolution, as follows: Remlred, That the Controller of State shall imie hla warrant, and th% Treasurer ahall pay to Willie (Campbell the aum of eighteen dollara, for six daya' pay aa Page for serrices rendered before hia appointment. Mb. HUESTIS. I would like to inquire upon what th«ary tbe corn- Digitized by tb«afy the com- . Coogle 160 DEBATES AND PROCEEDINGS Friday, mittee report that of officers who were elected aome of them shall receive pay for their services before their election, and in other e&ie» they shall receive no pay. I notice from the reading of the report that it is recommended that the Journal Clerk shall receive pay for the lime that he served. I think Willie Campbell is juat as much entitled to pay for his services as any one else, and I therefore hope that the recom- mendation of the committee will not be adopted. Mb. HILBORN. The law provides that the President may appoint four Pages. We have already paid four Pages. The Convention acted upon the proposition that the then presiding officer, the Governor, had designated these particular persons. It is quite possible that a large number of gentlemen, wishing to show their peculiar qualifications, gut permission to come on the floor and did serve during the organisation. Some of them were successful, and others not. Having paid for the four Pages which the law allowed, if we should pay this boy — and by the way, he is a veiy worthy boy^I fear we might have a little army of bills of this kind. We regret very much that we could not pay this boy, but we think it might amount to a considerable sum if we adopted that rule of paying all the young gentlemen who served during the organization. Mb. ESTEE. When I introduced the resolution, I did so because I was informed by Dr. Clunese that the Governor bad told him that be designated him as one of the Pages of this body during its organization. I know that the boy did the duty. If he did not do it under the law, I shall not ask that it be paid. I am informed that the Governor did designate him as one of the Pafjes. I know he did his duty, and I think if he was so designated that he is entitled to his pay. Mr. REYNOLDS. I would like to know when we are going to see the last of these resolutions to pay Pages appointed by the Governor during the organisation of this House. When are we going to see the end of it? Is thisthe last, or is this thebeginningY In the first place, I don't think the Governor had any right to appoint any such officers, but if we can get some information as to when it shall stop — Thk PRESIDENT. The committee recommend the indefinite post- ponement of the resolution, and the question is on the adoption of the resolution. Mb. hale. I would like to inquire whether the Governor did appoint this boy or not. Mb. turner. He informed me that he did not appoint a single person, but he told them they might come here, as many of them as pleased, and lake their chances by showing how well they could do the work. That is what the Governor stated to me, and the record beare out this statement We have already paid four, which is all that the law allows us. The resolution was lost. SKBOKANT-AT-ABilS' CLEBK. The SECRETARY read the next resolution, as follows: Saolvfdy That P. K. Keene b« and he ti hereby appoloted Clerk of the Sergeant- at-Arms, and his paj ■ball b« the tame u BliDuta Clerk, payat>le out of the appro. priatloD for the expeneee of the Convention. Thb PRESIDENT. That resolution is contrary to rule seventy-five, and is therefore out of order. STITIONKBT. Mb. LARKIK oSered the following resolution: Raoived, That each member of this Convention and each standing committee shxll be allowed elstionery to the value of ten dollar*. Tag PRESIDENT. The resolution is not in order at present. BKPOBT. Mb. ESTEE, from the Committee on Incorporations other than Municipal : Ma. PazsiniHT; Tour Committee on Corporations, other than Municipal, report back to this Conventiop reeolntion number two hundred and five, introduced by Mr. Joyce, and reepeciftally suggest that the same be referred to the Coumltteeon Legi*' lative Department. Keepeclfully, M. M. KSTKK, Chairman. So ordered. Mr. ESTEE, from the Committee on Corporations other than Munic- ipal,offered the following resolution: Retolwd, That a clerk or copyist Is necessary for the Committee ou Incorporations other than Municipal, and the l^nventlon Is requested to allow said committee to elect a clerk at a cumpeniiatlon of five dollara for each day when actnally employed by laid committee. Referred to the Committee on Contingent Expenses. IXCU8ID. Mb. BARBOUR. Mr. President: I ask leave to make a request in reference to these standing committees. I find that I am appointed on foiir or five, and I am summoned on four committees at the same time. It is impossible for me to attend to the duties of the Committee on Revenue and Taxation, on Corporations, on Chinese, and on State and County Boundaries, each one of which has summoned me to appear in session with them after the adjournment. It is a physical impossibility. I find other gentlemen only on one committee. I Lave spoken to iir. Cross, of Nevada, whose ideas and views correspond with my own, and I ask that I be dropped from the Committee on Revenue and Taxation, and that Mr. Cross be appointed. I wish to attend as much as I ran to the sessions of the committees, therefore I make a motion to that 60*001. Thk PRESIDENT. The gentleman from San Francisco asks to be excused from service on the Committee on Revenue and Taxation. If there be no objection, he will be excused. It is so ordered. The Secre- tary will read the next resolution, from the Committee on Mileage and Contingent Expenses. JODBMAL CLEBK. Tub SECRETARY read: RfMlvfd, That the Oontroller be and he ts hereby authorized and directed to dnw hU warrant for forty dollars in favor of O. K. McStey, for servicce rendered in writ- ing np the Journal previous to bis election. Mb. cross. Does Mr. McStay draw pay from the beginning of the session T The president. Only from the day of his election. Mb. UILBORN. I would state that he has drawn pay only .since his election. Ue had to write up the Journal from the commencement of the session and this is to give him pay for that service. Mb. BURT. I would like to ask whether Mr. McStav did this work previous to bis appointment or since. If the work has been done since. It seems to me that we are paving him for it. Mb. HILBORN. I do not think that the gentlemen in this body understand it. During the organization we h^ no Journal Clerk. A Minute Clerk kept the minutes on rough sheets of paper. Nobody was authorized to write them up in the Journal for five days; then we elected Mr. McStay, Journal Clerk, and be had to go to work and write up the Journal from the start. In other words, he nad to do five days' extra work. Since that time we pay him eight dollars each day. He has bad to write up the JoumaJ five days for which he has got no compensation. Mr. TOWNSEND. Did not this Convention pay one man for that work? Mb. HILBORN. The minutes were kept by young Dobbins. Mb. GREGG. I would ask whether he was five days writing np these minutes. Ma. STEDMAN. I rise to a question of information. Do ve pay our Minute Clerks and Secretaries at the desk for every day of the ses- sion, the same as the members? Now, for instance, are our Secretaries and Clerks paid for thia two days' adjournment, or simply for the lime they are at work. . If these gentlemen are paid for every day, I think it is out of place to bring in a bill for five days' work. Mb. EAGON. I offered that resolution, sir, for the purpose of paying Mr. McStay while he was not the Journal Clerk of this house, as 1 understood it ; but whether he was or not, whether he did the work pre- vious to or since his election, he is allowed under the law eight dollars a day for writing up the Journal of this body. Ue was elected five days after this house had been in session. The Journals, or the matter he' bad to copy into the Journals, had accumulated there, and he had to write them into the Journals. He done five days' work for this body for which be has received no compensation wluttever, if he only gels pay from the time be was elected. Now, sir, his work is principally at night. He has to come here in the evening and get the minutes from the Minuto Clerk, and work late in the night to have the Journals ready to be read on the next morning. This, I have no doubt, cost him some extra expense in order to have the Journals written up. He had to employ additional help, so I am informed, and it is nothing more than right that he should have pay the same as other officers who performed services here. - Mb. REDDY. It seems to me that this Convention has already estab- lished a precedent that the salaries shall commence on the day of the appointment or election of officers of this Convention. It has jiist been established in the case of Willie Campbell. It is well known to every member on Ibis floor that this little boy, for six long days, rendered faithful service here. No one finds any fault with him, and yet when he puts in his claim for pay the Convention votes and says: " We have accepted your labor, but in view of the economy necessary for this State to practice, we will accept the labor of this little fellow, and wc will not pay him." Now, perhaps, Mr. Campbell is not old enough yet to have that principle recognized which declares that the laborer is always worthy of bis hire. But, in this case now pending, it seems to me that there is a strong desire to pay a man for labor performed five days before his appointment. Now, if we are to proceed upon a principle and be bound by the precedents which we ourselves establish, I see no reason why this gentleman should receive pay when it is refused to this little boy. If he dews, I should think thai it would be proper to reconsider our action in the case of little Willie. Mb. MARTIN, of Santa Cruz. I would inquire whether Mr. McStay was appointed by the Governor to officiate in that capacity. The resolution was lost. KOTICES. Mb. EDGERTON. I desire to give notice that the Committee ou Judiciary and Judicial Department will meet at one o'clock p. m. to-day, in the Supreme Court room. The meeting is called for the purpose of considering the question of eligibility «f Judge Fawcett, and it is desir- able that every member of the committee attend. The PRESIDENT. I am requested to give notice that the Committee on Education will meet at two o'clock to-day, in room number fifty-five. Mb. CAMPBELL. The Committee on Executive DeparimeDt will meet in room number fifty-five immediately after the adjournment of the Convention. COUNIT AND TOWK OOVKBNHKIITR. Mb. 8HAFTER, by leave of the Convention, introduced out of order the following amendment to article eleven, section four, of the existing Constitution : Section 4. The Legislature shall establish a system of county and town governments, which shall be as nearly uniform as practicable throughout the State. Each county of the State shall be divided into so many compactly located towns as may be deemed neceeaary, not less than three; provided, that after three have been formed, no additional town shall be made containing less than thirty-six square miles. Each town shall be known as the town of , andljnay sue and be sued by Digitized by Uoogle Oct. 18, 18^8. OF THE CONSTITUTIONAL CONVliNTloN, 161 tuoh title. In each town there shall be elected, annually, one Superriaor, one Town Clerk, one Asaeaaor, one Overseer of Highways, on? Overseer of the Poor, one Constable (who shall also be Collector of Taxes), and ODe Justice of the Peace. The Supervisor of each town shall constitute ■ Board of Supervisors for that county, and shall assemble at the Court- house thereof, on the first in , of each year, and proceed to audit the accounts of said county, examine the books of the Assessors, regulate and equalise the valuation of propeKy, fix the county levies for the ensuing year, apportion the same among the various towns, and per- fonn such other duties as shall be prescribed by law. It shall be the duty of each town to provide for the education of all its inhabitants, by maintaining proper free schools, to provide for paupers resident tberoin, and for the building and toaintenanoe of necessary bridges and high- ways; and all taxes paid in such towns for these purposes shall be expended therein. The Legislature, at the first session after the adoption of this Constitution, shall provide for carrying into effect this article, and may thereafler give full effect to the same. Bead and referred to Committee on City, Coanty, and Township OrganizatioDS. CHINES t. Ub. miller, by leave of the Convention, introduced out of order the following proposed amendment to the Constitution, relating to Chinese : S«cno» — . The Legislature shall have power to enact all needful laws, and to prescribe necessary regulations for the protection of the State, and the counties, cities, and towns thereof, from the burdens and erils arising from the presence of alien vagrants, paupers, criminals, and invalids afflicted with contagious or infectious diseases, and aliens other- wise dangerous to the well-being and peace of the State, and to impose oonditions upon which such persons may reside in the State, and to pro- vide the means and mode of their removal from the State upon failure to comply with such conditions. Beaa and referred to Committee on Legislative Department. LICIilSI TAX ON OOKPORATIONS. Mb. LARKIX.'by leave of the Convention, introduced out of order the following proposed amendment to the Constitution, relative ''to a license tax upon the capital stock of corporations: Sicnos — . All corporations incorporated under the laws of this State, or doing business in this State, shall pay ap annual license to the State, in a sum not exceeding one )>er cent, upon their capital stock. 8tc. — . The Legislature shall pass laws to enforce the above section. Read and referred to Committee on Corporations other than Municipal. Ua. EDGERTON. The Chairmen of all the committees are requested to meet here immediately after the adjournment. Ma. OVERTON. The Committee on State Institutions and Public Bnildiogs will meet in the Sergeant-at- Arms' room immediately after the adjournment. AOJOUBVMKHT. On motion of Mr. Edgerton, at twelve o'clock and twenty minutes A. H. the Convention adjourned. TWENTY-FIRST DAY. SAcaAXENTO, Friday, October 18th, 1878. egular session at ten o'clock a. m., Presid he roll was called, and members found in attendance as follows: The Convention met in regular session at ten o'clock a. m.. President Hoxe in th& chair. Andrews, Ayera, Barbour, Barnes, Bany, Barton, Beerstecher, Belcher, BeU, Blackmer, Boucher, Brown, Bart, ampbeU, Csples, Chapman, Charles, Condon, Oowden, Cn», Craocb, Unit, Smiu OoirliBg, -]r,of Sod Joaqnin, I>ltt|f,ofBoIano, 21 Dunlap, Edgerton, Estee, Estey, Evey, Fairell, Filcher, Finney, Freeman, Freud, Garvey, Olascdck, Gorman, Graoe, Graves, Gregg, hX' Harrison, Harvey, HeiskeU, Hilbom, Hitchcock, Holmes, Howard, Huestis, Hunter, Inman, Johnson, Jones, Kelley, Kenny, Keyes, Kleine, Laine, Lam peon, Larkm, Larue, Lavigne, Lindow, Mansfield, Martin, of Alameda, Martin, of Santa Cruz, McCallum, McComas, McConnell, McCoy, McNutt, Miller, Mills, MoSat, Moreland, Morse, Nason, Nelson, Mennaber, Noel, Ohleyer, O'Sullivan, Soule, Vacquerel, Overton, Stedman, Van Dyke, Porter, Steele, Van Voorhies, Prouty, Stevenson, Walker, of Marin, PuUiam, Strong, Walker, of Tuolumne, Reed, Stuart, Webster, Reynolds, Sweasey, Weller, Rhodes, Swenson, Wellin, Ringgold, Rolfe, Swing, Terry, West, Wickes, Schell, Thompson, White, Schomp, Tinnin, Wilson, of Tehama, Shalter, Townsend, Wilson, of 1st District, Shurtleff, Tully, Winans, Smith, of Santa Clara Turner, Wyatt, Smith, of 4th District, Tuttle, ABSENT. Mr. President. Berry, Herrington, O'Donnell, Casserly, Hughey, Reddy, Eagon, Joyce, Shoemaker, Fawcett, Lewis, McFarland, Smith, of San Francisco, Hale, Waters. Herold, Murphy, LKATB OF ABSKNCK. Leave of absence waa granted as follows : Mr. Smith, of San Fran- cisco, for three days; Mr. McFarland, for one day; Mr. Herringtoni for two days; and Mr. Lewis, for an indefinite time. The Journal of yesterday was read and approved. PRTITIOMS AND MKHORIALS. Me. huestis. Mr. President : I have a memorial from a number of taxpayers on the subject of local option, which I desire to have referred to the Oommitt^ on Legislative Department. I also ask that the petition i%(%ived on the same subject from the same locality, on Wednesday last, and referred to the Committee on Preamble and Bill of Rights, be referred to the Committee on Legislative Department. VBMOllAI. AOOOMPAMTINa tOOAL OPTIOH PKTITIOlt. To the President and Members of the Constltatiunal GoriTention : On behalf uftbo petltlun accompanjlng this memorial, tranimltted herewith, your mcmoriulUts wuuld moet respectfully repreMnt that the proposltlun embodied in the prayer vf yuur petltiuners, to wit: "The Legislature shall, at its firet leeidon, enact k law whereby the qualified voter* of any county, voting precinct, town or city, by a minority vote, from time to time, may def'rmine whethtr the sale of Intoxicating iiquon shall be prohibited withiu the preecribed limits," Is Identical with a clause preeented by the Oonstltutional CunventJon of the State of Texas, and ratified by the people of that great commonwealtli. The propoeitTon presented raises but a single Issue before yonr honorable body, to wit: the expediency of the local prohibition of the tnifflc in intoxicating liquors. In this statement we assume that the inherent right of the people to reg^ulate or to prohibit by law, the said traffic, will not be denied. The principle which curamends the proposition brought before you by this petition is, that it refers the question of the expediency of prohibiting the trafllc in Intoxicating liquors to the people. This prindpla Is in consonance with the very genios of republican institutions. The peo- ple of separmte localities should have the right to determiue for themselves, as to whether thesale of intoxicating drink is inimical to the best interests of their respec- tive eommunlties. This application uf Ibe principle of local sovereignty la not new, but extends already to other questions of local character. We assume that those clt* ixens Interested in the sale of Intoxicating beverages, cannot reasonably object to ths adoption of this proposition. No good citizen will demand protection in the right to engage In a business which, Inr the judgment of a majority of his neighbors, is demoralizing to the neighborhood; and if the traffic In liquors is not destructive of the morals and good oMer of a commnnity, these separate communities may safely be trusted «ith such determination of the question as the facts warrant In the opinion of your memorialists, any opposition to the proposition on the part of those engaged in the traffic in liquora must be based upon the ground, that should the proposition be incurporateo Into the Constitution, many coromunitiea would decide against the continuation of the traffic. This is in effect an admission that in all such communities the traffic is now carried on against tl^o enlightened judgment and moral conscience of a m^ority of the people resident in such communities. The proposltien herewith presented, if adopted, would relegate the whole question to the arutration of the balktt box ; and repri'senting those who entertain the opinion that the trafltc iu Intoxicatlog drinks is destructive of the beat and highest interests of the commonwealth, we cheerfully submit tlio grave question involved to this high arUtrameot. To deny the prayer of this petition will, in the opinion of your peti- tioners, be In effect a denial of a sacred rigtit. The right to determine what is neces- sary and appropriate to accomplish the ends of government, establish order, and promote the general welfare of society, resides in the people, and all we ask ts, that this right shall be recognised in the determination of the issues arising out of con- tending opinions concerning the ctuuacter and moral tendencies of the unrestricted traffic lu Intoxicating llqnora. The nature of the proposition herewith presented is such as to absolve us {h>m the necesdty of presenting any considerations or arguments tending to establish the expediency of prohibiting the liquor traffic. We have no data upon which to found the assumption that in practice, the proposition presented would result in such prohibition; the result would be dependent upon the will of the minority of the votera In the local subdivisions named. But it Is obvious that the perpetuity or prohibition of the traffic will depend upon the verdict of the people, in whom resides the right to determine the necessity or reasonableness of all prohibio tory laws. And as In duty bound, yonr petitionen will ever pray. Mb. terry. Mr. President: I think the proper committee for the reference of these petitions is the Committee on Township Organizations. It is proposed to ^ive to each particular township the right to regulate the sale of intoxicating liquors, and the proper committee would be the Committee on Township Organisation, and 1 move it« reference to that committee. Mr. HUBSTIS. I have no objection, if that is the proper com- mittee. The PRESIDENT. There being no objections it is ao referred. Mb. WELLER. I desire to present the following memorial, signed by a large number of citizens, in relation to quicksilver mines, and ask to * to the Committee on Revenue and Taxation ; ^^^ ^^ I ^ have it referred I OQie 162 DEBATES AND PROCEEDINGS Friday, CALiroKXIA QDIOUILTtk ■!«■». A Statemeni of the Jsuts, Vatuatian, and Production of the prinHpat i^icktitvtr Minet in California during' the three yeart last pa$t; TBI 2 = ft I aS, I 'I 3? I I I ' 1876-77 Napa. Rfdlngton....' Ht,240 «0.-.,(i(i(i W77-78 N«|M Reilington : 3f.,Mi) Wi.iiOO M7S-T9 N»i)« RadlugUm ' 36,24o; »tj.**\ I 1876-77 Utka 1X77-78 Lake 187S-79 Laka 187«-n liake 1877-78 Uke 1878-79 Lako »i 13,720 ess.uoo $I4,9:hi $151, lOo; 8,h7.% l-i->,115i 12,l.:>7, I2«,H'.I7: 9,183 »1« « 9,447 I Ul 24 «,8G4», 18 78 $30,4X2 t406,2U2 2S,404 <15 89 SalpbnrBanka «.'>e,27X t3,292 Sulphur Baiika SO,75(f B2,a(iii jSulphurBanki, 50,487) 3X,«lo! s.ocmJ -r I. $»,0(M)l »t447»i 9,2:l.'>l 122,7X5 15,176 IU3,663| 8,732 I t» 68 11,649 I lU .M 10,46X«I 9 X9 I $157,516 $1W,092 III 'Grmit Wfatern' $27,000 $20,(KiO Great Western 27,000 20,()(ili Groat Western 27,800, 20,0tKi $49,411 $31I,0IK, 30,849 $10 OK I 1 I $2,615 $49,615 4.495 $11 04 2,615 49,015, 5,877 | 8 44 395 41,195: 3,X94* 10 5X $74,800' $60,000 $5,025 $140,425 14,266 $0 84 1876-77 Sonoma.. Oakland 1877-78 Sonoma.. Oakland 1878-79 donoma.. Oakland 1876-77 Frame . 1877-78 Fresno . 1878-79 Freano .. Kew Idria. New Idrla„ New Idria.. 1876-77 S'ta Clara Guadalupe.. 1877-78 8'ta Clara Guadalupe. 1878-79 S"u Clara Uoadalnpe. Total Value of above Mines. 1876-77 1877-78 1878-79 $V)Ou $.-.,rioo 5,0UO 5,0U0 5,0(HI I I $l,(f>0 $ll,o.v> 2,749 12,74<> 4,6Jl>. 9,.W0 2.1.V) $>•> 14 1,395 I 9 13 1,I42»' 8 30 flS,n0O $10,0110; $8,340' $33,3401 4,087 $7 11 $.50,900 S2").IIO0, 30,960 20,000 20,000] 15,000 $101,920: $60,(100 $19,9111' $20,89o! 26,3.Vl' 6:1,500] 26,351 1. G3,50u| ,340. $14,119 $90,079' 6,0351 4i,(ai 7,272 ?12 39 6,316 1 9 58 4,258* 9 64 $29,739 $191,6591 17,846 |$I0 74 $l»,0,Ml' $51.7.V>! 7..T81 ' $7 01 10,9(10 1()I1,7,'pO] 6,241 ' 16 14 10,9(10 10(>,75ol 6,330* 18 90 1876-77 S'ta ClaiiilNew Almaden 1877-78 S'ta Clanii Now Almaden 1878-79 S'ta <:iara .Now Almaden $72,610' $147,890 $32,750 $2.Vl,-25(>. 18,952 $13 3(1 I I $-200,3«i<:$169,l«>, $08,084 $4.38,2.VI .39,213 $11 17 170,:lO0 25l,3(«> 4;l,9-'>0; 471,.V>() 4fl,'.n!5 11 i,t 158,877' 2IU,50o; 49,7I.3| 42."«,0',M>. Sl.OVi'' 13 30 $535,505; $636,982 $162;i47' 1334,894 112,094 $11 90 $150,000 8150.000 $01,115 $391,11.5 20,031 $18 90 \W,(m\ IOO,(KK) 51,820, 301,820' 24.079 ■ 12 5:! 150,000 100,000 54,7IO| 30»,71o' 11,778* %"> 87 $45O,(JO(i;Jl»O,000, $197,045' $997,645, 5«,48» $17 06 _._„1 _ .l__ I l_ .__,_ The Tonnty of Santa Clara, In addition to ita naturally rich acricnllnral adran- tages, makea a very Important show in the extensive pnjduct of (lutckeilver from the two mines within its liuiiu. Krum these, the New Almsden anJ Guadalupe, are proc.ired nearly unc halt of the whole of this article manufactured in California; the other principal mines l>etng ttao Kciliiigton in Napa County, Sulphur llank and Great Western in Lake, Oakland in Sonomii, and New Idria in Fresno. We have In-fore us a taliutated statement uf the actual number of flasks shipped from earh of these mines during a perio pared with the other establishments, and of $5 76 on the average assessment per flask. This api*eus to l>e discrimination against the former out of reason, and of course places it a? the greatest disadvantage in the manufiurlure of quicksilver when com- pared with the lighter taxation imposed on its competitors. It seems, therefore, opiNMed not only to all sound sense, but to fair commercial policy, that such an unequal distribution of assessments should Im> allowed to continue. The public are also interested in gtiaitling so tm|)ortant an industry from being impeded by an extortionate drain on Ita advantageous development. * Known production for flrst six months, 1878, doubled to make comparative yearly •tatement. BESOLCTIONS. Mb. THOMPSON, by l(»ve, offered the follo\»ing: Jtuofred, That the President, by content of the Convention, appoint Totten to take charge of the conlmlttce rooms. Bel'erred to Committee on Mileage and Contingent Expenses. Mr. SMITU, of Santa Clara, offered tUe following: Ktmlred, That the Adjntant-Oeneral be re<|uest«d to report to the Convention a detaileaid. Referred to the 0)mmitlee on Slate and Municipal Indebtedness. BXrOBTH or 8TANDINO COimtTTXBS. Mb. WINANS, from the Coromitleo on Education, made the follow- ing report: Ma. PxESiDKirr: YourCommittee on Education l>eg leave to report back to the Oen- vention amendment number oae bondred and slxty-tbree, lutrodnced by Mr. Tnlly, proposing an educationiU qualification for tlie right of sullrmge, and respectftally ask its reference to the Committee on Right of Suffrage. The report was adopted, and the matter so referred. Mb. dean, from the Committee on Miscellaneous Subjects, made the following report : Mb. Pkbsidcnt : Your Committee on Miscellaneous Subjects, to whom was referred pruposeil amendment number one hundred and forty-seven, introduced by Mr. Bhodea, creating a Board to supervise and prescrilje the duties, powers, and liabilities of c«r» tain coriK>ratluns, and fur other pnrpow-s, beg leave to report the same back to the 0>nvenllon, and ask that It be referred to the Committee on Corporations otfaerthan Mnnicipal. The proposition was so referred. Mb. miller, from the Committee on Chinese, made the following report: Ma. Prrsident: Your Committee on Chinese, to whom was referred the proposed amenument to theConstilulion, numt)er sixty-four, wliich is in these words: "SectioD — . ThefnrthertniniiKrationof Chinese to this State is hereby prohibited. Munidpal authorities in the ports in this State to which they are destined shall hare power to prevent their delMrkation, and to rei'mbark them if landed," have had the mat under consideraUun, and now lieg leave to report the some back to the O>nTentiu0, with the recommendation that it be not adopted, for the reason that in the opinion of your committee the protsised amendmeut is in substance intended to regulate the afbira of conmierco by the State, and is therefore in conflict with the tVtnstitutliMi of the United States, which delegates to the Natioual Government the exclusive power to regulate commerce. MILLER, Chairman. The proposition was referrelution is out of order, under rule seventy- five. BKPORT.S Of COmilTTBKS. Mr. IIILBORN. Mr. President : I would like to ask that this report of the Committee on Milea;;e and Contingent Expenses he taken from the tabic and dis|x>scd of— that part of it m reference to Night Watch- man. The report of the coiiiinittee was to the effect that a Night Watchman was neccx.-'arj-. Tlicv also reported in favor of the claims of a ceiitaiu individual for that office. But rule seventy-seven disposes of that part of the report, and leaves the appointment with the President of the tmdv. Thr president. The question will be on the adoption of the reiK>rt, so far as ]iertains to the offi<% of Night Walchmon. The motion being |)ut, the Convention refused to adopt the report, on a standing vote : ayes, 58 ; n(M's, 59. Mb. BAKBOl'R, from the Committee on Chinese Immigration, made the following report : Mr. rRGSiDiNT : Your Committee on Chinese Immignition, to whom was lefsrred pro|>osod amendment number one hundred and thirty-one, introduced by Mr. Kleine, beg leave to report the same back, with the reommendation that it be not adopted, as. In the opinion of your committee, the State has not such power. Also, the following, by Mb. KLBINE: Jie4otrrd, That a i>er capita tax of two hnndred and Ally dollars shonid be levied upon each coolie immigrant, with the request that it be referred to the C-ommlttce of the While. PBOPOSEO AUKKDUENT TO THB COKSTITCTIOK. Mb. CROSS. Mr. President: I desire to offer the following proposed amendment to section seventeen, of article four, of the Constitution. Thr president. It is not in order, unless by unanimous consent. The Chair hears no objection, and the gentleman will send up his propo- sition. LEOISLATtVE DBPABTMENT. proposed addition to section seventeen, article four: No Uiw shall take effect until ninety days after the first eeneral elec- tion succeeding its passage. Every law sliall be designated by a num- ber. At any general election next succeeding any session of the Legislature, any person voting at such election may place upon his ballot the words, " Against Law No. ," giving in figures the num- ber of any law or laws pnssed at the session of the Legislature next preceding such general election ; and if a majority of all the votes polled shall be against any law so passed at the next preceding session of the Legislature, then such law so voted against shall not take effect at all. Referred to the Committee on Legislative'Department. 1 Digitized by 3'e 4- Oct. 18, 1878. OF THE CONSTITUTIONAL CONVENTION. 163 Mb. WICKE8, by unanimous oonseut, introduced the following amendments to sections one and two, article ono,-of the Constitution : First — All men are endowed with an equal measura of liberty, and subject to an equal provision of restraint. They are, in fact, equal before the law. They may enjoy and defend life and liberty, acquire, possess, and protect property, and seek security and happiness by all lawful means. Second — The people are endowed with political power. Government is divinely instituted for the protection, security, and benefit uf the people, and they have the right to alter and reform the same whenever the public good seems to require it. Referred to the Committee on Preamble and Bill of Rights. SUPFBAOE. Skction — . After the year eighteen hundred and eighty, no person who shall become a citizen of this State under the naturalization laws of the United States, and no minor who shall have attained his majority after that, shall be entitled to exercise the right of suffrage at any elec- tion, Slate, couuty,or municipal, who is unable to read and write in one known language. Referred to tne Committee on Right of Suffrage. BBSOLCTIONS. Me. WILSON, of San Francisco. Mr. President : At the request of the Judicary Committee, I ask leave to send upthe following resolution, and ask its adoption : JZooIeed, That the Jadldar; Committee be and they are hereby authorized to •mpio; aclerk, at a oompensalion of tit dollara per day for each day employed. Eeferred to the Committee on Mileage and Contingent Expenses. Mr. GORMAN. Mr. President: In order to find out whatcomraittee clerks are necessary, I offer the following : Saolved, That all committee* requiring clerks ihall notify the Conrention immediately. Mb. EDGERTON. I move that the resolution be laid on the table. The motion prevailed, and the resolution went to the table. AnjOURNMKNT. Mb. ESTEE. Mr. President: I move that when the Convention adjourns, it adjourns to meet on Monday, at two o'clock. Tbe PRESIDENT. I have been requested to state that the Com- mittee on Corporations other than Municipal, will meet immediately after adjournment in room fifty-six ; the Committee on Militar}- Affairs will meet immediately after adjournment in room ten; the Cummittee on Preamble and Bill of Rights will meet after recess. Mb. McCAIiLUM. I move to amend, until to-morrow. The PRESIDENT. That will be the orderany way. Mb. McCALLUM. Then I move to lav the motion on the table. Mb. white. I second the motion. Mr. EDGERTON. Mr. President: I rise to a point of order. It is tbe first time I ever heard of a motion to adjourn being tabled. The PRESIDENT. This is a motion that the Convention adjourn to a particular time when it does adjourn. Ma. ESTEE. I made the motion at the request of other gentlemen. It was done at the request of oommittees, and I will withdraw the motion if the Convention does not desire to adjourn. Mr. EDGERTON. I renew the motion, that when this Convention adjourns it adjourn until Monday, at two o'clock, and I would like to hear some good reason why we should not. Me. LARKIN. Mr. President : With the consent of the house, and at tbe request of the distinguished gentleman from Sacramento, Mr. Edgerton, I would say that there are a number of members of this Convention who have been ab. Digitized bv VjOOy Ic 164 DEBATES AND PROCEEDINGS Saturday, Campbell, Johnson, Schomp, Caples, Jones, Shafler, Chapman, Kelley, Shoemaker, Charles, Kenny, Sburtleff, Condon, Keyes, Smith, of Santa Clara, Cowden, Kleine, Smith, of 4th District, Croes, Laine, Soule, Davis, Lampson, Stedraan, Dowling, Larkm, Steele, Doyle, . Larue, Stevenson, Dudley, of San Joaquin, Lindow, Strong, Dudley, of Bolano, Mansfield, Stuart, Dunlap, Martin, of Santa Crui , Sweasey, Eagon, McCallum, Swenson, Edgerton, McConnell, Swing, Estey, McCoy, Terry, Evey, Filcher, McFarland, Thompson, McNutt, Tinnin, Finney, Mills, Townsend, Freeman, Moffat, Tully, Freud, Morelaud, Turner, Garvey, Morse, Tuttle, Gla-ocock, Kason, Vacquerel, Gorman, Meuuaber, Van Voorhiea, Grace, Noel, Walker, of Tuolumne, Graves, Ohicyer, Webster, a* O'Siillivan, Weller, Overton, Wellin, Harvey, Porter, West, Heiskell, Prouty, Wickes, Hilbom, Beed, White, Hitchcock, Heynolds, Wilson, of Tehama, Holmes, Rhodes, Wilson, of 1st District, Howard, Binegold, Kolie, Winans, Hunter, Wyatt, Inman, Schell, ABSKKT. Mr. President. Ayers, Hale, Miller, Barnes, Harrison, Murphy, Belcher, Herold, Nelson, Berry, Herrington, O'Donnell, Caaserly, Huestis, Pulliam, Crouch, Hughey, ' Reddy, Dean, Joyce, Smith, of San Francisco, Estee, liiivigne. Van Dyka, Farrell, Lewis, Walker, of Marin, Fawcett, Martin, of Alameda, Waters. Hager, McComas, LEAVE or ABSENCE. Leave of absence was granted to Mr. McComas, on account of sick- ness; to Mr. Nelson, for one day; to Mr. Van Dyke, for one day; to Mr. Ayers, for two days; to Mr. Crouch, for one day ; to Mr. Miller, for one lutloD No. — , adopted by your bonomble body, on Thunday, the sereDteenth InitADt, requesting me to fnmfsh to the Couveution alt information in my prw carton upon the follow. InEBUIijccIs, to wit: Firit—The number and claniflcation of all oorpomtioui other than municipal now exiiitinK in the State of Califomin, and formed under the laws of thle State; .Second— The Aggregate amount of capital itock of all laid oorponktlons, and the aggre^te amount of oipital stoclc of each claai thereof; Third— A declared etatement of the principal place of bnaineMand location of the principal office of each corporation ; /bur(A— A detailed statement of the amount of capital itock actually paid up by said corporations. The TariouB subjects enumerated in the foregoing resolution upon which informa- tion Is Hoaght, are recorded in books kept in my office for that special purpose, and in order that the Convention may have the deait^ information at aa early a day as poaslble, I herewith place at your service the records of ail corporations on flle In my office, and which are in as condensed a form aa the information sought by the resolution would warrant. 1 have tlie honor to be, Your obedient servant, TH0UA8 BECK, Secretary of Stat*. The communication was accompanied by all the books of record of corporations on file in the office of the Secretary of State. Me. LABKIN. Mr. President: As the mover of the resolution is not present, I move that the matter be laid on the table until he is here. Mb. McFARLAND. I would ask if the report does not lie on the table now. [Laufjhter.] The PRESIDENT. Yes, sir; does the gentleman desire to have it read? [Laughter.] BE80LUTI0N8. Mr. NOEL. Mr. President: I desire to offer a resolution: Setohed, That the thanks of this Convention be returned to the Secretary of State for the promptneas and dispatch with which be has complied with tha order of the Convention directing him to (tamtah all Infomatlon In bis possesaioa in to corpoiBtiona other than municipal. Saolrtd, That Bve hnndred copies of snch report be printed acd laid on the desks of the roembei* of this Convention, [Laughter.] Mr. McCALLUM. I move that it be referred to the member from the rural districts (referring to a large owl that inhabited the chamber). [Laughter.] The president. It will be referred to the Committee on Mileage and Contingent Expenses. Mr. TULLY offered the following: Ktsolved, TlMt Dve (hoosand dollata of the money anproprlated by the State to deftay the expenses of this Convention be placed In the baads of the Hon. Thosaas Beck, Secrrtaiy of State, to detVay bis expenses while engaged In oompUlng Um inlbrmation required by the reaolntioD now under oonstderatlon. The PRESIDENT. It will go to the Committee on Contingent Expenses. rROPOSITIOMS AHO BESOLCTIOHS BELATIilO TO THE OOR8TITFTI0E. Mr. wyatt. Mr. President: I ask leave to introduoe a proposition to amend the Constitution. The PRESIDENT. If there is no objection, the gentleman will have leave. The Chair hears none. The SECRETARY read the proposed amendment: FROrOSITIOH RELATIVE TO ALL MOXETS BEIIIQ HADE LEOAL TEEDEB. Rttolvtd, That the following proposition be inserted in the Constitu- tion, and numbered section — : Section — . All moneys of the United Slates, made legal tender in the payment of private debts, shall be received at its face value in pay- ment of taxes, salaries, or other public dues authorised to be collected by the laws of this State. Referred to the Committee on Legislative Department. BErORTS OP OOHMtTTEES. Mr. REED presented the following report from the Committee on Corporations : Ma. PaisiDiitT: Tour Committee on Corporatioiui, to whom vraa referred reaolo- tion number three hundred and four, beg leave to report the same back, and ask thst it be referred back to the Committee on Mlacellaneous Snldecta. Also, revolution numtwr three hundred and seventy eight, and ask that it be referred to the Committee on Bevenne and Taxation. CHAS. F. BKED, for Committee. So referred. Mr. HILBORN presented the following report from the Committee on Mileage and Contingent Expenses: Me. Pbisidsnt: Tour Committee on Mileage and Conttncent Kzpenaes. to whan was referred resolution number forty.niiie, introduced by Mr. Berry, to authorise the Committee on IjegisUtlve Department to employ a clerk, have liad the same under cansideratloo, and herewith report the aame back, and recommend that it be adopted. Also, reaqlntion number flfty. Introduced by Mr. Xstee, authorising tlie Committee on Corporations other than Municipal to employ a clerk, have had tiie sane imder consideraUon, and report the same back, and recommend that it be adopted. Also, resolution number seventy4our, offered by Mr Wilson, authorising the Jodi. clary Committee to employ a clerk, and herewith report the same back, and recom- mend that it be aaopted. We have also had under consideration resolution nnmbar fifty-three, to allow P. H.Keeue compenaatlon for services aa Clerk to tlie 8ergeant4t-Arms, aad report tlw same back, and recommend ttuit it be indefinitely postponed. Tour committee have also had under oonsideration resolution number fbrty-eight. Introduced by Mr. Noel, authorising the Committee on Enrollment to employ a clerk, aad report the same back, and recommend that the resolution lie on the table until such time as the Convention shall decide that tills committee needs the services of a clerk. HILBOBN, Chairmaa. The report was adopted. Mr. EAGON, from the Committee on Right of Suffrage, presented the following report: Ma. PaisiSEitT: Toor Committa* on the Bight of SaSrags beg lear* to lepoit back resolution number forty-three. Introduced by Mr.Tnlly and raaolntioa nonbsr eighty.*even, introduced by Mr. Davis, and request that they be referred to the Gominittee on Legislative Department. So referred. PBOPOSITIOKS AHD BESOLCTIORB BELATIilO TO THE OOKSTITCTIOX. Mb. FREEMAN. Mr. President: I ask leave to introdaoe a propo- sition, relative to taxation. The PRESIDENT. If there is no objection, the gentleman will hare leave. The Chair hears none. BBOABDIKa TAXATIOE. Proposed substitute for section thirteen, of article eleven, of the pres- ent Constitution: Section — . Taxation shall be equal and uniform throughout the State. All property in the State, including debts, credita, and chosesin action, and excluding growing crops, shall be taxed in proportion to its value, to be ascertained as directed by law. Every mortgage, deed of trust, or other contract or agreement, whether ortJ or written, which secures any existing debt or liability, shall, for the purposes of assess- ment and taxation, be deemed and treated as an estate or interest in the property affected by such mortgage, deed, or other contract, and shall oe assessed accordingly. Referred to the Committee on Revenue and Taxation. IK BBLATION TO TAXATION. Mr. RHODES, by consent, introduced the following proposed amend- ment to the Constitution : Btaolvtd, That the following sections be appropriately numbered and inoorporated in the new Constitution : Section — . Taxation shall be uniform throughout the State. All property in this State (money, bonds, mortgages, and solvent debts f|)osed amendment to the Constitution, in relation to the abolishment of tlic office of Lieutf-nant- Governor: Seaolved, That tho following section be inserted in the Constitution, in lieu of sections sixteen and seventeen of the present Constitution : Suction — . In case of the death or resignation of the (iovemor, or his removal from office, the Speaker of the Senate shall exercise the office of Governor until another Governor shall be dnly qualified: but in such case another Governor shall be elected at the next general election. Referred to the Committee on Executive Department. A PRNAI. COLONY. Mb. CROSS introduced the following proposed amendment to the Constitution, relative to the establishment of a penal colony: Articli — . Skction — . The Legislature shall have power, when it shall deem it best, to establish a penal colony upon an island adjacent to, or included within, the State of California, and to provide that all or any portion of the criminals of this State may be confined to prescribed limits upon such island, under such rules, and under the supervision of snch officers as the Legislature may by statute prescribe. Referred to the Commfttee on Aiiscellaneous Subjects. RESOLUTIONS. Mb. Kelley, of Yolo, offered the following, referring to the owl : Whrbkas, ThA daily scMlons of this Cunventlon Areop«n, and tho proceedings are daily reported by tlie pre« «f tbe State, but no adequate means have l>een provided to aacertain the mode of conduct of delegates in tbe intenrai bolwi-en regular soaaions, and especially In the nighttime; and whereas, an appropriutiun for tbe per diem of Night Watchman would l>€ antagonistic to the true spirit of retrench- ment and reform ; and whereas, an imlividiuil uienilterof the tribe that ha-t a peculiar fltness as a diviner of ways that are dark has entered tUla chamber, and voluntarily assumed the duties of Kight Watchman ; Jietolreil, That be be permitted to remain undisturbetl on his perch, to view, in bis wisdom, the proceedings in and out of session, of this Convention. [Laughter.] Thk president. It will be referred to the Committee of the Whole Convention. Mb. HILBORN offered the following: Saolttd, That onr visitor be aisigned a desk among the otiier reporters on the floor. [Laughter.] Mr. EAGON offered the following: Resolrtd, That the Controller of State be and he Is hereby directed to draw his warmntin flavor of James Saultry for ono hundred and five uollara, fur twenty-one days' services as Night Watchman, and tbe Treasurer to pay the same out of the appropriation for the expenses of tlie Convoulion. The president. The question is on the adoption of the resolu- tion. Mb. freeman. I move to lay the resolution on the table. Mb. EAGON. It would be proper to refer it to the Committee on Mileage and Contingent Expenses. The motion to table prevailed. ADJOCRNUENT. Mb. BEERSTECHER. I move we now adjourn until three o'clock next Mondav. Mb. CAPLES. I move to make it ten o'clock Monday. The motion to adjourn until three o'clock Monday was lost on a standing vote — aves, 42. Mb. LARKIlf. I move we now adjourn. Mb. REYNOLDS. I move we adjourn until two o'clock Monday. Mb. FILCHER. I move to make it ten o'clock Mondav. TiiK PRESIDENT. At ten o'clock and forty minutes,' the hour for adjournment having arrived, the Convention stauds adjourned until ten o'clock Monday. TWENTY-FOURTH DAY. Saorauento, Monday, October 2l8t, 1878. The Convention mot at ten o'clock a. m. President pro tern., Belcher, in the chair. The roll was called, and members found in attendance as follows: Andrews, Barbour, Barnes, Barry, Barton, Belcher, Blackmer, BoggB, Boucher, Brown, Bart, Caples, Chapman, Charles, Condon, Cowden, Cro68, PRESENT. Davis, Dowling, Dudley, of Solano, Dunlap, Eagon, Edgerton, Estee, Estey, Evey, Filcner, Finney, Freeman, Garvey, Glascock, Gorman, Grace, Gregg, Harvey, Heiskell, Holmes, Howard, Hunter, In man, Johnson, Jones, Kleine, Laine, Lampson, Larkin, Larue, Lindow, Mansfield, Martin, of Santa Cruz, McCallum, McCounell, McCoy, McFarland, . Ringgold, Townsend, McNutt, Shoemaker, Tully, Moffat, Shurtleff, Turner, Morelaud, Smith, of 4th District, Tuttle, Morse, Soule, Vacquerel, Walker, of Tuolumne, Nason, Stedman, Noel, Steele, Webster, Dhlever, Stevenson, Weller, O'Sullivan, Stuart, Wellin, Overton, Sweasey, West, Porter. Swing, Wickes, Prouty, Terry, White, Pulliam, Thompson, Wilson, of let District, Reed, Tinnin, WyatL Reynolds, ABSENT. Ayers, Herrington, O'Donnell, Beerstecher, - Hilborn, Reddy, Bell, Hitchcock, . Rhodes, Berry, Huestis, Rolfe, Campbell, Hughey, Schell, Casserly, Joyce, Schomp, Crouch, Kelley, Bhafler, Dean, Kenny, Smith, of Santa Clus, Doyle, Keyes, Smith,of San Francisco, Dudley, of San Joaquin, Lavigne, Strong, Farrell, Lewis, Swenson, Fawcett, Martin, of Alameda, Van Dyke, Freud, McComas, Van Voorhies, (tnives. Miller, Walker, of Marin, linger,. Hale, Mills, Waters, Murphy, Wilson, of Tehama, Hall, Nelson, Winans, Harrison, Neunaber, Mr. President. Herold, LEAVE OP ABSENCE. Leave of absence was granted to Mr. Schell, for one day ; to Mr. Mc- Comas, on account of sickness ; to Mr. Rolfe, for the balance of the week ; to Mr. Waters, for two days; to Mr. Bell, for one day; to Mr. Smith, of San Francisco, for one day; to Mr. Doyle, for one Jay; to Mr. Wilson, of Tehama, for two days ; lo Mr. Kelley, for one day ; to Messrs. Huestis, Winans, Miller, Keyes, and Swenson, for one day each. Mb. biggs. I move that leave of absence be granted to all absentees. Mb. LARKIN. I am opposed to the motion. If any gentleman wants leave of absence, let him ask for it. Mb. biggs. The reason I asked for it was to save incumbering the Journal. The Journal of Saturday was read and approved. Mr. cowden. Mr. President: I was recorded as absent on Satur- day. I was present. The president pro tern. If there are no reports of committees, a motion to adjourn will be in order. XKSOLtJTIONS. Mb. MORELAND. Mr. President: There is a vacancy, caused by the absence of Mr. Berry, a delegate from Modoc and Sidtiyou, and I have a resolution to offer on the subject ; Whrriab, It haa been suggested that there is now a vacancy in thia Oonventloa from the Counties of Modoc and Siskiyou, caused by the iosaolty of Mr. Berry, dele- gate elected by those counties ; therefore, Rtiolvtd, That this Convention, on Friday, the twenty-fllth day of October, one thousand eight hundred and seventy-eight, at eleven o'clock, proceed to the electioii of some qualified person to Dll snch vacancy. The PRESIDENT pro tem. I think the resolution should be referred to some appropriate committee. Mb. LARKIN. - I would like to inquire whether Mr. Berry has resigned? Under the present circumstances, I think it is due to the gentleman and his family that this resolution should lie on tbe table. Mb. TlNNlN. I second the motion to lay the resolution on the table. The motion prevailed. AMENDMENT TO THE CONSTITUTION. Mb. BURT. Mr. President : I would ask leave to introduce a proposi- tion out of order. The PRESIDENT pro tem. If there is no objection the gentleman will have leave. The Chair hears none. POWERS OP BOARDS OP SUPERVISORS. Mr. BURT, by consent, then introduced the following proposed amendment to the Constitution, increasing tbe legislative powers of Boards of Supervisors : Article — . Section — . The Boards of Supervisors of the several counties, municipal cities, and towns, shall have power to enact all laws relating to the local government of their respective counties and townships, and municipal cities and towns; provided, said laws shall not conflict with any general State laws; also to fix the salaries, and manner of payment, of all officials (except the Judiciary) of their several counties and town- ships, and municipal cities and towns. Referred to Committee on Citv, County, and Township Organisations. The PRESIDENT pro tem. The Committeeon Public Buildings will meet immediately afl«r adjournment. AK EXPLANATION. Mr. terry. Mr. President: I have been requested by the Secre- tary of State to make an explanation. He has understood from some of the members of tbe Convention that they th^k^e was guilty of Digitized by bey think he wa Oct. 21, 1878. OP THE CONSTITUTIONAL CONVENTION. 167 nme diarespeet to the Convention in sending the Tolumes here on 8at- ard^. He desires me to say that he intended no possible disrespect to the Convention, but he simply detired to demonstrate to the Convention the utter impossibility of affording the information desired. The fifty- four volumes are entirely filled with articles of incorporation; and besides this, there are about five hundred not recorded. They are earning in at the rate of four to ten a day. It would have require the service of the entire force of his office for three months to maKe up the information required by the resolution. He intended no disrespect whatever, but simply desired to demonstrate the utter impossibility of complying with the request. He. LARKIN. Mr. President: I hope this matter will remain until the mover of the resolution is present. Ms. TERRY. I simply desired to say that he intended no disrespect to the Convention whatever. Ha. LARKIN. I hope this matter will remain until the mover of the resolution returns. This is a matter for this Convention to deter- mine, and it is disgnoeful in the extreme. Judge Hale, of Placer, introduced the resolution. After having had a consultation with him, I called on Mr. Beck, and he said the information should be furnished. For some reason, or for some motive or suggestion, he saw fit t<^i iusult the Convention by bringing those books here — not to us, but to the peo- ple of the State who called this Convention and sent us here, and I desire to have the matter laid over until Judge Hale is here. He had no right to take those books away. Those Books should have been retained here until the Convention saw fii to remove them. Ha. T£RRY. Mr. President: The report made here was not disre- spectfiil, but was entirely proper. The resolution called for the number of corporations, the date of organization, amount of capital stock, the names and residences of the incorporators, etc. They were coutuined in fifty-four volumes, filled with nothmg else, and could not have been condensed in less than one quarter of that space. It would have occu- pied no less than one quarter of the space occupied in these books, and It was simply to demonstrate to the Convention that the information was contained there, and in almost as small a space as he could get it. I have made no motion, but simply make this explanation for the Sec- retary of State — that he intended no disrespect to the Convention. Mr. BLAOKMGR. I desire to give notice that the Committee on Future Amendments will meet after adjournment in the Supreme Court room. Me. LARKIX. I give notice that the Committee on Privileges and Elections will meet immediately after adjournment in room fifty-uiue. He. KDGERTON. I give notice that the Committee on Revenue and Taxation will meet in their room immediately after adjournment. He. ESTEE. The Committee on Corporations other than Municipal will meet immediately after adjournment. AOJOUBXUEKT. At ten o'clock and twenty-five minutes, on motion of Mr. Koel, the Convention adjourned. TWENTY-FIFTH DAY. SxcRAiiEirro, Tuesday, October 22d, 1878. The Convention met in regular session at ten o'clock a. m.. President Hoge in the chair, 'nie roll was called, and members found in attendance as follows: Andrews, Ayere, Barbour, Barry, Barton, Beerstecher, Belcher, BeU, Biggs. Blaekmer, Boucher, Brown, Burt, CampbeU, Caples, Caaserly, Chapman, Charles, Condon, Cowden, CiDuch, Davis, Dean, Dowling, Doyle, PRESENT. Filcher, Finney, Freud, Garvey, Glascock, Gorman, Grace, Graves, GrMg, Hale, Hall, Harrison, Harvey, - Heiskell, Herold, Herrington, Hiibom, Hitchcock, Holmes, Howard, Huestis, Hughey, Hunter, Inman, Johnson, Jones, Dodley, of San Joaquin, Joyce, Dudley, of Solano, Kelley, Donlap, Kenny, Viigoa, Keyes, Edgerton, Kleine, Eitee, Laine, Srtey, Lampson, Evey, Larkm, Kurd], Larue, Awevtt, Lavigne, Lindow, Mansfield, Martin, of Santa. Cruz, MrCallum, McComas, MrConnell, McCoy, McFarland, McNutt, Miller, Mills, Moffat, Moreland, Morse, Murphy, Nason, Nelson, Neunaber, Noel, O'Donnell, Ohieyer, O'Sullivan, Overton, Porter, Prouty, Pulliam, Reed, Reynolds, Rhodes, Ringgold, Schell, Schomp, Shafler, Shoemaker, Shurtleff, Smith, of 4th District, Smith, of San Francisoo,Tinnin, Weller, Soule, Townsend, Wellin, Stedman, Tully, West, Steele, Turner, Wickes, Stevenson, Tuttle, White, Strong, Vacquerel, Van Dyke, Van Voorhies, Wilson, of Tehama, Stuart, Wilson, of 1st District, Swcasey, Winans, Swing, Walker, of Marin, Wyatt, Terry, . Walker, of Tuolumne, Mr. President. Thompson, Webster, ABSEKT. Barnes, Hager, Rolfe, Berrv, Lewis, Smith, of Santa Cla^, Cross, Martin, of Alameda, Swenson, Freeman, Reddy, Waters. LEAVE or ABSENCE. Leave of absence was jfranted to Mr. Cross for tliree days, to Mr. McCoy for three days, to Mr. McCoina^ on account of sickness. The Journal of yesterday was read and approved. THE SECRETARY OF STATE'S BRPORT. Mr. hale. Mr. President: I ask leave of the Convention to intro- duce a resolution out of order. The SECRETARY read the resolution, as follows: Whkebab, Heretofure, to wit, on tho Rprenteenth Instant, this Conventton, by reto* Intion, duly reqnestetl the honorable the Secretary of State of Gallfomln, who U the legal cuKtutlian o( the recorUs of all corpomtioos other than mnniclpal, which havo been formed under the law* of tliis Stale, to be informed by a detailed stato- ment to be made to tlio Couventlnn, embracing the following pointii of inquiry, to wit: the total number and claHsiflrHtion of all nich cor|K>ratK ni) ; the aggregnte iimonut of capital Bt(x;k of all, and the agtcregnte amount of capital Htock of each clan of such a>rporation8: a statement in detail of the prliici}>al places of bnMneaa, and a liXo Rtatem'-nt of tno location of the principal offices of such corporations; also, a like statement of the amount of capital stock actually paid up by all such corporations ; and, Whebkas, Said Secretary of Stata did, enbeequently, to wit, on the ulnoteenth instant. In numinal compliance with the requ^t contained in siiid re*jlnl]oii, place un tlie dc«k of the Secretary uf thfs Convention a large and cumbrous maits of l>ooks from his office, salrl to contain the record eTidences of all the coqiorutions mentioned in Hald rfsi>Intlon of inquiry, and by his accompany InfC reply to said resolution prof- fereJ said record books to this ConTeutlon as the most coodensed and accurate reply he could make thereto; and, WuKSEAS, Both by reason of the exUtlng legal necessity that said Inrnks should be kept and maintained exclusiTely In the office of said Secretary of State as public records, and the utter want of reasonable facilities on the part of this Conrcntion to make abstracts therufrom, covering and embracing the matters of inqidr)' 8i>eciAed in said resolution, it is tlio senMo of this Convention that the Secretary of State has not complied. In lett4>r or in spirit, with the requests contained In said rueulution ; also, that it is still his reasonable duly to make such compliance to the extent of his ability; therefoif, Baolped, That salil Secretary of State have leave to remove all such reord books to their said proper place of cnstoily, and that he iscespectfitlly roqitestetl to fnmisb to this Convention, by a statement in writing, such reMoiialtIo iufonnatlon touching said corporations rs expreasod iu said resolution heretofore adopted, or so much thereof as he shall be reasonnbly able to bi> furnish; and If from any cause he la not aide, in whole or in part, to make such oompHaoce, then to report to the OoDventlon tho cause of such disability. Tub president. The question is on the adoption of the resolution. Mr. hale. Mr. President: I desire in this connection to make an explanation, which is in part of a personal nature. I hold in my hand the original resolution, which, upon my motion, was passed by this Con- vention on the seventeenth instant, and also the return, which I will shortly read, made by the Secretary of State, iu which he inadvertently or otherwise falls into a grave mistake as to its contents. I desire to read for the information of the Convention the resolution : ** Retolvtd^ That the Secretary of State be requested to furnish to this Couventlou all the infonimtloii In his possession upon the fultuwliig subjiwt*, to wit: Firtt — The number and clawiflcatinn of all the corporations other than munlrl|n.l. now existing in the State of California, nud formed under the laws of this State. .Srcorui— The aggregate amount of capital stock of all such corporations, and the Hggregate amount of capital stock uf each class thereof. Third- A detailed statenieut of the principal places of buxincss and location of tho princl|>al offices of all such corpora- tions. fburth—X detailed statement of the amount uf capital stock actually paid up by all said corporations." This resolution, Mr. President, being introduced on the day I stated, being carefully read to the Convention, was adopted without any amend- ment, or any motion to amend, so far as I know, and without any objec- tion on the i)art of any member, so far as I could hear. On Saturday, the nineteenth instant, I was absent, unfortunately, from the delibera- tions of the C-onvention, on leave, however, but I see that the Secretary makes this reply, as published in the Sacramento Reoord-Uuion : [Reads.] "The President: I have here a communication from the Secretary of State, in answer to a resolution asking for information, which the Secre- tary will read : "State or Oal[foknia, Pepabthent of State, \ "Sacbahrnto, October 19, 1878. f ** To the Proffldent and members of the C^urentl jn : ''Gentlemen: I have the honor to acknowledge the receipt of Resolution No. ^ adopted by your honorable body on Thursday, October seventeenth, requesting me to famish to the Convention all information in my poMsoesIon upon the following sub- jects: First — The numl>er and classification of all corporations other than munici- pal, now existing in the State of (^lifornla, and fommi under the laws of the Stat© of California. Stcond — The aggregate amount of capital stock of all such corpora- tions. Third—A declared statement of all the princii.>al places of business, and the location of the principal offices of each corporation, fhurth — A detailed statement of the amount of capital st^xsk actually paid up by said corporations. The various subjects included in the foregoing resolution, upon which information is sought, are recorded in the books kept In my office for that special purpose; and iu order that the Convention may have tin' desired information at as early a day as possible, I hereby place at your service the records of all corporations on ^\e in my office, and they are in as condensed a form as the information sought by the resolution would warrant. ** I bava the houor to be your obedient servant, "* THOMAS BK-JK, S«««lU7 of Stat«.^ Digitized by S«««IU7 of Stat«.** T yTjOogle leg DEBATES AKl) fkOCEEDlNGS Tuesday, Mr. PrcsideDt, I desire to call attention to the fact that if this is his response to the calls of this Convention, it is grossly inaccurate. This may be a typographical error; but I ain assured b^ the Secretary at the desk that the Secretary of Stato was furnished with a correct oop^ of the resolution introduced. That, however, is a pro|iositiou of little moment. Now, Mr. President, I desire to read a little further from the pro- ceedings of this Convention occurring on that morning, to show what was the temper, tlie evident disposition, and the evident intent of this Convention, and the purpose of this report so made by the Secretary of State. [" The books, consisting of some fifty hound volumes, had been pre- viously placed on a large table at the Clerk's desk.] "Ma. LAKKIN said: Mr. President: As the mover of the resolution is not present, I move the matter lie on the table until he returns. "Ha. McFABLAND. Mr. President: I would ask if the re|>ort does not lie on the table now. ."Thk PRESIDENT. Tes, sir. Does the Convention desire the report read ? [Laughter] ," says the reporter. "Mb. NOEL offered the following: " RttolTtji, That the thsiika of thin OonTration l>« retomej to Ihf 8«:ret«rjr of State for the promptueM and dispntch with wbicb he has compiled with the order of the Gouventioii directioK bim to fumiih ali information lit bia poaaealoii in rebt- tlon to corpoiatlona other than municipal. ** Ruclvat, That Ate hundred copleeof anch report be printed and laid on the drake of the nemben rf tbia Convention. LLaogbter.} " Referred to the Coiumittte on Mileage and Contingent Expenses. "Mb. McFARLAND then said: 1 move the matter be referred to the member from the rural district. [Referring to a large owl which had during the night previous entored the Chamber, and which all day sat perched on the cornice above the President's desk, looking solemn and wise.] Mb. McFARLAND. Will the gentleman allow me to correct thatT It was my friend from Alameda, Mr. McCallum, who made that motion. Mb. HALE. I accept the gentleman's explanation with great pleas- ure. Mb. TULLY then offered the following : '* BaolveJ, That fire tbonsand dollan of the monej appropriated bj the State to Aetny the exponaee of this Convention be placed in tiie hand* of the honorable Thomas Beck, Secrutary of State, to defray hia exponaee while engaged in cuin- plling the intomiatiou required by the reeolution now under conaideration." "Thb PRESIDENT. It will go to the Committee on Contingent Expenses." 'There the matter seems to have been permitted to drop for the day. Again, I observe from the report of this Convention that the gentleman from San Joaquin yesterday rose to make an explanation on behalf of and in the name of the Secretary of State, which I read now, because it seems to be an authorized statonient of the Secretary of State, and it is from that standpoint that 'I desire to call attention to it. It is as fol- lows: "Mb. TERRY. Mr. President : I have been requested by the Secretary of State to make an explanation. He has understood from some of the members of the Convention that they think he was guilty of some dis- respect to the Convention in sending the volumes here on Saturday. He desires me to say that he intonded no possible disrespect to the Con- vention, but he simply desired to demonstrato to the Convention the utter impossibility of affonliu^ the information desired. The fifty-four volumes are entirely filled with articles of incorporation,- and, besides this, there are about five hundred not recorded. They are coming in at the rato of four to ten a day. It would have required the service of the entire force of his office for th'ree months to make up the information required by the resolution. He intonded no disres|>ect whatever, but simply desired to demonstrato the utter impossibility of complying with the request." Mr. Larkin then spoke as follows: " Mb. LAKKIN. I hope this matter will remain until the mover of the resolution returns. This is a matter for this Convention to deter- mine, and it is disgraceful in the extreme. Judge Hale, of Placer, intro- duced the resolution. After having bad a consultation with him, I called on Mr. Beck, and he said the information should be furnished. For some reason, or from some motive or suggestion, he saw fit to insult the Convention by bringing those books here — not to us, but to the people of the State who called this Convention and sent us here, and I desire to have the matter laid over until Judge Hale is here. He had no right to take those books away. Those books should have been retained here until the Convention saw fit to remove them." Then the gentleman from San Joaquin, Mr. Terry, is reported as say- ing: "Mb. TERRY. Mr. President: The report made here was not dis- respectful, but was entirely proper. The resolution called for the number of corporations, the date ol organization, amount of capital stock, the names and residences of the incorporators, ete. Thev were contained in fifty-four volumes, filled with nothing else, and ooula not have lAen con- densed in less than one quarter of that space. It would have occupied no less than one quarter of the space occupied in these books, and it was simply to demonstrate to the Convention that the information was con- tained there, and in almost as small a space as he could get it. I have mode no motion, but simply make this explanation for the Secretary of State — that he intended no disrespect to the Convention." Now, Mr. President, this may be a source of great merriment to the Convention. There are some gentlemen who think this a proper occa- sion for levity, and without desiring to express any disrespect for any member on this floor, I must still be permitted to say that I have never seen more ill-timed levity in anything, and I wish to state why. Mr. FTMident, taking into oonsideration the tone of some gentlemen on this floor, and o^f the Secretary of State, it would appear that somebody hu most egregi'ously blundered in this busineas, and I suppose to a certain extent I am responsible for introducing this resolution. Allow me to say, Mr. President, that I did not do it upon my own individual judg- ment alone, though I should have done so without any hesitancy. I did it after consulting and discussing the subject-matter with several well-known and eminent gentlemen of this Convention, and who enn- curred with me fully as to the purpose sought to be accomplished by the resolution. Now, sir, I may have blundered, innocently though it may be, but the Convention nevertheless has shared in that blunder itself, because this resolution was adopted without a dissenting voice, and what wu my original motion became its own deliberate act. If there was any blunder about this matter it is now material to know where it ia I still think, and shall think until I am convinced by evidence other than that furnished, that there was no blunder committed on my part in intro- ducing this resolution, or by the Convention in its adoption. Mr. President, before coming to this Convention, after having been honored by the people of this State by an election to a seat here, I have spent such time as I have been able to spare from other vocations in looking through the reports of Conventions in other States, called to perform duties like unto those incumbent upon us here. In doing ao I had occasion to look over the reports of the Stete whence I came, Illi- nois, and also over the reports of the Stato of New York, and those of my native State, Pennsylvania; also, of Missouri and some other States; and, sir, I noticed by all the Journals and reporto that Legislatures of those States had provided that the various officers of the State, Secre- tary, Treasurer, Controller, and all the State officers, should fumish to the Convention all information, upon its reasonable call, to enable the Convention to wisely perform their duties in framing a new organic law. And, sir, I have not been able to find an instance where a State officer has refused this information, though in several States the requisitioDS have been of the same class as the one I introduced last Thursday. I think I may sav, within bounds, that I examined no less than fifty reai>- lutions adopted by the Conventions, asking information of the State officers like unto tiiat which we ask for, in eveiy sense of the word, and, sir, m no instance can you find in any of the Journals or reports of those Conventions where the Secretai^ of State, or Controller of Stato, or the Governor of the State, or any officer of the State, availed them.ielves of any such privileges as this, or were permitted to make any such reply as nas been made by the Secretary of State to this Convention. Now, allow me to call attention to the statute which the Legislature of this Stete passed — the Act under which this Convention was called and is now sitting ; " The Secretary of State, all public officers, and Boards of Comraissiuners, shall furnish such Convention with all such information, papers, details, books, or other documenU in their possession, as the said Convention shall order or require for its use from time to time while in session." I think, sir, when I have read this, under these cireumstances, that I shall stand, and that this Convention will stend, acquitted of all folly, of all stepping out of the usual and proper course in making this inquiry of the Secretary of Stete. Mr. President, I wish to say now in reganl to the resolution which I have this morning introduced, that I have steted the facts of this matter, and I believe f have done so accurately. Now, Mr. President, is it proper, because, if there be no motive — if there is no substantial reason why this Convention should still desire this information — then this resolution should not be adopted. In other words, we should make up our minds that we did a foolish act, and let it go. My resolution calls for a different line of action. I thought, and the Convention evidently thought, that the resolution was well timed in its character. I think so still. Now, sir, what does this resolution call fort It calls, sir, for a statement of the total number of all corporations that have been formed, and that are existing under the laws of this State. That is one thing. Again, sir, it calls for a classified statement of each class of the corpo- rations so formed. Why do we desire this information T Allow me to say why. We all know^-or at least eveiy lawyer on this floor will remember — that in the olden times, in the beginning, corporations were not permitted to be formed as now. They were not formed under gen- eral laws. They were grants from the crown ; they were charters ; they were in the nature of special grants. In the course of time it was found that great corruption crowded into the administration of government, growing out of tnis practice, and in this State when they adopted the present ('constitution, following after the laws of some of the other States, they provided that corporations other than municipal should be fornieti only under general laws, and we have been living and acting under that provision of the Constitution, and laws framed in purstiance of it, from that day to this. It was said by Judge Terry — speaking for the Secretaiy of State- that there are fifty-four bound volumes of these records in his office, which contain nothing but the declared statements of the articles of incorporation of corporations which have been formed under these general laws. Now, if we look into the statute books— at least until the Codes were adopted — we find that corporations were permitted to be formed under general laws for certain specified purposes. They embraced a very large range of industries and pursuits, and business affairs in this State. When the Codes came to be adopted, the bcm-iers which before that time had been permitted to stand were all swept away, and thenceforth, under the provisions of the Codes, they were authorized to form corporations, by compliance with a few ststutory re<)uireinents, by a few individuals who had gathered together in a ncighborliood for the purpose of carrying on the various industries, and all the various classes of business enterprises. Now, sir, the purpose of this resolution waa to make an exhibit of this state of facts. 1 was aware of the fact tiai-tiken wm this vast mill- Digitized by VjOO' Oct. 22, 187S. OF THE CONSTITUTIONAL CONVENTION. m titude of oorporetions, which are as numerous as the sands upon the seashore. I was not unaware of the fact that these corporations were so numerous that their names were myriad — all the way from a corpora- tion organized for the construction and maintenance of a railroad or st€amt«al line down to a peanut stand. , One object of this resolution was to develop these facts in detail, so that when we reached that question we would have the record of facts from theproper offices, as a basis for action. Arain, sir, there is another point This resolution asks for the principal offices and places of busi- ness. Why did we do that? Why, sir, it is a fact that these corpora- tions, whose names is legion, have places of business — by which I mean the properties to be operated, to be purchased, to be worked — established alt the way from the northern extremity of the State down to the south- ern line, and from the coast back to the eastern boundary, and cover the whole Pacific coast, yet whose principal places of business, almost with- out exception, is on two or three streets of San Francisco ; so that all minine, manufacturing, and agricultural pursuits — almost all the indus- tries of the State, conducted by corporations, have their principal offices of business in San Francisco. That was why I asked for this information, so as to present the facts in detail to the Convention, so that we, coming here as representatives of the people, may be able to say how far it would b« wise to modify the sTstem of laws ander which these corporations hereafter shall be formed in this State. Now, sir, it was said by Judge Terry that the Secretary of State can- not furnish this information. Why? I beg leave to ask, why? The law provides, sir, that when a corporation is lormed that the few persons who are required only for that purpose shall sign articles of incorpora- tion, and that they shall state tneir corporate name, state their capital stock, the amount of it, state the purposes, for which the corporation is formed, the principal place of business, and the location of their offices. These are matters simply of detail required to be filed under the law. Does the Secretary of State mean to tell us that he has no system of indexing or tabulation by which these few cardinal facts and points can be aswrtained ? It is incredible, sir, and I want to say, if such is the bet, it would |je quite proper for this Convention, or some other author- ised body, to pass a resolution requesting the next Legislature to see that this gross negligence is corrected. I cannot believe that it is true. In the resolution I have offered, sir, I ask the Convention to express it, at its judgment, not that the Secretary of State shall absolutely furnish this information in full, but that he shall furnish us what he reasonably can. Ko impossible or unreasonable thing should be demanded of him. or anybody else, but the resolution says he shall furnish such informa- tion as he may have, to the extent of his reaxonable ability, and so far as he is not able to comply to make his report to this Convention, stating simply wh^ be is not able to do so, and that will be satisfactory. I nope this resolution will be adopted. I hope so, because I think the information is important, and I think the people of this State expect us, as their representatives, sent here for the purpose of forming a new framework of government for ourselves and our children who shall come after us, to consider this subject well. I know, sir, and I think many other gentlemen will concur with me, when I say that the people of this State have not, for the first time, heard of these corporations. They have had their attention called to it for a long time, and they take s very serious view of the situation. They expect us to go to the various offices and ascertain the various conditions, and if there bf an unsound sill, an unsafe pillar, or an insecure column anywhere in the structure of the government, that we will carefully examine the defect and wisely find the remedy, so that the structure of our State government will stand safely and securely in time to come, securing to as, and to our children after us, the blessings of a wise and free govern- ment. I believe, Mr. President, that this information will materially aid this Convention in the performance of its duty, and, therefore, I ask most earnestly, and yet respectfully, that this resolution may be adopted. Mb. BLACKMER. Mr. President : I desire to second the resolution as presented by the gentleman from Placer, Mr. Hale, and for these reasons: First, because I believe that the information called for by the raaolution is of paramount importance to this Convention. I believe that that information should be in the hands of the Convention, and in the hands of the committees in whose charge these subjects are to be placed. I believe it ought to be furnished l»cause it was provided in the Act calling this Convention that any ofBoer of the State should fur- nish, upon the requisition of this Convention, such information for its pse. I believe that that information has not been provided, in the spirit in which it was aaked for, by the report of the Secretary of State as pre- Koted to this Convention. I believe, sir, that the report from the Secre- tary of State was not couched in such language as it should have been in reply to the very courteous request of this Convention for that information. If it was not in his power to furnish us the information aooording to the specifications that were put down in the resolution, it should have been his duly to have said in so many words, " I am not able to give you this information in full. ' He should have given us what be could. But, sir, instead of that he sends up here a table loaded with books, large enough to be a load for any man to carry, fifty-four in nnmber, and tells us that it is in as compact a form as be can give us the report. Bow, sir, I believe that the Secretary of State has made a great mis- take in this report. Either he did not understand the purport of the reKlution.or he did not understand the temper of this Convention. I bdieve that the resolution ought to pass, further, because it gives to the Secretary of State still opportunity to comply with the wishes of this Convention, and if he is not able to do it in fall to give us what he can or give ut the reasons why he cannot give it ; and it certainly is his dn^ to do so. I am in favor of this resolution, and hope it will be admted. lu. TERBT. Ur. President: I have no objection to the passing of this resolution, but I take a different view of this matter than that expressed by the gentlemen who have addressed this Convention. I am assured by the Secretary of State that no disrespect was intended, and for my part I think that all the information which is of any particular importance was afforded by the exhibition of those books upon that table. If it was important to show that these corporations ha^ multi- plied and had grown up — that they pervaded alt parts of the State and eveiy possible enterprise in the State — we had ocular demonstration of the fact — after the fashion of the popular mode of teaching — we had the object lesson before us. We found fifty-four volumes, averaging I should say at a rough guess, about eight hundred pages to the volume, or nearly forty-five thousand pages of articles of incorporation. Now, what better evidence could we have of the immensity of this interest that has grown up under the lax system spoken of by the gentleman from Placer, Mr. Hale, than the exhibition of the volumes here. And, air, as to the ability of the Secretary of State to comply, it seems to me that it is easy to judge that it is utterly impossible for a tabulated statement to be made in the time before this Convention adjourns. These articles of incorporation are usually not very lengthy. It would require about a page and a half to contain "the articles of each company. Then we would have from thirty to forty thousand corpo- rations. Now, simply giving the names, amount or capital stock, and place of business or these corporations, it Mb. hale. It does not call for the names of the corporations. Mr. terry. You call for the place of business, tlie amount of capital stock, and the amount of capital stock paid in? Mb. hale. Yes, sir. Mb. terry. That would involve the examination of the articles of incorporation of twenty thousand corporations at the very least. At thirty lines to the page, that would be eight hundred pages of the report — that simple statement alone ; as I said, 1 have no objection to passing the resolution. It is the duty of the Secretary of State to give us all the information in his power, but I do not think that he is censurable to the extent that some gentlemen do. For my part, I think the levity was misplaced in a body like this, and that tne Secretary perhaps made a mistake in not simply reporting, instead of exhibiting the books to the Convention, that it was impossible to collate the infor- mation in the time. Certainly the information called for would occupy eight hundred or one thousand pages, and would be of no use to the Convention unless it was printed and laid upon the desks of members; and I do not suppose that an expense of that^ kind is to be incurred for the purpose of printing this information. Mr. WICKES. Mr. President: We have made many mistakes and some blunders. If any one has blundered in the premises, and if any one rests under a cloud of suspicion as to the conveyance of disrespect to this body, I think it would be better to exonerate all parties, and go on with the regular order of the day; and to simplify tne matter, I offer this amendment as a siibstitute for the resolution. Thk secretary read the resolution, as follows: Raolved^ That a committee be appointed to make sncli cunor7 examination of the books in question aa will determine whether the demand was inconsiderately made, or whether Buch examination rf said books by a committee detailed to procure snch information Jointly, would be fcaaiblo and practicable, to report to this Ixidy at the earliest moment Mb. LARKIN. Mr. President: The resolutions offered by the gen- tleman from Placer, Mr. Uale, ought to be adopted by this Convention for several reasons. When that matter came up I made a motion to lay the report of the Socretarv of State on the table. It had become the property of this house. 4'he Secretary of State or some one else removed the books from this chamber without the permission of this Convention. They had no authority to do so. On the other proposition, that he be requested to furnish such information as he may have, or give the reasons why he cannot comply in whole or in part with the request of the Convention, I think I."! (lerfoctly proper. I do not desire to crowd upon the Secretary of State, although his act has placed us in a very unenviable position before the people of this State. He has placed us in the position of being snubbed by the Secretary of State, and through us he has snubbed the jieople oPCalifomia. I insisted that this resolution should lie on the table until the mover returned. He has returned, and he has made a proper statement, and offered proper resolutions under the circumstances. I am satisfied that Mr. Beck now better understands his duty to this Convention and to the people of the State than he did when he brought the-se books in here in lieu of the report that we requested him to make. I hope that the reso- lution will be adopted, and that he will have a chnnce to take these books from here by leave of the Convention, and have an opportunity to make a proper report, or explain the reasons why he cannot comply with the request of the Convention, Thi PRESIDENT. The question is on the passage of the resolutions. Mr. TINNIN. It is on the amendment of t£e gentleman from Nevada, Mr. Wickes. Thk PRESIDENT. There was no second to it. Mb. BARRY. I second the amendment for the purpose of bringing it before the Convention. Mr. LARKIN. I call for the reading of the resolutions. The SECRETARY read the resolutions: Whbrius, Heretofore, to wit, on the Beveoteentb Instant, this OonventtoD, by reiolution. duly requeeted the honorable the Secretary of State of California, who is the legal custodian of the records of all corporations, other than municipal, which hare be«-n formed under the laws of this State, to he informed by a detailed state- ment to be made to the Conrention, embracing the following points of inqnir7, to wit : the total nnmber and clasaitlcatlon of all such corporations ; the aggregate amount of capital stock of all, and the aggregate amount of capital stock of each clasB of such corporations ; a statement in detail of the principal place* of business, and a like statement of the location of the principal offices of such corporations; also, a like statement of the amount of capital stock aetualiy pajdnp by all nicl corporations; and Digitized .by LjOOQ IC 170 DEBATES AND PROCEEDINGS Tuesday, Wbkbkas, Said Stcnttrj of Stats did, inUequently, to wit, on ths nlnetMntb tnjtant. In nominal compliance with the request contained in nid reaolatlon, place OD the doslc of the Secretary o( thia Convention a largo and ciimbroua maa of books from bU office, Mid to contain the record evidencee of all the corporations mentioned in said rcfloludon of inquirr, and by his accompanying reply to said resolution prof- fered said record books to tills ConTentlon aa the most condensed and accarate reply he conld make thereto ; and, WHEaXAS, Both by reason of the existing legal necessity that said books shonld be kept and maintained exclaslTely in the office of said Secretary of State as public records, and the utter vrant of reasonable facilities on the part of this Conventiun to make atsitimcts therefrom corering and embracing the matters of inquiry spedflod lu said resolution, it is the sense of this ConTentlon that the Secretary ot State has not compiled. In letter or in spirit, with the requests contained in said resolution; also, that it is still bis reasonable duty to make such compliance to the axtent of bis ability ; therefore, Rtiolved, That said Secretary of State have leare to remore all such record books to their said proper place of custody, and that he is hereby respectfiilly requested Xm furnish to this Convention, by a statement in writing, snch reasonable Information touching said oorpoiatlons as expressed in said resolution heretofore adopted, or so much thereof as he shall be reasonably able to so furnish; and if from any cause be Is not able in whole or in part to make snch compliance, then to report to the Con- vention the cause of snch disability. Mr. LAINE. Mr. Preeideot: While I am disposed to see to it that all the State officers shall treat the Convention properly, and make all proper reports which this Ckinvention has a right to call for, I am satis- lied in my own mind that in this case we have called for more than the Secretary of State can give. The voluminousuess of the matter is such that I ara satisfied it would require a lon|;er time than the sitting of this Convention to compile it, and comply with the resolution. I think the Convention acted hastily, though 1 nave no doubt the Convention was impelled by a proper spirit to seek the information. But they acted I think without due consideration in this matter. Now it seems to me, before we (lass this resolution, we should be cer- tain that we are right in the matter, and that the officer was in contempt. It seems to me the proper oouree would be to refer the whole matter to a standing committee of this body, and there is no more proper committee than the Committee on Corporations, selected with a view to dealing with that subject. That committee can go to the Secretary of State and examine the documents, and see if this Convention has properly under- stood the matter, and report back to this Convention, so that we may all be relieved from any improper course of action. In pursuance of this idea, I send up to the desk an amendment to the amendment, for the purpose of referring the whole matter to the Committee on Corpora- tions, with instructions to .investigate the matter and rejwrt to this Convention the proper action to be taken. TuK SECRETARY read the resolution, as follows : Resolved^ That the whole subject-matter of the two rosolutiooa introduced by the member from the Second Congressional District, calling on the Secretary of Stale for Information concerning corporatious, be referred to the Committee on Corporations other than Municipal, with instrurtioiu to investigate the matter and report to this Courontiou such course of action as In their Judgment It is held for the Convention to take in the pi«mises, at as early a day as possible. Mb. brown. Mr. President: I feel to favor this last amendment. I have heard a great deal said about this matter, and I have heard read the resolution of the gentleman from Placer. I am well convinced that at the time of the passage of that resolution this Convention desired only what was reasonable. Our desire was to have proper information in regard to corporations, and we wished to know everything that reason- ably could be known. But I am thoroughly convinced that the resolu- tion embraced too much. I am convinced, since the matter has been discussed in this body, that the resolution was too broad, and too much in detail for the Secretary of State to complpr with in any reasonable length of time. For instance, he was to give the aggregate amount of tlie capital stock, and of each class thereof; a detailed statement of the principal place of business of each corporation, and the location of the priiiciiial office of each corporation, and a detailed statement of the amount of capital stock, and the amount actually paid up by all such corporations. This embraces a great deal in the aggregate and a ' great deal in the detail. I ara fully convinced that although wo were desirous of having this information brought before the Convention, yet there was too much required. I think we should allow a committee to investigate this matter, that we may know whether or not we do not have need of some information with regard to the vast amount of work that is required in this case. Therefore, I am entirely in favor of the last amendment. Mb. NOEL. Mr. President: It seems to me that ordinary prudence, and a decent regard for the dignity of this Convention, requires that this matter be dropped, and I move that the whole matter be indefinitely poetpon^. Mb. barton. Mr. President: I am in hopes this resolution will not prevail to postpone the whole subject-matter. I ara in hopes that neither of the two amendments will prevail. In my humble judgment, Mr. President, this Convention to-day occiipies rather an unpleasant gosition in regard to this immense amount of^inatter that was presented ere, purporting to be a report from the Secretary of State in response to a resolution oifered by the gentleman from Placer, Mr. Hale. I would like to ask the gentlemen of this Convention, where are the volumes presented here as a report in response to the call of this Convention? If those documents are considered valuable, it is well that this Convention understand that they are responsible for their delivery. They were carted in here, in my opinion, with disrespect for this Convention, and they have been carted out with the same degree ol disrespect. Now, sir, shsJl I, as a member of this Convention, wink at this thing, and say that a public servant shall become the master of the people's representatives in this Convention ? I hope not. I don't wish 'to detain the Conven- tion, but I hope the resolution offered by Judge Hale will pass. Mb. hale. Mr. President ; I desire to say one word. I hope that the amendment to the amendment will not prevail. I understand how easy it is — I am not altogether unacquainted with parliamentary prac- tice—I understand the old dodge of killing a thing by referring it to t committee. It is very similar to the process by which we bury out of our sight the dead things which we cannot have among the living. I do not think, Mr. President, that this resolution is intended to M of that character. This resolutic^ which I offered is not intended— it expresses no censure towards the Secretary of State — and if it did, sir, I think it would be justified, under the cireumstanoes; but it simply layi: " Raottitd, That the Secretary of State have leave to remove all such books to their proper place of custody, and that be is hereby respectfully requMted to furnish to this Convention, by a statement in writing, such reasonable Information touchisg said corporations, as expressed in said resolution heretofore adopted, or so much thereof as he shall be reasonably able to fhnilsh; and U^ from any cause, he Is not able, in whole or In part, to make such compliance, then to report to the OonTeMioi the cause of such diaal lllty. I do not know how it is that these books are not here now. He brought them into the Convention, so says the report. I was not here myself. And he made an accompanying report, and stated that he made this in response to the resolution adopted b^ this Convention. I do not understand how it is that he has been permitted to remove them. I have seen no resolution permitting him or anybody else to remove them. He put them in the hands of the Convention. Now, this resolution is, first, to get him out of that difficulty. It gives him leave to withdraw them, and return them to their proper place of custody. It is a resiiectful request to him to furnish the informa- tion specified in the origiuat resolution, or so much thereof as be is rea- sonably able to furnish, and if not able in whole or in part to furnish it, then to report to the Convention the reasons of this disability. I sub- mit that there is no need of the Committee on Corporations or any committee to investigate this matter. I think this expresses the whole matter. It returns this remlutlon, and asks him to comply, if able, and if not, to state why not. This certainly needs no report from any other committee to find oat the propriety of this request. I hope this motion and the amendment and the amendment to the amendment will not prevail, but that the original resolution will be acted upon by the Con- vention. Mb. O'DONNELL. Mr. President: I hope this whole matter will be laid on the table. We are now censuring an officer without giving him ' an opportunity of being here before this Convention. It is impossible for an officer to produce what was required of him by that resolution in the next three mouths. I hope, Mr. President, that this whole matter will be laid on the table. I make that motion, that it be laid on the table. Thk PRESIDENT. The first Question is on the motion to lay the whole matter on the table. The Chair heats no second to the motion. Mb. hale opposed the amendments, and urged the adoption of the original resolutions. Mb. McGALLUM. Mr. President : I submit that this motion to indef- initely postpon* and the amendments should be voted down, and the matter disposed of on the original resolution ; and I desire to call the attention of this Convention to a paragraph in the Secretary of State's report, which is in fact and in substance the whole of it : " The various suDJects included in the foregoing resolution, upon which information is sought, are recorded in the Ixwks kept in my office for that especial pur- pose, and in order that the Convention may have the desired informa- tion at as early day as possible, I hereby place at your service the reoonli of all corporations now on file in my office, and they are in as condensed a form as the information sought by the resolution would wanaaL" That, sir, is the whole report, except the recital of the resolution. I say the friends of the Secretary of Slate, in my judgment, should vote for this resolution. He should have an opportunity to set himself right The information furnished by the gentleman from San Joaquin is not official information to the Convention. The Secretary of State should have an opportunity to state the reasons why he did not comply with the original resolution. There is nothing in his report either replying to the resolution or giving any reason for not doing so. And more than this, it is not accurate upon its face. Those books, the great mass of them, are records of the certificates of incorporation. We may have been in error from the beginning. It may be that this is a sort of comedy of errors from the beginning. The gentleman who made the motion may have been in error in asking too much. The Convention may have been in error in adopting the resolution. The Secretary of State was evidently in error in his facetiousness, for that evidently was the design of it, and he was in error in sending the books into the Convention. Mb. GRECtO. Mr. President : I rise to a point of order. The motion to lie on the table is not debatable. Thb president. The motion was not seconded. Mb. McCALLUM. Now, the resolution offered by ihe gentleman from the Second District merely calls upon the Secretary of State for such information as he is able to furnish, and if he cannot furnish it all, to state the reasons. No reasons have yet been assigned to this Coii- vention why he did not furnish the information, except what is indi- rectly stated by the gentleman from San Joaquin, no doubt correctly; but the information furnished by the Secretary of State is what he should have furnished to the Convention officially. There is no censure in the resolution offered by the gentleman from Placer, none whatever, but it ?;ives the Secretary an opportunity to comply with the request or state he reasons why he has not done so. And, sir, that portion of the reso- lution which he could not comply with, if it is true that there are twenty-five thousand certificates of incorporation, he could have given that amount of information, and there are certainly other means whereby he could have furnished it without so voluminous a report ; and, as to the balance, he could hav8 stated the facts which he stated to the gen- tleman from San Joaquin. We can pass this resolution, and I have no doubt the Secretaiy of State will be glad to set himself right. Mb. STEDMAN. Mr. President: A resolution was offered and adopted by this body, requesting the Secretary of State to furnish tu t^ Oct. 22, 187^ OF THE CONSTITUTIONAL CONVENTION. 171 with certain specified information. In response to this request, we are ill aware that fifty-four volumes of records were brought into this cham- ber and laid before the Convention, ecrompanied by a report in which we were told that all the information ask»l for was contained in these fifty-four volumes, and in as condensed a form as it is possible to get it. It IS indeed unfortunate that the State of California should have a Sec- retary of State who is no more competent to fulfill the duties of that high office than the present incumbent, judging him by his own admission. Every member of this Convention ought to know that when the Secre-' tory of State brought those books into this chamber, be was guilty of a gross insult to this body, and Mr. Terry, this morning, as the represent- ative of Mr. Beck, tells us that these boohi were brought here as a sort of an "object lesson," to teach us, like so many children, what we ifaonld do. Mb. terry. I beg to correct the gentleman. I am not the repre- sentative of Mr. Beck. 1 represent the people of San Joaquin. Me. 8TEDMAN. He told us that these books were sent here as a sort of " object lesson," as we are regarded as children, not able to com- pn>hend a report. Why did not the gentleman come t« this Convention with a report couched in respectful lan^age, as our resolution was? If jf was impossible for him to compl^r with the request, why did he not inform this Convention of that fact in a respectful manner? Now, sir, I believe that the Secretary of New York, or Missouri, or Pennsylvania, or snv other great State, where there are perhaps as many or more cor- porations as in this State, I believe the Secretary of State in any of those States would have been able to furnish such information as that asked for by the resolution. The only difficulty is, in my opinion, that the Secretary of State of California has not adopted a proper system of keep- ing these records. Whether he knows how or not, I cannot say, but his avstem is certainly not the proper one or the information contained in these volumes would have been epitomized in such a manner as to be easily placed before this Convention in proper shape. I hope the reso- lution will be adopted, and that the amendments will be voted down. Mb. O'DONNEIiL. I move to lay the whole matter on the table. Mr. REDDY. I second the motion. Thi president. The question is upon laying the whole matter on the table. Lost. Thi PRESIDENT. The question is upon referring it to the Commit- tee on Corporations. The ayes and noes were demanded by Messrs. Hale, Wyatt, and Filcher. Mk. hale. I withdraw the demand for the ayes and noes. Tbi PRESIDENT declared the motion lost on a viva voce vote. Division wa« called for, and before the Convention divided, Messrs. Hilbom, Larkin, and Filcher demanded that the roll be called. The roll was called, and the motion was lost by the following vote : Andrews, ATtS. Holmes, Porter, Bigga, Howard, Pulliam, Brown, Inman, Reddy, Caples, Johnson, Shoemaker, Cowden, Kelley, Shurtleff, Dudley, of San Joaquin , Laine, Smith, of 4th District, Eagon, Lampeon, Swing, Edgerton, Larue, Terry, Fawcett, Mansfield, Tiunin, Freud, Martin, of Santa Cms , TuUy, Glascock, McConnell, Turner, Graves, Muiphy, Noel, Van Voorhiea, ffi^rn, Wellcr, Overton, Wilson, of let District X0I8. Harrison, Reed, Bany, Harvey, Reynolds, Barton, Heiskell, Rhodes, Beerstecher, Herold, Ringgold, schln. BeU, Herrington, Blackmer, Hitchcock, Schomp, Boggs, Huestis, Shafter, Boucher, Hughey, Smith, of San Francisco, Bart, Hunter, Soule, CAmpbell, Jonee, Stedman, Casserly, Joyce, Steele, Chapman, Kenny, Stevenson, Charles, Keyes, Strong, Condon, Kleine, Stuart, Crouch, Larkin, Sweasey, Davis, Lavigne, Thompson, Dean, Lindow, Townsend, Dowling, McCallum, Tuttle, Doyle, HcCbmas, Vacquerel, Dudley, of Solano, McFarland, Van Dyke, Danlap, McNutt, Walker, of Marin, t^. Miller, Walker, of Tuolumne, atey. Mills, Webster, Brey, Moffat, Wellin. Farrell, Moreland, West, Filcher, Morse, Wickes, Honey, Noson, White, eaTvey, Kelson, Wilson, of Tehama, Oorman, Keunaber, Winans, Ohlever, O'Sullivan, Wyatt, Hale,' Mr. President. mu. Prouty, Mb. O'DONNELL, when his name was called, refused to vote. Mb. stedman, when Mr. O'Donnell's name was called. I believe we have a rule which compels every member to vote. Mb. O'DONNELL. I refuse to vote. Tbr PRESIDENT. The next question is on the amendment of the gentleman from Nevada, Mr. Wickes. The Secretary will read it. Thb SECRETARY read the amendment, as follows: lUtolved, That a oomniltte« be appolnt«d to make such canorj examtnatton of thf book! in qoevtloD as will determine whether the demand was Inconsldontely mmde, or m-hether inch examination of eald Ijookt by a oommittee detailed to procorv racli iDformatiun Jointly, would be feaaible and practicable, to report to this body at the earliest moment. The amendment was lost. , The original resolutions were then adopted. PBOPOSITIOn WITHnBlWD. Mb. BEERSTECHER. Mr. President: I ask leave, out of order, to withdraw amendment number three hundred and nineteen, for cor- rection. Tbb PRESIDENT. There being no objection, the gentleman will have leave. The Chair hears none. PKTITIONS AND MRMOBIALS. Mb. EDGERTON presented the following petitions: The undersigned, citlaens of the State of Caliramla, reatMctfulty and urgently request the delotpites conatltutjUK the Convention authorised to prepare a Coiiatltu- tlon for said Slate, to retain in aaJd Constitution eection four of the ume, and to add to said section • proTtelon declaring the Sabbath day, or Sunday, a day of rest Signed by Samuel Jelly, and many otheia. . Tax PRESIDENT presented the following petition : Sakta Babbaba, Cal., October 11th, 1878. To the Memben of the Constitntional OouTentlon : Gkxtlkmkk; The Santa Barbara League wish to call your attention to the peti- tlont now before your lionormlile body on the right of infrrage. We ask that the Gonetitntion be so constructed that there ehall be no dlsfranchiiement on account of sex. The following an* our reasons : First — BecAuse ** all just gorernments derire their powers from the consent of the governed." Woman is goTerned bj laws to which she giroe no consent. Second — Because woman has the same Inherent deeire for and power of Belf.gOT- ernment as man, and the same natural right to exercise that power. Third — Because the Ignorant and intemp^te are enfranchised and Intrusted with the privilege of making laws to gorem her, and of employing their veeted powers in restraining her l^m exercising a citlzen*s highest peiogative, the right of ballot. Fourth — Because woman is taxed, and taxation without representation la as much tyranny lu eighteen hundred and seventy-eight as in seventeen hundred and seTenty-six. Fifth — Because It is a cltiz«n*s right to be tried by a Jury of bis peers, and woman Is not so tried, In California. Sixth— Because the well-being of the State demands that thousands of hard work- ing women, who add greatly to its wealth and Its Intellectual and moral worth, should not be crippled In their power of userulnees. Seventh — Because, with the ballot in the hands of all good citlxenB, the honor of our State would be asserted and the perpetuity of our government assured ; for a natioo's Injustice is a prelude to a nation *s decay. The right to vote we consider inhoreut. Webster defines Inherent, as natumlty pertaining to; Innate; as the inherent right of men to life, liberty, and protection. '*To secure these rights. goTomments ore instituted, deriving their Just poweia from the cantent of the governed." The right to form governments is then an inherent right. To do this In our conntry It Is necMsary to vote; therefore the right to vote Is Inherent in every American citlsen. If not, from whom acquired ? If the people acquire the right from themselves and delegate it to othen, the right must be inherent In the first place or they have nothing to give, no powers to dele- gate. We earnestly entreat your honorable body, so to frame the now Constitution, that women may be empowered to exercise this loherent right, the right of snfhmge. Tours rsspectnilly, MART A. ASHLET, President Santa Barbara League. MABT r. BUNT, Swsratary. Referred to the Committee on Right of Sufirage. PB0P08ITI0BS AKD BBSOLCTIONS BILATIKO TO TBI OOXSTITrTION. Mb. EDOERTON introduced the following proposed amendment to the Constitution, in relation to the Bill of Rights : Seo. 4. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this Slate; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State. And to secure said rights, it is essential thsttone day in seven should be observed as a day of rest. The first day of the week, usually called the Sabbath or Sunday, shall be observed as said day of rest Referred to Committee on Preamble and Bill of Rights. AOAINST OPFIOB SBBKINO. Mb. WICKES introduced the following proposed amendment to the Constitution, in relation to office seeking : Any candidate who, in any newspaper, print or writing, announces, or consents to announce his name as candidate for nomination to any public office, by any party, club, caucus..' or convention, thereby dis- qualifies himself from holding the office for which he thereby is announced as a candidate during the next term thereof. Referred to Committee on Legislative Department. BEVERUE AND TAXATION. Mb. FILCHER introduced the following proposed amendment to the Constitution, relative to revenue and taxation : Abticlb — . Section 1. Taxation shall be equal and uniform throughout the State of California. Sec. 2. For the purposes of taxation all propertjr^wi^bin the State Digitized by Laoogle 172 DEBATES AND PROCEEDINGS Tdesdav, shall be assessed at its full rash value, to be ascertained in such man- ner as the Ijegislature may direct; and property in the sense of this arti- cle shall be understood to include all righU, privileges, or franchise* that have been or may be granted by the State, or any subdivision thereof, to any individual, corporation, or association, and every other conceivable thing that possesses any commercial or exchange value; procUkd, that the property of the State, and the property of the coun- ties, and other municipal corporations, may be exempted fmm taxation. Sec. 3. Land shall in all cases be assessed as an item separate and distinct from the improvements thereon, and in determining the value of land for the purposes of taxation, no discrimination shall ever be made between tracts of land possessing the same natural and other facil- ities, and of the same productive capacity, in consequence of any im- provements that may have been made on one tract or piece of land more than on another. Skc. 4. Any property of any individual, association, or corporation may be seized and held for the amount of the taxes due from said indi- vidual, association, or corporation, but any party in possession of, and paying the taxes on property that is incumbered by mortage, or other legal lien, shall recover, without legal process, from the bolder of said mortgage, or lien, an amount, in settlement, equal to the sum of the taxes on the amount of said mortgage or lien. Skc. 3. Nothing in the foregoing shall be construed as depriving the Legislature of the right to levy a Hj)e('ial tax on peddlers, auctioneers, brokers, hawkers, merchants, commission merchants, showmen, jugglers, inn keepers, grocery keepers, liquor dealers, toll bridges, toll roads, fer- ries, insurance, telegraph, and express interests or business, venders of patents, and persut,on the contrary, were deairous of his election, and are well satisfied with falm ss a memt>er of this Conrention, as we are informed and believe. He is a gentleman of high character, of learning and abitltr, of Judicial experienoe,and in every way well rllifled to nuikea useful member. Theobjection to him comes from a polDt remote m his constituency, and without a suggeetion of unfitness in aoy respect. Is based upon a narrow literal and technical construction of section sixteen, of article six, of the bute Constitntlon Thii declares Judges of the District Courts to be " Inellgitite to any other office than a judicial nfflce duilng the term for which they shall have been eleiteil " As Mr. Fawcett is the Judge of the IHstrict Court ot the Finrt Jadi. cial iistrict of the State, and was such at the time of his election aa a member of this Convention, it is claimed that be was ineligible, and not entitled to retain kls seat. It i« manlfeat to the nndenlgned that thi* Is not a correct view of the snl^ect. We are satisflrd tliat a membership of this Ounvention is not an offloe in the sense in which that term is used in the Constitution ; that a broader and more extended view must t»e taken ; and that to hang upon the letter hen is emphatically to hang upon the bark ; that to be literal is to be wrong. The Omstitution, as It Is, creates A form of State government complete in itaelf. Under it the State was to he organ- ized, officered, and launched into operation. It did not anticipate what should be done under a succeeding Constitution, but provided fur its own practical working. Its great fundamental principle was the distribution of the powers of gDVerameat into three separate departments — the executive, leglslatire, and Judicial — ooaflning each to its own sphere. There were to be a largv number or offices, each of which at once took place in its separate department. As long aa that Constitution sbonid last those offices would last, and it was in view of that (act that section sixteen of article six was adopted, rendering Jndgea ineligible during their terms to any ofike in the executive or legislative department. This covered the usual ordinary and necessary workings and instrumentalities of the government under that Gonstitntioa. It kept the Judge from using his high Judicial (hnctions so as to advance him In tlie executive or legislative department, leaving him, however, free to seek advancement from a inwer to a higher judicial position. But when we come to the question of a new Constitution, we have something effecting the most radical change poaiible. The old things are to pass away, and new ones take their place. A Constitutloiial Convention is, therefore, an unusual, rare, and merely occasional instrumentality of the government, and of brief existence. It is not one of the three great departments of government which are cr«.ated for every-day operations, and is not to be thrust into the ranks and limits of one of these three divisions, and take its place either as executive, legislative, or Judicial. The Oonstitutionai Convention outranks them nil ; it is their creator, and fixes limits tu their spheres of action, and bonndaries lo their powers. It is occasional, exceptiooal, brief, and peculiar. It repreaents the people in their primary capacity, and forms the organic, fundamental, and paiv mount law of the State. Its members are mere agents or delegates of the people, and they have no power to adopt or create, but, at moet, can only propose ana present to the people a draft of a Constitution fur their adoption or rejection. To confband, therefore, the functiona and duties of a uemtwr of this rare and exceptional body for the formation of a new orgaoic law with those of an officer under the every.day working of an existing system, ia In our minds to commit a manifest error. It is to confound the architects and builders of a grand edifice with the people who subae- aneutly occupy It; or the (bundryman and machinist who build the engine with le engineers and firemen who subsequently manage it. When we examine the framework of the ConsUtntlon Itself, we find It divided into articles, under which are systematically arranged the offices pertaining to each division, and their qualifications. Article four covers the legisktive departuenl: article five the executive, and article six the Judicial. In none of these do we flod any reference to members of a (jonstitutional Convention. Such Conventions are only referred to in article ten, a distinct and separate part of the Constitution, thus isolating this subject from those portions appertaining to the ordinary and every-day operations of the government. This article ten is aa broad as can be; no test of eligibility Is given ; no qualifications are prescrit>ed. The only limit is, that **snch Convention shall consist of a number of membera not less than that of both branches of the Legislature." From this it would seem tltat the people were left free to select whom they pleaaed. The statute under which the Convention was called is likewise free from any limitation or restriction in this regard. The common practice of the people of the Dnited States is-in accordance widl th* views here preeented. Mr. John Howard Hlnton, in the second volume of bis His- tory and Topography of the United Slates (pages 324 t..- 327 ), treats of OonslitntioBal Conventions, and, among other things, says: "The constitnancy who chooae tk« delegates for a Convention is almost always the same constituency who dioese As members of the Slate Legislaturo ; but it aeems to be open to discretion to make this occasional constitnancy even more extensive. A great peculiarity, however, cC the character of Conveutiuns is, that the delegates may be inilividuals firom any class, including the ministers of religion, the Governor, and other public fhnctioDariea, and the Jndgea. In this point the reader will be struck with the rssamblance it bears to Ihe Kngllsh county meetings, whore peers and commoners, and clergy and all other men assemble to deliberate on an\ public coQcerna. Both Institutions, indeed, are traccsible to a common Saxon stock.^* In Virginia the Governor of the State sat sido by sMe with John Manball, both delegatee in the ConsUtnUonal OonvcnUOD of that SUta^whllst the latlar was hoU- Digitized by VjOOQ IC Oct. 22, 1878. OF THE CONSTITUTIONAL CONVENTION. 173 lag Ott exiUted pMttton of Chief Joatica of the Supreme Court of the United Statea. Other (lutineuiHlitHl olBcera were llkewljie delegatee to the nune ConTentlon. In the Illinois r>ouT«ntiun uf eiicliteen huiidt-pd and sixty-two. Judge O'Helreny vuftdflegAte and had been Judge of one of the Circuit Courts within one year prior to his election as dflegat^. The Constitution of that Htnto prorided that the Judges of the Supreme and Clnrult Ctnrta should not l>e eliKlble "to any other office or public trust of profit *' in that State or the United StatM) during the term for wliich they were elected, nor for one year thereafter, and that all votes lor them lor surh "other office or public trust of profit" should be void. Mr. U'Melveny'e competitor contestnstitution. Article III of our Constitution Is borrowed ftom the Constltntion of Iowa, and the Sopreme Court of that :3tate has held that under that Article one man may exercise the duties of Mayor of a city and Justice of the Peace, as the ofllce of Mayor la not a State office. Santo vs. Ths State of Iowa, 2 Iowa, 220. The Constitution of Indiana provided that, ** No person holding a lucrative office or appointment, UT.der the United States or under this State, shall be eligible to a seat In the General Assembly ; nor shall any person hold more than one iuciattve ofilce at the same time, except as in this Constitution permitted," etc. The Director of the State Prison, which whs a lucrative office, was also a Council- man of the City of Madison. The Sopreme Court of Indiana hold that the office of Coancilman was a lucrative office, and though literally it fell within the clause of the Coostttntton referred to, It was not a State ofllce, and that the Constitution only lefecred to oflBcss provided for under the State Government. See the SUte ex rel. Pbitt vs. Kirk, 44 Indiana, 405. We therefore respectfully submit that the Honorable Kugeno Kawcett was eligible at the time of bis election, and Is entitled to retain his seat In this Convention. October 21 tt, 1878. & H. WILSON, Chairman. V. E. HOWABD. W. J. GRAVES. HENRY EDGEBTON. D. 8. TEBRT. JOHN A. EAGON. ALEX. CAMI-BELL. W. L. DOOLEY. T. H. LAINK. P. DUNLAP. 8. O. HILBOHN. P. B. TCLLY. GEO. VENABLESUITH. GEO. STEELE. I. 8. BELCHER. M«. WILSON, of San Francisco. I move that it be printed out of order, and made the special order for Thursday next, immediately after the reading of the Journal. The motion prevailed, and the matter van made the special order for Thursday, October twenty-fourth, immediately after reading the Journal. Ma. BLACKMEB, from the Committee on Future Amendments, made the following report : Mr. Pscsidsnt: Your Committee on future Amendments beg leave to return document number one hundred and nine, relating to female suffrage, «nd to suggest that the same be referred to the Committee on Right of Suffrage. Yours respectfbily, E. T. BLACKMEB, Chairman. The document was so referred. Mr. LARKIN, from the Committee on Privileges and Elections, made the following report : Ha. PaKSUBifT: Your Committee on Privileges and Elections have had the fol- lowing propositions under consideration, and report as follows; That proposition number forty-four, Introdnced by Mr. Turner, bs Indefinitely postponed ; also, propo- sition number twenty, and recommend that it be referred to the tJomralttee on Suffiage; proposition number one hundred and ninety eight. Introduced by Hr. Freeman, recommend that It be referred to the Committee on Apportionment and Rspreaentatlon : proposition numtwr three hundred and ninety-six, by Mr. Lavigne, nA recommend that It be referred to the Committee on Lesislative Department: propQsillon number one hundred and forty-five, and recommend that It b« referred to the CDmmittse on Suff^e. LABKIN, Chairman. Thu president. The first report will go to the Committee of the Whole Convention, and the others oe referred as recommended. BISOLtTTIOXS. Ms. CAKPBELC offered the following: Boohed, That the President of the Convention be requested to appoint two Co; y- ISC iSeflcs, whose duty it shall be to keep such papers and documents as may be resulted to be kept by the committees of the Convention which are not auth. rlzed to employ clerks, and that such Copying Clerks receive as compensation the sum of five doUars each per diem while so employed, to be paid out of the appropriation for ths expeosea of this Cunvsntioii. Vm. CAMPBELL. I move that the resolution be referred to the Oommittee on Mileage and Contingent Expenses. The motion prevailed, and the resolution was so referred. Mb. TINNIN offered the following: ffaolved. That the resolution now on tho table. In regard to ths pay of James Saultry, be taken up and referred to the Committee on (Contingent Expenses. Adopted, and the resolution so referred. PR0P08ITI0KS AND KI80LUTI0NS RBtATISO TO TBK C0N8TTT0TI0N. The following resolutions and propositions, relating to the Constitution, were introduced: ON BorcATiox. Mb. smith, of San Francisco, introduced the following proposed amendment to the Conslitutiun : Abticlb — . Section — . No teacher. State, county, township, or district school officer shall ever be interested in the sale, proceeds, or profits of anjr books, apparatus, or furniture, used, or to be used, in any school of this State, under sueh penalties as may be provided by the Legislature. Referred to the Committee on Education. DBCI.A RATION OV BIOBTS. Mb. SCIIELL introduced the following proposed amendment to section nine, article one, of the Constitution: Section — . Every citizen may freely speak, write, and publish his. sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or the press. In all trials for libel, both civil and criminal, the truth of the matter allezed to be libelous, when published with good motives and for justifiable ends, shall be a sufficient defense to the person charged. Referred to the Committee on Preamble and Bill of Rights. BBLATINO TO THE CKIVKBSITT. Mb. WEBSTER introduced the following proposed additional section to article nine of the present Constitution, relating to the University : Section — . The Lniversity of this State shall be under the control of a Board of Regents, composed of fifteen members, two of which shall be elected from each Congressional District, by the qualified electors thereof, in such manner and for such time as the Legislature may, by law, provide. The remainiug seven shall be ex officio members, and the (Governor, Lieutenant-Cjovemor, Superintendent of Public Instruc- tion, Speaker of the Assembly, President of the State Board of Agricul- ture, President of the Mechanics' Institute, and Superintendent of Public Instruction for the City of San Francisco shall, by virtue of their office, be the aforesaid ex officio members. Referred to the Committee on State Institutions and Public Buildings. ON BEVENUI AKD TAXATION. Mb. STUART introduced the following proposed amendment to the Constitution, in reference to revenue and taxation : The following provisions shall be included in the Constitution : First — The State tax on property, exclusive of tax necessary to pay any debt of the State now existing, shall not exceed forty cents on the hundred dollars on the valuation. Second — No county, city and county, city, or municipal corporation, shall impose any tax exceeding thirty cents on the hundred dollars, exclusive of the tax necessary to pay any debt now existing in said county, city and county, city, or municipal corporation. Referred to Committee on Revenue and Taxation. IN BELATION TO IMBEZZLKMBNT. Mb. THOMPSON introduced the following proposed amendment to the Con-ititution, in relation to embezzlement: Section I. Every person holding office in this State, be it township, municipal, county, or State, shall b« held amenable for all money or property that may come into his hands or under his control, and in case of his appropriating or converting to his own use any amount under one hundred dollars, shall be guilty of misdemeanor, and upon conviction thereof be shall be fined in the full amount so appropriated, and impris- oned in the county jail for the term of six months. And for any sum exceeding one hundred dollars and under one thousand dollars, he shall be deemed guilty of felony, and upon conviction thereof he shall be imprisoned in the State Prison not less than three nor more than five years,and in addition thereto pay a fine in the full sum so appropriated. And in all cases where the sum so appropriated shall exceed one thou- sand dollars in value, the penalty shall he imprisonment in the State Prison not less than ten nor more than thirty years, and in addition thereto he shall be lined the full amount so embezzled or appropriated; and he shall forever be disfranchised and ineligible to hold any office of profit or trust in this State in each and every case above enumerated. Sec. 2. Any person lu the employ of any incorporation or individual in tbis State who shall control or receive any money or other valuables into his custody and shall approjjriate any sum not exceeding one hun- dred dollars, shall be deemed guilty of misdemeanor, and upon convic- tion thereof he shall be imprisoned in the county jail not less than one month nor more than three months, and he shall pay a fine in addition thereto of the full amount so taken. And for any amountexceedingone hundred dollars and less than one thousand dollars, he shall be deemed guilty of felony, and upon conviction thereof he shall be imprisoned in the State Prison not less than one nor more than three years, and fined in the full amount so appropriated. And for any sum exceeding one thousand dollars, he shall oe imprisoned upon conviction thereof m the State Prison for not less than three nor more than ten years, and fined in the full sum so appropriated. Sec. 3. There shall he appropriate legislation to enforoe the above provisions. kduu*^ Digitized by Google ,174 DEBATES AND PROCEEDINGS Wednesday. IN RKOARD TO JCRIKS. Mb. CAPLES introduoed the following proposed amendment to the Constitution, in regard to juries: Article — . SxcTioK — . Grand juries shall be oompoi>ed of seven jurors, and the concurrence of five jurors shall be sufficient for the finding of a present- ment. Sec. — . Trial juries, in all cases, whether civil or criminal, except in cases where, upon conviction, the penalty would be death, shall be com- posed of five jurors, and the concurrence of three jurors shall be suf- ficient for the finding of a verdict. Sue. — . Trial juries, in cases where, upon conviction, the penalty would be death, the jury shall be composed of seven jurors, ana a con- currence of the whole number shall oe necessary to the finding of a verdict. Referred to the Committee on Judiciary and Judicial Department. RRLATIVR TO TBR LKOISLATURR. Mr. WELLER introduced the following prop<>8ed amendment to the Constitution, in relation to the Legislature : That all bills should be presented and printed within fifty days after the organization of the Ijegislature, to the end that their provisions may be known in the loe entered on the Din- iiiee of tlie CanvenUon." McFARLAND. RKS0LCTI0N8. Mr. O'DOKNELL offered the following: Raolrxd, Tliat it ie the sense of thie Convention tlwt, nn^er the Tedenl Ooniti- Intlon, the JudicimI power of the United Statea extends to all caaei ailecliag ttie Talldity of trinities with foreign natioos. RaolMd, That the Attomejr-OenenU l>e requested to InsUtute proceedings Moo- sarv to obbtln from the United Statee a decision in reepect to the validity of die fifth, ilxth, and leTenth articlee of the Burlinnme treaty, or 80 much of nidailidas u recognixM or concedM the eligibility of CbinaM lultjecls to Americaa dliteuUp. Referred to the Committee on Chinese. Mr. BARBOUR offered the following: Ktmlvtd, That'the Aaieaaor of the City and Conn^ of San Trandsoo be reqgeiled to f^miab to this GonTentlon information upon the following points: J/'irtt — Wliat was the amount of the aneeament npon mining stock in the Cftyu^ County of San Francisco for the laat flscai year; Srcond—yfbM waa the amount of the aiBMments on ehnrches, and the land oa which erected, in that city and oonnty for the last Hsoal year. The resolution waa adopted. ADJOURNMENT. At eleven o'clock and fifty minutes a. m., the President declared the Convention adjourned under the rule. TWENTY-SIXTH DAY. Sacramento, Wednesday, October 23d, 1878. The Convention met in regular session at ten o'clock a. m.. President Hoge in the chair. The roll was called, and members found in attendance as foUows: Andrews, Ayers, Barbour, Barry, Barton, Beerstecher, Belcher, Bell, Biggs, Blackmer, Boggs, Boucher, Brown, Burt, Campbell, Caples, Casserly, Chapman, Charles, Condon, Davis, Dean, Dowling, Doyle, PRESENT. Evey, Farrell, Fawcett, Filcher, Finney, Freeman, Freud, Gurvey, Glascock, Gorman, Grace, Graves, Gregg, Hager, Hale, Hall, Harrison, Harvey, Heiskell, Herold, Herrington, Hilbom, Hitchcock, Holmes, Dudley, of San Joaquin, Howard, Dudley, of Solano, Huestis, Dunlap, Hughey, Eagon, Hunter, Edgerton, Inman, Estee, Johnson, Estey, Jones, Joyce, Kelley, Kenny, Keyes, Kleine, Iiaine, Lam peon, Larkin, Ijarue, Lavigne, Lewis, Lindow, Mansfield, Martin, of Alameda, Martin, of Santa Croi, McOallum, McComas, McConnell, McFarUnd, McNutt, • Miller, MiUs, Mofiat, Morekind, Morse, Murphy, Nason, Nelson, Neunaber, Noel, ^^^ O'Donnell. Digitized by VjOOQ IC Oct. 23, 1878. OP THE CONSTITUTIONAL CONVENTION. 175, Ohleyer, O'SalliTan, Orerton, Porter, ProDty, PuUism, Beddy, R«ed, Reynolds, Rhodes, Ringgold, ScbeO, Scbomp, Shafter, Shoemaker, Shurtleff, Smith, of Santa Clara, Smith, of 4th District, Vacquerel, Smitb,of San Francisco, Van Dyke, Soule, Van Voorhies, Stedman, Walker, of Marin, Steele, Walker, of Tuolumne, Stevenson, Webster, Stuart, Weller, Sweasey, WeUin, Swing, Weet, Terry, Wickes, Thompeon, White, Tinnin, Wilson, of Tehama, Townsend, Wilson, of 1st District, TuUy, Winans, Turner, Wyatt, Tuttle, Mr. President. Barnes, Crouch, Strong, Berry, McCoy, Swenson, Cowden, Rolfe, Waters. Cross, LKATI OP ABSIKCI. Indefinite leave of absence was granted Messrs. Crouch and Berry; and leave for five days was granted Mr. Strong. Joomal of yestenfay read and approved. LOCAL OPTION. Mb. SCHELL presented the following petition, signed by numerous dtisens of Stanislaus County : We, the undersigned, citiiens of this place and vicinity, believing it to be in accordance, and in harmony with the democratic principles of oar Government, would earnestly petition the Constitutional Convention, now soon to be in session, for the insertion in the new organic Act or Constitution, the following : SicTiON — . The Legislature shall, at its first session, enact a law whereby the qualified voters of any county, voting precinct, town, or city, by a majority vote, from time to time, may determine whether the sale of intoxicating liquors shall be prohibited within the prescribed limits. 0B8IBTAKCK OP 8D8DAT. Ms. HA6EB presented the following petition, sigued by many citizens of California : Th« nodentcoed, dtiasns of the Stat* of California, napectfUUjr and argently nqnmt the delegataa constitating the ConveDlion authoriiM to prepare a Oanatltu- tloo for Bid State, to retain in said Constitatian section Umt, article one, of the Mffle, and to add to Mid section a provision declaring the Sabbath day, or Sunday, a dtrofrerrt. 008T OP PKINTIHO. Tbi president presented the following communication from the Superintendent of State Printing : OrricE or SoraaiaTSHOMT or Stats FaiaTiaa, ) October «3d, 1878. / Ma PatsmiHT: In compliance with a resolution puMd b; jour honoiable bodj, leqaestlog a statement as to the cott of printing ordered bj the CooTention, 1 h«Te the honor to ivport that the total coet, up to and including the nineteenth Initant, uooQDteto one thonsand. three hundred and eighty-nine dohan and sixty-three ceali. BeveetfnUy submitted. T. P. TH0HP80N, Superintendent of State Printing. The communication was laid on the table. COMMUKICAnoK PBOM TBB 8B0BITABT OP BTATB. Tax FBESIDEKT presented the following communication from the Secretary of State : Statx or CAuroBKiA, Dipabtiixiit or Stats, ) SAcaAKSKTU, October 22d, 1878. / To Hon. J. P. Hoge, Prealdent of the GonstitutioDal Uonvention : I>1AE Sia: Kecently the honorable Convention over which yon have the honor to pniide jMUsed a resolution asking for infonnation as follows, to wit: i'irit — The nnmt>er and daasiflcation of corporations other than mnniclpal now exiiting In the State of Uslifomla and formed under the laws of this State. Smmd — The aggregate amonnt of the capital stock of ail said corporations, and the a^^gregate amount of the capital stock of each class ther.'of. Third — A detailed statement of the principal places of business and location of offlcee of all said corporationa AwtA — A detailed statement of the amount of capital stock actually paid np by •11 aaid coipofatians. I SMtt respeetfaily call yotir attention to the obvioas thct that the foregoing reso- Intlon calls for ail the Infbrmation contained In the record, and also for information Dot In the records of this office. In reaponse to the resolution, and not intending any disrespect Ut the ConvenUon, or any evasion of its demands, I had the honor t*> forward, as the only adequate compliance, the ftill record of the infonnation aaked tor. I most respectfully represent that this action was the only coarse left me, since the clerical force at my disposal was not adequate to the task of making a complete tiaiiacript of the record in time to be of any service to the Convention, even if by so liohig the information aongbt could be obtained In view of this lact the original nootd was courteously placed at the disposal of the Convention. It is a matter of ■cat iiucere regret tiiat this action has l)een miacunstmed by the honorable gentle- nan who ottered the reeolutioa of Inquiry, and that he and two others have seen fit to charge aie before the ConvenUon — when I had no opportunity to reply — with an intentional disrespect to that honorable body. 1 Iwg leave to assure you that no •sch dlsrsspeot was intended; nor can I see, in the action had, any JusUflcation for the charge. The (>jnT*Btli>n asked for all the Information In a certain record; the original of Aat record was promptly and eonrteously forwarded. I tall to see how the trans- ■iaioa of any record in this oiHca can b« tortured into an intentional insult to the t^Qovsntlon ; aad sinoe this action is the full extent of my offending, I most respect- folly protest sgalust this gross misconstruction of my motives. If the rssponse made 1? »e wss not snScient, or if thrmigh any misapprehension of the request of the "BanaUan I arrsd la forwarding the original record, I should most gladly have '1 say iBfonaatioa of my error, and then, as now, would have been most happy to foctlltate the deliberations of that honorable body with any offlclsl Infor- mation desirable from this office, or any official courtesy or personal service within my power to beiitow. Until otherwise informed or convinced, I most reeiiectfully but firmly maintain the adequacy of the response made by me, and as reapectfttily and firmly discbdm any intention of disrttepect to the Convention. As to the cliarge that my action was an indignity to the people of California, I have only to say that I am of oplulon when an officer does his duty to the best of his al^llty and preserves his own dignity, the people of California will find but little fault witli him. Hoping that this will receive at your hands that consideration which by reason of Its candor it is entitled to, 1 have the honor to remain. Tour obedient servant, THOMAS BKGK, Secretary of State. Accompanying the above was the following; I have the honor to acknowledge the receipt of another resolution upon the same Hubject as the formtr, passed by the Convention on yesterday, to which I shall be most happy to reply at as early a moment as possible. Tub PRESIDENT. The communication will lie on the table. Mb. hale. I desire to say one word in connection with the commu- nication from the Secretary of State which has just befln read; not to deal with its subject-matter, because the Secretary of Slate says, as I understand the reading of it, that he proposes to make a further report in answer to the resolution of this Convention adopted yesterday. But he says, as I understand the reading, that the author of the resolution, evidently alluding to me, imputed to him motives of disrespect to this Conventiou. I beg to say that I made no such statement consciously, and I have this morning looked over the report of the remarks made by myself and other gentlemen, and I fail to find any record of any such statement made by myself. I disclaim an^ such motive or feeling. My motive in offering the resolution was to bring before this Convention the information sought to be obtained, and to ascertain whether it was the sense of the Convention that the Secretary of State had properly com- plied with the request contained in the original resolution, all of which IS duly expressed in the resolution adopteayesterday. Mr. BLACKMER. I presume that the coininunicntion from the Sec- retary of State includes me as one of the two to whom he refers, besides the author of the resolution, as imputing to him motives that the com- munication from him could not warrant. I have siiuply to refer to the remarks that I made, and I call the attention of the Convention to this, that the only remark I made about the Secretary of Slate was to say that either he bad mistaken the purport of the resolution, or he had mistaken the temper of this Convention, and I see no reason, sir, to recall that statement, because I believe it is a true one. He made one mistake or the other. I referred to the Secretary of State in no other part of the remarks that I had to make. THE CASB OP JVDOB PAWCBTT. Mb. BEERSTECHER. I have here a minority report of the Judiciary Committee, in relation to the case of Judge Fawcett. I ask that it may be printed out of its order. So ordered. The report was as follows : Mr. PaiaiDsin: The undersigned, a minority of the Committee of the Judiciary, to whom waa referred the subject ol the eligibility of the Hon. Kugene Fawcett to a seat in this Convention, finding themselves unable to agree with the majority of such committee, make this minority report: It Is admitted, that the sitting member whose seat is contested was at the time of his elecUun, and Is now, Judge of tlie District Court of the First Judicial District of (California. We think this fact reuders hlni Ineligible to a seat in this Convention; and we furiher think that this result is distinctly required by the present Constitu- tion and the reasons which underlie It. The right of the sitting momber lias been put: Ist, upon the general gronnd that conventions are revolutionary bodies, and, that In their creation the people are emancipated from existing laws by which they are controlled in all other affairs, and that the Convention Itself is possessed of power to dlsregald all rules but Its own will ; 2d, that the Constitution now exlsUng, allow- ing it to furnish the rule of Judgment, sustains his claim. As to the first ground, the language of the claimant himself, altliough somewhat gnarded, may be accepted as a fair statement of It lie claimed tlwt this was in no sense an office within the meaning of the Omstitntlon. That eveu If it was, the people liad a right to say who should represent them In the Convention to frame an organic law. That If the people of one generation had a right to dictate to the people of the next, they bad a right to say how and what they should do ; and we would virtually have no power to alter or amend the organic taw. In the cursory examination of the mi^oritT report, the same proposition is in equivalent terms. To a doctrine so unfounded and so dangerous, the undersigned express their unqualified dissent. The people of this Republic, with all their Junil relation, constitute the State. The Government la that agency both of power and officers by which the business of the State is elTectuatud. That the people can assemble in any place, or In any mannel which caprice or convenience may direct, for consultaUun, and to concert action for petition or otlier methods of procedure for change of their legal relaUon to the State, or to each other, disturbing In no manner the public peace, may be safely conceded. That they may follow this up by conven- tions to the same enj statute the election of delepitf* to tbli iNMly. It wu hrld, and tho penuoe et«>ctt^ prM^nilng tbciiiiielvc« hpFf, at till- liuur Bt*t by ihr LeglMlAturc, wore organisnl by ttio dp^i^ nated autliority, Hud t(Kjk an uaih to BupiMjii tho Cunatltution of tbi* Stnt*-, and tti dinchargti the offlce of delegate. After all thla, in pirwncv of elfmi-nbi of disorder, which tlireatt-n deatnicUun of all coDK«*r\'atidni, tho undentigiiedrannutponnittheni' selvoD tu be ntyled rerolutionUfa, nur this txxly, as one iK"url"K coiisUtntions and all legal forms, limitations, and nstraiuts, witbuut entering tbeir soifuia protest and dissent. This doctrine of ihe soTerclgnty of the ConTontlon was expr««s y denied by tbe founders of the Kational Coniitltution Mr. Wilson, of Punnsytvanla, of whom it is said, bo was one of the profoundrot Jurists onr country hits ever pnKlnced, said in regard to the power uf tbe Convention : ** I conceive myself anthorixed t*» con- clude nothing, but to be at Ultcrty to pn>pnse anything" This doctrine received the concurrence of Qovemor Randolph, of Vir^iiiia, Janies Uadison, Mr. Paterson, of New Jursey, and of the Convention. Tbe indejH-ndence of the t'unventtim and Its sovereignty was asserted by Mr l>ana, of I*cnM*iylTni la, in eichtiM'n hntidred and thirty-six. lliii was fullowed up in an Illlnolii Convention in elglit<-en hundred and forty-seven, and Btl'l later, in Kentucky and MaHMcfausetts, In eightu*'n hundred and fifty>three. To those wlio desin* Ihe restatement and adoption oi this theory, tho tnicing of these atteinpti to ful^t this doctrine ution C^iiiittitulionHl Convention'*, down tu tbeir ad->ptiou, in efr(H:ting the actual withdraWHl of eleven Stiites of this Union from their allrgianco to It, will be, if not a pleasant, «till a most Instructive employment. Tbe undendgned have no wish fur such rc«talement, nor for any further experience founded upon it. We |>er8untle ourselvpii, how«>ver, that this Convention will reject all such vagaries, and will not accept tbe ofllce, nor under- take to proceed upon the theories, nor to any extent discharge the functions of a revolutionary Convention, and that It w ill leave the claim of tbe sitting member lo stand or fall ui^on the Constitution alone. Every one must be aware that (\>nittitutlonB owe their maxims and existence to the abusi*s rt-sulting fh>ni the too groat concentration of power In few or tingle hands- This ldt>a was wo fully conceded in the act of creating the re4leral Cimslitu* tlon, that the only question largely debated was from which of the departments Into which govemmeot was resulvvd was it that moat danger was tu be appre- hended. In the country from which the first r4donlsts came, for many centuries the Judges had been the personal advisers of the Crown. The duties they discharged were often of H political chamcter. In the :ont(Mt with tlie Colonies, they were, many of them at least, the enemies of the ('ohmists. America was smarting under Indignities advisoil by the Judges and thanct-lKusof Kngland. It was in view of this historical fiict that American statesmen, In diiitriltntlng the powerv of government, nnderbtok at least to Hrparato them tiy insurmountable l«rriera. Especially was the Intention uiHnifesttHl of cutting off the Judicial from all junction, overlapping, or intermingling with any other depariment of gov- ernment. In sliort, we believe ihnt a Judge U furbiddon to periurm or in any way U* represent any function of a pnblic character, during the term for which he was electen and autliority. It must be borne in mind llint constitutional qneatlons are not to be paused upon like those presented Id a plea in abatement or special demurrer. As to these it may l>e right to stand upon precise terms. Treaties and (Vmstitutiuns require a larger ana more comprehensive view, by which th:> true Intention of their t<-mit> may l>e sought. As to such instruments, "harrtt in Htera, harret in ctrrtice" The whole scope and purpose must be ascerrained from all tliat is in and around the fact of the creation of tbe instrument t4t be Interpreted. The Committee of the Jndiciar>- i»oem to put their resolution upon the gnmnd that the word ** office** dm-s not properly Imlicate tlie function or place of a delegate jti this Cimvontion. The language of article nix, Kectiou sixteen, is as follows: "The Justices of the Supreme Court, and tbe IMstrict C«>urt, and the County Judg(«, shall be ineligible to any other office than a Judicial ofHce during tbe term for which they shall have been elected." The committee make the wbule qnestlon turn upon the interpretation of this word ** office,** and hold that it if* not applicable to meuibership In this body. Tlic under> signed do not concur In thiit opinion, and If we did, we do not see bow it would strengthen the claJmant'« pmdtiun. Article III of the Cottiititntion declares: "The |>owers of the Government of tlie State of Califurnia hIihH be divided intj three Mcimrato departnients— the legiHlativo, the executive, and the Judicial ; and no iM>reorted In 30 Cal., ICO, we think Is an authority whi< h, accepted and lidrly construed. Is decisive of this controvi-my. Tbe ctw^ was quo warrant') t4i settle the title of the Chief Justice oi the .Supr«>uu< <*ouri to hold a seat in the IViard of Trustees of tbe Mate Library. In tbe infortuation or complaint, in Uie defendant's demurrer, In the judgment below, in the statutes, and In tbe briefs of counsel, tbe right In dispute In called an oflice. The Court nowhere call It such, nor do they allude tu Ihe designation sk affecting their decision. This went the whole length of asMrilng tb;it the Legitdaturc could not Impone upon a Judge "any other duties than tht«e of a Judicial nature.** Afler reciting tho third article above recited, the Couri quote Burgoyne vs. The Board of Supervisors of San Francisco, 5 Cal.,9. That cast*, after reference to Article VI, says : *^ From which U follows, no dittifM except of a judicial ch»rart4rr can be conferred on the Court of Sessions, inasmuch as tbe officers composing therformniice of judicUl duties.'* To further emphasize their view, tbe Court, in the main case, proceed to assign as a reason why a Judicial ofl)cer could execute no other dutie«, that ** no provision is to be found in the Contstitution expreesly directing or permitting a Justice of tbe Court tu exercise any function appcrtuiidng tu either of the aiNjvt- departments of govern- ment.** In pursuance to this larger and more cumprehonKivelnten'n-tatiun tu which we liavo referred, this Court ssy. "This provision of the Constitution, so far as It relates tu the Judicial riepartment of the State, Is, In our ju'igment, endncntly wise. One of Its objects seems to have been to confine Judges to the perionuance oif Judi- cial duties, and another to secure them from entangling alliances with matters con ceming wliich they may be callod upon to sit in Judgment; and another still, to save them from the temptation to use their vantage ground of )M>sition and influence to gain for themselves positions and places from which Judicial propriety should of itself Induee them to retrnln." Tbeik)urt then decide, "that, as the duties of a trustee do not appertain to the Judi- cial department of the government, the Clilef Justice could not execute them.** Tbe impropriety of the action contemplated in the resolutit-u reported by the com- mittee, and the Justice and oecetnitv uf tlio alxivo opinion, is decisively enforced by tbe results of its adoption. If anything is certain to be dune by this Convention, it to a remodeling of tbo Judicial department One of the propositions aln^udy iiassed niK>n by th»' Judiciary Cunimittee, and to be reported tu tbisi'onveiitioii, is the abo- lition of the Dlntrict Courts, their name oven is tu be erased f rv m the Constitution, and yet the miijority r«k>lntijn would retain a gentleman here who will be required to pass upon the ftirther existence of his otficv: and Its emoluments, and perhaps Xi* determine the result by his single vote. " No one ought b> bo judge In bis own oaoae" Is a legal maxim hitherto held tu l»e of universal application. We think further that a delegate to this Convention Is the holder of an office In Uia sense that word is uned in the Constitution. Jameson *s book upon the Constitu- tional Convention, section three hundred and twenty-funr, thus states his view: **In ray Judgment, there can be but little donbt that a member of a Convention Is, Id tb* «nUi^g;ed and proper acceptation of ths term, an officer of tb* Stat*. A Con- vention is a part of tho apparatna by wbtcb a aovereign society does its work n a |)olltlcal organism. It ii tlio sovereign as organized for the purpose of renewing or repairing the govt* rnnicutal machinery. That same soven^iicn, as organized fur the puriKMH* of making laws, ii the Le^li^lature ; as organised forthepnri>oi«of aiiplj* i'lg or carrying into efft-ct the lawn, it U the Judidari- or the exrcutive. Tbeaesoc- cetwive forms iiituwhich tbe sovereign resolvt-s itself, are but i^stcmsof organtiatioD having relation mi-re or leai dlrertly to (be government of the society. lugether ibey constitute tlie tioveniment.** Mr Wel«ter, In bis groat argument In the Itbodc Island case, adopts u|H>n this point equivalent tenu*. Tlie only cajie we have found which seems to deny the forgoing la that uf Tbt People vs. Pruvlnes, 34 Cal., AifO. It is a noticeable fact that this decisbm, as It Is called, asserts itself as an act of Judicial legislation. After reciting all tbe Osllfumia and other cases, the Oouitiay: "From them we deduce the fi>l. owing general rule, as embodying tbe law uf tbs present case as It now stanils: tbe third article of tbe Cunstltutim exercising th«< functions of either of tbs other two claasea.'* Having thus stilted tbe actual condition of tbe law, the Cuort, with an admission that it was entirely unnecessary to dlsturii that cooditii □, pn^ ceed to cwntraiit tbe aoundne^s of a long and unbroken itream of California deds* bma by which that law lud been declared, and tu overthrow, if potwlble, tbe antluiri^ of a case in which the Judge delivering the decision had been an aosucoaiAil defendant. As to tbe precise case, thrc# Judges undertook lo overthrow the opinions of fbor Judges; but oi so far as the cases snow, of all tbe preceding Judge* who had paard upon the question, oue or two perhaps excepted. Such a decision we subadt is not entitled to very favurable consideration. >or within Its own terms is it oliltgatory uiion thii btMly, which is solejudge of the eligibility uf its meniben The assertion in this case, that tbe wuni -'uffice** used in article three above cit^K], is tu be con* flneil to tlipee tn canvRNs or Judge uf the merits of the sitting member, nor tbe Ikct that there is no technical contestant. We agree, that If tlie wiidi of tbe voters, whose snlTrsges sent Judge Kawcelt here, can be gnitifled under apruperconstructiunof the existing Mtate of the i ouKtitution. It should be dune. Having C«Ued to reconcile onnelvos to this conrliision, we dissent from the report of the nii^rity, and reoommeuced tbe adoption of tlie accompanying resolutions. J. McM. SHAFTER, BDW D. BARBY, C. J. B££BSTfiCHEB. KKW BKPKBENCB. Mr. RK£D made the following report: Mr. pRRSinRNT: Your C^immlttee on Agriculture, Hannfiwtnrra, and Commerce, to wh>m was reffrrod amendment number thirty-eight, relative to taxation of ves- stds, re|H>rt llie same back and ask that It be referred tu the Cummitlee on Revenue and Taxation; also report back amendment numbt-r sixty-three, with tlie rsooek' uiendation that it l>e referrt^d to tbe Committee on Water and Water Rights RespectAilly, CUARLGS V. REEB, Chairman. PL'RTHRK TIUB. Mr. EDGERTON. This is the day fixed, by an order of this Con- ventioiif suspending the regular order of business, more than a we«k ago, upon which committees were instructed to report* On behalf of the Committee on Revenue and Taxation, I desire to report that oom- inittee has held daily Posaious since that order was passed and is able to report progress, but that it is unable yet to report a plan. This plan will verv soon be perfected and ready to submit. Ask for further time. Thk f»RESIDENT. If there is no objection, further time will be granted. Hearing none, it is so ordered. Mr. van dyke. 1 have to state tliat we haTO agre»d upon a drift of a Preamble and Bit! of Rights, but have not bad time to have it enCTosseil. We ask for further time until to-morrow, Thr PUEvSIDENT. Ko ordered, if there be no objection. Mr. E.STEE. The Committee on Corporations have had under con- Pitteration the quotations arising in that department of the Ooni*titution ever sim>e its organization, have met daily and been in session a good many hours each day. They are not entirely through, but will be in a very short time. We ask for five days further time. Thr PRESIDENT. So ordered. Mr. TIXNIN. I see that nearly all of the committees are unable to retH>rt at this time. 1 move that one week further time be granted to alt committees. So ordered. KSW rkprrbkcb. Mr, ESTEE, from the Committee on Corporations, verbally reported back amendment number thirty-seven, introduced by Mr. &teaman, with the recommendation that it'be referred to the Committee on Mia- eellaneoup Subjects. 1 1 was so referre)nventlon on Correspondence, wbioi Is dune by him by order of the Convention. Mr. BARBOUR. I intn>dnced that at the request of the Secretary, who says that when we send for any information he has no postage to par for it. That is all. Mr. BLACKMER. I stig^st, that under the rule, that should go to the Committee on Contingent Expenses. 8o ordered. PUIKTINO THR JOURNAL. Mb. holmes off*ered the following: Rrxotvtd, That tbe Committee on Bouurting and Printlnjc be and la hereby ins! mctetl and required tu Inquire into and report at an early day to this Conrsa- tion, by restdution or otherwise, tho expediency and possible cost of traa*crlbin(, indexing, and printing the Jonmal uf this Convention. Referred to the Committee on Reporting and Printing. DBOLABATION OP BIoaTS. Mb. DUDLEY, of Solano, b^ leave, introduced the following pro- posed amendment to the Constitution, relatu^e^o declaration of ngnts: Digitized by V^jO Oct. 23, 1878. OF THE CONSTITUTIONAL CONVENTION. 177 Shttiok — . The public officers of the State Government, and all manicipal governments farmed thereunder, which Bhall be filled by appointment from the Governor or other authority, are public trusts, to be created and administered solely for the benefit of the people; and to make the tenure of said offices de}>endent on the ascendancy of any political party or any private interests is a gross perversion of power. Bead and referred to Committee on Preamble and Bill of Righte. IXICVTIVC OCPARTMKKT. Mr. DUDLEY, of Solano, introduced the followini; proposed amend- ment to the Constitution, relatlre to the manner of fillmg public oflSces, and the tenure thereof: Amend sections six and seven, article eleven, of the Constitution, as follows : Sbc. t. All officers whose election or appointment is not provided for by this Constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the L^slature may direct. All appointed officers of the State Govern- ment must be appointed hj the Governor, save such clerks or other fubordinate officers in commissions or departments of the State Govern- ment charged with handlin;; public funds, for whose faithfulness the official head of such commission or department may be personally responsible on bonds. The appointment of such designated clerks or subordinate officers tnay be vested in their immediate official superiors, if the Legislature so directs. No office shall be filled bv appointment of the Legislature, or either branch thereof, save the offices of its own body. Sic. 1. When the duration of any office is not provided for by this Constitution, it may be declared by law ; but all officers of the State government filled by appointment shall be held during the pleasure of tlie authority making the appointment; provided, that the Governor shall not remove any officer without immediately communicating to the Senate (if the Legislature be then in session) an explicit stAtement of his reasons for making such removal, explaining why he deems it a further- ance of the public good; and if the Legislature be not in session at the time of making such removal, said statement shall be communicated within ten days after the beginning of the next succeeding regular or special session. In case of a Governor retiring from office before the beginning of the session following a removal from office, he shall, before the expiration of his term, place on file in the office of the Executive Department the required statement of reasons for removal, and such statement shall, by his successor, be transmitted to the Senate within the limit of time before specified. Read and referred to Committee on Executive Department. COLLECTION OP TAXES. Hs. ATER3 introduced the following proposition to collect taxes in installments : Section — . The Legislature shall have the power to provide for the oollection of taxes in installments, by requiring the Treasurers to issue coupon receipts to each taxpayer for one twelfth, or any greater propor- tion, of his total annual tax, the same to be taken up at the option of the taxpayer in gross or in such installments as the law may fix. Bead and refen^ to Committee on Revenue and Taxation. CAPITAL AND LABOR. Ml. OOKDOK introduced the following proposed amendment to the Constitution, in relation to capital and lalwr: Section — . Transportation may be done, and supplies obtained for the State, by contract, but only with such persona, firms, or corpo- rations, as employ no alien labor. Public work of all description, including builaings, roads, bridges, aqueducts, wells, and waterworks of every kind, to be constructed or repaired by or for the State, or by and for any county or municipality thereof, shall not be constructed or repaired by contract; but the State, county, or municipality shall pay directly to the laborers employed thereon such compensation as may be screed on, and no alien, or person employing aliens, shall be employed thereon, or entitled to compensation for any labor he may perform thereon. Sec. — . Eight hours shall constitute a legal day's work, for all work done by the State, or for any county, town, or municipality therein. Sec — . The above sections shall be enforced by appropriate legisla- tion. Bead and referred to Committee on Labor and Capital. BELIOIODS LIBSBTT. Me. BEEBSTECHER introduced the following proposed amendment to the Constitution, relative to the Declaration oi Rights: Section — . The free exercise and enjoyment of religious opinions and worship, without discrimination or preference, shall forever be allowed in this State; and no person shall be rendered incompetent in any manner, nor shall any person ever be questioned and forced to toiwer any qurations concerning or on account of opinions on matters of religions belief; but the liberty of conscience hereby secured shall not be •0 construed as to excuse acts of licentiousness, or justify practices incon- Bstent with the peace or safety of this State. Ko law shall ever be enacted by the Legislature making it unlawful to do on any day that which may be lawmlly done on any other day. ' Bead and referred to Committee on Preamble and Bill of Rights. taxation. Mb. BEERSTECHER introduced the following amended amend- ment— number three hundred and nineteen — relative to taxation: LiqUOB TRAFFIC TAXATION. SiCnOR — . The business of manufacturing and selling intoxicating Ikpiors of every name and nature shall be subject to legislative regula- tion, by general laws having effect throughout the State; but this shall 23 not be construed as giving to any Legislature the authority to enact pro- hibition laws, or delegate the power to enact prohibition laws to any political division of this State. The Legislature shall provide for an annual tax to be imposed upon intoxicating liquors, to be paid by every person, copartnership, company, and corporation who shall carry on or be engaged in manufacturing, selling, or disposing of such liquors other- wise than for medicinal,chemical,or mechanical purposes, for each place where such business is carried on by such person, copartnership, com- pany, or corporation. Said tax shall be paid into the treasury of the county, city, village, or township where such business is carried on, and appropriated as the Legislature shall by general law provide. The sale or other disposition of such liquors to minors, persons under guardian- ship, insane and idiotic persons, paupers, and common drunkards, is wholly prohibited. Every person who shall carry on or engage in the business of traffic taxed as aforesaid in this section, without naving first paid the tax imposed, or otherwise violate any provision of this section, shall be guilty of a misdemeanor, and, on conviction, be punished by fine or imprisonment, or both, as may be prescribed by law, and every sale, until the tax is paid, shall subject the party to such penalty ; and all necessary laws shall be passed to enforce tneprovisionsofthissection. Read and referred to Committee on Revenue and Taxation. APPROPRIATIONS. Mb. smith, of Santa Clara, introduced the following proposed amendment to the Constitution, respecting appropriations: No appropriation shall ever be paid out of the treasury of this State, or any of its funds, or any funds under its management, except in pur- suance of an appropriation by law, nor unless such appropriation be made within two years next after the passage of such appropriation Act; and every such law making a new appropriation , or continuing or reviv- ing an appropriation, shall distinctly specify the sum, and the object to which it is applied, and it shall not be sufficient for such to refer to any law to fix such sum. Read and referred to Committee on Revenue and Taxation. OLAIHa AOAIKST THB STATE. Mb. martin, of Alameda, introduced the following proposed amend- ment to the Constitution, relative to the adjudication of claims against the State : Section — . The Legislature shall make no law authorizing the pay- ment by any county, or municipal corporation, or town, of any private claim; but general laws shall be passed in such manner as the Legisla- ture shall deem meet, providing for the adjudication of all such claims. Sec. — . The Legislature shall make no law authorizing the payment by the State of any private claim against the State; but suit shall be brought against the State on any such claim in any Court of competent jurisdiction. Sec. —. In all such suits the Governor of the Slate shall be served with le^l process, and such defense shall be authorized as in the case . of a pnvate individual. Referred to Committee on Judiciary and Judicial Department. TAXATION. Mr. HAGER introduced the following proposed amendment to the Constitution, relative to revenue and taxation : 1. The taxing power may be exercised by the Legislature for State purposes; and by the counties, cities, and other public and municipal corporations, under authority granted to them by the Legislature, for county, city, and other corporate purposes. 2. All taxes shall be levied and collected by general laws, and for pub- lic purposes only. They must be equal and uniform upon the same class of subjects within the territorial limits of the authorit;y levying the tax, and may be levied on all subjects and objects of taxation. 3. All property subject to taxation shall be taxed in proportion to its value; but it. shall be subject in proportion to its value to bear only its equal and relative proportion of taxation ; and every person subject to taxation shall be taxed in proportion to what he may be worth in real estate, in personal estate, in money owned and in his possession, and in money owing him which may be reduced to possession. 4. The power to tax corporations and corporate property shall not be surrendered or suspended by Act of the Legislature. AH corporations of this State shall be subject to taxation on the real and personal property owned or used by them in this State, on their gross earnings, their fran- chises, and their capital stock ; and all corporations doing business in this State shall in lilce manner be taxed on the real and personal prop- erty, capital, and money owned or used by them in this State. 6. AU laws exempting property from taxation, except aa in this Constitution expressly prescribed, shall be void. 6. No county, city, town, or other public or municipal corporation, nor the inhabitants thereof, nor the property therein, snail be released or discharged from their or its proportionate share of taxes to be levied for State purposes, nor shall commutation for such taxes be authorized in any fonp whatever. 7. The making of profit out of State, county, city, town, public school, or other public or municipal money, or using the same for any purpose not authorized by law, by any public officer, shall be a felony, and snail be punished as prescribed by law. Referred to Committee on Revenue and Taxation. ADJOURNUENT. Mb. HOWARD. I call for the regular order of business. The PRESIDENT. Under the rule the Convention will stand adjourned until to-morrow morning. Mr. LARKIN. I hold that that resolution expired at the same stage as it passed. The PRESIDENT. The rule applies to the day. The Convention stands adjourned till to-morrow morning at ten o'clock. [Time, ten forty-five a. m.] Digitized by Google 178 DEBATES AND PROCEEDINGS Thursday, TWENTY-SEVENTH DAY. Sacbaminto, Thursday, October 24th, 1878. The Convention met in regular seaeion at ten o'clock a. m. President Hoge in the chair. The roll was called, and members found in attendance as follows: raiSENT. Andrews, Harvey, Overton, Ayers, Heiskell, Porter, Barbour, Herold, Prouty, Barnes, Herrington, Pulliam, Barry, Hilborn, Reddy, Barton, Hit«hcock, Reed, Beerstecher, Holmes, Reynolds, Belcher, Howard, Rhodes, Bell, Huestis, Ringgold, Scheli, Biggs, Hughey, Blackmer, Hunter, Schomp, Boggs, Inman, Shafler, Boucher, Johnson, Shoemaker, Brown, Jones, Shurtleff, Burt, Joyce, Smith, of Santa Clara, Campbell, Kelley, Smith, of 4th District, Caples, Kenny, Smith, of San Francisco, Caaserly, Keyes, Soule, Chapman, Kleine, Stedman, Charles, Laine, Steele, Condon, Tjarapson, Stuart, Cowden, Larkm, Sweasey, Davis, Larue, Swenson, Dean, Lavigne, Swing, Dowling, Lewis, Terry, Doyle, Lindow, Thompson, Dudley, of San Joaquin, Mansfield, Tinnin, Dudley, of Solano, Martin, of Alameda, Townsend, Edgerton, Martin, of Banta Crux Tully, Estee, McCallum, Turner, Estey, McComas, Tuttle, Evey, Mo(V)nneIl, Vacquerel, Farrell, McFarland, Van Dyke, Fawcett, McNutt, Van Voorhies, Filcher, Miller, Walker, of Marin, Finney, Mills, Walker, of Tuolumne, Freeman, Moffat, Webster, Freud, Moreland, Weller, Garvey, Morxe, Wellin, Glascock, Murphy, West, Gorman, Kason, Wirkes, Grace, Kelson, White, Graves, Neunaber, Wilson, of Tehama, Gregg, Noel, Wilson, of Ist District, g-X' O'Donnell, Winans, Ohlever, Wyatt, Harrison, O'Sullivan, ABSENT. Mr. President. Berry, Eagon, Stevenson, Cross, Hall, Strong, Crouch, McCoy, Waters. Dunlap, Rolfe, LBAVB or AB.^tNCB. Leave of absence was granted to Messrs. Waters, Dunlap, Eagun, and Hall. On motion of Mb. LARKIK, the reading of the Journal was dis- pensed with. OBIATIOX OF DIBT8. Mb. CASSERLY introduced the following proposed amendment to the Constitution, relative to creation of debts by city and county organ- izations : AKnCLK — . No debt or liability shall be created or expressly incurred by a city or by a department, board, or officer of a city, unless there shall be at the time in the treasury an unexpended appropriation applicable to such debt or liability, and sufficient to discbarge the same, and all debts and liabilities previously incurred and payable out of such appropriation, and all contracts, engagements, or transactions in violation hereof shall be unlawful and void. Nor shall any debt or liability of a city be paid except out of money in the treasury appropriated thereto according to law. No money shall be drawn from the treasury except in the pur- suance of an appropriation lawfully made. Nor shall any extra com- pensation or allowance be made to any officer, servant, agent, contractor, or employ^ of such government, beyond the compensation agreed upon or fixed by law. All transactions or violations of this section shaJI be illegal and void. The Legislature, at its first session after this Constitu- tion takes effect, shall enact such laws, civil and criminal, as may be necessary or appropriate to enforce the provisions of this section. Abticlb — . No money shall be borrowed by any city for the purpose of defraying any of the expenses of the city for which an appropriation has been made, except m anticipation of the revenue of the year for which the same may be borrowed applicable to such purpose; and all moneys so borrowed must be paid out of such revenue, or out of revenues specially provided to supply any deficiency in the collection thereof; provided, koteever, that temporary loans fn anticipation of the taxes may be renewed so far as such taxes may not have been collected, when the same are fully secured to the extent of twice their amount by valid liens on real estate. In no event shall any indebtedness be incurred to an amount, including existing indebtedness, in the aggregate exceeding per centum on the value of the taxable property of a city. Such value shall be ascertained from the assessment roll for State and county pur- poses made immediately previous to incurring such indebtedness; pro- vided, however, that a city may borrow money under and in accordinoe with the following conditions and limitations, in-addilion to any other conditions and limitations contained in the Constitution, namely: The debt must be for some single work or object only, and must be authorized by a resolution passed by a vote of three fourths of all the meioben elected to the Board of Supervisors, and approved by the Mayor, dis- tinctly specifying such work or object, ana the whole amount of the debt to tw incurred. The Legislature must, before the creation of such a debt, assent thereto by an Act passed by a vote of two thirds of all the members elected to eacn house respectively. Such vote shall be by yeas and nays recorded on the Journal of each house ; such law shall also distinctly specify the single work or object for which the debt is to be created, and the amount of the debt authorised, and shall contain pro- visons for a sinking fund to meet the same at maturity, and requiring at least ten per cent, of the principal to be annually raised by taxation and paid Into the sinking fund. Buch Act shall not take effect until it shall be ratified at an election held in said city, at which no other matter is voted upon, and which shall be held within days after the passage of said Act. The Legislature ^all make such laws as may be necessary to provide for holding such election and ascertaining the result thereof. Read and referred to Committee on City, County, and Township Organisations. BBPOBT OH PBEAMBLI AND BILL OF BI0BT8. Mb. van dyke made the following report from the Committee on Preamble and Bill of Rights : Mb. Pbbsidekt: The Committee on Preamble and Bill of Rights beg leave to report that they have had under consideration, for a number of fleasions, the subject-matter referred to them, and, having agreed upon a draft for a Preamble and Declaration of Rights, submit the same nere- with to the Convention for its consideration. At the outset of their deliberations, the committee adopted the plan to take up, in their order, the preamble and different sections of article one of the present Constitution, and consider the same as a basis for their action, with the understanding that only such provisions should be altered or amended as the public interest seemed to demand. Acting upon this plan, the committee first informally considered and acted upon the old preamble and separate sections of article one, seriatim, in con- nection with the various propositions bearing thereon which have, from time to time, been referred to us by the Convention. Afterwards the committee went over the work again, in the same manner, for final action. rBEAMBLB. It being the opinion of the committee that the substance and general style of the present preamble should be preserved, they have reported the same, with only slight verbal amenclment, as the preamble for the new Constitution. It expresses, in brief and appropriate language, the people's gratitude to the Supreme Being for tneir freedom, and their desire and determination to secure and perpetuate its blessings by the ^tablishment of a omstitutional government. This is all that seems to be required, without loading it down with unnecessary recitals. DECLABATION OF BI0BT8. Sections 1-2. Sections one and two, of article one, have been retained, with the same numbers, in the new article, without any alteration. The former declares the inalienable rights of man, and the latter the object and purposes of government, in a manner and style that cannot well be improved. Sec. 3. Section three of the old article, relating to the right of trial by jury, has been materially changed. There were a large number of propositions referred to the committee, having in view some modifica- tion of the jury system, and after giving them due consideration, and devoting considerable time to the subject, the committee agreed upon the section as reported, which has been inserted in the place of the old section seven, immediately preceding the section relating to the Grand Jury, and numbered accordingly. As section three of the article here reported, the committee have adopted a new section, which recognizes the Constitution of the United States as the paramount law of the land. Sko. 4. Section four, in reference to the free exeroise and enjoyment of religious profession and worship, has been retained with the insertion of the words " or juror," after the word " witness," in the sentence, " and no person shall be rendered incompetent as a witness on account of his opinions on matters of religious belief." A number of memorials, quite numerously signed, having in view some modifications of, or addition to, what is contained in section four have been referred to us. A representative of the clergy also favored the committee with a brief statement of the reasons assigned by a large class of our people for desiring such changes. But after giving to the subject-matter all the consideration its importance demanded, the com- mittee, with all deference to the memorialists, still remain of the opinion that it would be unwise to materially alter or add to the section as it stands in the old Constitution. Sec. 5. Section five, relating to the writ of habeas corpus, remains as in the original article. Skcs. 6-7. Sections six and seven, in addition to the declaration in the former against excessive fines, cruel and unusual punishments, and the unnecessary detention of witnesses, bear upon the same subject. Digitized by Google Oct. 24, 1878. OP THE CONsTlTaTIONAL CONVENTION. 179 namely, the matter of bail. The committee, therefore, have transposed and consolidated these sections, and have added, by way of amend- ment to the clause relating to detaining witnesses, a prohibition against confining them in jails or rooms where criminals are generally impris- oned. At present it not unfrequently happens that a stranger or poor person, so unfortunate as to witness the commission of a crime, for want of bail is confined in some noisome prison cell, while the criminal, more blessed in the possession of friends or property, goes at large on bail. Sec. 7. For section seven, as already stated, we hare inserted the old section three, as amended. As thus amended, the right of a jury in criminal trials is still retained, but in cases not amountmg to felony the Legislature may fix the number to constitute such jury, and in all civil cases the whole matter is left to be provided by law. Sic. 8. Section eight has been divided so as to form, with the amend- ments proposed, three sections. The portion relating to the Grand Jury forms the eighth section of the new article. As amended, it provides for a Grand Jury in cases punishable by death, or imprisonment in the State Prison, with the usual exceptions, and in other criminal cases permits a firosecution by information or complaint, as may be prescribea by law. t also provides that while the Grand Jury is retained, two thirds may find a true bill, thereby making it more difficult to defeat action against influential parties than under the old system. Power is also conferred upon the Legislature, by a two-thirds vote of all the members elected to each house, to abolish and restore the whole Grand Jury system. In regard to the Grand Jury as well as the trial jury, the action of the com- mittee may not have been as radical as the public sentiment demands, judging from the various propositions before them bearing upon the sub- ject, but, if so, there is a degree of elasticity in the new system which the old did not possess, and the Legislature, guided by experience, will be enabled to meet the wants of the people in this respect. Sic. 9. Section nine, declaring the right of freedom of speech and of the press, and prescribing a rule in criminal prosecutions for libel, has been retained as it existed in the old article. Sic 10. Section ten, declaring the right of the people freely to asemble together to consult for the common good, etc., has also been retained. The committee, after duly considering the subject-matter of the two foregoing sections, came to the conclusion that it would be unwise to m[)Ose amendments to them, or to tamper with them in any respect. Their provisions have been construed, and are well understood, and it is hazardous to make experiments in such matters. Sec. II. Section eleven, declaring that all laws of a general nature shall have a uniform operation, is retained. Sic. 12. Section twelve, providing that the military shall be 'sub- ordinate to the civil power, etc., has cieen amended by striking out the last clause, which limits an appropriation for army purposes, as that matter is covered by section twenty-two of the present article, added by way of amendment in eighteen nundred and sixty-six and eighteen hundred and seventy-one; ahd the latter section has also been left out of our draft, on the ^und that it belongs more properly to the legisla- tive article. To section twelve, as thus amended, we have added section thirteen of the old article, as it bears upon the same matter of restricting the military power. Sec 13. Section thirteen has been provided for by inserting in place of the old section, already disposed of, that portion of the old section eight, in regard to the right of the accused in a criminal trial, and has b^ amended. The amendment consists, in adding certain other usually enumerated rights, mostly taken from article six of the amend- ments to the Constitution of the United States, and which seem to have been omitted from that portion of the old section eight. We have also altered the clause in regard to putting a person twice in jeopardy, so as to remove any doubt, in case a jury on the trial should, ior any reason, be discharged without rendering a verdict. Sec 14. The committee struck out the old section of this number, relating to apportionment, as it more properly belongs to the Commit- tee on Apportionment and Representation. The committee have con- structed a new section on the subject-matter of the last clause in the old section eight — that is, taking private property for public uses. In the section reported in our draft for section fourteen, it is provided that the time or services of the citizen, when required for the public, shall also be compensated in a manner to be provided by law. It may be that the labor of an individual is his only capital or means of support, and when his time or services shall be required for the public benefit there appears to be no reason why compensation should not be made the same as when private property is taken. Sic 15. Section fifteen prohibits imprisonment for debt, except in cases of fraud, and prohibits imprisonment for a militia fine. It has been retained in its place without alteration. Sic. 1(. Section sixteen, declaring against ex post facto laws and laws impairing the obligation of contracts, has been amended so as to prevent impairing the remedy for the enforcement or breach of a oon- tnet 8»c 17. Section seventeen, in regard to the right of foreign resi- dents to possess, enjoy, and inherit property, hat been amended so as to exclude from its provisions foreigners not eligible to become citizens. Sic 18. Section eighteen, prohibiting slavenr and involuntary aerritade, has been so amended as to read : " No form of slavery shall ever exist in this States, and there shall be no involuntary servitude, except for the punishment of crime of which the party shall have been duly eonvicted." MC 19. Section nineteen, relative to the right of the people to be ■ware -from anreaionable aeizurea and searches, is retained without amandment 6k. 20. Section twenty, in regard to treason, and the rights of a ponon cm trial charged with the same, remains intact. 8h> 31. Section twenty-one, declaring that this enumeration of rights shall not be construed to impair or deny others retained by the people, was the last section of the original article, and we have retained it as the last in our draft, and changed the number accordingly. In its place as section twenty-one, we have inserted a new section declaring against special privileges and immunities. Several propositions were referred to us bearing upon this subject, and many of the Constitutions of other States contain similar provisions. Skc. 22. The present section of this number, added by amendment, as already stated, has been dropped from our draft as properly belonging to another article. The committee have prepared a new section to take the place of twenty-one, declaring against appropriations or grants to any corporation, association, asylum, hospital, or any institution not under the exclusive management and control of the State. Judging from the various propositions on this subject, there would seem to oe a fiublic demand for some provision of this kind, in order to prevent the unds and property of the State from being diverted and used for other than public purposes. Sic. 23. Section twenty-three is a new section, in which it is declared that the provisions of the new Constitution, unless when declared to be otherwise, shall be mandatory and prohibitory. The purpose of this is, that where plain language is used in the Constitution declaring what shall be done, and what snail not be done, it must not be oonstnied, in convenient cases, to be merely directory. This section has also been presented in deference to what seems to be a public demand for some- thing of the kind. Sic. 24. This is the last section in the new article, and, as already stated, is the same as the twenty-first, or last section in the original article. Several other new sections were proposed before the committee, but failed of adoption — some for the reason that they jrere considered unne- cessary or inappropriate, and others for the reason, simply, that they more properly belonged to some other department. Herewith the committee returns to the Convention various memorials and propositions bearing upon the matters under consideration, up to this time, referred to them, and would recommend that so much of any or all the provisions contained therein as may not be embodied in the draft herewith submitted, be not adopted. All of which is respectfully submitted. WALTER VAN DYKE, Chairman. HINORITT RCPOBT. Mb. FREUD, on behalf of a minority of the Committee on Preamble and Bill of Bights, presented the following report : Mr. President and gentlemen of the Convention : We, the undersigned, minority of your Committee on Preamble and Bill of Rights, beg leave to report the following two additional sections for insertion in the Bill of Rights of the new Constitution: SicTioH — . No property qualification shall ever be required for any person to vote, hold office, or become a juror. Skc. — . The penalty for all crimes, except petty misdemeanors, shall be imprisonment, which shall be proportionea to the character and degree of the offense. J. RICHARD FREUD, JAMES N. BARTON, CHA8. 8. RINGGOLD, A. E. NOEL. Mr. van dyke. The report which I sent up is accompanied by a draft for a Preamble and Article One of the Constitution. I ask that they both be ordered printed, and referred to the Committee of the Whole. So ordered. Mb. FREUD. I ask that the minority report also be printed, and referred to the Committee of the Whole. . So ordered. The draft submitted by the majority of the committee is as follows: PBIAUBLI. W«, the people of the State of California, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings do estab- lish this Constitution. AancLB I. DKCLABATION Or RI0BT8. Skotiok I. All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending lifeand liberty ; acquiring, possessing, and protecting property; and pursuing and obtaining safety and happiness. Sic. 2. All political power is inherent m the people. Government is instituted for the protection, security, and benefit of the people, and they have the right to alter or reform the same whenever the public good may require it, Skc. 3. We recognize the Constitution of the United States of America as the great charter of our liberties, and the paramount law of the land. Sbo. 4. The free exercise- and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State; and no person shall be rendered incompetent to be a wit- ness or juror, on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State. Sko. 5. The privilege of the writ of habeas corpus shall not be sus- pended, unless, when in cases of rebellion or invasion, the public safety may require its suspension. Sko. 6. All persons shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evideut or the presumption great. Digitized l 180 DEBATES AND PROCEEDINGS Thursday. Excessive bail iball not be required, nor excessive fines imposed ; nor shall cruel or unusual punishments be inflicted; nor shall witnesses be unreasonablpr detained, or confined in any jail or room where criminals are usually imprisoned. Skr. 7. 'In criminal cases, the right of trial by ^'ury shall remain. In all cases except felony, the Legislature may provide by law the number necessary to constitute a jury; and in all civil cases, the number neces- sary to render a verdict. 8kc. 8. No person shall be held to answer for a crime or other public offense punishable by death or imprisonment in the State Prison (except in cases of impeachment and in cases of militia, when in actual service, and in the land or naval forces, in time of war, or which this State may keep, with the consent of Congress, in time of peace) unless on present- ment or indictment of a Grand Jury. In all other cases, offenses shall be prosecuted by indictment, inlormation, accusation, or coniplaint, as concurrent remedies, as may be pre8cribeens to be the case, and from some reason — whether good or otherwise — thev seemed to turn to me as the only person upon whom they could agree as their delegate to this Convention. When it was first pro|)osed to me that I accept the trust, and consent to represent the peojile of that county here, 1 said in reply : " No ; I »m not eligible to the place." I believe that tliat view would strike nineteen minds out of twenty, superficially, and without an examination into the legal merits and asspect of the case. Without reflection, without examination, I entertained the impression that I was not eligible to a seat in this Convention, and so stated, and declined peremptorily to become a candidate. Other gentlemen, however, in whose opinions I had ^reat confidence — gentlemen both of my own county and other counties in the district and elsewhere in the State, including eminent lawyers in different ])arts of the State — took issue with me upon that proposition, and, as a consequence, I was led to investigate the question, and finally reached the omclusion that upon the score of eligibility there was no objection to be entertained. Then, having been generally solicited by the people of my own county, belonging to all political parties — including the oflScial heads of the two organized parties— and also having been urged by the people of the balance of the district— the Counties of San Luis Obispo and Ventura — to e^rve here as a dele^te, to the best of my humble ability, I conceived that, perhaps, my original Sosition was wrong, and finally consented to stand as a candidate for elegate to this Convention from the County of Santa Barbara, as announced in the letter which I now oflTer to read to the Convention. It is addressed to the local paper — the Press : To the Editor of the Press : Within the post two weelu I have received many communications from dlf&rent parts of the county wildng nie tu serre as a delegate to tiie l>}n8tituUonHl ConTentioa which is to meet at ^cramoiito in September next. Tlieee communicotiont are signed by representative men generally, including the offlcial heads of the two orgnnized political parties, and seem to indicate a genera) desire upon the port of the electors of the county that 1 serve them in the otpocity indicated. It would be invidious to publish one of theee papeni without publisbing all, and it is unneicisisiy to tax yunr columns to that extent. I hare already said, and still say, that I am not a "candidate" tor this tnist Bat, after much anxious cunslderution of this matter, and moved by arguments tliot seem Irresistible, I have reached the conclusion that if the people tliinlt tiiey need ay poor 8«jrvices I ought not to refuse. There are times wtien no man has the riglit to decline the performance of a public duty from any personal consldeistioDS, sad the preeent emergency is one of that nature. Let it bo remembered, however.^hot the people have alreocly confided to nie the perfuniiaiice of certain uther duties, and that these later dntiee, if assumed, will necessarily conflict, to some extent, and for the time l>eing, with the former. I cannot be preeent at the OoDvention in Novsober, and bold a term of t^urt hero also ; nor can it be known at this time vbethar a substitute can be procurod for the latter duty. Digitized by Google J Oct. 24, 1878. OP THE CONSTITUTIONAL CONVENTION. 181 If, with a foil BDderBt&ndlng of tiio situation, and withont Intrigue, solicitation, ifrire pQlling, or pipe laying on my part, or on my behalf, the electors of this county Tolnntarily deaignate me as their delegate, I will accept the tnist. Personally, bovoTer, I would be.mach gntifled if they could agree upon some other man. Tuura reapectftilly, KUOKNB rAWCETT. Saata Barbara, May lOth, 1878. HuTing published this letter, Mr. President, in pursuance of my regu- lar duties 1 left the county, went upon the circuit, and did not return to that county until about five weel^ after the election of delegates to this Convention. During ray absence the people voted for and elected me as a delegate by about two thirds majority of all the votes cast at the election. I do not pretend to be exactly correct, but thgit was about the proportion. Now, I have stated that I recognize the fact, Mr. President, even if eligible to this trust, that I had strictly no right to withdraw myself temporarily from the duties which had already been con- fided to me, unless it was with the universal consent and by the uni- versal desire of the people of the district. I recognized the fact that the people of my county had no right to withdraw me from those duties at the expense of the people of the other counties of the district; that I owed a duty to them ; that I owed allegiance to them and the discharge of my duties to those in the other counties as well as to the people in my own ooun^. And, sir, it was only after having been satisfied by an nnmistaluble expression of the opinion of a number of the people of those two counties that the^ desired me to temporarily abandon the judi- cial duties and come here in the capacity of delegate, that I consented to do 80. And now, sir, as in the committee the other evening, to substan- tiate these statements — first, that the people of the County of Ventura desired to have me come here as a delegate — I appeal to the gentleman who represents that county as a delegate, Mr. Finney, elected on the Workingmen's ticket, to say whether or not these statements are true. I say that four fifths of the people of that county were desirous of having me come here and represent them. Is that so? Uk. FIXNEY. Mr. President : It is certainly true, and I take great pleasure in saying that the people of my county were perfectly willing that Judge Fawcett should leave the duties of Judge for the time being and come here to represent the people of my part of the State. Ma. FAWCETT. I say that the people also of San Luis Obispo, by a very large majority — substantially they were unanimous uj»n that point — desired me to come here and represent our portion of the State to the best of my ability; and for the truth of that assertion, I appeal to the delegate from the Fourth Congressional District, Mr. Graves, to Bay whether or not I have stated the truth upon that subject. Ha. GRAVES. It affords me pleasure to affirm the truth of the statement. It is the almost universal wish of the people of San Luis Obi^ County, which is one of the counties embraced within the First Judicial District, that Judge Fawcett should occupy a seat in this Con vention. Mr. FAWCETT. That oovei-s, Mr. President, all the territory in my judicial district. Another point, the question as to whether or not I could properly come here as a delegate, seemed to me to depend some- what upon the state of the calendar of the business of the Court of that district. I am aware that in many parts of this State judicial business is allowed to accumulate and crowd the calendar, and that the Judge cannot at any time properly abandon his duties without leaving litigants to suffer who have business before his Court. In this connection I wish to state this further fact, and it goes to the question of expediency, that at this moment I, at least, have not a single undetermined case before nie. No case has been tried, no question nas been submitted to me as the Judge of the First Judicial District of this Stat« which was not dis- posed of, decided, and cleared away before I left the district to attend this Convention. And there is no cause now pending in my district now ready to b« tried at this moment. The busiuess has been completely cleared away and the calendar swept, as is the custom in that district at all times; so that no litigant is suffering from my absence at present. Another fact is that the last term of Court in the County of San Luis Obispo came to a conclusion on or about the twenty-second of Septem- ber, and that from that day to the first Monday in November, there is a vacation in that district, so that all of this time there was no judicial duty to discharge If I had been there. It is true that one term of Court Id one of the counties of that district — the County of Ventura — will have to be postponed until after the Convention has concluded its labors. One of the other counties — Santa Barbara — will have a terra, but I have already been fortunate enough to provide a Judge for that. This, Mr. President, only goes to a question of expediency. The facts which I have stated seem to me to justify me in consenting to come here as a detente to the Convention, at the same time holding that of Judge of the First Judicial District. These matters go only to the question of expediency, and I say upon that ground I feel justified entirely, and stand before this Convention conscious of having done nothing wrong, either technically or otherwise, and having act<3 properly and with a due regard for the desires of the people of my part of the country. I eonaenled to represent them to the best of my poor ability. Thoy desire me to do so, and I submit to this Convention that unless there is great reason why I should take my departure hence, that I ought to be per- mitted to remain and represent them here as they desired. The fact is, that if I am excluded, the county from which I come will be substan- tially unrepresented in this Convention, and will have a Constitution Ihnut at them which they practically have had no voice in framing. I nbmit that it is now too late to choose a successor to sit here. Alt^eady one third of the time has passed, and before a successor could be found aad seated here, perhaps another third of the time would have passed, and it would have been practically useless to pursue that course. I have Twding &irtber to say upon this subject, and while this question is being amed upon its merits and in its legal aspects, I respectfully ask leave (fUM OoavenUon to retire from the floor. MB. KOOERTON'S ABOUMKIIT. Mr. EDGERTON. If I correctly understand the prominent position of the minority of the Committee on Judiciary, as set forth in their report, and as it will undoubtedly be expanded in argument by those gentlemen and others who coincide with their views, it is this : That, by the third article of the Constitution of the State, the whole power of the State is distributed into three departments — legislative, executive, and judicial. That that article provides that no person exercising powers and functions properly belonging to one of these departments can at the same time exercise powers or functions belonging to either of the others. That the powers conferred upon the memters of this Con- vention are legislative powers, and that they are, therefore, prohibited to any person holding a judicial office, or to any one exercising the powers pertaining to the Judicial Department mentioned in article three. That article declares that " the powers of the government of the State of California shall be divided into three separate departments, and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions under either of the others." It is to be observed that the Constitution Itself defines what these departments are. It goes on and determines where the legislative pow^r and the whole legislative power of the State is lodged ; where the executive power and the whole executive power is lod^d; and where the judicial power and the whole judicial power is lodged. I call the special attention of the gentlemen who claim that we are exercising legislative power here to the first section of article four, which provides: " The legislative power of this State shall be vested in a Senate and Assembly, which snail be designated the Legislature of the Stat^ of California." I say then, sir, that in express terms, in language unequivocal and that cannot be misunderstood, the framers of this Constitution have said that the whole legislative power of the State was lodged in the I^egisla- ture, which they describe as consisting of a Senate and Assembly. It seems to me that right here on the very threshold of this argument we meet with a complete, absolute, and satisfactory reply to the proposition alleged in this minority report. Then, sir, comes article nve, which defines the Executive Department spoken of in article three, and it is as follows : "Section 1. The supreme executive power of this State shall be vested in a Chief Magistrate, who shall be styled the Governor of the State of California," Section eighteen, of article five, provides that "a Secretary of State, a Controller, a Treasurer, an Attorney -General, and a Surveyor-General, shall be elected at the same time and place and in the same manner as the Governor and Lieutenant-Governor, and whose term of office shall be the same as the Governor." Now, 1 say, then, that the whole executive power of this State, as contcinplatea by article three, is lodged exclusively in the Governor, the Lieutenant Governor, the Secretary of State, the Controller, the Treasurer, the Attorney-General, and the Surveyor-General ; and there it ends. That is the executive power enumerated In article three. And then comes article six, which completes this distribution of powers. Section one reads : "The judicial power of this State shall be vested in a Supreme Court, in District Courts, in County Courts, in Probate Courts, and in Justices of the Peace, and in such Recorders' and other inferior Courts as the Legislature may establish in any Incorporated city or town." Now, sir, stopping here, I say that when this article three says that no person belonging to one of these departments shall exercise the functions belonging to another, it means tnat a judicial officer shall not exercise the powers of the Legislature, or (lowers which are vested in the Legislature of the State — that is, of the Senate and Asserably. When It says that Judges shall not exercise executive powers, it means that they shall not exercise powers belonging to the Governor, Lieutenant- Governor, Controller, Secretary of Stale, Treasurer, Attorney-General, or Surveyor-General, and nothing more. It seems to me this is clear; but we have authority on this subject not only in this State, but abroad. Now, sir, I understand it to be a cardinal canon of interpretation of Constitutions and laws, that where a constitutional provision has been incorporated from the Constitution of one State into the Constitution of another State, or where a statute of one State has been taken bodily from the statute books of a neighboring State and incorporated in the statute books of another, that the Courts invariably turn to the decisions in that State to guide them in their interpretation of the provision or statute. I believe that Is a rule that universally prevails throughout the American States. Now, sir, it is well known that this article three, of this Constitution of California, is copied verbatim et literatum et punclu- alim from the Constitution of Iowa. In that State, this precise question of collision between these departments arose in the case of Santo et al. vs. the State of Iowa, reported in the Second Iowa Reports. Santo was Mayor of Keokuk, a city in Iowa, and exercised executive powers. He was made Justice of the Peace, by which he exercised a judicial power. He tried a case as Justice of the Peace, and to that extent exercised judicial powers. The point made was, that his judgment was void, because, under article three, It was argued if he exercised executive powers he could not exercise the functions of a Justice of the Peace. Now, sir, the Supreme Court of that State say this : " The objection intended is, that the Mayor is an executive officer, and that judicial authority is conferred upon him, in coufiict with that pro- vision of the Constitution which says, that no person charged with the exercise of powers properly belonging to one of these departments — the executive, the legislative, or the judicial — shall exercise any function appertaining to either of the others. These 'departments' are the departments of the government of the State of Iowa. The Mayor of the City of Keokuk is not a part of the government of Iowa. He exercises none of the functions belonging to that department. Whatever execu-T 4 Digitized by V ilC 182 DEBATES AND PROCEEDINGS Thursday, tive sfficeB he maj perfonn, peHain to him onl^ as an officer of that oorporalion. But nre do not mean to say that he is an executive offieeV, in any proper sense. Similar provisions exist in the Constitutions oTall, fiT nearly all, the other States, and yet from time immemorial, similar powers have been conferred upon the Mayors of cities. We are of the opinion that the objection is not well taken." Now, sir, there is other authority in this State. There is the case of The People v. Provines, 34 Oal. I have not the book here, but I will state the case and the opinion, and its result as I understand it. Mr. Provines occupied the position of Police Judee in San Francisco under a law of the State, and while he was Police Judge he assumed and did exercise the powers of Police Commissioner — one clearly judicial and the Qthcr clearly executive. The point was made in that case, that being so, that be was prohibited under article three, he exercising judicial functions, from the performance of these executive functions. But the Supreme Court, in this State, in the case to which I have referred, after referring to the case from which I have just read, decided that article three refers to State government. It refers to officers who have juris- diction over State affairs, and not local aflairs, and they held that the Judge in that case could exercise the [wwers of that office, to wit : Police Commissioner, and that it was not at all in conflict with article three of the Constitution. So much for authorities. And now, Mr. President, ar|;uin^ this question a little further, from the basis of the Constitution itself, if the position of the minority of the Committee on Judiciary is correct, the whole discussion ends right here on article three. It puts an end to the whole thing, and the frain- en of the Constitution liaa accomplished all hy force of that article. If that be so, then section sixteen, of article six, is mere surplusage — it is mere idle repetition. Section sixteen, of article six, is as follows: " The Justices of the Supreme Court, and the District Judges, and the County Judges shall be ineligible to any other office than a judicial office duringtheterm for whicti they shall have been elected." I say, thut if we take the position assumed by the minority, this means nothing; it can perform no office, because the claimant of this seat here is excluded by the force of article three. Now, sir, it is also another canon of interpretation that some motive must be assigned — some pur- pose to be subserved by any enactment or provision of a Constitution, which may appear to be surplusage, must be discovered if possible. Now, the question occurs, what is the puniose? I say, that outside of article three, there may be an army of officers created by the Legisla- ture of the State. The Legislature creates any number of these officers, for the purpose of administering the government, which will occur readily to the mind of any gentleman. I say, that section sixteen of article six has reference to these officers and no others. It is not mere surplusage, because there is this vast mass of power, and there might be this multitude of offices outside of the section which they aimed to cover by section sixteen. These offices are incidental, or occasional, or transitory, and are created in the judgment of the Legislature. And when I say Legislature, I mean the Senate and Assembly, the legisla- tive power having control of and governing them as specifically provided for in the Constitution. I 8.iy that section sixteen refers to these incidental, occasional, transitory powers of office which it may be found necessary for the Legislature to create in order to effectually administer the government in all its departments. I deduce that argu- ment from these considerations. Observe the limitation. It is upon three classes of Judges. It is only upon Justices of the Supreme Court, District Court, and County Court, but there is a Judge of the Police Court of San Francisco; there 'may be a Judge of the Riccorder's Court — there was once in Sacramento ; there may be a Judge of the same character but differently designated in Marysville; there arc Justices of the Peace. They are not excluded. That is to say, notwith- standing you have this article three, which provides that a person exercising judicial power shall not exercise functions belonging to the other departments, they put a limitation here upon certain judicial officers — Justices of the Supreme Court, District Judges, and County Judges. That is my interpretation of it. Now we come to the ncotive of the framers. It is to be borne in mind that the Supreme Court, the District Courts, and the County Courts issue their processes and they are mandatory in many forms upon every department of the govern- ment. They issue their injunctions ami writs, and it would be in con- flict with the dignity of these great tribunals, among which is this Court of sovereign judicial power, to be mixed up in these local offices like that of Police Commissioner or the various other commissions. The Justice of the Peace is diflerent. While it would be proper to leave them to the Legislature on the score of economy, yet it would not be consistent with the dignity or the nature of the (jourt of sovereign power to be placed in this position. Therefore a limitation was put upon the Justices of the Supreme Court, the District Judges and the County Judges, leaving the Police Judges and Justices of the Peace and Judges of such inferior Courts as the Legislature might establish to exercise both executive, judicial, and legislative functions. Now, sir, I say that the position of the minority is in contravention of the principle of this Government, from its foundation to the present hour, and in support of that position, I will give one illustration. The Legislature created a State Board of Examiners. It is an office unknown to the Constitution. It is an office which unquestionably the Legislature has the power to create. It is an office which I believe has Men in existence for nearly a quarter of a century. Its functions are purely judi- cial. They sit in judgment upon the question of claims against this State ; and yet that Board is composed of the executive officers of the State — the Oovemor, the Secretary of State, and the Attorney-General. They are executive officers, and yet we see them for a quarter of a cen- tury exercising these high and all-important judicial functions in this government. Did anybody ever question the constitutionality of that Board T Has anylwdy ever pretended , sir, that they were with in the pur- view of this article three of the Constitution, cited in support of the position of the minority of this committee? I deny it. But there is another posi- tion that strikes mc as a very singular one, which results in this; Gentle- men say that this is an office. I have heard nobody pretend but that the Justices of the Peace and Police Judges were eligible to this place. It cannot be maintained, under section sixteen, of article six, but tnat * Police Judge or Justice of the Peace may be elected to the Constitu- tional Convention, and invested with the solemn functions of framing > State law. And yet, sir, you are driven to the position to say that Q>« framers of this Constitution intended, by section sixteen, of article six, to proscribe the Supreme Judges, the District Judges, and the County Judges from exercising these functions, and yet throw the doors wide open to these Judj|;es of inferior Courts. Now, sir, I see in the minority report, on page six, a clause which I am sorry to see. It is as follows: " Tlie Impropriety of the actJoo oontemplated la the reeolntion reported bj the commUtee, ana the Justice and necceeity of the above epiniun, ie decteirely enforced by the reflulta uf Its edoptlon. If anything it certnln to be done by thin ConreetiOB, U le a remodeling of the Judicial dap«rtment. One of the pruporitiooii elnady pasacd upon by the Judiciary Comnilttee, and to be reported to thle Confeatiofi, li the utt^r abolition of the Diitrict Conrte— their name even ti to be etaeed from the Constitution; and yet the minority reeoluUon would retain a gentleman here vbo will be required to paae upon the further existence of bla office and its emolnmeoti, alHt perliajis to deteomine the rMult by hie tingle vote. ' No one ought to be Judge In hie own cauie/ is a legal maxim hitherto held to be of anlvenai application.'* That, sir, is an argument addressed to the pecuniar; interests of thii claimant. Now, sir, if this Convention is to enforce it, I say enforce it upon everybody else here that is in th^ same category. Yon have resolution alVer resolution offered relating to bank corporations, to gas companies, to insurance companies; you have resolutions relaxing to quasi-public corporations, like railroetid corporations. There are any number of gentlemen in this Convention laraely interested in many of these corporations, and they have as direcuy to pass upon interaeta appealing to their pockets to a much larger extent than any such interest can appeal to the pocket of the claimant of this position. I think it ig a degrading argument; that it was unworthy a place in this report of the minority of the committee; and that it is unworthy of the consider- ation of this Convention. But another point: I say that of all men in the commonwealth the men best fitted to discharge the functions that we are here attempting to discharge are the gentlemen who occupy fhis high and exalted station. The station i^one that commands a bnnder and a closer view of hnnmn life in all of its relations, social, political, and individual, than any other in society or under government. These gentlemen are brought in con- tact with human life at every point. Their habits of life and Uieir duties lead them to a profounder study of the Constitution and laws than any other class in the community, and they may justly be presumed, with- out disparagement to any other class of gentlemen, to know more of the weaknesses and defects of the organic law than any other class of people in the community. Upon the score of intelligence, upon the score of lnfo^ mation, upon the score of learning, I say, without disrespect to any gen- tleman here, that an honest, upright, learned, and enlightened Judge, i> the one above all others to discharge the functions which we are here attempting to discharge. Now, sir, right there in that connection, what has been the praeUoe elsewhere? Why, sir, in Virginia, Chief Justice of the United States John Marshall was a member of the Convention of that State, and I shall have occasion to allude to that further on. He was a distinguished member of the Convention of Virginia of eighteen hundred and twest)[- nine-thirty. There were eight or ten of the most distinguished Circuit Judges of that Slate in that Convention. The Governor of the State, himself, sat in that Convention — all of them, among the most illustrious gentlemen in the State or nation, or any other State or nation. It »si one of the most conspicuous bodies that ever assembled upon this globe. It attracted to it the great civil leaders from Europe and America. The great statesmen were there in a body, watching its proceedings, and taking the deepest interest in iL It never occurred to these great men that they were not eligible. In the State of Illinois, their Judges have been members of their Constitutional Conventions, and performed the auis duties we are sent here to perform. It seems to me that the claimant here cannot be'denied his seat except upon a technical interpretation of the word " office," in section sixteen of article six of the Constitution ; and I come now directly to that point What docs the word office mean ? In the Constitution of Maine — 1 have not the authority here — but on page one hundred and fifty-nine of East- man's Digest of the Maine Reports will be found this syllabus: ** The term * office ' impliee a delegation of a portion of the eorereign power of the LegislatlTo, Judicial, or Kxocutive Departments of the Goveniment. An ettpley- ment, or service as an agent, does not." That is, it implies a delegation of the sovereign powers of the Legisla- tive, Judicial, or Executive Departments; and the Constitution itself aayi that the legislative powers are vested in a Senate and Assembly, and the executive powers are vested in certain enumerated offices under (he Constitution. I claim, sir, that that is direct authority upon the meaning of the word office. Again, this matter was up before the Supreme Court of New York, in the matter of the oath to be taken by attorneys and oounselon. In the twentieth of Johnson's Reports, page four hundred and ninety-two, the Court says: "The lexicographers generally define 'office' to mean a public emphy- meiil, and I apprehend its legal meaning to be an employment on behalf of the government in any station or public trust." This 18 no part of the government of this State. The government iJ divided into these three departments, as defined in article three, and as described in articles four, five, and six. The Court goes on to say: " I apprehend its legal meaning to be an employment on behalf of the government, in any station or public trust, not merely transient, occa- sional, or incidental. In common parlanceih^ term ' officer har a more digitized by VjOOQ IC ■>t Oct. 24, 1878. OF THE CONSTITUTIONAL CONVENTION. 183 general ri^ification. Thus, we say the o6Bce of executor or guardian ; or the office of a friend. In mj judgment, an attorney or counselor does not hold an oflBce, but exercises a privilege or franchise." The word "office" does not mean a public trust, which is merely transleut, occasional, or incidental, and this Ts occasional, transient, and incidental. It may occur not once in a hundred years ; it may occur not once in fifty or two hundred years. Whenever it does occur, it is nierelv occasional, transient, and incidental, and therefore, within the meani'ng of that opinion, not an office. Again, in the case of Walker vs. Cincinnati, twenty-first Ohio, page fifty, the Court, in construing this clause of the Constitution — "The general Assembly, in cases not provided for in this Constitution, shall fix the term of office and the compensation of all officers" — savs: "This clause cannot be regarded as comprehending more than such offices as may be created to ajd in the permanent administration of the government." This is in corroboration of the view which I have already advanced, •nd follows directly in the line of the decision in the f^econd Iowa Reports. 'Sow, further upon this question of authority. If I read the minority report correctly, I think they have, in a slurring way, said, or some one has said, that the majoritv could only find one precedent, and that was the precedent of Judge O'^elveney, who occupied a seat in the Coavention of Illinois of eighteen hundred and sixty-two. There is another, sir, directly in point, from that State. The Constitution of the State of Illinois of eighteen hundred and forty-eight, under which the Convention of eighteen hundred and seventy was held, contains this clause: ''Brerr penoD who ahall be chosen or appolntod to any office of tniat or profit ihalli Mbre enteriog upon the daties thereof; take an oath to support the ConstJItttlon of the Uaitcd States, and of this SUte, and alao an oath of ulBce." Now, sir, the law of Illinois which called the Convention of eighteen handred and seventy, following that provision of the Constitntion,and per- haps without reflection, supposing it was an office, contained a provision that every member of the Oanvention of eighteen hundred and seventy should take that constitutional oath. That is to say, before entering npon the discharge of his duties he shouM swear that he would support the Constitution of the United States; and of the State of Illinois. Yet, in the judgment of that Convention, that was not an office within the meaning of the Constitution. When the oath came to be administered, some gentlemen of the Convention had conscientious scruples, and refused to take the oath. They said that they were sent there to tear that Constitution limb from limb; that they intended to lay irreverent bands upon it, and that led to a very able and exhaustive discussion of that (jnesUon, whether it was an office within the meaning of the Con- ttitution of the State of Illinois. And I would here remark that the Con- atitotion of Illinois, of eighteen hundred and forty-eight, was precisely like ours; that is, substantially like ours in every particular in regard to the amendment or revieing of the Constitution of that State, and to calling a Convention. That question arose upon that clause of the Con- stitution, and it was debated for four or five days, and if gentlemen will consult the debates and proceedings, they will find forty or fifty pages of that discussion, participated in by such lawyers as Browning, of Illinois, Medill, one of the greatest editors of this country, Judge Skinner, of Illinois, who was a member of that Convention, and by others, the most eminent lawyers of the Northwest; and it was decided by an overwhelming vote in that Convention, or by a very large majority, that it waa not an office within the meaning of the Constitution, and thev modified the oath which had been prescribed by the Legislature, and instead of swearing to support the Constitution of the Unit«l Stat«8, and the Constitution of lUifaoie, they swore that they would support the Constitution of the United States, and the State of Illinois, so lar as it was compatible with their duties as members of that Convention. There, sir, is an authority directly in point, corresponding exactly with the case before this Convention. But I have another authority here which, perhaps, will win the con- fidence and respect of this Convention more than any yet cited. There *S8 an ancient statute in Virginia, adopted about the time the Consti- tution of the United States was adopted, and just prior to the organiza- tion of the State government of Virginia under tnat Constitution, or, perhaps more strictly and correctly speaking, adjustment of the govern- ment of Virginia under these new rules — there was an ancient statute passed by that Legislature, I think, of seventeen hundred and eighty- eight — a Legislature of which John Marshall, Chief Justice of the United States afterwords — was a member; and I have somewhere seen the •tatement that John Marshall's hands had more to do with the prepara- tion of the laws of Vir^'nia than any other man, or set of men almost, in the State. I find, sir, in the laws of Virginia of seventeen hundred and eighty-eight, an Act passed on the eighth of December of that year, which provides : "Be U Uter^an enacUd by the Oeneral Auembln, That the members of the Oon- (na of the Cnited Statea, and all other penoot who aball bold any leglalatire, necatlTe, or judicial office, or other lucrative office whatsoeTer under the authority ot the United States, shall be ineligible to and be Incapable of holding any leal in •itber hooM of the General Aiaembly, or any legi«I«tiTe,execntI re, or judicial office, or other locratlTe office whatsoeTer under the goTernment of the commonwealth." Now, sir, that extract I hold to be applicable here. The law of Vi rginia provided that no person holding a judicial office under the United States ■hould exercise a legislative office in the State of Virginia. That law haa been preserved in that State to this day. It was passed in a Legis- Istura of which John Marshall was a conspicuous ana most influential meinber. In eighteen hundred and twenty-nine Chief Justice Marshall ooenraed a seat in the Constitutional Convention of Virginia, notwith- ■tnoiDgthia provision in the statute which he helped to make, that no Julisial officer of the United States could hold any office, legislative, sxsootiTe, or judicial, in the State of Vfrginia. Nov, air, I did not intend to occupy so much of the time of the Con- vention as I have done. I had deemed it my duty in the conflict of opinion that prevails in the press of this State, and perhaps in here, although I have talked with very few gentlemen on the floor upon this subject — I have deemed it my duty to go somewhat extensively into an expression of the grounds upon which I base my vote in favor of the sitting member, f do not believe that it is in any sense a legislative* office which this body is exercising. I do not believe that it is within the prohibition of section sixteen of article six of the Constitution, and I shall therefore vote in favor of the claimant. There is one other point I wish to call to the attention of the Conven- tion. I take the position that it is incompetent for this body, or for any Constitutional Convention, to prescribe to posterity or to a future gene- ration the agencies they shall select to change, revise, or in any way affect their organic law. Now, sir, section sixteen, to which I have referred, according to the gentlemen opposed to the sitting member, means this — the framers of the Constitution directed that a certain person should not hold position in this Convention. You admit that, and it leads logically and inevitably to this position : that if this Convention can say to a future generation who snail not sit in a Convention to frame its organic law, this Convention mav also dictate to a future generation who or what class may convene for that solemn duty. You admit that power and there is no denial of this result, that you may say here in this Con- vention, that after twenty-five or twenty years, or any time, nobody shall revise this organic law except those gentlemen who belong to the landed aristocracy. You may say, without intending to reduce it to an absurdity, that it shall not be revised except by a Convention of old women. I deny the proposition. I say it is utterly beyond the power of this Convention to say who shall sit in its primary assembly to revise, change, alter, or frame an organic law that is to operate upon all gene- rations to come. Now, I have a little outhority upon that point. In the Convention of Virginia, to which I refer, a resolution bearing directly upon this ques- tion was introduced in the Committee of the Whole, and it was adopted by the Committee of the Whole, adopting a clause in the Constitution of Virginia pointing out and prescribing, by definite limitation, the Sower to amend or cnange that Constitution in future time. John Ran- olph, who was a member of that Cimvention, assailed it upon the'very point which I make, sir. He says: *' Wher' is the neceaslty of thio provision In the Constitution? Where la the nae of It? Sir, what are wo about? Have we not been undoing what the wiBf>r heads — I must be ponnitted to aay so — yoe, air, what the wiitwer from the primary source of all power, and that is the people. It is entirely out- side and independent of this government — that is legislative, executive, and judicial, as defined there. We have nothing to do with either of these departments. We arc independent of them. They cannot in- terfere with us. We are directly resjwnsible to the people for what we do. And right here, in further illustration, is there any act we can do Uiat enters into the concoction of an organic law? Are we not limited to the framing of an instrument to be submitted to the people. Now, there is a distinction between this and the Senate and Asjtemblv, and that is borne out by Mr. Cooley in his work on constitutional llmitii- tions. An Act of the Legislature haa binding force anower to decide as to their rights judicially ; and, therefore, it is not remarkable that no contestant has appeared upou the scene of action. In asserting the ineligibility of Judge Fawcett, we do not have recourse, as stated by the gentleman from Sacramento, Mr. Edgerton, particularly to article three of the present Constitution. It says : " The powers of the government of the State of California shall be divided into three separate departments — the Legislative, the Executive, and Judicial — and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function apper- taining to either of the others, except in the cases hereinafter expressly directed or permitted." But we place special reliance upon section sixteen, of article six. It says : " Tne Justices of the Supreme Court, and the District Judges, and the County Judges, shall be ineligible to any other office than a judicial office during the term for which tney shall have been elected." I desire in the course of my argument, to call your particular attention to the fact that although article three of the Constitution says, that there are three departments of government, and that any incumbent of one department shall he ineligible to occupy a position in any other department — although the very raiding of the article would seem to be conclusive, and would preclude any individual occupying official position in any one of these departments from occupying an official position in any other department — although the thing is general and comprehensive, yet I call your particular attention at this point, and I shall more especially do so hereafter in my argument, to the fact that the people of the State of California deemed it expedient to insert another clause in the Constitution, and to (>articularly specify, designate, and say that certain Judges should not occupy any other office. I claim that section sixteen of article six is more comprehensive than the other, and I shall show that every decision that has been brought here by the gentleman from Sacramento, Mr. Edgerton, has solo reference to arti- cle three of the Constitution, and does not touch section sixteen of article six of the Constitution at all. It seems to me that the gentleman's case falls within the provision of section sixteen of article six. In anwer to this position, it is maintained by the gentleman from Sac- ramento, Mr. Edgerton, and generally by the gentlemen who hold views in opposition to the views of the minority of the Judiciary Committee, first, that the po8ltloBsess the right to chooee any one they may desire to fill the positian, regardless of any prescribed rule of action. That it is an office, seems to us lM>yund the powec of successful contradiction, and in support of the theory that it Is an office, I call ^our attention, first, to the very origin of the word " office." It originates from ob and /acere, signify- ing " to do for or on account of." To do for or on acccount of any one. Mr. Burrell gives the following definition: "A position or station in which a person is employed to perform certain duties, and by virtue of which he becomes charged with the performance of certain duties, public or private." Mr. Webster defines an office to be a duty, or charge, or trust. Mr. Worcester defines it to be a public charge. The matt<>r of what the meaning of the word office under the Consti- tution of a State is, was passed upon in the case of Bradford vs. Justices Inferior Court, in the 33d of Georgia, page 332, in which the Supreme Court of the State of Georgia says: " Where an Individual has been appointed or elected, in a manner prescribed by law, has a designation or title given him by law, and exercises functions concerning the public, assigned him by law, he must be regarded as a public officer." Again, in the case of SbeHiy ▼(. Aloom, 36 Mississippi, 273, the Supreme Court of that State made use of the following language. This was a case in relation to a gentleman who had been appointed a Levee Commissioner, and it was claimed on the one hand that he was not an officer, and that it was not an office, and on the other hand that he was an officer, and the position he occupied was an office. The law creating and regulating the duties of the office of Levee Commissioner provides: "That the Incnmbeut nhMll receire his appointment from the Board of Police of CoaboDia County, and hutd hii offlce for two yean; that he ehall giro an official lx>nd, and shall act afl Treasurer, and ma euch shall receire and diabnrse public money; that he shall take an oath * that be will, in all thing* touching his offlc«, seek to promote the t>eBt Intereet of his country and of the Ijtate of Mlaaiesippi;' that he xhall make a report or the cost of building and repfUrlng the lerees on the UM^ sippi Biver, and thereupon the Board if Police is required to levy a tax sufficient to meet it ; that he shall receive a salary of fifteen hundred dolUrs, payable out of the Levee Fund. The Levee Commissioner is also charged with the performance rima inter pares, when compared with other departments of the government; or, as it has been expressed by specu- lative writers, is more nearly sovereign than any of the departments which are ordinarily regardeid as coordinate with it. " The third species of Conventions, as its name implies, is a part of the apparatus of revolution. It consists of those bodies of men who, in limes of political crisis, assume, or have cast upon them, provisionally, the function of government. They neither supplant or supplement the existing governmental organization. The principal characteristics of this species are, that they are dehors the law ; that they derive their powers, if justifiable, from necessity — the necessity, in default of the regular authorities, of protection and guidance to tlie commonwealth — or, if not justifiable, from revolutionary force and violence; that they are possessed accordingly to an indeterminate extent, depending on the circumstances of each case, of governmental powers; finally, t£at they are not subordinate or ancillary to any other institution whatever, but lords paramount of the entire political domain. To this may be added, that they are of no definite numbers or organization, comprising some- times one and sometimes several chambers, and composed indifferently of ex-officers of the government that was, of persons possessing neither office nor the qualifications for it, nor even for the elective franchise, or a mixture of all of these together, as chance may have tossed them to the surface. The general purpose of the revolutionary Constitution, moreover, is to bridge over a chasm between two- orders of things; an order that has expired or been extinguished, and an order emerging, under the operation of existing social forces, to replace it. In short, a revolutionary convention, is simply a provisional government. " Examples of the Revolutionary Convention have been numerous in the political history of the world, and they are becoming daily more so. Among the roost famous, and, for our purpose, the most important, are those held in England in sixteen hundred and sixty and in sixteen hundred and sixty-nine. " Interesting examples of the Revolutionary Convention are found in onrown history. The first occurred in New England simultaneously with the English Convention of sixteen hundred and eighty-nine, its assembly being the result, in part, of the same causes which led to that, but, in part, of causes local to New England. Both, however, xen called and composed in a similar manner, and organized after the same model, that of sixteen hundred and sixty, convened at the time of the restoration. " Enough has been said, however, to show the characteristic fealniea of an institution, too often, as we shall see, confounded with the Consti- tutional Convention, to which I now pass. " The last species of the Convention is the Constitutional Convention. It differs from the last preceding, in being, as its name implies, Constitu- tional ; not simply as having for its object the framing or amending of Constitutions, but as being within, rather than without, the pale of the fundamental law ; as ancillary and subservient and not paramount and hostile to it. This snocies of Convention sustains an official relation to the State, considerea as a political organization. It is charged with a definite and not a discretionary and indeterminate function. It always acts under a commission, for a purpose ascertained and limit»l by law or custom. Its principal feature, as contradistinguished from the Revo- lutionary Convention, is, that at every step and moment of its existence it is subaltern. It is evoked by the side and at the call of a gorem- ment preexisting and intended to survive it, for the purpose of aaminie- tering to its special needs. " It never supplants the existing organization. It never govema Though called to look into and recommend improvements in the funda- mental laws, it enacts neither them nor the statute law, and it performs no act of administration. As John Randolph said in the Virginia Con- vention of eighteen hundred and twenty-nine, it is called as counsel to the people, as a state physician, to prt pose remedies for the State's dis- eases. But it is a physician irhose ministrations are confined to the extraordinary maladies requiring a fundamental change in the Consti- tution, not to those constantly recuning but petty disorders which demand the interposition of the ordinary Legislature. " It is apparent that institutions whose definitions mutually exclude each other, cannot be the same, however similar the names by which they are popularly known. But it may happen (instances will be here- after mentioned in which it has happened) that the Constitutional Con- vention may, by usurpation, assume one or more of the powers of the Revolutionary Convention ; or that the latter may exercise thoee of the former. How, in such a case, is the usurping body to be classed ? This question is of great importance, but it is susceptible of a ready answer. "A Revolutionary Convention, because it is ex vi termini, unlimited, in respect of both the kind and the degree of its powers, may take upon itself the functions of either of the three lower species of Conventions, under the same warrant by which it justifies the assumption of revolu- tionary powers. A body which can, violently and without law, uproot all existing institutions, can clearly do the lesser act of digesting, or even of enacting, amendments to the Constitution. But, in doing so, it does not change its original character ; it is still a Revolutionary Convention, and all its acts must stand on the footing of those which involve the widest stretch of power. "But the converse of this proposition does not hold true. If a Con- stitutional Convention step outside the cihcle of the law, it does not con- tinue to be a Constitutional Convention, but, so far, becomes that whose powers ormethods it assumes — a Revolutionary Convention. It leaves the domain of law, which is one of specified and restricted powers, and enters upon that of arbitrary discretion, within which law is silent, and where he is master who wields the greater force." As we state in the minority report it would be just as competent for this Convention to determine arbitrarily who shall sit here, and who shall not sit here, and who may be admitted here, as to arbitrarily expel any man and take another person into his scat. It would be just as proper for this Convention to do that, as to say that it can run entirely outside of the pale of all recognized law and authority. Mr. Jameson contin- ues, in section three hundred and twenty-four: " In my judgment, there can be but little doubt, that a member of a Digitized by Google Oct. 24, 1878. OF THE CONSTITUTIONAL CONVENTION. 187 CoDTention, is, in the enlarged and proper acceptation of the term, an 'officer' of the State. This follows, not simply from the reasonings in the Illinois Conrention, of which, somewhat developed in details, an abstract has been given, but especially from the principles explained in preceding sections. A Convention is part of the apparatus by which a sovereign society does its work as a political organism. It is the sov- ereign, as organized for the purpose of renewing or repairing the gov- ernmental machinery. That same sovereign, as organised for the purpose of making laws, is the Legislature; as organized for the purpose of appIying«or carrying into effect the laws, it is the judiciary or the executive. These successive forms into which the sovereign resolves itself, are but systems of organization having relation more or less directly to the government of the society." It has further been said that if the existing Constitution contains any pro- visions which limit the power of this Convention to admit any one to a seat in the Convention, or which limit the power of the Convention to decide ss to the eligibility of any member of the Convention, or, in other words, if there is anythhjg in the existing Constitution which lays down a test and rule of eligibility to the members of this Convention, that section and that clause of the Constitution is null and void, and of no effect. It is claimed that it is null and void and of no effect because the people of a past age cannot limit the people of the present age. It is claimed that this Convention would have n<4 right to limit the power of the eoming generations in the Constitution that they are about to frame. With due deference to the gentlemen who have advanced that theory, I am obliged to differ. If that were the case, no law could have any effect in this State, because the people of t«-morrow would simply be obliged to raise up and say: "You people of yesterday had no right io prescribe to us what the law to-day should be." It is the reverence with which the laws are held that gives us a fundamental and stable government. The stabilitv of the government rests entirely upon the respect that the people wKo are to-day living have for the laws that were made by the people of yesterday and day before yesterday. It is the respect ^at we have for the laws that were made at the organ- iistion of these United States that makes this a stable government. Any entering wedge that says that we have a right to disregard the opinions of the men of yesterday, because they do not agree with our opinions, simply because we are the sovereigns of to-day, is a pernicious doctrine, and it will inevitably run the ship of State into destruction and into despair. It is contrary to the opinion of every statesman from Washington down. Mr. Webster said — I quote from the works of Daniel Webster, volume 6, page 224. Mr. Webster was called the great expounder of the Constitution — as a man pre-eminently above all other men ; as embodying the wisdom necessary to expound and explain the existing Constitution of the United States; a man who had devoted years of toil and years of study to that instrument. Mr. Webster says ; "I have said that it is one principle of the American system, that the people limit their governments. National and State. They do so; but it 18 another principle, equally true and certain, and accordinpio my judg- ment of thmgs, equally important, that the people often limit themselves. They set bounds to their own power. They nave chosen to secure the insti- tutions which they establish against the sudden impulses of mere major- ities. All our iiutitutions teem with instances of this. It was their great conservative principle, in constituting forms of government, that they should secure what they had established against hasty changes by simple majoritiee. By the fifth article of the Constitution of the United States, Congress, two thirds of both houses concurring, may propose amendmenU to the Constitution ; or, on the application of the Legisla- tnresof two thirds of the States, may call a Convention ; and amendments proposed in either of these forma must be ratified by the Legislatures or Conventions of three fourths of the States. "The fifth article of the Constitution, if it was made a topic for those who framed the ' People's Constitution ' of Khode Island, could only have been a matter of reproach. It gives no countenance to any of their pro- ceedings, or to anything like them. On the contrary, it is one remarka- ble instance of the enactment and application of that great American principle, that the constitution of government should be cautiously and prudently interfered with, and that chanijes should not ordinarily be o^^n and carried through by bare majorities. "But the people limit themselves, also, in other ways. They limit themselves in tne first exercise of their political rights. They limit themselves, by all their Constitutions, in two important respects; that is to say, in regard to the qualifications of electors, and in regard to the qualifications of the elected. In every State, and in all the States, the people have precluded themselves from voting for everybody they might wish to vote for; they have limited their own right of choosing. They have said, ' We will elect no man who has not such and such qualifica- tjons. We will not vote ourselves unless we have such and such quali- fications.' They have also limited themselves to certain prescribed forms for the conduct of elections. They must vote at a particular place, at a particular time, under particular conditions, or not at all. "It is in these modes that we are to ascertain the will of the American people; and our Constitution and laws know no other mode. We are not to take the will of the people from public meetings, nor from tumul- taons assemblies, by which the timid are terrified, the prudent alarmed, and by which society is disturbed. These are not American modes of signifying the will of the people, and never were. If anything in the coontry, not ascertained by a regular vote, bjy regular returns, and by reguUu- representation, has been established, it is an exception, and not the rule; it is an anomaly which, I believe, can scarcely be found. " It is true that at the Revolution, when all government was imme- diately dissolved, the people got together, and what did they do? Did they exercise sovereign power? Tney began an inceptive organization, the otnect of which was to bring together representatives of the people, who Would form a government." Tluae are the words of Daniel Webster, that the people do limit them- selves as to who can vote and who can be voted for. In this particular instance the people have said, by the fundamental law of the land, that no man who is a District Judge of the State of California shall have a right to occupy any oflSce. If the plea of the gentleman in favor of the eligibility of Judge Faw- oett is not evasive, and if it is not a plea based upon convenience of seat- ing the gentleman in a chair upon this floor, then I ask you what it is. The gentleman says himself, "when 1 first examined the law in reference to my case; when I first read the sixteenth section of article six of the Constitution, I was satisfied that I was ineligible." Therefore he adinita that a plain reading of that section says that he is ineligible. I challenge any man to take that section and read it (the plain reading) and consider it any other wa^ than to say that Judge Fawcett is ineligible to this office. Of course, it will be possible, if it is so determined, to conjure up some- thing on which to base a declaration of eligibility. Of course it is well known how possible it is for men skilled in the law — for men skilled in matters of this character particularly — to conjure up something which proves that day is night and night is day. But if we are going to read, it seems to me that it is proper for us to read the plain text — the appa- rent and plain interpretation of the text. Article ten of the preaeut Con- stitution, says that the Constitution may be altered, amended, or revised. It goes on in section one and provides how the Legislature may provide for an amendment to the Constitution. In section two it provides bow a Constitutional Convention can be called and how it is to be called. Therefore the existing Constitution expressly, provides for this depart- ment of the government, and I do not see how a party can go upon any other theory. The Constitution expressly provides that such a depart- ment of government, when necessary, shall spring into existence, and after such a department of government does spring into existence, then the men that occupy positions in that department of government hold office under the Constitution as it exists and under the laws as they exist to-day ; and if they are oflBcers they certainly are State officers. Authorities have been read this morning which I take occasion to refer to at this time, and which I will briefly pass over before I close. The main reliance is placed upon the decision found in the 34th Cal. That decision passed upon article three, which says that the powers of the Government of the State of California shall be divided into three depart- ments— the legislative, executive, and judicial; that no person charged with the exercise of the powers properly belonging to one of these depart- ments shall exercise any function pertaining to either of the others. The decision said that that had reference solely and alone to incumbents of these tfiree departments of the State government — in other words, to State officers; that it had no reference to any persons who were not State officers. And the decision turns upon exactly these two pointa : first, the construction of article three, and second, the decision that article three has reference merely to State officers. But the^ never pretended to declare and lay down the rule of law for section sixteen of article six. Section sixteen says : " The Judges of the Supreme Court, and the District Judges, and the County Judges, shall be ineligible to any other ofiice than a judicial office during the term for which they shall have been elected." Now, gentlemen, if you closely follow the reading of article three of the Constitution, you will see that it says that no person charged with any of these duties shall have the right to exercise any function in any other department. That if he is a Judge he cannot be a legislator; if he is a Judge he cannot be Governor at the same time. It there states that the ineligibility shall be based solely and alone— and the exclusion clause there hjis solely and alone reference to the officers that are desig- nated in the three departments of the government. It says that no incumbent of one of these departments shall hold any ofllee under either of the other two departments. But by referring to section sixteen of article six, it will be seen that it does not say that no Judge of the Supreme Court, no Judge of a District Court, no Judge of a County Court, shall hold office in any of the three departments of the government. Why don't it say that? The other speaks of the government. Article three speaks of the departments of the government, but section sixteen of article six does not speak of the departments of the government. It directly asserts that no Judge shall hold any ofiice — any office. There is a clear distinction. The gentlemen try to drive us back into article three. Article three has got no application to this case at all. It might as well be struck out from the Constitution, for the purposes of this case. Article three confines it so that a man holding one office in one depart- ment shall not hold an office in either of the oUier two departments; but section sixteen of article six comes out, broadly and comprehensively, and says that a man who is a Judge of a County Court, or a District Court, or of ine Supreme Court, shall hold no office at all other than the office of Judge. If it desired to confine the inhibitions and the ineligibility merely to these three departments, then, gentlemen, I ask you why didn't it say so, as article two says? It inhibita these Judges from hold- ing any office other than the office of Judge, whether the position be in these three departments or not. As I took occasion to state this morning, it is the plain duty of the members of this Convention, sitting as judges, to give full effect to that Constitution. You have got no right to say that any provision of the existing Constitution is a dead letter. Everj;thing must have vitality; everything must have life within that Constitution, if vitality and life can be given thereto. Section sixteen of article six merely goes beyond, is more comprehensive and more expansive than article three, and both of them, when judicially interpreted, will have life, and both of them will have vitality. If the vote of this Convention is to be baaed upon the words of law; if it is to be based upon precedent; if it is to be in con- sonance with the avowed principles that underlie the American system of government, then, of course, it is necessary to critically examine and pass upon what those principles are, and what the decisions have been upon Mils point. If, however, the vote is to be merely a complimentary vote; if we are merely to vote for the gentleman because he is a geutle- 188 DEBATES AND PROCEEDINGS Thursday, man — and I recognize that fact with every gentleman here to-day — I recognize Judge Fawcett to be a gentleman, a perfect gentleman; I recognize his ability; I recognize his learning. We are not crusading against him or his character. This is not a personal fight. It is a mere matter to determine what the status of this Convention is; whether this Convention is a lawful Convention, or whether it is a revolutionary Convention. We are merely determining what the law is. It is from principle that this action has been taken, and not from feeling at all. From the examination that I have been able to give the subject, I have come to the determination, first, that it was an office; second, that it was an office that clearly fell within the ineligibility clause of the existing Constitution. I have been unable to agree with the worthy and learned gentlemen who form a majority of the Judiciary Committee. Of course it may be my clouded intellect, and it may Ije my ignorance; but itseems to me the jiosition that I take in this matter is a position based upon honesty and integrity. I believe it to be the law as I have stated the law to be. and I believe that that law asks and demands of this Conven- tion that Judge Fawcett be declared ineligible to hold a seat in this Convention. BRXASEg or HB. BROWN. Me. brown. Mr. President: I do not feel inclined to take up any preat length of time in defining my position before this body, and stat- mg why it is that I cast my vote as I shall. It would be tnuch nmre convenient, especially with the intense cold that I have and my bodily weakness, if I could make myself beard without having to exert myself to the utmost capacity of my voice, but I will endeavor to be beanl in this large room and by this large assemblage. Now we have presented before us the idea that a certain member who has been acting with us in this Convention, and hoMinga very high and prominentpoeition in on^of the committees of this house, should be expelled. I am now speaking by way of introduction, with regard to what might be considered the impro- priety of taking up this subject at this time, when one third of the time allotted to us to attend to the forming of a new tVmstilution has expired. But if it be true that this gentleman is ineligible to this office, ana it it be clearly proven before this body that he unconstitutionally holds the position here which he does hold, as a matter of course the members of this body are bound by the strong obligation of an oath to excluile him from their deliberations. You have had presented before you the idea that if we do not arrive at certain conclusions, and if we do not inter- pret the Constitution as some other members in this body interpret it, that we are revolutionary. We must see through the glas-ses of some men ; we must take the standp<>int that they do; we must go through the process of reasoning that they do, and arrive at the same conclu- sions, otherwise we are acting unconstitutionally — otherwise we are acting revolutionary. I do not think thus. They are the gentlemen's views, of coiirse. We hear their statements as to constitutionality and the positions tlieytake; the reasons why they arrive at their conclu- sions, and if those conclusions ap|)earto us to be incorrect, as free agents and representatives of the people, we hold it to be right to lay their views aside, however sincerely they may believe them it matters not. Now we have heard so much said concerning constitutionality, and it was supposed to be so clearly proven in some in.stance», that it would seem to be almost improper to say anything more whatever upon the subject, but when we take into consideration what is said in article three, the section with regard to the powers of government, it seems to me that we must arrive at some conclusion so far as that matter goes. It says : " The powers of the government of the State of California shall be divided into three separate departmente — the legislative, the executive, and judicial ; and no person charged with the exercise of powers prop- erly belonging to one of these departments shall exercise any functions appertaining to either of the others, excc])t in the cases hereinafter expressly directed or permitted." Now, it apjiears very plain that those occupying a judicial position, having an office of that nature, cannot have either of the others. One position upon the subject is that this is legislative; that it is a branch of the Legislature. Let us examine article, four, section one. It says : "The legislative power of this State shall be vested in a Senate and Assembly." There is where the legislative power of the State is vested. " The legislative power of the State shall be ve.ited in a Senate and Assembly, which shall be designated the Legislature of the State of California." Now, gentlemen have inquired if certain things were so; was, or not, the Constitution so and so? Here we inquire again if it be that this body is legislative, why didn't the Constitution say so ? It says here plainly, says indubitably — too clearly to be misunderstood — that the legislative power shall be vested in the Senate and Assembly. There is where it is. Now, it is plain to me that this is only a council. The gentleman from San Francisco, Mr. Beerstecher, in his elTort to prove this an office, read from an authority where it referred to a body of this description as a council. I think it is a kind of advisory council ; and nothing that has been done here has life or vitality until the voice of the people — not the signature of the Ciovernor — but the vote of the people gives it life and vitality. Would the gentleman conclude that the people are officers; that" they are the Governor in this respect; I con- clude not. But the great difficulty seems to be with section sixteen of article six, which says: " The Justices of the Supreme Court, and the District Judges, and the County Judges, shall be ineligible to any sther office than a judicial oflRce, during the term for which they shall have been elected." Now this matter has been explaitied, but I will tell my reasons why I vote as I do. I am convinced that what we have read concerning oflSces as carrying out the great principles under the laws and the Con- stitution of this State, and on its operations, that this body is extra- ordinary in its tendencies and that it is diflerent from any legislative body, comes to this, that the great mass of the people are appealed to; that what is done goes before them, and it is with them to determine whether what is done is done correctly. Now it seems to me that when we take this into consideration — anendence, I indorse: when grievances become such that they can- not be borne, then that other |>ower of revolution steps in; but coming here under the forms of law, I think that we sit hero as a Oatutitutional Convention. MK. fkkkman's bemarks. Mr. freeman. Mr. President: I desire to state as briefly as ma^ be the reasons which influence my opinion and judgment upon this occasion, rather than to mrticipate in the debate, which has now occu- pied considerable time. The question has been mooted, rather than dis- cussed, concerning the sovereign powers of this Convention, or of the people, and as to their right, even if they so intended by the Constitu- tion, to prevent any person from entering this chamber as a member. I will say that without discussing that question, I understand myself to l)e occupying, uot a revolutionary position, but, as a member of a Con- stitutional Convention — which is.conslitutional in the double sense — that it meets under and in pursuance of one Constitution for the purpose of projxising another; and I shall, therefore, address myself to the question whether, conceding that it was possible, in the adoption of the present Constitution to bind this people and this Convention, this course has been taken. Section one of article three, in regard to the distribution of powers, bos already been roferred to at considerable length, and the decisions, I believe, cited in the rejiort of the majority of the Committee on Judiciary, are in cases which have arisen under that article, or arti- cles substantially like it. Those decisions in the Iowa cases in regard to the Mayor of Keokuk, the California case, and I think the Indiana case, only go to this extent: that this distribution of powers is a mere distri- bution for the purposes of State government ; that it does not control municipal governments, and that it is competent for the Legislatures of the respective States to authorize the officers of the municipalities to perform functions which are both in their nature executive and judicial. Those authorities, therefore, do not approach the question under consideration, nor do 1 believe there exists any authority, unless the judgment of the Illinois Convention may be regarded as authority. I understand precisely this question was before that Convention, and that it was decided, and decided as the majority of the Committee on Judiciary think that it ought to be decided here. I will refer to the matter of the distribution of powers in article three, section one, only to illustrate this idea: that it seemed to have been the intention of the framcrs of the Constitution, and of the people, to create separate departments of government, and to keep these departments separate from each other, so that persons performing the functions of one of these departments should not be interested in the performance of the functions of any other department. Without relying upon this section, we may pass at once to section sixteen of article six, and when we do so — with all due deference to the opinions of the Judiciary Committee — we read language which seems to me to be too unmistakable to be doubted, and that is that the Justices of the Supreme Court, the Judges of the District Courts, and County Judges shall be ineligible to any other office during the term for which they shall have been elected, except a judicial office. Now It seems to me the only question is whether this is an office, and 1 do not believe there can be any definition found of the word office, which is not applicable to the position of a memberof this Convention. I think the definition, as found in the ordinary dictionary, and the defini- tions found in the law dictionary, and those laid down by the Judges in general terms, are substantially identical. An office is the right to exer- cise a public function or employment, or as Webster's Dictionary gives it, " An office is a particular duty, charge, or trust, conferred by public authority for a public purpose." Are we not now engaged in the per- formance of a duty, of a charge, of a trust? That we are now perform- a duty and a trust I think no one will undertake to doubt. Is not this a duty ? Is uot this a trust, and a public one? Is it not conferred by the public for a public purpose? Is it not conferred in that particular manner which in a republican form of government is selected for the election of officers? Is it not conferred by an election, ^ither by the people of the whole State, or by the particular districts which gentlenoen here represent? Now, I believe that the majorit^r report of the Judiciary Committee does not undertake to sajr that tins is not an office, but says that it is not an office in the sense in which the word is used in the Constitution. Whatever others may find in the Constitution, I find nothing there which leads me to believe that the word office, in section sixteen of arti- cle six, is used in any other than its broad and general sense, namely, a public trust, conferred by public authority, for a public purpose. It has been conceded, I believe', that almost the first view which every lawyer would take of this question is that a Judge is not entitled to hold such a position. It has been said to be a superficial view — it may be that it is a superficial view — it is the natural view, it is the ordinary view which arises from the ordinary signification of words; and I put this question, whether, in an instrument which is voted upon by the people, by men of ordinary understanding, this word is not deetoed to mean| Li^fiiL: Digitized by VjOOQ IC 190 DEBATES AND PROCEEDINGS Thursday, what is ordinarilf meant by the word office, or whether the people are deemed to have adopted that particular meaning which we arc here in substance told is only to be arrived at by men of great comprehension. These are affirmative reasons, in my judgment, why I cannot vote that the person whose seat is now being consier of votes shall be elected, and now it IS asked by us to interpolate upon the present Constitution, and to say that no man who is a Judge shall be competent to sit here. There is no logic in that proposition; there is no reason for it. The Constitution framers of eighteen hundred and forty-nine never contemplated any such construction. If they did, they have failed to say so, and I aver, sir, that in relation to the call for the Constitutional Convention, and the methods of election and the qualifications of candidates, that this provision in the tenth article is the only operative, the only controlling one. Nor can the sixteenth section of article six — relative to the judi- ciary department — be invoked to control the second section of the tenth article. It cannot be considered that it forms any pari in the construction of the tenth article. Why, sir, if the argument contended for were true, that this gentle- man is not eligible because he is a Judge, then it would follow that we cannot touch a single article in the present Constitution in relation to the legislative, executive, or judicial deportments, because, thej ssy, we have sworn to support this Constitution, and this Constitution remains in force until we finally adjourn. If that be so, sir, then oar hands are tied ; then we have no power here to vote upon the subjects upon which we are called, or a case, they take the language in its broad sense; they look at the objects and intention of the framera of the instrument. I quote briefly from Judge Story for authority on the subjectof interpretation. He says : "The first and fundamental rule in interpretation of all instruments is to construe them according to the sense of the terms and the intention of the parties." You don't take the naked language, you regard the sense of the words ; you are governed by the meaning, the intention of the framera ; those are the great polar stars of interpretation. Now, sir, is it possible, can it be possible, that auvbody would suppose that the framers of the present Constitution intende<{ to exclude the most competent men in the whole conntry ^m this assembly 7 Sir, I do not think they are liable to that reproach; I think it is casting upon them the charge of stultification to hold that such was their intention. Again, sir, to hold that would be to chaigethem with absurdity. It would be not merely an absurdity, but an injnstioe to their country, to their fellow countrymen, if such was their meaning. It is not to be presumed. J udge Story continues : " Illustrations may be further derived froib the subject-matter, with reference to which the expressions are used ; that the effect and conse- quence of a particular construction is to be examined, because if the lit- eral meaning involves a manifest absurdity, it ought not to be adopted ; and that the reason and spirit of the law, or the causes which led to its enactment, are often the best exponents of the words, and limit their application." Now, sir, I say there is no reason, there is no fair construction of the sixteenth section, which would exclude Judges. Ko such interpretation can be given to it, no such intention can be gathered from it, no such purpose could have entered the heads of the framers of the present Con- stitution, because to say so would charge them with absurdity. More than all that, we must look at the mischief. The mischief was, that per- sons under the present Constitution, under the government as organised, should not be allowed to hold U-x) many offices; and that one holding a judicial office should not be allowed to occupy any other under the gov- ernment of that Constitution. It did not mean to extend to a prohibition to holding a seat in a Convention called by the sovereign people of the country for the abrogation of the Constitution itself. It was never intended to have that force or that construction. It never could have been the purpose of the framers of the Constitution to have excluded a judicial officer. It expressly says that he may be eligible to a judicial office, but it does not define a judicial office, it does not say to an office exclusively judicial. The functions of a member here are partly legisla- tive and partly judicial, aud I assume that the language of the sixteenth •ection is not to be construed to exclude a Judge from this Convention on the ground that it is judicial, because there is no pretense that it must be exclusively judicial. Again, sir, I deny that membership of this body is an office; I maintain that it is simply an employment, and I hold that the authorities, the common law authorities, draw a clear and unmis- takable distinction between an " office " and a " place," an " office " and a "trust," an "office" and an "employment." The Constitution must beoonstraed with reference to the common law. This question came heibre the Constitutional Convention of the State of Illinois. Some of the delegates in that body refused to take the oath to support the Con- ttitatioa because they said that they came there to overturn and destroy the tken present Constitution, and the answer made to that was, that the poaitian of delegate to the Constitutional Convention of the State of Illi- iHNsma not an office within the meaning of the Constitution, and, after a es«Ail examination of the authorities in the case of Judge O'Melveny , dedand that it was not an office, and that he was a competent delegate. Ttmf fammarised all the common law decisions on the subject, and 1 in the Constitution: "An office is a public position, created by the Constitution or law, con- tinuing during the pleasure of the appointing power or for a fixed term, with a successor elected or appointed. An employment is an agency for a temporary purpose, whicn ceases whenever the purpose is accom- plished." Now, sir, that is a full and fair summary of the common law decisions upon the subject, and is conclusive. The matter was debatod by some of the ablest men in that Convention. It was thoroughly canvassed, and that was the conclusion to which they arrived: that to be an officer within the meaning of the Constitution — and their Constitution was sim- ilar to ours in that respect — it must be a place to which a successor was elected, that it must have a fixed term. There is no such thing in the tenure of a delegate. Are we to have any successors? Have we fixed terms? I take it for granted that when the hundred days expire, and our pay stops, we shall adjourn ; but we have no fixed terms. We have no successors, and, according to the text, it is not an office. Nay, more, sir, let us look at the latter part of the definition : "An employment is an agency for a temporary purpose, which ceases whenever that purpose is accomplished." Now, is not that precisely our position ? Are we not here for a tempo- rary purpose? Agents to do a particular thing, are we not clothed with a particular trust? And what is that trust? To make suggestions to the people for a Constitution. Now, sir, what becomes of all this techni- cality? What becomes of these fine-spun theories, this tortured con- struction that this is an office? What becomes of all this hunting into lexicographers; of all this looking into the head-notes of coses which have no application? It has no law, it has no logic to support it: and the precedents of this country, as I said before, for a century, are all the other way. I challenge the production of a single case in which a mem- ber of a Constitutional Convention has been turned out of a Convention because he held another office inconsistent with his i^osition as delegate to the Convention. If there is any such, it has escaped my notice, and I have endeavored to post myself on this matter. But I assert, sir, the only thing that fixes the qualifications of a delegate is the Constitution of eighteen hundred and forty-nine, and that is silent on the subject The organic Act presented no qualification for membership, and I hold that this is a question for the elective body, that it was a question exclu- sively for the voters, and we have no power to revise their decision. And Judge Fawcett might well say, as John Randolph said, when the Speaker of the House of Representatives asked him, when he presented himaelf to take the oath of office, if he was of competent age to he a member of that body. His reply was, " Ask my constituents." And now, sir, ask the constituents of Judge Fawcett if be is their man ; if they bold 'him com- petent; if they say ne is qualified ; if they say he is their choice. If they thus answer, sir, for us to go back of that decision would be gross tyranny and the vilest despotism. When this Convention come to examine this question carefuUv and with intelligence, I look upon it as impossible that this gentleman should be ousted from his place among us and sent back to his constituents, and his constituents be told that we hunted about in the old Constitution, and finding that the "i's" were not dotted and the "t's" were not crossed in favor of Fawcett, that we examined some obscure law dictionary and ascertained that section to assert that mem- bership in this body is a public trust, and therefore an office, and we sent home that delegate from Santa Barbara. If we perform this feat it will be the first Convention by which it has ever been done, and I hope the last one ever elected that will venture on such on outrage on the sover- eign rights of the people of California. SPIKCH OF KB. BABNUa. Mp. BARNES. Mr. President : The general questions at issue are full of interest, and although it might be instructive still further to pursue them, the lateness of the hour and the evident weariness of this assem- blage forbids their discussion. It seems to me it would have been better in the first place to consider what mischief was intended to be prevented by the provision of the Constitution which declares that Supreme Court Judges, District Court Judges, and County Judges shall be ineligible to any other than a judicial office. It is evident it was designed to keep the judicial department free from the excitements, the pleasures, the pains, and penalties of political life. It designed, so far as it was pos- sible, that the Judge on the bench should know no parties, but only the cause. It intended that he should never descend from the bench to the pool of politics, to be flattered by friends, traduced by enemies, libeled by the press, or to have his influence and power as a Judge destroyed for political purposes, and for political purposes only. It intended that he should not be allowed to descend into the strifes for the offices created under the executive, legislative, and judicial departments; that he should not come up to the bench to punish an enemy or reward a friend. How can it be said that the presence of a gentleman connected with the judicial system of this State in this Convention can produce any such result as that I have indicated. If that is the case, then certainly the intent of section one would seem to dispose of the whole question. The gentleman from Sacramento, for whose opinions I have very great respect, has limited the discussion to the question as to whether a dele- rate to the Constitutional Convention is the bolder of on office within the intent and meaning of the Constitution, and he comes to the con- clusion, as I understand it, and bases his determination to vote against Judge Fawcett upon the ground that, in his judgment, he"^s an officer within the intent and meaning of the Constitution. I am not willing to adopt that view myself, and under the sanction of the oath we have taken, and which I insisted the other day and insist now was an oath that the law had no right to impose, and tne Governor of this State had no power to compel us to take; but under the sanction of that oath, I declare that I cannot see that a delegate to the Constitutional Conven- tion is an office-holder within the intent and meaning of the Constitu- tion. The question, whether a duty constitutes an office, is no new subject of Digitized by Google 192 DEBATES AND PROCEEDINGS Friday, debate. It has been handled in the Oourti, and h»» been debated and considered {>erhaps more fully in the Courts of the State of Illinois than in any other State. I jwrticularly refsr to Bunn et al. v. The People, 45 Illinois Rep., 401, and which I shall not now attempt to read. I hope you will all examine it. Under the first Constitution of the State of Illinois nearly all the important offices of the State were filled by an election of the two houses. It was found that this system gave rise to very injurious com- binations afiecting the purity of the government; that the passuf;e of laws or their defeat was made to der>end upon the election of particular individuals to particular offices. When the C^invcntion was called, by which the present Constitution of the State of Illinois was framed, one of the principal objeeL^BOught to be elfecti>d by that call was to deprive the Legislature of the power to ap|ioint such officers as had been appointed by them under the old Constitution, such as Justices of the Supreme, Circuit, and inferior Courts, Auditor, Treasurer, and many others, whose functions were directly connected with some one or more of the departments of the government which the Constitution had establishea. Now, in view of these constitutional provisions— there was Ici;islation had in that State uniler the Constitution which provided, sei'tiou twelve of the fourth article : " The Governor shall nominate, and by and with the advice and consent of the Senate (a majority of all the Senators concorring), appoint all officers whose offices are esfabli8heiiitment.'< are not otherwi:ie provided for; and no such officer shall bo appointed or elected by the General Assembly." Section twenty-three, article live, says: "The election of all officers, and the filling of all vacancies that may happen by dejith, resienaticm, or removal, not otherwise directed or provided for by this (Mnstitution. shall be maile in such n manner as the General Assembly shall direct; provided, that no such officer shall be elecieil by the General Assembly." The Legislature of Illinois, under that Constitution, pas.sed an Act in eighteen hundred and sixtv-seven providing for the erection of a new State House, and in that liill they appointed certain Commissioners. naming them, whosi^ duty it was Ui erect that Slate House and disburse the moneys that were to be used in completing it. A prowcding was taken to determine whether they were officers under the Constitution of the State of Illinois; because if they were, the Lef!i.*lalure had no |K)wer or right to appoint tlieni; and the Supreme (^ourt of that State gathered togetiier all the definitions of what was an office under the Constitution of that State, and which definitions may be very well applied to the case at bar. The Supreme Court of Illinois say: " When the Consti- tution says that no office established by that instrument, or created by law, shall be filled by npi>oiutiuent or election of the (ieneral Assembly, the framers of it had direct and immediate reference only to such offices as were created for the purpose of administering the three departments of government organized by it." The Court cited the opinion of Chief Justice Marshall, delivered in the Circuit Court of the United States in the case of the United States vs. Maurice. This was an action of debt on the official bond of Maurice. He says : ** It !■ a public charf^e or omploTment, and ho who performa the duties of the office Is an officer If employed on the part of the United Statoe, be is an officer of the United Slates." And here it seems to me he makes the distinction alluded to by the gentleman froip Los Angeles, Mr. Howard, and which appears to be the stumbling block over which some of the gentlemen are likely to fall. "Although an office is an ' employment,' it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act or perform a service without becoming an officer. But if the duty be a continuing one," as for instance, the office of Governor, under the Constitution of the State, it is an office that must continue from the time the Constitution is ado]>ted until it shall be no more, or until itself shall be changed, the office or duty is a continuing one, " which is defined by rules prescribed by the Government." As in the case of a Slate Treasurer or Controller, he holds the office he is, so to speak, for the moment the hand on the face of the clock. They turn and turn, and the machine goes on forever and ever. Though you remove the hands, and substitute one form or another, the machine goes on, the duty exists; it must be performed, forever, though the person wAo for the moment is the index upon the dial of the clock may be changed and swept away. That I understand to be what is meant by an office under the Consti- tution. It is something which continues. It is something to which duties are attached which are prescribed by law, and which the officer has to perform. " Who enters upon the duties pertaining to his station without any contract defining them, if those duties continue, though the person be changed." He says again : " It is not contended that the magnitude of the object, or amount or varieties of duties imposed to carry it out, deter- mines the cJiaracter of the employment, or will convert that which was a mere employment, temporary in its very nature, into an office ; it is only their continuous nature that will have that effect." They say this in respect to these Commissioners, who were Commis- sioners to on certain great questions affecting the organic law of the land, and when that work is completed, and we shall have folded up our records and passed them into the hands of the Secretary of State, as the law provides, we are scatterred to the four winds of heaven. We have no continuing duty. We hold no office. There are for us no successors; and the Constitution itself neither defines nor limits our duties. It is said that we are here to make a neir Constitution. Not necessarily. This Convention can to-day adopt a resolution that the existing Constitution is sufficient for the people, and adjourn sine die. There is no limitation. There is nothing that hedges in or defines our duties or obligations. There is nothing distinct and definite and certain under this statut«, except that the members of this Convention are entitled to ten dollars a day for every day the Conteii- tion sits. The Supreme Court of Illinois says: " It seems to us that it cannot be predicated of these plaintiffs in error, that their duties are of such a character that a general duly contains, as in the case of the acent of fortifications, although the special duty has been performed. In &ct, there are no general duties imposed by the Act in question on these appointees; they have only one single si>ecia( duty tu jierform, and that is to superintend the erection of a State House, and when that is per- formed their functions, ipso facto, are at an end." They go on to say : '• It seems to us, the term 'such officer", judging from the contemporaneous action and construction of the claiue by the Lc^'islature, bad reference alone to such officers as had some portion of the functions of government committed to their charge. No man cull certainly say to which of the three departments of our govem- ment these appointees belong. It will not do to say they belong to the executive, baaiuse they are required to execute a law. The same may be said of road commissioners ; they execute the laws under which they derive their appointment, and so of the numberless persons neces- sarily employed by the State in subordinate positions and for a special puriK>se. So far as we have any knowledge on this subject, or are enabled to judge from the facts of"^ contemporaneous history, no one has ever sup|>oseermuuent, but of a transient and incidental character, #uch a3 we see in abundance in our statute books. No one has ever exalted such eiii]>l»yes to the |H>sitiou of an officer, though their duties mightrequire month's or vears for their full performance. There is no enduring clement in tliese employment, nor designed to be; the duty being per- formed, the place is vacant by the very act of perfvrmance. The case cited, of Shelby vs. Alcorn, 36 Miss. 273, is baaed upon this' case in 2 Brock., and was a case where a system of levee protection against the inundation on the Mississippi River was inaugurated, and the func- tionary to sii|)erintend the work was denominated by law an officer, the tenure of the office established at two years, with a salary of fifteen hun- dred dollars per annum ; and the decision seems to be placed on the fact, that the duties of the office were continuous, and were a part of the permanent administration of the government. " On his report as to the cost of the work, the Board of Police were required to levy a tax to meet it. And the Court held that the powers attached to the office jiertained' to the executive branch of the govern- ment; that it was of a perinanent nature, and had a certain tenure pre- scribed, and the ap)>oiutce3 were clothed with a portion of the executive and sovereign power of the State. " This surely cannot be predicated of these appointees. No tenure of office is fixed by the Act, no permanency is attached to it, nor is there the slightest connection with the exereise of any portion of the execntiye power, or of any departmental powers, and no intention manifested in the Act itself to establish an office." I will not take the time of the Convention to read further; but it seems to me to be the most finely drawn distinction between an office and an employ mcnl that has been suggested to the examination of the members of the Convention. I think it is beyond dispute — at least it seems tome to bo beyond successful attack if disputed — that this duty, this employment, placed upon the gentlemen of this Convention, under the Constitution, IS not an office created by the Constitution; that they have a single sjiccial duty to perform, and that being done their occupation is, ipto facto, ended. It cannot be said in any sense to be an office or employ- ment within the intent and meaning of the Constitution. So believing, and so understanding the Constitution of this State, I am glad to be able to say that I can vote in favor of the delegate returned from Santa Bar- bara, Judge Fawcctt. It would be a shame, unless it was absolutely necessary, unless the law was so plain that he who runneth may read, that the Convention should be deprived of the experience, judgment, and intelligence of any citizen, still more when that citizen comes to as ripe with learning, with long experience, with the very qualities, Mr. President, that most and best fit a man to participate in the deliberations of a body like this. It would be a great misfortune to lose him; and I hope that unless it shall appear to be imjieratively necessary, that his exclusion from the Convention will not be resolved on. For myself, sir, I am satisfied that this duty which Judge Fawcett proposes to dis- charge here, with the leave of Uie Convention, is not an office within the intent and meaning of the Constitution. And so believing, and so glad to believe, I shall vote for the member retaining bis seat. MB. O'OOKNELL'S BEMABES. Mr. O'DONNELL. Mr. President: I shall vote a^ust Judge Faw- cett occupying a seat in this hall. Upon our admission u del^[ale8 to seats upon the floor of this Convention, we individually and collectively took a solemn oath to support the Constitution of the United States and the State of California, and to discharge our duties as delegates accord- ing to the best of our ability. That oath was a condition precedent to our admission to scats on this floor. The sixteenth section, of article six, of the Constitution of the State of California, reads thus : " The Justices of the Supreme Court, and the District Judges, and the County Judges, shall be ineligible to any office other than a judicial office during the term for which they shall have been elected." That is the language of the Constitution that I swore to defend when I came into this hall, and I intend to do it; and 'I say whenever a man violates that Constitution, he has violated the oath Uiat he took in front Digitized by Google Oct. 25, 1878. OP THE CONSTITUTIONAL CONVENTION. 193 of the President od his admissiou to his seat. It is admitted that Judge Fawcett at tbe date of his election iras and still is the Judge of the First District of the State of California. He is, therefore, ineligible to a teat on this 8oor by that section — the sixteenth section of article six. You may get around it b^ saying this is not an office; but I tell you, good sense tells us, that it is an office. It is a public office, and you araw public money from the State treasury. This is a technicality that tbees lawyers are trying to spring upon us. [Cries of, " Louder," "louder."] I will give you a chance to speak louder when you get the floor. Another thing, Mr. President, if he is not eligible, and I contend he is not entitled to a seat, then his Tote for officers is illegal and Toid. I say that if he is holding his seat, and is not entitled to nis seat, his vote for officers is illegal and void. Judge Fawoett, upon his admission to a seat on this floor, was allowed to vote and participMe in its organisation. He cast his vote Ma. TtTLLY. I call the gentleman to order. Me. O'DOKSEIAj. State your point of order. [Laughter.] Ms. TULLY. He is not ticking to the question we are discussing. Ma. O'DONNELL. Turn right around here and listen and you will learn something. They discussed these officers tmd the first thing they did was to take up tbe statute, and now they are the first to violate it. The^ were the first to throw the law in our teeth, and they are the first to violate it. Mr. President, I say that acoordinj; to that Constitution — according to that clause of that Constitution, which it is impossible for any man to get around ; it is tbe plainest language that I ever read, and if one section of the Constitution is oorrMst we other is. That has been tbe Constitution of the State of California since eighteen hundred and forty- nine, and it never was violated except it will be in this case, and I hope that no member upon this floor, after taking an oath to support the Con- stitution of the State of California, will violate that Constitution. I tell you, Hr. President, there is no getting around it. I know Judge Fswcett is capable for the position, but the fact is we have got too many lawyers. [Laughter.] It is getting late and I will not detain you any longer. I thank you kindly for your attention.. Mi. HTJESTIS. I move that the Convention do now adjourn. Hk. van dyke. I move that the further consideration of this business be made the special order for to-morrow, immediately after roll call. So ordered. KBPOBTS. Ml. VAN DYK£, from Committee on Preamble and Bill of Rights, presented tbe following report: Mk. Pee8U>evt: The Ck>nimittee on Preamble and Bill of Bights return herewith proposed ameodment nnmber two hundred and fifty-eight, which, by mistalce, was KDt to oar committee but properly lielonga to tbe Committee on LeglslatlTe Dspart- ment. The report was adopted, and the proposition ordered referred to the Committee on tbe Legislative Department. Mr. SHAFTER, from the Committee on the Pardoning Power, pre- arnted the following report : Ha. Pkistduit: The Committee npon the Pardoning Power having had nnder coorideration the proposal number two handred and flfly. Introduced by Mr. Condon, report adrenely to eection tliirty-two thereof, and as the proposal relates to legisla- lioa, recommend Its reference to the Committee on LegielatlTe Department. J. UcM. SBArTKB, Chairman. lieport adopted, and reference ordered. At four o'clock and twenty-six minutes p. u., on motion of Mr. Shoe- maker, the Convention adjourned. TWENTY-EIGHTH DAY. Saobahxnto, Friday, October 26th, 1878. The Convention met in regular session at ten o'clock a. m.. President oee in the chair. 'The roll was called, and members found in attendance as follows: Andrews, Ayeis, Barbour, Barry, Barton, Beerstecher, Belcher, BeU, Biggs, Blackmer, Boucher, Brown, Bart, OampbeU, &snrly. Quqnuan, Oviea, OoodoB, Onrdea, Cms, taueh, Smd, 25 PBISIHT. Dowling, Harrison, Doyle, Harvey, Dudley,of San Joaquin, Heiskell, Dudley, of Solano, Herold, Dun lap, Eagon, Edgerton, Eetee, Estey, Evey, FarreU, Fawcett, Filcher, Finney, Freeman, Freud, Garvey, QIascock, Gorman, Qrace, Graves, Herrington, Hilbom, Hitchcock, Holmes, Howard, Huestis, Hughey, Hunter, Inman, Johnson, Jones, Joyce, Kelley, Kenny, Keynes, Kleine, Laine, Idtmpeon, Larkin, lianie, Lavigne, Overton, Swing, Lewis, Porter, Terry, Lindow, Prouty, Thompson, Mansfield, Pulliam, Tinnin, Martin, of Alameda, Reddy, Townsend, Martin, of Santa Cruz, Reed, Tully, McCallum, Reynolds, Turner, McComas, Rhodes, Tuttle, McConnell, Ringgold, Schlli, Vacquerel, McFarland, Van Dyke, Van Voorbies, McNutt, Schomp, Miller, Shafler, .Walker, of Marin, MilU, Shoemaker, Walker, of Tuolumne, Moffat, Shurtleflr, Webster, Moreland, Smith, of Santa Clara Weller, Morse, Smith, of 4th District, Wellin. Murphy, Smitb,of8an Francisco, West, ' Nason, Soule, Wickes, Nelson, Stedman, White, Neunaber, Steele, Wilson, of Tehama, Noel, Stevenson, Wilson, of 1st District, O'Donnell, Stuart, Winans, Ohlerer, O'SuUivan, Sweasey, Wyatt, Swenson, Mr. President. AB8INT. Barnes, Hall, Strong, Berry, McCoy, Waters. Bolfe, The reading of the Journal waa dispensed with. LIATK or AB8INCB. Leave of absence was granted to Mr. Dudley, of Solano, for two days ; to Mr. Waters, for one day ,- to Mr. Holmes, for one day ,- to Mr. Bogga, for one day. THB PAWCITT CASB. Thi PRESIDENT. The special order— the matter of the eligibility of the Hon. Eugene Fawcett — is now in order. SBBIOH OF UR. BBBBIN0TO8. Mb. HERRINGTON. Mr. President and gentlemen of the Conven- tion : Like most other members of tbe Convention, I presume, upon this floor, who will be called upon to cast their vote and pass their judgment upon this question, I feel somewhat inclined to present some ' of the reasons which actuate me in voting as I shall vote upon it. I shall do so as briefly as I may be able, and shall try to confine myself directly to the question at issue. As I understand the matter involved before this Convention, it is some- what a question of law — the facts being admitted. The question, there- fore, turns upon the simple construction of the Constitution of the State, and upon two of its provisions, and upon two aloi;e. The first of these is section one of article three, and the other is section sixteen of article six of the Constitution of this State. This construction will depend upon the reason and spirit of the law — that is to say, upon the grounds and reasons which induced the Convention and people to adopt them at the time of their adoption, and will involve the circumstances surrounding and connected with the adoption of each. It is not denied that article three waa framed and adopted by a Convention similar, but not exactly like unto this. That Convention was, in truth and in fact, directly from the people, having its origin with the people, its inception among all classes, without distinction as to race, and I had almost said sex, condi- tion, and state of circumstances. The second had its origin not with the nle, but with the State Legislature, and was adopted in eighteen huu- and sixty-two. Lest I be mistaken, I will satisfy my own eyes by reference to the book itself: " The Justices of the Supreme Court, and District Judges, and County Judges shall be ineligible to an^ other office." I aa^, then, this second provision of the Constitution, section sixteen of article six, was adapted in the year eighteen hundred and sixty-two. Why was this section adopted? In the wisdom and counsel of these most potent, grave, and reverend signiors, who bring in this report — I ask pardon — in the wisdom of the majority of the committee, they bring in this report, in which they assert that these provisions were adopted bv a Convention coming from the people, and that it was adopted with reference to the provision contained in article three of the Constitution of this State, ana that, as to the officers therein referred to, those pro- visions had reference to the officers which were provided for exercising the powers of the Legislative, the powers of the Executive, and the powers of the Judicial Department. It will he found by a reference to the decisions of the Supreme Court that not less than a half dozen cases were decided with reference directly to this provision of the third article prior to the year eighteen hundred and sixtjr-two. Prior to that year diverse constructions had been placed upon this third article of the Constitution. After mature deliberation and after refl^ion upon these decisions affecting this third article, it was found too feebly weak and inefficient to restrain the aspirations of gentlemen who even occupied the Supreme Bench in this State, and stations in the District and County Courts. It was ineffectual, though it inhibited them transacting any business pertaining to either of the other departments of government. e For that reason it was found advisable, in eighteen hundred and sixty- two, by the Legislature, to put it down in uiunistakable terms — put it down in terms that could not be gainsaid — put it down in terms that could not be more clear if written with a sunbeam on the forefront of Heaven — that they should not and shall not occupy or transact or do any business pertaining to any other office than that to which they had been ooTe 194 DEBATES AND PROCEEDINGS Friday, elected. Did these prDvisions point only to offices to be filled in the legislative, executive, and judicial departments? If that were so, the provisions of the third article would have been sufficient, and it would nave been unnecessary for the Legislature to say, in its wisdom, they were not trammeled sufficiently to curb their ainbition within reason- able bounds. Yet we find, even after the adoption of this sixteenth sec- tion, of article six, this ambition was still uncheclced. The desire became so rife that a Supreme Judge, desiring to fill various positions of governmental authority, appealed to the highest tribunal of the State to nave it determined that he should override the provision of the Consti- tution which had been solemnly enacted by two Legislatures in succes- sion to prevent the consummation of the identical act which he essayed to do. It is not the first time in the history of this State that the provisions of the Constitution have been trampled under foot for the gratification of ambition and selfishness. It was the exhibition of this same disposi- tion that induced the Legislature, in its wisdom, to announce in this sixteenth section that it was no longer possible for these gentlemen to occupy these double positions. Kow, what difference do these provisions make between State offices and any other offices; county offices, or township offices? The Constitu- tion does not specify State offices. There is no such word used in the sixteenth section of article six. It simply sa^s: "Any other office," "shall be ineligible to any other office." Does it insert the word State? Has the Legislature put that comprehensive term into the expressions used in that sixteenth section of article six? If it had, Mr. President, the fact would not avail the majority in this contest so far as the issue is concerned. I read from the majority report : " A Constitutional Convention is therefore an unusual instrumentality of the government, and of brief existence. It is not one of the ^reat departments of government which are created for everyday operations, and it is not to be thrust into the ranks and limits of one of these three divisions to take its place either as executive, legislative, or judicial. The Constitutional Convention outranks them all." What in; what in, Mr. President? In what does this Convention outrank them all ? I will tell you ; it outranks them in bein^ an exclu- sively constitutional office. That is wlmt it outranks them in. It will be in vain for gentlemen to say as is said in this majority report, that " it is occasional, exceptional, brief, and peculiar. It represents the people in their primary capacity." It does no such thing. It does no such thing, sir. They made a mistake; they did it unthoughtedly. They should now pause and to themselves say " check." Their oath is to the Constitution of the State which inaugurated this Convention. It was organized society and not society in its original elements, primary elements, if ^ou please. It is, therefore, from the organized elements, the constitutional elements of the Government of the State of California that this Convention proceeds, and not from the primary elements, even if it did come direct from the votes of the people. It is, therefore, from a body politic which is so modified by the very terms of its Constitu- tion as that no man had the right to vote at the election inaugurating it except such as had been authorized under our present Constitution to participate in the affairs of the Government. That is why it stands upon a diflerent basis from those constitutions framed by the primary elements that usually form and enact constitutions in the first instance. That is why the gentleman who occupied the position that you, Mr. President, occupy to-day, transgressed the authority conferred upon him as Governor when he assumed to dictate to this Convention who and what should be its officers; doing so despite the objections of one of its members directly interposed. That is why I say his authority went beyond the due bounds fixed by the Constitution. Had he stood here at the will of the Convention, be might have done so as its Chairman, perhaps; but acting as Governor ot this State, he was chained by the provisions of the Constitution, which binds him as it does this Conven- tion. What right have gentlemen to say that any man shall sit in this Con- vention unless by the authority of organized power under the Constitu- tion? You may well stand with your majority here, and shake your fists in the teeth of gentlemen who elected you, and declare you are almighty, simply because you have the power to install men here and put your usurpation before the people in the light of a construction — * mere choice between expressions as to what shall constitute the organ- ized elements of this Convention. But I say to you, pause, you are under an obligation based upon a written instrument, which you and I agreed should constitute the warrant for the assembling of the members of this Convention here to-day. I do understand that when the Supreme Court determined in the case of Ex parte Archy,that the Con- stitution never acted for the first time that it did ignore the plain pro- visions of that instrument. That when it said the provision of that document, which requires that " every law shall have but one object, and that shall be expressed in the title," was merely directory, it declared that to be law which is not law. And when this Convention undertakes to say that it is supreme — that it is not trammeled by the words of that Constitution, as if its members are not here in the interests of organized society — they tear down the plain provisions of the Consti- tution and assert doctrines that are revolutionary in their tendency, trampling under foot the interests and rights of the minority iu this Convention, and of the people, their constituents. You have no such powers. Your powers are to propose ; and your powers in that respect are unlimited. That is what you are here for, and that alone. You came here by the organized authority of the men who, and who alone, had the right to vote upon your rights to membership in this body. Now, will you undertake to say that what Inis been created here an office is no office? Will you say that this position, which has been reported as being above all other offices, is not an office under the Con- stitution? Absurd I It is equivalent to saying that that which is mandatory is directory merely; that those who have been determined by the written instrument as the foundation, as the organising elemeiit of this commonwealth, have never acted, for the first time, within the meaning of the Constitution. Well, if membership here is not an office, why did the Constitution makers provide in that instrument for it? Now, this sixteenth section can certainly have no reference to the third article. And it was because this third article was too weak and inefficient to prevent the aspirations of gentlemen to other and different political positions, this sixteenth section of article six was adopted. Some were hunting for Senatorshipe — they all wanted to go to Congress. The last man of them desired to be Governor. Everybody seemed to have had a political longing. This third article was designed to prereat this condition of things. It failed of its purpoee, however. It was not strong enough in the links that bound gentlcmeq to their positions on the judicial oench. The Legislature, in its wisdom, at last concluded to chain down, by this provision, as with links of steel, these restless aspirants. In vain. The English language is not strong enough to bind men's consciences if this Convention ignores its terms and deter- mines that this position is not an office within the meaning of the Constitution. Well, this Convention has the right to settle that que^ion. You have the right to decide it. You have the right to make it a pre- cedent for all time to come, that it is not possible for any pcidple under an organized government, by an organized method, to change, alter, or amend their Constitution. But I say to you it is not law. It is not in accordance with the plain provisions which you and I have sworn to obey. That is all there is to it, and this view is borne out by Judge Cooley in his great work on Constitutional Limitations, and in Jameson on Conventions, cited by him. Now, I do not choose to travel through the definitions of what consti- tutes an office. If you are not sufficiently enlightened as to what con- stitutes an office, it would be in vain to read to yon authorities from now until doomsday. There is not a definition that has been given;-you can find none within the lids of the books that tliis position will not fill as an office. You stand here as officers. All of you are membere of a tribunal which, as determined by the majority of the Judiciary Com- mittee, outranks them all. I acquiesce in it. It is true. But beeauw it happens to be a political office, gentlemen tell me it is not included in the terms of the Constitution. Oh I ^ntlemen say the Constitution never intended, where it says " a judicial officer shall not exercise the functions of any other than a judicial office," that he should not exercise the functions of an office not belonging to one of the three great depart- ments into which the powers of tne Government are separated. But membership here is not the less an office because not embraced in some of these; and, as reported by the majority, in my opinion it outranks them all of every department. I acquiesce in that report so far as that part of it is concerned. It is true it outranks them all. It is a hifber and more dignified position than that of Governor of the State, and in my estimation it outranks them all in being the highest politinal office within the gift of the people. But it is an organized office. You can- not gainsay, you cannot deny it. It is in the book ; it is written as with an iron pen and will not out. It is an office and " outranks them all." Aye, more; it is written upon your consciences by an oath that should bie remembered in your deliberations upon this question. When gentlemen tell mo this is not an office, within the meaning of the aixteeuCh section of article six of the Constitution, I understand than to say that the Legislature, after a period of twelve yean had rolled away, and after it had had the benefit of experience and of the decisiiHii of the Supreme Court given upon this subject with reference to article three, and after this article under the decisions ^'ven had been fully tried and found wanting — that Legislature, when it enacted section six- teen, of article six, had no reference at all (o this class of officers. To believe that, with that experience, after the Legislature had tried in vain with as strong provision as it was possible to place within the lids of the books to curb down or chain down those aspirants for office, and keep them out of politics and allow them to discharge the duties of tbeir office with unbiased minds— to believe that with all this experience, when that Legislature comes to determine that these aspirants shall hold no other office than a judicial office, it did not mean a political office, is^the most marvelous stretch of credulity that mortal man can conceive. Still the proposition is easy of assertion. Now how can I prove to you that this is an office as I assert it? If I say that I am here — that f exist, that I am, how will I prove that to you? How will I make you believe that fact, if you dispute it? Csn I prove the proposition? No more can I establish to your understand- ing the projwsition that membership here is a political office established by the Constitution and within its inhibitions. It is a self-evident proposition, announced by the instrument in plain terms that cannot be proven or denied. I hardly think it worth while to follow out all the illustrations and precedents that have been cited here as establishing the right of Mr. Fawcett to a seat upon the floor of this Convention as a dele^te. Here is the case of Mr. O'Melveny, who was elected a delegate of the Con- stitutional Convention of the State of Illinois, and who had been a Judge of the Circuit Court within a year prior to his election as delegate. The Constitution of the State provided that: " Justices of the Supreme and Circuit Courts should not be eligible to any office of public trust or profit in the State or the United States dar- ing the term for which they were elected nor for one year thereafter, and that all votes for them for such other office of public trust or profit should be void." Now, Mr. President, these gentlemen all know — they are lawyers, every oue of them — that it is not the province of a State Constitution or Act of the Legislature of any State to determine the eligibility and right to hold office under the United States by any member of that govenf- ment. They know that when the Constitution of this State prevents one who is holding the office cither of Governor or Judge of the Suprenie or any other Court bom sitting aa a membeiLi^f Congress in the SeBst« Digitized by Google Oct. 25, 1878. OF THE CONSTITUTIONAL CONVENTION. 195 orHooae of BepreaentattTetof the United States simply because heoccu- Gied * State office, that law is null and void. They knew that before ley brought in the majority report, and thatwe have no jurisdiction over the Federal qualifications of any gentleman, be he Judge, Governor, or an; other officer of the State. This being so, and that law being uncon- stitutional, they allowed that distinguished gentleman to take his seat in that Convention. Where could be the objection f But the same reasons which applied in that case will not apply in this. He had gone out of office, and though the lawforbid him tor one year thereafter from occupying any other position, still he did not occupy any office at the time of his election as a delegate. The cases are not parallel. Besidee, the provision of the Illinois Ckinstitution was the first and only enact- ment therein disqualifying officers, and there was no manifestation of design on the part of those who enacted that provision in any subse- quent part of the Constitution by which to determine that its fraraera intended a nlore stringent rule. So it is possible there may have been some excuse or latitude for the Convention to determine that he might remain there. I think this a very reasonable hypothesis in reference to this Illinois case. But, Mr. President, this committee say further that: "We must not assume for a moment that the Convention which framed the present Constitution intended to trammel the succeeding eenerations m any such manner in the framing of a new organic law. It would have been contrary to the accepted theories of our Government that they should claim the right to define who should sit in such Con- Tention." Now, Mr. President, and gentlemen of the Convention, it is not incredible that the people, in framing their fint Constitution, should have foresight enough to say when it comes to the framing of a new Constitution — a new ship of State — you shall not take for that puipose the officers in command of the old ship. Is that unreasonableT Is it unreasonable, when you come to construct your new vessel and launch it, to have it said you shall not take the pilot tfom the wheel of the old cnflT You shall not take the helmsman from its helm? You shall not take the captain from command? Storms may arise. There may be mutiny on board the old craft, who knows? Where are the watchmen TOO so carefully posted if these be taken from the old ship while the new one is being erected and launched T For God's sake, pause! When that storm arises — the captain taken, the helmsman overboard or dead, her engineer removed, what becomes of her vast machinery ; what of that once carefully sailing craft now careering without rudder, compass, or guide? Is it anything unreasonable to say in the framework of your organic Act, ^ou shall not disturb the officers of the old craft, lest, per- adrenture sailing at the mercy of the storm she strike upon some unseen rock, where, shivered to a wreck, she plunges headlong to the bottom of the deep? These are some of the reasons that may be supposed to have actuated the gentlemen that this committee are so anxious to defend from the aspersions which the minority are charged with thnisting upon them, for declaring that the officers shall not be removed from their stations on board the old craft. Oh, what short-sighted architects they were in framing this very poor provision in reference to the old hulk to protect her when about being stranded or driven on the rocks and among the breakers. Why, sir, they even provided here that the captain should be retained, the pilot kept at his post; aye, that even the Judge, so far as that is concerned as between the crew and the master, should oe left to watch, and watch closely that interest while this new work is in pro- gress. But that seems not to be the determination of the majority of this committee. They want a mutiny on board the old craft while it is ^et under full sail ; and they announce in bold terms that this Convention has the right to determine who now shall manage the old craft while this new one is building — while this new act is in progress. It is not law in any sense. Now, the strongest argument made by any gentleman in favor of that report, was made bv the first speaker when he announced, with stento- rian voice and in cfarion notes, that fix it indelibly on these walls, where loud and long by their reechoes in every crevice, from pit to dome, they still repeat, "It is nooffioe, it is no office.*' AQd that is their whole argu- ment There is no pith or bottom to it. It is "voice and nothing more." It is not founded on any reason or rule. It is not founded on the reason that actuated the Legislature in framing this new amend- ment to the Constitution designed for the purpose of curbing the ambi- tion of gentlemen who desire to fill tc>o many offices. Now f do not say — I will not so reflect opon the distinguished gentle- man whose seat is in contest here, and whom I admire as much as any gentleman can — that he was so actuated. I believe he is a man of integ- rity ; I believe that whether he remains or goes hence he does so witn s* much integrity of character as any gentleman here. I will give him credit for as much honesty as any gentleman of the Convention ; but I believe him to be mistaken. I do not think he has reasoned in any other light than that in which the majority of the committee have reasoned. I believe their reasoning is based upon assumptions not home out by the letter or spirit of the law. If any one is sticking in the bark the majority of the committee are the ones that are in the bark, and they ha»e never gotten out of it, and never will. If they had taken the pains to ascertain how many officers that have hitherto been filling doable and treble offices, in some instances dealing them out by the poand, as it were, and taking the compensation without discharging the Ontie* themselves, they would have recognized the necessity of this sixteenth section as amended in eighteen hundred and sixty-two. It is manifest, Mr. President, when it is considered that for twelve yean this State groaned under the experience hinted at in relation to the ambitious projects of those officers, until even our legislators, fond of sOee as most of them are, determined there should De at least one r the Chan- cellor, a Justice of the Supreme Court, or Cireuit Judge, during his continuance in bis judicial office, shall be void." I want to know if you can find a constitutional provision more strin- gent, more binding, more incisive, than that of eighteen hundred and twenty-one. And yet, sir, on examination I find there were very many officers in that Convention judicial and legislative. It is admitssd this refers to the judiciary, but there is another provision in r^ard to the Legislature. There was Charles H. Rug(;les, of Duchess County, New York, who was a delegate to that Convention, and at the same time was Circuit Judge. Samuel J. Tilden, then a member of the Legisla- ture, was a member of that Convention. This shows that the duties of delegates to a Constitutional Oanvention werejt^t then and there undei^ Digitized by Uoogk Oct. 25, -1878. OF THE CONSTITUTIONAL CONVENTION. 197 stood to mean official duties under the written Constitution of the State of New York. Now, sir, I find, pursuing this' subject a little further, as to whether members of a Constitutional ConTention are oSiceirs or not, that this great authority, Jameson on Constitutional Conventions, while he does exactly say as the minority of this committee has reported to the Con- Tention, yet he also produces authority right the reverse of his position. And if you are euided by Jameson, you must believe that his authority is superior to all the precedents of all the Constitutional Conventions heretofore held. The word office could be made to extend to almost any relation in life. A man performs an office when he is a church warden. He may perform a species of office when he is doing any one act whereby the public are interested on the one side and he is receiving emolument on the other. But. sir, an office, as I understand it, means an office prescribed by the Constitution, and whose duties are marked out by it. Now, sir, upon this proposition I read (nm Jameson, page two hundred and ninety-one, section three hundred and seven, where he lays down two theories; one is that the Convention is a strictly representative bodv. and the other is that it is a committee of the people. The latter position, I maintain. We are in the relation of delegates, only delegated to perform certain duties, like the boy in my office. I tell him to draw a cnmplaint upon a note. He takes the note and draws the complaint and submits it to me, and if I believe it is right I adopt it; and if it is not, I do not And that is just the position we occupy. Now Jameson says: " In other words, in its last analysis a Convention, according to this second theory, is a mere committee sitting for a specified purpose, under the express mandate of the sovereign, and possessed of such powers only as are expressly granted, or aa are necessary and proper n>r the execution of powers expressly granted." I submit to the gentleman nom Marin, Judge Shafter, if that is not the true position we occupy. The sovereign there means the people, and it means nothing else. De Tocqueville and Leiber, authorities on Democracy in America, claim that " the sovereignty of the Government rests in the people." If we recognize that to be true, I ask the gentle- men from San Francisco, who want to protect the people, to stand by the people who have elected this man to represent them here. Now, w&at is the object of this contest? Is it to vindicate any great question of con- stitnttonal law? If it is it strikes me that it ought to have been done to such great men as Chief Justice Marshall, James Kent, and those men who have lived in the past. But nothing of the kind has ever been done. If it is done to vindicate any question of constitutional law we have no right to vindicate it here. We are not here as a judicial body. We are not here to lay down a line of policy for Courts. We are not a coordinate branch of this Government, We are here to per- form a special duty and we can do nothing more. SFKKH OF HR. BABBT. Mr. BARRY. Mr. President: Highly as I regard the opinions of the distinguished gentlemen who have taken a position opposite to the one I hold, and who have presented this majority report, and highly as I regard the opinion of my learned and eloquent friend, Ut. Estee, still, a common sense of duty, a sense of duty to myself, and to the people of this State, compels me to dissent frqra tne views of those gentlemen. I believe, sir, when I entered these halls I took an oath of office, as the other memllers did, that I would be bound by the Constitution of my State. And that no matter what other States might have done, no matter what the Constitutional Convention of Virginia may have done, I would obey the Constitution of California. The Constitution of the State of Virginia, which has been referred to here, was the first Consti- tution framed in that State, and stood on a different basis, for there were no prior constitutional provisions to fetter the members in any manner. The Government had not as ^et been established. True, as the gentle- man from Sacramento has said, they may have been trammeled by law, but they did not have the high law of a Constitution emanating direct from the people, and the delegates were left in a great measure to choose their own course of action. Notwithstanding the definitions of Webster and Worcester, and the opinions of Jameson, and Cooley , and Pomeroy, which have been so frequently invoked here, I say the Constitution is above all statute law, above everything but the people themselves, and I maintain, sir, that we are here as members of this body to defend this Constitution, and not to allow any man to sit in this Convention whom the Constitution declares to be ineligible. It is true, as stated by Mr. Estee and others in the majority report of the Judiciary Committee, that the Illinois Convention, after a very lengthy debate, decided that a man holding a judicial office was not iDeiirable to a seat in the Convention. Yet, while as I before remarked in substanoe, I will admit that we may be at times governed by pre- cedents. I will admit' that Judges are, and that attorneys are; but there are times when these precedents do not come up to the case in question, to the point at issue, and I hold that such is the case at present. We are all well aware that errors of judgment may be committed of great ability and learning, by Judges on the highest benches in the country, as well as by the immature youth, and men of inexperience and ordi- nary learning. Mistakes are not confined to one class of people, and as thegentleman from San Francisco, Mr. fMee, and other learned and eminent gentlemen may interpret this clause in the Constitution and give their views upon it, so do 1, and so does any other,iurable gentle- man, and we have the same right to be heard upon this'uestion. Sow, sir, following the strict provisions of section sixteen, of article six, of the Constitution, that: "Judges of the Supreme Court, and Di*rict Judges, and County Judges, shall be ineligible to any other office than a judicial office, during the term for which they shall have b««B elected," I believe myself, and I say conscientiously, not with any penonal motive, with no feeling against the honorable and distinguished gwUenun whoee seat is cont^tea here, but, sir, with a conscientious sense of duty, looking upon this question as I do, I believe that the fintleman is not eligible under the Constitution. That, sir, is the view take, even if other gentlemen hold the contrary. And, sir, I believe the remarks of the eminent gentleman from San Francisco, Col. Barnes, are sufficient in themselves, that they are an argument in themselves, why this mntleman should not be allowed to retain his seat here. I will read from the Record-Union of this morning, which gives his remarks made on this floor yesterday : " " Mr. Barnes supported the claims of Judge Fawcett, giving at length his views of the objects which the law contemplated when it prohibited the officers of one department of government from exercising the func- tions of any other department. It was designed, he said, to keep the judiciary perfectly free from the excitements* pleasures, pains, and penalties of political life. It designed to place the Judge upon the bench in such a position that he should know no parties, but only the cause; that he should never descend from the bench to the pool of poli- tics to be flattered by friends, to be threatened by enemies, to be libeled by the preft, to have his influence and power as a Judge destroyed for political purposes, and political purposes only. That Was the intention, that was the beginning and the end of it." r hold that tliat is a sufficient reason why the people of that county which this distinguished gentleman has the honor to represent — why be should not have been a candidate for this position, and why no District Judge should be • candidate for a position of this kind, or of any political character. I believe, sir, that when the framers of this Constitution placed this section in it, it was for the very good reason that Judges ought never to descend from the bench, even to a position of this char- acter. Call it an office or not, call it what you will, even though you endeavor to remove politics from it, yet I do not believe that any Judge should come down from the bench to be a candidate for any position. The gentleman himself has said that when he first considered the mat- ter of his own eligibility, at first blush be was decidedly of the opinion that he was not eligible, but afterwards, in consultation with members of the bar, he changed his mind on that subject. I say his first impres- sion was the correct one, and he would have done better to have abided by it. And I believe, as I said, that when that section was placed in the Constitution, declaring judicial officers ineligible to any other than a judicial office, that it was eminently right and proper; that it was in the interest of the people that they should never be allowed to occupy positions of this character, or any political position whatever. And, as the venerable and able gentleman from Los Angeles said yesterday, I do not attack the Judge on the ground that he is not quali- fied to sit here, either by learning, experience, or ability. I believe he is a man of purity of character. I do not oppose him upon any ground of qualification, so far as regards ability or integrity, but simply on the ground that he is ineligible, and that the duties he owes to the people of the counties he represents requires that he should be there. He stated to us that the November term of his Court would be postponed, as he could not be present to attend to his duties as Judge, and remain in this Convention too. That is true, and I say that the duty he owes to the people of those counties as Judge, should be sufficient ta require his con- stant presence there. Reco^izing his ability, his honesty, his integrity, and bis worth, at the same time I believe that there is his place ana not here. I wish now to call the attention of the Convention for a few moments, while I read the decision of the Supreme Court of this State in the case of " The People vs. Burgoyne." I think the questions involved were very much the same as the question involved in this case. The opinions was delivered by the Chief Justice, and presents this question in such a clear, lucid manner, that there is no mistaking the meaning. Several questions were raised in the argument of this case, only one of which it is deemed necessary to examine, viz. : The power of the Legislature to confer other than judicial functions upon the Courts of Sessions. " The eighth section of the sixth article of the Constitution of this State, title, 'Judicial Department,' provides as follows: 'The County Judge, with two Justices of the Peace, to be designated aocording to law, shall hold Courts of Sessions with such criminiQ jurisdiction as the Legislature shall prescribe, and he shall perform such other duties aa shall be required by law.' " The first session of the Legislature holding under the Constitution, acting, in all probability, without reference to the distribution of the various powers of our State government, as provided in article three, conferred upon the Courts of Sessions the entire management of the financial business of the counties. Amon^ other duties enjoined, was that of purchase or erection of suitable buildings for Court-houses and public offices. " In compliance with the Act of April tenth, eighteen hundred and fifty, the contract, out of which has grown the subject-matter of this suit, was made. " It is now contended, admitting the contract was fair and equal in all its parts, that it is not binding upon the County of San Francisco. "First, because, by the third article of the Constitution, it is provided that the powers of the State government shall be divided into three sep- arate departments, the legislative, executive, and judicial; and no per- son charged with the execution of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in cases expressly directed or permitted ; and second, because the eighth section of the sixth article of the Constitution, before quoted, does not confer the exercise of this jurisdiction upon Courts of Sessions, but limits their jurisdiction to criminal cases alone. ' In discussing the first proposition, it is only necessary to remark, that in the previous decisions of this Court we have repeatedly alluded to the distribution of powers by the Constitution, as a leading feature, never for a moment lost si^ht of b;^ its framers, but carefully preserved for the purpose of maintaining the integrity of the differwi>t^lepartmenta| , Digitized by Ljoogle 198 DEBATES AND PROCEEDINGS Friday, intact, and securing the harmony and symmetry of the whole, by restrain- ing each to ita particular orbit. "The histoTT of almost every nation is replete with struggles between the judicial, the executive, and legislative branches of government, for unlimited supremacy, and demonstrates, that unless curbed by whole- some constitutional restrictions, each de|>artmentwill,in its turn, encroach upon and interfere with the funclious of other coordinate branches of government. This spirit of usurpation and encroachment has Ijeen more frequently directed toward the judiciary than any other department. In England, it was only determined by resort to civil war, which resulted in the establishment of the entire independence of the judiciary, as well aa the commons while in this country, it has been avoided bv the enlightened wisdom and experience of the framers of our Federal and State Constitutions. "Acting upon tnis understanding, our Constitution was designed to secure the same uniformity and harmony of operation; and we do not know how the Convention that framed it could have expressed that inten- tion more intelligibly. * " A recurrence to the origin and reasons that induced this distribution of powers, would seem conclusive upon this case, in which the Legisla- ture have imposed upon a Court ordained by the Constitution for the transaction of criminal business, powers belonging to the executive and legislative departments of government, not even quati judicial in their character. " It is, however, argued by the appellant in reply, that the Court of Sessions has not been vested by the Constitution with any of the judicial power of the State. That the sixth article of the Constitution, title, 'Judicial Department,' provides, that the judicial power of the State shall be vested in a 'Supreme Court, District Courts, County Courts, and Justices of the Peace. " The Legislature may also establish such municipal and other inferior Courta as may be deemed necessary. That inasmuch as this section does not enumerate ' Courts of Sessions,' they are no part of the judicial department, and the Legislature, in all powers not denied by the Con- stitution, may invest them with such jurisdiction as may be deemed proper. " This is a narrow and forced construction, and one which cannot be supported. If the Courts of Sessions are not to be regarded as a part of the judiciary, what becomes of the criminal jurisdiction conferred by the Constitution. We can only determine to what branch of the gov- ernment they belong, by the character of their officers, and the nature of the duties enjoined. Here is a ' Court,' over which three judicial officers, known as such to the Constitution, are appointed to preside and administer, with such criminal jurisdiction as the Legislature may pro- vide. " Now, if the first section of the sixth article necessarily limits the judipial power to the Courts therein mentioned, by parity of reasoning, the first section of the fourth article, and the first section of the fifth article, which define in what the legislative and executive power of the State shall consist, operate a like limitation, from which it would follow, that inasmuch as Courts of Beseions are not specially enumerated in either of these sections, they belong to a fourth or nondescript branch of the government, upon which any and every power may be conferred, uncontrolled, except by the wisdom of the iJegislature, notwithstanding that the third article has divided the powers of the State into three departments. " There is another view of this (question, which, I apprehend, is con- clusive. Not only does the Constitution forbid the exercise of the functions of one department by any other department, but it has gone further, and to secure the complete integrity of each, has, by the third article, expressly forbid ' persons charged with the powers of one from exer- cising duties properly belonging to another department;' from which it follows no duties, except of a judicial character, can be conferred on the Courts of Sessions, inasmuch as the officers composing these Courts are persons charged by the Constitution expressly with the performance of judicial functions. " Upon the second point it is equally clear that the eighth section of the sixth article necessarily limits the jurisdiction of these Courts to criminal business. Affirmative words often import a negative, except as to the matter so affirmed. In the present case, the grant of criminal jurisdiction negatives any other, just as much as that of appellate to the Supreme, or original to the District Courts, limits the jurisdiction of these Courts (as has before been decided by us). " If any doubt could exist as to the propriety of this construction, it might be easily resolved by an examination of the sixth article of the Constitution, from which it appears that more than ordinary care has been expended in parceling out the exact judicial powers of each Court. The argument is also strengthened tnr the fact that the fifth section of the ninth article expressly provides for a Board of Supervisors in each county, ' who shall jointly and individually perform such duties as may be prescribed by law.' Constitutions seldom contain redundant or irrelevant matter, and if the framers of ours had understood that the eighth section of the sixth article provided for the exercise of these powers, it is hardly to be supposed that they would have needlessly committed them to any other Board or tribunal. " It is, however, contended, admitting that these duties cannot be enjoined upon a Court, they may be conferred on the Judges thereof as commissioners, and that the exercise of them by the Judges as commis- sioners and not as judicial officers, would not be unconstitutional. The first answer to this position has been already stated, viz : That the officers composing the Court of Sessions are judicial officers, and, consequently, are forbidden from exercising any other functions. And second , that the Act of April tenth, eighteen hundred and fifty, confers these duties upon the Court, in direct words, and not upon the members as commis- sioners. A Question similar to this arose in the case of the United States vs. Yale Toad, reported in 13 Howard, in a note to the case of the United States vs. Finiera, page bi, in which the same doctrine wst affirmed. " It will be observed, that the language of the Constitution is not that thet/. the County Judges and two Justices, '^all perform such other duties,' etc., but 'he shall,' marking more explicitly, if possible, the inten- tion of the Constitution. But even were it otherwise, and the word Ihey had been used, we have shown that, by every well settled rule of construction, as well as the scope and spirit of the instrument itself, the other duties so mentioned must be limited tothpseof a judicial character. "We have considered the argument drawn from contemporaneous legislative construction, as well as the recognized legal proposition, that in doubtful cases every intendment should be in favor of the constitu- tionality of legislative'enaclmeiits; but these axioms should apply in cases of doubt. In this instance we have none. " This question was recently decided by the Judge of the Sixth Judi- cial District, in an able and well considered opinion, in which the tame views are taken, and which meet with the almost uniform approbation of the bench and the bar." Now, sir, that case expresses, to my mind, the reasons why a judicial office cannot be joined with any other, where the duties are similar. The Courts of this and other States have held to the same opinion, and there is no doubt but that construction of the question is the correct one. Gentlemen of the Judiciary Committee, in their majority report, have referred to the case of the People vs. Provines, but I hold that any man who has examined that decision carefully will agree with me that itcuta no figure in this case ; that the circumstance which caused that opinion to be made does not make it a criterion to govern men in their action upon this in sustaining Judge Fawcett. Irie opinion of Sawyer con- curring and Rhodes dissenting, to ray mind convey the proper impres- sion. I read from the opinion of Justice Sawyer. He says: " The characteristics of many powers and duties are so marked that there can be no difficulty in determining whether they belong to the legislative, executive, or judicial departments of the government But the lines between the several departments are not defined with pre- cision, and there are other powers and duties that partake of the nature of duties pertaining U> more than one of these departments, and may as properly be referrra to one as the other, or may not strictly belong to either." Following further, he says : "The person to be appointed is required to have certain qoalificationa. He must be a citizen of^ the United States, and of the State, and a resi- dent and a qualified voter of the city and county, and be must be of good repute for honesty and sobriety ; and he is required to produce eri- aenoe to this effect to the Police Commissioners." This was in the case of the Police Judge. This case was an action brought by the Attorney-General, in the name of the people, against Uie defendant, the Police Judge of San Francisco, who was also one of the Police Commissioners. The duties were of such a character, so nearly similar, that one person filled them both, which is not the case herewith Judge Fawcett, wno holds the position of District Judge in Santa Barbara and the adjoining counties, and also of delegate to the Constitutional Convention. Pursuing, Justice Sawyer says: " I deem it proper to add, that, in my judgment, if the principles sup- posed to be established by the case of Burgoyne vs. Supervisors of San Francisco were more doubtful than thev are, the case has been too often affirmed, and too long regarded as settling the construction of the Con- stitution on the point involved, to justify a reexamination as an original question. It was thoroughly and elaborately argued by counsel rally competent to the task, and maturely considered. The question was also in subsequent cases elaborately argued and considered, and the ease reaffirmed, till, in later cases, it has been followed without further question by bench and bar — the effi>rt being to distinguish the cases as thfy arose. Most if not all of our predeeeaaors have°had occasion to consider the question in some form, and have acquiesced in the con- structiojj if they have not expressly affirmed it. If anything can be regarded as settled, the constnietion of the Constitution on this point ought to be BO regarded, especially as the Constitution has been amended since discussion ceased, and the inconvenience of the construction estab- lished was not found sufficient to suggest an amendment. " The counsel in this case do not directly make the point that Uie decision referred to is erroneous, but content themselves with maintain- ing that the case now under consideration is consistent with the prior decisions. For these reasons, I shall decline to enter into a discussion of the propriety of the construction established. Cogent arguments can doubtless be urged on both sides ; but this is a reason for ulowing the construction to stand, rather than for disturbing it. " The only remaining question is, does any statute authorize the Police Judge to act in the appointment of police officers? That such authority was found at one time, under the Consolidation Act, is conceded ; but it is claimed that the provisions of that Act have been superseded by subsequent Acts pajwed in pursuance of the amendment to section ten, article six of the Constitution, requiring the Legislature to fix by law the jurisdiction of inferior municipal Courts, and the powers, duties, and responsibilities of their Judges; that the Judiciaiy Act of eighteen hun- dred and sixty-three, and the Act of January twenty-seventh, eighteen hundred and sixty-four (Laws 1863, p. 344, and Laws 1863-i, p. 39), cover the entire subject-matter of the jurisdiction and powers of the Police Court ai^ Police Judj^; and that, as the subject of appointing policemen is not mentioned in either, it is reasonable to conclude that the Legislature did not design to continue this power." In conclusion. Justice Rhodes, a very able and learned Judge, in his dissenting opinion says : " I concur with Mr. Justice Sanderson, in his reasoning and conclusion upon the first point. Upon the second point, without expreffiing an opinion as to the conclusiveness of his argument, it is sufficient to say that I am not prepared to overrule a series-.pf (J^isions jalmoet con- Digitized by VjOOQ ,aImoi Oct. 25, 1878. OF THE CONSTITUTIONAL CONVENTION. 199 tinuous from Burgoyne's Case, in eiebteen hundred and fifty-five, to the present time, and therefore dissent from the judgment." Now, sir, a majority of the Ck>urt in that decision have overturned a line of decisions that have been held to be good for years, that a man filling the office of Judge could not hold any other official position. While that is the only decision in this State, that I am aware of, that gentlemen have alluded to, that is contrary to the views I take, I hold, sir, as I stated before, that it;i8 not enough to govern this body in their action in voting to retain Judge Fawcett in his seat, for them to consider that he is eligible. But, sir, there are other reasons as strong, if not stronger, which have been advanced here by gentlemen on this floor, why he should not be allowed to retain his seau I believe that with this provision in the Oiustitution, as clear as it is, which expressly aji that no Judge shall be eligible to any other office than a judicial office during the term fur which he is elected, that when a man is a delegate to this body, in the face of a provision of that kind in the Con- stitution—one so clear and explicit in its terms — when he finds that such is the case, aud when we find that Judge Fawcett is now filling the posi- tion of District Judge, which he himself admits, that if there was any doubt in his mind as to whether this is an office or not, that doubt should be resolved in favor of the people of this State, who are now in destitution and misery, that haa been eutailed upon them by legislation in favor of capital, by the interpretation of the Courts, to a great extent, in favor of capital, and, I am sorry to say, in many cases by learned lawyers, who are willing to interpret in their favor. I say, sir, in this case, that when a man is drawing a salary as District Judge, and that too a large one^snd drawing another salary in this Convention, he is ineligible to membership in this Convention ; that he is doing a wrong to the people, and taking the money which should be left in the State treasury, which belongs to the people, and that should be applied to other neces- nry and legal purposes. Now the gentleman from San Francisco, a few days since, spoke in reference to the wail of universal discontent, which could have been more properly termed a wail of universal anguish, when the people see their money wasted and squandered, and legislation turned in favor of capital, and laws and constitutions interpreted in favor of capital. 1 think, sir, when a man is drawing one salary from the State, that should be sufficient without trying to draw another. It must all come out of the hard earnings of the toiling masses. This evil prevails to an alarm- ing extent, and he who fills one position, has quite all he can attend to. Then, sir, entertaining these opinions as I do, about this proposition — 1 agree with the gentleman from Sacramento, Mr. Freeman, when ho ■tated that Webster declares an office is a duty, a trust, a charge, and Courier says in his law dictionary that it is the exercise of a public function or employment, and this is certainly one of those cases where there are public functions to be exereised, and he is drawing raiy for it ; it is a public emplojrment ; therefore, holding that it is an office I shall vote against the sitting member. I believe that the opinions of such eminent men as Jameson, to the effect that membership in a Constitu- tional Convention is an office, is worthy of respect. And I believe that the opinions of Webster and JBouvier are worthy of respect, when they give definitions as regards the word " office." At this point, the hour for recess having arrived, the Convention took » recess until two o'clock p. u. AFTERNOON SESSION. The Convention reassembled at two o'clock p. u,, President Hoge in the chair. Boll call dispensed with. ICOTICI. Ul IiABKIN. Mr. President: I wish to give notice that I shall at twelve o'clock to-night move the previous question. VR. BAKRT'a BKVABES CONTINUKD. Me. BARBY. Mr. President: I have not expressly, or by implica- tion, impugned the motives of any gentleman of the Judiciary Com- mittee, or the motives of any gentlemen in this body, who have adopted or expressed the same views enunciated in the report. I believe they are men of such distinguished ability, of such high sense of honor, that they speak as they believe to be right; and I only ask that they will concede the same right to me, and the same honesty of purpose to me that I am willing to concede to them. And when on yesterday the gentleman from Sacramento, Mr. Edgerton, referred to our report, or a portion of it, in the manner that he did, I think it was unworthy of him. 1 do not think there is any portion of that report that is discourteous, or that we said anything in that report which is improper, lie referred to tnis portion, which I will read : "The impropriety of the action contemplated in the resolution reported by the committee, and the justice and necessity of the above opinion, is OMisively enforced by the results of its adoption. If anything is cer- tain to be done by this Convention, it is a remodeling of the Judicial department. One of the propositions already passed upon by the "'wiciary Committee, and to be reported to this Convention, is the utter abolition of the District Courts — their name even is to be erased from tne Constitution; and yet the niiyority resolution would retain a gen- Uenun here who will be required to pass upon the further existence of hu <^ce and its emoluments, and perhaps to determine the result by his single vote. ' No one ought to be judge in his own cause,' is a legal maxim hitherto held to be of universal application." I beUeve this is founded on reason, logic, and right, and there is uithing discourteous in it. I signed that minority report, and I believe the sentiments therein expressed to be right aud correct, and I still stand of that report. I presume the gentleman spoke hastily when he made the remarks, and had not read the report carefully. vOdge Fawcett, the claimant for a seat in this Convention, whom we declare to be ineligible, has stated as one of the overshadowing reasons predominating in nis mind why he should be retained here in his seat in this body, that he received two thirds of the votes of the people in his district — that Ihe^ voted almost unanimously for him. It is, no doubt, a pleasant reflection that a man is so much esteemed in his district as to receive such a hearty indorsement, but are there not many more of us in the same position. Many of us were elected by a large vote as dele- gates to this Convention, but that is not a q^uestion for this Convention to take into consideration in detcruiining this question. This is purely a matter of law, not one of expediency, not merely to satisfy the people of the district which the gentleman represents; but does be sit here by virtue of the Constitution, without any express inhibition in the Con- stitution, in relation to his eligibility to the seat? He defended his claims very warmly on that ground, and there were other gentlemen who took the same position. They referred in eloquent terms to the voice of the majority of the people, and held that a man elected by such a lar^e majority that it was a still ^eater reason why he should he allowed his seat here. That he is a distinguished and popular man no one will deny, but that is not the question. I will remind the gentlemen that it was but a few days since when we of the other side of the house, urged upon them that the voice of the majority should be respected; that the people's voice was supreme, especially in the case where we put up a man qualified in every way for the position, a man that had received a large vote ; but the circum- stances apparently, to their mind were different, and their actions and their votes did not accord with their professions to-day. In that case the voice of tlie people was nothing. But now it is all power. If this is consistency 1 tail to see the consistency. We would be willing that Judge Fawcett should retain his seat, as he has received so large a majority, such a handsome vote, on the same principle that we asked that Judge Sharpstein should have a seat in this body, as representing certain principles, representing a certain constituency who gave him such a handsome vote, representing the wishes of the people of San Francisco, who received so much larger vote than the gentleman they placed in nomination here. We were willing then, thinking it just, and we thought this principle should be carried out. We would still gladly be governed by that same principle if the gentleman who now presents himself was eligible to the position to which he aspires. But many, like myself, realizing the oath we have taken, and feeling that we should be governed by section sixteen of article six of the Constitution, which, to our mind, declares that he is ineligible, even the voice of the people, for which we have the greatest respect, is not paramount in this case, because he is hero contrary to law, and under the law is not eligible to the position of delegate to this Constitutional Convention. Now, sir, I understand that there are authorities to be introduced here in support of the position which these gentlemen have taken, showing that in other States of this Union men occupying judicial positions have been allowed to sit in their Constitutional Conventions. We admit that. We admit that men of the most distinguished ability have held such positions in other States, but that is no criterion for us to go by, for we are governed by a special constitutional provision which may not exist in the Constitutions of those States referred to. We admit that Judge Fawcett is a man well qualified by ripe learning, by long experience, and by integrity to sit in a body of this kind. We do not oppose him on that ground. We have not raised a question of that kind, but the objection is purely a legal one. We claim that there should be a certain number of legal ^ntlemen on the floor in a Convention of this kind, but not to the exclusion of other professions. We claim that the interests of the people at large should be represented. We hold that Judge Fawcett is not eligible, and that is the reason, and the only reason we oppose him. I would say farther, Mr. President, that when remarks are made here like those stated by Judge Fawcett, if it is correctly reported in the Record-Union of this morning, I do not think they are becoming or proper in any delegate to make. 1 do not believe this Convention Iramed the language in the Act of the Legislature ; and I do not believe the Constitution is resolved into chaos when the Convention is called by Act of the Legislature. But I believe we are still dependent upon the Constitution; that the Constitution is good and binding upon every member iu this Convention ; and we claim that we are bound by it to the end of the Convention. When laws are nude they are binding upon the people of the whole State. When the gentlemen talk about binding posterity — that we cannot bind posterity — I say that we have been bound by the Constitution which the people of this State framed in eighteen hundred and forty-nine, and amended iu eighteen hundred and sixty-two. We are also bound by the Federal Constitution. It was framed by our ancestors, and we have been bound by it ; and it seems strange that we cannot in tuAi bind posterity in the same way. I do not believe the principle they advocate is right; I believe it is danger- ous and inimical to the best iuteresta of the people. Mr. EDUEKTON. Mr. President: I rise to ask the gentleman from Nevada when and where Judge Fawcett used the language imputed to him in this morning's ]>aper. Mr. BARRY. I have it here. I will read from an editorial in this morning's Record-Union. While holding that Judge Fawcett is eligible, because this is not an office, the writer proceeds to condemn the report of the committee on other grounds, and Judge Fawcett's language in particular. I will read that part of the article ; " It, however, sought to fortify itself by proceeding further, and by assuming that the authority of the Constitution ceases and determines the moment a Constitutional Convention is called ; that, to use Judge Fawcett's language, 'the people, when they take power into their own hands to amend their Constitution, take all power back iuto their own hands, and resolve things into chaos;' and that therefore the constitu- tional prohibition was to he considered null and void even though its applicability to the case in point should be established. ^^Sl^is doctrine | L Digitized byLjOOQlC 200 DEBATES AND PROCEEDINGS Friday, appears to us to be untenable. Ita implicationB are not merely revolu- tionary but anarchial. For if the Legislature, in calling a Convention under constitutional provisions, thereby creates a power broader not only than the creator, but than the power which limitg the action of that creator, it necessarily follows that the Convention is a body above all law, and above all responsibility. But a Convention is not s Con- stitution. It is only the machinery by which a Constitution is framed j and the work of its hands remains without life or significance until it is vivi6ed bv the assenting will of the popular majority. This fact should alone suffice to show that the Convention cannot be, as implied by the doctrine under consideration, above the law. If it were above the law it could, by its own motion, create a new Constitution ; it could abrogate and ignore, and defy all existing legislation ; it could proceed to enact whatever measures it chose, and it could declare them operative without awaiting popular ratification. " It could do all this if it oould do the least part of it, and assuredly it can do the least part of it if it contravene the law under which it was called in any particular. That law provides that when the Convention has franienstitution the instrument shall be submitted to the peo- ple at a duly called election. But if the Convention ia paramount there is nothing to prevent it from declaring the new Constitution iu force without submitting it to the people. This is the reductio ad absurdum; for it will hardly be maintained that a Legislature acting under constitutional provisions, and a people operating iu the same way, can somehow create a power which is above Constitution and Legislature and people together; which, in fact, is wholly without responsibility of any kind and amenable to no law. Upon a plain view of the Constitu- tion it would seem that the people bad carefully reserved to themselves the final decision in regard to the acceptance of the new Constitution, and upon this view it would appear that the Convention was sup|>osed to be subordinate to the popular will. That, indeed, is the position which we take to be the only tenable one, but it is evidently not oom- nttible with the doctrine advanced by the majority of the Judiciary Committee. That body, with due respect be it said, seems to have fallen into some confusion regarding the functions of a Constitutional Conven- tion, and its relations to the old and new Constitution. It is true that such a Convention forms the paramount law for the future ; but it is not true that in so doing it abrogates the paramount law which it finds in existence. It oould only do that if it possessed the power of enactment, which is not claimed for it, at least directly. It is not a creator, as the committee asserts. It is but a constructor. Its work possesses no opera- tive power when it leaves its hands. The new Constitution is simply a proposition until it has been ratified by the people. The Convention in fact may be compared to a comlUitlee from its own ranks, which puts together the work intrusted to it, but which has no power to adopt that work when it is completed, but must abide by the Judgment of the whole body." Mr. EDGERTON. I have carefully read the report of Judge Faw- cett's speech delivered on this floor on yesterday, as reported by MeMrs. Willis A Stockton, and published in the Record-Union, and also the report of his remarks before the Judiciary Committee, and there is nothing of the kind in either of these occasions. I think there is some misapprehension on the part of the proprietors of that journal ; some mistake. I have his remarks here, and if the gentleman desires to see them, he is welcome. Mr. BARRY. The remarks I refer to are in the editorial column, and they are just as he made them; I think they are in substance the same as he made in the meeting of the Judiciary Committee on the night when he presented bis claims to a seat in this Convention : "The people, when they take power into their own hands to amend their Constitution, take all power back into their own hands and resolve things into chaos." The gentleman also said, if I remember correctly, that after this Con- vention met — after the organization had been completed — that we had trampled down the old Constitution, as it were; that it was no longer binding on us; that we could no longer be bound by it; and other gentlemen also said that it was revolutionary in its character. I admit that political and radical change, to a certain extent, means revolution; but they take the position that everything is resolved into chaos; that we are not bound by the Constitution whicTi our fathers framed ; that we have no right to bind posterity by constitutional provisions ; that the old Constitution is no longer in existence, notwithstanding the fact that we swore to support it ; and that it is no longer authority which we are bound to obey. That is the position which the gentlemen take, and I hold that they are entirely wrong. I hold, sir, that we are bound by the present Constitution until we make these proposed amendments, and until they are presented to the people and ratined or rejected by them. That is my position, and I say tnat the gentleman from Santa Barbara, the claimant here, used in substance the language imputed to him. Now, sir, I believe that every gentleman on tne floor of this Conven- tion desires to vote on this question in accordance with the dictates of his own conscience, and according to the Constitution of the State to which he has sworn allegiance. I believe, sir, that all are anxious to do right in this matter, with no personal feeling whatever under- lying their actions. No matter what the personal or political feelings may be, they should all be sunk in the j^reater good, the interests of the whole people, when we come into this chamber for the purpose of framing this Constitution. And I would say that, before the vote is taken in this matter, it is important to consider what eflect our actions will have upon the next generation, as well as upon those who are now living. I would say that with that wise provision in the Constitution, which declares that Judges are ineligible, if we violate it and allow a Judge to sit here, how can we ever hope or expect that the provisions which we shall place in the proposed Constitution will ever M obeyed? The future generation will point to our own acts, and out of our own Dioutba condemn us. They will cit« our action here, as a precedent, in declining to be bound by the provisions of the Coiistitution. 1 say, gentlemen, we cannot anord to set such an example of disobedience. We ourselves cannot aSurd to be the first to violate the plain provisions of the very law we are making. Such reasoning is wrong — wrong in every sense of the word, and I believe it is the duty of every man within this Convention to sustain the position taken by the minority of the committee, and obev the plain provisions of a Constitution under which we have been living, and which we have sworn to uphold until it shall have been lain aside and supplanted by a new one. Because the seats of other Judges in other States have not been contested, is no reason why the seat of Judge Fawcett should not be contested here. It is not a question of expediency that is before the Convention, it is a question of obedience to law. It is a question as to whether or not ths |)lain and mandatory provisions of the Constitution shall be trampled under foot by the venr men who, above all other men, should be the first to defend it. And while men may differ in their interpretations of the law,, I hold that the gentleman is clearlpr ineligible to hold a seat in this Convention ; and I hold, sir, that pnnciples are above every- thing else. The pillars and walls of the Capitol, which surround ui, and the grand and towering dome above us, may crumble and perish with time, but principles will never die; they are imperishable, and I believe if we deny this man a seat here — if we refuse to violate the sacred provisions of the Constitution — the people will approve of our course; that they will ratify our actions when they come to vole for it at the polls. I believe it is the desire of every gentleman here to make such a record here that our State will not be ashamed of us. And when our remains shall have crumbled into dust, aaP'our children look upon that Constitution and see our names appended to it, they can say, with pride and exultation, that is the work of our fsthen. BPIECH OP MR. VACQCIRIL. Mr. VACQUEREL. Mr. President: I have always believed that speaking is silver and silence is gold. I believe in the last part of the sentence, but still I am obliged to rise as I intend to vote on this matter under no party line. I am ready to vote on this matter as a man who has always contended for the right ; as a man who has devoted his life to the right and for the principle of the sovereignty of the people. If there is a principle that is settled enough it is that principle. It is the fundamental principle of any republican government; and the man that goes against that principle, sir, commits a crime — a social crime. I am astonished, sir, when I see on this floor that gentlemen, who have con- tended so much for the sovereignty of the people, have found that the people was sovereign on the thirtieth of September last and that the peo- ple is no more sovereign to-day. I hold the reports of one of the sessions of this Convention, and what do I find — "that no right is denied unless the right of the will of the people." Again further, it says that "if the people of the State were satisfied with the organic law they certainly would not have voted to have another in its place, but it is because the people are not satisfied that this Convention nas been called." Again : "We also desire to have the rights of the people recognised." Now when I see gentlemen ou this floor that have sustained these principles go right agaiust it to-day, I must oppose it, even if they are my colleagues in the same political party that I belong. Now, Mr. President, I <£i not care whether this is an office 'or not. If I want to go and find the derivatioD of the word "office" in the Latin roots I could find a meaning to the word, perhaps, which is a very diflTerent explanation than the one given here ; but I don't care whether the gentleman from Santa Barbara retains his seat or if it is another man ; but I do care to vote on this question on the principle I have always stood for, and that is the principle of the sovereignty of the people, and by my vote I will respect the will of the people of Santa Barbara. Will I do the injustice to think for a moment that two, or three, or four thousand citizens do not know their rights T Will I entertain the idea that I am a man of sense and that they are all fools? They have sig- nified by their votes that they want to be represented by the gentleman, Mr. Fawcett, and I — as one of the servants of the people— I vote for retaining the gentleman in his seat. We want to enforce that decisioD and establish that precedent, Mr. President. Who gave us that power? By what right do we usurp such authority ? The people desired to have a revision of the Constitution of this State. The people is the one to judge of its delegates, and the people will be the one to judge of oar work, and they will ratify or reject it. Now, sir, it has been asserted here that if we voted for the gentleman from Santa Barbara we are vio- lating our oath. There is not one delegate of San Francisco here that has not violated his oath to the party, and that is prior to the oath he took in this hall. If these gentlemen will remember the oath they have taken in Ban Francisco they will remember that it says that they will not vote for or support anybody who has not affiliated with the Work- ingmen's party. Therefore we cannot throw into a man's face that he violates his oath. We have violated our oath to the party for the f^xi of the people at large, and if 1 must violate my oath I will do it to respect the will of the people of Santa Barbara. Now, sir, I want to be understood by every gentleman present on this floor. It has been insin- uated by some of my colleagues here that I would vote in that way because my seat would be contested. I am a man that is never afraid of danger; I am a man that faoea the enemy boldly in the face, and you must not take me to be such a child, when I have come here and taken a seat ou this floor, because I am entitled to it. I am entitled to it by the blood I have spilt in the fight. Therefore I defy any of my colleagues who want to counterbalance my vote on account of my being scared. I am not scared. I never was. I never knew but one master, and that is the people. Therefore as I have based my line of conduct on certain principles which I have never departed from, and never will depart from as long as I have a drop of blood in my veins, and upon the fundamental principles upon which George Washington has established the govemment.e£,the United ^atea ■ which Digitized by Laoogle Oct. 25, 1878. OF THE CONSTITUTIONAL CONVENTION. 201 ii the govereignty of the people — I will certainly Tote for the report of the m^ority of the committee. [Applause in the lobby.] spxxcH or MB. SBArrxB. Me. SHAFTEB. Mr. President : I agree with those who hare already tddresaed us, that in dealing with the things of this world it is well wmetimes to hear voices from the other world, and to be enlightened by the wisdom, not only of our own land but of those beyond the seaa. I should be pleased if I could excuse myself flrom speaking upon this question. I hare sought no opportunity to do so, would gladly avoid it if pooible. The report of the minority of the committee, of whom I tm one, has, however, been assailed, ana such extraordinary doctrine as to the nature ahd authority of this Convention have been advandsd that I am left no choice. I say, at once, I regret that the question of Judge Fawcett's eligibility has been raised at all. I should have greatly preferred the course taken in the Conventions of Virginia, Indiana, and other States cited here, where gentlemen holding judicial positions were allowed to retain their leats, unchallenged. But, gentlemen having a right to jndge for them- selves upon the proprieties of the occasion, have thought otherwise, and have presented the question of Judge Fawcett's elicibility to a seat here, to be determined as a judicial question in the light of the existing Con- alitution and the law. The first question presented is as to the power of this Convention. That it has tne right to judge of the qualincations of its members, is declared by the statute in calling the Convention, and it is submitted would exi^ without the statute. But, in determining the main question a preliminary one is made. The minority report asserts that this Convention is bound to pursue the ooarae dictated by the existing Constitution and laws ; that we, sworn to support that Constitution, must obey it, even while in the act of pro- posing its alteration or abrogation ; and that we are especially bound to follow established rules of construction of that instrument while so act- ing. On the other hand, in the report of the majority, in the speeches hve of gentlemen in favor of that report, and eepeoiallj in the reported aignment of Judge Fawoett before the committee, it is distinctly dMlared that we are the people, and assembled for the purpose of remodeling the Old Constitution, we are out loose from all restraints of constitutional laws— confessedly still operating upon all persons outside of the Conven- tion. In short, that we, and the voters who sent us here, have the tower to disregard every existing law, and to proceed, as though having been just launched into being, we are met for the firrt time to estabUsE government and jural relations. The assertion is distinctly made : admitting it to be true that Jud^ Fawcett is ineligible under the present Constitution, the people, acting m their severd districts, have the power and the right to elect him or any other person falling within that nomen ^enera/uat'mum — "the people," to s seat here, and we have no right or power to go behind this expres- sion of their will, although it is in contradiction to the very law wnich allows them to act tU. all. To this doctrine of nullification of existing laws, to this secession from established government, I cannot give my assent. I am surprised at the sight of Union men giving in their adhesion to these notions. I am not surprised that many others support this raid upon the Constitution. They but follow the opinions which led some of them, at least, by revolt against the national government, to give the highest proof of their sin- cerity. There is something of obscurity — ^perhaps it is not going too far to say something of equivmation — in the terms used in the report and q>eeches, but the true sense is unmistakable. The people, regardless of existing institutions, have a right at any time and in any manner, for any cause, and for no cause, to shake on all ^vemmental relations, and to establish a new code and State or Kabon. This is claimed to be not revolution, but a peaceful and legal change made in defiance of all law. There have been in this land of ours, for at least half a century, men who have been possessed with the idea that the allegiance they owed to government was such only as was. agreeable to the notion or exi^ncies of the hour, and that they were at liberty to withdraw from their gov- ernmental relations whenever they chose. These ideas they have constantly endeavored to popularize by cun- ningly inserting them into laws, and declarations of political and delib- erative assemblies. Those who concur in the majority report are singularly felicitous in (quoting these gentlemen as the leading jurists and statesmen of their time. Their undoubted ability and official position are appealed to as a sort of guaranty of their political and le^ soundness, and as convinc- ing proof that all challenge of their notions is mere temerity. Nor is the confidence of gentlemen in these statesmen at all lessened in the rince of the fact, that to them and their teachings is to be attributed recent attempt to destroy this government and the widespread misery and disaster following that attempt. Amidst all the authorities sad decisions dted there is one which has been overlooked, and which I deem decisive. It was made at Appomattox by the Chief Justice Ulysses 8. Grant, supported by a myriad of Associate Justices standing around. That dednon : that no man, no mere portion of a 'people, should be permitted to disregard, that is to nullify the Constitution — is yet in full KMfcs and unreversed — nor will I, for one, permit it to be doubted here, or elsewhere, without characterising its challenge as a pieoe of vicious i^, only worthv of those who never learn anything that is good, nor foi«t anything that is evil. It may not be uninstmctive to examine for a moment the history of the assertion of the supremacy of Conrtitutional Conventions. An nteoded statement as to this notion will be found in Judge Jameson's yk upon Constitutional Conventions. I am very glad utat this able wwk is the production of a Vermonter. It tppetn that the omnipotence of Constitutional Conventions was first claimed in the Federal Convention of seventeen hundred and eighty-seven. This author, after citing the debate, in which the ablest minds participated, thus states the result : " In this most important Con- vention, then, of which most of the founders of.our institutions were members, the power proper only for a sovereign — of definite legislation — was not only not claimed for that body, but it was expressly disclaimed." In the Virginia Convention of eighteen hundred and twenty-nine, this doctrine was denied by John lUndolpb. He said : " We have been called as counsel to the people — as State physicians — to propose reme- dies for the State's diseases, not to pass any Act which shall have in itself any binding force. We are here as humble advisers and proposers to the people." This doctrine which he opposed was broached by Mr. Dallas, afterwards Vice-President, in eighteen hundred and thirty-six; and it was followed up in a Convention the following year. It-was pro- posed in Conventions of Kew York, Kentucky, and Massachusetts, and, it is noticeable, by the same class of politicians. In eighteen hundred and forty-seven, in the Illinois Convention, this idea ot practical seces- sion was more openly avowed. Mr. Peters thus delivers himself ; " We are the State. We can trample the Constitution under our feet, as waste paper, and no one can call us to account save the people." In Main- land, in eighteen hundred and thirty-seven, and Rhode Island, in eighteen hundred and forty-one, this right of upheaval, contrary to existing Constitutions and laws, was asserted unsuccessfully. In the Free States, wherevef this doctrine has been submitted to the people, it has been overthrown. The final culmination was reached in the ordi- nances of Conventions and Legislatures of eleven States, which seceded from the Union. Mr. Yanoey, of Alabama, in its Convention, thus states this dogma : " In this body is all power. No powers are reserved from it." Concerning the reasons which underlie this doctrine, and the motives leading to its assertion, Judge Jameson says: " Comparing the dates of the various Conventions in which the theoiy of conventional sovereignty has been propounded with those of the successive tides of pro-slavery fanaticism in the United States, it is difficult to resist the conviction that the assertion of that theory was connected with the great conspiracy which culminated in the late seces- sion war. Was it foreseen, tnat to carry out "the design of disrupting the Union with an appearance of constitutional right, new conceptions must become prevalent as to the power of the bodies b;^ which alone the design could be accomplished T And conceding the existence of such a conspiracy to be carried through by means, were the eminent names cited the willing tools, or the dupes, of the far-seeing traitors who hatched it?" I again say, these may be statesmen, they may be exalted jurists, but their whole doctrine and theory is destructive of all constitutional gov- ernment. I do not admit the.,good taste of citing such men and such theories with encomium. We are sitting here by virtue of a statute passed for that purpose, in direct furtherance of a provision of the existing Consti- tution. We have, as a condition of taking our seats here, sworn to support that Constitution. How this is to M done by following in the steps of that distinguished statesman, Peters, of Illinois, " in tramp- ling the Constitution under our feet," I am unable to see. It is a sin- gular fact that in the Constitution of only one, I think, of the original thirteen States, Kew Hampshire, was there any provision for amend- ment. This duty was left to the Legislature. No State, save Maryland and Rhode Island, and later the seceding States, ever attempted amend- ments in any other way, or by any other rule, than that Almished under, or permitted by, their existing Constitution. I end this topic by saying, without the experience of an honorable gentleman on this floor who tells us he bears tbe marks evidencing his former assertion of this doctrine of secession. I agree with him; we have all we want of it. The minority report states a reason against the claim o^the sitting member, contained in the following language : " The impropriety of the action contemplated in the resolution reported by the committee, and the justice and necessity of the above opinion, is decisively enforced by the results of its adoption. If anjrthing is certain to be done by this Convention, it is a remodeling of the judicial depart- ment. One of the propositions already passed upon by the Judiciary Committee, and to be reported to this Convention, is the utter abolition of the District Courts — their name even is to be erased from the Consti- tution ; and yet the majority resolution would retain a gentleman here who will be required to pass upon the further existence of his office and its emoluments, and pernaps to determine the result by his single vote. ' No one ought to be judge in his own cause,' is a legal maxim liitherto held to be of universal application." As to this, my friend on the right, Mr. Edgerton, makes answer by appealing to the high character of Judge Fawcett, his position as Jud^ of the First Distri^, his election to this Convention, as proof that no mere personal consideration will swerve that gentleman trom a strict discharge of his duty here without any bias produced by his personal interest. I have no doubt of that gentleman's high character; nor do I for a moment suppose that his conduct would be otherwise than honor- able and creditable to himself and this Convention. But the law of common sense has long been that no one shall be judge in his own cause. It is universal human experience that self-interest affects all men in the same direction, and so insidious is this influence that the law at least does not undertake the dangerous task of weighing its amount or force, but excludes all from the office of Judge who fall within it So careful has the law been, that all those called upon to decide judicial questions should be entirely disinterested in feeling — that not only the remotest pecuniary interest, but bias for or against a party, disqualifies one from acting as a juror. It is only because there are conflicting con- siderations that a municipal corporator can sit where his municipalitjf is a party. His interest is so comminuted, so slight, and the inconveni- ence resulting from his exclusion so great, that tbe objection of interest is parried or overcome. L. Digitized by Google 202 DEBATES AND PROCEEDINGS Friday, The lawyers of this Convention will pardon me a direct allusion to them and the hope b^ which they seem actuated. From the high char- acter, which I admit is correctly attributed to Judge Faweett, they seem to anticipate from his eflbrts, joined to their own, great public good, as well as the acquisition of that reputation to the profession, which at least ought to follow great abilities, successfully employed in the public serrioe. Our first impressions of our surroundings are sometimes the best. Trusting to such impressions, I must express a doubt as to any of us obtaining here mncn augmentation of reputation, and as to Judge Faweett, the regret that he did not adhere to his first impression, and refuse the importunities of his friends, what his own judgment seemed to condemn. Those impressions were that he was ineligible. Thepr could only arise trom the &ct that the intention of the Constitution m>m its language, apparent to the common mind, was to prevent a judicial officer mixing himself up with any other functions or government, either executive or legislative. It must be borne in mind that the Constitution was adopted by the people, and when possible, that construction should be put upon it, which is in accordance to the understanding of the people. Perhaps incapable of technical construction, they understand language according to its ordinary use, and no other. This apparent intent was what first controlled Judge Faweett, and had he, sinking the lawyer, adhered to the opinion to which all average common men would have arrived upon inspection of the provision as to judicial officers, we should have been spared this discussion, and been relieved from the temptation to apply a technical close construction of the words of the Constitution, not con- templated by those who formed it. There are a large number of lawyers In this Convention, and there i^ great dan^r .that the peculiar habits of the profession may lead to a result not in accordance witti the true spirit of the Constitution. Now, sir, I have been a lawyer for forty years, have been a member of Legislature in three 8tate8,'and have had the opportunity to observe the conduct of my profession in this class of questions. I for one should not regard a legislative body composed of lawyers as the best. 1 readily admit that the world Is indebted to them for much of its progress, but the business of the average lawyer brings him in contact with small questions; his labor oft«u terminates in establishing or defeating important claims, upon no higher reason than the observance or neglect of some mere matter of routine or form, which in no respect is essential to justice. He gets into grooves and habile of thought technical and restrained, and having no savor of statesmanship. Thus enveloped in forms, and following their langiiage and the traditions that underlie them, he is inclined to ignore alike the thought, the language, and the necessities of common people. I do not say that thii result is a necessary one, but that strict legal practice has that tendency, is the result of my observation. That observation has convinced me, that in everything which involves expression, lawyers as legislators are indispensable; but in everything which involves the reasons of legislation, tne sentiment, emotion, the sense of justice, a knowledge of the common wants, the laymen are In no sense their inferiors, and are equally necessary to sound legislation. If one District Judge is a necessity, why not have them all take soata hereT Why not avail ourselves of the services of the two or three hun- dred ex- Judges we have in the State? That such an assembly Is not such as the ^mmon sense of the State would approve has been already decided. The honorable gentleman from Los Angeles, General Howard, reads from an authority. The name of the author did not reach me, but its language ajjid Idea did. No doubt it states the correct doctrine. Allow me to cair attention, very briefly, to one of the rules of construction, familiar to all lawyers, as stated by Sedgwick on Statutory and Consti- tutional Law. He gives that of Blackstone, entirely sufficient for my purpose : " Words are generally to be understood in their usual and most known signification ; not so much regarding the propriety of gram- mar as their {general and popular use." The majority report and its friends seem to agree with this general declaration, but they attribute to the minority report a departure from this rule by adopting what is called close, limited, or rather small con- struction of the terms of the Constitution, and that It errs In not apply- ing that large, liberal, magnanimous, and broad Interpretation, properly regarded as applicable to treaties and Constitutions. I agree with the proposition that the larger the scope of the instrument, especially if it IS national or governmental in chjtracter, that liberality should char- acterize the construction. But the question still remains, to which report is properly attributable the manifestation of liberal construction. Upon the question of power in the Convention, the majoritv report is limited only by the universe, but In Its definition of the decisive word of the Constitution, they limit it far within its general sense. Large, liberal, or benignant interpretation is that which brings the largest number or kind of subjects and objects within the piirview or effect of the law. Close or strict construction has the effect to narrow the application of the law. We have now arrived . at the word " office," occurring in article five, section sixteen, of the Constitution. How do the majority treat this word ? They give it the narrowest limit of which the word can be susceptible and one altogether narrower than Is possible under the circumstances. The application of the word "office" is limited by the majority of the Committee on Judiciary, to such offices only as are created by that name under the Constitution. Members here are called delegates, and are therefore not officers, whatever may be their relations to the State. It is not the intention of the people, nor the Interpretation of the people, which is to control; but some calialistic, hidden meaning, which may, upon a pinch, be claimed, which is to control. In assuming power, gentlemen say they are the people. Now, this very word " people " has to be interpreted. Those we represent here are, In an important sense, not the people of California. The statute under which we sit submitted our claims to the qualified electors alone. The people, in its literal sense, includes all sentient beings. If the word is to have this larger sense — this universal application— then. tJu men and women, ail foreigners. Chinamen included, have a right to be represented here by delegates whom they elected, as has that small body called qualified electors. This people is within the scope and eSfect of all general laws; it is completely subject to our righful authority; it is to be controlled by the Constitution we propose to form. One clsaa are native-born. The women, God bless them, always have as mach claim to the beneficent protection of the law, and are morally as much entitled to participate In its creation, as are we. Yet all these are dis- tinctly excluded from all representation here ; here no one is entitled to speak for them, or as the representative of their wishes or opinion!. Now, why is this? It Is simply because, that by common consent — by common constitutional and statutory use of the word people, as relating to political powers, these several classes of persons have been excluded from the term " people." If the principle of th« majority report is to obtain, and the people in its largest sense is entitled to representation here, then the excluded classes were entitled to be heard upon the question of our election, and to a reasonable extent "flush us from our stools," and take our places here. I, however, allude to this in this connection only as Illustrating the necessity of all the considerations surrounding a question of interpreta- tion, and as bearing upon the true sense of the word " office," as used in the Constitution. Article five, section sixteen, of that instrument, declares " the District Judges shall be ineligible to any office other than a judicial office during the term for which they shall have been elected." That a membership in this Convention is an office, I have no doubt. The definition of Bouvier is, " A right to exercise a public function or employment, and to take the fees and emoluments belonging to it." Other definitions extend to the " execution of any public trust" Bouvier places "members of the Legislature" as holding a political office, and cites Morrill vs. Haynes, 2 ^. H. Kep., 246, as so^ecidin^. Looking into all accessible authorities I find Bouvier's definition itself cited from Cruise's Digest, as being In all respects correct. Judge Jameson, page three hundred and forty-six, says of Legisla- tures and Conventions: "Both, as we have seen, belong to the same Legislature. That is, they are both charged with the elaboration or enactment uf laws. Where they differ is jn the kind of law with which they are concerned, and in the extent of their agency In its fonnation." In another place he states his opinion, that members of Conventions are " officers," within the ordinary interpretation of that term. In Ex (larte Gregory Yale, 24 Cal., 242, the terms " ^ffice," and " poblic trust," are compared, and while it is held that "office" is the more extensive term, it is declared that those temporarily executing a public trust are officers within the language of the Constitution. The statute of eighteen hundred and seventy-seven-eight, page seven hundred and sixty-two, recognizes in distinct terms that we are " officers," for it requires the " constitutional oath " to be administered to us. It was administered, and in it we each swore to "faithfully discharge the duties of the office of delegate " to this Convention. Now, if there is no such office, the whole ceremony through which we passed seems like a grim ioke, a homeopathic dose, which if It does no good, can do no harm. We are talking about the question, what is the common use of the word " office," and have seen by the last example that the term is by the Legislature applied to ourselves. That the assertion, that the functions we execute must have been termed that of an office by the Constitution, In order to make it such within the article above cited, is disproved by legislative construction in repeated instances. Mem- bers of the Legislature, Presidential electors, and probably other function- aries of like character, are not called officers either in the State or Federal Constitution. Yet in 1 Hittell's California Dlgest,Sec 2424,the Legislature provided for the election of Electors of Presidents, and of such other officers as may be required by law. Sec 2427 makes it the du^ of the Governor " to issue his proclamation for elections, designating the offices to be filled." Under this section the Governor issued his procla- mation for our election to this office. Sec 2444 declares that the vote must designate the "office " to be filled. Sections 2453-4-5-8, to the end of the chapter, treat any person who has been elected by the qualified electors as an officer. In Sec 2460 members of Congress are put as officers. It is quite unnecessary to follow this farther. There is not an Intelli- fient man In California but knows that positions of this character are all in common parlance, treated and regarded as offices. No one has thus far expressed any doubt, that this common understanding furnishes the true rule of construction in general, and no one as yet has given a soU- tary reason why this word " office " is to be excepted from that rule. ft Is said, however, that while the act of this body may be legislative in its es.?ential nature or quality, yet, as it relates to our power over it — that is merely to advise. That is so, and yet the people have no right to treat it as they ordi- narily can advice tenders them. They cannot amend it nor qualify It ; they must take it as a whole, or reject it as such. The eflect of the passage of a bill by one house of the Legislature is immediately like ours when we propose a Constitution — the oody ceases to have power over Its work. It proposes a scheme to its codrdinate, which it may modify or reject; but the initiatory act Is as much legis- lative as another. The only advantage the Legislature proper has over us, Is the power of conference and amendment. That sober, second thought which is denied to us. Article one, section two, of the Constitn- tion, commencing at the bottom, declares, " AILjioIitical power is inher- Digitized by Coogle Oct. 25, 1878. OF THE CONSTITUTIONAL CONVENTION. 203 entiu the people." Article three, section one, proeeeda to distribute " the powers of the government of California (>'. e. of the people) into the legislative, executive, and judicial ; " and then says, " no person charged with the powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others." Now, does the " government " which is organized under the Constitution, and do the three departments thereof include and provide for the exercise of " all the political power of the people ; " or is there somewhere wandering is space some vagabond force which we are at liberty to assume? The Conjtitution and the people have undertaken to provide for this body and to define ita powers. Do these powers fall within any one of the three departments; or do we constitute a fourth estate T a department at liberty to act our own will without power of legal challenge, and only subject to SQch sharp medicine as lies in the storehouse of revolution. That our function is legislative, and that we are persom charged with the exercise of that class of powers, and that a judicial officer cannot rightfully exercise those functions, would not, to my mind, except in the light of the present debate, admit of doubt. The reasons which have operated upon the minds of the people, which have culminated in st leart the attempt to keep the judiciary apart from every entangle- ment by which the mind or the Judge can by poesibility be influenced, are known to all. It is said Judge Fawoett is singularly unhappy in falling within them all. He is directly interested in the question of the continuance of his official life. It is said that his presence here is occasioning that delay in the administration of justice condemned by Blackstone. When the provisions of our proposed Constitution come before him forargument, his prejud^ents will bias him against that accundo pro- btttio of argument to which they will be subjected. He may have that dangerous task to perform of forgetting all be has heard here upon the provisions of our proposal in order to attain to that clearness of reason Deoeasary to understand it. I repeat the language of our report, " that if the wish of the voters whose suffrage sent Judge Fawcett here can be irstified, under a proper construction of the Constitution, it should be done." As it is, I consider his admission a violation of the letter and niirit of that instrument, and that his services, distinguished as I feel they will be, will be but indifferent compensation for that evil prece- dent by which " many errors will rush into the State." SPIECH OF MK. BARBODK. He. BARBOUR. Mr. President: As the mover of the resolution proposing this inquiry, I deem it my duty to state briefly the reasons which led me to make that proposition. I find in the majority report of the Judiciary Committee a statement that " the objection to Judge Fawoeti's holding a seat in this Convention comes from a point remote from his constituency, and without any suggestion of unfitness in any respect, and is based on a narrow, literal, aud technical construction of section sixteen of article six of the present Cunetitution." It is not I, sir, who object to his retaining that seat. If the position I hold is correct, the objection comes from the Constitution of this State. My investigations led me to the deliberate conclusion, baaed upon the authority 1 find in the Constitution, in the absence of any decisions, authoritative or otherwise, of the question, that the Conati'tution, and not I,diaabled him from holding a seat here. So holding, and so believ- ing, I submitted the resolution of inqniry, which can never be tortured into an objection to Judge Fawcett ; aud in my opinion the majority of that committee, under the instructions contained in that resolution, were not entitled to pervert the issue by assuming that we have based oor opposition to him upon any other ground than simply the ground of his disability under the Constitution of this State. My judgment is, that they, furthermore, have argued this case from the wrong end, when they aasurae that we must point out the qualifications and eligibility of a member of this Convention. Sir, it is not true; the affirmative is upon them to show that this is a judicial office, or the member, whose seat is being contested, is ineligible. We have nothing to do with what constitutes the qualifications of any member here. That is not a ques- tion. Mr. President, before this Convention. The question is as to the disability, under the Constitution, of a judicial oflScer holding any other office, or performing the functions of any other office, and that is all. Is the Distnct Judge of the First Judicial District disabled from holding any other office, or disabled from sitting as a member in this Conven- tion ? And that is the sole question ; and if the interpretation we put upon it is correct, the only outlet for gentlemen is to show that this is a judicial office, or partakes of a judicial nature. The debate, sir, has drifted away from the real issue that is here involved, and that is this, stated briefly : first, is membership in this Convention an office? Involved in which is the question relating to the character of the Convention ; it involves the question, by what authority are we assembled hero ; what is the character of the whole, and what are the characters of the integers composing the whole; what is our (unction in the conduct of the government; what is the extent of our authority; what is the limit of our authority; who has conferred upon US the authority ; who has limited the. authority ; are we not here a duly organized body, summoned hither by the law, deriving all the power we poasess from the present Constitution, according to the forms of law, bound to obey that Constitution and the law framed under it ; or are we a primary body, independent of the existing Constitution and lav; are we officers under the law, representatives of the people in trath and in bet, in letter and in spirit ; or, are we mere occasional «inpk)y^, like a man who would oome here to mend a broken chan- (WlerT All these que^ons, Mr. President, are comprehended in the issue here prennted, and by the judgment of the members of this Convention it Wat be determined, if no extraneous considerations enter into the votes *hick gentlemen shall cast. I maintain this proposition, as I under- ~'~ 1 ill do who coincide with me in support of the minoritgr report. that there is no such thing, in our modern American system, as a repre- sentative body of the people in their primary capacity, unless, perchance, it may be those assemblies of the people of the Territories in the United States emerging from Territorial pupilage into Statehood, and even as to them it is held that the Enabling Act is necessary to effect a change. The proposition is new in my judgment, sir, and I do not find that it has ever been decided in any of these United States, except it may have been in the case in Illinois in eighteen hundred and sixty-two, which has been shown, if it is ofiered at all in this connection, to have bees authority upon our side of the question, because the people reversed the judgment of the Convention which admitted Judge O'Melveny to a seat. It has never been authoritatively settled at all, and it must be decided by this Convention upon authority found in the Constitution, upon reason, and upon principle. But the authorities have never decided the question directly : what is the character, what are the functions, of a delegate to a Constitutional Convention? A Constitutional Convention at the present time — now that the States have all been organized, now that they have been provided with all the functions, agencies, and machinery lor the conduct of government — a Constitutional Convention is now but an arm or branch of that govern- ment. It b^onp to the law-making department, strictly speaking, and nowhere else. It is not, as was contended in the argument in the State of Illinois, as if the people were assembled together, or a clear majority of the whole people of the State, on some vast prairie, there met together to fhime their fundamental law, to set the machiner}' of government in motion — not at all, sir. I do not deny that it might be done. I do not deny that there might be a revolutionary Convention, but this is not one, and no such thing is contemplated at the present time in any of the remaining States of the Union. There is authority upon that score all fthroueh the books, as was well argued by the gentleman from Marin, Mr. Soafler, abundant authority that the organic law is nothing but the law of the land, as any other law, with the simple difference that it is higher and of a more exalted character. I do not wish to trouble this Convention with any authorities. I wish to read one authority in support of the proposition, showing that modem ideas of Constitutional Conventions, and the functions which they perform in the administration of government, has under- g>ne a change from those primitive times when John Marshall and the ovemor of Virginia sat side by side in that Convention. Those pre- cedents no more serve to illustrate the present machinery of Constitu- tional Conventions than the lumbering old family coaches they used to ride to the Capitol in, are like the railroad cars and steamers in which the same journeys are now performed. As this is a man of high char- acter, I will read a few extracts from Charles O'Conor's addreee on Constitutional Conventions, and methods of amending Constitutions: " A written Constitution, the distinctive feature in American methods, is not distinguishable in principle from any other law. If there was ever a distinction it Is being rapidly obliterated by continual chan^ and extensive amplifications. Thatfirgt Constitution under which we lived for so many years was framed and put in operation by a Convention of dele- gates selected and assembled with less formality than usually attends the choice of an annual Legislature. The early Constitutions of our sister States were in general adopted in the same manner. It seems not to have been thought at the beginning that a vote of the people was necessary to f^ive validity to an organic plan of government. Other Constitutions in this and the sister States have provided a means for their own amendment as far as the substitution of new Constitutions in their stead." I maintain, sir, that the constitution-making power and the law- making power are one and the same thing, and I find that proposition in article ten, sections one and two, of the present Constitution. It would be as proper to say that the members of the Legislature, pro- ceeding to submit amendments and propositions, convening together for no other purpose than submitting them under article ten, are not offi- cers, are not functionaries of the government, as to say that members of the Constitutional Convention, proceeding to amend the organic law by another process, are not also f^vemment officers. They are methods interchangably used for the purpose of obtaining an amendment or entire change of the organic law. I maintain that this Convention is the organ of the government, for its appointed uses in the operation of the machinery of government, and its members are officers serving that office. It is immaterial to this issue whether the organ acts with regu- larity or not, it is the none the less an organ. These are the propositions, Mr. President, which I maintain are involved in the issue at present before this Convention, and which must be determined by the fiinven- tion on the main question. It remains for the State of California, through this Convention, now to first declare the principle, and author- itatively assert the doctrine, whether a Constitutional Convention is a primary body, representing the people in their primary capacity, or whether, as the minority report contends, it is but the organized agency of the government, only required to be awaked into life and set in motion by the action of the Legislature. Now, the majority report goes nearly to the extent of contending for the proposition that it is a revolutionary body. Certainly there is no middle ground ; that is the natural, neces- sary, and logical result of their position, and the gentleman from Sac- ramento, Mr. Edgerton, evidently so understood it, for he took the ground, distinctly and positively, where he must land in following out the logical sequence of nis position; and that is briefly stated, sir, that this Convention is not controlled in any respect, either by the Constitu- tion of the State, or by the laws passed touching it uniier that Consti- tution. And I say there is no midway ground. The first objection of the majority report, the first criticisms made upon those who dispute the eligibility of Judge Fawoett, is that "to hang upon the letter here, is emphatioilly to hang upon the bark — that to be literal is to be wrong." Now, sir, is that true? Is not that an exceed- ingly unfair position, when it is said that unless we (»n find that thi Digitized byLjOOQlC 204 DEBATES AND PROCEEDINGS Fbiday, office is literally declared to be an office we moat fail T We do not con- tend that it can be literally diaoovered that it is an office, or m directly declared to be, but we aay that everyintent, every just inference of the Constitution is that it is an office. We depend upon the brc«d principle that it is the agency created and function eetabliabed and authorised oy the Constitution, not in express, literal terras, but by fair implication. But the report of the minority of the committee did not go to the extent which it should have gone to have made the case clear to the 4inderstanding, that of declaring whether we are working under the Constitution, or whether we are outside of it. It says, "The Constitu- tion as it is creates a form of State government complete in itaelf. Under it the State was to be organised, officered, and launched into ope- ration. It did not anticipate what should be dona nnder a suooeeding Constitution, but provided for its own practical working." There, Mr. President, is where the majority report is fatally fallacious, in that it confounds the assemblage of the Convention with the ratifica- tion of its work by the people, for the Constitution now existing operates and is in force long after our functions have terminated, long alter we have gone to our homes, and ceased to perform any office with reference thereto. " It did not anticip«kte what should be done under the existing Constitution, or provide for its own practical working." The point of its practical working is the method of its own amendment, its own revis- ion, and we are here as a part of that agency, and hold that the Consti- tution is not supplanted, as the majority report would seem to infer, by the assembling of this Convention at all. It exists, and it will exist, in all its force and vigor until the subsequent Constitution changing it has been adopted and. ratified by the people. Here, again, the report says: "As long as that Constitution should last those offices would last, and it was in view of that fact that section sixteen of article six was adopted, rendering Judges ineligible duringtheir terms to any office in the execu- tive or legislative department." This covered the usual, ordinary, and necessary workings and instrumentalities of the government under that Constitution, until how long? until, sir, a subsequent Constitution sup- plants it and destroys its force. Another fallacy of the majori^ report, is in asmiming that it is no part of the necessary workings of the Constitution which is to be put in force. The gentlemen say that the officers named in the Constitu- tion— specifically named — are the only officers from which the judiciary are excluded. Now, sir, what officers are named. Gentlemen seem to misapprehend the scope and' power of this instrument, in supposing that it can be only those officers specifically named; but it is not only the offices named and officers provided for in the instrument itself, whether in esse or in futuro, contemplated in section eleven of article six, where it provides that the Legislature, after naming certain officers, shall provide for the appointment and election of such other officers as may be found neceasaiy for the proper administration of the govern- ment. Does the gentleman say that the great multitute of offices created by the Legiuature during the long years, under the Constitution, have been open to the judiciary because they are not specifically men- tioned in the Constitution T It would be a most extraordinary assertion. Sir, it is not only the officers named, but the officers provided for, whether by the Legislature or by the inherent force of the Constitution itself, and that is what makes us officers. We aro not officers created by the Legislature, but officers spoken into existence by the Constitu- tion, and the Legislature is but the hand to smite the rock and set their delegation free. Now, section eleven, cited here, contains this proviso, that the Legisla- ture shall provide for the election of a Clerk of the Supreme (>>urt, County Clerks, District Attorneys, Sherifb, and other necessary officers, and to fix by law their duties and compensation. The officers named are constitutional officers ; Clerks, Sheriffii, and District Attorneys are the creation of the Legislature, and are not constitutional officers; and the plain inference would be that the judiciary are free to enter into all the offices not expressly provided for by the donstitution. The Consti- tution is full of provisions for filling these offices when they become vacant. The majority of the committee in their report say that " when we come to the question of a new Constitution we nave something effecting the most radical change possible." Exactly I But the radioil change only comes after the ratification of the Constitution. The change does not come by the assembling of this Convention. The restrictions and the prohibitions of that inurnment are not relaxed until that change does come. " The old things are to pass away and new ones are to take their place. A Constitutional Convention is, therefore, an unusual, rare, and merely occasional instrumentality of the government, and of brief ezistenoe." That, Mr. President, in a certain sense, is a begging of this whole question. It makes no difference whether it is rare, it makes no difference whether it is brief, it makes no difference whether it is unu- sual; the provision is put in there squarely that it is an instrumentality of the government. An instrumentality of the ^vemment, how? Simply our instrumentality recognised by the Constitution of the State, and not otherwise. " It is not one of the three great departments of gov- ernment which are created fur everyday operations, and is not to br thrust into the ranks and limits of one of'^these three divisions, and take iU place either as executive, legislative, or judicial." It must be a Sun- day office, for they say it is not of evenrday operation. IIow does that afllect the question of the existence of this Convention as an instrumen- tality of the government and of the members as agents of that instrumen- tality. " The Constitutional Convention outranks them all ; it is their creator and fixes limits to their spheres of action and boundaries to their powers. It is occasional, exceptional, brief, and peculiar." Mark, if you g lease, the language, the extraordinary language. It is not that the onstitution here framed and adopted is the creator of all these offices, but it is that the Constitutional Convention is the creator of them. The necessary sequence of that is, as was claimed and contended in the Stat« of Illinois, that a Constitutional Convention was omnipotent; that it might submit or might not submit its work; that it might create, might limit, might fix all the offices of the ^vemment. " It outranks them all ; " that is the doctrine against which I am contending here. It is a doctrine which I must assert to be rank communism. If the eighty Judges of the Courts of record in this State assembled together here, calling themselves a Constitutional Convention, to take paasesnon of the departments of government, could secure a majority, perhaps, t« back them — proceeding in this way, ignoring the method pointed out by the Constitution, or the amendment to the Constitution, what is to hia- der their doing it? I admit, sir, that it is " peculiar," and tha^is the only point upon which I can agree with the majority of the committee. "It represents the people in their primary capacity, and forms the organic, fundamental, and paramount law." There the broad doctrine is asserted of the independence of all control of this Convention, and the extraordinary language follows immediately after: "Its membcn are mere agents or delemtes of the people." How, sir, how do tbej reconcile these things? In the first place it outranks all, legislative, judicial, and executive offices, and yet we come here as dele^iteB and agents of the people. The Colossus oi Rhodes bestrides a mighty chasm, but the majority of th* committee have made even a wider slraiddle than that They come immediately back to our proposition, and say that " they have no power to adopt or create, but at most can only prepare and present to the people a draft of a Constitution for their aidoption or rejections- coming back again to the original proposition. Like the Fieoeb brothers of the cireus — Jean, Jacques, snd Pierre — one ran and jumped down the throat of the second, the second ran and jumped down the throat of the third, and he turned a back somenaolt and jumped down his own throat. Bo with this muority report. They want to be on the aafe side. In one breath they say that it is an omnipotent power, and in the next breath they say we have come here as mere agents and del^ates of the people, lliey are bound to have it right some way, even though tbej cast consistener to the winds. I do not believe that a Constitutional Convention called b^ the authority of the people of the State has any such power as is claimed ; is not outside of all law, nor independent of all control, as they would like to have this Convention believe. The majority "P"^ undertakes to compel those who contest this question of the eUgibuity of Judge Fawcett to locate the position of delegate in one of the three departments or fail in their position. Mr. President, the issue is entirely and totally perverted. We have never contended at all, and are not bound to contend here, that tbt position of delegate does belong to either one of them. I am perfectly willing to state my opinion, and that is, that it is a branch of the legis- lative department. But the proposition is this : not what are the duties and qualifications of a delegate, as I before said, but what is the office of section sixteen of article six of the present Constitution. That is to say, instead of going to article ten, sections one and two, to discover the eligibility and qualifltations of a delegate, the question is rather: ii Judge Fawcett disabled under a fair interpretation of the Constitution. It is arguing at the wrong end. It is attempting to put us upon a &lse scent We are not here to point out the qualifications of a member or to judge as to what constitutes eligibility. We have simply said we find a man who is disabled by another provision of the Constitution from sitting in this Convention, and therefore ask the Convention to pass upontnat question. In doing so we might cite numerous other provisions of the Constitution with regard to what constitutes disqualifi- cations of officers, but it is not necessary to this case at all. We might ask gentlemen if they would contend that a horse-thief from nan Quentinwas eligible to sit In the Convention, but that is not thequestioii. We are not here discussing what are the qualifications and what is eligibility, but we are discussing the question: is a District Judge dis- qualified under the Constitution of the State to sit in this Convention T That is the only issue. I pass over that portion of the report whieh seems to stand upon precedent and usage. The answer to that has been complete in the point made by Judge Shatter, that they form no authority, constitute no precedent for the government of this Conven- tion, because the question never was raised, never was presented to them. But I ask now — I ask gentlemen to plant themselves squarely on the issue by their votes, and that they will follow it to its logical results, and tell me whether we are an organised body, under the law, or are we not That is the question, sir. One gentleman, CoL Barnes, argued that the Governor had no right to administer the oath of office- Then if he had no such right or power, what follows? It was void, and we have not, consequently, taken an oath of office, and perhaps gentlemen are getting out that way, in order to vote on this propositioB, that Judge Fawcett is eligible, free from the oath of office. By whst authority do we come here except under the Constitution and an election? By whatauthority does the Controller of State issue the warrants and the Treasurer pay them, except by virtue of the law which organised us? How is it that we perform these duties and draw this pay and this mileage, Mr. President, if we are not a regularly organised body under the Constitution and the law ? Now, I pass to the intent of the law-making power when these pro- visions were inserted in the Constitution. In the first place, they have said that the Judges of certain Courts are disqualified from holding any other than a judicial office. How do we interpret that? Do you mter- pret it by the light of contemporaneous history ? By cognate passages of the Constitution? We interpret it by the light of reason itself. And I say that it is a fair presumption that the intent was to control succeeding generations and subsequent Conventions. All laws, all Constitutions are trammels, binding succeeding generations, from the time of the ten commandments down. It is a still fairer presumjAion in the case before us, and I will cite the provision of the Constitution which makes me believe so. At the same time that this amendment was adopted — and the amendment was also adopted which immediately precedes this one, Digitized by V Oct. 25, 1878. OF THE CONSTITUTIONAL CONVENTION. m mi will aerre to illustrate and throw light upon the question, and that ia section fifteen of article six : " The Justicea of the Supreme Court, District Judges, and County Judges shall, severally, at stated times, daring their continuance in office, receive for their services a compen- aation which shall not be increased or diminished during the term for which they shall have been elected." That was against extra com- pensation for services as Judge. The Constitution makers, through the Senate and Assembly, intended to have the amount fixed of their compensation, and to have fixed it for Judges as Judges, and nothing else. How then is it competent for the Legislature to authoriie the Judges to draw more pay from the Sblic treasury than the amount of their compensation, as fixed by law ? n Judge Fawoett draw five thousand dollars a year for his services as District Judge, and then draw ten dollars a day compensation from the treasury for services here, without a violation of the spirit, at least, of that Constitution? Gentlemen, I say that wa are called upon to vindi- cate the distinguished men who made the Constitution from any such ispenion as the minority report implies. I, sir, wish to clear the people who ratified it from assuming that thejr intended an^hing else than to require the Judges, whom they appointed and paid, and fixed their compensation, to render service as Judges, and to receive pay y nothing else. The limitation which is placed here, both upon the incompetency of Judges to serve other than in a judicial office; and their inability to receive any increased compensation, contains the express, at least strongly implied, limitation upon his ability to serve here and to receive bis pay here, under the provisions of that Constitution. And that is the bir method of construing the intent and meaning of the law makers. I see, Mr. President, that this debate is to be long, and an adjourn- ment is necessary, so I will conclude what I have to say. I have said that I raised the question in perfect good faith. That this is not a party question, and I never intended it to ne such. I maintain that this is a question addressed to every individual delegate for his determination under his oath of office as he himself interprets it. I maintain that these gentlemen sitting in this Convention, who have argued in favor of the majority report, since they went to that stand and took the oath of office, have sat here as delegates under that oath of office ; have pursued the requirements of the statute; and by these acts have con- cluded themselves finally from now setting up the objection that we are anything else but an organised body ; functionaries of the State ; officers to represent the people; attached to and a part of the law- making department I say they should have raised that objection before ttiey took tne oath of office as prescribed in the Act which called this Convention. I have furthermore insisted upon it because it goes to a great anestion of principle; a principle afiecting modem legislation; affecting le health and pfeserration of the judiciary system as involved thereunder. I know, Mr. President, that the spirit of the people of the present day is wainst all means whether by indirection or otherwise, whereby money is in.wn from the people's treasury, whereb)r the fountains of justice are corrupted and ptuluted ; and that they - so intended when they sent us here to this Convention, because it is our duty to so frame the new Constitution, which we propose to submit, as to make strong provisions, forbidding distinctly and positively, hereafter and forever, all attempts upon the public treasury; all double salaries, all means and methods by which money is abstracted. I know that this is the disposition, I know that this is the complaint, and I ask gentlemen of this Convention how they can vote to sustain Uiis District Judge in his seat here, and allow him to draw his pay, and then insert or preserve in the Constitution the daose relating to Judges, making it extend to all other officers, covering every office, and hand that down to posterity, and then let it be con- strued in the light of their vote upon Judge Fawcett's right to a seat here. What a multitude of laws would flow in upon the State if we were so inconsigtent as that. We must square our action according to the principle that we propose to contend for, and we must leave no room for mistake to posterity as to what we meant. And I say, that whether it be a Constitutional Con- vention, or whether it be a Legislature, or whether it be anything else — sommission or what not — I propose to ask this Convention to say that this Judge shall not meddle, mingle, or mix with it. My friend Colonel Barnes said that the intent and meaning of the law was to be judged by the mischief intended to be prevented. That is so, sir. I say it was to pterent a Judge sitting upon the bench, and whose compensation is Dzed, coming down and scrambling for ten dollars a day additional, and contending for a seat in a Constitutional Convention. " No politics in this," says the gentleman. " It is a high and inscrutable thing." And yet upon this floor and within this room gentlemen have asserted that they were voted for and elected in opposition to the workingmen — Judge F^wcett among the rest. But I say that this Convention should disregard all questions of personal consideration and feeling on the sub- ject, and vote that Judge Fawcett is ineligible, and let it go down to other Constitutional Conventions and posterity as a precedent of reform, which at thepresent time the people insist upon. Ms. HUE^IS. I move that the Convention now take a recess until seven o'clock r. x. * Mb. HcFARLAKD. I move we adjourn. The motion to take a recess until seven o'clock p. x. prevailed. EVENING SESSION. Tbe Convention reassembled at seven o'clock p. u. President Hoge in the chair. THE PAWCKTT CA8B. Thi PRESIDENT. The question before the Convention is the oon- ridaration of the m^ority and minority reporU of the Committee on Jodidaiy, in reference to the eligibility of Eugene Fawoett, of Santa Btrtua. UMABE8 or m. PINMIT. Mb. FINNET. Mr. President : It would be presumptions in me, I admit, to attempt to argue the question of law that has been raised in this case, after the able and exhaustive arguments by gentlemen who are too well known in this State, and in the country, to need eulogy at my hands. But, being a delegate from the county which has so recently been separated from Santa Sirbara, being still cloeeljr connected with that county, in friendship and in interest, it seems fitting that I should break the silence imposed upon myself, and say a word here in favor of the county which is now practically disfranchised on this floor, or which it is sought to debar from any participation in the counsels of the body. What has Santa Barbara done, I ask, that she should be disfranchised and cast aside. The sura and substance of the whole thing is this : that Santa Barbara has chosen, in the exercise of her best reason and her best knowledge, to send her best man to this body to represent her in these councils, and I am glad to see that during all the course of this discussion nothing has been said against the gentleman who holds the prima facie right to a seat here with us. And, gentlemen, I am glad to say that he is the peer of the proudest on this floor-^here where we meet the very best men of the State. Judge Fawoett is a man who, for qualified intelligence, for honesty, for integ- rity and broad ability, is the peer of anybody, anywhere — a man who is an honor to this body, an honor to his country, and an honor to the State of California. Mr. President, my only excuse for inflicting m^ crude ideas and my weak voice upon the Convention, is that I feel it my duty to speak in defense of the Countv of Santa Barbara and of the delegate who repre- sents that county. I'hat is the excuse I make for saying one word, or occupying the attention of this Convention for one moment. It was said oefore, that it was the wish of the judicial district over which Judge Fawcett presided that he should become a candidate for delegate from Santa Barbara to this Convention, and speaking what I know in our county, which is one of the three counties over which he presides as District Judge, the people seconded the wish of Santa Barbara County to have the service of such an eminent gentleman on this occasion. We congratulated 3anta Barbara on her selection, and we congratulated our- selves that perhaps we might be able to lay so slight a sacrifice upon the altar of the State, by consenting that the terms of the Court over which he presided might be postponed, so far as our county was concerned. I know that he sS first would not consent to become a candidate. I know that he would not consider the matter at all until he was assured by the attorneys of the oounty over which he presides that it was the general wish of the people of the oounty that he should aocept the position ; that he, while appearing simply as a member from one county, still could represent our part of the State in a body of this kind, and give to it, and to us, the benefit of his knowledge, the benefit of his wisdom and expe- rience, which would be so valuable, not only to us but to the State at laree. r will attempt to pass no eulogy at all on the little County of Santa Barbara, although it is the choice little spot, the Itely, the sunny Italy of our glorious State that outranks them all in its wealth, in its grand- eur of scenery and salubrity of climate, in everything that makes a country desirable. But, pray, what is all this matter? Hour after hour we have been instructed and entertained by these discussions on constitutional law — perhaps I should have said, these quibbles on words — and what is the point? Is it, let me ask you, gentlemen, anything more or anything less than this: that Sante Barbara is proposed here to be disfranchised, as I said, debarred from any participation in the counsels of this Con- vention ; for there is no person here to take the place of Judge Fawoett, if he is sent out from this floor. Santa Barbara has sent no representa- tive here to dispute his seat. She has sent no person here to contest his seat. If Judge Fawcett is sent from this floor, Santa Barbara is disfran- chised and debarred from any representation on this floor. The people you know, and it is not for me to say that they are an intelligent people. That they are able and willing to send here their quota. It has been said on this floor, and I regret that it has been said, that, perhaps, the reason there was no such contest for that seat was because Judge Fawcett occupies a judicial position, and it mi^ht be dangerous for any- body to come here and contest his seat in this Convention. I believe that gentlemen of the Convention, and all those who have been residents of this State for any length of time, will soout at the idea. The temper of Califomians is different. It is the only reflection I have heard cast upon him on Uiis floor during the whole course of this discussion, and I consider it unworthy of the occasion, unworthy to be presented before such a body as this, and I protest agdinst any such aspersions. On the other hand, there is the most obvious and most positive rea- sons why no opposition has been brought to bear from his home. It is because there is none. It is because he is the desired representative of his people; because they feel in their innermost souls that if he does not represent them here, their rights will be overslaughed, their privileges thrown away by this Convention, and they stand upon their rights, and say they will have Judge Fawcett or nobody. And a distinguished gentleman who spoke this afternoon, in whose remarks I was much interested, said this question of " office " was one that could be left to the people; that unless the prohibition was so plain that he who runs may read, he was not in favor of ousting the sitting delegate, and the con- struction which the people put upon this thing must be the construction which is to guide us. The voters of the County of Santa Barbara sent this gentleman here to represent them, and shall we presume that they knew nothing of the Constitution of this State ; that they voted like a lot of blind dogs for a man who could not go to trial. Is it to be presumed that they did not feel positive, upon the very highest assurance, that he would be qualified to taJce his seat in this Convention, and that he was perfectly ehgible to the position ? They signified their will, they signified tjteit choice, thejj Digitized 0 umiVMvtj cujjiukv w lea thek choice, the* by Google 206 DEBATES AND PROCEEDINGS Friday, signified their understanding and interpretattun of the Constitution, and they signified their interpretation of the word "office." Now, I wish to say, in a modest manner, a word to my fKends of the Workingmen's party, with whora I have worked and hope to work, whose principles, as enunciated here on this floor in a great measure I believe in ; it seems to me that the Workingmen here on this floor can- not afibrd to raise this Question against Judge Fawcett. It is certainlr true — and I speak of this matter with reluctanry and hesitancy — but it ■eems to me that the Workingmen in this Convention, coming here as they did under the ban, proscribed, despised, they came here, for instance, asking a man to be nominated and elected by this Convention to fill a vacancy which they had created, believing that the man who was the choice of the people of San Francisco should be elected. They based their demand upon the sole ground that he was the choice of the people — nothing else ; that in unmistakable terms the people of the dis- trict they asked to have him represent, had expresxed, ue^ond all doubt, that he was their choice. They were defeated. Smarting under that defeat, they still had the manhood, the real nobility, when the other two vacancies came to be filled, where men had been elected in opposition to the Workingmen, to say at once these men were elected by the people in opposition to the Workingmen's party — and our principles are that the will of the people is supreme — and they made no nominations, and they so stated. I feel proud of them. How is it here? Gentlemen, are we not in danger of violating our own consistency T This is a matter of quibbling over words. The gentle- man who spoke this afternoon with so much al>ility, and so much skill, upon this subject, even he, prefaces his argument with the statement that he deeply regretted that this question had come up at all before the Convention, that it had been raised i^^ll, that it had not been permitted to pass. Is there any such profound necessity, is there any such great necessity, that we should banish this gentleman from the floor of this Convention, by acting decidedly adverse to him ; that we should violate the principles upon which wo came here ; that we should fly directly into the teeth of the great principles for which we have contended? Mr. President, I claim that we should go carefully here. We want to be sure that we are not putting ounelves in a false position; that we are not putting the lesser before the greater. It is so easy when the passions are aroused, in the heat of debate; it is so easy for the thing nearest to our eyes to seem so large, and the things further oS° to seem ao small. If we abandon, even in seeming, the principles for which we contend, we are lost. Another thing in this same connection I will mention : it seems to me that the delegation from San Francisco are trying to disfranchise Santa Barbara. ISow, what I wish to say is this: baS there been one word of protest from Santa Barbara here; had any man appeared here claiming the seat; had the people there, in an^ wa^, by any whisper floating upon the breeze, signified their dissatisfaction with the man who represents them here, there would have been some excuse. It is not so. The objection comes not from that part of the State. The peo- ple of Santa Barbara, Mr. President, have never raised their voice to utter one word of complaint in this matter. The complaint, the criti- cisms, the objections, come from a diflerent quarter. The look is bad ; the app&irance is not creditable. I will not take the lime with answering some of the things thst have been said, but will simply say in conclusion, there are two principles of law well known to everybody : that where there is a doubt remaining in the mind of any person as to the guilt or innocence of an accused per- son, the benefit of the doubt must be given to the accused. Now, Mr. President, if that is good law for a jury, how much stronger is this case, and how much more necessary that the benefit of the doubt should be given to the whole people of an intcllif;ent, wealthy, enterprising county. But one of the gentlemen on this floor to-day claimcxl that same principle, and in the most neculiar manner perverted it, so that it might read : that when there is doubt it must be given against the party accused. The people of Santa Barbara are not here to plead — they are here to demand that Judge Fawcett be given his seat in this Convention. I am not here to plead for Jud^ Fawcett, much as I admire and honor him, but I am here to speak m behalf of the rights of the people of Santa Barbara, whom he represents, who cannot speak for themselves. The question before this Convention is: shall that people be represented, or shall they not. Shall they be set entirely to one side in this body, or shall they be allowed a voice in framing a Constitution under which they are to live, and by which they, in common with the balance of the State, are to be governed. Then, if the question of doubt comes in, if it is not absolutely proven to the satisfaction of all, to the satisfaction of every man here, that tbey have made this great mistake, the people of that oounty should be given the benefit of that doubt, and allowed to have a voice in the framing of this Constitution. So, gentlemen of the Conven- tion, I wish to say, that if there is in the mind of any gentleman here a doubt upon this matter, that doubt should be given to the people of Santa Barbara; that doubt should be resolved in favor of allowing them to have a representative on the floor of this Convention. And in all conscience, let me ask any lawyer, any man — I don't care who — has not such a question of doubt been raised, to speak in legal terms, as would, in a great many cases, compel you as jurymen to say that a man was not guilty ? The press and the ablest minds in the country have taken this side of the case. It is not a new question at all. It has been argued over and over before you, and I do not desire to recur to the arguments, except to speak for the people ; and it seems very strange that it should be necessary to stand here and say a single word, in a body of this kind, for the people, and in defense of their expressed will. But is it not true that such a doubt has been raised here by these great men — the greatest men that America has produced — who, having looked the matfer carefully over, decided it the other way ; and shall we, in the face of their opinions, in the face of the illustrious precedents, declare that not even a doubt has been raised in our minds aa to whether they were right or not. Mr. President, I beg the Conveutjun to do our ancestor* the credit of having ordinary intelligence. I thank you, gentlemen, for your attention. ABOCUBKT or Ml. BWIHQ. Mk. swing. Mr. President: I desire to state simply the reanni why I shall vote as I shall when this matter comes to a vote. I will say this, that I have nothing whatever against Judge Fawcett; I believe him to be a man of honesty, and a man of integrity ; but notwithstaad- ing all this, I propose to vote for him in this Convention. I take up the position fairly as they have offered it, that this is not an office. Aa "office" has been defined to be the exercise of a public function, and taking the question and applying that definition to the i^ratem of gov- emraent of this State, under the forma of the Constitution, if this be an office, it must fall either in one of the three branches ; it must either be legislative, executive, or judicial. I believe nobody clainis thst this is an executive office. It has been hinted and maintained, with some degree of propriety, that this is in some reelects a judicial posi- tion. But I think it is well aooepted by every one that if it is an office at all it is a legislative office. Now, if you take the definition given here of a legislative office, you find that legislating means enacting. We find CTiat a l^slator is one who makes laws; you find these defini- tions in Webster and in Bouvier's law dictionary. We are not here t« make laws, but I am not one of those who deaire to bring a strict literal construction to bear upon this question. You will find, for instance, that according to these definitions, the word I^islator means one who pro- poses, or one who makes laws. Now, I submit that we do not make any laws; that when our duties are completed, that we will then lay it before the people of this State, and they may ratify it if they choose, or they may bury it in oblivion if they so choose. I say our act will receive no force or vitality until it is received and the stamp of approval placed upon it by the sovereign power of the State, which is the people. But I do not desire to pursue the question any farther on its geneni bearings. Let us look farther at the provision which is sought to be invoked, by which it is proposed to oust Judge Fawcett from his seat. Section six- teen of article three is as follows : "Skc. It. The Justices of the Supreme Court, and the District Judges, and the County Judges, shall be ineligible to any other office than a judicial office, during the term for which they shall have been elected." Now, I admit I have had serious doubts as to this question. I may almost say I have been on all sides of this question. In regard to what constitutes an office in this State, I hold that if that has ever been a mooted question, it is no longer. It has been settled Iqr the Code Com- missioners, and crystallised by the adoption of the Oxles, and will there remain until dissolved by a subsequent Convention, or by the repeal of the Codes. Now I take it that a District Judge is not ineligible to any office, unless it was an office created by the Conttitution, or an office which has been subsequently created by Act of the Legislature. In sec- tion two hundred and twenty -two of the Political Code we find the qualifications of public offices. We find it divided into four sections- legislative, executive, judicial, and ministerial. Now, I take it that unless you find that the position of delegate to the Constitutional Con- vention comes within that class, then the most you can say is thst Judge Fawcett is only by implication prevented from sitting in this Conven- tion. I say that he must be — if he is ineligible, disqualified — it muet be directly, and not impliedly. It must be in terms unmistakable, and not left to be construed according to the prejudice or desires of anvbody. It must be specially and directly done. You will find in that titW that public officers have one prescribed scope, in the executive department, from the Governor down to the Clerk of the Board of Examiners. You will find it from the Chief Justices of the State down to the Justices of the Peace. In the legislative department, to which they say this position belongs, you find there Senators and Representatives. Now, I claim that if you desire to invoke this provision against Judge FawceU, that you must get the Code Commissioners to insert " member of the Constitutional Convention." If they had done that, yon could only invoke it by implication, and 1 do not think we wish to declare a man ineligible by implication. The question has been asked : what position we occupy ; what position is ours? I take it that we are merely agents of the people. We sre no more officers in the sense and meaning of the Constitution than he who drafts a deed would be the grantee of the deed. To illustrate my idea further, let us suppose that a certain man is doing a large business. For some cause he desires to change bis system of business. He calls in a skillful financier to make a difiisrent system of business. That system is mapped out by the financier, the functions are prescribed, the posi- tions are prescribed, and the system is submitted to the individual, and if he adopts it all right, and he changes his system of business, and if he rejects it, all right, but in neither case does the financier exercise any functions in forming a system of business, nor in overturning the former system. So I say that we are in that relation — that we are simply map- ping out a Constitution for the people to adopt, and if they vote in favor of it, it will then become the law of the land. But whether they do or do not, I maintain we exercise none of the functions of government, either of the old or of the new, and it does appear to me further, that in the very nature of things we cannot exercise sny public functions in our present system of government, because if we did the creature would riss above the creator. 8PIECB or MB. MCrABLAKD. Ma. McFARLAND. Mr. President: I desire to allay the appre- hension of members, by saying that I shall not occupy the attention of members for more than ten minutes. The most that I might have desired to say has been said already by other gentlemen, with force and expression greater than I could expe^ to ax^ it But, ai^ I h>Te soeh Digitized byLjOOQlC J Oct. 25, 1878. OF THE CONSTITUTIONAL CONVENTION. 207 strong convictions as to th« dutjr of this ConTention towards the people of Santa Barbara Countr, and towards the gentleman thev have sent here to represent them, that I do not feel satisfied with simply recording my TOte on this question. It is, sir, a most grave and responsible act to turn a man out of this Convention who has been sent here bj any constituency in this State. I understand from private conversations that there are other gentlemen on this floor who, notwithstanding all the arguments which nave been made here on either side, are still somewhat in doubt as to their duty. Nov, to those gentlemen I desire to say simply a few words. I desire to say first that with me there is no doubt whatever. I have been accustomed to weigh evidence and argument, and I have never had a qaestion presented before me, that might be considered debatable at all, which was more clear than this one. I have no doubt myself that Judge Fawcett is perfectly entitled to his seat, and I go farther m that direction tbsn any other gentleman. I beI>eve,-Bir, that any person whom the people of this State, or of any county, or any district may choose to elect, vould be entitled to his seat in this body. I believe, sir, that the gentle- man from San Francisco, Mr. Morris, who reeigned on account of sup- posed inability, would have been entitled to his seat had he presented himself here and demanded it. I do not believe this is a revolutionary body. I believe we are met in pursuance of that great American system of government which has been described by Weoeter to be a system of liberty regulated by law, and in exact accordance with established forms of law. But, sir, I do not see that in the fundamental law of this State, nnder which we are now acting, there, is any qualification whatever on the membership of this Convention. Now, to the gentlemen who are in doubt, let me say this : the people of Santa Barbara County, by a majority much greater than that by which most of us have been sent, aeleoted Judge Fawcett to represent them. I( is proposed now, sir, to turn him out of this body, send him home, and say to them, if you want a representative here we will select somebody to represent you. Remember farther, there is no contestant for bis s^, nobody from Santa Barbara County who objects to him, nor any person from among all the people of California presents a protest. Remember farther that this does not involve an^ question of personal rights, it doesn't Involve any dead man's estate, it aoesn't involve any wages for labor done, it doesn't involve the property of any person clewed here, or of any individual in the State of California. Under these circumstances, those gentlemen who vote against the sitting mem- ber retaining his seat, must do it from an imperative sense of abstract duty. That is all. Kobody asks to have him turned out of this body, except some gentlemen who are in this body. No rights are overturned, 00 individaal overruled, no private rights injured by his retaining his seat here. Now, under these circumstances, sir, does it not devolve upon them to show affirmatively and clearly, beyond any honest doubt, that he is not entitled to his seat here. Now, that bein^ the case, I ask, gentlemen, whether lawyers or not, if there is not a fair, honest doubt as to his ineligibility. Why, sir, they say, lawyers should have power to decide this question. Let me call their attention to this fact, that the pwple of the County of Santa Barbara, of whom, I suppose, a sprink- ling are lawyers, have considered this question calmly, and have decided in ttvor of tJiis man's eligibility. If you are going to decide this case on the technicalities of lawyers, you will have to disregard the emphatic voice of the people of Santa Barbara. And, by the way, some of the gentlemen on this floor seem to think that lawyers are always wrong, and it is a very remarkable circumstance that every gentleman who has spoken here against the right of Judge Fawcett, is a lawyer. That apology must be made to them, sir. The objection was raised against G^eral Cass, in eighteen hundred and forty-eight, that he was a mili- tary man, siid that a military man should not be {'resident of the United States, and the reply was that he was not a military man enough to hart. Perhaps it may be said of these lawyers, that they are not lawyers enough to hurt. Now, sir, the arguments on the other side of this question invariably nsolve themselves into this: they give the definition of the word office, and then add their own conclusion. They say an office is a pub- lic employment — the gentleman from Marin says, a public function. The gentleman from Sacramento, Mr. Freeman, says an office is a public employment or public trust. The word public employment seems to meet the notions of both, and they come to this wonderful conclusion : membership in this Convention is a public employment, therefore mem- beiship in this Convention is an office. Now, that is the argument, isn't itT Office is a public employment, membership in this Convention is a pnUic employment; therefore membership in this Convention is an office. A oow is an animal which has four legs; a horse has four legs, therefore, a horse is a cow. What is the diflerence between the two arguments? One arrives at a conclusion by the very same course ef reaaoaing as the other, and both are equally logical. The same rea- soaias ^mlies to both. It is true that a cow is an animal having four le0S Cat taat is not the whole of the definition. It is correct to say that fflemherahip in this Convention is a public employment, but that is not the whole of the definition, by any means. Suppose that some of these \tgti gentlemen were employed as assistant counsel for the State, either thnm^ the Attorney-General or otherwise, to attend to some case which the State is litigating. That would be a public employment, a public trust; he would have to exercise public Ainctions, but it would not be 8B office within the meaning of the Constitution. When the State oiates the office, or employment of a permanent Assistant Attomey- Qeatnl, which shall be filled by one man, for a certain prescribed Una, (hoi it is an office. If you employ a man to superintend the bailding of a capitol, as was the case cited by the gentleman from San fnaaaeo, Mr. Barnes, the temporary employment to superintend the tnJHing of a cuiitol, is a public employment, but it is not an office. ftidif jroa •hontd create the place permanently, and a man should take Aagt eentiiinanaly of public builaings, that would be an office. If the State should employ a man at Washington City to appear before Con- gress and advocate the passage of some law, giving some right which this State demanded, that would be a public employment, but not an office. But if the State should permanently establish an employment of that kind at Washington, and fill it, that would be an office. Now, this whole aivument rests on the definition. I suppose, if we are going to define what the word means, we had better look in a legal dictionary. I hold in my hand a book which, as far as a dictionary is authority at all, is one of the best we have. This is an old copy of Bur- rel, and he defines office to be this: "An employment on behalf of the government in any station or public trust, not merely transient, occa- sional, or accidental." Now, this is a definition of the word "office" fiven by high legal authority. That is not the only definition given, bat definition is taken from the decisions of the Courts. Now, apply that definition to the members of this Convention. Is not this transient? Certainly. Is it not occasional ? It never happens more than once in a generation, and perhaps' may not happen once m a century. It is a transient, occasional, and accidental employment, and there is no continuity in it. It was created for a particular purpose, and when that purpose is ended, and the objects subserved, it is at an end. Is that an office, within the ordinary acceptation of the term? More than that, sir ; I believe it has been argued here that the officers referred to by the Constitution are the officers created by the government, for the ordinary work of the government, and were not intended to allude to any process by which a new government should be formed, and that is the position we are in now. Now, sir, when you come to take the argument of the gentleman from Marin, Mr. Shatter, and the other exhaustive arguments made on the other side, and strip them of their embellishments, you will find that he only argues three propositions— that this body is not revolutionary, that it is legislative, and that membership is an office under the Consti- tution. Upon the first, I agree with him; upon the second, I say it is not material whether it is or not; and upon this I will say that when you come to talk about definitions, I suppose it would be a fair definition to say that a legislative body is a body with power to legislate, and if that is a correct definition, this is not a legislative body, for we have no such power. There is another feature for us to allude to. I understand an office to be a place, the incumbeftt of which, by operations of law, has the power to perform some official act, which act in itself, and by virtue of its own race, is in itself efibctive, so as to change the status of some person or some thing. The Judge of a Court, for instance, has power to render a judgment which takes away the property, the liberty, or the life of the citizen, and the decision cannot be changed until it is set aside by some higher official authority. The Qovemor of the State may pardon the criminal or take him out of the State Prison. A member of the Legislature is an officer, and the Legislature has power to do some act. It changes the status of some person or some thing. The Sheriff is an officer. He can take your property and sell it out, and it remains out of your possession until restored by some higher official authority. Now what power has this Convention in that direc- tion, within that definition? Not a solitary bit. It cannot do a thing of that kind. After we have got through our labors here, sir, not a sol- itary person, not a solitary thing in the State of California will have been changed in the least. They remain just as they are. The organic law remains just as it is, in full force and eflect. What we have done here will have no effect whatever. If the people of the State choose to adopt this Constitution which we are going to propose, then will there have been some change in the status of things, and not before. When they talk about this body making laws, it is absurd. The Con- stitution says, " We, the people of the State of California, do establish this Constitution." It doesn't say, " We, the people of this Constitutional Convention," do this or that thing. The illustration given by the gen- tleman from Marin, Mr. Shafler, in reference to the ^nate and Assem- bly, that neither one can make a law without the concurrence of the other, is not a fair one, for both together compose the Legislature. They are one and united, and together they can make laws, and the laws so made must have their stamp on them. " We, the people of the State of California, represented in Senate a^d Assembly, do enact as follows," is the enacting clause. The Constitution says that the Iiegislature shall be divided into two bodies. But this Convention has no power at all. We cannot do a solitary thing, except to sit here and propose something to the people, and if the people choose to adopt it it becomes the law mode by the people, who are the only power who can make a Constitution, or amend or change one letter In it. If there is any legislative power about it that power lies only with the people, who say affirmatively at the ballot-box that it shall be done. It is a mere evasion of the question to say that our books are full of constitutional law. Of course, but who makes it? The people of the State; nobody else. Why, upon the face of the instniment it says so, showing that nobody has power to make constitutional law except the people. Mr. President, I do not desire to aimie this question further. But it is somewhat peculiar, sir, that this effort should be made to remove the sitting member from the floor of this Convention, when no demand has been made for his removal from any quarter. It seems to me an astonish- ing thing that a gentleman of high character and integrity and honesty, indorsed by two thirds of his constituency, should be unseated upon a technicality when no demand has been made by anybody from his dis- trict, and no one is here to contest his seat. He is sent here by the people, and we have no right to remove him. BPEKOH or MB. BAQKR. Mb. HAGER. Mr. President: This debate has been so prolonged that every member of the Convention must feel wearied and fatigued. Under the circumstances I feel great reluctance in addressing the Con- vention, and should not do so but for the fact that so faa»J learned Digitized by Google 208 DEBATES AND PROCEEDINGS Fbiday, gentlemen, with whom I differ, having spoken to the quertion, I feel it to be a dutj to state my reasons on the vote I shall give. I regret the armimentun ad hominem has been resorted to. I regret that anything of a personal character should have entered into the debate. I am sure the two or three gentlemen who have just preceded me are laboring under a great misapprehension in supposing there is any personal feeling entering into this contest, either in regard to the dele- gate whose seat is in question, or the constituency that sent him here. Who has any such personal feeling, and from whence does it oomeT I have heard of none, and know of no one entertaining any unfriendly feeling against the incumbent, or the seMion of the State he represents. I never had the pleasure of an acquaintance with the delegate until I met him here in this Convention, I never heard anything l>ut good of him, and however I mi^ vote on this question it will be in pursuance of a rule I have always adopted when called upon to perform any official act — simply to do it in accordance with my judgment and my opnvic- tions in regard to my duty. Now, sir, I should have been glad had this resolution never been intro- duced. If it had been dependent on my action it would never have been introduced. I would have been willing to sit here with any gentleman who comes with the indorsement which he has secured from the people. By the law we are made judges of the election and qualifi- cation of the delegates. We are callad upon to pass judgment in this instance, and all personal considerations being discard^, the simple question to be passed upon is whether or no the delegate is eligible to a seat in this Convention. His eligibility has been questional on two grounds: .nVst-^-fieing a judicial officer (District Judge), and charved with the exercise of powers properly belonging to one department orthe govem- inent, he is prohibited from exercising any functions appertaining to either of the other departments ; that is, the executive, or legislative. Second — That he is disqualified, in consequence of the inhibition in the Constitution of this State, which declares that Justices of the Supreme Court, District Judges, and County Judges, are ineligible to any other office than a judicial office. In regard to the first ground of objection, it has been argued, that, being a District Judge, he will here be called upon to exereise legislative functions, which would be in contravention of that portion of the Con- stitution which relates to the distribution of powers, as contained in article three, section one. This would be true, if m the performance of his duties here he should be required to act in a legislative capacity, within the meaning of the Constitution. In my opinion, sir, he is not ineli- gible to a seat in this Convention on this ground; and, substantially, I concur in all that has been said by my friend the delegate from Sacra- mento, Mr. Edgcrton, upon this proposition. Within the meaning of the Constitution our duties here are not legislative, and yet to a certain extent we are performing legislative functions, as legislators, or as mem- bers of the Senate or Assembly. We do not meet to pass laws, and yet we act in a legislative capacity; and by the statute under which we are here assembled we are authonied to pass on the election and qualifi- cation of our members, to organize our body, to make rules and regula- tions for our government, to adopt or reject propositions amendatorv of the Constitution. And in various other ways we are acting, speakmg, and voting after the manner customary in legislative bodies, upon every question presented. Neither, within the meaning of the Constitution, are we perfonning judicial duties, and yet to a certain extent we act in a judicial capacity — not under the Constitution, but by authority of the law under which we are called together. We may be called upon to pronounce judgment in certain cases — as in the one now before us; we may sit here as a Court; may punish for contempt; may imprison — not as a part of the judicial power as mentioned in the Constitution, but by authority of the powers conferred by the statute under which we are assembled. These things we do, these powers we exercise, these functions we perform, not as members of the Legislature, not as judicial, officers, but as members of this Convention. Acting in this capacity, Mr. President, we are not fill- ing an enumerated office, as they are declared in the Constitution, and yei we are charged with certain functions. You may call it an office, or jom may call it by any other name you please. We are charged with the performance of certain duties, and whence^o we derive our powers? Whence, Mr. President, do you and the members of this Convention derive the powers which we are here exereising? Is it from the Constitution, the Legislature, or the peo- ple? The solution of this I consider the turning point of this case. It will control me and my action here. Their origin is in the Constitution, under which, as a State, we yet exist. By authority of the Constitution, the enabling Act of the Legislature, and the vote of the sovereign people of this State, we are assembled in Convention here to-day, to frame — not to establish, as some would try to convince us — a new organic law, to be submitted to the people of this State for their adoption or rejection. The Constitution, article ten, section two, contains the following: "And if at any time two thirds of the Senate and Assembly shall think it necessary to revise and change this entire Constitution, they shall recommend to the electors at the next election for members of the Legis- islature to vote for or against a Convention; and if it shall appear that a majority of the electors voting at such election have voted in favor of calling a Convention, the Legislature shall, at its next session, provide by law for calling a Convention, to be holden within six months after the passage of such law; and such Convention shall consist of a number of members not less than both branches of the Legislature." In the little paragraph I have just read we find the source of all the powers and functions we are exereising. I will read it again, "such Convention shall consist of a number of menU>crs not less than that of both branches of the Legislature." Our place of birth is not mute. It speaks for itself, and is found in the Constitution. It was a dormant power, and baa been at rest from the time it was engrafted into the Constitation until the Legislatare, by its enabling Act, and the sovereign people, by their election, breathed iato it the breath of life, gave it vitality, and by virtue thereof we are hen this day acting as members of a Convention authonied by the CoostitD- tion. Now our Constitution provide* further that — "The Constitution that may be agreed upon and adopted by meh Convention shall be submitted to the people at a special election for their ratification or rejection." And yet we nave been told we are clothed with omnipotent pow- ers, and may for the time being set aside the present organic law anil constitute ourselves the sovereign and supreme authority of the State. I can subscribe to no such doctnne. Clothed in a little brief authority we may frame and propose to the people of this State a new Constitution; we cannot adopt and establish one. The people may refuse to ratify it, and we may go back to our respective homes as insignificant as we were before we left them, and the Constitution we frame will pass away, and the one under which we now exist will live. Now, we have been told by one of my ooUeaguee, Mr. Estee, and by other gentlemen, that under a precisely similar condition of things u have here arisen, the people of New York held a Convention to frame t new Constitution, and secured, amone the delmates, the Judges of their Courts, who, like ours, were excluded from holding any but judicial offices. I have before me the Constitution of New York, under which the Convention wu organised. The case* are not pai^el. The difference I will explain. The Constitution of New York contained no provision for calling a Convention of members, to be elected by the people or otherwise. It only provided for amendments to be made by tne Legislature. The Legislature haS no such authority to call a Convention lo frame a new Constitution, as is contained in the Constitution of this State. There were no dormant powers to which it could give life and vitality. The Legislature in that State, without authority of the Constitution, passed s law authorizing a Convention to assemble, whilst in this State (he Le^ lature passed an enabling Act for a Convention, as in the Constitation provided. In the one case the Convention asMmbled under a law unauthorized by the Constitution; in the other it is assembled byauthiy- ity of the Constitution and the statute, in harmony therewith. In New York the Constitution provided for no such officer as member or delegate of a Constitutional Convention, whilst here, under our Constitution, it is provided a Convention may be called, to be composed of memitri, ud we are here in pursuance of such call. Now, Mr. President, what are we? We are told we are not olBeen. What are we? We were elected as delegates to this Convention. By the Constitution we are denominated members of this Conventaon. Our title, therefore, should be members of this Constitutional Conven- tion, or delegates to this Convention. The statute provides we shooM assemble here, elect a President, a Secretary, and such other officers as may be necessary. The Governor is to preside at our organization and administer the constitutional oath of office. All this has been done. Our per diem pay is fixed by law, and the pay of our Secretaiy and other officers is fixed by law. Is the Secretaiy an officer of this Con- vention? Is the Chief Justice of this State or a District Judge eligible to the office of Secretary of this Convention? It is not a judicial office. Who will get up in his place here and toll us the Chief Justice of thii State is eligible to the office of Secretary of this Convention, when the Constitution declares he shall hold no office but a judicial office daring the term for which he was elected ? We have taken the constitutional oath of office — " to support the Constitution of the United States and the Constitution of the State of California, and CuthAiUy to perform the duties of the office of delegate to the Constitutional Convention." We are here legislating, in a certain way, to the end that we may frame a new Constitution. We are pronouncing judgmente in various ways- Yet, sir, we are told we are not officers; that we hold no office, bat are merely functionaries — that our President is a functionary, that our Sec- retary is a functionary, and my learned friend, who sits before me, Mr. Edgerton, is a functionary. " Can rach things be. And OTercoma as lik« a sammn^i cload. Without oar speoial wonder?** Now, Mr. President, under the Constitution we have enumerated officers, and by authority of the Constitution non-enumerated officers are allowed. We have executive officers named by title — such as th« Governor, Secretaiy of State, ete. — and we have various other officers, named in the Constitution, for the administration of the affitirs of State, of the counties, and other matters. It is admitted a District Judge would be ineligible to any of these unless their functions were jndidiu. We also find in the Constitution these provisions : "All officers whose election or appointment is not provided for by this Constitution, and all officers whose offices may hereiafter be created by law, shall be elected by the people or appointed as the Legislatare may direct." (Const., Art. XI, Sec 6.) " When the duration of any office is not provided for by this Consti- tution, it may be declared by law; and if not so declared, snch office shall be held during the pleasure of the authority making the appoint- ment." (Const., Art. XI, Sec 7.) By these provisions, it will Vt observed, the Constitution contemplated other officers than those enumerated. Officers are provided for by name, and offices are provided for without naming them, and we have offices and officers unknown to the Constitution — such as the Railroad Commis- sioners, Bank Commissioners, Harbor Commissioners — all these are unknown to the Constitution. It may be said these officers are neces- sary to the administration of the affaire of the State, and, as snch, most be recognized as officers within the meaning of the Constitution ; but we also have officers known as Commissioners of the Yoaemito Valley, appointed to take oare of a public park, donated to the State by Uw Gov- Digitizeo t^ Oct. 25, 1878. OF THE CONSTITUTIONAL CONVENTION. 209 emment of the United States. The/ hare certain duties to perform, and anUiy; bat it cannot be said they are officers named in or contem- plated b; the Ckinstitution, or that they are charged with any duties properly belonging to the administration of State government. Could the Chief Justice of this State, or a District Judge, perform the duties of Bsilroad Commiasioner, Insurance Commissioner, Harbor Commissioner, or those of Commissioner of the Yosemite Valley? Would it not be inconsistent with that provision of the Constitution which prohibits them from hojding any other office than a judicial office? There is nothing in the argument that this inhibition only applies to the officers enume- nted in the 'Constitution. , The intent of the Constilution is plain. It means a District Judge, during his term, shall be ineligible to the performance of any official doties under the Constitution and laws of this State, unless of a judicial cb&racler, and it cannot be so construed as to allow a Judge, ineligible to any other than a j\idieial office, to fill and enjoy the salary of an office created by legislative enactment. Uuder such a construction, we might by law create some position for a Judge and attach to it a salary or com- peosation of anlimited amount, and in this way evade the Constitution. The constitutional provisions relating to District Judge* and their disqualifications are as follows : " No judicial officer, except Josticea of the Peace, etc, shall receive to hit own use any fees or perquisites of office. "(Const., Art. VI, See. 13.) " The Justices of the Supreme Court, District Judges, and County Judges shall severally, at stated times daring their continuance in office, receive for their services a compensation which shall not be isaeased or diminished during the term for which they shall have been elected." (Art. VI, Sec 15.) "The Justices of the Supreme (k>urt, the District Jadges, and the County Judges shall be ineligible to any other office than a judicial office during the term for which they shidl have been elected." (Art. VI, Sec 16.) The incumbent is drawing a salary as District Judge, and as a dele- gate to this Convention he is drawing pay, as providod b^ law, at the rate of ten dollars per day. Is not this an increase of his compensa- tion daring the term for which he was elected? When he leaves his official duties, retaining bis judicial office, and comes to this Convention IS a member or delegate under the Constitution and laws of the State, and draws his pay here at the rate of ten' dollars a day, is it not in con- travention of the provisions of the Constitution as contained in the three sections I have just read? Does it mean his perquisites of. office as Judge and his compensation as District Judge shall not be directly increased during his term of office, but that these may be indirectly increased by giving him another office, with additional compensation and perquisites? If it cannot be increased directly may it be increased indirectly? Could the Legislature make a Distnct Judge a donation of say five thousand dollars for the purpose of building a house or for traveling purposes, or to allow him to draw any compensation from the State treasury except it be as compensation for his services as District Judge? If so, the provisions of the Constitution are nugatory and idle and no limitation upon the legislative power. The intent and meaning of the Constitution is plain,' and admits of but one interpretation, and that is : District Judges, during their term of office, are ineligible to the performance of any official functions under authority of this State but such as are judicial; and that their compen- lalion or perquisites of office cannot be increased directly or indirectly by any payments out of the State treasury during their terms of office. This interpretation is honest and according to the Tetter and spirit of the Constitution. Any other would open the door to unlimited abuses. If it is susceptible of the interpretation attempted to be put upon it by iome who have preceded me, no constitutional inhibitions coald be so drawn that they could not by indirect methods be avoided. But, Hr. President, I did not intend to expand upon this subject, and bave said more than I intended. We have, however, been told, and the committee seem to so intimate in their report, that we are acting under a higher authority than the Constitution and law ; that old things are psssing away and new ones are taking their place; that we are not merely the representatives of the sovereign powei, but sovereignty itself; that constitutional government is in abeyance, and chaos and anarchy is for the time being upon us ; that this Convention is higher than the Constitution and above all law ; that we are in an intermediate state between the old Constitution and the new — between the setting and the rising sun; that the old Constitution is defunct, and the new one— as Richelieu said of France — "on luminous wings is rising, Phaniz like, to Jove." This is all ver^ good — in rhetoric, in poetry, bat very weak when we come down to facts and common sense. The old Constitution is not dead; it still survives, and will exist until the new one shall be voted upon and rati£ed by the people Temporarily we are here in Convention assembled, clothed with a little brief author- ity for one hundred days, and if the work before us should not be ai^jroved and ratified, the so-called defunct instrument will remain, as now, the organic law of the State. If such a result should ensue I •bonid not regret it. It was my privilege to vote for our present Con- ■titation when it was adopted, prior to the existence of our State. It contains many excellent provisions. I voted against the calling of this Convention because I was apprehensive the new Constitution might be M improvement open 4he old one. If we frame a new Constitution vkiefa shall be ratified by the people, it will take the place of the old OBs; but as long as the old one exists as the supremeTaw, I shall cleave I* it, and greatly to my regret, under its provisions, I consider the UMnmbeut ineligible to a seat in this CJonvention. BPKKOH or MB. SMITH, OF FOUBTH DlgnUOT. Ifa. SMITH, of Eem. Mr. President : As a member of the Judiciary CwTuillee, and oonoorring in the m^ority report of that committee, I 27 deem it bat right and proper that I should justify the position I have taken on this qnestion, and answer some of the criticisms which have been made. Now, sir, I have been wondering all the time why this matter should have beien brought up at all ; why the time of this Con- vention, valuable as it is, should be wasted and frittered away in this discussion, when there was no demand for it. There is no moral ques- tion here, there is no question of public policy here, it is purely and essentially a legal question, not even having an excuse of equity. Now, 88 a lawyer, when that question came up, I gave my judgment on it as a lawyer. That judgment was founded down deep at tLe base of the whole question. As to whether this is an office or not, does not enter into the matter at all, as far as my conclusions have reached, because it is founded upon the sovereignty of the people. It is founded upon the Constitution, which was the contract entered into at the beginning of the government, at the beginning of American liber^, and it is hi^er than any State government, it is higher than the national government, and rises above Constitutions, whether State or national. The Constitution of the United States is merely a grant of power. The Constitution of the State is a limitation of power. Suppose that this State bad undertaken to say that a Judge should not be eligible to any office under the national government, or for President of the United States. Of course a constitutional provision to that effect would be void. So, if the State Constitution undertakes to sav that a Judge shall not be eligible to this Convention, in opposition to the power which is so much higher than Constitutions, it writes an absurdity on the statute books. This whole matter has been confused and misrepresented, and the real point at issue has not been touched. The State Constitution is merely a regulation of the right of suflrage. It does not take away any right. If you pretend to say that a man holding aparticular office under the State Constitution is thereby rendered ineligible to take part in the framing and organisation of a new government, you commit an absurd- ity. He has the right to participate in the framing of a new organic law, and we have no power to deprive him of that right. Not alone does the right belong to him, but to the people he represents. There- fore, I say that whatever the State Constitution says about this matter is in the shape of mere regulation. Suppose the Constitution had attempted to say that there shall never be any constitutional office, that the people shall not enter into this matter or that matter. I say, no, the Constitu- tion of the State of California has no right to go that far. The limits of a Constitution do not extend so tax, and the national Constitution has no right to touch it. We have nominating conventions to nominate men for certain offices. Men may be elected as delegates to nominate men for office. Here the delegates are elected to nominate a Constitution. There is no diSerence between them. I hope we shall get through this without any farther waste of time. MK. VACQCKKKL ■XPLAIN8. Mb. VACQUEBEL. Mr. President: This afternoon it appears that I have made a false statement. I wish to rectify it. As a good many members of the San Francisco delegation have stated to me that they had not taken any oath to the Workingmen's party, I stand up, sir, to apologize to my colleagues, »i it appears that an oath and a pledge have a very different meaning. I, sir, acknowledge having taken pledges and having violated them, thinking I would benefit the people. It shall not occur again. But, sir, in explanation to myself, I still main- tain that if those gentlemen have not taken the pledge of the Working- men's party, they stand in direct opposition to the laws established by the party. [President pro tern. BELCHER in the chair.] SPKBOH OF MB. LAIMI. Mb. LAINE. Mr. President : The question before us is one of no ordinary moment It is a question that requires the most careful con- sideration, and after that consideration conscientious action. The question, Mr. President, stated in a few words is : shall we deny a seat in this august body to one sent here by the sovereign people of the County of Santa Barbara — one whose purity of character, whose integ- rity and magnificent intellect challenges admiration. A gentleman that any constituency in this State might well feel proud of. One who comes among us, not because he sought the position, or obtained it by party intrigue or skillful management, but one who comes among us modestly as an obedient citizen at the command of his legal sovereign. He has come in and out among us for more than twenty days, and yet, from all the district which he represents, no one has questioned his right to be here, no one has appeared to challenge his eligibility or contest his seat in this Convention. Not only fix>m the county he represents, but from the other counties composing his district, no one has appeared to ques- tion his right to be here; but it is prou and I, the agents of the sovereign people of the State, who are questioning his right to be here, and saying m tne tenderness of our consciences that we cannot sit in the Convention with the delegate from Santa Barbara, selected by the only sovereign thiat the people of California have ever recognized, and that sovereign is the people. And at this point occurs to me the language of one of old when ne says: "Who art thou that judgeth another's servant?" So I say to this Convention, by what right do you judge of the peo- ple's servant. The distinguished gentleman from Marinnas stated as a proposition on this floor, that in these questions 'of interpretation in these matters of words, the common judgment was better than technical law. What will that Judge say when he goes home to the thousands of people who interpreted the Constitution. He goes home and tells them that one hundred and fifty-two of their agents here have overturned their interpretation of the Constitution. Sir, I say, you are impaled upon yonr own argument. I had rather take the interpretation of a thousand voters yfbo had given this matter a careful examination, and voted upon their consciences, than to trust to a lot of technical men. When the people have examined and interpreted the instrument, at ^•^'' Digitized by Google 210 DEBATES AND PROCEEDINGS Fbiday, they have in this cue, it does aeem to me that we should paoae and hesitate long before we undertake to give a dilTerent interpretation. In dealing with such questions as this, we must have no uncertain law. We must hare broad, plain law, so clear that every word and every letter will stand out as oarving upon a monument of brass before we determine this question again^ the sovereign people of Santa Barbara. If it be found that under the stem mandates of the Constitation, under the supreme law of the land— .and so long as it remaina the supreme law of the land we must obey it — if, I say, we find that we are impelled in a certain course by the stem mandates of the Constitution, we should take that course like men, without hesitation, let theoonae- quenoee be what they may. But I claim that this is not such a case, and we should only go where the law plainly and distinctly leads us, and net allow ourselves to be hampered by words alone. Gome have construed this word " office " in one way and some in another. Some claim that membership in this Convention is an office, and others take an opposite view. With due regard for those who have debated this question on the other side, I will say that the discussion has been principally upon the word " office." It means the performance of some function. But, sirs, whan we took the oath there at that desk, we did not swear on the words; we swore upon the whole instrument; not upon paragraphs taken out here and there, but on the whole document; and it does seem to me that the most of the arguments here have greatly misconceived the instnunenL The members have not properly under- stood what is meant by the word " office," or " officer." Why, the dis- tinguished member from the City and County of San Francisco used an ai;gument here that was strange indeed, when dealing with the question of office and officers. Ue seemed to think that because we had elected a Clerk, that is an officer, therefore that disposed of the whole question. Why, your town meetings elect officers ; but officers of what? Not offi- cers of the State, but officers of the town meeting. So we elect officers ; but officers of what? Officers of the Convention, not of the State. When the Constitution of the State is speaking, there is no man who has studied the science of government but knows that it is speaking of the government created by it, and nothing else. When you read a man's will, it talks of his own household ; and when you read the Constitution, it speaks of the government which it creates ; and if it speaks of offices and officer*, it speaks of those which it creates, and none other. Now, in this matter, it seems to me we have placed the creature above the creator. The second article of this Constitution says : " All political power is inherent in the people. Government is insti- tuted for the protection, security, and benefit of the people, and they have the right to alter or reform the same whenever the public good mm require it." The people are the creators of government, and the government is but their agent and their creature. When we speak of the people changing, what does it include? Does it not include the whole political household or family? Does it not include every one, whether he be the Judge on the bench, or the Governor in the chair? We are all a part of that family, part of the great unit. Hence I say that we have been looking at the creature and not at the creator. The government is the creature, and the sovereign is the people, and upon this point I have a few authorities, and to show that I am right in this position, I should like to read a few lines from Fomeroy on Constitutional Law, to show that we make a grand mistake, that we are but the temporary agents of the people, and that the government is the permanent agency of the sovereign to regulate the anaiis of State. We are the temporary agents of the sovereign master — the people : "The people themselves, the entire mass of persons who compose the political society, are the true nation, the final, permanent, depositanr of all power. The organized government, whatever be ita form or char- acter, is but the creature and servant of this political unit which alone possesses dominion in itself." I tell ^ou, sir, there is a power behind the throne greater than the throne itself, and that is the power that is mentionea here. I do not mean in a revolutionary sense, because the Constitution is still in force, and organized government is still in force. We are here under the protection of the government, but that government is only our agent. What are you doing here? You are trying to exclude one from this body, point him out, and say to him, you are not one of this great political flkmlly. You belong to some other class, to some other people ; you are not of this political family. Again he says : "And, first, the distinction must be carefully and constantly pre- served between the nation and the government which that nation has actively created, or has passively permitted, as the agent for the expression of its supreme will. The people themselves, the entire mass of persons who compose the political society, are the true nation, the final, permanent depositary ot all power. The organized government, whatever be its form and character, is but the creature and servant of this political unit which alone possesses dominion in itself. It is true that the people, the nation, may have either actively constituted or pas- sively admitted the rulers to be the sole channels and means through which their aovereign power shall be ordinarily wielded and directed for the national purposes, and may have bound themselves not to resume the direct and emcienl nutnagementef that power except in certain well defined and established methods; nay, thay may have restricted the government itself in the exercise of its functions, so that beyond certain appointed limits it cannot go, and thus may have denied to this govern- ment the rightful use of all the attributes of sovereignty which they themselves possess, so that for the time being these attributes eannot be brought into play by either; but it is no less true that these attributes still potentially exist in the nation, ready to be called forth whenever the people shall aee fit toXoUow the defined and established methods, and to put their inherent, paramount force in motion." That word " all power " is a very comprehensive word. It will be seen that you have attempted to place the creature above the creator. Where, in dealing with the question, the Constitution speaks of offices, it means the offices created by the Constitution. Now, let us turn to article three : " The powers of the government of the State of Caliibmia shall be divided into three separate departments : the legislative, the executive, and the judicial; and no person charged with the exercise of powen properly t>elon^ing to one of these deptutments shall exereise any fuse- tious appertaining to either of the others, except in the cases heieiDifisr expressly directed or permitted." Here, then, is the entire family, the legislative, executive, tmd judidsl departments, constituting one grand whole. It constitutes the whole family of government, from the foundation stone to the highest pinnsels of its dome. It is all there, and outside of that there is nothing left. This is the length and breadth and height. Then the next thing to do is to examine and see if this Constitutional Convention is a part of these departments, or a part of any one of them. We will see whether it is or not. We are not left in doubL We have a distinct declaration; we are not left to rack our brains over any uncertain law ; we are not left to conjecture, for the Constitution, having divided the powers of gov- ernment into three great heads, the legislative, executive, and judicial, prooeeds to define these departoients. It says : "Section 1. The legislative power of this State shall be vested in a Senate and Assembly, which shall be designated the Legislature of the State of California ; and the enacting clause of every law shall be ss fol- lows : ' The people of the State of California, represented in Senate and Assembly, do enact as follows.' " There is the legislative power, and there only. We have but one legislative power, and here it is defined. Is there any avoiding it; any escape from it? No, sir. The Legislature is the only law-making power. The Constitution, it is true, is called the supreme law of th« land, but Mr. Cooley lays it down that the Legislature is the only Uw- making power. The Legislature has the power to make laws, and to «lter or repeal the nme. Now, have we any such power? Can we make a law,or alteralaw,grrep^a law? No,sir. We cannot choofp a letter. We are but a committee appointed by the sovereign to propose certain things, which must be sanctioned by the sovereign before they can have any force or effect whatever. Now, no one claims that this is a part of the judicial department, or of the executive department.' Now we come again to the matter of office, because they say this.is an office. What does the term office refer to? Officers of the State. Are we officers of the State ? No, sir, because we are but the agents of the sovereign, and in no sense officers of the State. An office, as meant by the Constitution, is some continuing thing, and not a mere temporary employment. Section eight of article five says: " When any office shall, from any cause, become vacant, and no mode is provided by the Cdhstitution and law for filling such vacancy, the Governor shsJl have power to fill such vacancy, by ^nulling a commis- sion, which aball expire at the end of the next session of ue Legisla- ture, or at the next election by the people." Why does it expire? Because it is an office under the State, and office of the government, and the legislative power is the one that deals with it, showing conclusively that the word " office " there has reference only to offices under the State. Mr. President, I did not intend to make a speech, but only to give my reasons for the faith that is in roe. I believe in putting this construction upon it we do violence to no law, but are simply obeying the mandates of the sovereign people, who called this Convention into being, sod to whom alone we are responsible for our acts. We must appear at the bar of judgment of the whole people and answer for our acta. We are in no sense superior to this law under which we live, but we are the agents of the sovereign engaged in the performance of a sovereign act, temporary agents sent here for that especial purpose, and for that purpose only, and if we attempt to thwart the will of the sovereign people of Santa Bai^ bara, we will be condemned by the sovereign people of the whole State. SrSBOB OF MR. loms. Mb. JONES. Mr. President: I desire to state the reasons why I ean- not vote in support of the majority report, and, sir, I propose to occupy but a few moments of the time of the Convention. I would be glad to evade what seems to be a neoeeeity, occupying any time whatever, for the discussion has already been a very extended one. But the discussion seems to have involved issues which I think were not anticipated at the outset. Now, the character of this body is one of the most prominent questions before us — the character of the members of it — and their responsibilities, their functions, and their duties. But the real question before us is one of law — of constitutional law — the simple cjuestian whether Judge Fawoett is or is not, under the Constitution of this State, eligible to a seat in this bod^. That question should not be covered up. It should not be involved with any questions as to excellence of character or of eminent capabilities, or of the esteem in which he is held by hit people, on which we do not differ. On the contrary, we should give bii claims a calm, just consideration, just as if, instead of being the man I understand him to be, a man of learning, a man of great legal capacity, of high character, and a man likely to Become a useful member of thii body, he were the most humble member of this Convention. The rights of the humblest individual on thu floor should be just " sacred, and this Convention would respect them the same, as those of the most eminent member here, and we should not accept even to ourtelvei the imputation that all the fine qualities and characteristics of Judge Fawcett give him one iota of advantage over members who have not attained to high positions or reputation. This is simply a (question of law and justiee, and we cannot afibrd to mingle sentimentality and friendship and admiration with it. Wedeal with it as a matter of business in this Convention, and nothing eJse. Digitized by Google ■w Oct. 26, 1878. OF THE CONSTITUTIONAL CONVENTION. 211 Ve most tej aside partiality, admiratioD, regard, and friendship, and de^ with this matter irrespective of all these considerations, and as a judidsl body, or a judicial person, should deal with them. Now I come to the rery question before us, the eligibility of Judee Fawcett to a seat in this body, and permit me to say that I have soaeht to find means and reasons that would satisfy me in voting for him, but I cannot find them. The argument in support of the majority report, as it appean to me, has taken three forms, not all maintained by the same individuals, but, I think, all b7 a few individuals, and the rest, some by some, and others by others. Three distinct forms, not supporting each other, bnt each one sufficient in itself if well founded, and yet so stated that the advo- cates of eligibility can fall back from one to the other, and renew the combat at each one. The first of these three, which brought ont such an extended discussion, was that the clause in the Constitution upon which the objection to eligibility is made, is not binding upon this body, for the reason that this body is superior to that instrument, the Consti- tntion of this Btate, which oontains that elanae. Or, in other words, that there is some inherent power or right of sovereignty in the people tnr which the members of toe Oonvention, representing the whole peo- ple of the State, are rendered incapable of passing upon any matter in a manner not consistent with the wishes of the peoplft of an Assembly or Senatorial district. If we adopt this view of the inherent right of the people, the areu- ment would be at an end, and Judge Fawoett would be entitled to nia seat But I do not understand that position to be well taken. The inherent right of the people I believe in — we all believe in it; but there is another (Smsiaeration connected with that. We are representing the people, whoee inherent rights are exercised through certain forms, imposed upon themselves by thpmselves. The people, with all these inherent nghts, have found it necessary for their own safety to impoae upon themselves rules which they cannot and will not violate. Then I say this Convention — representing that inherent right of the people, the agents of the people, for the purpose of exercising their rights to change, modify, or even to abolish the present form of State government — conld not trespass upon the rights of anybody when it exercises its judicial judgment upon the qnestion of the eligibility of any member in this Convention. The only trespass will be in the false interpretation of the law, and if the people act otherwise than upon their own self-impoeed rules, eetabllshed in the Constitution and nowhere else— if the people fail and refuse to be governed by them, they will be liable to find themselves in a condition of anarchy at any moment, and to have no rule or settled mode of action. The people provided in their organic law a certain mode in which their free institntions shall be perpetuated, in which their laws may be changed or modified. The Con- etitotion being the law of law — being the fundamental law — they have provided for its being changed in a totally different manner from that by which the statute laws are changed. The Constitution is that law which they have enacted, and which they have made binding upon themselves and their representatives — the delegates here — that the Constitution shall be changed according to ncfa (anm and restrictions as thej have imposed. In this way tney retained and exercise their sovereignty, but they do it in the forms of orzuiized republican government. While they are the people, speakingas the people, they speak through the forms which they have found to be safe, which will save the people from acting as a rabble or a mob. That Constitution is binding as to who shall n>rm the members of this Oonvention. Whatever is in the Constitntion is binding upon us here, so far as it restricts or prescribes the mode of action. It is binding upon ns as to all we should do in this Convention. If it was not — if we were at liberty to disregard the qual- ifications prescribed for members here, then we would be at liberty to disregard the law as to submitting it to the people for their ratification. Why not? These are limitations placed upon us here, and if we can disregard one of them — if we are not bound to observe this prohibition in r^ard to the membership of this body — then why are we called upon toreprd the requirement tnat we shall submit this work to the people St all, after it shall have been finished T If it is binding in one thing, it is binding in all things. I say the proposition that we are not now bound by all the restrictions and limitations npoo our oondnet which are contained in that instru- ment, is the proposition that we are not amending anything, but are tasting awa^ old things, all our existing institutions, and are proceed- ii^, m initto, to form a new Constitution and a new State. If tnat doc- trme were carried to its logical results, it would follow that the people hare not provided a mode of organic development for their institntions, bnt relying for their improvement upon successive revolutions, and ■tarting anew, from time to time, creating a new State under a new CoDstitation, acknowledging no antfaorization of, and having no connec- tion with, any prior Comtltntion or organisation, but dissolving the old organtation, the judicial, exeentive, and legislative dejmrtments thereof, and instituting a new State. How, if we do that, who can say why we should not present such new Oonstitntion to Congress, and ask that this new State mar be admitted into the Union, for, if we are a new State, we have never been admitted into the Union, and if the old is gon^ in every legal sense, we are no lOT^er a part of the Union until duly admitted. On little error I noticed was committed by the gentleman, Mr. Latne, when be sneaks about Judge Fawoett having remained so long^nearly half of theTMal term — without question. I think and feel that it would be an injury to him and a reproach to us if that were so, but while I ri with other gentlemen, who would have been pleased if the ques- never had been raised, I think members of this Convention will 'eneraber that his right to a seat here was challenged on the first day of tUs Convention, and his ri(^t' to b» sworn in as a member was then challenged, and also what was the ruling of the Chair — and I have no doubt it was the correct one — that that was not the proper time to advance such an objection, bnt after the body was organised would come the time when any such objection could take its proper course. Now, as to the second proposition which is relied upon to support the majority report, I understand the position to be that even if the require- ments of the existing Constitution do put a limit upon our conduct, even if those restrictions and limitations are binding upon us, still the^ can- not a9M this body as to its action upon the subject before it, for the reason that the clause of the Constitution (the sixteenth section of article six), declaring the ineligibility of a District Judge to any other than a judicial office, does not apply to any other oiSce than those named by the document itself— that is, than those distinctly specified as oflices by the Constitution. That I hold not to be well taken. For myself, I can- not so understand it. The words are distinct and dear in the ordinary aec^itation. They are words used generally and in their ordinary sense — Judges shall not be eligible to any other ofiiee — and it is a com- mon rule that words mnst be taken in their ordinary sense, unless something in the context indicates that they are to be taken in • restricted or technical sense. Now, following such a rule, I do not see how it wowld have been practicable or possible for the Convention framing the existing Constitu- tion to have used language less liable to a technical interpretation, or less liable to doubt. They used a plain phrase that well expressed their idea. What ought they to have said in order to avoid the doubt that'ha* prevailed in this body? What could they have said, unless it had been that a Judge shall not be eligible to any other than a judicial offtee, in any way, an;frwhere, nor under any circumstanoeeT That is not decwous language to insert in any sueh instrument. It is said that the construction given to the langnage by those who support the minority report here is technical. It is exactly the reverse, in fact. A teehnieal oonstmction is a limited, narrow construction, and we are giving to the words the plainest and wisest construction and not any other. We are giving them the construction which they will receive in the minds of most men. The third proposition in support of the majority report is that, even if section sixteen of article six does refer to all offieers, yet membership in this Convention is not an olBee. Tlieee, then, are the positions : First, we are not bound by the Constitution, being above it; second, that if we are bound by it it does not matter, for it does not apply to any officers except those named in the Constitution as officers; and, third, if it does apply to all oflSoes. still it does not matter, because this is not an offiee at all. I do not wish, Mr. President to go into any learned dissertation on this subject; I do not propose to so occupy time, and would not, even if I had other authorities than those already cited, which I have not. But admitting that members of the Legislature are officers — that mem- bers of the Senate and Assembly are officers — then I am not able to see, for my part, wherein any exception can be taken as to the proposition that we are officers occupying offices. It has been said here that an office is a regular and oontinning dut^ or trust. I do not think that it is a just definition at all, or that it is any essential part of the definition of an offiee that it should be contin- uous or even frequent. I think it would be perfectly proper for a Con- vention, framing a Constitution, to name divers officers, to meet and hold their terms when expediency requires, under one contingency or another, so that they might be called into being, to serve until the con- tingency be passed. This would be a mere question of expediency. I believe the Legislature itself might have been so convened. I beliere the Convention that framed the present Constitution, or even this Con- vention, might embody a provision that the Legislature shall meet when the Governor in his judgment deems it necessary; that it could require him to issne a call for an election for members of the Legislature, to convene at a future day, say six months, or whatever time he might deem proper, to serve until no further necessity existed. I think that Legislature would certainly have just as much official character as the Legislature which meets every two years. It is certainly erroneous to consider the length or duration of oflice, or the infrequeney of any posi- tion as a test of its official character. We must consider its origin, ita form, its functions — the special fnnetions to be discharged. In all these particulars, it is obvious to me, this body is strictly analo- gous to the Legislature of the State. It is an elective body, called in accordance with the provisions of the Constitution, which contemplated this body as nraeh as it contemplated the Legislature. It is just as nor- mal a part of the government as the Legislature, the executive depart- ment, or the judiciary. The fitct that its tenne are not fixed at regular recurring intervals,- 1 regard asof nooonseqaenee in determining the cbaracterof the functions discharged b^ the members of this body, or what their position is to be termed. It is provided for by the same instrument that the Legisla- ture is provided for, and with referenee to the same subject — the laws under which we are to live. It meets as a legislative ijody meets. It organises as the Legislature does. It works as a legislative body works. It enacts a law — the fundamental law— under which the Legislature enacts statutes of details. The ^ntleman from San Francisco says we are here as a committee — an advisory committee — as agents and adviser* of the people. That we are agents of the people is true ; but I say that all the officers of the State are agents of the people, directly or indirectly, but that does not militate in the least with the functions of membeirs being those of offices. The argument as to our reiatiou with the people being that of an advisorv committee is no more true than it would be when spplied to the Ijegislatnre. It is neld that we do not enact laws. In my opinion we enact laws in the same sense that the Iieeislsture does. We enact fundamental laws, which are to define the ri^ts of the people, and restrict the power of the Legislature, and these laws hare validity as an Aotirf the Legis- 1 Digitized by GtheLegis-f oogle 212 DEBATES AND PROCEEDINGS Friday, lature has when both branches have paaaed upon it. The people have reaerved to themselves the power of ratification. Legislators would just as much and no more be omcers if they had no power to pass a law over the veto by a two-thirds vote. But in our case the people directly hold the right of ratification and the veto power. The Legislature cannot put a law into force until it shall have been laid before the Governor, and then, in case of a veto, they can pass it by a two-thirds vot« over the veto. Thus nothing comes from a legislative enactment prior to the sanction of the Governor. So the enactments of this body cannot take the force of operative law without the ratification of the people. It has been said here that the Constitution we may " agree upon and adopt" amounts to nothing — has no vitality till ratified by the people. I say it will have the same vitality — a latent vitality — that an Act of Legislature has which is to take effect upon a future contingency, as, for example, the lapse of sixty or ninety days, or a particular vote to be had upon some subject. The word ratify implies some vitality and validity. Tu>u cannot raiyfy or confirm that which has no vitality, no validity — which amounts to nothmg. If we are not officers of the State, elected to enact a fundamental law, subject to ratification or veto by the people, what are we? The gentleman from San Francisco, Mr. Estee, says we are simply a committee — an advisory committee of the people. Well, if we are a committee merely, then instead of drafting a Constitution to be sub- mitted for ratification or veto, we ought to submit to the people a report; then the people might act upon the report of the committee, if they had so ordered things, and adopt it or amend it, or indefinitely postpone it, but they have not so ordered things. I cannot see upon what ground it is to be denied that we are a legis- lative body here. I do not care if this body is not called once in one hundred years, or once in two hundred years, so long as this body is provided for in the Constitution, so long as our fundamental law looks forward to the creation of such a position whenever needed, so long as we are a normal part of the government, we are officers thereof. The less often the better, but whatever the period of time that may be imposed, still the Constitutional Convention is provided for by the same instrument which provides for the biennial sessions of the Legislature, and for similar but higher functions. It is true, as remarked by the gentleman from Santa Clara, that we should go slow and careful in trenching upon the right of the sovereign people. I have no doubt every member feels like going slow and care- ful about trenching on any right whatever. Sir, there cannot be found in the whole course of this discussion the slightest tendency on the part of any one to trench upon the rights of any one, but there should also be great caution in trenching upon the provisions of the organic law governing our institutions. Every man, every citizen, ought to show the highest regard and the greatest respect for the Constitution under which we live. The members of this Convention ought to show the highest respect for that Constitution, so that they themselves, when they submit a Constitution for the approval of the people, may claim respect for it. We, Constitution makers, should be tiie last of all men to disre^^ard the provisions of the instrument which has created this Convention. I hold, then, Mr. President, that no one of the three positions taken in support of the majoriW report is such as commends itself to our judg- ment, or that can satisiy our consciences and our reason in this matter. I cannot agree with them in regard to that, and I must, therefore, exer- cise my own judgment and my own responsibility, and vote according to my view of the law as it exists now. The law, by reason of its universality, may not apply advantageously in all individual cases, but for sufiScient reasons it does, as a rulo, inhibit the occupation by a Judge of any other office than a judicial one. It inhibits the occupa- tion of two or three or four offices at the same time. There are certainly no better or more expressive words of inhibition than those used, and it seems to me that the Convention, when it framed the Constitution, used thejilainest English that could have been found. We are asked to point out the motive wh^ the judiciary should be excluded from holding any other office than judicial offices. I think it has been sufficiently explained already by one or two gentlemen. My judgment of the reasons why it was not made to apply to Justices of the Peace also is that their jurisdiction is so limited in extent, so limited in the amount and range of cases, that they could never be so involved as the Judges of Courts of reconl. I do not know whether that is the true reason or not ; it is a reason of more or less weight. Now, Mr. President, I will occupy the time of this Convention but a moment lon^r. I sa^ this discussion involves the character and extent of the functions of this Convention. I hold we are enacting a funda- mental law, which only requires the ratification of the people before it can take operative effect, and that our proceedings are not aJb initio, not revolutionary, but regular, ordinary proceedings in the orderly develop- ment of a free government, as prescribed by the people and in accord- ance with the restrictions which the people have laid down for our guidance. We have of course to account to the people for our steward- ship. That account will be found in the work we do. I know no instrument will be framed on which men will not differ, but I think the greater portion of the Constitution can be so written, so plainly expressed, that he who runs may read. - Judge Fawcett admitted that he himself doubted his eligibility, did not believe that he was eligible to occupy a seat in this Convention, and that he thought nineteen out of twenty would not have come to any other conclusion than he did upon a clause as plain as it could be worded, that Justices of the Supreme Court, District and County Judges should not be eligible to any other office than a judicial office. He thought that was clear and intelligible language. He so declared in his letter, and he thinks now that nineteen out of twenty would have thought as he did. He might have said that ninety-nine out of one hundred would have put the same construction upon it The first new light he received upon it was prominent men urged him to look into the matter. After considerable research he came to the conclusion thst many gentlemen here have come to, that the language could be inter- preted in another way ; in fact that the other was the true interpreta- tion, and there was no ineligibility at all. I do not want any sentence or clause in this Constitution that even one man out of twenty will or can misunderstand. I want it ao that nineteen men out of twenty will be able to give a reasonable guess as to its meaning, and I trust we may be able to incorporate some provisioni into this Constitution that shall ever bar out such refined interpretations of plain common English. I hope that when we shall have agreed upon and adopted an amended Constitution, if my constituents shall ask me whether it means what it seems to say, I shall not feel obliged to answer, " My dear sir, nineteen men out of twenty would quite mistake its plainest provisions." SrilOH or MK. RIDDT. Ml. REDDY. Mr. President : This discussion has taken up consider- able time, and the lateness of the hour warns me to occupy but a few moments in any remarks I may have to make: I should dislike very much to talk to empty benches, but I feel secure from this from the fact that a most distinguished and interesting speaker, Mr. Wilson, of San Francisco, will follow me in this debate. If we have arrived at aay one conclusion in this discussion— if any one fact has been more clearly established than another — it is that Jud^ Fawcett has a most excellent character; that he is admired, that he u honest, that he is capable, seems to be admitted on all sides, and the ^ntlemen who are on the opposite side seem to think that by estaUish- ing such an enviable character for him they have scored one grand point in the argument. Why a man of such character should have been per mitted to leave the dreamy scenes of the land of Santa Barbara is more than I can understand. Why people did not rush to the seashore and detain him within the limits of the district in which be was so much admired, it is impossible for me to comprehend. But I believe the gen- tleman deserves all the eulogies whicn have been heaped upon him. Judge Fawcett possesses all the attributes and ability they claim for him. I presume that he was pleased with those eulogies, Init I know that they were expensive to the State, for the greater portion of the time occupied by the gentlerien on the other side has been taken up in lauda- tion of him. It is said that the people of Santa Barbara have sent him here— that they desire to be represented by him in this Convention ; but I believe that the people of^ Santa Barbara are a law-abiding people, and if they had known that he was ineligible the result might have been dif- ferent. It was said that the people of that county were informed by their Judge that he was eligible, and of all gentlemen they would believe that a Judge must know the law, and consequently they actad upon his statement of his own eligibility. If he is ineligible they have no right to be represented through him; but when we hear so mnch talk about the will of the people, the question naturally arises, who are the people? Are the people of Santa Barbara County permitted to la^ aside our Constitution or trample on it, or to inipose on tne people of thu State a man who by the express terms of our Constitution is declared to be ineligible? I would not permit the people of Santa Barbara Coun^ or any other county to trample upon our Constitution or our statutes. The claimant has made a statement showing that the public service in the branch in which he is engaged will not suffer from his absence thei« or his presence here. Admitting this is true, is that an argument in favor of his eligibility ? Why, it is like the beauties of his personal char- acter, no argument at all, and I am surprised that gentlemen should even attempt to make a point of it. I take issue with the gentleman upon that point : the public service, if it does not suffer now, it may suf- fer, and that is quite sufficient to require the gentleman to remain at home. The writ of habeas corpus may be suspended by his absence. If a County Judge of one of the counties in his district should wrongfully imprison a citisen, to whom could he appeal for liberty but the District Judge? And that Judge, according to his mileage drawn from the treasury here, is six hundred miles away from the scene of his duty. That brings me back to the excellencies of the character of the gentle- man who is so desirous of serving the State. " C«esar was ambitious " to serve the State, but his bte does not seem to have been a warning to this gentleman. If he discharges the functions belonging to his official posi- tion that will be honor enough for him, and if he is the great and learned Judge he is said to be — which fact I do not dispute — let his dedsioDS and nis work in that department stand as the monuments of his &me. I do not propose to go into the details of this matter, but will allude to other points to show the character of this transaetion. He receives a salary of^five thousand dollars a year for discharging the judicial duties belonging to his official office, and yet he comes U) the State Capitol and draws twenty cents per mile for fleeing from his post of duty. Is it not an absurdity 7 It is very simple, yet it tends to show this matter up in its true light. The Constitution makers never intended to pay a man for fleeing from his duty. I wish to refer here to another question which has given rise to a great deal of argument. A great deal of labor has been devoted to the ques- tion whether this is a revolutionary Convention, or whether it is bound by law or the statutes of our Stat^ Several gentlemen have made the statement on the other side that this Convention is not bound by any law or statute. It is true that they admit it was called into being by the law, that it was cared for by the law, up to the time of its organization, and then it leaped from thenands of its creators into limitles^ powerand uncontrollability and became the master of its own creator. But I will show the gentlemen in a moment that it is a mere waste of time to argue this question, because it must result in one of two things: they must admit that this Convention is controlled by law, that it is not above tihe law, that it is subordinate to the law, or this Convention must stultify Digitized by Google Oct. 25, 1878. OF THE CONSTITUTIONAL CONVENTION. 213 ilaelf. I dsiin no credit for finding the solation of this queation, because it i< a mere matter of memory, and to the memorr of the delegates I DOW appeal. It is but a few days ago, in the earl^ history of this Con- TenUon, when a gentleman came forward here with a resolution to the effect that members should not be paid save when actually engaged in the duties of this Convention ; then these self-sacrificing gentlemen rose nplike a band of patriots and squelched this rebellious spirit, and said that the compensation of delegates was fixed by law, under the Con- ititulion, and that there was no power on earth to change it. Kot- withstanding the unlimited power now claimed for this Convention; notwithstanding that it towers above all law and above all earthly power, jet the resolution was consigned to ignominious defeat by the ruling of the Chairman, who at the first glance recognised the fact that this Con- reotion was controlled by law. Kow I thmk it is pretty effectually set- tled that this Convention is not only controlled by the Constitution of this State, but it is controlled by the statute also. Kow, sir, what becomes of all the learning that has been wasted — 1 will not say wasted, for it will be carried away by the delegates when thCT leave for their homes — what becomes of all this black letter lore aaa learning t It is thrown away on this question whether this is a revolutionary Convention, or whether it is governed bv'the laws of the land. If that question is once disposed of, Mr. Presiaent, we will have no difficulty in determining the other question, and the only one it ■eems to me, that of the eligibility of the sitting member. It is oon- eeded by the other side that judicial officers of a certain grade are pro- hibited from occupying any positions other than judicial. li is also oonceded that the sitting member is a judicial officer. What other ques- tion have we to determine — simply whether the position each member oeeupies here can be considered an office. The gentlemen have cited nnroerous authorities and given numerous definitions of the word office. It has resulted in a decid^ disagreement of authorities. They say we thould not bring in here pocket dictionaries; that it is technical and nnbecoming to statesmen. I will agree with the gentlemen, and I shall lay aside the dictionary, Chitty on Pleadings as well as Estee on Plead- ings, sod shall discuss the question on broad, plain principles, as to whether it is an office or not. Laying authorities aside, how can we ascertain what an office isT Gentlemen say we should dispense with aalhorities, and yet they have not suggested any means by which we may determine what an office is T I believe the gentleman from Los Anjeles cited Sam Slick T I am not acquainted with bis authority. Another ^ntleman cited Jameson, and the gentleman from Los Angeles Uft be IS not acquainted with Jameson, so I have brought in Mr. Cooley to introduce Mr. Jameson. I shall undertake to determine, not by authorities, but by the light of reason and common sense, what an office is. Hay I be permitted, before proceeding to this inquiry, to answer some of the innuendoes and insinuations thrown out here to-night by the gen- tleman firom Sacramento, Mr. McFarland, namely, " That these lawyers entertaining difierant views from him, are not lawyers enough to hurt." He doubtless meant that we were not lawyers enough to hurt any per- son's feelings. The gentleman from Mjirin, Judge Shafter, is well known to Judge McFarland as an eminent jurist. Of course, be did not mean he was not much of a lawyer. He certainly did not mean Judge Barbour was not lawyer enough to hurt, because he is a man of estab- lished reputation. And, as I am a stranger here, not known in the com- monity, I suppose he means me. But I understand that Judge McFar- land used to be of the same opinion that I entertain now. I am informed that the gentleman was inclined to our way of thinking so much that he resided an office under the CSovernment in order to render himself eligible as a candidate for delegate to the Constitutional Convention, but I presume that was when he was not lawyer enough to hurt, which by the way I am informed was but a few months ago; in all this I know the Judge meant well; I know that he was well disposed towards the people, or he would not have resigned his position under the General Government. How, I wish to determine what an office is. It seems we cannot agree by reference to the authorities as to what it is. I presume the only way to get at it will be to ascertain what duties or what Ainctioos belong to an office. If we find that the mode of induction into this position and the duties appertaining thereto are the same as those belonging to positions acknowledged to be offices, then it will certainly be admitted that this is an office also, yet, I do not know but what some of the gentlemen will insist that there still exists a difference; but it seems to be common sense that ir all the duties of the highest office in the land are attached to this position, that it would be only fair to say that it is an office. It will be oonceded that the delegates to this Convention have been elected by the people. Now, will the gentlemen on the other side show measinde position under this State or elsewhere that is filled by an election that is not considered an office? Why, it is the great distinctive feature between a person charged with official duties and a mere em- ploy^. If the duties we perform here are the duties of mere employes, as contradistinguished from official duties, what trouble and expense the Government must incur to obtain the services of a few employ^ I Just think of it. The Government wants one hund|Bd and fifty-two men to serve as employ^ for one hundred days, yet in order to effect that object an election is called; the electors are summoned from the mountain tope, from the depths of the minea, from the harvest field, trom all parts of the State, in order to enable the Government to employ one hundred and fifty-two men in its service I Sir, the proposition is monstrous to a man poesetsed of only common sense. Why, sir, it must take a won- derful amount of learning to enable a man to see that this routine is necessary to enable the State of California to employ individuals in its Mrriee. Bnt is it not wonderful what learning can do for a person I [Imigihter.] .The next proposition ia, why are we required to take the oath of office ? We are compelled to march up to the President's desk, and, in the pres- ence of the people of California, take and subscribe a solemn oath that we will support the Constitution of the United States and the Constitu- tion of the State of California, and perform our duties to the best of our ability. Do you put that oath to your brickmakersT Do you require the superintendent of every work the State of California may be cany- ing on to take that oath before he can perform a day's labor for the State? Before the Porter can clean out the rooms he has in charge, why not bring him in here and "put him through a course of sprouts?" He is an employ^; why don't you swear him? According to the ^heory of the gentlemen on the other side, it is as much an office as the positions we hold. We are here in obedience to the statute. The law has called us into being, and the law is now protecting us in every manner; and not only that, but it gives us command of this building, and every officer of the State is required to obepr our commands, so far as giving us information is concerned; and if we see fit we can imprison any of them who may refuse to obey our commands; and we came pretty near doing it the other day — all by force and effect of the statute. We went so far as to censure a high public functionary, because he could not perform an impossibility. Not only that, but if, in the wisdom of this Conven- tion, an^ unfortunate editor from Siskiyou — I believe that' is the way the politicians measure distance — from Siskiyou to San Diego, or from the mountains to the sea, should discourse of this Convention or its doinp in terms which might be considered disrespectful, we could send for that editor and punish him for contempt, and if we saw fit put him in prison, and keep him there just as lon^ as this Convention remains in session. We have the power to take a citizen away from his home and incarcerate him in prison ; we have the power to compel men to come here, from any part of the State, and testify before us. Why, sir, we have more power than any other tribunal in the State of California, and yet gentlemen on the other side say we are not officers under the Govemmentl The powers of this Convention have not been overstated by the gen- tlemen, because we are invested with the power to deprive a citizen of his liberty; we exereise the highest sovereign power; we exercise power as high as that of any Court in the land. The statute also provides that we have the right to fill vacancies, but when the gardeners in charge of the grounds aroiind this buildiu^ quit work must an election be called to fill their places? Why, sir, it is useless to argue this question any further. It is absurd to say that such power should be given to any- body, and yet the position not be considered an office. Now, Mr. Presiaent, 1 know that the time is limited, and yet I would like to discuss one or two other questions, but I know it is asking too much of the Convention. [Cries of " Go on I Go on 1"] Members have drawn their salaries from the beginning, very regu- larly, and I think that is to be regarded as strong evidence that this is an office, and that we are officers of the State. Now we pass for a moment to the proposition argued by Judge Shaller this afternoon, which is on the language of the third article of the Constitution. It cer- tainly was the clear intention of the framers of the Constitution to pre- vent judicial officers from meddling in other departments of State, so that judicial officers could not at their pleasure doff the "ermine" and cavort in Senatorial robes. They should be confined to their offices, and, according to the salaries paid in this State, I should judge that these duties were sufficient to occupy their entire time and attention. It seems to me that we are legislators, for are not our acts law ? There are two classes of legislation in this country — one called fundamental legislation and the other municipal. The Constitutional Convention, assisted by the people, enact fundamental law; the legislative depart- ment of the State is required to enact municipal laws. The funda- mental law is to govern and guide the ^gielature in the enactment of municipal regulations. But both bodies are legislative in character, and the judicial officers of this State are, by the express terms of section one, article three, of the Constitution, prohibited from participating in any legislative action, or in meddling in either of the other aepartments of the government. The Legislature is pointed out by the Constitution as one of the bodies in the State having the right to amend its provisions, if its action shall be afterwards ratified by uie people. Membership in the Legislature is a position acknowledged to be an office. The Consti- tutional Convention is another body permitted, when properly assem- bled, to amend the Constitution, if its action shall be afterwards ratified by the people. In this respect the duties and powers of the Legislature of the State and the Constitutional Convention are the same. Why should membership in one body be considered an office and not be so considered in the other? Thanking the Convention for the attention I have received I will now dose my remarks upon this subject. gPEKCH OF XR. WILSON, OF SAN FBAMCISOO. Mb. WILSON. Mr. President: I rise because it is incumbent upon me as Chairman of the Judiciary Committee to close this debate. Nothing could have pleased me Mtter than to have seen the tone and temper in which this discussion has been maintained. However deep and earnest have been the views of gentlemen who have expressed themselves here, the spirit, the language, everything has been in the most courteous and kind manner, without any imputation against the motives of any other, and I intend to imitate the tone and temper with which others nave discussed the question before you. I am relieved, in the performance of ray duty, of saying much that I might have said, by the arguments of the very able gentlemen who have presented their views upon the same side in support of the report of the majority of the committee. Admonished, too, by the lateness of the hour and the fati^e manifested on the part of the Convention, I shall proceed as rapidly as possible. Although Mr. Fawcett was a District Judge at the time of his election, yet I understand the question fairly and squarely presented to the Convention to be this: " Are the peopl$^f Santa Bar- Digitized by Google 214 DEBATES AND PROCEEDINGS Friday, b»Ta County entitled to present upon this floor a delegate of their choice T" I do not regard the question as beginning, centering, and ending merely in the sitting member, but it has a wider seope and is a larger and a greater question. It is a question involving the rights of the constitu- ents of tbat gentleman ; it is whether Santa Barbara County has a right to be represented upon this floor by a delegate of her own choice. Who forbids it? What forbids it? The ^ntlemeu upon the other side have pointed us to a direct written prohibition in the Constitution upon which they rely. Prohibited by whom? Prohibited by a similar Constitu- tional Convention and by the people of the State of California in the year eighteen hundred and forty-nine. It is said that that Convention and those people determined who should sit in this Convention. If so, then we have arrived at this prin- ciple in the law of constitutional government — that each Convention and generation may prescribe who snail sit in the next Convention, and following upon, that as a necessary incident, what electors shall vote for the delegates. It follows from this that we, to-day, can only exercise such political powers and enjoy such privileges as the generation pre- ceding us chose to leave to us. On the contrary, I deny that the people of one generation have more political power than the next. I deny that the people of eighteen hundred and forty-nine could exercise a power that we cannot exercise ; or that they could impair our full and free right, as a people, to make our own organic law. I desire to call the attention of the gentlemen here to that Constitutional Convention of eighteen hundred and forty-nine, consisting of thirty- seven members, and to the people of eighteen hundred and forty-nine, who adopted that Constitution. What was the condition of thmgs at that time? Who were those people? What were they? California originally was a department of Mexico. The system was rudely fash- ioned a/ier ours. There was a Oeneral Oovemment and States or Departments. War came and the conquest of California was the result. What was the condition of the people of California then? The political machinery of Mexico dropped, and we had a peopled region of country diS°erent from anything seen by us before in this nation. We had a military Governor over a conquered country. It had no Constitution ; no State government; no Temtorial organization. There was no Act of Congress that enabled them to do anything. Thai was their condition — peculiar and unlike anything ever seen before in this country. Those acquainted with the early history of the State know the struggle through which the people passed to be admitted into the Union. Congress refused to organize a Territorial government, and refused to pan an enabling Act so that a State - Constitution and or^nization might be adopted and effected. A military government existed, and officers de facto were exercising the civil functions of the government and attempt- ing to enforce laws and customs of which they knew nothing. What was California to do? What did the people do? Of necessity they were compelled to take care of themselves. They resorted to the inherent power of the American people, and elected delegates to a Con- vention, and framed and adopted their own Constitution and organized their State. There was nothing which authorized them so to do, except the principle that " all political power is inherent in the people. Oov- emment is instituted for the protection, security, and benefit of the people ; and they have a right to alter or reform the same whenever the public good may require it." Tou may say that they acted in defiance of Congress because it was claimed by the statesmen of the day that they were under the control and power of Congress, and had no right to move in the matter until an enabling Act was passed. The people, however, by reason of the great neceesitles of their position, peaceaoly and quietly elected their delegates to a Convention and adopted a Con- stitution. It is true that General Riley, the Military Commandant and Governor, cooperated, for the sake of peace and order — but he had no legal power to effect anything in that oehalf. In fact, the delegates in Congress, in their memorial asking admission into the Union, expressly state that the people did not form their Constitution "in obedience to the dictation of General Riley, but on the contrary, actually took the initiative in the movement, and only concurred in the suggestions of the de facto Governor as a matter of convenience, to save time, and with a patriotic resolution to merge all minor differences of opinion in one unanimous effort to avert impending ills and remedy existing evils." I call attention to this part of our history for two purposes; firat, as to the question of power in the people, and secondly, upon the question of the construction of the Constitution. Never before was seen exercised in a more absolute form — never before was seen a grander exhibition of the power of the people to govern and control themselves, and to frame and determine the organic law and to create a State. Does any one here believe that a people like tbat, and a Convention called together as that one was, and exercising such absolnte powers, intended to declare that the succeeding generation should not have the same political power, and should not exercise tlie same sovereign right? That we must be bound, restricted, and limited to the exercise only of such political power and rights as they should declare ? Tbat they could determine what form of government we should have, and who should be our representatives in the formation of a new Constitution? We have the right to read the Constitution by the light of surrounding circumstances. That is a cardinal rule of construction ; it is a rule of common sense, the object being to get at the intention and raecming of the framers of the instmment. Kor is it to be supposed for a moment that that little band of thirty-seven persons who framed that Constitu- tion, and the people of eighteen hundred and forty-nine who adopted it, in the exercise of the great inherent powers of the people in their original capacity, intended to say that the generation who should a third of a century later undertake to alter or amend or create anew a Consti- tution, should have lees power than tbey themselves exercised. The E reposition, to the contrary, is this: thai the people who in eighteen undred and forty-nine framed a Constitution and organized a Stote in defiance of Oongrees, without any enabling Act, without any Territorial government, and only by virtue of their inherent power, claimed the right and asserted the power to control, in the formation of the fnnds- mental law, the people of this period — over a quarter of a century later. I ask now whether we of this Convention or generation can determine who shall be the elector* of nineteen hundred and eight, or who shall be the members of the Convention to revise our Constitution at that time? I do not believe in any such political heresy. If this Convention, by its vote upon this question, is to adopt any saeh doctrine as that, I, for one, desire to enter my solemn protest igaiDst it, and to cast my vote in favor of the majesty, the power, and t)ie dominion of the American people. I do not say this because I think the doctrine is revolutionary, for it is not. I say it because it is the essence, the very groundwork, the very fondamental principle of Amer- ican government. The contrary doctrine leads to the most dangerooa results, for according to that theory we of this Convention and genera- tion may prescribe the qnalifleations of all members of the next Con- vention and exclude all but native bom citizens, or persons of over thirty-five years of age ; and the same principle would enable us to so further, for we could prescribe the qualifications of electors and exclude all under forty years of age, or all possessed of property of less value than twenty thousand dollars. When we concede the power, that is sn end of the question. The possible instances which I have given are not extreme case* — they all fall directly and naturally within the principle. If, therefore, the men who framed the Constitution in ei^teen hundred and feriy-nine oonid have prescribed that Judges should not sit in this Conveniion, they could have said that men under forty yean of age could not sit in this body. Yon therefore arrive at a fixed prin- ciple, thateaeh Convention poseeesesthe power to control, deteniiiDe,and shape the form and framework of any future Constitution ; and that each generation has the inherent right and authority to limit the power of the succeeding generation. How far they may exercise it, of course, ia a different question. I deny that they have any suefa power. I say the people of t<>-day have the same power in tbat respect that they had in eighteen hundred and forty-nine. I say this Convention is the jndge, and the exclusive judg>e, of the election and qualification of its mem- bers, and that the doctrines I have contended for rest upon the broad, indisputable and inalienable principles upon which all American States are founded. Therefore, sir, I deny the power of the people of eighteen hundred and forty-nine to say in their Constitution, or otherwise, who shall sit here. I say again, that theee views are not baaed on revolutionary principles, but on recognized avowed, and admitted doctrines of the American Government. And I say farther, that the people of eighteen hundred and forty-nine themselves never intended any suea eon- stniction to be placed upon their Constitution. There is a cardinsl rule of oomtruciiott whicn, applied to the Constitution, may be lAated in this wise — that if there be two constructions, one of which is in accordance with the recognized principles and genius of our Govern- ment, and the other be in violation of the same, the first must be takes as the true construction. The construction we place on section sixteen, article six, is, therefore, to be preferred, as it proceeds upon the recog' nition of acknowledged principles, and denies to the pet^e at this time no power possessed by the past generation. Tliere is, of eourse, no intention of denying here the binding force and effect of the existing Constitution, in all its functions and opera- tions upon the State Government, until changed; but when the time arrives for the exercise of the political power which inheres in the people, to alter and reform the government, it is not the government which acts but the people in their essential character as the sovereign power, as defined in section two of the Declaration of Rights. I desire new to call attention to some of the views advanced by the distinguished gentleman from Marin, Mr. Shafler, for whose talent and learning I entertain the greatest reepeet. I regretted much to bear him denounce the Courts and the leArned profession of which he has always been so prominent a member. He insists that gentlemen learned in the law are the least able to give a proper construction to a Constitution, and contends that these instruments are to be interpreted in the manner in which tbey are understood by men of low intellect. The gentlemas's argument called to my mind the distinguished statesman and law^, Duiiel Webster. I had supposed thai a great part of his reputation depended upon his powers and grand eoorts as an expounder of the Constitution. I had supposed tbat his great &me reetea somewhat on his ability in that regard. I pictured ^myselftbatdistingaisliedinaiiss be went in his carriage to the Supreme Court of the United Stales, to argue the great Darmoath College case — a case involving the ooBstmction of a clause of the Constitution of the United States. I could see him with hii mi^inifioent physiqne, his grand head — which was " a temple where a god might dwell " — his scrupulously neat attire, his bine coat and brass bnt- tons, and bis polished boots, getting out of his carriage at the Capitol, but before entering the Supreme Court stopping to ask the driver to get down from his box and advise him as to the meaning of tbat daass which forbids the States to pass any law irapairin|j the obligation of contracts. I could also image to myself Chief Justice Marshall, aAer hearing tbat great case argned by the mightiest intellects inibe land, and after long deliberatfcns over the matter, calling up his very worthy gardener, and asking him to explain what his views were on that sub- ject so difficult and profound to lawyen and Judges. If I recoIlM aright, Mr. Justice Story says tbat that clause on the subject of impil^ ing the obligation of contraieta was less discussed in the Constitutional Convention, and has been more discussed in the Courts than any other clause of the Constitution. I can also imagine bow James Madison, Alexander Hamilton, and John Jay, when they were writing the ssriea of articles constituting the Federalist, to induce the peopteoAbe United States to adopt the Federal Constitution, must hav« i»Iled in the janiten and porters around the Capitol to ^t their views «8 to the faree-aad efiect of its various dansee and provisions. Digitized by Google Oct. 25, 1878. OP THE CONSTITUTIONAL CONVENTION. 215 The l«wiied gsntlenuiii from Marin aays we must take the first obvious meaning of the Constitution, as read by the man of low intellect. ITov, section two of article one says: " AU political power is inherent in the people." What people? In whomT He says that the first obTJous meaning would include the Chinese as a part of the people of this State. So, also, he says females are a part of the people. Yet he immediately departs from his first obvious meaning, and says that the people are really the electors only — those entitled to take part in public iSain— and that they represent the whole. He had to bring his reflective faculties to bear — his reason and sense, and then he found that the interpretation which' a man of low intellect would have ^plied would lure been merely delusive. Take, also, section three of article one of the Declaration of Bights, which declares that " the right of trial by jury shall be secured to all, and remain inviolate," and see whether the meaning would be better ucertained by the man of low intellect, or by Marsh all, Kent, Spencer, and Madison. The fint view of the man of low intelledy. would be that in all pro- eeedings in Courts a right of trial by jury is secured. Yet how often have Coartt held that that does not apply to equity cases. The Chancellor callsa jary or not, as he, in his discretion, determines. It is manifest that, to rrad a Constitution rightly, requires reflection and study, and that men who have devoted the most of their time to the study of the ■cience of government, are best enabled to give enlightened views upon it I do notaay a Constitutional Convention should be composed wholly of lawyers. On the contrary, there should be representatives from all classes of business — the farmer, the merchant, the mechanic, the miner, and others. But I do say that if I wished, in a case of sickness, to bow what was my disease^ I should prefer the opinion of a skillful physician to that of a man who knows nothing of medicine. On a question of law, I should take the opinion of Judge Hager before that of a layman. On a question of farming, I should reeort to thoee who pursue that vocation. On machinery, I should consult a machinist. The opinions of learned Judges and lawyers, who have devoted their time and intellect to the consideration of Iraal matters, and to the study of the sdence of government, are, therefore, entitled to the highest respect and confidence. It was, therefore, very proper for the gentle- men who, by their able arguments, have vindicated the correctness of the report of the majority of the committee, to refer to the actions and opinions of men like Chief Justice Marshall, Chancellor Kent, Judge Spencer, and other distinguished jurists and statesmen, who have written, spoken, and acted upon the subject. They shed a flood of light npon the matter, and furnish precedents which any gentleman can honorably follow. The learned gentleman from Marin, Mr. Shafter, and also the gentle- man from Sacramento, Mr. Freeman, who has acquired a deserved fame as the author of some well written law books, rely upon section sixteen of article six of the Constitution, which renders District Judges ineligible loany other office than a Judicial one during the term for which they were elected, and insist that members of this Convention are officers, because they perform functions of government and are recognised by the Constitution as having something to do with the Government. Though somewhat variously ezpieesed, these gentlemen, as well as the gentle- man from San Franclaoo, Judge Hager, all express the one idea of Mr. Jameson, the author of a book on Constitutional Conventions. Mr. Jame- lon, after treating of the case of Judge O'Melveny, who was permitted to hold his seat in the Illinois Convention, against the same objection as the one nr^d here, and after stating the arguments there used, pro and eon, gives his own opinion that the Judge was ineligible. In support of this Tiewheaaysincondusicn (page three hundred and eight): "Thegovem- ment of a commonwealth is the totality of those insttjiments through whose ministry its political organization began and continued. It ia that totality which governs, and not necessarily either of its members, pre- dsely as it ia in the body of an animal which lives and acts, and not in the separate parts, though doubtless of these, one masticates the food, another dige^ it, a thira performs locomotion, a fourth thinks, and so on. And, as in the living body each organ contributes by no matter how homble or obscure a function to the common life or development, is a member of the organism. So in the commonwealth, every citixen or body of citizens charged with any duty looking to the defense, the opera- tion or the renewal of the political system, is an organ of that common- wealth for purposes connected with the government, and must be ranked among its officers." This is the substance of the argument here, though greatly elaborated, and Judge Jameson certainly puts it as strongly as any of his followers here. Sow one mode of proving that a proposition is untenable is to prove that it goes too far. If its legitimate result is an admitted absur- dity, of course it must be abandoned. Let us concede here the proposi- tion that " in this commonwealth every citizen or body of citizens charged with any duty looking to the renewal of the political system is an organ of the commonwealth for purposes oonnected with its government, and moit be ranked among its officers." Now if this Convention be such " a hody of citizens," still its powers are quite limited, as they are confined to merely preparing and proposing to the electors a Constitution for ad(^)tion. The act which gives force and validity to the whole matter — which renders it eSective — is the act of the electors at the polls. There- fen the elector at the polls is, in the language of Mr. Jameson, a "citizen, ehaigsd with a duty looking to the renewal of the political system." I'henfiire he is " an organ oi the commonwealth for purposes connected wi3i Hs government." Therefore an elector " must be ranked among its ottfBan." From this it follows that a Judge would be ineligible to a seat m this Convention and would not be a competent elector to vote upon it. Ia net this the legitimate result of the Jameson doctrine? Does not this fcOo* from the argument of the gentlemen from Marin, Sacramento, Old Sao Franoisoo, Messrs. Shatter, Freeman, and Hager? If it re^aiTw the action of this Convention and the action of the electors to make a Constitution, how can the delegates' who merely pro- pose be officers, and yet the electors who enact and give effect to the organic law not be officers? Each performs a separate function — each, you may say, a necessary function. Yet the grater of the two is that performed by the elector. But to call him an officer, is an absurdity no one would commit. This seems to be all that is necessary to say of Mr. Jameson's views, and that of his followers, in this respect. The gentle- man from Marin, however, differs from Mr. Jameson in this — that the former insists that the functions of a Constitutional Conventiofi are le^slative, and the gentleman from Ban Francisco, Mr. H^er, agrees with him in that. Jameson says that a Constitutional (invention cannot exereise leigislative functions, and that when it does, it is depart- ing from its legitimate sphere. This question arose out of proceedings in the Missouri Convention, where certain legislative powers were sought to be exeroised. They were, however, neld invalid, because legislative. So this Convention has great functions and great duties to perform, but they are not legislative in their character. The Legisla- ture may do many things that we of this Convention cannot do. We can do things the Legislature cannot do. £ach has its own proper sphere, and each must keep within its own limit, Ko person is stronger in his antagonism to the exercise of legislative powers by Constitutional Conventions than Mr. Jameson ; and when he argued against the eligi- bility of Judges to seats in the Illinois Convention, he ^aced it ufion a difierent ground entirely, as has been shown. It is, therefore, some- what singular that the gentlemen upon the other side of this question do not agree among themselves upon the ground of objection, but diSer with each other as much as they differ with us. The gentleman from Marin, Mr. Shafter, undertook to entertain us with some of his humor, and succeeded very happily. The debate has been lon^,and often necessarily tedious, and his sparkling humor was much relished. It was quite pleasant to hear his illustrations. He pic- tured a member of this Convention going after death in search of a last resting place. He first applied to the heaven prepared for good officers, but being told he was no officer he could not get in. He next went to the hell provided for bad office-holders. He was equally ineligible there, and, like Mahomet's coffin, must hang suspended oetween heaven and hell. Apply, however, this fable to the elector, who performs so important a function in the creation of a new Constitution. He would be equally expelled from the good office-holders' heaven and the bad offioe-holders hell, and yet no one can insist that therefore he must be an offioer. The learned gentleman from Marin also ofi'ers us his own evidence as a member of the Legislature which proposed the constitutional amend- ments of eighteen hundred and sixty-two (one being section sixteen of article six) as to what the Legislature and people meant by "office." It was relished as a great joke a few years ago in one of the lower Courts of San Francisco, when a tyro in the law proposed to call Horace Hawea (author of the consolidation law) to testify as to the meaning of certain rirts of the consolidation law of the City and County of San Francisco, confess my surprise to hear the distinguished gentleman from Marin actually give teetimony of a like channter. The truth is that the Con- stitution of eighteen hundred and forty-nine declared that the Judges of the Supreme and District Courts should be ineligible to any ofBee other than a judicial one, and that the only change affected by the amendment of eighteen hundred and sixty-two was that County Judges were included. We have, therefore, Mr. President, two constructions of section six- teen, of article six. One of these interprets the word "office" to be such a State office as is provided for in the Constitution itself — such as takes rank in the existing government and looks to it as continuous and permanent — one that has functions of a character consistent with and as a part of that existing government. That construction excludes a mem- ber of this Convention, which is not a part of the machinery of the existing government, nor made in its snpport. Such a construction is consistent with the principles of liberty and the genius of American government. It is consistent with the second section of the Bill of Bights. The opposite construction proceeds upon the basis that the peo- ple of one generation have greater political rights and power than the people of « succeeding generation, and one Constitutional Convention is more powerful than its successor. I submit, therefore, that the views of the majority of the committee are the sound views upon this subject. I will call brief attention to article ten of the Constitution, upon which the views of vay distinguished friend from San Francisco, Juage Hager, aomewhat surprised me. I do not know, however, that I should express surprise, for a distinguished man has said (I quote from memory), " Make a point ever so clear, and the odds are great that one whose habits of thought are different and the bent of whose mind lies in an opposite direction, will be unable to perceive it." Another delegate from San Francisco, Mr. Estee, had, in support of the majority report, read from the Constitution of New York a clause almost exactly like section six- teen of article six of our Constitution, as to the ineligibility of Judges to offices other than judicial offices, and proceeded to show that notwith- standing the clause, such eminent men as Chancellor Kent, Ambrose Spencer, and others sat in the Constitutional Convention of New York wnile holding their judicial positions, thereby proving that those dis- tinguished men had construed the word office not to embrace delegates to a Constitutional Convention. In reply to this the gentleman trom San Francisco, Judge Hager, produced the Constitution of N«w York to show that it contained no provision for the amendment or revision of the Constitution, while the Constitution of California contains provisions for amendment and revision. Therefore, he says in New Yorlc a mem- ber of the Constitutional Convention is not an officer, but in California a member of the Constitutional Convention is an offioer; that Chancellor Kent and all the other Judges mentioned who held seats in the New York Convention, called together by the Legislature, were not holding another office, but that in California the delegates to this Convention are Digitized by Google 216 DEBATES AND PROCEEDINGS Saturday, ofBcers, because called together under the provisions of article ten, on the subject of amendment and revision. I could not help but think that the del^atea to the New York Convention, who thus are construed not to be oMcers, would have been refused admittance to both the heaven and hell spoken of by Mr. Shafler, and been compelled to go to midair with Mahomet's coffin. What is the true meaning and force of article ten of our Constitution, providing for amendments and revision of the Constitution; and what is the effect of its absence in the New York Cons^tution? Is it not clear that the people of New York had the inherent political power to alter and amend the Constitution of that State? Is not that a great underlying principle of the American Oot- pmment? Must the power to make a new Constitution come from a grant in the Constitution itself? Does it not come from the genius and spirit of republicanism itself? Manifestly so. The Act of the Legislature of New York calling a Convention was merely putting the dormant power of the people of the State into action. It provided merely a proper and regular mode for the exercise of an admitted power inherent in the people. So article ten of our Con- stitution performs the like ofiBoe. It avoids confusion and uncertainty, and secures a regular, peaceful, and orderly right which existed before the Constitution was framed, and will survive all Constitutions — the right declared in section two of the Bill of Rights. Inherent power is not granted by a Constitution. It is a confusion of ideas to say that inherent power is dependent upon a Constitution. The Bill of Riehts does not give to the people the power to alter or amend the Constitution, but simply declares and affirms its existence, and the power would have existed all the same had there been no declaration of it. Now, if it be correct that this power was inherent in the people of New York — and the gentleman from San Francisco, Judge Hager, admits it — and they oould exercise it, though not mentioned in the Constitution, then I ask him whether the mere mode of setting that great power of the people into motion could make any difference? Whether a delegate to a Con- vention called by the Legislature can be no officer, but a delegate called in another mode is an offioer? I ask whether this Convention, when it is assembled, differs from any other Constitutional Convention lawfully assembled, no matter how called? Mb. eager. The gentleman wilt allow me to correct him. I did not state that in New York he was not an officer. I stated that the Con- stitution of California provided for the mode of calling this Convention, while the New York Constitution did not, and therefore they were different in that respect. I did not sa^ they were not officers there but they were officers here. I certainly did not say anything of the kind, except that in our State the^ are recognized by the Constitution as mem- bers of the Convention, while in New York there was no such recogni- tion in the Constitution. That is what I said. Mb. WILSON. I wrote it down, Mr. President, immediately after he said it. I beg the gentleman's pardon, but he said distinctly that these persons were not officers in New York. He has a right to retract it, of course, but I cannot be mistaken, for I wrote it down immediately. Mb. hager. We are not lawyers now, before a jury. When a member gives his views as to what he intended to say, that should be sufficient. I hope the gentlman will accept the explanation. Mb. WILSON. Certainly ; the gentleman has a right to make the explanation. I desire to show him all due courtesy, but I cannot admit that I have uttered a falsehood before the Convention. I can now say this much, that Mr. Hager did not intend to say that they were not officers in New York. I will therefore assume that be didn't say whether they were officers or whether they were not The learned gentleman took the distinction which now, by his explanation, amounts to nothing, for he says, " I didn't say whether they were officers or not." He took that distinction to show you that whilst it was right in New York for Judges to sit in Convention, it oould not apply to us here, because in California they are officers, and thus he takes up Jameson's proposition and adopts it. I say that the position of the members of the New York Convention and those of the California Convention are the same. The mere mode of calling them together is a matter of secondary importance. Whether it is recognized by the Constitution or not is of mere secondary import- ance, beoiuse the ri^ht exists in either case. Article ten of the Con- stitution of California simply provides the regular and proper mode of calling the delegates together, to enable the people to exercise their fjreat inherent powers, to frame and form a new Constitution. It IS a good thing to have in the Constitution, because it prevents disorder. It prevents irregularities in the exercise of that power, but it does not (jive the power. It simply provides a plain and easy mode of ascertaining the sentiments of tne majority Opon a particular occasion, as to whether the people desire to revise the Constitution. But in addition to this we may say that as the framers of that Constitu- tion undertook to say something upon the subject of a Constitution, by all proper rules of construction tney are presumed to have said all on that subject that they intended to say, and the proposition of the distinguished gentleman from Loe Angeles, Mr. Howanl, is undoubt- edly correct, that we have no right to go outside of article ten for the purpose of considering any matter upon the subject of the Constitution, and members of the Convention. It is a plain rule of common sense and a principle of legal construction, that if there are general words in one part of an instrument and particular provisions in another part of the instrument, and there is any conflict, tne particular language with reference to the particular subject controls. Now here, where article ten of the Constitution is special and applies particularly to Conven- tions, we look to that alone and do not go any further. We find that article ten prescribes no test of eligibility, prescribes no qualifications whatever. Therefore we are to act just as if there was nothing said about it in the Constitution. The electors have the inherent right to CbU » Convention to revise the Constitution and to select their own Howard, Schell, Inman, Schomp, Johnson, Shurtleff, Kelley, Smith, of Santa CUia, Laine, Smith, of 4tfa District, Lampson, Steele, Ijarue, Stevenson, Lewis, Stuart, Mansfield, Swing, delegates. Ther, in the language of the Constitntion, have the right to alter or reform toe same whenever the public good may require it I am unable at this late hour to answer further the propositions of the various gentlemen who have so ably participated in this discussion and opposed the nuyority report The question has been argued very thoroughly and very fully, and every gentleman here has no douM formed a decided opinion. On behali of the committee I can only add that the discussion nas but more firmly convinced us of the correctness of our course, and we submit that the Hon. Eugene Fawcett is entitled to his seat in this Convention as a delegate firom the County of Santa Barbara. Mb. LAREIN. Mr. President : I move the previous question. The motion was seconded by Messrs. Tinnin and Barbour. The motion prevailed and the main question ordered. Tai PRESIDENT pro tern. The Secretary will read the resolution. Thb SECRETARY read: Baoletd, That the Hon. Kngenc Fswoett is utitled to a s«at In this OoBrraUoa. The roll was called, and the resolution was adopted by the following vote: ATB. Andrews, Belcher, Biggs, Blackmer, Brown, Campbell, Caples, Casserly, Charles, Crouch, Dudley, of Solano, Dunlap, Eagon, Edgerton, Estee, Evey, Filcher, Finney, Garvey, Glascock, Graves, Harvey, Heiskell, Hilbom, Hitchcock, xois. Barbour, Herold, Barry, Herrington, Barton, Huestis, Beerstecher, Hughey, Bell, Jones, Condon, Joyce, Davis, Keyes, Dean, Kleine, Dowling, Larkin, Doyle, Lavigne, FarreU, Lindow, Freeman, McConnell, Freud, Moffiit, Gorman, Morse, Grace, Murphy, Hager, Nelson, Harrison, Ayers "aye," paired with Reynolds "no." Boucher " aye," with Shafler " no." Chapman " aye," with Rolfe " no." Hale "no," with Dudley, of San Joaquin "aye." Hunter " no," with Boggs " aye." Kenny " no," with Barnes " aye." Ringgold " no," with Shoemaker " aye." VanDyke " no," with Holmes " aye." Wellin " no," with Burt " aye." Mb. McCALLVM. I took no part in the debate, and I ask leave to explain my vote. I voted aye for the purpose of moving a reconsideis- tion. Thi PRESIDENT pro tem. The resolution is adopted, declaring Judge Fawcett a member of this Convention. ADJOOBXMEKT. At twelve o'clock and nine minutes i. x., October twenty-sixth, on motion of Mr. Murphy, the Convention adjourned. Martin, of Alameda, Terry, Martin, of Santa Cruz, Thompson, McCallum, Townsend, McComas, Tully, McFarland, Turner, McNutt, Vaoquerel, . Miller, Van Voorhies, Moreland, Walker, of Tuolumne, Nason, Webster, Noel, WeUer, Ohleyer, West, Overton, Wilson, of Tehuna, Porter, Wilson, of Ist District, Pulliam, Winans, Reed, Mr. President— 74. Rhodes, Keunaber, O'Donnell, O'SuUivan, Prouty, Reddy, Smith, of San Francisco, Soule, Stedman, Sweasey, Swenson, Tinnin, Tuttle, Walker, of Marin, Wickes, White, Wyatt— 49. TWENTY-NINTH DAY. Bacbihbkto, Saturday, October 26th, 1878. The Convention met in regular session at ten o'clock a. u.. President Hoge in the chair. The roll was called, and members found in attendance aa follows: Andrews, Ayers, Barbour, pbesbrt. Barton, Beerstecher, Belcher, Digitized by BeU, Biggs, Uoogle Oct. 26, 1878. OF THE CONSTITUTIONAL CONVENTION. 217 Boucher, Brown, Campbell, Caples, Cksaerly, Chvle^ Condon, Crouch, DkTII, Dean, Dowling, Dojie, Dudley, of Solano, DunUp, Edgerton, E»tey, Erey, Farrell, Favoett, Filcher, Finney, Freeman, Freud, Garvey, GUacoek, Gormui, Grace, Gnves, Gn^g, Hager, ^e, Hanison, Harrey, Heukell, Herold, Herrington, Eilbom, Hitchcock, Holmee, Howard, Barnes, Barry, Beny, Burt, Chapman, Cowden, Croes, Dudley, of San Joaquin, Huestis, Hughey, Hunter, Inman, Johnson, Jones, Joyce, KeUey, Keyea, Kleine, Laine, Lampson, Larkm, Larue, Lavigne, Lewis, Lindow, Mansfield, Martin, of Santa Cnu, McCallum, McComaa, McConnell, McFarland, McNutt, Miller, Moffat, Moreland, Naaon, Kelson, Keunaber, Noel, Ohleyer, O'Sullivan, Porter, Prouty, Pulliam, Reed, Reynolds, Rhodes, AISIHT. Eagon, Estee, Hall, Kenny, Martin, of Alameda, McCoy, Mills, Morse, LIATI OV ABSIKCE. Ringgold, Rolfe, Bchell, Scborap, Shafler, Shoemaker, Shurtieff, Smith, of Santa Clara, Smith, of 4th District, Smith, of San Francisco, Soule, Ste^man, Steele, Stevenson, Stuart, Sweasey, Swenson, Swing, Terry, Thompson, Tinnin, Townseud, Tully, Turner, TutUe, Vaequerel, Van Dyke, Van Voorhies, Walker, of Marin, Walker, of Tuolumne, Webeter, Weller, Wellin, West, Wickes, White, Wilson, of Tehama, Wyatt, Mr. President. Murphy, O'Donnell, Overton, Reddy, Strong, Waters, Wilson, of 1st District, Wiuans. Leave of absence was granted to Mr. O'Donnell for one day, to Mr. £atee for one day, to Mr. Morse for one day, to Mr. Dudley, of San Joaquin for one day, to Mr. Cowden for one day, to Mr. Burt for one day, and to Mr. Waters for one day. The Journal of yesterday waa read and approved. MU» TBI SriCIAL OBDKB. Hk. van DTEE. I wish to make a motion that the report of the Committee on Preamble and Bill of Rights be printed, and made the special order for Tuesday. Thi PRESIDENT. There being no objection, it is so ordered. The Chair liears none. Mb. graves. On yesterday I announced to the bouse that Mr. Mills, who would have voted aye on the Fawcett resolution, was paired with Mr. Estey who would have voted no. BKPOBT. Mb. LAIKE. Mr. President: I ask leave to present a report from the Judiciary Committee. The Chairman of the committee has gone away, and this is a report that ought to be made, and I ask that it Be printed, with the acoompanying resolution, and laid on the table. Thi PRESIDENT. If there is no objection the report will be received. The Chair hears none, and it is so ordered. Ma. PBisnBMT: Tonr Oomniittee on JadicUrjr, to whom was lefciieil the qaca- tiw M to the msaning and constnetkin of the Act of th» State L«(bUtut« calliBg lU* CaaTaotian, in Rgard to the (nod or fundi chargeable with the cost of printing, RMiooeiT. eiCi neceaMrjr for aald Convention, respectrulljr report, that we bad the •ue under cooakteistion, and that it te the opinion of the committee, that under tb<- Act It is the dnty of the Sacrelar; of Stale to famish the mtmbera of the OouTen- Uoa with Matioaerjr, aad that the same is chargeable to the twenty-flve thoaeand doUan appropriated "for etationeiy, ftael, Ughu, etc., for the LegtsUtur* aad Slate oOcan," etc. mm oonclnalon i« arrived at by comtming the Act making the general approprl- ■Uoiu with the Act calUng the Convention. (See Stats. 1877<4, p. 1007, third item from tnttoB of page ; nae Stata, p. 1008, Sec. 2, and p. 763, Sec. 6.) Seadtng tlieee nctJons aad proTMona together lead ns to the opinion above •Weaed. steeled — As to the printing, it Is our oplnfon ttiat It Is chargeable to the one hnu' drsd thaaaand doUan appropriated for rapport of the State Printing OCHce. (See », iMi* KIWI jivwor IB uvuuuva &u uiv yttj vi uavuj ^tijh viaw is stnngthened by the flut that the Controller's estimate for the State Mattag Ofllee foe the two yeari ending Jane thirtieth, eighteen handred and elghtj, ■as flu sm of serentj-flTe thousand dollan; (See last nport of Controller, p. 131,1 ~*^ tba apiKupiiatlon was one hundred thousaod dullan. (See Slats. 18T7-S, p. ' "tea eilad.) This large appropriation leadi us to the conclusion that the ftr the OonvsaHon wai Included: and this is strengthened bv the foct, that 28 there was only one hundred and fifty thousand dollan specially appr\>prlated for the expeniee of the Conrentlon, and their pay was fixed at ten dollars per day, and the number fixed at one hondred and flfty-4wo membera, while one hundred days are allowed them to rit : whea it muat have been apparent to the Leglslatare, that one hundred and fifty laoosand dolkus would have been greatly inadequate to pay all the expenses of the Oooventton for a much shorter time than one faandred daya. Ilki'nf— All other expenaesof the Conveallon rauit. In our Judgment, be paid out of the special appropriation of one hundred and fifty thooaand dolUrs made In the Act calling the OonTention. All of which is respwrtfnlly anbmltted. 8. M. WIUON, Chairman Jndloiaiy Committee. October nd, 1878. Constitatlonal Convention of the people of the State of California: Betalved, That under the taw of the State calling this Convention, the stationery ftimlahed membeia by the Secretary uf State la chargeable to the appropriatioa of twenty-fire thouaand dollarB made ** for stationeiy, fhel, lighla, etc^** and not to the ■peclal appropriatioa of one hundred and fifty thouaand dollan made In said Act calling the Conventioo ; and that the printing la chargeable to the appropriation of one hundred thonaand dollars for the support of " State printing,*' and not against the one hundred and fifty thousand dollar appropriaHoo aforeanio; and be It farther Jlt$ol}>ed, That the Praaident of the ConTention be inatructed to take such atepa as be may deem necessary to be taken in the premlaea to cany into practical effect the forvgoing reaolutlon. Mb. McCALLUM. Mr. President: During the call of the roll last night on the question of the eligibility of Judge Fawcett, I stated that I voted in the affirmative for the purpose of moving for a recon- sideration, as under the previous question then pending, there was no opportunity otherwise to state the reason for my vote. While by parlia- mentary law such notice can be given on the day following, I am aware that our rales require that notice shall be given on the day on which the vote is taken. There was no chance to give any other notice before the adjournment. A ri^id enforcement of the rule would prevent the making of the motion, but if the rule was liberally construed I might make it now. Without raising that point, however, I mav, perhaps, be permitted to have a few minutes in the many hours that have been occupied on this question, here to state the grounds of my motion, and I hope the Chair will entertain it temporarilv for that purpose. Thb PRESIDENT. Shall the gentleman 'have leave? [Cries of "leave I leave 1"] Ma. McCALLUM. I make this statement because my vote was influenced by a different reason (rom any of those which were given here in that lengthy and able debate. While believing that we are bound by all the provisions of the present Constitution, and until a new one shall be ratified by the people, and utterly denying the right to disregard any part of it, I was satisfied that the authorities cited here at least raised a doubt whether the position of a member here was such an office aa is contemplated by the Constitution. Especially in view of the fact that as it now provides a Convention can do nothing but propose a Constitution to the people. But in the Constitution, as made in eighteen hundred and forty -nine, it was provided that the Supreme Court Juetioea and the District Court Judges should be excluded from holding anv other but judicial office dunna the term for which they were electea. That was amended in eighteen nundred and sixty-two, simply by adding County Judges. But the Constitution, as made in eighteen hundred and forty-nine, contained also this section in reference to Constitutional Con> ventions: Article ten, section two. " And if at any time two thirds of the Senate and Assembly shall think it necessary to revise and change the entire Constitution, they shall recommend to the electors of the next election for members of the Legislature to vote for or againrt the calling of a Convention, and if it shaliapipear that a majority of such electors vot«d in favor of calling such election, the next Legislature shall provide by law for calling a Convention, to be held within six months after the passage of such law ; and such Convention shiril consist of a number of memSers not less than that of both branches of the Legislature." And thus it ends. Under the Constitution of eighteen hundred and forty- nine, in which the District Judges were excluded, it provided for making a Constitution by the Convention itself, without its submission to the people. When that prohibition was made the Constitutional Convention m view was not only a legislative body, but the highest legislative body known to the law. It was for that reason that in eighteen hundred aiul fifty-six the amendment was made to this article ten, providing that any Constitution made by such Convention should be submitted to the people. The question might be raised whether it would not even then have had to be submitted any way. But the authorities show that at least thirty- four State Constitutions framed under similar circumstances in the United States in the last century, were never submitted to the people, according to Jameson. Therefore it was a necessity that the Oinstitution should be amended as it was, so as to require such submission for ratification. Therefore, believing that when the exclusion of District Judges neces- sarily meant from membership of such Convention, having the highest possible legislative powers, I feel compelled to vote accordingly, and against my inclination, in favor of retaining Judge Fawcett as a mem- ber. I need hardly say that I have no regret in bein^ in the minority. On the contrary, personally I am satisfied that the majority have enter- tained a different view. rmiioiig AKD milOBIALS. Mb. WICKES. Mr. President : I wish to present the following memo- rial fVom citizens of San Francisco, and ask that it be referred to the Committee on Preamble and Bill of Rights : To the Constitutional Coavsntlon, to mast at Sacramento, Oillfomia, on the twenty- eighth day of September, eluhtaen hundred and eeventy-cight: BelleTlng that Almlgb^ Ood Is the source of all power and authority In dril gov- erament, Ihat the Ijoti Jeans Christ Is the Ruler of Mationa, and that the reraaled will of Ood la of aoprrme authori^ in dril allUra : Bemembering that this country waa aettled by Christian men, with Christian ends In view, and that they gave a diatinctly Chriatlan character to the iastitutloos which they established ; Percelring the petae*ertng attempts which are made to prohibit the reading of the Bible la our publio schools^ to overthrow our Sabbath laws, ( "~ Digitized by to'iaolish tbeoatll, Vjoogte 218 DEBATES AND PROCEEDINGS Satubday, prayer Id oar State LegieUture^ and other Cbrietian features of onr Inatitutione, and •0 to diToree the GoTernment from all connoctiun with the Chrlatian nllgion; Viewing with grave apprehension the oorniptiuo of oar politics, and the prevalent lack of moral and religious character in those who hold office in the State; and. Believing that a written Constitution should contain explicit evidence ox the Christian character and purpose of the State which frames it ; and perceiving that the silence of the Constitution of the 8UU, as well as of the United States, In this respect, Is used as an argument against all that is ChristJan in the usage and admln- istnllou of the government ; We, the undenigned, citlseus of the State of California, petlUon your honorable body to frame the Constitution so that it shall suitably express our acknowledgment of Almighty God as the source of all authority In civil government, of the Ijord Jesus Christ as the Buler of Nations, and of His revealed wilt as of supreme authority, and thus indicate that this is a Christian commonwealth, and place all the Christian laws, institutions, and usages of the State uu an audeniable legal basis in the ftinda- mental law of the same. Tb« president. It will be so referred. comiCKiCATioNS VBOM STATE omciBa. Tbk president. The Chair is in receipt of the following commu- nication from the Secretary of State, which tne Secretary will read : Stats or CAuroufiA, DxrAiriuxT or Stati, \ SAcaAaixTO, October 23d, 1878. / To the honorable Presideot and members of the Constitutional Convention : QsNTLEMEN ; In compliance with a resolution adopted by your honorable body on the eighteenth Instant, I have the honor to furnish the following statentent of the amount of stationiry issued from my ottice upon requisition of the various members, officers, and committees of the Convention from the o|)enliig of the session ap to and including Saturday, October I9th, to wit: Amount Issued to menibera, tl,16T 41 ; amount issued to officers and attachis, fiVi 24 ; amount issued to cumuiluieeii, tuo It; total, tl,44» 81. Very respectfully. TH08. BECK, Secretary of 8UI*. Thi president. It will lie on the (able. I also have a communi- cation from the Surveyor-General ; if there Ib no objection the reading will be dispensed with, and the document will be printed. Hearing none it is bo ordered. 8i)avBT0t-OBHiBAi.'s Omcx, ) Saosahinto, CAUruaMiA, October Mth, 1878. / To Hon. J. P. Hoge, President of the Constitutioual Conveution: Sib: In obedience to a reeolutlou, passed by your bonocable body, I have the lionor herewith to submit the following statement WM. MINIS, Surveyor^Senexal. The following shows the whole number of acres of land which have been oertilled or listed to the State of California by the Oovamment of the United State*, by reason of the following laud grants and donations of land : Aera. Swamp and overflowed lands l,bt»,imM Grant of 500,000 acres 487,37B.9r> Seminary, or seventy-two (72) sections « 40,446 06 Public building, or ten llO) sections 3^363.80 Grant In lieu of 16th and 36th sections . t3e,(Ul.31 Agriculture and Hechaulcs' Art grant 14U,7as «2 Yoseniita Valley grant 36,111.14 Mariposa " Big-Tree" Grove grant 1 2^.7$ The following shows the total cash vain* received by tb* Stat* fur lands sold by ber under the following grants, as appears from the records of the Stat* Contioller : Principal. Jnttmt. Orantof ISthand 36th sections and iandsin lieu thereof tl,20l,640 18 ^36,n4 60 Grant of 600,000 acre* . 380,432 36 4(/7,8U WK Total 11,691,072 63 «1,144,726 68 Giant of aixt*entb and thirty-sixth sections and lands in ll«u th*r*ot The area of the State is about 100,600,000 acres The area of lakes, islands, bays, rivers, swamp, and tide lands, is about 3,367,461 acres, which taken from the area of the State, leaves about 97,142,549 acre*. This amount divided by eighteen ^18), gives the area of the sixteenth and tbirty-aixth sections and lands in lieu thert«f, which amounts to about &,39€,808 acre*. About all the land listed to the State in lieu of sixteenth and thirty-sixtb sections baa been disposed of. About 2,:2UU,iXKi acre* of this grant Is nusurveyed. All the swamp land that is surveyed is either sold or applied for. The proceeds of the eales of this land is paid to the tjounty Treasurer* of the counties in which It is situated. The lands held under the giant of 600,000 acre* have been wholly disposed of by the SUte. Mb. MoCALLUM. I ask that my rote be changed in regard to the Fawoett resolution. The president. If there is no objection the gentleman will bo allowed to change his vote. The Cbair bears none. RBFOBTS OP COMMITTEBS. Mb. shoemaker presented the following report: Mb. Pbbsidknt: Tour Committee on Reporting and Printing, to whom was referred resolution number sixty-three, concerning certain inquiries as to the probe, ble cost and the expediency of transcribing and printing the Journal of this Con- vention, have had the same under consideration, and herewith report th* same liack and recommend its adoption by the Convention. The following is the resolution : Betolred, That the Committee on Kepoiting and Printing be and it is hereby Instructed to inquire into and report at an early day to the Convention, by resolution or otherwise, the expediency and the probable cost of inscribing, indexing, and printing the Journal of this Convention. The president. The question is upon the adoption of the resolu- tion. Mr. LARKIN. I would like to have some member of the committee state what this is going to cost. I du not want to vote blindly in a mat- ter of this kind. Mb.. SHOEMAKER. This resolution was never adopted. It was introduced and referred to our committee, and we now report it back recommending its adoption. If the resolution is adopted by the Con- vention, tlien the committee will report upon the cost. It has nothing to do with the cost. The resolution was adopted. Mb. HILBORN. Mr. President : I would like to make a motion out of order. The other day the Superintendent of State Printingtseut in an account of the amount of money that the printing had cost op to date. It seems to me the cost was very lar^, and I would like to hart that report referred to the Committee on Printing, that they may make an estimate, and see whether or not we are paying too much for printing. The PRESIDENT. It will be so referred. Mr. HILBORN presented the following report from the Committee on Mileage and Contingent flzpenses: Mb. PaxsinKKT ; Tour Committee on Mileage and ContingeDt Expense*, to whoa wa* referred reeointlon number Sfty-two, anthoriiing the Pr«ddrnt to appoiiit Porter* for the committee room*, beg leave to report, that eince tb* introduction of tbi* ie*olution we have taken occasion to examine into tb* wbol* question of tiM employment of attache* in this Convention, In order to see If some change could not be made in the Interest of ooonomy. To this end weaddnwsed a note to the Sergeant, at- Arms, asking him to communicate to ns his view* upon tb* ratOect,aiid by his permission we hereby append his answer as a part of our report: **To the Committee on Mileage and Contingent Expense* of the Oonstitutionsl Convention — Gentlemen: In reply to your request for a statement of what addi- tional help I deem necessary for the performance of the work tiow necesssry to be done for the r<»nventloa ; also, to the advisabiilty of dispensing with any of the present eniploy^ I beivby pre**nt tb* following lor your consideration : Fir<, two additional Porters are necessary to care for the committee rooms and other work they may be detailed to do ; second, that there is one Doorkeeper more and two Page* more than are actually necessary lor that branch of the service. The help arranged in thi* way, and properly detailed, would, in my opinion, be more tfasa •uBcient to perform all the work necessary. ''T. J 8BKBW00D, 8ergeant«t-Aims. "October 22, 1878." Tour oommitte* ftilly concur in the views of the Sergeant-at-Arms, and siace ^ Sergeant.*t-Arms, by reason of hi* having charge of Uieee Page*, has obtained a knowledge of their qiMliflcations, and is able to judge as to who should be retalasd and who should be discharged, we recommend that he be clothed with power to dndgnate the persons whose service* can best be dispensed with, and we therefore recommend the adoption of the following resoluHun*: Raolvtd, That the President appoint two Porters for the committee rooms, at* salary of four dollar* per day each, payable out of tb* appropriation for the expenses of this Convention. Jtaolrtd, That the service* of on* Doorkeeper and two Page* ba dispensed with, and that the Sergeant-a^Arms designate the persoiu to be dist^uu'ged. We herewith lay before you a lUt of the attachte of the Convention, with the salary of each, in order that the Convention may be infonyed as to the dslly expenses: Ham*. J. A. Jobnaon B. V. Smith „ G. A. Thornton L. Crawford O. K. McStay T. J. Sherwood B. r. Chambers M. r. Maloney W. N. N. r*llows Wm. Fleming M. Bame* Frank Lalne Henry Jones Wm. Oalt J. D. Ricks H. Dumer August Rose Mark Shipley W. Campbell J. £. Doack Cary Good* E. H. Monia Tola! Office. Secretary Assistant Secretary .\s*lstant Secretary Minute Clerk Journal Clerk Sergeant«t-Arms Assistant Seigeant«t-Atms. Doorkeeper Doorkeeper Doorkeeper. Postmaster Mail Carrier (per month). Porter Porter Page Page 1 Page — Page Page Page Per Diem. IB 00 600 6 00 8 00 8 00 8 00 «0U 600 600 600 400 100 00 400 400 300 300 300 SOD 300 300 300 3 00 $10100 333 1104 33 One hundred and one dollars per day, excluding pay of Mail Carrier, which Is flOO per month. Amount brought down . . . -— __— WO* SI Kour committee clerks, at t6 per day » W Total expense* of attachi* .tuts HILBORN, Chaiimao. The president. The question will be on the adoption of the reso- lution. Mr. HILBORN. There are two resolutions. One say%that the Presi- dent shall appoint Porters of the committee rooms. They had better be voted upon separattly. The president. The question is on the adoption of the first reso- lution: Beulried, That th* Preddmit appoint two Porten for the committee rooms, at a salary of four dollars a day, to be paid out of tb* appropriation for the expenses of this ckinvention. Mr. HILBORN. Our investigation shows first, that there iano doubt that these Porters are necessary. It may be said by some gentlemen that the committee rooms are now kept in good condition. This is true. The Sergeant-at- Arms, since the committees have been meeting, has had two men employed — without authority, it is true — but they have been employed and have been at work from early in the morning until late at night, and they have all they can do. I think this resolution should be adopted. Mr. GREGG. I would like to ask how long we will need these Por- ters—how long these committees will be in session? It will certainly not be long until the committee work will all be done up, and then there will rartainly be no need for Porters. Ma. HILBORN. I will assure vou that as soon as their services can be dispensed with I sh^ll not stand in the m^ of their leniovsl. But Digitized by VjOOQIC Oct. 26, 1878. OF THE CONSTITUTIONAL CONVENTION. 219 tbey ate necessary at this time, as the various committees of the Con- Tention are at work, and the rooms mast be attended to. The rpsolution was adopted by a standing vote : ayes, 02; noes, 43. Thi president. The Secretary will read the next resolution. Tbi secretary read as follows : 'Raahtd, That the sarrlcM of one Doorkiwper and two Pai^ be dispensed with, Md that the SergeAnt.tit.Aniu designate the persons to be discharged." Ml HILBORK. Now, in re;;;ard to this resolution, the Committee OD Contingent Expenses felt that this was a very painful duty to perform, lo present a resolution, the adoption of which would turn some of the employ^ out of employment, but we felt that we were charged with the ivif which we could not evade. Mr. President, we claim that we should manage the financial affiurs of this Convention as we would our private s&iia, and when it came to the knowledge of the committee that there were more employ^ than necessary, we could do nothing but inform the Convention of that fact. It is a very painful duty to turn off any of these employ^, and we consider that we are showing no disrespect to the President when we took away that disagreeable duty and gave it to the 8erge«nt-at-Arms. We shall not feel that we have been snubbed if you vote the resolution down. We have no personal feeling in this matter. Ai to the matter of who shall designate these persons to be discharged, this will relieve the President of the Convention of a very unpleasant daty, and since the Sergeant-at-Arms has control of these employes and knows their efficiency, I think it would be a great deal better to leave the matter to him. That is all there is of the resolution. Let the Ser- |eant-at-ArmB designate the ones to be discharged. I have no personal feelins in the matter, but I believe the business of the Convention can be carried on with less einploy^ than we now have. We must not squan- der the money of the State, and we should manage the business of the State ss we would our own private matters. I hope the resolution will be adopted. Ml. O'SULLIVAN. I move, as an amendment to that, to strike out the word " Pages" and read that two Doorkeepers be discharged. Ml. BARBOUR. I have a resolution to that effect which I desire to lend up. Thi SECBETART read the resolution, aa follows: Saobxd, That the Sergnnt«t-Anni be aathorized lo detail two Doorkeepers to take can of the committer room* aa Porters. Ths president. That resolution is in conflict with the resolution jnit adopted, and therefore it is out of order. The motion of Mr. O'Sul- livan is to discharge two Doorkeepers and retain all the Pages. It is moved, in the shape of an amendment to the original resolution reported by the Committee on Contingent Expenses, to strike out " two Pages" and insert " two Doorkeepers." The question is on the adoption of the amendment. Mb. HcFABLAND. I understand the resolution includes two Pages and two Doorkeepers. Tbi PRESIDENT. No, sir; one Doorkeeper. Hi. HERRIN6T0N. I think the question should be taken on the Doorkeepers and then on the Pages. Ml. McFARLAND. Mr. President: I understand that there are only three Doorkeepers now, and certainly we want that many. Now, I find that some gentlemen are laboring under a great misapprehension about the duties of Doorkeepers. Now, we must either have three Door- keepers or none at all. One would be of no avail, because there are three gates by which (lersons can enter on this floor. Now, the Ser- gsant-at-Arms has no secretary or clerk, and it seems to me that we ihoald have at least three Doorkeepers. It looks to me rather a small thing to change our mind on this business, right in the middle of the session, in order to make a little show of economy, wasting ten dollars forevery one saved. We have made ufTour minds how many employ^ *e (eed, and I do not see how we are going to get lUong without them. Members need not be so afraid about exhausting the appropriation, they will all get their money anyway. Mb. SHOEMAKER. Mr. President: I understand that the resolu- tion reported by the committee will save about ten dollars a day, and I don't think the Sergeant-at-Arms, for such a small consideration, ibonld have so much trouble put upon him as to have to turn off these men. MB.HILBORN. As I understand it,' the 8ergeant-at- Arms, if this were carried out, can so arrange the force that the business can be carried on without the services either of the Night Watchman, or any addi- tional Doorkeepers. For instance, if one of the Doorkeepers is dis- pensed with, the Assistant Sergeant-at-Arms can tend one of the doors, or if he is engaged in other business, one of the Assistant Porters, or some of them, can be had to assist at the gates. We passed a resolution the other day placing all the Pages under the control of the Sergeant-at- Aims, and under that resolution be now has the control over them, so that he can assign one for night work, and there would be additional Night Watchmen enough on the force without any additional expense to the State. As I said before the committee has no feeling in the world about this. You can adopt the resolution or vote it down, or change it >o ray way, but the committee coming in possession of the facts that there were more einploy^ now than are necessary, some of them ought to be discbareed. You can do what you please with the resolution. Ml. STEDMAN. Mr. President : I hope that the amendment offered hy tke gentleman fVom San Francisco, Mr. O'SuUivan, will be adopted. I do not believe that the people of Sacramento are so troublesome and so fierce, and so desirotis of getting hold of our papers and propositions, '* carry them off, that we must have two or three gentlemen sitting by the gates to hold these doors and keep people out. I do not see any nesHsity for an^ Doorkeepers ; at the same time, I have no objection to having one if it is actually necessai-y. Now, sir, I believe that two of Uia Doorkeepers can be detailed as Porters. There is no necessity for dMnrging any one, no necessity for hiring any one. There are some eminent gentlemen on this floor, whenever a question of economy is raised, who take the opportunity of throwing into the teeth of gentlemen who advocate economy, that we are afraid the funds are going to give out. I want to say to such gentlemen, as far as the delegates from San Fran- cisco are concerned, we are desirous of completing our duties in this Con- vention as quickly as possible, and going home to our constituents. We are desirous that this work shall be done as soon as possible, but we want it done well, and we are not scared about the funds giving out. I, for one, am going to remain at my post until it is completed, money or no money. The gentleman saya we will get our money anyway, that is, if the fVinds give out, so you see he is willing to go on and entail an extra expense on the State, and allow the State to pay it. We, being true economists, desire that those Doorkeepers be detailed as Porters, and I desire to say now once more, that we want to get through with this work as quickly as possible, but we are not afraid about the funds giving out. I hope the amendment will be adopted. Mr. TINNIN. It is a notorious fact that in almost all legislative bodies, when a man has been placed in a position, no matter how unnecessary he may be, it is next to impossible to remove him from the plane. Now, sir, it is enough for me to know that a standing committee of this body, composed, as it is, of all the elements represented here, after a full investigation of this subject, they investigate every matter connected with it, and they come here with a report and tell you what these facts are, and sir, it is enough for me to know that the committee have unanimously arrived at that conclusion ; I am willing to sustain the committee in that conclusion. It is evident here to us that there are too many attach^ in this body at the present time, but few of the members know half of them, and if the committee, tUrouph the 8er- geant-at Arms, desires to curtail the expenses of this Convention, I think by all means they should be sustained in their report, and I hope the report of the committee will be sustained as it is. Tag PRESIDENT. The Secretary will read the resolution. Thb SECRETARY read as follows: **J7««olced, That the aenrlcea of one Doorkeeper and two Pages be dispensed wiUi, and that the Sergeant a^Anna designate the penona (o be diacharged." Th« PRESIDENT. The gentleman from San Francisco, Mr. O'SuUi- van, moves to strike out "two Pages," and insert "two Doorkeepers" instead of one. The question is not divisible under rule twenty -one. The amendment was lost. The resolution was then adopted by a standing vote — ayes, 74, noes, 34. BRSOLITTIOllg. Mb. TULLY. I have here a resolution, in reference to Night Watch- man, which I would like to have read and referred to the Committee on Contingent Expenses. Th« SECRETARY read as follows: WuBBiAS, As this Convention will be known to all future geneiaUons aa a body that In all their acts exerriaed the most rigid economy, even to the discharging at, and refnsing to pay, a Night Watchman, who had blthfUIly toiled for twentrK>ae nights; and, Wbuias, Since hla discharge the desks of the members are nightly robbed of pena, penrlla, atatlonei7, and everything of value left there, thu^ depriving memben of their use, and oar glorions State of California of their value: and, WnsaEAB. It ia necessary to maintain oar future standing with unborn geneim- tiona; therefore. t>e It Saoirtd, That . the Prerident of this Convention be requested to commence, in alphabetical order, aa the namea are on the roll call, and name a member each night lo act aa Watchman In thia chamber, and In the rooma adjoining thereto. Mb. EDGERTON. I move that the order be reversed, to commence at the bottom of the roll call instead of the head. Thb PRESIDENT. I rather think the resolution is out of order. Mb. LARKIN. Mr. President: I wish to offer the following resolu- tion: Itaohtd, That each member of thia Convention, and each standing committee, be allowed atatlonery to the value of ten dollars, and no more. Referred to the Committee on Contingent Expenses. Me. LARKIN. I observe by the report of the Secretary of State that our stationery account amounts to about one thousand four hundred dollars. I am satisfied, Mr. President, that any member on this floor can get along with ten dollars worth of stationery, and no committee can certainly use more than that amount; therefore, I insist upon the reso- lution of that kind, so that each member will be limited in the amount of stationery he can draw. I think we should practice economy. lam for retrenchment and reform in the administration of the government. Thb PRESIDENT. It will be referred to the Committee on Contin- gent Expenses. Mr. JONES. I desire to offer an amendment to the resolution. Thb PRESIDENT. It has been referred to the committee. When it comes back you will have a chance to amend it. PBOPOSITIONS Attn BBS0LUTI0K8 BKLATINO TO THB CONSTITVTIOII. Thb PRESIDENT. Propositions and resolutions relating to the Con- stitution are now in order. OH LBOISLATIVB DCTIIS. Mb. bell introduced the following proposition for incorporation in the article on legislative duties. Sbotiok — . The selling of any kind of goods under false pretenses shaUl ....,..-- T_._.- ture t section.' Referred to the Committee on Legislative Department. JUDICIAL DBPABTMENT. Mr. barton introduced the following proposition to amend article six, section sixteen, of the old Constitution : Amend article six, section sixteen, of the Constitution, by adding thereto the following: Digitized by' BOTION . ine SeiilUg Ul auy KIUU Ol KW«0 U1State for ihe genersl good. Beferred to the Committee on Water and Water Righla. RBLATIHO TO PUBLIC OPPICIS. Mr. O'SULLIVAN also introduoad the following proposed amend- ment to the Constitution, relating to public offices : SioTioK — . All public officers shall receive moderate fixed salaries, and all fees shall be accounted for .and paid into the public treasury. No extra oompensation shall be paid to public officers. Sbc — . It shall be unlawful for the L^alature, the county, or municipal governments to create any unnecessary or sinecure offices. Sbc. — . No State, county, or municipal officer shall be interested, directly or otherwise, in any contract for supplies furnished or work done for the State, county, or municipality. Referred to Committee op Legislative Department. RRLATIVR TO KISCBLLAKROCS PROVtSIOHS. Mb. HABVEY introduced the following proposition, relative to mis- cellaneous provisions : Proposition to amend article eleven (11) of the Constitution, in rela- tion to miscellaneous provisions, bv inserting the following new section: Srctiok — . Official duties shall be so performed as to facilitate the proper enforcement of the laws of this State ; and the Legislature shall have power to provide for deductions from the salaries or compensation of public officers who may neglect the performance of any official duty devolving upon them, or who may perform their duties in such a care- less or incompetent manner as to embarrass or retard the due operations of law. Beferred to the Committee on Miscellaneous Subjects. MILITIA. Mr. HABVEY also introduced the following proposition, to amend section one (1) of article seven (7), relative to the organization, etc, of militia: Srction 1. The Legislature shall provide by law for the eliectual organization and discipline of the militia of this State, fbr the encour- agement of volunteer corps, and the safekeeping of the public arms, in such manner as may be requisite and necessary to hem promote and make efficient this arm of the public service to cope with any emergency that may arise; subject, however, to the paramount authority of the Constitution and laws of the United States over this subject. Beferred to the Committee on Military Affairs. HBMBBRS or THE lroislatvbx. Mr. CONDON introduced the following proposed amendment to the Constitution, in relation to members of the Legislature : Abticlb — . hiscbllankons pkovisions. Srctioh — . Every person who shall be chosen or appointed to any office of trust or profit under this Constitution, or any law made in pur- suance thereof, shall, before entering on the duties thereof, take an osth to support the Constitution of this State and of the United States, and an oath of office. Sxa — . Each member of the Senate and House of Bepresentatives shall, before they proceed to business, take an oath or affirmation to support the Constitution of this State and of the United States, and alw the following oath : " I, , do solemnly swear (or affirm) that, ss a member of wis Legislature, I will in all appointments vote without fitvor, affection, partiality, or prejudice, and that I will not propose or assent to any bill, vote, or resolution, which appears to me injurious to the people, or consent to any act or thing w^gtever that shall hare^ Digitized by w^^ver that shall li Google Oct. 26, 1878. OF THE CONSTITUTIONAL CONVENTION. 221 * tendency to lessen or abridge their rights and privileges u declared by the Constitution of this State." Referred to the Committee on Miscellaneous Subjects. APPKtHTIOE LAWS. Hl HEROLD introduced the following proposed amendment to the Constitution, in relation to founding and regulating apprentice laws: Raotvoi, That the Legislature be called upon to found and regulate a ■triet apprentice law, compelling apprentices and their parents or guard- ians, by fine of money, or imprisonment, to the agreement made between such parties concerning such apprentices. Referred to the Committee on Legislatire Department. CDirULATIYI TAXATIOR. Va. HTTOHET introduced the following proposed amendment to the Constitution enlftled : " CVMttLATITI TAXATION AS A BUIKOT TOB LARD MOKOPOLT." Substitute for section thirteen, article eleven, of the present Constitu- tion; Sia 13. Tkzation shall be eqnal and uniform throughout the State. All property in this State shall be taxed at its market or cash value, such value to be ascertained by the Assessor of the county in which the property is situated; promdeti, that uncultivated or unimproved lands shall in every case be valued per acre as high as cultivated or improved lands of the same grade or class ; and pmmded further, that all improvements shall be assessed separately from the lands on which they stand. There shall be added to the regular State, county, and town tax rate, established by law for each year, as follows : For every person or corporation that owns more than one thousand acres and leas than two thousand, ten )>er centum. For every peraon or corporation that owns two thousand acres and less than three thousand, fifteen per centum. For every person or corporation that oWns three thousand acre* and not more than five thousand acres, twenty-five per centum. For every person or corporation that owns over five thousand acres and not more than ten thousand acres, fifty per centum. For all persons or corporations that own over ten thousand acres, the taxes so regularly and legally assessed as aforesaid shall be doubled. There shall be elected at the general election to be held on the first Wednesday of September, eighteen hundred and seventy-nine, and eveiy two years thereafter, one citizen in each Congressional District of the Mate, to be voted for by districts separately, who shall, after being duly qualified, together with the Governor, the Surveyor-General, the Attomey-Geueral, and the Controller of State, constitute a State Board of Eqnaliiation, with full power to alter or modify, increase or diminish the assessments returned by the County Aseessors, both as to the entire valuation of the county, and as to individual assessments ; but the State Board shall not have power to abate the per centum of increase on Uie reguhu- and legal rates as prescribed in this section against the owners, individual or corporate, of lands in excess of one thousand acres. There shall be no appeal from the decisions of the State Board of £(malization. fieierred to the Committee on Revenue and Taxation. BI0HT8 OF rOBEIONEBS. Hb. freeman introduced the following fn\)posed amendment to the Constitution, in relation to the rights of foreigners : SicTioH — . Foreigners belonging to any race any of whose mem- ben are entitled to naturalization under the laws of the United States, and who are or who may hereafter become bona fide residents of this State, shall enjoj^ the same rights in respect to the possession, enjoy- ment and inheritance of property, as native-bom citizens. All other foreigners shall have no capacity to own real estate, nor to make wills, nor to acqnire property by inheritance, nor to bring or maintain any action or proceeding in any Court of this State. Referred to the Committee on Preamble and Bill of Rights. ID BBLATION TO LIBBL. Mb. MAITSFIELD introduced the following proposed amendment of section nine, of article one, present Constitution, in relation to libel : Articlb I. Sue. 9. Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right ; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions, or indictments for libels, the jury shall first render a verdict assuming the matter charged as libelous to be true, whether the matter charged as libelous was pub- lished with good motives and for justifiable ends, or that it was not so pnblished. If the jury return a Verdict that the matter was not so published, thereupon the defendant shall be deemed guilty as charged, and shall be sentenced as required by law. If the jury render said first verdict, thttt the matter charged as libelous was published with jood motives and for justifiable ends, thereupon, and before the same jBiy, the truth may be given in evidence, and if it appear to the jury that the matter charged as libelous is true, the defendant shall lie acquitted; if it do not appear to the jury to be true the defendant shall be convicted and sentenced as required by law; the jury shall have the riritt to determine the law and the fact. SefiBrred to the Committee on Preamble and Bill of Rights. ROTICK or BBCONSIDBBATIOir. Hb. STEDMAN. I desire to give notice that on Monday I will move to reconsider the vote by which the resolution of this morning was adopted, changing the officers. Mb. ilS'SlS. Did the gentleman vote in the affirmative? Thk president. Did the gentleman vote in the affirmative? Mb. STEDMAN. It makes no difference under rule thirty-seven, which reads as follows: "Ob the i»j mieeeeding that on which a final rots on anj proposition or rasolii- tlon oonceming the CoiuUtatloii, or other reaoliitioD, baaoeen taken, nid vote nay be reconHlderod on motion of anj membor.*' The president. The gentleman most have voted in the affirma- tive before be will be entitled to give the notice. Mb. TINNIN. Let me read the rest of the rule which the gentleman omitted. I will read the entire rule. It reads as follows : On the daj succeeding that on which a final vote on any propoeftion, or roeolntion conceminK the Oonstitntfon, or other resolntion, hu been taken, aaid vote may be reconsidered on motion of any member; pnvided^ notice of intention to move such reoonrideratioQ shall liave been glTen on the day on which such final vote was taken by a member Totlng with the majority; and it shall not ht in order for any menil>er to more a reconaidemtioit on the day on which such final vote was taken. Such motion of reoonsidemtion stiall hare precedence over evenr other motion, except a motion to a4touni. No notice uf reoonaideration shall be In older on the day pre- ceding the last day of the session. The very rule which the gentleman invokes says that the notice must be given by a member voting in the affirmative. Mr. STEDMAN. I wish to read Cushing's Manual. Thk president. The Chair has ruled the notice out of order under the rules. Me. STEDMAN. Then I wish to appeal from the decision of the Chair, and I desire to read from " Cushing's Law and Practice of Legisla- tive Assemblies," page five hundred and seven. Mb. ROLFE. I rise to a point of order. The president. There is already one point of order; the gentle- man from San Franciscan Mr. Stedman, will proceed. Me. STEDMAN. Cushing says: " When no division of the house takes place, all the members present are deemed to have voted with Uie majority, and any member may move a reconsideration." Now, no division of the house has taken place, and I must be deemed to have voted with the majority, and, therefore, ray motion is in order. The president. Rule thirty-seven supersedes that, and abso- lutely provides that a member must have voted with the majority before he can give notice, and the Chair so decides, from which decision of the Chair the gentleman takes an appeal. Mb. STEDMAN. I withdraw the appeal. ADJODBKMBIIT. Mb. NOEL. I move that the Convention do now adjourn until Mon- day, at ton o'clock. Mb. EDGERTON. I move to amend, that the Convention do now adjourn until Monday, at three o'clock. The president. A simple motion to adjourn is not amendable. The motion to a4joum was lost. PROPOSITIOKS AKD BEgOLDTIONS BKLATINO TO TBI CONSTITITTIOII. The PR:^IDENT. Propositions and resolutions relating to the Con- stitution are still in order. IE BBOARO TO ALIENS. Mb. RINGGOLD introduced the following proposition, to restrict privileges to persons ineligible to become citizens: All persons ineligible to become citizens under the naturalization laws, or prohibited by intomational treaties, shall not enjoy such rights and privileges as are conferred upon native-bom. Referred to the Committee on Preamble and Bill of Rights. MCMICIPAL OBOANIZATIONS. Mb. eager introduced the following proposition to amend the Con- stitution, in re^rd to county, cit^, and town governments : Sbotioh 1. The several counties of this State, as they now exist, are hereby recognized as legal subdivisions of the State. Sec. 2. Goxyaiy seats shall not be removed by special law, but such removals may be provided for by general law. No county seat shall be removed unless two thirds of the qualified voters of the county shall, at a general election, vote in favor of such removal. A propoeition of removal shall not be submitted in the same county more than once in five years. Sec. 3. No new counties shall be established which shall reduce any county to less than four hundred square miles, or to a population of less than ten thousand inhabitants; nor shall any new county be formed of less area or containing a less population ; nor shall any line thereof pass within t«n miles of the county seat of any county proposed to be divided; nor shall a county be divided, or have any portion taken therefrom, unless a majority of all the qualified electors of the county or counties affected, voting at a general election, shall vote therefor. New counties when created, or portions of a county when added to another county, shall be liable for and obliged to pay their just proportion of all debts and liabilities then existing of the county or counties out of which they are respectively formed or taken. Sec. 4. The Legislature shall establish a system of county and town- ship governments which shall be uniform throughout the State. Sec. 5. County officers shall consist of Boards of Supervisors, Sheriffs, Coroners, Recorders of Deeds, Auditors, Clerks, Treasurers, Surveyors, District Attorneys, and such others as may be esteblisbed by law, who shall receive such compensation and perform such duties as may be pre- scribed by law. No Sheriff or Treasurer shall be eligible for the term next succeeding the one for which he may be elected. County officers shall be elected as prescribe by law. No person shall be eligible to a county office unless be has been a citizen and a resident within the county for two years next preceding his election or appointment. Sec 0. The Legislature, except as otherwise in this Constitution pro- vided, shall provide for the election or appointment of such county, township, and municipal officers as public oonvenienpe,,may requira, Digitized by VjOOQ IC 222 DEBATES AND PROCEEDINGS Monday, with such duties as mny be prescribed Inr law. It shall, bj laws uniform in their operation, regulate the fees of all county officers, and for this fmrpose may classify the counties by population ; and shall provide by aw for the strict accountability of alt county and township officen, as well for the fees which may be collected by them as for all public or municipal moneys which may be paid to them. Sic. 7. Supervisors shall oe elected . Sec. 8. Corporations for municipal purposes shall not be created by special laws; but the Legislature by ^neral laws shall provide for the incorporation, organization, and classification, in proponion to inhabi- tants, of cities and towns; and cities and towns heretofore incorporated or created by special laws may become organized under and subject to such general laws. Cities and towns, having a population of at least ten thousand inhabitants, may become incorporated under general laws whenever a majority of the electors thereof shall at a general election vote in favor of the same. Bbc. 9. In any county having a city therein containing over one hundred thousand inhabitants, the city and county governments thereof, with an area of less than four hundred square miles, may be consoli- dated into one municipal government, and may be incorporated under general laws providing for the incorporation and organization of cor- porations for municipal purposes. The provisions of this Constitution applicable to cities, and also those applicable to counties, so far as not inconsistent, shall be applicable to such consolidated governments. In consolidated city and county governments there shallbe two Boards of Supervisors or houses of legislation ; one of which, to consist of twelve persons, shall be elected by general ticket from the city and county at large, and shall be so classified that six shall be elected every two years. In the election of Supervisors by general ticket from the city and county at large, each qualified elector shall vote for no more than one half the number to be elected, and the persons having the highest number of votes shall be elected. Any casual vacancy in the office of Supervisor in either Board shall be filled by the County Judge. Skc. 10. Any city having a population of more than one hundred thousand inhabitants, may frame . Sic. 1 1 . The term of any county, city, town, or municipal office shall not exceed years; and no person shall be eligible thereto unless he has been a citizen and resident of such county, city, or town, respect- ively, for years next preceding his election or aiipointment. Sic. 12. No county, city, town, or municipal officer shall receive to his own use, in Alary or fees, more than thousand dollars for any one year. Any such officer receiving fees shaTl make returns quarterly to the of all fees by him received and disbursed, staling tne same fully in detail, verified t>y bis oath ; and for any statement or omission in such return, contrary to truth, such officer shall be guilty of peijury, and may be prosecuted and punished therefor as prescribed by law. The Legislature shall also provide for the removal from office of county, city, town, and municipal officere, for willful, corrupt violation or neglect of official duty. Sic. 13. The compensation or fees of any county, city, town, or municipal officer shall not be increased after his election or daring his term of^ office ; nor shall the term of any such officer be extended beyond the period for which he was elected or appointed. Sio. 14, No county, city, town, or other public or municipal corpora- tion, nor the inhabitants thereof, nor the property therein, shaJl be released or discharged from their or its proportionate share of taxes to be levied for State purposes, nor shall commutation for such taxes be authorized in any form whatsoever. Sio. 15. Taxes for county, city, town, and school purposes may be levied on all subjects and objects of taxation; but the valuation of property therefor shall not exceed the valuation of the same property tor State purposes. Sec. 16. The Legislature shall have no power to impose taxes upon counties, cities, towns, or other public or municipal corporations, or upon the inhabitants or projierty thereof, for county, mly, town, or other municipal purposes, but may, by general laws, vV in the corporate authorities thereof the power to assess and collect taxes for such pur- poses. Sec. 17. The Legislature shall not delegate to any special commis- sion, private corporation, company, association, or individual, any power to make, control, appropriate, supervise, or in any way interfere with, any county, city, town, or municipal improvement, money, property, or effects, whether held in trust or otherwise, or to levy taxes or assess- ments, or perform any municipal functions whatever. Sio. 18. No State office shall be continued or created in any county, city, town, or other municipality, for the inspection, measurement, or graduation of any merchandise, manufacture, or commodity ; but such connty, city, town, or municipality may, when authorized by law, and the public interest demands it, appoint such officers. Sic. 19. Private property shall not be taken or sold for the payment of the corporate debt of^ any political or municipal corporation. Sec. 20. All moneys, assessments, and taxes belonging to or collected for the use of any county, city, town, or other public or municipal cor- poration, coming into the hands of any officer thereof, shall immediately on the receipt thereof be deposited with the Treasurer, or other legal depositary, to the credit of such city, town, or other corporation respect- ively, for the benefit of the funds to which they respectively belong. Sec. 21. The making of profit out of county, city, town, or public school money, or using the same for any purpose not authorized by law, by any officer having the possession or control thereof, shall be a felony, and shall be prosecuted and punished as prescribed by law. Sic. 22. No county, city, town, township. Board of Education, school district, or other political or municipal corporation, shall incur any indebtedness or liability in any manner, or for any purpose, exceeding in any year the income and revenue provided for them respectively for such year, without the assent of two thirds of the voters thereof voting at an election to be held for that purpose ; nor in cases requiring such assent shall any indebtedness be incurred (except by a county to erect a Court-house or jail) to an amount, including existing indebtedness, is the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the assessment next before the last assessment for State and county purposes, previous to the inrurrinf; such indebtedness; unless, before or at the time of incurring such indebtedness, provision shall be made for the collection of an annual tax sufficient to pay the interest on snch indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within twenty years from the time of contracting the same. 8x0. 23. No county, city, town, or other public or municipal corpora- tion, by a vote of ita citizens or otherwise, shall become a subscriber to the capital stock, or a stockholder in any corporation, association, vt company, or make any appropriation, or donation, or li%n ita credit to, or in aid of, any person, corporation, association, company, or insti- tution. Sic. 24. No law shall be passed by the Legislature granting the right to construct and operate a railroad within any city, town, vulace, or on any public street or highway thereof, without the consent of tne municipal or other proper local authorities having the control of sudi street or highway proposed to be occupied by such railroad. Skc. 2i. Before any public work or improvement of any description whatsoever shall be made m done, in any city, in, upon, or about the streets thereof, or otherwise, the cost and expense of which is made chargeable or may be assessed upon private property by special assess- ment, an estimate of such expense shall be made, and an assessment, m proportion to benefits, shall be made and levied on the property to be benefited, and shall be collected and paid into the city treasury before such work or improvement shall be naade, or any contract for letting or doing the same shall be authorized or performed. Sic. 28. The Legislature shall not pass any local or special law ia the cases following : Regulating the affairs of counties, cities, towns, townships, wards, city or county Boards of Education, school districts, or other political or municipal corporation or subdivision of the State; Authorizing the laying out, opening, altering, maintaining or vacat- ing roads, highways, streets, alleys, town plats, or porks; Relating to cemeteries, graveyards, or public grounds not of the State; Locating or chan^ng county seats ; Incorporating cities, towns, or villages, or changing their charters; Creating offices, or prescribing the powers and duties of officers in counties, cities, towns| townships, or acnool districts; Regulating the fees or extending the powers and duties of county or municipal officers; Reflating the management and maintenance of pnblie schools, the building or repairing of school houses, and raising of money for sodi purposes; Extending the time for the assessment or collection of county, eity, or other municipal taxes, or otherwise relieving any Assessor or Collector of county or city taxes from the due performance of the official duties, or their securities from liability ; Legalizing the unauthorized or invalid acts of any officer or agent of any county or municipality thereof; Directing the payment of money out of the treasury, or by any offieer, of any county, city, or town, without the consent of such county, d^, and town. Referred to the Committee on City, County, and Township Organia- tions. ADJOCRKMINT. Mr. EDGERTON. I move that the Convention now adjourn until three o'clock on Monday. It is only one hour after the regular time, and it will benefit the gentleman from San Joaquin, Mr. Terry, and the gentleman from Santa Clara, Mr. Laine, who lire on the line of ihat road, and who cannot get here until forty-five minutes past two, and it seems to me, that gentlemen might be a little acoommoaating. The motion prevailed oy a vote of eighty-one ayea, and at eleven o'clock and ten minutes, the Convention adjourned. THIRTY-FIRST DAY. Sacbahchto, Monday, October 2%h, 1878. The Convention met pursuant to adjournment, at three o'clock r. i., President Hoge in the chair. The roll was called, and members found in attendance as follows: Andrews, Ayers, Barbour, Barry, Barton, Beerstecher, Belcher, Bell, Biggs, Blackmer, Boggs, Boucher, Brown, Burt, Campbell, Caples, rmBHT. Chapman, Evey, Charles, Fanell, Condon, Fawcett, Cowden, Filcher, Cross, Finney, Crouch, Freud, Davis, Garvey, Dean, Glascock, Dowling, Gorman Doyle, Grace, Dudley, of San Joaquin, Graves, Dudley, of Solano, Gregg, . Dunlap, Hale, Edgerton, Hall, Estee, Harrison, Eetey, ^-Panrey, Digitized by Garre/, . oogle Oct. 28, 1878. OF THE CONSTITUTIONAL CONVENTION. 223 Heiskell, Eerold, Herriogton, Hilborn, Hitchcock, ' Howtrd, Hughoy, Huoter, Inman, Jones, Joyce, Kelley, Kenny, Keynes, Kieioe, Lkine, Lunpaon, Lariun, I«rue, LkTigne, Lewis, Lindow, Mui|a«ld, Hiitin, of Alameda, HeCaUum, HeComai, llcConnell, McCoy, McFarUnd, HcNutt, Mills, Moffat, Moreland, Morse, Murphy, Kaaon, Nelson, Keunaber, O'Donnell, O'SuUivan, Oyerton, Porter, Prouty, Pulliam, Beddy, Reed, Rhodes, Ringgold, Rolle, Schell, Schomp, Shoemaker, Shurtleff, Smith, of Santa Clara, Smith, of 4th District, Soule, Stedman, Steele, Stevenson, Staart, Swenson, Swing, Terry, Thompson, Tinnin, Townsend, Turner, Tuttle, Vaoquerel, Van Dyke, Van Voorhies, Walker, of Tuolumne, Waters, Weller, Wellin, West, Wickes, White, Wilson, of Tehama, Wilson, of Ist District, Winans, Wyatt, Mr. President. Barnes, Beny, Cueerly, Eagon, Freeman, Huestis, Shatter, Johnson, Smith, of San Francisco, Martin, of Santa Crui, Strong, Miller, Sweasey, Koel, Tullv, Ohieyer, Walker, of Marin, Holmes, Reynolds, Webster. I.CATB OF ABSHtCl. Leave of absence for one day was granted Messrs. Ohieyer, Noel, and Smith, of San Francisco. Leave of mbeenoe for three days was granted Mr. TuUy. Indefinite leave of absence was granted Mr. Holmes, on account of nckness. THS JODBHAL. The Joamal of Saturday was read. Mr. LARKIN. I see that the resolution offered bv Mr. Tully on Saturday has been put in the Journal. I understood that the proposi- tion was ruled out of order, and if it was, it has no business in the Jour- naL I move to amend the Journal so that that resolution be stricken oat Tai PBBSIDKNT. It will be stricken out It was ruled out of order. Ms. McCAUiUM. It seems that some matters get into the Journal very improperly, and as this Journal is to be corrected, I understand that by unanimous consent the Convention will agree to amending the Journal, also, in respect to certain entries that were made about a week ago, about a certain owl. I ask that the Journal be corrected so that nothing will appear in it upon that subject Such things have no busi- ness in the Journal. Tri president. With the unanimous consent of the Convention, the Chair will direct the amendments to be made. So ordered. Mb. LARKIN. I believe it to be the sense of this Convention, and I will move that the President, before signing the Journal, examine it, and strike out any matter that is not pertinent The Journal was then approved as corrected. DOOBKEBrBB AHD PAOBS. Mb. stedman. I ask leave to make a motion out of order. Mr. President: 1 move to rescind the second resolution reported by the Com- mittee on Mileage and Contingent Expenses, adopted last Saturday. The resolution was as follows : 'Baolvtd, That the serrices of one Doorkeeper and two Pages ba dlipenaed with, •ad that the 8ergeaat.*t Arm* deiigoate the penoD* to ba diicharged." The reason that I desire to make that motion is that if it is carried, which I have no doubt it will be, I desire to offer a resolution. Now, Mr. President, I am satisfied that a great many on last Saturday voted under a misapprehension. From conversations I have had with several gen- tlemen belonging to the Convention, I am satisfied that there is a great dimatitfaction at our action in adopting that resolution, from the fact that by the adoption of the resolution two small boys are to be dis- charged. It was asserted by one of the Committee on Contingent Expenses that they did it on the ground of economy. Now, we find that by the adoption of the resolutions on Saturday, one Doorkeeper, at five dollan a day, and two Pages, at three dollars a day each, were dis- charged. Total, eleven dollm. Then two Porters were appointed at four dollars a day each, making eight dollars a day, and the actual sav- ing would be only three dollars a day, which is very small. I do not, for myself, and I believe a majority of this Convention do not, desire to •ee two small boys discharged to make so small a saving. Furthermore, Mr. President, I believe that we have enough help in this Convention aa it at present stands, if there it a different arrangement made. The resolntion I propose to offer would be this: taolvtd. That the Sergean^M-Anna detail two of the Doorkeepers u Porters and l«»«r the Pa^ai l)ootkeep«t> for the side doom. I hold that these side doors can be properly attended by two Pages as well as by two Doorkeepers, and I do not propose that we shall discharge either one of the gentlemen at present occupied as Doorkeepers, but that they be detailed as Porters. I think that would give satisfaction to every member of the Convention, and two small boys would not be dis- charged. I believe that the most of these boys whom we have employed here belong out of this city. They have come here at some expense, and perhaps some of them have been to some expense in appareling them- selves in a neat manner so that they might serve as attaches, and, Mr. President, I really hope that the Convention will rescind this motion and adopt the resolution. Ms. KOLFE. Before I cast my vote to detail a Doorkeeper here to porter work, I shall want to know whether that Doorkeeper is going to accept the service as Porter. We have employed them here as Door- keepers. The position of Porter may not be acceptable to them. I ungot any right, in any such way, to tear it away from him. These boys were appointed — and the gentleman from San Francisco is correct — there was an implied understanding that these boys should remain here until the end of the session. Some of them are not residents of Sacramento. They come from other towns in this State, and they are here for the purpose of bettering their condition, hoping to be enabled to better it financially and to mtter it physically. It is a school for them, and they are aiding and assisting their destitute and aged parents. This leaves the whole power of expulsion in the hands of the Sergeant-at-Anns, for he dictates, and one goes, and the other remains. I will say that I should not like to see that boy who has a blind father expelled from here, and that blind father deprived of the support of that son. It is one of the American principles to give the boys a chance, and I shall always vote to give the boys a chanoe, and I hope that these boys will be allowed to remain here, and that these few paltry hundred dollars will go to these boys and their needy parents. This Convention can never do a nobler act, and besides, it seems to me, that this is a matter for the President — the appointive power. The resolution was rescinded. j Mb. EELLEY. I hold in my hand a petition from several religious denominations, signed by about eighteen hundred persons, protesting against the use of the word " Sunday," in the proposed Constitution. I believe the proper committee to have it referred to has already made a TepoH, and I desire to introduce it and have it referred to the Committee of^the Whole, and laid on the table until the question shall come up : To the honoimbls d«la(at«s of the Constttntlonsl ConTention of ths Statu of Csll- Ibmis, SacTkmoiito : At the annusl meetlDg of the Gonferanoe of Serenth-day Adrenttets of the Stste of CalUbmU, hrld at Yountrille, Mspa Gountjr, Septembor Sfth, elKfateeD bundrod aud seventr-eigbt, the fulloving pr««nible and reeoluUons were adopted; WntaKAB, Au effort is being made, by tboee wbo obaerre the first day of the week aa the Sabbath, to have incorporated in the new Cooatitution of the Slate of Cali- fornia a clause recognising the eaid firat day of the week aa the Sal>b«th,and requir ing the Legifilature to enforce ita observation by tegialatire enactment ; and. Whereas, There U not In the entire Bible, either Old or New Teslaoirnt, a single Srecept, requiring the obaerrance of the first day of the week as a Sabbath or holy ay; and, Whereaa, There la not in either the Old or New Teatament a fingle record of the ilist day of the week ever liartng l>een obaerveU aa a Sabtjath, or aa a holy day, by either Christ, the apoatlea, or early Christians; and. Whereas, The seventh day of the week, commonly called Saturday, la the only weekly Sabbath referred to in either the Old or New Teatament ; and, Whereaa, There ia not to 1m found in tlie entire Bible any text of scripture from which even a reasonable inference can be drawn tliat the fourth commandment of the decalogue, which mqnirea the obaenrance of the ssventb day, has been abrogated and tlwt the Sabbath liai,t>een changed ; and. Whereas, There exiata in tliia State a large body of Christiana (the Ssventh-day Adventiata), who are good and law-abiding cttisena, who observe the seventh day of the week aa the Sabbath, as requited in the Bible ; therefore. AeMfoed, Tliat this Conference appoint a committee to visit the Convention and sst tiel<>re it the facts regarding the religiooa aentlmenta and practicea of Seventh- day Advenlists, and to endeavor if poasiblx to induce the Oonveiition to abauia from incorporating in the lald i;onatitution any claoae that siiall in any way give prefer- ence to the religious opinions of any religious body, or that ahall in any way bind the oonacience of any person, or that aluul in any way interfere with the religious oplnioiia of any person. Baolvtd, That said committss be anthotlsed to cireolata petltioos rslatlng hsrsto for signatures. Now, thereC>re, we, the undeislgned ciUiens of the State of California, in accord- ance with the principles set forth in the foregtilng preamble and reaolution, respect* fully petition your honorable body that the Constitution of this State, In reference to the Sabbath day, and oil other religious questions, be framed in harmony with the principles of the Constitution of ths United States, IwUeving the free exerdae of conscience in religioas faith and practice to be the acme of republican government. Referred to the Committee of the Whole, to be taken up with the report of the Committee on Preamble and Bill of Bights. Mr. HERRINGTON. I desire to offer a couple of propositions with reference to the Constitution, if there is no objection. OOHHtTNICATIOH OK C0BP0BATI0N8. Tn PRESIDENT. The Chair has received a communication fi»in the Secretary of State, in response to the resolutions passed by Uie Goo- vention on the eighteenth and twenty-second instant. The Seecelaiy will read it. TBI SECRETARY read: Ststi or CAUroaniA, DBraaniBNT or Stats,) SacaaJiurro, Octobsr 26th, 1878. J To the President and msmbeis of the Conatitntional Convention: OKNTLXMUt: In reapoBse to the resolutions paaaed by tike Convention tm tlM eighteenth and twenty-aeoond inatanta, calling upon me for Inlbrmation in mpect to the corporatlooa formed under the lawa of thia Slate, I Itave ths honor to reply li followa : I am not awora of any law requiring corpontiona going out of existenoc te tm- nish to the office of the :*ecretary of State any itatament evidencing tliat Uct ; aiU there is no offlciol data in my ofllce that would furnish information on that polat; therelbre, " the number of ctirpomtiona iwie exittin^ ia ths state of Calilbniia,'' is required by the first anbdivisioQ of the raaointion cannot lie oacerlained. Aa the pooaiUlity of anaweriog the secimd and third snbdiviaion of the resolstloa rests upon the noaaililltty of answering ths first. It followa that neither ths cafilal atock nor the plocss of bnsineaa of coi^orations now existing con Iw stated. Assuming that the resolntlon requires only th'^ number, etc., of articlea of incor- poration Oft JUe in thia ofllce, I shall give that Information to the beat of my aUlity. The number of articles of incorporations on file Is nineteen tbouaand four has- dred and seventy-fiva, sad their classification la as follows: Newspaper, artesian well, raca track, aerial navigation, homeatead, railroad. Stale snd county fiiir, disttlct fitir, ice, oil, scida, quicksllVer, (Tult, wood, hotel, insaraaee, wine, ahip building, arta, aewing machine, iron, ttume, tiuiiding, peat, toll roads, lead, aaaaying, ateam, commercial, land, bathing, coal, park, dgor, horticultuia], rope, rec- lomatioB, glove, redactiooworltB, cloth, real estate borvaa^ wool, fertiliBing,watsk, Ire, jewelry, gss, medical, stage, stone, transportation, wliaif, inigating, liquor, chemical, linen, warehouae. aoda water, iron, theater, brick, paving, tolNMxu, paddag, raiajoa, fbmitura, powder, water, lalior exchange, sugar, marble, beat clnb, sulphur, river, cemetery, ditch, expreoa, cement, acbool, coSperative, lime, milla, atraet railtoadt, danger signal, glaoa worka, granger, hall, aportaaian^ club, Jock^ club, rioeyaid, fire-anne, leveeing, ferry, oyster, conuing, wood, ahip Irailding, bonka, dinrdiM, min- ing, carriage and wagon, niilla, laundry, botanic garden, el^Mc power, wire worin, bridge boildlng, steamboat building, poultty and game dealers, hock and cab, dredg- ing, mualcal, live stock, telegraphic, brewing, tunnel, canal, lumber, printing, pub- iifhing, eollegea, aocieties, agricultural, mechanical. The reaolntioQ, in Its second and third solidiviaioas, calta Ibr a atatament of Ike " aggregate amount of the capital stock of all sold corporations, and the aggtvpUa amount of mid capital atock of each cloaa thereof,** and a** detailed atatemeat of tbe principal placeaof busiacaaand location of the principal offlcesof sold corpaatloaa** I most raapoctfaily eubmit to your honorable body, that a oompllanca with ao much of the reaolntion aa Is above quoted is impossible with the clerical force at siy disposal. The aggragata of the certiflcatea of incorporation on file in tlie oAce of the Sscratary of State. naml>er nineteen thousand four hundred and aeventy.fiva. Theae certiflcatea are recorded in forty-three large volumeo, without regard to their cloasification. AU of my prrdecaaaors adopted thia practice, and it haa b.>eu followed by ms. I am alao requested to give a ** detailed atatemeot of the amount of copilal atock actually paid up by all said corporations.** Prior to the admitlon of the Codes, the only corpcratioas organising under the lawi of thia Stats, wliich ware required to make aay atatement in reapect to the aaooat of their capital atock actually paid up, and to nintish evidence thereof to tlie Sects. toiy of State, wera the following, to wit: railroad companies, and steam navigatioa companiea. Plank and turnpike rood companiea, and bridge companies, ware required to file a ahowing of this cbiaiacter with Oionty Clerks, and to tamlah the Secretory of Stats with a certificats that they had compiled with the hiw. The long liat of other companiea having the right to Inoosporats, and whose cer* dficatas or iacofpontioa occupy the great balk of the books apptoptiited to tlHir record in my olllee, were not required to (tomlah the Secniary of State with any evi- dence In reapect to the payment of any portion of the capital atock. The Codef require ** the articlea of incorporation of any railroad, vragon-road, or telegraph swh elation ** to aute " that at least ten per cent, of ths capital atock snfaKribed has been paid In to the Traasorer of tiia intsnded corponlioii.'' All others seem to be exempt from the requirements. Neither the books of the oBke nor the indexes to ths contents thereof; have beta so kept aa to enable any one to segregate the certificates of such incorporated com- naiii«« aa have lieen required by law to exhibit the amount of capital stock paid in, nom certificates not reqnired to make snsh sbovring, hence it must be msnifest to the Convention that a vaat amount of clerical labor would ba neqaired to cemfly with thia rvqneat in tills particular, aa each aod every osrtiOeate woaM have to undergo a critical examination. The Btatutea of the State define my dntiea with unmiatakable particularity, sad the Legislature, in making appropriationa to meet the current expcnaes of my office, hss dealt with me with rixid exactnoaa. There ia no Urgent Necessity Fund st ay disposal, to meet extraonilnory calls upon my clerical force. If I were to detail a aullldent force to perlbrm the dutlsa required by ths reMlatioD, other duties imposed by the atatutes would neceaaorily bs left unperformed. I aaanme that the infomuttion sought by the Convention Is Important In Uie ialar^ est of the people of the State, to enable the Oinvention to act nnderstandlngly spon aome contemplated provision of the fundamental law. In thia aspect, aad bdng muet deairous to fkcilitate by any means in my power the purposes of the Oonves* tion, I most respectfully request the appointment of a select committee to confer with mo in reapect to the beat mode that can l>e adopted to lay before the Omveotida the Information which it aeeks. 1 have the honor to remain, Tour obedient aerrsnt, THOMAS BBCK, Secretary of State. Mb. hale. It is very difficult for many members on this floor to hear the reading of any document at the Clerk's desk, notwithstanding the Clerk reads just as well as any gentleman reads. I have therefore but imperfectly heard the reply that has been made by the Seoetaiy to the resolutiiin; in fact, to the two reaolutions that have heretofore been adopted aud addressed to him by this body. From what I could catch of the report, I think it contains some valuable information audsniKe'' tions. Now, sir, I believe the whole subject of corporations of the Suts of California is a veij interesting and suggestive subject to the people at large. Both for their information and for the information of this Con- vention, I rise to move that the report be printed and laid upon our desks, so that the people as well as ourselves may know its contents. I sutKest four hundred and eighty copies, as the rules provide. The motion prevailed, on a standing vote — ayes, 82; noes, 53. raoposiTioKs. Thb PRESIDENT. The next order of business is the introduction of propositions and resolutions relative to the Constitution. OaiNBR. Mb. ESTEE introduced the following proposed amendment to the Constitution, relative to foreigners who cannot become citta»ns: Section — . No person sukll hereafter be permitted to oome to thil Digitized u Oct. 28, 1878. OF THE CONSTITUTIONAL CONVENTION, 225 state ukI reside pemutDently thereia who, hj the pronni laws of the Uaited States cannot beoome a citizen of the United Stales and of this State; and the L^slatore shall make suitable provisions to enfbrae this wctiou. Bsfarred to Committee on Chinese. ■KACTHIMT or LAWS. Ul HERRINGTON introduced the following pn^KMed amendment to the Constitution, relative to enactment of laws: LaoiSLATivs DEPArmirr. Sicnoic — . Every law enacted hj the Legislature shall have but on* (abject, and that shall be embraced in the title. No law shall be lerised or amended by its title ; but in such case the Act revised or sec- tion amended shall be reSnacted and published at length. Before final paSMge every joint resolution or bill snajl.be read at length three times in eaeh house. Each reading of a bill'or resolution in each house shall be on a different day. On the final passage of all bills and joint resolu- tions the vote shall be taken by ayes and noes, and be entered on the Journal. Every bill and joint resolution shall be printed before being Toted apon. No bill or joint resolution shall beoome a law or be in force without the concurrence of a minority of the members elected to each house. Bebrred to Committee on Legislative Department. JCBT STBTIM. Ml. CAPLES introdooed the following resolution : ▼huias, Varlona amendments and pcopoaltiona kava ItMn prasaotcd to this Oon- TutioD looking to changea or modiflcaUoaa of tho jury aystam : thorvfbre, Baolted, That the Committm on Jndlclanr ba Inatnietad to Inquire at ita earlieat goaTCslaoca wbatber ttaa proTiilana of the Uonatttntlon of the Unitad Btataa ralatiiig to trial bj Jni7 apply to State Oourta and the admlniatratioii of State lawa. rowis OF HUnciPAi. ooaroBATioHS. Mb. HERRINGTON offered the following proposed amendment to the CoDstitutiiin, restricting the power of municipal corporations, etc, from oontraeting debts and creating liabilities. LBOISLATIVB OBPAXTHBHT. SicnoR — . It shall be the duty of the L^slature to provide by law ibr the organisatioa of cities and incorporated towns and villages, and to rtstrict their powers of taxation, assessment, borrowing money, contract- ing debts, and loaning their credit, so as to prevent abuses in assessments and in contracting debts and liabilities by such municipal corporations ; and no mimiciinl corporation or political subdivision in this State shall crAe any debt or debts, liability or liabilities, that shall singly or rer exceed two and one half per centum of the aggregate true cash of the property in such municipal or political subdivision subject to taxation. Referred to Committee on Legislative Department DisqOAuriCATioii or judobs. Mb. graves introduced the following proposition declaring the dis- oualification of Judges, and providing for the appointment of apecial Judges in certain cases : Bicno* — . No Judge shall sit in any case wherein he may be inter- etfed, or where either of the parties may be connected with him by affinity or consanguinity within the third degree, computed according to the rules of the civil law, or where he shall have been attorney or coun- sel in the case. When a Judge of a Superior Court is disqualified by any of the causes aforesaid, the parties may, by consent, appoint a proper person to try their case; or, upon their failure to do so, a compe- tent person may be appointed to try the case in the county or city and county where it is pending, in such manner as may be prescribed by law. The rulings and decisions of the person so appointed shall have, as to nch case, the same force and effect as though made by a regular Judge of the Court. The disaualification of Jud^ of the inferior Courte or tribunals shall be remeoied, and vacancies in their offices shall be filled as prescribed by law. Beierred to Committee on Judiciary and Judicial Department. ASSBSSMBHT Or LAHD8. Mb. FAWCETT introduced the following proposed amendment to the Constitution, relative to the assessment of lands, to be incorponUed in the article on taxation and revenue : SicnoM — . Every tract of land containing within its boundaries more than one ^vemment section, shall be assessed for the purpose of taxation by sections or fractional sections ; and where the section lines have not been established by authority of the United States, the Asses- sor and County Surveyor sh^l establish the section lines in conformity with the government system of surveys as nearly as practicable. Eacn •ectioQ or fractional section shall be valued and assessed separately ; and for the purposes of subdividing and assessing, the Assessor and Surveyor and their assistants, may enter upon any l^d within their reqiective counties. Referred to the Committee on Revenue and Taxation. OBIHESI. Mb. O'DONNELL offered the following resolution : Saohed, That it is incumbent upon this Convention to incorporate in Uie new Conatitotion a new section which shall forever disqualify aliens of Asiatic descent — first, from exercising the right of suffrage; second, from holding and conveying real estate; third, testifying as witnesses in the Courts of this State in any matter, civil or criminal, in which the intsnats of white men are concerned; fourth, interfering with the fisheries of California. Mb. ROLFE. I rise to a point of order. That resolntion is not in the fiirm prescribed by the rule, which requires a jiropositton to be in the form of a section so as to be placed in the Constitution. 29 Thb president. The point of order i* well taken. Bend back the reaolution. BKCOOBAQBIIBirr Or IBBIOATIOir. Mb. DOWLINO introduced the following. proposed amendment to the Constitution, relative to the encouragement of irrigation : SaoTiox 1. The right to make a canal may be imposed compulsory in order to conduct waiers intended for any public use which does not require the formal appropriation of lands. Sbo. 2. If three lourtna of the owners of an irrigable land district, posseasin^ at least two thirds of ita area, wish to form an irrigation cuial, the remaining fourth of the owners may be compelled to join the under- taking. Sbo. 3. The LegisUture shall provide for the division of the State into three irrigating districts, to be called the Southern, Middle, and Northern Irri^Uion Districts, and shall also make subdivisions if neces- sary. Bio. 4. The cost of building or constructing an irrigation canal or ditch shall be apportioned equally on the land to be irrigated, and said cost shall be confined to the district in which said lands are situated. Sbo. 5. All irrigation canals and ditches shall be considered a part and parcel of the lands assessed for their construction, and no irri^ttor can sell his land without selling his water right also. Sac. 6. After the cost for oonstnicting a canal or ditch is paid, the irrigators shall never have to pay any more, except that which is neces- sary to keep the said canal or ditch in repair. Sbc. 7. The State shall always exercise supervisory control over said canals and ditches. The Legislature shall enforce the foregoing provi*- ions by appropriate legislation. Referred to the Committee on Water and Water Rights. OITT, OOCIITT, AICD TOWKSBIP OBOAHIZATIOBg. Mkt. VACQUEREL introduced the following proposed amendment to the Constitution, on city, county, and township organizations: JUsolved, That there shall be established in each county of this State a jury, composed of nine members, whose duty it shall be to act as ariiiters in all questions arising between labor and capital; said jury to be voted for by the people at all municipal elections. There shall be no pay attached to such position. Referred to the Committee on City, County, and Township* Organ- izations. HomsTBAns. Mb. barton introduced the following proposition to amend article eleven, section fifteen, of old Constitution, m relation to homesteads : Amend article eleven (U), section fifteen (15), of old Constitution, to read as follows : The Legislature shall protect by law, from forced sale, a certain por- tion of the homestead and other property of all heads of families. A homestead shall be invalid until a declaration of the same is filed for record in the office designated by the Leoslature; and no homestead shall be exempt from any debt contracted uter its acquisition and before the filing of such declaration. Referred to the Committee on Land and Homestead Exemptions. ooimnicBiiBBT or risoAL trab. Mb. HILBORN introduced the following proposed amendment, chang- ing the date of the commencement of the fiscal year : Sbctioh — . The fiscal year shall commence on the first day of January. Referred to Committee on Ijegislative Department IRTBBJIABBIAaB WITH OBIRBSB. Mb. 8TEDMAN introduced the following* proposed amendment to the Constitution, relative to intermarriage: StoTioN — . The intermarriage of white persons with Chinese, negroee, mulattoee, or persons of mixed blood, descended from a Chinaman or negro from the third generation, inclusive, or their living together as man and wife in this State, is hereby probibited. The Legislature shall enforce this section by appropriate legislation. Referred to Committee on Legislative Department OBIHBSB. Mb. O'DONNELL introduced the following proposed amendment to the Constitution, relative to Chinese : Section — . Aliens of Asiatic descent shall forever be disqualified : 1. From exereising the right of suflfVage; 2. From holding or conveying real estate; . 3. From testifying as witnesses in the Courts of this Slate in any matter, civil or criminal, in which the interests of white men are involved ; 4. From interfering with the fisheries of the State of California. Referred to Committee on Chinese. THB OBOBB OF BU8INB88. Mb. EDGERTON. I desire to submit a motion whidi I think ii of importance to the Convention. I move that all that part of rule seven- teen, from and after the sixth subdivision of the Order of Business, be temporarily su^ndedhintil next Monday, the fourth of November. I made that motion after consultation with many gentlemen in relation with the various committees here not now ready to make their report*. The special order for to-day and to-morrow is the report of the Com- mittee on Preamble and Bill of Rights. All the gentlemen desire to be here when the Convention passes upon that I therefore submit this motion, that all that part of rule seventeen, after the sixth subdivision of the Order of Business, be temporarily suspended until Monday, th« fourth day of November. Mb. ROLFE. I second the motion. Mb. McCALLUM. If, of oouiae, it has been undentood, it is uteleai Digitized by Google 226 DEBATES AND PROCEEDINGS Tuesday, to make objection ; but I underat&nd there are three reporta already before the Convention, and the report of the Committee on Preamble and Bill of Righta is one which I understand will take considerable time to dispose of. Now, if there is any reason why we should not get to work in the Convention, I will cheerfully vote for this proposition ; otherwise I suggest that it is about time that we commenced work in the Convention. Thx president. The Chair will surest that all matters must be first considered in the Committee of the Whole Convention. The Pre- amble and Bill of Rights is made the special order for to morrow. Mb. McCALLUH. I would like to have it understood, for other construction is given to it. I understand the Chair to say that we can eo into Committee of the Whole, notwithstanding the motion that has Been made? Tbk president. Yes; it does not affect anything before the " reports of committees." Mb. McCALLUM. All after the sixth sabdivision. Mb. WINANS. The object of that motion appears to me apparent on its face. It is evidently intended to enable the committees to have time and opportunity to act. As the Convention is now constituted, if it proceeds with the discussion in the Committee of the Whole, of articles, or propositions of articles, of the proposed new Constitution, it will necessarily and naturally occupy all the time that is usually employed during the day by committees, and thereby directly exclude committees from going on with the discharge of their duties. There would be no opportunity for committees to sit, because they are strictly prohibited from sitting while the Convention is sitting, and therefore it would be impossible for the committees to get ready in time. This is intended to give the necessary time to the committees, which are faith- fully at work, and which are all conceded to be diligently prosecuting the duties confided to their charge, which they cannot do if the Con- vention is continuously in session. In other words, the virtual recess of the Convention during the afternoons for one week was not long enough. But one committee has made a final report, and there are thirty com- mittees in all of this body. They must have time to work with such care as to make their work proper to be presented to this Convention. They cannot do it if we go on with the consideration of these reports now. It is out of the power of man, however assiduous they may be, unless more time is given ; and I do hope, sir, that in view of the neces- sity of the case, in view of the importance of our movemenU, in view of our having first initiated that which must yet exist, that this motion will prevail. Mr. McCALLUM. I suppose one thing we must agree on. If this motion prevails it will undoubtedly postpone the special order. It can neither be considered in Committee of the Whole or otherwise. I under- take to say that if committees choose to report they can do so, not neces- sarily at once; that there are propositions which will keep this Conven- tion at work from this time forward, until the business shall have been finished; and that when we commence on the Bill of Ri^ts it will be found that we will have business for every day we have. We have been in session thirty days, and have not commenced on a single proposition. I say that there is no reason given for postponing this special order for to-morrow. If the committee must have daytime in which to meet, why, if necessary, after the morning session adjourn over until the next day, so that committees can meet in the afternoon. Mb. JONES. I desire to offer an amendment to the gentleman's motion : that we insert " seventh subdivision " instead 'Of " sixth subdi- vision," for this reason : that if the main motion should prevail there will still remain the offering of propositions relating to the Constitution, and if not allowed to be offered now they will not be considered by the committees. It occupies not a great many minutes, and moreover the committees have until next Monday, if the motion prevails, to take into consideration the additional propositions. Mb. EDGERTON. I accept the amendment. Mb. TINNIN. I offer an amendment : to include the ninth subdi- vision— that is, the special order. Mb. EDGERTON. I hope the motion of the gentleman from Trinity, Mr. Tinnin, will not prevail. Now, sir, there is a great deal of business in the committees. My committee is not more than half through with its labors, and when this discussion commences upon such important matters as this report of the Committee on Preamble and Bill of Rights all of these gentlemen desire to be here, and they do not desire to be here and participate in the discussion after they have been through the details and drudgery of committee work. I do not see any particular reason why the discussion should commence on that special order to-mor- row. The object of my motion is to facilitate business, and enable the committees to complete their labors and get their plans submitted here. I hope the amendment will not prevail. Mb. tinnin. My object in offering this amendment is to have some time for this body to get to its labors. We have been here now four weeks, spending the time in discussing about the employ^ and offering propositions. Now, sir, one of the committees of this body has made its report. That report is before this body, and, sir, it is high time that we khould begin to consider that report, if we expect to complete the labors of this body within the one hundred days. It seems to me to be thor- oughly fallacious that time is necessary for committees to sit hereafter in the daytime. We know that adjournments are continually advocated in order to sit on committees. What is the result? After the adjourn- ment is made, if ynu would call the roll at the railroad depot, or on the oars going to San Francisco, you would find a majority of the members there. We have all seen it, and now I say to the members here it is •mple time that we should do something. If this continues the same, there will be delays asked all the time, and we might as well commence now as any other time. I am opposed to including the seventh subdi- Titiou, in referenoe to the introduction of propositions, but I hope that the amendment will be adopted to include the ninth sabdivision— that in reference to the special onler. TBI PRESIDENT. The gentleman from Sacramento moves that all that part of rule seventeenth after the seventh sub-division be suspended until Monday, November fourth. The gentleman from Trinity mores to amend so as to except the ninth subdivision. Mr. Tinnin's amenument was lost. Thb president. The question is on the motion of the gentleman from Sacramento, Mr. Edgerton, to suspend all of rule seventeenth after the seventh subdivision until Monday, November fourth. Mb. McCALLUM. I rise to a point of order, that this requires a two-third vote. Mb. ROLFE. I seconded this motion in its original shuie. I shall now vote against it because it includes the seventh subdivision, in relation to the introduction of propositions. I think we have got more proposi- tions now than ten Conventions can manage, and I think we should cut them off as soon as possible. The ayes and noes were demanded by Messrs McCallum, White, and Tinnin. The roll was called, and the motion was lost by the following vote : A^ers, Biggs, Blackmer, Chapman, Charles, Cowden, Crouch, Edgerton, Graves, Gregg, Hale, Andrews, Barbour, Barry, Barton, Beerstecher, Belcher, Bell, Boggs, Boucher, Brown, Burt, Caples, Condon, Cross, Davis, Dean, Dowling, Doyle, ATBS. Hall, Hitchcock, Inman, Jones, Kelley, Lewis, Martin, of Alameda, Porter, Pulliam, Schell, Bchomp, Hoin. Grace, Harrison, Harvey, Heiskell, Herold, Herrington, Hilbom, Howard, Hughey, Hunter, Joyce, Kenny, Eeyes, Kleine, Lftine, Lampson, Larkin, Larue, Shurtleff, Smith, of 4th District, Stevenson, Stuart, Terry, Thompson, Van Voorhies, Wilson, of 1st District, Winans, Mr. President— 31. Dudley, of San Joaquin, Lavigne, Dudley, of Solano, Lindow, Dunlap, Mansfield, Estey, McCallum, Evey, McComas, Farrell, McConneU, Fawcett, McCoy, Filcher, McNutt, Finney, Mills, Freud, Moreland, Qarvey, Morse, Glascock, Murphy, Gorman, Nason, Kelson, Neunaber, O'Donnell, CSullivan, Overton, Prouty, Reddy, Rhodes, Ringgold, RoliS; • BhoemakM', Smith, of Santa Clart) Soule, Stedman, Steele, Swenson, Swinp, Tinnin, Townsend, Turner, TutUe, Vaoquerel, Walker, of Tuolumne, Waters, Weller, Wellin, West, Wickes, White, Wilson, of Tehama, Wyatt— «3. LIAVt OF ABSKirCB. I will move to-moaaKto amend rjUe sixl^-four, so Mb. FILCHER. as to read as follows " No iMTg of abarncc shall b< granted until Uia reuons thsnfor ahall have bata hllljr stated and approved b; a rots of the ConTentJoo." quKSTioN or pbiviliob. Mb. BEERSTECHER. I rise, under rule thirty-nine, upon a ques- tion of privilege. I will state, sir, what the question of privilege is, that the Chair may decide in accordance with rule thir^-nine whether or no 1 am entitled to be heard upon it. On Friday last, during the debate upon The PRESIDENT. The Chair will request the gentleman to pot down his question in writing. The Chair has the privilege of requiring any proposition to be put in writing. Mb. GREGG. I move to adjourn. The motion was lost. Mbi beerstecher. I would stote that it would be impassible for me to reduce the matter to writing this evening, and I will have it pre- pared for to-morrow morning. I move to adjourn. Carried. And at four o'clock and thirty-one minutes p. u. the Convention stood adjourned until to-morrow morning at ten o'clock. THIRTY-SECOND DAY. BAORAMiirro, Tuesday, October 39th, 1878. The Convention met in regular session at ten o'clock a. k., Fresideat Hoge in the chair. Digitized by Google Oct. 29, 1878. OF THE CONSTITUTIONAL CONVENTION. 227 The roll was called, and members found in attendance as follows : PRISBNT. Andrews, Harrison, Overton, Ayers, Harvey, Porter, Barbour, Heiskell, Prouty, Barry, Herold, Pulliam, Barton, Herringtou, Beddy, Beerateeher, Hilbom, Reed, Belcher, Hitchcock, Rhodes, Bell, Howard, Ringgold, Biggs, Huestis, Bolfe, Blackmer, Hughey, Schell, Boggs, Hunter, Schomp, Boucher, Inman, Bhafter, Brown, Johnson, Shoemaker, Burt, Jones, ShurtleiT, Campbell, Joyce, Smith, of Santa Clara, C^les, Kelley, Smith, of 4th District, Casserly, Kenny, Smith, of San Francisco, Chapman, Keyes, Soule, Charles, Kleine, Stedman, Condon, Laine, Steele, Cowden, Lampson, Stevenson, Croes, Larkm, Stuart, Crouch, Larue, Swenson, Davit, Lavi^e, Swing, Dean, Lewis, Terry, Dowling, • Lindow, Thompson, Doyle, Mansfield, Tinnin, Dadley,of San Joaquin, Martin, of Alameda, Tully, Dudley, of Solano, - McCallum, Turner, Donlap, McComas, Tuttle, Eagon, McConnell, Vaoquerel, Edgerton, McCoy, ■ Van Dyke, Estee, McFarland, VanVoorbies, Estey, McNutt, Walker, of Marin, Evey, Miller, Walker, of Tuolumne, Farrell, Mills, Waters, Fawoett, MoSat, Webster, Filcfaer, Moreland, Weller, Finney, Morse, Wellin, Freud, Murphy, Wickes, Gar^y, Nason, White, Glascock, Nelson, Wilson, of Tehama, Gorman, Neunaber, Wilson, of Ist District, Grace, Noel, Winans, Graves, O'Donnell, Wyatt, Gregg, Ohleyer, Mr. President. Hall, O'SulIivan, ABSENT. Barnes, Hale, Strong, Berry, Holmes, Sweasey, Freeman, Martin, of Santa Cruz, Townsend, Hager, Reynolds, West. The Journal of yesterday was read and approved. LKAVa or ABSBHOB. Leave of absence was granted to Mr. Strong for one day, on account of sickness; to Mr. Holmes, on account of sickness. MBMOBIALS. Mt. BEER8TECHER presented the following memorial from a large numberof citizens of San Francisco, asking the exemption from taxation of certain property, which was referred to the Committee on Revenue and Taxation : To tb« hononhla tba m»mbara of th* Oonitltntlonal ConrontJoD of the Stat* of Otl- ifonita, Sacnunento, Ciillf(>mU : W«, Um andeisigiiad, reddenti «Dd taxpajran of the City and Oonntjr of San Fian- eicco and M^laoent towns, having noticed with much latiafactioD tha introduction hy Mr. Bearatecher, trom thia county, to your honorable body, of a bit! axamptlng tnm taxation, to a certain amount, the property of deaf and dumb and blind persona, do earaestly command tha inme to tha early and &Torabla conaidaratioD of your honor* able body, bellcTlng it to b« a Jost and proper meaaure; and abonid tha aame become a law, it would redound in an amioaDt degree to the credit of oar Slate and people. San riandaco, October, 1878. Accompanying the memorial was the following extract from the " Wasp," of Apnl twenty-seventh, eighteen hundred and seventy-eight: "A SosoisnoM. "A Oonititotiona] Gonrention will toon be bald, and vatlont changet to tha organte imtntmant will doobtleaa be made. There la on* that w« dealre psrtlealarly to aay •iMuld be conaidnred. There ahonld be a elana* inserted relieTing the blind, deaf, and domb fhMn tha burden of taxation. There are aeTeral of these unfortnuataa in thia city and 8tat«, wlio are doing their beat to keep out of the public Inatitutiona prorided fcr their mpport by the Stat*. Th* blind and deaf have a hard lot at beat, and the people of the State of Oalifomia ahonld b« magnanimona enough to let the poorer portion of her aflictad citium go nntaxed. UoreoTer, it la really to the intereat of taxpayrra; for the blind, daaf^ and dumb mnat be aupported in any caae, and it la oinch batter to give them the opportnnltv of tnpporttng themtelTea, and thereby retaining their manhood and aeifreapect, than to fore* them Into charitable inttitu- Uonaby taxation. The aggregate taxes paid by this claaa of citlxent ia rery email, bat it u a Tltal oonaideranon to ihem, and the law under which they are now taxed ibonld be repealed^ It would be an act atonce of generosity and good policy, and an incalenlaUe ataiatance to theae afflicted indiridnala. We hope U>* gentl*m*n who >*y be called npon to draft the new Oonstitation will glT* this mattar th*lr att*n- tJon." OOHKUKIOATIOH. The following communication was received : Joseph Ramsey, a citizen of the United States, and a resident of Shelby- ville, Bedford County, Tennessee, to the delegates composing the State Constitutional Convention for the purpose of revising, altering, or amending the organic law of California: Although a non-resident of your State, I would respectfully submit to your oonsideration the inclosed plan and form for a State (Constitution, or organism. You will readily see there is some radical and unprece- dented cban^ from the Federal and State Constitutions. In the first place, yon will see I have dispensed with population and territory as a basis for repi^sentation, and nave substituted important interests, and election districts, and have incorporated the concurrent instead of the numerical majority, simply requiring the vote to betaken by committees, requiring two thirds of the members of any committee to enable their vote to count, and two thirds of the committees to pan any bill, law, rule, or resolution. This provision applies to the judicial as well as the legislative department, hence you will see that it neoessarily dispenses with a separate bouse called a Senate, also the Governor's veto, both of which was only intended as negative powere. That power is now more perfectly and economically applied by the. exercise of the concurrent majority. Are not the laliors of your session of more importance than an ordinary session of the General Assembly, whose acts can be repealed at a succeeding session? You will find that these important interests on which each can protect itself, will be as homogeneous as the different members of the human body. That antipathy and antagonism always manifested between rival political parties, which are continually striving for the ascendancy, and each, when they gain the ascendancy, ia as abso- lute and tyrannical as any monarchy in the world. This concurrent prin- ciple applied to the important intereat above named will not only expel, but will annihilate the demon of party spirit, which is the legitimate offspring of an inherent defect in the numerical majority principle. Although not so simple, ia far safer, as much more so as our trial by jury system is to be preferred (although it requires the unanimous concur- rence of all twelve to render a verdict,) to a one man power. There is many more reasonsand illustrations I could give if I had room and time and you had patience. Although my magazine is small and my artil- lery light, yet my ammunition is neither exhausted nor diminished. With truth and sound philosophy to back me, I feel that my bulwarks are as formidable as the walla of Gibraltar. If further information is desired, address — JOSEPH RAMSEY, Shelbyville, Tennessee. P. S. — Would be glad some member would inform me how the plan is received, and what objections are offered. J. B. THB rLAR. A Plan containing the Elements and Cardinal Prindplu for a State Ow- cmTnentf viz: We, the people of the State of California, bounded as follows (here give the boundaries) do hereby adopt, ratify, ordain, and proclaim the following (covenant) Constitution as the fundamental law of the State: Said government shall be known and deeignated as a Democratic Republic, containing three independent and codrdinato departments, each sovereign in its sphere,so that no one shall exercise the powers del- egated to* the others. The legislative department shall be chosen by the qualified voters of each division of election district, without regard to population or territory, in the following manner, viz.: The State Iwing diviaed into three divis- ions (called election districts), and that each of the following named interests, viz: Agricultural, manufacturing, mechanical, commereial, transportation, mining, educational, grazing, and professional, shall be entitled to an equal representation of their own selection. Each of the nine (9) interests above named shall be entitled to three (3) representa- tives from each (division) district, allowing each thus to have nine (9) representatives constituting the Legislative Council of eighty-one (81) rapresentativee, these eighty-vne representatives shall constitute nine (9) standing committees. Before entering upon the discharge of the functions of their office they shall each aubacribe their names to the following affirmation, oath, or obligation, viz.: I, A. B., solemnly pledge my word upon the sacred altar of my honor that I will faithfully discnar^ the duties and oblivions imposed upon me, and that 1 will not knowingly usurp and exercise powers not clearly delegated to me, and that I have not given money or any valuable thing to procure my election, nor promised to give or bestow any official favor on any person for their support, and if on conviction I submit my body, powers, and privileges, to such penalties as the law and Court may ""P°"- Signed, A. B. And when such representatives thus chosen and assembled, at the time and place specified, and have si^ed the above obligation, they shall proceed to organize by the election of a presiding officer, styled Speaker or Chairman, a resident citizen of the State, and such other clerical officers as are necessary to complete their organization, such as clerks, secretery, comptroller. All shall be required to subscribe to the obligation above set forth ; but no man shall be held ineligible of account of nationality, race, color, or religion. The legislative council shall likewise elect a chief executive officer, styled Governor; all of whose tenure of office shall be regulated by law, likewise the salaries of each and all; but no salary to be increased or diminished during the term for which they were elected. Each representative member will be required to present a certificate of the Judges who held the election and counted the votes, that said representetive is entitled to his seat; but should there be a tie vote, the same constituency shall hold another election, and when qualified shall hold their office for years, and until their eucceesors are elected and qualified. In the passage of all laws, rules, > t^ 228 DEBATES AND PROCEEDINGS Tuesday, re([ulatious, and by-laws, and all elections shall be taken by the com- mittees, each committee to count one vote, and requiring two thirds (}) of each committee concurring to enable the vote of the committee to be counted, and two thirds (3) of the nine (9) committees to concur in the passage of all bills, laws, rules, regulations, by-laws, and elections. Said legislative council shall have power to censure, suspend, or, for such crime as they deem necessary ana proper, may expel any member of their body, or any oSicer they may have elected. These misdemean- ors shall consist in bribery, perjury, forgery, theft, and drunkenness. Bribery shall consist in giving, or offering to give, money, or any val- uable thing, from any person, company, corporation, or foreign power, or in receiving, or offering to reoeive, money, or any valuable thing, from any person, company, corporation, or foreign power. Tbepenalties apply to any officer or private citixen who shall be guilty. This only applies to officers who receive ptU during their officiu term. Perjury shall consist of having made a false statement of any bet, or to have suppressed the truth, or willfully having perverted the same. Forgery shall consist in signing the name or names of any person or persons to any instrument <)f writing without his or her knowledge and consent. Theft shall consist in taking the property of another without his or their knowledge or consent and appropriating the same to hia use, or iraudulently having concealed the same. Drunkenness shall consist in the use of intozicatin|j drink so as to dis- qualify the person for the time being to intelligibly ducharge the duties of his official position. When a vacancy shall oocur in the legislative department by death, resignation, removal, or otherwise, the interest to which he belong shall as soon as possible proceed to supply his place, the Governor givmg notice of such vacancy. The time of the convening and adjourning shall be regulated by law; convening once in two years, and on extraordinary occasions the Gov- ernor may convene them, and when convened he shall state the object and purpose for which they were convened, and they shall entertain no other qnestion whatever. Should a miscellaneous question arise, then each one of the nine committees shall select one of their number, and they (9) shall compose a committee on said miaoellaneous question, and report as any other committee to a CommiUee of the Whole, and shall be disposed of as any other question; and all laws, bills, rules, and reg- ulations shall be signed by the presiding officer and Governor, and be attested by the clerk. II. The judicial department shall consist in one Supreme Court, composed of three Judges or Jurists, one from each division of the State known as an election district. Said three Judges shall be chosen or elected by the Legislature, who shall vote by committees, each oommittee counting one vote, and two thirds of them concurring necessary, and two thirds of the committees necessary to a choice; they shall be elected and hold their office for yean, and until their successors are elected and quali- fied, and shall be eligible to reelection one more term. This Supreme Court shall be termed the guardian proteetor of the reserved riehts, and shall exercise original and appellate jurisdiction, and from their decision there is no appeal ; they shall decide all -ques- tions of a constitutional character. The legislative department shall likewise have power to establish taoh other interior judicial tribunals, in such manner and with such powers as they deem necessary and proper. The right of trial by juiy to remain inviolate. III. The executive department shall consist of one chief exeoulive officer, ■tyled Governor, elected as provided by the foregoing provision. It shall be his duty to see that the law shall be faithfully executed. He shall likewise have power to exercise executive clemency, when gersons have committed crimes against the peace and dignity of the tate, and when the Court and jury who tried the case shiQl concur in recommending the criminal to executive clemency. He, with the Comptroller and Treasurer, shall constitute the State's financial agent in the adjustment of her financial business. It shall likewise be his duty to report to the Legislative Council, at its regular sessions, the condition of the State and its different departments, and to recommend such measures and policy as he thinks will promote the happiness and proeperity of the State. But be shall nave no power to arrest their laws by his veto. In case of a vacancy in his office by resignation, death, removal, or otherwise, the presiding officer of the legislative department shall fill the posi- tion. When the regular session of the General Assembly shall convene, then the presiding officer shall fill the unexpired term by the election of a sueoessor, which shall be the first business they attend to, and a Taeancy in any other department shall be filled in a similar manner. The Legislature shall nave no power to pass any tx post facto law which shall impair contract, nor no law to apply to crimes and mis- demeanors committed prior to the passage of such law, nor to make any decision a precedent and of legal authority that was rendered in any case subsequent to the origin of any suit pending in any Court. Amendments to this Constitution may oe made for two purposes and in two ways: one for the purpose of enlarging the powers delegated, the other for reducing the powers delegated. In the first place, if the legislative department shall be of the opinion their powers are so restricted that it impedes their usefulness, and that it could be enlarged without danger to the rights of the people, and should pass a resolution in clear and unambiguous terms, the powers they ask to have extended, and submit the same to the next ensuing election for ratification or rejection, and if a majorit;^ of two thirds of the different interests shall concur, the same shall be incorporated as port and parcel o/ the organic law. But should the people conclude they had delegated more power than was safe or necessary, and two thirds of the people should express them- selves that way by two thirds of their representatives having clearly stated the power they wish reduced, then said amendment shall M adopted and incorporated as part and parcel of the Constitution. But in no event shall more than one change be proposed at any one time. The legislative department shall bkve the entire control of the elec- tive franchise. All power not herein delegated shall be reserved to the people from whence it came. BBFOBT8. Ma. LARKIN made the following report from the Committee on Privileges and Elections : Me. Pkisiskkt : Tour Oommf tt«fl on Privilegw sad Klsctloiu bei; leaTe to report u followi: That proposition nnmtMr itxteen, bj Mr, Jobnsoa, Im indHtuitel; pott- poDed; that proposition number elghtj -eight be referred to the Oomiuittee oo Sxecor Uve Department, and that propoeitioiia oomber one hondred and eight, b/ Mr. Omee, nomlier one hundred and ninety-nine, by Mr. Freeman, be referred to the (Viramttlae on the Bight of SnUkage ; and that annbar two bundled and ten, by Mr. Lindow, lie referred to its author ibr eegregation. The report was adopted, and the references made as recommended. raopoBiTiom aro bbolutiohs bblatino to tbb coxstitdtioii. Thb PRESIDENT. Propositions and resolntions relating to the Con- stitution are now in'order. m BBLATIOn TO OOBPOBATIOKB. Mb. ROLFE introduced the following proposed amendment of sec- tion thirty-one of article four of the Constitution : Abticlb IV. Sbo. 31. Corporations may be formed under general laws, but shall not be created, modified, abolished, or changMi in any manner b^ special Act, except that counties may be created or abolished and their boundaries defined or changed by special Act. All general lawsuid special Acts passed pursuant to this section may be altered from time to time, or repealed. Referred to the Committee on City, County, and Township Oigaai- zations. BLIOIBILITT or OFriOBBS. Mb. EVET introduced the following proposed amendment to the Constitution : An^ person elected to a State office, either executive, legislative, or judicial, shall not be eligible to any other office in this State or the United States during the term for which they were elected. Referred to the Committee on Legislative Department. BZBMPTIOR or FBOPBBTT. Mb. EVET introdnced the following proposed amendment to the Con- stitution, in relation to exempting public highways of this State fiom taxation : Baolved, That the Committee on Revenue and Taxation be instructed to inquire into the propriety of exempting all lands fVom taxes in the public highways in this State. Referred to the Committee on Revenue and Taxation. ovbeflowbd laxds. Mb. SMITH, of Santa Clara, introduced the following propossd amendment to the Constitution, regulating the rights of owners of land in overflowed and reclamation districts: All elections for Trustees for the management of any swamp and overflowed land reclamation in this State shall be by ballot; and each person owning land in any district shall be entitled to but one vote ; and the Legislature shall enforoe the forgoing by appropriate Isgida- tion. Referred to the Committee on Agriculture and Commeroe. BBLATIHO TO SAN rBAHOISCO. Mb. DOWLING introduced the following proposed amendment to ths Constitution, in relation to San Francisco : Sbction 1. The municipality of the City and County of San Fran- oisoo is empowered and autnoriaed to legislate exclusively for itself, and attend to its own local affiurs, independent of the Lefpslature. The LcKtslature shall enforce the above provision by appropriate legislation. Referred to Committee on City, County, and Township Organisations. BBVBltUB Ann TAXATIOK. Mb. HERRINGTON introduced the following propMsd amendment to the Constitution, relative to revenue and taxation : Sec. — . The Legislature shall provide by law for the publication of all delinquent lists of property for State and county, citf, dty and county, town, village, and district taxes, so that all such delinquent lists shall be published (and poeted) at the same Ume, in the same manner, and for tjie same period. The Legislature riiall also provide a special time at which the sales of all property for'any such delinquent taxes shall be commenced in each year, and aperiod within whjch sadi sales shall be completed, and the places at which such sales shall be made. Referred to the Committee on Revenue and Taxation. FUBLIO 80HOOI. TIAOBIBS. Mb. DOYLE introduced the following proposed amendment to the Constitution, relating to public school teachers : Bbotion — . That all teaohen in the school department of the City and County of San Francisoo, who have taught one ;^ear, shall not t» dinualified without an ojpen and impartial investigation. Referred to the Committee on Education. Digitized by Google Oct. 29, 1878. OF THE CONSTITUTIONAL CONVENTION. 229 BOARD OF rOBUO WO*KB. Hk. DOYLE introduced the following proposition, to establish a Board of Public Works for the City and County of San Franciaoo: StCTinx 1. A Board of Public Worlds shall be established for the City and County of San Francisco. Sec. 2. Said Board shall consist of three Commissioners, who shall be elected by the people at the next municipal election for other city lod county officers. Sic. 3. The salary of each of said Commissioners shall be three thousand dollars per annum, and said Commissioners shall not be eligible (while acting as such) to hold any other State, Federal, or municipal office. Sia 4. The term of o6Bce of said Commissioners shall be the same ss that of other municipal officers, to wit, two years. Sec. i. The said Board shall bare full and exclusive control of all street improvements for the said City and County of Ban Francisco ; ihall advertise and invite bids for street work, make all necessary oon- • tracts on behalf of said city and county, and exercise all the functions and powers now by law vested in the Superintendent of Public Streets, Highways, and Squares of said City and County of San Francisco. Sic. 8. The power of the Board of Supervisors of invitine bids for street work, and ordering such work done on behalf of the said city and county, are hereby revoked, and all said powers of said Board of Supervisors are hereby vested in the aforesaid Board of Public Works. Sk. 7. The office of Superintendent of Public Streets, Highways, and Sauares, is (at the expiration of the term of office of the present incomDcnt) abolished. Sia 8. The said Board of Public Works shall also have full and exclusive control of the management, completion, and erection of all public buildings for the use of said city and county now in progress, or neieafter to be erected for said city and county. Sic. 9. The authority of the Commissioners appointed for the saperintendence and management of the construction of the new City Hall, in said city and county (at the expiration of the term of office of the present and existing Commission, to wit, at the municipal election for city and county officers, September, eighteen hundred and acventv- nine), is hereby revoked, and the said Commission shall hereafter be abolished. Sic. 10. No Commission (other than the Commission created by this resolution) shall hereafter be appointed or created for the superinten- dence, management, or control of^ any public buildings or public works, to be hereafter erected or done for the use and benefit of the City and County of San Frandseo. Referred to the Committee on Legislative Department. ItnUBKB or OOHSTITCTIOHAL OONVIKTtOHS. Mk. SH after introduced the following proposition, amending article ten of the Constitution : That article ten of the Constitution be so amended that membership in Constitutional Conventions, to be hereafter called, shall be confined to the qualified electors of this State; and in all elections provided for in said article ten, the right to vote shall be confined to such electors. Referred to Committee on Judiciaiy and Judicial Department ATTACHHIKT FOB DBBT. Ml. HOWARD, of Los Angeles, introduced the following proposed amendment to the Constitution in relation to arrest and attachment for debt; Artiolb — . There shall be no arrest or imprisonment fot' debt, except in case of fraud or breach of trust. Attachments shall not issue against the property of the debtor in a ovil or other action, except in case of ft-and, breach of trust, or non- residence, or prolonged absence of the debtor from the State. No warrant of arrest for debt, or attachment a^nst property for debt, shall be issued, except upon the order of a judicial officer, and for cause shown. No agreement by a mortgagor or other debtor, to pay attorney's, coun- sel, or Mjent's fees, or any penalty or forfeiture, or expense of foreclosure, or suit ror the recovery of such mortgage or other deot, except such fees, penalty, forfeiture, or expenses as may be specially provided by law, diall M valid. Referred to the Committee on Legislative Department. APrOIKTINO A XBW OOHXITTBX. Mb. JOYCE. Mr. Chairman : I have a proposition I would like to offer, as follows: Baotvtd, That tlwr* be an offldal eommittse of ftltMn appolntsd tma the San ItendKO delanUoB oo Water and Water Bights, in ttaa Intarwt of tb* Citj sad Ooeiity of San nanctoeo. Thb PRESIDENT. The resolution is not in order under the present rule. AMBSDIRa THB BULBS. Mb. FILCHER. Mr. President: Under this head I rise to make a motion, pursuant to notice given yesterday, to amend rule sixty-four, to read as indicated in the minutes of this morning. Thb president. The motion is not in order at the present time. When we reach the eleventh head it will be in order. The subject next in order is the report of the Committee on Preamble and Bill of Rights. A QtnSTIOK or FBIVILBOB. Ma. ^EERSTECHER. Mr. President : Before that order is taken np, I desire to rise to a question of privilege. I will send up my statement and ask that it be rend by the Secretaiy. Thb SECRETARY rood aa foUows : Ha. PsMiBBirT: In tb« Oaostttutlonal Convention, on Fridajr, October tw«nty> fifth, eighteen hundred and MTenty-eigfat, on the question of the eligtbilitj of Hon. Eugene Fawcett to a seat in this ConTentlon, Mr. >Acquerel spoke aa fulluws: *' There !• not one delegate of San Fmncieco here (liat hae not violated his oath to the party, and that is prior to the oath he took in this hall. If these gentlemen wtll rememtwr the oath they tiave taken In San Fraudsco they will remember that It says they will not vote for or support anybody who lias not affiliated wflh the Woritingmen's party." In the same speech Mr. Vaoqnerel rvfers to me peisonally : ** I bold the reports of one or the sessions of thb Oonventlon, and what do I find, 'That no right la denied, unless the right of the will of the people.' ' We also desire to have the right of the people recognised.* Now, when I see gentlemen on this floor that have sustained these prindplee, go right against It to-day," etc. Mr. Vacquerel, in'inaktng this statement in open Convention, committed a grave error, and was wholly mistaken as to every portion of his statement I desire to show on a qaeetion of privilege that no oath or pledge was taken, of the naturv and effect as stated by Mr Vacquerel, and that the Worklngmen's party is not bound by ao oath, nor are the delegates thereof nor by a pledge in the manner stated. October 29lta, 18T8. BXXRSTBCBKB. Thb PRESIDENT. The Chair is of the opinion that the matter involves a question ofprivileee. The gentleman will proceed. Ma. BEERSTECilER. Mr. President: Rising to this question of privilege, it is with no feelings of hostility against the gentleman from San Francisco, Mr. Vacquerel. But I do so for the purpose of giving that gentleman an opportunity of fully explaining what he meant by what I have just called the attention of the Convention to, in the reading of the points upon which I base this question of privilege. Mr. Vacquerel was undoubtedly mistaken, and not only was the gentleman mistaken, but, being a foreigner, and therefore not thor- oughly conversant with the English language, in his expressions made before this Convention, he undoubtedly made use of such words and such phrases as conveyed a difierent idea from that which he intended to convey. I have no doubt at all but what the gentleman intended to make a statement of facts as they really existed. But I find upon the Journal of this Convention an entry that Mr. Vacquerel, on the evening of the twenty-fifth day of October, rose for the purpose of making an explanation. The Journal says, to make an explanation in relation to his statement in regard to the oath taken by the Working- men's party. I will read it: " Ma. VAOQUBREL. Mr. Piasideiit : This afternoon It appeals that I have made a fUae statemant. I wish to rectify It. As a good many memben of the San Fran- Cisco delegatloa have stated to me that they have not taken any oath to the Work- Ingmen's party, I stand ap, air, to apologise to my colleagues, as It appears that aa oath and a pledge have a veiy different meaning. I, sir, acknowledge having taken' pledges and having violated them, thinking It wonid benefit tlie people. It shall not ocear again. Bat, sir. In eaplanatlon to vnmU, I still maintain that if thoee gentle men have not taken the pledge of the Warklngmen*s party, they stand In direct opposition to the laws eslabllsbed by the party." Now, Mr. President, the Workingmen's party never took an oath of any character. The delegates of the Workingmen's party have never taken an oath of any kind, either in the City of San Francisco or in the City of Sacramento. But the 0>nvention called by the elements com- posing; the Workingmen's party, which assembled in the City of Sua Francisco on the seventeenth day of May, of the present yev, of which I had the honor to be a member, and which framed the present platform and constitution of the Workingmen's party of this State, the^uestion of administering an oath to the delegates to be elected by the working- men's party came up, upon Saturday morning, May eighteenth. I recul now from the Ban Francisco Call : " Mr. Farrell, a member of the Oonventlan, flian moved that a committee of flre be appointed to prepare a pledge or oath fbr the oandldatea to take befoie being nominated. " Mr Beenteoher said this vraa all bosh ; the oath would not be binding under th* law, and a man conld not be panlahed fbr violating it. The platfbrm, if indorsed by the candidates honestly and in good faith, would be a sufficient pledge. "Mr. Beeratecher moved a reconsideiation of the vote whereby the Conventloo declined to enforce the taking of a pledge by candidates, and submitted an obligatlott for candidates to take, pledging themaelvea to sustain the prlndplea of the party, and to resign when requested to do so. ' 'The vote was reconsidered, and the pledge adopted." The members took a pledge when they joined the dnbe, and the dele- gates took a pledge when thev were nominated. There is no other pledge that has been taken b^ the members of the party, or by the dele- gates elected from San Francisco, except that which was introduced in the Convention, and remains a part of the present Constitution of the party. I call attention to the two pledgee that were embodied in the Con- stitution and platform of the Workingmen's party. I call your particu- lar attention to the fact that these pledges did not constrain any gentleman or bind apy delegate of the Workingmen's party to vote for none but a Workingman. Every delegate has full liberty of action, idthough the newspapers have seen fit to talk a great deal about iron- clad oiUhs, and about the party lash, and I think it is fair to ask Mr. Vacquerel to rise upon this floor and state whether any member of the Workingmen's paify swnn^ any lash over him in any way, or endea- vored to coerce him to vote in any certain way upon the question of the eligibility of Judge Fawcett. I approached that gentleman and came out squarely with him on the subject. I said it would not surprise me if the vote on Judge Fawcett's case would be a very close one. That the gentleman would probably succeed in retaining his seat, but I did not believe &om the prevailing sentiment, as I had heard it expressed, that he would succeed by more than three or four votes. I told Mr. Vacquerel if that should be tJie.case, and if Judge Fawcett should remain m his seat bpr only two or three votes, it might become a very serious question fbr him to answer before his constituency in San Francisco as to the reasons of his vote. But that if he felt in his own conscience that he could answer to them, it was a matter that rested wholly with him, and he should go and vote just as he saw fit and proper. I did not desire to coerce him in any way, bnt I desired to point out the matter distinctly, and if he thought he oould satisfy his constituency, it would satisfy me. That was the only oonvetwtion I had with him; that yaa the only iaak Digitized by VjOOQ IC 230 DEBATES AND PROCEEDINGS TOBSDAT, liiomia, Das ever tanen any oam inai ne win or wiii not vote any one who is not a Worktnf^an, or who does not stand upon > pnnciples of the Workiogmen's party. I do not think that the itfeman from San Francisco, Mr. Vacquerel, really intended to say that was swung /irer his head, and the gentleman will bear me out in the statement. NoW, the first pledge embodied in the Constitution of the Working- men's party is this — and it is taken by every man who desires to become a memoer of that party. It is not taken secretly ; it is not taken with closed doors, but taken openly, in open meetings, where any man, even if he be hostile to the party, can hear and see : "I, 0. D.,do sol«mnl)r pledge myieir that from henceforth I will dlMolve all afflllation with all other political partiea; (hat I will work blthhill; for the eMab- lishment and malntenaDce of good gOTemment through the Worklnginen*a party of California, and place ia power only thcae pledged to Its eopport; that I wili die- oourage all olBce teeklng; that I will not employ in aav manner any Chlneae labor, and I will dleoourage such employment by others, and that I will work and vote for the election to olilca of all pereoDS of known honesty and integrity, nominated by the Workingmen*B party.*' Everything is public, and any man can stop into the ward clubs at any time ana hear this pledge administered. That is the pledge taken by the individual members of the party, but it has been decided by the douncil of the Workingmen's party that It is perfectly proper to go out- side of the party, outside of the ward clubs, and aominate men of known honesty and integrity and political purity. A man can be nominated who is not a member of any ward club, and who has never taken this particular pledge. The pledge that was introduced by myself, on the seventeenth day of last May, is as follows, and this is the pledge that was administered to every delegate from San Francisco who is sitting here in this Convention. The pledge was administered openly, the Secretary reading it over, and the delegate repeating it over ailer him, lino by line. It reads as follows : "I, C, D., do hereby pledge my ncred honor that T will mpport the platform and declared principlee of the Workingmen*! party of OaUfoniia, and in every Instance oae my bent efforts to secure their adoptiun, and that If elected, will in every instance cunform to the winhee of my ooostitoents; and if requested by them to resign, I will at once comply, under penalty of thereafter being considered a roan without honor or principle, and a person unworthy ever afterwards to b« a candi- date for any offlce of trust In the nation." Now, sir, there has m'ver been any other pledge taken save these two pledges, and it has been decided, as I before stated, that a man can be nominated who is not a member of any ward club, and in such case the pledge which I last read is the one administered. No oath is ever taken — no man's conscience is ever trampled on by tn oath — and no man from San Francisco who sita here, as fat as I know, from any other county which is represented by the Workingmen's party of California, has ever taken any oath that he will or will not vote for the gentl that he did so. I don't tbink he really intended to say that the dele- gates from San Francisco have broken their oaths. How can a man break an oath when he has never taken any oath ? His statement made at the evening session was not sufficiently clear and explicit. He spoke about the rigbta of the people, saying that they should be respected, and alluded to the case of Judge Sharpstein. I desire to call attention to the fact that the ca.*es were not at all parallel. That the gentleman who was advocated by the Workingmen's party of California at that time was a man who was under no constitutional or legal disabilities. If the gentleman from Santa Barbara had been under no constitutional or legal aisabilitiee, as we believed at that time, then, of course, the will of the people, of necessity, must have been recognised. But believing that the gentleman was under constitutional and legal disabilities, we opposed him, because we recognize the fact that the people themselves have no right to over- ride the law. The people themselves are just aw much bound by the Constitution, and laws made under and in pursuance of the Constitution, as this body is. The people have no right to override the laws. Mb. ROLFE. Mr. President : I rise to a point of order. The gentle- man is not speaking to a question of privilege, he is branching off on the eligibility of Judge Fa wcett, which has been settled by this Convention. Ma. B££RST£CH£R. If the people have a right to ignore the laws, then the people have a right to resolve themselves into chaos, and that is a right I shall never concede; and I know that the gentleman from San Francisco, Mr. Vacquerel, does not desire to have the people resolved into chaos. And I hope, Mr. President, that hereafter the question as to whether the Workingmen's delegates in this Convention are bound by an iron-olad oath, or any other kind of an oath, will never be questioned. I hope it will be settled definitely and positively that they are untrammelcMl and unbound b^ any oath. I don't believe in any oaths in a free country like the United States of North America. No oath should trammel the conscience of a free American citizen. Mk. vacquerel. Mr. President: I regret that we are making so much expense to the people. I notice that clock, and when talking I always bear in mind that we are talking at the rate of about five dollars and sixty-five oentaa minute, and I wish that the gentleman would bear that in mind, too. It appears, sir, that I have stated that we have all taken an oath. Well, in my misoonstrnetion of the word I may have made a mistake. leot up and apologized, as it appears that an oath and a pledge are diflerent. Of course, as I came here to vote, and not to speak, as Mr. Beeretecher came here to do the talking, I might have maae the mistake. This is the way I understand an oatn and a pledge now. I swear to a gentleman to-day that I will pay him twenty dol- lars, and if I only promise I will pay him twenty dollars, it appears that when I swear to pay him twenty dollars I am bound to do it; but if I have only promised to pay him twenty dollars, then I may do as I please about it. [Laughter.] Now, Mr. President, I wish to be well understood. If I have said anything that has hurt the feelings of my colleagues, I stood up before and apologized and asked pardon for it, and I stand up again for it. The gentleman from San Francisco, Mr. Beer- stecher, yesterday made us a great speech on humanity. I wish the gen- tleman, in arguing this principle, would commence at home first. When the gentleman has stood on this floor and need such words as political tricksters, or some such words, he apologized for it, and that was the end of it. But it appears that they wish to nave me always apologizing,and I have to be always getting up here and begging pardon. What is good for the goose is good for the gander. [Laughter.] Now, if the gentle- men have taken a pledge, and have not taken an oath, it puta me in a better situation myself In that pledge I pledged when I became a member of the Workingmen's party, that I would not employ China- men directly or indirectly, and that I would not vote for any man for aqy office or position that was not a member, and was not sustained by the workingmen. Then I am very elad to be relieved of my pledge. I will give a good illustration of it: 1 happened to go, when I came up here, to a hotel where there were no Chinamen employed. I could not live on the food they had, so I went to another place. But I found there was a Chinaman employed there, and I was going to leave the place, though it was a very good place to board. But now I find, sir, that the pl^ge is dead since the nineteenth of June last, and as I have only pledged myself, I will continue to eat at that restaurant. [Laugh- ter.] Now I am sorry, very sorry, V> see that the members of the San Francisco delegation should take it so much to heart. I have apol<»psed, and it was perfectly specified in my speech that I meant the pledge of the members of the Workingmen's party, and not the pledge of can- didates of the Workingmen's party. The pledge of the candidates is only taken by a few, while the pledge of tne party is taken by every member of the party, and the member that does not take that pledge, I hold, is not a member of the party. Now, these reporta always come from a newspaper; and one paper pretends that I speak broken French. Well, sir, I speak French very correctly. I may speak broken Englilh, but no broken French. [Laughter.] That paper states things that I never said. The gentleman has said that there are too many lawyers. Now, sir, if there is any profession or any class of gentlemen I have a veneration for it is the law profession and for lawyers. There are honest lawyers as well as any other class. One paper, I am VKty kind in call- ing it a paper, has contained a lot of falsehoods about me. If you will read any other paper you will find exactly what I did say. I apologize again for saying that the members of that party took an oath. T^ey took a pledge which was taken openly in public If that pledge is dead since the nineteenth of June with them it is not with me. I am a man that holds if I took a pledge then, that pledge is gt»d yet. Mb. BARBOUR. I wish to inform the gentleman that I never took an oath or a pledge, and I regret exceedingly that he should read me out of the party. rBBAMBLB AHD BILI. OF BIQHTS. Tbk PRESIDENT. The preamble and bill of righta, which was made the special order, is now In order. Mb. van dyke. I move that the Convention do now resolve itself into Committee of the Whole, for the purpose of considering the report of the Committee on Preamble and Bill of Rights. Tbb PRESIDENT. It must be read first The Secretary will read the report. Mb. DUDLEY, of Solano. That report is on the desk of every mem- ber, and I see no necessity for spending lime in reading it. I move that it be taken up section by section so that we can act upon it Thk PRESIDENT. The gentleman is out of order. By the rules the report must be read once in the house. Mb. van dyke. Then I move that the rules be suspended. Mb. TINNIN. Mr. President: I hope the rule will not be aus- pended. Mb. van dyke. I withdraw the motion. Tax SECRETARY read the majority and minority reporis, aa follows: BKPOBTs raoM coMmmi On Preamble and Bill of Righto; submitting draft for preamble and article one, new Constitution. The following is the report which will come up in the Convention as the special order for this day : Mb. Pbbsidkht : The Committee on Preamble and Bill of Righto beg leave to report that they have had under consideration, for a number of sessions, the subject-matter referred to them, and, having agreed upon a draft for a preamble and declaration of righto, submit the same herewith to the Convention for ito consideration. At the outset of their deliberations, the committee adopted the plan to take up, in their order, the preamble and difierent sections of article one of the present (V>nstitution, and consider the same as a basis for their action, with the undemanding that only such provisions shonld be altered or amended as the public interest seemed to demand. Acting upon this plan, the committee first informally considered and acted upon the old preamble and separate sections of article one, seriatim, in connection with the various propositions bearing thereon which have from time to time been referred to us by the Convention. Afterwards the committee went over the work again, in the same manner, for final action. VklAXBLC It being the opinion of the committee that the substance and general style of the present preamble should be preserved, they have reported the same, with only slight verbal amendment, as the preamble for the new Constitution. It expresses in brief and appropriate language the people's gratitude to the Supreme Being for their freedom, and their desire and determination to secure and perpetuate ito blessings by the establishment of a Constitution and government. This is all that seems to be required, without loading it down with unnecessary recitals. DICLABATION OF BIGBTS. SxonoNS 1-2. Sections one and two of article one have been retained with the same numbers in the new article, without any alteration. The former declares the inalienable righto of man, ud the latter Uie object Digitized by LjOOQ IC Oct. 29, 1878. OF THE CONSTITUTIONAL CONVENTION. 231 ud parpoeee of govenunent, in a maoDer and style that cannot veil be improTed. Sic. 3. Section three of the old article, relating to the right of trial br jury, has been materially changed. There were a large number of propositioos referred to the committee, having in view acme modi6- cation of the jury aystem, and after giving them due consideration and devoting considerable time to the subject, the committee agreed upon the section as reported, which has been inserted in the place of the old section seven, immediately preceding the section relating to the Grand Juiy, and numbered aecordmgly. As section three of the article here reported, the committee hare adopted a new section which recognizes the Constitution of the United States as the paramount law of the land. Sic. i. Section four, in reference to the free exercise and enjoyment of religious profession and worship, has been retained with the inser- tion of the words "or juror, "after the word " witness,"' in the sentence, "and no person shall be rendered incompetent as a witness on account of his opinions on matters of religious belief." A number of memorials, quite numerously signed, having in view some modification of, or addition to, what is contained in section four, lisve been referred to as. A representative of the clergy also favored the committee with a brief statement of the reasons assigned by a large claas of our people for desiring such changes. But after giving to the subject-matter all the consideration its importance demanded, uie com- mittee, with all deference to the memorialists, still remain of the opinion that it would be unwise to materially alter or add to the section as it ■lands in the old Constitution. Sic. 5. Section five, relating to the writ of habeas corpus, remains as in the original article. Sics. 1^7. Sections six and seven, in addition to the declaration in the former against excessive fines, cruel and unusijal punishments, and the unnecessary detention of witnesses, bear upon the same subject; namely, the matter of bail. The committee, therefore, have transpc«ed and consolidated these sections, and have added, by way of amendfment to the clause relating to detaining witnesses, a prohibition against con- fining them in jails, or rooms where criminals are generally imprisoned. At present it not unfrequently happens that a stranger or poor person 80 snfbrtunate as to witness the commission of a crime, for want of bail, i> confined in some noisome prison cell, while the criminal, more blessed in the posseesion of friends or property, goes at large on bail. ' Sic. 7. For section seven, as alresidy stated, we have inserted the old section three, as amended. As thus amended, the right of a jury in criminal trials is still retained, but in cases not amounting to felony the L^islsture may fix the number to constitute such jury; and in all civil cases the whole matter is left to be provided by law. Sic. 8. Section eight has been divided, so as to form, with the amend- ments proposed, three sections. The portion relating to the Grand Jury forms the eighth section of the new article. As amended, it provides for a Grand Jury in cases punishable by death or imprisonment in the State Prison, with the usual exceptions, and in other criminal cases per- mits a prosecutioB by information or complaint, as ma^ be prescnb^ by law. It also provides, that while the Grand Jury is retained two thirds may find a true bill, thereby making it more difficult to defeat action against influential parties than under the old system. Power is also conferred upon the Legislature, by a two- thirds vote of all the mem- bers elected to each house, to abolish and restore the whole Grand Jury system. In regard to the Grand Jury, as well as the trial jury, the action of the committee may not have been as radical as the public sen- timent demands, judging from the various propositions before them bearing upon the subject; but if so, there is a degree of elasticity in the new system which the old did not possess; and the Legislature, guided by experience, will be enabled to meet the wants of the peopfe in this Sic. 9. Section nine, declaring the ri^ht of freedom of speech and of the press, and prescribing a rule in crimiiutl prosecutions »r libel, has been retsined as it existed in the old article. Su. 10. Section ten, declaring the right of the people freely to saeemble together to consult for the common good, etc., has also been retained. The committee, after duly considering the subject-matter of the two foregoing sections, came to the conclusion that it would be unwise to propose amendments to them, or to tamper with them in any respect. Their provisions have been construed, and are well understood, and it is hazardous to make experiments in such matters. Sic. 11. Section eleven, declaring that all laws of a general nature ■hall have a uniform operation, is retained. Sic. 12. Section twelve, providing that the military shall be subordi- nate to the civil power, etc., has been amended by stnking out the last clause, which limits an appropriation for army purposes, as that matter is covered by section twenty-two of the present article, added by way of amendment in eighteen hundred and sixty-six and eighteen nundred and seventy-one ; and the latter section has also been left out of our draft, on the ground that it belongs more properly to the legislative article. To section twelve, as thus amended, we have added section thirteen of the old article, as it bears upon the |ame matter of restricting the military power. Sic. 13. Section thirteen has been provided for by inserting in place of the old section, already disposed of, that portion of the old section *^t, in regard to the right of^ the accused in a criminal trial, and has been amended. The amendment consists in adding certain other usually enumerated rights, mostly taken from article six of the amendments to the Constitution of the United States, and Which seem to have been omitted from that portion of the old section eight. We have also altered the clause in regard to putting a person twice in jeopardy, so as to rtmove any doubt, in case a jury on the trial should, for any reasoh, be 'n'oharged without rendering a verdict. SiQ. 14. The comsuttee struck out the old section of this number, relating to apportionment, as it more properly belongs to the Committee on Apportionment and Representation. The committee have con- structed a new section on the subject-matter of the last clause in t^e old section eight — that is, taking private property for public uses. In the section as reported in our draft for section fourteen, it is provided that the time or services of the citizen, when required for the public, shall also be compensated in a manner to be provided by law. It may be that the labor of an individual is his only capital or means of support, and when his time or services shall be required for the public benefit there appears to be no reason why compensation should not be made the same as when private property i^ taken. Sic. 15. Section fifteen prohibits imprisonment for debt, except in cases of fraud, and prohibits imprisonment for a militia fine. It has been retained in its place without alteration. Ssc. IS. Section sixteen, declaring against ex post facto laws and laws impairing the obligation of contracts, has been so amended as to prevent impairing the remedy for the enforcement or breach of contract. 8«o. 17. Section seventeen, in regard to the right of foreign residents to possess, enjo^, and inherit property, has been amended so as to exclude from its provisions foreigners not eligible to become citizens. Sio. 18. Section eighteen, prohibiting slavery and involuntary servi- tude, has been so amended as to read : " No form of slavery shall ever exist in this State, and there shall be no involuntary servitude, except for the punishment of crime of which the party shall have been duly convicted." Sic. 19. Section nineteen, relative to the right of the people to be secure from unreasonable seizures and searches, is retainea without amendment. Sec. 20. Section twenty, in regard to treason, and the rights of a person on trial charged with the same, remains intact Seo. 21. Section twenty-one, declaring that this enumeration of rights shall not be construed to impair or deny others retained by the people, was the last section of the original article, and we have retained it as the last in our draft, and changed the number accordingly. In its place as section twenty-one, we have inserted a new section declaring against special privileges and immunities. Several propositions were referred to us bearing upon this subject, and many of the Constitutions of other States contain similar provisions. Beo. 22. The present section of this number added by amendment, as already stated, has been dropped from our draft as properly belonging to another article. The committee have prepared a new section to take the pl&oe of twenty-one, declaring against appropriations or grants to any corporation, association, asylum, hospital, or any institution, not under the exclusive mani^ment aAd control of the State. Judging from the various propositions on this subject, there would seem to be a public demand for some provision of this kind, in order to prevent the funds and property of the State from being diverted and used for other than public purposes. Sic. 23. Section twenty-three is a new section, in which it is declared that the provisions of the new Constitution, unless when declared to be otherwise, shall be mandatory and prohibitory. The purpose of this is that where plain language is used in the Constitution declaring what shall be done and what snail not be done, it must not be construed, in convenient cases, to be merely directory. This section has also been pre- sented in deference to what seems to be a public demand for something of the kind. Sio. 24. This is the last section in the new article, and, as already stated, is the same as the twenty-first or last section in the original arti- cle. Several other new sections were proposed before the committee, but failed of adoption — some for the reason that they were considered unnecessary or inappropriate, and others for the reason, simply, that they more properly belonged to some other department Herewith the committee returns to the Convention various memorials and propositions bearing upon the matters under consideration, up to this time referred to them, and would recommend that so much of any or all the provisions contained therein as may not be embodied in the draft herewith submitted, be not adopted. All of which is respectfully submitted. WALTER VAN DYKE, Chairman. MIMOKITT BErOBT. Mb. Pbesidikt and Oistlihkn of the Contcntioii : We, the under- signed, minority of your Committee on Preamble and Bill of Rights, beg leave to report the following two additional sections for insertion in the bill of rights of the new Coustitution : Seotioh — . No property qualification shall ever be required for any person to vote, hold office, or become a juror. Sec. — . The penalty for all crimes, except petty misdemeanors, shall be imprisonment, which shall be proportioned to the character and degree of the offense. J. RICHARD PRETID, JAMES N. BARTON, CHA8. 8. RINGGOLD, A. E. NOEL. DBAFT fob rBBAUBLl AND DBCLABATIOH OF BIOBTS. PBBAHBLE. We, the people of the State of California, gratefiil to Almighty God for our freedom, in order to secure and perpetuate its blessings, do estab- lish this Constitution. Abticle I. DXOLABATIOM Or RIORTa. SiCTiOK 1. All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying an4 Digitized by Google 232 DEBATES AND PROCEEDINGS Tuesday, defending life and liberty; acquiring, possessing, and protecting prop- er^; and pursuini^ and obtainuig safety and happiness. Bac. 2. AU political power is inherent in the people. Qovemment is instituted for the protection, security, and benefit of the people, and they have the right to alter or reform the same whenever the public good may require it. Sac. 3. We recognise the Constitution of the United States of Amer- ica as the great cheater of our liberties, and the paramount law of the land. Sso. 4. The free exercise and enjoyment of religious profession and woiBhip, without discrimination or preference, shall forever be allowed ia this State; and no person shall be rendered incompetent to be a witness or juror on account of his opinions on matters of religious belief; but the liberty of conscience, hereby secured, shall not be so construed as to excuse acts of licentiousness, or justify practices incon- sistent with the peace or safety of this State. Sao. S. The privile^ of the writ of habeas corpus shall not be sus- pended, unless when, m cases of rebellion or invasion, the public safety may require its suspension. Sic. t. All persons shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident or the presumption great. £xceesive bail shall not be required, nor exceasive fines imposed; nor shall cruel or unusual punishment be inflicted; nor shall witnesses be unreasonably detained, or oon£ned in any jail or room where criminals are usually imprisoned. Sac. 7. In criminal cases, the ri^ht of trial' by jury shall remain. In all cases, except felony, the Legislature may provide, by law, the number necessary to constitute a juiy, and in all civil cases toe number necessary to render a verdict. Sac. 8. Ho person shall be held to answer for a crime, or other public offense, punishable by death or imprisonment in the State Prison (except in cases of impeachment, and in cases of militia, when in actual service, and in the land and naval forces in time of war, or which this State may keep with the consent of Congress in time of peace), unless on presentment or indictment of a Grtuid Jury. In all other cases, offenses shall be prosecuted by indictment, information, accusa- tion, or complaint, as ooncurrent remedies, as may be prescribed by law. A Grand Jury shall consist of not less than fifteen nor more tiuai eighteen persons, two thirds of whom may find an indictment or true bill. The Legislature, by a two-thirds vote of all the members elected to each house, may abolish and restore the Grand Jury system. Sao. 9. Every citizen may freely speak, write, and publish his senti- ments on all subjects, being responsible for the abuse of that right ; and no law shall be passed to restrain or abridge the liberty of speech or of the press. -In all criminal prosecutions on indictments for libels, the truth may be given in evidence to the jury ; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted ; and the jury shall have the right to determine the law and the fact. Sao. 10. The people shall have the right to fi-eely assemble together to consult for the common good, to instruct their representatives, and to petition the Legislature for redress of grievance. Baa 11. All laws of a general nature shall have a uniform operaiioa. Sac. 12. The military shall be subordinate to the civil power. No standing arm^ shall be kept up by this State in Ume of peace, and no soldier shall, m time of p^ce, be quartered in any house without the consent of the owner ; nor in time of war, except in the manner prescribed by law. Sao. 13. In criminal prosecutions in any Court whatever, the parly accused shall have the right to a speedy ana public trial ; to appear and defend, in person and with counsel ; to demand the nature and cause of the accusation, and to have a copy thereof; to meet the witnesses face to lace, and to have process to compel the attendance of witnesses in his behalf. No person, after having been once acquitted by a jury, or dis- charged by the Court, shall acain be put in jeopardy for the same offense ; nor shall he be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. Sao. 14. Private propert^r shall not be taken or damaged for pablic use, without just compensation having been made to or paid into Court for the owner, except in cases of war, riot, fire, or great public peril ; in which cases compensation shall afterwards be made ; such compensation or damages to be assessed by a jury, unless waived by the parties; nor shall the time or* service of any person, except when held or under arrest for crime, be taken without just compensation to be fixed and provided by law. Sac. 15. Ko person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud ; and no person shall be imprisoned for a militia fine in time of peace. Sac. 16. No bill of attainder, ex poet facto law, or law impairing the obligation of contracts, or the remedy for the enforcement or breach thereof, shall ever be passed. Sao. 17. Forei^ers eligible to become citizens of the United States under the naturalization laws thereof, while bona fide residents of this State, shall have the same rights in respect to the possession, enjoyment, and inheritance of property as native born citizens. Sao. 18. No form of slavery shall ever exist in this State, and there shall be no involuntary servitude unless for the punishment of crime of which the party shall have been duly convicted. Sao. 19. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizure and searches, shall not be violated; and no warrant shall issue, but on probable cause, sup- ported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized. Sao. 20. Treason a^nst the State shall consist only in levying war •gainst it, adhering to its enemies, or giving them aid or comfort. No person shall be convicted of treason unless on the evidence of two wit- nesses to the same overt act, or confession in open Court. Sao. 21. No special privileges or immunities shall ever be grtntei which may not be altered, revoked, or repealed by the Legislature ; nor shall any citizen, or class of citizens, be granted privilege or immuni- ties which, upon the same terms, shall not be granted to all citizens. Sac. 22. No money shall ever be appropriated or drawn from tbe State treasury for the use or benefit of any corporation, associstioii, asylum, ho^tal, or any other institution, not under the exclusive man- agement and control of the State; nor shall any grant or donation of property ever be made thereto by the State. Sac. 23. The provisions of this Constitution are mandata>ry and pro- hibitory, unless by express words it is declared to be otherwise. Sac. 24. This enumeration of rights shall not be construed to impair or deny others retained by the people. Ma. VAN DYKEX Mr. President : I move that the Convention now resolve itself into Committee of the Whole, for the purpoae of consider- ing the report of the Committee on Preamble and Bill of Kght*. The motion prevailed. IN COMMITTEE OF THE WHOLE. President Hoge in the chair. Taa CHAIRMAN. The Convention having resolved itaelf into Com- mittee of the Whole, the Secretary will read section one of the draft. Taa SECRETARY read section one, as follows : Akticlb I. DICLARATIOX OF SI0HT8. SacTiON 1. All men are by nature free and independent, tnd have certain inalienable rights, among which are those of enjoying tud defending life and tiberty; acquiring, posseaiing, and protecting prop- erty; and pursuing and obtaining safety and happiness. Mb. W Y ATT. 1 move to transpose the section so as to read, after the word "liberty,"" pursuing and obtaining safety and haj^iness, and acquiring, possessing, and protecting property." Mb. WATERS. I would suggest, Mr. President, that the Secretary has proceeded to read the bill or rights, and has not read the preamble. Taa PRESIDENT. The preamble has been read in Convention, and will be taken up and considered after we have gone through with Um bill of rights. Mb. WICKES. Mr. President: I move to amend by striking oat the clause "all men are by nature free and independent," and subatitute tha following: "All men are endowed with a measure of Ubarty under restraint — they are equal before the law." Tea CHAIRMAN. There is already an amendment ofifered by the gentleman from Monterey, Mr. Wyalt Mb. WYATT. I have m^ amendment in writing, which I will send up. It is merely a transposition of the two clauses. Thb CHAIRMAN. Tn« Chair hears no second to the amendment Mb. WICKES. I now offer the following amendment: " All men are endowed with a measure of liberty under restraint— thev are equal before the law." Taa CHAIRMAN. The Chair hears no second to the amendment Mb. BLACKMER. Mr. Chairman: I wish to offer this as an amend- ment to the first section: Thb SECRETARY read: "Strike out the word "men" in the first line, and insert the wtnd " persons." Mb. BEERSTEOHER. I second the motion. Ma. BLACKMER. Mr.Chairman: I ol&r this amendment for the sake of making plain the phraseolc^y of this section, and expressing precisely what we mean by it. I know that this word has been used in all of the instruments of this kind heretofore. This does not touch any question except that which belongs to the inalienable rights of all citiaens. If we say that all men are born free and equal, or free and independent, we do not mean to confine it to men when we say so, neither do the committee who make this report intend a narrow and strict construction of that word, which includes all persons that are bom, and it ought to read "all peraom are bom free and independent." I know the construction of this word has always been that it should include other classes besides men, and my reason for offering this amendment was that we ought to say precisely what we mean. Now, sir, one other section of this same report of this committee we find, in my judgment, the same people referred to, the same dsss to which this word applies, and they are called "persons." If you will look at the fourth section, for instanoe, where we speak of "the free exercise and enjoyment of religious profession and worship, without dis- crimination or preference, shall forever be allowed in this State ; and no person shall be rendered incompetent to be a witness or juror on account of his opinions on matters of religious belief." It does not mean that no man simply shall be disqualified as a witness or juror on account of his religious belief, but no person, and it says so in plain English. Again, in section six of this same report we read: "All persons shall be bailable by sufficient sureties, unless for capital ofiensee, when the proof is evident and the presumption great," etc. That certainly does not mean that no one but men shall be bailable. And so also in section eight we find the same word used that I wish inserted here: "No person shall be held to answer for a crime," etc That means that all people, all persons, may be brought up and held to answer for crimes. It does not mean that none but men shall be held to answer. Now, Mr. President, this does not touch the question of the elective franchise in any manner — has nothing whatever to do with it; it is simply to take this word out and replace it with a word which shall express what we mean. We mean that all persons are bom free and independent, and I hope that w« will say so. I troat the amendment will prevail. Digitized by Google Oct. 29, 1878. OF THE CONSTITUTIONAL CONVENTION. 23S Mr. brown. Mr. Chairman: I have not heard anything yet to chan^ my mind on this subject. It appears to me that the lan^age is ■afficiently clear when it says " all men." We understand what is meant by "all men." Now, I am one of those who do not believe in sudden departures from old landmarks. When matters have been sufficiently dear to be understood, sufficiently comprehensive, I see no reason what- ever in making any change in the form of the language. It is claimed that the phrase " all men " should be changed so as to read " all penons." Why, sir, when the first child was bom into the world, to commence his nee in the human line, he was called a man child. If we go back to the original languaj^, we shall find that the same principle holds good. I lay that nothing is to be obtained by changing this language by any means. It seems more forcible, more clear, and I hope that unless something substantial, something really more proper, can be presented before this Convention, the language will be retained as it is. Hk. ROLFE. Mr. Chairman : I think the gentleman ofiering this amendment covers more ground than he intended to cover. " Men," as I understand it, is a generic term, used in the Bible as well as in other works, which includes men, women, and children. We use it in its generic sense. Now substitute the word "person," for this word " men." The word peraon includes artificial aa well as natural persons, and is a more oomprehensive term than the other, and therefore corporations would be included in this grant of rights which is a proposition I am not willing to accede to. If the gentleman will substitute "people," or " human beings," I think he would accomplish his object Neither would I object to allowing it to remain aa it is. Me. CfDONNELL. I move to amend by inserting after the word "men " in the first line, the words, " who ai« capable of becoming citi- seni of the United States." Ma. McFARLAND. I second the amendment. [Laughter.] The chairman. The Secretary will read it as amended. The secretary read : "All men who are capable of becoming cititens of the United States, are by nature free and independent." [Laughter.] The chairman. The question is on the amendment of the gentle- man from Ban Dieon, Mr. Blackmer. ^ He. van DTKE. Mr. Chairman : That section is precisely the old Constitation as it stands, and it is the same language as is in the Decla- ration of Independence, and well understood, and I nope the Convention will not change well understood language when it is not demanded by ■ome public necessity. The amendment was rejected. The question being on the amendment offered by the gentleman from San Francisco, Mr. O'Donnell, it was rejected. Me. BEERSTECHER oSSered the following amendment: Strike oat the word "men" and insert in lieu thereof, "human beings." The chairman. The amendment is not in order. The committee have just refused to strike out the word " men." Mb. SMITH, of Santa Clara. Will it be In order to move the adoption of that section ? The chairman. No, sir. If there is no other amendment, the Secretary will read section two. The secretary read section two, as follows: Sec. 2. All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right to alter or reform the same whenever the public good may require it. The chairman. Are there any amendments to section two? Me. BARBOUR offered the following amendment to section two, in the nature of a substitute : " The people of the State have the inherent, sole, and exclusive right to regulate their internal government, and the police thereof. They have the right to determine what is detrimental to the well-being of the State, and to exhaust the power of the State to prohibit and prevent it. They have the right to alter or abolish their Constitution and form of government whenever they may deem it necessary for their safety and happiness. Public officers are the trustees and servants of the peo- ple, and at all times amenable to them." Me. HERRINGTON. I move to strike out the word "sole" in that amendment The word " exclusive " is sufficient. Lost Mb. LAREIN. I move to strike out of the amendment the words "and form of government," so that the amendment will rrad: " The people of the State have the inherent, sole, and exclusive right to regulate their internal government, and the police thereof. They have the right to determine what is detrimental to the well-being of the State, and to exhaust the power of t^e State to prohibit and prevent it. They have the right to alter or abolisn their Constitution whenever they may deem it necessary for their safety and happiness. Public officers are the trustees and servants of the people, and at all times amenable to them." The people of this State have no right to alter or change their form of government. He. EDOERTON. I rise to a point of order. The substitute has not yet been adopted, and is not open to amendment. The chairman. This is an amendment to an amendment. It is cwable of amendment. , Mb. ESTEE. Mr. President: What right has this Convention, or the people of the State of California, to change our form of government? That is one of the rights that is expressly guaranteed. I know of no instance where a State, by its organic law, can reserve the right to change a republican form of government. The chairman. The question is on the amendment offered by the gentleman from £1 Dorado, Mr. Larkin. lost. 30 . The chairman. The question is on the amendment offered by the gentleman from San Francisco, Mr. Barbour. Mb. McFARLAND. Mr. Chairman: Whether the questions embraced in the amendment are correct or not, certainly it seems to me that this is not the proper place for it. This second section is a mere declaration of principles of the American system of jjovemment, and should stand where it is. If tbri%entleman deeires to incorporate any of the propo- sitions claimed in his amendment, let him do it at some other time, and in some other section. It talks about the duties of officera,and it should be in a separate section, and not introduced in this section. Mb. barton. Mr. Chairman: I would like for the mover of this amendment, Mr. Barbour, to inform this Convention of any guarantee that he proposes in his amendment that is not now guaranteed to the people of^ this State by this article, in section two. It says: "All political power is inherent in the people. Government is insti- tuted for the protection, security, and benefit of the people, and they have the right to alter or reform the same whenever the public good may require it." Now, as a citisen of the United States, and a citizen of the State of California, I believe that it embodies everything that is necessary for the welfare and safety of the people. I would therefore like to hear some reason given why this amendment should be adopted. Mb. BARBOUR. I have offered this, and I find the substance con- tained therein is in the present Constitution of the State of Georgia, and of the State of Illinois, and in the recent Constitution adopted by Colo- rado. Now, as I understand our duty here aa Constitution makers, it is to adopt such fundamental principles as are demanded by our peculiar situation and condition. First, however, I will answer the gentleman who objects to the phraseology of this amendment, which I have taken from the Constitution of Colorado. It is carried along, not as a revolu- tionarjr declaration, for I see here immediately afterwards a sentence recognizing the Constitution of the United States as the paramount law of the land. I don't care whether you put it in that shape, or in some other shape. If the new section is adopted as proposed by the Commit- tee, recognizing the Constitution of the United States, both must be con- strued together. I maintain, sir, that this section, as amended by the committee, is not, at the present time, good for the State of California, in the nature of things, because of the peculiar situation of this people. In the first place, we nave an overshadowing curse everywhere present, in this State, and we want an emphatic declaration in the Constitution, declaring that this State has the right to regulate her own internal gov- ernment. Therefore, when we come to the declaration of the powers of the State, there is the place where we want to make this declaration of our powers. Taking the subject of public officers. It is true that it is bat a general declaration of the relations of public officers to the government. But there is the place to put it, right here where you have declared the power of the government and of the people, and following that decla- ration as an opening wed^, with the restrictions that can be imposed on them. There are men in this country who have declared themselves to be above the law. They claim that they hold some sort of divine or C:uliar position which renders theiu higher than the law, and I want make tnem all amenable to the law, and right here where the power of the people is declared is the place to put that declaration. This doctrine has been preached here on this Boor, that there are men in office at the present time who can make use of their time as against the time belong- ing to the people, and it is for the State herself Uj determine^ the State itself must De the judge of what is detrimental to its welfare, and I want gentlemen to come out squarely and s^ whether they are in favor of the State regulating her own internal affairs, and the power of the State to impose some obligations also on her officers. Mb. cross. Mr. Chairman : I shall speak but briefly on this matter. We arc, aa a great State, one of the parties of a great compact — the greatest compact, perhaps, in the history of nations. One of the parties to this compact is the United States, or the General Government. The other parties to the compact are the several States of the Union. And now, as the Government of the United States, one of the parties to this compact, has declared the relation of the several States to the General Government, so we, as a party to this compact, have a ri^ht, and it is our duty, in this the only place where we can express our views of our rela- tions to the General Government, to give a clear statement of what we consider these relations to be. And if it be the sentiment of the people of the State of California that no power outside of the State of California has a right to interfere in our police regulations, and prevent our taking such steps to formulate such measures as we shajl think for the interest, for the protection, of the people of this State, we have a right, and it is our duty, to declare ourselves upon such propositions. And, while per- haps it comes very nearly to the old principle of Slates rights, yet in this statement it is so modified, and so clearly stated, there is not even an element of anything revolutionary against the government of the United States in this declaration, but it is so modified, and ao plainly stated as, I believe, to meet with the approval of the people of this State. I think the General Government has no right to interfere with our police regu- lations, and I thiuk we have a rigfit to protect ourselves. Furthermore, I believe that we should put in this declaration in regard to public offi- ceni, and if this is not the place, I would ask where is the proper place. Mb. NOEL. I would inquire what section we are considering. The chairman. Section two. Mr. NOEL. I hope, sir, that the section as reported will receive no amendments. The section as reported here is identical with the cor- responding section in the old Constitution of the States and I mean no disrespect to the gentlemen offering amendments, but that section was framed by statesmen, and has stood a long test, and it should be allowed' to stand. It is simply a declaration of general principles. It is a declaration of the inherent ri(;ht8 of the people, and any amendmeiit' Digitized by Google 234 DEBATES AND PROCEEDINGS Wednesday, that may be offered can add nothing to thoM righU; nor can tbej be taken away by any declaration we niar make. Ha. WILSON, of First District. Mr. Chairman : It seems to me that things of a very diverse character are contained in the proposition of ike gentleman from San Francisco, Mr. Barbour. It refers at one time to certain inherent powers of the people, involving some original prin- ciples, and then it comes down to the question of the responsibility of public officers. It involves, also, some questions concerning the police power of the State. As I understand it, section two is Bimpfy a daclara- tion of certain original inherent powers of the people. I do not think any one can find any fault with the wording of section two. It seems terse, compact, and clear. It has been construed over and over again, and has a plain significant meaning. I do not think the substitute as clear and concise as the original section ; and I think the questions involved in the substitute can all be presented somewhere else, in another shape, at another time. I understood the gentleman to say that this amendment is contained in substance in the Colorado Constitution. I do not find it there. Of course I do not want to contradict the gentle- man, but I do not find that clause in the bill of rights of the Colorado XJonstitution. The first and second sections of the bill of rights of the Colorado Constitution read as follows : " Sectiok I. That all political power is rested in and derived from the people; that all government of ri^ht originates from the people, is rounded upon their will only, and is instituted solely for the good of the whole. " Skc. 2. That the people of this State have the sole and exclusive right of governing themselves as a free, sovereign, and independent State ; and to alter and abolish their Constitution and form of govern- ment whenever they may deem it necessary to their safety and happi- ness, provided such change be not repugnant to the Constitution of the United States." It seems to me that is much more like our original section here, and it seems to me that the proposition of the gentleman from San Francisco is out of place here. His proposition says : " The people of the State have the inherent, sole, and exclusive right to regulate their internal government and the police thereof. They have the right to determine what is detrimental to the well-being of the State, and to exhaust the power of the State to prohibit and prevent it," etc. Now, the propoeition in the Colorado Constitution is much more com- pact than even in our own Constitution. I prefer to vote upon these original principles, upon which there is no great diflference of opinion, than the propoeition involving the views of the gentleman from San Francisco, which had better be passed upon as a separate proposition. I think, however, it is worthy of consideration, but there will be great difference of opinion, and 1 do not want it put in at this point. Those two sections, taken as they are, are sufficient declarations of the prin- ciples upon which the American Government is based : "All political power is inherent in the people." Nobody can object to that; it is tersely and strongly expressed. It is an expression of the great prin- ciples upon which all American governments are founded : " tiovem- ment is instituted for the protection^ security, and benefit of the people." Nobody can make any objection to that; it is plainly and tersely expressed. It seems to me that this is certainly good as Car as it goes, and I am in favor of adopting so much of the old Constitution as we can adopt, without altering the phraseology, upon the common sense principle that it has been construed over and over again by the Courts; therefore, a propoeition involving other questions should be passed upon as a separate proposition, and I prefer the original section without amendment. Mb. van dyke. Mr. Chairman: That section, like section one, simply contains political sentiments that are contained in the Declara- tion of Independence, and which are not disputed, while the amend- ment contains sentiments that can be dispute, and controversies will arise with reference to it. He wants to lay down a proposition without regard to whether it conflicts with the Federal Constitution or not. That would raise a very serious question here. Suppose we do consider a certain measure here against the interests of the people of California ; but suppose it is known that we are running counter to the will of the General Government and the Constitution of the United States, and a matter over which the people of the United States have the sole power; will the (^ntleman from San Francisco, or any other member on this floor, maintain that we can dispoee of that questiout I think not Mk. LARKIN, I wish to offer an amendment, in order to explain the amendment which I offered before. I offer this as an amendinent : " Provided such change be not repugnant to the Constitution of the United States." I wish to add that immediately after the word "happiness" in Mr. Barbour's amendment. Mr. BARBOUR. I accept the amendment. Mb. MILLER. Mr. Chairman : The text of the amendment seema to be plain and clear, without any circumlocution, in relation to the police power of the State, without making any attempt to define pre- cisely what the police power is, or the limits of it. Now, I have no kind of objection doing that in the proper place and at the proper time. It is evident that a long debate will be j)rovoked here, as to tne rights and powers of the States, and as to the rights and powers of the General Government. That discussion will necessarily come up in the consider- ation of the measures or propositions which have been already introduced here, and which are now before the Committee on Chinese. I think the propositions of the gentleman from San Francisco, Mr. Barbour, more properly comes within the article on miscellaneous provisions, and it will save time if we consider all the propositions relating to the Chinese subject in Committee of the Whole at some other time. This propositipn >9 intended by the gentleman to affect the Chinese, and the discussion which it will call out will involve the Chinese qaestion, so called. It seems to me that this second section of the old Constita- tion, which the committee has reported, is one that should be in the declaration of rights, whether we adopt the proposition of Mr. Barbour or not I have no kiniLof objections to declaring that there is such a thing as the police power of the State, but this is not the place for it I think it would more properly come in the article on miscellaneona provisions. Mb. AYERS. Mr. Chairman : I am in entire sympathy with the object of this amendment It is an object which shall meet with my approval at the proper time. I believe, however, that it will be the true course for this Convention to pursue, to plaoe all the propositions relating to this great and serious question together, and have them discussed thoroughly at the proper time. For my pert, when this question comes regularly before the Convention, I intend tliat my views shall have expression upon this point, without any reservation. I believe, however, with the gentleman from San Francisco, Mr. Miller, that we had better, in order that these propositions may be discussed thoroughly and com- pletely, and conclusively, remand them over to a special time, a special session, so that under this head every gentleman on this floor who desires to be heard, shall be enabled to make himself thoroughly under- stood. I am not prepared to discuss that question at the present time in all its amplitude, but I shall be prepared when it comes pn^rly before this Convention. I agree with the gentleman who last spoke that probably the best place for the amendment would be in a separate proposition under the head of miscellaneous subjects. I hope that Um gentleman who has offered the amendment, who I know is sincere in his desire to meet the evil, will accept the suggestion and withdraw the amendment. Mb. BARTON. Mr. Chairman : I do not wish to be understood as opposed to the amendment offered by the gentleman from San Fran- cisco, Mr. Barbour, but my object was to ask for an explanation of the principles contained in this amendment, for the purpose of knowing and satisfying myself whether this was the proper place for it or not [ believe it is eminently proper that this section two should remain aa it is, and I concur with toe remarks made by General Miller and Mr. Ayers, and I hope that I will have an opportunity to vote for the ideas expressed by my friend Barbour, but I believe this is not the time and place for the amendment. Mb. WATERS. I move that the committee now rise, report ■progress and ask leave to sit again. Carried. IN CONVENTION. Thk PRESIDENT. Gentlemen of the Convention : The Committee of the Whole have had under consideration the article on preamble and bill of rights, and have instructed me to so report to the ConTentioii, and ask leave to sit again. Mb. EDUERTON. Before recess I desire to give notice that the Committee on Revenue and Taxation will meet immediately after acyoumment in the Supreme Court-room. AOJOORItHBMT. Mr. HOWARD, of Los Angeles. Mr. President: With a riew of giving the committees a chance to work, I move that the CouTentioa do now adjourn until to-morrow morning at ten o'clock. Carried, and at twelve o'clock m., the Convention adjoomed. THIRTY-THIRD DAY. Sacbamihto, Wednesday, October 30th, 1878. The Convention met in regular session at ten a. m.. President Hoge in the chair. The roll was called, and members found in attendance as follows : pbxsint. Andrews, Dunlap, Huestis, Ayers, Eagon, Hugbey, Barbour, Edgerton, Hunter, Barnes, Estoe, Inman, Barry, Estey, Johnson, Barton, Evey, Jones, Beerstecher, Farrell, Joyce, Belcher, Fawoett, Kelley, Bell, Filcher, Kenny, Biggs, Finney, Keyes, Blackmer, Freeman, Kleine, Boggs, Freud, * Laine, Boucher, Garvey, Lampson, Brown, Glascock, Larkin, Burt, Gorman, Larue, Campbell, Graves, Lavigne, Caples, Oregg, , Lewis, Casserly, Hiwer, Lindow, Chapman, Hale, Mansfield, Charles, Hall, Martin, of Aloma^a^ Condon, Harrison, Martin, of Santa Cruz, Cross, Harvey, McCallnm, Crouch, Heiskell, McComas, Davis, Herold, McConnell, Dean, Herrington, McCoy, Dowling, Ililbom, McFarland, Doyle, Hitchcock, McNutt, Dudley, of SaiHloaquin, Holmes, Miller, Dudley, of Bolano, Howard, Mills, Digitized by Google Oct. 30, 1878. OF THE CONSTITUTIONAL CONVENTION, 285 UoSat, HoreUind, Hone, Nason, Kelaon, Neunaber, Koel, O'Donnell, Ohleyer, O'Sulliran, OTeiion, Porter, Prontj, Pulliam, Reed, Beynolds, Rhodes, Binggold, Bolfe; Berry, Cowden, Grace, Turner, . TutUe, Vaequerel, Van Dyke, Van Voorhies, Walker, of Marin, Walker, of Tuolunae, Schell, Schomp, Shafter, Shoemaker, Shurtleff, Smith, of Santa Clara, Smith, of 4th District, Smith, of San Franciaoo, Waters, Stedman, Webster, Steele, Weller, Stevenson, Wellin, Stuart, West, Sweaaey, Wickes, Swenson, White, Swing, Wilson, of Tehama, Terry, Wilson, of 1st District, Thompson, - Winans, Tinuin, Wyatt, Townsend, Hr. President. Murphy, Beddy, Soule, Strong, TuUy. LKATC or ABSIHO. Two days' leave of absence was granted Mr. Dean. The Journal of yesterday was r^ and approved. a OOMMTIIICATIOll. The President presented the following communication frova the Assessor of the City and Coun^ of San Francisco : Omci or TB( Cm tno Oocktt AismoK,) Sax raANCuoo, October 28th, 1878. J To ae Constitntioiial ConTontion : ■ OsxTLUKH : In oompllRDC* with the rMolutlon paiMd by your GonTontion on lh« twenty^aoond instuit, calling for InfomuitioD In ngud to certain uieeanenti, I beg to nlbmlt the following: The amount asMMed on mining ttooks in tills city and county, according to the lut UMaamrnt roll, la nine hundred thooaand dolUn (t900,000). The amount aaaeaaed on cburchea in thla city and county, aeoording to the last aawaHnent roll, la three hnndred and twelve thooaand three hundred and fifty dol- lars (t3l2,3S0), and the landa on which the aaid churchea are erected are aaaeaaed at one mllUoo three hnndred and fortyaeTen tbonaaod and acTonty dollars (11,147,070). The aaseaament on mining itocka, though amall, was deemed neceaiarlly ao becanae in moai Inalaucea the claim of doable taxation and claim of non-taxability of solvent debCB were interpoeed to prevent the w|«Tate aaaeaunent u1 this apeciea of property. The inatancea, however, in which 1 have been able to make inch aaaeaamenta will aaflice to enable your Convention to determine whether mora effectual modes cannot b* devised for reaching this species of property lor the purpose of taxation, if, in your Judgment, tilia should be expedient. All of which is respectfully submitted. A. BADLAM, AsMSSor. By K. & Jomsoii, Chief Deputy. Trc PRESIDENT. It will be referred to the Committee on Revenue and Taxation. Mb. BEERSTECHER. I move that it be printed. Carried. KIPOBT OR OOBrOBATIOHS. Mb. ESTEE presented the following report fix>m the Committee on Corporations other than Municipal : Baobamxhto, CALirOBRiA, October SOIh, 1878. Ua. FaumaiT : Tonr Committee on Corporations other than Municipal reapect- fally report that resolntiona and pnmoaitlona numbers two hundred and one, one hnndred and nluetyoaa,on« hundred and nioety.two,one hundred and aaventy-five, three hundred and fourteen, one hundred and twenty-two, three hundred and fbrty, three hundred and fbrty-four, two hundred and seventy-nine, two hundred and tblr- teen, oae hundred and sixty-eight, one hundred and Krarteen, forty^even, fbr^^ma, thirVr-fonr. one hnndred and tlilrty nine, one hnndred and flfty^even, thirteen, fifty, oae hnndred and thirteen, five, eleven, eighty-two, two hnndred and ninety-^ight, fifty-eight, aieven, three hundred and aeventy-fonr, three hnndred and flf^ three, one hnndred and forty-aeven, and tbrM humbed and seventy-two have been duly considered by your committee, and the same are re|K>rted back to the Oonventiou with the recommendation that no further action be taken thereon, aa such portions df the above propositions deemed of value will be fimad in the article on oorpotatlons aooompanying this report. Tour committee reoommend that a separata article on ** corporations other than mnnlcinal" be embodied In the Constitution, to be subdivided into "corporations in general " and ** railroad corporations." Tonr committee respectfully submit twsn^-three sections, forming an article on the saldect of corporations other than moniclpal, and r«conunrad their adoption. M. H. KSTIEX, T. A. OBEQO, JDO. H. BH0OK8, J. T. WEBSTKB, T. B. BOWA RO, 0HA8. T. BBBD, JOS. W. WINANS, OBO. STEBLB, P. DCNlJtP, B. O. B0008, JOBN P. WEST, PATBIOK BEDDT. OBO. W. SOHKLL, Mb. ESTEE. I move that the report of the oommittee be laid on the table and ordered printed. Thb president. Under rule fifty-three it will have to be read. The Secretary will read the article submitted by the committee. Tbb secretary read : SacTioH 1. Corporations may be formed under general Iaws,butshaU not be created by special Act. All laws passed pursuant to tlus section may be altered from time to time or repealed. Sbc. 2. Dues from corporations shall be secured by such individual liabilitiet of the ooiporaton and other means as may be prescribed by law. Mb. LABKIK. I move that the fhrther reading of that be dispensed with, aad that the nsual number of copies be ordered printed. Mb. MANSFIELD. I desire to have it read. Thb president. It must be read. The rule cannot be suspended. Tag SECRETARY continued the reading: Sbc. 3. Each stockholder of a corporation, or joint stock association, shall be individually and personally liable for his proportion of all its debts and liabilities. Sbc. 4. The term corporations, as used in this article, shall be con- strued to include all associations and joint stock companies having any of the powers or privileges of corporations not poesessed by individuals or partnerships; and all corporations shall have the right to«ue and shall be subject to be sued, in all Courts, in like cases as natural persons. Sbo. 6. The Legislature shall have no power to pass any Act tent- ing any special charter for banking purposes; but corporations or asso- ciations may be formed for such purposes under general laws ; but no corporation or association shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, to circu- late as money in this State, except the lawful money oi the United States. Sbo. 8. All existing charters, grants, lyanchises, special or exclusive privileges, under which an actual and bona fide organization shall not have taken place, and business been commenced in good faith at the time of the adoption of this Constitution, shall thereafter have no validity. Sbo. 7. The Legislature shall not extend any franchise or charter, or remit the forfeiture of any franchise or charter of any corporation now existing, or which shall hereafter exist under the laws of this State. Sec. 8. The exercise of the right of eminent domain shall never be so abridged or construed as to prevent the Legislature from taking the property and franchises of incorporated companies and subject tbera to public use the same as the property of individuals, and the exercise of the police power of the State shall never be so abridged or construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the Stete. Sbo. t. No corporation shall engu^ in business other than tha( expressly authorised in iti charter, or toe law under which it may have been or may hereafter be organised; nor shall it hold any real estate for a lon^r period than five years, except such as may be neoeasary for carrying on its business, or which is incident thereto. Saa 10. The Legislature shall not pass any laws permitting the leasing or alienation of any franchise, so as to relieve the franchise or property held thereunder from liabilities of the lessor or grantor, lessee or grantee, contracted or incurred in the operation, use, or enjoyment of su<3i franchise, or any of its privileges. Sbo. 11. No corporation shall issue stock or bonds, except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtedness shall be void. The stock and bonded indebted- ness of corporations shall not be increased, except in pursuance of general law, nor without the consent of the persons holding the larger amount in value of4he stock first obtained at a meeting called for that purpose, first giving sixty days' public notice, as may be provided by law. Sbo. 12. The Legislature shall provide by law that in all elections for directors or managers of incorporated companies every stockholder shall have the right to vote, in person or by proxy, for the number of shares of stock owned by him, for as many persons as there are directors or managers to be elected, or to cumulate said shares and give one candi- date as many votes as the number of directors multiplied oy the number of his shares of stock shall equal, or to distribute them, on the same Srinciple, among as many candidates as he shall think fit; and such irectora or manners shall not be elected in any other manner. Sbo. 13. The State shall not subscribe to or be interested in the stock of, or in any manner loan its credit to, any person, company, association, or corporation. Sbc. 14. Eveiy corporation organized or doing business in this State, under the laws or authority thereof, shall have and maintain an office or place in this State for the transaction of its business, where transfers of stock shall be made, and in which shall be kept, for pnblic inspection, books in which shall be recorded the amount of capital stock subscribed, by whom ; the names of the owners of its stock, and the amounts uwnea by them respectively ; the amount of stock paid in, and bjr whom j the transfers of said stock ; the amount of its assets and liabilities, and the names and place of residence of its officers. BAILBOADS. Sbo. 16. All railroads, canal, and transportation compemies shall be common carriers and subject to legislative control. Any association or corporation, organized for the purpose, shall have the right to construct and operate a railroad between any points within this State, and to connect at the State line with railroads of other States. Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad, and shall receive and transport each other's passengers, tonnage, and oara, loaded or empty, without delay or di»- crimination. Sec. 18. No president, director, officer, agent, or employ^ of any railroad or canal company shall be interested, directly or indirectlv, in the furnishing of material or supplies to such comi»ny, or in the busi- ness of transportation as a common carrier of freight or passengers over the woAs owned, leased, controlled, or worked by such company. Sbo. 17. No railroad or other transportation company shall grant free passes, or passes or tickets at a discount, to any person holding any office of honor, trust, or profit in this State; and the acceptance of any such pass or ticket, by a member of the Legislature or any public officer, shall work a forfeiture of his office. Seo. 18. No railroad company or other common carrier shall combine or make any contract with the owners of any vessel that leaves port or msUiee port in this State, or with any common carrier, bjr which com- bination or contract the earnings of one doing the <»n:;ing are to i>e shared by the other not doing the carrying. ( ^-^ ^-» f^ I y> .. jilized by VjvJVJVlC 236 DEBATES AND PROCEEDINGS Wednesday, Sac 19. Ko discrimination in charges or facilities for transportation shall be made by anj railroad or transportation oompan; between plao<« or penons, or in the facilities for the transportation of freight or passengers within this State, or coming from or going to any other State. Persons and property transported over any railroad, or by any transportation company or individual, shall be delivered at any station, landing, or port, at charges not exceeding the charges for the transporta- tion of persons and property of the same class in the same direction to any more distant station, port, or landing. Excursion and commutation ticket may be issued at special rates. Sio. 20. Three Railroad Commissioners shall be elected by the qualified voters of this State at the regular gubernatorial elections, and whose salary shall be fixed by law, and whose term of office shaJI be four years. They shall be qualified electors of this State, and shall not be interested in any railroad corporation, or other transportation com- pany, as stockholder, creditor, agent, attorney, or employ^, and the act of a majority of said Ck>mmis8ionera shall oe deemed the act of said Commission. Said Commissioners shall have the sole power, and it shall be their duty, to correct abuses by railroad corporations or other transportation companies; establish rates of charges for the transporta- tion of passengers and freight by railroad or other transportation oom- Snies, and piiblish the same from time to time, with such changes as ey may make; report to the Governor, annually, their proceedings, and such other facts as may be deemed important; hear and determine complaints aeainst railroad or other transportation companies; adSx penalties ancl enforce them through the medium of the Courts, and perform such other duties as may be prescribed by law. Nothin([ in this section shall prevent individuals from maintaining actions against any of such companies. It shall be the duty of the Legislature to confer all such further powers on the Board of Railroad Oommissionera as shall be necessary to enable them to perform the duties enjoined on them in the foregoing sections. Sio. 21. The State shall be divided into three railroad districts as nearly equal in population as practicable, from each of which one of the three Railroad Commissioners shall be elected. Sec. 22. Until the Legislature shall district the State, the following shall be the railroad districts: The First District shall be composed of the Counties of Alpine, Amador, Butte, Calaveras, Colusa, Dei Norte, £1 Dorado, Humboldt, Lake, Iiassen, Mendocino, Modoc, Napa, Nevada, Placer, Plumas, Sacramento, Shasta, Sierra, Siskiyou, Solano, Sonoma, Sutter, Tehama, Trinity, Yolo, and Yuba, from which one Railroad Commissioner shall be elected. The Second District shall be composed of the Counties of Marin, San Francisco, and San Mateo, from which one Railroad Commissioner shall be elected. The Third District shall be composed of the Counties of Alameda, Contra Costa, Fresno, Inyo, Kern, Los Angeles, Mariposa, Merced, Mono, Monterey, San Benito, San Bernardino, San Diego, San Joaquin, San Luis Obispo, Santa Bar- bara, Santa Clara, Santa Cruz, Stanislaus, Tulare, Tuolumn«, and Ven- tura, from which one Railroad Commissioner shadl be elected. Seo. 23. The Legislature shall pass all laws necessary for the enforce- ment of the provisions of this article. M. M. ESTEE, V. A. ORE06, V. E. HOWARD, J. V. WEBSTER, JOS. W. WINANS, CHA8. F. REED, JNO. M. RHODES, GEO. STEELE, P. DUNLAP, H. C. HOGGS, JOHN P. WEST, PATRICK REDDY. GEO. W. 8CHELL, Thi PRESIDENT. The report will be laid on the table and printed. BIP0BT8. Mr. Belcher, from the Committee on Labor and Capital, made the following report: Ha. Pkisidint : Toor CommittM on lalior and Capital bee leave to report liaok to the ConTeatlon proposition number eighty-four, introduced by Mr Condon, and ask that it be referred to tbeGominittee on Btato iDStltutioQi and Public Buildingi. I. S. BKLCHKB, Chairmaii* BKPOITIXO AND FRIKTIHO. Mr. Ayers, from the Committee on Reporting and Printing, made the following report: Ma. Peesidknt: Tour Committee on Beportlng and Printing, to whom were referred the reflolution of inqniry, adopted October twent7.slxtb, requiring them to inqnire into and report the expediency and probable coet of timnacribins. Indexing, and printing the Journal of this rx>nventlon, beg leave to submit the fblTowliiff: Aa to the expediency of printing the Journal, we consider it urgent tliat each member of this Convention fhould be placed in poeweeion of a printed copy of the minutes uf each dmy^e proceedinge. We t>«lieTe it would fkciUtate bueineei, give members a clearer Tiew of the work in band, and economise the time of the Conven- tion. Beefdee, the Juumal, when in its l)ound form, would alford a record of the proceedings of the body only lew valuable for reference than a verbatim printed report of the same. Your committee have taken the flgares made up by the Stato Printer at ao early stage of this BcMlon, to determine the coet of printing the Journal, both In Its tran- sient and permanent lorm. and find tliat it will cost for five hundred (printer's connt) bound copies of the Journal, if It make five handred pages, the sum of one tlioueand and thirty-nine doUara. Should tbe ConTention reqalre an appendix. In which would be printed the varioas reports from State olflcera, and other matter not pertiining to the body uf the Journal, such an addition, estimated at two hundred and fifty pagpfl, would coet fire hundred and nineteen dollars and fifty cents. The prol)ai>Ie coMt of indexing the Juumal would be about one hundred and fifty dollars, and the extra expense for two hundred and forty slips of the Dally Journal, fbr the tise of the mAmbers, would not exceed two hundred dollars. These itenu lummarized would preeent tbe following total : For flye hundred copies of Journal, In book form fl,039 00 For addition of two hundred and fifty pages, appendix . 511) 60 Estimated coet of indexing - . 160 00 For two hundred and forty copies of Oaiiy Journal . „.„„ 200 00 Totol coat J tl,»08 60 Tour oommtttae would further report that there need be no expense for tian- scription of the Journal, as the minntes of the Minute Clark can be used as copy by tbe printera. This, we are aanred. has been done in setting up the Journal of the Senate, aod there is no reason why it cannot be dons la setting up the Journal of this Ooa. ventlon. Bespeetfnily, ATEB8, for the Committee. M*. AYERS. Having made that report, I now move that the journals of this Convention be printed as recommended in that report. Ma. McFARLAND. I merely rise to inquire if they are to be printed and laid on our desks every morning. Ma. AYERS. Yea, sir. The motion prevailed. PAEDOKIHO rOWIB. Mr. SHAFTER, from the Committee on the Pardoning Power, lub- mitted the following report: Ma. Patsmxn: The Committee on Pardoning Power, to whom werereftned propoaad amendsaenl unmber thirteen, intramced by Mr. Vacqnerel ; Dumber aiae. teen, introduced by Mr. H. W. Smith ; number twenty one, Intnidnoed by Mr. Mora land; numbersixtT-Dine, by Mr. Barry; number one hundred aod oaa, iatnidnced t>y Mr. Fawcett; aunber one hundred and twenty.one. Introduced by Mr. Bendd— have bad the same under eonaidetatian, and recommend that they ba not adeptad. The ooaunitte* have retained the right of reprieve in the Governor, bat yielding to an apparent public desire, have Joined the Chief Justice of the Supreme Omrt to the Governor, as a Commission of Pardons aod Commutations, we have reooat* mended that oeither pardons oor reprieves should be extended to penooe dirice convicted of felooy, aod we have further required the reasons fbr pardon or ooia- mutation to be given. We herewith report a draft of tbe propoaed section thirteen, article five. J. McM. SU&FTKB, for Oie Coounittea. Articlk V. Sic. 13. The Governor shall have the power to ^nt reprieves, and the Gov; mor and the Chief Justice of the Supreme Court shall have power to grant pardons and commutations of sentence, after conviction, for all offenses, except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as they may think proper, subject to such reflations as may be provided bj law relative to the manner of applying for pardons. Upon conviction for treason, the Governor shall have power to suspend the execution of the sentence until the case shall be reported to the Legislature, at its next meeting, when the Legislature shall either pardon, direct the execution of the sentence, or grant a further reprieve. The Governor shall communicate to the Legislature, at the beginning of every session, every case of reprieve or pardon granted, stating the name of tbe convict, the crime of which he was convicted, the sentence and its date, the date of the pardon and reprieve, and the reasons for granting the same. Neither the Governor and Chief Justice nor the Legislature shall have power to grant pardons, or commutations of sentence, in any case where the con- vict has been previously thrice convicted of felony. Laid on the table and ordered printed. mSCKLLAHIODg anSJEOTS. Mb. SCHOMP. The Committee on Miscellaneous Subjects desire to report progress, and have requested me to ask for further time to report. THE PRESIDENT. If there are no objections, further time will be granted. Hearing none, it is so ordered. STATIOHBRT. Mr. HILBORN, from the Committee on Mileage and Contingent Expenses, made the following report: MB.Panu>mT: Tour Committee on Mlleagaand Contingent Kxpenaea, to whoa was referred resolutton number sixty-two, introdaeed by Mr. Larkin, limitiag the amount of stationety each member might draw, have had tbe same under conaMeia- tion, and herewith report back a aubstitnte therefor, aod recommend the adoptioa of the substitute. S. G. HILBORN, Ohsimisa The report was received, and the following substitute, reported by the committee, was taken up and adopted : Reioivedt That each standing committee, and each member of this Oonreattoa, be allowed all needful stativneiy, not exceeding the value of ten doUais. 0HIRB8B. Mb. miller ofieredthe following resolution: Jletclved, That ptopasitton unmber sixty-four, by Mr. Ayeta, together with Iht report of tbe Committee on Chioiearing debt is held ; and If enld debt Is fUnded, how it ii funded ; and what have l>een the expeneee of the tttate goTemment (or the past ten Tears, inclading the present year. Second — The amount of the debt, funded or floating, due by the cttiee of the State, including San Prancisco, for the years eighteen hundred and serenty flre^x and eighteen bnodred and serenty six-eeTeu, and the aToimge rate of intereet paid thereon, and what was the taxable property of San rrancbco for the yeati abore nientloued. r*i>d— The total debt do* by the dUes and counties of the State In the yean above named, and the total taxable property of such cities and oountiee in said years. /burtA— The amoont of taxable property In the City of tian Francisou; also, the amoant of tax Isry thereon, including the niedal taxes for the current fiscal year. Together with any other Information, within hii control, bearing upon the objects of this rrsolutloB. Adopted. OOMKinBB OLBBK. Mb. NOEL. I move to take up from the table the following resolu- tion: Baolved, That the Oommittee on Knrollmentaod Engrossment be authorised and empowered to employ a clerk, at a (ala<7 of five dollan per day, whenever necesiacy. The motion prevailed, and the resolution was adopted. SFBCIAL OBDBB — BILL OF BIQHTS. Mb. van DTKE. I move that the Convention resolve itself into Committee of the Whole, the President in the chair, to take into con- sideration the report of the Committee on Preamble and Bill of Rights. The motion prevailed. IN COMMITTEE OF THE WHOLE. Tbb CHAIRMAN. The Secretary will read the pending amendment The question is on the amendment offered by Mr. Barbour to section two of article one. Thb SECRETART read : " The people of the State have the inherent, sole, and exclusive right to regulate their internal government, and the police thereof. They have the right to determine what is detj-imental to the well-being of the State, and to exhaust the power of the State to prohibit and prevent it. They have the right to alter or abolish their Constitution and form of government whenever they may deem it necessary for their safety and happiness; provided, that such change be not repugnant to the donsti- tutioQ of the United Stetes. Public officers are the trustees and servants of the people, and at all times amenable to them." Mb. WIXiSON, of First District. I ask that the original section offered by the committee, for which this is a sabstituto, be read. Tbb SECRETARY read: " Sbc. 2. All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right to alter or reform the same whenever the public good may require it." Thb CHAIRMAN. The question is on the adoption of the amend- ment. The amendment was lost, on a standing vote : ayes, 44 ; noes, 84. Thb SECRETARY read section three, as follows: Sbo. 3. We recognize the Constitution of the United States of America as the great charter of our liberties, and the paramount law of the land. Mb. HOWARD. I move to strike out that section and insert the fol- lowing: "In the United States of America the powers of sovereignty are divided between the Government of the Union and those of the Stetes. Thev are each sovereign with respect to the objects committed to it, and neitner sovereign with respect to the objects committed to the other." f j /> 238 DEBATES AND PROCEEDINGS Wednesday, Mb. HOWARD. I object to this nection, sir, because it practically ignores the States and the Constitutions of the States as any part of the enartera of American liberties. Now, sir, that proposition is untrue historically, and it is untrue te^ly. It has no foundation, either in history or in law. If tbepropoeition had been that the Constitution of the United States and the Constitution of the State of California were the charters of our liberties, I should not have objected; but as it is now, sir, it is clearly in opposition to the spirit of the Constitution of the United States itself. Now, sir, the language which I have prqioeed is that of Chief Justice Uanhall, in McOulIoch vs. the State of Maryland. It is succinct, it is clear, it is unmistakable; and it recognises the true theory of American government He says : " In America the powers of sovereignty are divided between the Government of the United States and those of the States. The;|r are each sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." Now, sir, if we are going to recognize the Constitution as the charter of our liberties, let us recognise it as the Con- stitution of the United States is, that all the reserve powers and sover- eignty is in the State and not in the Government of the Union. And therefore it necessarily follows as a result from the express provisions of the Constitution of the United States, reserving all the powers not granted, to the States, or to the people. And that, sir, in a late case has been held to be the law. It is so held after our Constitutions have escaped from the oonteats of the rebellion. In the case of the Unit<-d States vs. Dale, 11 Wallace, 424, the Court says: "The General Government and the States, although both exist within the same territorial limits, are sepa- rate and distmet sovereignties, acting separately and independently of each other within their respective spheres. The former in its appropri- ate sphere is supreme; but the States within the limits of their powers not granted, or, in the language of the amendment, ' reserved,' are as independent of the General Government as that Government within its sphere is independent of the States." Now, sir, if we are going to talk about charter of liberties at alt let us talk about the whole charter. Let OS take the language of the Federal Courts, who say that the United States issovereign as to the powers granted to the Federal Government, and that the States are sovereign as to the (rawers reserved. That is well settled. Thatadmits of no controversy. This attempt of the bill of rights to ignore the State is, to say the least, a blunder; and let me add, still further, that if there is a State in this Union that ought to insist upon State rights, that ou^ht to maintain State sovereignty, it is precisely the State or California, m its present position and m its present attitude with regard to several very important questions. Now, sir, it was the inten- tion of the framers of the United States Constitution to maintain State rights — to maintain the sovereign character of the States as to all powers not granted to the Federal Government; and thereforewheu this bill of rights ignores, praotically,the government of States, and sets up the Con- stitution of the United ^les, practically, as the charter of our liberties, I say that it is a mistake historically, a mistake in law, and it is« blan- der all around. Mb. ROLFE. I have an amendment. I move to amend by striking out this section three entirely, and leaving it out I offer that as an amendment I make that motion because I oonoeive that this third section is entirel}r unnecessary. This brings up a question here for us to nnpon in this Convention which is more proper for the judicial irtment Mk. smith of Santa data. A motion to strike out is not an amend- ment Mb. ROLFE. My motion is to strike out the whole section. Thb president. The first question will be on your motion, to strike out the whole section. Mb. ROLFE. My motion is to strike out the whole section. I deem this a question more proper to be determined by the Courts of the coun- try. It is a question that is being determined by the Courts of our coun- try every day. Although I am a pretty strong Republican, and always have been since the Republican party was organised, I do not recognise the Constitution of the United States as the great charter of our liber- ties. We had State charters before there was any Constitution of the United States. The Constitution of the United States is a limit upon the powers of the States. However, I am not disposed to discuss that mat- ter anv farther here. I simply propose to leave that matter entirely with the judicial department of our government to determine to what extent we have powers and authority under the Constitution of the United States, and to what extent we look to the Constitution of the State for our liberties and our powers and our authority. Therefore, 1 think it is very proper that this section, as reported by the committee, or as offered to M amended by the gentleman from lios Angeles, neither one should have a place on the preamble and bill of rights of our Con- stitution of the State. Mk. van DYKE. Now, the difficulty suggested bylthe gentleman from Los Angeles, General Howard, and the gentleman from San Ber- nardino, Mr. Rolfe, could be obviated by an amendment leaving oat the words " the great charter of our liberties and ;" it would then read : "We recognise the Constitution of the United States of America as the paramount law of the land." Leave out all about the charter of our lib- erties. That is, simply that we recognise the Constitution of the United States as being the permanent law of the land. Now, this might not have been in the old Constitution, but I will call the attention of the members to the fact, that I believe every Constitutional Convention held since the rebellion has inserted some such provision as that in its State Constitution. I look over the books here upon the State Constitutions and I find it in fourteen of the revisions since the rebellion. Our neigh- boring State of Nevada has it in. I believe all the States — perhap I am mistaken — but I believe all the States that have revised their Constitutions since the rebellion, have such a declaration as that. Now, with the amendment I propose, I cannot see what objection any gentleman can have (0 it I move to strike out the words, " the great charter of oar lib- erties and," so that it will read : " We recognise the Constitation of the United States of America as the paramount law of the land." Mb. HOWARD. That does not remove the objection. It is not the paramount law of the land, exoept as to the powera del^ated to the Federal Government Mb. van dyke. We understand that Mb. HOWARD. But yon don't say that You don't say what you mean. The Constitution of the United States is not the paramount law of the land, exoept as to the powers delegated to the Federal Oovemment Mb. van dyke. I understand the Constitution of the United States to be that delegation of power to the General Gnvemm^it — that is, the expressed powers and tue necessarily implied powers ; nothing more nor less. Mb. WHITE. I hope, sir, that this section will be adopted, and for this simple reason : that it is true in every word. - We all know that the Constitution and laws of the United States are the paramount law of this land, and we should declare it so, that oar children may recognise it and not fall into the terrible calamity through which this nation has lately passed. The same doctrine is broached here that was broached before the rebellion, and it educated half the people into believing that there was no paramount law of the land. I sav that this is the truth, and why do they object to announcing the truth upon this subject any more than that tlie government lies in the people. That we all agree to, and yet we refuse to declare it. Why shrink from declaring the truth t I am tired of this idea that we must go to law books to understand everything. The gentleman from Los Angeles can understand all the decisions that are made upon this subject, and everything appears clear to him ; but, Mr. President, is it for us to say, who never read more law than is necessary to do our business in the country T We want the plain facts there, so that our children shall understand that the Constitution of the United States is the paramount law of the land. And we want you to look to it Take it away, and what charter have weT What charter of our liberties have we if you take it away T This paragraph is taken from the platform of the Workingmen's party of California. Com- munists as they are, they pledge themselves to stand by the Constitution of the United States, as the paramount law of the land ; and yet we are communists; I want those men on this side here, and I hope there will be a chance of getting the ayes and noes on this question, and see where the communists are. I trust that this proposition will be adopted by this committee. Ma. BROWN. Mr. President: It appeare to me that this is a matter of no small magnitude. It is one that concerns us all, and it is a matter of the utmost consequence that the finest discrimination and jud^ent should be used with regard to this matter. Now, Mr. President, it is a plain case as to what the object of the Constitution of the United States originally was. Certain powen from the different free and independent States were delegated thereunder to the General Government, and in addition to that, those powers and those rights as defined in the Consti- tution that were notdelegated to the General Government were reserved by the people. Now it becomes a matter of great consequence for us to consider this within our minds. I have not time, neither would it be justice to you to dwell upon those rights that were reserved to the States. Article nine of the Constitution of the United States says : " The enume- ration in the Constitution of certain rights shall not be construed to deny or disparage othen retained by the people." Other rights that were reserved by the people were not in any sense of the word to be disparaged by those powera that were granted to the General Government, sad nothing belonged to the General Government only those delegated rights which were given by the different States. This great principle remains true to this day, that powera not delegated to the United States by the Constitution, nor prohibited by the Constitutions of the States, are reserved to the States respectively, and to the people. This great principle, Mr. President, remains true. Principles never die. I am in hopes that no member on this floor will so iar forget himself as to speak of rebeUion,or anything of the kind. • 'The great constitutional principles upon which our government hss been established, and by which we expect the ship of State to steer clear of the rocks and over the turbulent seas of conflicting opinions, must be maintained, and the only way to do that is by adhering strictly to the great doctrines of our country. Now we hear men say that when Stats laws and State Constitutions come in conflict with the laws and Consti- tution of the United States, that the State laws must give way. Now that is all a mistake and a misunderstanding. There is no conflict between State Constitutions and the United States Constitution, or between State laws, strictly speaking, and the laws of the United States, for both have their respective spheres, and as both have their respective spheres and restrictions defined, there is no need of a conflict in this particular, and this great principle should be considered. I see no reason why we should conclude to use some other terms because other States have done so. Why should we say that the Constitution of the United States is the paramount law of the land, when the Constitution of the United States itself says that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage othen retained by the people!" We are going too far. We are giving to the General Ciovemment more than was asked, and as this State is not aecused of disloyalty, I am convinced that then is no need whatever of trenching upon the rights reserved by the people by anything of the kind. I therefore fee! disposed to oppose this article three, and to be in favor of the amendment offered by the gentleman from Los Angeles, Genersl Howard. Mb. SMITH, of Fourth District. I have an amendment to the amend- ment of General Howard. Mr. ROLFE. I rise to the point of order that my amendment to tii» amendment is before the house, and that is the only one now that am be acted on. My amendment is to strike out the whole thing. Mb. smith, of Fourth District " We recognise tha Constitation of (^ Oct. 30, 1878. OP THE CONSTITUTIONAL CONVENTION, 239 the United States of America as the charter of perpetual union of the States, and the paramount law between the States and foreign powers." Now, Mr. President, I do not think there is a difference of opinion on this floor as to a matter of law, or as to the powers between the States and in relation to the General Government; but I do think there is a difference of opinion here upon terms. I do not think that those gentle- men who are in favor of the clause, as reported by the committee, Dsderstand the full extent of the term therein used, in regard to the Constitution of the United States being the charter of our liberties and the paramount law of the land. If it is the paramount law of the land, it is the paramount law of the whole land. It is the paramount law of the State of California. I do not think there is a gentleman ou the floor but who will admit that the Constitution of the State of Cali- fornia, within the State of California, is paramount — is higher than the Constitution of the United States; that the Constitution of the United States is anlr a grant of certain powers belonging to the government of the United States, which is a government between the States and having authority with foreign powers. Now, it will not do to say that the Constitution of the Upited States n the paramount law of the land, because it interferes with other ques- tions that these gentlemen upon my right have introduced in favor of State police powers, and other questions embodied in their resolutions. This carries us too far; yet I do think that it is due to the State of Cali- fornia to express its sentiment in regard to the perpetuity of that union which has been so firmly established, and edso to give some recognition ta to the powers between the States and the power of the General Gov- ernment over the States. Therefore, I offer this amendment, and if it ii not in order now, I will withhold it for the present. Thi president. There is an amendment to an amendment already pendioE. Mb. MoCALLUM. I understand the gentleman from Los Angeles to asy, in positive terms, that the Constitution of the United States is not the paramount law of the land. Ms. HOWARD. Let me correct the gentleman. I said that it was the paramount law of the land as to the powers granted to the Federal Government, and not the paramount law o^the land as to the reserved rights of the States. I used the language of the Supreme Court of the United States, in repeated decisions. Me. McCALLUM. I must take it as he now sta^ it. At any rate, Mr. President, the Constitution of the United States itself settles this question as to what power it has, so far as it is necessary and prD|)er for US to declare here. Article six of the amendments to the Constitution of the United States declares; "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, ■hall be the supreme law of the land." To that extent I admit that it is lerj proper at this time, in view of all the circumstances — not even omitting the circumstances of the debate here upon this question — tn make this provision which, it is true, is an addition to the bill of rights. I shall vote for the motion to strike out, because in certain senses the State Constitution I conceive to be the charter of our liberties, and at any rate that general phraseology is more suitable, perhaps, to the Btnmp than it is to the Constitution. I prefer the language of the Con- atitntion of the United States itself That Constitution is the supreme law of the land. In the early Constitutions of the United States there were a great many general phrases used and they got into our Constitu- tions, and no proposition has been made to amend. If it were not for my great aversion to amendment where amendment does not seem really absolutely necessary, I would have preferred to have amended the aecond section, which involves this que^ion to a certain extent, for there are generalities borrowed from the old Constitutions which are not correct This thing, for instance, of the right of the people to alter or reform their government whenever the public good may require it — without any provision whatever as to the manner — an assertion from which revolutionists forever find at least a shadow of authority in the very suggestion itself, instead of saying, as I claim is the true proposi- tion, " toe right to alter or reform the same as provided in this Consti- tution, or otherwise, when the cause exists," denning the direct causes. After what has occurred in our recent national history, it appears to me that every State which has a Constitutional Convention ought to adopt a proposition of the nature that is proposed to constitute section thrM of this bill of rights, and especially in view of the fact that it aeema as if the old controversy would never die, but must come up from time to time. As the question has been raised in this body, it furnishes an additional argument that we should make that declaration ;, there- fore, I propose to vote, first, to strike out, and then I understand it will be proper to move to insert. Thi PRESIDENT. The first proposition will be the amendment to itrike out the words, " great charter of our liberties and." Mb. McCALLUM. Under that ruling of the Chair, then, my posi- tion must be to vote against striking out. Tii PRESIDENT. If the Convention refuse to strike out the whole ■action, you will have an opportunity to amend. Ms. JOHNSON. Mr. Chairman : We have just passed a section here without amendment : " All political power is inherent in the people." 1 understand by that, that all power is innate in the people; that is, it i> not derivative, but is a right which is born with them, and which inhere* (l^the people or in the people. Now, sir, it is proposed here to ■upplemeot that action, in immediate juxtaposition with this one now ptiidiDg, which states that their liberties are derivative. Kb. van dyke. I moved to strike that out. Ut. JOHNSON. It appears to me that the two sections would be Bsoifestly repugnant. The one says that the power inheres in the peo- ple, and the other that the great charter of^ American liberty is the Coaalitution of the United States. It would seem, then, that after we H* ton with this inherent right, that it is necessary to place an enabling Act in the Constitution to secure it to us. The way I look at this matter is this: it used to be that this democratic doctrine, or republican doctrine — call it as you please — that all power is inherent in the people, was not a notion. That belongs to America and American Constitutions; and we have adopted that in section two, virtually, by passing it without amendment. A long time ago a different theory pre- vailed ; not that power inhered in the people, but that it existed in the sovereign,and that it was derived by the people through the medium of th« sovereign. That is the reason magna charta is called the great charter of liberty ; because it was supposed that these privileges and immuni- ties were derived from the sovereign ; and those baruns who fought at Ruiiymede and gained by their swords that concession from King John, apparently did not know that after the lapse of several centuries this new dogma, which is now established in our Constitutions, that all power is inherent in the people, would prevail. Now, in the twenty-ninth section of magna charta there is a provision that no freeman shall be taken or imprisoned unless by lawful jud^ ment of his peers, or the law of the land. That is one of those inhere A powers whicn is recognized by section two. Come farther along. Coma to the time of Charles I, when the declaratory statute of the right of petition was passed. What do we seeT That those loans or benevo- lences, so called, should no linger be exacted by the sovereign unless voted by Parliament. It is one of the inherent powers unde'r the Con- stitution, that taxation should be voted by our representatives. Coma farther along, to the habeas corpus Act of sixteen hundred and seventy- nine that secured the personal liberty of the citixen. That is one of the inherent powers. And, sir, in the bill of rights of sixteen hundred and eighty-eight we find that nearly* all the provisions in our present State Constitutions are embodied, or a great many of them at least. These powers are inherent in the people. Now, as I understand it, the gov- ernment of the United States has no power except such as is delegated to it by the Constitution of the United States, or prohibited by it to the States. These powers are delegated ; they come from the people. How, then, can it be called the great charter of American liberty, which is synonymous with a grant? The people grant, and yet you are now asked to say that by granting they get the charter of American liberty. Why, it inhered in them. The fact is, that these powers which are granted to the General Govern- ment are enumerated, but these ether great powers, which constitute the palladium of American liberty, are reserved. This power of habeas corpus is reserved, because it is not granted except in case of revolution or rebellion. And so, without specifically mentioning them, a great many powers are reserved ; and it is this residium which constitutes the great charter of American liberty. Now, as a matter of course, in con- struing this Constitution we see what are the f^rants. In construinK the State Constitutions, we see what are the limitations. We have, then, these bills of rights inserted in our State Constitutions, for there is no such thing in the United States Constitution; and these bills of rights are by way of limitation, that the Legislature shall not do this thing and that thing, these powers being reserved to the people. And yet at the same time it is not so very important about the ramifications of these bills of rights, if we have some forcible provision in the Constitution, such as that the powers not herein enumerated are reserved to the people. Now, I suppose that the true theory of the legislative power is this : that it is the same as the British Parliament, subject to the Constitutions. What Constitutions? Subject to the Constitution of the United States; subject to the Constitution of this State. In the British Parliament their Constitution comes in the shape of laws that are passed by that Parlia- ment. They are the law-malcing power; they are the Constitution of the realm. But here we distribute our powers into executive, legisla- tive, and judicial departments; and it is this distribution, it is this lim- itation engrafted upon our Federal and State Constitutions, which makes the difference in the powers exercised by the British Parliament and to be exercised by the State Legislature. The sixth article of the Constitu- tion of the United States says that the Constitution of the United States and the laws passed in pursuance thereof, and the treaties established by authority of the United States, are the supreme law of the land. Now, whether there is any provision in this Constitution or not on that sub- ject, it will not alter that provision. It will be just as binding as ever, and it does not require any recognition on the part of the framers of this Constitution whatever. But, at the same time, Mr. President, this Con- stitution will come up before this people for ratification, and some of them may say, " I will not vote for that Constitution, because there is no recognition of the Constitution of the United States in it." So it occurs to me that the whole difficulty might be bridged over in this way: "We recognise the Constitution, laws, and treaties of the United States, within their constitutional scope, as the paramount law of the land." Within their constitutional scope. The Constitution itself, within its constitu- tional scope, the laws passed in pursuance thereof, within their constitu- tional scope, and the treaties the same. This language would not be subject to any objection at all, and would not endanger the ratification of this instrument before the people ; and therefore, at the proper time, when it is in order, I will offer an amendment to this effect: "We rec- ognize the Constitution of the United States, the laws and treaties of the United States within the scope of that Constitution, as the supreme law to each and every State in the American Union." I have simply added "each and every State in the American Union" for this reason, that some might clain> that inasmuch as we engraft the Constitution of the United States upon this Constitution, that we thereby recognise cer- tain provisions in the ConstilUtion of the United States which grant certain rights to the Government of the United States which are not applicable to our State government. But by putting in this phraseology, that it is the supreme law to each and every State of the Union, we ahow tlu^ we are not referring to any such provisions that are apEdi(»ble to the United States Government only, but we are simply reaffirming Digitized by Google 240 DEBATES AND PROCEEDINGS Wednesdat, article six of the Constitution of the United States. When in order I will offer this by way of amendment. Mb. hall. Mr. Chairman : I feel it to be my duty to explain as briefly as possible my position with re^rd to the matter which is now before this committee. The proposition in its present form «annot receive my consent, neither can the amendment proposed by the gentle- man from Los Angeles County, Mr. Howard, receive my approval. I think that in the shape in which the original proposition is presented by the committee that it is out of place. It has no place in an article declaratory of the rights of the people, and for the same reason, Mr. Chairman, it occurs to me that the substitute that has been proposed by the honorable gentleman from Los Angeles, amending the doctrines which we all admit, that the powers of government have been divided between the Federal and State governments, and that each is sovereign in its sphere, have no place in an article upon the subject of the rights of the people. I yield to none, Mr. Chairman, in my profound respect for the Constitution of the United States, in my recognition of its power and m my allegiance to its requirements. But, sir, I cannot regard it as the charter of our liberties, as this article proposed to amend it. Mb. van dyke. The Chairman of the Convention moved to amend by omitting that part; to have that stricken out. The president. The Brst question will be upon that amend- ment. Ma. HALL. I understand that the point before the committee is upon the proposition reading as follows: "We recognize the Constitu- tion of the United States as the paramount law of the land." If that be the single proposition. Mr. Chairman-, that is before the committee, I have but one objection to it, and that objection will be obviated by adopt- . ing the suggestion of Mr. McCallum, to substitute the word " supreme " for the word "paramount." If that be the single question be'ore the committee, it seems to me that my remarks should be brought to a close, because I am prepared to accept it in that form, although I believe, sir, that even in that form it should not have a place in this declaration of rights. But I was about to add, Mr. Chairman, that whilst I regard the Constitution of the United States as our shield and as our sword, at one and the same time, whilst it guarantees to the States a republican form of government, and whilst it protects the Slates against foreign invasion and domestic insurrection, I am not prepared to subscribe to the doctrine that our liberties flow from that instrument as a charter. Why the very meaning of the word implies something different. We understand by the word "charter" a {«|ier, a writing, an instrument in writing which conveys or restores certain rights or privileges; a deed or grant of power. Now, is the Constitution of the United States a grant of liberty T The Constitution of the United States is a guard to the people and to the States. All its powers have been derived from the States, represented by their delegates in Convention in seventeen hundred and eighty-seven, and it possesses no other powers than those expressly given or those necessarily required in order to carry them into effect. It imposes certain limitations upon the powers of the State, but we have not derived our liberties from that instrument. Our liberties wei^ secured by the colonies. They were enunciated in that great instrument which was put forth to the world on the fourth of July, seventeen hundred and seventy-six, and if any paper is to be characterized as constituting the charter of our liberties, it seems to me that it ought to be the Declaration of Independence, promulgated on the fourth of July, eighteen hundred and seventy-six. Why, sir, we are now engaged in the work of framing the charter of our liberties. We have before us the charter framed in eighteen hun- dred and forty-nine, by our predecessors, which is submitted to us by the people for revision. We are now engaged in the work of setting forth certain great rights with which the people have not parted ; such as the right of trial by jury ; such as the right to be tried by Orand Jur- ies; the right to be brought publicly to confront the charges against us; the freedom of speech and of the press, and a number of other rights, Mr. Chairman, whica it was thought in eighteen hundred and forty-nine, and it is thought in eighteen hundred and seventy-eight by this Conven- tion, ought to be declared in this instrument in order that they may be the more certainly assured to us, because it is well known that the declar- ations of the Constitution of the United States operate merely as a lim- itation upon the powers of the Federal Union, and not upon the powers of the States, ana hence the necessity of reSngrafling them in this por- tion of our Constitution under the title of " declaration of rights." For these reasons, Mr. Chairman, I am opposed to the adoption of article three as it is now submitted in the report of this committee, but in the form in which it has been modified by the Chairman of the com- mittee to whom this subject has been committed, it shall receive my assent, to wit, in these words: "We recognize the Constitution of the United States of America as the supreme law of the land." Mk. van DYKE. I have no objection to that Mr. STEDMAN. I move that the committee rise, report progress, and ask leave to sit again. Carried. IN CONVENTION. Thi president. The Committee of the Whole have instructed me to report that they have had under consideration the article on pre- amble and bill of rights, report progress, and ask leave to sit again. The Convention took the usual recess until two o'clock r. u. AFTERNOON SESSION. The Convention reassembled st two o'clock p. M., President Hoge in the chair. Boll called and a quorum present. . Ma. VAN DYKE. I move that the Convention resolve itself into Oommittee of the Whole, the President in the chair, for the purpose of further considering the report of the Committee on Preamble and Bill of Rights. Carried. IN COMMITTEE OF THE WHOLE. Mb. O'DONNELL. I offer a substitute for that section three of the bill of rights. It reads thus: "We recognize the Constitution of the United States of America as the paramount law of the land. The doc- trine asserted in the Declaration of Independence is sound in {Hinciple and Thc CHAIRMAN. The amendment is out of order. The first ques- tion is on the adoption of the amendment offered by the Chairman of the committee, to strike out the words " great charter of our liberties and the." Mb. HAGER. There are so many propositions and amendments hi regard to this section that I do not know precisely the question now pending, but I believe it is a motion to strike out and insert. I am not in favor of retaining this section three; not because I do not recognise the Constitution of the United States to some extent as the paramount law of the land — to every extent, I may say, where it is the authority. But I do not reooKniie that it is the charter of our liberties entirely. Some people think that the Declaration of Independence is the charter of our liberties Mb. VAN DYKE. The committee itself movea to strike that part out. Mb. HAGER. Still I have a right to speak upon it •Mb. VANDYKE. You have a right, of course. Mb. HAGER. The next great charter, perhaps, was the Articles of Confederation, under which we existed lor a certain time before the adoption of the Constitution of the United States. Now I do not object to having a clause of this nature in here, as I said before, because I am in any way opposed to the Constitution of the United States, but we are here for the purpose of framing a Constitution for the govemmeml of this State. We are not here for the purpose of framing a Constitution of the United States, or to putsny interpretation upon that Constitution. That is a matter that should be left to the Courts, and whatever power or whatever validity that Constitution may have is not for us in this Convention to determine, and whatever we may do in that regard would be nugatory and idle, because we have no authority to do it Now, then, let uiT see where we stand. Section two of article six of the Constitution of the United States has been read, but I will read it again : "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." Now what can we do to that by our, I had almost said, puny efibrts here, in atteinpting to establish a rule in our Constitution which should in any way affect that provision. Is it not all powerful in itselfT Then further : " And the Judges in every State shall be bound there- by, anything in the Constitution or laws of any State to the oontiaiy notwithstanding." Is not that binding upon us all? What further do we wish T I am perfectly willing to incorporate that provision if anybody thinks it is necessary to the State of California. But it is in the Constitution of the United States, which I regard, so far as that provision is concerned, as binding upon me and binding upon every man in the State of Osli- fornia, whether we reiterate it here or not Well, now, another clause in the Constitution of the United States, which has been referred to : " Th* powan not dslefated to th« Uoltsd Statss by th« Oonstitiition, nor pniUUMi by 11 to th* States, ars marred to the Slates reepectlTely, or to the people." Then the Constitution of the United States is not altogether the para- mount law of the land, because certain rights are reserved to the Slates which have never been conceded to the Government of the United States. But it is the paramount law of the land so far as the provisions contained herein go, which have been ratified by the States in the proper way. Therefore, without going any farther into this debate, which has been prolonged too much, 1 am in favor of striking this provision out, for the reason that it is unnecessarily there, and will lead to nothing else but confusion in case we should attempt to engraft it there. Mb. McFARLAND. I understand that the question now before the committee is upon the motion of the gentleman from Alameda, to strike out that portion of section three which recognizes the Constitation of the United States as the great charter of our liberties. Thb CHAIRMAN. That is the question. Mb. McFARLAND. Mr. President : I understand that the question now before the Convention is upon the motion of the gentleman from Alameda, to strike out that portion of section three which recognises the Constitution of the United States as the great charter of our liberties. The PRESIDENT. That is the question. Mb. McFARLAND. I am somewhat astonished that the committee which reported this section should be willing to abandon their guns at the first sign of conflict Now, sir, I am opposed to striking that out The gentleman from Los Angeles, Mr. Howard, and the gentle- man from San Francisco, Mr. Hager, talk as if we were trying to put some construction upon the Constitution of the United States. I do not understand that the committee has reported any construction whatever. They simply take the naked instrument If one set of gentleirf^ choose to construe it after the manner of Judge Marshall and Daniel Webster, they can do so. If another class of gentlemen desire to construe it after the manner of Calhoun, and Haines, they can do so. It is not propoeed to put any construction on it whatever. It is proposed to say that the Consti- tution itself, without an^ construction, is the paramount law of this land and the charter of our liberty. Who objects to that? It is an astonish- ing thing to me how nervous some gentlemen get when it is propoeed to recognize at all the Qovemment of the United States. They art Digitized by Google Oct. 30, 1878. OF THE CONSTITUTIONAL CONVENTION. 241 willing to recognize Almighty God, or anything else, but they want this CoDititation, from the first word to the end, to say nothing about the Oot- emment of the United States. They do not want to recognize the fact — they do not want to teach their children to know the (act, that the people of California are but a small part of a greater and grander people — the people of the United States of America. I am perfectly at a loss to know what objection any gentleman can have to putting that in the Constitu- tion. The gentleman from Ban Francisco, Mr. Haeer, says that it is unnecessary. Well, sir, if it is unnecessary, what else is there that is Beoesaary in the bill of rights T The first section declares, " all men are by nature free and independent, and have certain inalienable rights, tmong which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property; and preserving and obtaining safety and happiness." Is that necessary? Who denies the proposition involved there? But when you go to declare in any way that we owe any allegiance to the Oovemment of the United States, I find gentlemen very nervous. What is the meaning of it? I supposed, sir, that this question as to whether the Oovemment of the United States was pantnount had been determined when the United States Constitu- tion was voted for — when the people in their Conventions were consid- ering the question whether it should be adopted. And, sir, the principle of denying national power to the government of the United States in the Constitution had the ablest defenders this couoby ever saw. Luther Martin, in Maryland, and Patrick Henry, in Virginia, with a power of reason and eloquence rarely surpassed, advocated the doctrine that we should have no common country. And in Virginia it was only through the efforts of such men as Randolph and James Madison that it was carried at all; and then it would not have been carried, if it had not been for the overwhelming influence of the Father of our Country — George Washington — which was thrown into one side of the balance. When the Constitution was adopted, the doctrine of State rights was still contended for, and then they had the whole war over again in the Courts. But Virginia, among her other mat men, happened to send one of her greatest into the Supreme Court of the United States, and he judicially destroyed the doctrine that we are not a nation. And then it came into the legislative arena, and it was fought there by the men who followed Daniel Webster, and the men who followed Calhoun and Haines, and it was defeated there. And then it came to a more serious struggle, to which I do not desire to refer, except to say that the principle that had been triumphantly advocated by reason, was triumphantly advocated l»r force. And yet to-day, in this State of California, at this hour, we nnd gentlemen nervous about recognising the Constitution of the United States. I know, sir, that California is a peculiar State. I know that she has a population here not only from all parts of our common country, but from all parts of the world. I know she has representatives here — native born repre- sentatives— who never did believe in the sovereignty of the United States. And I know she has men here from foreign countries who are not yet rid of the opinions that come from birth. If gentlemen want to vote against the sovereignty of the United States, let them do it; but let them understand what they are doing. The gentlemen object to the word "charter." They do not want it to be said here that the Constitution of the United States is the charter of our liberties, and they try to evade it by putting upon it the old con- struction used five hundred years ago in England. They say that a charter means a grant of the crown. That is not the original meaning of the word at all. It is simply a deed. The word comes from the word dutrta, which means paper. They speak of charters of various kinds as the grants of the crown; as if the English people took the magna charta, and the petition of right, and the writ of habeas corpus which are their great charter of liberty, as simply the gracious gifts of the crown. No, sir, magna charta was not a gift of King John. It was a thing taken by the Barons at Runymede, and it was the declara- tion of the rights of Englishmen. But when we speak of the Constitu- tion of the United States as being the charter of American liberties, we mean that it is the great sheet in which the rights of the Americau people are declared, and upon which the foundation of our government IS established. In that sense it is a charter, and it is the greatest char- ter that we have. It is a charter made by the people, of course. The verjr first line says, " We, the people of the United Stales." Are we afraid of the word " charter "? We merely say that the Constitution of the United States is the particular instrument which forms the paramount law for all time for the government organized under it, and under which alone we have any secure liberty. It looks to me like a very small objection to say that oecause the word charter is used that we mean a charter from the crown of England. It is a declaration by the American people, and by the whole American people. Now, sir, we have in this country to-day — I know that we nave to-day in the State of California, any quantity of men of power and influence, who are not attached to the Government of the United States; who are in favor to-day, as they always have been, of a Pacific Bepub- lie. [Senjation.] I know that a few years ago, during the time or the eivil war, there were men here who were enemies of the United States Oovemment. And at the time of the late Presidential election there were numerous gentlemen in this State, who were sorry when the |>lan WIS adopted to settle that difllculty, hoping that the opportunity might ooenr during the agitation to establish a Pacific Repuolic on this ooast That is the sentiment of a large number of men in this State to-day. I ftar it is the sentiment of some in this Convention, although I hope not. How, sir, if we believe we are a part of the American people — ^if we believe that the Constitution of the United States is paramount — why ■hould we hesitate in declaring it in the instrument that forms our siguue law? Gentlemen talk about sovereignty, and give different ■neaoings to the term. This does not say a word about sovereignty. It *Bot named here. It simply says that the Constitution of the tinited Btatsa is the paramount law of the land and the charter of our liberties; 31 says nothing about sovereignty. Gentlemen need not be afraid about sovereignty. When you come to talk about sovereignty, what is it? States have occasionally been called sovereign, simply because they have the power to make certain kinds of laws; and it is sometimes said that the sovereign alone is capable of making a law. That is not the whole definition. A sovereign power, under the law of nations, is a power which stands independent and ec^ual with all other powers. It is a power that has the right to deal with other nations. It is a power that has the right to make war, to declare peace, to make treaties, to impose duties, an4 to do anything that other nations which are independent powers can do. And if you have not these attributes you have not the attributes of sovereignty. A Slate has no such power. There is no sov- ereignty, in the general sense of the term — no sovereignty recognized by nations and by the law of nations — except the sovereignty of the whole people of the United States, represented through the Government of the Unfled States. That is the only kind of sovereignty, sir, which we can speak of that means sovereignty in anything like its full extent. I say that has been construed to be the meaning of the Constitution. If we say that the Constitution is the paramount law of the land, we do not mean to say that Congress has certain powers under that Constitution. We are not called upon to quarrel over what the powers of the govern- ment are. If this bill of rights undertook to say that Congress, or the President, or the government, under the Constitution of the United States, had certain powers, which gentlemen denied, then these questions might arise. It contains nothing of the kind. It simply says the Con- stitution of the United States is paramount Who denies that? We do not undertake to say how far the powers go under the Constitution, but we simply recognize in the Constitution of our State that the Constitution of the United States is the paramount law of the land. That is all it does. Who objects to it? For my part, I can see no objection on the part of any person who believes that the Slate of California is a State of the United States; and that the State of California itself is subject to the Constitution and the laws of the United States; and that the Slate of California itself is simply a part and parcel of a greater and grander country — the United Stales of America. And the man that does that, I cannot understand how he can oppose this little bit of a declaration of that principle in this bill of rignts, when he is in- favor of declaring everything else that you can think of. I hope not only that the section will be adopted, but that the amendment will be defeated, nnd that we shall put the people of the State of California in the position of saying that we, as citizens of California, believe that we are a part of that nation — a part of that government — and are not afraid to declare it. [Applause.] Mr. FILCHEB. Mr. Chairman: This matter being of more than usual importance, I feel that I would like to say a word about it. In the first place it seems to me that this section is entirely useless; that it nidifies nothing more than is universally accepted. It has no more si|;- nificance there than would»a declaration that we recognize that Victoria is the sovereign of England. The fact will remain, whether this Conven- tion acknowledges it as such or not, and the motives that gave rise to this should be understood in the discussion of its merits. The Working- men's party of California were accused generaliy of being communists, and as a declaration of their loyalty they saw fit to incorporate in their State platform these words; and if you please, gentlemen of the Con- vention, notice the section of the Constitution, or the proposed section, while I read: " Beaolved, first, that we recognize the Constitution of the United States of America as the great charter of our liberties and the paramount law of the land," verMtim from the State platform of the Workingmen's party of California. Now, Mr. Chairman, it so happens that one of this body, feeling called upon, no doubt, to carry out the principles of the party, made a fight in the committee for the incorporation of that idea in this Consti- tution. As I lAiderstand it, though that was a general political stump declaration, or a declaration that might be made oy any of us with con- sistency as an evidence of our loyalty, it is not contemplated by a majority of the members of that party on this floor to incorporate the doctrine in the Constitution so long as its significance is of no import. As I understand the declaration of rights, or at least declarations, under this head, they should declare some specific right that might be jeopard- ized if not mentioned. Here there is nothing declared or acknowledged but what is universally conceded, and unless it means something more than is at present understood, why should we waste time with it? " We recognize the Constitution of the United States of America as the supreme law of the land." There might be a serious question come in there as regards the sovereign power of the people, so elaborately boasted of here. My friend who has just sat down, seems to want to dodge behind it and asks " who is talking about sovereignty ? " Now, Mr. Chairman, we are here incorporating in our State Constitu- tion the Constitution of the Federal Union. We are making the Consti- tution of the United States a part and parcel of the Constitution of California, and it is said, " where is the objection ?" I answer, sir that there are certain limitations in the Federal Constitution ; certain provisions which are understood to apply directly to Federal enactments and Federal Courts. For instance, take the Grand Jury bill. I believe that the best lawyers in the State, and in the United States, have con- ceded that the States have a right to act on that matter as in their judg- ment they may see fit; and yet the Constitution of the United States emphatically declares that no man shall be arraigned for trial except upon previous conviction by a Grand Jury. We propose to declare that the Grand Jury system shall be abolished. I am emphatically in favor of strking the whole thing out Ma. BARBOUR. I propose to support the motion to strike out, and I do so for the reason that I have never been able to find what office in the Constitution of this State the declaration in section three will ^r- form. It is not that the principle is not a correct principle, but it is because we have nothing to do in laying the foondatton-ef the goven^ Digitized by VjOOQ IC 242 DEBATES AND PROCEEDINGS Wednesday, ment of this State, with declaring what the powers of the Federal Government are. Now, sir, the Constitution of the United States, of course, is the paramount law of the land within its sphere, wherever it has sway. No man can dispute the proposition. But suppose you declareit in this Constitution. Where are we? What power are we? Do we strengthen our position, or do we strengthen the position of the Fed- eral Government? Why, that declaration will be construed into the doctrine of centralization. Our purpose and duty is to lay down and declare the power of this Sta.te, and not the power of the Federal Gov- ernment. I offered a proposition this morning to that effect, in which I maint4un there is abundant recognition of tne power of the Federal Government, where we assert the doctrine of the Declaration of Inde- pendence with regard to the right of the people to change, to alter, or abolish the form of government. I there provided that it should not conflict with the Constitution of the United States. That instrument guarantees to every State a republican form of government. Do we strengthen that any by declaring it in the Constitution T Not at all, sir. But 1 recognize it there, and I maintain that any change we make, except perhap, by revolution, must be a change in consonance with the princi- ples of republican government. Now, this question has been debated long before we were bom. In one sense it led to the war. Involved in it, sir, was the question of slavenr. I believe that the principles and doctrines that were asserted by Calhoun were correct, and would have been maintained by the people of the United States if the clement of slavery had been out of the con- sideration. The sentiment of the country was against that which was involved in the proposition, and not against the proposition itself; and that was the reason it failed. That was the reason that the stem arbitra- ment of the sword pronounced judgment against it. But the principle still lives, and I say we ought to declare it here — as John C. Calhoun declared the doctrine of the sovereignty of the States — not for the pur- pose of preserving slavery, but for the purpose of destroyin(j a slavery as bad as that of the South. That is wnat we want to do, sir, and yet gentlemen voted my proposition down, which was the business we came here to perform, ana tnat is, to declare the rights of the State, not attempt to dilute the power of the Federal Government by our thin water poured into it. Mb. WYATT. Mr. Chairman : I want the attention of the Chair and the house one moment upon this subject. I do not like to trespass upon your patience. I think, however, that upon this proposition, we ought to regard the original principles of government, and the antag- onisms of government of the present day are certainly these: First — That the crowned heads of Europe claim to rule by divine right, and that the power of the government is in the crown. The people of the States hold the doctrine that all the powers of the government are inherent in the people. The position occupied by the Government of the United States is between these — is that of a middle position — deriving its powers in a secondary manner, being a concession from the States. That brings us to the point in which all the reserve powers of the king- doms of Europe reside in the crown ; all the powers of the government in the States reside in the people. The United States has no reserve powers. The grants which the States have made to the General Govern- ment have been made ; they have been construed and are established facts. We are bound by the Government of the United States to the rules which we have conceded to them, be those rules whatever they may be. A declaration upon our part now neither can contract or enlarge them. I am in utvor of the motion of Judge Bolfe, of San Bernardino, to strike the clause out. I say, however, that I do not believe in the doctrine that the Constitution of the United States is the great charter of our liberties. That starts at the wrong end of the proposition. The powers of the Government of the United States are denved from the people through the government of the States, and wherever there is a reserved power it is with the people and not with the United States. Mb. DOWLING. Mr. Chairman : I am in favor of striking this out because we are here to frame a Constitution that every word, every sylla- ble, in fact every punctuation mark, will have vitality. By incorpora- ting this in our Constitution, sir, we shall not make it any more binding than it is. I do not believe there is a man in the United Slates to-day but recognizes the Constitution of the United States not only as the para- mount law but the great groundwork of our liberty, but I deny, sir, that the Constitution of the United States is the great charter of our liberty. I believe the great charter of our liberty, sir, is the blood that was spi'lt and sanctified the soil before ever the Constitution was framed Now, sir, I happened to be the Secretary of the State Convention of the Workingmen's party when this plank, or resolution as it was then, was adopted. It was simply put in there, or adopted, because there was not a paper in the country scarcely, but called us communists and thieves, cut- throats, and houseless and homeless vagabonds, and in order to persuade the people that we were nothing of the kind we put this in. Now, sir, I am sorry to see gentlemen get up on this floor and flaunt the bloody shirt in the face of a motion if it declares the least particle of States rights. I have before me a copy of the Constitution of the State of New Hamp- shire, and I believe that it can never be placed in the category of seceding States. It reads, verbatim, as follows: ''The people of this State have the Bole and excluiire right of goTemIng them- aeWes as a free, aovereign, and Independent State, and do, and forever hereafter aliall, exercise and enjoy erery power, Jarlediction, aon right pertaining thereto, whicti is not or may not hereafter be bj them ezpreaily delegated to the United States of America in Congrees aisembled." Now, sir, it seems to me that government was instituted by the people for the protection of the people, and if it had not been for the several States of the Union we would have no Federal Government. Hence I hold that the Federal Government derives its power from the States, because if we had no States we would have a centralized gov- ernment, and we are opposed to any centralized form of government whatever. Section two of article six of the Constitution of the United States reads as follows : " Thli Conititution, and all the lawi of the United States which shall be made ii pursuance thereof, and all treaties made, or which shall be made, under the aatliollty of the United Sutee, shall be the supreme law of the land." Now, sir. Congress, in Washington, on the first day of July, eighteen hundred and sixty-four, passed an Act whereby a land grant to the Central Pacific railways was declared. A bond subsidy of thirty million dollars of the government's first mortgage bonds on the roa4 was exchanged with the companies for a second mortgage. This Act was . passed in the House of Representatives by a vote of acclamation without calling the ayes and noes, and nobody knows to this day who voted for or against it. The responsibility cannot be attached to whom it belongs, yet by that vote the government was involved in bonds and interest to the extent of more than two hundred million dollars. It is a mild expression to call this sort of legislation infamous. It is worse than grand larceny or highway robbery, for it involves the crimes of perjury and bribery. Now, sir, if we are bound by such legislation from Congress, what in tne name of God is our great country going to come to ? Now Congress is looking placidly on the State of California; she is looking on us driven to despair ancl disruption by making this a recepta- cle for the slums of China. A^in, sir, when men get up on this floor and accuse men of being secessionists, I would call tneir attention to the fact that we are not here to open up the gaps and wounds that were caused by the great rebellion. We are here to close them and to heal them, and to drown them in the abyss of oblivion, never to rise again. Again, sir, there was some allusion made to the Workingmen's party to-day as being truly great and patriotic. Well, I will concSle that their patriotism is boundless, but I will also state that the Workingmen's party was never intended to be a step-ladder or a stepping-stone to raise men into prominence and power. Our intentions are to place every man on the same political plane ; to administer a good and equitable form of government ; good for the general welfare and prosperity of the people. Ma. VAN DYKE. I hope that the Convention will vote on the amend- ment, and bring it down to the question itself. The CHAIRMAN. The third section is under consideration. The gentleman from Los Angeles, Gen. Howard, moves to amend that sec- tion by striking out all of its words and inserting some other words. The gentleman from San Bernardino, Mr. Rolfe, moves to amend by striking out the words proposed to be inserted. In that state of the question, the Chairman of the committee desires to perfect the section. He therefore moves to strike out these words, " great charter of our lib- erties and the." Mr. WHITE. I trust it will not be stricken out, sir, for this rea- son: that I am anxious to pay the greatest government a oompliment by the acts of the Convention assenibled here. I am anxious that our children should know that we have paid this compliment. I say that when we say it is the charter of our liberties, I want to raise in their hearts respect for it, and that they may never flinch from it under any circumstances whatever. I conceive this to be one of our greatest duties as assembled here. We are told that this is a very little body that is assembled here. Here, sir, are assembled the people of the State of California. They may never be assembled again for twenty years, and I want them to compliment the mighty government, this great temple of liberty that has opened its arms to Che world and received them here in their hospitable hearts. I want them not to pass by this great gov- ernment, I am astonished to see men propose to pass by this great government and we assembled here as the whole people of California. We are told that this plank was put in the platform of the Working- men's party for claptrap— to set us right before the people. Sir, I was one of those men who drew that platform, and I am proud of it. There was not one single article in that platform that brought down the house and received such cheers in that convention as that did. Communists as they are, and looked down upon and despised for going to that con- vention, yet, sir, that whole convention responded like one man when that article was announced. I do not say that gentlemen may not change their views, and they have a right to vote as they like about it, but I do not want that party to be put into a wrong position. I know their feelings, and I know that that was the feeling with which that article was received. I hope it will be passed, particularly because it has been a disputed question upon this floor. Mr. RINGGOLD. In attempting to address this assemblage I would not presume to assume the character of an instructor. But, sir, not all the intellect of the world combined, nor the ingenious construction of language, ever made wrong right. I desire that the jieople of California should know that I comprised the minority in that committee that pro- duced this extraordinary section. It does not draw any line between powers conferred and powers reserved. The doctrine of State sovereignty might as well be announced here as anywhere else. We are building too much upon precedents. If all these documents were returned, per- haps the people might get into this Convention a political structure that would be in accordance with the spirit of the age. The Declaration of Independence declares that rovemment derives its power from the con- sent of the governed. The Constitution of the United States denies it The Declaration of Independence is a political expression. The Con- stitution of the United States is a political abortion. It exacts taxation from millions of citizens, yet deprives them of the right of representa- tion. It has ever been construed in the interest of capital. I do not misrepresent my constituents when I claim that liberty, protected by the Constitution and the enforcement of its provisions, shall be reserved, or we will have a constitutional death. Talk not of allegiance to Con- stitutions whilst the very heavens reverberate with the wail of suffering humanity. The Constitution of the United States has been violated in the interest of capital in every section and article. It has outlived its usefulness. Bo long as the South shook Uie Constitution in the face of Digitized by V Oct. 30, 1878. OF THE CONSTITUTIONAL CONVENTION. 243 the Uorth slavery was protected, but when the Constitution was swept uide then were four million human souls set free. If to preserve the Constitution liberty must be suppressed, then abolish the Constitution. I omnot indorse this section, for it strikes at all State sovereignty. I believe in State sovereignty, and shall ever stand by it as long as I live. Mb. van dyke. Some gentleman haa suggested the use of the word "supreme" in the place of " paramount." I would like to modify my unendment so as to include the word " supreme " instead of " para- mount." Thi CHAIRMAN. Thequestion will then be on the motion to strike out the words •' great charter of our liberties and the," and insert the woid "supreme" in place of the word " paramount." The amendment was adopted. Thi CHAIRMAN. The question recurs on the amendment offered hy the gentleman from San Bernardino, Mr. Rolfe, to strike out of the amendment offered by the ^ntleman from Los Angeles the words he propoaes in place of the section. The result of that motion, if carried, will be to strike out this article three. M>. HOWARD. For the purpose of bringing the committee to a direct rote, I will withdraw my amendment. Hi. B0LF£. I ask that my motion be put. Thi CHAIRMAN. The question is upon striking out the entire section. Hi. O'DONNELL. I wish to offer an amendment to the amend- ment. Ths CHAIRMAN. The question is on the motion of the gentleman from 8au Bernardino to strike out section three. The amendment was adopted on a standing vote : ayes, 73 j noes, 64. Hi. ESTEE. I offer a substitute for the section that was just stricken out; it is copied from the Constitutions of several of the States. TBI SECRETARY read : Sic .1. That this State shall ever remain a member of the Ameri- can Union; that the people thereof are a [mrt of the American nation ; that there is no right on the part of this State to secede, and that all attempts, from whatever source or upon whatever pretext, to dissoWe said Union, or sever said nation, shall be resisted by the whole power of the State. Ml. LARKIN. I move the adoption of the section. Ml. FILCHER. I move that the consideration of the whole subject be indefinitely postponed. Thi CHAlttMAN. No such motion as that can be put to the Com- mittee of the Whole. The amendment was adopted on a standing vote : ayes, 76; noes, 58. Thi SECRETARY read section four, as follows: Sic 4. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State ; and no person shall be rendered incompetent to be a witness or juror on account of his opinions on matters of religious belief; but the liberty of conscience hereoy secured shall not be so con- strued as to excuse acta of licentiousness, or justify practices ineonsist- eat with the peace or safety of this State. Hi. VACQUEREL. I move to strike out of line two the words "without discrimination or preference," and insert in the seventh line, after the word " State," the following : "And the Legislature shall not, under any consideration, enact any law giving preference to any leligious sect or mode of worship," so that the section will read : Src. 3. The free exercise and enjoyment of religious profession and Worship shall forever be allowed in this State; and no person shall Ik rendered incompetent to be a witness or juror on account of his opin- ions on matters of religious belief; but the liberty of conscience hereby *<'*' '''8 Legislature should have nothing to do with * liberty of conscience of the people. Ten years ago I remember that *as passed, and in some cases was enforced, but was declared noonatitutional. If we have that article, it is perfectly understood by fj', P*°ple that the people themselves, alone, and nobody else, have the \t •" olxuige that article of the Constitution. *f. Vgrnuerel's amendment was lost, '^B* CHAIRMAN. The question is on the substitute offered by the s'niietnan from San Francisco, Mr. Boerstecher. j^*^ O'SULLIVAN. I shall support the substitute offered by my col- 1^°°*' Mr. Beerstecher, for this reason: the word "allowed," in the wniB»!4 "' section four of the declaration of rights, as read to the ijij™j««e, clearly implies the right to disallow or deny ; in other words. ttmuiZj^ being an inherent right, it implies a privilege granted by ijr°r5«y. Now, sir, any such assumption, by implication or otherwise, "*«noald be, repugnant to every man. The word "guaranteed" is better, because it clearly implies an acknowledgment -or guarantee of rights, and not the granting of them. The substitute was lost. Mb. BARBOUR. I move to amend by striking out the words, "and no person shall be rendered incompetent to be a witness or juror on account of his opinions on matters of religious belief," and insert, "and no person shall be denied any civil or political right, privilege, or capacity on account of his religious opinions." I can briefly state the object of my amendment. The section as it stands provides that no person shall be rendered inoompetent to be a witness or juror on account of his opinions on matters of religious belief, and under the rule that the expression of the one is the exclusion of the other it might be construed that tbey could exclude people from holding office. My amendment is ntended to extend to all political and civil rights. Mb. WILSON, of First District In my judgment, if the amend- ment prevails the Legislature inav render witnesses and jurors incompe- tent on account of religious belief. It might be a very serious question whether to sit on a juiy is a privilege or not. Many men do not con- sider it a privilege. It mignt also be a question as to whether it is a privilege to be a witness. Mr. BARBOUR. The gentleman omits the word "capacity." The amendment says, "any civil or political right, privilege, or capacity." Mb. WILSON, of First District. I think it renders it very doubtful whether the Legislature may not exclude persons on account of religious beliet Mb. van dyke. I suggrat that when we come to the qualification of officers it would be a more proper place to put that clause. It seems to me to be uuneoeesary here. The amendment was lost. Mb. HAGER. I offer the following substitute: " All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. No man can of right be compelled to attend, erect, or support any place of worship, or to maintain any ministry, against his consent. No human authority can in any case whatever control or interfere with the rights of con- science. No preference shall ever be given by law to any religious establishment or mode of worship, and no person shall be incompetent to be a witness, or a juror, on account of his opinions on matters of religious belief." I offer this as a substitute. It is taken substantially fW>m the last Constitution of the State of Pennsylvania. I think its phraseology has an advantage over that contained in our Constitution, and which has been reported back by the committee. It would apply to all those cases, like the Mormons, who are compelled to perform religious worship according to a particular code. Mb. McFARLAND. I object to the term "worship Almighty God." We know that some of the highest civilized nations worshipM a god that was not Almighty. The Greeks and Romans did not believe in any one Almighty deity. They worshiped Jupiter, Neptune, Mars, Venus ; [laughter] and it might raise a very nice question. Mb. HAGER. As the gentleman appears to be an authority on tho question I move to strike out " Almighty." Mb. McFARLAND. I accept the amendment. [Laughter.] The substitute was lost. Mb. HERRINGTON. 1 move to amend section four of the bill of rights by striking out the word "juror" in line three, and insert "to hold office or discharge any public trust or duty." The amendment covers the whole objection made by the gentleman from San Francisco, Mr. Barbour. It also has the merit of completing what in my opinion was intended by this same section. That is to say, under that section the Legislature cannot prevent any one from holding office or discharg- ing any trust or duty on account of religious belief. The amendment was lost. Section five was then read, as follows : Sec. 6. The privile|^ of the writ of habeas corpus shall not be sus- pended unless when, in cases of rebellion or invasion, the public safety may require its suspension. There being no amendment, section six was read, as follows: Sic. 6. All persons shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive nnes imposed; nor shall cruel or unusual punishment be inflicted; nor shall witnesses be unreasonably detained, or confined in any jail or room where criminals are usually imprisoned. Mb. CAMPBELL. I offer the following: Amend section six by striking out all after "inflicted" and insert the following: " But noth- ing herein contained shall be construed to prohibit the infliction of corporal punishment for crimes; witnesses sliall not be unreasonably detained, or confined in any jail or room where criminals are usually imprisoned." I will state briefly the reason of offering that amendment. Three or four years ago the State of California parsed an Act providing for the infliction of the punishment of whipping upon men who beat their wives, and allowing the Courts in their discretion to substitute for or add that to imprisonment. One of the District Judges of this State decided the law to be unconstitutional, and discharged a party brought before him on habeas corpus upon the ground that the Act conflicted with the provision in the Constitution which forbid the infliction of cruel or unusual punishment. While I think that the Judge erred, and while I think that as a position of law it is perfectly clear that the punishment which existed at common law, and which to this day exists in one or two of the States of the Union, could not be so classed, I want to prevent the possible defeat of any enactment which the Legislature may hereafter pass upon this subject, and for that reason I have offered this amendment. We have found that our system of punishmenta in this State is grossly defective. We find to-day in the City of San Fran- t^ 244 DEBATES AND PROCEEDINGS Wednesday, Cisco that life is unsafe frequently. We find that bouses are broken open by burglars anned to the teeth, and willing and ready to take human life when they cannot otherwiao> accomplish their purposes, and it is the judgment of the community generally, as I think, that we require some severer system of discipline. In England the punishment of whipping was abolished. Within the last three or four years they hare found it necessary, from the great increase of crimes of the character to which I allude, to reSnact the law authorizing that punishment in all that class of cases; such as garroters, highway robbers, and midnight burglars; and the Legislature ought to have the power here. It has worked admirably in England, ft has stopped crime of that description to an enormous extent there, and experience, the best teacher, has proven that it is the only means to put any substantial stop to that kind of crime. I saw by the paper this morning, that on last night, in one of the most public streets of San Francisco, in the very heart of the city, a man was attacked by a gang of these people and actually kicked and beaten to death — there on Sansome Street, in the very heart of the City of San Francisco. Now, sir, we have here the worst system of prison discipline in the world, and one which will encourage crime and bring criminals among us in enormous numbers. If you go to-day to your State Prison, as you enter the door or gates, what do you see ? Is there anything suggestive of imprisonment within your sight? At the very entrance you are received by a gentlemanly looking " trusty," who will Srobably ofier you a cigar. And then ^ou pass out into a beautiful ower garden where ^ou are greeted with the odor of flowers, where you find the finest buildings, where the music of canary birds delights your ear, and where, so far from judging It was a prison, you would think you were entering a palace. You find that out of some fifteen hundred and odd prisoners there, but about five hundred of them have any employment at all. The rest are engaged in amusing themselves as best they may. A large portion of the men who are now in our State Prison are better off there than out of it. They are deprived, it is true, of certain dissipations which they were apt to indulge in outside, but they are supported in idleness at the public expense. For them the punishment which they receive has no terrors. As soon as their terms expire, they immediately resume a career of crime, and within a few weeks are in the hands of the officers again for a repetition of their • offenses. This system must be changed if we desire law and order to rule in Oallfomia. Let us profit by the experience of the past, iuid give the Legislature the power which it ought to have to inflict a punishment which will bring terror to the hearts of criminals. Take the men who are now in the State Prison, and, with the exception of those who have not been accustomed to a life of crime, they care nothing for the punish- ment. To some who have committed crimes and been sent there, and who still feel that they are men, and who still feel their sense of duty to society, and who feel ashamed of their position — I say that that doss of men is the one which suffers real punishment by confinement in the State Prison. This thing has been tried in England, and there it has put a stop to that system of highway robbery and garroting which had appeared there. The object of^this amendment is simply to enable the Legislature, in its discretion, to provide a similar punishment for that class of criminals. I have not that kind of sympathy which would say to me, " It won't do to degrade a man; you must let him go on and commit robbery; you must let him knock a man down in the street with a land-ctub for the sake of getting fifty cents out of his pocket; and if you inflict upon him a flogging, that is degradation." The duty of society is to use such pun- ishments as will secure the safety of honest and respectable men ; as will enable you to eo home at night without the fear or being knocked down by a sand-club or some instrument of that description. For these reasons, I offer this amendment, and hope that it will be adopted, and that it will be one step, at least, towards enabling the Legislature to pass laws that will stop this class of crimes. Ma. GREGG. Approving everything, the gentleman from Alameda, Mr. Campbell, has said, I offer the following substitute : "Sic. 6. Excessive bail shall not be ret^uired nor excessive fines imposed ; nor shall cruel and unusual punishments be inflicted ; but whipping shall not be deemed cruel or unusual as a punishment; nor shall witnesses be unnecessarily detained, or confined where criminals ore imprisoned." Mb. REDDY. Mr. Chairman : The fact that this business of whip- ping was known to the common law, I am sure is no reason to assign why we should revive it; I am sure that we do not wish to revive all the cruel punishments known to the common law because crimes are committed and go unpunished in certain communltiea. I do not think that is any reason why this whole State should be disgraced with the sound of the lash. I never want to hear the crack of the whip in America upon any man. I never want to see the lash descend upon any man's shoulders, I care not what his crime may be. If you commence whipping, why then you run directly against the theory that punishments are to be reformatory and not vindictive. If they are to become vindictive, why I should say that the amendment offered here by Judge Campbell does not go far enough, for if vou once allow the lash to descena upon a man, his manhood is deaa, and when that is dead there is no cnance for reform. I would say confine it to the gen- tleman's clients and I have no objection, but do not make it general in this free State. That it is cruel has been announced from the highest Court in the land. That it is cruel is the common verdict of all man- kind, and it is too late in the history of civilisation to renew any of those old and barbarous punishments. Whip a man in America I For my part I could not tolerate the bare idea of doing such a thing, much less to enact it, or place it as a black mark upon the Constitution of this State. Perhaps the gentleman has seen and known of a long list of crimes which have gone unpunished. It is not improbable that a great many of the crimes mentioned have gone unpunished in the City of San Francisco, and if the gentlemen are so desirous to prevent the evil, perhaps there is another way that that thing can be accomplished without the use of the lash. Mk. CAPLE8. Mr. Chairman: The amendment proposed by the gentleman from Alameda, Judge Campbell, presents to this Convention a very important question ; a vital question ; a question that we cannot give more attention than is due to it. That question is no more nor no less than this: Is our Penal Code effective? Does it accomplish Ihe end for which penal codes are enacted? That is the question. I aroeal I0 every gentleman on this floor. I appeal to the legal gentlemen in par- ticular, to answer that question and say if our penal laws are effective for the prevention of crime and the protection of society. I assert that it is not. It is not, Mr. Chairman. Hence the necessity, the absolute and vital necessity that the chains should be removed from the law- making power in order that society may be protected from crime ; and I demand that the shackles be token off, and that society have the right to defend itself. Mr. Chairman, the laws of all civilised countries concede to the indi- vidual the right to take life. That is, to take life in self-defenss. Would you deny to the body corporate, the body politic, the right to take life? To adopt this or that mode of defending itself? I deny that there is any right to deprive society of the right of self-defense when that right is freely conceded to the private individual. Now, in regard to this provision of the Constitution that is proposed to he obviated bv Judge Campbell's amendment. I hold that nnderthe operation or under a strict construction of that provision of the Consti- tution— " nor shall cruel or unusual punishment be inflicted" — I hold that no man can be hanged, because who will assert that to take a man and drag him up and let him choke to death is not cruel ? We all know that it IS cruel. There can be nothing more cruel conceived by the mind of man. It is torture the most horrible. And vet it is done. But it is done under a strained construction of that provision; and that is what Judge Campbell proposes to obviate. I demand, Mr. Chairman, in the name of honesty, in the name of virtue, in the name of everything that Is sacred, that the law-making power of the commonwealth of California be unshackled and left in a position to defend society against crime. Ma. KLEINE. Mr. Chairman: I do not see any reason why we should Ko bock to the dark ages, inflicting corporation punishment upon those who have committed a crime. [Laughter.] Let us first remove the cause. Here in the Slate of Califoniia we have at least four thou- sand white men out of employment. Is it a wonder we have crime committed? Is it a wonder, when the coolie can come every time and crowd our white fellow citizens out of employment? Is it a wonder we have crime? We may inflict corporal punishment upon criminals, but I assure you that it will not lessen crime at all. In San Francisco, u the gentleman says, some one got knocked down. Is it a wonder that instaid of one that fifty or a hundred are not knocked down every day? tiook at the fearful state of things in the City of San Francisco. It is almost impossible that a man can get employment. I hope that this wilt not pass. I have not the least doubt that the gentlemen upon this floor will not vote for such a bill as this; to go hack to the dark ages. Let us remove the cause, gentlemen, and then we won't have so many crimes committed in our midst. Mi. BARBOUR. Mr. Chairman: This extraordinary proposition which is thrown in here is also supported by an extroordinaiy reason. It seems to be hosed upon the ground of the failure of the administration of justice; and the facts stated by the gentleman from Alameda, that when he goes on his professional visit to Son Quentin that lie lights upon a territory of flowers, and is presented by 0 " trusty " with s eijcor, is reason for restoring to this world instruments of borborism in this day and in this a^ Why not propose something here to reform that administration of justice, and place all criminals on the same footing? That is what genUemeo want to do, place the petty thief and petty hoodlum upon the some footini. I speak but as an individual, my own feelings. Should the lash be laid upon my shouldera by any man it would be the pur- pose of my life to hunt out and retaliate upon that man the injurr he nad done me. If you want this extraordinary method resurrected, why not take it all ? Why not go bock and enact the old blue laws at once, the stocks and the pillory? Why not stick the mark of disgrace in the middle of the forehead at once? That will accomplish it. It is tros that it is barbarous. If gentlemen desire to be consistent, they oaghtto adopt them all, or propose to incorporate them all. Mr. O'DONNELL. I am opposed to corporal punishment, because I have seen the effects of it. I nad occasion to go to San Quentin f» examine two young men; one was flogged to death, and the other was in a dying condition. I called upon the official there, who said that it was impossible for me to see him at that time. Finally I insisted, and told him I came there for that purpose, and intended to see the boys. I went in one room where one of the boys had been flogged to death — he had died the night previous. In the other room I found the other man, about nineteen years of age, who never was in a State Prison before. He was used as a " trusty," and was sent out to attend the brick kiln. It appears that the watchman of the brick kiln had gone to sleep, and he sloped off. He finally was arrested seven days afterwards, brought back to San Quentin, and with a rawhide five feet long, with the end cut. off, the thickness of my little finger, he got one nundred lashes across his bare back. The effect was that it produced pus, and the consequence was, from the effect of the wound, that pytemia set in and he died. That is the reason I am opposed to corporal punishment, because they do not know how far to go. I was told by the officer at San Quentin, himself, that he would not perform this duty, but he was compelled by the Lieutenant-GoTemor to administer mm fifty to oas hnndied Digitized bfLjOOgle Oct. 30, 1878. OF THE CONSTITUTIONAL CONVENTION. 245 L lashes for the simplest crimes. Now, Mr. Chairman, that is one reason why I object to this corporal punishment, and I hope that there will be no delegate in this Convention that will lose his manhood to vote for such a section in the Constitution. Ht. 8TEDMAN. I hope the amendment offered hy the gentleman fW>m Alameda, Judge Campbell, will be adopted. I understand that this provision for corporal punishment onl^ contemplates the punish- ment of the man — in name — who has whipped his wife. Now, Mr. Chairman, I say that the man who would raise his hand to strike a woman, whether she be his wife or not, should be tied to the whipping post and receive corporal punishment; should receive at the bands of a strong man loahes upon his bare body. I care not whether it be on his back or where. [Laughter.] 1 do not believe that this would be carfy- iag us back to the dark ages. I believe that we could adopt it in this nineteeath century, and it would be considered by the people as a reform. I think it is a reform that is sadly needed, and I shall cast my vote for the amendment. Ma. BLACKMEB. Mr. Chairman: I cannot for a moment entertain the thought that an amendment of this kind can be adopted by this Convention. Why, sir, it is not to open the door, as suggested by the KDtleman from San Francisco, Mr. Stedraan, so that a man who whipe £is wife can be tied up to the whipping-poat, but it opens the door to the whole of that principle. It opens the door for all of those barbarous punishments that have gone with those other terrible things of the dark ages. Is it poesible that we are to turn back the hand upon the dial, and take the State of California back to the times of Salem witchcraft; back to the time when in England they hung a man for poaching; when hone stealing was a capital offense? We are told by the gentleman who introduced this amendment that the prison system of punishment is not effective. Is it the fault of the law, I ask? Is it the fault of the Judges that the punishment that is determined upon by the statutes is not carried out? It is claimed here that if we have the right to take life we have the right to do this. Mr. Chairman, I deny our right to do any such thing, and base it upon the grand eternal principle of right. If we are to mould our Constitution upon precedents, where are we to stop? Although I know I am not able to make an argument sneh as ought to be mMe upon this queation — although my language cannot do it justice — I cannot sit still and see a gentleman taking that position without raising my voice against it. We ■ball regrrt it, gentleman, if this amendment should be adopted. My position is this : if our State Prison is not effective, why yfe should take bold of the State Prison discipline and reform it. If our laws are not carried out, we should see to it that they are. If the law is not properly administered, we should not put into it other and barbarous pusishments, more than we have now, but we should see to it that those that are provided are carried out whenever a criminal is brought to justice. Is that true to-day? If we had a system under which they were sure of punishment — if we had a system under which crime was sure to meet with its reward — we would not have the trouble that we have to-day. But the fact is, that criminals, instead of being punished, too often escape. There is in many cases a reprieve, and other oppor- tunities to shirk the responsibility of the crimes they have committed. There is another point. It is stated here that we have a right to take life under the law, and it is admitted on all hands that it is a'eruel punisSraent. I want to ask the gentleman if it deters from the crime of murder. Does the fact that we have the right, and that that law is earned out in many instances, deter people from committing that crime of murder? Not at all. The reason is not in the law, but because there is something in the passion of man that carries him beyond all law, and beyond all tear of punishment. Now, sir, it seems to me that we are at work at the wrong end of this business. We are attempting after the tree is grown, after the branches have spread themselves, and the fruit, pernicious as it is, begins to fall, we are turning our efforts to the boughs and branches, and leaving the root of the matter untouched. Gentle- men, if we would take a step forward in this direction, we must go to the root of this matter and ntucate. We are bringing up our boys and our girls for " hoodlums," simply because our system of education is wrong from th» beginning. There are no opportunities for young men and }roung women ; there are no incentives ; there are no inducements; and it is growing worse and wons, and that is the reason why this tree of crime is growing and overshadowing us. And now gentlemen pro- pose by the lash to take off the branches and boughs, and leave the trunk and the root as vigorous as ever. I cannot believe that this Con- vention will adopt this amendment. I cannot believe that we are ready to take that stand before the intelligent men and women of this State. I certainly roust vote against it. Ma. FAWCETT. Mr. Chairman: I think it haa been correctly staled that this is one of the gravest and most serious question, that has been or will be presented in this Convention. I think it is apparent to all thinking men that there is something radically wrong in theadrainis- tration of criminal justice in the State of California, ana if there is any- thing which this Oanvention can do — it cannot do much — but if there be anything in its power, anything which it can do to correct the exist- ing taulta, the Convention ought to take that action. It appears, sir, from reading the criminal records of this State, that at present there are about one thousand five hundred felons confined in the state Prison of this State. Our population will reach a total of about nine hundred thousand. By comparing the criminal population here with thai in other States — take, for example, the State of Ohio— we find that our criminal population, our felons, are about as three to one. That is to aay, the State Prison of this State contains to-day, in proportion to the total population of the State of California, about three times as many criminals as the State Prison of the State of Ohio. The State Prison of that State contains about the same number as San Quentin, but the State fXains within her borders a population of nearly three million of inhrtHaiita. By farther ezamining the records here, we find that crime has been increasing rapidly, and that out of all proportion with the increase, the natural increase in the population of tne State. At a time when we had about six hundred thousand people in this State the crim- inal population at San Quentin numbered about nine hundred. Now, with a population of fifty per cent, preater — an increase in the popula- tion of fifty per cent. — we have an increase of the criminal population, of felons confined at San Quentin, of about sixty-six or seventy per cent., and that percentage, sir, is rapidly increasing, out of all proportion, out of all ratio with the increaseof population in this State. This fact alone, sir, shows that there is radical wrong in the administration of criminal justice in this State, and it is time, sir, that the remedy was applied. It IS time that something had been discovered to stop the tide of crime, and to correct the evil from which we are suffering to-day. Why, sir, it has been correctly said that under the prison system that has been adopted in this State, the criminals confined at San Quentin are better housed there than they ever wers anywhere else in the whole course of their lives. Better fed, better clothed, better treated, half of them, than they ever were elsewhere in the whole natural course of their lives. And the result of th%t has been that nearly one half of the criminals in San Quentin to-day are there undergoing their second and third, and, in some cases, fourth terms of imprisonment in that prison. If tbe^bject uf punishment is reformation, then the system totally foils to accomplish the object. If the object of punishment is to deter men from committing crime, that also has failed, because the system we have here to-day is not good in that particular at all. Now, sir, I am not one of that school of sentimentalists who believe that there is anything/^specially degrading in the infliction of corporal punishment I believe, sir, that the time when the criminal is degraded IS when he commits the crime; and having become so degraded as to commit crime once, twice, or thrice, repeatedly — as oflen as be may possess the ability — he is none too degraded to feel upod the back the lash. There are certain States in this Union in which that kind of punishment has always been inflicted. One occurs to me at this moment, and that is the State of Delaware. That sort of punishment has been inflicted in that State always, upon all classes of criminala The statistics there show that it is a very unusual thing for the same criminal to be punished in that State a second time. They have a sys- tem there, gentlemen, which, if not reformatory, is at least preventive of crime. Their statistics show that where a criminal is apprehended and convicted there, and subjected to the punishment of the lash, and he is enlarged again upon society, that if he sees fit to raise his hands against society again, he betakes himself to some other State, where the whipping- post does not exist. He finds crime unprofitable in Delaware — he finds it unproductive. His back, I apprehend, leels a lively recollection of certain tingles, which cause his nature to be satisfied. That is the result of that kind of punishment in Delaware. Virginia and Kentucky also have this punishment. There is too much sentimentalism spent upon the criminal. There is a school existing which looks upon the criminal as a ward to be tenderly nurtured. Another school looks upon crime as a disease — to be treated as a disease: to be cured as a disease. Why, sir, I do not believe in regarding or treating the incendiary, the robbOT, the murderer, and the ravisher in that style at all. I think there is a large class of people in this world — the criminal class — who are lost to all moral sense, and who stop at no crime; whose backs were made to be lashed, and there is nothing degrading in that sort of punishment to that class of people. The degradation began farther back, when the crime began to be committed. The gentleman from San Diego, Mr. Blackmer, speaks in this Conven- tion of capital punishment and asks the Convention the question, does hanging, which is denominated by sonje as cruel, prevent murder ? I answer him in the affirmative, and I have only to cite him to the recent case in the State of Iowa, where four years ago, under the pressure of long-haired sentimentalists, capital punishment was abolished, and I tell . you that at onoe throughout the length and breadth of that State there was a carnival of crime. Within less than a year the effect was marked. Murder succeeded murder until it became so in that State that lynch law, which had never before prospered there, became to be the rule all over the State upon the slightest provocation. The people felt obliged to take the law into their own hands and to execute summary justice. The effect was demoralising. They went so far as to break the doors of a prison and to take hence a murderer who had been convicted and sentenced to imprisonment for life and hang him. The Legislature became alarmed, and last winter they passed a law retuminjj to the old System of executing persons who were convicted of murder m the first egree. So I say that experience in that State has been to the effect that hanging does prevent murder, and I am equally clear that experience would be to the effect that if the punishment of the whipping-post was inflicted crime would be bridled. Now, it has been decided in this State that the punishment of whip- ping is cruet and unusual. I do not think the decision legally sound, because that language was used in Constitutions all over the Ijnion at the time when the whipping-poet flourished, and therefore the judicial construction that has been given to that section is probably wrong, but still it has been so construed, and probably will be so construed again, and I propose to vote on this question to have all doubt removed, and making it so plain that there can be no misconstruction. I believe in treating criminals to personal pain and chastisement, as a means of suppressing crime. I believe that there are criminals who cannot be treated in any other way, and that the effect of a chaujge in the laws would be instantaneous as applied to some classes of criminals; as it has been in England, where whipping has been introduced for gar- roting, and where it resulted in breaking up that crime substantially. The effect would be instantaneous here, and some change is needed. The Legislature should be, in the language of my friend from Sacra- mento— should be left at liberty to provide such a system as experience may show is needed, or is proper to be provided; should be len free to Digitized by V 246 DEBATES AND PROCEEDINGS Thursday, provide such punishment as it sees fit. 'With that view, I shall vote for this amendment. Mr. LARKIN. I regret to hear a Judge that has a right to sit upon the bench in this State express the views that h^does upon this occasion. I regret that any man occupying the position of Judge of the one of the highest Courts should not have one particle of the milk of human kind- ness in his veins; whose sternness would crush the poor criminal, and give him the whip, and disgrace him forever. I regret that such men as this are sitting upon the t^nch of this State. It is unfortunate. And why? In the history of this States we find that the greater criminals — this kind who rob the people, who have robbed the State and the United States — have gone free through the connivance of Courts. They have' escaped. And yet a Judge rises here and recommends the lash if a petty ofiense is committed. I say it is a pity that these men do not find some means to protect the people against these men who rob the people. Mr. FA'WCETT. I would like to whip them, too. Mr. LARKIN. 'Why don't you say so? My friend from Sacramento would like to imprison a'nftin in the penitentiary for stealing a small lamb he has got, a lamb tijat is not worth a bit; but there is no way in our laws ana our Constitution to ca(ch some of these large thieves. It is the fault of the administration of the government, ;you will say, that this bank robber or this treasury thief has escaped justice. You will see plenty of lawyers ready to take fees to free him. No matter what crime he has committed he can always get a lawyer to attend his case if he is rich, and a Judge to hear his case. It has beoora^ fashionable to rob the people, and to-day the people regard these men who have been suc- cessful thieves as model men in society. There A the fault. It is not in the administration of justice. It is not that our laws are not strict enough, but it is the leniency of the Courts to these men who are rich. Throughout the State and the United States the men that are rich can- not be punished in our Courts. You gentlemen sitting «n the bench, you attorneys attending causes before our Courts, see that you do not turn away a man who has got money to escape. Again, our laws — both the laws of this State and most of the States — are so framed to protect the criminal that it is almost impossible to con- vict. None knows that better than the distinguished gentleman from Alameda, Mr. Campbell. He knows that legislators nave sought in every way possible by legislation to provide for the escape of criminals. Here is the misfortune. Let laws provide to punish the great criminal and we will not have much complaint about these parties stealing little things. Mr. BARTON. Mr. Chairman: I do not really know or understand the temper of this Convention upon this very important matter; but if by any word that I in my feeble way might utter I onuld prevent the intelligence of this Convention from voting in favor of the adoption of the amendment ofiered by the gentleman irom Alameda, I should cer- tainly feel a thousand times thankful in behalf of humanity, in behalf, Mr. Chairman, also of the honor of the State of California. I do not believe the people of this State are ready to see her representatives in a constitutional body take a step backwards towards the dark ages of bar- barism, and erect upon the free soil of America the whipping-post — and if you please the guillotine. These, my fellow countrymen, are things of the dead past, and it is not for you or me to resurrect them. Mr. Chairman, the fault is in another direction. It is not the fault of the laws so much as it is in the administration of the laws. Look, if you please, at our Marcuse, our Davis, and the untold number of criminals in the City of Sacramento to-day that have become embezzlers, and have stolen the people's money and have gone unpunished, and what is the trouble? The trouble is, sir, that the very men who to-day are the men of fees, who by education and by nature are men of fees, have interest that these criminals shall go unpunished before the law; and it is for us not to take a step backwards in this dark and terrible direction, but to insist upon the indiscriminate execution of the law. Let the people have officers to enforce the law, and I think, Mr. Chair- man, we wAl not need the lash, I hope and trust in God's name that this Convention will not sanction any such unheard of thing in the nineteenth century; that when a man beats his wife there will be a proper law to provide for his punishment; but to return to the dark ages, to bring men to the whipping-post, is something that my nature revolts from. I hope the amendment will not be adopted. Mr. McCALLUM. The way of the transgressor is hard, and for the protection of socie^ it should be, too. Perhaps it ought to he harder than it is now. I think the argument of the gentlemen who are in favor of restoring corporal punishment has proved that proposition, hut I cannot admit that they have proved that the way to make it harder is by returning to the dark ages. Two or three Slates of the Union have such laws, says my colleague. I hope California will not be the second, nor the third, especially in view of the fact that of all the Constitutions I have before me here, not one contains what is proposed that ours shall contain, an invitation to return to corporal punishment; many of them, at least some of them, expressly prohibit corporal pun- ishment, and say it shall not be inflicted. But two or three States nave tried it, they say. The gentleman from Santa Barbara, Judge Fawcett, tells us that in Ohio there are but one third as many criminals in pro- portion to the population as we have here. I waited to hear the point of the argument; whether they had the whipping post in Ohio, and I am happy to say they have nothing of the kind there. Having once lived there for many years I am glad, for the credit of the State, that they have not. Delaware is the only one where I have heard of it, but I understand that they have it in Virginia and Kentucky. But it seems to me that the provisions of their Constitutions are substantially the same as ours, and if the difficulty is in the word " unusual," then it is a sufficient answer to say that if it is to become fashionable, let it become fashionable elsewhere first, and the objection that it is unusual will cease to apply to our Courts. The gentlemen say that the Courts decided wrong, and they rendered that decision many years ago. I do not know what their decision might be now; but I do know that I do notpropose,Bo far as my vote goes, that the Constitution of California shall be the first to invite corporal punish- ment. This has been a great question in these United States. In the Congress of the United States an amendment was adopted to the Con- stitution of the United States prohibiting cruel ana unusual pun- ishments. Some years ago, I remember, that this question of such punishment in the navy was the subject of discussion there. I believe for a time it was abolished. I am unable to state the condition of the question now, but for a time it was abolished. The tendency of the sge has all been in that direction. Now it is proposed that we return to it; but the whole argument' is that the punishment is not sufficient. The argument seems to prove it, but no ar^ifment has been presented here to show that it is the only kind ofpunishment that will make the way of the transgressor more bard. Why don't some of the gentlemen sug- gest some means by which crime may be lessened by a greater certainty of punishment which would be secured by some proposition pending before this Convention? Is there anything cruel or uuusual in con- demning a criminal to hard labor? It is not cruel or unusual, and at the same time it is not brutal. Might not the criminal be condemned to a diet of bread and water, and then not even given that if he does not labor? If the punishment is not great enough seek some other means, but not return to this brutal system. I have heard it said that the worst thing you can do with a man is to hang him. I deny it. The worst thing is to publicly whip him, and turn him loose upon society. You hwl better hang him in the first instance. Mr. GORMAN. I can remember, when a small child, of a picture in about the first book I ever studied in — a picture of whipping at the post in Delaware. It was in a geography. From that moment I always was against whipping, for it seemed to be a cruel and unusual mode of punishment I nope that it will not be introduced into this State. The picture of that criminal has taken hold of my mind from that day, small boy as I was, until the present time ; and I shall always be against the adoption of that system of punishment. They say that the laws are not efficient to prevent crime in this State. I beueve they are if right- fiilly carried out. Now, who are the criminals that are brought before the bars in this State? A great many of them are from foreign countries, as this is a great center. As Ban Francisco is a great commercial center, they oome from all countries ; consequently we nave more criminals, and we expect more thlui places that are inland and are not great commercial centers. We ^t them from all portions of the world. This State has been a flounshing State. It is a place where money has been plenty, and con- sequently criminals have been attracted here in great numbers. We have had crimes committed here in Sacramento very latelv. We have bad steals to an unusual amount in banks and other institutions here, and the men have gone free and are not punished. We see the same in San Francisco. Whose fault is it? The laws are there if they are carried out, and I believe that they are not carried out as they should be. Now, a great many of the criminals of the State come from the boys of the State. Boys growing up in this country are almost without a means of gaining a living. They are crowded out by a certain class of people. I am a mechanic and I know that the boys come to all the shops of the State asking for work — ^boys that are really good; lyvught up by good parents. If they go to any part of the State they find a class there ahead of them that takes away their chance of earning a living. They cannot get work. They wiU not starve, and they steal before they will starve. They have no work in the daj^time, conse- quently they stay around nights, and the first thing get into low dives and cellars, and from that they very soon get to be criminals, first on a small scale, and then the great criminals of the State. These are facte known to every one that lives anywhere around the City of San Fran- cisco. They cannot get anything to do, and they have got to commit crime to make a living. They speak about capital punishment as though it should be abol- ished. It has been abolished in a great many States, and rc^nacted. The^ talk about this in the some light, but I cannot see that capital punishment can be compared to it at all. I should be in favor of capi- tal punishment but not in favor of this, for capital punishment is where life is taken, and this is for petty ofi°enses. Let any one examine the criminal records of this State and they will very soon decide where the criminals are educated, and bow .this system can be changed so that there will not be so many criminals in this State, and that will be on the question of Chinese. Mr. LINDOW. Gentlemen of the Convention: I am very sorry to see that this is introduced, but I am glad that Mr. Campbiell did it. Here we are represented from the whole State, and we discuss this for an hour and a half, and if it goes wrong we soon see on which side we have got the good men. The parties that will vote for a bill they say it is a good one, and the ones that vote against it of course they say it is bad. That is my idea. It settles it just as plain as anything. The gentleman from San Francisco says the boys want work. That is all very well to say. They say, " Well, we can't get work ; we have to steal." I have got five children myself, and if they ever make an attempt to steal I go and gives them the lash. I never let them go to the whipping post It seems to me that some gentlemen are afraid of it You can keep out of it if you like. Keep straight forward and yon never get at the whipping post any. Now,the boys they come into mine store, and I could give them work if I could have control of them, but you bave got no control of a boy here. There is work, but the boys wants to work when he likes, and he leaves you when he is some account Nobody wants to beat the boy. It would be a beast of a man that would raise his hand to a strange child to give him the lash. I waa a man, twenty-two years of age, and I have got a lickiu' from my mother. I never was before a Court in my life, but still I always got to work. If the-iofister bad tbf control of a Digitized by LjOOQ IC ^iv". t Oct. 31, 18?e. OP THE CONSTITUTIONAL CONVENTION. 247 child as be would of his own, I would take a boy to leam the trade ; but jou have got to take the boy and support him and pay him, and some of these days his temper will get up, and he goes ofT Now, if we have control of children fourteen or fifteen years of age, to train them up to learn the bosiness, we would not have so much hoodlums. Because why? You have got the control of them. But if this whipping post would come in they would get whipped if they go to steal, and they would go to work, because they would not like it. Now, a man spends his time on these boys to leam them the trade, and they want to be paid right off big wages. Now, I have learned a trade at seventy-five dollars a year, and furnished everything except food, and I was very glad to leam it that way. Now, gentlemen, it is no use to talk. Let us go and vote on this question and see bow this case stands. Ma. SHOEMAKER. I move that the committee rise, report progress, and ask leave to sit again. The motion was lost, on a division — ayes, 60 ; noes, 88. Ma. VAN DYKE. Just one word, Mr. Chairman. I hope this amendment will not be adopted. I think that the members of this Convention do not see Che sc»pe which it embraces. Now, it includes sll corporal punishments. The gentleman from San Francisco, Mr.- Stedman, saia he was in favor of flogging wife beaters. The gentleman from Santa Barbara, Judge Fawcett, gives statistics in reference to State Prisons. Now, wife beaters do not go to the State Prison. 6o that if the gentleman from San Francisco wishes to confine it to them, of course the statistics of Judge Fawcett do not support his argument at all. All it proposes is to return to the old repudiated plan of corporal punish- ment. Now, we can reform the prison system in this State. Put the ball and chain to these confirmed criminals, and put them to work, and not disgrace the State by returning to barbarism in this age of the world. I am opposed to the amendment. Mb. Joyce. The gentleman from Santa Barbara, Judge Fawcett, nys that if there is anything that can be done by this Convention to itop crime, we should do it. In that I agree with the gentleman. But why has not this learned gentleman of so many years' experience given U3 some idea of what can be done? Now, the fact is patent, Mr. Presi- dent, to yourself, as being a practitioner before the dourts, as much as any other living man, that to-day in the State of California there is a premium on grand larceny, while petty larceny thieves are punished. These men pretend to say that petty larceny thieves ought to be punisheal more, while such men as Kalston go unpunished. Why don't they Jicture out this class of crime as the others were pictured liy our friend, udge Campbell. It is a mild term to call this fraud ^rand larceny. Flood, Sharon, and others, rob men of their hard earnings, and then leave them without a dollar to get their families food to eat. If they show us any practical way to lash them, I will say lash them, and lash tveiy inch of their bodies off; but until they do that, I am opposed to lash- ing one class of criminals and grant a premium to another. Our friend from Sacramento wants to protect societv. What form of society is it? Why, it is these grand larceny thieves who have built themselves up by plundering the people under the pretense of law. What has built up the millionaires of tne City and County of San Francisco and the State of California? Why, it is their manipulations in stocks of various descriptions — mining stocks, water stocks, railroad stocks, and land grabbing. This is what forms society here, and this is the class that wants the lash. They want to lash the petty larceny criminal, but not the grand larce^' thieves. Mr. FAWCETT. I beg to correct the gentleman. I said nothing of the kind, and entertain no such opinions. I believe in making a law to bear perfectly ecjual upon all classes, and in whipping all classes who ■how by their crime that they are deserving of that punishment. Ms. JOYCE. We know that the laws are there, but these men do not get punished. Mr. Wilson told us that we bad no ri^ht to legislate for a coming generation. I know that the laws are optional with the Jud^, ana we all know that some counsel have great influence on the opinions of Judges, as we read from the decisions of late in this State. If these gentlemen can show ue that this worst class of criminals in this Btste, these grand larceny thieves, will be lashed, I will go for giving the lash to them. Mb. CAMPBELL. Mr. Chairman : I desire to say but a very few words. I do not think that this amendment is thoroughly understood by lome gentlemen who have spoken upon this floor. My colleague nys that this term means any kind of torture. The language is plain. It means the whipping-post, and nothing more or less. This amend- ment does not reestablish the whipping-post. It merely gives the Iisgislature the power, if such a state of things shall be found to exist as to render the reSstablishment of the whipping-post necessary, to do so. Of course the natural feeling of all of us is arainst undue severity of punishment, but if you find that other means of repressing crime are not effectual, you must remember that the very first object of punishing crime is to protect society. The reformation of the offender is a mere Kcondary object. Those laws which are nece&ary to preserve the peace and order of society ought to be reenacted; and if in the future it shall appear that other punishment will repress crime you can abolish it alto- gether; but if it shall appear that it will have an influence in repress- ing and preventing crime, that it will save our citisens from outrage, and protect them from wrong and personal violence, and from fraud — if the b^ialature shall find it necessary in the future, why not do that which may he necessary for the protection of society. This does not specify any particular species of crime. That is neces- isiily left to legislative discretion. I do not think myself that it would be a bad exeroise of legislative discretion if the men who robbed the people of millions were triced up to the whipping-post. I have no ok)action to it And let me say toig, sir, that certain gentlemen speak has as if we were endeavoring to oppose all reforms. I do not oppose *»y refomw here.' In the course of this Convention, if no other geutle- mta ahall propose measures which are calculated to repress the swin- dling by oflxcers of corporations, I shall propose them myself. I shall do all in my power to repress crime in all states and conditions of society, but at the same time I do not desire to shackle the bands of the Legis- lature. This particular kind of punishment has proved immensely beneficial in Great Britain, where experience shows that a man who has received one whipping rarely comes back for a second. I say, if the Legislature can, by establishing that punishment in the future, repress crime, I am in favor of it', and opposed to that sickly sentimentality which sees a fellow knock you down and nearly kill you, to rob you, but says it will be very inhuman to let him have lashes on his back. Why, sir, there would be a discretion in these Courts if the Legis- lature should pass any Act of this description. It would be appued where ofl°enses were of such a description, and showed such a degrada- tion of manhood, that the infliction of the lash would be no additional degradation to the offender — where he was lost to all sense of shame and decency before; where he was a public enemy, and where it was necessary to resort to the infliction of that physi(^ suflTering which would prevent him from committing crime if he tiad lost all moral sense. Mk. WICKES. I have been compelled in my profession to use the rod; and it has been thought that members of my profession are partial to its use ; but, sir, it is a laceration to the feelings of any one to use the rod. There is nothing dignified in its use whatever. In the adminis- tration of school discipline, perhaps, it may be necessary. An ancient savant says, "spare the roa, and spoil the child," but he never says "man" once. I do not believe that man is in a pupilage, or that he can be benefited by the whip. The older nations in the dark ages resorted to all kinds of brutal punishments; but I think we should avoid copying after such uncivilized and barbarous peoples. I do not believe that we should give the Legislature all this power. I know that the practice of fiog^ng obtained m the navy, but through Commodore Stock- ton it was aboushed, and the discipline of the navy has been better ever since. I am opposed to the amendment, because I know the impro- priety of using the lash. In regard to capital punishment, there is something dignified in that which deters from crime. Mb. KLEINE. I think the punishment of criminals is too severe to the small criminals. I know of one boy, nine years of age, that snatehed the purse of a lady, oonteining five cents, was sent five years te State Prison, whilst men who have stolen five or six millions of the earnings of the people have gone scot free. I hold that this amendment is going back three hundred years ago. I say that the punishment is too severe. I never knew a case yet — I never knew a criminal yet in my life that was reformed by the whipping-post. For my own part, the man that would lay the whip upon me I am sure I know wlvat I would do with him. Mr. President, I say as I said before, we should take compassion upon the poor criminal. If these State Prison keepers were men of humanity, if they would treat prisoners more like human beings, I assure you we would not have half the prisoners that we have to-day. Tub chairman. The question is on the adoption of the amend- ment offered by Judge Campbell. The amendment was adopted, on a division : ayes, 69 ; noes, 63. Mr. GAR'VEY. I move that the Committee rise, report progress, and ask leave to sit again. Carried.- IN CONVENTION. Tri president. Gentlemen, the Committee of the Whole have instructed me to report that they have had under consideration the article on preamble and bill of rights, report progress, and a£k leave to sit again. ADJOVRNMBIIT. Ma. LARKIN. I move we adjourn. The motion prevailed, and at five o'clock p. m. the Convention stood adjourned until to-morrow, at ten o'clock a. m. THIRTY-FOURTH DAY. Saokahbxto, Thursday, October 3Ist, 1878. The Convention met in regular session at ten o'clock a. m.. President Hoge in the chair. The roll was called, and members found in. attendance as follows : Andrews, Ayers, Barbour, Barnes, Barry, Barton, Beerstecher, Belcher, Bell, Biggs, Blackmer, Boucher, Brown, Burt, Campbell, Caples, Caseerly, Chapman, Charles, Condon, Cowden, rSBSBNT. Crouch, Graves, Davis, Gregg, Dowling, Doyle, Hager, HJe, Dudley, of San Joaquin , Hall, Dudley, of Solano, Harrison, Dunlap, Harvey, Eagon, Heiskell, Edgerton, Herold, Estee, Herrington, Estey, Hilbom, Evey, Hitehcock, Farrell, Holmes, Fawcett, Howard, Filcher, Huestis, Finney, Hughey, Freeman, Hunter, Freud, Inman, Garvey, Johnson, Ghiacock, Jones, Gorman, Joyce, Grace. KeUey /^~^ Digitized by Vo Google ^ DEBATES AND PROCEEDINGS Thursday, Eeimj, Ktjf, Kleine, Laine, Lsmpaon, Larkm, Larue, Lerijiiie, Lewis, Mansfield, O'Donnell, Ohlever, O'Sullivan, Overtoil, Porter, Prouty, Pulliam, Reddr, Reed, Reynolds, Martin, of Alameda, Rhodes, Martin, of Santa Cruz, Ringgold, McCallum, Rotie, McComas, Schelt, McConnell, Bchomp, HeCoy, ShaOer, McFariand, Shoemaker, McNott, Shurtleff, Miller, Mills, Moffat, Moreiand, Morse, Murphy, Nason, Nelson, Neunaber, Noel, Sweasey, 'Swenson, Swing, Terry, Thompson, Tinnin, Townsend, Tully, Turner, Tuttle, Vaoquerel, Van Dyke, Van Voorhiea, Walker, of Marin, Walker, of Tuolumne, Waters, Webster, Weller, Smith, of Santa Clara, Wellin, Smith, of 4th District, West, Smith, of San Francisco, Wickes, Soule, White, Stedman, Wilson, of Tehama, Steele, Wilson, of Ist District, Stevenson, Winans, Strong, Wyatt, Stuart, Mr. President. Dean, Lindow. Berry, Cross, LKATX or ABSXKCK. One day's leave of absence was granted to Mr. Cross, and two days' leave to Mr. Herold. Mb. HILBORN. I move that the reading of the minutes of yesterday be dispensed with. Carried. PITITIOH — LOCAL OPTIOR. M>. HAGER presented the following petition, signed by a lam nam- ber of citizens of San Francisco, asking for a provision in the institu- tion for a local option law : Tb the hoDonbla ('onititatloiial ConTcnHon of the 8U<« of Oslifomla: Wa, the nnderdfUMl. rrspectfUllx petition joar honorable body to Ineert Id the new Oonetltution of this Suie a elMiae elmilar to that now in fore* |n the titsle of Texas, to wit: Sscnoii — . The Leglalatore ihall, at its lint ieaaion, enact a law whereby the qoalilled Toten of any county, Toting precinct, town, or city, by a malority Tote, mm time to time, may determine whether the aale of intoxicating liquors shall be prohibited within the prescribed limits. Referred to Committee on Legislative Department. rt;BTBIB TIMB. Mr. BLACEMER.' The Committee on Future Amendments desire to report progress, and ask for further time. Thk PKJiSIDENT. If there be no objection, farther time will be granted. Hearing none, it is so ordered. ■■rOKT ox CHIXISK. Mk. miller, from the Committee on Chinese, presented the follow- ing report: Ka. PassiDSin : The Committee on Chlneee, to whom was referred certain ptopuaed amendments to the Oonitltution, reUUng to Chinese, beg leare to report back to the GonTention the following propuaitiona, with the recommendation Ihat no Airther action be ulcen thereon, tIs.: Prypoattlon number one, introducrd by Mr. Dowling; number leTenteen, introduced by Mr. Joyce: number aerenty, introdnced by Mr. Barnr ; number one linndred and thirty, introauced by Mr. Kenny ; number two hundred and aixty^lx, introdnced by Mr. Kleine; number eighteen, introduced by Mr. Joyce; number sixty, introduced by Mr. U'Doniiell; number eerenteen, introduced by Mr. Hnrphy ; number one hnndrad and aerenty three, introduced by Mr. Wellin; number three hundred and twentyK>ne, Introdnced by Mr. O'Donnell ; number three hundred and ninety, introduced by Mr. Joyce; number three hun- dred and eighty-eight. Introduced by Mr. O'Donnell ; number four bundrrd and twenty-three, introduced by Mr. Iblee; number fortyroor, intnidnced by Mr. Turner; number one hnndrad and thirty.one, introduced by Mr. Kleine; and the second and third sections of number two hundred and ninety-two, by Mr. Tuttle. The committee haa careftilly considered the foregoing, and adopted. In substance, such portions as hare been deemed of piBCtical value, and Included the same In the amendments to the Constitution herewith presented for the action of the Conrentlon. Tour committee alio begi leare to raport back the amendment number three hundred and flfty-two, proposed by Mr. Miller, amended as Oie same appears In sec- tion one of the draft of amendments accompanying thia report, with the unanimous recommendation that the same be sdopled aa amended. A mi^rity of the committee has agived to and instructed me to report to the Cob- vention the first section of ptoposltlon number two hundred and ninety-two, by Mr. Tuttle, amended as the same appears in section two of the draft of amendments here- with, with the recommendation that the same be adopted as amenaed ; also, propo- sition number twenty-three, by Mr. Nelson, which Itamlahes section three of the accompanying draft of amendmenta, with like recommendation ; also, proposition number sixty-fbur, by Mr. Ayen, amended as the lame appears in section tour of the accompanying draft of amendmenta with the recommendation that the same be adopted as amended ; aleo, the flrat section of proposltloD number nineteen, by Mr. I.arkin, which forms section Are of the accompanying draft, with the recommenda- tion that the same be adopted. In addition to the foregoing, a majority of the committee has agreed to and instructed me to present, for the consideration of the OouTentlon, the four sections, numbered six, seven, eight, and nine, respectlTsly, in the draft of amendments here- with, with the reeommendatlan that the same be adopted. Tour oommlttee begs to submit the result of its labon without comment, it being reserved, by common consent, for each member of the committee to sustain or oppose, in Convention, the whole or any portion of this report. JtsspsctlbUy submitted. fW. r. MILLKB, Chairman. DIAPT or AMKDllim TO TBI COHSTITCTfoiC, FBISCIITIO BT TBI coxmittii ox chixisx. Abticlb — . SiCTiox 1. The Legislature shall have, and shall exercise the power, to enact alt needful laws, and prescribe necessary regulations, for the protection of the State, and the counties, cities, and towns thereof, from the burdens and evils arising from the presence of sliens, who are, or who may become vagrants, paupers, mendicants, criminals, or invalids afflicted with contagious or infectious diseases, and aliens otherwise dangerous or detrimental to the well being or peace of the Slate, and to impose conditions upon which such persons may reside in the State, and to pmvide the means and mode of their removal from the State, upon failure or refusal to comply with such conditions, provided, that nothingoontained in the foregoing shall be construed to impair or limit the power of the Legislature to pass such other police laws or regula- tions, as it may deem neoeasary. . Sbc. t. Any corporation incorporated by or under the lawf of this State, or doing business in this State, shall forfeit its franchises and sll legal rights thereunder, if it ever employs, in any capacity what- ever, foreigners who are not eligible to become citizens of the United States under the laws of Congress. This section shall be enforced by appropriate legislation. Sic. 3. No alien ineligible to beoome a citiien of the United States shall ever be employed on anv State, county, municipal, or other public work in this State after the adoption of this Constitution. Sic. 4. All further immigration to this State, of Chinese, and all other persons ineligible to beoome citizens of the United States under the naturalization laws thereof, is hereby prohibited. The Legislature shall provide for the enforcement of this section by appropriate legisla- tion. Sic &■ No person who is not eligible to beoome a citizen of the United States shall be permitted to settle in thia State, after the adoptioo of this Constitution. 8x0. S. Foreigners ineligible to become citizens of the United States, shall not have the right to sue or be sued in any of the Courts of this State, and any lawyer appearing for or against them, or any of them, in a civil proceeding, shall forfeit bis license to practice Isw. No such foreigner shall be granted license to carry on any business, trade, or occupation in this State, nor shall such license be granted to any person or corporation employing them. No such foreigner shall have the right to catch fish in any of the waters under the jurisdiction of the State ; nor to purchase, own, or lease real property in this State, and all contracts of conveyance or lease of real estate to any such for* eignen shall be void. Sic. 7. The presence of foreigners, ineligible to beoome citizens of the United States, is declared herein to be dangerous to the well being of the State, and the Legislature shall discourage their immigra- tion oy all the means within its power. It shall provide for tneir exclusion from residence or settlement in any portion of the State it may see fit, or from the State, and provide suitable methods, by tbsir taxation or otherwise, for the expense of such exclusion. It shall pre- scribe suitable penalties for the punishment of persons convicted of introducing them within forbidden limits. \It shall delerate all neces- sary power to the incorporated cities and towns of this State for their removal without the limits of such cities and towns.^ Sic. 8. Public officers within this State are forbidden to employ Chinese in any capacity whatever; violation of this provision shall be ground for removal from office; and no person shall be eligible to any office in this State who at the time of election, and for three months before, employed Chinese. Sic. 9. The exercise of the right of suffrage shall be denied to any person employing Chinese in this State; end it shall be a sufficient challenge that the person offering to vote is empluyins Chinese, or has employed them within three months next preceding the election. Mb. miller. I move that the amei^dment lie on the table, and be ordered printed. Tax PRESIDENT. So ordered. PBOPOSBD AMBXDMCXT8. Thi president. The next order of busineas is the introduction of resolutions and propositions relative to the Constitution. Mb. WILSON, of First District. I desire to send up a proposition, at the requeet of the Committee on Judiciary and Judicial Departments, and asK that it be printed out of its order, and referred to that oom- mittee: JtrailCIAL DBPABTMBXT. SioTioH 1. The judicial power of the State shall be vested in the Senate sitting as a dourt of Impeachment, in a Supreme Court, Superior Courts, Justices of the Peace, and such inferior Courts as the Legislaturs may establish in any incorporated city or town. Sic. 2. The Supreme GouTi shall consist of a Chief Justice and six Associate Justices. The Court may sit in departments and in bank,aDd shall always be open for the transaction ol business. There shall be two departments, denominated, respectively. Department One and Department Two. The Chief Justice shall assign three of the Asso- ciate Justices to each department, and such assignment may be ebanged by him from time to time. The Associate Justices shall be competent to sit in either department, and may interchange with each other by agree- ment among themselves or as ordered by the Chief Justice. Each of the departments shall have the power to hear and determine causes and all questions arising therein, subject to the provisions hereinafter con- tained in relation to the Court in bank. The presence of two Justioet shall be necessary to transact any business in either of the departments, except such as may be done at chambers, and the ooncunenoe of two Digitized by Google Oct. 31, 1878. OF THE CONSTITUTIONAL CONVENTION. 249 Jagtice8 shall be necessary to pronounce a judgment. The Chief Jusiioe ■hall apportion the business to the departments, and may, in his discre- tion, order any cause pending before the Court to be heard and decided by the Court in Umk. The order may be made before or after judgment pronounced by a department ; but 'where a cause has been allotted to one of the departments, and a judgment pronounced thereon, the order must be made within sixty davs alter such judgment, and concurred in by two Associate Justices, ana if so made it shall have the effect to vacate and set aside the judgment. If the order be not made within the time above limited, the judgment shall be final. No judgment by a department shall become final until the expiration of Uie period of iixty days aforesaid, unless approved by the Chief Justice, in writing, with the concurrence of two Anociate Justices. The Chief Justice may eoDvene the Court in bank at any time, and shall bp the presiding Justice of the Court when so convened. The concurrence of four Joitiees present at the argument shall be necessary to pronounce a judg- ment in rank ; but if four Justices, so present, do not concur in a judg- ment, then all the Justices qualified to sit in the cause shall hear the ugument, and judgment may be pronounced by a majority thereof; and if they are equally divided in opinion, the judgment or order appealed from shall stand affirmed. In tne determination of causes, all decisions of the Court in bank or in departments shall be given in writing, and the zrounds of the decision shall be stated. The Chief Justice may sit in either department, and shall preeide when so sitting, but the Justices oasigned to each department shall select one of their number as presid- ing Justice. All sessions of the Court, whether in bank or in depart- ments, shall be held at the capital of the State. In case of the absence of the Chief Justice from the place at which the Court is held, or bis inability to act, the Associate Justices shall select one of their own num- ber to perform the duties and exercise the powers of the Chief Justice during such absence or inability to act Sic. 3. The Chief Justice shall be appointed by the Governor, with the advice and consent of the Senate, and shall hold o69oe during «>od behavior. The Associate Justices shall be elected by the qualified electors of the State at large, and the .term of office shall be twelve years, from and after the first Monday of January next succeeding their election i provided, that the six Justices elected at the first election shall, at their first meeting, so classify themselves, by lot, that two of them shall go out of office at the end of four yetirs, two of them at the end of eight years, and two of them at the end of twelve years, and an entry of such classification shall be made in the minutes of the Court in bank, signed by them, and a duplicate thereof shall be filed in the office of the Secretary of State, u a vacancy occur in the office of Asso- dale Justice, the Oovemor shall appoint a person to bold the office until the election and qualification of a Justice to fill the vacancy, which election shall take place at the next succeeding general election, and the Jostice so elected shall hold the office for the remainder of the unex- pired term. The first election of the Associate Justices shall be at the first general election after the adoption and ratification of this Consti- totion. Bk. 4. The salary of the Chief Justice shall be ten thousand dollars per annum, and the salary of each Associate Justice shall be eight thou- sand dollars per annum. Sic. 5. The Supreme Court shall have ap|>ellate jurisdiction in all caaes in equity; also in all cases at law which involve the title or poeaession of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest, orthe value of the property in controversy, amounts to three hundred dollan; and also in all criminal cases amounting to felony on questions of law alone. The Court shall also have pojrer to issue writa of man- damus, certiorari, prohibition, and habeas corpus, and also all writs necesiary or proper to the complete exercise of its appellate jurisdiction. Each of the Justices shall have power to issue writs of habeas corpus to any part of the State, upon petition on behalf of any person hela in aetuaJ custody, and may make such writs returnable before himself, or the Supreme Court, or before any Superior Court in the State, or before any Judge thereof. Any Justice of the Supreme Court may allow alternative writs and orders to show cause, with or without a temporary restraining order. In cases of which the Court has original jurisdiction, all ianies of law and fact shall be determined by the Court in bank, or ieecribe the order of business. The judgments, orders, and pro- ceedings of any session of the Superior Court, held by any one or more of the Judges of said Courts, respectively, shall be equally effectual' as if all the Judges of said respective Courts presided at such session. [Here provide for the number of Judgra for the Superior Court in each of the other counties.] The term of office of Judges of the Superior Courts shall be six ^ears, from and after the first Monday of January IKxt succeeding their election ; provided, that the twelve Judges of the Superior Court, elected in the County of San Francisco at the first elec- tion held under this Constitution, shall, at their first meeting, so classify themselves, by lot, that four of them shall go out of office at the end of two years, and four of them shall go out of office at the end of four yssn, and four of them shall go out of office at the end of six years, and an entr^ of such classification shall be made in the minutes of the Court, signed by them, and a duplicate thereof filed in the office of the Beeretary of State. The first election of Judges of the Superior Courts •ittU take place at the first general election held after the adoption and 32 ratification of this Constitution. If a vacancy occur in the office of Judge of a Superior Court, the Governor shall appoint a person to hold the office until the election and qualification of a Judge to fill the vacancy, which election shall take place at the next succeeding general election, and the Judge so elected shall hold office for the remainder of the unexpired term. Sec. 8. The salary of a Judge of the Superior Court in the County of San Francisco shsJl be the same as that of an Associate Justice of the Supreme Court of the State. [Here provide for salaries in other counties.] Sic. 9. A Judge of any Superior Court may hold a Superior Court in any county, at the request or a Judge of the Superior Court thereof, and upon the request of the Governor It shall be his duty so to do. Skc. 10. The Legislature of the State may, at any time, two thirds of the members of the Senate and two thirds of the members of the Assembly voting therefor, increase or diminish the number of Judges of the Superior Court in any county in the State ; provided, that no such reduction shall affect any Judge who has been elected. • Skc. 11. The Superior Courts shall have original jurisdiction in all cases in equity, and in all cases at law which involve the titk or posses- sion of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand, exclusive of interest, amounts to two hundred dollars, and in all criminal cases amounting to felony, and cases of misdemeanor not otherwise provided for; also, in actions of foreible entry and detainer, of proceedings in insolvency, of actions to prevent or abate a nuisance, of divorce, and for annulment of marriage, and all such special cases and proceedings as are not otherwise provided for; also, of all matters of prooate. And said Courts shall have the power of naturalization, and to issue pc^rs therefor. They shall have appellate jurisdiction in such cases arising in Justices' and other inferior Courts in their respective counties on questions of law only as may be prescribed by law. Said Courts shall be always open (^legal holidays and non-judicial days excepted), and their original jurisdiction shall extend to all parts of the State. Said Courts, and their Judges, shall have power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus, on petition by or on behalf of any person in actual custody, in their respecUve counties. Sao. 12. Justices of the Supreme Court, and Judges of the Superior Courts, may be removed by concurrent resolution of both houses of the Legislature, if two thirds of all the members of the Assembl;^ and a majority of all the members elected to the Senate concur therein. All other judicial officers, except Justices of the Peace, may be removed by the Senate on the recommendation of the Governor, but no removal shall be made by virtue of this section* unless the cause thereof be entered on the Journal, or unless the party complained of has been served with a copy of the complaint against him, and shall have had an opportunity of being heard in his defense. On the questiwi of removal, the ayes and noes shall be entered on the Journal. Tbi PRESIDENT. The Chairman of the Committee on Judiciary and Judicial Department presents this proposition, and asks that it lie printed out of order and referred to that committee. If there be no objections it is so ordered. Ma. 8TEDMAN. Mr. President: By request of Mr. Lindow, I send up the following proposition : ILIOTIVI FBANCBISI AKD PRIVILW»S. ASTICLI — . SiCTiOH 1. All elections shall be conducted openly and free from restraint. Sic. 2. All elections shall be by Wlot Sic. 3. Electors shall in all cases, except felony or breach of the peace, be privileged from arrest on the day of election during their attendance at such election, and in going to and returning fVom the same. Ko elector shall be obliged to do military duty on the day of election, except in time of war or public danger. Sec. i. For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of absence while employed in the service of the United States, nor while engaged in the navi^tion of the waters of this State or of the United St^es, or of the high seas, nor while a student in any institution of learning, nor while Kept at any almshouse or other asylum, nor while confined in any public prison ; but no person, while confined in any prison, shall have any right to vote during such confinement. No person who shall have been convicted of any crime which is punishable oy imprisonment in a penitentiary shall be entitled to the pnvileges of an elector. Skc. 6. No soldier, seaman, or mariner in the armj or navy of the United States shall be deemed a resident of this State in consequence of being stationed therein. Sac. 6. No person shall be elected or appointed to any office in this State, civil or military, who is not a citisen of the United States, and who shall not have resided in this State one year next preceding the election or appointment. Sic. 7. No idiot or insane person shall be entitled to the privileges of an elector. Sio. 8. EvOTy male citizen of Mexico, who shall have been elected to become a citizen of the United Stales under the treaty of peace estab- lished and ratified at Queretaro, on the thirtieth day of May, eighteen hundred and forty-eight, shall be an elector and citizen of this State, and entitled to all the privileges of a native-bom citizen of the United States. Sec. 9. Every person shall be disqualified from holding office during the term for which he may have been elected, who shall nave given or offered a bribe, threat, or reward, to procure his election. Sco. 10. Ko person who shall hereafter be a collector or holder of public money, or receiver of money as an officer, shall be eligible to any Digitized by be eligible to any GooqI 250 DEBATES AND PROCEEDINGS Thursday, office of trust or profit until he shall have accounted for, and paid accord- ing to law, all money for which he is or may be liable. Sec. 11. General muDicipal elections shall be held bienniallj on the first Tuesday after the first Monday in Kovember. At all elections by the people, the polls shall be open from six a. m. to seven p. u. Befeired to Committee on Privileges and Elections. ILiaiBILITT OF JODOm. Mb. BARBOUR introduced the following proposition to amend sec- tion sixteen of article six : Sic. 16. The Justices of the Supreme Court, and the District Judges, and the County Judges, shall be ineligible to any other office than a judicial office, or to an^ public empiovment whatever, other than of a judicial character, durmg the term for which they shall have been elected. Referred (o Committee on Judiciary and Judicial Department COBPOBITIOKS. * Hr. McCONNELL introduced the following proposition, relating to conmratioq^ other than municipal : Section — . No corporation organised outside the limits of this State shall be allowed to transact business within this State on more favorable conditions than are prescribed bv law to similar corporations organized under the laws of this State. Tne Ijegislature shall enforce this section by appropriate legislation. Referred to Committee on Corporations other than Municipal. CI.JUM8 AGAIirST THB STATB. Mb. BARNES introduced the following proposed amendment to the Constitution, in relation to claims against the State, or any county, city and county, town, or municipal organisation : Abticli — . Sbctioh — . Every person having a disputed claim against the State, or any county, city and county, town, or municipal organization, shall have a judicial remedy therefor, to be provided by general laws by the Legislature; and no appropriation of money for the payment of any disputed claim shall be made by the Legislature, or by any county, city and county, town, or municipal organization, except in pursuance of and in obedience to the judgment of a Court of competent jurisdiction, duly had and obtained. Referred to Committee on Legislative Department. STATB BOARD OP BDUOATIOM. Mb. WICKES introduced the following proposition, to amend amend- ment to article , scctionf , entitled " Constitution and powers of State Board of Education : " To amend amendment to article , sections , entitled " Consti- tuticAi and powers of State Board of Education," by striking out " except in incorporated cities," wherever such clause occurs, making its powers general and complete. Referred to the Committee on Education. OORFORATIOHB. Mb. VACQUEREL introduced the following proposed amendment to the Constitution, relative to corporations other than municipal : Saolved, That each and every corporation now formed, or may be formed in this State, shall be and they are hereby prohibited from per- mitting any person or persons, company or corporation, to solicit for any business or occupation whatsoever on board of any car or cars, steam- boats or steamers, or any other conveyance owned or controlled by such corporations now formed or may be formed as aforesaid. Any violation of this section, in any manner whatsoever, shall be punished, upon conviction of the offender, whether it be the corporation, or the employe or servant thereof, by the total and absolute forfeiture of any charter or franchise that the corporation so emending and violating may now possess or obtain hereafter. Referred to Committee on Corporations other than Municipal. BJOAHY AND FOLTOAMT. Mr. DOWLIKQ introduced the following proposed amendment to the Constitution, to prohibit bigamy and polygamy : Seotiom — . The Legislature of this Slate shall provide that bigamy nor polygamy shall never be tolerated in the State of California. Referred to Committee on Legislative Department. STATB OMIVKBSITT. Mb. MARTIK, of Santa Crui, offered the following resolution : jRetolvtd, That the President of the Board of Begents of the Unfreralty of the State of Oftlifomlo. be requested to famiiih this GonTentlon with full information respecting the annual expensos paid for nlarioa of all offloerB, employes, and attache of said University; also all incidental expenses connected with said instltotloD ; also to give full detailed information of the amount of money received fh>m the Htate, lh>m individuals, and f^m all other sources, for the maintenance of iaid institution, and the disposition made of such funds. Mb. HAGER. I would suggest that the resolution be amended so as to read "President and Secretaiy." The Secretary has charge of all the books and archives. Mb. martin, of Santa Cruz. I accept the amendment The resolution as amended was adopted. FBBAMBLS AMD BILL OF BI0HT8. • Mb. van dyke. I move that the Convention resolve itself into a Committee of the Whole, President Hoge in the chair, to further con- sider the report of the committee on preamble and bill of rights. Carried. IN COMMITTEE OF THE WHOLE. Mr. GREOO. I will withdraw the substitute that I offered to section six yesterday. Thb CHAIRMAN. The Secretary 'U read section six as amended. The SECRETARY read : Sec. 6. All persons shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident or the presumption great Excessive bail shall not be required, nor excessive fines impMed ; nor shall cruel or unusual punishments be inflicted. But nothing herein contained shall be construed to prohibit the infliction of corporal pun- ishment for crimes. Witnesses shall not be unressonably detained or confined in any jail or room where criminals are usually imprisoned. Ms. VAN DYKE. I move to amend the section by inserting after the word "crinflnals," in the sixth line, the words "or persons cbarral with crime," so that it will read ; " Witnesses shall not be unreasonsSly detained, or confined in any jail or room where criminals or persons charged with crime are usually confined." Ms. TERRY. There is no jail in the State that has a senarate build- ing for witnesses who are detained. If he is confined at all he must be confined at the jail, though he need not be confined in the same room with the criminals. Me. van dyke. Strike out "jail or." Mr. WILSON, of First District. I would suggest that they might bo confined with criminals then unless the word " usually" is stricken out Mb. van dyke. I accept the amendment Thb CHAIRMAN. The Chairman of the committee moves to strike out the words "jail or" and the word "usually." Mb. van DYKK Mr. Chairman : The only amendment to the old section is adding on afler the word " detained " the balance of the clause. We have added on, " or confined in any room where criminals or peitons charged with crime are imprisoned." The purpose is very obvious. As the law now is it frequently occurs that a party who is so unfortunate as to witness the commission of a crime is imprisoned in an unfit cell or room and herded with criminals, while the criminal himself perhaps may be able to give bail and go at large upon the streets. We think that is all wrong. Any city or county that is not able to build a proper and suita- ble place for the detention of witnesses should not be allowed to hold them, if they are to be herded with criminals. Mb. JONES. Mr. Chairman: I hope the amendment will not be adopted. I think the object aimed at might be attained and preserve the protection that was designed for witnesses detained. The object was, as stated by the Chairman of the committee, to protect innocent men whose testimony may be needed upon the trial of cases at a future time, and who, by virtue of being strangers and in a strange land, and with- out means, are unable to give bail. Now the section as it first stood was designed to secure those persons in that condition, who were detained for a considerable length of time, perhaps, should not be put into the attitude of common felons— of common criminals — and herded with them; that they should not be put into the place where such criminals are confined. As it stood it would have attained that end. But the gentleman from San Joaquin suggests that there may not be any other place than the jail in the county. I submit that if there be none they should provide one. The striking out of the word "jail " and leaving in the worn " room " will have just simply this effect, that the witnesses detained will bo taken to the common jail, to a place where felons are taken and persons charged with crime, and there will be incarcerated in the building, in a room which the public do not know ftom the room that the criminals are occupying. Now, I fancy that it is m^t so much the hardship of occupying a room with a criminal, as it is the disgrace, to a private citizen, without offense, to be incarcerated in a place, in a jail, in a prison, in an institution which is used for the purpose of confining crimmals and persons charged with crime. It seems to me the amendment losee the whole salutary benefit of the section as it stood, so far as it is designed to protect honert citizens who simply have the misfortune to be witnesses; and if that amendment be not carried, I am certain that an amendment can be made that will accomplish the purpose designed. It may be true that Uiey might not have the means in some counties of providing suitable buildings, but I submit that in such cases they have seldom occasion to detain a witness, and when they do, it should be the duty of the public to provide a place — I do not care, though it might be some expense and some trouble — rather than sacrifice the right of a citizen. I understand that by the amendment the room shall not be one hi which criminals or persons charged with crime are confined, but I submit that is not enough for the protection of the citizen. It ought to be a place not oonnecl«d with any infamy at all. Mr. terry. Mr. Chairman : It is a fisct, I believe, that in every county of the State which has a jail there are i^iartments usually used by the Deputy Sheriff or the Jailer in charge of the institution. Prisoners are never confined therein. The object of the amendment wSs that these persons who were detained as witnesses might be kept in that portion of the building, and not compelled to herd with prisoners or persons charged with crime. It seems to me that a witness would not be any more disgraced in being detained in the rooms usually occupied by the Deputy Sheriff than in any other building, and it would be a very considerable expense to any county to be compelled to provide a separate place every time a witness was detained for a few days — for I hope that this Convention will provide a means whereby it will be unnecessary to detain any witness more than a few days, by hav- ing the deposition of witnesses taken before an examining magistrate for use in case the witness is absent or cannot be procured on the trial. But it would be putting the counties to unnecessary expense to require them to provide outside accommodations for men for the three or four days occupied in the examinations. I do not understand that there will be any particular hardship in detaining a man in a room usually ocsa}Hed Digitized by Google Oct. 31, 1878. OF THE CONSTITUTIONAL CONVENTION. 251 brtta Deputy 'Sheriff,' and I think there is no jail in the State that lusDot ap&<^n>€nU of that kind. Hb. LAI^S- As I understand it, th^Nimendment is to insert the wonij " or persons chaiijed with erime." IVi CH AIRMAX. The amendment which the Chairman of the com- mittee now offers is to strike out the words "jail or," and the word "moiJlT-" Ml LAI^S. Then there are two propositions, an amendment and snuDendment to an amendment. Now, Mr. President, it seems to me Hal we ought to abolish this matter of imprisoning witnesses altogether. At the present time we have laws, and we should stick to them, provid- |mr list witnesses may be examined and not imprisoned. Hence, I am in faror of voting down this amendment, ^d then striking out the ironis"'"' oonfinM in any jail or room where criminals are usually cen- tred " BO tbat it #ill read that they shall not be unreasonably detained ,f im'priaoned. I do not believe in imprisoning witnesses at all. MlKOKL. Mr. Chairman: I have an amendment which I would ^U) offer. Tbi chairman. There are two amendments already. yi. JONES. Mr. Chairman : The gentleman from San Joaquin, Judge Terry,'says there are no jails in which there is not a room in x)ilch criminals are never confined. I do not know how many there ^, I am not so well acquainted with the jails of the State as the gen- tlemss from San Joaquin, but we have in my own county a very good jiil.avery strong one, and there is no place whatever of the description of which he spealu. Ko Sheriff or Deputy Sheriff ever remains there toii^than to take care of the prisoners and feed them. I think that is the OK in several of the counties. M«. NOEL. Mr. Chairman : I think the section suflBciently guarded iiUii. That would exclude them from being confined in a jail at all, or in any room whatever in which criminals are usually confined, and if they are to be confined at all they must be confined somewhere else. I think that the section as it reads now sufficiently protects the rights of witnesses without any fUrther amendment or any amendment whatever. Me. van dyke. I withdraw my amendment to strike out "jail or.". Tbi chairman. The next amendment is to insert, " or persons diaiged with crime." M>. VAN DYKE. The object of that amendment is this: it might be understood to mean convicted persons, and I wish to make it apply to persona charged with crime. Thi chairman. The Chairman of the committee seems to forget that the Committee of the Whole yesterday adopted the amendment of Jndge Campbell. The amendments are both out of order. Mb. NOEL. I move to amend by adding after the word "crime" the following words : " But criminals when punished by whipping shall not be stripped naked ; nor shall married women ever be whip^jd by any one except their husljands." Tii CHAIRMAN. The amendment is out of order. Mt. WYATT. I move to add to section six the following words: "PrmniJed, corporal punishment shall only be inflicted on male persons convicted of the crime of felony." Tbi CHAIRMAN. The amendment is out of order. The committee hsa determined already what that portion of the section shall contain. Mb. REYNOLDS. I offer an amendment to the amendment adopted by the committee. Thi CHAIRMAN. The amendment is not in order. Mr. REYNOLDS. I appeal from the decision of the Chair. I desire to offer this amendment: " But nothing herein contained shall be con- atnied to prohibit the infliction of corporal punishment for the crime of embezaferaent." Mr. WYATT. I second the appeal. Thi CHAIRMAN. It requires three members to appeal from the aecuion of the Chair. ■ I McCALLUM. If no further amendments be offered to section "i' *'''' ^ ™''° "** I"**""'" ""'* ^''* proper way would be to take a Tote on section six, and see if we agree to it uter bemg amended. Now, <07 jndgment is that we should take a vote on section six as amended, UM I esU for that vote. Thb chairman. There is no such thing as such a vote in Com- mittee of the Whole. No such question can be presented in Committee of the Whole. The sections are read, and if amendments are made they are all sent back to the Convention, and then amendments can be offocd if desired. But no such vote is taken in Committee of^ the Whole. Mb. REYNOLDS. I am striving to arrive at an understanding, as to whether it is in order to amend section six. Thi chairman. It is in order to amend section six in any other portion of it than that which the Committee of the Whole has already adopted. ' Ma. REYNOLDS. I have no difference to discuss with the Chair, bat I do desire a distinct understanding, that there may be a ruling of the Chair, or by the house, and no misapprehension. I desire to amend •ection six as it now stands, and upon that proposition I offer an amend- ment. Now, if the Chair rules that amendment out of order, I respect- ■aUNr take an appeal, and ask the sense of the Convention. Tbi chairman. There was no second to your demand for an •Ppeal. The gentleman is out of order. It takes three to call for an sppeal under the rule. Mb. HERRINGTON. Mr. Chairman : I move to amend section six ?» JoUowb: Strike out all after the word " inflicted," and add " the Leg- !™taiB shall provide for taking the depositions of witnesses to be us«i a criminal cases. Witnesses shall not be unreasonably detained or pnprisoned after sufficient time and opportunity has been given for tak- •"g their depositious." I submit that that amendment ought to be ""■Ml. I am opposed to imprisoning witnesses at all. Jij* ^^^RMaN. The amendment is out of order. On motioii of <»Mge Campbell the committee struck out all after the word " inflicted " and inserted some other words. The gentleman from Santa Clara now moves to strike out these words that the committee have already inserted. The Chair rules that it is out of order. Mb. HERRINGTON. I do not insist on it if that is so. Thk chairman. It is precisely the same language Judge Campbell moved to strike out. Mb. HAGER. Mr. Chairman : If I understand the section as it now reads, after the word "crimes" it says: " Witnesses shall not be unrea^ sonably detained, or confined in any jail or room where criminals are usually imprisoned." It should read : " Witnesses shall not be unrea- sonably detained, nor shall they be confined in any jail." As it stands, it means witnesses shall not be unreasonably confined. I presume that , the intention is that they shall not be unreasonably detained, and shaU not be confined in any jail or room where criminals are usually impris- oned. It should reafl : " Witnesses shall not be unreasonably detained, nor shall they be confined in anv jail or room where criminals are usually imprisoned." We should strike out the word "or," and insert the words " nor shall they be." Mb. van DYKE. We cannot get to it until we get back into the Convention. The CHAIRMAN. When the article is taken up in the Convention, every amendment made in Committee of the Whole will come up in its order. You can then vote down the amendment if desired. Mb. REYNOLDS. I now again offer my amendment, and I do so for the purpoee of calling the attention of the Chair to the fact that the com- mittee, on yesterday, adopted the amendment offered by the gentleman from Alameda, Judge Campbell, and upon that ground, I understand, the Chair ruled my amendment out of order. Now, as another amend- ment has been adopted this morning that strikes out the whole of the amendment and adopts a substitute Thk CHAIRMAN. The gentleman is mistaken. No amendment whatever has been adopted this morning. Mb. REYNOLDS. It is my misfortune to be seated so far from the center of business as not to be able to understand what is going oh at the desk. Tbi CHAIRMAN. The Secretary will read section seven. Thk SECRETARY read : Sxo. 7. In criminal cases the right of trial by jury shall remain. In all cases, except felony, the Legislature may provide by law the number necessary to constitute a jury, and in all civil cases the number necessary to render a verdict. Mb. WILSON, of First District. I move that this committee rise and report back to the Convention sections seven and eight of the draft for a preamble and declaration of rights, with the recommendation that they be omitted from the declaration of rights, and that the subject-matter thereof be referred to the Committee on Judiciary and Judicial Depart- ment to report upon the same in connection with the judicial depart- ment. I do this, Mr. Chairman, from the fact that the question of juries and Grand Juries have been very considerably disctissed in the Com- mittee on Judiciary. It is an important subject, and one which I pre- sume the Convention is hardly prepared at this time to act upon. It seems to me that the subject belongs more properly to the judicial department than it docs to the bill of rights. When that is reached the committee will be prepared to act upon the subject of juries and Grand Juries. Of course, the committee, after it shall report to the Convention, will resolve itself back with the Committee of the Whole for the pur- pose of considering the balance. Thk CHAIRMAN. The gentleman from San Francisco, Mr. Wilson, moves that the committee rise and report back to the Convention sections seven and eight of the draft, for a preamble and declaration of rights, with the recommendation ihaX they be omitted from the declaration of rights, and that the subject-matter be referred to the Committee on Judiciary and Judicial Department. Mb. HAGER. Mr. Chairman: I would suggest that section thirteen be taken into that category. Mb. WILSON, of Fii«t District I accept that amendment Ma. McCALLUM. I would suggest to the gentleman that there is no necessity of the committee rising. We can pass the sections, and when we do rise we will report to the Convention that these sections be referred. Th r SECRETARY read : " That the committee rise and report back to the Convention sections seven, eight, and thirteen of the draft for a preamble and declaration of rights, with the recommendation that they be omitted from the declara- tion of rights, and that the subject-matter thereof be referred to the Committee on Judiciary and Judicial Department, to report on the same in connection with the'judicial department" Mb. BARBOUR. I will also suggest that section nine ought to be referred, because that involves a very great legal question. That ought to go to the Judiciary Committee to report upon. Mb. van DYKE. Mr. Chairman: I have no choice as to where this matter of the jury system goes in the Constitution, and I have no pride of opinion about this matter, but I would suggest to the Chairman of the Committee on Judiciary and Judicial Department, that the bill of rights is the place where the declaration of the right to a jury is con- tained in all the Constitutions, I believe, without exception. Now, it is true, that in the National Constitution there was not any declaration of rights. That was afterwards discovered to be a ^reat omission, and amendments were at once proposed and adopted which really constitute a declaration of rights. But in all the State Constitutions in reference to the trial by jury, it is contained in the declaration of rights, and it strikes me that that is the proper place for it. If it is determined by the Convention to strike out the right of a Grand Jury, why, then, the matter of regulating the practice in criminal cases can be put in the judicial department But here the reference to a trial foiy, in section seven, is the declaration of a right: "In criminal cases tne right of trial LJ 252 DEBATES AND PROCEEDINGS Thursday, to by JU17 shall remain." ITow that is one of the fundamental rights of the citiien, and is so recognised in the National Constitution, and in the Tarious State Constitutions. The proper place for that declaration is in this bill of rights. If the gentlemen are not prepared now to go on with that section, we can pass it and go on with others. It does seem to me that we should not go oontrarj to the principles in everj other State in reference to this declaration of the right 01 CTery citisen to a trial by jury. That is its proper place here. Kow in reference to the suggestion — I do not know whether it was seconded or not — to transfer the ninth section also. That is in regard to the freedom of speech and of the press. If that is not the place for that, .in the bill of riglits, I do not know where the place is. So in regard to the right of a citisen accused of crime on his trial of meeting his accuser face to face; having counsel; having the right of answering; having the cause and nature of the accusation. All these things are fundamental rights of the citisen, and the proper place for them, evidently, is in the declaration of rights. Therefore I am opposed to the course suggested by the Chairman of the Judiciary Committee in transferring this OMlaration of the rights of the citisen to a trial by jury, from the declaration of rights to any other part of the Constitution. Mb. HA6ER. Mr. Chairman : I do not understand that the motion here is to displace these propositions from the declaration of rights, but to have them considered by the Committee on Judiciary and Judicial Departments, in connection with the rrstem which they propose before, they shall be finally adopted by this Convention. That is my under- standing of it. Mb. van dyke. Then I misundeistood it Mb. HA6ER. The proposition I submitted was not to include sec- tion thirteen in the plan for a judicial system, but to have it considered by the Judiciary Committee. These propositions are fluently taken from the Constitution of the United States, or other Constitutions, and in the course of printing and reprinting errors have crept in. Mb. van dyke. I have no objection if that is the motion of the Chairman of the Judiciary Committee. Mb. HA6ER. That is the intention. It might as well be understood now as any other time that all these propositions, when it comes to the final adjustment of the Constitution, may be changed from one place to another into their proper places. The same proposition may come before the Convention, and the same proposition ma^ be adopted from differ- ent committees, but when it comes to be adjusted into one complete whole, whv, whenever they are duplicated only one proposition will be put in, ana that under its proper head. There is a committee appointed tor that purpose. Mb. van dyke. I am aware of the fact snmeated by Judge Eager, that if one proposition should be adopted, and should be asoertainea to be in an inappropriate place, it would be changed by the Committee on Revision and Adjustment; but the point was that the declaration of the right of the citiien to a trial by jury, that this was the proper place for it. But if the Chairman of the Committee on Judiciary wishes his committee to consider this declaration in reference to triu by jury, as well as the Grand Jurr, I have no objection ; but I most certainly ODJect to its being transferred from this part of the Constitution to some other part. If the Chairman of the Judiciary Committee will state that that IS the only object I have no objection. Mb. HERRINGTON. Mr. Chairman : I understand that the effect of the motion will be to produce precisely the opposite result from that stated by the gentleman fVom San Francisco, Judge Hager. I under- stand that it is a recommendation by this Committee of the Whole to the Convention that these propositions, embraced in these various sections, be incorporated into the judiciary system. I ask for the reading of it. Thi ^RETABY read: "That the committee rise and report back to the Convention sections seven, ei^bt, and thirteen, of the draft for a preamble and declaration of rights, with the recommendation that they be omitted from the declara- tion of rights, and that the subject-matter thereof be referred to the Committee on Judiciary and Judicial Department, to report on the same in connection with the judicial department." Mb. HERRINGTON. Precisely the result that I anticipated. It is a recommendation on the part of this Committee of the Whole to the Con- vention that these propositions be referred to the Judiciary Committee, with instructions that that committee report upon them in cqpnection with their report upon the judicial system ; and that the^ be omitted — that is the language of this resolution — that they be omitted from this declaration of rights. Tiiat is precisely the result that we do not desire. Individually I £> not desire it. I certainly think that it is not a part of the procedure, so far as this is concerned, in criminal cases. It is attempted by these sections to confer an absolute right upon the indi- vidual, as contradistinguished from the mass of society, and to give him the power to determine that he shall be tried by a jury. Now, I do submit that their proper place is in the declaration of rights, and not in the judicial system. Moet of the provisions embraced in these various sections have been so long in use that they are familiar to us all, and we never will under- stand them any better, perhaps. Even if their language should be changed, there would be a necessity for a new consideration of them ; and I apprehend that the way they are now proposed is as good sa they ever will be. If these sections go to the Committee on Judiciary and Judicial Department, under this motion, they will come back engrafted in the judicial system. Changes will have been made so far as the arrangement is concerned. I do not undertake to say that the Judicisry Committee would not report them back, to be included in this declara- tion of rights, but the recommendation of the Committee of the Whole that the^ be reported upon in connection with the report on the judicial system, is an indication that they are requested to so engraft it upon that system. I submit that they are in their proper position, and that they ought to be kept just where they are. Mb. McCALLUM. Mr. Chairman : In the whole number of secUons which fall to 'the judicial department — from number one to number nineteen — the subject of jufln is not included. All the propositions which have been introduced in this Coarention have been very properly referred to the Committee on Preamble and Bill of Rights. That is the only committee to which they could be properly refeired. This propo- sition, in plain English, is to refer to the Judiciary Committee tnat business which belongs to the Committee on Preamble and Bill of Rights. The plain English of it is that the Committee on the Bill of Rights were not competent to advise the Convention sufficiently upon this subject, and that it ought to be referred to the Judiciary Committee. I have not the fortune, or misfortune, to belong to either of the com- mittees, but I do not believe in this practice. If I correctly nndentand, the Judicianr Committee itself has not yet reported its own bnsimst, and it has had an extension of one week's time in which to do it. They have a great amount of business before them, and the crowding of business is not going to be in the committees hereafter, but in the Convention. I am oppoeed to this idea of a committee rising for the purpose of reporting the business of one committee to another. I do not remember of a smgle proposition on this subject — or if there is, it is exceptional — ^which hu ever been referred to the Judiciary Committee. If they have taken action — as reported in the papers the other morning- taking up the report of the committee on their own motion, it does appear to me that that committee ought at least to have waited until this Convention asked it for its opinion as to the work of any ottier committee. Talk about legal questions, sir. The greatest legal questions here in the Convention are involved in the article callM the declaration of rights. There are those in the Convention who, perhaps, may be enabled to vote upon these questions, who are not entirely impressed with the importance of having the opinion of the Committee on Judi- ciary upon these questions that belong to another committee. This comes up in its regular order. Business proceeds. A distinct, equals proposition is presented to this Convention in section seven : " In crim- inal cases the right of trial by jury shall remain." There is a plain, distinct proposition. It does not need the action of the Judiciary Com- mittee to tell us what that plain language means. If we are not fi>r it, let us vote against it. It is a chan^ from the old Constitution, but there is no necessity for the Judiciary Committee to inform this Convention as to how it ought to act. The Chairman of the Committee on Preamble and Bill of Rights says if the object is to restore it back there, all right. My judgment is that, as it belongs there, and will have to be passed upon there, that the matter may just as well be diqiosed of here and now. I will be very well satisfied if the Committee on Judi- ciary perform their own duties, and leave the other committees to per- form theirs. Mb. BROWN. Mr. Chairman : I do not intend to detain this body any length of time, but it appeared from the manner in which this sub- ject was discussed that the proposition was for this matter contained in sections seven, eight, and thirteen to go to the Judiciary Committee, and for them to investigate the great judicial principles upon which those sections rest, and to have them presented in a proper form before us. Now upon a close examination it seems when the proposition is read to us that the object was that this should be inserted in the judicial dnnrt- ment of the donstitution. I feel like Mr. McCallum upon this subject, that if every committee is able to do its own part of the business, and that which comes immediately under its own revision, within the proper time, it will be doing exceedingly well. I do not see the propriety of referring this matter. Mb. ESTEE. Mr. Chairman : I rise to a point of order ; that a motion that the committee rise shall be decided without debate. Tbb CHAIRMAN. That is the rule, but the Chair has permitted some latitude in order that the proposition might be thoroughly under- stood. Mb. BROWN. I am under the impression, Mr. Chairman, that this should remain in the bill of rights, and that this body, aside from the Judiciary Committee, is competent to decide upon it. I think it hastiie capacity to investigate and decide every time. I am therafore opposed to this being referred to the Judicial^ Committee, or being placed m the judicial de{wrtment of the Constitution, with due respect to every mem- ber of eveiy committee of this bouse. Mb. EDGERTON. Is the question debatable? Thb chairman. It is not under the rule, but the Chair has per- mitted some latitude. Mb. EDGERTON. I hope the indulgence of the Chair will be extended to me for about two minutes and a half. Mr. Chairman, when the Committee on Rules made their report they named a committee on judicial department, that being one of the depcu-tments of the Constitu- tion. Some gentlemen in the Convention moved that that be changed to the Committee on Judiciary and Judicial Department, and the reason stated then was that that committee should be an advisory com- mittee to the Convention, and also to other committees of the Conven- tion. Now, sir, I do not think that the motion of the gentleman from San Francisco, the Chairman of this committee, implies any disoourte^ to the Committee on Preamble and Bill of Rights, or anything that need move the sensibilities of any gentleman upon this floor. It is well understood in parliamentary matters that the Committee o^ Judiciary of every legislative body occupies that position. In the Senate and Assembly of this State, in the Senate of the United States, in the House of Repreeentatives, it is a matter of frequent practice for the Chairmen of other committees to request that certain matters before them be referred for the consideration and action of the Judiciary Committee. I think there is nothing improper in the motion at all, and I desire to call the attention of the committee ibr a moment to one of the reasons why this acUon should be taken. Look one moc^ent «* "ctjon seven: Digitized byLjOOQlC Oct. 31, 1878. OF THE CONSTITUTIONAL CONVENTION. 253 " In eriminsl cases the right of trial by jury shall remain. In all ticept felony, the Ijegislatare may provide by law the number necessary to constitute a jury, and in all civil cases the number necessary to ren- der a verdict." It is a very serious question in my mind whether under that section the right of trial by jury is not limited to criminal cases, snd that it is left entirely a matter with the Legislature to say whether there shall be any jury at all in civil cases. S^ion eight involves the question of the abolition of Grand Juries, and then the ^ntleman from 8an Francisco, Mr. Barbour, has suggested that section nmebe included, and I think very properly. If gentlemen will refer to section four- teen of this draft they will find there provisions which are, to say the least, startling. That proposes a reversal of the rules of jurisprudence u they prevail all over the United States, so far as I am informed, in reference to the subject-matter therein set forth, and rules that have prevailed in this State more than a quarter of a century. They are rales that certainly should be considered by the Judiciary Committee. 1 move that we add section fourteen, so that the motion will embrace Kctions seven, eight, nine, thirteen, and fourteen. Mb. WILSON, of First District. I accept that suggestion. Ml BARBOUR. I called attention to section nine as illustrating the impropriety of the motion, and showing that almost every proposition contains matter which requires judicial investigation. I am in favor of the Convention judging of this matter, and of every member deciding for himself whether he is in favor of abolishing Grand Juries. It is not s matter necessary to refer to the Judiciary Committee. Here are sixty lawyers in this Convention — or seventy lawyers— and in the Judiciary Committee nineteen lawyers. They have their chance here in this Committee of the Whole. I am in favor of going on with this article and not referring it here or there. Thi CHAIRMAN. The Chair must enforce the rule. Ma. BARTON. As a member of that committee I would like to be heard a half minute. I hope that the gentleman will accept all the smendments, and that the discretion and good sound judgment of this Convention will vote it down accordingly. Thi chairman. The Secretary will read the motion as now amended. Ths secretary r«ad : "That the committee rise and report bock to the Convention sections aeven, eight, nine, thirteen, and fourteen of the draft for a preamble and declaration of rights, with the recommendation that they be omit- ted from the declaration of rights, and that the subject-matter thereof be referred to the Committee on Judiciary and Judicial Department, to report on the same in connection with the judicial department" Ma. WILSON, of First District The addition of these several sec- tions, some of which ought to be in the bill of rights, makes it neces- sary for me to reform the original motion, and I ask to modify it so as to lesd in this way : " That the committee rise and report back sections ■even, eight, nine, thirteen, and fourteen, and that the subject-matter thereof be referred to the Committee on Judiciary and Judicial Depart- ment, to report in connection with the same, and that further action on them be postponed until the coming in of the report of the Committee on Judiciary." Ml. VAN DYKE. I understand that they shall be transferred. I wish to ascertain what the gentleman's proposition now is. I want to ascertain whether it is to transfer these four sections to the judicial article? Mr. WILSON, of First District No, sir; merely that the further consideration of them be postponed until the coming in of the report of the Committee on Judiciary and Judlci&l Department, and that they be referred to that committee for consideration. Mr. miller. I move that section seventeen be included. Mr. LARKIN. I move to amend, by including the balance of the bill of rights. Mr. McCALLUM. I move to include all the other sections of the CODStitutinn that are about legal questions. Tai CHAIRMAN. The question is on the motion of the gentleman from San Francisco, Mr. Wilson. The motion waa lost Mr. SMITH, of Santa Clara. I move to amend the section so as to read as follows: "The right of trial by jur^ shall be secure to all and remain inviolate forever; but a jury trial may be waived by the parties; but in all trials In civil cases, also criminal offenses below feloDy, two thirds of the jury shall be competent to find a verdict." Mr. HERRINGTON. I offer the following amendment to the amendment: "The right of trial by Jury shall be secured to all, and remain inviolate forever ; but a jury trial may be waived by the parties in civil actions, and the Legislature may prescribe the number of jurors in civil cases and the majority required to render a verdict thereunder ; in criminal cases, amounting only to misdemeanor, defendants shall have the right of trial by jury or by the Court as they shall elect." The amendment to the amendment, as presented, secures the right of trial by jury beyond peradventure, in all cases where it has been here- tofore UKd, and from the form of its language it will bear the same eaastruction that has heretofore been put to that section by the Supreme Oonrt of this and other States. It has the advantage, therefore, of a determined and fixed meaning to that extent [Cries of " louder!"] If yon will listen carefully you will hear. The alterations that may be made by the Legislature has reference to civil cases — empowering the Legislature in those cases to determine the number which shall con- mate a jury and the majority to render a verdict In criminal cases it permits the defendant, where the offense amounts only to a mis- aemeanor, to elect whether he will be tried by a jury or by the Coart Heretofore, as I understand the practice— in fact in County Courts it ha* been held that it was not competent for our County Courts to try uy eaae without the intervention of a jury, both a grand and a petit jury. The consequence has been that it was impossible for defendants, even when they elected to be tried by the Court, in cases of misde- meanor, to be tried that way; and I submit that they ought to be per- mitted, if they so elect, to be tried by the Court It is less expensive in such cases. It certainly would be both to the advantage of^the State and to the satisfaction of those against whom the law is invoked. I have given the subject some little thought, and in my judgment this is about the only change that would be either to the advantage of the State or to the advantage of the defendants who are to be tried by the laws of the State. As to the form of its draft, it may be changed or altered to suit the taste of cither the Judicial Committee or any other committee, or this Committee of the Whole. But it embodies the idea which, in my judgment, ought to be laid down in this bill of rights. Thr CHAIRMAN. The Secretary will read the amendment and the amendment to the amendment Thr SECRETARY read the amendment offered by Mr. Smith, of Santa Clara, as follows : " The right of trial by jury shall be secure to all and remain inviolate forever, but a jury trial may be waived by the parties; but in all trials in civil cases, also criminal offenses below felony, two thirds of the jury shall be competent to find a verdict." Thr secretary read the amendment to the amendment offered by Mr. Herrington, as follows : " The right of trial by jury shall be secured to all and remain invio- late forever; but a jury trial may be waived by the parties in civil actions, and the Legislature may prescribe the number of jurors in civil' cases and the majority required to render a verdict thereunder; in crimi- nal cases amounting only to misdemeanor, defendants shall have the right of trial by jury, or by the Court, as they shall elect" The amendment to the amendment, and the amendment, were both lost. Mb. DUDLEY, of San Joaquin. I have a substitute for the original draft which I desire to submit as an amendment The SECRETARY read : "The right of trial by jury shall be secured to all and remain invio- late forever; but in all cases, civil or criminal, except felony, the Legis- lature may provide by law the number necessary to constitute a jury and to render a verdict; but in all cases except felony the jury may l>e waived by the parties." Mr. HALE. Mr. Chairman: I am well pleased with the draft of this substitute, except in two points — really, one point. I move to amend the substitute, by striking out the words " except felony " where they occur. I can see no reason, either founded in experience or otherwise, why it should not be competent for parties to waive trial by jury. Mr. DUDLEY, of San Joaquin. I accept the amendment The CHAIRMAN. The Secretary will read the amendment as it will stand then. Thr secretary read : " The right of trial by jury shall be secured to all and remain invio- late forever; but in all cases, civil or criminal, the Legislature may pro- vide by law the number necessary to constitute a jury and to render a verdict; but In all cases the jury may be waived by the parties." Mb. hale. Now, Mr. Chairman, the proposition becomes a very simple one on the basis of this substitute, in its present form. It pro- vides that the rij^ht of trial by jury is inviolate ; second, that while this right of trial by jury is thus inviolate, it gives to the parties — not to one party, but to both (xirtiea — the right of waiving trial by jury. I should like to hear from some gentleman if this view is not acceptable, and founded in ezperienoe; and I appeal to the members of the legal fra- ternity for an expression upon this point What reason can be given why the parties to any litigation, whether it be civil or criminal, should not have the right to waive a trial by jury and submit the issues fur trial to the judgment and decision of the Court upon questions of law and fact alike. Mr. Chairman, X believe I express the average opinion of the legal fraternity of the State of California, and I think I may go farther and say that I believe I express the averagejudgmeut of the legal fraternity of the United States, when I say that, while they would preserve the right of trial by jury upon the demand of either party, in all cases it is safe for the ends of justice and the preservation of private rights and the public interest that It shall be competent for the parties to waive the trial by jury. Now, as lawyers, we know well that the right of trial by jury commenced with the Grand Jury, and then running along eventuated in a system of trial juries. The reasons upon which this system was established have in a large measure passed away. Not wholly, sir, yet the moving interests which prompted their institution have, as a matter of fact, passed away. Again, it may be said upon the basis of the original resolution, that exception is made in cases of felony. Of course that would include capital oases. Can anybody tell me why a trial might not take place before the Court — always conceding that the people and the defendant alike consent to it — in this class of cases? We select our Judges, we constitute our judiciary, with a view first to their learning, next to their probity, third to their experience in judicial affiiirs. When, therefore, the parties to litigation in cases of felony, including even capital cases, consent that the Court shall try the issue, what substantial reason can be given why it should not be done. That it will hasten the adminis- tration of justice is obvious to the mind of every lawyer, I think this will not be questioned. One of the faults of our jury system as it has come to us in our expe- rience in this State, and all over the United States, is this : that after you summon a jury, and go through all the work of a trial, the probable result is that in about one third of the criminal cases, and perhaps a less proportion of civil cases, you get a verdict. The result is that a trial involving immense expense ends in a mistrial and all the work done has to be thrown aside, and you most commence agaun.- Now I submit Digitized by VjO — t* 254 DEBATES AND PROCEEDINGS Thursday, that we should preserve the system of trial by jniy as a ri^ht to be demanded by eitner poes that show an unwillingness of juries to convict? Does that show that we ought to take from those who are ancused the aafe- Sards which they now poaseesT Now while in civil cases I am per- tly willing to leave this to the discretion of the Legislature, while even in cases of misdemeanor I think it simply a doubtful policy to make any change, yet I feel that in cases of felony, in cases where a man's life and liberty is at stake, that there ought to be, as there has always been, a unanimous verdict of a jury in order to bold him guil^. I do not desire to occupy the time of the Convention, and I merely submit these few remarks upon this subject, expressing the hope that this innovation will not be adopted. Mr. McFARLAND. Mr. Chairman : I was entirely in favor of the substitute as ofl°ered, but I ain opposed to it with the amendment sog- gested by the gentleman from Placer, Judge Hale, and which was accepted. I move to amend by inserting the words "except felony." t do not object to giving the Legislature the power to say what sliall be the number to constitute a jury or find a verdict in all cases except felony. I move, therefore, to reinsert in the proposition offered by the gentleman from San Joaquin, Mr. Dudley, the words "except felony." Mb. FILCHER. Mr. Chairman: I rise to second the motion made by the gentleman from Sacramento, Judge McFarland. I have takea upon myself the responsibility of talking about this matter among the lees] fraternity, and I have found many of them to be in &vor of allowing a certain proportion of a jury, say three fourths, to find a vet- diet in civil cases and in minor criminal cases, but I have found the lawyers and the people almost unanimously opposed to allowing any fractional part of a jury to render a verdict in cases of felony. 1 believe, Mr. Chainnan, from the remarks I have heard among members of the Convention upon the subject, that the amendment as offered by the gentleman from San Joaquin will be adopted, and I believe it ought to be adopted. Mr. LAINE. It is time for the committee to rise. I move that the committee rise, report progress, and ask leave to sit again. Carried. IN CONVENTION. The president. Gentlemen: The Committee of the Whole have directed me to report that they have had under consideration the article on preamble and declaration of rights, report progress, and ask leave to sit again. The hour having arrived, the Convention took the usual recess until two r. u. AFTERNOON SESSION. The Convention reassembled at two o'clock F. m.. President Hoge in the chair. Roll called, and quorum present MAKIKQ A SPCCtAL ORDIB. Mb. BBTEX. Mr. President: I move that the article reported by the Committee on Corporations other than Municipal, that has now been printed and placed on the desks of members, be made the special order for next Tuesday, immediately after reading the Journal. Mr. CAMPBELL. Would it not be better to make a special order of the article on Chinese for Monday, and dispose of that b«ore taking up the other matter ? Mr. ESTEE. Why? I don't see any necessity for it Ve wiQ probably not be through with this by that time. Mr. WILSON, of First District I move that that be fixed for Tues- day next I do not believe that the Convention will be ready before that time to take it up. Mr. BARBOUR. I make the point, that under the rule the buaineas must be taken up in the order in which it is reported. Mr. ESTEE. There is such a rule, but that does not hinder the house from making special onlen. I do not care particularly about making it for Tuesday ; but it can be fixed for that date, and then if we are not ready, it can be put off. The motion to make it a special order for Tuesday prevailed. Mr. van dyke. I move that the Convention now resolve itself into Committee of the Whole, for the purpose of further considering the article on preamble and bill of rights. The motion prevailed. IN COMMITTEE OF THE WHOLE. BILL or BIOBTS. Tbk CHAIRMAN. Section seven, of the article on bill of rights, is before the committee. The Secretary will read the section. Thb SECRETARY read : Bbo. 7. In criminal cases the right of trial by jury shall remain. In all cases, except felony, the Legislature ma^ provide by law the number necessary to constitute a jury, and in all civil cases the number neces- sary to render a verdict Mr. LAINE. Mr. Chairman : As I understand the condition of the question, it is this : that section seven of the report of the Commit- tee on Bill of Rights is now before the Committee of the Whole, and the substitute before offered, so there are two propositions. The CHAIRMAN. Yes, sir, the gentleman from Santa Clan, Mr. Smith, moved an amendment, by way of a substitute, and the gentle- man from Santa Clara, Mr. Herrington, moved an amendment to the amendment Digitized by Google Oct. 31, 1878. OF THE CONSTITUTIONAL CONVENTION. 265 Ub. LArKE. I thought those two propositions were voted down. Tii CHAIRMAN'. Yes, sir, and tne question is on the substitute moved by the gentleman from San Joaquin. Ms. LAINE. So believing I offered a subrtituto for the two proposi- tions. ThiCHAIRMAK. It is not In order. There is an amendment offered by the gentleman from Sacramento, Mr. McFarland, to the amend ment Ms. LAINK. Mr. Chairman : As to the proposition reported by the Committee on Preamble and Bill of Rights, I am unable to support it, for reasons which I will state in very few words. The very first line takes away the . right of trial by jury in civil cases, because it is a well known canon of law that the mention of one thing is the exclusion of the other, and for that reason I cannot support the proposition. I do not beliere in taking away this great right m civil oases any more than in mminal cases. There is a further objection to the proposition, that it leaves it in the power of the Legislature to destroy the right of a trial by jury, in that it leaves it to them to fix the number of the jury. The Legislature could then fix the number at one or two, and thereby destroy the right of trial by jury altogether or render it of no value whatever. And these substi- tutes or amendments are open to the same criticism. Therefore I cannot suatain them. I then desire to say to the Convention that I hope these propositions will be voted down. I believe a majority of this Convention tre in favor of securing the right of trial by jury to all, and then we can provide that a jury may be waived in all cases with the consent of the Court 1 can see no objections to such a course that can be urged. If this other is votod down, then I shall offer my substitute, which reads in this way: " The right of trial by^ury shaH be secured to all, and remain inviolate forever; but a trial by jury may be waived by the parties in all cases, with the consent of the Court, in the manner prescribed by law. Three fourths of the jury, in all civil cases and misdemeanurs, may render'a verdict, and in such cases any number not exceeding twelve shall oon- itilute the jury if the parties so elect." Tbi chairman. The question is on the amendment offered by the lentleman from Sacramento, Mr. McFarland, to the amendment of the gentleman from San Joaquin, Mr. Dudley, as follows: "The right of trial by jury shall be secured to all, and remain inviolate forever; but m all cases, civil or criminal, the Legislature may provide by law the Bomber necessary to constitute a jury and to render a verdict; but in all cases the jury may bo waived by the parties." Mr. McFarland moves to reinsert the words " except felony." Mb. McFarland. Mr. chairman : The amendment which I offer is limply to reinsert the words " except felony " in two places. Now, the sole purpose and scope of the amendment is simply to take away the right of uie Legislature to limit the number of jurymen in a case of felony. It takes away the right to waive a jury in case of felony, and 1 do not think, sir, that the Legislature should na^e the power in high crimes to lessen the number on a jury ; I do not think it will be safe to allow even the defendant to waive a jury in this high class of crimes. 1 do not believe that any one man, be he Judge or jur^, should have the right to pose upon the liberty or the life of any citixen, and we all know that persons charged with crimes frequently act without due consideration, and without advice, and might frequently be led to waive s jniT, when really their own rights would be jeopardized by so doing, and I do not believe any Court would take the responsibility of iposeing on the life or liberty of a human being. I think a number of men shonld share the responsibility on an occasion like that. In the case of a misdemeanor I think the defendant should have the rieht to waive a trial by jury if be so dssires. I can see no harm to come 01 it It is done in some instances in Justices' Courts; but it is a very grave question of law whether, under the Constitution, a conviction without a jury in any criminal offense whatever would be valid. My own opinion as a lawyer is that a man cannot waive his right to a trial by jury. It has been held that it could be done, but it is certainly a vejy grave question of law. I do not believe he can under the Consti- tntioa. No man will claim that a man being tried for murder could waive a jury, and there is no possible difference between murder and chicken stealinK before the law ; but I think he should have that right in cases of misdemeanor. Ub. BELCHER. I am unable to see any good reason why a defend- ant cannot be permitted to waive a juij trial in any case. Cases do arise sometimes when a jury may be waived, even in a case of felony, vhen it would be just as well for the defendant to be tried by the Judge m by twelve men. Now, why the right of^ the defendant to waive a jury should be denied is more than I am able to see. I would give the right in any case to the defendant to waive a juty with the consent of the Court. Now, in civil cases, cases now verj often come before the Courts, when the parties choose to waive a ^ury, but the Court wants a jury and calls one; and so in these criminal cases the Court will call a jury if there is any question. But if the Court is willing, and the defendant is willing to waive a jury, I am unable to see any good reason why they should not be suffered to do so. The next question is about juries in cases of misdemeanor and in civil cases, ^ow, I prefer to keep the rule of twelve jurors unless the peirties elect to have a smaller number, with the further provision that a lees number tban twelve may render a verdict. Tbb chairman. The question is on the amendment of the gentle- nan from Sacramento. lost Tbb chairman. The question is on the substitute offered by the gentleman from San Joaquin, Mr. Dudley : " The right of trial by jury •ball be secured to all, and remain inviolate forever; but in all cases, civil or criminal, the Legislature may provide by law the number necessary to constitute a jury and to render a verdict; but in all cases the jury may be waived by the parties." The amendment was rejected. Mb. LAINE. I now offer my amendment as a substitute to the section as reported by the committee : " The right of trial by jury shall be secured to all and remain invio- late forever, but a trial by jury ma^ be waived by the parties in all cases with the consent of the Court in the manner prescribed by law. Three fourths of the jury in all civil cases and misdemeanoia may render a verdict, and in such cases any number not exceeding twelve shall constitute the jury, if the parties so elect" Ma. PORTER. I now offer a substitute to the amendment Thi secretary read : " The right of trial by jury shall be secured to all persons, and shall remain inviolate forever, in all criminal cases amounting to felony, and in all civil cases at law involving one hundred dollars in value. In all trials of persons accused of crime punishable with death, the juty shall consist of fifteen persons, but twelve of them shall be sufiicient to render a verdict. In all other criminal cases amounting to felony, the jury shall consist of twelve persons, and niue of them shall be sufiicient to render a verdict. In civil cases the jury shall consist of twelve persons, but the parties may agree upon a less number, or waive a jury; and in all civil cases tried by a jury, three fourths of the jury shall be sufficient to render a verdict Coses of misdemeanors, and civil cases at law involving less than one hundred dollars in value, ma^ be tried with such a jury, or without a jury, as the Legislature may direct" Tax CHAIRMAN. The question is on the amendment to the amend- ment Lost Mb. McFARLAKD. I move to amend the substitute of the gentle- man from Santa Clara, Mr. Laine, by adding after the word "cases," where it first occurs, the words, " exoej>t felony." I do not believe that a man should be allowed to waive his right to a trial by jury in any case amounting to the dignity of felony; and this is a more important thing than gentlemen seem to think. Men who are charged with crime are not always in apoaition to know what is for their own interests. In the first plaoc, they fall in the hands of a policeman, who always think that a man is guilty whenever he is arrested, and they are the first ones to influence his conduct. They are the first men from whom he derives counsel and advice, whether guilty or not; and, sir, we all know what insane things men often do under the advice and counsel of these men, when arrested for crime. We know that the judgment is not always clear when men are in a position of that kind, and also that a great ' many men arrested are innocent men, and oven with the usual degree of self-possession hardly know what course to take. We know that criminals are often kept confined, without a. chance of oonsniting with friends, until their minds have become biased and influenced by the blandishments of these policemen. I can understand how men in that way can be induced to waive their right to a trial by jury. 1 think, sir, that Judges also ace liable to be biased to some extent, and I do not think, sir, that we should allow this class of citiiens to be induced to give up their right to a trial by jury, and place themselves in the hands of one man. You may say, sir, that they are free agents ; that they have the power to do as they please. Sir, they do not do as they please always, and often do not have the judgment to do as they should do, and I do not believe myself that any maa ought to be deprived of his life or liberty unless by a verdict of twelve of his peers; and it is no satisfactory argu- ment to say that he can demand a jury. We have all of us known men to confess to crimes of which they were entirely innocent, and we can see very easily how a man might lie induced to put biscase in the hands of a Judge who is so far above him in position. I do not believe that men charged with high crimes should be allowed to waive their right to a trial by jury. Mb. BARBOITR. Mr. Chairman : I rise for the purpose of seconding • the amendment offered by the gentleman from Sacramento, Mr. McFar- land. The proposition itself will be such a one as I can vote for, though I should have liked to have bad an amendment to prohibit the Legisla- ture from making the jury to consist of less than a certain number, say six. But on this proposition of allowing parties in cases of felony to consent to a waiver of a jury, that is.utterly and entirely wrong in prin- ciple. In civil cases the matter only concerns the parties— only involves a question of dollars and cents, but in criminal cases it involves the pun- ishment by death or imprisonment in the State Prison, and no man has a right to consent away his rights, and ought not to be punished except that punishment and the magnitude or degree of his cnme l>e found by a jury of twelve of his peers. This, sir, is a dangerous innovation. I am in no hurry to do away with a system that has endeared itself to the hearts of the American people. The people themselves, as well as the accused, are interested in this matter. I have known one man to bring a whole jury over to his side by showing them wherein they were mistaken. That is the right of the accused, that is a right which belongs to the community, and I nope the amendment will be adopted. Ma. REDDY. Mr. Chairman; I believe the object here is to prevent, or rather take some power away from the Legislature with respect to this matter. Now, we say that a party shall have a right to demand a jury • trial, and then, in the same breath, say that the Legislature shall have the right to say how that jury may be waived. Then does not the power go right back to the Legislature to say whether a man shall have a jury trial or not? You say ne can demand it, and then we say to the Legislature, you can say under what conditions; it is for you to say when a man has waived that right — ^you can say, if you choose, that, for instance, unless a man sneezes three times before going into the Court- room, his right to a trial by jury is waived. If you are going to give the Legislature any such power as that over the rights held sacred by the American people, you might as well leave it all to the Legislature. I see how that thing can be remedied, by making the Constitution, or Digitized by Google 256 DEBATES AND PROCEEDINGS Thuesday, rather this amendment of the gentleman, aay that in cases of felony, and in all cases, if yon like, the right of trial b^ jurj may be erpreasly waired ; not that the Legislature may take that right away from a man by implication, as they do in civil cases. Under this provision proposed the Legislature maj do precisely what they do in civil cases. We may ■ay, in arguing this case, that we must place some confidence in the Legislature. If so, let us leave the whole matter to them. I do not believe in leaving a matter of this kind, fraught with so much conse- quence, in such a condition as that. The whole right may be taken away. Leave the Legislature either full discretion, or leave them none at all in this matter. I do not believe that any of our American Con- stitutions have ever yet ffone to &r, have ever yet taken a step as far as this seems to go, in crimmal cases. I agree with Judge McFarland entirely, that we should not permit a party chained with crime to waive his right to atrial by jury, for various reasons. The ivasons are numerous why we should not permit a party to waive that right. In the first place, as has been suggested by the ^ntleman from Sacramento, Judge McFarland, the first person who interviews a party accused of crime is the police officer or some detective officer who may take an interest in securing a conviction for their own personal ends, and who ma^ so advise a party, and make him believe that it will be better for his own interests to submit to a trial by the Court, instead of calling on a jury of his peers. And the very object which the officer may lutve in view may be the conviction of the party accused. Again, the prisoner may be led to believe, by various arts, that his interests would be better protected if he be tried before the Court than they would be to submit hie case to a Jury. Some gentlemen related to me a few day} ago a circumstance where a party in a civil case was mis- led in that way. The party overheard the Judge remark, as be came out of the Court-room, after the case had been submitted to the jury, and after they had been deliberating on the case for some time — the Judge said : " I don't see why the jury is out so long : I would render a verdict in a few minutes for the plaintifir." The plaintiflf immediately went to the defendant and said he would be perfectly willing to try the case before the Judge on the next trial, upon the testimony already taken. The defendant consented, and they did so, and the Court ren- dered a verdict against the plaintiff. Now suppose a Judge, in times of great political excitement — it would be an easy thing for him to drop some remark which would lead the prisoner to believe that the Court was favorable to him, for the purpose of entrapping the prisoner. Now, it is true that our Judges are too uonorable to do anything of that kind, but such Judges as Jeffries have existed, and may exist again. While our Judges are honorable men, and no man on this floor has a greater respect lor an honest Judge than I have, but unfortunately there have been bad men placed on the bench, and it is to guard against cases of that kind that our legislation is now aimed. ' It is proposed here to permit a part^ accused to waive his right to a trial by jurjr. Ue should not be permitted to do so in any case. But if he may waive it at all, let us, in the fundamental law of the land, say how it shall be waived, and not leave it to the power of the Legislature to do away with the right entirely upon some technicality with which the party is not familiar. The jury is the proper party to try a man accused of crime, any way, for reasons well understood by every lawyer. It is a well understood fact that the Judge, who is charged with the administration of criminal justice, becomes, like other officers, like executive officers, calloused, so that it is only necessary to accuse a man and immediately his feelings incline s^ainst his innocence, while a jury, selected from the various callings and professions, not in continual contact with criminals, their minds are freer and in better condition to administer impartial justice. Their sympathies are not already frozen by continual contact with crime, and it is the very object of the law that a man accused of crime shall be tried by such men. There are • a number of other equally potent reasons why the right of trial by jury should remain inviolate without the power of being waived. Ha. WICKES. Mr. Chairman: I do not believe in submitting this matter to the Legislature. I would rather stand by the usages handed down to us by our fathers in the course of human progress. The prin- ciples involved are these: the office of the jury is to acquit, not to con- vict. In law, a person charged wi^h a crime is supposed to be innocent until his guilt is undoubtedly proven, and I do not believe that a crim- inal should be allowed to waive a Jury trial. Mr. BARNES. Mr. Chairman : As far as civil cases are concerned, I have no objection to that part; that is to say, parties in civil cases may waive any constitutional privileges which they may have. But when it comes down to a question of administering the criminal law, that is a matter in which the State is interested as well as the individual. I think it will be a dangerous innovation to put a clause in the Constitu- tion that in any case involving the libert;^ of the citizen be should not be entitled to a fair trial by a jury of his countrymen. I can see no possible reason why this change should be made. It is true, it was stated the other day by the gentleman from Alameda, Mr. Campbell, that there had been cases where one man hung the jury. Well, sir, I think if a man is to be hung by a jury he should be hung by the • whole jury, and not by any part of a jury, and he should not be hung in any other manner. There is no provision older, or more valuable, than this constitutional provision wnich says that the right of trial by jury cannot be waived by the prisoner. There is a very celebrated case on that subject to whicn I call your attention, in the Court of last resort, in the City of New York. It was a case of a man accused of murder, and in that case, by the consent of counsel, entered in open Court, one juror was withdrawn and the trial proceeded before eleven jurors, and when the matter came before a higher Court, they held that it was a privilege which he could not waive ; that it was not in the inter- est of public justice that he should be allowed to waive it. Now, while I am aware that some of us haven't much regard for abjudicated cases and decisions of Courts — and I remember one gentleman said here Uie other day that if the law librarr could be locked up and all these books that the members bring here thrown out of sight, we could go to work and build a Constitution out of our heads, out of our own inner con- sciences. I believe he said that would represent the common sense of the present day. As far as these ancient rights and privileeee are con- cerned, I am not of that opinion. I have a reverenoe for ue opinions of the world's greatest men on these subjects. Now, the Court of AppeaU) say, in regard to this case : ''It is conceded on the part of the people, and it is very clear, that bat for the consent of the plaintiff in error, ne could not lawfully have been tried by eleven jurors." Recollect that a jury consists of twelve persons, and our Constitation declares that a trial by jury in all cases shall remain inviolate forever, and that twelve persons shall constitute a jury. The Court goes on to say: " A legal jury, according to the common law, consists of twelve persons. Our Constitution (article one, paragraph two,) declares that 'the trial by jury, in ail cases in which it has heretofore been used, shall remain invio- late forever,' and the revised statutes provide in reference to trials in criminal cases, that the twelve first jurors who shall appear on being called, and be approved as indifferent, shall constitute the jury * * *. " But it is insisted that the plaintiff in error might waive his right to a trial by twelve persons, snd that having done so, the trial and conviction in this case were valid. The researches of the counsel have not enabled them to refer the Court to any case directly in point, either in favor of or against the proposition, nor are the Court aware of any such case; and hence it must be examined and decided in the light of principle, and such analogies as reported decisions afford. " There is, obviously, a wide and important distinction between civil suits and criminal prosecutions, as to the legal 'right of a defendant to waive a strict ana substantial adherence to the established, constitu- tional, statutory, and common law mode and rules of judicial proceed- ings. This distinction arises from the ^reat difference in the nature of such cases, in respect to the interests involved and the ol^ects to be accomplished. " Civil suits relate to and affect — as to the parties against whom they are brought — only individual rights which are within their individual control, and which they may jmrt with at their pleasure. The design of such suits is the enforcement of merely private obligations and duties. Any departure from legal rules in the conduct of such suits, with the consent of the defendants, is, therefore, a voluntary relinquishment of what belongs to the defendants exclusively; and, hence, there is mani- fest propriety in the law allowing such consent to have the effect designed by it, in most cases, as to matters within the jurisdiction of the Courts. The law does recognize the doctrine of waiver to a great extent; in some instances, even to the deprivation of constitutional private rights. • * * But it is settled that even in civil cases consent will not confer jurisdiction of the subject-matter; and where such jurisdic- tion exists, a chan^ by consent, of the mode of proceedings, may be so extensive as to convert the case ftom a judicial proceeding into a mere arbitration. • • • The substantial constitution of the legal tribunal, and the fundamental mode of its proceeding, are not witun the power of the parties. It was deemed necessary to insert in oar present Constitution a provision that 'a jury trial may be waived by the parties, in all civil cases, in the manner prescribed by law,' to authorize even the Legislature to confer a right to dispense with that mode of trial. This is a solemn judfpnent of the organic law, that, without such a provision, the trial by jury, in cases where it had there- tofore been used, could not be dispensed with. " Criminal prosecutions involve public wrongs, ' a breach and violations of public rights and duties,' which affect ' the whole community, consid- ered as a community, in its social and aggregate capacity.' * * The end they have in view is the prevention of similar offenses, not atonement or expiation for crime committed. • • • The penalties or punish- ments, for the enforcement of which they are a means to the end, an not within the discretion or control of the parties accused ; for no one has a right, by his own voluntary act, to surrender his liberty or part with his life. The State, the public, have an interest in the preaerva- tion of the liberties and the lives of the citizens, and will not allow them to be taken away ' without due process of law,' when forfeited, as they may be, as a punishment for crimes. Criminal prosecutions pro- ceed on the assumption of such a forfeiture, which, to sustain tiiem, must be ascertained and declared as the law has prescribed. Black- stone, vol. 4, 189, says: 'The King has an interest m all his subjects.' And again, vol. 1,133, that the 'natural life, being the immediate dona- tion of the great Creator, cannot legally be dispoKd of or de^myed b^ any individual, neither by the person himself nor by any other of his fellow creatures, merely upon their own authority.' These considera- tions make it apparent that the right of a defendant in a criminal prose- cution to affect, by consent, the conduct of the case, should be much more limited than in civil actions. It should not be permitted to extend so far as to work radical changes in great and leading provisions as to the organization of the tribunals or uie mode of pro«eding pre- scribed by the Constitution and the laws. Effect may justly and ssiejy be given to such consent in many particulars; and the law does, in respect to various matters, regard and act upon it as valid. Objections to jurors may be waived; the Court may be substituted for triers to dispose of challenges to jurors; secondary in place of primary evidence may be received; admissions of facts are allowed; and in similar particulars, as well as in relation to mere formal proceedings generally, consent will render valid what without it would be erronemu. A plea of guilty to any indictment, whatever may be the grade of the crime, will be received snd acted upon if it is made cleany to I4>pear that the nature and effect of it are understood by the accused. In such a case the preliminary investigation of a Orand Jury, with the admit- Digitized by Google Oct. 31, 1878. OF THE CONSTITUTIONAL CONVENTION. 257 ■ion of the accosation in the indictment, is supposed to be a sufficient safeguard to the public interests. But when issue is joined upon an indictment, the tnal must be by the tribunal and in the mode which the Constitution and laws provide, without any essential change. The public officer prosecuting for the people has no authority to consent to inch a change, nor has the defendant. "Applying the aboTe reasoning to the present case, the conclusion neooesarily follows, that the oonsent of the plaintiff in error to the with- drawal of one juror, and that the remaining eleven might render a ver- dict, could not lawfully be reoognixed by the Court, at the circuit, and was a nullity. If a deficiency of one juror can be waived, there appears to be no good reason why a deficiency might not be; and it is difficult to say why, upon the same principle, the entire panel might not be dispensed with, and the trial committed to the Court>a]one. It would be a highly dangerous innovation, in reference to criminal cases, upon the ancient and invaluable institution of trial by jury, and the Consti- tution and laws establishing and securing that mode of trial, for the Court to allow of any number short of a full panel of twelve jurors, and ve think it ought not to be tolerated. " The opinion of the Court of King's Bench, in the case of Lord Dacres, tried in the reign of Henry VIII for treason, strongly fortifies the con- clusion above expressed. One question in that case was whether the [aisoner might waive a trial by nis peers and be tried by the country ; and the Judges agreed that he could not, for the statute of magna charla was in the negative, and the prosecution was at the King's suit. • • • Woodeson, in his lectures (vol. 1, 346),says,the same was t^ain resolved on the arraignment of Lord Audley, in the seventh year of the reign of Charles I, and that the reason was that the mode' of trial was not so properly a privilege of the nobility as a port of the law of the land, like the trial or commoners by commoners, enacted, or rather declared, by magna charta. In 3 Just., 30, the doctrine is stated that ' a nobleman easnot waive his trial by hie peers and put himself upon the trial of the oountiy, that is, of twelve freeholders; for the statute of magna charta is that he must be tried per parts, and so it was resolved in Lord Dacres' case.' " It is unnecessary to pursue this discussion further ; and it remains only to add, as the result of the foregoing views, that in the opinion of the Court the judgment below should be reversed, and a new trial ordered." Now, sir, I apply that aitgument to our>Constitution. We are to say whether we will make an innovation upon these ancient privileges, that whenever a man is accused of crime he shall be brought face to face with twelve of his peers, who shall pass upon the question of bis guilt after hearing all the evidenoe, and after mature deliberation ; and I know of no reason why, if you can tr^ a case with eleven jurors, yon cannot just as legally try a case with six iurors, or wh^ you could not do away with the Jury altogether. Sir, I Know of nothing that is more essential to the rights of the people of these United States than the right of trial by jury, where twelve good men and true stand between the man accused of crime and the officers of the law. I say again, I can see no reason why any such change should be made with reference to the criminal law. It is a right that is sacred to the people, and they will guard it with a jealous eye. It is a right which has been recognized ever since the existence of free government, and I hope it may continue to exist as long as time shall last. I hope no change will be attempted in our oi;ganic law that will affect the right of trial by jury in any case that may affect the life or liberty of the citizen. Mb. hale, Mr. Chairman, would it be permissible to offer an amendmenL Thi chairman. Ko, sir, not at the present time. Mb. hale. The Convention, or rather the Committee of the Whole, has not had an opportunity to express its judgment upon the broad proposition involved here, and I would like to have a chance to test the sense of the committee upon a proposition a little broader than that covered by the amendment to the amendment offered by the gentleman from Santa Clara, Mr. Laine. For the purpose of illustrating my argu- ment, I desire to read an amendment which I have prepared, and which I shall offer at the proper time : " The right of trial by jury shall be secured to all, and remain invio- late forever, but in all cases whatever, except criminal cases, where the punishment may be death, or imprisonment for life, a jury ma^ be expressly waived by the parties with consent of the Court. The jurjr shall consist of twelve persons, except that in all civil cases and crimi- nal cases not amounting to felony, the parties may agree upon a less number, and in all. cases except criminal cases punishable by death or impriaounent for life, a verdict may be rendered by the concurrence of three fourths of the jury." Now, it will be recognized by all that the number of cases of felony Wed in our Courts is exceedingly large as compared with the whole number of criminal cases; whereas, the number of criminal cases pun- ishable bv death or imprisonment for life are comparatively few. I take it that_ the committee has practically expressed its judgment against ^tending these provisions to cases which may involve the taking of liie or_ imprisonment for life. But I would like to test the sense of the committee on the question of extending this right of waiver to leas than all of the jury in criminal cases not punishable by death or imprison- ment for life. If the committee should reject the present pioppsition I shall offer this to test the sense of the body. Ma. ESTEE. This section as reported by the committee reads as fol- lows: "In criminal cases the right of trial by jury shall remain. In all CMes except felony the Legislature va&y provide by law the number aaoeasary to constitute a jury, and in all civil cases the number necessary to reoder a verdict." ^Aa I oonstme that, sir, in all cases except felony, the Legislature may Br th« number of the jury. Now, what are they going to do in cases of 33 felony? We are not making criminal law, we are making a Constitu- tion. It strikes me that the language is very peculiar, anavery suscep- tible of a different construction, and very uncertain, and I move that the committee now rise, and report it back to the Convention, with the recommendation that sections seven, eight, nine, thirteen, and fourteen be referred to the Committee on Judiciary and Judicial Department. I certainly think that such a grave and important question should receive more careful consideration. Mb. MoCALLUM. I rise to a point of order. It is that the motion that the committee rise is debatable, as I learned a few moments ago. Mb. hale. I second the motion that the committee rise. Division having been called for, the motion was lost by a vote of fifty- eight ayes to seventy-two noes. Mr. EDGERTON. Mr. Chairman: I am altogether opposed to any innovation on the right of trial by jury, as far ns it affects a criminal case. And I am also opposed to any cJiange in the law with regard to civil cases, that shall not be accompanied with the condition that the Legislature may at any time restore it to the old plan. I have found in the Constitution of Nevada a provision covering this subject that com- mends itself to my judgment, and I shall vote against the amendment, and also against the provision as it now stands, for the purpose of offer- ing that clause in the Nevada Constitution, if I am permitted so to do. That clause reads as follows : "The right of trial b^ jury shall be secured to all, and remain invio- late forever. A jury trial may be waived by the parties by the consent of the Court in all civil cases, as provided by law. In civil cases, if three fouKhs of the jury agree upon a verdict, it shall stand and have the same force and effect as a verdict of the whole jury, provided the Legislature, by a law passed by three fourths of all the meraberselected, may require a unanimous verdict, notwithstanding this provision." This obviates the objections made by «ome of the gentlemen, by pro- viding that it must M by consent of the Court, and in the mode pre- scribe by law. It preserves to every man charged with any kind of crime the sacred right of trial by jury. Farther, u, aftOT actual experi- ence, the people should discover that it is unwise, the power is longed with the Legislature to restore it as it stood before. I think it is a good provision. The chairman. The question is on the amendment to insert the words " except felony." Mb. HAGER. Mr. Chairman: I regret, sir, that the proposition before the committee has not been referred to the Judiciary Committee. It relates to the administration of justice; it is a very important matter, one that we cannot very well manipulate in this large body. The report of the committee I disagree with, and I presume three fourths of the Convention will oppose the radical change proposed by the committee that make this report That would subsUntialty do away with a jury altogether, except in criminal cases amounting to felony. But perhaps public sentiment is undergoing a change in regard to the so-called jury system as known to us under the common law. At common law apury consists of twelve persons, and every Constitution contains a provision in relation to trial by jury, which means a jury of twelve men, and any attempt to evade it of course would be a mistrial, when it comes before the Court. But, notwithstanding all this, we have a right to engraft in our Constitution a provision making six, or ten, or eighteen men a jury in criminal or civil oases, because it is the fundamental law, the organic law, and we have a right to prescribe rules, and as I said before, it IS not a question which can be very readily settled in so large a body as this. It requires the consultation of some clear-headed men, other- wise we will oeoome muddled over it. Now, the proposition of my friend from Santa Clara, Mr. Laine, pro- poses that three fourths of a jury shall render a verdict. I am in favor of that proposition. 1%e propcned amendment embodied that proposi- tion, which I have here before me. But the last clause of thc^proposi- tion says that the jury shall consist of any number leas than twelve, if the parties agree. Well, suppose they agree upon a jury of ten; the question comes in, what nucnber constitutes three fourths of ten? If you have a jury of twelve, and you get eight out of the twelve to sign a verdict, ^ou have it. Now, in Scotland, the jury system that has prevailed there for years is this: In criminal or civil cases the jury is composed of eighteen mem- bers, and twelve of the eighteen are required to render a verdict. That is a very good system, according to my opinion. It has been in force there for years, and has operated very weU, while in England it is still a unanimous verdict of twelve men. I believe here in these United States, in various of the States, they have changed their jury system, and some of them have abolished jury trials in certain cases, even in criminal cases. A great many of them have made changes. 'The party undoubtedly waives a jury trial ; but it is said here that a party ought not to be allowed to waive a trial by jury. Well, sir, when he comes before the Court and pleads guilty, is not that a waiver of jury trial? He may come before the Court and say, " I wish to waive a jury, and simply wish the Court to look into this matter." Well, if I was the Judge, I would say no; I will not consent to a waiver of a jury; I shall not consent to have this burden thrown upon me. Neither would a Judge consent, where the damans are of an uncertain character, to have a jury waived ; and I do not think this burden should be imposed upon the Court where the damages are so uncertain that it can only be arrived at approximately any way, or in a case where the judgment may be in the nature of exemplary damages. Now, since we have this matter here, I will refer to some of the objec- tions. Now, take the Constitutions of Arkansas, of Minnesota, and Wisconsin, which read : " The right of trial by jury shall remain inviolate, but a jury trial may be waived in all cases." As I understand it, it relates to criminal as well as cixil^ cases. Again, take the Constitution of New York : Digitized by' L. cixil cases. Again, Google 258 DEBATES AND PROCEEDINGS Thursday, " The trial by jury in •!! cases in which it has been heretofore used, shall remain inviolate forever; but a jury trial mar be waived by the parties in all civil cases in the manner to be prescribed bv law." Mk. WINANS. That is the language of the Constitution of this State. Ms. HA6ER. Now I pass again to the Constitution of Maryland : I' The parties to any cause may submit the same to the Court for deter- mination without the aid of a jury; and the Judge or Judges of any Court of this State, except the Court of Appeals, shall order and direct the record of proceedings in any suit or action, issue or petition, present- ment or indictment, pending in such Court, to be transmitted to some other Court (and of a different circuit, if the party applying shall so elect,) having jurisdiction in such cases, whenever any party to such cause, or the counsel of any party, shall make a suggestion in writing, supnorted by the affidavit of sucfi party, or his counsel, or other proper evidence, that the party cannot have a fair or impartial trial in the Court in which such suit or action, issue or petition, presentment or indict- ment is pending, or when the Judges of said Court shall be disqualified under the provisions of this Constitution to sit in any such suit, action, isaue or petition, presentment or indictment," etc Then we take u|> the Constitution of Michigan : "The right of trial by jury shall remain inviolate. "In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the vicinage; to be oon- frontM with the witnesses against him; to have compulsory process for obtaining witnesses in his favor ; to have the assistance of counsel for his defense; and in all civil cases, in which personal liberty may be involved, the trial by jury shall not bo refused." And this is the Nebraska Constitution : " The right of trial by iury shall remain inviolate ; but the Ijegisla- ture may authorise trial ov jury of a less number than twelve men, in Courts inferior to the District Court." The point I wish to illustrate is, that we may change the jury system by a constitutional provision ; that we are not bound strictly to adhere to the old common law rule of twelve men ; that we may depart from that rule. Then we have the Constitution of Kevada, which was referred to by the gentleman from Sacramento, Mr. Edgerton: "The right of trial by jury shall be secured to all, and remain invio- late forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law; and in civil cases, if three fourths of the jurors agree upon a verdict, it shall stand and have the same force and effect as a verdict by the whole jury ; provided, the Leg- islature, by a law passed by a two thirds vote of all the members elected to each branch thereof, may require a unanimous verdict,,notwithstsnd- ing this provision." Then we have the Constitution of Korth Carolina : " In all issues of fact, joined in any Court, the parties may waive the right to have the same determined by a jury, in which case the finding of the Judge upon the facts shall have the force anon this subject have serious doubts about the jury sys- tem as it now exists as a proper mode of administering Justice. There seems to be an impression prevailing that men on the jury may be tam- pered with. Where you require a unanimous verdict of twelve men, a man who is being tried may have a friend among the twelve who is able to defeat the ends of justice. Cases are often seen where one man hangs the jury, Thispractice is used over and over again. Again and again we see men of influence and wealth evading punishment in that way, and these things have a tendency to cast a doubt on the wisdom of retaining the present j ury system. Now, let some man of great wealth be indicted for some crime, and he is put upon trial before a jury of twelve men, and if it turns out that one of the jurors, or two or three of them, stand out persistently for acquittal, that is sufficient to create a suspicion that they may have been tampered with. That is what we do not know. I am inclined to the conclusion that we will have to dispense with this unanimous verdict on the part of the jury, and take something less than that ; and I hope this Constitution will be so framed as to meet public opinion on this suUect. Mr. CAPLES. Mr. Chairman: Mr. Hager has aptly said that public opinion is undergoing a change in regard to the jury system, and he has expressed a great deal of truth in a very few words. Mr. Chairman, for forty years I have been a doctor, and I have learned something in regard to the change he refers to. Forty years ago the popular idea with Americans was the palladium of our liberties. To-day the popular idea, even among the legal profession, is that the jury system is the bulwark of thieves. That is illustrative in some measure of the change of popu- lar sentiment. But, Mr. Chairman, this is one phase of this question that I particularly feel interested in. It may be that the legal gentlemen in this Conven- tion, notwithstanding that they admit in private conversation that it ii a delusion, desire to perpetuate it. But there is one proposition in which I am particularly interested, and that is the reduction of the number of jurors. If gentlemen are determined to perpetuate the jury system, I at least, in the interest of the citizens, and of the taxpayers, demand that the number shall be reduced. I have the figures here showing the cost of the jury system in Sacramento County, and multiplying that by twenty-four, which is the difference between Sacramento County and the State of California, shows that a reduction of the number of juron from twelve to seven would be a saving of three hundred and eighty thousand dollars a year. And when the time comes I propose to offer a substitute, that the number be reduced to seven, and I shall demand to know why and wherefore seven jurors are not as good as seventy, if the interest of thS public is considered. I assert that seven juron anal good as seventy or seven thousand. For the present I am not at liberty to offer an amendment, but I will make the suggestion, simply to con- firm what Judge Hager has said, that there is a very great change in popular sentiment, and I think the people are demanding relief from oue end to the other of the country. Here, for instance, we have at the present time a law requiring that jurors shall he drawn by the County Judge, and serve one year. About two thirds or three fourths are exempt, from some cause or other, and this expense is all saddled upon the taxpayers. Farmers are taken away from their farms, and they are complaining loudly and bitterly, for their time is taken from them without any compensation. True, they receive two dollars per day, and that pays their Iraard, but their time is a total loss, and, as I said before, they demand of us that we give them some relief; if not entire relief, at least a partial relief, such as would be afforded by the reduction of the number. Ma. ANDREWS. Mr. Chairman: I am in hopes that the amend- ment offered by the gentleman from Sacramento, Mr. McFarUnd, will be voted down. I also prefer the present Constitution to any Constita- tion I have heard quottnl. The jury system is plain and simple. This jury system has been in existence for ages, and 1 think time has vindi- cated the wisdom of ages. I differ with the gentleman from San Fran- cisco, Mr. Hager, when he says that public opinion is against the juiy system. I am not in favor of an innovation which I believe to be dan- gerous to society. In regard to this matter of allowing less than the whole of the jury to bring in a verdict, in any case, I say this, as has been well said by the gentleman from SaafVancisco, that I believe in requiring a nnanimous verdict; and I hope that the amendment of the gentleman from Sacramento, Mr. McFarland, will be voted down. I will merely say that I will offer this amendment at the time when it will be in order, so as to make the present constitutional provisions con- form to the old Constitution : "Sic. 3. The rightof trial by jury shall besecured to all, and remain inviolate forever; but a jury trial may be waived by the parties, in all civil cases, in the manner to be prescribed by law." Thk CHAIRMAN. The question is on the amendment of the gentle- man from Sacramento, Mr. McFarland. Mr. WILSON, of First District Mr. Chairman: I do not intend to speak at length upon this subject I am satisfied that the Convention is ready for the question, and was ready for it some time ago, and the debate has satisfied me still more upon the truth of that proposition. That this section should have gone to the Judiciary Committee I am satisfied. The proposition that was presented this morning should have prevailed. The section here which has been reported by the Committee on Preamble and Bill of Rights, I will say, without any disrespect to that committee, is not as neatly drawn, not as compact and clear as it should be. I will call attention to the reading and construction of it: "In criminal cases the right of trial by jury shall remain." Remain whereT It remains in criminal cases and nowhere else. It practically abolishes Jury trials in civil cases. It especially reserves it in criminal cases alone, leaving the Legislature untrammeled on that subject, having the power to adopt or not adopt a jury for civil cases. The language is not as good in that respect even as section three of the old bill of rights: " The right of trial by jury shall be secured to all, and remain inviolate forever," is much stronger and better language; and then it follows on : " In all cases," that includes criminal cases, " except felon ies, the Legislature may provide by law the number nec- essary to constitute a jury." They are not obliged to have a jury at all, but they may provide by law the nUmber necessary to constitute a jury, except in case of felony ; there they cannot. In cases of felony there would be a right remaining to the old common law jury of twelve and a unanimous verdict; but in any other case the Legislature may provide by law the number necessary to constitute a jury, but it is not oblieed to have any jury at all. And then in any civil case it says the Legisla- ture may prescribe the number to render a verdict, but they are not required to have a jury at all in any of these cases. I do not believe that a majority of this Convention are prepared to adopt a section into the Constitution which abolishes jury trials in all cases except felonies, or to leave it to the Legislature to determine whether, in that great class of crimes called misdemeanors, there shall be a jury or not, as it sees fit, and in civil cases there may be a jury or not, as the Legislature shall determine. That is my interpretation of section seven", and if I am correct, why it certainly should be expressed in such manner that such a construction cannot be placed upon it. I am sincere in my construction of it, believing as I have stated, that it is capable of this construction — abolishes all right to a trial by jttiy, except in cases of felony; leaves it to the Legislature to determine whether, in misdemeanors and civil cases, there shall be a jury or not Now, in regard to the proposition of the gentleman from Santa Clara, it is clearer, but still I do not think it contains exactly what would be the sense of the Convention : " The right of trial by jury shall be secured to all and remain inviolate forever, but trial by jury may be waived by the parties in all cases, with the consent of the Court, in the Digitized u. . JOQIC Oct. 31, 1878. OF THE CONSTITUTIONAL CONVENTION. 259 manner DFescribed by law." Now, according to that, in civil cases, the jnities tnemselves cannot control their own case unless by the consent of the Court, I do not see why, in a civil case, where counsel agree, they cannot waive a jury and have the case determined by the Court. But this proposition makes the consent of the Court necessary in civil cases to the waiver of a jury. This brings me back again to my proposition that this section should go to the Judiciary Committee, and be carefully considered and reported upon ; and without wishing to be considered obstinate, I renew my motion that this committee now rise and report to the Convention a recommendation that all further action upon sections seven and eight be suspended, and the subject-matter referred to the Judiciarjr Committee to report upon the same. However, I will confine it to section seven alone. There are some other questions involved here which I have not discussed at all. If it does not go to the Judiciary Committee it can be discussed in open Convention. I think some of the •mendmenta to the Constitution of the United States are involved in this, but I do not care to discuss them now at this place ; therefore I think it should go to the Judiciary Committee in order to examine it as to that matter. And I say it without any disrespect to the members of the committee. I know that anything, however skillfully drawn, when it comes afterward to be carefully looked into and criticised, may be found to be defective ; and a person who draws a section may himself see that it is not what he intended it to be; and we have now had a chance to lay bare the defects in this section, and V^ ought to have a most careful and critical consideration. It is for these reasons that I have renewed my motion without any disrespect to the Convention, or to any member of the Convention. Ma. HAGER. I offer an amendment to the motion, that the com- mittee be instructed to report at an early day in order that the Conven- tion may not be delayed in the consideration of this article. I would sik that the committee be instructed to report on Saturday morning, or to-morrow morning. Thi CHAIBHAK. The motion that the committee rise is not debat- sble. Ms. VAN DYKE. I haven't heard any objection. Ms. WILSON. I acoept the amendment. Thi CHAIRMAN. The motion is that the committee rise, report bsck the section, and recommend that it be referred to the Judiciary Committee, with instructions to report to-morrow morning. The motion prevailed on a standing vote : ayes, 73 ; noes, 43. IN* CONVENTION. Me. van dyke. Mr. President: Is the motion open to debate now. TBI PRESIDENT. No, sir; no debate. The report of the Commit- tee of the Whole, with it» recommendation, is now before the Conven- tion. It is not a debatable ({uestion. The motion is now to refer to the JndiciaiT Committee, with instructions. Ml. VAN DYKE. Mr. President: I wish to say this to the member* of the Convention, that if we had arrived at any conclusion — if we had sirived at some determination here, so that all that was reouired was to put it in proper shape — then something would be accomplisned by refer- ring it to the Judiciary Committee. But it must be apparent that we have not arrived at anjr conclusion whatever as to the framing of this section. There is a division of sentiment in this Convention on the qnestion of whether the common law jury shall be retained in all cases of felony, and upon the other question of whether in cases of misde- mesnor the matter shall be left to the Legislature, and also upon the ques- Uon of a waiver of jury, and how far it shall extend. We have not arrived at any conclusion whatever on these questions, and it will do no good to refer it to the Judiciary Committee. Now, sir, suppose this is referred to that committee — and I understand from the debate here that the members of that committee differ among themselves on these ques- tions—suppose a majority of that committee report a section here, why, we will have to go over this same ground again. We have not advanced s itep. It will still be subject to amendment, and we will have just as manjr amendments here as there are different views upon it in the Con- vention. Now, as Chairman of the Committee on Preamble and Bill of Rights, I have no pride of opinion in reference to this question. It was « compromise section by our committee. I think, however, it is not Nl^ect to the criticisms bestowed on it by the Chairman of the Judiciary Committee. And upon the whole, for myself, I think the best thing Uua Convention could do is to take the section read by the gentleman from Sacramento, Mr. Edgerton, from the Nevada Constitution. It is SNtainly an improvement upon ours, and I for one would be willing to adopt it. It leaves the matter somewhat elastic; it provides for a ver- dict by a two-thirds vote in civil cases, and authorizes the legislature to restore the old system in case the new one does not give satisfaction. I think that is the best thing the Legislature can do under the circum- stances. I think it is a wrong idea, whenever a question comes up here that we cannot immediately agree upon, to rush it off to the Judiciary CommiUee. We want first to ascertain the sentiments of this body upon <»itain points; find out if we can what they desire to accomplish, so that when it is reported back we will not have to go over the same ground again. It is simpiv a waste of time, and the long debate we have had over this section has not in any manner indicated the senti- ■nents of the Convention as to any one of the points involved. Mt McCALLUM. I am perfectly willing to sit here and listen to »n]r discussion, if at the end of it we can avail ourselves of the benefit or It and come to a vote upon the propositions involved. Here is a proposition pending, coming from the gentleman from Santa Clara, which seems to meet with general favor in this Convention. My 'Qipnnan is that it will meet with favor in this Convention. Gentle- ^ «y we are not resolved on anything. Well, we can't do anything, o««nie thev won't give us a chance to vote. I must enter my protest here, once for all, against these motions to rise and refer these matters to committees. We have not oome to any condnsion yet For an hour and a half we have discussed this question, as to what we shall do with this seventh section. Why not vote upon it? Why not return to the Committee of the Whole and vote on these two propositions which were before the committee? What light is this Judiciary Committee going to give this Convention that they cannot give it now ? This matter has already been to a committee, and the report of that committee is now before the Convention for action. When will this thing end, if we take the report of one committee, and without arriving at any conclu- sion refer it to anotlier committee. In that way every section of every article in the Constitution might be referred to different committees before any action has been token on it. Now, I don't want this whole matter to be renewed again. I have listened to all this discussion, and I would like to have an opportunity to vote on this question this evening, and I believe the gentleman's proposition from Santo Clara will be adopted, and I make a motion now that we return to the Committee of the Whole, in order to get a vote on it. Mb. TINNIN. I move the previous question. Thx PRESIDENT. The motion is to return to the Committee uf the Whole. Division being called for, the motion was lost — ^ayee forty-seven, not a majority. Tux PRESIDENT. The motion now is to refer it to the Judiciary Committee, according to the recommendation of the Committee of the Whole. The motion prevailed, on a standing vote — ayes eighty-three, a clear majority, BISOLOTIOK. Mk. BARBOUR. I wish to send up a resolution to assist the Judiciary Committee in obtaining the sense of the Convention. The SECRETARY read: Besolved, That It Is the lenie of this Oonventlon that the common law Jniy Id crimloal cases of the grade of felon; shoold not be denied or Interfered with. Mb. CAPLES. I offer an amendment, that the number of all juries be fixed at seven : " To provide that all juries shall be composed of seven jurors." Mb. HOWARD, of Los Angeles. Mr. President: As several of the committees are anxious to sit, I move that the Convention adjourn until to-morrow at ton o'clock. The motion was lost — ayes, 67 ; noes, 77. Mb. TURNER. I move to lay the amendment on the teble. Thb PRESIDENT. That will carry the resolution there also. - The motion prevailed, and the resolution and amendment were tabled. Mb. ESTEE. I move that the Convention do now resolve itself into a Committee of the Whole, for the puipose of considering section eight of the article on preamble and bill of rights. The motion prevailed. IN COMMITTEE OF THE WHOLE. Tbb CHAIRMAN. The Secretary will read section eight. The secretary read : Sic. 8. No person shall be held to answer for a crime, or other public offense, punishable by death, or imprisonment in the State Prison (except in cases of impeachment, and in cases of militia when in actual service, and in the land and naval forces in time of war, or which this Slate may keep with the consent of Congress in time of peace), unless on present- ment or indictment of a Grand Jury. In all other cases, offenses shall be prosecuted by indictment, information, accusation, or complaint, as concurrent remedies, as may be prescribed bv law. A Grand Jury shall consist of not less than fifteen nor more than eighteen persons, two thirds of whom may find an indictment or true bill. The Legislature, by a two-thirds vote of all the members elected to each house, may abolish and restore the Grand Jury system. Mb. EDGERTON. I move that the committee now rise, and report back to the Convention sections eight, nine, thirteen, and fourteen, with the recommendation that they be referred to th« Judiciary Committee, with instructions to report the same back to-morrow morning. As the gentleman well observed, there are ten sections on which we can work. There is enough to do, and there is every reason in the world why these sections should be referred. Mb. white. I move that the whole bill of rights be sent to the Judiciary Committee, as an amendment. Mb. FREUD. I move as an amendment, that it be recommitted to the Committee on Preamble and Bill of Rights. The CHAIRMAN. That is out of order — we are in Committee of the Whole. The question is now on the motion of the gentleman from Sac- ramento, Mr. Edgerton, that the committee rise and report the sections back, with the recommendation that they be referred to the Judiciary Committee, with instructions to report to-morrow morning. Division being called for the motion prevailed — ayes, 75; noes, 47. IN CONVENTION. Thb PRESIDENT. Gentlemen: The Committee of the Whole have had under consideration the report of the Committee on Preamble and Bill uf Ri^hU, and have instructed me to report back to the Convention sections eight, nine, thirteen, and fourteen, with the recommendation that they be referred to the Judiciary Committee, with instructions to report on them to-morrow morning. Mb. EDGERTON. I move that the Convention adopt the report of the Committee of the Whole. Mr. FREUD. Is the report capable of being amended now. The PRESIDENT. It isa motion to refer to the Judiciary Committee, and is not amendable. Mb. FREUD. I move, as an amendment, that it be recommitted to the Committee on Preamble and Bill of Righto, and thes«^ gentlemen . Digitized by oogle 260 DEBATES AND PROCEEDINGS Fbiday, can haTe the priTilege of coming before that committee and Btating their Tiews. I think this is due, as a matter of courtesy and respect to that committee. I am willing to concede to the Judiciary Committee m their positions, d: To hearproposals for new laws, rules or regulations, laid before them hy the House of Agents, and to accept or reject them. No law of general importance shall be valid before it is voted upon by the body politic of citizens and approved by a majority, e: To elect new agents or persons for offices emptied by former incumbent!. "Sic. 5. Candidates for citizenship have the right' to partake in dis- ciusioDS, but cannot vote. "Stc. (. Every district shall elect from its members three perma- nent Secretarie*. The Corresponding Secretary shall communicate all important actions to the headquarters of the State. The presiding offi- cer shall be elected for each meeting. "Sto. 7. £ach district shall choose and hold in place one member for the House of Agents. " Sic. 8. In all litigious cases of general interest, in which the agents of the people or their respective committees could not agree, the body politic of citizens is the last instance and the supreme judge. "Aetio!.! V. "TBI H0U8I or 8TATI AOINTS. "SccnoH 1. The House of Agents of the people shall be composed try the delegates elected from eacn district of citizens. " Sk. 2. The House of Agents shall combine in itself the legislative, the executive, and the judicial power. The division of power, viz : the division of the Legislature in senate and Assemblv. The offices of Governor and of professional judges shall be abolished. "Sk. 3. The House of Agents shall select persons for public offices and form committees from its members for conducting all branches of public affiurs and business. " Sic 4. For the framing and establishing of laws, rules, and ref- lations, the agents of the people shall be governed by the following observations and principles : The fundamental evil, under which the societies of men in all civilized State organizations suffer, lies in the fi^t that a small minority of the people holds the riches of the country in their hands, and that in consequence thereof the great majority is poor and suffering from misery and starvation. With wealth is always power and dominion, and with poverty, want of liberty, and servitude connected. With the continuance of tiie said fundamental evil a dem- ocratic republic, a free State, a self-^vemment of the people is an impossibiuty. The sources of this evil are: a: Want of intelligence of the mass of the people. & : Want of laws to prevent deceivers of the people to spread superstition, and thereby daniage the intelligence of the people, e: Want of laws to prevent persons to hold incontrol- tble positionB of power, d: Want of energy, strong will, and of politiol activity or the majoritv of citizens, e: Want of laws by which the accumulation of the ricnes of the country in the hands of a few is prevented. " In order to unroot the said evil, the House of Agents shall frame and propose to the people a law by which the most liberal provisions are made for all public institutions of instruction and education ; for increasing the salaries of teachers; for the supply of books and utensils naed by pupils; for the establishment of institutions for the instruction and pncti(^ education of farmers, mechanics, and artists of all kinds. "in all cases education and instruction is entirely free of any expense for pupils and students. "0. A law that all persons who pretend to be astrologers, to be able to predict the fnture, to be in connection with spirits or ghosts, to have any knowledge of one or more supernatural beings, to be able to inform the people about one or more' such supernatural beings ; who also pre- tend that there are letters or scriptures, often called noly scriptures, of nioh supernatural beings, &r that such letters or scriptures are written by men inspired by a God or spirit, or any other so called supernatural being, shall be compelled to bring indubitable proof of their assertions before an impartial commission, elected by the people, or they shall not be allowed to practice for money or other compensation, to teach in pub- lie institutions, or to receive salaries for their practicing. "e. A law by which the real estate of California is declared public property. No single person can bo proprietor of land or real estate, ror agricultural purposes, for raising of stock, for the erection of any kind of buildings, the land must be rented through the House of Agents. The present owners of real estate property will either be left in the right of using the same as far as it is cultivated or covered with buildings, or they, or their heirs shall be properly indemnified for giving up the same to the State. • [See note at end.] d. A law by which a progressive income tax is levied, so that an income of one thousand dollars a year or less is entirely free from tax; an income of from one thousand dollars to three thousand dollars yearly dull be taxed with one per cent.; an income of from three thousand dtdlan to five thousand dollars yearly with five per cent. Every income over five thousand dollars a year shall be taxed in such a way that five thousand dollars is taxed with five per cent.; every one hundred dollars ov« five thousand dollars, with seventy-five per cent. Out of the money received by the rent of real estate and by the income tax, large goaal State funds shall be created for school and educational purposes, ■ad for itma inadtations, from which every good standing citizen shall I the lu^t to borrow money in order to commence any kind of ' , lepubuaineai, Uie inventory of which shall be held as security. In all such cases only small interest shall be charged. In certain cases, to be defined by the respective committees from the House of Agents, no interest at all shall be charged. " Sec. 5. The House of Agents shall further provide for State savings banks. These and all other funds are to be held under the constant control ,of the people. " Sec. 6. They shall establish rules and laws, according to which the public affairs in the different counties, townships, and communities are conducted in a similar way aa for the State, by agents of the people, elected from the districts. These agents shall constitute themselves as a Board of Municipal Agents. " Sec. 7. The House of Agents shall enact a law to the effect that all persons chosen to an office shall remain in and hold that office until they resign, or until they are revoked from their position by the people for want of trust, or for infidelity or crime. " Sec. 8. They shall provide for the formation of military companies in each district, which shall be held constantly under the control of the people. Every officer in the militia is subject to the same rules and laws as all persons in office in the service of the people. " Sec. 9. They shall provide for the establishment : a : Of institutions in which all old or sick persons unfit to work are cared for. b : Of insti- tutions for insane persons, for drunkards, for vagabonds, unwilling to work fh>m their own free will, c: Of institutions for the confinement and correction of criminals. " Sec. 10. Capital punishment shall be forever abolished, because the commitment of crimes is the natural consequence of the faults of our political, social, or educational institutions, and, therefore, more the fault of society in general than of single persons. "Sic. 11. The House of Agents shall be in regular convention three months every year, fhim January first to April first, and each member shall receive ten dollars per day during the time of session. "Sec. 12. After the adjournment of their sessions, the Secretaries and the committees for conducting public affairs shall remain in action. "Ahticli VI. "TBI B0ABD8 or WIinCIPAL A0IHT8. "SBcnoM 1. For conducting public business in the various counties, townships, and communities, the citizens shall elect persons who shall constitute Boards of Municipal Agents. These Boards shall appoint per- sons for offices and form committees for the conduct of all public amirs and business. The offices of Mayor, Auditor, the Courts, Boards of Supervisors are therefore to be abolished and replaced by committees from the Boards of A^nts, and by juries selected by the people. " Sio. 2. Police ofScers shall be appointed by the Boards of Agents. " Seo. 3. The establishment of laws, rules, and regulations by the Boards must be laid before the people to be voted upon. "Abtiole VII. "OBHEBAL BULES AND OBSIBVATIOKg. "Section 1. The Constitution of California shall be revised, and, according to the progress of time, improved every ten years, if it is not resolved oy the people to do this at an earlier period. " Sec. 2. Every person residing in this Sttoe shall have the right to express his opinion f^ely by word and by press. " Seo. 3. No person residing in this State, who is not a citizen, or has not declared his intention to become a citizen, shall be allowed to do any business in this State for supporting himself or family, or to make money. "Sec. 4. No Chinese or Mongolian can become a citizen of the United States, and, therefore, cannot be permitted to do any business or labor in this State for the purpose of making mone^. " Immediately after the acceptance of this Constitution by the people, the delegates, who framed the same shall convene in Sacramento and act as the agents of the people. "Their first business snail be to constitute themselves as the House of State Agents, appoint secretaries and form committeeafor the different branches of public business. They shall at unoe act on the division of the State into districts, appoint the headquarters and regulate the politi- cal action of the people. The districts shall, immediately after they are established, elect persons for the Boards of Municipal Agents and notify through the Corresponding Secretary of the political headquarters of the State, all persons who hold public offices under the old Constitu- tion that they have to quit their positions. " Hon. Members of Constitutional Convention : " Many alterations, additions, and by-laws will be required to this framework. But if you will only hold on to the principles set forth in Section 4 of Article V, then there is no doubt, provided such a Constitu- tion is accepted by the people, that in a short time the inhabitants of our State will be a union of happy human beings. With the best wishes for your success of framing a Constitution by which this aim will be gained, and by which you will give a glorious example to the whole civilized world, I sign, " Very respectfully, "E. STEINIiE." * Not« to Sec. 4, Art. V.— This V«u>s, not at all and bv no means, " Commnnism." To fomem penonkl property *a the main inEtrument of indiTidual lilierty shall be ona of tha moat sacred righta of men. Bat personal and IndiTidual propertT 1* only and can only be what ii created by the mentnl and physical prooesa of indlTldaaU. What Is glren by nature, as atr, water, and aoll, is common pioparty. BTATIORBBT BILLS. Mb. Caples offered the following resolution : Baelotd, That the Secretary of State be requeatad to ftirnlah the Oonvention with a detailed statement of the Items of stationeiy and other articlaa, and the value theraof in money, anppUad to each member of thli Oonveotlon. Adopted. Digitized by Google 262 DEBATES AND PROCEEDINGS Friday, EXPORTS — RIOHT WATCHMiH. Mb. HILBOBN, from the Committee on Uileage and Contingent EzpeoBes, made the following report : Mr Pbmioiwt : Tour CommittM on Mileage «nd Contingent Expenae*, to whom «u referred Heeolntlon No. 67, Introdnced b^ Hr. Xagon, rolntiug to paying Jamet teUty as Night Watchman — have had the name nnder couaideration, and herewith report the fame back, and recommend that it be adopted. HILBOBN, Chairman. The PRESIDENT. The Secretary will read the resolution. Tai SECRETARY read : Baatvtd, That the Controller of State be and he la hereby directed to draw hla wamct In faTor of Jame* Sallry for one hundred and Bve dollara, for twentyone daya' aerrlce a< Night Watchman, and the State Treaanrer to pay the tame out of the apprapriation for the expenm of thla GonTtntton. Mr. O'SULLIVAN. I would like to be informed who authorized Mr. Saltry to act as Night Watchman for twenty-one days. I regard it aa a steal, an outrageous steal. Mb.HILBORN. I would like to send up and have read an extract f>om the Journal of Monday, September thirtieth, eighteen hundred and seyenty-eight, The SECRETARY read : "The OoTemor then announced the following appointment!, to act until the Con- vention should be permanently urganized; Minute Clerk, A. J. Dobbins; Sergeant- a^Amu, J. M. Farrelly; Watchman, Jas. Saltry; Doorkeeper, B. F. Alexander, Potter, Hiram Clock." Mb. O'SULLIVAN. Mr. Saltiy was appointed by the Governor, and hia duty ceased the moment that we made a complete organization of this Convention; therefore, I say that he is not entitled to any twenty-one days. He is entitled to pay, proliably, for the time he acted under the Governor's appointment. Mb. WELIiIN. I think that is rather small. This gentleman, it is true, was appointed by the Governor. He has served the Convention, and if we did not want his services, then we should have discharged him, and not kept him here day after day. I want to know if we pro- pose to practice economy by robbing the laborer of his wages T We accepted nis labor, and now we have kept him a week waiting for his pay. I do not want to be a party to the practice of that small economy which wiU cheat the laborer of his wages. Mb. TINNIN. I desire to call the attention of the Convention to the fact that all these other gentlemen who were appointed at that time have received their pay from this Convention. I see no reason why a distinction should be made against this single individual. All the others were paid. Mb. O'SULLIVAN. If he performed the services he did it on his own volition, not by authority of this Convention. He did so for one week, on authority of the Governor. That we should pay. But I say that when he acted as Night Watchman on his own volition he is not entitled to pay, and we should not pay it. Me. martin, of Santa Cruz. We have accepted the services of this gentleman, and I see no reason why he should not be paid. The resolution was adopted. CBAHOK or BEFEEIKCC Mb. WINANS, from the Committee on Education, made the follow- ing report: To the Honorable J. P. Hog*, President of the ConTsntion: The Committee on Education respectfully reports back to the Conrentlon Amend- ment No. 'ii31, proposed by Mr. Webster, and rccvmmenda that it be referred tu the Committee on Rerenue and Taxation. WINANS, Chairman. Bo ordered. FUBTBEE TIME OEAKTED. Mr. SMITH, of Santa Clara. Mr. President : The Committee on Land and Homestead Exemptions report progress, and ask for further time. The president. If there be no objection further time will be granted. Hearing none, it is so ordered. declaration of BI0HT3. Me. WILSON, of First District, from the Committee on Judiciary and Judicial Department, made the following report : Mr. Pxksidxnt : Tour Committee on Judiciary and Judicial Department, to whom were ref«*rred sections seren (7), eight (8), nine (9), thirteen (13), and four* teen (H), of amendment number four hundred and two, reported by the Oommittee on Preamble and BUI of Sights, beg leave to report that they have had the same nnder consideration, and recommend that they be not adopMd, but that the sec- tions hennnto annexed be adopted in lieu thereof. 8. U. WILSON, Chairman. November 1st, 1878. Sec. 7. The right of trial by jury shall be secured to all, and remain inviolate; but in civil actions, and in cases of misdemeanor where the punishment does not exceed six months imprisonment or a fine of five hundred dollars, or both, three fourths of (he jury may ren- der a verdict. A trial by jury may be waived in all criminal cases, not amounting to a felony, by the consent of both parties, in open Court expressed, and in civil cases, by the consent of the parties, signified in such manner as may be prescribed by law. In civil cases and cases of misdemeanor the jury may consist of any number, less than twelve, that the parties may agree upon in open Court Sec. 8. Offenses heretofore required to be prosecuted by indictment shall be prosecuted by indictment or information, as may be prescribed bylaw; but a Grand Jury shall be drawn and summoned at least once a year in each county. Sec. 9. Everjr citizen may freely speak, write, and publish his senti- ments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions for libels, the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted ; and the jury shall have the right to determine the law and the fact. Sec. 13. In criminal prosecutions, in any Court whatever, the party accused shall have a right to a speedy and public trial, and to appear and defend in person and with counsel. Noperson shall be subject to be twice put in jeopardy for the same ofiense, nor shall he be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law. Sec. 14. Private property shall not t^ taken for public use without just compensation having been first made to or paid into Court for th« owner. Mb. LAINE. In a body so numerous as this it is impossible to understand a proposition thoroughly, unless it be printed and laid upon the desk of each member, in that when amendments are ofliemd he may compare the amendment with the printed matter. I therefore move that the report of the oommittee, that is the draft, be printed and made the special order for Tuesday next, immediately after the reading of llie Journal. Mb. BLACKMER. I believe we already have a special order for next Tuesday morning. The PRESIDENT. That makes no difference; we can make forty special ordei* for that day. Me. LAINE'S motion prevailed. KEW FBOPOSITIORB. The president. The next order of business is the introduction of resolutions and propositions relative to the Constitution. BELATIVE TO OPrtCEBS. Mb. WELLIN introduced the following proposed amendments to the Constitution, relative to ofBcers: Abtiole — . Sectiok — . MembetB of the Iiegislature and all officers, judicial and ministerial, shall, before they enter upon the duties of their respective offices, take and subscribe to the following oath or affirma- tion: "I, , do solemnly swear (or affirm) that I will support, grotect, and defend the Constitution and Government of the United tates, and the Constitution and Government of the State of California, against all enemies, whether domestic or foreign, and that I will bear true faith, allegiance, and loyaltjr to the same, any ordinance, resolu- tion, or law of any State Convention or Legislature to the contrary not- withstanding; and, further, that I do this with a full determination, pledge, and purpose, without any mental reservation or evasion what- soever. Ana I do further solemnly swear (or affirm) that I have not fought a duel, sent or accepted a challenge to fight a duel, nor been a second to either parl^, nor in any manner aided or assisted in such duel, nor been knowingly the bearer of such challenge or acceptance, since the adoption of this Constitution of the State of California; and that I will not be so engaged or concerned, directly or indirectly, in or about any such duel during my continuance in office ; and that I do not now nor never will employ any Asiatic, Moneolian, or Chinaman, nor be in any manner interested in the profits of his labor; and that I will use all my endeavors as a citizen and an officer to prevent the further importation of any Asiatic, Mongolian, or Chinaman; and further, that I will endeavor, by every constitutional or legal means, to remove from the State all those who are now here ; and I do further swear (or affirm) that I have paid no money in the form of a bribej or donation, nor miade any promise of patronage, to secure mv election to the office of , on which I am now about to enter; (if an oath) so help me God ; (if an affirmation) under the pains and penalties of penury. Rer iferred to Committee on Miscellaneous Subjects. LKOISLATION. Mb. CASSERLY introduced the followihg proposed amendment to the Constitution, relative to special sessions of the Legislature : While the Legislature shall be convened in special session no legisla- tion shall be had on any subject not designated in the Governor's prodsr mation calling such session. Referred to Committee on Legislative Department PCBLIC WOBKS. Mb. FREUD introduced the following proposed amendment to the Constitution, relative to public works: Section — . All public works of every description, State, county, or municipal, and any modification or addition of any nature whatsoever to the same, shall be performed by the day, at ruling rates, and eight hours shall constitute-a day's work. Referred to Committee on State Institutions and Public Buildings. BELATIVE TO FOBEIONEES. Mb. BEERSTECHER introduced the following proposed amendment to the Constitution, relative to foreigners: Abtiole — . Section — . All persons of foreign birth, before engaging in any manner of employment on their own account, or for others, within this State, shall first procure a certificate of authority ; such certificate shall be issued to any applicant of a race eligible to citizenship under the laws of the State, without cost, by any Court of record of the State. No person of foreign birth shall engage or continue in any manner of employment in this State unless possessed of such certificate ; nor shall any person, copartnership, company, or corporation, directly or indi- rectly, employ any person of foreign birth within this State, unless Digitized by Google Nov. 1, 1878. OF THE CONSTITUTIONAL CONVENTION. 263 Buch person possess such certificate. The Legislature shall provide for punisDinent of violations of this section. Prosecutions shall be main- tainable against both empWers and employes. Each day's violation shall constitute a distinct oflense. Referred to Committee on Chinese. CITT, COUNTY, INO .TOWSgHIF OBOAKIZATIOKS. Me. VACQUEBEL introduced the following proposed amendment to the Constitution, relative to city, county, and township organizations : lUsolvtd, That there shall be elected, by each of the executive com- mittees of the several political parties duly organized in the county, three persons, who shall, when so elected, have power to elect, by a majority vote, a competent and suitable person to supervise, inspect, and expert the books and accounts of each and every county officer in the county for which he may be so elected ; the said person, when so elected, to hare the right and privilege of inspecting saia books and accounts as often a8 he may deem it ex[)edient or neoessarv ; the compensation of said person, elected aa aforesaid, to be determined and paid by the Board of Supervisors of the county for which he may have been elected ; the said expert or inspector to hold his office till the next municipal election takes place, unless it is certified and proved that he has not satisfactorily fulfilled his duty; and only in such case the committee that nominated him will have power to procure his removal and proceed to re-emplace [re-instate?] him in his situation. Beferred to Committee on City, County, and Township Organizations. 8CBVIS8I0X or THE CONSTITCTIO!!. Mb. smith, of Santa Clara, offered the following: Jtadttd, That the Committee on Jndiciarr l>e requeitod to Inform the ConTsntion, (tin early practicable period, whether the ConveDtion baa a legal right to nibmlt the Coutitntion for nUAcatJon In each dlTliione ai the Conrentlon majr datetmlne. The resolution was adopted. OOMKITTU KOOX FOBTIK. He. BARNES offered the following: Renhed, That Edward Wawn l>e and he !• hereby allowed the nun of elghty- iriffat dollaiB, for eenricee u Porter, twenty-two days. In caring for the oommitteo roooe, and that the ume be paid out of the appropriation made for the Convention. I hereby certify that 1 employed Edward Waaon, and that ho hai worked, aa Por- ter, lor the committee rooms, twenty-two dayi. That he began working on October tenth, in cleaning and getting roomi for committees read) for nse, and has taken care ofianie, and done euch other work as was required of bim since that time. The wotk wu neceaaiy, and I raspectAilly raoonunend that It be allowed. T. J. SHEKWOOD, gergeant«t-Amu. October 31st. Referred to the Committee on Mileage and Contingent I^penaes. TBB OHIIIBSI aSTICLB. Ma. MILLER. I move that the report of the Committee on Chinese and the amendments be placed upon the calendar and made the special order immediately after the disposition of the report of the Committee on Corporations other than Municipal. The motion prevailed. COMUITTBE CLIBK. Mb. BEERSTECHER offered the following resolution: Baolved, That Carl 0. Flakier be allowed ten dollars for two days' serricea as Clerk of the Judiciary Committee of this Conrention, rendered at the request of ■aid committee, throngh ita Chairman, prior to his regular appointment, viz. : on the Berenteenth and eighteenth of October, eighteen hnndrei and serenty-elght, which two days' serricea were not Included in the pay-roll heretofore certified to. Referred to the Committee on Mileage and Contingent Expenses. THE nXCLAEATION Or BIQHTS. Mb. VAN DYKE. Mr. President: Inasmuch as four sections of the Bill of Rights have been put over, I do not know but what it would be as well to postpone the r^ until Tuesday. I move that it be made the special order for Tuesday. Mb. LARKIN. We nave now been here five weeks postponing mat- ters, I think the business of this Convention ought to proceed. We want no more delays. Unless we intend to proceed wo had better adjourn and go home. Yesterday was spent in discussing whether the^ would refer sections, and now they ask until next Tuesday. I ask this Convention to understand exactly the effect of these motions, which is for delay; poatpoue until the appropriation is exhausted, and then leave OS where we commenced. I desire to see this Convention go on with its work. The people expect that we will, and if we cannot we had bet- ter adjourn. Me. SCHELL. I am in favor of going on with the report as far as we ean do it. Unless we proceed with this report of the Committee on Preamble and Bill of Rights, there will be nothing else for us to con- Bder to-day, and the result will be an adjournment. If we are ever going to get through with the business of this Convention, it strikes me that we had better proceed to it. I am decidedly opposed to putting this matter over again. Me. TINNI N. I move as an amendment, that this Convention do now resolve itself into Committee of the Whole, the President in the chair, for the purpose of considering the Preamble and Bill of Bights, com- mencing at section seven. Mb. WILSON, of First District. In section seven, as reported by the Committee on Judiciary, there are two words omitted. I would ask Uave to insert them if there be no objection. Ko objection was made. Mb. van dyke. Mr. President : I hope before that last motion is init that the motion to postpone until Tuesday and print will be recon- iidered, and I do not see why we cannot take these amendments up i"-^ just as well as Tuesday. Members can take down the substanoe •» mj are read firom the Clerk's desk. My object was only to proceed orderly and get through with that report. If we resolve ourselves into Committee of the Whole for the purpose of taking up that article, I am in favor of commencing where we left off, at section seven. If that is the will of the Convention I hope that the motion made by the gentle- man from Santa Clara, Mr. Laine, will be reconsidered, so as to com- mence at section seven. The members of the Convention understand thoroughly the amendments. I do not see any object in printing them, because other amendments will be proposed here, and if it is designed to print every amendment offered in Committee of the Whole, why we never will get through with the business. Mr. LAKKIN. It is necessary to reconsider The president. It would be out of order. Me. TINNIN'8 motion prevailed. IN COMMITTEE OF THE WHOLE. The CHAIRMAN. The committee had under consideration the report of the Committee on Preamble and Bill of Rights. Mb. van dyke. I see no reason why the amendments *f the Committee on Judiciary and Judicial Department could not be proposed right here and go right along. Me. HALE. It seems to me that we have already ordered the amendments coming from the Committee on Judiciary to be printed and made them the special order and we are now in Committee of the Whole and certainly cannot reverse the action. We can take up any- thing except what is in the special order. The chairman. It is perfectly competent for any gentleman to move any of these amendments offered by the Committee on Judiciary. Mb. MoFABLAND. Mr. Chairman: We referred sections seven, eight, nine, thirteen, and fourteen to the Judiciaiy Committee and on their report we have made it the special order for Tuesday next. It has been ordered printed. Now, sir, there is no gentleman in this committee who can toll what these amendments are without having; them printed. We may hear them read a dozen times at the desk, but it is impossible to analyze them and give them proper consideration in that way. It does seem to me that there is plenty of work in the Bill of Rights after these sections. I move that the consideration of sections seven, eight, nine, thirteen, and fourteen, be temporarily postponed, and that we take up section ten. Ma. McCALLUM. I think, sir, if the Secretary will read the report of the Committee on Judiciary and Judicial Department, and the mem- bers at the same time take the report of the proceedings of yesterday, they will find that matters discussed at great length are substantially the sanfe. There is but little difference in them uom the propositions that were discussed. I deny the necessity of the printing of the report. If the Secretary will read the report of the committee, and gentlemen will look at the amendments proposed yesterday, they will very readily see the difference. Mb. EDOEBTON. I understand the position in this matter to be this, that the Convention ordered these sections reported by the Judi- ciary Committee to print, and made them the special order for The CHAIRMAN. Yes. Mb. EDQEBTON. Then I make this point of order: That it is beyond the control of the Committee of the Whole to consider these sec- tions reported by the Judiciary Committee this morning. The chairman. These sections are not before the Convention, but it is perfectly competent for any member to move any one of them as an amendment. Mb. TINNIN. We were delayed here all day yesterday on that same kind of work. If we commence and repeat it to-day we will accom- plish nothing. It certainly is time now that something should be done. Mb. MoFABLAND. I did not make any motion for delay at all. There is more work than we can do on the other sections. We can toko up the other sections and act upon them, and not attempt to deal with the sections reported by the Committee on Judiciary, until they are printed. I hope the motion will prevail. Ma. WYATT. I hope that the motion of Judge McFarland will not prevail. This Convention referred this matter to the Judiciary Com- mittee for the purpose of having it put into such language and such form as that it could not be criticised ; as that it would come out pure coin from the mint, and there oould not be any question of the excel- lency of the work. That coin has been coined from the mint. It has come to us in such solid chunks of wisdom that there will be no ques- tion about it whatever, and I see no impropriety in this committee either accepting or rejecting it. We certoinly ought not to delay any longer upon this subject. If we are not now prepared to act upon it, we will not be prepared to act upon it when it has been printed and brought back here again on Tuesday morning. I hope now that this Convention will meet this matter. If this Convention will ever be able to decide what wiU be a proper jury system for the State of California, they have now got all knowledge of the facts that they will have on Tuesday next. It was supposed, in sending us here, that we were com- f!tent to pass upon it. We have had time enough to pass upon it, and Bay that delays are grown irksome, getting to be insufferable, and it is high time that we got down to solid work in this Convention. I hope the motion will not prevail. . Mb. WATERS. I rise to make a point of order. My point of order is this : This Committee of the Whole only has power to consider such matter as may be referred to it by the house. The action of the house is paramount to and binding upon this Committee of the Whole. The Convention has seen fit to segregate the report of the committee, and part of it, it seems, it has referred to the Committee of the Whole, and a part of it it has fixed as a special order for next Tuesday. This special order was made by a paramount body— by the Convention itself— and this subsequent notion, I contend, only applies to that not ^mt^ thej Digitized by at not made thef Ajoogle 264 DEBATES AND PROCEEDINGS Friday, special order. The point of order is, there it nothing before the Com- mittee of the Whole except the reaidue of the report of the committee. We have not all of that report before this Committee of the Whole. The Convention is paramount to the Committee of the Whole. The Convention has made this other part a special order for the Conven- tion itself upon next Tuesday. M>. TINNIN. The gentleman is certainly mistaken in the position which he assumes. The Convention, before it went into Committee of the Whole, voted to go into Committee of the Whole to consider the report of the Committee on Preamble and Bill of Rights, commencing at section seven. That necessarily brings the whole of the report of that Committee before this body. Thi CHAIRMAN. The Chair has announced an opinion on the point raised by the gentleman from San Bernardino, that these sections were not before the Convention; bnt at the same time any member might move as an amendment to any portion of the bill any one of these amendments; but the Convention referred this subject back to the com- mittee with instructions to commence at section seven. Mb. waters. If that is the fact, I think the Convention voted under a misapprehension. I move that the committee rise, and that the part of the report set as a special order for next Tuesday be so made. Let us vote intelligently and understandingly. I move that the com- mittee now rise. Mb. HAGER. I want to suggest that we should pass sections seven, eight, and nine temporarily, and go on with the balance. Mb. waters. I insist upon the motion, from the fact that we can then have the matter printed, and take it up intelligently. The motion was lost. Tbe chairman. The question recurs on the motion of Judge McFarland, that the Convention temporarily pass sections seven, eight, nine, thirteen, and fourteen, and take up section ten. Carried. BIOHT TO AgSBMBLE. The secretary read section ten, as follows: Sec. 10. The people shall have the right to freely assemble together to consult for the common good, to instruct their representatives, and to petition the Legislature for redress of grievances. Mb. BEERSTECHER ofiered the following substitute: Seo. 10. The right of the people to peaceably assemble, for any except immoral purposes, shall in nowise be abridged, nor shall there be any manner of hindrance, molestation, or interference with this right. Mb. brown. I cannot see any special improvement upon section ten in that amendment. I can discover nothing of the kind. I do not wish to attempt to dictate to this honorable and august body, but I do believe that, as a general thing, where there is no material evil to be cured it would be much better that amendments should not be thrust upon this body. Here the section says: "The people shall have the right to freely assemble together to consult for the common good, to instruct their representatives, and to petition the Legislature for redress of grievances." That is quite full and complete, and I think coven the ground that was intended. As I am opposed to amendments when they do not have some special importance, and are not better than those reported by the different committees, I shall vote against this. Mb. van dyke. Section ten, as reported by the committee, is the old section. It has received judicial construction, and we thought proper to retain it. Tbe chairman. The question is on the adoption of the amend- ment offered by the gentleman from Ban Francisco. The amendment was lost. Mb. LARKIN offered the following substitute: Sec. 10. The people shall have the ri^ht to ft«ely assemble together to consult for the common good, to instruct their represent»- tives, and to direct the Legislature to redress their grievances. Mr. LARKIN. The only amendment to the present provision is the word " petition." It is a word that does not belong to a republic. It is a word that would have done well enough previous to the formation of the American Government. The sovereign does not petition the agent. As every officer is an agent of the sovereign people, we should instruct or direct our Legislatures,' and not petition them. That is my point and the reason why I offer that substitute. The amendment was lost. Tbe secretary read section eleven, as follows: UKirOBM OFEBATIOll Or LAWS. All laws of a general nature shall have a uniform opera- 11. Seo. tion. Mb. EDGERTON. I move that that section be indefinitely post- poned. I do so for this reason : it is a very indefinite and ambiguous clause. It has given the Courts of this State and of the State of Iowa a great deal of trouble, and it is covered by a provision in the plan of the Committee on Legislative Department, wbiel) is to the following effect : that'the Legislature shall in no case pass a special law where a general law can be made applicable. I would inquire of the Chairman of that committee if that is correct. Mb. McFARLAND. Mr. Chairman: I hardly think the gentleman perceives how far his motion would go. Now, sir, it is a fundamental principle in our government that no law shall be passed which affects one person and not the balance of the community. That is the princi- ple, as I understand it, that saves all our personal rights. That you shall not make a law that shall apply to me and not to the whole community; that. you shall not tax my property and not the property of others equally; that the Legislature has no right to pass laws aflecting a portion or the community and not the balance. I know that there has been some little difficultv in the Courts td construe that section correctly, but I think there would be no safeguard to general personal liberty or per- •onal right* in a Constitution that did not have some provision of that kind in it. I do not think that the proposition referred to in the plan of the Committee on the Legislative Department would involve at all the principle intended to be involved in this. Our liberty depends upon the proposition that the Legislature shall not pass a law tnat will opents upon me penonally and allow you to escape. There may be a serious question as to what is a "general law." 1 do not understand that it would be safe to strike out of this Constitution that all general laws must be uniform in their bearing. Mb. EDGERTON. The clause as it now stands is from the first Con- stitution of the State of Iowa. It resulted there in conflicting decision and puzzled the Courts and everybody else. When they came to revise their Constitution they modified it in about the way that it now stands in the plan of the Committee on the Legislative Department. It hsi been eliminated from fonr or five Constitutions. It is in our Constitu- tion and the Courts have found this difficulty. The Committee on Rev- enue and Taxation have adopted a section that all taxation shall be uniform upon all classes of subjects in the territorial limits of the authority levying them. I think there would be no donbt about the propriety of indefinitely postponing the section. Tbb CHAIRMAN. The Chair is of the opinion that the motion made by the gentleman is out of order. You cannot indefinitely post- pone any proposition in Committee of the Whole. Mb. EDGERTON. Then I move to strike it out. Mb. VAN DYKE. I suggest that we pass it. Mb. LAINE. This section has stood in the Constitution a long time and has received Judicial construction. Why should we grumble at it now ? Its meaning was settled by the Supreme Court of this State in a case reported in the 17th Csdifomia Reports. It is a protection and we still desire it. Mb. EDGERTON. I do not can a straw about it, but I wish to remind the gentleman thsit the decision he has referred to is a matter of arbitrary judicial legislation, and comes within the class referred to a few days ago by the gentleman from Marin as " Judge-made law." Mb. CROUCH. I move to amend by inserting the following in pliee of the section as it stands: Seo. 11. All laws shall be general and have a uniform opention. Tbe Legislature shall have no power to pass any local or special laws. Mb. EDGERTON. My objection to that is that the plan of the Com- mittee of tbe Legislative Department covers that whole ground. Mb. McCALLUM. I wish to make but one suggestion. I have had but a few minutes to look over the Constitutions of other States, but I find in several the exact language used that is used in the Constitution now, and which the gentleman moves to strike out. I think we had bettor not strike it out. The motion to strike out was lost. The chairman. The question now recurs on the amendment offered by Judge Crouch. The amendment wai lost. Mb. HAOER. I move to amend by adding to the section, " No power of suspending laws shall be exercised unless by the Legislature or by its authority.*' The amendment is to add that at the end of the section, so that the whole section will read : "All laws of a general nature shall have a uniform operation ; no power of suspending laws shall be exe^ cised unless by the Legislature, or by its authority." I find in most of the Constitutions that provision in the declaration of rights, and I do not know of any more proper place to put it than i^ the end of the sec- tion which is now before the committee. It is contained in the new Constitution of Pennsylvania, which I have before me — section twelve of the declaration of rights. It reads : " No power of suspending laws shall be exercised unless by the Legislature, or by its authority." Mb. HUESTIS. I wish to ask the gentleman from San Francisco, Judge Hager, what power there is to suspend a law except the Legis- lature T Mb. HAOER. Sometimes we have martial law. Sometimes the military are stronger than the civil power. Mb. HUESTIS. Isn't that done by authority of the Legislature? Mb. hager. No, sir; not always. I find the provision in tin Constitution of Pennsylvania and in several other Constitutions. They undoubtedly had good reason for adopting it. I do not care to enter into any argument upon it, neither do I care particularly about its adoption. It occurred to me to be a very proper thing, and I see no objection to its being engrafted on our Constitution. Mb. CASSERLY. Mr. Chairman: Let me say thi^ I am opposed to all vague terms in a Constitution. I should like Judge H^ger to define what IS meant by suspending a law. I do not think I ever saw an Act for suspending a law in my experience. I will ask the Judge to &vor the Convention with his construction of the clause. Mb. BARNES. In order that this section proposed by Judge Hager may be readily understood, and that he should be spared the trouble of any such elaborate explanation as my colleague requires, X move to amend by inserting before the word " laws " the word " by," so that it will read: " No power of suspending by-laws shall be exercised unless by the Legislature or by its authority." [Laughter.] The CHAIRMAN. 'Does the gentleman from San Francisco, Judge Hager, accept the amendment? Mb. HAGER. My friend Colonel Barnes belongs to the military power, and I am rather suspicious of his amendment. I would rather say, "Soldier, spare this tree." The amendment to the amendment was adopted. The amendment as amended was lost. MILITABT AND CIVIL POWBB. Thb SECRETARY read section twelve as follows: Seo. 12. The military shall be subordinate to the civil power. No standing army shall be kept up by this State in time of peace, and no soldier shall, in time of peace, be quarteredjn any house, without the Digitized by Google Nov. 1, 1878. OF THE CONSTITUTIONAL CONVENTION. 265 coment of the owner; nor in time of war, except in the manner to be pnscribed bv law. lit. ANDREWS offered the following substitute : Sic. 12. The military shall be subordinate to the ciril power. No ■landing army shall be Kept up by this State in time of peace; and, in Umeof war, no appropriation for a standing army shall be for a longer time than two years. Ue. ANDREWS. I would state that this is just as the section of our pieent Constitution is, and before we make any changes in our Consti- iation I want to know some reason why that change should be made. Me. van dyke. I will inform the gentleman on that subject in a fetrvords. If the gentleman will observe section twenty-two of the BUM article he will see a section which prohibits appropriations for any purposfr— not onljr military, but for any purpose — (or longer than two years. That section is put in by way of amendment to the old section nted in the Constitution, and it is altogether unnecessary in connection with the military, because that section covers everything. Otherwise the section is the same as sections twelve and thirteen of the old Cmittitution. It simply omits that in regard to appropriations for the Ruon stated, that section twenty-two covers every appropriation. Otbenrise it is exactly like the old Constitution. The amendment was lost, on a division, by a vote of 4t ayes to 57 noes. IHPBISONIUNT FOB DEBT. Tai SECRETARY read section fifteen as follows: Bio. 15. No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud ; and no person shall be imprisoned for a militia fine in time of peace. He. 8HAFTER. I move to insert after the word " fraud " the words "or force." As it now stands, when a man knocks another down and beats him almost to death he cannot be imprisoned on a civil process. 1 know of no reason why a man should not have a right to recover for penonal i^ury done as well as for injury to property. Ml McFARLAND. I am opposed to that amendment. I do not believe that a man should be imprisoned in any civil action whatever. I think we ought to be past that old relic of tuirbarism. Whenever a crime is committed the criminal machinery of the State affords all neeeseary opportunity for punishment and imprisonment; but in all case) where civil actions are brought — where a man wants to g^t money A>r injury— I do not believe that there ought to be any imprisonment. I shall not move to strike out the words " unless in cases of fraud," lx>t I really think they ought to be stricken out. It amounts to a crime Which can be punished under criminal process, and I do not.believe we •hould imprison anybody under a civil process. Therefore, I am opposed to the amendment. Mb. BARBOUR. I move to strike out the words " unless in cases of fiaud." 1 do it for another reason. Under this section the man is not imprisoned for debt. It is for fraud. Therefore, it is safe to say simply that there shall be no imprisonment for debt. Mb. EDGERTON. I understand that this clause of the Constitution, and the legjalation had in pursuance of it, is employed mostly in cases of abecondmg debtors— people who owe debts in tne State and are trying to leate. In case a debtor is discovered to be about to leave, and he has money, he may be imprisoned to abide the judgment of a Court. I do not see why the words should be stricken out. I A^^ BARBOUR. Evidently the gentleman does not understand me. ' ™ Dot propose the abolition of imprisonment for fraud, but I say that ^ does not belong in this section. I understand that in the last Constitu- uon of Georgia they have stricken out the clause, because it implies tnAt the imprisonment is for the debt in cases of fraud, whereas it is for the firaud itself. In another place it can be provided for and punished as a crime. Mb. SHAFTER. Mr. Chairman : I think there are good reasons why my amendment should be adopted. In these cases of fraud it is necessary to set up not only the transaction, but to set out in detail the (rand and the acts that constitute it. Now, we undertake to pro- tect the merchant against frauds perpetrated by making the execu- tion come against the party. Ought not the person who is beaten nearly to death be entitled to redress against the party who wronged him? Why should there not be vindictive damages in the one case as well as the other? It is because these outrages are treated as a public offense that the perpetrators escape entirely or get a light sentence in a Police Court They do not care anything about a civil action. You are put to the expense of a civil action when the judgment is not worth the paper It is written on. I think that class of cases should come within the law. It is true that they are subject to the criminal law, but the individual who is injured has no personal redress. I hope that these words will be inserted and that proper legislation will follow it, and that these men will at least find tnat they are living under a government of law. Mb. McFARLAND. If you put in the woni " force " the Legislature would have the power to include almost every imaginable civil action m either one category or the other. You might include the penalty of imprisonment in Tour fifths of the civil actions that are brought. Now, If a man commits an assault and battery, you have a remedy. You can indict him criminally. You want to imprison a man for force in a civil process and then imprison him afterwards criminally. I do not wink it is right Mb. McCALLUM. This word "or force" is entirely too compre- ■isnsive. The gentleman from Marin, Mr. Shafler, wants to specify foch extreme cases as might exist, and possibly it would be pfoper, but It appears to me that they ought to be specified more specifically, oecause the word "force" does not necessarily imply, as in the case of fraud, •■lythiag criminal whatever. If he forbids parties to enter upon his ••nd, ana if there is a provision of law which makes the entiy upon "to a breaking of the rules, and there is no damage done, there might u be no criminality in it whatever, yet, under this provision, it wonld be a case for imprisonment in a civil action. So with the destruction of personal property, which might be entirely accidental, and which our laws go so far as to require that even insane persons and children are responsible for, because intention has nothing to do with the actual damages, yet it would be a case of force, and under the amendment pro- posed by the gentleman from Marin, would be punishable by imprison- ment The provision as reported by the committee is exactly the language of our present Constitution. The Courts have friven construc- tion to it, and I ao not sec the necessity of changing a sinzle word, not even as proposed by the gentleman from San Francisco, Mr. Barbour, that is to strike out the words " unless in cases of fraud." I submit that unless some better reason is given, we had better not make the change. In my judgment, and after an experience of about twenty years in the Courts, I think that class of cases which arise upon tn\ii ought to be punished by imprisonment, because it is in the nature of crime. And m such cases, if the honest creditor can obtain redress, he ought to have it AlB. BEERSTECHER. I would first inquire, Mr. Chairman, what the condition of the amendments are at the present time. Thb chairman. The gentleman from Marin, Mr. Shafter, moves to amend by inserting after the word " fraud," the words, " or force." The gentleman from San Francisco, Mr. Barbour, moves to strike out the words, " unless in cases of fraud." Me. BEERSTECHER. It seems to me that the word " force" is very indefinite, and by placing it in that connection it might be construed that imprisonment could only be bad where there was both fraud and force. Tax CHAIRMAN. Fraud or force. Me. BEERSTECHER. The word " violence " would be much better. " Cases of fraud or violence." When the proper time comes I will offer an amendment to that effect; that no person stall be imprisoned for debt in any civil action on mesne or final process, unless in cases of fraud or violence. The gentleman from San Francisco, Mr. Barbour, says, that there can be no debt in fraud ; that fraud is never in the nature of debt It seems to me, with due deference to the opinions of the gentleman from San Francisco, Mr. Barbour, that there is a time when fraud is created into a debt If an action is brought where the burden of the complaint is the fraud of a defendant, and a judgment is had upon that action, when that fraud is merged in the judgment it is to all intents and Surpoees a debt, and therefore, there may he a time when you have a ebt in a civil action for fraud. And that is exactly what is meant by the section. At the proper time I shall move to substitute the word " violence," for the word " force," as that seems to be more limited in its operation. Mr. CAMPBELL. Mr. Chairman: This proposition of the gentle- man from Marin is more important really than it appears on ils face, because if it is carried, in the first place, you will have to make a con- siderable increase in your judicial force in the large cities, for you will have actions for assault and battery without number. In the next flaoe, the law provides punishment alreadv for all classes of violence. t provides that in a case of simple battery the Court may imprison the defendant for one year and fine him a thousand dollars. In cases where there is an assault with a deadly weapon, and in such manner as to indicate an abandoned and malignant heart, it is made a felony. An assault with intent to commit murder is made a felony of a higher grade ; and so far as that is concerned, there is ample punishment by imprisonment provided by law already in all cases of violence. Now, sir, look at its operation. Here is the trouble. A man is knocked down, or something ol^ that kind. Now he can have his remedy immediately by the criminal law. He can have the man punished in proportion to the offense be has committed. But yon let him go on and have the party arrested in a civil action. The case perhaps will not be reached for trial for many months. During that time the defendant, if he is poor, is confined in the county jail, and he is kept there even after he may fully have expiated the offense by suitable punishment He is kept there until final judgment is rendered, without any redress whatever. Now, it seems lo me that by adopting this amendment you will not only increase the judicial labors of the Courts to a very laree extent, but you will at the same time give rise to a class of actions wnich are not brought now, which no man dreams of bringing, but which would be prosecuted simply for purposes of personal revenge, even where the defendant was not worth a dollar, and could make no compensation in money. It would be simply to provide a punishment by imprisonment in addition to that which the law already prescribes, and which is ample in proportion to the offense. Mb. WICEES. At another time I will second the motion of the gentleman from San Francisco, Mr. Beerstecher. "Force" is a word that is only used properly in natural physics. Me. SHAFTER. Mr. Chairman : I understand very well that when the wrongdoer is taken np and sent to prison on a conviction for a breach of the public peace, that the public has been vindicated ; but I would like to inquire what salve that is for the wounds of the man who has been knocked down. He goes to bed, lies there for a year, pays a thousand dollars for a physician, loses his business, is racked with pain, and, it may be, disabled for life. What good does it do him that the man who has plenty of money has been enabled to get off with a fine, or light sentence, and has left the State ? It does not do him any good. I want the man who has suffered the violence and the outrage, to nave some personal redress. I am looking at the back of the man who has been outraged. Suppose a man is worth the amount of money neces- sary to reimburse the party for all this loss, he is put beyond the opera- tion of the law. You cannot follow him out of the State into another in which to make him liable to imprisonment, because it is a civil debt, and the remedy would depend upon the laws of the State. Me. CAMPBELL. Take this case, where the assauHifjustified, awl Digitized byLjOOQlC 266 DEBATES AND PROCEEDINGS Friday, the paitj then sues. The person sued is poor, and ii kept in prison under that mesne proceee during the whole time until the case is reached on the calendar. What condition is he in? Mb. BHA^EB. If he has been arrested without probable cause, he has a remedy against the partv that has him arrested. What do you say to the poor victim who baa heen kept in his bed for six, eight, or ten monthsT Undoubtedly if a party is committed to jail where he is wrongfully or unjustly accused, there is some sense in saying that he suffers injury. Ii a party sues a man for damages he cannot get it unless the man happens to oe solvent. There are thousands of just such cases that have to be endured. But there is one thing about it, the man whose Sropert^ has been burned, the man who has been assaulted, whose omestic relations have been infringed upon, who has been utterly ruined, has no redress at all under the law as it now stands, as against the man who is able to take his meney and get out of the way. Mb. WILSON, of San Francisco. I am decidedly in favor of the amendment introduced by the gentleman from Marin, but it strikes me the whole of section fifteen will have to be remodeled. Take the section as it is in the original section of the Constitution, as reported by the Committee on Preamble and Bill of Rights. It reads : " No person shall be imprisoned for debt in any civil action or mesne or final process, unless in cases of fraud." Now, the invariable construction placed upon that is this, that your action must be for the debt, or, in the lan- guage of lawyers, ae contractu, and you must show that the contract was fraudulent or involves some element of firaud in its nature, so that you are compelled always to have a contract, and to show elements of fraud in connection with it, to have the benefit of the legislation under this provision. But insert, as my friend from Marin wants to, " in cases of fraud in force," and it would be inconsistent. " No person shall be im- prisoned for debt in any civil action (ex contractu) unless in cases of fraud or force," would certainly not be very clear. Therefore, the lan- KUMe ought to be somewhat modified. As I understand the effect of the law heretofore, it has been this : the Legislature passed certain laws authorizing imprisonment on mesne or final process in cases of fraud where there is a contract, but in cases of tort there has been no imprison- ment at all. Now this should be remodeled so as to read in this way : " No person shall be imprisoned for debt in any civil action or mesne or final process" — that portion of the section Seing complete in itself, having no imprisonment for simple debt — " but the Legislature may provide for imprisonment on mesne or final process in cases of fraud or force." The langua|;e modified in that way would cany out the views of my friend from Marin, and would obviate any sort of inconsistency in the section as it would read with the amendment In the first place it would totally abolish imprisonment for debt, and it seems to me that for- a debt alone, there being no corrupt circumstances surrounding it, there should be no imprisonment. This is only an enabling act, author- izing the Legislature, in cases of force or fraud, to enact a law by which parties may be imprisoned on mesne or final process. When it is in order, I shall offer what I have read as a substitute for section fifteen. Mb. van DYK£. Would not that be accomplished by simply strik- ingout " for debtT " Wb. WILSON, of San Francisco. Then you would have no prohibi- tion for imprisonment for debt at all. Mb. EDGERTON. I would inquire of the Chairman of the Judiciary Committee, or any other lawyer on this floor, if it was ever supposed that this State adopted this clause of the Constitution by way of penalty ? I understand not. I understand that it is purely auxiliary to the civil process, and it is only resorted to as an enforcement of the execution — the payment of the debt. The party may pay up the judgment at any time and he is discharged, or )f he goes before a &>urt and makes a showing that he cannot pay it, he is released. I think the reasons urged by the fntleman from Marin are satisfactory and cogent for the amendment, do not see any reason for the adoption of the word "violence" in place of the wora " force," for the latter is a word that has a specific, technical sense in our Courts. Everybody understands it and knows just what it means. I think it is the proper word, as used by the gen- tleman from Marin. Mb. B AKNES. I do not agree with the gentleman from Sacramento, Mr. Edgerton, as to the purpose, the obiect, or the force, or legal effect of the right to imprison for debt. Tnere is no such cause of action V known to our statutes, or known to the law, except it was known to the common law, that a man might be imprisoned for debt. A man is sued for a debt. If he is guilty of fraud in contracting the debt, which is the simplest case to put, lie is arrested for the fraud and not for the debt. It is for the fraud that he is imprisoned. It is no part of the remedy at all. A man gets a judgment for his debt. As a means of correcting a fraud he may imprison the party. At common law, the debtor must pay, or his body was in satisfaction of it. Not so here. He pays, or shows he is unable to pay, and is discharged. . Mb. BARBOUR. As I understand the proposition of the gentleman f^om Ban Francisco, Mr. Wilson, it is such as I can support, and I will withdraw my amendment for the purpose of allowing him to present it. It seems to be a separation of the question of imprisonment for debt from the other provision for the punishment of fraud. Mb. EVEY. Mr. Chairman : I would like to offer a substitute, and for information I would like to have it read. At the proper time I will offer it as a substitute. The secretary read for information : "No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be provided by law, or in cases where there is a strong presump- tion of fraud." Mb. BIGOS. This question is on fraud, and therefore I move that it be referred to the Committee on Judiciary. Mb. NOEL. I hope that the section will be referred to the Judiciary Committee. It seems that it is necessary that all the sections of the new Constitution be submitted to the supervision and re-supervision of that committee. Mb. WILSON, of San Francisco. I moVe to amend in the following manner, offering this as a substitute : Sic. 15. No person shall be imprisoned for debt or in any civil action on mesne or final process ; but the Legislature may provide for imprisonment on mesne or final process in civil actions in cases of fraud or force ; and no person shall be imprisoned for a military fine in time of peace. Mb. SHAFTER. I accept that amendment Mb. BEERSTECHER I move to strike out the word "force" and substitute the word "violence." I do it for this reason: "force" is too comprehensive a term. It has been repeatedly decided that " fonse " includes both actual and constructive force. That is to say, Mr. Presi- dent, if a man through misteke happens to step over into his neighbor's land, or happens to get off the public highway into a private domain, the law, as aptl^ stated by the gentleman from San Francisco, holds that man liable in an action of trespass, in an action of force, although he never intended it; and the law stops in and says, although there is no actual force yet there is constructive force. Now if we pass the section just as it is we allow the Courts to say that a man may be imprisoned for constructive force, for a thing that he never intended. The Courts in some States have gone so far as to say that even in mattere of contract there may be oonstructive force, and we do not desire to have this word "force" used. Now in an action of trespass the pleading runs "force and arms," where there is no actual force employed, but it never did run "violence and arms," because the word "violence" is not as com- prehensive as the word "force." The word "violence" means direct force every time, and the word " violence " never can and never does mean anything indirect I desire to have men imprisoned in certain cases, bui not where they merely constructively have done something forcible. I therefore move, Mr. President, that the word "force" be stricken out, and that in ite place be substituted the words " persons! violence." Then the section will read : " No person shall be imprisoned for debt in any civil action or mesne or final process, unless in cases of fraud or personal violence." I believe that a man ought to be impris- oned for personal violence. If a man commits personal violence upon another man of course he can be imprisoned, but how does that better the condition of the man that is injured? I have known men in tiie City of San Francisco to commit assaults and batteries upon other men — almost kill these men, cause them to lay out and expend hundreds of dollars, oblige them to be confined to their beds for months. After- wards one man came from his couch of sickness, entered complaint in Court, had the man prosecuted criminally, and the man paid his fine. The other brought a civil action and got judgment for damages, but you cannot collect tbe judgment. Now in such oases, gentlemen, I believe that the strong hand of the law should be placed upon that man's neck, and that he should be put in prison in order to be compelled to pay for the damages that he may have done. But I do not believe, Mr. Presi- dent, that in ease of mere constructive force, where a man never intended to do what the law says that he actually did do, that he ought to suffer imprisonment Therefore, I hope that the word "force" will be stricken out, and that the words "personal violence" may be substi- tuted in its place. Mb. WICKES. I second the motion. Mb. freeman. I see no need of any amendment to the Constitu- tion as it stends now. This Constitution prohibite imprisonment for debt, except in case of fraud. That exception ought to be there. The gentlemen say that the Legislature ought to have the power to authorise imprisonment in casesof tort. Certainly the Legislature has that power. This section does not prohibit it. There can be an action of dtitt for force. The action must be in the nature of tort, and therefore it is now, as the Constitution stands, without any amendment, within the discre- tion of the Legislature to impose such'remedies as it may from time to time see fit Mb. McCALLUM. I understood the ruling of the Chair yesterday to be that an amendment could be offered to an amendment first If that is correct, I desire to offer an amendment at this time. The CHAIRMAN. The gentleman can offer an amendment for the purpose of perfecting the original section as reported. Mb. McCALLUM. Supposing this amendment is adopted, can I thea offer an amendment — after it has been substituted? The CHAIRMAN. Not after the substitute has been adopted. Mb. McCALLUM. I propoee to offer now an amendment to tha whole section. I am fully convinced that there are additional cases of wrong which should come within this category than those specified by the single word " fraud." I am perfectly satisfied that in cases of ma< licious and willful injury to property men should be imprisoned tha same as in cases of fraud. I do not see any answer, however, te the point heretofore made that " force " is too comprehensive a term, sad the word " violence " does not help the matter at all. Violence may be committed accidentelly, as well as otherwise, and yet using that word without qualification would make a case for imprisonment, when there was no wrong intended whatever. Now I have drafted this, and I suppose we all desire to put it in the best form possible. I submit that we should strike out the word " debt " from the first line and insert tlUt the word " fraud," in the second line, as follows: "or in case of willful or malicious iiy ury to person or property." Then it would read : " Ko person shall be imprisoned in any civil action on mesne or final proeets, unless in case of fraud, or in case of willful or malicious injury to penon or property." Mb. BEERSTECHER. I accept the amendment of Mr. McCalluat. The recess hour being at hand, I move that the committee rise, report progress and ask le»ve to sit again. Carried. Digitized by Google Nov. 1, 1878. OF THE CONSTITUTIONAL CONVENTION. 267 IN CONVENTION. Tai PRESIDENT. Gentlemen : The Committee of the Whole hare directed me to report that they hare had under consideration the article on Preamble and Declaration of Rights, report progress, and ask leave to eit again. The hour having arrived, tne Convention will take a recess, under the rule, until two o'clock p. h. AFTERNOON SESSION. The Convention reassembled at two o'clock r. u. President Hoge in the chair. Boll call dispensed with. NOTICI. Mi. WELLIN. Mr. President: I give notice that on to-morrow I will move to amend rule number one, so that the Convention shall meet at nine o'clock a. h., and also rule number two, so as to have a nam of one hour and a half instead of two hours. Mb. van dyke. I move that the Convention do now resolve itself iato Oommittee of the Whole, the President in the chair. LIAVK OF ABSKNCI. Ml. EDGEBTON. I desire to make a motion on behalf of the Secre- tary of the Convention. I move that he have leave of absence for two days, for the reason that he has to answer in a cause called for trial to-morrow morning. Thi president. " There being no objections, leave will be granted. On motion of Mr. Van Djrke, the Convention then resolved itoelf into Committee of the Whole, for the purpose of further .considering the trlide on Preamble and Bill of Rights. IN COMMITTEE OF THE WHOLE. Thi CHAIBMAN. The first question is on the amendment offered by Mr. HcCallum to section fifteen : " No person shall be imprisoned in any civil action on mesne or final process, unless in case of iraud, or in case of willful and malicious injury to person or property." Ma. McCALLUM. I am requested to say a word as to the single word struck oitt. I have left out the word " debt." I call the attention of the Convention to this : " No person shall be imprisoned for debt on any mesne or final process." As to the point about the word debt, of ooune there can be no imprisonment for debt unless it is in a civil action. Now this provides that there shall be no imprisonment for any- thing else. It includes all actions arising from ex ccntraetu and ex ietinquo. Ma. EDGEBTON. I merely want to call the attention of the Con- vention to the suggestion of the gentleman from Sacramento, Mr. Free- man, this morning, aa to the Constitution as it stands. Ma. SHAFTER. I would inquire of the gentleman of Alameda, Mr. McCallum, if the words " willful " and "malicious" are disjoined. Is it " willful and malicious," or " willfUl or malicious." Mi. McCALLUM. " WiUful and malicious." Mr. SHAFTER. I hope the gentleman will strike out the word "malicious." There will be a great deal of difficulty in determining such a clause as that. If an offense is willful, that is enough of itself. The word " malicious " should not have been inserted at all. Hi. McCALLUM. I accept the amendment of the gentleman to ■trike it out. Mi. McFARLAND. Mr. Chairman ; If the Convention proposes to enlarge the number of cases in which arrests may be made m civil asa, I think that the proposition of this gentleman is a good one. But I desire to call attention to the fact that, in all probability, if that class of cases are enlarged, the provisions of the Legislature will be about what they are now. Now, the present law itaelf provides that the County Judge shall, whenever it appears to him from an affidavit of the plaintiff in a case that the necessity for an arrest exists, order an amst That has been the general rule. AH the plaintiff has to do is to make a strong enough affidavit, and upon that the party has to be arreted. Now, it appears to me that this is sufficient, and we ought to allow the Constitution to stand as it is. It allows arrests in cases of fraud, and I am opposed to enlarging the field. I do not think we are piepued to enlarge on this matter oi imprisonment in civil cases. We can punish anybody for crime, and I do not see how the wounded feel- ings of the plaintiff are better satisfied by imprisonment in a civil process than in a criminal process. Gentlemen say the State puni^es by imprisonment, but that does not help the plaintiff. Can a plaintiff pther any more satisfaction out of the fact that the man is imprisoned on his motion than by the State? You might imprison a man for ten years by a criminal process, and then give him one hundred more on a civil process. But I do not understand how the feelings of the plaintiff aiegoing to be assuaged any more by such a course. Mi. BARNES. Mr. Chairman: I would like to inquire how this motion stands. As I understand it the gentleman from Alameda has mtroduoed an amendment, or substitute, or something or other. If it is aaunendment to the proposition submitted by the gentleman from Ban ftandsco, Mr. Wilson, or to the proposition submitted by the gen- tleman from Marin, Mr. Shafter, I would like to know, so as to under- stand what we are doing. Tbi CHAIRMAN. The gentleman from Alameda moves an amend- ment to the original section oy striking out the word " debt "in the first lin«, and inserting other words. After this is disposed of, the amend- amt offered by the gentleman from San Francisco, Mr. Wilson, will be iiefiwe the Convention. The first question is on tlie amendment to the of^nal section. Hi. BARNES. Then I ask that before the vote is taken the substi- M* of the gentleman firoposition. The amendment, in the shape in which it now stands, provides that no person shall be imprisoned in a civil action on mesne or final process. It seems to me that if this prop- osition is embodied in the Constitution in its present shape, it will cut off the power of the Courts to enforce their judgments in veiy many cases. The gentlemen of the profession in the Convention will under- stand me when I say that in a very large class of cases within the juris- diction of a Court in equity, the power of the Court to enforce judgment lies in its jurisdiction to issue process against the prisoner. Al>ill is filed in equity to enforce the performance of a contract. A bill is filed to compel the surrender of legal title which the plaintiff claims he has. A bill is filed in divers cases, and the judgment cannot be enforced except the arm of the Court is used by issuing a writ against the pris- oner. Now it occurs to me that in cases of that kind, if there shaU be a decree in a suit of " A " against " B " requiring " B " to do some act or thing which he has engaged to do under a contract, and he refuses to comply with the judgment of the Court, where is the power of the Court to compel the performance of that act if this proposition shall be inserted in the Constitution in the shape in which it now appears. In any of the cases which I have enumerated, wherein judgment may be rendered by the Court, the Court would be powerless to enforce the exe- cution of its orders, because the Constitution steps in and interferes, and says the man cannot be imprisoned on any mesne or final process. A bill in equity to enforce a contract, and all the cases I have mentioned, as well as many others, are all in this category of civil actions. I ask the gentleman to explain to me how a Court wouli^ enforce its decrees in cases of that kind ? It may be, Mr. Chairman, that I do not under- stand this subject, but it certainly seems to me that if you incorporate this provision into the Constitution you will shear the Court of all its power to enforce its decrees and orders which they may render in that targe class of cases, and that is something I will not consent to. Ms. McCALLUM. I can see some point in the remarks made by the gentleman, and I ask that the words " for debt " be restored, so as to read, " no person shall be imprisoned for debt in any civil action,"- etc That answers the objection made by the gentleman from San Joaquin. Thi CHAIRMAN. The question is on the adoption of the amend- ment. The amendment was lost on a standing vote— ayes, S8; noes, 59. Thi CHAIRMAN. The question is on the amendment offered by the gentleman from San Francisco, Mr. Wilson. The Secretary will read it. Thi SECRETARY read : "No person shall be imprisoned for debt, or in any civil action on mesneor final process; but the Legislature may provide for imprison- ment on mesne or final process in civil actions in cases of fraud or force, and no person shall be imprisoned for a military fine in time of peace." Mr. ROLFE. Mr. Chairman: I confess I am not able to understand that amendment. The original section of the Constitution is plain and can be easily understood, and therefore I shall vote against it, as it is somethin|; I cannot understand. This is one of the thin{|s which should be so plain and explicit that there can be no two opinions oe to the intent and meaning, and such is not the case with this amendment. Mb. CROSS. >fr. Chairman : I have been waiting for gentlemen to express their views on this matter. It seems to me that we should not at this time begin to take the backward path in this matter of imprison- ment for debt. Now, we have two kinds of proceedings, civil and criminal. Any man who does anything which makes him deserving of being put in jail is liable to be put there upon criminal process, and that IS the only process by which he should oe confined. If a man is f;uilty of any of these crimes which the gentlemen mention, there is aw enough to punish him as much as he deserves to be punished. If the laws are not sufficiently severe, then let the responsibility rest with the Legislature of the State, and let that body increase the punishment until it shall be sufficient for every kind of offense. Now, I am opposed to this matter of punishment coming into civil cases, for the reason that whenever the punishment of a crime comes in a civil case, then it takes it out of the hands of the State and places it in the hands of the individual, whose interest is not to preserve the peace of the State and to protect the property of the citizen, but whose sole interest is to be revenged, perhaps, and gratify his own feelings. For that reason I am opposed to any amendment wnich drags into the Constitution a provision to punish by imprisonment in civil cases. If there is an offense committed there is a mode of punishment. If an offense is sufficient to entitle a man to be sent to jail, the matter should fall into the hands of the State, and the State should prescribe the pun- ishment to be inflicted, just as it would in a case of murder; but let us not degenerate into a condition where any man can be the cause of imprisoning another in this way. Any man who has been wronged has his redress by going before the Grand Jury, or entering a complaint before the proper officer, and in that way prosecuting the man who has committed an offense, and this is the way that punishment should be meted out, and in no other. Thk CHAIRMAN. The question is on the adoption of the substi- tute. Division has been called for. Mb. WILSON, of First District. Mr. Chairman: I will say one word, though I know the Convention is tired. Now, the benefit < " " Digitizeo »y one tofjl^ 268 DEBATES AND PROCEEDINGS Friday, amendment which I have offered is that the Legislature may have it in their power to make laws which are knowui to be necesBaiy. A man may nave been cruelly beaten or maimed for life, and his assailant, perbape, slightly punished for assault, and he may flee the country with his money and property before any final determination of a suit for civil damages shall have been determined. Under this amendment the Legislature has power to make a law under which he can be arrested and made to give bail to answer the civil suit for damages. He can be made to pay for the damages and injuries he has inflicted. So in case of fraud, if you cannot imprison a man on mesne process and make him give bail, he will go out of the State with bis money in his pocket, leaving the man he has defrauded without any reiiresa in the world until final judgment is entered. In all cases of this kind, you should give an opportunity to bold a man to bail, and make him give security for the payment of any judgment that may be recovered. Cer- tainly the Legislature should lie authorized to pass such a code of laws as that. Of course the details must be left to them — we cannot enter details here. We are to clothe them with the authority and to restrict that' authority when we think it ought to be restricted. This provision is not for the purpose of punishing anj^body, as the gentleman has said, the criminal laws will do that, but to give to the ii^ured party the right to hold his assailant to bail, so that he may not gather up his money and chattels and evade the law by flying from the State before final judgment can be entered. Me. van dyke. I think the word "force" is too broad. Now if the gentleman will say "personal violence," it would be better. If you leave it to the Legislature that will include all torts. I am opposed to leaving any such power to the Legislature. Thi chairman. The question is on the amendment of the gen- tleman from San Francisco, Mr. Wilson. Division being called for, the amendmeAt was lost : ayes, 42; noes, 74. Mb. McFABLAND. I would like to offer a substitute to section fifteen: " No person shall be imprisoned in any civil action except for con- tempt of Court, nor for a militia fine in time of peace." Mb. McFARLAND. I simply offer that as carrying out my idea that there should be noimprisonment in civil cases. Mh. BARRY. There has been a ^reat deal of time wasted in arguing this matter, and I am in hopes it will be fully determined. I will say that I believe the resolution — or substitute— offered by the gentleman from San Francisco, Mr. Wilson, was a good one. I think it ought to have been retained in there. AuS the matter now stands, I am op{>osed to any change of the Constitution on this point. I believe the word " force " should remain. I belie ve, when a man attempts to leave the State for the purposes of fraud he should be brought back. The L^s- lature has passed laws covering that matter, and I don't think the word should be stricken out of the Constitution ; and I don't see any good to oome from making any change in the section ; and for that reason I shall vote against the amendment. The CUAIRMAN. The question is on the amendment. The amendment was rejected. Mb. EVEY. I wish to offer a substitute. I have taken it from the Illinois Constitution, and I believe it is a good one and should be adopted. It.is as follows: "No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud." Now I think that is a good amendment, and I hope, Mr. Chairman, it will be adopted. The amendment was lost. The chairman. If there is no further amendment to section fif- teen the Secretary will read section sixteen. The secretary read : Sec. 18. No bill of attainder, ex poet facto law, or law impairing the obligation of contracts, or tlie remedy for the enforcement or breach thereof, shall ever be passed. Mb. VAN DYKE. Mr. Chairman: The old Constitution reads : Sec. 16. No bill of attainder, ex post facto law, or law impairing the obligation of contracts, shall ever be passed. Now, the only change made by the Committee on Preamble and Bill of Rights is to add the words, " or the remedy for the enforcement or breach thereof."' Now, we all know — at least every lawyer on the committee knows — that the statute of limitations is understood to apply the remedy. There may be cases where the statute of limitations may destroy the right to recover. The purpose of this amendment is to reach just such cases as that This is the only amendment to the old section, and this is the only purpose of it. It does not prevent the Legislature from changing the remedy at all, but it does prevent the Legislature from so changing the remedy as to impair the right to enforce a contract. Now, suppose there is a promissory note running four years; suppose, after it has run two years, the Legislature shall say the statute of limitations shall run only two years, and apply to existing contracts as well as to contracts to be made afterwards. There would be a very serious ques- tion to be determined; and it is to meet such questions that this amend- ment is made. Mb. NOEL. Mr. Chairman: I move an amendment to the section by striking out all that portion of it embraced between the word "con- tract" in the second line, and the word "shall " in the third line, so as to restore the section of the old Constitution. These words which I move to strike out have been interpolated by the Committee on Preamble and Bill of Rights. It seems to me, sir, that the section as it now reads, as reported by the committee, goes entirely too far. It is true that the right of the citizen in his contract should be protected, that the right should never be impaired by the Legislature; but this section as it now reads it seems to me does more than that; it prohibits the Legislature from altering the means by which his rights were enforced. Under the old section these rights have been protected— amply protected — in my judgment, and the change prop(»ed by the Committee on Preamble and Bill of Rights is not necessary, and I therefore move to strike out the words interpolated by that coftunittee so as to restore the old Constitution. We have lived under it a good many years, and I have yet to hear of any wrong done under that section, and I hope it will stand. Mb. JONES. Mr. Chairman: The only question I understand to be raised by the amendment offered, is to the point that this is not suf- ficiently distinct, and may be construed to take away the right of the Legislature to change the remedy. ■ Now, as the section stands in the Constitution, it simply prohibits the impairing of theobligations of aoon- tract. Now, the obligation of a contract may have been understood to go to the extent of remMy for the breach as the means of the enforcement, but that is certainly a very close construction. The only object of the amendment made by the Committee on Preamble and Bill of Rights, ss stated by the Chairman, Mr. Van Dyke, was to supplement the words, " impairing the obligations of a contract" by the express words "or the remedy for the enforcement or breach thereof." The mere obligation of a contract is of no value to anybody. That is to say, the legal obliga- tion. There is nothing left; if there be anything left, they cannot be enforced at law, and there is nothing left, except the moral obligation, and when we rest upon that, we do not want the statute at all. I su^ mit we cannot reasonably suppose that our appellate Court will not give the construction to these words which are put in here that will be per- fectly safe. We cannot reasonably suppose that the highest Court in the State will hold that that means that the Legislature cannot change the remedy for the enforcement of a contract. I see no harm in the world that this amendment, which is incorporated into the section by the committee, can do, unless we are to suppose that the Supreme Court should hold that it would deprive the Legislature of the liberty of mak- ing any change in the law in regard to the remedies for breach of contract, and in repird to the means for the enforcement of a contract, which would certainly be a forced interpretation on the section which has been reported by the committee. I think the simple meaning of this is that thev shall not impair these contracts. The word impair is plain, and it is difficult to make it any plainer. It is that they shall not render them insufficient, or take away the means by which they are to be enforced, or make any change which shall endanger the rights of the parties. It seems to me that is the meaning, and it is plain as it csn tie, and I know that there was no other object sought to be accomplished. There are contracts, of which the utility or benefit can only be attained by the enforcement of the contract itself. That is the kind of contract to which this section applies. There are other contracts which can be construed liberally. There certainly should be a requirement that the Legislature shall not take away, by any enactment, the means of having a remedy for the breach of these contracts. If this object is not accompliohed. by this amendment, we should change it so that it will accomplish the object sought. There certainly can be no objections urged to a proposition in the organic law that the Legislature shall not take away the means for the enforcement of a contract, or take away the remedy for a breach. Mb. WINANS. Mr. Chairman : I hope this Convention will adopt as a cardinal rule of procedure that amendments to the present Consa- tution in all cases, except where the wishes of the people and the exi- gencies of the times demand a change, shall not be adopted. Now, sir, the Constitution as it stands in this case in reference to this question is identical with the provisions of the Constitution of the United States, which says : "Congress shall pass no bill of attainder, ex post facto law, or law impairing the obligation of a contract." But the words pro- posed to be introduced here have si very doubtful meaning. It would be difficult to determine at this time what would be the effect of depriv- ing the Legislature of the right to pass remedial statutes. Now, sir, the rule has always been heretofore and always acceded to as eminently proper in itself, that the Legislature had tne right to pass remedial statutes, but under the limitations of the Constitution which forbids the impairment of contracts. Subject to that constitutional limitation, it is entirely proper that the Legislature should hare control of the matter. I am opposed to the section as advocated by the Committee on Preamble and Bill of Rights. Mb. GREGG. I offer as a substitute the sections of the old Constitu- tion pertaining to the same subject: Skc. 16. No bill of attainder, ex post facto law, or law impairing the obligation of contracts, shall ever oe passed. I prefer that to the section reported by the oommittee, and I move it as a substitute. The chairman. The motion of the gentleman from Lake, Mr. Noel, leaves it precisely as it was before in the old Constitution, and amounts to the same thing. The question is on the motion to strike out so as to leave the section as it is in the present Constitution. The motion prevailed and the words were stricken out. The chairman. The Secretary will read section seventeen. The SECRETARY read : Sec. 17. Foreigners eligible to become citizens of the United States under the naturalization laws thereof, while bona fide residents of this State, shall have the same rights in respect to the possesion, enjoy- ment, and inheritance of property as native bom citizens. Mb. van dyke. I move that the section be stricken IVom the article. It is before another committee, has been considered, and will come up in their report before the Convention in another port of the Constitution. There is no use of considering it twice, and consuming the time, and I therefore move to strike it out. The chairman. The question is on the motion to strike oat the section. Digitized by Google Nov. 1, 1878. OF THE CONSTITUTIONAL CONVENTION. 269 Ht. WHITE. Mr. Chairman : I trust the section will not be stricken onU It belongs right there where it is. I wish to offer an amendment. Ml. VAN DYKE. Mr. President: The reason why I make this motion is to save double discussion. There is a section reported by the Committee on Chinese which embraces that matter, and which will be thoroughlv discussed when it comes before the Convention. It is hardly worth while to spend a day or two in discussing this now. Mb. WHITE. Mr. Chairman, I have an amendment]! wish to offer to the section, which I send up. TBI SECRETARY read : "Foreigners who are intending to become citizens of the United States, under the naturalization laws thereof, who now or may hereafter become residents of this State, shall enjoy the same rights respecting the ownership, possession, enjoyment, and inoeritance of property as native bom citizens. Foreigners not intending to become citizens, under the naturalization laws ofthe United States, shall not have the right to own SOT real property, nor to make a will, nor to take any property by inherilance; and all contracts made by them, with a view to (he rent- is^ or occupation of land, houses, or tenements, shall iiv the future be void." Thi CHAIRMAN. The first question will bo on the motion of the gentleman from Alameda, Mr. Van Dyke, to strike out the section. The motion prevailed, and the section was stricken out. The chairman. The Secretary will read section eighteen. Ths secretary read : Ssc. 18. No form of slavery shall ever exist in this State, and there iball be no involuntary servitude unless for the punishment of crime of which the party shall have been duly convicted. Ml FREUD. Mr. Chairman : I move to insert in lieu of section eitjhteen, as read, the first section of the report of the minority of the Committee on Preamble and Bill of Rights, as follows: "Ko property qualification shall ever be required for any person to vote or hold office, or to become a juror." Ms. FREUD. Mr. Chairman : The section now before us Is one of no slight significance. It involves principles vital to the stability and per- petuity of free institutions. Its adoption or rejection will mark the growth ordecay of the American republic. Upon a question of such momentous consequences I cannot refrain from uttering iny innermost sentiments. With a view to brevity and precision, the proposition is readily divisible into three heads: First, no property qualification shall ever M required foranypersonto vote; second, to hold office ; and third, to become a juror. Let me oriefly call your attention to the provisions relating to this sub- ject in the various State Constitutions. Section Eighteen, Article One, Bill of Rights of the Constitution of Mississippi reads: " No property qnalification shall ever be required for an^ person to become an elector." Section Seventeen, Article One, Bill of Rights of the same Constitution reads: "No property qualification for eligibility to ofiice shall ever be required." These two sections are found m very nearly the same terms in the Bill of Rights of the foUowing.State Constitutions: Alabama, Arkansas, Kansas, Louisiana, Minnesota, North Carolina, South Caro- lina, and one or two others. As to the qualification for jurors, let me read a few lines from Proffatt on Jury Trial : " Lately the tendencv is to dispense with a property qualification, and to make the selection from citizens who are qualified voters. Thus, in Missisappi a property qualification was formerly required, but the Con- ttitntion of eighteen hundred and seventy provided that no property qualification shall ever be required of any person to become a juror; and nsder this it was decided that the juror shall no longer be restricted to a class possessing property of a certain value. So, in Connecticut, a prop- erty qualification was formerly re<^uired, but since eighteen hundred and thirty-seven a fVeehoId qualification is dispensed with in talesmen as well as other jurors. Up to eighteen hundred and sixty-seven, in Alabama, the list of jurors was taken biennially from householders and freeholders, but by an Act passed in eighteen hundred and sixty- eight, the list is to be taken fW>m the registered voters. There are about a third of our States which require a property qualification for a juror." In no part of the Constitution of California is there any provision requiring any property qualification for anything. It has been reserved for the le^slators of our day to put into the Crae of California a prop- erty qualification for jurors. Had the members of the Convention of eighteen hundred and forty-nine anticipated such an illiberal and unre- publican Act, they certainly would have inserted in the Constitution of California the declaration now before us. I propose briefly to draw your attention to the scope and value of this section. Let us go to the very bottom of the subject. What qualities should a man possess to be a good citizen, an honest officer, and a faithful juror? What should be the essential attributes of citizenship, of office, and of the jury? They may all, I think, be ranged under the three cardinal virtues, honesty, ability. Slid patriotism. Look at these three words in their purest and broadest sifflifications and you have before you the three primary elements which together go to form the noblest citizen, the ablest officer, and the worthiest judge. First and foremost of them all is honesty. Without that, all the others are but the echoes of treachery and the fawnings of hypocrisy. Any brain, no matter how capable, any heart, no matter Ik)w large, that is not anchored to the rock of honesty, is but the rotten *nck floating upon the polluted watersof the Styx. Now, sir, what rela- tion is there between property and honesty ? Are they in any way ««'eatlal to each other? Why, in the very question is its own answer. To-day the most notorious thoroughfare to property is through perjury, gambling, and crime. It is a sad commentary that few men are now willing to drudge along the dreary road of toil to reach that precious goal. Under our second head we have placed ability. To be sure the citi- zen, the officer, and the juror should be men able to discharge their fj^pective duties. Some persons say that as it requires sense, and intel- ligence, and foresight to acquire property, therefore the property owner, «i4 he only, should be intrusted with the ballot, the office, and the jury. And now while I admit that a peculiar kind of intelligence is in many cases requisite for the acquisition of property, nevertheless I am fully convinced that the possession of property is by no means a crite- rion of intelligence. You cannot measure a man's brains by the size of his town lots, nor his judgment by the length of bis bank account. Under our third head we have placed patriotism. No man, I hold, should be permitted to serve under the American system unless he holds it in reverence and love. No man, I hold, is entitled to the rights end privileges of this republic unless he is willing to die in their defense. Now, sir, let me ask in the name of reason, can no man but a pnporty owner be a patriot? The history of other lands besides our own has illustrated upon many battle fields the fallacy of that assumption. When we come to look into the question there is in reality no lab<>ring man who is not a property owner — no laboring man who is not a tax- payer. Capital is nothing but accumulated labor, and he who assists in the accumulation Is no less a capitalist than a laborer. The man who drives my wagon is honest, and honorable, and intelligent, but while he has no property he certainly helps me to pay the taxes upon mine. His name as well as mine should appear upon the assesemeut roll. He cannot feel otherwise than interested in the welfare of his State. What virtue does he lack that he should be branded with the mark of an unjust discrimination? What crime has he committed that should ren- der him incompetent to judge of his fellow men ? I tell you, gentle- men, it Is a foul stain upon the statute books of California. The whole matter resolves itself into one short sentence : As political rights and privileges are not dependent on or modified by property, therefore qo property qualification should affect the right to vote, to hold office, or to t>ecome a juror. Wealth is in no way the index of honesty, integrity, or intelligence. Poverty is not necessarily the brother of crime. No man is a better citizen because he is rich, and no man is a worse citizen because be is poor. If you mdst have a political test let it be brains and not dollars. If any gentleman will propose a just and practica- ble educational qualification for suffrage, for office, and for the juiy, I pledge him my vote and my hand. But, sir, a property qualinca- cation is monstrous. It is unworthy of this liberal age. It is, in truth, a relic of barbarism. You can't find any approach to it in the laws of the United States, and you will not find it m any ofthe late Constitu- tions of the various States of the Union. The American republic was founded upon equality. She was bom and reared under thelbroad pan- oply of liberty to all. She has grown and thrived under the imperial 8egis of injustice to none. In my opinion the proudest boast of the republic to-day Is that before and under her laws there is no rich and no poor, no proud and no lowly, no weak and no strong. Each citizen is the peer of all and in all each is an ecjual unit. That is the genius of our free institutions. In that lies their life. Vitiate that spirit and they must fall. California can never afford to depart now from a cus- tom so sanctified and a principle so just. I am not a blind venerator of antiquity. But, sir, when a principle which more than a century ago inspired a great nation is handed down to us as the palladium of our liberties, I cannot silently witness its destruction. Property qualifica- tions of any and every kind are not in consonance with the spirit of an American State. They are equally as oppressive and obnoxious as the Infamous tests of religion. I nope, sir, as I believe, that there is suffi- cient manhood and patriotism in the honorable body to declare to pos- terity that no property qualification shall ever be required for any person to enjoy the rights and privileges ofthe State of California. Mb. TINNIN. Mr. Chairman: I desire to say only a word with reference to this question, for it is one to my mind that requires but little elucidation. The gentleman who has just preceded me, has built his argument upon the idea that property is nothing in this govern- ment. Now, Mr. Chairman, It Is a fact that self-interest always governs men. Now, sir, if there is no local interest, there can be no local object to carry out anything that will protect the community. If you elect a man as Sheriff of your county, you select a man who himself has prop- erty to be protected, and then your interest is his interest. You want a man who has something at stake himself, and he will carry out your wishes and preserve order and the public peace. If this section should be adopted, instead of having jurors who feel an interest in the welfare of the community, we would have tramps, and persons who are constantly Boating from one State to another, and from one county to another, and who have no interest in the local affairs of the community. I say, Mr. Chairman, it would be a dangerous thing to do: when we adopt such an idea as this, we are treading on dangerous ground, one that comes nearer to our rights and liberties than anything else we can do. I hope the amendment will be voted down, and that this Convention will declare against such a dangerous innovation as this. Mb. EDGERTON. Mr. Chairman: The gentleman from San Fran- cisco, Mr. Freud, has made an exceedingly creditable speech on this subject, to which I have listened with a great deal of pleasure. I think, however, he overlooks the clear distinction between the office, duty, function, or whatever you may call it, of a juror, and the right of a person to the exereise of the right of suffrage and the right to hold office.^ The two latter are clearly right. A man has a right to seek an office." He has a right to vote. Certainly that right should not be dependent upon the amount of property he owns. But, sir, when It comes to serving on the jury, it is a different matter, and he is indeed treading on dangerous ground. That is an obligation which every citizen is wont to shirk, and every lawyer knows that the very best citizens shift In every way possible to find an excuse to get rid of that duty. The law as it now stands requires' that the names of jurymen shall be on the assessment roll for real or personal property. That is a custom that has been sanctioned by experience in this State for a quarter of a century. It is regarded as a conservative guard to the liberty and property and lives of the citizens of the State. I think, as far as the jury system is ooncerned,Jn this respect it should be left as it is now. '~* Digitized by' bould be left as it Google 270. DEBATES AND PROCEEDINGS Satdrday, Mb. van DTKE. Mr. Chsirman: I will state the tomou why the majority of the committee declined to entertain that eection. One of the reasons has already been assigned by the eentleman from Sac- ramento, Mr. Edgerton. The right to vote and the right to hold office are already defined in the other parts of the Constitution, and the only remaining proposition is in regard to who shall be competent jurors. Those are the reasons why the majority of the committee declined to insert that provision in the article on Preamble and Bill of Rights. Ma. BIGGS. Mr. Chairman : I move to strike out all after the word "office," and this will leave out all about the qualifications of jurors. I will remind my esteemed friend from San Francisco that if he refers to the Constitution of Missouri, I know something about that [laughter] and there they require a property qualification before a man can serve in the Senate. He must nave paid taxes for twelve months prior to his election to the Senate. I ask if it is not proper for a man to be on the assessment roll before he shall be allowed to serve on a jury? I therefore offer an amendment to strike out all after the wprd office. Mr. Presi- dent, it is well known by every gentleman within the sound of my voice, that every man wants to shift the responsibility of serving on the jury. I want them to have an interest m the community before they are allowed to sit on the jury. If my life is in ieopardy, I don't want a lot of tramps and hoodlums to try me. [Laaghter and cries of louder.1 Oh, I presume you can hear me, if you can't I will stop it. Mb. FREUD. Mr. Chairman : I accept the amendment to strike out all after the word "office." Mb. CAFLE3. Mr. Chairman : I simpler wish to (t«t«, aa a member of the Suffrage Committee, that that committee will report on the sub- ject of the qualifications of voters and oflSce holders. The committee will report a qualification that covers the whole ground proposed by the gentleman, except as to jury, and it is aa well, perhaps, to strike that out, which leaves nothing but the question as to whether it is proper to insert it here or in the suffcage department. I think, however, it will be a little out of place here ; that it belongs in the suffrage department, and will be reported on to the entire satisfaction of the gentlemen who are so aneasy about property ijnalifications in regard to this matter, for there will be no proper^ qualification provided lor in that report. Thi CHAIRMAN. The question is on the motion of the gentleman from Sem Francisco, Mr. Freud, to insert the following : " No property qualification shall ever be required for any person to vote or hold office." Mb. mills. Mr. Chairman : I move that the oommittre now rise, and recommend that this matter be referred to the Judiciary Com- mittee. Lost. The question being upon the substitute offered by the gentleman from San Francisco, Mr. Freud, it was lost. Mb. EDGERTON. Mr. Chairman: I offer a substitute to the section. It is the corresponding section in the old Constitution. TBI SECRETARY read: Skc. 18. Neither slavery nor involuntary servitude, unless for the punishment of crime, shall ever be tolerated in this State. Mb. van dyke. Mr. Chairman : The only chan^ made in the section was to make it conform to the language of the thirteenth amend- ment of the Constitution of the United States, "of which the party shall have been duly convicted," having been added after the word " crime." It also declares that there shall be no form of slavery exist- ing in this State. That language is taken from the Constitution of Ala- bama. I call attention of the members to the fact that there is no such thing aa slavery for the punishment of crimes, which is the way it stands in the old section. It has reference to slavery as well as to invol- untary servitude, so we thought best to put it in this form, that there shall be no form of slavery in this State. The old section says : "Neither slavery nor involuntary servitude, unless for the punishment of crime, JTeet it. shall ever be tolerated in this State." There is no such thing as "slav- ery for the punishment of crime." It means involuntary servitude for the punishment of crime. Ms. EDGERTON. Mr. Chairman: This Convention will do well to adhere as strictly as may be with safety to the language, text, and spirit of the old Constitution ; to depart from it in no instance, unless there is some real necessity for the change. The old section says : " Neither slavery nor involuntary servitude unless for the punishment of crime." It is precisely the same thing, and with due respect to the gentle- man, it is much more aptly expressed in the old Constitution, and I hope it will be adopted. Ma. VAN DYKE. We simply say in addition, "of which the party has been duly convicted." The CHAIRMAN. The question is on the substitute offered by the gentleman from Sacramento, Mr. Edgerton, substituting section eighteen of the old Constitution. The substitute was adopted by a vote of 79 ayes. Thi CHAIRMAN. The Secretary will read section nineteen. The SECRETARY read: Sic. 19. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches, shall not t>e violated; and no warrant shall issue, but on probable cause,* sup- ported by oath or affirmation, particularly describing the place to be searched and persons and things to be seized. The chairman. There Iwing no amendments to section nineteen, the Secretary will read section twenty. The secretary read : Sec. 20. Treason against the State shall consist only in levying war against it, adhering to its enemies, or giving them aid and comfort. No person shall be convicted of treason, unless on the evidence of two wit- nesses to the same overt act, or confession in open Court. The chairman. There being no amendments offered, the Secre- tary will read section twenty-one. The secretary read: Bio. si. No special privileges or immunities shall ever be granted which may not he altered, revoked, or repealed by the Legislature ; nor shall any citizen, or class of citizens, be granted privileges or immuni- ties which, upon the same terms, shall not be granted to all citizens. The chairman. There being no amendments, the Secretary will read section twenty-two. The secretary read: Sic. 22. No money shall ever be appropriated or drawn fW>m the Stale treasury for the use or benefit of any corporation, association, asj- lum, hospital, or any other institution, not under the exclusive manage- ment and control of the State ; nor shall any grant or donation of property ever be made thereto by the State. Mb. van dyke. Mr. Chairman: I move that section twenty-two be stricken from the article, for the reason that the Committee on Legis- lative Department have prepared a section embracing the same thmg, and I think that is the proper place for it. The chairman. 'The question is on the motion to strike out section twenty-two. The motion prevailed. Thi chairman. The Secretary will read section twen^-three. Thi secretary read : Sec. 23. The provisions of this Constitution are mandatory and pro- hibitory, unless by express words it is declared to be otherwise. Tbi chairman. There being no amendments, the Secretary will read section twenty-four. The secretary read: Sic. 24. This enumeration of rights shall not be consumed to impair or deny others retained by the people. Ma. REYNOLDS. Mr. Chairman: Section twenty-one was passed before my attention was called to one word in it, which ought to be corrected. I call the attention of the committee to the word "shall," in the fourth line, after the word "terms." It seems to me that the word "may" would be better in that connection. Mb. AYERS. I think the word "shall" is the better word in that connection. Mb. EDGERTON. The suggestion of the gentleman from San Fran- cisco, Mr. Reynolds, it seems to me would destroy the very object of the provision. Thi CHAIRMAN. The motion to change is not in order, unless by unanimous consent of the committee. Mb. EDGERTON. I object. The CH AI RM AN. There being an objection, it is out of order. Me. REYNOLDS. I simply desired to correct the sentence; I do not desire to change the phraseology. Tbb chairman. The gentleman had an opportunity while that section was under consideration. Mb. BARNES. Mr. Chairman : I ask leave of the Convention to change the language of section twenty-three, which says: "The pro- visions of this Constitution are mandatory and prohibitory, unless b^ express words it is declared to be otherwise." I don't know whether it refers to provisions; if so, it should read, "they are," instead of "iU" " It are " declared to be otherwise. It certainly ou^ht to be " they are." The Constitution is not mandatory, it is the provisions of the Constito- tion that are mandatory. It is just as well to be right as to be wrong. There are perhaps fifteen or twenty such discreditable errors in these reports, and I think the Convention should not, knowingly, let them pass. Ml. VAN DYKE. This section was taken from the draft sent op by the gentleman from San Francisco, Judge Hager ; so the gentleman can level his batteries across the way. The CHAIRMAN. If there is no objection the Secretary will oor- Mr. Chairman : It is now twenty-fire minutes to foar Mb. BARNES, o'clock. Mb. AYERS. Not time to adjourn yet. Ma. VAN DYKE. Mr. Chairman : I move that the committee now rise. The motion prevailed. IN CONVENTION. The president. I am instructed by the Committee of the Whole to report to the Convention that they have had under consideration the report of the Committee on Preamble and Bill of Rights, and ask leave to sit again. Mb. EDGERTON. Mr. President: If it is in order I move to lay the report on the table, for this reason : two or three committees, with one of which I am connected, are anxious to complete their work, and they would like to have a chance to look this over between this and to-mor- row morning. Mb. VAN DYKE. Why not make it the special order for Tuesday. I make that motion, that it be made the special order for Tuesday next Ma. McCALLUM. I wish to <»ll attention to the fact that we have not yet considered the Preamble. I movethatwecnnsiderthe Preamble. Thi PRESIDENT. That will come off last of all in the enUre Con- stitution. Me. McCALLUM. go on and finish it. The PRESIDENT. order for Tuesday next. The motion prevailed I have not heard any reason'why we sbonld not The question is on making the article the qieeial ADJOVBNMEMT. Mb. HUESTIS. I move that the Convention do now adjourn. Ma. WHITE. I move that the report of the Committee of the Whole be printed and laid on the desks of members. Thi president. There being no objet^iops it will befo ordered. Digitized by 9(»io|»s It will be^ or L.oogle "?TS- Nov. 2, 1878. OF THE CONSTITUTIONAL CONVENTION. 271 Mb. EIXSEBTOy. I desire to give notice thai the Committee on Revenue and Taxation will meet immediately. Ms. BLACKMER. The Committee on Future Amendments will- meet to-morrow mornine. The president. The motion is now to adjourn. Carried. And at three o'clock and thirty-fiye minutes p. h. the Convention atljoamed. THIRTY-SIXTH DAY. Saorauihto, Saturday, November 3d, 18T8. The Convention met in regular session at ten o'clock a. u.. President e ia the chair, le roll was called, and members found in attendance as follows : Hoi Andrews, Hale, Overton, Ayers, HaU, Porter, Barnes, Harrison, Prouty, Bsrry, Harvey, Pulliam, Barton, Heiekell, Beddy, Bell, Hilbom, Reed, Biggs, Hitchcock, Reynolds, Blackmer, Holmes, Ringgold, RolK, Boggs, Howard, Boucher, Huestis, ScheU, Brown, Hughey, Sehomp, Bart, Hunter, Shafter, CunpbeU, Inman, Shoemaker, Caples, Johnson, Bhurtleff, Casserly, Jones, Smith, of 4th District, Chapman, Joyce, Smith, of San Francisco, Charles, Eelley, Soule, Condon, Keyes, Stedman, Cowden, Kleine, Steele, Cross, Laine, Stevenson, Crouch, Lampeon, Strong, Davis, Larkin, Sweaaey, Dowliiif, Larue, Swenson, Doyle, Lavigne, Swing, Dudley, of Solano, Lewis, Tinnm, Eagon, Mansfield, Townsend, Edgerton, M-artin, of Santa Cnu , TuUy, Evey, McCallum, Turner, Fawcett, McConnell, Vacquerel; Van Dyke, Van Voorhies, Pilcher, McCoy, Pimney, McFarland, Freeman, McNutt, Walker, of Tuolumne, Freud, MiUs, Waters, Garvey, Mofiat, Webster, OUuoock, Moreland, ^ West, Gorman, Morse, Wickes, Grsce, Nason, White, Graves, Neunaber, Wilson, of Tehama, Gregg, Noel, Wyatt, Hager, Ohleyer, AB81NT. Mr. President Barbour, Herrington, Smith, of Santa Clara, Beentecher, Kenny, Stuart, Belcher, Lindow, Terry, Berry, Martin, of Alameda, Thompson, Dean, McComas, Tuttle, Dudley, of San Joaquin, Miller, Walker, of Marin, Dnnlap, Murphy, Weller, Eatee, Nelson, Wellin, Estey, O'Donnell, Wilson, of Ist District, Parrell, OTSullivan, Winans. Herold, Rhodes, LBAVI or ABSBHOS. One day's leave of abeenoa was granted Messrs. O'l^llivan, Thompson, Beerateeher, Barbour, Dunlap, Winans, Teny, MctTomas, Dudley, of Ssn Joaquin, Kenny, and Weller. Two dAva leave of abaenoe was granted Messrs. Herrington and Martin of Alameda. Mb. VAN DYKE. I move that the reading of the Journal be dis- pennd with. Carried. BIPOBT. Mb. CAMPBELL, from the Committee on Executive Department, presented the following report : To Honorable J. P. Hoge, President Conatltatlonal Conrentton : ■a. Paunttant: The Oonunittee on the BxecntiTe Department reipectAillr beg leave to repoxt tack to the Gonvention the following propoeltloni, with the recom- ■endatian that no Anther action be taken thereon, tIl: Proposition No. S, bjr Mr. Beitosr: Ko. M, by Mr. Davis; No. 394, bv Mr. Davit: No. 307, bjr Mr. McOonnell ; H«. IM, bv Kr. Sboemalier; No. 133, bv Mr. I,«wie; No. 22, bv Mr. Townsend; No. »l by Mr. White ; No. 334, by Mr. Schell ; No. 28«, by Mr. H. W. Smith ; No. 148, by Mr. ShoeaMker; No. 266, by Mr. Joyce ; No. 270, by Mr. Undow ; No. 211. by Mr. Ibnia, at Santa Cms. n* oomialtlee ftuther reports tliat it hu prepared an article, entitled article BOBber five, cxeentlve department, wlUch is herewith anbmltted. In preparing this wticle vs have taken the oorresponding article in the present Constitution at the hak at oar actkm, and have propoasd bat torn altaraUoot. iiWwhsJiged. In section two the time when the Governor shall enter npon the duties of liis office it changed to the Monday after the flnt Tuesday in Jannaiy. In section three the time required for the residence of the Govemor in thit State prior to hit election is changed fh>m two to five yean, and he is required to be tliirty years of age, inttead of twenty-five, at the time of hit election. Sectiont four, five, tix, teven, and eight remain unchanged. Section nine it altered to ts to confine the Legitlature, when convened on extra- ordlnaxy occatlont. to the oontideiation of the lutdects mentioned in the proclama- tion. Sectiont t«n, eleven, and twelve remain unchanged. Section thirteen it omitted, the suldect-mattsr thereof having been referred to another committee. Sections toorteen and fifteen remain onebangsd. Section sixteen it altered by providing tliat the Llentanant^ovemor shall be incapable of holding any other ofllce during the time for which he sliaU liave been elected, except u provided In thit Constitution. Sectiont leventeen and eighteen remain unchanged. Section nineteen is amended by striking ont all after the word ** law." Section twenty it omitted. Section twentyK>ne it altered by fixing the compensation of the teveral offlcera tfaenin named, except the Attomey-Oeneral and Surreyor-Goneral, wboae com- penmtlon it loft to be provided for by the Legislature, for the reasons that it it pos- sible that under tliit Conttltution the duties of the Attomey-Qeneral may be largely increated, and he may be required by the Legitlature to devote hie entire time to hit official duties. At to the Surveyor-Qeneial, the committee it dftpoeed to believe that the dutiet of the office are lest onerout than formerly, and that postibly the offlca might be ditpented with st no dlttant period. All of which it retpectfUlly submitted. ALICX. OAMPBELL, Chairman. J. E. W. HITCHCOCK, BKNJ. SBURTLETr, A. B. ANDKKW8. JOKL A. HABVET, R. S. SWING, D. W. EBKBiNQTON, JOHN P. WEST, C. V. STDABT. November Itt, 1878. OBAPT or BXBOirnVB dxpabthbmt. The following draft, submitted by the committee, was read by the Secretary: Abticli V. IXIODTrVK DBPABTMBirr. Sbction 1. The supreme executive power of this State shall be vested in a Chief Magistrate, who shall be styled the Gktvemor of the State of California. Sio. 2. The Governor shall be elected by the qualified electors, at the time and places of voting for members of the Assembly, and shall bold his office four years from and after the Monday after the first Tuesday in January subsequent to his election, and until his successor is elected and qualified. Sbo. 3. No person shall be eligible to the ofiSce of Governor who has not been a citizen of the United States and a resident of this State five years next preceding the election, and attained the age of thirty years at the time of said election. Sbo. 4. The returns of every election for Governor shall be sealed up and tnmsmitted to the seat of government, directed to the Speaker of the Assembly, who shall, during the first week of the session, open and publish them in the presence of both houses of the Legislature. The person having the highest number of votes shall be Governor ; but, in case any two or more have an equal and the highest number of votes, the Legislature shall, by joint vote of both houses, choose one of said persons so having an equal and the highest number of votes for Gov- ernor. Sbc. 5. The Governor shall be Commander-in-Chief of the militia, the army and navy of this State. Sec. 6. He shall transact all executive business with the oCftcera of ^vemment, civil and military, and may require information, in writ- ing, from the officers of the executive department, upon any subject relating to the duties of their respective offices. Sbo. 1. He shall see that the laws are faithfully executed. Sue. 8. When any office shall, from any cause, become vacant, and no mode is provided by the Constitution and law for filling such vacancy, the Governor shall have power to fill such vacancy by |;rant- ing a commission, which shall expire at the end of the next session of the Legislature, or at the next election by the people. Sbo. 9. He may, on extraordinary occasions, convene the liegislatore by proclamation, stating the purposes for which he has convened it, and when so convened it shall have no power to legislate on any subjects other than those specified in the proclamation, but may provide for the expenses of the session and other matters incidental thereto. Sbo. 10. He shall communicate by message to the Legislature, at every session, the condition of the State, and recommend such matters as he shall deem expedient. Sbo. 11. In case of a disagreement between the two houses with respect to the time of adjournment, the Governor shall have power to adjourn the Legislature to such time as he may think proper; provided, it be not beyond the time fixed for the meeting of the next Legislature. Sbo. 12. No person shall, while holding any office under the United States or this State, exercise the office of Cravemor except as hereinafter expressly provided. Sbc. 13. There shall be a seal of this State, which shall be kept by the Governor, and used by him officially, and shall be called "The Great Seal of the State of California." Sbo. 14. All grants and commissions shall be in the name and by the authoritT- of the peoi>le of the State of California, sealed with the great seal of the State, signed by the Governor, and countersigned by the Secretary of State. Sbc. 15. A Lieutenant-Governor shall be elected at the same time and places, and in the same manner, as the Governor; and his term, of office and his qualifications of eligibility shall also be th^ same. E4 Digitized by e.ta^ same. U* Laoogle 272 DEBATES AND PROCEEDINGS Saturday, Bhall be President of the Senate, but shall only have a casting vote therein. If, during a vacaucrof the office of Governor, the Lieutenant- Governor shall be impeached, displaced, resign, die, or become incapa- ble of performing the duties of his office, or be absent from the State, the President pro tem. of the Senate sbtill act as Governor until the vacancy be filled or the disability shall cease. The Lieutenant-Gov- ernor shall be disqualified from holding any other oSice, except as spec- ially provided in this Constitution, during the term for which he snail have been elected. Sbc. 16. In case of the impeachment of the Governor, or his removal from office, death, inability to discharge the powers and duties of the said office, resignation, or absence from the State, the powers and duties of the office shall devolve upon the Lieutenant-Ciovernor for the residue of the term, or until the disability shall cease. But when the Governor shall, with the consent of the Legislature, be out of the State in time of war, at the head of any military force thereof, he shall continue Com- mander-in-Chief of all the military force of the State. Sbc. 17. A Secretary of State, a Controller, a Treasurer, an Attorney- General, and a Surveyor-General shall be elected at the same time and places, and in the same manner as the Governor and Lieutenant-Gov- ernor, and whose term of office shall be the same as the Governor. Sic. 18. The Secretary of State shall keep a fair record of the official acta of the legislative and executive departmenta of the government, and shall, when required, lay the same, and all matters relative thereto, before either branch of the Legislature, and shall perform such other duties as may be assigned him by law. Sic. 19. The Governor, Lieutenant-Governor, Secretary of State, Controller, Treasurer, Attorney-General, and Surveyor-General shall each, at stated times during their continuance in office, receive for their services a compensation wnich shall not be increased or diminished during the term for which they shall have been elected, which com- pensation is hereby fixed for tne following officers for the two terms next ensuing the adoption of this Constitution, as follows: Governor, six thousand dollars per annum ; Lieutenant-Governor, the same per diem as may be provided by law for the Speaker of the Assembly ; the Secretary of State, Controller, and Treasurer, three thousand dollars each per annum, said compensation to be in full for all services by them respectively rendered in any official capacity or employment whatso- ever during their respective terms of office ; provided, however, that the Legislature, alter the expiration of the terms hereinbefore mentioned, may by law diminish the compensation of any or all of said officers, but in no case shall have the power to increase the same above the sums hereby fixed \>j this Constitution. The Legislature shall, by law, fix the compensation of the Attorney-General and the Surv^or-General, and may, in iU discretion, abolish the office of Surveyor-General ; and none of the officers hereinbefore named shall receive for their own use any fees or perquisites for the performance of any official duty. Mb. CAMPBELL. I move that the report and draft be ordered printed and be made the special order for Monday, November fourth. Carried. RIW PBOPOSITIOKS. Thi PRESIDENT. Resolutions and propositions relative to the Constitution are now in order. soproBT or ooinioit schools. Mb. HUESTIS introduced the following proposed amendment to the Constitution, providing for the support oT the common schools of this State: Saolvtd, That the following provisions be adopted in that articJe of the Constitution which relates to education : SiCTiOM — . The Legislature shall provide for a system of common schools, by an ad valorem tax on all of the taxable property of this State, by which a school shall be kept open and supported in each school district at least six months in every year. 8io. — . It shall be the duty of the Legislature to preserve inviolate, for the support of the common schools, the funds already accrued and to accrue from the proceeds of sales of the sixteenth and thirty-sixth sec- tions of land donated by Congress for common school purposes in this State. Referred to Committee on Education. IBBIOATION. Mr. HOWARD introduced the following propoeed amendment to the Constitution, in relation to irrigation : Abticlc — . SiCTiON 1. The Legislature shall have power to pass laws to provide for an equitable distribution of water for irrigation, preserving vested rights. Sec. 2. The Legislature may provide for the condemnation of righta of way for irrigating cauals, compensation to be first made, and for the condemnation of existing water righta, compensation being first made. Referred to Committee on Water and Water Righta. LABOB AND CAPITAL. Mr. HOWARD introduced the following proposed amendment to the Constitution, to secure cooperative societies between labor and capi- tal: Abticli — . Sbctioh I. The Legislature shall have power to pass laws to facili- tate codperative societies where the capitalist furnishes all the capital and the laborer all the labor, and secure an equitable division of pro- perty. Sbo. 2. To faciliate corporations by which the laborer furnishes both the labor and the capital. Sic. 3. To faciliate associations in which the capitalist pays current wages, and, in addition, a certain share of the profita, after deducting interest and a sufficient sum for the renewal of machinery. Sic. 4. To facilitate codperative stores. Sic. 5. To organize Courta of Arbitration by which all oontetti between the employer and the employ^ majr be settled. Referred to Committee on Labor and Capital. 8TBBBT ASSISSMKirrS. Mb. REYNOLDS introduced the following proposed amendment to the Constitution, iu relation to street assessments: SiCTioN — . No municipal corporation shall have the power to levy or collect an assessment upon any property, or upon iU owner, for the opening or improvement of any street, or to defray the expense of an^ street work, which aasessment shall be greater in amount than the addi- tional value given to such property by the opening or improvement of such street, or the doing of such street work. Referred to Committee on City, County, and Township Organiiations. bioistbatios or votbbs. Mb. ANDREWS introduced the following proposed amendment to the Constitution, concerning the registration of voters : SicTioii — . The Legislature may, by law, provide for the registra- tion of voters, and may make such law applicable to such subdivisiou of the State as may be proper. Referred to Committee on Bight of Suffrage. TAXATIOR. Mb. NOEL introduced the following proposed amendment to th« Constitution in relation to taxation : SicTioN — . All properly in this State shall be assessed, for pur- poses of taxation, at ita actual cash value. Sic. — . All persons in this State shall pay taxes on what they arr actually worth, and no more. Referred to Committee on Revenue and Taxation. SKCBrr TBIBIIKALS. Mb. O'STTLLIVAN introduced the following propoeed unendment to the Constitution, entitled " illegality of secret tribunals declared- punishment of participanta in them to bie provided for:" Sbctioh — . Secret organixations and tribunals of an extru-judidal character, which assume to impose penalties upon persons, withoot sanction of law, are prohibited ; and the Legislature is directed to pro- vide, by the full force of law, for the suppression of such tribimalt, and the punishment of all persons participating in their proceedings. Referred to Committee on Legislative Department. , LABOB ARD CAPtTAL. Mb. HARVEY introduced the following proposed amendment to the Constitution, relative to labor and capital : Abticlb — . Sbctioh 1. The interesto of labor and capital being identical, and any legislation tending to promote the inter^ta of the one neoessarily and in the s^me proportion advaaoes the prosperity of the other, there- fore no arbitrary restrictions shall be imposed by law tending to deprive or curtail the natural righta of either labor or capital in this State, and all legislation in relation thereto shall be such as may be best calculated to advance the interesta of the rich and poor alike; and to that end the Legislature of this State may, by law, provide for the establishment of a Bureau of Industrial Resources, to be under the management of a Commissioner, who shall be elected by the people at the times and places prescribed by law, and in the same manner as other State offioen, and whose term of office shall be the same. Sic. 2. The duties of such officer shall be defined by law, and he shall receive such compensation for the performance thereof as may be fixed by the Legislature; provided, however, that such compensation, and all the expenses of said Bureau, shall not in any case exceed .the sum of dollars per annum. Referred to Committee on Labor and Capital. MOTIONS AND BBSOLUTIOHS. Mr. REYNOLDS. I move that resolution number eighteen be taken from the table and referred to the Committee on Legislative Department Carried. The resolution was as follows : JUiolixd, That the Oommitte« on be and are hereby inetmcted to IwiaiR Into and report u to the expediency of eo amending the Conetitatioa m to limit the future ■cqnisltian of land by any one penon, or lasociation of penoos, or eoq»- ration. Mb. STEDMAN. According to notice given yesterday, by Mr. Wel- lin, he not being here, I wish U> ofler the following resolution: Saolved, That Bale On* be amended so as to read a* follows. BCLi OKI— aooB or mnma. The GonTentlon shall meet each day at nine o'clock a, v., nnleei It ihall a4fovni to some other hour. And bt it further raolvtd, Thut— aOLX TWO— BIOISS. The Oonvention ehall take a recess each day flrom twelT* o'clock ■. to one and • half o'clock r. m. Mb. STEDMAN. I presume that there will be no necessity for debating this question at all. I think the Convention will unanimously agree to adopt that rule. We would be saved an hour and a half mmoa each day, and it would expedite our business, therefore I will say no more in regard to it, but simply move ita adoption. Mr. CA88ERLY. Mr. President: I hope the resolution will not be adopted. Nothing will be gained by longraj^ons, and I think more Digitized byLjOOQlCl Nov. % 1878. OP THE CONSTITUTIONAL CONVENTION. 273 time should be taken to oonsider these propositions out of the Conven- tion, if the work is to be done properly, and so as to be a benefit to' the State. The recess now granted is not a minute too much. For my own part, with all the diligence I can use, I am hardly able to get back here u time. Ma. GRACE. I move that the resolution be laid on the table. The motion prevailed, on a division, by a vote of 64 ayes to 41 noes. Mb. TIKKIK offered the following resolution : Saotved, That tlie Stata Controller Is harebj requMt«ete, Digitized by lecuu gle f^ 274 DEBATES AND PROCEEDINGS Saturday, Mr. BARNES. Mr. President: While we are discussing this subject, I desire to express my thanks to my colleague from San Francisco for his compliment to me as Chairman of the Military Committee, and, in return, I do now move that he be sent as a committee of one to the lunatic asylum. Me. brown. Mr. President: It appears to me from what has been said that the Legislature, at different sessions, has received infor- mation concerning the State Prison and other matters that may concern this body. That it is necessary for this body to have a special commit- tee to attend to it and see what is necessary to be done, I do not see the point. I think there is nothing of the kind'. I am convinced that there IS nothing that would convince the minds of these members upon the question of the State Prison but that they can have access to without going to San Francisco and investigating the subject any farther than the records show, and the information that may be attainable here in this city. I therefore see no reason whatever for sending that committee. Mb. LARKIN. I move the previous question. Mb. CAMPBELL. If the gentleman will allow me, I desire to make a suggestion. I suggest that the committee have two days leave of absence, commencing on next Saturday. That would enable them to return on Monday afternoon and enable them to do what they desire. Mb. LARKIN. I withdraw my motion. Mb. TINNIN. Mr. President: I desire to call attention to the fact that a majority of the Commission of the Stjte Prison reside in Sacra- mento, that is, the Governor and Secretary of State. They can have their meeting in Sacramento without going to the State Prison. Me. CAPLES. I move to amend by providing that the committee, after its arrival at San Quentin, be made "trusties." The president. The amendment is out of order. Me. HUESTIS. The resolution is now before the house. I move to lay it on the table. Mb. TULLY. Mr. President : I would like to inquire, is there any rule that prohibits or prevents that committee from going to the peni- tentiary it they want to — provided they bo guilty? Mb. HUESTIS' motion prevailed, and the whole subject-matter was laid on the table. Me. STEDMAN offered the following resolution : Suotttd, That the Secretary of SUte bo requested to place on the de«k of each member of thli CouTention a copy of report of Senate committee of the (ewlon of eighteen hundred and Mrentyieven and eighteen hundred and wventyelgbt on Cuinese. Mr. STEDMAN. Mr. President: We will soon consider the report of the Committee on Chinese, and I think if this report is placed m the hands of each member it will be a very valuable aid to them. I under- stand that there are some thousand copies in the Secretary of State's office at present, useless, and that is the reason why I offer the resolu- tion. Mb. HILBORN. Mr. President:, I move to amend by adding to the resolution, "provided they are on hand in the Secretary of State's office." Don't let us start in printing them. Mb. STEDMAN. I accept the amendment The resolution as amended was adopted. Mr. waters. Mr. President: It seems there is very little business before the Convention, and in view of the fact that there is yet a great deal of committee work undone I now move that this Convention adjourn. Mr. SHAFTER. We have some business before the Convention, and that is the report of the Committee on Pardoning Power. The motion to adjourn was lost. rABDONIHO power. Mb. SHAFTER. Mr. President: If it is in order I wish to call up the report of the Committee on Pardoning Power. I move that the Convention resolve itself into Committee of the Whole, the President in the chair, for the purpose of considering the report of the Committee on Pardoning Power. Carried. IN COMMITTEE OF THE WHOLE. The Secretary read the draft of the proposed section reported by the committee, as follows : AMINOHIKT NVHBIB FOUR HUNDRED AKD FORTT-FIVE — ARTICLE FIVE. 8eo. 13. The Governor shall have the powei" to grant reprieves, and the Governor and the Chief Justice of the Supreme Court shall have power to grant pardons and commutations of sentence, after conviction, for all offenses, except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as they may think proper, subject to such regulations as may be provided by law relative to tne manner of applying for pardons. Upon conviction for treason, the Governor shall nave power to suspend the execution of the sentence until the case shall be reported to the Legislature, at its next meeting, when the Legislature shall either pardon, direct the execution of the sentence, or grant a further reprieve. The Governor shall communicate to the Legislature, at the beginning of every session, every case of reprieve or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence, and its date, the date of the pardon and reprieve, and tiae reasons for granting the same. Neither the Governor and Chief Justice nor the Legislature shall have power to grant pardons, or commutations of sentence, in any case where the con- vict has been previously thrice convicted of felony. Me. SHAFTER. Mr. Chairman: In the draft which the Committee on the Pardoning Power have submitted, there are four or five altera- tions of the old Constitution, only two of which are at all material. The Governor retains the power of reprieve in all cases, while the power to grant pardons and commutations of sentence is vested in the Governor and Chief Justice of the Supreme Court. It was not thought advisable to trouble the Chief Justice with simple questions of delay of execution, and we thought it right that the Governor should have the power to grant reprieves until the testimony is produced, without con- sulting the Chief Justice. In cases of impeachment, the power remains the same as before. Now, in the fourteenth line we have made what we deem to be an important amendment, by the addition of the words, "and the reasons for granting the same." That has never been required before, and we think it ought to be stated in addition to the date of the offense and pardon. We, therefore, inserted these words so that the Governor should report to the Legislature the reasons for grant- ing the pardons or commutations of sentence. The chief amendment is made at the bottom. " Neither the Governor and Chief Justice, nor the Legislature, shall have power to ^rant pardons or commutations of sen- tence in any case where the convict has been previously thrice convicted of felony." I am told, sir, that there are in the State Prison men who are serving their sixth term, end some who are serving their tenth term. Men sentenced three and four times are exceedingly oommoo there. This is probably owing, in a great degree, to the manner in which they are treated there, which was well described by my friend from Alameda, Judge Campbell, the other day. They look upon it, in some respects, as the happy Valley of Rasselas, where they are free from care. I hoi>e that we shall make the third or fourth sentence more pregnant of evil consequences to the convict than they have been neretofore. For myself, I would almost allow a jury to sentence them to death, on the ground that, being past reformation, their lives were worthleas ; but that is rather contrary to the opinions of the public, and I simply want to suggest that they should not be put in the category of mercy. There is no use of turning them out, as all experience shows. The principal amendment is on tne power of commutation and pardon which has been vested in the Governor and Chief Justice. It is exceed- ingly difficult to state the grounds that ought to govern the executive clemency. It has been leu undetermined. No rules have been laid down in the Constitution, none have been attempted to be stated in the laws, because it is exceedingly difficult for any one to state the groonds on which alone executive clemency should be granted. The Governon themselves have never attempted to reduce it to any rule. There are cases where simple sentiment, simple emotion, or outside influence has operated ujion tne Executive and induced him to grant pardons. While they cannot fully agree with the arguments presented to them, they still have respect for those making the application and must entertiin their plea, and, while not fully justifying their own course, silently acquiesce, even when thetr judgment cannot render any good reason for it. Such has been the system and the law. Such has been the idea of the Constitution by leaving it in the discretion of the Executive. But there havd Iwen great abuses in this State and elsewhere, as every- body understands. Men have been pardoned when there was no reason for it — at least an outsider can see no reason for it. Now, it was thought that by associating the Chief Justice with the Executive, the latter would receive potential and important aid. In many cases of convictions for felony the reasons for and against granting a pardon or commutation of sentence would be more fully anderstood by the Chief Justice than by the Governor. It was suggested to place the pardoning power in the hands of a Board of Wardens of the State Prison. We were disinclined to grant it to them because they are polit- ical officers to some extent and certainly business officers. 'The men in command of the prisons know how to purchase beef, buy wood, make contracts, and conduct the business of the institution, but they are not men selected for the qualifications necessary to discriminate as to who ought to be pardoned. In Vermont, my native State, they have War- dens, but the power of jiardon is confined to the Executive. I have taken occasion to look over various Constitutions upon this subject. Massachusetts, Maine, and New Hampshire, leave it to the Governor and a Council. This system has worked well there because the men appointed in the Council have been men of age and experience who have retired from the active affairs of life, and who are entirely removed from the political world and its atmosphere. 'Take the case of Dr. Webster, wno murdered Parkman, and the appeal made to the Gov- ernor and Council of Massachusetts. They hung him notwithstanding all of the applications that were made to them. But I submit, withoat any disparagement to this State, that we should not be very likely, if the experiment were tried, to get that kind of a Council. In Maryland it is referred to the Governor and Justices of the Court of Appeals. In about four or five States it is referred to the Governor and Senate. But in seven eighths of the States — something like twenty-five or thirty — it is left to the Governor alone, just as it is in California now. If we were sure of getting the right material in the office of Governor, for one I should be in favor of retaining it there. It seems to me that in refer- ring it to a Board one man may affect the whole of them. If, however, a I^ard should be attempted, it should require unanimous action on the part of the whole Board, so as to see that there should not be a loss of justice. These were the general ideas that seemed to impress themselves on the committer It is recommended as a sort of compromise between those who favored leaving the power in the hands of the Governor ^nd placing it in a Board. We think that probably it ought to be referred to the Governor and Chief Justice of the Supreme Court, but we are not very obstinate in this matter. I therefore move its adoption. Mr, CAMPBELL. Mr. Chairman : I move to amend by striking out "Chief Justice of the Supreme Court" and inserting in lieu thereof " Attorney-General." The reasons given by the Chairman of the Com- mittee on Pardoning Power are certainly excellent, but there is one difficulty in the way, and that is that it is absolutely impossible for the Chief Justice of the Supreme Court to attend to the business. He will have as much as he can do to attend to the duties of his Court, and it will be absolutely impossible for him t« di8chaxg»<4he duties which it is Digitized by VjOOQ IC Nov. 2, 1878. OF THE CONSTITUTIONAL CONVENTION. 275 propoaed to place upon his shoulders. I thcrerore suggest that the Attorney-General be substituted in his place. So far as all these cases t£at go to the Supreme Court are concerned, the Attorne^r-General will have had occasion to examine the records. He is an officer entirely independent of the Governor, elected by the people, possessing that clus of qualifications which ought to enable him to determine questions of this kind, and in all respects, I think, a very suitable person to be aelect»l to associate with the Governor in this duty. While there has been a great deal of comment upon the exercise of the pardoning power, it has chiefly arisen from a few isolated cases where, unuoubtedly, gross errors have been committed in the exercise of that power. But there is a very general mistake as to the number of j>Brdons which have really been granted by the Governor during the period that he has exeiciied that power. I am informed by a gentleman at my left who WIS in the last Legislature, that upon inquiry of the proper authorities it was ascertained that the whole number of pardons since the organ- ization of the State, is only seven hundred and three up to the first of January last. I had myself supposed it was much larger. But these are the official fibres. Still, I think it would be better that two persons should concur in the exercise of this power, and I know none in official life better qualified than the Governor and Attorney-General. I therefore offer this amendment. Mb. HOWARD. Mr. Chairman : I move to amend the amendment was to add the Attorney-General and the Chief Justice of the Supreme Court ; so that the two may act. •Mb. TISNIN. I move to amend by adding, "and the Judge before whom he was convicted, if living in this State." Mb. CAMPBELL. I hope not. I think there is danger in calling in the Judge who tried the case. The Judge in trying a case necessarily forma very strong impressions in regard to the party, and of course he it unacquainted with his subsequent conduct and various other matters. I had an idea myself, when the matter was to a certain extent before the Committee on Executive Department, that it would be better to have the recommendation of the Judge who tried the case or the Court where it was tried. But the objection occurred to mo that the Judge might possibly have his iuind strongly biased in the case, and for that reason I offered the amendment in the shape I have offered it. Me. TINNIN. Mr. Chairman : I think that it is urgently necessary that the people should be represented in a case of pardon, and I ofler this amendment for that purpose. The Judge who resides usually in the vicinity where the crime is committed, and who is conversant with all the facts and circumstances, is certainly more oom|>etent to judge of the crime than strangers who know nothing about it. I maintain that he is the source from whom the pardon should come. He represents the people of the place where the crime is committed. We all know how Governors are worked upon by sympathy. I hojie that m the dis- charge of this duty the Convention will hold that it is necessary for the people to be represented, and they can only be represented by the Judge or person before whom the person was convicted. Mb. TOWNSEND. Mr. Chairman : I hope the amendment will pre- vail. I hope that the people of the State will be represented in the mat- ter of pardons, for it is evident that pardons have been obtained entirely too easy. I myself have seen many instances where the most hardened crimioals, men who bod led long lives of crime, have been pardoned in a very short time. It has been ably argued by gentlemen upon this floor that the law had very little terror for criminals, and it is undoubtediv true. Men who commit crime are sentenced to the State Prison, which is certainly a very little punishment. But if it is distasteful to them, if they do not like the place, they get some one who has political influence, •rsome one who can work on the sympathies of the Governor, and in a very short time they are pardoned out. I know a circumstance that occurred in my county, where a part of the crime was committed in my county, and the party was convicted in an adjoinin^county. He was a man who had led a criminal life for many years. He was convicted and sent to the State Prison for thirty years, and the Governor was about pardoning him out a short time ago upon information that was not cor- rect, because he did not get his mfbrmation from the county or place where he was convicted. I myself conversed with him, and told him something of the man's historjr, referred him to parties that had known the man years before, and I think, after getting the information that he has, the man will not be pardoned. I think that the Governor is often misled, and in this way criminals are pardoned and turned loose on the community to commit fresh depredations and crimes. After the people of the county have been put to all the expense and trouble of convicting them, it amounts to nothing. I hope the amendment offered by the gentleman from Trinity, Mr. Tinnin, will be adopted. Mb. CROSS. Mr. Chairman: It seems to me that there are two iMsons why this amendment should not prevail. One class of cases in which the pardoning power is frequently used is that where a person his been convicted under the influence of some local prejudice or feel- mg against him. These things sometimes reach the Judge and the men who are to compose this Board of Pardons should, as far as possible, be separated from the local influence which caused the conviction. Now, if this Board of Pardons is to consist of three, the three should meet »nd confer together, which will involve great inconvenience. Take the rase of Judge Fawoett, of Santa Barbara County, who occupies a seat •'u ^* would either have to come from a great distance to confer with the Attorney-General and the Governor, or the Attorney-General snd the Governor would have to go to his district. Now this would be a matter of ereat inconvenience, and it would frequently result either that be could not participate in any way in the matter, or else he would have to leave important duties to attend to it. It seems to me that it would be very improper to make the District Judge, the man who bos tned the case, the man to determine whether a man is worthv of being pardoned. Mb. LARKIN. Mr. Chairman: I shall oppose both the amend- ments and theeubstitute ofiered by the gentleman from Trinity, Mr. Tinnin, and for this reason : I believe that the true principle is to place it in the hands of a Commission, and that the majority of that Commis- sion should be elected with a view to the duties and have control of the penal institutions of the State. I believe that two Commissioners could be elected who, in connection with the Governor, could discharge the duty with better satisfaction to the people of the State, both in connec- tion with the pardoning power and with the conduct and control of these institutions. For these reasons I shall vote against both of these propositions, the one offered by the gentleman from Alameda, and the one offered by the gentleman from Trinity. I do not believe that either would work well. I believe there should be elected a Board of Com- missioners who should take charge of the State Prisons and remove the Lieutenant-Governor from that place, and under its management seek to make it self-sustaining. I believe, too, that these Commissioners, residing there, knowing the men and knowing the circumstances, would know better who should be pardoned than any one else from outside reports. I shall oppose these propositions and go for the election of two Commissioners to act in connection with the Governor in the matter of pardons. Mb. SMITH, of Kem. Mr. Chairman : I hope that neither of the amendments will be adopted. It is generally conceded that the par- doning power should be token from politics as much as possible. The oSice of Governor is purely a political one, and so is tlie office of Attor- ney-General. The offioe of Chief Justice is supposed to be non- political, or that position is intended to be left out of politics as much as possible. Now, in the committee it was thought best to unite the Chief Justice with the Governor for the purpose of putting some check upon the politi- cal influence generally brought to bear upon the Governor. If you unite the Attorney-General with him you unite still more political influ- ence. I am opposed also to uniting the Judge of the District Court who tried the case, because I think the general tendency is that Judges in such positions grow to be prejudiced. And then again, as has been mentioned here, if they are far removed from the Capital here, it would be somewhat impracticable for the Judge of a District Court to meet with the Governor or other Commissioners for the purpose of looking into the matter of granting pardons. I do not think, either, that the proposition of my friend on the right, Mr. Larkin, is practicable, and for the same reason : these pfirties will not be together. Now it has been mentioned by the gentleman from Alameda, Mr. Campbell — and that is the objection he raises to the Chief Justice acting on this Commission — that he will not have the time to attend to the duties, and yet that gentleman has stated that there has been only seven hundred and three pardons granted since the organization of the State. Now it will not lake much time if that is the case. Mb. CAMPBELL. That is not the number applied for. The num- ber applied for is probably five times that. Mb. SMITH, of Kem. I presume there will be more applications when there iB,more hope of pajdon, and their hope would increase when there was a Board that could be reached by political influence. Of course the Governor should have something to do with this, but it seems to me that the safest check upon political influence would be that of the Chief Justice, lifted high as he is in dignity and importance. Mb. WHITE. Mr. Chairman : If there is anything in the experience of the past, this thing of giving the Chief Justice the duty of assisting the Governor in this matter seems to me entirely out of place. Each of the Governors, as I read their messages, say that their time is constantly taken up with applications for pardon; that there is hardly a day that the friends of convicts do not come to them and beg of them to liberate some one. More time is occupied by the Governor on this one matter than any other matter that belongs to his duties. Each Governor, and the present Governor, in his message, requests that this thing should be taken out of his hands.' Now, sir, I think we need a change in the whole government of the State Prison, including the pardoning power. I want to move a substitute which will provide for the election of three Commissioners, who shall govern both State Prisons, the insane asylums, and all the institutions under the control of the State govern- ment, and that the Governor shall pardon when unanimously recom- mended by these Commissioners, and under no other circumstances whatever. I would like to have my substitute read and have a word to say upon it. Tax CHAIRMAN. It is not in order at present The question is on the amendment oirereut Low mercy and justice should be mea«ure the Legislature. Mr. HALL. Mr. Chairman: In order that my vote upon the propo- sition now occupying the attention of the oomraitt«e may not be misunder- stood, it is proper that I should say a few words to enable the comtnittee to understand my position. I am a member of the Committee on Par- doning Power. I concur with the committee in so much of the tmeod- ment which they report as prohibits the Executive and Chief Justice from' pardoning a man who has oeen thrice convicted; also that portion which requires these officers to report to the Legislature the reasons of their action ; but to that portion of the proposed article which unites the Chief Justice with the Executive in the exercise of this power I dissent I dissented then and I dissent now, Mr. Chairman. I do not intend to occupy the timeof the committee in any lengthy stetementof my opinion!, yet perhaps at some future da^ I will have an opportunity to do so. At present I nope that the committee will allow me to say, m brief, that 1 object to this union of the Chief Justice with the Executive, not only for the reason which has already been assigned by some of the gentlemen, referring to the mass of business which devolves upon that high judidil officer, but for a greater reason than that. I think it was one of the moet admirable features of our form of government that the three great depart- ments of government are separate and distinct. The spirit of the Consti- tution now and which we snail propose, aims at the complete separation of the three essential and leading powers or branches of government, the legislative, executive, and judicial. As was very ably said the other diy in the report made by a minority of the committee, on the subject of the case of the honorable delegates from Sante Barbara, there should be no junction, or overlapping, or blending, of these separate powers. For that reason, Mr. Chairman, I object to the uniting of the Chief Justice with the Executive. This power has always been, in time of peace and in other countries, vested in the Crown. It seems to me that the Executive of the State is the proper successor, if I may use the language, of the king, or the highest officer of Stete. For that reason, it seems to me that the Execu- tive is the proper custodian of this power. He has exercised it in the past without detriment to the public, and certainly with benefit to the public. But there is this reason in addition — I have stated the reason why I object to the report of the committee, but I will add this— that the Chief Justice has very frequently passed upon cases where the ground of the appeal was, that the evidence upon the trial below justified the proposition that a reasonable doubt existed as to the guilt of the parties. When it oomes before him, sitting in a judicial capacity, he passes upon that question. When it oomes before him — if it is to be permitted to come before him — a^in, sir, in the form of an appeal teking on the shape of an application for a pardon — ^it is referring the matter to him a second time. I object to the proposal to unite the Attorney-General with the Execu- tive in the discharge of this duty, because he is the prosecuting officer of the Stete. He has been an active prosecutor ; he nas had the man- agement of the case on the part of the people; he represents the people; and it seems to nie that it would be unfair to the claimant himself that either of these officers should, with the bias that their minds have received, be called upon to review this whole case and determine again whether he is or is not guilty, or whether there be or be not reasonable grounds for a pardon or comrautetion of sentence. With much more force does this apply to the Judge of the Court who tried the case. For these reasons I must oppose them all. Mb. HUESTIS. Mr. Chairman : I move that the committee do now rise, report progress, and ask leave to sit again. Carried. IN CONVENTION. Thb PRESIDENT. Gentlemen: The Committee of the Whole have directed me to report that they have had under consideration the article on the pardoning power, report progress, and ask leave to sit again. The hour having arrived, the Convention took a recess until two o'clock AFTERNOON SESSION. The Convention reassembled at two o'clock p. m.. President Hogs in the chair. Roll called and a quorum present. Mb. HUESTIS. I move that the Convention resolve itself into Com- mittee of the Whole, the President in the chair, for the purpose of fur- ther considering the article on the pardoning power. Carried. IN COMMITTEE OF THE WHOLE. Thr CHAIRMAN. The question is on the amendment offered by the gentleman from Trinity, Mr. Tinnin. Mr. McFARLAND. Mr. Chairman: I do not desire to occupy any time in the discussion of this subject. I have listened to this discussion with great interest, and when it commenced my mind was somewhat undecided as to what we ought to do ; but I am satisfied from the dis- cussion that the best thing we can do is to leave it where it is, with, perhaps, the exception of the amendment to the effect that a person being thrice convicted shall not be pardone^'—tt seems to me that there Digitized by Lioogle Nov. 2, 1878. OF THE CONSTITUTIONAL CONVENTION. 277 are greet objections to the pardoning power being given to the Chief Jnitice. The business of the Chief Justice is to determine in the case of a criminal whether he has heea legally convicted; whether he has had bis rights. I do not think his mind should be abstracted from that duty to determine whether, notwithstanding he has been legally con- victed, he ought to be free. In this State are many varied questions which crowd our Supreme Court all the time, and the Chief Justice should not be compelled to devote one half of his time to duties like this. It seems to me that the Attorney-General would be a more inappro- priate officer to discharge that duty. It is the part of the Attorney- General to argue the ease for the State in all cases. We all know that when the Attorney-General makes up his mind that a conviction ought to stand he enters into it with his whole energv, and undoubtedly, insensibly to himself, he is in a frame of mind wlien he gets through that would render it very hazardous to put it into his hands to say whether a man should be pardoned or not. The objections to the Judges below are nunierous. It seems to me that the safest way is to allow this power to remain where it is. The erealest objection is that there is too much pressure «pon the Governor. Well, sir, if we had another man there would simply be double the presBore. If we take any other officer except those named we might put it into the power of some inferior person to have coequal say with the Governor. We have been fortunate enough in this Stale to have men of very fair reputation and character elected by the people to the office of Governor, and it seems to me that we will make bad work by nniling with him some other person. I propose, when in order, to offer a substitute so as to leave the matter just where it is, with the exception of the provision that a man convicted thrice shall not be pardoned. I cannot come to any other conclusion. Ma. BARNES. Mr. Chairman: I see no reason why the pardoning power should not be lodged where it is. What the people object to is that when a man has once been tried and convicted and sentenced, the Governor shall interfere and pardon him. It is not the power nor the lodement of it in the person of the Governor that is objected to, but it is the exercise of it in cases in which it has occurred. It seems to mo that it would be useful if there was in the Constitution some restriction thrown around the panjioning power — not only useful but necessary, and I am sure it would be a very popular measure. It never was intended, Mr. Chairman, that the Governor of the State should play the role of a sentimental philanthropist; that he should undertake to forget what is due to those who suffer by tlic commission of crimes, and what is due to the State in bis sympathy for those who commit them. I do not think it was expected when the power was S'ven to him that he should yield to every importunity, and even if it IS been so, that is no reason for making a change in the Constitution. It is said that the friends of criminals are permitted to beseige the doors of his o6Sce and lie in wait for him and wear out his patience, until at last he yields out of tenderness for himself — out of sympathy and tenderness for himself. I can hardly think it possible, that a Governor of this State would undertake to exercise the pardoning power upon any such miserable and cowardly ground as that. I prefer to think that no Governor ever did or ever will make that the basis for the exercise of the pardoning power. Now, I say, that it was not expected that the Governor should yield to every importunity, nor do I think that the Governor should sit as a kind of ex parte Court to review the decisions of the Courts, to pass upou questions of law, and to under- take to make himself a kind of Court of Appeal in criminal cases, which has sometimes occurred. Hor do I thinic it was intended by this constituUonal power to give him the right to sit down as a sort of thir- teenth juror to try the case, after twelve others have decided it, to pass upon it, and render a different verdict. I think the only object was that he might be able to relieve the innocent from the consequences of a judgment of conviction; for we must bear in mind that the pardoning power involves not merely a relief from the punishment and effects of the commission of the crime. It blots out the offense. It declares, so lar as the law is concerned, that the prisoner or convicted man is guilty. It has an analogy to the sort of pardon, that is supposed to be extended by Divine grace. It not only relieves him from punishment, but blots out the offense altogether, and leaves him pure and white and spotless. You appl^ that principle to the pardoning power on the cases that have occurred in this Stat«; criminals pardoned for political considerations and political considerations solely ; criminals pardoned because of the importunities of those who suffered by reason of their incarceration, and to whom the criminals should have been a protection and support. These have been the reasons for pardons, and almost the only ones, except perhaps the consideration of great good conduct upon some occa- sion of great emergency in the prison, in the case of a great conflagration or something li ke that, where a man has merited something and deserves restoration to citizenship. Therefore I see no reason why the power should be destributed or scattered. I agree with the ^ntleman from Sacramento, Mr. McFar- land, that the more Commissioners you -have, the more pardons there will be; the more men there will be to be approached. While we may have great confidence in the head of the Chief Justice and in the adamantine character of his heart, yet where there are two or three associated in a matter of this kind, it becomes a question of trade and •xuter. You pardon my u>an and I will pardon yours; and so they deal out pardons between themselves for every sort of object except the right one. I think a restriction should be made in the pardoning power. It should be contained in the Constitution, and be an inhibition upon the Governor, except for certain specified causes, as, for instance, except it should be made to appear that the person who had been convicted was tu^nstly convicted by reason of perjured testimony ; or by reason of the discovery of material facta subsequent to the conviction, establishing the fact of his innocence pf the crime; where there is proof of his insanity; or for some other good and substantial reason. This power ought not, in my judgment at least, to be exercised indiscriminately, without accountability. At the proper time I shall move that this sub- ject of the pardoning power be referred to the Committee gn Pardoning Power, witn instructions to report to the Convention whether or not there can be some clause added to the section which is now here sought to be amended, under which the pardoning power may be reasonably and wisely exercised. Mb. McCALLUM. Mr. Chairman : I ask to bear the amendment of the gentleman from Trinity, Mr. Tiunin, read. Thk SECRETARY read: Amend by striking out " the Chief Justice of the Supreme Court " and inserting in lieu thereof " the Attorney-General, and the Judge before whom be was convicted, if living in this State." Mb. McCALLUM. Mr. Chairman : There is one objection to the last amendment, which I understand is the amendment upon which we will vote first. There is no provision there, except that the Judge, if living in this State, has this pardoning power. By the terms of the article it must be unanimous. If that Judge were living in this State and incom- petent for any of the many causes which render Judges incompetent, by disease or- otherwise, of course in such a case there could be no pardon at all, and that would shut the doors of mercy on mankind. Now, sir, I, of cuur^, shall vote against that. As it now reads it certainly would not meet the approbation of the Convention, but with a view of what may come up subsequently I propose to vote also against the other pend- ing propositiens. I am perfectly satisfied that after a gentleman has had the very extensive practice of Judge Campbell, and I suppose almost uniformly upon the side of the defendant; that if he is satisfied with the Attorney-General as being one of the Commission, that the remainder of the Convention may say that it is a very good argument in its favor. I believe that there should be three officers — the Governor, the Attorney- General, and the Chief Justice. I have looked over the Constitutions of the different States, and it is proper, perhaps, to say, if my examination is correct, that not a single instance can be found where this pardoning power is taken from the Executive. It is in the Executive of the nation, as to national criminal laws. In certain States there are Commissions — as, for instance, by the Governor and Council in Maine, by the Governor and Council in Massachusetts, by the Governor and Senate in Rhode Island ; and also a similar provision in Vermont, by the Governor and certain State officers, which now comes nearly to my idea, admitting, as I do, that there is no system which can be suggest^ to which plausible objections cannot bo made. I say that this meets my idea when it comes to the Governor and State officers. I suppose if it were any new Com- mission they would be paid officers, and that would unnecessarily increase the salarieci officers of the State. If they be not paid they will be likely to discharge their duties, as such officers do, without much attention to them. It would be a serious duty to impose upon persons who receive no compensation. In our sister State here, of Nevada, there is an idea \thich I think is better than that which is now pending, or either idea now before the Committee. The provision is this: "The Governor, Justices of the Supreme Court, and Attorney General, or a m'ajor part of them, of whom the Governor shall be one, may, upon such conditions and with such limitations as they may think proper, remit fines and forfeitures, com- mute punishments and grant pardons after convictions in all cases, except treason and impeachment, subject to such regulations as may be Srovided by law relative to the manner of applying for pardons." ow, air, by adopting the provision that there shall fSs the Attorney General, Chief Justice of the Supreme Court, and the Governor, will get very nearly the provision in the Nevada Constitution, and I think have it l)e«t. I do not see any good reason for the objection to a majority. In all Commissions which generally involve the idea of more than two, the majority act, and why not in this case? But if that provision is not acceptable here is a provision in the Indi- ana Constitution which I submit is better than the one now pending: "Provided, however, that the General Assembly may, by law, constitute a Council, to be composed of officers of State, without whose advice and consent the Governor shall not have power to grant pardons in any case, except such as may by law be left to his sole power." Now I submit that if these amendments are voted down that the provisions in the Constitutions of either Nevada or Indiana are preferable. I propose, if these amendments are voted down, to offer an amendment that will vest the power in the Governor, Chief Justice, and Attorney-General, or a majority of them, of which the Governor shall be one. Mb. GREGG. Mr. Chairman : I suppose there is no reason really why the pardoning power should be taken from the Governor. But the manner in which pardons have been granted is something I could never understand. A man who is sentenced from one to two years comes back to the people and is not restored to citizenship, and a man who is sentenced to serve fifteen or eighteen years is simply pardoned by the Governor and restored to citizenship. I think the matter should be referred back to the committee, so that there could be remissions of sentence instead of pardons. This thin^ of a man being pardoned by reason of ill health, and coming back into the community and being restored to health, I cannot understand. I really think that a remission should be given, rather than a pardon, and I say in that whatever power is here vested should be for a remission of penalties rather than the power of pardon. I think that this branch of the proposition ought to be referred back to the committee and be considered by them, and some limitation placed upon the power of pardon. Mb. WICKES. Mr. Chairman: The past history of executive inter- ference shows conclusively that the pardoning power has been stretched to its utmost limits. I believe that this pardoning power should be vested in the highest tribunal in the State — the Supcerae Court. Il| State — the Supcerae Court. Il| Digitized by VjOOQ IC 278 DEBATES AND PROCEEDINGS Saturday, should be lodged in the hands of men who are made inTulnerable by their position; who, by their habits of thought and their veneration for law and justice, are best fitted to exercise this high and important function. I am opposed to vesting this power in the hands of Coramis- rioners elected by tne people, because I do not believe in multiplying or creating offices. There is no reason why this power should not be vested in the highest tribunal in the State. Mr. BARRY. Mr. Chairman: As a member of the Committee on Pardoning Power, I wish to say but a few words on this question. The matter has involved considerable discussion, and I believe there would be no gentleman in this body but who would agree with me in saying that there is a great necessity for a change in the pardoning power. There ought to tw no man but who is aware of the abuse of the power that has existed in the hands of the Governor. We all know the pres- sure that is brought to bear upon him. We all know the efforts that are made by friends to secure pardons ; the lengthy petitions that are gotten up and signed, not by the friends of the prisoner alone, but by everybody that they can procure to assist in making the petitions as formidable and lengthy as possible to induce the Governor to pardon the criminals. There are many who will sign petitions simply as a matter of personal friendship. Not that they believe that the prisoner should be pardoned, but as a matter of kindness and consideration to those who present the petitions. It is often the case that the ladies, in their mercy and sym- pathetic feelings, will intercede with theGovemorinbehalf of criminals. There are but few gentlemen who can stand the persuasive eloquence of the ladles, and in a case like this, where the ladies appeal to the sympathies of the Governor, we have but a few instances, a tew isolated cases, where they have withstood arguments or appeals which are pre- sented with so much strength and power. How, sir, I hold that there have been a great many cases where par- dons have been granted where they should not have been; that the interests of justice require that he who is convicted of a crime should suffer the whole penalty of the law. If a man deserves to be hung, unless the best of reasons shall be found to exist which could not be produced at the time of the trial, unless they are produced, then that man should suffer the penalty fixed by the offended law. The good order, safety, and peace of society requires the swill and certain punishment of criminals. The Governor will not resist the influence that is brought to bear upon him because he oflentimes is in doubt, and sooner than allow the law to take its course, and the prisoner to be returned to the State Prison, there to remain for the years for which he was sentenced, he will err on the side of mercy. I do not say but what all men should do this, but I do say that if we have a Pardoning Board, the chances would not be so great as they now are with the Governor alone. I am opposed to associating the District Judge, on the ground that it is impracticable, and for the reasons stated by the gentleman from Nevada, Mr. Cross. The District Judges could not come here to consult with the Governor in a matter of this kind. As regards being written to, that would take too much time in a matter of such importance. The whole matter would be virtually defeated by delays. Tlien again, the Judge who tried the culprit would not be the proper person, because he is sur- ounded by the influence that was brought to bear either in favor or against the prisoner. He lives in close proximity to the friends of the prisoner, who leave nothing undone at the time of the trial, and will leave nothing undone to secure his pardon. There is always a high state of excitement at the time of the trial of a person upon a charge of murder or any other ca.se of felony, and it is necessary that we should fix the pardoning Board in such a way thnt tliey would only be inclined to do simple justice, to grant pardons only where necessary in the inter- eet of justice — public justice, not simply personal justice. I do not think the District Judge should be selected, and as to the Attorney-General I believe that he would be a proper person associated with the Chief Jus- tice. I do not see any particular objection to him, and I believe that he is likely to be a man of that character and sense of dignity that no political influence would prevent him discharging his duty in a matter of this kind. As regards the technical objection made by the gentleman from San Joaquin, Mr. Hall, to associating the Chief Justice with the Governor, that it would combine the judicial and executive departments, I do not see any good reason in that It would simply be ex oflJcio. I believe that it would have been best to associate the Supreme Court with the Governor and Attorney -General. Many members of the committee argued that it would make the Board too unwieldy, that (hey could not get together, and there would be a chance for too much difference of opinion. While some believed that might be best, there were others, with whom I was willing to agree, thought it might be best to leave it wiih the Chief Justice and the Governor. But I iusist upon it that the power should be taken from the Governor alone and invested in two or more officers. Mr. CAPLES. Mr. Chairman : There is one fatal objection to every proposition pending before the committee in regard to the exercise of the pardoning power, and I think that that objection will strike every gentleman at once upon the first view of the case. It is simply this: the wide margin of discretionary power that is vested in the Governor, or the Commission, or whoever may exercise this power. We have been told of the pressure that is often brought to bear and will be brought to bear — a pressure that is cruel to the functionary exercising this power, or the Commission, I care not whether it be one man, three men, or five men. It is a cruel duty to impose upon any man to make him the vic- tim, if I may use the term, of that pressure that is brought to bear and will be bronght to bear in every case. Therefore I hope that the prop- ositions will all be voted down, and that, as suggested by Colonel Barnes, the whole matter will be referred back to the committee, with instruc- tions to propose a mode that will limit or narrow that discretionary Sower and nx restrictions and limitations upon the exercise of the par- oning power. I do sincerely hope, Mr. Chairman, that the propositions will all be voted down, and that the suggestion made by Colonel Bsmct will be carried out. Mr. TUliLY. Mr. Chairman : Let us see what would be the effect of the adoption of this amendment. Let us suppoae that a man is indlctoi and tried in a District Court. The Attorney-General, perhaps, gnes down and assists in the prosecution ; the man is conv icted ; he makes a motion for a new trial, and it is argued and denied; he goes to the Supreme Court; there the judgment is affirmed; he petitions for a rehearing; the case is re-argued, and again the judgment is affirmed; and ailerall that they turn the man over, who wants to be pardoned, to the District Judge and the Attorney-General and the Chief Justice of the Supreme Court — men who have listened to the trial of the case, and who have worked themselves up, either justly or unjustly, to the conviction that the man is a felon ! It strikes me that the tribunal to pass upon the question as to whether a man should be pardoned or not should be unbiased and unprejudiced — without any preconceived notions as to his guilt or innocence. For these reasons Ihope that the amendment will be voted down, and that the pardoning power will be left where it is — in the hands of the Governor. In regard to the idea of selecting from various parts of the State, I think, myself, that that would prove to be a trading machine. Each Commissioner would have his friend Is his own district, and he would be very apt to say, " If you pardon my friend I will pardon yours." It would result in dividing the responsi- bility, and I do not think that any good would come m>m any sucb proceeding. Now, it is asserted by some gentlemen that the pardoning power ha< been abused. I deny it. I have not seen, read, or heard of any state- ment that warrants that conclusion. I assert it, without fear of suc- cessful contradiction, that the statistics of this State do not warrant the as.'<«rtion. Gentlemen seem to complain, and the people seem to com- plain, that criminals escape. If such is the case, it is their own fault But I deny that proposition. Criminals are tried bv juries thjt come fresh from the people, and it is their fault if criminals do escape. I am in favor of leaving this question where it now is, with the Governor, I am oppo.'vd to driving the Chief Justice into this net of criminals, or that nc should be traveling around the country, neglecting his dnty, and ascertaining whether a man is to be pardoned or not after be is sen- tenced to the penitentiary, [Ma, TINNIN in the chair,] Thr CHAIRMAN. The question is on the amendment offered by the gentleman from Trinity, The amendment was lost Thr CHAIRMAN. The question now recurs on the amendment offered by the gentleman from Alameda, Mr. Campbell. Ma. FILCHER. Mr. Chairman: I move to amend to this effect, that "the Governor, Attorney-General, and another to be appointed by them, shall form a Board, which shall have power, by unanimous vote, to grant pardons," etc. It Is an old idea of mine that the pardon Ing power should be vested in a Board or Commission, and it occurs to me that a Board con- sisting of three such persons would be better than any other. It bs< been proposed that since we do not propose to pay these Commissionen anything for this particular duty that we should designate three Stale officers, but while the Governor and Attorney-General will always be suitable persons the third officer might not For instance, while one Controller might be a good mau for this duty the next one elected might not. Hence I propose in this amendment to have the Governor and Attorney-General designate the third member. Mb. CASSERLY. Mr. Chairman: In this case, in my bumble judg- ment, as in many others, the existing Constitution is better than any of the amendments. I think, sir, that what we want in our government Is concentrated responsibility in the Executive, not a divided or watered responsibility. With a concentrated responsibility you are sure to hare your work well done as far as it is in human nature to do it. Without It you have something which is neither one thing nor the other. There- fore I am in favor of the present clause in the existing Constitution in preference to any of the amendments I have beard. Mr. Filcher's amendment was lost Mr. McFARLAND. Mr. Chairman: I desire to offer an amendment reading in this way: Amend by striking out all after the word "re- prieves," in the first line, down to and including the word " grant," in the third line; strike out the word "they," in the fifth line, and insert "he;" strike out the words "and Chief Justice" in the fifteenth line. That amendment will leave the section just as it is in the present Con- stitution, except the addition of the provision that a criminal shall not be pardoned who has been thrice convicted. It leaves the pardoning power in the hands of the Governor, except in cases of treason ana impeachment, as in the old Constitution. Mb. HALL. I would like to inquire whether it retains the provision requiring the Governor to report his reasons to the Legislsture. Thr CHAIRMAN. There is so much confusion that it is impossible to hear what is said. Mb. McFARLAND. Mr. Chairman: I do not know whether the committee understands the proposition. I desire that it should under stand it My amendment simply returns to the original Constitution. It gives the pardoning power to the Governor, except that it has the provision reported by the committee that a party convicted thrice shall not be pardoned. The amendment was lost. Mb. SH after. Mr. Chairman : I desire to have a clerical error cor- rected, which by some oversight has crept into the printed amendment I see that there is a misprint In the fourteenth line. It reads "pardon and reprieve ; " it should read " pardon or reprieve." Thr chairman. The correction will be made. Mr. WICKES. Mr, Chairman : I wish to offer the following amend- ment : Digitized by Google Nov. 2, 1878. OF THE CONSTITUTIONAL CONVENTION. 279 S " The power of pardon and reprieve ia vested in the Supreme Court. It is legal only upon the unanimous motion of the members thereof. Their decision, with the facta or conditions upon which it is granted, shall then be forwarded to the chief executive, and it is made manda- toiy on him to issue his pardon over his signature and under the great aeil of the State." The amendment was lost. Mr. LARKIN offered the following amendment : " The Legislature shall provide by law for the election of three State Wardens, to be elected by districts of e<]ual population as near as may be practicable, but no county shall be dividea in forming such districts. These State Wardens shall hold their office for four years, and shall have charge and management of the two State Prisons, and the two Insane Asylums, Asylum of the Deaf and Dumb, and all other chari- table and penal institutions conducted and supported by the State, onder such regulations and provisions as the Legislature shall prescribe by Uw. " The first election for State Wardens shall be at the first general elec- tion held under this Constitution, and they shall be inaugurated on the aame day thereafter as the Governor and other State officers are to be inaaiurated. "The Board of State Wardens shall constitute a Board of Pardons, and the Governor of the State shall never pardon any person convicted of crime, except at the unanimous request of the Board of Pardons. "The Legislature shall give effect to a judicious system of credits for |0od behavior, to convicts in the State Prison, to l>e carried out by the Bute Wardens. " The State Wardens shall receive an annual salary for their services of two thousand four hundred dollars a year, and such clerical assist- ance as the Legislature shall deem necessary; but no clerk in their employment shall ever receive a higher compensation than eighteen hundred dollars per annum." Mr. LARKIN. Mr. Chairman: The object of this amendment is to provide a complete system which will take in all the charitable and penal institutions of the State, and more especially to select men from aiSerent portions of the State who will be selected for those qualities vbich will fit them to discharge the duties of this important trust, instead of having them selected or appointed by the Governor. It will be a permanent institution of the State. In the past the management of our prisons has been subject to constant change. The class of men vho would be elected to take these positions from their known qualities and acquaintance with the management of criminals, would be the iioper men to recommend to the Governor the pardon of these men. 'he Legislature could regulate this matter so that there could be uni- form punishment for the same crime. I believe that the power should be vested there. I believe that it is for the best interests of the State that it should be taken out of politics and placed in the hands of men who (hall be selected exclusively for that high trust. Mr. white. Mr. Chairman : I desire to draw the attention of the committee to one point. This provision says that the pardon shall only be ininted on the recommendation of the Board of Wardens. It does not say that the.Govemor shall pardon on their recommendation, but that the Governor shall not pardon without the unanimous recom- mendation of the Wardens. It still leaves the Governor the power to refuse a pardon if he sees proper. In that way the power is concen- trated; Mr. BARKES. Mr. Chairman : I rise to a point of order. The sub- stitute suggested is not in order, because it is not germane to the subject under consideration. Mb. white. It provides for a Board of Pardons. Mr. B.4RNES. It does refer to the subject of pardons, but it also proposes to appoint Commissioners to take charge of all the public insti- tutions of the State, the City and County of San Francisco, and every- body else. Mr. WHITE. It does not. Tbr CHAIRMAN. The Chair will rule that the point of order is veil taken, as the proposed substitute includes provisions relative to the Insane Asylums, Asylum for the Deaf, Dumb, and Blind, and other matters not germane to the subject of pardons. Mr. WHITE. I appeal from the decision of the Chair. Mr. lark IX. I second the appeal. Mr. WYATT. I do, too. Mr. barton. I second the appeal. Mr. white. I say that it is impossible to discuss this matter of |he principle of pardons correctly, except as connected with the position in which these other institutions are placed, and that therefore it is right that this discussion should be allowed to take the whole thing into con- Bderation at the same time. Mr. ANDERSON. Mr. Chairman : The Question is on the appeal, I believe. I think that if the fientleman will stop and consider for one moment, he will see that this amendment is not in order. If this amendment is in order, then by way of amendment to any other pro- position we might get the whole Constitution in on a single proposition. 1 hope the decision of the Chair will be sustained by the committee. Tbr chairman. The Chair rules that the amendment is not in onler, because it refers to matters connected with the Insane Asylums, the Asylum for the Deaf, Dumb, and Blind, and is not germane to the subject under consideration. The question is. Shall the decision of the Chair stand as the judgment of the committee T . Mr. NOEL. I move to lay the appeal on the table. Gtrried. Mr. BLACKMER. Hr. Chairman: I desire to offer an amendment, with the permission of the Chair. It is' this : Strikeont all after the word " impeachment," in the fourth line, down -H to and including the word "pardon," in the seventh line,and insert the following : " And such power shall be exercised only iu case where new evidence is discovered after judgment establishing the innocence of the convicted party or the injustice of the sentence." I believe that the ^reat trouble with the pardoning power is that it is not restricted. I believe that justice should be meted out to prisoneia whenever the sentence has been passed justly. I do not believe there should be any escape from the sentence. But I believe whenever there has been discovered new evidence to prove the innocence of the party convicted, or to prove the injustice of the sentence, if the innocence is not proved, there should be some power to grant a pardon or reprieve. My amendment will cover that case. It will restrict the power of pardon and reprieve to those few cases where there is evidence to prove that the power ought to be exercised ; for that reason I offer this as as amendment. Mb. HUESTIS. Mr. Chairman : It seems to me perfectly evident that this committee, with barely a majority present, is not in a proper condition of mind to discuss so important a question as this at this time. In addition, the Chairman of the committee, whom we rely upon prin- cipally to protect the report of the committee, is absent necessarily, and I submit in all candor that it would be only providential to dispense with the further consideration of the subject for to-day. I, therefore, move that the committee do now rise, report progress, and ask leave to sit again. Mr. FILCHER. I ask the unanimous consent of the committee before it rises to offer a resolution, simply to test the sense of the com- mittee on this proposition. I offer it Wause I believe such a test will greatly facilitate our business afterwards. [Cries of " I object."] Mr. Huestis' motion prevailed on a division, by a vote of 48 ayes to 33 noes. IN CONVENTION. Tbe CHAIR. Gentlemen : The Committee of the Whole have in- structed me to report that they have had under consideration the report of the Committee on Pardoning Power, report progress, and ask leave to sit again.- Mr. TULLY. [At three o'clock r. m.] I move we adjourn. Lost. KOTtCK. Mr. huestis gave the following notice: I taeroby give notice that at the next regular sceaion of the Convention I will move to strike out, in tbe Standing Uulss, Bule Serenty-one, and insert the following : BVLC SCVCXTY.OKI. In all cases where propositions or resolutions embodjrlng matter* propoaed to be Introduced into the Constitntlon are printed, it must be 67 a maioiity vote of tbe Convention ; but reporta of standing committees aball b« printed without anjr Tot* being had. rBOPOSID TIST. Mr. FILCHER offered the following: Re$olvtd, That it is the sense of this Convention that the OoTemor ahouid b* diTeated of the exdualre powor of pardoning crimiDala. Mb. FILCHER. Mr. President: I offer this simply to test the Con- vention. If the feeling in favor of leaving the power where it is pre- dominates let us know it and then we will know what we are doing. Mb. huestis. Mr. President: I submit that it would be no test when there are fifty of tbe members absent ADJODBHHBIIT. Mb. McF^RLAND. Mr. President: I move that this Convention do now adjourn until two o'clock Monday. We are going to adjourn now because there are so few members here. It is evident that these absent members will not be here on Monday morning, and what would it amount to if we meet at that time. We might just as well adjourn until these gentlemen come back. Me. GRACE. Haven't we got a quorum here now T We ain't respon- sible for the gentlemen who are not here. Mb. BIGGS. I move to amend by making it eleven o'clock on Monday. Mb. MoCALLUM. I suggest that these conditions be left out. The point I make is that a motion to adjourn cannot be coupled with condi- tions. This thing keeps coming up every day, and I make that point. Mb. McFARLAND. Undoubtedly a motion to adjourn to a stated time ia in order. Now, if gentlemen are opposed to adjourning until two o'clock, or until eleven o'clock, they will vote it down. Mr. MoCALLUM. Undoubtedly the motion is not in order. I sub- mit that it is done as a matter of practice, because no objection is made. The very point was raised here on the rules, that a motion to adjourn should not be coupled with conditions, and everybody said that a motion to adjourn cannot be coupled with conditions. Therefore, I suggest that the time be first fixed, and in future let us confine ourselves to the question of adjournment without conditions. Mb. grace. I move that when the Convention adjourns, it adjourn until ten o'clock on Monday. Me. huestis. I raise the point of order that there are two motions on the subject of adjournment, and that the gentleman's last motion is not in order. The CHAIR. The Chair rules that the question is subject to two amendments. The first motion was to adjourn until two o'clock on Monday, the next to adjourn until eleven o'clock, and the last to adjourn until ten o'clock. Mb. WATERS. I move we adjourn. Carried. And at three o'clock and five minutes p. m., the Convention stood adjourned until Monday at ten A. M. Digitized by Google 280 DEBATES AND PROCEEDINGS Monday, THIRTY-EIGHTH DAY. Sacbamento, Monday, November 4tb, 1878. The Convention met in regular session at ten o'clock a. u.. President pro tern. Belcher in the chair. The roll was called and members found in attendance as follows: Andrews, Holmes, PuUiam, Barbour, Howard, Reddy, Barry, Huestis, Beed, Barton, Hughey, Reynolds, Belcher, Hunter, Rhodes, Blackmer, Boggs, Inman, Johnson, Ringgold, Rolfe; Boucher, Jones, Schell, Brown, Joyce, Schomp, Burt, Kelley, Shoemaker, Caples, Keyea, ShurtlefiF, Charles, Kleine, Smith, of Santa Clara, Cowden, Laine, Smith, of 4th District, Cross, liampson, Smith, of San Francisco, Crouch, Larkm, Soule, Davis, Larue, Stedman, Dean, Lavigne, Steele, Dowling, liOWIS, Strong, Doyle, Lindow, Stuart, Dudley, of San Joaquin, Mansfield, Sweasey, Dudley, of Solano, Martin, of Santa Cruz , Sweuson, Eagon, McCallum, Swing, Edgerton, McComas, Terry, Estee, McConnell, Tinnin, Evey, McCoy, Townaend, Fawcett, McFarland, TuUy, Filcher, McNutt, Turner, Finney, Miller, Vacquerel, Freeman, Mills, Van Dyke, Freud, MoSat, Van Voorhies, Garvey, Moreland, Walker, of Tuolumne, Grace, Morse, Waters, Gregg* Nason, Weteter, Hale, Noel, Weller, Harrison, O'Donnell, West, Harvey, Ohleyer, O'SuUivan, White, Herrington, Wilson, of Tehama, Hilbom, Porter, Wickes, Hitchcock, Prouty, AB8IMT. Wyatt. Ayers, Farrell, Nelson, Barnes, Glascock, Neunaber, Beersteoher, Gorman, Overton, Bell, Graves, Shatter, Berry, H^r* Stevenson, Biggs, Thompson, Campbell, Heiskell, Tuttle, Casserly, Herold, Walker, of Marin, Chapman, Condon, Kenny, Wellin, Lindow, Wilson, of 1st District, Dunlap, Martin, of Alameda, Winans, Estey,*^' Murphy, Mr. President. Fourth— Of the taxable property in the City and Countv of San Fraa- cisoo for the current fiscal year (t. e. eighteen hundred and seventy- eight-nine), together with the tax rate for said year. I have no data in this office from which to give the debts of the several cities of the State. In order that you may understand fully for what the State makes her large annual expenditures, I give the items in detail, which make op the sura of three million seven hundred and ninety-seven thousand eight hundred and sixty-four dollars and sixty-eight oents expended for the twenty-ninth fiscal year, ending June thirtieth, eighteen hundred and seventy-eight. Tours respectfully, W. B. C. BROWN, Controller. BTATK DIOIT. First— The total funded debt of the State at the present date (October thirty-first, eighteen hundred and seventy-eight) is: LEAVE OF ABSENCE. One day's leave of absence was granted Messrs. Glascock, Herring- ton, McComas, Weller, Stevenson, Moreland, McNutt, Tuttle, Hager, Dunlap, O'Sullivan, Hitchcock, Schomp, Condon, and Keyes. Indefinite leave of absence was granted Mr. Biggs on account of sick- ness. THE JODSNAL. Mb. BLACKMER. I move that the reading of the Journal be dis- pensed with, and the same approved. Carried. COmnTKICATIOK. The PRESIDENT pro tern. The Chair has received a communication from the Controller of State, in response to a resolution adopted by this Convention on October thirtieth, m regard to the State indebtedness. What is the pleasure of the Convention? Mb. GREuG. At the request of Mr. Casserly, the Chairman of the Committee on Slate Indebtedness, I move that the report be printed forthwith out of its order. The motion prevailed. The following is the report : Opfiob or CoNTBOLLER, October Slst, 1878. The Honorable President and members of the Constitutional Convention : Gektlewkm: In compliance with your resolution of yesterday's date, I have the honor to transmit herewith a report as follows : First— at the State debt, etc Second — Of the receipts and expenditures of the State government since its organization, together with the taxable property and the State tax rate for each of said years. Third — Of the county debts and taxable property for the years eigh- teen hundred and seventy-five-six and eighteen hundred and scventy- six-seven, together with the State and county tax rates for each of said years. SUIES. Civil Bonds of 187S State Capitol Bonds of 1870. State Capitol Bonds of 1872. Soldiers' Relief Bonds Civil Bonds of 1857 Civil Bonds of 1860 Total. Bate. 6 per cent.. 7 per cent.. 7 per cent.. 7 per cent.. 7 per cent.. 7 per cent.- AmoQnt $2,801,000 00 250,000 00 250,000 01 »5,500 00 5,000 00 1,500 00 $3,403,000 00 As all the bonds of the issues of eighteen hundred and fifty-seven and eighteen hundred and sixty have been called in, and the interest ceased on the thirty-first day of July, eighteen hundred and seventy-five, the entire funded debt bearing interest at this date will only amount to three million three hundred and ninety-six thousand five hundred dollars. The annual interest on this sum amounts to two hundred and nine thousand seven hundred and forty-five dollars; but as the State has guaranteed interest to the amount of one hundred and five thouEsnJ dollars per annum on Pacific Railroad Bonds (see Act of April 4th, 18M, Statutes 1863-4, page 344, entitled "An Act to aid the construction of the Central Pacific: Railroad," etc), the annual amount of the interest to be raised is, therefore, three hundred and fourteen thousand seven hun- dred and forty-five dollars. The following table shows the disposition of the funded debt of the State on the thirty-first day of October, eighteen hundred and seventy- eight: Kind or Dan. Bonds held in private hands Bonds held in trust by State Treasurer — School Fund... Bonds held in trust by State Treasurer — University Fund. Total $738,000 00 1,737,500 00 927,500 00 $3,403,000 00 The interest-bearing debt of the State on the thirty-first day of October, eighteen hundred and seventy-eight, is as follows:' Kind or Debt. Bonds held in private hands I $731,500 00 Bonds held in trust by State Treasurer— School Fund...! 1,737,500 00 Bonds held in trust by State Treasurer— University Fund.' 927,500 00 Total $3,396,500 00 The bonds held in private hands and bearing interest at this date consist of: Series. Bate. AmoDDt State Capitol Bonds of 1870 7 per cent-. 7 per cent- - 6 per cent. - $14,000 00 95,500 00 Soldiers' Relief Bonds Civil Bonds of 1873 622,000 00 Total $731,500 00 The interest on these bonds amounts to forty-four thousand nine hun- dred and eighty-five dollars ($44,985) per annum. There is at the present time in the Interest and Sinking Fund the sum of eighty-nine thousand dollars applicable to the redemption of bonds, which, if the bonds could be called in, would reduce the State debt to three million three hundred and fourteen thousand dollars, Sexond — Showing the valuation of real and personal property, the rate of taxation on each one hundred dollars, the receipts, expenditures, and bonded and floating debt, from first to twenty-ninth fiscal year, inclu- sive, "as shown by the Controller's reports:" Digitized by Google Nov. 4, 1878. OF THE CONSTITUTIONAL CONVENTION. 281 Te«r. AMcwedTalutof propertj. Tax for State pnrpoaw. Beoetpta. Sxpendltures. Bonded and Floating Debt 1849-50. 1850-51. 1851-52. 1852-53. 1853-54. 1854-55. 1855-58. 1850-57. 1857-58- 1858-59. 1859-60. 1860-61. 1881-62. 1862-63. 1863-64. 1864-65. 1865-66- 1866-67. 1867-68. 1868-69. 1869-70. 1870-71. 1871-72. 1872-73. 1873-74. 1874-75. 1875-76. 1876-77. 1877-78. Seth fiscal year, 1878-79. $57,670,689 00 49,231,052 00 64,579,375 00 95,335,648 00 1 11, 191, ((30 00 103,887,193 55 95,007,440 97 126,059,461 82 \ 123,955,877 00 131,060,279 49 148,193,540 02 147,811,617 16 160,369,071 81 174,104,955 07 180,484,949 85 183,509,161 00 200,764,135 50 212,205,339 01 237,483,175 07 260,563,886 08 277,538,134 97 267,868,126 76 637,232,823 31 528,747,043 00 611,495,197 00 818,083,315 00 595,073,177 00 586,972,445 00 584,583,651 00 $0 50 65 85 80 80 60 70 70 60 80 60 60 77 92 1 25 1 1 1 1 IS 13 13 00 97 86} 86} 50 50 84 9-10 80} 73i 63 65 $303,156 27 330,796 45 386,825 07 454,185 85 1,022,847 32 1,156,537 JO 723,289 83 799,795 90 1,215,128 61 1,184,221 79 1,198,581 81 1,292,718 63 1,031,529 08 1,626,278 58 2,096,437 83 2,594,365 39 2,970,738 48 3,595,232 08 2,801,920 25 2,918,211 09 3,508,163 91 3,329,984 99 3,107,816 17 3,792,815 99 4,093,774 93 4,812,926 20 3,651,895 39 4,549,258 30 3,913,494 45 Tax nof' $348,165 26 685,702 83 925,694 56 1,269,149 13 ■ 1,204,757 98 1,337,498 64 1,388,684 81 719,103 50 992,553 35 1,109,143 20 1,165,717 95 1,462,690 81 1,146,744 65 • 2,097,288 29 2,093,228 18 2.603,065 08 3,136,770 03 2,954,233 79 2,97T,458 43 3,180,725 78 3,814,037 22 2,915,458 60 3,062,119 34 3,524,093 24 3,777,042 99 4,769,816 83 3,961,964 18 3,785,111 35 3,797,864 68 yet collected. $353,505 42 602,703 56 1,171,774 46 2,291,682 19 2,520,204 80 3,365,270 46 3,702,196 77 3,228,000 00 4,088,828 08 8,900,000 00 3,824,000 00 3,925,000 00 3,926,000 00 3,926,000 00 4,441,158 38 4,734,130 91 5,117,878 75 5,131,892 63 4,916,825 58 4,296,749 39 4,277,051 62 3,658,921 81 3,717,507 73 4,063,168 92 3,594,890 61 3,654,500 00 3,429,600 00 3,411,000 00 3,403,000 00 Year incomplete. T'AtnJ— Statement showing the oonnly debts, and taxable property for the year eighteen State and county rates of taxation For said year : hundred and seventy-five-six, together with the Alameda Alpine Amador Butte Calaveras Colusa Contra Costa Del Norte £1 Dorado Fresno Humboldt Inyo Kern Lake Lassen Los Angeles Marin Mariposa Mendocino—. Merced Modoc Mono .. Monterey Kapa Nevada Placer Plumas Sacramento San Becito San Bernardino— San Diego-* Sen Francisco .-. San Joaquin San Luis Obispo . Sui Mateo Santa Barbara --. Santa Clara Santa Crui Shasta Sierra Siakiyou Solano 8tanislau9- Sutter Tehama „. Trinity .... Tolare Tuolumne Ventura Tolo Tuba Totals. Funded Debt $247,944 00 189,079 49 115,325 00 170,500 00 53,500 00 41,000 00 14,281 88 Floatlnc Debt $112,743 64 22,311 13 110,505 18 24,012 97 70,232 59 53,270 64 58,929 00 7,500 00 1,655 98 13,607 00 68,242 26 92,212 06 90,102 00 20,388 83 140,000 00 123,263 84 75,000 00 13,618 51 228,000 00 7,000 00 36,000 00 705,200 00 11,000 00 4,711 20 112,846 82 3,630,500 00 237,902 00 55,000 00 90,000 00 68000 00 378,000 00 108,000 00 688,417 25 17,188 89 62,099 70 .34,139 96 46,066 14 2,700 18 1,681 40 31,000 00 117,501 32 50,473 73 37,117 78 1,110 70 10,093 62 Bates of Interest. ToUl Value of Taxable Property. Bate or Tixmox ox ucH tlOO. 7 per cent. 6, 7, 10 par cent. 7, 10 per cent. 10 per cent. 21,100 00 66,800 00 168,224 00 374,700 00 42,000 00 25,000 00 62,853 61 3,000 00 20,000 00 224,000 00 61,903 04 83,844 00 16,800 00 160,138 66 7,660 00 76,619 37 12,031 66 166,050 23 $7,827,150 16 8,324 22 39,224 21 28,410 34 80,797 64 49,994 48 52,769 74 2,229 05 133,151 34 7,934 84 $2,799,824 81 7,10 7 7 7,10 7,10 7,9 10 7 7, 8, 12 10 7,10 7, 8, 10 7 7,8,9,10 7,10 7,10 7 7 7,10 7 8 7,10 6,8 7 7 7,10 8,7 8,10 10 10 7 7,8 7 7 10 10 7,10 8 7,9 7,10 7,10 7,10 7 7 10 7 per cent, percent, per cent, percent, per cent, per cent, per cent, per cent, per cent, per cent percent, per cent, per cent, per cent, per cent, per cent, per cent, per cent, per cent, per cent. per cent, per cent, per cent, per cent, per cent, per cent, per cent, per cent, per cent, per cent per cent, per cent per cent, per cent, per cent, per cent, per cent, percent per cent, per cent per cent per cent. per cent, per cent, per cent, per cent. 7, 8 per cent. $38,841,725 00 501370 00 2,568,943 00 10,086,476 00 1,717,897 00 10,257,749 00 7,368,312 00 689,090 00 2,561,526 00 7,613,649 00 4^94,310 00 1,526,030 00 4,972,176 00 2,151,421 00 1,186,689 00 14,890,765 00 7,674,518 00 1,446,991 00 6,163,465 00 6,631,673 00 1,082,222 00 808,097 00 9,411,852 00 8,008,964 00 7,893,547 00 6,896,129 00 1 1,735,981 00 19,514,680 00 4,640,150 00 2,251,922 00 3,079,969 00 269,078,606 00 20,696,296 00 6,361,682 00 6,167,596 00 6.756,877 00 29,362,648 00 7,488,319 00 1,933,298 00 2,234,675 00 3,222,894 00 9,754,086 00 16,609,418 00 7,486,470 00 4,493,133 00 3,870,303 00 941,633 00 5,118,322 00 1,383,864 00 3,166,694 00 9,328,099 00 4,922,950 00 $618,083,315 00 ||.„ uigitizea Dy 282 DEBATES AND PROCEEDINGS Monday, statement showing the county dehta and taxable property for the year eighteen hundred and seventy-six-seTen, together with Slate and county rates of taxation, for said years : COCHTIIS. Funded Debt. FloatlDg Debt. Batee of Intereat. Total Value of Taxable Propertj. Bati or Taxation ox iacb tlOO. Stat*. ToUl. Alameda Alpine Amador Butte Calaveras Colusa Contra Costa . Del Norte. El Dorado ... Fresno Humboldt ... Inyo Kern Lake. $24«,944 00 167,310 00 108,350 00 Lassen Los Angeles. Marin Mariposa Menaocino Merced Modoc Mono Monterey Napa Nevada Placer Plumas Sacramento San Benito San Bernardino . San Diego San Francisco San Joaquin San Luis Obispo. San Mateo Santa Barbara... Santa Clara Santa Cruz Shasta.. Siena Siskiyou Solano Sonoma Stanislaus Sutter Tehama Trinity Tulare Tuolumne Vedtura Yolo Yuba Total. 47,000 00 34,000 00 65,000 00 24,821 82 300,000 00 138,263 64 75,000 00 14,980 36 228,000 00 .1 4,000 00 ' 58,850 00 I 695,200 00 I 11,000 00 2,361 42 102,846 82 4,322,500 00 117,000 00 146,000 00 5,500 00 376,000 00 208,300 00 29,000 00 55,600 00 149,912 00 374,700 00 41,925 00 25,000 00 67,000 00 21,600 00 "20,000 6o' 197,700 00 $119,827 39 20,030 00 99,089 40 10,102 88 69,800 00 44,312 00 70,175 13 4,070 00 180,362 40 $8,481,665 06 63,499 07 29,854 01 61,400 00 659,414 90 34,351 89 39,906 00 22,306 43 53,700 05 1,431 91 2,303 31 29,547 92 99,284 96 59,081 84 7, 8, 10 per cent. 6, 7, 10 percent 7, 10 per cent. 10 per cent. 7 per cent. 7, 10 per cent. 7 per cent. 7 per cent 7, 10 per cent. 7, 10 per cent. 33,738 59 11,727 48 26,278 53 67,414 67 7, 10 percent. 7, 10 per cent. 7, 8, 12 per cent. 10 per cent. 7, 10 per cent. 7, 8, 12 percent. 7 per cent. ' 7,8,9, 12 percent. 7, 10 per cent. 7, 1 0 per cent 7 per cent. 7 per cent. 7, 10 per cent. 7 per cent. 8 per cent. 7, 10 per cent. 6, 8 per cent. 230,300 00 28,791 53 70,000 00 218,963 07 44,140 00 77,813 22 10,642 50 139,916 77 35,000 00 41,928 52 64,069 33 56,634 96 76,606 88 47,484 70 1,388 58 75,651 76 12,768 07 $3,125,110 65 7, 10 per cent. 6, 7 per cent. 8, 10 percent.' 8, 10 per cent. 7, 10 per cent. 10 per cent. 7, 8 per cent. 8, 10 per cent 7 per cent. 10 per cent. 7 per cent. 7, 8 per cent. 7, 9 per cent 7, 10 percent 7, 8, 10 per cent 7, 10 per cent. 7, 10 per cent 7 per cent. ' 7, 10 per cent. 7 per cent 8 per cent. $36,389,961 00 453,111 00 2,576,408 00 9,014,057 00 1,908,216 00 9,897,941 00 7,227,920 00 651,876 00 2,337.663 00 8,025,381 00 4,961,657 00 2,093,625 00 6,270,323 00 2,146,832 00 1,109,009 00 J 14,880,922 00 ] 7,790,297 00 1,465,423 00 1 5,898,813 00 'l 6,140,279 00 1.08S^K« 00 f i'l!) 0,0 8,7(f|9"^-4'> 8,115.tT« 00 I 6,996,846 00 ' 5,762,570 00 1,980,877 00 17,918,292 00 4,353,640 00 2,728,480 00 3,256,632 00 260,576,978 00 17,879,127 00 6,330,339 00 6,414,160 Oq 6,088,518 00 28,175,269 00 6,646,875 00 1,865,616 00 1,791,744 00 2,619,891 00 9,494,804 00 15,243,-398 00 5,991,605 00 4,050,587 00 3,661,896 00 830,733 00 4,757,541 00 1,778,905 00 3,491,859 00 10,243,075 00 4,442,245 00 $595,073,177 00 731 T34 73i 73i T3i 731 731 731 731 731 731 731 731 731 731 731 731 731 731 731 731 731 731 73i 731 731 731 731 731 731 731 731 731 731 731 731 731 731 731 731 731 731 731 731 731 731 731 73} 731 731 731 731 ($0 571 I 0 821 2 141 1 961 1 261 S S61 061 101 764 60 961 561 261 671 111 OH fl Oil 961 371 391 031 511 511 761 1 261 1 161 I 761 1 811 911 761 1 761 1 75 1 39 761 1 Oil 1 261 1 111 911 I 361 [l 761 961 061 661 911 911 161 461 061 561 661 1 111 1 78 761 2 061 I f$l31 ) 1 5( 2 88 2 70 200 3 10 1 SO 1 84 2 5« 2 331 1 70 230 300 2 41 1.85 2 75 fl 75 (1 90 1 70 3 11 2 13 1 77 2 25 i 25 1 50 2 00 1 90 1 50 255 1 65 1 50 2 50 2 48) 2 12i 150 1 75 2 00 1 85 1 65 3 10 2 50 2 70 1 80 2 30 1 65 1 65 1 90 2 20 2 80 2 SO 2 40 1 85 2 511 J 2 50 2 80 Hots. — Alameda, Loa Angeles, and Tnba Counties bare two tax ratea each — in one portion of the county one rate, and In the other part another rate. Fourth. The total value of taxable property in the City and County of San Francisco, for the fiscal year eighteen hundred and seventy-eight and nine, is two hundred and forty-four million six hundred and twenty- six thousand and seven hundred and sixty dollars. Amount of tax levy thereon is one dollar and sixty-nine cenU upon each one hundred dollars valuation of propertv, for city and county purposes, and is exclu- sive of State tax levy. This office does not furnish the items which make up the said tax rate of one dollar and sixty-nine cents on the one hundred dollars valuation given above. The same can be readily obtained by application to the County Auditor of the City and County of San Francisco. ITEMIZID ACCOIJNT BXPXNDtTTBIS TWIKTT-NrilTB FISCAL TEAB. Appropriationt. Per diem — mileage of Lieutenant-Gov- $50,659 30 99,282 00 11,320 00 12,048 00 27,500 00 25,114 12 Per diem — mileage of Assemblvmen Pay of officers and Clerks of Senate Pay of officers and Clerks of Assembly. . Contingent expenses of Senate .*. Contingent expenses of Assembly Total for Legislative Department $225,923 42 Salaries of Justices of Supreme Court... $30,000 00 Amounts carried forward $30,000 00 $225,923 42 Amounts brought forward......... $30,000 00 117,152 78 4,000 00 1,800 00 6,000 00 3,000 00 3,000 00 1,179 99 200 00 250 00 150 00 $225,923 42 Salaries of District Judges .--.-. .. .. Salary of Clerk of Sunreme Court Salary of Deputy Clerk of Supreme Salary of Reporter of Supreme Court... Salary of Phonographic Reporter of Su- preme Court Salary of Secretary to Justicesof Supreme Court Salary of Bailiff and Porter of Supreme Court Pay of Porter for office of Clerk of 8u- Postage and contingent expenses of 8u- Postage and contingent expenses of Clerk of Supreme Court ....... ...... 166,732 77 $7,000 00 2,400 00 2,400 00 Salary of Private Secretary... Salary of Executive Clerk Amounts carried forward $11,800 00 $392,656 H Digitized by Google I m Nov. 4, 1878. OF THE CONSTITUTIONAL CONVENTION. Amounts broaght fonrard Pay of Porter Special contingents (secret service fund). Postage, expressage, telegraphing, etc. . . Total for Governor's office Salary of Secretary of State. Salary of Deputy Salaries of Clerks Pay of Porter. Postage and ezpreasage. Contingent expenses... Total for Secretary of State's office. Salary of Controller Salary of Deputy Salaries of Clerics Salary of Bookkeeper Pay of Porter Contingent expenses... Postage and expreaaage. Total for Controller's office. S&IaiT of Treasurer Salaries of Clerks Salaries of Watchmen. . Pay of Porter Postage and expresaage. Total for Treasurer's office. Salary of Attorney-General Salary of Clerk Pay of Porter Postage and expresaage Coits and expenses of suits where State is party in interest Total for Attorney-General'^ office. Salary of Surveyor-General Salary of Deputy. Salanes of Clerks. Pay of Porter Postage and expressage. Purchase of maps Copying of mapa Total for Surveyor-General's office. Salary of Begister of Land Office Salanes of Clerks ! and expressage ' Total for State Land Office Salary of Superintendent of Public In- struction Salary of Deputy Salary of Clerk Pay of Porter Contingent expenses Postage and expressage . Tiaveiing expenses Total for Superintendent of Public In- struction's office SalaiT of Secretary of State Board of Health Mileage and contingent expenses.. Total for State Board of Health Salaries of members of State Board of Examiners Salary of Clerk... Total for State Board of Examiners. Salary of State Librarian . Salaries of Deputies Pay of Porter _ Postage and expressage Total for State Library ■ Salary of Adjutant-General Salary of Assistant Adjutant-General... Pay of Porter Amounts carried forward. $11,800 00 600 00 1.514 65 449 64 $4,000 00 2,400 00 9,600 00 150 00 1,770 72 100 00 $4,000 00 3,000 00 7,200 00 2,400 00 300 00 61 05 152 50 $4,000 00 4,200 00 2,400 00 150 Oft- 150 00 $4,000 00 1,800 00 100 00 100 00 3,493 40 $2,000 00 2,400 00 3,300 00 300 00 125 00 300 00 $2,000 00 3,600 00 I2& 00 $3,000 00 1,800 00 1,500 00 200 00 34 17 1,000 34 1,151 00 $2,500 00 851 15 $3,500 00 1,200 00 $3,000 00 3,600 00 600 00 166 30 $3,000 00 2,000 00 300 00 $5,300 00 $392,656 19 14,364 29 18,020 72 17,113 66 10,900 00 9,493 40 8,426 00 5,725 00 8,685 51 3,361 15 4,700 00 7,366 30 $500,801 11 Amounts brought forward Postage and expressajfe Cleaning and transportation of arms Expenses of National Guard — ^Act, April 3d, 1876 Ex pensesof National Guard — Act,March 30th, 1874 Expenses of National Guard — Act,March 30tli, 1876 Payment of Guard and military duty in San Francisco in November, 1877, and January, 1878 — Act, March 29th, 1878 Relief of the Oakland Guard — Act, April 1st, 1878 Total for military purposes. Salary of Superintendent of State Print- ing Office Support of State Printing Office Total for State Printing Office. Salary of Insurance Commissioner Salary of Clerk Bent, printing, and contingent expenses. Total for Insurance Commissioner.. Services of State Board of Examination. Traveling expenses of State Board of Education Total for Educational Boards. Salaries of Transportation Commission- ers Salary of Secretary Contingent expenses Total for Transportation Commissioners Support of Insane Asylum, Stockton Support of Insane Asylum, Napa Transportation of insane Support of Insane Asylum, Napa, to pay twenty-seventh fiscal year. Act March 30th, 1879 Completion Insane' Asylum, Napa, Act April Ist, 1876 Total for insane. Support of etate Prison Transportation of prisoners . Construction of workshops, etc. Act March 31st,1876 Total for SUte Prison. Macellatuout. Pay of employes State Capitol building and grounds Education and care deaf, dumb, and blind Support of State Normal School Support of orphans Arresting criminals without the limits of the State Official advertisements Payment of rewards offered by the Gov- ernor Restoration and preservation of fish Stationery, fuel, lights, etc Purchase of books for State Normal School Traveling expenses of Attorney and Snr- veyor-Genprals Rewards for arrest of highway robbers.. Purchase of Supreme Court Reports Services of Registers and Receivers United States Land Office Salaries and expenses State Land Com- mission Salaries of Bank Commissioners Salary of Bank Commissioners' Clerk... Construction of building for deaf, dumb, and blind Permanent improvement State Capitol grounds Painting State Capitol Repairing and painting roof State Capitol. $5,300 00 100 60 646 30 29,163 00 405 00 3,159 00 5,202 00 1,260 00 $2,400 00 62,809 74 $3,000 00 1,800 00 2,782 00 $700 00 99 00 $7,674 99 1,800 00 549 30 $200,202 26 110,000 00 19,219 70 13,420 00 46,761 40 $218,276 00 24,319 57 46,000 00 $14,400 00 30,000 00 24,477 16 106,659 61 1,776 25 2,487 75 2,300 00 6,000 00 24,170 25 640 76 1,285 00 9,600 00 118 00 70 00 941 65 160 00 110,000 00 10,882 72 6,331 06 3,106 35 283 $500,801 II 45,224 90 66,209 74 7,682 00 799 00 10,024 29 389,693 36 287,694 67 Amounts carried forward.. $354,404 534>$1 ,306,828 96 Digitized by VjOOQ IC 284 DEBATES AND PROCEEDINGS Monday, Amounts brought forward Construction of Mechanical Arts College building Bedemption of unused and uncanceled State stamps Translating into Spanish laws of twenty- 6r«t session Belief of Edward Christy. Belief of James W. Marshall Relief of sufferers by the floods Belief of Frederick Kuhnle Payment of canceled coupons Payment of claim of Hiram Clock Payment of claim of P. K. Stockton Printing paper and official advertise- ments, twenty-seventh fiscal year.. Payment of claims of Sacramento Coun- ty Payment of claim of Mary M. Springer. . Belief of Julius Blume Per diem and mileage of Presidential Electors of 1876 Payment of claims of J. W. C. Coleman. Payment of claims of John Sutherland.. Bepair and furniture of State Capitol... Aid to charitable institutions Traveling expenses United States Sur- veyor-General, etc, twenty-seventh fiscal year Payment of claims of C. H. Krebs Bepair and furniture for State Normal School, twenty-eighth fiscal year Erection and maintenance of Folaom Branch State Prison, Act February 2l8t, 1878 Expenses of system of irrigation and navigation Sacramento and San Joaquin Bivers Payment of claims of Harrison Roberts, LuisRaggio, and C. 8. Colvig Payment of claim of John C. Boegs Belief of Richard Dudding and William Johnston Belief of John Q. Hendricks, Chas. Car- roll, and R. D. Hubbard Total miscellaneous. Total amount drawn from General Fund For support common schools — School Fund. For payment interest on bonds, etc — In- terest and Sinking Fund For purchase of bonds for School Fund — State School Land Fund For repairs, etc., Capitol building — Cap- itol Fund For State University — University Fund. For State University — University En- dowment Fund For purchase of books, etc. — State Libra- ry Fund . For purchase of books — Supreme Court, Library Fund For payment to heirs, etc. — Estate De- ceased Persons' Fund For iMiyment of interest — Interest and Sinking Fund, Levee District No. Five : For improvement wharves and docks, San Francisco — San Francisco Har- bor Improvement Fund For payment claim J. A. Odell — Folsom Branch State Prison Fund Total from other funds. Deduct the interest on bonds of the State held in trust by the Treasurer for School and University Funds, as it is included in those Funds, and also in the Interest and Sink- ing Fund — amount Net amount of expenditures from other Funds Swamp land warrants, issued in six- teenth and seventeenth fiscal years, paid Total expenditures for twenty-ninth fiscal year, ending June 30th, 1878. $354,404 53 12,332 45 898 70 125 36 390 00 1,000 00 5,000 00 300 00 1,155 00 120 00 285 00 33 75 3,653 67 7,000 00 300 00 212 70 426 90 300 00 8,274 52 27,500 00 95 00 3,427 90 29 09 300 00 2,997 16 2,199 42 600 00 154 00 300 00 $1,571,485 89 322,997 73 80,515 42 342 35 50,617 27 627 20 5,287 «3 2,274 10 185 02 i 6,300 00 ' I 170,712 80 I 1,300 00 $2,212,645 41 157,800 00 $1,306,828 96 433,806 16 $1,740,635 12 2,054,845 41 2,384 15 $3,797,864 68 ADJOOBHVIirr. Mb. CROSS. Mr. President : Owing to the exceedingly slim attend- ance here this morning, and the probability that the members will not be here until about two o'clock this afternoon, I move that the Conven- tion do now adjourn until two p. u. Mr. BROWK. Mr. President: I do think it is wrong for this entire body to adjourn in consequence of the absence of a few men in different committees. I am under the impression that there is business tliat can be done, without adjourning to satisfy the convenience of these gen- tlemen. The question was put, and, on a division, the vote stood tbirfy-six ayes to thirty-three noes — no quorum voting. Mr. GREGG. Mr. President: An adjournment until two o'clock would not accommodate those who are coming up on the train, and I therefore move to amend by substituting three o'clock. Mb. LARKIN. I demand the ayes and noes on that motion. Tbk PRESIDENT pro tern. The ayes and noes have been demanded upon this motion. Those in favor of taking a recess until three r. >. will, when their names are called, say "aye," those opposed, "no." The Secretiry will call the roll. The roll was called, and the Convention refused to take a recess, by the following vote : ATBS. PulUam, Reynolds, Bolfe, Shurtleff, Smith, of 4tb District, Smith, of San Francisco, Steele, Stuart, ruz, Sweasey, • Swenson, Swing, Teny, Vacquerel, Van Voorhies — (3. Schell, Smith, of Santa Clara, Stedman, Tinnin, Townsend, TuUy, Turner, Walker, of Tuolumne, Waters, Webster, West, White, Wilson, of Tehama, Wyatt— 44. Andrews, Hucstis, Barry, Hughey, Belcher, Johnson, Boggs, Jones, Charles, Kleiue, Cowden, Lavigne, Cross, ^ LewU, Dowliug, Mansfield, Doyle, Martin, of Sai Edgerton, McConnell, Garvey, McCoy, Gregg, McFarland, Harrison, Moffat, Harvey, Porter, Holmes, NOES Barton, Joyce, Blackmer, • Kelley, Brown, Laine, Burt, Lampson, Caples, Larkin, Davis, Larue, Dean, McCallum, Evey, Mills, FilcKer, Morse, Finney, Naaon, Freud, O'Donnell, Grace, Ohleyer, Howard, Prouty, Hunter, Bhodes, Inman, Binggold, CHANOI OP BCLE. Mb. LABKIN. I ask leave to introduce out of order an amendment that I gave notice of Saturday. It is as follows: Amend Rule Ftnjrtwo, third line, b; striktag ont all after the word "to** tad iQBortlng " the Committee of the Whole." The object is that all propositions shall be referred to the Committee of the Whole instead of to standing; committees. The rule now reads: " Propositions and resolutions mentioned in the last foregoing rule shall embrace but one subject ; they shall be read by title when introduced, and then referred, without debate, to an appropriate oommitttee." I want to strike out all after the word "to" and insert "the Committee of the Whole," so that matters will come directly to this Convention instead of being tied up in the hands of committees. At this late day of the session it is useless to send more matters to the committees. Mk. McFARLAND. Mr. President: I do not think it would be wise to make that innovation at this time. Then every proposition, no mat- ter of what character, must be referred to the Committee of the Whole and be debated here. It seems to me that it would be much better to let the propositions take their usual course. There will undoubtedly not be a great many more, but if there are they should take their reg- ular course instead of all being sent to the Committee of the Whole. Mb. larkin. Mr. President: There will be amendments desired to be offered as substitutes to the propositions already submitted. I desire that all propositions come directly before the Convention, rather than be referred to some committee that may retain them for two weeks. The pro]>osition8 that are hereafter to come before ns should be presented to this Convention and not delayed in any committee room Tor the next two weeks. I think that they ought to be referred to the Committee of the Whole at once. Mr. SMITH, of Kern. Mr. President : I cannot see that the propo- sition offered by Mr. Larkin will facilitate business here at all. On the contrary it would result in much confusion and delay. I do not see what has called forth such a resolution. The committees have certainly done their work with dispatch, and the reports before us are more numerous now than wc are able to attend to. The experience of this body in the debate on the jury system and the question of the pardon- ing power, it seems to me, is enough to show that the body cannot transact the business before it without its being referred to the com- mittees ; that even after a matter has been referred to a committee and reported back we have hours of discussion unm^minor propositions. I Digitized n unm^minor propositioi by Google Nov. 4, 1878. OF THE CONSTITUTIONAL CONVENTION. 285 for one, for the purpose of ^tting through here as rapidly as possible, would be in favor of referring to the committees more than we have done, and doing less in Convention. I think the adoption of this amendment would be very unwise. If we should undertake anything of that kind we will soon have to change it. I certainly am opposed to tie proposition. Mr. BEOWN. Mr. President : I am in favor of the dispatch of busi- ness. I agree With the gentleman from Kern that it is necessary to dispatch business very rapidly, but the grand object of thjfe change of Rule Fifty-two is for the purpose of dispatching business. Now, matters that have been before the committees have caused just as much dis- cussion as if they had come here first. The house can judge and frequently put a nual (Question upon a proposition that does not stand any chance of ever getting into the Constitution. I believe it is with a view to this, and to the dispatch of business, and to getting at matters of special importance, which will interest this "body, that the amendment is offered. It is so that measures can come before this bod^ direct and be dispatched. Many things will be frivolous and yet will take up a great deal of time, and unless we start right in and work hereafter, we will not be able to get through with the business that is before this boc^. Mb. barton. Mr. President : I favor the adoption of the amend- ment, for reasons which I believe are well understood by this body. Firet, as a matter of economy in two or three directions. The printing of surplus matters, or matter in addition to what we have already printed, is a useless waste of money. We have before us now enough to make fourteen Constitutions, and when this matter comes before the committees under the present plan or system, it accumulates a worthless mass of material that the committees, to a certain extent, ignore and disregard. I believe that when a proposition is presented to the Com- mittee of the Whole, if there is any merit in it, that it can be presented by the introducer, or the author of the proposition, with sufBcient forsa to bring the attention of this Convention directly upon the proposition and its merits. Therefore, for several reasons, I hope that tlie amend- ment offered by the gentleman from El Dorado, Mr. Larkin, will be idopted. Mb. STEDMAN. Mr. President: I would like to vote in favor of the amendment offered by the gentleman from El Dorado, Mr. Larkin, pro- vided that he would make it apply only to committees that have already reported. There are several committees that have already reported, and propositions relating to subjects covered by their reports might as well oe referred to the Committee of the Whole. I would like to have an amendment inserted to that effect. The committees that have not reported will still hold sessions, and any proposition relating to matters before them ought to be referred to them for their consideration. Mb. cross. Mr. President: My experience in reference to this mat- ter leads me to believe that this amendment proposed by the gentleman from El Dorado is, at this time, a little premature. I will cite a case in the Committee on Revenue and Taxation : A matter of importance with regard to revenue and taxation was brought before the committee only two or three days ago, by Judge Fawcett. The proposition offered by him was found to be an important and feasible one. The committee have consumed considerable time upon it and have put it in such shape that I am satisfied it will be accepted by the Convention. Mb. LABKIK. I will accept the amendment of the gentlemen from San Francisco, Mr. Stedman, that it shall apply only to committees that have made their reports. Mb. cross. This proposition which was brought before the com- mittee was favorably actea upon. I insist that experience has shown that the work is dispatched mi£:h more rapidly in the several commit- tees than in the Committee of tne Whole. The committees have nearly completed their work, and this flow of propositions will soon be cut on, while if they are referred to the Committee of the Whole they will still oontinne to come in, and will take up much more time than they would in the several committees. Under the present system we will accom- plish much more work in a given space of time. It seems to me that the rule has worked well as it stands, and as we have nearly two thirds of the work of the Convention left on our hands I think we should (dvance our work further before this change of the rule is adopted. Mb. GREGG. Mr. President : The purpose and object of referring matters to the committees was to get a CMtsisupon which the Committee of the Whole could work. There is a committee upon nearly every subject in the Constitution. They have reported during the sitting of the body. Every proposition made in Committee of the Whole should be made as an amendment to the 'report of the committee. Now then, if this rule is abrogated, the result is that we have the proposition intro- duced and referred to the Committee of the Whole. It may be called up and discussed separately, without any connection with the report of the comrfiittce" on the same subject. Then when the report comes up it may be offered as an amendment to the report, and that will simply confuse and confound business. If gentlemen wish to amend proposi- tions introduced by committees they can do so, as they have been doing, in Committee of the Whole. Such propositions as they have can be ofleted by way of amendments. If they simply introduce them, and have them referred to the Committee of the Whole, we take them up as independent propositions. There is nothing to prevent any person who has an amendment presenting it by way otamendment to tne report of the committee on that subject; but to send it in as an indepen- dent proposition, it confuses and confounds the whole business. We now have the report of the committee, and have the matter printed, >ad we cannot take it up until it comes back here. But we might say that all matters referred to the Committee of the Whole must be consid- ered as amendments to. the matters reported to that committee. Mb. MARTIN, of Santa Cruz. Mr. President: I move to lay the matter on the table. Oarried. KBW PBOPOSITIONS. The PRI^SIDENT pro tem. The next order of business will be the introduction of resolutions and propositions relating to the Constitution. LIFB IKSUBANCB. Mb. SMITH, of Santa Clara, introduced the following proposed amend- ment to the Constitution, providing that husbands may insure their lives for the benefit of their heirs, and the same be exempt from their debts : " The husband may insure his own life for the sole use and benefit of his wife and children, and iircase of the death of the husband, the amount thus insured shall be paid over to the wife and children, or the guardian, if under age, for her or their own use, free from all the claims of the representatives of the husband or any of his creditors." Bef'A'red to Committee on Legislative Department. ALIINS KOT TO BEAK ABUS. Mr. O'DONNELL introduced the following proposed amendment to the Constitution , relative to aliens bearing arms: Section — . No alien who cannot become a citizen of the United States shall be allowed to bear arms. Referred to Committee on Chinese. , COONTT AND TOWNSHIP OOVEBNICENTS. Mb. mills introduced the following proposed amendment to the Constitution, relative to county and township governments: AMENDMENT TO ARTICLE ELEVEN, SECTION FOCR, OF THE KXISTIKQ CONSTITOTION. Section — . The Ijegislature, at the first session after the adoption of this Constitution, shall establish a system of county and township gov- ernments which shall be as nearly uniform as practicable, and such system shall provide that whenever a majprity of the legal voters of any county, voting at any general election, shall so determine, such township organization shall be in force therein; and whenever any county shall adopt township or^fanization, so much of this Constitution as conflicts with such organization, as hereinafter specified, may be. dis- pensed with ; and in any county which shall liave adopted township organization, the question of continuing the same may be submitted to a vote of the electors of such county, at a general election, in the man- ner that now is or may be provided by law, and if a majority of all the votes cast upon that question shall be against township organization, then such organization shall cease in said county, and all laws in force in relation to counties not having township organization shall immedi- ately take effect and be iu force in such county. No two townships shall have the same name, and the day of holding township elections shall be uniform throughout the State. Each county that shall have elected to adopt township organization* shall be divided into so many compactly located townships as may be deemed necessary, not less than three ; provided, that after three have been formed no additional town- ships shall be made containing less thsn thirty square miles. Each township shall be known as the Township of , of the County of , and may sue and be sued by such title. In each township there shall ' be elected, or appointed, as provided by law, one Supervisor, one Town- ship Clerk, three Selectmen, who shall act as a Board of Directors and Trustees, one Overseer of Highways, one Overseer of the Poor, one Assessor, and not less than two Justices of the Peace, and two Consta- bles, and such other ofiBcers as may be prescribed by law; all such officers shall be elected for such periods, perform such duties, and receive such compensation as ma^ be prescribed by law. Each township shall main- tain free schools sufficient for the education of all its inhabitants, and provide for the support of the paupers resident therein, and for the building and maintenance of necessary bHdges and highways, and all taxes paid for these purposes shall be expended therein. The several townships, when organized under this Constitution and the laws to be made as herein provided for, shall be entitled to make and enforce all such police regulations in such townships, in the manner to be pre- scribed by law, as shall not conflict with the provisions of this Consti- tution, or of any general law made thereunder, and all fines or forfeit- ures linposed or collected in pursuance thereof shall belong to such township. Referred to the Committee on City, County, and Township Organiza- tions. CHANOE OF VENUE. Mr. mills introduced the following proposed amendment to the Constitution, relative to change of venue in criminal cases : PBOPOSED AMENDMENT TO ABTICLE POUB OK THE PRESENT CONSTITUTION. Add to article four the following as section : Section — . The Legislature shall not change the venue in any criminal or penal proceeding, but shall provide for the same by general laws. Referred to Committee on Legislative Department, SPEEDY TBIAL. Mr. mills introduced the following proposed amendment to the Constitution, in relation to speedy trials: PROPOSED AMENDMENT TO ABTICLE ONE OF THE PBESBNT CONSTITUTION. Add the following as section to article one : Section — . In all prosecutions by indictment or information the accused shall be entitled to a speedy public trial, by an impartial, jury of the county in which the offense was committed, unless tne venue be changed. Referred to Committee on Preamble and Bill of Rights. MOBE THAN ONE OFFICE. Mb. FREUD introduced the following proposed amendment to thi Constitution, to be placed among the miscellaneous provisions: "O le 286 DEBATES AND PROCEEDINGS Monday. BiCTiOH — . No person shall hold or Exercise at the same time more than one office of trust or profit. Referred to Committee on Miscellaneous Subjects. CHAKOK or RDLB. Mb. HUESTIS. Mr. President: I believe it would be in order now to introduce the amendment to the rule of which I gave notice at the last sesaion of the Convention. I move to strike out Of the standing rules Kule Seventy -one, and insert the following: KOLB SSTXNTKKI. In >tl CUM where propositions or reaolutions embodying matten proposed to be Introduced Into the Cunstilutiun an piintes he shall deem expedient. Sic. 11. In case of a disagreement between the two houses with respect to the time of adjournment, the Governor shall have power to adioum the Legislature to such time as he may think proper; provided, it be not beyond the time fixed for the meeting of the next Legislature. 6eo. 12. No person shall, while holding any ofiice under the United States or this State, exercise the office of Governor, except as hereinafter expressly provided. Sic. 13. There shall be a seal of this State, which shall be kept by the Governor, and used by him officially, and shall be called " The Great Seal of the State of California." Sio. 14. All grants and commissions shall be in the name and by the authority of the people of the State of California, sealed with the great wal of the State, signed by the Governor, and countersigned by the Secretary of State. Sic. li. A Lieutenant-Governor shall be elected at the same time and places, and in the same manner, as the Governor; and his term of office and his qualifications of eligibility shall also be the same. He shall be President of the Senate, out shall only have a casting vote therein. If, during a vacancy of the office of Governor, the Lieutenant- Governor shall be impeached, displaced, resign, die, or become incapable of performing the duties of his office, or be absent from the State, the President pro tem. of the Senate shall act as Governor until the vacancy be filled or the disability shall cease. ^'The Lieutenant-Governor shall be disqualified from holding any other office, except aa specially pro- vided m this Constitution, during the term for which he shall have been elected. Sia 16. In case of the impeachment of the Governor, or his removal from office, death, inabilitv lo discbarge the powers and duties of the •aid office, resignation, or absence from the State, the powers and duties of the office sh«]l devolve upon the Lieutenant-Governor for the residue of the term, or until the disability shall cease. But when the Governor shall, with the consent of the Legislature, be out of the State in time of war, at the head of any military force thereof, ho shall continue Com- mander-in-Chief of all the military force of the State. Sic. 17. A Secretary of State, a Controller, a Treasurer, an Attorney- General, and a Surveyor-General shall be elected at the same time and places, and in the same manner, as the Governor and Lieutenant-Gov- ernor, and whose term of office shall be the same as the Governor. Btc. 18. The Secretary of State shall keep a fair record of the official sets of the Legislative and Executive Departments of the Government, and shall, when required, lay the same, and all matters relative thereto, before either branch of the Legislature, and shall perform such other duties as may be assigned him by law. Sk. 19. The Governor, Lieutenant-Governor, Secretary of State, Controller, Treasurer, Attorney-General, and Surveyor-General shall etch, at stated terms during their continuance in office, receive for their services a compensation, which shall not be increased or diminished during the term for which they shall have been elected; which com- pensation is hereby fixed for the following offices, for the two terms next ensuing the adoption of this Constitution, as follows: Qovemor, six thousand dollars per annum ; Lieutenant-Governor, the same per diem as niay be providad by law for the Speaker of the Assembly; the Secre- tary of State, Controller, and Treasurer, three thousand dollars each per annum ; said compensation to be in full for all services by them respect- ively rendered in any official capacity or employment whatsoever dnnng their respective terms of office ; provided, Koioever, that the Legis- Uitnre, after the expiration of the terms hereinbefore mentioned, may by law diminish the compensation of any or all of said officers, but in no case shall have the power to increase the same above the sums hereby fixed by this Constitution. The Iiegislature shall by law fix the compensation of the Attorney-General and the Surveyor-General, and may, in its discretion, abolish the office of Surveyor-General. And none of the officers hereinbefore named shall receive for their own use any fees or perquisites for the performance of any official duty. Me. Tl'SSlN. I move that the Convention now resolve itself into Committee of the Whole, for the purpose of considering the special order of the day. Cairied. IN COMMITTEE OF THE WHOLE. Tei PRESIDENT pro tem. The Secretary will read the first section of the article on Executive Department. Tei SECRETARY read : Bktioi) 1. The supreme executive power of this State shall be vested in a chief magistrate, who shall be styled the Governor of the State of California. Mi. TINNIN. Mr. Chairman: I meant the pardoning power. I move that the committee rise and ask leave to sit again. Ma. JOHNSON. The Chairman of the committee is not here. Mr. TINNIN. I withdraw the motion. Thi president pro tem. There being no amendments, the Secre- •iiT will read section two. T Ri SECRETARY read : Sec. 2. The Governor shall be elected by the qualified electors, at the time and place»«f voting for members of the Assembly, and shall ^M his office four years from and after the Monday after the first Tuesday in January subsequent to his election, and until his successor ia elected and qualified. Mr. DUDLEY, of San Joaquin. Mr. Chairman : As the Chairman of the Committee on Executive Department is not in his seat, I think it would be as well to pass the special order ; and I move that the special order be postponed until to-morrow morning, at ten o'clock. Mb. NOEL. Mr. Chairman: The thing lias just been placed on the desks of the members in printed form, and they don t understand it Thi CHAIRMAN. The motion cannot be entertained by the Com- mittee of the Whole. Mb. DUDLEY, of San Joaquin. I move that the committee now rise and ask leave to git again. Division being called for, the motion was lost — ayes, 30 ; noes, 35. Tai CHAIRMAN. There being no amendments U> the section, the Secretary will read section three. The SECRETARY read: Skc. 3. No person shall be eligible to the office of Governor who has not been a citizen of the United States and a resident of this State five years next preceding the election, and attained the age of thirty years at the time of said election. Mr. SHURTLEFF. I move that the word "thirty" be stricken out and "twenty-five" inserted, so as to leave it as it is in the old Consti- tution. Tbb CHAIRMAN. The question is on the amendment proposed by the gentleman from Napa, Mr. Shurtleff. Mr. SHURTLEFF. I will state, Mr. Chairman, in support of this motion, that if we look into the history of the State for a quarter of a century, ever since its organization, there does not seem to be found any- thing to make such a change as this necessary. Eight of the States of this Union have no limitation as to the age of the incumbent. Ohio, one of the oldest States in the Union, has no limitation whatever. The State of Wisconsin, the State of West Virginia, Louisiana, Florida, Virginia, Rhode Island, and Massachusetts, have no limitation of this kind, and I say that there is no tendency on the part of the people to abuse this power. The youngest Governor the State of Massachusetts ever had was George Boutwell, who was only thirty-three years of age when he went into that office, and he was acknowledged to be one of the best Gov- ernor's that State ever had. I will say here that if there was any danger of an abuse of this kind it would have been likely to have occurred early in the history of the State when most of the miners were young men, and might have banded themselves together to elect one of their own number. I think that old Califomians here on this floor will bear me out when I say that two thirds of the electors at least who framed the present Constitution were men under thirty years of age. Now we may see whether this power has been abused by the youn^ men of the country by tracing the history of the State from its organization down to the present time. Peter H. Burnett was forty-two years of age ; Governor Bigler forty-four at hie first election, and on reflection forty-six; J, Neeley Johnson was about thirty; I am not able to give his exact age; Waller was forty-six; Latham was within a few months of thirty-three; Stanford, thirty-eight; F. F. Low, thirty -six; H. H. Haight, forty-three; Newton Booth, forty -six; and the present incumbent, Wm. Irwin, forty- nine. Now, by looking over that list, when the line of restriction was placed at twenty-five, you can see no tendency on the part of the people of this State to take young and inexperienced men to fill the first office in the gift of the people. Therefore I think it would be unwise to put such a bar as that m the Constitution. And if I am allowed to transgress upon the time of the Convention, I will say that this is not the only instance on record. You may take the other States of the Union, take the office of President, where he has to attain the age of thirty-five, and as you will see, there is no disposition to monopolize these positions on the part of young men. There nave been but two men chosen President who were under fifty ; one was General Grant, who was a few weeks under forty-seven, and the other was Mr. Pierce, who was forty-nine. So there does not seem to be anv abuse in that direction. Now, sir, I believe these restrictions are unnecessary, and I would, if we were starting to make a first Constitution, be in favor of inserting nothing at all. I am opposed to making any change in the present Constitution, unless there seems to be a real necessity, and this is one of the cases where, in my humble opinion, no necessity exists. This mat- ter of restriction is sometimes upon the other end of a man's life. In some of the States this restriction is placed on judicial officers, and the Supreme Judges are required to be not over sixty years of age. I believe if there is any necessity for restriction at all, it is more needed in cases of the old and infirm than in the young. It cannot be denied that some of the officials, some of the Supreme Judges of the United States, are verging on imbecility, and are unable to perform the services that younger men could. It is a well known fact that Lewis Cass, when seventy-eight ^ears old, as Secretary of State during Buchanan's admin- istration, was infirm and unable to perform the duties required of him, and sometimes would sit in the Cabinet meetings and sleep for hours, during the most important discussions had before that body. But still I would be opposed to making any restrictions whatever. I believe the people are tne proper judges of that. I see no difficulty about it what- ever, and we can find nothing in our past history which renders such a clause in the Constitution necessary. We know that many of the most eminent men of this country, gen- tlemen of remarkable capacity, have filled positions when young. Henry Clay was United States Senator before he was eligible to take the filace. Newton was twenty-five years of age when he discovered the awB of gravitation, and Howe, when he plaiced the world in possession of the sewing machine was barely past his majority. Therefore I think this Convention ought not to make this change from twenty-five to thirty, because there is no necessity for it. There has been no tendency on the part of the people to thrust young and inexperienced men into the executive chair. [Mr. TINNIN in the chair.] Mb. WHITE. Mr. Chairman : I merely rise to add my voice in Cavor Digitized by Google 288 DEBATES AND PROCEEDINGS Monday, of this ehange back to t^rentj-fire yean, and in fact I woald be willing to make it twenty-one, for the very reason that the jieople are the best judges of who they will elect Governor, and I think it highly necessary that the young men of the country should take part in the af&irs of government as well as the older ones. But I would neither make a dis- tinction as to age, either young or old ; let the people judge for them- selves. This idea that reason and wisdom are confined to age is all wrong. I could name several instances, but I will not detain the Con- vention, because I think it is well understood. Francis the First of France, at twenty-five, fought the greatest battle he ever fought in bis life, and changed the whole current of affairs, and he was the greatest monarch of his time. So, Mr, President, I hope and trust the amend- ment will prevail. Mb. hale. Mr. Chairman : For myself, I am strongly inclined to view the matter in the same light. I would like very much to hear from the Chairman, or some member of the Convention who took part in their deliberations, the reasons which influenced them to make this change. For myself, I am strongly inclined to adhere to the letter of the present Constitution unless there is some strong reason given for a change, and unless otherwise advised I shall vote for this amendment. I would like to hear from some member of the committee the reasons that led them to make this change. Mk. O'DOKNELL. Mr. President: I make a motion to strike out that last clause so as to have no limit to the age whatever. Give the young men a show. If the people want to elect a young man as Gov- ernor, they have a parfect rignt to do it, and I don't see why we should interfere. Mb. NOEL. Mr. Chairman: The motion was to strike out the last clause; I would like to know where it begins and where it ends. Thb CHAIRMAN. The amendment has not been read yet; we do not know where it begins or where it ends. Mb. cross. Mr. Chairman : While the gentleman is preparing his amendment I would like to say a word on t&ia question. I propose to say a word as to how the young men feel. It is a kind of a two-sided question. One side claims that there should be no restriction as to the ago of the occupant of the Governor's chair, and that by placing the limit at thirty, we will cut off a considerable portion of those who are fitted to fill that position. For my part, I believe that no Governor of a great State like tbis should be younger than thirty years. While it is true that one man was a great general at twenty-six, and another a great statesman at twenty-five, it is equally true that the one was a greater general and the other a greater statesman at thirty. The inter- ests of our State, as I understand the matter, demand that the execu- tive officer should be a man of ripe experience, and this he is not apt to be under the age of thirty years. I, for one, am opposed to going back to the old rule. It seems to me a mistake to have a man under that age. We want a man who is acquainted with the usual active duties of pub- lic life, and ten years experience is little enough for a man lo enter the list of competitors for so nigh and responsible an office as Governor of a great State. I am opposed to the amendment which changes it back again from thirty to twenty-five years. Mb. WICKES. Mr. Chairman: I am opposed, also, to changing the restriction from thirty years back to twenty-five years, for this reason : I think that the man who is to be nominated by the people for this high office should go through some of the other offices in the gift of the peo- ple; through the legislative department, for instance. Mb. O'DONNELL. Mr. Chairman: I have my amendment now in writing. Thb SECRETARY read: "No person shall be eligible to the office of Governor who has not been a citizen of the United States and a resident of this State five years next preceding the election, and attained twenty-one years of age at the time of such election." Mb. O'DONNELL. I hope that amendment will be adopted. Mb. WATERS. I would like to hear that read again. It seems to me that would allow a boy seventeen years old to vote, as I understand it. Thb CHAIRMAN. The question is on the amendment. Lost. Mb. ANDREWS. Mr. President: Mr. Hale, I suppose, is aware that the Chairman of the Committee on Executive Department is absent. As one of that committee, I will state thot the committee was at first about to fix this limit at thirty-five years, but upon further consideration we fixed it at thirty years. I don't know that I can give the reasons which actuated the committee in making this change from the old Constitu- tion, as to the limitation. The gentleman will find by an examination of the section that there is no change made in the period of residence required. Now, the gentleman will certainly not question that it is wise to make that change. It might have been better to have made the limitation required instead of five years' residence, required ten. But the committee concluded upon five years; and they finally concluded that thirty years was the proper age. Certainly, Mr. Chairman, men who are thirty have more experience, as stated by Mr. Cross, have more experience and are better qualified for the position than men of twenty- five. We have limitations on the President and on United States Sena- tors. The committee took all these things into consideration. They took into consideration the fact that it required the same maturity to be Governor that it did to be a United States Senator. In relation to the objections made by Dr. Shurtleff, that at the time the present Constitution was adopted over two thirds of the men who framed it were under thirty years of age, or at any rate two thirds of the voters were under thirty years; therefore, at the time the present Con- stitution was adopted, why, almost a majority of the voters of the State of California were at4hat time not over twenty-five years of oge. I am not disposed to look at it in the same light that the gentleman does. I think there is a greater necessity for such a restriction now than existed at that time. Tbe chairman. The question is on the amendment proposed by the gentleman from Napa, Mr. Shurtleff. The amendment prevailed on a standing vote — ^es, 53 ; noes, 41. Mb. DUDLEY, of Solano. Mr. Chairman : I offer an amendment to the section. Thb secretary reafl: "Amend section three by adding at the bottom : " Tbe Governor shall be disqualified from holding any other office during tbe term for which he shall have been elected." Thb CHAIRMAN. The question is on the amendment. Mb. DUDLEY, of Solano. Mr. Chairman: My object in oflering that amendment is tbis : it is a well-known fact that the habit has gained ground in tbis State of the Governor using his office for his ova advancement; and if the Governor is disqualified from holding any other office, he will not meddle in State politics for the purpose of making bis office the stepping stone to the United States Senatonhin. Mb. GREGG. Mr. Chairman : The State of California does not have the right to pass upon the qualifications of Senators and Representatives in Congress. Mb.O'SULLIVAN. Mr. President : While I am in favor of the propo- sition offered by Mr. Dudley, I think it should not be passed on now, but wait until we get through with the other sections. 'The Governor is the only person debarred in this report, and I shall propose a sectioD debarring ever)" State officer from holding any other office. The amendment was rejected. Mb. WICKES. I have on amendment to section three. Thb secretary read : " Strike out the word ' five ' before the word ' years,' and insert ' ten.'" liOSt. The chairman. There being no further amendments to section three, the Secretary will read section four. Thb secretary read : Sbc. 4. The returns of every election for Governor shall be sealed up and transmitted to tbe seat of government, directed to the Speaker of the Assembly, who shall, during the first week of the session, open and publish them in tbe presence of both houses of tbe Legislature. Tbe person having the highest numlier of votes shall be Governor; but, in case any two or more have an equal and tbe highest number of votes, the Legislature shall, by joint vote of both houses, choose one of said persons so having an equal and the highest number of votes for Governor. Tub chairman. There being no amendments to section four, the Secretary will read section five : Thb SECRETARY read: Sbc. 6. The Governor shall be Commander-in-Chief of the militia, the army and navy of this State. The chairman. There being no amendments to section five, the Secretary will read section six. The SECRETARY read: Sec, 6. He shall transact all executive business with the officers of government, civil and military, and may require information, in writ- ing, from the officers of tbe executive department, upon any subject relating to the duties of their respective offices. Thb chairman. There being no amendments to section six, the Secretary will read section seven. The SECRETARY read : Sec. 7. He shall see that the laws are faithfully executed. The chairman. There being no amendments, tbe Secretary will read tbe next section. The SECRETARY read : Sec. 8. When any office shall, from any cause, become vacant, and no mode is provided by the Constitution and law for filling suclkvacancy, tbe Governor shall have ^wer to fill such vacancy by granting a cum- mission, which shall expire at tbe end of the next session of the Legis- lature, or at the next election by the people. The CHAIRMAN. There l>eing no amendment, the Secretary will read section nine. The SECRETARY read: Sec. 9. He may, on extraordinary occasions, convene the Legisla- ture by proclamation, stating the purposes for which he has convened it, and when so convened it shall have no power to legislate on any subjects other than those specified in the proclamation, but may provide for tbe expenses of the session and other matters incidental thereto. Mb. DUDLEY, of Solano. Mr. Chairman: I move to amend the section by striking out all after the word "it," in the second line. The section will then read : " He may, on extraordinary occasions, convene the Legislature by proclamation, stating the purposes for which he has convened it." I believe the Legislature, when assembled, are as well qualified to judge as the Governor. T^E CHAIRMAN. The gentleman will send up his amendment in writing. - The amendment was sent up and read by the Secretary as follows: " Strike out all after the word ' it ' in tbe second line of section nine." Mr. white. Mr. President: I was only going to say that I hope it won't be adopted, as this is one of the very best sections brought in here. Mb. DUDLEY, of Solano. Mr. Chairman : I do not see any necessity for tbis. I see no necessity for the section as reported by the committee. If we are going to concede that one man knows more about the interests of the State than the Legislature, or has the intereists of the State more at heart than the people themselves, then let us adopt the section as reported. I do not like the idea at all of acknowledging that the people ore not qualified to govern themselves, and that the legislators are not qualified to judge of the interests of the people, and of the things that are necessary to be done to promote those interests. Mb. brown. Mr. Chairman : I do not intend to occupy the time Digitized by Google Nov. 4, 1878. OF THE CONSTITUTIONAL CONVENTION. 289 of the ConTention Teiy long on this subject, but it does appear to me that it would be wrong to strike this out ; decidedly so. We do not propoce [Cries of "louder," "louder."] He. brown. If gentlemen will wash their necks and pick their ears they will be able to hear. [Laughter and applause.] Now all I hare to say is this, that we do not suppose the Governor would call the Legislature together unless there be some prevailing public sentiment for a certain purpose ; and consequently it would not be one man, as the gentleman has urged, but it would be the sentiment of the people expressed through the (Governor. This would leave the matter in a very satisfactory position. I think the section is correct and should stand as it is. The question being on the amendment proposed by the gentleman fiom Solano, Mr. Dudley, it was lost. Thi chairman. There being no further amendment, the Secre- tarr will read section ten. tai SECRETARY read : Sbc. 10. He shall communicate by message to the Iiegislature, at every session, the condition of the State, and recommend such matters as he shall deem expedient. Ths CHAIRMAN. There being no amendments the Secretary will read section eleven. Thi SECRETARY read: Sk. U. Id case of a disagreement between the two houses with respect to the time of adjournment, the Crovernor shall have power to adjourn the Legislature to such time as he may think proper; prmided, it be not beyond the time 6xed for the meeting of the next L^islature. Thi CHAIRMAN. Are there any amendments ; if not the Secretary will read the next section. Thi SECRETARY read : Bia 12. No person shall, while holding any office under the United States or this State, exercise the office of Cktvernor except as hereinafter expressly provided. Tex CHAIRMAN. If there are no amendments the Secretary will read the next section. Thi secretary read: 8tc. 13. There shall be a seal of this State, which shall be kept by the Governor, and used by him officially, and shall be called " The Great Seal of the State of California." Thi chairman. The Secretary will read section fourteen. Thi secretary read : 8k. 14. All grants and commissions shall be in the name and by the tathority of the people of the State of California, sealed with the great seal of the State, signed by the Governor, and countersigned by the Secretary of State. Thi chairman. There being no amendments the Secretary will read the next section. Thi secretary read : Sic. is. a Lieutenant-Governor shall be elected at the same time and places, and in the same manner, as the Governor; and his term of office and his qualifications of eligibility shall also be the same. He shall be President of the Senate, but shall only have a casting vole therein. If, during a vacancy of the office of Governor, the Lieutenant- Governor shall be impeached, displaced, resign, die, or become incapable of performing the duties of his office, or be absent from the State, the Prwident pro tem. of the Senate shall act as Governor until the vacancv be filled or the disability shall cease. The Lieutenant-Governor shall be diei^ualified from holding any other office, except aa specially pro- vided m this Constitution, during the term for which he shall have been elected. Ma. O'SULLIVAN. I offer an amendment. Thi secretary read : Strike out all after the word "cease," in the eighth line of section fifteen. Tbi chairman. The question is on the amendment. Lost. Thi chairman. The Secretary will read section sixteen. The SECRERARY read : Sic. U. In case of the impeachment of the Governor, or his removal from office, death, inability to discharge the powers and duties of the said office, resignation, or absence from the State, the powers and duties of the offi(x shall devolve upon the Lieutenant-Governor for the residue of the term, or until the disability shall cease. But when the Governor shall, with the consent of the Legislature, be out of the State in time of war, at the head of any military force thereof, he shall continue Com- niander-in-Chief of all the military force of the State. Hx. BLACKMER. Mr. Chairman : I wish simply to inquire who is referred to in the last line of this section, when it says " he shall con- tinue Commander-in-Chief." It is evidently intended to describe the duties of Lieutenant-Governor. " But when the Governor shall, with the consent of the Legislature, be out of the State in time of war, at the houi of any military force thereof, he shall continue Commander-in- Chief," etc. Does that apply to the Governor or to the Lieutenant-Gov- emor? Me. terry. Mr. Chairman : There is no question about that. It applies to the Governor. It says so in plain language : " When he shall be out of the State, he shall continue," etc. There la no reason why he should not continue to be the military commander of the State. Thi CHAIRMAN. Is there any amendment ? If not, the Secretary will read section seventeen. Thk SECRETARY read: Sic. 17. A Secretary of State, a Controller, a Treasurer, an Attomey- Oeneril, and a Surveyor-General, shall be elected at the same time and places, and in the same manner as the Governor and Lieutenant-Gov- ernor, and whose term of office shall be the same aa the Governor. 37 Thk CHAI RMAN. If there is no amendments to the section, the Sec- retary will read the next section. Thk SECRETARY read: Skc. 18. The Secretary of State shall keep a fair record of the official acts of the Legislative and Executive Departments of the Government, and shall, when required, lay the same, and all matters relative thereto, before either branch of the Legislature, and shall perform such other duties as may be assigned him by law. Mb. HERRINGTON. I move to strike ouj; the word "either," and insert the word "each," in line four, so as to read "each branch of the Legislature." Mb. WEBSTER. It occurs to me that it would be more proper to strike out the word " fiur," in the first line, before the word " record," and insert the word " correct." I offer that as an amendment. Ma. ANDREWS. Mr. President: Gentlemen have been objecting as a general thing to altering the Constitution unless there is some urgent necessity for the chan^ If the gentleman will refer, to section nineteen of the present Constitution he will find that is the exact lan- guage of the present Constitution, and also "either branch of the Legis- lature" is used. Mb. HERRINGTON. I withdraw the amendment. Mb. ROLFE. Mr. Chairman : I think it is very improper to make that change. It is understood that a record must be legible. It is not a record unless it is correct. If it is not correct, not a correct transcript of the laws passed by the Legislature, it is not a record. It has to be cor- rect to be a record, and this merely requires it to be a plain, legible record. Mb. WEBSTER. I take it that the Constitution means just what it says, or it should mean what it says. " Correct " is the proper word in order to gel the sense conveyed. A "fair" record may oe a legible record without being a correct record. It cannot be correct without being legible. Not very well, it can't, because it cannot be understood. I think "correct" is the proper word, because it expresses the idea designed to be oonv^ed. Thk chairman. The question is on the amendment proposed by the gentleman from Alamedk, Mr. 'Webster. Division being called for, the Convention divided, and the amend- ment was adopt^ — ayes, 48 ; noes, 43. Thk CHAIRMAN. If there is no further amendment, the Secretary will read section nineteen. The SECRETARY read : Skc. 19. The Governor, Lieutenant-GK>vemor, Secretary of State, Controller, Treasurer, Attorney-General, atid Surveyor-General, shall each, at stated times during their continuance in office, receive for their services a compensation which shall not be increased or diminished during the term for which they shall have been elected, which compen- sation is hereby fixed for the following officers for the two terms next ensuing the adoption of this C/onstitution, as follows: Governor, six thousand dollars per annum ; Lieutenant-Governor, the same per diem as may be provided by law for the Speaker of the Assembly ; the Sec- retary of State, Controller, and Treasurer, three thousand dollars each per annum, said compensation to be in full for all services by them respectively rendered in any official capacity or employment what- soever during their respective terms of office; provided, however, that the Legislature, after the expiration of the terms hereinbefore men- tioned, may by law diminish the compensation of any or all of said officers, but in no case shall have the power to increase the same above the sums hereby fixed by this Constitution. The Legislature shall by law fix the compensation of the Attorney-General and the Surveyor- General, and may, in its discretion, abolish the office of Surveyor-Gen- eral; and none of the officers hereinbefore named shall receive for their own use any fees or perquisites for the performance of any official duty. Mb. SMITH, of Santa Clara. Mr. Cnairman: I have an amendment which I will send up. Thk SECRETARY read the amendment: Strike out " six " in the seventh line, and insert " five," so as to read : "Governor, five thousand dollars per annum." Thk CHAIRMAN. The question is on this amendment. Mb. ESTEE. Mr. Chairman : As far as I am concerned, I am not here for the purpose of legislating with a view of meeting the popultu* demand for an unwise decrease oflhe compensation of any public officer. I think when a Governor, having his home'and his business in some remote part of the State, comes here to ser\'e the people for a period of four years, six thousand dollars a year is not too much. And I wish to say right here that I think the salary of the Treasurer as fixed — three thousand dollars — taking in view the amount of money he has charge of and the amount of nis bonds, the salary is ridiculously small — speaking respectfully of the committee. You cannot get men who will assume the responsibility; who will meet the wishes of the people of this State ; who has a reputation that will commend itself to the people of the whole State, who will come here and give the bonds which the' State Treasurer is obliged to give, for three thousand dollars per annum. I believe, sir, these services should be paid for in just the proportion of like services in any other capacity; tue same as for a like responsible duty which might be imposed on a citizen in the private walks of life. And I want to know where the Cashier of a bank in this State, or the President of a bank is, who handles as much money or gives as heavy' bonds as the Treasurer of this State, that would take the position for three thousand dollars? I know, sir, there are a great many men in this State who would be glad to be Treasurer for nothing. There are a great many men who would be glad to be Governor of this State for ■ nothing. I know there are a great many^en who would be glad to be GoYcmor of this State for five thousand dollars; but I think, sir, that six thousand dollars for the Governor and four thousand dollars for the Treasurer is a fair and just compensation, and I do not propose, as far as I am concerned, as a member on this floor, to denvto t^J^^eoP^f ,^ Digitized by VjOVJ^ It • 290 DEBATES AND PROCEEDINGS MOKDAT, officer a fair and just compensation. I do not believe the people who pay the taxes, nor the people who do the voting in this State, expect us to make an unreasonable deduction in the compensation of the most responsible officers in this State — the most responsible and laborious offices within the gift of the people of California. As far as the Controller ana Secretair of State are concerned, I have nothing to say ; but as far as the offices of the Chief Executive of this State and the Treasurer of the State are concerned, I think that they should be amply paid in the positions they occupy, and I hope the amendment Sroposea will not be adopted. I think six thousand dollars for the oremor is not too much. I would put in a clause here, if it be in order — and I understand it is in order — that the Legislature might, from time to time, change the salaries of these officers, but not during the term for which they are ele^ted; and if, in the course of time, living should become so cheap and people become so anxious to hold public offices that they can afford to hold them for nothing, the Legislature can reduce the compensation afterwards. But at present I hope the salary of the Governor will not be reduced below six thousand dollars. And I shall move to fix the salary of the Treasurer at four thousand dollars a year, because I believe it is in the interest of good government, in the interest of the people, and not in the interest of these particular officers. I believe in fair dealing. I do not believe in putting these salaries so low that poor men cannot hold these p<»ition8. A man cannot go into one of these offices and go out any better off financially than when he came in, and be an honest man. Mr. ANDREWS. Mr. Chairman : As one of the committee, and as a member of this body, I have my doubta about the propriety of fixing salaries in the Constitution, and I gave my adhesion to the views of the committee in this matter. But this section of the report of the commit- tee I feel in justice to Judge Campbell, and in justice to the committee, as this question will probably be discussed at considerable length, I think they should be present when that discussion is had. I, therefore, Mr. Chairman, move that the committee rise, report progress, and ask leave to sit aniin. The CHAIRMAN. The question is on the motion that the committee rise, report progress, and ask leave to sit again. Lost. Mr. hale. Mr. Chairman : I rise, sir, to answer the remarks of the gentleman from San Francisco, Mr. Estee. I, like him, am not unaware of the fact that there seems to be a popular demand, or more properly speaking, popular clamor for a reduction of salaries. Now, I wish to say exactly what I mean on this subject. The people, when they call a man to the office of Chief Executive of this State, impose one of the highest and most responsibfe duties that can be imposed upon the citi- len. I think you will all admit that to be true. The people must at all times be able to command the services of the ablest and most worthy citizens to fill such offices of trust. Now, sir, I mean this, when I say popular clamor. You frequently hear men say, you can go out and get good workmen, and so you can, to work in some departments, for two dollars and fifty cents a day; in other departments for four dollars a day ; others still for five dollars a day, and so on ; and then they come to the conclusion, because these things may be so, and you fix the sala- ries of these officers at two or three thousand dollars, that that is an ample compensation. Such a conclusion is nonsensical. We, as wise men here, deliberating for the people of this State, must act with refer- ence^ to the existing condition of things. It is desirable that the people shall always be able to command the services of the best ana most worthy citizens for these positions. Can you expect, sir, to command the services of such men as the people may wish to select, unless you pay him a reasonable compensation. Now, the people ask a man to become Governor of the State. He says, I am a poor man ; I am dependent on my labor, on my efforts, on my skill, for my support. Perhaps it is not himself alone ; it is more than likely that ne has a family dependent upon him for support. They are dependent upon his skill, upon his enterprise, upon his exertions; and he will say to you that he cannot afford to leave his business; he cannot abandon his business in some distant part of the State to come to the Capital for four years and devote his time to the public services upon such conditions, that at the very utmost he can only be compensated for the actual expenses which he incurs. I appeal to the gentlemen on this floor — and I see about me many j[;entlemen who have personal, practical knowledge upon the subject — 19 it not true, Mr. Chairman, that no Governor of this State has yet received one dollar in the way of compensation for performing the duties of the office beyond such expenses as he is compelled to incur during the period of his office? If any gentleman thinks I am mis- taken in this assertion, let him rise and correct me. Now, sir, I believe I am as much in favor of economy as any man on this floor. I will do as much in the interest of economy, but I truly believe that this is economizing in the wrong direction. I will say, by the way, that I know there are men who would be glad to be Governor at a salary of five thousand dollars a year, but tliey are not the kind of men the people want. I know there are men who would be glad to fill this office at a merely nominal salary. But what is their object? The practical effect of it is this, to limit that class — the very highest class — of services to those who are able to sjiend their time and their means without compensation ; in other words, none but a rich man can afford to be Governor. This doctrine will not do for a free people. It will not do in a young State; it will not do in a community where we have so large a percentage of men who are dependent upon their exertions, and whose families are constantly dependent upon the affairs of the head. Now, I hold it to be the fairest thing in the world, when you employ men in public positions of trust and honor, to provide that he shall tie Curly and reasonably compensated, in view of the services, of the mag- nitude of the services, which he is called upon to perform. When you have done that, the next fair thing to do is to hold him to a strict accountability for the performance of that trust. Sir, I believe if we go down and hunt for the cause of popular complaint it will not be found to hang on this point. I believe that the people — the taxpayers — are willing to pay a fair and reasonable compensation for the services per- formed, considering the character of such services and the circumstuces under which such services are rendered, and then they want to Tiold him to a strict accountability for the faithful performance of the duty imposed upon him. Can you point me to anj young man, or to any old man either, in the State of California, who is dependent upon himself for his maintenance and support, and the support of those dependent upon him, who can take the office of Governor, come to this Capitol and fill that office faithfully and satisfactorily to the people, and be honest, for the sum of five thousand dollars a vear? Is it reasonable, sir, that we should expect and demand such a thing? It is said that men will do it for the honor, and that you cannot buy honesty. Sir, I believe in the old familiar maxim, " Pay as you go, and pay honestly as you go." No man can live in these davs as a private citizen, much less perform the functions of Governor, without paying out money every day of his life. He will use up all his salary, and if you fix it at six thousand dol- lars I think that is low enough. I would rather increase than lower it Mr. McFARLAND. Mr. Chairman: There is only one amendment pending, I believe, and I desire to offer a substitute for the section. The SECRETARY read: Sic. 19. The Governor, Lieutenant-Governor, Secretary of State, Controller, Treasurer, Attorney-General, and Surveyor-General shall each, at stated times during their continuance in office, receive for their services a compensation which shall not be increased or diminished during the term for which thev shall have been elected ; but neither of these officers shall receive, for his own use, any fees for the performance of his official duties, and said compensation shall be in full for all ser- vices rendered in all official capacities during their respective terms of office. Thr CHAIRMAN. The question is on the amendment. Mb. McFARLAND. Mr. Chairman: When we get into difficult it is a good thing sometimes to go back to the old Constitution. The amendment which I offer is taken partly from the present Constitation, but the provision is added that the compensation is to be in full for all services. Now, it seems to me that the Constitution is not the right place to fix salaries of officers. A Constitution is intended to be a per- manent, perpetual thing, not going to be changed perhaps in a hundred years, and it does seem to me that the Legislature is better qualified to determine what the salaries of officers should be than this Convention, when we have it to do for all time. If you put this in the Constitution it cannot be altered, no matter what the people may think, no matter what the Legislature itself may wish, it cannot be altered except by constitutional amendment. Now, from the early organization of this State down to the present time, this matter has been left to the Legislature, with the simple quali- fication that salaries shall not be raised or lowered during the term of the incumbent, and I have added a clause which says that the salaries so fixed shall include all the services rendered by the officer; that is to say, no matter what duties may be imposed upon bim, the stated salsiy shall cover everything. I do not believe that we should undertake to fix the salaries at all. The best wav, it seems to me, would be to leave that matter to the Legislature. I tLink it is a very small business for a Constitutional Convention to engage in. It is a matter that belones to the Legislature. If these salaries are fixed too low it will exclude from office all but two clagses — the exceedingly wealthy and the exceedingly poor — leaving out the great middle class of the people. I hope this amendment will be adopted, because I want to see tiiis matter left where it belongs — in the hands of the Legislature. Mr. brown. Mr. Chairman : I do not intend to take up three min- utes of the time of this Convention. I am in favor of the amendment offered by the gentleman from Sacramento, Mr. McFarland. Some years money is worth a great deal more than it is in other years; some years provisions are high, and some years they are low. Consequently, for us to fix salaries for all time equal and just, is out of the question. There are various reasons urged, but I feel to favor the amendment proposed by Mr. McFarland, allowing this matter to rest with the leg- islature. There is where it belongs, where the people, through their representatives, can have control of the matter at all times, to alter the salaries as the exigencies of the times demand. Mr. FILCHER. Mr. Chairman : I am very sorry that I cannot agree with my honored colleague, Jud^e Hale, in this matter. I do not know what may be the spirit and sentiment of this Convention. I do not know exactly what is the spirit of the entire people regarding this subject; but if I have not read public sentiment wrong, it is not only clamoring, but demanding, and that, too, repeatedly, time and time again, for a general reduction in the salaries of officers in this State. If that were not a fact, Mr. Chairman, I would ask why it is that political candidates, candidates for political preferment, have almost universally incorporateefore election? I'll tell you, Mr. Chairman, what the people are clamoring for: th^ are clamoring for an adjustment of taxation; they are demanding of us that we fix this Constitution so that they will be relieved from this great bunlen of taxation which is bearing them down. There are many other questions pending before this Convention, which are of far greater importance to the people of this State, than this mstterof taking off a few dollars a^earfrom State officers. The amount which is proposed here is not sufficient for a Governor who calculates to be honest, and to administer the affairs of his high office with justice. Six thousand dollars a year for the Governor of a great Stale like this, will never bankrupt the treasury, nor cause any clamoring on the part of the people. No, nor seven thousand dollars. The State officers are not now receiving any more than a just and liberal compensation for the services which they perform; not any more than the people of Cali- fornia are willing that they shall have in the future. As far as this question of economy is concerned, any one who has given the subject any consideration whatever knows very well that no man can uphold the dignity of the office of Governor of a great State like this on the pitiful sum of five thousand dollars a year, or even six thousand. I for one do not wish to belittle and degrade this high and responsible office, and lower the dignity of a great State, by putting the salary down to a pitiful pittance, barely sufficient to pay the board of the incumbent. I say, sir, that the people of this State are not crying out against the compensation of her public officers. They are in favor of payingliberally as a rule. They are in favor of doing justice to all classes. But when you come to put down the salary of the Governor and other State officers to a mere pittance, you must necessarily put down the wages of laborers, because, by the very same rule that you invoke here the Chinaman will come in and say I will work for tour bits a day, and because be is willing to do the work cheaper than the white man can possibly afibrd to do, you must take him. It follows as a logical sequence. You say that five thousand dollars is enough for Qovemor, and that there are plenty of men who would be glad to take Uie position. The same rule holds good. You must not ^ive a white laborer one dollar a day because there are plenty of Chinamen who would be glad to have the work at four bits a day. I hope the salaries will stay where they are. The peojile of this State are satisfied. There M no cause for a change. There is no clamor. I hope there will be no reduction. Hi. £i>G£BTON. Mr. Chairman : Lest some one may be misled by the remarks made by the gentleman from Placer, Mr. Filcher, in remrd to the salary of Governor in New York, I will say a few words. It ig true, that the fixed salary of that office is four thousand dollars in that State, yet they allow the Governor a great many perquisites. He is allowed his house rent — a very fine mansion, and the actual receipts of that office, includiiTg these perquisites, amount to between twelve thou- sand to fifteen thousand dollars a year. The people do not com- plain very much of the action of the Legislature. This subject of salaries was thoroughly investigated by the Senate I think three years ago, and my impression now is, that it was found that the Governor of California receives a less sum for his services than any Governor of any of the larger States I don't wish to occupy any time in illustrating the able arguments made by the gentleman from San Francisco, Mr. Estee, and the gentleman from Placer, Judge Hale. My main motive was to call the attention of the gentleman from Sacramento, Mr. McFarland, to the latter clause of his amendment, and ask if it is not redundant, and should not be left out of the section. I am in favor of the existing section as it stands. Mb. ESTEE. Will the gentleman allow me to ask him a question? Mk. EDGERTON. Certainly. Ma. ESTEE. I understand that the election for the adoption of this f^onstitution will be next May. Well, there will be an election for new officers under the Constitution, which will come ofiT in September or October following. The result will be that the Governor will be elected and inaugurated before the Legislature meets to fix any salary. Mb. McFAKLAND. I put that clause in my amendment simply because it was in the report of the committee, but perhaps it woum be better out; I think myself it is redundant. I understand what the purpose of that clause was. It was put there because heretofore certain State officers who have had stated salaries were assigned additional duties — ex officio — and they drew extra compensation for performing those duties, and it is proposed to confine them to their salaries, which shall cover all the services performed. But I do not see how the clause can do any harm. The amendment which I propose is simplv section twenty-one of the old Constitution, with this addition. If adopted it will simply express the same sentiment. It would have to be amended so as to provide for the first term of officers under the Constitution. Mb. white. Mr. Chairman : I rise merely to state — as one of the gentlemen in this house said there is no popular clamor for these reduc- tions. Now It so happens, during my election I traveled one thousand two hundred miles. I done so, and I spoke almost every night, for nearly six weeks, and I never was in a meeting that I didn't promise faithfully that these salaries should be reduced. Others can speak for themselves, but I am speaking for myself, and I do not want to leave this matter to the Legislature. When the people see the Governor receives nine thousamr dollar^ it is enormous, and they all speak of these thin^, and we have promised and pledged ourselves to them that these salaries shall be reduced and fixed in the Constitution at reasonable figures. Now, sir, as to the Governor not being able to live on five thousand dollars a year, I don't see wby, because he is a Governor, that he should not live as well as any other man on five thousand dollars. It don't oblige him to do anything that a citizen should not do. I don't see why that is not a large salary. Certainly if a poor man gets it he would have a very good thing, and if a rich man gets it he does not need any more. I have promised my constituents that I will cut off these salaries, and I mean to do it if I can, and I hope the Convention will aid me. Me. KLEINE. Mr. President: I am in favor of reducing salaries. I don't see why the Governor could not live on four thousand or five thousand dollars a year. I don't see why we should pay such high sal- aries. We are, Mr. President, sent here as reformers, and we have pledged ourselves that we will reduce the salaries not only of the Gov- ernor, but of every officer; that we will reduce the salaries of all officials, and then, Mr. President, I assure you there won't be so many of these place-hunters. Yes, reduce their salaries, and there won't be so great an inducement for these men to seek office, and spend two or three tnou- sand dollars to get the offices, because they know they won't get recom- pensed. I don't see why in the name of common sense the Governor should get any more than any other human being under God's heavens. I dijn't see w"hy a lawyer is more than any other man. [Laughter.] I don't see why we exiiect a poor man who works from morning till night, to work for a dollar a day and support his family, and leave him no redress against his oppressors, and yet we are striving to increase the wages of these officials. It is time for us to reform. If we leave it to the Legislature, we know what they have done in the past. We know that they will do nothing. You may wait for twenty-five years more and you will never see them do anything. Therefore I hope this six thousand dollar proposition will be voted down, and that when we come to the five thousand proposition we will cut it down to four thousand, and when we get it down to four thousand we will cut it down to three thousand, and then to two thousand. That's what I hope we will do. Twenty dollars a day is enough for any man to live on. Let this money go to the suffering people who are starving all over the country. Me. STEDMAN. Mr. Chairman : I wish to produce a few figures and make a few comparisons in regard to saluies of Governors. Let us see what other States pay. Florida pays her Governor five thousand dollars a year; Kentucky pays four thousand five hundred dollars; Maryland, the same; Ohio, one thousand five hundred dollars; Texas, five thousand dollars; Virginia, five thousand dollars; West Virginia, two thousand dollars; Wisconsin, five thousand dollars. Now, I under- stand these salaries are in full for all services and for all the expenses attendant upon the performance of the duties; and they receive no fees. Now, Mr. Chairman, I cannot see why the Governor of the State of California cannot live on five thousand dollars a year — yes, on two hundred and fifty dollars a month — three thousand dollars a ^ear. I think actually that would be enough for the Qoverinn>of this State. Digitized byVjOOQlC 292 DEBATES AND PROCEEDINGS Tuesday, Their expenses are not any more than the expenses of any other man. Kow, Mr. President, I know it to be a fact that you can board in this town, just as good as most of us want, at fire dollars a week. That is what I pay, five dollars a week, and that is what a great many of us in this ConTention pay. Now, then, I think that a man that is anyways economically inclined can live on five thousand dollars a year and save money. Five thousand dollars a year is a good deal of money. And as far as the public clamor fora reduction of salaries is concerned, Mr. Chair- man, I will say that my constituents are not only clamoring, but they are demanding, that salaries shall be reduced all over California. If I return to them without having used my best endeavors to accomplish it, they will simply say that I have betrayed my trust. I believe there is not a man in this Convention — I know many of my non-partiaan friends were elected on a reform platform, pledged to economy; and this is one of the very reforms to wnich many of us were specially pledged, to reduce the salaries of all State officers by a clause in the Constitution. A f^reat many gentlemen on this floor rise and sa^ that this matter of salanes should be left to the Legislature. Mr. Presi- dent, we can fix these salaries just as well as the Legislature can. I do not believe there is any danger of our getting them down too low ; not a bit of it. Let us say in this Constitution what the salaries of these Btate officialii shall be. Let us put them as low as we can and be just. I believe in being just; but I want to be just to the taxpayer as well as the official. Let us put these salaries at a figure upon which they can live. Let us not talk about economy, but let us practice it. liet us strike out six thousand dollars and insert five thousand dollars at least. That will be one step in the direction of reform. Mb. £3T£E. Mr. Chairman : I wish to say one word in reference to the economical idea4>revailiQ^ here. Mr. Chairman, as I understand it, what the people of San Francisco do want is not so much a reduction of salaries, but they want to know exactly what salaty the officers are to receive. The trouble is not in regard to the salaries which the officers receive according to law, but as to the compensation which they receive outside uf the law. That is the proposition. There are too many com- missions and too man^ perquisites that are not recognized by law. That is the objection raised everywhere throughout the State. I have heard no one in San Francisco say that the salary of the Mavor, as Mayor, is too much. I have never heard any one say that the salary of a member of the Board of Supervisors is too much ; and I challenge my young friend from San Francisco, Mr. Btedman, to point to an instance where there has been any complaint from any respectable taxpayer. But it is this, uncertain amounts that come from commissions and other surreptitious methods whereby men get money for services not rendered. It is against these that the people rise up and cry out, and not against the regular, square, honest compensation of officers. As far as i am concerned, I am not prepared to say, sir, that this State — that this Convention — will be doing credit to itself to send its Governor to live at a hash-houae, as my friend in front of me Mb. STEDMAK. I rise to % point of order. I don't live at a hash- bouse. The CHAJBMAK. The Chair thinks the point of order is well taken. [Laughter.] Mr. STEDMAIT. Some of the most respectable members of this Con- vention— some of the members I respect and honor — live where I board. Mr. £ST££. Mr. Chairman : If it is not a " hash " house, the gentle- man will accept my apology. But be stated that five dollars. a week was ample to board a man, and I don't know — to put it mildlv — I do not know the price of these houses. If I have made a mistake as to what was said, I am willing to leave it to the Convention, or to the reporter's notes. Now, sir, I am one of those who sincerely believe that the Governor of this State should maintain the dignity of his position. I am one of those who believe that there are expenses connected with the execu- tive department — with the executive office — that are not incident to a man in private life; and I wish to say here, also, that the figures of the gentleman show that the salaries in other States, in almost every instance (at least as far as I have been able to observe), are more; for this reason, that those States furnish the Governor with a mansion, where he is not obliged to pay an enormous rent. This State, under a former administration, partly built a mansion, and ailerwards it was turned into a type-setting institution. So, when a Governor comes here he is obliged to rent a bouse, and obliged to pay high rent. Kow, we have cut down the salary fVom eight thousand dollars to six thousand dollars, and we have cut off all perquisites. In nearly every State in the Union there is an office known as the State Auditor, and that officer performs those duties pertaining to that branch of the government which here our Governor is required to perform. The Governor also has a great deal of work to do m connection with the State Prison, as well as all the other public institutions of the State. I think the reduction at this time to six thousand dollars is an ample reduction. I am one who believes in paying a fair compensation for fair services, regardless of what views men who never paid a cent of taxes in their lives may have upon the subject. I believe the taxpayers of the country — those who pay into the treasury the money which goes to make up these salaries — are satisfied to pay their oificers sufficient to enable them to live in the community respectably, decentlj', and honestly. Mb. BeTYNOLDS. Mr. Chairman : It seems to me this discussion has got down pretty low when it comes to be a question whether the fentleman from San Francisco takes his meals at a respectable haah- ouse ; and also that other question, whether the gentleman from San Francisco regards one or another of the taxpayers of San Francisco as respectable taxpayers. I take it to be understood, Mr. Chairman, and I hold that opinion, that every man who is a citizen of California is a tax- payer. And one is just as much a taxpayer as another; and it makes no difference to the gentleman, and no difference to the revenue of the State, whether a man's possessions amount to a million, or whether he owns nothing but the clothes be wears, he is all the same a taxpayer, and I don't know but he is just about as rapectablt. So I think we have very little remaining of this discussion so far as the respectability of the taxpay- ers are concerned ; and I think we had better eliminate the question of respectable boarding houses from the question also, and try and resolve it upon something like the distinctive merits of the case. We have heard altogether too much about retpectability in this Convention ; let us look at this subject upon its merits. Mb. IKMAN. I raise the point of order thatvhe is not discussing the question before the bouse. Thb CHAIRMAN. The point of order is well taken; the gentleman will confine himself to the subject under discussion. Mr. BEYNOLDS. I am sorry for the gentleman who raises this objection. I was only alluding to some of the arguments on the other side. Let us look at the subject. Mr. Chairman, it is a well known . fact, we all recognize it, whether we admit it or not, but we recognize the (&ct that the State of California has been going on stilts about forty feet high, and it is just as well to admit it, and come down from these forty-foot stilts and commence walking once more on solid ground. And as good a place to begin as any is here and now, and fix the salaries of State officers in this revised Constitution. There is no question, Mr. Chairman, about that proposition, that extravagant fees and extravagant salaries lead to extravagant living. There is no disputing the other fact, that extravagant living among the officers of the State, and among officials all over the country, at the county seats, in your cities, at Sacra- mento, at Washington, and everywhere, reacts upon the people. Extravagance on the part of the Government reacts upon the people, and causes them to indulge in the same practice. Why, sir, there is no use in denying it, the outragous extravagance and corruption of the last two national wlministrations have so corrupted the people of the United States, that it has been one means of calling this Convention into exist- ence. It is one of the causes of the hard times we hear so much about. Had the two last administrations been stem, honest, and upright, we would not have witnessed the corruption and extravagance among the people all over the country, which has become so prevalent, spending their substance as faat as they earn it. These are a few of the reasons why we should put a firm hand on the brakes, and deal with this matter of salaries. Let us determine what is the fair thine to do and do it. I have made up my mind that about five thousand doUare is a good fair compensation for the Governor. That is a good fair salair. I think it is just about enough, and I would not vote to reduce it below that figure. I would not increase it beyond that figure. It seems to me about the average salary of the average States like California. Mention has been made of the State of Orecon. I was present, not as a member, but sitting at the reporters' desk, when that Constitution was framed. Their salaries were put at a very mean, pitiful figure, about one thousand five hundred dollars a year. It does not work well. It is a mean business. I think we should adopt the amendment offered by the gentleman on the other side of the house, and strike out six thousand dollars and insert five thousand dollars. That will strike the average citizen as about fair. It will satisfy the people of the country, and meet the views of those who are seeking ofSce as well. There is nothing extravagant about it, nothing mean about it ; is is more than the average lawyer will earn, more than the average citizen earns, two or three times over, and it is enough. Mb. BARNES. Mr. Chairman: I do not think there is any reason for increasing the salary of the Governor, nor have I beard any sound argu- ment advanced to show why it should be decreased. I recognize the fact stated by the gentleman from Santa Cruz, Mr. White, that he and others are pledged to an economical administration of the government, whenever they succeed in getting hold of it. So are we all. But I take it that no gentleman who sought to be a delegate to this Convention was under bonds to reduce the salaries of public officers of this State below the limit which should be deemed by the average sense of this Conven- tion to be just and reasonable. Now, sir, if an officer was elected or appointed to his station for life, he could remove permanently to Sacra- mento to attend to the afiairs of State, abandon his previous business or occupation, and turn his back upon all the pursuits of his life. He could well undertake, as a permanent engagement, to serve the State for an annual salary of eight thousand dollars, six thousand dollars, or even five thousand dollars. It would be amply sufficient. But that is not so. lie comes here fora limited period of time, possibly from some distant part of the State, where he has doubtless exhibited the qualities of fru- gality, honesty, and integrity which have been so much lauded upOT the floor of this Convention ; he has abandoned his occupation or busi- ness, and his home and prosperity, for I take it the time will neveroome when a man who is competent to become Governor of this State will be selected because he has Men a spendthrift, or because he is not anchored to property in the State, and does not possess the very qualities of honesty, integrity, and economy which are themselves a sure guarantee that he has a home, an occupation, business, and some visible means of support. Yet your Governor must turn his back upon all these. If he has a business he must provide for its continuance. He must supply the wants created by his devotion to public interests. He must leave his home. Baring four years he must maintain his local stand- ing and influence. He must also maintain an establishment here. I take it that though my friend Mr. Stedman, of San Francisco, has been obliged to make unusually economical arrangements for subsistence in Sacramento — more so than I have been able to make — he will admit that the Governor of California would not be reasonably expected to subsist as modestly as ho is apparently proud to do — and which is commendable and desirable in the private citizen. Such a mode of living is not expected or desired of the Governor. He should live as becomes the head of a great people. Make the poorest man in the State of California its Governor, ana the people who come here from abroad must see him and be entertained by^im. He has duties of Digitized by Uoogk Nov. 5, 1878. OF THE CONSTITUTIONAL CONVENTION. 293 hospitality to discbarge which are not incumbent upon men leading a domestic and private life; and this is an item to be considered, and no small item, either. This high position should not be made possible onl^ to the wealthy man. Nor snould its emoluments be so reduced that it should seem desirable only to the poorest class of citizens, to whose struggles to maintain an existence gentlemen hare so feelingly alluded. It is too much to say that the good citizen, who leaves his home and his own domestic establishment, who abandons or intrusts to strange hands his business or profession, and comes to the Capital of the State to remain during his term of office, should live upon the moderate income which would decently maintain the same citizen and his family at home. Besides, the Governor must travel about the State. He must know the condition of public institutions. He must visit the prisons, the asylums, and hospitals of the State. He must attend at public ceremonies and at public meetings involving public interests, and dis- charge duties that from custom, if not from law, properly belong to his hi^h station. He also deals with another class of customary duties, which may be classed under the head of gubernatorial chair. Every man who has ever occupied public position knows bow extensive and perpetual the claims of charity are upon him, simply because he is a public man. Demands of this sort upon one occupying a pnblic posi- tion are much greater than they are upon mere private individuals. More is expected of him. He is compelled to aosede to the calls of charity, however little he can afford to yield to them. The salary of our Governor should be put at such a figure as would suf- ficiently compensate a man of average industry, average intelligence, sod average ability for the dischanro of the duties of his high office. So huge that when he retires from office he shall have discharged all its duties with honor to himself and credit to the State, without impairing his private fortune, if he have one. The poorest man on the floor of this Convention, if he were unfortunate enough to be elected Governor, will find much is expected of him the moment he takes office, as if he were the wealthiest and most liberal citizen in the State. He will have all I have mentioned and a great deal more to do. How will he do it? I believe there never has been a Governor in this State, or the Mayor of any city, and hardly the Trustee of any township, who has not been compelled to give back to the people in one form or another at least half the money he receives from the people. I know from acquaintances of mine who have occupied public positions that such is the fact ; and there is no man who hafl ever held a public position that does not know this to be the case. Sir, it is not what we pay in actual salaries fixed by law that makes the State bleed in taxation at every pore. It is not what is bestowed by honest laws. It is stealing. [Applause.] It is the legalized brigand- tge of legislation that builds the burden of intolerable taxation. It is not what men have and pay taxes on that angers the people. It is what they hold and do not pay taxes on that makes the honest taxpayer raffer and sweat blood. [Applause.] The vice is in our unjust, unfair, tnd unequal system of taxation. Give me a system of taxation — and when we reach that point I hope we shall all unite to devise a system of thorough taxation that will meet the question — give me a system of taxation that when the citizen farmer or farmer emigrant, seeking a home i^ere he may sustain himself and his family, shall ask the price of Und, he shall not he told that its selling price is fifty dollars or one hundred dollars an acre, while if he goes to the Assessor's books, he will find it assessed at six bits or a dollar an acre I Let us stop this minimum of assessment — this maximum of sale. Here is the trouble ; here is the mischief; here is where the stealing from the State is done. [Applause.] We want to make these acre-lords and Assessors' paupers pay their honest share of the taxes. We want honest Assessors, or a Board of State Equalization that will make them honest. Regulate these matters, and the people will never complain of generous salaries for honest Governors. Let us waste no more time in needless discussion on these salaries for State officers. Let us employ these fast-waning hours in discussing and devising a system of revenue that will secure «Bd compel taxation on all property alike. I do not care then if the Governor gets twenty thousand dollars a year, but I think his present alary is small enough if he fairly and honestly and with requisite ability does execute the laws of the Commonwealth. Me. WICKES. Mr. Chairman: I am under no pledge, but I believe we should begin to work back to a basis of economy. I believe we should get back to the times of Thomas Jefferson, that great statesman who could ^toand from the Capitol without calling a carriage. Our whole nation IS becoming too extravagant. But. while I believe in retrenchment in these matters I do not believe in running the thing into the ground. Mb. K0£L. Mr. Chairman: I move that the committee now rise, and report to the Convention, and ask leave to sit again. The motion waapat. Carried by an affirmative vote of 77. IN CONVENTION. Thi PRESIDENT. Gentlemen: The Committee of the Whole have •nstmcted me to report that they have had under consideration the report of the Committee on Executive Department, have made progress, and «ak leave to sit again. BEStONATION. Mb. shoemaker. Mr. President : I wish to resign from the Com- mittee on Water and Water Rights. The sessions of the committee are held at night and I am unable to attend, and I move that Mr. McCoy of my ooun^ be put on in my place. Tee president. If there is no objection the resignation will be •ocepted and Mr. McCoy put on in his place. ADJOOSHHBMT. At four o'clock and twenty minutes p. u., on motion of Mr. Cross, the Conventiou adjourned until ten o'clock a. u. to-morrow. THIRTY-NINTH DAY. Sacramento, Tuesday, November Sth, 1878. The Convention met in regular session at ten o'clock a. m., President Hoge in the chair. 'The roll was called, and members found in attendance as follows: Andrews, Herold, Porter, Ayers, Herrington, Prouty, Barbour, Hilbom, Pulliam, Barnes, Hitchcock, Reddy, Barry, Holmes, Reed, Barton, Howard, Reynolds, Beerstecher, Huestis, Rhodes, Belcher, Hughey, Ringgold, Rolfe, Bell, Hunter, Blackmer, Inman, Schell, Boggs, Johnson, Schomp, Boucher, Jones, Shafter, Brown, Joyce, Shoemaker, Burt, Kelley, Shurtleff, Campbell, Keyes, Smith, of Santa Clara, Caples, Kleine, Smith, of 4th District, Charles, Laine, Sraith,of San Francisco, Cross, Lampson, 8oule, Crouch, Larkin, Stedman, Davis, Larue, Steele, Dean, Lavigne, Strong, Dowling, Lewis, Stuart, Doyle, Lindow, Sweasey, Dudley,of San Joaquin, Mansfield, Swenson, Dudley, of Solano, Martin, of Alameda, Swing, Dunlap, Martin, of Santa Cruz Terry, Eagon, McCallum, Tinnin, Edgerton, McComas, Townsend, Estee, McConnell, TuUy, Estey, McCoy, Turner, Evey, McFarland, Tuttle, Farrell, McNutt, Vacquerel, Fawcett, Miller, Van Dyke, Filcher, MilU, Van Voorhies, Finney, Moflbt, Walker, of Tuolumne, Freeman, Moreland, Waters, Freud, Morse, Webster, Garvey, Murphy, Weller, Gorman, Nason, West, Grace, Nelson, Wickes, Oregg, Neunaber, White, Hager, H^e, Noel, Wilson, of Tehama, O'Donnell, Wilson, of 1st District, Hall, Ohleyer, O'Sullivan, Winans, Harrison, Wyatt, Harvey, Overton, Mr. President. Heiskell, ABSENT. Berry, Cowden, Stevenson, Biggs, Glascock, Thompson, Casserly, Graves, Walker, of Marin, Chapman, Condon, Kenny, Wellin. LXAVl OF ABSIKCK. Leave of absence for one day was granted Messrs. Belcher and Ha^r. Indefinite leave of absence was granted Mr. Kenny, on account of sick- ness. Mb. huestis. I move that the reading of the Journal be dispensed with. Carried. THX SPECIAL OBDEB— COBPOBATIOMS. The president. The special order for this hour is the report of the Committee on Corporations other than Municipal. Mb. estee. Mr. President: I move that the Convention resolve itself into Committee of the Whole, for the purpose of considering the report of the Committee on Corporations other than Municipal. Mb. van dyke. Mr. President: I hope the gentleman will let us fet through with the report of the Committee on Preamble and Bill of lights before that motion is made. Mr. estee. With that in view, and for no other purpose, I will withdraw the motion to allow the gentleman to move to go into Com- mittee of the Whole to consider the four remaining sections of the Bill of Rights. I do so with the understanding that the report of the Com- mittee on Corporations other than Municipal shall keep its regular place as a special oraer. bills. Mb. edgerton. Mr. President: I desire to send up a resolution in regard to a couple of bills, to be referred to the Committee on Mileage and Contingent Expenses. Tbe president. If there are no objections the Secretary will read the resolution. The SECRETARY read: Besolvtdf That the BUm of thirtj-«lght dollars and thirty centa tw and the same Is hereby allowed to pa^ the bill of Pacific Ice Oompany and bill of Sacramento Poat Ofllott, the same to be paid out of the appropriation for ezpenaee of tbe Oonvention, and drawn in laTor of the Sergeant«t-Arma. Referred to the Committee on Mileage and ContingenJ-^pensee. ^ Digitized byVjOOQlC 294 DEBATES AND PROCEEDINGS Tuesday, NEW PROPOSITIONS. Mk. grace. Mr. President: I bare here a propoBition that I wish to have submitted to the Committee of the Whole. I vish to have it read, printed, and submitted to the Committee of the Whole in connection 'with the report of the Committee on Pardoning Power. ■ ' PlBDONIliO POWIB. Hb. ORACE then, by leave, introduced the following proposed amendment to the Constitution, in relation to the pardoning power : Abticli V. Sko. 13. The Governor shall have the power to grant reprieves, but nothing herein contained shall be construed to authorize the granting of pardons or commutations of sentence, after conviction, but if it shall appear to the Governor that in the case of any person undergoing sen- tence, additional testimony, mitigating or other circumstances, have been devcIoi>ed which bring into question the justice of such sentence, the Governor shall have the power to remand such person to the custody of the Court in which such sentence was passed for a new trial. Referred to Committee on Pardoning Power. PREAMBLI AND BILL OP BI0HT8. Mn. VAN DYKE. Mr. President: I now move that the Convention rebolvc itself into Committee of the Whole, the President in the chair, to further consider the report of the Committee on Preamble and Bill of Rights. Carried. IN COMMITTEE OF THF WHOLE. Mb. van dyke. I suppose, Mr. President, it would be in order to take it up by sections. TRIAL BT JURY. Thb chairman. The Secretary will read the amendment to sec- tion seven offered by the Committee on Judiciary and Judicial Depart- ment. Thb secretary read : Sec. 7. The right of trial by jury shall b« secured to all, and remain inviolate; but in civil actions, and in cases of misdemeanor where the punishment does not excoed six months imprisonment or a fine of five hundred dollars, or both, three fourths of the jury may ren- der a verdict. A trial by jury may be waived in all criminal cases not amounting to felony, by the consent of both parties, in open Court expressed, and in civil cases b^ the consent of the parties, signified in such manner as may be prescribeil bv law. In civil cases, and cases of misdemeanor, the jury may consist of any number, less than twelve, that the parties may agree upon in open Court. t/lK. HALE. Mr. President: I move to amend bv striking out the words, " cases of misdemeanor where the punishment joes not exceed six months' imprisonment, or a fine of five nundred dollars, or both," and insert "all criminal cases not punishable by death or imprisonment for life." When this question was formerly under discussion in Committee of the Whole I had occasion to discuss in part the question covered by the pending amendment. If I correctly understood or interpreted the sense of the invention as then shown by the vote taken, it was to the effect that the Convention, or the Committee of the Whole, would not go to the extent of allowing a less number than all the members of a jury to render a verdict in all cases whatever, nor would the committee allow the amendment to go to the extent of allowing a less number than twelve jurors to be selected by the conciinoiice of both parties in all cases, nor a jury to be waived in all cases. Such a proposition was voted down. Another proposition was presented to allow a verdict to be rendered by the concurrence of less than the jury in cases, first, other than felony, and second, in all criminal eases other than those punishable bv death or imprisonment for life. The amendment that is now sent up I's intended to take the sense of the committee upon this last proposition. It does seem to me, Mr. Chairman, that if there be reason for us to allow a jury to return a verdict without the concurrence of all the members in any case, the reason is equally potent to extend it to all cases accord- ing to the terms of the amendment proposed, which is, that tliis shall be allowed in all cases, except felonies punishable by death or imprison- ment for life. I do not really, in my own judj^neni, concur in the dis- tinction that is made, but evidently the committee is not prepared to go further, and I offer this amendment in deference to that assumed posi- tion. I submit that it will greatly aid and facilitate the prompt and certain administration of justice to allow this change to be made in these oases, and I am not able to see that any danger to the public ser- vice or to the rights of defendants will accrue. We all know, at least many lawyera having seats upon this floor know, that those cases in which disagreements of juries are most likely, have been cases not of the ordinary type. They are just those cases which have from some cause or other excited unusual public interest. No doubt as an average statement it may be said this is founded upon the serious consequences that may follow conviction to the defendant ; doubtlestf- also in many cases by reason of the real or supposed outrage of public justice when- ever any crime itself becomes an element of popular interest. Now I see no reason why, upon the principles upon which the jury system is made to rest, we should not in these cases accept the average judgment of a jury composed as provided by law as the basis of a legal and proper judgment. That it will greatly facilitate the administration of justice and secure it with promptness and certainty, I think will be conceded by all. The only question, I apprehend, that can be made against the proposition, is that there may be, in certain cases, danger of doing some real or suppm the various amendments proposed, that with this trifling amendment which I shall offer to section seven, that it will pass almoist unanimously. There is no opportunity now for me to do so, but as soon as the opportunity does come I want to move that amendment. I hope this last resort to defeat any action in this Convention— moving the old Constitution — will be voted down, and that we will keep on voting it down to the end of the Convention. Mb. ANDREWS. Mr. Chairman : I am sorry to have aroused the ire of the gentleman from San Francisco, but as yet I do not think there has been any test of the committee as to whether they want the old Constitution in relation to juries or not. There has been no vote upon that question. I think that the gentleman himself proposes to amend the report of the Judiciary Committoe-in relation te this qnes- Oigitized by VjOOQ IC Nov. 5, 1878. OF THE CONSTITUTIONAL CONVENTION. 295 tion. I prefer the Constitution as it is to the report of the Judiciary Committee. I prefer it to any section which has been suggested. As I said before I do not see but that our jury system has worked well and I am in hopes that this Convention will adhere to that. Mi. REYNOLDS. Mr. Chairman : By leave I will make one state- ment The evident intent of this Convention is to attempt to improve upon the present jury sprstem so as to devise a three-fourths verdict in certain cases, instead of the ubanimous verdict now required; and in SDotber respect, to provide, where the parties can agree, tnat the parties in criminal cases may waive a jury. These are the two points on which this committee are now trying to agree. They are direct improvements upon the old jury system. They have been adopted by many States and found to work well, and now we ar» attempting to agree upon these two imprtirements and their provisions. Let us try and see if we cannot do it. Mb. cross. Mr. Chairman : I wish to say but one word, and I will try and make it as brief as I can. When we assembled here in this Convention to amend the Constitution as it has been, we came only to make such changes as experience showed were needed. The test of the changes needed would perhaps be derived from this: whether the people in voting for the candidates thafc they have elected here from the different localities placed us upon platforms requiring any change in the jury system. There may have been counties in this State where the people demanded a change in the jury system, but I do not remem- ber of any such case ; nor do I remember that the people of this State have found that they needed a change in the present Jury system, or that that chan^ was so generally needed, as that any Convention which declared its prmciples declared in favor of any change in the jury sys- tem. Kow while our present jury system has some faults we are not sore that this change will be an improvement. But unless the people hare expressed some diasatis&ction with the present system I do not see the need of any change. Ms. SMITH, of Kern. Mr. Chairman : I think the people of the State of California have already expressed themselves upon this subject, in our sister State of Nevada. It is well known that that State has been populated mostly by Califomians, and in that State the propositions embodied in the report of the Judiciary Committee here have been adopted. Now it seems to me that the public sentiment in this State hss demanded a change in the JU17 system. Why, in every Court in this State there has been trials and retrials on account of the disagree- ment of the jury, by one or two men banging th>y as much about this question as the lawyers do. I do not see how they can, in formulating this matter. Of course, as citizens, they can see how the jury system works. They can see that there has been trouble all over this State by jurymen hanging juries. In all other mat- ters the majority rules. On the Supreme bench a majority rules, and in every matter upon which we wish to get at the right, except in a jury, the majority rules. In every case where the majority rules, it is satis- Isdory. Why should we stick to the old form of common law in this respect, when in every other respect we have yielded to the influence of greater civilization. There is yet too much superstition in regard to the old common law, and this is one of the evidences of it. Let us do ss the Califomians have done in Nevada, and where it has proved a sucoess. I think that the report of the committee is a good one, and I do not think that the prejudice now existing in this Convention should have anything to do in overturning it. Ms. Van dyke. Mr. Chairman : I hope that this committee will not adopt the amendment offered by the gentleman from Shasta, Mr. Andrews. If there is anything which is required of this Convention, in my opinion, it is to reform the jury system. It is recognized all over the State as an intolerable burden upon the citizens. The report of the Committee on Judiciary is certainly a vast improvement over the present section of the Constitution, and 1 would be in favor of going still farther in civil cases, and leaving it more to the Legislature, so that it would be somewhat flexible, and that the Legislature might reform the abuses. I am willing in criminal cases amounting to felony, to prescribe' the old common law jury. In lower cases I do not see vby the defendant should uot waive a jury if he see proper. In dvil cases I would be in favor of leaving it entirely to the judgment of the Legislature. I am aware that in this I may be radical, out I cannot see the danger of leaving the matter of trial by jury in civil cases— purely civil cases — to the wisdom and judgment of the Legisla- ture as experience might inform them. Now what is the danger? If we provide in the Constitution — if we throw around guards and checks to protect the citizen in his life and his liberty — what danger is there in leaving to the Ijegislature the pure matter of practice in civil cases in the Courts? Now, sir, we all know — lawyers know — that notwithstanding this declaration in all the bills of rights, that the trial by jury shall be inviolate forever, that it is not haain equity cases. In the case of a suit on, a promissory note, or for money had or labor done amounting to three hundred dollars, the party who wishes to embarrass litigation and delay or obstruct justice, can demand a trial by jury, and the result is that twelve, or perhaps fifteen or twenty business men of the community are compelled to drop their vocations and dance attendance upon him in the Courts to determine a matter whether John Smith owes John Brown three hundred dollars on an ordinary contract. But if the ques- tion involves the settlement of a partnership amounting tohalfa million of dollars, John Smith has no right to demand that the citizens shall drop their business and flock to the Court House to sit upon the question ana determine his rights; but he is informed that he has not, in this case, the right to a trial by jury because this is an equity case. And so you may go through the whole course of litigation. Notwithstanding we nave abolished the forms between law and equitv, notwithstanding all this distinction has been in a great measure wiped out, still, because the common law jury was not known in cases of equity, we prescribe this distinction without anv reason whatever. I cannot see why one man, simply from pure stuboornness, should compel these twelve or tweuty men to drop their business and dance attendance upon him at the Courts to decide a question on a promissory note, any more than in en action in equity. As I remarked, it is an intolerable hardship, and there is a wail coming up from citizens of every part of the State to relieve them from jury duty. Men get themselves upon the rolls of military compa- nies, and fire companies, and resort tu every expedient to avoid this tax upon them in reference to the jury trial. I am in favor of any process that will reduce this burden upon the citizen in civil cases, and I am in favor of a three-fourths verdict, because they will not then demand juries in a majority of cases. They do so now simply from the hope of getting one stubborn man out of the twelve to hong the jury. That is the reason of the demand ; not because the Judge canuot*administer justice just as well as the twelve men; not because three men cannot decide between John Smith and John Jones just as well as twelve men; but simply because this right of trial by jury is in the Constitution, and this stubborn man, who wishes to block the wheels of justice, says, " I demand a jury; I demand my constitutional right;" and the result is that the Court is compelled to grant ihft demand. I am in favor of right here aud now remedying this evil. I am in favor, as I say, of preserving tho old common law jury in all cases of felony ; in cases of misdemeanor to allow the defendant to waive a jury ; and in all civil cases leaving it to the Legislature. I do not think, Mr. Chairman, that we have the right in this Convention to claim the wisdom of ages. Not at all. Sir, you have got to leave to future legis- lation some discretion or you might as well abrogate republican govern- ment at once. We must leave some of these matters flexible. I am in favor of leaving the question of trial by jury, in purely civil cases, to the Legislature. I hope that the motion to substitute the old section, which has outlived its usef\ilnes8, will be voted down, and that we will amend this section according to the spirit of the times. Mr. BARNES. Mr. Chairman: I understood the gentleman from Kern, Mr. Smith, to say that the people had already expressed their desires by the action taken in the Constitutional Conveution of the State of Nevada, in which they adopted such a provision as is here submitted by the Committee on Judiciary and Judicial Department. I do not understand that to be the constitutional provision in Nevada. It is very brief, and I will read it so that gentlemen can see what further encroach- ments we are now proposing to make upon an ancient and time-honored institution, and which, I respectfully suggest, without good cause, ought not to be tampered with. The Nevada institution provides : " Tha trim! by Jury shall b« secured to all and remain Inviolate forever; bat a jury trial may be waived by the parties la alt civil caaea in the manner tu be pre- icribed by Inw, and in civil caaea If three fourthu of tho jurors agree npon a venlict itahail stand and have the aamo force and effect as a verdict by the whole Jury; Erovided the Legislature, by a twchthirds vote of all the members elected to each ranch thereof, may require a unmnlraoua verdict, notwithstanding this position." Therefore I say that the people of tho State of Nevada, while they were willing to enter upon tho experiment, were not willing to make it a fixed and final thing in their Constitution. It was an experiment they were about to try, and it was but an experiment. How does that resemble a provision like this that is reported by the Committee on Judiciary : " Sec. T. The rightof trial by jury shall be secured to all and remain inviolate; but in civil actions and in cases of misdemeanor, where the Eunishment does not exceed six months' imprisonment or a fine of five undred dollars, or both, three fourths of the jury may render a ver- dict. A trial by jury may be waived in all criminal cases not amount- ing to felony by the consent of both parties, in open Court expressed, and in civil cases by the consent of the parties signified in such manner as may be prescribed by law. In civil cases and in cases of misde- meanor the jury may consist of any number less than twelve that the parties may agree upon in open Court." Mr. Chairman, I think all this discussion or suggestion in rela- tion to the one obstinate man who hangs a jury is not well founded. How often it may have happened in the practice of the gentleman from Alameda that eleven jurors have been against him and one juror for him, or vice versa, I do not know, but to my mind the infallibility of the verdict of a jury rests upon its being unanimous. It is tho unani- mous conclusion of twelve good citizens that brands a man as a criminal. But why has not the man who is liable to be Gnod five hundred dollars or sent to the jail for six months, the same right to a trial by jury as the man who is to be sent to San Quentin. I do not see the distinction. It is a distinction without a diflereuce, Mr. Chairman. "A trial by jury L Digitized by Google 296 DEBATES AND PROCEEDINGS Tdksday, may be wa^ed in all criminal cases not amounting to a feloAj," etc. I object to that because men are often overborne. "We Icnow that to be the case in San Francisco. It happens all the time, in the criminal Courts especiallj. They are sometimes run by the police and men are accused of crime, dragged into the cells, cajoled and tampered with until they do not know what to do, and they take the advice of a policeman or some shyster lawyer, and before they know it they have been convicted and gone to bea ourden upon the county for six months. I see no reason why the old system which has stood so long should not be allowed lo stand. I hope that the amendment offered by the gentleman (rom Shasta, Mr. Andrews, will prevail. Mb. ROLFE. Mr. Chairman : I agree with the gentleman from Alameda that the jury system in this State has got to be an iutolerable burden. As he said, two men may get into a dispute about a promissory note for three hundred dollars, and they will demand that twelve men be brought from their business to determine the question between them, whereas there may be several of these very jurymen who are damaged by reason of attendance upon the case, more than twice the amount in dispute. I have seen that myself. I do not suppose there is a lawyer in this house— or a gentleman in this bouse, be he lawyer or layman, but what has seen the same thing. I do not see that anv of these amendments propose to remedy this evil as they should. While I am opposed to tinkering with the old Constitution any more than can pos- sibly be helped, I tuink there can be a slight amendment made to it that would oe an improvement. I go further, we should determine to take the old Constitution as the standard. I think it is a good Constitu- tion, and I do not think it needs tinkering with but very little, and unless I can see a clearly defined improvement to be made in any par- ticular instance, I will not vote for it. I would rather go back home without making any change in the Constitution at all, than to make a lot of changes that will make a worse Constitution or will set us at sea upon a system of experiment we know nothing about But, Mr. Chairman, it seems to me that none of the evils as to the intolerable burdens of the jury system upon the citizens at large, has been reached by any of the amendments. Now if we would take the old section as moved by the gentleman from Shasta, Mr. Andrews, and add to it — and if it is in order 1 will offer the amendment now — but I believe it would not be in order — if it was in order I should offer an amendment to that old section, something to the effect that in civil cases, and in cases of misdemeanor, a jury might consist of any number less than twelve that the parties mi^bt agree upon inopen Court, or that the Legislature might by law prescribe. I am opposed to making this unyielding change of allowing a major- ity or three fourths of a jury to render a verdict in any case. I am opposed to trying that experiment in the Constitution. I would not object to another amendment allowing the Legislature to prescribe that a three-fourths majority of the jury may render a verdict. I would not be opposed to that because it is an experiment, and while I would not object to the Legislature trying that experiment, I am opposed to trying it in the Constitution. The legislative enactment, if found to work badly, could easily be changed, while the Constitution cannot be so easily altered. But I am in favor of the old Constitution with the Amendment I have suggested, and I wish that the gentleman from Shasta would add that to his proposition, that in cases of misdemeanor and in all civil cases a jury may consist of any number less than twelve that the parties agree upon in open Court or that the Legisla- ture may prescribe. That will relieve this bunlen of jurjr duty to a great extent. For instance, in all cases where the amount in dispute is less than one thousand dollars, the Legislature can provide that the jury shall consist of only six persons. I do think that in all cases where the amount involved is not very large, that parties should be compelled, if they will demand citizens to be drawn from their work- shops and other places of business to settle their disputes, to leave their questions to a less number than twelve. Six, I say, is enough. I do not know but six would be enough in all cases of dispute in civil matters. But I say that unless the amount is very large, six men are just as competent to determine as twelve, and therefore I would leava it in the discretion of the Legislature to prescribe a jury of a less number than twelve. ' ♦ It is well known to all lawyers that when we say "jury" in the Consti- tution, it means the old common law jury — the apostolic number of twelve. A jury of twelve men, that is what a jury is, and a jury pre- scribed by a Constitution, using no other explanation, means a jury of twelve men. I would like to have the Legislature have the discretionary power to fix the number at a less number, and if I have an opportunity — if these other amendments are voted down — I shall offer such an amendment to this proposition. Mb. CAPLES. Mr. Chairman : The gentleman from Alameda, Mr. Van Dyke, has aptly denominated the present jury system as an intol- erable burden. I concur most heartily, but I must say, at the same time, he has put it very mildly. It is more than an intolerable burden. It is a monument of superstition and folly. It is the sum of all villainies. It is very easy, Mr. Chairman, for my friend from San Francisco, living on an iucome of one hundred and thirty thousand dollars, to say that it is all right and has worked well, but if he was in the position of the poor farmers of Sacramento County, struggling to feed and clothe the little ones around him, and should be dragged off to serve on juries for weeks and weeks without compensation, he might change his opinion. We read of a hundred jurors being called for to attend our Courts here in Sacramento. A hundred men I Wbo are they T They are not so fortunate as my friend Colonel Barnes. Thej are poor men, dragged away from their business and labors, upon which depend the support of their little ones. They are forced to come hero and sit for weeKS on a pay of two dollars a day, and pay their own board. Their time is a total loss to them, and their families are in want and suffering. And I say again, that the gentleman from Alameda has put it veij mildly when he says it is an intolerable burden. In regard to the effects of this system. Don't every gentleman know that it obstructs justice? Here, now, for instance, under that beantifiil system as perfected by modem civilization, if a man has formed or expressed an opinion he is disqualified, and must stand aside. Right here is the worst of the whole business. I have seen the Sheriff in the State of Ifevada start out under in3truoti(AiB to summon every taxpayer in the county, without reserve, in a criminal case. Could anything be more monstrous, absurd, and outrageous than to summon every taxpayer in the county to serve on one jury? It was the second trial, after every- body had read the newspapers. The Court was well aware that under this system he would require all the people in the county. That case bankrupted the county I Is there any justice, is there any wisdom, in that? Where is the likeness of a policy that is so monstrous? — a policy that is in the interest of crime. I denounce it. I denounce the whole system of the common-law Grand Jury as in the interest of crime, and as being an obstniction to the administration of criminal justice. Now, Mr. Chairman, are we here to frame an organic law in the interest of crime, or are we here to promote the interests of honest men— those who are the pillars of society; those who maintain the govern- ment; those who secure to us the blessings of law and ord^r? I assert that this is our mission, and that we are not here to protect and defend the criminal or provide further obstructions in the way of the adminis- tration of criminal law that we have enacted. Mb. HOWARD. Mr. Chairman : If I were called to select a topic upon which there has been more unmeaning declarations bestowed than any other, I should designate the trial by jury. This trial has been vigorously attacked in England by many great jurists. If there are questions of law and fact, every lawyer knows that it is not aa intelli- |;ent tribunal ; and with questions of law and fact there is scarcely one jury in ten that is competent for the trial. Again, sir, not only is it deficient in intelligence, but I maintain that the modem practice shows that it is even deficient in integrity ; that there are five hundred ootrupl jurors where there is one corrupt Judge. I bad occasion the other day to witness a case which illustrates this thing very fully. A widow lady sued a railroad company for killing her husband, by the negli^nco of an employ j of the railroad company. The case was very fully tried and went to the jury; the jury went out, and they stood from the beginning eleven for the plaintiff and one for the defendant. Of course the jury was discharged, and the next day that one juryman appeared upon the streets with about the finest tam- out in town. I am in favor of taking from the jnr^ the power it has, by ignotanoe or corruption, to defeat the administration or justice. When f resided South I used frequently to attend the Courts in New Orleans. There the party had a right to demand a jury, but whenever he did demand it, it was an understood thing that he had to pay costs. The result was that when he counted the cost he waa incurring be generally submitted his cause to the intelligence and integrity of the Judge. Now I do not deny that occasionally it might be, where there is prejudice, a good thing. Occasionally it might oe uecessair for a party to protect hun- self from the prejudice of a Judge by calling a jury; but in ninety-nine cases out of a hundred a man that has a good case, a man that is accused of crime and is innocent, would prefer to be tried by one intelligent man, and he would he safer to take the judgment of one intelligent man than he would be to leave it to twelve men. It is not difficult among twelve men to find some of them who can be approached with improper motives and inducements. I read the other day in an English publication what seemed to be a clear definition of the jury trial, wnich said that the jury trial was a proceeding where one man was tried by the prejudice of twelve others, and that everybody knows is often the case. Therefore I say that the amendment proposed by the Committee on Judiciary is a sound one. It is one in the interest of justice. It is in the interest of the poor wbo are seeking justice, aud who must encounter the rich antagonist upon the other side. Again, in relation to the majority rule in cases of misdemeanor, I con- fess I have my doubts, because liberty appears as sweet to a man who has committed a misdemeanor as it is to a man who commits a higher offense. But there is this trouble : they are the large majority of cases; there are more hung juries, and then the State and county is put to the expense of a retrial, and perhaps two or three retrials. So it seems to me, that even allowing that there might be some evil arise in allowing three fourths of a jury to find a verdict, the evil would be less than th» evils arising from bringing it down to a unanimous verdict of twelve. ' Now, sir, the question is often raised here, what we should do in the way of amendment to the Constitution. I think we should do all that is necessary, and no more. Wherever and whenever it is ascertained that an institution has been abused, or does not answer the purpose for which it has been instituted, I say that we should correct the abuse and make it so that it will accomplish the purpose for which it is designed. This is precisely one of those cases. In civil cases a verdict of three fourths of the jury does tend to a perfect administration of justice, and I bold that it is shown by the experience of men, both in England and in this country, that it is a necessary improvement. Mb. BARRY. Mr. Chairman : While I am opposed to changes in our present Constitution, unless it would subserve some useful purpose and be productive of some good, yet at the same time we know that there are many changes necessary ; changes demanded by the people ; changes in reference to taxation and corporations. I believe that if there is one thing more than another that the people of this State desire, it is a change in the jury system. I know that as reganis the people of Sierra, where I have resided so long, that they demand it. I have talked with a large number of the most intelligent men of that county, and I csn say with safety that if it was put to a vote of the people of Sierra County there would be more than three fourths say thf^he jury system should Digitized byLjOOQlC Nov. 6, 1878. OF THE CONSTITUTIONAL CONVENTION. 297 be changed ; that the concurrence of three fourths in civil cases ought to be sufficient to render a verdict. As regards the people of Nevada County, I do not know exactly how they feel in this matter; but I believe that they would approve the change. But in this matter we all represent the people of the State of California. While it is true that we »re sent here from different localities, yet we are laboring, I trust, for the oommon good. And, sir, it seems to me, that it is an undeniable fact, and one that ou^ht not to be disputed by any attorney upon this floor, that gross injustice has been done oy the non-concurrence of juries. It is often the case in civil cases, that men conte fifty, or sixty, or a hun- dred miles and more, sometimes two hundred, to the county seat, to attend a civil case. The result is that the jury disMrees, and a new trial is had. The people are put to extra expense in that matter. The litigants are put to extra expense in having a new trial, and it is one of the means by which justice is defeated, fsay that it is a wronjj to the people. It IS unjust that such a system should prevail in this State longer. There is no one has a greater lore for the old common law and the institutions of our fathers than I have, ^et I think it would be a wise departure if we take a departure in this case. As a member of the Judiciary Committee, I believe that this amendment was necessary, and when I proposed it the committee agreed with me. I believed then and I believe now that this amendment was necessary. In the most trivial cause in the Courts and where it is tried before a Justice of the Peace, defendants, through their attorneys will, as a matter of course, ask for a jury of twelve — a constitutional jury, as it is termed — because they know their chances are better to hang the jury, and get one man at least to ride with them, and in the end it results in the acquittal of the defendant. Now, sir, all will agree with me in saying that a change in the jury system is needed in that respect. I believe in the old law maxim, that it is better that ninety-nine guilty men should escape than one innocent man should suffer. I believe in throwing all the safeguards that can be thrown around cases involving life or liberty, but would do the same In civil rases as gentlemen have intimated. I say that all desire the full protection of the law; that the man who is charged with the simplest crime should have the full benefit of the law, but a conviction in capital cases is the most serious one. When a man's life is in question on his imprisonment for life then it is a serious question to deal with, and while it is true — and there is not an attorney upon this floor but will agree with me when I say that one juror in a capital case has often hung an entire jury to the detriment of justice — hung it on some quibble, or a feeling of sympathy, a feeling of prejudice towards the prosecution, or some fault of the prosecuting witnesses, or some matter that juries ought not to be governed by, something entirely foreign to the case, something entirely outside of his oath and his duty as ajuror — this is often done to the detriment of justice; but while this has been done and may be done again, and while the guilty may escape, as I said before, I would not offer this provision to have a three-fourths verdict in a capital case- in cases involving imprisonment for life, or death. But, sir, thousands of dollars could be saved to the people of the State in civil cases, as well as in eases of misdemeanor, if the law was changed in this respect — was to allow three fourths of a jury to find a verdict. And I say that the spirit of the times now demands a change. I say that when the people demand this change, and it can be made without sacrificing the interests of justice, it should be done. I think every member upon this floor should concur in a matter of this kind. What we desire is economy in the right direction, and I bold that this is the right direction. If instead of the system as it now stands, we had a provision that three fonrths of a jury may render a verdict in all civil cases and in cases of misdemeanor, where the punishment does not exceed six months imprisonment, or a fine of five hundred dollars, or Mtb, I am satisfied that it would be to the better interest of the people and to the interest of justice, and therefore I insist that the proposed change recommended by the Judiciary Committee should be adopted. Mi. McCALLUM. Mr. Chairman : I understand that the immediate question is on the proposition to restore section seven of the Constitution as it is. The CHAIRMAN. The first proposition is the amendment offered by the gentleman from Placer, JudgA Hale, to strike out the words, "cases of misdemeanor, where the punishment docs not exceed six months' imprisonment or a fine of five hundred dollars, or both," and insert, "all criminal cases not punishable by death or imprisonment for life." Ha. McCALLUM. Mr. Chairman: That will not, then, be the first question. I regret that, because in all these cases it does seem to me that we can arrive at a more speedy and intelligent conclusion if some one who offers a provision of the Constitution as it stands would offer it as an amendment to the proposed proposition, so that if a majority of the Convention are opposed to change, and should so vote, that would be the end of the whole matter. All the various propositions as to the best way to change would then be out of the question. I believe, Mr. President, at the same time, that wbile that is the proper way of proceeding, that this is one of the few questions of magnitude where an enlightened public sentiment demands a radical change in the Constitution. I believe that if the whole bar and bench of this State were to testify ai to their experience; if all who have been so unfor tonate as to be parties litigant, certainly in civil cases, and if the tax payers were called upon to testify upon this point, that nine tenths of the people of this State would demand a change. The gentleman from Los Angeles — I understood him to refer to some person who demanded s jury in a bad case. Perhaps it is no more than proper to say that it is almost a universal rule that where parties want a jury their cases are bed. There is no doubt but that it is better in a bad case to have a jury. A man demands a jury of twelve — and that is the only legal definition 38 of a jury at common law — and must have the whole comnAnity sum- moned to draw from. Again, it is an oppression upon the poor and the middle classes. It ia an oppression upon all, but often it works as a special oppression in cases where suits are brought by the poor, who are worried out by the expense of litigation. So oppressive, indeed, is this, that It is a com- mon thing for men to abandon their rights on account of the expense of maintaining them. Why, sir, I undertake to say that, if the intent is to arrive at the facts and a just conclusion, it is the judgment of bench and bar generally that this can be better accomplished before a Court than before a jury. Look at the manner in which jurors are selected. The plan is well known to you all. Well, you take jurors who have never served as jurors before. They listen to the case and hear the contradictory statements of the attorneys. Then comes a long compli- cated charge from the Court, and the jury are wholly unable to under- stand all these different questions oi fact which are involved in an intricate case. I remember a case where the Court gave a charge to the jury something to this effect : " If the jury find this fact to be so and so, then, gentlemen of the jury, you will find a verdict for the plaintiff; or, if this other fact is so and so, you will find for the plaintiff; but not- withstanding that if this other fact should be in favor of the defendant, why, then, gentlemen, you will have to find out for yourselves what your verdict ought to be, for the Court don't know." I remember, too, a story told by a very distinguished gentleman, who said it came within his own knowledge. A jury had failed to agree, and one of them said that they stood six for the plaintiff and five for the defendant. They had all heard the testimony, and six of them insisted that the plaintiff ought to have a verdict, and five of them insisted the defendant ought to have a verdict. He was asked who was the twelfth juror, and he said: "Well, I was the twelfth juror." "Which party did you belong to?" "Well, I could not decide at all." The proposition here is to change to this extent, that in civil cases three fourths of the jury may ren(ur a verdict. Why should not that be so? Justice entitles one party or the other to a verdict. If three fourths, or a mjyorily, decide everythinjf else in our republican form of government, why should not a verdict rendered by three fourths of a jury be a fair ver- dict, especially with the Court to see whether there has been any wrong application of the law, and to grant a new trial, if necessarv? The other system causes cases to be tned over and over again, until the party who has a just cause is worn out with litigation. The object of this proposition is this : The jury system, which was in the first place the bulwark of liberty — some one has said — the reason for it, however, does not apply in this country. It was a bulwark against the oppressions of the Crown, and there are many Ideas — and the Grand Jury is one of them — which we have got in this country that were of the utmost consequence to the English people from whom we got our laws. Now, it is said, however, with reference to this criminal feature, as to criminal trials, that it is important that the jury should be unanimous in misdemeanors as in felony. That proposition is only plausible in one sense. In misdemeanors Courts do try cases without any jury at all, as in the Police Courts. You cannot try felonies that way. In capital cases and in felonies the defendant is entitled to more peremptory chal- lenges than in misdemeanors. Throughout the whole system a differ- ence in the degree of crime is recognized as reason for additional safe- guards to the person. Besides, if in cases of misdemeanor a verdict was rendered by nme out of twelve, that fact undoubtedly would be taken into consideration by the Court in determining the measure of punishment. And really In most of these cases of misdemeanor it Is the measure of punishment, and not the fact of the verdict, which is the essential thing to the defendant, for all misdemeanors are exceptions from that class of-crimes which are known as felonies. The Court could remedy that in such a case. But, while speaking upon this general question, I desire to say that I to support the amendment recommended by the Committee on Judiciary, with this exception. I shall take the first opportunity to present it. I will read It now simply as a part of my argument for a reason to vote against the other proposition. I think the proposition of the gentleman from Placer entirely too narrow. I understand it makes the exception of capital cases and cases of punishment by imprisonment for life in the State Prison. I shall, at the proper time, move to strike out all after the words " Section 7," in line one, to and Including the word " veixllct," in line four, and insert as follows: " The right of trial by jury shall be secured to all and remaiu Inviolate; but in civil cases and in cases of misdemeanor three fourths of a jury may render a ver- dict." Then the section would read from the word "verdict" on as reported by the Committee on Judiciary. It would all read in this way: "Skc. T. The right of trial by jury shall be secured to all and remain inviolate; but in civil cases and in cases of misdemeanor three fourths of a jury may render a verdict. A trial by jury may be waived in all criminal cases not amounting to a felony, by the consent of both parties, in open Court expressed, and in civil cases by the consent of the parties, signified In such manner as may bo prescribed by law. In civil cases, and cases of misdemeanor, the jury may consist of any number less than twelve that the parties may agree upon in open Court." It will be seen that my amendment is only to a single point, in strik- ing out the exception where the fine cannot exceed five hundred dollars, or the imprisonment six months, and making it apply to all misde- meanors. Mb. WINANS. Mr. Chairman : The member from Sacramento, Mr. Caples, and the member from Los Angeles, Mr. Howard, have presented arguments against the entire system ; the one objecting that it is incon- venient, and the other that It Is corrupt. Now, I would suggest to the fentleman from Sacramento that, although it may be a disadvantage to im and to his children to discharge these duties, yet, when we entered into the social compact, we bound ourselves to sacrifice our private wishes Digitized by Google L^ m DEBATES AND PROCEEDINGS Tuesday, and predil^ions in all oates where it was neceasai? for the public good. To the gentleman from Los Angeles I would say that the system which he denounces has been sanctioned by the experience and wisdom of all ages, from its institution until now. Now, sir, it is proposed that we should mutilate this system ; that we should require but three fourths of a jury to render a verdict. You, in that course of action, destroy the character of the system ; you deprive it of uniformity, and take from it a portion of its very essence. The human body may retain its vitality if robbed or deprived of a limb, but it loses its beauty and its harmony for- ever. So this system may survive under mutilation, but it has lost its char- acter, and you enter upon an experiment entirely new. I say that when Sntlemen declare that Judges are more reliable than juries, they are king about an untried experiment, the results of which are uncertain. Throw the whole work of these trials upon the bench, and you will find in some cases prejudice, in some cases sympathy, and in some cases igno- rance of the law; and you might get less justice than from twelve men who concur in a verdict, for when wrong the Judge will be radically wrong, and the wrong is incurable. But, apart from the merits of the system, I find that there is the utmost diversity of sentiment in reference to this new departure. There is an underlying feeling in this Convention, I believe, in favor of the Con- stitution as it is, with such changes only as are indisputably compelled by the condition of the times and uie welfare of the people. Beyond that, sir, if you advance a single step, you go in the wrong direction. It is tai better, unless experience compels the change, to tread in the ancient paths. I honor the sentiment of this Convention, which 1 believe is nilly indicated, of standing by the old Constitution so far as possible. I believe that thoee gentlemen who are desirous of removing every frag- ment of its now existence, of destroying its every plank, are going too far in the principle of reform — far Myond what the conservative spirit of the age demands; far beyond what the wisdom of our land would determine; far beyond what the exigencies of the times require. There are propositions in that old Constitution which are now attacked, which have at least the merit of having endured through long centuries, through generations of men. And now a change is proposed, the results of which ore uncertain, the chances of which are imminently hazardous. But which is the change proposed? One favors the amendment of the committee, with a dinerence, and then favors the amendment of the committee, with another ditference, and a third with a diflerenoe still other than the other two. Each man has bis plan, and in the confusion and the multiplicity of amendments we have absolutely lost all idea of the right and true result. Now, sir, while every man should stand upon the platform of the Constitution in this regard, as consistent and conser- vative, they are utterly divided in their sentiments. Twenty proposi- tions have been made, and others are yet to come. No two men agree, hardly. All want a change, one thinking the change should be in this point, and another in that one. I say, sir, that unless the circumstances of the case demand a change let us stand by the Constitution as it is, and in this instance no change is needed by the people. I say that notwithstanding the invectives hurled against the jury system by the gentleman from Los Angeles and Sacramento, and by those who have been disappointed, it stands as a monument of human wisdom. As regards corruption, I do not know how placing this duty upon six or ei^ht men, instead of twelve, will mend that. Gentlemen familiar with juries have frequently found, too, that the one juror, in cases of a disagreement, has b^n right, and has furthered the ends of justice, whether it involved the loss of a fortune or the sacrifice of a life. Mr. Chairman, I prefer to stand where my fathers stood before me. I prefer to have my children stand where I stand. I prefer to stand by this system which has been our safeguard, and in all matters to remain as we are, except in needful cases. Ma. O'DOWNELL. Mr. Chairman : I do not want to make a spread- eagle speech here, or occupy but a little time, but I would like to say a few words in regard to this section. " The right of trial by jury shall be secured to all, and remain inviolate forever; but a jury trial may be waived by the parties, in all civil cases, in the manner to be prescribed by law." That section is in every Constitution, in every State in this Union, and has been there for one hundred years, and it should be invio- late forever. I have seen the benefit of that section in San Francisco, and it was this: There was a party arrested in that city for rioting, where there was no man that was arrested that was any more of a rioter than any one of you present in this ball. A jury was summoned to try these rioters. What was the result? That jury was all men who were lumber merchants, door, window, and sash makers, from the very part ot the city where there had been a fire that destroyed a good deal of property. The jury was picked from that quarter, and the result was that every man but one were in favor of convicting these men of rioting. That one man in twelve saved these men from going to the county jail for six months. For that reason, as one, I am in favor of standing by the old Constitution, and that section. Many lawyers who are present DOW, from the City and County of San Francisco, particularly, were, no doubt, sent here for the express purpose of making the change in that section. No doubt they will make the change, too. There are seventy- five lawyers in this body — a majority of this Convention. They have told us already they possessed the brains of this Convention. Here is a section that was referred to the Committee on Bill of Rights, and the Judiciary Committee has taken that power from them, and have taken it among themselves to change that clause. Now I shall praise the bridge that has carried me over safe, and I hope that section will be retained and will be inviolate forever; and I hope every reasonable and sensible delegate on this floor will do the same. I thank you kindly for your attention. Mb. brown. Mr. Chairman : I am inclined to think that certain gentlemen upon this floor are mistaken about the people not wishing any changes in the Constitution as it now stands, and with regard to thsir wishing no change in the Constitution as regards the jury system ia this ^tate. Now, it does seem passingly strange that it ^ould be taken for granted here upon this floor that it is almost an outrage to propose any change in the Constitution of this State as it stands, especially when we notice and read the law under which this Convention is acting. W« know that the Convention to a great extent was to revise, change, and make a new Constitution. I am one of those that believe in being cau- tious in reaching forward to matters that are new, and I am oppmed to laying violent hands upon the sacred principles that are found in the old Constitution. But when public sentiment is expresKd, and when it is known that certain changes are demanded as a matter of necetsity, then we should attend to the wishes of the people of this State. Now, in the part of the country that I came from, this subject was diseaiKd; this whole jury question was discussed, and the people there were decidedly in favor of a change in the jury system; decidedly so. lam under the impression that the same sentiment prevails throughout the State to a groat extent. Oeutlemen will hear stated upon the floor that there is nothing of the kind desired. It is desired t It has been dis- cussed, and the defects, as the people consider, of the jury system, have been pointed out. Now, I would simply say, without entenng into legal questions upon the subject, that I am convinced that the report at made by the Committee on Judiciary in this case covers just about the ground that my constituents wish, and I think the great body of the people of this State demand. Ma. GREGO. Mr. Chairman : There is a feature about this section reported by the Committee on Judiciary thai I do not like a great deal. It allows three fourths of a jury to return a verdict. I am opposed to this seven to eight business. Now and then it ia very agreeable to have the eight, but there might come a time when our side won't be satisfied with the eight. I think that a verdict to have any dignity should be t full verdict of the jury. I do not think twelve men should be called to determine whether John Jones is guilty of striking John Brown over the nose. I think a less number should certainly be allowed to deter- mine in that class of cases. But, sir, a verdict, to be a verdict, it seems to me, ought to be the unanimous decision of the jury. I am opposed to this eight to seven business. Iwould like to see a change made so that misdemeanors could be tried by less than twelve, or by some number agreed upon. It is the general opinion of the public that twelve men should not be dragged into Court upon these cases of misdemeanor or civil suits involving fifty or one hundred dollars. They recognise the fact that justice demands the attendance of citizens upon the Courts, but a less number than twelve is sufficient to decide on these cases of mis- demeanor and minor cases. There is where the people have growled. They are always satisfied with a verdict that is rendered by a full jury. I think if we make a change in the old Constitution, so as to allow a less number than twelve to he called in cases of this kind, we will meet the demand of the people, but if we change it so that three fourths of a jury may find a verdict we will not really meet the approval of the people, because we know that the eight to seven business never can become satisfactory. Mb. BLACKMER. Mr. Chairman: I do not wish to oocapy the time of the committee, but inasmuch as the question has arisen as to whether there is any demand for a change in the jury system, I think I should say a word in regard to the feeling in my own county. It seems to me that the fact that there are so many in this Convention who have already expressed themselves in favor of'^a change, coming as we have direct from the ])eople, where these matters have been fully discussed, is pretty good evidence that the change is demanded, if not by the majority of the people, at least by a very large minority. I know in my own county the question was dismssed quite freely, and I failed to find any who were not in favor of some change whereby justice could be arrived at more speedily and more correctly. It was the unanimous feeling in all parts of the county that the present jury system did not accomplish what it ought to, and that some change should be made in the direction of improvement Fpr that reason I am opposed to the amendment, as oQ°erened ofllcen, two of whom — Osptaln Qiarles Hcenbrodt and raiitain J. Sswali Keed— were killed. Calllornia also (tamiahed eight infantry regiments, two caralry regiments, one battalion of mountalneerB, one battalion natire cavalry, besides a large number who went East to serre in both armies, in sll not less than twenty thousand men ; and as It Is conceded that OaliA>mlans hare done tbelr duty in erery emergency and erery peill, tnm the fall of Baker at Ball's Blnlf to the cloee of the war, the casualties sawng thsat must hare been an arerage percentage of the half a million of men who fell un both sides. In the ranks of the Califomia National Guard at the present time are many of the sorrlron. Colonel Smedberg, who commands the Second Infantry Regiment. Second Brigade, National Ouard, loet a leg tn battle. Mi^Jor Peiioe, of the same regiment, is now •lowly recorsring firom an attack of sickness, the rssolt of wounds reeeired in battle. The first Caralry Battalion Is commanded by a retersn soldier, Malor Orton, as SIS ssreral of ths in&ntty companies. Of the eleven memben of the staff of the Second Brigade, six are soldlen of the war, one of whom, M^jor Kinne, was Assistant A(ijutant-General of the regnlw Brigade of Caralry, under General Sheridan. Fire out of nine of the Commanden of unattached companies hare seen serrios, one of whom, the Comuuinderufthe Sacramento Light Artillery, served in the nrtil- lery under General lubal Early, and since the war has served a term in tlie Fourth United Sutes Artillery. A similar proportion as abore, will, I think, hold throughout the National Guard. I am not aware how many of them were wounded in the service, but if It is abso- lutely necessary for the Conrentlon to know, I shall, to the best of my abltl^, endearor to Inform it, at as early an opportunity as possible, together with the casualties of the Indian wan. I have the honor to remain, very respsctftally, your obedient servant, P. F. WALSH, Adjutant-Qensial. Mb. BABNES. I more that the report lie on the table and be printed. Mb. TINNIN. Mr. President : I hope that it will not be printed. It was evidently intended for a joke, and 1 hope that it will not be printed. Mb. BARNES, Mr. President: It is not intended as a jest. Perhaps the gentleman who introduced it intended it in some way to reflect upon the militaij, and I presume it was so, because other gentlemen this morning laid on my desk a wooden block entitled, " a list of the killed, wounded, and missing." I was sorry to find it here; sorry to see that any gentleman would part with his brains for my benefit. [Laughter.) I think the report should be printed in connection with the subject which is soon to come up for discussion. I make that motion in all seriousness as Chairman of the committee. TBI PRESIDENT. If there is no objection it will be printed. The Chair bears no objection. HoncB. Mb. NOEL. Mr. President: I desire to give notice that on to-mor- row I will move to strike out rule seven. BBPOBT. Mb. STEDMAN. Mr. President; I ask leave to present a sopple- mentary report trota the Committee on Military Affairs, signed W a majority of the committee, and ask that it be printed with the other report. Tbb PRESIDENT. The Secretary .will read the report. Thb SECRETARY read as follows: Mb. PBisiDcirr: We, the undersigned, a minority of your Committee on HiUtaiy AflUrs, bi'g leave to report the following additional section for inseition in the arti- cle on militia, in the new Constitntiori ; SccnoH — . I' xcept in case of war or inanrrectloD, the Legislature shall not authorise to be expended, or apprmiriated, more than twenty-five thousand dollan In anv one year fur organising and dtsripllning the militia, which shall include all salaries, all rents, and dtsbunements of every character relating to the militia of the State, and care of the arms belonging to the State. Nor shall the numlH>r of uniformed militia in the State exceed ten companies of one hundred and twenty men rank and file each ; provided, that at the expiration of ten yean from the time of the adoption of this Constitution, the Legislature shall have the power, notwlth* standing this section, to incroase the allowance hereby made, and the number of uniformed militia hereby allowed. JOHN C. 8TKDMAN, E. V. SMITH, J. C. BROWN, WM. S. MOFFAT, THOS. H. ESTET, BAMLET DATIS. Thb PRESIDENT. If Ihere is no objection the report will lie on the table and be printed. The Chair hears none and it is so ordered. Mb. van dyke. Mr. President: I move that the Convention do now resolve itself into a Committee of the Whole, for the purpose. of considering article one, the report of the Committee on Preamble and Bill of Righto. So ordered. IN COMMITTEE OF THE WHOLE. Thb chairman. The question is upon the amendment offered to section seven. The first question is upon the amendment offered by the gentleman from Placer, Mr. Hale, to strike out a portion of the section, and insert the proposed amendment of Mr. Hale : "The right of trial by jury shall be secured to all, and remain invio- late; but in civil actions and in all criminal cases not punishable by death or imprisonment for life, three fourths of the jury may render a verdict. A trial by jury may be waived in all criminal cases not amounting to felony, by the consent of both parties. In open Court expressed, and in civil cases by the consent of tne parties, signified in such manner as may be prescribed by law. In civil cases, and in cases of misdemeanor, the jury may consist of any number less than twelve that the parties may agre^ upon in open Court." Mr. WILSON, of First District. Mr. President: Before a vote is taken I desire to say something in support of the report of the Commit- tee on Judiciary and Judicial Department, as to the sections which they have reported. I am very much gratified to see the feeling manifested here by so large a number of the members to stand by the old land- marks, and only to depart from them in cases of urgent necessity. Upon the general proposition I heartily concur and intend to act. It seems to me, however, that this is one of the cases where there should be a departure to some extent, and I think to the extent that the com- mittee nave gone. Section seven, as reported by the Judiciary Committee, presenU several distinct propositions. They were put in that shape by the committee in order that gentlemen might vote for one and against another, according to their sentimente and convictions of right. Several distinct propcai- tions are involved. The old Constitution reserves the entire right of trial by jury in all cases, civil and criminal, unless in civil cases the parties themselves waive it. Independent of any consent, the general right of trial by jury in all cases, civil or criminal, is preserved. That is, in all cases considered by the Courts in which that right exists at common law. t^ 800 DEBATES AND PROCEEDINGS Tuesday, The report of the committee preserves that right of trial by jury invio- late in all casee — all felony cases — and in all cases of misdemeanor, except a limited class of casee specified in section seven, and with this exception there is no alteration ^t all in the workings of the old Constitution. The change which is produced here is in the lower classes of crimes and civil eases, authorizing three fourths of the jury to render a verdict. The proposition which I desire first to have considered by the Con- vention is whether it is advisable to change the old system, and instead of requiring in civil cases a unanimity of the jury, to allow three fourths of the jury to render a verdict. Now, in the old common law system of juries there were many things which have not existed for many years. We should not refuse to advance towards desirable reform sim- ply because it makes a change, because our present jury system is a vast change from that derived from the oommon law. For instance, juries originally were summoned by the Sheriff. -Now we have abandoned thi^ system and have a different one, and every person admits that this was a desirable reform. Originally jurors were drawn fh>m the imme- diate vicinity of the crime, and were therefore poorly qualified because they knew all abput it. Now we draw them from the body of the county. It is considered a disadvantage that a juror comeS from the vicinage. So, under the old system the jury rendered a verdict upon their private knowledge of the facts, independent of the evidence in the case. That is no longer admissible for a moment, and the juror who admits that he knows any of the facts is excluded from the jury; so there is a very wide departure. So, under the old system the jury were to be kept together without meat or drink, or fire, or anything of that kind. Here we have a very wide departure. Under the old oommon law system if a juror took a glass of water while the jury was out, the Court would set the verdict aside. We have made a very useful reform in that respect, and no such tomfoolery would be tolerated at the preeent day; and the jury are furnished with water, and in many instances with meat and drink, and it is the oommon custom to allow the jury to have all that nature demands. It was the custom in England, as every- body knows, that if the jury had not brought in their verdict at the time the Judges were ready to leave the town to visit another town to which their duties called them, the jury were not discharged, but were loaded up in a cart and carried along with the Judges to a neighboring town, and kept together there without meat and drink by the Court until they agreed upon a verdict. Nobody, of course, defends any such absurdity as that, and yet that is one of the glorious things of the com- mon law jury system. All these things have gone away before the modem civilization. The (juestion is, is this an advisable reform; that instead of requiring a unanimity of the jury, we shall allow nine out of the twelve to make the verdictf I think it is, for several reasons, which I shall briefly present to the committee. I have very hastily examined the law ou this subject during the recess, and I find Cooley, in his edition of Black- stone, proceeds to say that this system of requiring a unanimous verdict of twelve men was the quiet outgrowth of the dark sees, as obscure as any portion of the English law, and yet, because we have had it, must we continue to have it. Now, in criminal cases we have not sought here to chan^ that prac- tice of unanimity of juries, because there are certain pnnciples sur- rounding a criminal action in this particular that are not present in civil oases. Everything leans to the side of mercy in our system. Give the accused the benefit of every doubt; and if there is any rational doubt upon the mind of any one of the twelve jurors, the Court instructs him to give the benefit of that doubt to the prisoner. But when you come to civil cases, the rule is directly contrary, as every lawyer knows. There the cases are decided upon preponderance ofevidence merely, upon a mere probability, a reasonable protiability as to which side is right Now in that kind of cases — civil cases — why is it that this tribunal which we call a jury, should not conduct its business and be organized like other smaller functionaries? Why is it that in all arbitrations two out of three may decide ? Why is it that in all cases submitted to com- missioners, and everything of that kind, while all act, the majority decide and determine? Why is it that in Courts composed of several Judges, the majority always control and determine the judgment, and I thinK it is a very singular case — ^this over all the others — that some should insist that a jury of twelve men shall be unanimous, and it only arose and existed in the English system ; it never was the law of juries in any other country but England, because juries have existed in other countries, but in England alone did this principle prevail. Now, I say it is time for us to depart from this, as we have from many other principles affecting; juries under the common law system. I say we should depart from it in this country for good reasons; because in civil cases the principle of unanimity has not worked well. It is time to depart from it. It has not worked well from the fact that, as every gentleman knows, one unreasonable man in a case can prevent a verdict from being rendered ; one bad man in a case can prevent a verdict from being rendered ; and I suppose it is hardly possible once in a thousand cases, that the one man would be right and all the others wrong. It has been my experience in a quarter of a century's practice in the State of California, in the trial of a long jury case, where I believed I was right, working diligently to obtain a verdict, to have a man whisper in my ear, " You will get no verdict." " Why ? " " Because one of the men on that jury is a friend to one of the parties, and you will never get him to consent." How did he get there ? No lavfyer can tell every man who comes on the jury. No lawyer can tell what their relations are to the parties, especially in the large cities where the jurors are strangers to us in most instances; and if one of the parties can select on the jury a friend, that one man can hang the jury. And every man knows there are instances where men have hung around the Sheriff's office for the very purpose of being put on juries, and these are the veiy men that will prevent a verdict from being rendered when it is to their interest to do so. Why not have nine men, so that when corrupt jurors, and partiil jurors, get on the jury they "will not be allowed to control the verdict? If men want to corrupt a jury, it is easier to corrupt one man than it ia to corrupt three or four. If we allow nine men to render a verdict, then the man who seeks to corrupt the fountain of justice and destroy the purity of it, has got to bribe four men. Therefore, the weight of reasoning, I say, is in favor of the nine men, in civil cases and m the lower classes of misdemeanors. I know of no sound reasoning why twelve men should be required to agree. You might just as well say that a Court of five men shall be compelled to render a unanimona decision. We know that of the five Judges of the Supreme Court, thi«e render decisions. Why not? Why not require them to be unanimous? They render decisions on great ijuestions of law, sometimes great con- stitutional questions, sometimes involving whole classes of cases and millions of dollars. Why require a jury to be unanimous and not the Supreme Court? Why not allow nine men to render a verdict? Are not nine men, who have heard the evidence and deliberated upon it, capable of rendering a just and fair verdict? If the jury does not agree, they are locked up and confined in aroom. Now, is there anything rational in the idea of shutting men up todeIib-_ erate two or three hours to compel them to agree — to force tnem, or i portion of them, to surrender their convictions? If they do not agree, the Judge directs the Sheriff to lock them up in a room and let them remain there, and then it is a question, not of nonest conviction, but it is a question of who can stand it the longest. The time for reasoning has passed, and the minority is to be coerced into an agreement by the majority. I say there ia nothing rational in it. It is not worthy of a place in an enlightened system of jurisprudence. When we say that nine men may render a verdict, after they have deliberated upon the case, heard the evidence, and listened to the charge of the Judge, that is as far as we ought to go. We should not, in this class of cases, require a unanimous verdict. I think this system should be adopted in cases of misdemeanors.- In renird to the other portions of this section, I can see no reason why it should not be adopted; why a jury should not be waived in criminal cases not amounting to felony, in open Court expressed. I do not tee why not. Of course, in all civil casee, the parties themselves should have the right to waive a jury, and that is all this section means. I, therefore, submit to this Convention that the old Constitution, while in all the main features is exceedingly good, there is no reason why it should not be reformed and altered in this req>ect. It is not a simple innovation, but a sound, rational reform. Mb. ANDBEWS, I raise the point of order that the qnesdon is on the amendment to the amendment. Thi CHAIRMAN. The question is on the amendment offered by the gentleman from Placer, Mr. Hale. Ma. REDDY. Mr. Chairman : I wish to make a remark or two wiUi reference to this proposed change. I will not detain the Convention long. Now, as to the reasons given in favor of this change. The reasoning of the gentleman from Ban Francisco, Mr. Wilson, ia that because many changes have been made in the jury system in the past, therefore this change should be made now. That is about the reason- ing, for everything must have a beginning, and when you have reached a state of perfection, satisfactory to the country, is there any reason why il> should be changed any further? That is about the logic of the gentleman, that you must change a thing until you get it perfect, and then change it in order to spoil it. I say when you have got a lav as perfect as you can get it, you had better let it alone, and not tamper with it. Then another reason urged against the change is, that there may be one bad man on a jury, and he may affect the result. That he may alter— or rather that he may prevent any result. Now, the one bad man is to be found in every department of our government, and if that is a reason for change in the jury system it is also a reason for changing the entire government. The whole government is rotten if that one bad man is any reason for a change. President Hayes occu- pies his seat to-day by reason of the action of one bad man. We might defeat our republican form of government on the same groimds. Your Honor occupies the chair to-day — was it bad men that put yoo there? Is there any reason in this? What examples are these that we propose to set before the people? It is mere sophistry to say that becanse you can point out a single error in the system, that for that reason you must destroy it. There is nothing in such talk. If the gentleman can suggest another system to replace this, and give us any assurance that it win not be subject to the same criticisms, then it will be time enough to talk about change. Unless they can find a system free from errors — which I am sure theirs is not — I see no reason why the present system should be changed. It has worked well. It is not perfect, and I pre- sume there is no gentleman here who presumes to attain perfection in anything. The book of experience is a very good thing for us to be guided by. Now Ibis one man, this one bad man, seems to be a terror in this juiy system. He is the man who is goin(p to make us abolish the system that has been indorsed by every State in this Union as the mainstay of liberty. Now, how is it that there is such a wonderful unanimity in all the donstitutions upon this subject if it is such a bad system? How is it that it has overridden all criticism from time immemorial dawn to the present, if it was such a bad system? They must have had some wonderfully poor legislatore in England, and in the other States of this Union, if it has stood the test so long; and now that we can only point to one thing, and that is that you may get a bad man on the jury. We have tested this bad man business, and it is not a new question. May it not arise in the system which it is proposed to adopt just as readily as now, is a question for us to take into serious consideration. If nine men out of twelve render a verdict, may not one man turn the scale as well as now. Surely, it seems to me^^at corruptioikcan creep Digitized by VjOOQ IC Nov. 5, 1878. OF THE CONSTITUTIONAL CONVENTION. 301 into the jury box under that proposed system just as easily as under the fireient one. Another thing; it is not lor me at this late day to speak in praise of the system, because it has already been lauded as highly as it deserves, but it has always been the great balancing power between all classes. In England, the poor demand it; the middle classes demand it; itisa beneficent thing to them, and why? Because it protects them from the encroachments of the rich and powerful. So it is regarded in the United Statee, as a protection to the poorer classes in society against the encroachment of the rich and powerful. I believe it is yet the great protecting power in this land behind which the poor and the weak can shield themselves from oppression in all its forms. It may be, and at no very distant day, the protection of' the rich, for I believe from the looks of political corruption that it will be the rich pretty soon who will be looking for protection instead of the poor, and the gentlemen who want to do away wjth this jury system may regret it at no very distant da^. I claim that the jury system has worked well in this State, and it is a very rare occurrence that the verdict of twelve men is wrong. It is true that it may prove that the provisions of the criminal law are too lenient, I judge they are, by the opinions expressed here by a number of gentle- men, but from what I can learn some of these gentlemen know very little about the business they are talking so glibly about. I should like to know what the medical profession know about this business? I should like to know what the farmer who occasionally goes into Court, knows about this business? He knows a great deal. I believe there are men who know something besides lawyers. I am not one of those. I know there are other men who know a great deal. When I speak about men of the medical profession I have no reference to the gentleman from Sacramento, Dr. Canles, because I never should take him to be a doctor m the world; I hadn't the remotest idea that he was a doctor; I made no personal reference to him, but mentioned that profession for the pur- pose of illustration. [Laoghter.] ' To go back to the question, I say the jury system has worked well. I do not support it because it is perfect, nor do I condemn it because now and then a criminal escapes, but I support it because it comes to us leeommended by the ablest law writers in tho world, and I prefer to act upon the judgment of those great authorities than to be guided by the bare assertion of any man or any set of men on this floor, however learned he may be, because if there is anything in practice, the weight of authority is in favor of leaving the jury system just as it is. This matter of its being an inconvenience to allow the jury system to remain as it is, is a novel reason. Really a novel argument. Don't the gentleman know that he cannot live in civilized society without being loaded down at times with inconveniences? There is no way to get riu of these inconveniences but to leave and go way off by ourselves some- where, and that we don't like to do. 'This thing of objecting to the system because the farmer may have to leave his plow and go and help settle a dispute between neighbors is no objection at all. It is his duty. These disputes must be settled in some way. I will not descend into details now, but will get through in a moment. I say these are no reasons at all why the jury system should be changed. You cannot hope to make a system that will not carry with it these inconveniences. And if we change the system on account of these inconveniences will we get rid of them? Three farmers will be left out if we make the jury to consist of nine, they are left out of the verdict if they won't agree with the majority, but they are still there — still detained on the jury. Do you not by this proposed system, as well as by the old. drag twelve farmers from the plow to the Court House? There is nothing in that argument at all. You must have twelve men, «nd it will not relieve the farmer from the burden in any particular. The same number of men must come to the Court House, and the same time will be occupied in selecting a jury as under the old system. Now this is the first grand assault upon the jury system. There will be another shortly, and very soon you will destroy it if this one step does not destroy it. I think this one attack, if it shall prove successful, will virtually destroy the system, so there will be nothing left of it worth attacking. If it is not destroyed by this movement probably other aiaaalts will be made. It may be that this one will accomplish its ruin entirely. Perhaps that may be desirable in order that criminals— those accused of crime — may be more readily reached. We will get down to the one-man system, the one-man power, by and by, and leave the jury out altogether. How would that work ? Then gel your whipping-post established along with this system ; then let the corporations come in and put a man on the bench that suits them, with their overshadowing powu' which has been talked about, and they can readily accomplish whatever they may desire. They can punish their enemies and reward their friends. Let them elect their Judges in every district in the State; let them establish their whipping-posts throughout the State, and then yon will hear a howl all over the United States. I say this jury system is a protection now to the poor, and if you destroy it — encroach upon it, you will in eflfect destroy it — and then you can easily see the result, if there is such a power in the State as some people claim there is. Better let it alone. Every tinker is not a tin- smith. But it is said the people demand this change. I deny it. I say Uiat when a campaign is progressing we hear nothing but the promises of the demagogues for reform — men who have nothing to recommend them to the people but their promises of reform. That is what gentle- men hear. There is no cry on the part of the people for a change in the jury system; and if you do make an attack upon it — if you put in your whipping-poet clause — you will find out when this Constitution is submitted to the people whether they want any such radical change or not Me. BEERSTECHEB. Mr. Chairman : For my part I don't see any eonnection between the lash and whipping-post and the jury system, as we are considering it at this time. Mr. BEDDY. Mr. Chairman : I will explain the connection. Wben you make a Constitution, we look at the wnole system. This is part of a system. The whipping-post overshadows and invades the jury system, destroys it, and then this power which the gentlemen talk about can elect their Judges in the State, and if they can do that the whipping- post will come m very convenient. Mk. BEERSTECHEB. Mr. Chairman: I don't underatand, sir, that it is the intention to abolish the jury system. As I understand it, Mr. Chairman, the intention is to change the jury system, in order to answer the needs and demands of the present day. Now, Mr. Chairman, I don't consider that it is an argument in favor of this change that the present jury system is fi^aught with inconveniences, because, as the gen- tleman from Inyo, Mr. I^dy, properly says, if you have a jury of twelve men and you allow nine of them to render a verdict, you have the same inconveniences. The same number must sit on the jury during the progress of the trial; the same number must be summoned into Court; the same number of persons must sit in the jury box; the same number of persons must pass upon the question at issue; therefore, as far as the question of inconvenience of the system is concerned, the inconvenience remains just the same. It seems to me, as has been very aptly said on this floor, the time is at hand when three fourths of the jury should be allowed to render a verdict in civil cases, especiiUly in the larger cities of the land. It is a well-known fact bow easy it is for the wealthy upon one side, for the corporations, and for the monopo- lists, when pitted against a poor man, to demand a jury trial, and to manipulate the thin^ and make the expenses in such a de|;ree that it is virtually a denial of justice to the poor man. How easy it is to purchase one man out of twelve. Every attorney practicing in the large munici- palities of the country, not only in the State of California but all over the United States, knows very well how easy it is to place one man in the jury box who is susceptible of being purchased, and how often one man out of twelve is purchased, causing three or four, and in some cases ei([ht or ten, trials of one case. These repetitions of trials work no hard- ship upon the wealthy of the country. It is no hardship upon the monopolies of the country ; it is no hardship upon the corporation power of the country ; but it is a hardship upon the poor men of the country, who are obliged to pay their hara-eamed money for the purpose of bringing their cases before the juries. Mr. Chairman, I hope this Convention will extend this boon to the people of this State, because I know as a positive fact that the people of the State of California do request this Convention, in civil actions, to allow three fourths of the jury to render a verdict. I say, Mr. Chair- man, in all truth and candor, I say, knowing the facts to be as I state them to be, that the people demand that in civil cases three fourths of the jury be allowed to render a verdict. It may not have been so in the olden days. It may not have been so when this Jury system was first called into operation ; but we must take times as they are. Take the condition of things as they exist, and the times as they are, and the condition of things as it exists — is that one man can be purchased, or two men can be purchased; and oftentimes, I might say a majority of cases, where a man has a good case and the jury disagrees, it is not a disagreement of a majority of those who sit on the jury, but it is that one man, or it is two men. And it does seem to indicate that when one man stands out against eleven men, or two men against ten men, that it is occasioned by something else other than the mere facts in the case. Now, Mr. Chairman, briefly, as I understand the Jury, they are the judges of the facts. The Court lays down the law in civil cases and the jury are the judges of the facte. If five Judges sit on the Supreme bench, any three of them may render a verdict, which is absolute in its effect throughout the length and breadth of the State. Then why can- not nine jurymen out of twelve render a verdict which shall have a binding force and effect. In the case of arbiters, where there are three men chosen, two of them always render a verdict. I am opposed to abolishing the rule in criminal cases, but in civil cases I hope this Convention will consider it as the wish of the people that three fourths of the juiy be allowed to render a verdict, because that is the desire of the people. They desire to have this Convention frame a provision in the Constitution allowing three fourths of the jury to render a verdict, as a matter of right and justice. Mr. JOHNSON. Mr. Chairman : The gentleman who last spoke comes pretty nearly expresing the views I entertain on this subject. Now, as a matter of course, if we insert a provision in this Constitution, that provision becomes the law, and is not susceptible of change, except in the way provided in the Constitution itself, and therefore in dealing with the jury system, which is a conservative system, we should lay our hands upon it very lightly, unless we find some other system which suggests Itself to the minds of the people in some degree preferable to the one we have. Now, this jury system is an old one to start with, as has been already said. It has stood the tests of hundreds of years, and has formed a part of the great common law which we brought with uj from England. It was thought at one time to be a great privilege to be tried by one's peers, brought from the vicinage. We have incorporated into our law only such provisions as are adapted to the circumstances of our people. We have not incorporated the whole common law of England. We have American common law, a common law adapted to our system of govern- ment, and it is that system of common law which we have imported into this country. A part of that system is the trial by a jury of twelve men ; and another part of it is that they shall be unanimous in their ver- dict. Thus far we have imported the common law system into this country. Now, let us see what some eminent men think of this divided jury system, Blackstone, in his Commentaries, says: " If Sparta, Carthage, and Rome lost their liberties, it must be recol- lected that Sparta, Carthage, and Rome had not the jury system." That is what he says about it. The gentleman from Sacramento is very severe in his censure of the jury system. I do not believe in any of these extreme views. But, sir, inasmuch as this jur; system haa Digitized byLjOOQlC 302 DEBATES AND PROCEEDINGS Tuesday, oommanded itself to (he minda of Rtatesmen and scholars for oentaries; inasmuch as it has been imported into the country to form a part of our common law, I do say this, that we should touch it very lightly, and we should not change it unless we can change it for the better. There are some things that can be chang^, but they do not interfere with its couserrative force. They do not interfere with any of the rich legacies that we have received. If you fix the salaries of your officers, that does not interfere with any great cardinal principle. But attack the jury system, and you are attacking a system which forms a part of our common law. And so in framing the Constitution of the United States it seems that they, as far as your Federal Courts are concerned, have adopted a provision that even for a sum as low as twenty dollars, the jury shall be preserved. Now, sir, there are some things, as a matter of course, that cannot be submitted to a jury, and why? Because it requires a nice distinction — there are nice distinctions to be drawn, and it is not adapted to a jury triiJ; but when it comes to matters of fact, I think it should be differ- ent. If you put twelve men on a panel to investigate as to certain bets, I think they will be more apt to get at the facts of the case than one man who has made the law a specialty. These twelve men, drawn from different vocations, following different professions, if they agree the^ will pretty generally agree upon the facts, provided, of course, that their verdict is not a corrupt one. And, although the jury sjrstem has been animadverted upon, yet it is not the fault of the system itself, but fiened in my experience where both parties were wil- ling to try a case before the Court without a jury, but the case involved matters of such grave importance and ma^itude that the Court declined to take tbe responsibility, and directed a jury to be called, and I think that privilege ought to be reserved to the Court. Mb. van dyke. I object to that amendment, because I think the Judge should take the responsibility, and not throw it off on to the jury. Mb. BARTON. Mr. Chairman: I object to the last amendment, because in m^ opinion it is not so comprehensive as the section reported by the Judiciary Committee. There has been, Mr. Chairman, a great deal said upon this proposition, and amon^ the many propositions and arguments made upon this question, I claim, sir, that the argument of the gentleman from San Francisco, Mr. Wilson, is unanswerable. It meets the demands of the people; it meets the urgent demands of the times. I am not myself in favor of departing from the old Constitution, as far as it relates to criminal actions; but in civil cases I am decidedly in favor of the report of the Committee on Judiciary. We have here to-day presented to us a spectacle which, I am sorry to say, has clogged the wheels and progress of this Convention. We have about seventy- five lawyers, who universally disagree upon every proposition ; and it brinps to my mind the proposition presented by the gentleman from Mann, Mr. Shafter, the other day, in relation to uaving a certain num- ber of lawyers, but not too manr, in legislative bodies. In this case we have an unlimited number of disagreeing lawyers. Here is a proposi- tion which involves the great interests of the people, and the people are clamoring for a redress of their grievances; and one of them is, that in all civil cases the matter shall be left to the decision of the parties as to whether they will or will not have a jury trial. Now, I do not see how any rational man can disagree on that proposition. Yet the lawyers on the Soor of this Convention disagree, and we are all in chaos. I hope this Convention will settle the point in a rational, straightforward, and businesslike manner, as sensible men, with the best interests of the peo- ple at heart. Mb. JOHNSON. Mr. Chairman: I suggest to the gentleman from Sacramento, "a majority of the Legislature," instead of, "by a two- thirds vote," if the gentleman will accept the amendment. The CHAIRMAN. Does the gentleman from Sacramento accept the amendment? Mb. EDGERTON. I accept the amendment. The CHAIRMAN. The question is on the amendment of the gentle- man from Sacramento, which tbe Secretary will read as modified. The SECRETARY read: " The right of trial by jury shall be secured to all, and remain invio- late forever; but a jury trial may be waived by the parties, with the consent of the Cburt, in all civil cases, in the manner to be provided by law; and in civil cases, if three fourths of the jurors agree upon a verdict, it shall stand, and have the same force aud effect as a verdict by the whole jury ; provided, the Legislature, by a law passed by a majority vote of all the members elected to each branch thereof, may require a unanimous verdict, notwithstanding this provision." Mb. edgerton. I want gentlemen to understand that as this sec- tion is now amended, a majority of the Legislature may at any time pass a law, the same as any other law is pas^, restoring the old Con- stitution in this particular. Mr. shafter. I move to strike out that part of it. I am glad that my following is increasing in regard to my opinion about lawyers. I am obliged to point out to the gentleman from Sacramento that there is only one way to pass a law by the Legislature, and that is by a majority vote of both houses. You cannot pass it any other way, and I move to strike it out. Mr. McCALLUM. Mr. Chairman: The word "majority" has a special signification. It is a majority of all the members of the Legis- lature, f shall vote against it, because I think that makes the mode of changing the Constitution too easy. Two thirds even is objectionable. The CHAIRMAN. The question is on the amendment. Are you ready for the question? Tbe question was put, and the amendment lost. Mb. JONES. Mr. Chairman : I beg leave to offer an amendment, in the nature of a substitute, which I will send up to be read. Mb. MURPHY. What has become of the Andrews proposition? Tbe CHAIRMAN. The gentleman from Shasta, Mr. Andrews, moved to substitute section three of the present Constitution for section seven of this report. The next question is on that amendment. Is the committee ready for the question ? Mb. ANDREWS. Mr. Chairman: I don't desire to trespass upon the time of the committee, and I have but a few words to say. Now, if gentlemen will look at the recommendation of the committee, they will see in that a recommendation that the jury system shall be held inviolate. I say if you adopt this amendment proposed by them, that Digitized by Google 304 DEBATES AND PROCEEDINGS Tuesday, word is out of place, for you aay in the first place that it is inviolate, and in the very next sentence proceed to violate it. Why do you do that? I say the word " inviolate" would be out of place, oecause you are trying to render it inviolate. For that reason I say, if we are to have such a provision as is recommended, strike out that word " invio- late." [Criea of "Question, question."] Mr. Chairman, I have the right to close the debate on this proposi- tion. The report of the Judiciary Committee provides, in cases of mis- demeanors, that two thirds of the jury may find a verdict. Now, the gentleman has submitted the Nevada Constitution. For my part I don't believe in trying any experiments. I don't believe any gentleman here would wish to try such an experiment at this time, as that in the Nevada Constitution. Even over there they tried it with fear, and provided at the same time that the Legislature might restore the old system and require a unanimous verdict. I think we had better bear the ills we have rather than fly to othere we know not of. I hope the Conveation will leave the old Constitution as it is. Mr. HERRINUTON. Mr. Chairman: Would it be in order to offer a substitute? Thi chairman. You cannot offer it at this time. The question is on the amendment proposed by the gentleman from Shasta, Mr. Andrews. Division being called for, the amendment was lost — ayes 35. Mb. JONES. Mr. Chairman : I call for the reading of my amend- ment, which is already on the Secretary's desk. Mb. HERRINGTON. Mr. Chairman: I believe I had the floor before the last vote was taken, and I now wish to offer an amendment, by way of a substitute. I send it up to the desk. Thi chairman. The Secretary will read the substitute offered by the gentleman from Santa Clara, Mr. Uerriugton. Tbk secretary read : " The right of trial by jury shall be preserved to all and remain invi- olate forever, but a jury trial may be waived by the parties by express waiver in civil actions, and the parties may agree upon a number of jurors, not less than six, to constitute the jury in civil cases. In crim- inal cases, amounting only to misdemeanor,'the defendantx shall have the right of a trial by jury, or by the Court, as they may elect." Thk CHAIRMAN, The question is on the substitute. The substitute was rejected. Tbk chairman. The Secretary will read the amendment offered by the gentleman from Merced, Mr. Jones. The SECRETARY read : " The right of trial by jury shall be secured to all, and remain invio- late, but in all civil cases the Legislature may prescribe by law the number necessary to constitute a jury, and three fourtbsof the jurors may render the verdict of the jury, and a jury may be waived by the parties. In all civil cases, by the cousent of both parties expressed in open Court, the jury may consist of any number less than twelve, or less than the number prescribed by law." Mb. REYNOLDS. Mr. Chairman: I demand a division of the question. Mb. JONES. Mr. Chairman : I offer this amendment in the hope that I may be able to hit upon some middle ground upon which this Convention may be able to agree. I will occupy the attention of the Convention but a very few moments, simply to explain the effect of the amendment which I have proposed. It does not go so far as the pro- vision of the Judiciary Committee. It goes farther than some of those which have been voted down here, but not so far as the amendment offered by the gentleman from Placer, Mr. Hale. It provides that the right of trial by jury shall be secured to all, and remain inviolate, as a general proposition, with this exception, that in all civil cases the Legis- lature may prescribe by law the number necessary to constitute a jury, and three fourths of the jury may render a verdict, and that the jury may be waived by the parties. There is this addition also, which is worthy of consideration, that in all cases, by the consent of both parties expressed in open Court, the jury may consist oC any number less than twelve, or less than the number prescribed by law. In criminal cases the number would remain at twelve, but in such cases, by agree- ment of the parties expressed in open Court, a lees number may be accepted. In civil cases, according to this proposition, the number fixed by the Legislature for a legal jury may be seven, or nine, or any other number, and still, by consent of the parties, any number whatever may con- stitute a jury. I will simply say, in explanation of this matter of allowing in all cases the parties, by express consent, in open Court, to determine the number of jurors, that In my judgment, that is one source of expense and trouble and discontent among the people. We,as lawyers, know something about these matters by experience. OlTentimes it is the case that where a jury of eleven, or even nine, or ten, has been impan- eled, there would be no objection on the part of the j)roseculion or of the defense to trying the case with that number if it could be done legally. They would be perfectly willing to go on and try the case, but under the law, as it now stands, of course they cannot do it, and I think the Bill of Rights designed primarily to toke away that right from the citizen. I think a party in Court should always have the right to consent to having his case tried by eleven jurors, or even a less number, instead oftentimes of having to get another venire and exhausting the county, which has already been searched for fifteen miles around, and no qualified jurors to be found. Then, I sav, this proposition, if accepted by the Convention, will provide that in afl civil cases the Legislature may prescribe the number necessary to constitute a legal jury, and that three fourths of that number shall M able to render a verdict. And farther, that the parties may agree upon any number less than the full jury in any case. Tbk CHAIRMAN. The question is on the amendment. The amendment was rejected. Mb. BEERSTECHER. Mr. Chairman : I wish to ofifer an amend- ment. The CHAIRMAN. The Becietory will read. Thb SECRETARY read: "The right of trial by jury shall be secured to all, and remain invio- late; but in civil actions three fourths of the jury may render the ver- dict, and in such cases the jury may consist of any number less than twelve that the parties may agree upon in open Court. The Legislature, by a law passed hy a two-thiras vote of all the members elected to each branch thereof, may require a unanimous verdict, notwithstanding this provision." The amendment was rejected. Mb. DOWLINO. Mr. Chairman : I have an amendment to offer. The chairman. The Secretary will read the amendment. The SECRETARY read: " The right of trial by jury shall be secured to all, and remain invio- late forever; but in criminal cases the concurrence of twelve jurors if necessary to render a verdict in all cases of felony. In civil cases, or in cases of misdemeanor, the Legislature shall provide the number of joron necessary to find a verdict; but in nocivil case, oracaaeof misdemeanor, shall less than three fourtlis of the jury be competent to render u verdict. A trial by jury may be waived in civil cases and cases of misdemeanor, by the consent of the parties." Mr. DOWLING. Mr. Chairman, and gentlemen of the Convention: I presume it will be out of place for me to call your attention to the fact that this is the twenty -sixth day in which we have assembled here. I have waited very patiently for the legal gentlemen who have preceded me on this floor — amongst whom I see those shining lights of the bar of California — and it appears to me from their arguments that they wint a change in the jury system of California, but they can't tell exactly what they want, or the reason why they want it changed. Now that the law- yers have all aired their eloquence on this subject, now that the doctors nave spoken, I presume it will not be out of place for me to say a few words. I am not a lawyer, nor do 1 want to be one, because, if 1 were, I would be one of those that my friend Colonel Barnes of San Francisco calls shyster lawyers, and God knows we have enough of them- -more than can make a respectable living. I am one of those,sir,wbo believe in the old and established maxims, and I don't want to alter them, or tamper with them, except for grave or tangent cause. If my memory is correct, this grand old jury system is contemporaneous with liberty itself. It has been the playmate of American progress and civilization, and to tamper with it now, or to change it, is a very dangerous prece- dent, in my opinion. I am opposed to innovations, on general principles, and in the matter of remodeling or altering the jury system, I object to very little change In these troublous times. I do not believe in eon- demniug a man and consigning him to State Prison for life without giv- ing him a fair and impartial trial befor« an impartial Judge and jury of his peers, and before twelve jurors; and, sir, I shall never sanction any- thing to the contrary. Regarding, as my friend Smith remarked to-day, the Constitution of Nevada. Well, sir, no matter what is in the Consti- tution of Nevada, no matter how good the Constitution is there, I tell you there is where fraud is rampant and crime goes unpunished. I do not believe in following the prestige of the State of Nevada. Now, is it possible that with tlie seventy lawyers in this house we shall wrangle here for two days and not be able to settle the jury ques- tion? Can no man go to work and write a few lines that will suit the subject and not lead us into danger? It is admitted, sir, that a man never sinks below the zero of honesty and integrity until he unfortu- nately gets elected to the Legislature. A man may steal a horse, or a row, or anything, and his friends will stick to him like a brick, but as soon as he gets elected to the Legislature, they drop him like a hot stove — his manhood gone, his self-respect ^ne. Now, sir, for my part, I don't believe it is right for this Convention to £> and change the jury system. I believe in leaving some power to the egislature, and I believe in leaving the power to the Legislature of naming the number of jurors that shall render a verdict in civil cases, because, sir, I will tell you the reason why. In civil cases it is almost a matter of dollars and cents, and the man who has got the biggest purse will always win the day. That is the way I have found it. But in criminal coses I want it to be imperative that it will require twelve jurors to render a verdict. Now, sir, I offer this amendment, believing it will meet the approba- tion of all honest men in the State of California, whether it meets the views of this Convention or not. The amendment was rejected. Me. HITCHCOCK, ilr. Chairman : I offer a substitute. Tt|E SECRETARY read : " Any member of this Convention who speaks more than five minutes on any one proposition before the Convention, or the Committee of the Whole, shall forever be ineligible to any office of profit or trust in this State, or ever be elected to any future Convention." The chairman. It is not in order. Mb. NOEL. Mr. Chairman : I have a substitute to offer. The chairman. The Secretary will read it. The SECRETARY read: "The right of trial by jury shall remain inviolate; but in all cases, except felony, the Legislature may provide by law the number necessary to constitute the jury; and in sill civil cases the number necessary to render a verdict; and in all civil cases and criminal cases not amount- ing to felony, a jury may be waived in the manner prescribed by law." Lost. Mb. HERRINGTON. Mr. Chairman : I move to strike from the sec- tion the words, " in cases of misdemeanor, where the punishment does not exceed six months imprisonment, or a fine of five nundred dollan, or both," Digitized by Google ■j^^V^y Kov. 5, 1878. OF THE CONSTITUTIONAL CONVENTION. 305 Tbi CHAIBMAJ^. It is out of order; that precise amendment has sJready been voted down. Ms. HEBBINGTON. I appeal from the decision of the Chair in thiitreg»>^- i£gg CSAISMAS. The gentleman from Nevada, Mr. Wickes, has the floor, *i>ll«n, or both.' " Ma. BARBOUR. That will make the section read as follows : " Bic. 7. The right of trial by jury shall be secured to all, and remain inviolate; but in civil actions, and in criminal cases where the punish- ment does not exceed six months imprisonment or a fine of five hundred dollars, or both, three fourths of the jury may render ji verdict. A trial by jury may be waived in all criminal cases where the punishment does not exceed six months imprisonment or a fine of five hundred dollars, or both, by the consent of both parties, in open Court expressed, and in civil cases by the consent of the parties, signified in such manner as may be prescribed by law. In civil cases, and criminal cases where the punishment does not exceed six months imprisonment or a fine of five hundred dollars, or both, the jury may consist of any number, loss than twelve, that the parties may agree upon in open Court." Mb. BARBOUR. I oOer that amendment for the purpose of making the section harmonious. I don't see any reason for at one time pro- viding the limit by the amount of punishment, and in another part of the section using the words " felony " and " misdemeanor," and leaving it to the Legislature to transpose the terms as they may do. The amendment was rejected by a standing vote. Mr. CAPLES. Mr. Chairman : I offer an amendment. Tbb CHAIRMAN. The Secretary will read it. Thb SECRETARY read: " In criminal cases the right of trial by jury shall remain ; in all cases, except felon;^, the Legislature may provide by law the number neces- sary to constitute a jury, and in all civil cases the number necessary to render a verdict." liOSt Mb. NOEL. I have an amendment. Mb. O'DONNELL., I move that the committee do now rise, report progress, and ask leave to sit again. Ix>st on a division vote. Mb. CAPLES. Mr. Chairman : I move to refer the w^ole matter back to the Committee on Preamble and Bill of Rights. Tbb chairman. The motion is out of order. Are there any further amendments to the section. If not, the Secretary will read section eight. Tbb SECRETARY read: Skc. 8. Offenses heretofore required to be prosecuted by indictment shall be prosecuted by indictment or information, as may be prescribed by law ; but a Grand Jury shall be drawn and summoned at least once a year in each county. Mb. van dyke. Mr. Chairman : I offer the following amendment to section eight. Tbb SECRETARY read : "Strike out to the word 'shall,' and insert 'all crimes or public offenses.' " Mb. van dyke. Why not say " all crimes and public offenses shall be prosecuted by indictment or information," etc Mb. McFARLAND. Mr. Chairman : We have just got through with s very important subject, and we are proceeding to another very weighty subject, that of Grand Juries. Whatever discussion there will lie to-night will be forgotten by morning, and I therefore move that the committee rise, report progress, and ask leave to sit again. The motion prevailed. IN CONVENTION. Thb PRESIDENT. Gentlemen, the Committee of the Whole have had under consideration the report of the Committee on Bill of Rights, have made progress, and direct me to ask leave to sit again. What is the pleasure of the Convention ? I sent up this morning a report of Mb. BARNES. Mr. Chairman : v - the Committee on Military Affairs. I ask now that the report be received and laid on the table, and ordered printed. Thb PRESIDENT. If there is no objection it will be so ordered. The Secretary will read the report. Tbi SECRETARY read the report as follows : Sacraxkxto. Norember &th, 1878. Mb. Prisidkkt: Tour Committee on Hilltarjr Aflaire, to whom were referred pro- posed ameDdmont number one huodred and niaetoen, introduced by Mr. Ilarrej, araendmeDt numlwr nne hundred and tbirtyHwren, introduced by Mr. Hills, amend- ment number two hundred and seTenty-eight, introduced by Mr. Neunaber, amend- ment number three hundred and eleren. Introduced by Mr. HcOonnell, amendment number three hundred and eighteen, introduced by Mr. Beeratccher, and amend- ment number four hundred and flfteen, Introduced by Mr. Harvey, bare had the same under consideration, and recommend that they t>e notadopted. In lien thereof your committee herewith reporta dmft Tor article seven of the Constitution, relating to the militia, and recommend that the tame bo adopted. Great diTeratty of opinion existsin tbecommlttee with reference to Hmf tations and restrictiono upon the power of the Legislature as to the number of companies essen- tial to accomplish the purposes designed by article seTen as proposed, as well as the amount of appropriations for the maintenance of the military organisation of the State. Your committee make no recommendation upon this sul^ect, preferring to leSTe the members of the committee at liberty to suggest such additions upon this subject, in the article proposed, as they may be advised. W. B. h. BARNES, Chairman. Abticlb VII. MILITIA. SiCTiO!) I. Oreanizing and disciplining the militia. 2. Officers, how elected and appointed. 3. Removal of general officers. 4. Governor to be Commander-in-Chief, and to call out the militia. 5. Exemptions. 6. Provision to be made for wounded and disabled member* of militia. Sbctiok 1. The Legislature shall provide by law for organizing and disciplining the militia, in such manner as they may deem expedient, not incompatible with the Constitution and laws of the^United Stats Digitized byLjOOQlC 306 DEBATES AND PROCEEDINGS Wednesday. 8ko. 2. Officers of the militia shall be elected or appointed in ^ch manner as the Legislature shall from time to time direct, and shall be commissioned by the Governor. 8«o. 3. No general officer shall be removed from office except by the Senate, on the recommendation of the Governor, stating the grounds on which removal is recommended, or by a decision of a Court-martial in accordance with military custom. No officer of the militia shall ever be removed from office for political reasons. Sic. 4. The Governor shall be Commander-in-Chief of the militia of the State. He shall have power to call them forth to execute the laws of the State, to suppress insurrections, and repel invasions. Sic. S. The officers, m usicians, and members of the State militia, who comply with all military duties as provided by law, shall be entitled to the following privileges and exemptions, viz.: Exemption from payment of poll tax, road tax, and head tax of every description ; exemption from jury duty and exemption from serving on any posse comitatus. All offi- cers, non-oommissioned officers, musicians, and privates, who have faith- fully served in the military service of the State for seven consecutive years, and received the certificate of the Adjutant-General certifying the same, shall thereafter be exempted from further military or jury service, except in time of war. Sbo. (. Every officer or member of the State militia, wounded or dis- abled in the service of the State, shall have reasonable expenses paid him; and the widows and children of members killed in the service of the State shall be provided for by the Legislature. ADJODBMUBNT. Mb. AYERS. Mr. President: I move that the Convention do now take a recess until seven o'clock and thirty minutes r. u. Mb. HUESTIS. I move that the Convention do now adjourn. The motion to adjourn prevailed, and at four o'clock and thirty-five minutes p. h. the Convention stood adjourned. FORTIETH DAY. t Sacbahbkto, Wednesday, November «th, 1878. The Convention met in regular session at ten a. m.. President Hoge in the chair. The roll was called, and members found in attendance as follows: pbbsbkt. Andrews, Harvey, PuUiam, Ayers, Heiskell, Beddy, Barbour, Herold, Reed, Barnes, Herrington, Reynolds, Barry, Hilbom, Rhodes, Barton, Hitchcock, Ringgold, Beerstecher, Holmes, Bolfe, Bell, Howard, Schell, Blackmer, Huestis, Schomp, Boggs, • Hughey, Shatter, . Boucher, Hunter, Shoemaker, Brown, Inman, Shurtleff, Burt, Johnson, Smith, of Santa Clara, Campbell, Jones, Smith, of 4th District, Caples, Joyce, Smith, of San Francisco, Casserly, Kelley, Soule, Charles, Keyes, Stedman, Condon, Eleine, Steele, Cowden, Laine, Stevenson, Cross, Lampson, Strong, Crouch, Larkm, Stuart, Davis, Lavigne, Sweasey, Dean, Lewis, Swenson, Dowling, Lindow, Swing, Doyle, Mansfield, Terry, Dudley, of San Joaquin, Martin, of Alameda, Thompson, Dudley, of Solano, Martin, of Santa Cruz, Tinnin, Dunlap, McCallum, Townsend, Eagon, McComas, Tuily, Edgerton, McConnell, Turner, Estee, McCoy, Tuttle, Estey, McFarland, Vacquerel, Evey, MoNutt, VanDyke, Farrell, Miller, Van Voorhics, Fawcett, Mills, Walker, of Marin, Filcher, Moreland, Walker, of Tuolumne, Finney, Morse, Waters, Freeman, Murphy, Webeter, Freud, Nason, Weller, Garvey, Nelson, Wellin, Glascock, Neunaber, West, Gorman, Noel, Wickes, Grace, O'Donnell, White, Graves, Ohleyer, Wilson, of Tehama, Gregg, O'Sullivan, Wilson, of 1st District, Hager, Overton, Winans, Hall, Porter, Wyatt, Harrison, Prouty, Mr. President. ABSENT. Larue, Moffat. Belcher, Chapman, Berry, Hale, Biggs, Kenny, LSATB or ABSISCB. One dav's leave of absence was granted Mr. Lame. Mb. TI^NIK. Mr. President: I'move that the reading of the Jour- nal be dispensed with. Carried. PBOTBST. Mb. BEERSTECHER. Mr. President: I have here a protest, which I desire to present, from the Independent German Congregation of Baa Francisco, against the exemption of church property from taxation, against the compulsory observation of the Sabbath day, and against the recognition of God in the Constitution. The protest was as follows: PBOTBST AOAIHST THB (STABLISBMBRT OF A STATE BKLIOIO!). To the Conitltntloniil Conrentlon ataacnunento: Whirias, Propoaltions hsra b««n laid befor* jour honorabi* bodjr for idt^itka demaoding the recognition of the Chri«tian Qod, and bis so.called rerelatioD, u the soarce or ail moral Imw u well u nf ail ciril power, the exemptioD of charcfa pro^ ertr from taxation, and the compuleory obeerrance of the Chriltian fiabbath ; and, WuBBKAe, Theee, and ail ilmilar propoeitions, are eimply efforte to create and eatablieh a State religion, and ae such are hostile to the great principle of abaoiote rellgioua lit>crty, aa guaranteed bjr the Constitution of the United States, and iolemnlj affirmed by the declaiution of our Ooremment in the elerenlh article of the treaty with Tripoli, of November fourth, seTenteen buudred and niQet7.een employed since the organizatiott of the ConrentioD In the capacity of Porter and Watchman, and that be baa performed all the duties faithfully. T.J.8HKRW00D, Sergeant-at-Anna. Referred to the Committee on Contingent Expenses. PETITION. Mb. SWEASEY presented a petition from the California State Woman's Suffrage Educational Association : OiTici or Daily amd Wrixlt Sah Josr Mrrctrt, Comer Santa Clara) and Second Streets, San Joae, California, October X6th, 1878. i To tbe honorable the Constitutional Convention of the State of California: The undcieigned, tbe President and Board of Directore of tbe "California State Womali'a t:docational Aaaociation," a corporate body instituted "to procure for woman the elective franchise, embracing all the rights, pririle^ea, and immuuitiaa of ciril and political liberty, and to educate her to fully comprehend and appreciate tbe rarioua measures, dutica, and principles in the economy of a free goremraeat," respectfully and earnestly pray of your honorable body to ao frame the Conatitntioa you are to aubmit to the people, for their approval or rfjection, aa that It ahall recog- niia no diatinetlona in ciUzenabJp on account of aex. And your pelitionen will erer pray, moat reapectftally. J. J. OWBN, President California Woman'a Educational Aaaodatloo. HABIAN HILL, Ptealdent of Boaid. OI/IVK M. WASHBCBN. SABAH L. KNOX. CLARA 8. FOLTZ. RACHEL T. OLMSTIAD. MBS. DR. WHITE. Referred to the Committee on Right of Suffrage. BBPOBTS. Mr. WILSON, of San Francisco, presented the following report from the Committee on Judiciary and Judicial Department: To the President of the Constitutional Conrentlon : Your Committee on the Judiciary and Judicial Department, to whom was reftned Resolution nnml)er sixty-flve, instructing this committee to inquire and report their opinion aa to whether tbu provisions of the ConsUtntion of the United States relatiof to trialabyjnry apply to SUte Courta and the administration of the laws of the State, beg leave tp report that the aamo haa been duly cnaldered, and that in the Mdnieo of the committee the proviaions of tbe Constitution of the United States relating to trials by Jur>' do not apply to tbe State Courts, nor to tbe adminlattation of the Itwi of tbe State in thoae Oourta. Respectfully submitted. S. K. WILSON, Chalniaa. November Sth, 1878. Mr. winans presented the following report from tbe Committee on Education : To the Honorable Joseph P. Hoge, Prreldent: The Committee on Kducatlon reapectfblly report back to the ConvsnUoB proposed Amendments number one hundred and sixteen, introduced by Mr. Harriaon; uun- ber one hundred and seventeen, introduced by Mr. Hanison ; number two hnodtea Digitized by Google Nov. 6, 1878. OF THE CONSTITUTIONAL CONVENTION. 307 ind thlrtjr.lbor. iDtrodoced br Mr. WJckes; narober three hundred and eighty- one, introdnced b; Mr. H. W. Smith ; nnmber four hundred and ten, Intrndnced by Ur. Jonei; and number four hundred and five, Intiodncfd by Mr. Lindow. with the ncommendatiou that they be not adopted, becauie they embrace matters proiier for icgWatlre mther than constttutional enactment. WINANS, Chairman. L0C4L OPTIOH PBTITION. Mr. Prout^ presented the following petition, signed by a number of citiiens, asking for a provision for a local option law : To the Preeident and Members of the Constitntlonal Conrrntton of the State of CUifbrnU: The people of the State of California recognise the ffact that it is the object and doty of the prveent OonTentlon to promote the welfare of our people by the enact- ment of wise and juat laws, and to adrance their common interests by the enconr. •Mment of every legitimate, and the suppression of every pernicious traffic. lour memorialists are of the opinion that a great portion of the more obfltinata, painftil,and moral disorders that afflict the human family are engendered by the BIS of spirituous and intoxicating liqnors ; that the common use of such intoxicat- ing Uqaors is not only destructive to health and happiness, bnt also impaiis the fiicnl- ti« of the mind, and thereby tends equally to dishonor onr character as a nation as well as to lower us in the scale of civilization. . Tour memorialists have no doubt but that the presence of tbe plague, or any other peetilontial disorder which might sweep away thousands of onr fellow citi- iens, would elicit the most strenuous and energeiis eiforts on tbe part of our gov- snunsnt to subdue it, and to guard against its possible occurrence. Tour memorialists can discern no just reason why the more certain and distress- lag ravages of Intoxicating liquors upon the lives and happiness of our citizens, and tbe well-being and quiet of our community, should not be guarded against with eonesponding vigilance and anxiety by the present rulers of the United States, and aiors particularly by the present law-makers of our own fair State. Toor merooriallsis beg leave to add farther that In their belief the use of spirltu. cos and tDloxicating liquors is in any case whatever wholly unnecessary— that they neither fortify the body against the influences of heat or cold, nor render labor more easy or more productive ; and that there are many other articles of diet and drink which are not only perfectly safe and salutary, but in every way superior antt preferable to intoxicating liquors for any of the purposes above mentioned. Tour memorialists aluo believe that it is a grave defect in onr present Constltntion hi that it denies to the people of.different counties, townships, and districts, the priv- Oegs of fairly determining, at the ballot-box, whether liquor saloons shall continue to exist in their midst, with their attendant tiains of evil and vice, pollution, want, and woe. We are fully convinced that the law passed in March, eighteen hundred and sev- SDty-fbnr, and known as the ** Local Option Law,'* wasa proper and Just law, and one meeting with the general approbation of our people, as was evidenced by the hct that, out of oveV one hundred elections held under its provisions, the success of local option was In the ratio of two and a half to one. We therefore commend It to your eonsidentloD. toor memorialists have beheld with regret the hitherto feeble and iaelfectnal sadsarors put forth to stop or impede this giant evil, and tbe proportionaHy tMrren resnlts which have resulted therefrom. They center their hopes, therefore, of an effectual remedy, in the wisdom and power of your honorable body ; and in behalf of our common humanity, entreat of you, by all your obligations, to protect the lives and comfort of onr citizens, and by yonr regard for onr national character and respect for our land In the scale of intel- ligcDt and civilized beings, to lm| ose such heavy duties on intoxicating liquors, or sdopt such other remedial and preventive measures as shall, in your sober Judgment, tend most efflciently to subdue and eradicate these evils. Therefore, with an honest belief in the Justness of our demand, and with a firm reliance In the honor, wisdom, and sincerity of your honorable body, we humbly crave, at your bands, a prompt and impartial consideration of our request, and If possible, an ultimate exemption from this distressing evil. Referred to the Committee on City, County, and Township Organiia- tions. IXrORMATIOS BEQDISTy. Ma. HAGER. Mr. President: I ask leave to introduce a resolution, out of order, to obtain some information from the Surveyor-General. The president. If there be no objection, the gentleman will send op his resolution. Tbk SECRETARY read: Setolwd, That the Snnreyoi^General be requested to Inform this Convention, as near as he can approximate tbe same, of the nnmber of square miles of territory omtalned in each of the counties of this State. Adopted. PBOPOSED AHEKDMIMT. Ha. DOYLE introduced tbe following proposed amendment to the Constitution, entitled, " Proposition to establish a Metropolitan Police Force for the City and County of San Francisco." SiCTiox 1. A Board of Police Commissioners shall be established for the City and County of San Francisco, who shall, upon their election and qualification, supersede the Board now in power. Sic. 2. Said Board shall consist of three Commissioners and one Chief of Police, who shall be elected by the people at the next regular municipal election for other city and county officers, and thereafter at each regular municipal election. Sic. 3. The salary of such Commissioners and Chief of Police shall be two thousand dollars per annum, to be paid out of the treasury of the City and County of San Francisco; and the said Commissioners and Chief of Police shall not be eligible, while acting as such, to any other Federal, State, or municipal office. Sic 4. The term of office of said Commissioners and Chief of Police shall be the same as those of other municipal officers; to wit, two years. Sic. i. The said Commissioners shall have full and exclusive control of the said police force; the Chief of Police herein provided for being subject in like manner to their exclusive control. Sic. 8. It shall be the duty of said Commissioners to appoint and organize the police force for the City and County of San Francisco, in numberii equal to the present force: to establish and maintain all h«*«»ry regulations for its discipline and government: and take full charge of all directions necessary to the enforcement of such municipal oidinances as may be now or hereafter established for the suppression, restnction, or punishment of crime, and maintenance of sanitary regula- Bic 7. The salary of each officer shall be one hundred dollars per montli, excepting those of higher grade, whose salaries shall be fixed by the Commissioners, but such salaries shall not exceed one hundred and' fifty dollars per month; said salaries to be paid out of the treasury of the City and County of San Francisco; provided, the Board of Super- visors may decrease the salaries of police officers. Sic. 8. The Commissioners and Chief of Police herein provided for, shall be liable to impeachment for any malfeasance in office, or willful neglect of the duties pertaining to said offices, any of the Superior Courts of the City and County of San Francisco being hereby author- ized to sit as a Court of Impeachment for their trial ; and it is hereby declared that tbe granting of any undue favoritism to tbe members of the force shall be deemed malfeasance, and a good ground for impeach- ment; the penalties in such Courts of Impeachment, in case of convic- tion, being restricted to removal from office. The verdict in such Court of Impeachment shall, however, in no manner be a bar to such further prosecution in the criminal Courts as the offenses may warrant. Referred to Committee on Cities, Counties, etc. ASaiSTlNT JOtJRNAL CLIBK. Mb. CROSS. Mr. President: B^r request of the Journal Clerk, I introduce a resolution, and ask that it be referred to the Committee on Contingent Expenses. The SECRETARY read: JRaoived, That the President be and he is hereby authorized to appoint an Assist- ant Jounial Clerk, at a salary of six dollars per day. Referred to tbe Committee on Mileage and Contingent Expenses. NEW PBOPOSITIOHS — COCNIT SEATS. Mb. smith, of Santa Clara, introduced tbe following proposed amendmend to the Constitution, placing restrictions on removing county seats: Vo county seat shall be removed until the point to which it is pro- posed to be removed shall be fixed in pursuance of law, and a majority of the voters of the county, to be ascertained in such manner as shall be provided by general low, shall have voted in favor of its removal to such point, and no penaon shall vote on such question who has not resided in the county six months and the election precinct ninety days next preceding such election. Referred to Committee on City, County, and Township Organizations. TBI BTATB CAPITAL. Mb. O'DONNELL introduced the following proposed amendment to the Constitution, to locate permanently the Capital of the State of Cali- fornia : WaiBXAS, The Capital of the State of California was moved from San Jose by fraud and collusion, and its location at Sacramento is con- trary to law, and against public policy and public interest, to wit: this building is located on an alluvial sand bank, and is liable to overflow and destruction by each winter's flow of the Sacramento River; and further, the lives of State oflicers, members, and attaches of the Legisla- ture, the chosen and honored servants of the people, are in continued jeopardy from the extreme unhealthy climate of Sacramento ; therefore, Sesolvtd, That the Committee on Miscellaneous Provisions be instructed to insert a clause in the Constitution leaving it to a vote of the people, at our next State election, where the future Capital of this State shall be located. Referred to Committee on Miscellaneous Subjects. LOCAL OPTIOM PETITIOH. Mr. HAGER presented the following petition, signed by a large num- ber of citisens of San Francisco, asking for the insertion of a provision in the Constitution for a local option law : To the honorable the Oonstltntianal Convention of the State of California: We, the undersigned, respectfully petition your honorable body to insert In tbe new Constitutiou of this State, a clause simUar to that now in force in tbe State of Texas, to wit: 8rctio.'< — . The Legislature shall, at its flnt session, enact a law whereby the qualified voters of any county, voting precinct, town, or city, by a m^ority vote, fhjm time to time, may determine whether the sale of intoxicating liqnoia shall be prohibited within the prescribed limits. The following memorial accompanied the petition : To the President and moml>ers of the Constitutional Convention : On behalf of the petition accompanying this memorial, transmitted herewith, yoor memorialists would most respectfully represent that the proposition embodied in the prayer of your petltiuners, to wit : " The Le;;islatiire shall at its first session enact a law whereby the qualified voters of any county, voting precinct, town, or city, by a mi^Jority vote, from time to time, may determine whether the sale of iiitoxicatlug liquors shall be prohibited within the prescribed limits," is identical with a clause presented by the Constitutional Convention of the State of Texas, and ratified by the people of that great communwealth. Tbe proiioeition presented raises but a single issue before your honorable body, to wit : the expediency of tbe local prohibition of the tralBc in intoxicating liquors. In this statement we aseiime that the inherent right of the people to regulate or to prohibit by law the said traffic will not be denied. The principle which commends the proposition broufzht before you by this petition is, that it refers the question of the expediency of prohibiting the traffic in intoxicating liqnors to the people. This principle is in consonance with the very genius of republican institutions. The people of separate localities should have the right to determine for themselves, as to whether the sale of intoxicating drink is inimical to the beet interests of their respective commnnltiee. This application of the principle of local sovereignty Is not new, bnt extends already to other questions of local character. We assume that those citizens interestrd in the sale of intoxicating beverages cannot reasonably object to the aduptioti of this proposition. No good citizen will dem|||d protection in the right to engage in a bnsinees which. In the Judgment of a miOority of his neighbors, is demoralizing to the neighborhood; and if the traffic in liquors is not destructive of the morals and good order of a community, these separate commu- nities may safely be trusted with such determination of the question as the facts warrant. In the opinion uf your memorialists, any opposition to the propiioitjon on the part of these engaged in the traffic in llquora must be based upon the ground that should the proposition be incorporated into the Constitution, many communities would decide against the continuation of the traffic. This is in effect an admission that in all such communities the tralBc is now carried on agaiiut the enlightened Digitized by DEBATES AND PROCEEDINGS Wednesday, jQdgmAnt and moral conscience of a minority of the penple resident in such commo- nities. The proposition herewith prosentedf if adopK-iI, would relegate the whole question to the arbitration of the iMillot box ; and reprraontlng thoee who entertain the opiuiun that the traffic in intoxicating drinlis ia destructive of the best and highest interests of the cummonwealth, we cheerfully submit the grave question invvilved to this high arbitrament. To deny the prayer of this petition will, in the opinion of your petitioners, be in effi'ct a denial of a sacred right. The right to determine what is necewary and appropriate to accomplish the ends of government, establish ordsr, and promote the general welfare or society, resides in the people, *and all we ask is, that this right shall be recognised in the determination of the issnes arising out of contending opinions concerning the character and moral tenden- cies of the unrestricted tntfllc In intoxicating liquors. The nature of the proposition herewith presented is such as to absolve us from the necessity of presenting any considerations or arguments tending to establish the expediency of prohibiting the liquor tfamc. We have no data upon which to found the aasumpiiun that In practice the proposition presented would result In such prohibition ; the resnit woul 1 be dependent upon the vrill of the msjurity of the voters in the local snbdivl8[Ln- troller, p 131), while the appropriation was one hundred thonsand dollars (see Stats. 1877-«, p. 1007, befurn cited). Thie large appropriation leads us to the conclnaion that the printing for tlic Convention woe included ; and this is strengthened by the fact that there was only one hundred and fifty thousand dollars specially appropri- ated for the exiiensos of the (invention, and their pay was fixed at ten dollars per day, and the nnmtjer fixed at one liniidrod and fifty-two niemlters, while one hundred days are allowed them to sit, whi-n It must have been apparent to the Legis- lature that one hundred and fifty thousand dollars would have been greatly Ini^e- qnate to pay all the expenses of the Convention: for a much shorter time than one hundred days. Third~-.\\l other expenses of the Convention must. In our Judgment, be paid out of the special appropriation of one hundred and flfty .thousand dolUrs made In the Act calling the Convention. AH of which Is respectfully submitted. 8. H. WILSON, Chairman Judiciary Committee. October 2M, 1878. Baolvtd, That under tlie law of the State calling this Convention, the stationery furnished members by the Secretary of State is chargeable to the appropriation of twenty-five thoiHand dollats made "for stationery, fuel, lights, etc ,' and not to the special appropriation of one hundred and fifty thousand dollars made in said Act calling the Convention ; and that the printing is chargeable to the appropriation of one hundred thonsand dollars for the support of ** State printing," and not against the one hundred and fifty thousand dollars appropriation aforesaid ; and be it further Retolved, That the President of the Convention be instructed to take such steps as he may deem noces^ry to be taken in the premises to carry into practical effect the foregoing rcsoluiloD. The resolutions were adopted. Mr. AYERS. Mr. President : The mere adoption of these resolu- tions without more further action on the part of this Convention, I conceive, will not stop the payment out of that appropriation. It seems to me that if the Controller is drawing warrants upon that fund for the purpose of paying for printing, stationery, etc., that this Convention should take some action by which tbtse resolutions would be enforced and made operative. Thb PRESIDENT. The resolutions instruct the President to take such steps afiie may deem necessary to be taken in the premises to carry into practical effect the resolutions. The first step will be to certify these resolutions to the Controller, as the appropriate officer, in the first instance. Mb. AYERS. I understand that bills have already been paid since the report was made. I do not know exactly how we are going to get at it, but it seems to me that the resolutions ought to be made operative some way by the Convention. THB OBAHD JDBT STSTBII. Mb. VAN DYKE. I move that the Convention resolve itself into Committee of the Whole, the President in the chair, for the purpose of further considering the report of the Committee on Preamble and Bill of Rights. Carried. IN COMMITTEE OF THE WHOLE. Thb chairman. The eighth section, as reported by the Committee on Judiciary and Judicial Department, was under consideration when the committee nose. Mb. van dyke. Mr. Chairman : I wish to withdraw the amend- ment I sent up to section eight. Thb CHAIRMAN. The Secretary will read the section as reported by the Committee on Judiciary and Judicial Department. Thb SECRETARY read : Sbc. 6. Offenses heretofore required to be prosecuted bv indictmeat shall be prosecuted by indictment or information, as may be prescribed by law, but a Grand Jury shall be drawn and summoned at least once t year in each county. Mr. SCUELL. Mr. Chairman: I offer an amendment to section eight. Thb SECRETARY read: Sec. 8. No person shall be held to answer for a crime, or other pub- lic offense, punishable by death or imprisonment in the State Priton (except in cases of impeachment, and in cases of militia when in actual service, and in the land or naval forces in time of war, or which this State may keep with the consent of Congress in timeof peace), anlea on presentment or indictment by a Grand Jury. In all other caaee, offenses shall be prosecuted by indictment, information, accusation, or complaint, as concurrent remedies as may be prescribed by law. A Grand Jury shall consist of not leas than fifteen nor more than eighteen persons, two thirds of whom may find an indictment or true bill. Tht Legislature, by a two thirds vote of all the members elected to each house, may abolish and restore the Grand Juty system. Mh. SCHELL. Mr. Chairman: That section is precisely the suns as reported by the Committee on Preamble and Bill of^ Rights. I believe it is better than the report of the Committee on Judiciary ajid Judicial Department. I desire to sav that I am opposed to the innovations sought to be incorporated in the Constitution by section eight, as reported by the Committee on Judiciary. I believe it is dangerous to place into the hands of the District Attorney, or any single individual, to aay whether a man shall be prosecuted for a felony without the finding of an indictment by a Grand Jury. It seems to me that it gives deeidMly too much power to any citizen, to require a party charged with crime to put himself upon his defense in order to defend himself against t charge which any person may bring against him charging him with a felony. I do not believe we ought to do away with a system which hat worked so well ever since the organization of our government. I say that when we introduce an innovation of this kind, we are going to sea without a compass and without a chart, and we do not know where we are going to bring up at. This section practically does away with the institution of the Grand Jury. I believe that there is no system so well calculated to protect the rights of innocent persons against the charge of felony as the institution of the Grand Jury, and I desire right here to place myself on recortOigainst the adoption of the section as reported by the Committee on Judiciary and Judicial Department. Mr. CAMPBELL. Mr. Chairman: I have sent up an amendment that I would like to have read. It is a mere verbal amendment. Thb SECRETARY road: " Amend section eight by inserting after the word ' or,' in line two, the word ' by,' and after the word ' information ' the words ' after com- mitment or examination by a magistrate,' so that the section will read: Section 8. Offenses heretofore required to be prosecuted by indictment shall be prosecuted by indictment or by information, after commitment on examination by a magistrate, as may be prescribed by law; but a Grand Jury shall be drawn and summoned at least once a year in each county." The amendment was adopted. Mr. WATERS. Mr. Chairman: I wish to offer an amendment which I send up. Tbb SECRETARY read : Amend section eight so as to read as follows : Sbc. 8. No person shall be held to answer for a capital or othenriit infamous crime (except in cases of impeachment, and in cases arising in the militia when iii%ctual service, and the land and naval forces in time of war, or which this State may keep, with the consent of Congress, in time of peace, and in cases of petit larceny, under the regulation of the Legislature), unless on presentment of a Grand Jury; and, in any trial in any Court whatever, the party accused shall be allowed to appear and defend, in person and with counsel, as in civil actions. No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled, in any criminal case, to be a witness against himself; nor bo deprived of life, liberty, or property without due pro- cess of law ; nor shall private property be taken for public use without just compensation being first made. SPKBCH or MB. WATBRS. Ma. WATERS. Mr. Chairman : That will be found to be essentially section eight of article one of the present Constitution. There ate two changes, one of which is inserting the word " arising " in the second line, and the other is by adding the words, "being first made," at the end of the section, so as to remove any question of construction as to whether, when property is taken for public use, the preliminary taking is a taking in the sense of the law. The main difference between this ana the plan suggested by the Committee on Judiciary is, as I shall contend, the Digitized i Nov. 6, 1878. OP THE CONSTITUTIONAL CONVENTION. report of the Committee on Judiciary abolishes the Grand Jury system in effect. Now, I shall say nothing in this Committee of the Wholo in praise of the Grand Jury system. I think I have noticed that this Com- mittee of the Whole has no reverence for the history of the Grand Jury system, consequently I shall devote my attention exclusively to the benefits and safeguards that this Grand Jury system throws around the citizen. I will leave the history and the reveiunee for the Grand Jury system to others, for I have noticed that this Convention, in its feeling of skepticism, seems to care very little about time-honored institutions. They would rather have something that is new — something that they know not what would be the effect of, or the result of, and consequently I direct your attention to what I consider the actual benefits and actual safeguards of the Grand Jury system now to the citizen in this State. It is sought by the amendment proposed by the Committee on Judi- ciary to set up some accusing officer, some one man, to be elected for say two or four years, who in each county in this State shall be vested with the power to place upon trial the highest and the lowest citizen in that county. They propose to set up one individual in whom shall be vested this power. I care not whether you call that individual the Dis- trict Attorney, or whether you call it a Board of Committing Magistrates, or a Judge of the Superior Court of the county. It is all one thing. Instead of this impersonal power, this Grand Jury, which is never com- posed of the same individuals, although one individual might be upon every Grand Jury in the county, yet it is impersonal. Never do you find the same identical individuals upon any two Grand Juries. Ifou might look over the records of every County Court in this State, you might search every set of Grand Juries that have ever been impaneled, and you will not tind a single instance in which the identical men who composed one Grand Jury have ever composed any preceding or succeed- ing one. Therefore, it is an impersonal body ; a body that corner from the people. They are responsible for every Grand Jury that has ever met, or that ever will meet. If Grand Juries make mistakes, the peo- ple themselves are at fault. They can blame nobody. But with this personal accuser, which you propose to have in each county in the State, ne is one who will have political enemies. Admit that he is immacu- late, and is one even who can make no mistakes, he will have political enemies, and when he indicts a person, that person will be in the Court- room creating a spite and hatred and prejudice a^inst this accusing officer, whoever he may be. This spite will enter into the trial jury, and will have its effect there. Even granting that the accusing oilicer makes no mistakes, and does his duty rightfully, it will create a preju- dice against him which should not exist. The system would be wrong entirely. There is nothing to commend it They will urge here, perhaps, that because the Grand Jury system is somewhat expensive, that it should be abolished; that it is trouble- aome to citizens to come to the Court House and perform, say, two days' labor once a year. It is always a good excuse for a man to give, that he has served once before that year. Now, do you suppose that the people of this State are becoming so estranged from the duties of citizenship that they are not willing to give one or two days' time for service upon the Grand Jury? I do not think that the people have cut loose so entirely from public duty as that. I do not believe they have. There are many things about the Grand Jury system that are over- looked. Whenever you hear of mobs rising in any part of the country, or of any kind of disorder, at the very next assion of the Grand Jury you will hear the Judge charge them that it is their fault and the fault of the juries themselves if crime goes unpunished. But when you get this accusing officer, who will the l)urden be laid upon? All the blame will be placed upon his shoulders. The people will not feel this responsi- bility that they now feel. This very responsibility has restrained many t mob — has restrained the feeling to.rise and mob in many an instance. Bat the moment you take the responsibility off the people and leave it in one individual, you destroy that respect, that sense of responsibility, that now rests upon the shoulders of each and every taxpayer in this State. It is not a safe thing to do. It was not the issue, nor one of the issues, upon which this Convention was voted for by the people in the first place. If any false issues have been raised by candidates while they were running for the Convention, I say that does not make it an issue before the Convention. I say that this was not an issue at the time the people voted for the calling of the Convention. That is the vote ujpon which we should act, and not the little issues or platforms that each candidate may have set himself upon in order to ride a hobby into the position of delegate to this Convention. The right way is to go back to the vote which called this Convention; kod I ask any gentleman upon this floor to show where any such issue was ever raised among the people during that election. This is not one of the issues that call^ this Convention. I«ow, that being the case, and in view of the fact that this Constitution most all go in the same boat — it must all sink or swim together — we shoald not put a single extra pound of ballast in the ship. From the way it looks now, even if there was no cause for voting against any Constitution that may be adopted, there are enough against it on gen- eral principles. There are plenty of people that have made up their minaa to vote against it, because they think there is some change to be made in the system of taxation. There is enough of them now ; let us not make wreck certain by taking on too much cargo. I think, if you abolish the Grand Jury system you will get a very respectable vote against any Constitution this Convention may adopt, because, if this one thing is taken (rota the people, I do not believe that they will ever tatify any Constitution that has that plank in it. [Cries of "Question!"] Oh, yes, "Question" is a very nioe thing to call on an occasion like &>><- I tell you that this is a thing that the people will not stand ; and even if this Convention does abolish the Grand Jury system, the people, when they are called upon to ratify it, will, by their votes, shove it down our throats. The Convention can use its own judgment. I do not pro- pose to trouble it much in the future ; but I wish to express this one thing, that I have noticed here a disposition to weigh down the Con- stitution with things that the people do not want, and to take away rights from them that they never will surrender; which shows, to my mind, an intention to load this Constitution go that we cannot do any good, and to destroy what little good we may be able to do. For that reason, I have some feeling upon this question, and I hope the provision of the old Constitution will be adopted. SPnCH OF MB. CAHPBRLL. Mr. CAMPBELL. Mr. Chairman : The gentleman from San Ber- nardino, Mr. Waters, in common, I see, with a good many other persons, and in common also with a respectable portion of the public press, lias entirely misunderstood and mistaken the object and purpose of this amendment. It does not provide for the abolition of Grand Juries. It does not provide for the election or selection of any officer at whose beck or nod any citizen may be placed upon trial for any crime. It does not in any manner encroach u|>on the liberty of the citizen. Let me explain the proposition as it stands on this amendment. The amendment does not go as far as I, individually, would like to have it. That portion of it which requires that Grand Juries should be summoned in each county unce a year, was adopted in deference to the judgment of some gentle- men who seemed to think that there was some use in the system, and that it formed a good check upon public oflSoers, and therefore that we should retain the Grand Jury once a year at least. Now, what this amendment provides for is this, that while heretofore we have had but one system of prosecution for the higher grade of crimes and misdemeanors, we should have two, and that the Legislature should arrange the detail and mode of process as it dues now. For instance, in order to carry out the provision in a Constituticm which declares that we shall have a Grand Jury, the Legislature goes in and regulates the times when it shall meet, the number of which It shall be composed, and all the various circumstances which are necessair to give the system effective operation. We propose to allow the Legislature to continue that system just as much as it pleases, to preserve, if it pleases, all the laws which now regulate it, but at the same time, we provide for another system of prosecution which may be found very convenient ; not in any manner oppressive to any citizen, as I shall show, and free from the great miscniefs which exist under the Grand Jury system at present — a system which will expedite trials, which will save a very large expense to all the counties of this State. Now, the system of prosecution by information which we propose here is the one which has been adopted in Michigan. It exists in Wisconsin, where the institu- tion of the Grand Jury has been abolished, and by a popular vote of upwards of two thirds of the people — as I am informed by a vote of forty-eig|ht thousand to eighteen thousand. It introduces a svstem simple, mexpensire, free from the abuses which now attend the Grand Jury system, and which will enable justice to be administered far more speedily than It is now. Let me explain the system as it is regulated by statute in Michigan. In that State their Constitution is silent about the mode in which criminal offenses shall be prosecuted. It is left entirely to the discretion of the Legislature. Now, the Michigan Legis- lature has provided a complete Grand Jury system, just as we have, but it has annexed to it this proviso, that no Grand Jury shall ever be drawn or summoned in any Circuit Court — answering to our District Courts here — except upon tfie order of the Circuit Judge. It provides further for prosecution by information ; that when a person is accused of crime he shall have a regular, open, public examination before a magistrate, where he shall be fully heard and have witnesses in his defense. Then If the magistrate, upon the evidence, thinks that there is sufficient to hold him to trial, be makes out a commitment The papers are then forwarded to the District Attorney. The District Attorney is required then by law to examine these depositions and the circumstances of the cose, and if upon that examination he is of opinion that there is not enough evidence to hold the party accused — not suffi- cient to place him upon trial — he then passes the papers to the Circuit Judge. The Circuit Jud^ examines them, and if in his opinion the party should be put on trial he is placed on trial ; if not, he is discharged. Now that, in brief, is the system. It creates no officer at whose mercy the citizen is thrown. The citizen has this safeguard. In the first instance there is a public examination, upon complaint, before a magistrate. In the next place, if the magistrate, after oearing all the testimony on both sides in an open public inquiry, thinks that he should be tried, the papers go to the District Attorney. If the District Attorney thinks he ought not to be tried the papers go to the District Judge, and if he agrees with the District Attorney the party, instead of being kept in jail for months to await a session of the Grand Jury, is discharged. If, on the other hand, the District Judge thinks that the man ought to be tried, if he agrees with the magistrate upon that subject, then the District Attorney is directed to file his information. That Is immediately done and the party can have his fair, impartial trial before a petit jury. I see no oppression and no injustice, and no one-man power in this proceeding. It has been in operation in the State of Michigan for more than twenty years. They have had, side by side, the two systems. The Grand Jtiry system and the system which we suggest, and which has been adopted there ; they are both on the statute books, side by side. They have had the experience of the new system, and they have found that it is rarely necessary, in the judgment of any Court there, to summon a Grand Jury. One gentleman, a member of this Convention, Mr. Beerstecher, who resided in that State for ten years prior to his coming to California, informs me that in the county in which he resided there was but one Grand Jury during the period of ten years, because it was found that justice was amply done without the intervention of any Grand Jury. Now, let us look at the Grand Jury ^stem, and 8ee,JR|kether it is i Digitized 1 8ee,JR|ketber it is a byCoogle 310 DEBATES AND PROCEEDINGS Wednesday, bulwark of our liberties at all. It is all Tery well to say that it comes to us surrounded by all the splendors of antiquity. That is perfectly true, and I recognize the soundness of the principle that where a system has been found to work well for a long time, we ought to be careful in making innovations upon it ; but at the same time, the mere fact that a particular plan or system has existed for a great number of years, is no reason why it should necessarily exist forever — why changes of laws adapted to the changed condition of society should not be adopted. We all know that within the lifetime of many of the members of this Con- vention it was the recognized medical practice, in oases of fever, to shut the patient up in a close room; to exclude the fresh air and give him hot drinks when his tongue was parched, and all nature cried aloud for something to cool his burning throat. It is within our own memory how thousands were slaughtered by this kind of treatment, until one day a patient, laboring under a high fever and clamoring for something to cool his parched throat, seized a pitcher full of cold water, emptied it down his throat, and fell back upon his bed, burst out into a perspira- tion, went to sleep, and was cured. Then the idea dawned on the medical fraternity that it might, perhaps, be a good thing to satisfy the cravings of nature in that direction. So with regard to the old theory, that it was necessary to keep a man in a room where the light was not permitted to enter. ' All that has been exploded, with the most happy and fortunate resnlts. So with the introduction of the Yankee plow into the fields where they had always plowed the ground with a branch of a tree, it would be an innovation most dangerous to society to allow this Yankee plow to be introduced. Now let us look at this system of the Grand Jury and see what we would think of it if it was proposed to-day for the first time. Suppose there never had been any Grand Jury, and some gentleman, a member of this Convention, was to rise from bis seat and say : " Gentlemen of the Convention, I have a panacea here; I have something to cure all public ills; I have something which will bean effectual safeguard to the public and to the citizen. I propose that in each county iu the State, at every term of the Court, there shall be drawn at random from the body of the county, or from the taxpayers, or any other class, a certain number of men; and these men shall get together in secret conclave; their pro- ceedings shall be entirely private; they shall be under oath not to com- municate their secrets or their knowledge of what takes place among them to the outside world: but they shall sit as a private mquest upon the life and liberty of every citizen in the community. I suggest and propose it in the name of public liberty." Now let me ask you what would the answer to that suggestion be? It is needless to say what the answer would be. Such a proposition would be laughed out of this Convention. Now, a few of the evils of it. In the first place, I think it is fair to say that the smallest expense to the counties of this State of the Grand Jury system, is from one hundred and fifty thousand dollars to two hundred thoasand dollars a year. In the City of San Francisco, at one time during the present year, there were two hundred men iu the County Jail of the City and County of San Francisco awaiting the action of the Grand Jury. Two hundred men supported at one time in the midst of crime and vice, in the worst school of crime possible, and there awaiting tbe action of the Grand Jury ! In other counties it is the same. In Sacramento here, during all the time that this Convention has been in session, there has been a Grand Jury in session, if I am correctly informed. For months there have been cases accumulating before them. There have been persons committed for trial in all parts of the county; and then these Grand Juries are summonv^l. and tbe prisoners have to wait until that Grand Jury can meet before there is any chance to have a hearing. There is an immense expense entailed. There is an increase of crime and vice created by associating accused persons with others of depraved and bad character. Then, again, what further do we find? You take it in a large city like San Francisco, and I say that it is notorious there, that so far from the Grand Jury system being a shield and a protection to the poor, that it is nothing else but a shield and protection to rich scoundrels. You take a man who will have a corporation interest to sustain him, a banking power or stock exchange power — ^any of those great powers which exist there — and it is absolutely impossible to indict him. I can call to mind an instance not very long ago, where three times the acts of a public officer was laid before the Grand Jury, where the proofs were clear and the acts notorious, but it had se perfectly free from these embarrassments which attend the Grand Jury system, and, on the other hand, would save the people of the State from an enormous exjwnse annually. But if the system of prosecution by information did not work well, why there is the Grand Juiy system still in operation. One may be summoned whenever you desire. But how is It now ? We have got to consider the geography of this State and the extent of its territory. You take it in large counties with small populations. Perhaps two or three men are in the county jail. They have been committed by a committing magistrate for stealing a hoise, or for burglary, or highway robbery, or something of that kind. !• there any earthly necessity that a jury should be drawn, that men should be taken from their homes hundreds of miles, for the purpose of goiu^to the county seat and simply indorsing the act of the magistrate, or saying that the "magistrate committed on insufficient evidence! Why not give the man, if innocent, a chance for a speedy trial? If the depo- sitions are insufficient to warrant his trial it is not likely that the Dis- trict Attorney will have him placed upon trial. They will discharge him as an innocent man, in their judgment, certainly, if the circum- stances do not require that he should be placed upon his trial. If, how- ever, he is to be placed upon trial, he has a speedy oppoKunity to vindicate his innocence before a jury of twelve men. It is better far for innocent men; it is better for the country; it is better in every point of view. But if it should turn out that I am mis- taken, then it is in the power of the Legislature and of tbe Courts to resort to tbe Grand Jury system. It leaves the discretion with the Leg- islature. It may fail to provide any process by which this trial by information may be had, or it may -provide that Grand Juries shall Ihb drawn at stated periods, or it may authorize the Courts to call them whenever in their judgment a Grand Jury is necessary. We do not, in this amendment, abolish the Grand Jury'. For my own part there is a portion of the amendment which, as I before stated, was agreed to by myself as a matter of deference to the opinions«f others, and that is that there should be a Grand Jury once a year. I have heard but one argument which is worth an answer in favor of the Grand Jury system. It is claimed by some gentlemen that it exer- cises a wholesome supervision over county officers. Now, does it? It may, perhaps, occasionally. A county officer may be afraid that the Grand Jury will come around and examine his books and find some- thing wrong in the conduct of his office. Now if you propose to exam- ine into the afiairs of a county officer, I do not know of any more unwieldly and useless body than a Grand Jury. When they do meet for such purposes they invariably employ experts to do the work— thst is, to make examinations of the aocounte of the public officen — which could be very easily done without any Grand Jury, by a simple order of the District Court or Board of Supervisors, without all this cumbrous machinery, this secret tribunal, the very nature of which is repugnant really to our ideas of right. It is a tribunal which can exclude evi- dence, for while it is true that the statute allows them to call in evidence for the defense if they think fit, yet if they do not think fit they do not do it. But take the nature of a trial before a Grand Jury and who csn imagine anything worse than a sort of trial before a secret body where tbe prosecution is represented and the defense is not. Now, take it and see what it does in point of fact I am specking now of the larger cities in the State; other gentlemen representing counties in the interior can speak of the matter for themselves. In Ssn Francisco the Grand Jury gets together. It is charged by the Court and a whole mass of papers is sent before it. There will be probably a bnn- dred men committed for trial whose cases it is to examine into. It is a body which remain in existence but for a brief period. It is selected without any consideration of the individual qualifications of its members. But it gets together, and under,.i^e monageownt of the Digitized by Google Nov. 6, 1878. OF THE CONSTITUTIONAL CONVENTION. 311 L District Attorney, tb«ae cases are examined into. He governs the action of the body in relation to finding bills of indictment. In the next place, on some fine day, it starts oat in carriages and takes a drive out to the county jail, walks through the city prison, goes out to the almshouse, from there to the Industrial School, and it finally comes back and makes a hasty report of what it has done; that it has visited all the public institutions; that the expenses of the county are much too great — which everybody knows; tnat the almshouse is a model institution — which is pretty generall}[ believed ; that the city prison of San Francisco is a° perfect disgrace to civilization and the city — which it always has been and everybody knows it; and then they generally end by saying that they have been extremely diligent, and that though they are satisfied that there is something wrong in the condition of public af&irs, they do not know exactly who is to blame, and it would be well to have some other Grand Jury examine into it; then with a splendid compliment to the District Attorney, the Grand Jury adjourns and ranislies into thin air. That is the regular history of a San Francisco Grand Jury, and it is the same in the lar^r counties of this State. In most of the counties, I am inclined to think it is a good deal in the tame way, as the experience of gentlemen will tell you. I do not desire to detain the Convention, but at the same time I think we ought to give the Legislature an opportunity to present before the people a system which will be free from these defects; which will enable men who are accused of crime, in the first place, to have an open and public examination, before no secret tribunal at all, and which will enable them to have a speedy and impartial trial if they are committed. I think we would be wrong in preventing the Legislature from adopting nieh a course as that. And so far as this matter is concerned, of being spoken of before the people, I will say this, that prior to the election at which I was chosen a member, I had occasion on several instances to speak of the very evils of this Grand Jury system, and to express in public to the people my (pinion that it should be abolished. I met with no dissenting answer among my constituents. On the contrary, I met with most urgent requests that if elected I should ur^e this matter before this body. I think if you could get the public opinion of the State to-day you would find that a large majority of the people would be in favor of doing away with a system which is useless in its results, which is incapable of ffioa in the future, and substituting a system more simple, more effica- cious, and more just to the citizen and to the people. SPEICB OF MB. HCBRtMOTON. Me. HERRINGTON. Mr. Chairman : There are, certainly, two sides to this question ; and however much the abuse of the system may be i^ietted, this Convention would do well to pause and reflect as to the remit of the abolition of the Grand Jury system. It has been asserted by the hut speaker upon the floor that it was not intended to abolish the Grand Jury system by the provision reported by the Committee on Judiciary and Judicial Department. The section reported was as fol- kivs: "Sec. 8. OSenses heretofore required to be prosecuted by indictment, thall be prosecuted by indictment or information, as may be prescribed by law ; but a Grand Jury shall be drawn and summoned at least once » TMr in each county." Which one of these systems will be prescribed by law T Which one will yoor Legislature drop upon when they come to provide for the puni^ment of your criminals? Will they say that it snail be done by indictment, or that it shall be done by information? Give it up? Vou may well give it up. Jiow the financial question, as connected with this jury system, is the most feeble objection that has been urged upon this floor. We hardly ever propose, when in our sober senses, to weigh character against money, life against money, or the dearest interests of society against dollars and cents. It is not the habit of the correctly thinking mind. The consid- eration of dollars and cents to be weighed against the dearest interests of society and the protection of human liberty, is simply an absurdity. I'pon this question, however, let me aak now many petit juries are tared, so far as expense is concerned, by the sitting of the Grand Jury 7 When men througn passion or prejudice bring complaints against men, they are generally stopped in the Grand Jury ; but if this new plan is adopted, crimes of the highest nature will be charged against your best citixens, and they will be dragged into your Police Courts. I do not stand here for the purpose of defending these persons, but so far as those who are unable to nelp themselves are concerned, I stand here for their defense. Kow, I say that this is a consideration, and thi» is an anument that is well worthy of consideration. The expense of one half dozen petit juries before your tribunals, is enough to pay for all your Grand Juries for a whole year in every county of the SUite. One half dozen bills ignored by your Grand Jury is sufficient to pay the whole expense of your Grand Jury in each of your counties. So much with reference to aollars and cents alone. This, however, is the smallest consideration in relation to the matter. It is the eflect of permitting this voluntary inter- meddling with private characters by private individuals, to gratify malice and malice alone. Whereas, if these higher offenses were prose- cnted before a Grand Jury, these cases would be ignored by your Grand Jury, and the disgraceful scenes that are transpiring daily in your lower Courts would not be enacted before your highest tribunals. Does anjr one presume to say that such a result will not be brought about if this Crsnd Jury system were abolished? I decline to enter into the history of the rise of this institution. It is well understood by those gentlemen who have been practicing law for the but twenty years. What was the origin of this Grand Jury system ? It is not beyond reason to assert that the same reason which gave our origin to the Grand Jury system will occur again. It is not unreasonable to raj^mie, that even in this country power may be asserted, and does exist to-day, that may become an oppression to the people. There is a power that is growing and gaining strength in this land, that by its ' influence may oppress the poor, and the Grand Jury system will be the sole protection against it. I undertake to say, that we are not free even from the toils of the ambitious on this land. I propose now to read one little, short sentence from "ProSatt on Jury Trials," not for the purpose of proving that the position I assume is absolutely true, but simply for an illustration of the position which I take: ' In the reign of Jamea I, it wai held br the Lord Chancellor, the two Jmtices, and the Chief Baron, that when an Indicted party is funnd guilty, the Jnry ahall not be questioned; but when a jnry acquitted a felon, or traitor, against manifest proof, they may be charged before the Star Chamber 'for (heir partiality in finding a man- ifest offender not guilty.* This doctrine was extended to the case of fining a Grand Jury when they ignored a bill ; and an instance of it occurred in sixteen hundred and sixty-seven, when Chief Justice Kelying fined a Grand Jury of the County of Somerset for refusing to find a true bill of munler against a man ; but ^bteauM they were gentUmen qf repute in the county the Oourt spared thejtne.* •' Now, Mr. Chairman, that is an example or illustration of what I undertake to say is not beyond a probability in this land. When a gen- tleman of repute is brought before the tribunals for punishment he is spared the fine. Aye, and he is spared the prosecution. Why? Because the humblest citizen in the land is not permitted to approach the digni- fied Court that sits in state for the purpose of hearing his complaint, and be is spumed from its threshold simply because ofnis humble con- dition. The Grand Jury is supposed to come from the body of the people, and to hear complaints when they are brought, when this tribunal will turn a deaf ear. These things are occurring daily even now in the midst of our people, and the spirit is growing more and more through the land, and an aristocracy oreeding here in this free America that is hardly willing even to tolerate the presence of the poor at the feet of Justice. Cut off from the people this poor boon and you have cut off from them the right to approach the judgment seat against the millionaire. Cut oflT from a man the right of entering before the Grand Jury, and you have awed him into silence in the presence of the magistrate. This is what the (Jrand Jury was instituted for the pur- pose of avoiding — even as a protection or bulwark against the crowned heads. It stands here to-day as a protection against an aristocracy in this free California. I undertake to say that it will be a sorry day for the poor people of this land when this system is given up or done away with. I say it matters not what may have been its origin. I take it as it is, and hold it to be the bulwark of the poor or oppressed in this land, and it is absurd for gentlemen to weigh in the scale against this system the paltry consideration of dollars and cents as an argument. I am opposed to the abolition of this jury system. I am opposed to it for the reasons which I have asserted, and for some others which I have not asserted ; and I shall vote for the amendment as offered by the gentle- man from San Bernardino, Mr. Watery. 8PKICH OF MB. BABBODB. Mb. BARBOUR. Mr. Chairman : I am in favor of the entire anni- hilation of the Grand Jury system, and in that assertion I believe I am speaking the sentiments of the electors of the City and County of San Francisco. The gentleman from San Bernardino, Mr. Waters, has said here that it was not an issue before the people. How it may have been with him I know not, sir, but with us it was an issue. There was hardly a meeting held under the auspices of the party which elected me at which the Grand Jury system was not denounced in unmeasured terms. The people understood that we were hostile to it, and they voted for us knowing that to be the fact. I indorse, sir, every single word stated by the gentleman from Alameda, Mr. Campbell, with regard to its entire uselessness any longer as an agent or functionary in the administration of criminal justice. The reasons for its establishment have long since fled, sir. Where in the beginning it was used as a means of protection to the citizen, it has now become converted into an instrument of des- potism and an engine of oppression. I speak more particularly of its operations in the City and County of San Francisco, because I have watched its operations more particularly there. I assert, sir, that it is contrary to the genius of our nree institu- tions, and contrary to the genius of civilization itself. That one feature of secrecy alone is sufficient to condemn it, without one single other consideration. It has been maintained and adhered to because of the law and order loving spirit of the people, and because of the attachment of the American people to established institutions long after their judg- ment has condemnea them. But it is not true that the enlightennl people of the United Slates are longer adhering to it. AH over, where moaem Conventions have been held, it has been either entirely abol- ished or the means have been placed at the hands of the Legislature for its abolition. I furthermore maintain that it is the necessary and logical sequence of the action of this Convention yesterday in regard to the petit jury sys- tem, that it should be followed up by the destruction of the Grand Jury system, because every lawyer knows that a trial by the common law jury was a necessary sequence to an indictment. If you abolish the petit jury you want no more indictments. Now, sir, I reiterate the statement of the gentleman from Alameda in regard to San Francisco, that the Grand Jury there present no indictments and make no accusa- tions of their own volition, as understood and contemplated should be done by them. They have been drawn from the various sections of large cx)untie8 where they are cognizant of things in their region, or the vicinity where they live, which they themselves could bring to the knowledge of their associates upon the Grand Jury, but that is never entered upon now, sir. They are all brought under the cognizance of the committing magistrates of the City and County of San BVancisoo, and must all come through the hands of the District Attorney. He wants a person or persons indicted, and that is all there is about it. The particular objection to the Grand Jury there has been that those Digitized by Google 312 DEBATES AND PROCEEDINGS Wednesday, who are backed by large means, or hj rich and powerful araociations, use the Orand Jury to escape the punishment of their crimes. Ther have all the time used it. Where the District Attorney, for his owu purposes, or for their purposes, sees fit to do so he can make an engine of oppression out of that very institution. I myself was conperned, and these delegates elected from San Francisco, in a case that dis- tinctly illustrates that proposition. Denis Kearney, Dr. O'Donnell, Wellock, and various parties, as is well known, were arrested in Ban Francisco upon numerous charges. Among other charges preferred against them was one that they had committed a riot, by holding a meeting on Nob Hill, within the sacred precincts of the magnates of the railroad corporation. They were taken before a committing magis- trate. It was fully examined before the committing magistrate. I myself appeared as one of the associate coimsel for the defense, and after a full and complete examination of the foundationle»sand ground- leas charge against these men be discharged them. Xow he did not send it before the Grand Jury. That ougnt to have been the end of that charge. What happened? Hostility existed between that magis- trate and the District Attorney. After the sitting of the next Orand Joiy the District Attorney presents that very identical case, that very identical charge, in the shape of an indictment, before the very identi- cal Court which had discharged them. They were compelled to undergo the expense of a trial all over again about the ver^ identical matter, and which resulted in the fiasco, the history of which is well known. It is called a Grand Jury. What there is grand about it I am unable to see. It is one of those relics of antiquity, of by-gone civilization, and I suppose that the word "grand " is brought in as a part of the splendor which used to surround tnat institution. And it is anything but grand, Mr. Chi^irman, especially in its character of a smelling committee. It goes around, after due and sufficient notice has been given that it will appear at a certain time before the public institutions, and they are ▼eiT diligent in preparing for the reception. They wash out all the filth that is not too thick to be gotten out of the way, and by the use of chlorate of lime make it as clean as possible, and the Grand Jury goes smelling around there and perhaps gets something to drink. They do not go and talk to the prisoners ; thev do not go and talk to the paupers, and find out whether they are suffering. Not at all, sir. They go back and flatter and tickle one another. They put in a report lauding the fidelity and zeal of these officers. When they get through, the Dis- trict Attorney rises in Court and praises the Grand Jury for the arduous services they have rendered, and the Grand Jury, in return, tickles the District Attorney with resolutions about his promptitude, and give him a lift for the next election. They have accomplished nothing ; achieved nothing; done nothing that in any manner can be one particle of use in the administration of criminal justice. Therefore, I am in favor of its total abolition. The gentleman from Alameda, Mr. Campbell, has given the subject careful consideration, and I consider the reasons which e gave as being conclusive. 8PISCB OF HB. ■8TXB. Mx. ESTEE. Mr. Chairman and gentlemen of the committee : So far as I am concerned, individually, I recognize that I have some reverence for the institutions of the past. I recognize that there have people lived in the past who were as wise as we are. I believe, sir, that the institu- tions that have existed for hundreds of years and have met the necessities of the times and wants of the people are precedents by which we may be guided. I believe that this Convention cannot, if it tries, reform all the evils that are recognized throughout the world. I do not believe, sir, that the two last gentlemen— or rather the gentleman from Alameda, Mr. Campbell, and the gentleman from San Fmncisco, Mr. Barbour — have stated in their arguments any good reason for changing this great, and, what I believe to be, glorious system — the Grand Jury system. One or two reasons have been given, it is true. One is a purely financial one, namely, that it is expensive. The other is that the Grand Juries are corrupt. These are the onlv two reasons that have been submitted to this Convention for its consiaeration. As to its expense I have noth- ing to say. Liberty is expensive. Anything by which the rights of life, liberty, and property is secured is attended with expense and incon- venience to the p«ople, and if you propose to measure these sacred rights b^ the amount of money it costs, then I will leave the further considera- tion of that question to the gentleman who first opened this debate. For one, I think that there are certain interests that are worth protection, even if they are expensive. But I deny that they would be more expensive. We will suppose you have an honest District Attorney in a city like San Francisco. A charge is brought before him, and what is his position? It hardly matters how frivolous the charge. There is some responsible party says that a man is guilty of some offense, and he is almost placed in a position where he is bound to bring the man before a jury and have him tried. MR. CAMPBELL. The proposition is merely this : that the District Attorney may file an information after the party has been examined and committed by a committing magistrate. Mr. ESTEE. I^ will come to that. This is the essence of the thing, because the committing magistrate merely says that a public offense has Srobably been committed, but the District Attorney passes upon it. He ecides whether that man shall be tried or not. Take San Francisco, with its population of three hundred thousand — probably in ten years five hun- dred thousand — and let one man — I care not how pure he is, I care not how brilliant he may be in his profession, I care not how exalted his position — have the power to say that he will try you for felony, or me for felony, or this man for misdemeanor, or that man for misdemeanor, bring him before a jury of his peers and try him — see what a power he has got. See what a position it would place the District Attorney in. I claim that this is not the remedy for the evil, if there be one. I confess right here that I disagree entirely with the gentleman from Alameda and the gentleman from San Francisco, relative to the corruption of these Orand Juries. The gentleman from Alameda says that the Gnni Jury system in San Francisco is a shield for rich scoundrels. I deny it Standing here in this presence, responsible for every word I say, I say that the Grand Juries of San Francisco, for the last twelve or fifteen years, have generally been the purest men in the community. The petit jurors are the ones who let the most scoundrels free. The Grand Juries of San Francisco have always been the best class of our people, representing every interest, representing every impulse of the people, representing every emotion, if I may so speak, of the people. Cominf together with no motive to oppress and every reason to see that punitk- mcnt is awarded, if any crime has been committed. Sir, with some very rare exceptions, no case of a Orand Jury can be pointed out where they have let rich scoundrels out. Look at all these rich scoundrels that the gentleman might refer t«. Look at the Fair case. She was indicted by a Grand Jury. Look at ill these cases that have become historical in San Francisco. IndictmenU have been found against the proper parties, and under the peculiar opera- tions and machinations of counsel, by the cireuinstances of witnesses being got out of the way, and all this various modus operandi that ii ao familiar to gentlemen who defend criminals, they nave gone clear. Criminals have been cleared by petit juries, not by Grand Juries. I sin not here in this respect, however, to argue that Grand Juries have never done wrong. I am not here to say that there are not instances in Sta Francisco where they have done wrong, bat I want to see the man, the public officer, or the institution that has never done any wrong. But if we are going to tear down the pillars of this institution that has come to us by so many years of experience, recommended by the wise men who lived before us, let us have some tangible reason for it. Let us find ioids abiding precedent for it. Let us find a reason that the people can see and u uderstand and that we can point to and say, " there is a wrong that has been committed on the people and here is the remedy we are going to give the people in exchange." I disagree also with the geotlemin from San Francisco, Mr. Barbour, about the recent action ofConstita- tional Convention!. I find, sir, so far as I have been able to observe, not in a single instance have they changed the Grand Jury system. The Isit Constitutional Convention was in Missouri, where they say; " That ou person shall for a felony be proceeded against criminally otherwise than by indictment, except in cases arising in the land or naval foroes, or in the militia when in actual service m Ume of war or public danger," etc Again, in Pennsylvania tbey lay down the same doctrine in their Constitution of eighteen hundred and seventy-three. The Illinois Con- stitution I have not yet examined on this point, but I understand that it is the same. Mr. BARBOUR. I would like to call the-eentleman's attention to the Constitution of Georgia in eighteen hundred and seventy -sercn, where it is left out altogether ; and to the Constitution of Colorado of eighteen hundred and seventy-six, where they provide that the genersl assembly may abolish it. Mr. ESTE'E. I do not have them before me now. If the genttemta has found those cases he is entitled to that precedent. But wt me say right here, that in the rural districts — that is, in a State like Wisconsin or Minnesota, or even Georgia, where there are no large cities— the reasons for Grand Juries are not so strong. I confess that in some of the counties of this State, where every man knows every other man in the county, where there are no large places, there is no necessity for a Grand Jury very frequently. I understand that perfectly. What I claim is, that it would be bad policy, that it would be contrary to the best experience of the wise men that have lived for one hundred yean, to strike at this great institution, and say that from this on the uraod Jury system shall be abolished. But tbey tell us, you may have a little of both. A little of both means not much of either. You may have a Grand Jury once a year. Better abolish it at once, for that amounts to nothing. Either take the whole thing, if it is right, Mr. Chairman, or abolish the Grand Joiy system altogether, and adopt this system offered by the gentleman from Alameda. If it is wrong, let us'abolish it. Let us not divide the responsibility between the Grand Jury and the District Attorney. I believe that the Grand Jury system has worked well in the pa8t,aol for one, where I find in the old Constitution a provision which seemito have worked favorably for the' whole people I do not propose calmly to consent to its abolition. For one, I recognize that men*have lived briore us whose experience may be worthy of our imitation, and whose advice and counsels we may safely follow. For one, I recognize that that oM Constitution, or much of it, is among the best wntten organic Ian adopted by any State in the Union, and I hope, sir, unleas for the very gravest reasons, that this Convention will not feel it to be its duty to destroy whatever there is that is valuable and good in the old Constitu- tion merely to make a change. Unless there is some marked evil, some great wrong to be perpetrated on the people, and some remedy enforced to remove it, I say that we owe it to ourselves, we owe it to the dignity and honor of the past, we owe it to the law, which it is the duty of eveiy citizen to obey, that we should make no change merely for the sake of change. I hope if you are going to abolish the Grand Jury system yoo will take it as a whole. In8tead.of lopping off-a partof it, let us aholiih the whole of it. If it is wrong to keep it, let us take the whole of it, and let the people try the new system, pore and simple. Mr. HUESTIS. Mr. Chairman: I move that the committee rise, report progress, and ask leave to sit again. IN CONVENTION. Th« PRESIDENT. Gentlemen : The Committee of the Whola have instructed me to report that they have had under consideration the report Digitized by Google ."♦ Nov. 6, 1878. OP THE CONSTITUTIONAL CONVENTION. 313 of the Committee nn Preamble and Bill of Sightt, report progress, and aik leave to sit a^ain. The hour having arrived, the Convention took a recess until two o'clock p. H. AFTERNOON SESSION. The Convention reassembled at two o'clock f. h., President Hoge in the chair. Quorum present. PWITION. Mb. ESTEE. Mr. President: I ask leave to present a petition from a Itj^ noraber of citizens of San Francisco, asking that a certain da^ be set apart bj this Convention as a day of rest, and ask to Uave it referred to the Committee on Miscellaneous Provisions. Tbi president. If there is no objection it will be eo referred, without reading. TBI OBAKD JVBT STSTKH COKTINUIO. Ms. VAN DYKE. Mr. President : I move that the Convention do now resolve itself into Committee of the Whole, for the purpose of resuming the consideration of the report of the Committee on Preamble sad Bill of Rights. The motion prevailed. IN COMMITTEE OF THE WHOLE. Tbk CHAIRMAN. Section eight and amendments are now before the committee. gPEICH or MB. BEIHSTECBEB. Mb. BEERSTECHER. Mr. Chairman : I have three reasons for ipeaking upon this question. First — I differ with the gentleman from Stm Bernardino, Mr. Waters, who says this was not an issue in the recent eampaign. It nay not have been an issue in the gentleman's district, but ss aptly stated by the gentleman from San Francisco, Mr. Barbour, it wss a matter that was actively canvassed in San Francisco in the political meetings prior to the election of the nineteenth day of June last, and the almost unanimous verdict was that the Grand Jury system, if not abolished, should at leas tbe modified. Second — The gentleman from Alameda, Mr. Campbell, has referred to myself as having lived in a Slate where the Grand Jury has been abolished — namely, Michigan, and having personally seen the workings of the criminal code without the aid or assistance of the Grand Jury for over nine years, during the erater part of the time being actively engaged in the practice of law. Third — Asa member of the Judiciary Committee who have made the report recommending the abolition of the Grand Jury system. Mr. President, for tbeso reasons, and because I consider the Grand Jury system as useless in the present age and condition of government If a crime is committed and an arrest made, an examination results. The person accused is either held or discharged — gives bail or is sent to jail— sent to jail not to await his trial — not to be placed before a jury of his countrymen, but to have his case passed upon by a secret tri- bunal without the privilege of being heard in his defense. He lies in jail one, two, or three months. His case is at last brought before the Grand Jury, who, after a one-sided' examination, determine whether he is to remain in jail and eventually be tried, or to be discharged. In this way men are confined in prisons for months without being tried b^ a jury of their countrymen. It has been stated that the Grand Jury I8 the bulwark of tho liberties of the peojile, that unless the Grand Jury exists it will be impossible to convict cnminals. Mr. President, I deny the assertion. In conversation with one of the eminent jurists who occupies a seat on this floor, some weeks ago, the gentleman expressed himself upon the Grand Jury system by stating that a client of his oommittea a crime, for which he was about to be proceeded against by . the Grand Jurv. I here call particular attention, Mr. President, to the fact that aperson whose case is about to be examined by a Grand Jury has a right to challenge tbe Grand Jury as an array or as individuals, if he is finan- cially able to secure men of sufficient shrewdness to work upon the Grand Jury. He can stave off indictments for an indefinite period. Section one hundred and eighty-three of the Penal Code provides for challenges to Grand Jurors upon the ground, among others, "That the Grand Juror has formed or expressed an unqualified opinion or belief that the defendant is guilty or not guilty of the offense charged," and "that a state of mind exists on the part of the juror in reference to the ease of either party, that satisfies the Court that he cannot act impar- tially without prejudice to the substantial rights of the party challeng- ing." The gentleman to whom I referred, when he ascertained that his client wai about to be indic^l, used the means necessary to render a sufficient number of Grand Jurors incompetent to find a bill. When tbe time came to examine into the case of his client, the gentleman went before the Grand Jury and challenged the several men composing that Grand Jury until he reduced the number of Grand Jurors below twelve, the number necessary to find a verdict. The same method was used for two years, and the client went free. Mr. President, I take up the San Francisco papers of to-day, and I find therein a list of the Grand Jurors summoned to set upon the jui^ just called. How easy a matter it is for a man of wealth to so use his means -as to form a oias of opinion in the minds of the men whose names have been publisjied to-day. The gentlemen of whom I have spoken made use of means of that character. It can easily be done. It is not necessary to influence the whole Grand Jury, it is only necessary to prejudice, and by representations, so to form a bias in their minds, that when the attorney for the person about to be indicted appears before the Grand Jury and questions them concerning their opinions of the man about to be indicted, they say the^ have formed opinions. In that ■way in San Frajiciaco, numberless indictments that should have been, 40 have not been found. Yea, the men against whom they should have been found, who should have been pounding stones at San Quentin for years and vears, are to-day free in the streets of San Francisco. I deny the fact that the Grand Jury is a protection to the poor man, to the laboring man. The Grand Jury to-day is useless, oaonly acts as a shield to the rich rascal. The gentleman from Santa Clara, Mr. Her- rington, has advanced an argument — citing cases from the time of Henry IV of England, showing how Grand Jurors were brought before the Chancellor of England and fined because they had neglected their duty — failing to indict. Is not this an argument against Grand Juries — a con- clusive argument? As far back as the time of Henry IV of England, Grand Juries have been subject to bribery and outward influence. This does not show to me that they are the grand bulwarks of liberty. One objection, above all others, that I have to the Grand Jury system is this: the system removes individual responsibility — divides the respon- sibility among many. If the magistrate before whom a complaint is made is individually responsible to the public; if the Prosecuting Attor- ney, whose duty it is to prosecute, is individually responsible to the Sublic, they will be more vigilant, more careful in the discharge of their uties, than when the responsibility is spread among so large a number as a Grand Jury. The trouble with this government to-day is the shifting of individual responsibility from men who, occupying official stations, ought to be directly responsible to the people. What we must do to cleanse and purify the public service is to render every man individually responsible. The more individual responsibility the more security of life, liberty, and the rights of property. I revere the ancient, I believe in the antique, but in order to retain the ancient among the institutions of tbe living present, more should be urged in its behalf than age. Age is no argu- ment. They must show that it is of practical living utility to-day. If age were an argument we might go back to the right of trial by battle, by ordeals. I have no douljt that the people once oelieved the right of trial by battle or ordeal as essential and ne^hsar}' a guarantee of the liberties of old England as the gentleman from San Bernardino believes the Grand Jury system to be necessary to guarantee the liberties of the citizen of California to-day, but the peo|>le have discarded those anti- ?uatcd beliefs, because having no other recommendation than age. nstitutions with no other recommendation than age had better fall and be buried in tbe closets of the past. We can look upon them with rev- erence, looking down the vista of years, but they must not stand as a stumbling block in the pathway of the living present. It has been urged that if the Grand Jury system be abolished it will inaugurate a one-man power. I deny the assertion, as was aptly said by my colleague from San Francisco, Mr. Barbour. His statement shows but one case, but, were it necessary, citations might be multiplied until thousands of cases might be shown. I am willing to let it stand upon the one case. Certain gentlemen in San Francisco were arrested for inciting riot, and brought before Judge Ferral for examination, who, after hearing the evidence, discharged them. Mr. Murphy, the prose- cuting attorney, actuated by personal motives, brought the matter before the Grand Jury, and, by exercise of "one-man power," procured an indictment. He brought these gentlemen to trial before Judge Ferral's Court, where a petit jury acquitted them. The Grand Jury, in every case of doubt, rely wholly upon what the prosecuting attorney telM them as to finding or ignoring bills. But gentlemen have said, this may all be so, but there yet remains a something, that if you wipe out the system there will be nothing to supply, and that is tbe power of visitation ami examination into public departments. These visitations remind me of my schoolboy days. The Directors came visiting once in three months; the scholars all upon good behavior, drawn up in dress parade, for a week before drilled upon certain questions and tneir answers. Tbe gentlemen cnine into tbe school room, the teacher banded them a printed document upon which were tbe questions which we were drilled to answer. Of course no honor- able gentleman would go outside tbe printed questions. Everything went ofl" smoothly, we were the best and wisest scholars in the bleesea land of Pennsylvania. That is just the way with the Grand Jury visi- tations. All preparations are made to receive then\. Everything is put upon a dress parade footing. It is just no visitation at all. But there are other methods of getting at this matter. There is no reason why the Beard of Supervisors of every county should not resolve themselves into a ^ard of Visitations. That is the method in the Stale of Michigan. The Grand Jury system has never in ray opinion been the bulwark of liberty. The petit jury bas always stood between the encroachments of capital, the encroachment of the Crown, and the rights of the people. I challenge tho gentleman who spoke so favorably for the retention of the Grand Jury system, to tell me why, if the Grand Jury has been such a bulwark of liberty, tbe petit jury was called into life. The Grand Juries were always willing to find indictments for the corrupt monarchs of England, but it was the petit jury that stood between the Crown and the people. In this State, having counties as laree as many Eastern States, if a man enters a corral and steals a horse, being seen by a dozen men in the act, if caught the Sheriff must scour the country for hundreds of miles to secure a sufiicient number of qualified persons to act upon a Grand Jury, to find an indictment allowing the law to pro- ceed against the scoundrel. This does not seem to me justice or economy. Tho State should be allowed to try — to punish malefactors without the intervention of a Grand Jury. The people are Irtidly call- ing for redress. Mr. President, I do not care for buncombe speeches about liberty, and how the people are going to rise up in anguish and denounce men who are trying to wiiie out this vestige of antiquity. I do not believe it The people of Caiifornia are a people of progress, and demand that tbe Grand Jury system be wiped out. Taking into consideration the fact that an examination results in incarceration until themeeting of i Digitized II themeetmg of a by Google 314 DEBATES AND PROCEEDINGS Wednesdat, Grand Jury. Then, after finding of a bill, there is a further incarcera- tion until the meeting of a petit jury, the expense of the unnecessary keep- ing of prisoners, and of the Grrand Jury — it costs the State of California hundreds of thousands of dollars yearly — ^uselessly thrown away on a system that has lost its usefulness. The system as practiced in the State of Michigan'ls simply this: If a party knows that a crime has been committed he proceeds to an examining magistrate. He states his case. If the magistrate belieyea a sufficient case exists, he reduces that statement to writing, and has the person making the statement subscribe it and swear to it, and upon that statement he predicates an order for arrest. The person believed to have committed the offense is sent for. The •xamming magistrate, with the aid and assistance of the Prosecuting Attorney, inquires into, firet — whether an offense has been committed ; second — whether there is reasonable cause to believe that the party under arrest has committed the offense. If he finds both of these things, in his opinion, he orders the person to be sent to jail or admitted to bail. Then, on the first day of the succeeding term of the Court, the prosecuting attorney files an information against the prisoner, to which information the prisoner pleads. If, however, the prosecuting attorney, opon reading over the evidence, should determine that there was not sufficient evidence to warrant the detention, he states to the Judge that, in his opinion, he does not believe the prisoner can be convicted upon the evidence. The Judge then makes an examination of the evidence — but be does not examine the evidence unless the prosecuting attorney makes the statement that he believes the testimony to be insufficient. The Judge examines the evidence, and if he holds with the prosecuting attorney the prisoner is discharged. If, on the other hand, the Judge believes there is sufficient evidence to warrant the detention of the prisoner, then the prisoner is detained and is tried. If a person is arrested and the examining magistrate discharges him, he is subject to rearrest. A discharge is no bar to a rearrest. This system has been in vogue in the State of Michigan for almost thirty yean, as was stated l>y the gentleman from Alaffi«ia, Mr. Campbell, and as I have observed personally for nine yeai^* The system has worked jvell; it has worked exceedingly well; it has saved millions of dollars to the State of Michi- gan, and they do not desire to return to the Grand Jury system. They are very well satisfied. They can punish their criminals without aid or assistance from this cumbersome, useless machine. I am in favor of the resolution as presented by the Judiciary Com- mittee— it allows a restoration of the system if found necessary by the Legislature. Seven States have virtually abolished the system and others are following in the wake and sweeping away the old cobwebs, allowing direct proceedings against criminals, making the prosecuting officers in each judicial district individually and directly responsible for the misuse or abuse of power, allowing no Grand Juries to intervene as a screen for the prosecuting attorney to creep behind and say, " It was not my fault — it was the lault of the Grand Jury." The voice of the people rings in my ears, calling upon us to modify or wipe out this useless system. SPEBCB OF m. HUISTIS. Mb. HTTESTIS. Mr. Chairman : After all that has been said upon the question now before the committee, I would be perfectly willing to let the matter come to a vote at once, were it not for the fact that I feel impelled from a sense of duty not to let the opportunity ^o by, now offered, to reflect public sentiment so far as I am able to judge, upon the question under consideration, and to raise my voice in favor of economy and reform in the administration of government If I could have supported the report of the honorable Judiciary Committee before, I certainly cannot now, after hearing the able argument of the gentle- man from Alameda, Judge CamplwII ; for to my mind, he has in a masterly manner refuted and demolished the recommendations of that report. The Judiciary Committee have reported in section eight, a provision that offenses shall be prosecuted by indictment or informa- tion, and each county shall have a Grand Jury at least once a year. But the argument of the gentleman demonstrates that the Grand Jury system is the most useless, expensive, absurd, dangerous and pestilent institution in our whole system of government. I agree with the gentleman to a great extent, and therefore I am in favor of the aboli- tion of the system — at least, to the extent of placing the matter, where I think it properly belongs, under legislative control. And, sir, incident- ally, I would just here give it as my opinion that when gentlemea on this floor assume that this proposed change is not in acoora with public sentiment, and that the great expense of the present system should cut no figvu'e in the ooniideretion of the question, they are simply wrong in their premises. Mr. Chairman, I resp«ctfully submit that this is simply a question of public policy, or expediency, and as such, it is eminently proper that it should only be considered from a moral and practical standpoint. And, sir, I am in favor of the abolishment of the Grand Jury system, at least to the extent of placing the matter under legislative control, because it is a source of enormous expense to the people of this State, without corresponding benefit. And while I shall not detain the committee with a detailed statement of the expense of this system, I feel authorized in saying that it annually costs the people of California considerably over one hundred thousand dollars. And, sir, in response to the question which next presents itself to my mind, to wit, "What benefits, if any, accompany this enormous outlay T " I do not hesitate to answer, none, absolutely .none, which cannot otherwise be fully attained, and at an expense of not more than one fourth of that which the present system entails. Under the present system, in cases of the commission of crime, those of the people who are known to be cognizant of it are firet compelled to appear before the committing magistrate as witnesses. They are again compelled to appear before tue Grand Jury and in many cases having to travel a long distance to the county seat, where they will have to stay for several days, all at their own expense, and finally, when the case comes up for trial, they are again subjected to the same hardship. In other words, Mr. Chairman, large numbers of the people are com- pelled, at lea^ four times a year, in the different counties of this State, to enter an appearance at the county seat, without subserving any useful purpose which could not be accomplished under any other system which did not impose this onerous and unnecessary burden. And, sir, I sub- mit that to maintain that all this trouble and expense and loss of time are necessary in order to subserve the ends of justice, is simply tanta- mount to saying that the American people have lost all their inventive fenius and power. To so maintain is to stultify ourselves, and, for one, repudiate the idea as utterly unworthy of the serious consideration of this honorable body. But, Mr, Chairman, in order to get a more distinct idea of this matter, let us for a moment briefly consider the functions and duties of Grand Juries; and, as I understand it, their main duty is to examine the reconl or witnesses, or both, and come to a conclusion as to whether petsoii accused of crime ought to be tried or not. This they do under the advice of the District Attorney. In many cases they are, in whole or in part, composed of persons ignorant of the law ; and in a majority of cases, if the District Attorney tells them that the evidence is sufficient to oonviet they indict, and, on the contrary, if he tells them tde evidence is not sufficient, they do not indtet. They are, in the very nature of things, almost entirely under the control of the District Attorney, in all matten coming up in the Grand Jury room, and merely echo bis opinions. The whole thing, then, practically viewed, merely amounts to a roundabout and very expensive method of getting the opinion of the District At- torney. And I submit that if tnis be necessiry in order to insure the ends of justice, then, in the namO' of common sense, why not get the opinion of the District Attorney directly, and thus curtail the enormous expense attending the present system. This morning's Record-Union, in an editorial opposed to abolishing the Grand Jury qrstem, after admitting that there is a strong current of opinion in favor of'^the abolish- ment, says: " But the first inquiry to be made, when it is propoeed to abolish an institution, refers to the contemplated substitute." Well, Mr. Chairman, in reply to this I have simply to say, that if it can be a question, whether any plan can be devised in lieu of the pns- ent system, which will not come in conflict with true governmental science, so far as the same is applicable to the subject under considera- tion? I hold that we can, with the utmost propriety and degree of safety, trust its solution to the legislative branch ot the Government. I have no feare, sir, that the Legislature would sanction any system which would in the least disturb the rights or the liberties of the people. Nor can I for a moment doubt that the Legislature would, if intrusted with the power, call into existence in lieu of the present antiquated, burden- some, and expensive Grand Jury system, some less expensive system which would De more acceptable to the people, more conducive to the ends of justice and the peace and dignity of society, and more inaceoid with the spirit of the age. Mr. Chairman, the question under consideration is one in which the people feel a great interest, and, as far as an expression of their views and wishes have come to the surface, it is evident enough that a very largo majority of the taxpayera of California are of the opinion that the Grand Jury system has outlived its usefulness, and that it should no longer constitute a feature of the organic law of this State. A revisioo of tne organicJaw, with the view of rendering the judiciary system less cumbersome, more expeditious in administering justice, and at a far less cost than under the present system, is a reasonable demand of the peo- ple which we, as their representatives, cannot in justice to them or to ourselves ignore. One of the principal obstructions in the way of these desirable ends is the Grand Jury system. Then, sir, why not place our- selves upon this question in full accord with public sentiment — at least to the extent of placing the matter under legislative control? In other States where the change has been made the results haw been highly satisfactory. I grant that its origin can be traced far baca into the dark ages of historjr, and that it was supposed to be, and possibly may have been at that time, and for centuries afterward, a protection of the people against kingly prerogative and power; and I also grant that its Star Cnamber proceedings were supposed to be hidden even from the pene- trating knowledge and power of royalty. But, Mr. Chairman, suppose they were, bow ought that affect us in this, the nineteenth century, with no worse despot to fear than our^ selves? But, Mr. Chairman, almost every agency made use of by our forefathere has either been superseded b^ something better or wonder- fully improved upon, but this one. That it is the antiquated, ponderous, and lumbering machinery of our ancestora I concede, but I also claim that to provide for its further continuance would be as unreasonable ss it would be to provide for the resurrection and continuance of the whip- saw, the wooden plow, the sickle, or the hand printing press. That it is a greater power for evil than for good, I firmly believe. We all know theiacilities it affords to a man's enemies to stab him in the dark, and the protection that it gives to the assassins of character. And, therefore, without further detaining the committee, I am prepared to vote for the abolishment of the Grand Jury system, or for any measure looking to that end. KEMABXa OP MB. BBOWH. Mb. BROWN. Mr. Chairman : I never have, at any time, I believe, taken up the time of this Convention for an hour or so, and I will only occupy your attention now for a few moments. -I have been careful in that respect, for I know that time is precious. I am free to confe« that this matter of Grand Juries has been before the people of this State for a long time. It has been before this Convention, and now it appears that we are in doubt about whether to retain the old system or to adopt a new one. I am under the impression that we have reason to doubt whether the Grand Jury system has served the grand purpose for which it was Digitized by Google Nov. 6, 1878. OF THE CONSTITUTIONAL CONVENTION. 315 intended. The principles of jugtic« have not been reached. Indict- ments have been foond, expenses incurred, and yet the cases amount to nothing oftentimes when they come to be tried before the Court ailer- ward. Now 1 would say with regard to my portion of the State, which I more especially represent, the subject has been before them, and they have had a chance to investigate it ; they have had experience in the matter, and that experience has brought them to give it moj^e than passing consideration ; and they are in favor of quite a radical change In the Grand Jury ^liem. Now, as a matter of course, it should always be considered whether a thing is legal or not; and the next thing is, does the sentiment of the people back the proposition — is it sustained by the peopleT And if it is, I hold that it is our duty to try and answer their demands, tmd to suit them with such laws as they require. Ve hear a great deal on this floor about ^^rtain principles of the Con- stitution being sacred, and that they must not be trampled upon ; that iscrilegioiis hands should not reach forth to touch certain great principles ; and the Grand Jury system is held out to be one of that kind. Kow, Mr. Chairman, we understand that the gnai principles of carrying out the wishes of the people lie back of all this, and is the foundation of all this; and if we find it to be the sentiment of the people to change this portion of our Constitution, I hold that it is our duty to do so. I am, therefore, in favor of the report of the Judiciary Committee. I think it will about answer the purpose of the people I represent more immedi- ately, and I think will be indorsed by the people of the State. SPUCB or HB. BABET. Mb. BABRT. Mr. Chairman : So much has been said on this impor- tant question, and there are so many other important cjuestions to come before this body, that time is precious. But this is as important a ques- tion as any that we will be called upon to consider, and it is right and proper that gentlemen should give the reasons for the faith which is in them. And, sir, while a great deal has been said on both sides of this matter; while a great deal has been said in support of the report of the Committee on Bill of Rights; while a great deal has been said in advo- cacy of it by eminent gentlemen who are able to give their reasons for the faith that is in them ; while I agree with Mr. Campbell — as they are views I have entertained for years — believing that this jury svstem should be changed, not simply the trial jurjr system, but the 6rand Jory system — I think this is one of the necessities of the times; one of the things that requires to be changed — it is for that reason I now ask to be heard for a few moments; and I trust this matter will not consume as much time as the others have. I will say that personal experience has convinced me that some change is necessary in the system. Having filled the office of District Attorney for a considerable time, I am aware of the evils that exist in the Grand Jury system. I am aware that a man may, through spite, or personal feelings, work an injury on his fellows without any good cause, without legal reasons attempt to bring a matter before the Grand Jury which never should have been 'brought before it, and the case presented for trial, when, in fact, investigation shows that the charge was wholly osfonnded. This is not an exceptional case, and I believe them is no gentleman who has had any experience as a prosecuting officer but knows that the Grand Jury system is greatly abused like Uie trial jurv system, and always will be. I claim that it is public opinion which ssks for this change, as much so as it does for a change in the trial jury system. Gentlemen may speak of the ancient and time-honored insti- tutions of our fathers, whicn have been so long before the people, and been honored so much. I will say to them, as before intimated, that while I have all respect for the views and opinions that were worthy to be respected, this is an age of progress. We are moving forward to a higher sphere, learning more and more by experience, and that we should net be governed by the opinions and laws of our fathers when it is proven by experience that they were wrong. Times have changed. There was once such an institution in this country as slavery, and there were those who defended it upon the same ground that it was one of the institutions of our fathers, handed down to us ; that it had been in existence so long it ought not to be touched. So with this, you must not la^ violent hands upon it because it has been iu existence so long. Bat, sir, unanswerable logic has determined that slavery was wrong. The people rose in their humanity and wiped that stain from the Con- stitution. It had existed long enough, and a freedom-loving people, those who believed in the Declaration of Independence, arose and said that it should exist no longer. Such a stain had existed long enough ; and in the same manner they declare now that this Grand Jury system, this grand old humbug, shall be no longer tolerated. This may strike the gentleman from San Bernardino as being very irreverent, as being very strong language, but, sir, I believe that three fourths of the people of this State will say I am right when I make that remark. I believe they demand this change. I believe they are unwil- ling to reverence oor fathers to the extent of maintaining this system any longer. Now, sir, I believe that the deliberate judgment of this body, in its assembled wisdom, believing that they were sent here to express the will of the people on this and other questions of great importance, whether ««n issues of the campaign or not, matters not. It is true that there are other important issues before the people — taxation and restricting our corporations, making taxation more equal and uniform, which is one of the great question; we will be called upon to consider. As the gentle- man from Stm Francisco, Col. Bamee, said a few days ago, all other questions sink into insignificance beside it. This is a great question which the people demand shall be fully considered, and when ne said he was with us on that question, I know that when he gave us that assurance he meant every word he said, for he is not a man to ^ back on what be aa^s. I know that he knows that the p^ple of this State desire these things to be done, and I believe I understand the people as well as he does, and that they also desire this Grand Jury system to be modified to the extent, at least, that the Committee on Bill of Rights have recommended. Now, sir, the question before this body is this: would it be a wise departure, would it be beneficial to the people of this State, to remodel the Grand Jury system, as provided in this Bill of Rights, so that the complaints which are now made may be done away wiui, so that now a complaint may be made as now made, before a Justice of the Peace, as was suggested by other gentlemen, giving a mode of procedure for the examination of criminals. With this new system of bringing criminals to trial, there will be a prompt administration of justice; the guilty will be punished, as they now are, and a vast saving will be made to the State. When gentlemen speak of economy, I say this is a move in the right direction. I say that a vast expenditure made in the other case all over the Slate, will be saved, and furthermore, that the power that one or two men have now, and often used corruptly, will be abolished. The gentleman from San Bernardino, Mr. Waters, has stated that it would be placing a dangerous power in the hands of one man ; that he might allow his spite and spleen to find vent upon the defendant. Well, I say if there is any case where spite and spleen on the defendant can and has been used, it is under the present jury system, the star cham- ber proceedings, as it has very properly been termed, where a man is brought before them and charged with a certain offense, at least without the privilege of being heard, though the law says he may introduce wit- nesses before the Grand Jury if he so desires. But how seldom do they ever do that, and when they do there is no chance for any defense. He may be allowed to be heard, but how seldom do they allow even the defendant himself in the star chamber which serves to smirch and blacken the character of an individual. It is corrupt in its very nature, and to that extent is the product of ancient barbarism. I say, sir, there is every reason why the Grand Jury system should be modified as recommended in the report of Hie committee. That it is necessary; that the public interests will be better subserved by it; that if a man is guilty I believe he would be punished under this system, and if he was innocent he would not be held by the District Attorney and Justice of the Peace, provided you elect men who are governed by a sense of duty, and it is presumed that in all cases the people will elect men who are capable and honest. True, there have been exceptions, and they are likel^r to arise again, but this very matter incorporated into the Constitution will cause the people to be more watchful, and men are f resumed to be honest and conscientious in the discharge of their duties, t may be the case — it may possibly be in some instances — that the District Attorney will have used the power placed in his hands improperly. There may be exceptional eases, but I hold that where the abuse may arise in case this becomes a law, and this is inserted in the Constitution, that it will not be as great as it now is, and will continue to exist BO long as the present Constitution of the State stands. I believe, sir, that, as was suggested, when the responsibility is left with one or two individuals, in the case of the Justice of the Peace, or District Attorney, or the Judges of the Superior Courts, which we will probably have, as recommended by the Judiciary Committee — that when this is done, that each one will recognize the power with which he is vested, and that each will strive to do his duty nouestly and fearlessly. As to any abuse of power, I do not think it will be as likely to arise as under the present system. And believing that this is a necessity; that this change is needed ; that it would promote the public interest; that crimi- nals would be more likely to be convicted than now ; that the ends of justice would be better subserved, I therefore give it my support, and I trust that in the spirit that the trial jury system was acted upon yester- day— that the same spirit will govern this body in incorporating this matter into the Constitution. This will not be a work of barbarism, it will be in accordance with the spirit of the age, this progressive age. It is what the people demand at this time, ana there is no dan^r, as the gentleman from San Bernardino, Mr. Waters, seemed to intimate, that the Constitution would be swamped, or that it would be placed in jeop- ardy. I can safely say, that if these two provisions are incorporated into the Constitution, the people will |ladly indorse them. I believe, sir, that the sense of this Convention is that this provision shall be incor- porated into the Constitution. And I believe that this will be better for the interests of the people; the ends of justice will be better subserved if we adopt this proposed svstem. Thb CHAIRMAN. The question is on the amendment proposed by the gentleman from San Bernardino, Mr. Waters. SFKECB or MB. LAINE. Mb. LAINE. Mr. Chairman : There has been a great deal of discus- sion upon this question, but it is a question of no ordinary importance. The question before this Convention is this: Shall we steind by the strongest and oldest institutions of our country? It involves, so to speak, a change of the government, and before we act upon a proposi- tion of this sort, we should be very sure that we are right. We should be governed by sober judgment and by solid reason. I know that men are often carried away by things of this sort. Now, I have not been able to agree with the Judiciary Committee, or with a majority of them, because this discussion must have developed the fact to this body that the Judiciary Committee were divided on the proposition. Of course, a majority of the committee were in favor of the proposition as reported back to the Convention. There were gentlemen on that committee, however, who did not agree in that report. It was not thought necessary to submit to the Convention a minority report, because, upon a question of this magnitude, of this importance, we all very well knew there would be discussion, and in that discussion the views of the various members of the committee would be brought out and the matter fully considered bv the Convention. Now, sir, i do not agree with any of the propositions now pending before this body. I am in favor of retaining the Grand Jun in^lLJt 316 DEBATES AND PROCEEDINGS Wednesday, stren^h and power. I am not in favor of impairing it in anpr way, or entermg upon any experiments of this sort. I am desirous of standing by the letter and spirit of the old Constitution. Now, Mr. Chairman, we should proceed with great circumspection and caution before we undertake to pull down the institutions of our ancestors. I shall attempt no eulogium upon the Grand Jury system; it needs none at my hand!s. Its great antiquity alone is a sufficient eulo- gium in its favor. We can trace it bacli, Mr. President, into the very remotest recesses of civilized government. It goes way beck to the Anglo-Saxon period. It was instituted among a people that loved free- dom then, and hare loved freedom ever since. It is more than a thou- sand years old. It has been approved by the wise and liberty-loving people of antiquity. It has been approved b^ the wise and liberty- lovmgof our own time; and it remains for this Convention, its mem- bers, or some of them, to speak of it as a humbug, as something that ought to be swept away in a moment without a particle of consideration. Now, I feel tolerably safe to rest upon experience, even in periods of revolution. I feel very well satisfied to rest upon the experience of men of more modem times, and there must be some argument addressed to my reason that will convince my understanding that this is a bad insti- tution before I propose to part company with it. Now, this institution has survived conquests, survived revolutions, and commotions. It has survived the crumbling of thrones and the overthrow of empires, and has stood as a time-honored institution, respected by the liberty-loving of our own time and of tiroes past; and it has been the shield of the weak as against the strong; the nistory of the world is full of it. Why, one of ray young friends upon the floor of this Convention would make you believe that this ha3 been the sub- ssrvient tool of power and authority — of crowns, and monarchies, and realms. Wh^, you find standing out in bold relief all along the line of history, that it has stood against power. Why 7 Because it is the power of human yeomanry, not alone of individuals, but the yeomanry of the land — not political cliaues, or political conventions, but it has been the power of tne people, tne protection of the people. And I am sorry to see upon the door of this Convention those who claim to be non-parti- san— elected here upon that theory — ^attacking and attempting to pull down the only non-partisan institution in all this broad land. Your Courts, your Judges, your officers, your District Attorneys, are brought into being and kept in power by party politics; and it is the nature of men in office to keep in power the party that placed them there. But the Grand Jury comes from the great bod^r of yeomen of the land, and has no connection with any political faction or clique. It has been argued that under the present system the District Attorney has too much power, and may often prostitute his office for the purpose of smirching the characters of men. Why, sirs, if a District Attorney, held in check by twelve good, honest citizens, could override your rights, what may he not do when he has the same power, unhampered by a Grand Jury. I have in my mind now an instance of a very dis- tinguished citizen of our county, who was District Attorney, indicted by the Grand Jury. Now, are the yeomanry of America as strong a^inst oppression as the yeomanry of England, when they rose in opposition to the Crown. I believe the American people will stand up as the English yeomanry stood. We are made of the same solid oak timber, and we have had the same experiences in the conflict for liberty. Hence, I say, that these slanders on the system are wrong and improper. We should weigh well these matters before we attempt to overthrow the system — a system which has been tried in all civilized countries. Now, it is urzed that Grand Jurors come short in their duty. Pray tell me what numan institution does notT Why, you can load your Judges with reproaches. You have loaded your Ijegislatures with reproaches often and often upon this floor, since the convening of this Convention. You can bring to bear upon every human institution reproaches. These institutions are all the creatures of fallible minds — they are all human. But we must look at the principles and the pur- poses and operations of it. The Grand Jurv is of the people; it is a part of the people; it spring direct and fresh from the people. When you tell me that Grand Juries are corrupt, unworthy, and subserve the demands of power, then you tell me that we have lost our liberties ; then you tell me that monarehiea are stronger than a republican form of government. Then it is said that their inquiries are secret — that it is a secret tri- bunal. True, but you must remember that it is a tribunal for the purpose of inquiry — it is not a tribunal of punishment. Why have we so long stood to the secret ballot? Because it prevents oppression. It is the defense of the weak against the strong. The humblest citizen may exercise his will, without let or hindrance on the part of any human being. I tell you I would not like to be District Attorney in a criminal community where the one man has to stand up alone against crime and wickedness, though he might be clad in an armor of iron, still they would reach him and put him out of the way. They say here is the man who stands in our way, let us remove him from office. They would join in defeating him, either in one way or the other. Nomina- tions would be male so that no honest man would receive the nom- ination. But when this Grand Jury — when you call to-morrow twelve honest men from the community, and twelve other men next week, the criminals cannot make any combination against him, because it is the will of the people expressed through their Grand Jury, and the District Attorney cannot back down. The analogy is this : suppose the District Attorney to be a man of the other stripelnow can you ever bring crim- inals to punishment? Only by riot, only by clamor and public indig- nation. That is the only way you can reach it to correct it. It is said that fraud and corruption may creep up the back stairs into the Grand Jury room. If it can creep in among twelve honest citizens, selected from the community, how much mora easily can it get into the office of one man when all that power is placed in his hands. The Grand Jury stands on a plane above political combination. It is culled from the Iwst of all creeds, without regard to party. Right here let m« call your attention to this fact: take any county in this State and you will find one or the other of the political parties in power. Then yon will ask the physician to heal himself. The same one that holds the office will be the one to make complaint against brothers and political friends. Will they do it? No. But you call a Grand Jury from the body of the citizens for this especial purpose, without regard to political creeds, and who doubts but that they will perform the duty fearleaalj and without favor. It is the only body which comes direct and freah from the people. Again, it regulates public affairs, and makes examinations, they say. It may be true tliat sometimes the affairs of public officers are investi- gated and inquired into, but they are not apt to do it unless there it good reason for it. It is true that a skillful officer may make i good showing, and so impose up9n them, and they may flatter and praise him, but they will never flatter when they find anytbingwron^, became they have no reason to do so; they are not dependent upon him or hit party for the office and high trust which they hold. Another thing; it is a grand institution for the education of the people. Some of my young friends who have just been admitted to the bar, talk to these old gray-headed farmers about challenges. Why, tin, most of them have served on the Grand Jury, and by that means have become familar with the administration of criminal justice. They have become familar with the institutions of their country by serving on the Grand Jury, and it is a grand school for the education of the men of thii oommonwealth. Twelve men serving to-day come in and examine the criminal statutes, and having tho District Attorney explaining and turning them to the places, and you will find the twelve old fannen reading it and studying it ; and the next time twelve other men are chosen, and thus the body of the people are made practically aoquainted with the administration of the laws. Again, it is said here that Grand Juries are costly things; that they cost the people a large sum of money. Talk to me not of the cost of liberty, sir.- It is valuable above pearls, and all the diamonds of Goloonda would not buy it of the people. They know its value. There is nothing worth having that does not cost money. It must cost money in the very nature of things. One of my opponents drew a fearful picture of a man stealing a horse, and forty men standing and looking at him, powerless to prevent him. Why, it occurred to me they might have shot the fellow. That is one way. Judge Lynch is a cheap dis- penser of justice ; take the man and execute him without calling on tb« Sheriff to arrest him or the Court to try him. That argument falli with its own weight. Of course it costs something for every institution we have. This is a body which moves in no set groove. You take any other office, and it moves on from year to year in the same groove; bat the Grand Jury comes fresh from the people, and moves in no get grooves. It changes in accordance with the feelings and sentiments of the people. Their independence is a great feature in their behalf. They are independent of parties, independent of creeds, independent of tU those influences which surround public station ; it comes from the gnat body of the people, and they don't move in any fixed groove. I love the institution that comes to one recommended by the experi- ence of the world, of the civilized world ; and I am in no hurry to part with an institution that has been the safeguard of freemen. But wean told that in Michigan and some other State they have done without it for twenty years. Op the other hand, we have seen it in existence for a thousand years, for one thousand five hundred years; and the great State of Michigan has moved along smoothly and nicely without the Grand Jury, and the people are satisfied. This seems to me a veiy Strang argument, that the twenty years' experience of the State p_f Michigan is to be set up against the for a thousand years and more. be experience of the civilized world Ma. BEKRSf ECHER. And Wisconsin, Illinois, and Indiana. Ma. LAINE. You are mistaken, sir; you are going ofi' half cocked. Ohio has attempted to do it. I don't know about Wisconsin. But if it is such a grand institution, it should have spread all over the United States by this time. They say here that a man is brought before a committing magistrate and examined. Then what? Send him to the District Attorney, an he examines him; and he says in bis wisdom, this man should not t« prosecuted, therefore I shall not do it. If he makes that ruling, go to the Judge, to the fountain of justice. He reads the document, tnd whatever may be his decision, he stands there a prejudiced Judge. Suppose he says this man should not be tried, but the community demands that he should be. Or, suppose he has taken the other view, that the man should be prosecuted ) he will not come to that conclusion without having some emotion of his own, because men are not made of steel. He will, then, sit upon the bench, having prejudged the nun'i guilt. I say such a system i» wholly unworthy of a civilized people; wholly unworthy. Again, our fathers brought this institution across the Atlantie mon than two hundred years ago. They established it along the eastern tea- board; they carried it with them into the wilderness, into the patblets forests, and across the plains and deserts until it reached the Pacific, until it reached the western sea-board, and here none of our ftthen ever complained of it because it cost money. Everything costs money, every department of our government costs money. The people to-dif are not complaining because the Grand Jury system costs money. » puts me in mind of a hymn that religious people sing : "Bhnll ve be carried tu the skies On flowery bed* of ease?" So I say to this degenerate race, do they expect to live in peace, and happi ness, and security without coat. Our ancestors have waded through seas of blood to maintain these institutions, and I am not in &Tor of marring or destroying any of these grand ol L 818 DEBATES AND PROCEEDINGS Thuksday, qrstem. By the Constitution of Qcorgia, of eighteen hundred and ■eventy-seven, the whole matter wag left where it projwrly belongs — to the diacretion of the Legislature. We can safely plaoe this matter there. That it would curtail expenses, there can be no doubt. In the first place, there is the expense of the Qrand Jury itself; in the next place, there is the expense of a large number of witnesses, who must be called from different parts of the country ; in the next plaoe, retaining thousands of persons in the jails of the State, awaiting the convening of the Grand Jury to act upon their cases. sp»OH or MB. BBArm. Ms. 8HAFTER. Mr. Chairman : I am perfectly well aware that the Convention is weary of this discussion, which has been somewhat pro- tracted; and I am aware also that I could not say anything that will instruct the Convention in regard to this question if I should tallc an hour. It is the proposition of the Judiciary Committee that this whole matter be delegated to the Legislature, after providing that at least one Grand Jury shall be drawn per annum. It leaves the power of prose- cution by mdictment or presentment — information it is called here — to the discretion of the Legislature. They can restore it as a whole and leave out Uie word "information," or they can follow out the plan indi- cated here, and prosecute by both indictment and information. They can direct the calling of as many Grand Juries as they see proper. The only limitation on the action of the Legislature is that at least one Grand Jury must be drawn once in each year, and the rest is all left to the legislature. The gentleman from Santa Clara refers to the anti- quity of the Grand Jury system. I acknowledge its antiquity, but I would remind the gentleman that this is a world of progress, and if its antiquity is its only merit it had better give way for something to cor- respond with the changed condition of society. It is said again that the Grand Jury is drawn from the people, from the yeomen of the land, and represents the intelligence and honesty of the community. They are drawn by lot out of a box. Sometimes a good man isdrawn,and some- times a bad man. That is the wav Grand Juries are selected, and there is no such thing as appealing to tne common sense of the community. They are selected by mere chance. If the people themselves could go to work and select a Grand Jury there might be some sense in saying that Ihey came from the people. But they come by chance out of the body of men who pay taxes. So there is no such thing as appealing to the common sense of the people of the State. I have a cousin in Michigan, who has lived there for thirty years. He is a Judge there, and I know from him that this new system works well there. He approves of it in the highest degree. Now, I have the greatest respect for the Mayflower men — I didn't come over with them myself— but still I hare an admiration for their enterprise, but I do not necessarily indorse all the laws they brought with them ; at least, I am not ready to admit that they are ^;ood laws for this age of progreas. I remember the first thing they did was to enact the laws of God, and nowhere in those laws have I seen anything about Grand Juries. I say that the Grand Jury system has been weighed and found wanting, ft no longer subserves the purposes of modern administration of justice. It is a secret tribunal, and almost an^ atrocity can be perpetrated in the Grand Jury. I would rather see the investigations of crime made openly and aboveboard. There is no more reason for secrecy in the primary investigations of crime Uian thera is on the first trial in the Courts. Let the accused be brought before a magistrate ; let him produce his witnesses there and then in his defense, and if he is not guilty of the offense charged, let him go free at once. Then there can be no possibility of fraud. If he is guilty, let him be held for trial. I trust this Conven- tion will leave this matter where it belongs, where the people them- selves, through their legislators, may have control of it. Mx. HUESTIS. Mr. Chairman: I offer an amendment. Thx SECRETARY read : " Offenses heretofore requiring to be prosecuted on indictment, shall be prosecuted on information or complaint, in such manner as shall be prescribed by law." Lost. Mb. BARTOy. Mr. Chairman : I offer the following amendment to section eight, in the nature of a substitute. Thi SECRETARY read: " In all eases where offenses have been committed against the peace and dignity of this State, the party or parties so accused may be exam- ined by a committing magistrate, and if the evidence adduced at such examination is, in his opinion, sufficient to warrant a conviction, he shall bind the party or parties over to be tried at the next term of the District Court. And a Grand Jury shall be called once a year, in each county of this State, whose duty it shall be to examine into all offenses which may have been committed, and for which the parties accused have not been placed on trial ; and it shall also be the duty of the Grand Jury to inquire into the manner in which the various county officers have discharged the duties of their respective offices, and, when found derelict, to so report the same, when such officers shall be placed on trial in such District Court, and, if found guilty as charged, shall be Sunished under and by the provisions of law; and in no case shall the eliberations or sessions of the Grand Jury be secret." Tbb CHAIRMAN. The question is on the amendment. Lost. Mb. STEELE. Mr. Chairman: I offer an amendment to section eight. TBB SECRETARY read : "Add, after the word ' county,' ' Provided, that the Grand Jury system m^ be abolished by a two-tbinls vote of both houses of the Legislature.' " Tbr CHAIRMAN. The question is on the adoption of the section as amended. Adopted. Mb. van dyke. I move that the committee now rise, report prog- ress, and ask leave to sit again. We cannot get through with this to- night any way. Lost Thi CHAIRMAN. The Secretary will read section nine. The SECRETARY road : Sio. 9. Every citizen may freely speak, write, and publish his senti- ments on all subjects, being responsible for the abuse of that right; and no law shall be paned to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions for libels the truth may be given in evidence to the jury, ana if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the faw and the uct. Mb. AYERS. Mr. Chairman : I have an amendment to section nine. The secretary read: "Add to the section the following: 'Trial for libel against publishen of newspapers and periodicals shaU be held in the county where the newspapers and periodicals are published, subject only to change of venue, as in other prosecutions.' " Lost. Mb. MoFARLAND. Mr. Chairman: I offer the following amend- ment. Thb secretary read: • "" Strike out the words, ' and the jury shall have the right to determine the law and the fact.' " The chairman. The question is on that amendment. BBMABKS OP MB. MCFABLAHn. Mb. MoFARLAND. Mr. Chairman : The general law, or role ot American Constitutions, is that in all criminal prosecutions, as well as in civil cases, the Court shall declare the law, and the jurv shall find the facts. Now, upon what grounds do they seek to make this changeT Why should any special privileges or immunities be granted to any one class of crime? If you steal my property, you are tried in the criminal Courts of the land under the law, and the Court instructs the jury as to the law, leaving them to judge of the facts. But if you attack my repu- tation, through which alone I can acquire property, then you are tried without any law. Now, sir, is there any reason in itT Is there any justice in it? Is that standing equally before the law? This amendment, sir, proposes to place every criminal on an equal footing before the law, and to allow no special immunities to any one class of criminals. That clause was inserted in the law at a time when there may have been some necessity for it, or some reason. It was at s time when the freedom of the press was strangled, when the Judges were the creatures of the government, and the Courts prevented even the ordinary just criticisms upon the acts of public officers. But that time has passed. That condition of things does not exist in this country at the present day. There is no reason for it now. Is there any danger to the freedom of the press in this country? Why, sir, the men whoare members of that profession have not only the ordinary freedom which the balance of us nave in the enjoyment of their property and in the pursuit of happiness, but they have freedom to attack the lives and char- actors of others, and they do it every day. They not only, as I under- stand it, have the flwedom ^aranteed by law — ^regulated by law— bnt even are allowed to indulge m licentiousness, and then when they come to trial they do not want to stand upon the common level of other crinu> nals. I know there are many men connected with the press who have * due appreciation of the responsibilities of the position, and of the righli of others. But to talk about there being nay danger to the (yeedom of the press is absurd. Why, sir, it is freedom in a wider, broader sense than ever used before by any people under God's heavens. As a general rule, it has been indulged to the utmost, tmd characters have been boldly attacked, both public and private. It has assaulted men, from the Preo- dent of the United States, and the gentlemen who are selected as candi- dates for that position by the great parties who represent the people, down through every class, every walk in life, public or private, politial or civil, down, sir, to the lone, defenseless, unprotected woman— ot« all, sir, they have thrown broadspread the undigested, sour contents of their own corrupt stomachs, without any compunctions; and yet, when brought to trial, you propose that the Judge shall not declare the law to the jury as it is done with every other class of crime, but you propose to allow tnem to be tried without any law, teking the chances on the iniy, which, even if composed of intelligent men, do not understand to* law — taking the chances, I say, of gettin^j a jury who may be convinced by ingenious arguments that black is white, and what is law is not lav. I am perfectly willing to have the gentlemen who are connected with the press indulge in criticism on the acts of men, public and private. But when they assault the characters of men and women without war- rant, and when they are brought to trial for the offense, I want them to be tried in the ordinary way that other criminals are li-ied. And why not? What reason can be produced for placing them on a difieient plane from other criminals? If you or I commit a crime, we must bs tried in the ordinary way. Why should they not be tried in the ordi- nary way; according to the laws of the country, the laws by which other men are tried — other criminals are tried ? Is it because chaiscto is worthless? If a thief robs you of your property, he has not done you an irreparable injury, for you can acquire more; but when he destroys your character, he destroys that by which you acquire prop- erty. I am not speaking of character in the sentimental sense. If he should assail j^our character, by which you earn your living, then he is in fact destroying your property. In that sense character is the deanst thing we have — the most valuable. Now, sir, the man who steals yoor property must be tried by the ordinary laws of the country, but the man who steals your character must stand above the law, spit in the face of the law, because he has a peculiar profession. Now, is that law? Digitizeo Nov. 7, 1878. OP THE CONSTITUTIONAL CONVENTION. 819 Is that justice? Is it right or iairT I would like to know what reason, St this i&j and generation,tbere is for maintaining such a law, allowing immunities or privileges to any person or any class of persons. Why should they hare them? Nobody objects to fair and just criticism. But, sir, a newspaper writer has no more rights than you or I, and he ahonld be tried before the law exactly as you or I would be tried ; they have no right to stand above the law by reason of belonging to any particular profession. Kow, sir, it seems to me that this should be stricken out of the Consti- tution. And that character of men should stand on the same footing as other men. And if you are going to give the jury the right to determine the law in this case, you should make it apply to all cases. Why not? I ssk any gentleman of the press why he should be allowed any special privileges. There is no reason in it, there is no necessity for it, there is no justice in the demand. There was a time, perhaps, when something of the kind may have been necessary, but certainly there is no necessity ' for it at this day. TBI OOKHimX RISRS. Mb. ATERS. Mr. Chairman: The gentleman has seen fit Ml. VAN DTKE. It occurs to me that we cannot get through with this discussion to-nisht. Mb. AYERS. I shall not speak more than a minute or two. Mb. van dyke. I move that the committee rise, report progress, and ask leave to sit again. Carried. ADJOCBNMBMT. Thi president. Gentlemen : The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Preamble and Bill of Rights, have made progress therein, and ask leave to sit again. Mb. van dyke. I move that the Convention do now adjourn. Carried. And at four o'clock and forty-five minutes p. u. the Convention stood adjoomed. FORTY-FIRST DAY. Sacbambnto, Thursday, November 7th, 1878. The Convention met^in regular session at ton o'clock a. m.. President Hoge in the chair. The roll was called,^and members found in attendance as follows: Andrews, Ayere, Barbour, Barnes, lany. Barton, Beerstecher, Belcher, Bell, Blackmer, Boucher, Brown, Burt, Caplee, Casserly, Chapman, Charles, Condon, Cowden, Cross, Crouch, Davis, Dean, Dowling, Doyle, Dudley, of San Joaquin; Dudley, of Solano, Dunlap, Eagon, Edgerton, Esley, Evey, PsrreU. Fawcett, Filcher, Finney, Freeman, Freud, Gsrvey, Glascock, Gorman, Gisoe, Graves, Gregg, iaf' BaU, Harrison, Harvey, Heiskell, Herold, Herrington, Hilbom, ' Hitehoock, Holmes, Howard, Huestis, Hughey, Hunter, Inman, Johnson, Jones, Joyce, Kelley, Keyes, Kleine, Laine, Lampeon, Larkm, Larue, Lavigne, liowis, Lindow, ,Mansfield, Martin, of Alameda, Martin, of Santa Crux, MeCallum, McComas, McConnell, McCoy, McFarland, McNutt, Miller, Mills, Moffat, Moreland, Morse, Murphy, Nason, Nelson, Neunaber, Noel, O'Donnell, Ohleyer, O'Sullivan, Overton, Porter, Prouty, PuUiam, Reed, Reynolds, Rhodes, Ringgold, Rolfe, Schell, Schomp, Sbafter, Shoemaker, Shurtleff, Smith, of Santa Clara, Smith, of 4th District, Smith, of San Francisco, Soule, Stedman, Steele, Stevenson, Strong, Stuart, Sweasey, Swenson, Swing, Terry, Thompson, Tinnin, Townsend, Tully, Turner, Tuttle, Vacquerel, Van Dyke, Van Voorhies, Walker, of Marin, Walker, of Tuolumne, Waters, Webster, Weller, Wellin, West, Wickes, White, Wilson, of Tehama, Wilson, of 1st District, Winans, Wyatt, Mr. President. Berry, Biggs, Campbell, Kenny, Beddy. LXAVB OF ABSBNOB. Leave of absence was granted to Mr. Campbell for two days, on account of sickness. • Mr. HUESTIS. I move that the reading of the Journal be dispensed with. Carried. prriTioif. Mb. STUART presented the following petition, signed by a large number of citizens of California, advocatmg female suffrage : To th* Constltntional Oomentlan in Saemnmta, OallfomU, aiiembled: Tha nndenlgnsd, citizens of Ooliromia, mpectfnllr petition vonr honorable bod; to so amend the Oonstttntlon that no dtixen of the State shall be disftan- chlsed on account of sex. Mb. STUART. I move that it be referred to the Committee on Right of Suffrage. Carried. COMMtrKICATIOR FBOU THB SUBVBTOB-OBNXBAL. Thb PRESIDENT. Gentlemen, I have here a communication from the Surveyor-General of the Stote, in response to a resolution of thisCon- vention, which the Secretary will read. Tbb SECRETARY read: Statx or OAuroBXiA, Omcx or SuBTZToa-OzittBAi. > Sackamzkto, November 6tb, 1878. / Hon. J. P. Boge, President of the Constitutlanal ConTontion : Six : In obedience to Resolntion No. 80, 1 lure the honor to inbmit herewith, for the Information of yoar honorable body, a statement ■howlns am nearly oe poedble, ftom the information in my pooieeeion, the number of square miles in each county in the Stats. WM. HINIS, 8urTeyor. «« BoBiBT Cbo(;cb : Same as " Andrews," $2 72; one quire legal cap paper, 21 cents; twenty-five No. 10 envelopes, 20 cents; one copy constitution, $1 00 4 IS H. Davis: Same as " Andrews," $2 72; one quarter ream legal cap, $1 05; one magic binder, $1 33; fifty note envelopes, 10 cents 5 M J. E. Dxan: Same as "Andrews," $2 72; one quarter ream legal cap, $1 05; one paper cutter, 19 cents; one mucilage stand, brush, and mucilage, 50 cents; one M. T. scrap book, $2 09; one Sisson's magic binder, $1 33. 7 79 P. T. Dowlino: Same as "Andrews," $2 72; one half ream legal cap, $2 10; one pair scissors, 38 cents; one box paper fasteners, 17 cents; one scrap book, $2 50; one mucilage stand, brush, and mucilage, 50 oents; twenty- five No. 9 envelopes, 20 cents; one box rubber bands, 55 cents; one bottle carmine ink, 30 cents; one Sisson's magic binder, $1 33; one glass cup, and sponge, 30 cents; one whisk broom, 34 cents; one memoranda book,20 cents U M Li'KB Dotlb: Same as "Andrews," $2 72; one half roam legal cap, $2 10 * 85 J. M. Dvdlxt: Same as "Andrews," $2 72; one waste basket, 85 cents; one quire legal cap, 21 cents; two Sisson's roagi$ binders, $2 66; one copy Constitution, $1 00.. 7 44 Mr. L. Dudlxt : Same as "Andrews," $2 72 ; one waste basket, with D. S. Terry, 43 cents; one M. T. scrap book, $2 50 ; one ream legal cap, $4 20; two dozen engrossing pens, 20 cents; one mucilage stand, brush, and mucilage, 50 cents; one copy Constitution, $1 00 H M P. Dcnlap: Same as "Andrews," $2 72; one quarter ream legal cap,$l 05'; one mucilage stand, brush, ane mucil- age, 50 cents; two Sisson s magic binders, $2 66 6 '^ Amount carried forward $255 89 Digitized by VjOOQ IC Nov. 7, 1878. OF THE CONSTITUTIONAL CONVENTION. 321 Amount brought forward ' $255 89 J. A. Eaqok: Same as "Andrews," $2 72; one pair shears, > $112; one M. T. scrap book, $2 50; twenty-five Ko. 6 envelopes, 20 cents; one'mucilage stand, brush, and mucilase, 50 cents; one quarter ream legal cap, $1 05; one hundred envelopes, 20 cents; two Sisson's magic biiiders,$2 66 10 95 E. Edoestoh: Same as "Andrews," $2 72; one quarter ream legal cap, $1 05; one paper weight, 17 cents; one mucilage stand, brush, and mucilage, 50 cents; one waste basket, 85 cents; one pair shears, $1 12; one paper cutter, 19 cents; two Sisson's magic binders, $2 66; one copy Constitution, $1 00 10 26 U. M. Kstik: Same as "Andrews," except lead pencils, $2 49; one Shipman's letter file, five hundred leaves, $1 50; one pair large scissors, Xo. 10, $1 12; one M. T. scrap book, $2 50; one quarter ream legal cap, $1 05; one glass, cuy, and sponge, 30 cents; one magic binder, $1 33; twenty-five fetter envelopes, 10 cents; one magic binder, $1 33 - II y T. H. Estkt: Same as "Andrews," $2 72 2 72 Edward Evrt: Same as "Andrews," $2 72; one magic binder, $1 33; one half ream legal cap, $2 10; one hundred envelopes, 20 cents; one M. T. scrap book, $2; one magicbinder,$l 33; onehairdozenleaapencils,23ccnta 9 91 S. J. Fabrell: Same as "Andrews," $2 72; one half ream legal cap, $2 10; one pair shears, $1 12; one M. T. scrap book, $2 50; one mucilage stand, brush, and mucilage, 50 cents; one box paper fasteners, 2U cents; one rubber ruler, fourteen inch, 50 cents; one bottle carmine ink, 30 cents; one box quill pens, 50 cents; one box rubber bands, 55 cents; one glass cup, and sponge, 30 cents: one steel eraser, 32 cents; one magic binder, $1 33 12 94 E. Pawcrtt: Same as "Andrews," $2 72; one Moore's hand blotter, 42 cents; two magic binders, $2 6B; twenty- five No. 10 envelopes, 20 cents; one quarter ream legal cap,$l 05 7 05 J. A. Filcbrb: Same as "Andrews," $2 72; one waste basket, 85 cents; one mucilage stand, brush, and mucilage, 50 cents; one M. T. scrap book, $2 50; one quarter ream legal cap. $1 05; one magic binder, $1 33; one paper weight, 20 cents; one box paper fasteners, 20 cents; one box one half inch rubber bands, 90 cents; one box one quarter inch rubber bands, 55 cenU; one magic binder, $1 33; one pair banker's shears, $1 12; one bottle Arnold's fluid, 43 cents ; one copy Constitu- tion, $1 00 14 88 C. G. Fiknrt: Same as " Andrews," $2 72; one pair shears, $1 12; one paper folder, 19 cents; one ivory paper cutter, 55 cents; one paper weight, 20 cents; one rub- ber ruler, 40 cents; one rubber eraser, 13 cents; one magic binder, $1 33; one glass cup and sponge, 30 cents; one paperweight, 20 cents; one scrap book, $2; one inkstand, 25 cents; two dozen engrossing pens, 20 cents; twenty-five large envelopes, 20 cents; fifty letter envelopes, 10 cents; one magic binder, $1 33; one rubber eraser, 13 cents; one box assorted elastics, 95 cents; one copy Constitution, $1 00 13 30 A. C. Frruian: Same as "Andrews," $2 72; quarter ream legal cap, $1 05; one magic binder, $1 33 ; one mucilage stand, brush, and mucilage, 50 cents 5 60 J. R. FsiOD : Same as " Andrews," $2 72 ; quarter ream legal cap, $1 05; one mucilage stand, brush, and mucilage, 50 cents; one M. T. scrap book, $2 50; one box quill pens, 50 cents; two magic binders, $2 66 9 93 }. B. Gabtrt: Same as " Andrews," $2 72; two magic bind- ers, $2 66; one M. T. scrap book, $2 5(1; three pen- holders, 9 cents; one waste basket, one bottle mucilage and stand, and one copy Constitution, ordered by Gar- vey and Tuttle jointly, $1 18 9 15 Wm. p. Grace: Quarter ream letter paper, 77 cents; quarter ream note paper, 38 cents; fifty envelopes, Nos. 5 and 6, 10 cents; quarter roam legal cap, $1 05; ^ twenty-five No. 9 envelopes, 20 cents; one nibber ruler, fourteen inches, 50 cents; one rubber ink and pencil eraser, 13 cents; one Moore's hand blotter, 42 cents; one mucilage stand, brush, and mucilage, 50 cents; one box quill pens, 50 cents; one M. T. scrap book, $2 00; one daily journal, 1878, $1 50; one pair shears, $1 12; one inkstand, 21 cents; one bottle black ink, 25 cents; one bottle carmine ink, 30 cents; one paper cutter, 19 cents; one steel knife eraser, $1 12; one box Swan pens, 40 cents; one quire yellow wrap- ping paper, 24 cents; one box McGill's fasteners, 17 cents; one dozen Dixon's lead pencils, 42 cents; one box rubber bands, 55 cents ; one third dozen penhold- ers, 12 cents; one half dozen cut blotters, 3 cents; one spool red tape, 55 cents; two magic binders, $2 66; one glass cup and sponge, 30 cents 16 68 Amonnt carried forward - $390 98 41 Amoount brought forward $390 98 B. B. Glasscock: Same as "Andrews," $2 72; quarter ream legal cap, $1 05; three magic binders, $3 99; one Moore's hand blotter, 42 cents 8 18 J. C. Guruak: Same as "Andrews," $2 72; one magic binder, $1 33; one pair scissors, 38 cents; one box paper fasteners, 20 cents; one M. T. scrap book, $2 00 6 63 W. J. Gravks: Same as "Andrews," $2 72; two Sisson's magic binders, $2 66. 5 38 V. A. Grigo: Same as "Andrews," $2 72; quarter ream legal cap, $1 05; quarter ream letter paper, 77 cents; one hundred envelopes, 20 cents; one steel knife eraser, $1 12; one dozen pens, 10 cents; three penholders, 9 cents; twenty-five No. 10 envelopes, 20 cents; one M. T. scrap book, $2 00; one mucilage stand, brush, and mucilage, 50 cents; one rubber ruler, 40 cents; one paper cutter, 19 cents ; one glass cup and sponge, 30 cents; one pair shears, $1 12; one magic binder, $1 33; one box number four hundred and four pens, 42 cents; one box engrossing pens, 50 cents; one waste basket. 85 cents ; one paper weight, 20 cents; one board clip, 75 cents 14 81 J. S. IIaokr : Same as " Andrews," $2 72 ; one magic binder, $1 33; one mucilage stand, brush, etc., 50 cents; one . quire legal cap, 21 cents; one pair scissors, 38 cents; one magic binder, $1 33; two quires legal cap, 42 cents; one Moore's hand blotter, 42 cents.. 7 31 J. E. IIalr; Same as "Andrews," $2 72; one dozen Faber's ■ Ko. 2 pencils, 46 cents; one ream legal cap, $4 20; one inkstand, 20 cents; two mucilage stands, brushes and mucilage, $1 00 ; one dozen penholders, 36 cents; one box P. R. R. pens, 39 cents; one bottle ink, 25 cents ; two boxes McGill's fasteners, 40 cents ; one pair banker's shears, $1 12; fifty No. 10 envelopes, 40 cents; 50 No. 6 envelopes, 10 cents; one magic oinder, $1 33 ; one M. T. scrap book, $2 00 ; two boxes rubber bands, one half and one fourth inch, $1 45 ; I magic binder, $1 33; one copy Constitution, $1 00 18 71 J. B. 1{ ALL : Same as "Andrews," $2 72 ; one quarter j«am legal cap, $1 05; one copy Constitution, $1 00 4 77 Thomas Harrison: Same as "Andrews," $2 72; one quarter ream legal cap, $1 05 ; half dozen penholders, 23 cents ; one inkstand with pen rack, 75 cents; one box quill pens, 50 cents ; one scrap book, $2 00 ; one mucilage stand, brush, and mucilage, 50 cents; one pair shears, $1 12; one steel eraser, 32 cents ; one rubber ruler, 50 cents; one paper cutter, 19 cents; one magic binder, $1 33; one copy Constitution, $1 00 12 21 JoRL A. Harvkt : Same as "Andrews," $2 72 ; one M. T. scrap book, $2 00 ; one quarter ream legal cap, $1 05 ; twenty- five No. 10 envelopes, 20 cents; one pair scissors, (two magic binders drawn, but returned), 38 cents 6 35 T. D. Hkiserll : Same as "Andrews," $2 72 ; one magic binder, $1 33; one half quire legal cap, 11 cents; one muci- lage stand, brush, and mucilage, 50 cents 4 66 C. IIkrold: Same as "Andrews," 2 72 D. W. Herrikotox; Same as "Andrews," $2 72; two quires legal cap, 42 cents; one mucilage stand, brush, and mucilage, 50 cents; one magic binder, $1 33; one fourth ream legal cap, $1 05 ; one magic binder, $1 33. 7 35 W. F. HuESTis : Same as "Andrews, $2 72 : one M. T. scrap book, $2 50 ; one willow waste basket, 85 cents ; one quarter ream legal cap, $1 05 ; one pair bankers' shears, $1 12; one Sissons' magic binder, $1 33; one glass, cup, and sponge, 30 cents 9 87 S. G. HiLBORN : Same as "Andrews," $2 72 ; one quarter ream brief paper, 58 cents .... 3 30 J. R. W. Hitchcock: Same as "Andrews," $2 72; one M. T. scrap book, $2 00; one ream legal cap, $4 20; one pair shears, 80 cents; one mucilage stand, brush, and mucilage, 50 cents; one bottle carmine ink, 30 cents; one steel knife eraser, $1 12; one rubber ruler, four- teen inches, 50 cents; one box rubber bands, one fourth inch, 55 cents; one small sponge, 25 cents; one box paper fasteners, 17 cents; one Sissons' magic binder, $1 33; one copy Constitution, $1 00 15 44 J. P. Hook: Same as "Andrews " 2 72 S. A. Holuks: Same as "Andrews, $2 72; one magic binder, $1 33 ; one quarter ream legal cap, $1 05 ; one magic binder,$l 33 6 43 V. E. Howard: Same as "Andrews," $2 72; two magic bind- ers,$2 66- 5 38 W. P. HooHEY : Same aa "Andrews," $2 72; two quires legal cap, 42 cents ; one scrap book, $2 50 ; one mucilage stand, brush, and mucilage, 50 cents; one pair shears, 80 cents; one daily journal, 1878, $1 50; two quires yellow envelope paper, 58 ; two quires and fifteen sheets legal cap, 58 cents 9 60 .\mount carried forward .^.sa,.... $542 89 Digitized by VjOOQ l( 322 DEBATES AND PROCEEDINGS Thursday, Amount brought forward $542 G. W. HuNTBR : Same as "Andrews," $2 72 ; one r^m legal cap, $4 20; one mucilage stand, brush, and mucilage, 50 cents; one half dozen quill pens, six cents; one magic binder,$l 33 8 Dakikl IxiiAN : Same as "Andrews," $2 72 ; one quarter ream legal cap, $1 05; one magic binder, $1 33; one M.T. scrap book, $2 00; one gla&j, cup, and sponge, 30 cents 7 G. A . Jobsson: Same as " Andrews," $2 72 ; two magic binders, $2 66 5 L. F. JoNKS : Same as " Andrews," $2 72 ; two magic binders, $2 66; one copy Constitution, $1 00 it Petkb J. Jovci: Same as " Andrews," $2 72; one bottle muci- lage, 50 cents; one quarter ream legal cap, $1 05 ; one magic binder, $1 33; one gross one half inch rubber bands, 90 cents; one pair shears, 80 cents; one scrap book, $2 00; one box McGill's fasteners, 20 cents; fifty No. 5 envelopes, 10 cents; one copy Constitution, $1 00 in J. M. Killy: Same as " Andrews," $2 72 ; one M. T. scrap book, $2 00 ; one paper weight, 20 cents ; one quarter ream legal cap, $1 05; one bottle red ink, 35 cents; one pair scissors, 38 cents; one magic binder, $1 33 M B. F. Kbsny: Same as "Andrews," $2 72; one quarter ream legal cap, $1 05 : one rubber ruler, fourteen inch, 50 cents; one mucilage stand, brush, and mucilage, 50 cents; one box pajicr fasteners, 20 cents; one pair scissors, 38 cents: one M. T. scrap book, $2 00; one . pair banker's shears, $1 12; one whisk broom, 34 cents; one memorandum book, 25 cents; fifty large envelopes, 40 cents; one box P. R. R. pens, 39 cents.. 9 J. H. Kbybb: Same as " Andrews," $2 72 ; one Sisson's magic binder,$l 33 4 C. R. Klkikk: Same as "Andrews," $2 72; two quires legal cap, 42 cents; one pair banker's shears, $1 12: one quarter ream legal cap, $1 05; two magic binders, 2 66; one copy Constitution, $1 00 S T. H. Laiki: Same as "Andrews," $2 72 ; one Sisson's magic binder, $1 33; one copy Constitution, $1 00 5 R. M. Lampson: Same as " Andrews," $2 72 ; two magic binders, $2 66 5 Hknry Labkih: Same as " Andrews," $2 72; one quarter ream legal cap, $1 05 ; one box McGill's fasteners, 17 cents ; one mucilage stand, brush, and mucilage, 50 cents; one pair banker's shears, $1 12; one box P. R. R. pens, 39 cents; one half dozen pen holders, 23 cents: one ink stand, 20 cents ; one bottle Arnold's fluid, 25 cents ; one magic binder, $1 33 7 H. M. Larue: Same as "Andrews," $2 72; one half ream legal cap, $2 10 : two magic binders, $2 66 ; one pair shears, 80 cents; one bottle mucilage, 59 cents 8 R. Lavionic Same as " Andrews," $2 72 ; one quarter ream legal cap, $t 05; one box quill pens, 50 cents; one magic binder, $1 33; one scrap book, $2 50; one board clip, 75 cents; one box paper fasteners, 20 cents; one Iwttle red ink, 30 cents; one glass cup and sponge, 30 cents ; one pair banker's shears, $1 12; twenty-five envelopes, 5 cents 10 Datid Lrwis: Same as "Andrews," $2 72: one half ream legal cap, $2 10; one M. T. scrap book, $2 50 ; one rubber ruler, 50 cents; one pair banker's shears, $1 12: one knife eraser, 32 cents; one box paper fasteners, 17 cents; one mucilage stand, brush, and mucilage, 50 cents; one copy Constitution, $1 00 10 J. F. LiNoow: Same as " Andrews," $2 72 ; one half dozen lead pencils, 23 cents; one box golden pens, 75 cents; one quarter ream note paper, 38 cents ; one half ream legal cap paper, $2 10; one mucilage stand, brush and muci- lage, 50 cents; one glass cup and sponge, 30 cents; one magic binder, $1 33 ; one bottle red ink, 30 cents; one box Mo. Gill's paper fasteners. 20 cents ; one box quill pens, 50 cents; one scrap book, $2 00; one pair banker's shears, $1 12; one ream note |>aper, $1 50: one board clip, 75 cents 14 John Mansfiklo: Same as "Andrews," $2 72 ; one quarter ream legal cap, $1 05; twenty-five No. 10 envelojies, 20 cents; one magic binder, $1 33; one mucilage stand brush and mucilage, 50 cents; two hundred and fifty No. 10 envelopes, $2 50; two hundred and fifty No. 5 envelopes, 45 cents; one M. T. scrap book $2 00 10 E. Martin: Same as "Andrews," $2 72; one M. T. scrap book, $2 00; one willow waste basket. 85 cents; two magic binders, $2 66; one knife eraser, steel, $1 12; one mucilage stand, brush and mucilage, 50 cents; one board clip, 75 cents; one pair scissors, 38 cents 11 J. < 1. McCallcm : Same aa "Andrews," $2 72 ; one quarter ream legal cap, $1 05 ; two magic binders, $2 66 ; one bottle mucilage, 25 cents - 6 Amount carried forward - $704 69 03 96 87 S2 93 f>8 75 68 -I 531 Amount brought forward =. $704 55 R. McComas: Same as "Andrews," $2 72 ; one mucilage stand, brush and mucilage, 50 cents; one willow waste basket, 85 cents ; two quires legal cap paper, 42 cents ; one bot- tle violet ink, 34 cents; one mkstand, 20 cents 5 03 Thos. McCosukll: Same as "Andrews," $2 72; one waste basket, 85 cents ; one scrap book , $2 00 ; one pair shears, 80 cents; one magic binder, $1 33 7 70 .loH.v McCoy: Same as "Andrews," $2 72; two magic binders, $2 66 5 38 T. B. McFarlano: Same as "Andrews," $2 72: two magic binders, $2 66 ; one quarter ream note paper, 38 cents; one hundred and fifty No. 6 envelopes, 30 cents 6 IK .1. y. Mc'NtTi: Same as "Andrews," $2 72; one M. T. scrap lxK)k, $2 00 ; one magic binder, $1 33 ; one pair banker's shears, $1 12; one quarter ream legal cap, $1 05; one lioard clip, 73 cents 8 02 J. K. Mii.lrr: Same as"Andrews," $2 72: one half ream legal rap, $2 10; one magic binder, $1 33; one box McGill's fasteners, 20 cents " 6 35 H. Mii.U'i: Same as "Andrews," $2 72; two magic binders, .'^2 66; one quarter ream legal cap, $1 05; one scrap liook, $2 00; one i>air banker's shears, $1 12; five sheets ycilow wrapping [laper, 7 cents • 9 62 W. S. Mokpat: Same as "Andrews, $2 72 2 72 W. W. Morela.vd: Same as "Andrews," $2 72; one mucilage etand, brush and mucilage, 50 cents; one quarter ream legal cap, $1 05; one twx engrossing pens, 50 cents; one magic binder, $1 33; one copy Constitution, $1 00. 7 10 h. V. Morsi: Same as "Andrews," $2 72 2 72 .1. E. Mirpby: Same aa "Andrews," $2 72 2 72 E. Xasox: Same as "Andrews," $2 72; one M. T. scjap book, ■$2 50; one mucilage stand, etc., 50 cents; one magic binder, $1 33; one quarter ream legal cap, $1 05 8 10 II. Nki'nabir: Same as "Andrews," $2 72 2 7! T. Nki.sox: Same as "Andrews," $2 72; one mucila^ stand, etc., 50 cents; one scrap book, $2 00; one magic binder, $1 33; one pair banker's shears, $1 12 7 67 A. E. Norl: Same as "Andrews," $2 72; one M. T. scrap book, $2 50; twenty-five No. 10 envelopes, 20 cents; one quarter ream legal cap,$1 05; one willow waste basket, 85 cents; three penholders, 0 cents; one box P.,Jt. R. liens, 39 cents; fifty envelopes, 10 cents; one magic binder, $1 33; one pair shears, 80 cents; one magic binder, $1 33; one copy Constitution, $t 00 12 SJ ('. (', O'DoNNKLt: Same as "Andrews," $2 72; one mucilage Dtand, etc., 50 cents; one M. T. scrap book, $2 50; one quarter ream legal cap,$l 05; one ma^ic binder, $1 33; one M. T. scrap book, $2 00 : two magic binders, $2 66 ; one pair scissors, 38 cents; half dozen lead pencils, 23 cents 13 37 .'iS GsoRox V. Smith: Same as "Andrews," $2 72; one ream legal cap, $i 20: one pair banker's shears, $1 12; one steel knife eraser, $1 12; one rubber ink and pencil eraser, 13 cents: one mucilage stand etc., 50 cents; one bottle red i^k, 30 cents; one M. T. scrap book, $2 00 ; one box engrossing pens, 50 cents; one rubber rule, 50 cents; one box Swan pens, 50 cents; one eyelet punch and two boxes eyelets, $2 16; ono box McUill's fasten- ers, 29 cents ; two boxes rubber bands, $1 85 ; one ream brief paper, $2 30; one bottle Arnold's fluid, 43 cents; onfc roll rod tape, 55 cents ; one magic binder, $1 33 ; one pair banker's shears, $1 12; one glass cup and sponge, 30 cents; one paper cutter, 19 cents.. 24 02 H. W. Smith: Same as "Andrews," $2 72; one quarter ream legal cap, $1 05; one pair banker's shears, $1 12; one mucilage stand, etc., 50 cents; one box McGill's fasten- ers, 20 cents; one M. T. scrap book, |2 50 s 09 E. P. SoDLE : Same as " Andrews," $2 72 ; one quire legal cap, ■ 21 cents; one bottle mucilage, 59 cents 3 52 J. C. Stkdman: Same as "Andrews," $2 72; one box rubber bands, 90 cents ; one box paper fasteners, 20 cents ; one quarter ream legal cap, $1 05 ; twenty-five No. 9 envel- opes, 20 cents; one pair banker's shears, $1 12; one mucilage stand etc., 50 cents; one box quill pens, SO cents; one bottle carmine ink, 30 cents; one steel eraser, 32 cents; one box 404 pens, 42 cents ; one M. T. scrap book, $2 00; one papereuttcr, 19 cents; one glass cup and sponge, 30 cents; two magic binders, $2 66; one board clip, 75 cents; one whisk broom, 34 cents; one copy Constitution, $1 00 1j 47 D. C. Stetkkson : Same as " Andrews," $2 72 ; one magic binder, $1 33; one magic binder, $1 33 5 38 Amount carried forward.. ...$1,027 42 Amount brought forward $1,027 42 Georok Steele: Same as "Andrews," $2 72; one M. T. scrap book, $2 00; one pair banker's shears, $1 12; one half quire legal cap paper, 11 cents; one mucilage stand, etc. etc., 50 cents; one magic binder, $1 33; one board clip, 75 cents; one magic binder, $1 33 9 86 C. V. Stuart: Same as "Andrews," $2 72; one magic binder, $1 33; one quarter ream legal- cap, $1 05; two magic binders, $2 66; one copy Constitution, $1 00 8 76 W. .T. Swkaset : Same as "Andrews," $2 72 ; one magic binder, $1 33; one mucilage stand, etc., 50 4 55 rn.is. Svemsox: 8amoas"Andrew8,$2 72; one box McGill's fast- eners, 20 cents ; one quire legal cap, 21 cents ; one bottle mucilage, 50 cents 3 63 U. S. Swing: Same as "Andrews," $2 72; one ivory handle era- ser, steel, 55 cents ; one mucilage stand, etc., 50 cents; one quarter ream legal cap, $1 05 ; one box paper fast- eners, 20 cents; one box rubber bands, 90 cents; one magic binder, $1 33... 7 25 D. S. Teret: Same as "Andrews," $2 72; one waste basket with W. L. Dudley, 43 cents; 1 M. T. scrap book, $2; one pair banker's shears, $1 12 6 27 W. .7. TiNsiK : Same as "Andrews," $2 72 ; one mucilage stand, etc., 50 cents ; one quarter ream legal cap, $1 05 ; one magic binder, $1 33 ; twenty-five letter envelopes, 10 cents; twenty-five largo envelopes, 20 cents ^. 5 90 F. 0. Townsend: Same as "Andrews," $2 72; one magio binder, $1 33; one magic binder, $1 33 5 .38 r. R. Tully: Same as "Andrews," $2 72; one magic binder, $1 33; one quarter ream legal cap, $1 05; one quarter ream note paper, 38 cents; fifty No. 6 envelopes, 10 cents; five bundles phonograpnic note paper 5 58 II. K. Turner: Same as "Andrews," $2 72 2 72 Panikl Tuttle: Same as "Andrews," $2 72; one M. T. scrap book, $2 50; three penholders, 9 cents; one half waste basket and one half mucilage stand,^ith Garvey, 68 cents; one magic binder, $1 33 7 32 .\. Vacquerel: Same as "Andrews," $2 72; one magic binder, $1 33; one scrap book, $2; one bottle mucilage, 59 cents; one pair scissors, 38 cents; one glass cup and sponge, 30 cents; one box quill pens, 50 cents; one lx>ttle red ink, 37 cents; one steel eraser, 32 cents; one board clip, 75 cents; one box paper fasteners, 20 cents; twenty-five No. 6 envelopes, 5 cents; twenty-five No. 9 envelopes, 20 cents; one quarter ream legal cap, $1 05; one copy Constitution, $1 11 76 W. Van Dyke ; Same as "Andrews," $2 72 ; ono M. T. scrap book, $2; one waste basket, 85 cents; one quarter ream legal cap, $1 05; one pair scissors, 38 cents; one glass cup and sponge, 30 cents ; one magic binder, $1 33 ; one magic binder, $1 33; one copy Constitution, $1 10 96 Wii. Van Voobhies: Same aa "Andrews," $2 72; one quarter ream legal cap, $1 05; one M. T. scrap book, $2; twenty-five large envelopes, 20 cents 5 97 Ilri:ii Walker: Same as "Andrews," $2 72; one magic binder, $1 33; one scrap book, $2; one pair banker's shears, $1 12 7 17 John Walker; Same as "Andrews," $2 72; one magic binder, $1 33; one magic binder, $1 33 : 5 38 BvnoN Waters: Same as "Andrews," $2 72; one half ream legal cap, $2 10; one half ream brief, $1 15; one paper cutter, 19 cents; fifty No. 10 envelopes, 40 cents; one mucilage stand, etc., 50 cents; one box pa)icr fast- eners, 20 cents; one pair banker's shears, $1 12 8 38 ,). V. Webster: Same as "Andrews," $2 72; one quarter ream legal cap, $1 05 ; twenty-five large envelo|)es, 20 cents ; one dozen rubber bands, 6 cents ; one waste basket, 85 cents; one M. T. scrap book, $2; one magic binder, $1 33; one copy Constitution, $1 9 21 .1. R. Wellkb: Same as "Andrews," $2 72; two quires legal cap, 42 cents; one mucilage stand, etc, 50 cents; one magic binder, $1 33; one magic binder, $1 33; five hunches phonographic paper ; fifty large envelopes, 40 cents; one dozen Paber s No. 2 pencils, 50 cents; one M. T. scrap book, $2 9 20 .loHx T. WicKEs: Same as "Andrews," $2 72; one magic binder, $1 33; ono magic binder, $1 33; one copy Constitution, $1 6 38 W. F. White: Same as "Andrews," $2 72; one half ream legal cap, $2 10; one pair banker's shears, $1 12; one box paper fasteners, 20 cents; one M. T. scrap book, $2; steel knife eraser,?! 12 9 26 H. C. Wilson: Same as "Andrews," $2 72; one quarter ream legal cap, $1 05 ; one dozen rubber bands, 6 cents ; one dozen large envelopes, 10 cents; one pair scissors, 38 cents; one steel knife eraser, $1 12; one box paper fast- eners, 20 cents; one magic binder, $1 33; one magic binder, $1 33 8 29 Amount carried forward .—^..$1,187 6tt Digitized by LjOOQ1( 324 DEBATES AND PROCEEDINGS Thursday, Amonnt brought forward $1,187 60 P. M. WiLUH: Same as "Andrews," $2 72; one quarter ream legal cap, $1 05; one pair banker's shears, $1 12; one box Swan's pens, 42 cents; one mucilage stand, etc., 50 cents; one Dottle carmine ink, 37 cents; one steel eraser, 32 cents: one box quill pens, 50 cents; one dozen lead pencils, 40 cents; one Dox paper fasteners, 20 cents; one box rubber bands, 90 cents; twenty-five No. 9 envelopes, 20 cents; one M. T. scrap book, $2; one magic binder, $1 33 ; one paper cutter, 19 cents ; one glass cup and sponge, 30 cents ; one paper weight, 20 cents; one board clip, 75 cents; one magic binder, $1 33; one quarter ream note paper, 38 cents; one quarter ream letter paper, 77 cents; one hundred envelopes, 20 cents; one parallel ruler, 75 cents; one flexible rubber ruler, 50 cents; one copy Constitution, $1 18 if, J. B. W«st: Same as "Andrews," $2 72; one magic binder, $1 33; one quarter ream note paper, 38 cents; one magic binder, $1 33.. 5 76 S. M. Wilsok: Same as " Andrews," $2 72; one magic binder, $1 33; one hoard clip, 75 cents; one mucilage stand, etc., 50 cents; one roll red tape, 55 cents; one pair banker's shears, $1 12 cents; one Mooro's hand blot- ter, 42 cents; one quarter ream legal cap, $1 05; two dozen rubber bands, 15 cents; one magic binder, $1 33; on« glass cup and sponge, 30 cents; one half dozen penholders, 18 cents 10 40 J. W. WiSAKS: Same as "Andrews," $2 72; one M. T. scrap book, $2; one rubber ruler, fourteen inches, 50 cents; one waste basket, 85 cents; one glass cup and sponge, 30 cents; one bottle red ink, 30 cents; one mucilage stand, etc., 50 cents ; one inkstand and ink, 40 cents; one pair scissors, 38 centa; one magic binder, $1 33; one quarter ream legal cap, $1 05; one magic binder, $1 33 11 CO N. G. Wtatt: Same as " Andrews," $2 72; one quarter ream legal cap, $1 05 pone mucilage stand, etc., 50 cents; one mucilage stand, etc., 50 cents; one M. T. scrap book, $2; one dozen rubber bands, 7 cents,- one pair scissors, 38 cents ; one steel eraser, 32 cents ; one box paper fasteners, 20 cents; one dozen No. 10 envelopes, 10 cents; one box engrossing pens, 50 cents; one mucilage stand, etc., 50 cents; one magic binder, $1 33; one copy Constitution, $1 11 OT J. W«gT Mahtik: One quarter ream note paper, 38 cents; one box pens and two penholders, 45 cents; one waste basket, 85 cents; two lead pencils, 8 cents; 6fty No. 6 envelopes, 10 cents; one quarter^^am legal cap, $1 05 2 91 J. M. Stroko: One M. T. scrap book, $2; one magic binder, $1 33; one magic binder, $ I 33 4 06 S. B. Trohpsok: One magic binder, $1 33—. I S.f *1.2,i5 50 For TBI CoNviKTioN : One hundred and four spittoons, at 80 cents 83 20 Total... !>!1,338 70 RespeotfuUv submitted, 'THOMAS BECK, Secretary of State. BKSOLOTIom AND PROPOSITIONS. Thk PRESIDENT: The next order of business is resolutions and propositions relating to the Constitution. IN RKI.ATION TO OAMBLINO. Mr. O'SULLIVAN introduced the following proposed amendment to the Constitution : Section — . Lotteries, and the sale of lottery tickets, are forever pro- hibited. Gambling transactions of any and every character shall not be allowed ; and the Legislature is directed to pass such penal laws as may be necessary to suppress the evil practice of gambling, under whatever name it may be known. Referred to the Committee on Legislative Department IN RELATION TO MINING BOARDS. Mr. McCOY introduced the following proposed amendment to the Constitution : Reaolved, It shall be the duty ofathe Legislature, at each regular ses- sion thereof, to inquire into the management of all mining stock Boards doing business in this State; and if, in their judgment, the public good demands it, they shall adopt such legislation as they may deem neces- sary in the premises. Referred to the Committee on Legislative Department. IN RELATION TO GRAND JORIES. Mb. RINGGOLD introduced the following resolution to prohibit secret sessions of Grand Juries : " That Grand Juries are prohibited from performing such duties as per- tain to that office in secret session, and in all cases, when practicaolc, defendants shall be confronted with their accusers before a true bill shall be found." Referred to the Committee on Preamble and Bill of Rights. RKLATIVB TO LEOtSLATIVB DBPABTHENT. Mb. DOWLING introduced the following proposed amendment to the Constitution, in relation to the legislative department: Section 1. It shall be a felony for any public officer, elected toaay office of profit or trust in the gift of the people of the State of California, to extort, receive, or cause to be received, any money, valuables, or com- pensation of any kind, from any person who may make application to obtain or procure any subordinate position in the gift of said officer. Referred to the Committee on Legislative Department. THE LAW or libel. Mr. van DYKE: I move that the Convention now resolve itself into Committee of the Whole, the President in the chair, for the purane of considering the report of the Committee on Preamble and BiU of Righta. Carried. IN COMMITTEE OF THE WHOLE. The CHAIRMAN. The question is on the amendment offered by tbt gentleman from Sacramento, Mr. McFarland. SPEECH OP HB. ATEBS. Mb. AYER8. Mr. Chairman : The gentleman from Sacramento, Mr. McFarland , moves to strike out in the libel section the words, "and the jury shall have the right to determine the law and the fact." I shall oppose the gentleman's motion on the ground that I conceive that that clause it now a protection to honest publishers against malicious proeecutioni, and that it is also a protection to the people, insomuch as it is a sife- giiard to the freedom of the press. The clause has existed in oar pres- ent constitution, down to the present time, and I find that a similar piD- vision exists in the Constitutions of Delaware, Georgia, Michigan, Nebraska, New York, Pennsylvania, South Carolina, and Wisconsin. If I understand the gentleman aright in his argument in favor of expunging the words in this clause, it was to the efl^t that they vera meaningless now ; that they conserved no right to a defendant in a libel suit which is not conserved under the general criminal practice. At the same time, however, his argument was that citizens are beint libeled in the public press, and that the individuals who are thus libelea have no redress. I submit that the argument is fallacious, and that the two positions arc repugnant to each other. Either the clause has a meaning— that it is an actual protection to pnblishera — or else publishen, under that clause, incur no responsibility for libel. If it gives publishen a greater latitude than is given other citizens who are charged with crime, I submit to the gentlemen of this Convention that there is a vast difference between the two classes. The independent editor, tlie honest editor, who conducts his paper from good motives and from a jost con- science, is obliged to stand between the people and public iniquity. He has frequently to stand forth as the champion of the people against con- certed wrong in high places. With lance at rest and ste«i in higli career, he must ever be charging upon public vice, if be be an honest and fearless journalist. His responsibility both to the people and to bis {trofession is great, and certainly his immunity should be considered a> leing more entitled to respect than that of such gentry as the gentleman from Sacramento, Mr. McFarland, spoke of last evening as cutting a fiurse or stealing a cow. At this time, of all other times, I would not ike to Boe this Convention, in its organic law, take away from the presi one jot or one iota of its present safeguards. A new element has risen up in this country to fatten with the spoils that have been wrung from the hand of industry. Millionaires are meeting you in every place and combining together to crush out public opinion and to ride rough-shod over the |>eople. Whom will you call upon then, when they are arrayed in all their power, to stand between the people and theee men, whoirill arrogate themselves, as did Louis XIV., to be the State? If you take away the incentive to journalists to face and break down this power, where will you seek for a substitute for it? I tell you, gentlemen, that without the fear of the press in this country you are going to be in the toils, and from which you shall not, |>erhaps, escape without a bloody revolution. Talk to me about newspapers traducing or libeling the characters of individuals! The law is ample now, without taking away this restric- tion, which is the safeguanl nf the honest and fearless publisher. It is, perhaps, not necessarj-, Mr. Chairman, to remind the gentlemen of this Convention that the clause which is now attacked was bom amid the storms of one of the most notable debates that ever occurred in the his- tory of England. In thot country it had been the practice — but denied as an infringement of freedom bv those who insisted upon the just rights of juries — it hod been the practice of Judges to determine the law, while the rights of the juries were limited down to the narrow sphere of merely declaring the publication. The Judges decided the libel, sad the jury decided the publication. But Lord Erskine, in his great forensic effort in the case of the Dean of St. Asaph, showed, in reason- ing that could not be combatted, that the determination of the lav snd the fact, according to the British Constitution, in libel cases, rested vjtb the jury; and upon his argument came forth Fox's Declaratory Ai*, upon which this law is based, and which has remained the law to this day. You may say to me that because juries in other criminal cases take from the Bench the law, and come to their conclusions through the direction of the Courts, that they are, in effect, in those eases deter- minators of the law and the fact Admit it But in this case, where the grand right is set forth in the Constitution, iuries will not be inila- enced by a venal Judge, if it so happen that there be one. Shall ve say that the ermine in this country will always remain as pure as it is? Are we not marching towards the period when you may see venality and corruption sitting on the bench, as it now^its iu other public offices? When your great monopolies, your combinations of capital, to carry out their designs, shall attempt to place upon the throne of justice one of their tools — do you mean to tell me they wiU-^wit accomplish it? Tbe^ Digitized by Uoogle Nov. 7, 1878. OF THE CONSTITUTIONAL CONVENTION. 325 vill. Then, with that clause in your Constitution, the press may defy them. Take not away that safeguard. You may hear argiiments finely spun baaed U|ion theories of reasoning drawn from hair-splitting ideas of law ; bat let them not prevail, for wc have a safeguard in that clause which may yet prove a pillar of protection to us in our time of need. What would become of the right of a publisher before a Judge who had been installed in office by the manipulators of a party, and who was sitting in judgment upon a man who had used his paper to attack them in their most vital part? If thatJud^p owed his position to those men, and he could define the law to the jury and tell them what their ver- dict should be under the law, what honest journalist would come out of that trial triumphant? Would not the honest publisher who had sought to protect the people and to strike at rascality — would not he be consigned to a duueeon, whilst the rascals stepped forth as men who had been persecuted ? As long as the jury retain in their possession the power to aetcrmine both the law and the fact, 80 long will the public press be preserved from malicious prosecution, so long will the public press be enabled to deal fairly, honestly and energetically with the evils that arise in our midst. But if you take away that protection, if TOO leave the ipublic press to be harassed by every malevoleut man who seeks to destroy its usefulness, you will heap upon it incessant charges and libel suits. You will crush it with criminal prosecutiws, you will intimidate it by holding over it always the terror of costly trial; you will drive from it all but those timid or cringing men who are willing to shut their eyes to public vice and to turn their bocksupon wrongs against the people. But if, on the contrary, you wish to cher- ish an honest, fearless and indepeuilent' press, give it this protection which it has bad in the past. What have been its efforts in tnis State? You have had a galaxy of gentlemen in the profession of journalism who have done honor to it. You have had your Gilberts and your Kings, who, in the path of duty, faced the bullet of the assassin, and went upon the ill-fated field to assert the opinions which they set forth in their Journals. You have had bright minds and honest hearts to direct your best papers from the very incipiency of the State. Admit that the right has been abused ; what right, what boon, has not been abused? I do not stand here to defend the common traducer and libeler. I do not stand here to defend the outrageous blackmail sheets which exist in this community, but I stand hero to proclaim the prin- ciple that in your honest journals, those conducted for the public good, you have a palladium of your libeKiea which you cannot crush out without danger to your own liberties. Mr. Chairman, if, as it has been urged, that provision at the end of the section is useless, I submit that to leave it there cannot do any harm ; but if it is useful, it is useful for good, and should be retftined. I hope that the sense of this Convention will not support the amendment to strike out, by the gentleman from Sacramento, Mr. McFarland, and, for the reasons I have given, I appeal to the good sense of this Convention to retain the section as it is. spxRCR or ua. orkoo. Me. GREGG. Mr. Chairman: I approve of the motion made by the gentleman from Sacramento, Mr. Mcrarland, but not for the reasons given by him. The theory of the section, as the report stands, is that when a publisher commits a crime he has certain immunities over all other classes of criminals. If we turn back in history we will find that It was never intended that they should enjoy any such immunity. We find, turning back to the eighteen century, that the law of England, and the law of this country also, permitted juries in criminal prosecu- tions to declare the whole case, and pronounce the defendant guilty or notguilty,asthey should see proper, but we find in history that the Judges became censors of the public press. They were tools of kings and nobles, who condemned free journals and free speech. It will be found, sir, that in those times the jury simply declared the fact of publication, and the Courts were the judges of whether it was libelous or not. In other words, they charged the juries that they could only find the single fact of whether there had been a publication, and it remained for the Court to say whether that publication was libelous. Wo certainly have an innovation of the common law as it then stood. But, sir, I do not think that any gentleman on this floor can find in the history of jurisprudence of the State, at any time, when that was the law. Mr. Fox, in his celebrated libel bill in the Parliament of England, in the year seventeen hundred and ninety-two, declared that the jury should find on the whole case ; that they should, upon the whole case, as in any other case, declare whether the defendant is guilty or not guilty, and nothing should be reserved to the Judges after the return of the verdict, where it was not guilty. That was the purpose of the Act, to remove the censorship from the press. But the necessity for it has never existed here. It does not exist to-day. This clause is not to be found in the bills of rights of the Constitutions of any of the original thirteen States. In some of them it is declared this far, that the jury shall be judges of the law and the fact as in other cases. What does that mean? It means simply that the jury shall declare guilty or not guilty upon the whole case, and they do it to-day in the ad, or other |ienalty, or forfeiture of honors, dignities, gooermit, and cite to the gentlemen of this Convention instances where unjust laws have been stayed from execu- tion, how the fierceness of public sentiment, and the tyranny of fanati- cism, have lost their sting in the jury box, until the people have time to rally and sweep them from the statute books. I do not think the cititen should be shielded from a just law, but, sir, who is to judge? For my part I prefer an honest jury instructed by an honest Judge. Why, sir, what is your law? Let it but once outrage justice, let it vio- late a natural right, let it run counter to the public conscience, and your preachers may preach, and your Judges may howl instructions until they arc hoarse, but no jury will ever convict. They have never done it. They have never done it even in this State; only in a few rare instances have they ever failed to uphold a wholesome enactment against the violator. ' These are my views, not as a lawyer, but they are my views as a citi- zen, standing upon the plane of a citizen and not upon the plane of that much abused professional man, the lawyer: and I appeal to you to maintain this clause as it stands. I have felt the cynicisms uttered here W those who are less skillcecting the oSicial conduct of men in a public capacity, or where the matter is proper for public information, the truth may always be given in evidence. I shall mention, lastly, the Act of Congress, of the fourteenth of July, seventeen hundred ancl ninety-eight, which pre- scribed penalties for certain specified libels upon the government of the United Slates, and allowed the truth to be given in evidence on every prosecution under that Act ; and it is worthy of notice, that the part of the Act allowing the truth to be given in evidence was declaratory, and thereby conveyed the sense of Congress, that such was already the exist- ing law. " These multiplied acts and declarations are the highest, the most sol- emn, and commanding authorities, that the State or the nation can pro- duce. They are generally the acts of the people themselves, when they came forward in their original character, to change the Constitution of the country, and to assert their indubitable rights. And it seems impos- sible that they could have s|X)ken with so much cxplicitnessand ener,jy, if they had intended nothing more than that restricted and slavish press, which niav not publish anything, true or false, that reflects on the character and administration of public men. Such is the English doc- trine of the liberty of the press.as asserted in Franklin's case. (Seealso Hawk., tit. Libels, 7.) A treatise on hereditary rights has been held a libel, although it contained no reflections upon any pnrt of the subsist- ing government. (Queen vs. Bedford, Str. 189; Gilbert's Rep. K. B. 297.) And if the theory of the prevailing doctrines in England (for even there it is now scarcely anything more than theory ), had been strictly put in practice with us, where would have been all those enlightened and manly discussions which prepared and matured the great events of our revolution, or which, in a more recent period, pointed out the weakness and folly of the Confederation, and roused the nation to throw it aside, and to erect a better government upon its ruins? They were, no doubt, libels upon the existing establishments, because they tended to defame them, and to expose them to the con- tempt and hatred of the people. They Were, however, libels founded ill truth, and dictated by worthy motives, "lam far from intending that these authorities mean, by the free- dom of the press, a press wholly beyond the reach of the law, for that would be emphatically Pandora's box, the source of every evil. And yet the house of delegates in Virginia, by their resolutioh of the seventh of January, eighteen hundred, and which appears to have been intended for the benefit and instruction of the Union, came forward as the advocates of a press to-day unshackled, and declare, in so many words, that ' the baneful tendency of the Sedition Act was but little dimin- ished by the privilege of giving in evidence the truth of the matter contained in political writings.' They seem also to consider it at the exercise of a i>ernicious influence, and as striking at the root of free discussion, to punish, even for a false and malicious writing, published with intent to defame those who administer the government. If this doctrine was to prevail, the press would become a pest, and destroy tn« public morals. Against such a commentary upon the freedom of the American press, I bej* leave to enter my protest. The founders of our government were too wise and too just, even to have intended, by the freedom of the press, a right to circulate falsehood as well as truth, or that the press should be the lawful vehicle of malicious defamation, or an engine for evil and designing men, to cherish, for mischievous pur- poses, sedition, irreligion and impurity. Such an abuse of the press would be incompatible with the existence and good order of civil society. The true rule of law is, that the intent and tendency of the publication is, in every instance, to be the substantial inquiry on the trial, and, that the truth is admissible in evidence, to explain that intent, and not in every instance to justify it, I adopt, in this case,aa perfectly correct, the comprehensive and accurate definition of one of the council at the bar (Oieneral llam'iUon), that the liberty of the prta consisted in the right to publish, with impunity, truth, with good motives, and for justifiable ends, whether it re^>eets government, magistracy, or individuals." The result was, Mr. Chairman, that the Judges disagreed, standing two and two, but the Legislature of the State of New York, on that day, had two bills before them. One was a bill framed bv the Council on Revision, and was supposed to be in favor of the freedom of the pre»; and that bill was lost by a large majority; anti almost immediately afterwards a bill concerning libel was introduced by Mr. Van Ness, which passed both bouses and became a law, in 1805. That Act is ai follows: ^ " Wbrbias, Doubts exists, whether, on the trial of an indictment or information for libel, the jury have a right to give their verdict on the whole matter in issue : "1. Be it therefore declared and enacted by ihe ptoplc of the State dj New York, represented in Senate and Assembly, That on every su^ indictment or information, the jury, who shall try the same, shall have a right to determine the law and the fact, under the direction of the Court." Under the direction of the Court, mark you, sir. "shall have a right to determine t^ law and the fact, under the direction of the Court, in like manner as in other criminal cases, and shall not be directed or required by the Court or Judge, before whom such indict- ment or information shall be tried, to find the defendant guilty, merely on the proof of the publication by tho defendant of the matter charged to be libelous, and of the sense ascribed thereto, in such indictment or Information; provided, nevertheless, thai nothing herein contained shill be held or taken to impair or destroy the right and privilege of the defendant to apply to the Court to have the judgment arrested, as hath heretofore been practiced. "2. And be it further declared and enacted, That in every prosecution for writing or publishing uny libel, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defense, the iruth of the matter contained in the publication charged as libelous; pnvidei always, that such evidence shall not be a justification, unless on the trial it shall be further made satisfactorily to appear that the matter charged as libelous, was published with good motives and for justifiable ends." Mr. Chairman, the Constitution of New York to-day has embodied in it a declaration substantially the same as that for which we are contend- ing here. I am not enamored of old things because they are old, nor am I an enemy of old things because they are old. This has been tried for a long period, and having been found beneficial, I think we should not change it. I contend that this is not the sort of a change which the people whom I represent sent me here to make. I do not believe that any change in this respect is required, and therefore I shall vote against the amendment. SPKKCB OF MR. JONES. Mr. JONES. Mr. Chairman : Notwithstanding the very able and very interesting arguments I have heard in support of the report of the committee, I cannot see that these arguments apply in this case. On the one hand the amendment is objected to because it tends to the pro- tection of the freedom of the press, and on the other hand it is objected to because it trammels the freedom of the press. Now, in regard to the objection that the amendment tends to the abridgment of the freedom of the press, I submit that there is nothing whatever in the amendment tending in that direction. It seems to have been treated here as though it was the first part of the section, which provides for the freedom of the press, which this amendment aims to strike out. It is merely the last clause which is proposed to be stricken out. The freedom of the press is fully guaranteed and provided for in both of the sections, to wnich this amendment does not apply at all, in thew«rds: " Every citisen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right," and " In all prosecutions for libel the truth may be given in evidence." We are not seekini to restrict the citizen from freely writing his sentiments, nor to prevent him Digitized . Nov. 7, 1878. OF THE CONSTITUTIONAL CONVENTION. 329 from giving the truth in evidence. The amendment does not do it — can not do it — but simply to strike out that clause, and put libel on,the same footing with every other crime. The amendment is simply to take away that provision which does not apply to other criminal prosecutions; to take away that provision declaring that in this particular class of crime —libels — the jury shall find upon the law and the fact. I cannot con- ceive how any gentleman can 6up)X)ae that this Hmendment in any way interferes with the freedom of the press, or prevents any person from freely writing or expressing his sentiments. It goes simply to this ques- tion : If your statutes define libel to be a crime, and define forgery to be a crime, and define various classes of malicious mischief to be a crime, ehall they be tried by one law, or some by one system and some by another? That is to say, shall the jury have the same right to decide the one as the other, the same rules of evidence, and the same method of trying the cases in one as in the other, or shall they not; shall certain ones lital, capital. The gentleman from San Francisco, where they have a great deal of money and not much land, thinks the evils of capital lie in landed estates, and I presume my friend. Colonel Barnes, is in favor of making every farmer give up half his land to the man who has none. And then, my friends,the farmers who have land and not much money, say that the people want the money of San Francisco cinched. Mr. BARNES. I am in favor of taxing that, too, right up to the handle. Mb. McFARL.\ND. I did not hear much about it in the gentle- man's speech. The gentleman from Los Angeles, Mr. Ayers, says the fear of the press is a most healthy sentiment in public life. Sir, that was a most unfortunate expression. That fear of the press is a most unfortunate thing. The best men in America have a fear of the public press. We see it everywhere, and if it does not show its head in this Convention, it is the only political body I ever saw in which it did not. I do not believe there is but one live American to-day who is entirely free from this fear, and he is traveling abroad. Mb. ayers. I said evil men have a fear of the press. Mr. McFARLAND. And who is to say who are evil men? You may consider a man evil whom I consider good. You may consider a man an evil man for ady^ating doctrines which do npt meet your views, and I may think the reverse. I have seen the best men in this country driven out of public life by the press, by utterly irresponsible charges, without any foundation in fact, crammed into the ears of the people, day after day, until finally they come to believe it. You may say that men can outlive it. You may outlive the itch or small-pox, but you will suffer in the meantime. Sir, men are outliving these charges now, but they are still under the ban of public suspicion. As this Convention knows, the best men of this country have been driven out of public life by an irresponsible, licentious press Mb. ayers. fielknap and Babcock, for instance. Mb. McFARLAND. Perhaps they were not bad men. Do you know that Belknap was a bad man? He' was charged with a public crime, and the whole power of the administration was used to punish him ; he was tried by men adverse to him in politics, and in a community where prejudice existed, and still he was acquitted. Mr. BARNES. I wish to put in a couple of counter-weights. I sug- gest Tweed and Tilden. • Mr. McFARLAND. As I said, he was tried before a jury comjwsod of men opposed to him politically, and the law officer of the government used his best endeavors to convict him, special counsel was employed, and yet he was acquitted. That is some answer to the charge. I am sorry that gentlemen have introduced party politics here to-day. Now, I understand the gentleman from Ban Francisco, Col. Barnes, to argue this, if anything, that the jury should be the judges of the law. in the case. Is not that it? I do not understand him to make any distinc- tion at all between any other class of crimes and libel. Via read authori- ties advocating the doctrine that the jury should have the right in all criminal cases to judge of the law and the fact. He read authorities to the effect that the jury in all cases should judge of the law and the fact. Now it is well understood that the jurj'is to determine the fact, and take the law from the Court. That is the law in every other case, every soli- tary case except libel. Now why should it not be the law in libel cases? Is there any reason for it. The gentleman talks about crushing the press. Who is ti-ying to cru^ the press. What more can they ask than this: "Every citizen may freely speak, write, and publish, his senti- ments, being responsible for the abuse of that right," is not that as much liberty as they want? Doesn't it give them all the liberty in the world ? How can they come here and ask to be put on some higher plane, more irresponsible position than that which is occupied by other men charged with crime. Why, sir, go back to England. Why, the public press was first started in England at the expense of the g«remment. It was con- sidered and held as an agency, subject to the government. They could not publish anvthing except with the permission of the government. "There is no suet state of things here. What constitutes the government here? It is not the crowned heads. There the people have no voice in the government, and the Courts and judges are the creatures of the Crown. Here the government is the agency of the people themselves, and our Courts are the creatures of the people, responsible to the iwople. Government is an agency created by the people themselves, and there is nothing to fear from the Courts. I am rejoiced that my learned friend from San Francisco has read so many authorities to show the infamous political character of judges, and he then closed his speech with a eulo- gium upon lawyers, from among whom the judges are selected. Now, I say t&e only question here is this: Shall men charjjed with libel stand on the same plane as other men charged with crime? If not, why not? Why should there be any exception? Why should there be any immunity granted to one class of crime over another? I say they should have no such immunity. Every man knows their g)wer. They have more power than an^ other class in the State, very man knows the power of the newspapers. When you run a paper it costs no more to print one thing than another. It costs no more to print a libel than it does to print an article on the price of potatoes. Then, how are you going to defend yourselves against these attacks? Can you talk to the people as cheaply as the paper can? Can you go around where the paper circulates and see and talk to every man who reads it? It is utterly impossible. If you write a communi- cation, the chances are they will not publLsh it for you. Then how are you gqing to fight the papers? They are the most powerful agencies in the land, and they should not ask for these special privileges wliich other men do not have. My eloquent friend from San Francisco, Colonel Barnes, might stump the State from one end to the other for two years, and yet, with all his eloquence, he could not reach one half of tfie j)eople who had read the paper. There is no defense against the Digitized . ^ 330 DEBATES AND PROCEEDINGS Thursday, paper. Even when a man is accused of some crime, and is cleared by a jury, the paper comes out the next day and says that be was white- washed. [Laughter.] Now, with all this power in their hands, gen- tlemen want to give them these special privileges. It is unreasonable and unjust. I do not desire to make any attacks upon the press. I simply want nowsj>a]>er libelers to stand before a jury just where every other man must stand when he is accused of crime. . Mk. van dyke. 1 move that the committee now rise, report progress, and ask leave to sit again. Lost. Thr chairman. The question is on the amendment of the gen- tleman from Sacramento, Mr. McFarland. Division being called for, the Chairman declared the ametidment lost by a two thirds majority, without counting. Mb. FAWCETT. I nave an amendment to offer. THK COMUITTKE RI8I.S. Me. SMITH of Kern. Mr. Chairman: I move that the Committee now rise, report progress, and ask leave to sit again. The motion prevailed. And the Convention took a recess until two o'clock p. u. AFTERNOON SESSION. The Convention reassembled at two o'clock r. u., President Hoge in the chair. Roll called and a quorum present. THE LAW or LIBBL CASKS. Mr. van dyke. Mr. President: I move that the Convention resolve itself into Committee of the Wliole, the President in the chair, for the purpose of further considering the report of the Committee on Preamble and Bill of Rights. Carried. IN COMMITTEE OF THE WHOLE. Mb. FAWCETT. Mr. Chairman : I send up an amendment which I desire to offer. • The SECRETARY read : " Strike out the words ■ and the jury shall liave the right to determine the law and the fact' from the last two lines, and insert the following: ' and the jury shall have the right to find a general verdict as in other criminal cases.' " SPEECH OP UK. FAWCETT. Mr. FAWCETT. Mr. Chairman : In order to understand the purpose and scope of the proposed amendment, it will be pro|)er, perhaps, to go back a little for the purpose of inquiring into and ascertaining the facts and reasons which led to the Constitutional provision as it has existed heretofore. At English common law, as it was originally declared, the functions of the^ury and of the Court were separated by a clear and distinct line. In all criminal prosecutions in English jurisprudence, I belie ve, at the common law, as it was final ly crystalized and declared, and as it finally assumed a well defined shape, juries were empowered to declare and find tipon all the issues submitted to them in the form of a general verdict of^ " guilty " or "not guilty." This, I think, was the case in all criminal prosecutions. In no case, as the common law finally assumed shape, if I recollect aright, was the jury limited to the duty of finding specntlly and solely upon the facts of the case by a verdict in the form of a special findiug. In all cases jmder the instructions of the Court or Judge, the jury had the final j) )H\' • of deciding for themselves questions of law and fact by finding a general verdict of " guilty " or " not guilty," which necessarily embraced all that there was in the case. But, about the middle of the last century, in the expanding freedom of the English people, periodicals and newspapers began to assume the privilege of criticising the Government of England in its various agencies and officers. This tendency, this assertion of liberty upon the part of the people soon grew to be exceedingly distasteful to the British officials, to the Crown, and the Courts, perhaps, and to others whom the press and the publishers were in the habit of attacking. So that about the year seventeen hundred and fiftv, the Courts of Great Britain in which prosecutions for libel were urgedi, began to arrogate to themselves the power of directing special verdicts from juries on prosecutions for liljel. That is to say, the Courts or Judges claimed the right to decide whether or not a publication was libelous on its face, and leave the jury the single question as to the fact of the publication by tlie defend- ant. The Courts Ijcgan to direct and did direct juries to limit their verdicts to a special finding as to the fact of pulilication, taking from them the right, which up to that time had been exercised in all criminal cases, to cover all the issues in the case, both of law and fact, by a general verdict of "guilty " or "not guilty." In the case of Wurt — an unwarrantable infringement upon the course of the common law, taking away from the common law jury one of the functions which it had invariably discharged in criminal cases, with the single exception of a prosecution' for libel. The evil to bo cured was the restoration to the jury of the power to pass generally by a verdict of "guilty" or "not guilty" upon all the issues embraced within the indictment; not to give them any greater power, not to extend their power one iota over that which was exercised habitually in other criminal cases, but simply to put a prosecution for libel upon exactly tlie same plane and sune footing that prosecutions for the violation of other criminal, laws occu- pied. It was a return to the ancient landmarks alone, and vindicated the power that the jury exercised in all other cases. It was not to con- fer additional powers upon the jury, and not to interpose any other rule in a libel ca.se than that which was habitually interposed in all criminal prosecutions. That law. declared, in fact, that " the jury may give a ^neral verdict of 'guilty ' or 'not guilty' upon the whole matter put in issue upon indictment or information, ana shall not be required or directed by the Court or Judge before whom it shall be tried to find the defendant guilty merely on the proof of the publication of the paper charged to oe a libel, and of the sense ascribed to the same in the indict- ment or information. Provided, that on every such trial the Court or Judge before whom it shall be tried, according to their discretion, give their ojiinion and direction to the jury on the matter in issue, in hke manner as in other criminal cases." So that the effe<'t of that legislation was not to take away from the Jud^e the power to charge the jurj- upon questions of law, and to make the jury the ultimate and exclusive judges of questions of law, but simply to allow them to find a general verdict of '• guilty" or not " guilty," which embracerovision, and that is with regard to the jury, and what it has a right to do. Now we find that it is stated plainly that " in all criminal prosecutions for libels, the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted." That all appears to bo strictly right. No one appears to find any fault with that, but when it comes to the last clause, •' and the jury shall have the right to determine the law and the fact," the apprehension appears to exist that the jury can create law, can form law to act upon. There is no such thing. They can determine the law and the fact. They are to deter- mine both. It does not mean that they create law or that they create fact in the ofse, but they are there given the opportunity to judge and the widest range in order to protect freedom of speech and the freedom of the press. Now, Mr. Chairman, I do not intend at present, as so much has been said about antiquity and law and prestige and former things, to dwell upon anything of the kind, even if I were able, for I am under the impression that we are not under obligation here in this body to respect or regard as sacred, short breeches and knee buckles, which were worn by traitors as well as good men, but that every question comes before this body upon \th merits. Taking that view of the subject I shall cer- tainly vote against the amendment. RKMARKS or UR. TKR^Y. Mr. terry. Mr. Chairman : I did not intend to offer any remarks upon this question, but I desire to give the reason why I think the amendment offered by the gentleman from Santa Barbara, Judge Faw- cett, should not be adopted. The principal reason is that the clause as it stands has been construed. It has been a part of the Constitution for nearly thirty years. If we amend it now by striking out the provis- ion that the jury may judge of the law and the fact, will not the . presumption arise upon the construction of the section as passed by this Convention, thot it was the intention of the Convention to change the rule? That having striken out a provision giving the jury the right to determine the law and the fact, tnat therefore it was the intention of this Convention, and the Constitution must be construed as having been intended — to restore the rule contended for by the common law Judges, ' that the judge should determine the law and the jury the fact. Now, of what benefit would be the privilege to render a general verdict upon a construction of the law like that? We might have as many decisions as there are District Judges. Every Judge would construe the low for himself. The questions of law and fact in proscctitiuns of this kind are not separate as they are in other cases. It is difficult to tell where the question of fact ceases and the question of law begins. It is not sufficient in this prosecution to prove the truth in this case. If it were, there would be no difficulty. But, it is not sufficient lo show that the fact is true. You must go farther and show the motives were- good and the end justifiable. Now, the fact as to whether the ends were justifiable or not is a question of law. As to what ends will justify the speaking of slanderous words, even though true, is always a question of law as to whether it was a privileged communication. I have no right to speak about a private citizen if it reflects upon his character. But if he is a candidate fur office, or if he is applying for a position uf trust, and a man comes to me and asks me about his character, then I have a right to tell the truth about him and the communication is privileged. But it is always a question of law as to whether it is privileged or not. Take the case of a man prosecuted for libel. The question seems to be argued here as if newspaper publishers were the only persons ever prosecuted for libel. To be sure they are more likely to be. It applies as well to the individual as to the publisher of a newspaper, and the question arises first whether it is true. Then the question arises was the publication made with good motives and for justifiablcende. That is a question of law. What is to hinder the Judge from telling the jury, " I instruct you, as matter of law, that the ends of this publica- tion were not justifiable. All you have got to do, gentlemen, is to vote whether this man published the thing or not. I instruct you that these words are libelous. I instruct you that the motives are not good or the end justifiable." What is the jury going to do in a general verdict, if it pays any attention at all to the instructions of the Court, although the words be true ? If the law stands as it now is the jury in considering the law might determine that the motives' were justifiable and proper; that it was right that the publication should be made. The danger in striking out the words as they now stand is, that it would justify the (!!ourts in con- cluding that they were stricken out with the intention of giving that '; lestion to the Courts instead of the jury. I hope that the section will be allowed to stand as it has stood in the Constitution since eighteen hundred and forty-nine. We have never heard any complaint against it nniil the amendment was proposed yesterday. It is understood that the juries are to determine the fact and the law. To be sure in all criminal coses thev detennine the fact and law when they return a gnneral verdict. ]3ut if this change is mode the defendant in a lilwl case would be worse off than any other criminal, for the reason that the ■ Digitized u ^ 332 DEBATES AND PROCEEDINGS Thuesday, Court would have the right to consider that the change of this section was intended to give the law to the Court and the facta to the jury, and that the jury would only determine the facts. That is not the rule now, A distinguished judge in charging the jury informed them that they were not bound by the instructions of the Court. He said that the Court is a sort of a thirteenth juror. lie has more experience and gives his opinion upon these matters, and the jury may give them just the importance that they think they merit, but the decision of the question rests with them. That is where it should be left. The Court may advise the jury if it pleases. The Constitution places it with the jury in all cases, as it ought to be, because it is not at all likely that juries would oppress any defendant; and it might and does frequently hapi>eu that Courts do undertake by strained rules of law to throw obstacles in the way of a free expression of opinion either by publication or ^y word of mouth. SPKRCR OP MR. BALE. Me. hale. Mr. Chairman : I desire to make one or two suggestions, but before I do so I would ask the Secretary to read the amendment offered by Judge Fawcett. The SECRETARY read : "Strike out the wofds 'and the jury shall have the right to deterraiue the law and the fact' from the last two lines, and insert the following; ■ and the jury shall have the right to find a general verdiet as in other criminal cases.'" Mb. hale. Mr. Chairman : In reply to the suggestion made here by the gentleman from San Joaquin, jfr. Terry, if I have understood him correctly, his objections to the amendments are covered by these two points: First, the danger of a misconstruction of the rule applica- ble to libel cases if the amendment prevails; and, second, that there is no practical danger in allowing the jury in all cases of this description, as provided in the section coming from the committee, to find both the law and the fact. The proposed amendment subjects cases of libel to the same rule that, is established and in force In all other criminal cases. If, then, there be ground for comj>laint, it Is in the application of that general rule, else it does not exist. As to the second point, that it is always safe to leave to the jury in this class of cases to determine the law as well as the fact, I have listened very patiently and I may say anxiously, to hear some good reason, if it exists, whv this departure should be sanctioned in this case, when wc so persistently refuse to apply it to any other case. If a gcKid reason has been given, I have not heard it. Now, it seems to me that there is one view that I have not heard taken here that posses.'cs much force. It is this: it would soem here from the argument made on Wednesday, and apparently conwdcd on the other side, that this rule is invoked for the benefit of defendants on trial, and that it may have no pernicious application otherwise. Right here, it seems me, is the defect in the argument. Let us see now what this rule is, as it stands, and if this amendment docs not prevail, will go into the Constitution. Bear in mind the general rule that a State Con- stitution is a limitation of power. We, of course, are all familiar with the distinction between the limits of a State Constitution and that of the Federal tioveniment. The latter comprises a grant of power, and the powers of the government constituted under it cannot transcend this grant and those impliedly granted to carry them into effect; whereas, It has been unifornJIy held that the Legislature of a State or State Gov- ernment is clothed with all governmental powers, except as they are restrained by the Federal Constitution first, and second \fy the State Constitution. Therefore, the primal object of the St;ite Constitution is a limitation upon the powers of the Stulc (loverument. Tnie, it has an office further to regulate the organization, but after the organism of the State Government is provided for, almost the whole object of a State Constitution is to place a limitation upon the powers of the various departments. I apprehend this view will not be controverted. Now, then, taking this provision in its entirety, it is a departure from this general rule. For instance, we have not held, nor have other Consti- tutional Conventions deemed it nece.«sar^ in Constitutions to provide a rule by which Courts and juries shall arrive at the conclusions on which judgments arc made to rest. These matters are ordinarily left to the law to determine and for the Courts to administer. Departing from this rule, however, we say: "Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press." That is all well enough, except that we might stUl find this expression in law instead of Constitutional enact- ment. Here comes the rule. Here is the departure, contained in the next clause. Here in the Constitution wc propose to enact a libel law. We say : " In all criminal prosecutions for libels the truth may be given in evi- dence to the jury, and if it shall appear to the jury that the matter oharged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact." Now then, we understand, historically speakinjj, why this provision finds its way into our Constitution, as indeed it has into the Constitutions of other States. Its true history is only to be readily comprehended when you understand the relation between the Crown and the subject in the early, or comparatively earlv, part of the English history. It was made first an English statute. It grew out of a great struggle in the Courts. It was established for the purpose of maintaining the subject against the oppression of the Crown, its magistrates, and its Courts. Its history is familiar to every student. It need not be repeated here. We have imported it, and it may possibly have had some useful office some- time within these United States. None at present occurs to me, as a matter of history. But to recur : As I have said, we have proposed here to enact a libel law. The old rule was, the greater the truth the greater the libel. This enactment Is for the purpose of repealing that old rule. Again, it was not permitted for a man to defend himself upon a charge of libel by showing, in addition to evidence of its truth, that It was done without malice, or for justifiable ends, or for good purposes. The quea- tion was, was it libelous; was it injurious; did it tend to a breach o/ths peace ? Now, perhaps that will be well enough. So far as I am con- cerned, I do not complain of it, except that it has no place in the Con- stitution. Now we c«rae to the last clause: "The jury shall have the right to determine the law and the fact." Why, I beg to know, shall the jarj determine the law and the fact in this case more than in any other crimi- nal cose ? As I have said the argument has proceeded upon the as^umj^- tlon, and I think a false one too, that this provision only can work to the benefit of the defendant. Let us see how that is. In the first place this amendment proposes to subordinate this to the common rule applicable to other criminal cases. The jury shall have power to render a geaenil verdict just as in other criminal cases. Suppose a defendant to be on trial for any crime. The jury are sworn not to find a verdict according to the law; .not to render a verdict according to the law, but to renders true verdict according to the evidence. That is the law. That is the oath itdministered to the jury , both in England and in America. I think there is no departure from that. The jury are sworn to render* tme verdict according to the evidence. Now then a man is on trial for mur- der. How does It proceed? The witnesses are examlaed. The jury hear the testimony. The Court, after the argument of counsel, Instructs the jury as to the law of the case, and they are usually told that it ia their province to determine the facta; they are the judges of the credi- bility of witnesses and weight of- testimony, and from the conslderstlon of both they are to determine the fact; that the law of the case will be given them by the Court and they are obligated to take the law as given by the Court. Well, some juries, notwithstanding that, find the fsctsto suit themselves and they apply the law to suit themselves, and we wlU assume they render a verdict: "We, the jury, find the defendant not guiltv." Suppose the Court and the District Attorney both know that the jury has disregarded the law of the case as given by the Court. What remedy have you got? Neither in England nor America, nor in any Stale ofthis Union, have yougotanypowertoreviewthatdeclsion. Theverdict of a jury being once for the defendant, he stands acquitted. What is the result. " Why the jury have had the power, and they have exercised It, of not only finding the fact, but they have determined the law and the; have made It final and conclusive forever by their verdict. There is no appeal, no remedy. Whether the case be libel or murder that rule obtains uniformly. There are no exceptions to it So that in all cases, whenever the verdict is a verdict of acquittal, the jury have found the law and the fact and they have found them conclusively, so that if there be any rea.son why a different rule should prevail in this as distinguished from other cases, they get the benefit of it through the force of that sim- ple practice or rule. Let us take the other side of the case. It will not do to suppose that juries may never depart from the plain instructions except for the bene- fit of the defendant. It has happened, and may happen again, that men may be charged with the crime of libel, when, Ujwn the law as contained In this clause of the Constitution — that is to say, that the matter charged as libelous has been proven to be true, and that it has been done with- out malice and for justifiable ends — the jury may say : " Damn this fel- low; wc will convict him any way." Juries sometimes render unjust verdicts for conviction as well as for acquittal. It is not always that prejudice has spoken for the acquittal of guilty men. Sometimes It shows itself for the conviction of innocent men, and as it may be the former so may it be the latter. Now let me see how this rule will apply In that sort of a case. Recollect you have put Into the Constitution that in a libel case, if you prove that the matter charged as libelous In time, that it was published with good motives and for justifiable ends; that as s matter of law — as a matter of Constitutional law — constitutes a com- plete legal vindication and entitles the defendant to an acquittal at the hands of the jury. But, as you have said that the jury may determine the law and the fact, the jury take it into their heads that, notwithstand- ing this rule of Constitutional law, they will convict him, although the matter charged as libelous was true and was published with ^ood motives and for justifiable ends. Now the defendant has been convicted and is sufTering the pains and penalties of the Jaw. He naturally asks: " What remedy have I got 7 I have clearly pmven to this jury tb«t what I charged istrue— thatit wasdone with good motives and for josli- fiable ends." But he is at once pointed to this clause in the Constitu- tion, which says that the jury are judgesalikeof the law and of the fact, and they have reversed the law of the Constitution and found you guilt.' and you are remediless forever. Will any gentleman on this floor tell me what remedy that man has got? The jury have the power to define or determine the law, and determine therefore against the Constitution as well as for it. They have found the man guilty when he is shown to be innocent, and in place of a remedy he is told that the jury are the only arbiters, and having determined against him he hasnoremedv- Suppose he make an appeal to the Supreme Court. That (Jourt would be compelled to answer : " My dear sir, the jury was authorlied in this case — a solitary exception in the law — to determine the law, and, having determined it against the law of the Constitution, you must stand the consequences." If there be any answer to this — if there be any remedy for that man — I confess that I am not lawyer enough to see where he is going to find it. Why not, in' view of such a contingency, subject this to the same common "rule applicable to other criminal cases, so that if » jury find a party guilty and If he can show to the Supreme Court on review that there has been a misapprehension or a misapplication of the law, he can have a reversal of that judgment and have a new and a fair trial ? Why not subject it to a rule that has been found so uiiifonn and just and fair in its operation ? I submitthat no injury can come; no chance of misconstruction can arise ; for if it is safe to apply this rule to the one case, it is to the other. Digitized by Google J Nov. 7, 1878. OF THE CONSTITUTIONAL CONVENTION. 333 RIMARKS OP MR. JOHNSON. Mr. JOHNSOX. Mr. Chairman : I don't propose to detain this com- mittee by a very lone argument. I will be aa concise as I can, but I wiih merely to state the reasons which will influence my vote. My vote on the pending question will be controlled by the central idea of ttnifbrmitr. In all criminal provisions, especially the boundary line between the province of the Judge «nd that of the jury should be the same, and no one class of citizens should be protectM above any other class. If I thought that the proper liberties of the press would be restricted by the proposed amendment of the gentlemen from Santa Barbara, I should certainly vote against it. But I propose to act here a> consistently as I can, upon the various propositions wnicb may come before this committee or the Convention. I believe the great palladium of our liberties is a free and untrammeled press. I have no sympathy with that sentiment which we find in the response of Sir William Berkeley, a Colonial Governor of Virginia, to the Commissioners of Foreign Plantations in London, when he says: " I thank God there are no free schools, nor printing, and I hope we ■hall not have these hundred years; for learning has brought dis- obedience into the world, and printing has drrulged them and libels against the best government. God keep us from both." But in this sentiment of that fiery adherent of Charles, and opposer of Cromwell, we find some of the early jealousy of the printing press, and fear that it would brine the government into ridicule and contempt. A hundred years later on this subject we find the contestants in hostile array, Mansfield crippling the power of the jury and adjudicating in favor of the prerogative, while Junius maintained, and rightfully too, that it was the law of England that a iury could render a general ver- dict in every criminal case; Mansfield maintaining in effect that the jury should render a special verdict, while the Court should decide the law and the ^lilt; Junius maintaining that the verdict of guilty or not guilty exclusively and entirely belonged to the'jury. Whnever the writer of these fiery phillipics may nave been, be deserves the grateful homage of every freeman for his vigorous maintenance of the spirit of the early common law. But the circumstances here are different. Let us look at the reason of the thing, and I think the logic is decidedly in favor of the amend- ment. In the fir^t place the star chamber exercised a censorship over the press. The Long Parliament abolished the star chamber, ami proceeded to exercise the same censorship that the star chamber had previously exercised. In sixteen hundred and eighty-eight, when the Bill of Rights was passed during the reign of William and Mary, what is most remarkable, there is not one word said about the freedom of the press. Then up to that time, as far as the English press was concerned, the free- dom of the press stood entirely upon a negative ground. There was no iffirmation on the subject. Is that so here, sir? I imagine not. I read here in the report of the Committee : " Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law •hall be passed to restrain or abridge the liberty of speech or of the press," etc. That constitutes a portion of our Bill of Rights. England had no such thing. She had no such Bill of Rights. So we have our guard against any infringements of the rights of the press. In the Woodfall case, which came up before Lord Mansfield during the reign of George the Third, Lord Mansfield instructed the jury that " the pribting ancT sense of the paper were alone what the jury had to consider of, and if the paper should really contain no breach of the law, that was a matter which might afterwanis be moved in arrest of judg- ment." The judges and lawyers for the most part, in those times, claimed that the province of the jury was only to determine the fact of publication, and whether the innuendoes were properly made out ; that is to say, whether the libel meant what it was alleged in the indictment to mean, but that it was a question of law for the court to decide, whether such meaning was criminal or innocent. It was admitted that the jury might acquit, but it was claimed that they violated their oath if they rejected the opinion of the judge b^ whom they were to be guided as to the general law. Others maintamed that the jury could determine the defendant's guilt or innocence according to the nature and circum- stances of the publication. The decision in King vs. Woodfall caused Junius to thunder over England— from one end of it to the other — that the decision of Lord Mansfield was not the law of England. Fox followed in the wake of Junius, and in 1792 the Fox Libel Bill was passed. It declares the right of the jur^ to find a general verdict upon the whole matter, which includes the guilty or innocent intention of^ the publication. "That was a right which was against the opinion of Mansfield. Now, sir, some have argued that this bill did not give the jury the right to determine the law, while others have argued just the reverse, that inasmuch as the jury bad the right to render a general verdict as in other cases, it might be construed that they bad a right to pass upon the law. But I argue that it was simply to pass upon the facts, the innocent or guilty intention being one of the facts, and that the instruc- tions of the Court were still binding. But say it was otherwise. I should have voted for that Act of Parliament. Why so? Because England had no Bill of Rightson this subject, and if she nad had one, the Paniament could have repealed it. "Rut that reason does not apply here. We have our Bill of Rights on this subject. In the absence of any Bill of Rights, I should say that if the previous law had been con- •tnied in effect so as to authorize a jury to return a special verdict only, or a general verdict according to the opinion of the Judge, I weald have supported that Fox Libel Bill, so that the jury might ren- der a general verdict, and decide the law in so doing. Some immuni- ties should be thrown around the citizen in arbitrary times, when he is placed at disadvantage, and the Government occupies the vantage ground. The law might be repealed, so might the Constitution of the realm, but for the time being the Judges were to act under it and be its expositors. There is no contest in this country, aa there was in England, between the liberty of the citizen and prerogative. Why should a jury here pass upon the law in a case of libel, any more than in a case of mur- Uer? 1 cannot see the distinction. The law in either case should be given to the jury by the Court, and under th* instructions of the Court the jury should render their verdict on all the facts in the cose. This is the uniformity which should prevail in the administration and con- struction of the penal laws. If the Government was arbitrary and encroaching, and the Judges of our Courts its subsidized tools; if there was danger that the rights of the people would be subverted by over- weening judicial power, it might be someargumcntthatthe jury should be a law unto themselves. So it might be proper if our position was the position of England in 1792. But the Bill of Rights in our Consti- tution impends, like the sword of Damocles, over any aggression on the freedom of the press. There is another thought which I wish to suggest. We have beard this jury system derided heretofore by gentlemen of this committee. I have, in my feeble way, endeavored to say something for it; but while I have maintained that the jury are the proper and oest judges of the facts, I have never taken the position — and never will take the posi- sitiou — that they are (he proper and best judges of the law. And I ask those gentlemen who have voted heretofore in favor of the abridgement of the jury or a curtailment of its powers, if, after having taken that position, they are now ready to reverse arms and say that iLe jury shall not only judge the facts, but they shall also judge the law in one ease — in the cose of libel — only. Suppose the jury were to abuse the privilege; who shall guard themt Admit that they are guardians; but who snail guard the guardians? Who shall watch the watchmen? Who shall take into custody the custodians? I say that the learned Judge who is to administer the law in all other cases should be the custodian of that power, under the solemnities of his oath and the accountability for his acts which this Constitution will secure. I do not believe in allowing a jury of twelve men in one particular and exceptional case to say what is the law of this great State. It would depend upon the social status of these twelve men, the locality where they happen to live, their intelligence, or the want of it, their preju- dices; and thus the law, as administered, would vary in different neighborhoods. 'There ought to be some power which would secure something like uniformity to this freedom of the press. I was much pleased with the effort of the distinguished gentleman from San Francisco. He made an elaborate argument; but it seems to me it must have been apparent to this committee that there was a great deal of artistic grouping for effect. I vote, therefore, in favor of the proposition of the gentleman from Santa Barbara. His amendment assures a general verdict of the jury. .And, with all due deference to the Judiciary Committee and its learned chair- man, I think that the logic and weight of the argument is in favor of this amendment. At any rato, I am not willing, although I am in favor of all possible freedom of the press, to see the symmetry of our work marred by exceptional provisions, when there is no occasion. ABOCMENT OF UR. CROSS. Mr. cross. Mr. Chairman : This question is one which, it seems to me, deserves all the consideration that it has received at the hands of this Convention, and if there is any subject which invites discussion and consideration, that at least this is one of them. Now in this matter of libel, there is something more at stake than the mere individual who is accused of injuring or who claims to be injured by the libel. "There are a great number of cases in which a prosecution for libel arises in which the conduct of some official is attacked. Now 1ft us see for a moment what the result may be with the changes which have already been made and the change which this last amendment proposes. We have already in a sense concluded that this Constitution, when adoptod, shall have this provision : that a prosecution for libel may take place with- out a grand jury ever having found a bill ; or in fact that one man may determine as to whether or not, any man shall be prosecuted on a charge of libel ; and the discussion here vesterday and the day before indicated that the man upon whom the decision of this question should rest, should be the Judge of the Court. Now we have taken another step in advance, and that is that in this class of cases, being a class not amount- ing to felony, that the accused shall not have the protection even of a unanimous verdict, but shall be subject to be punished for an offense of this character by the concurrence of three fourths of a jurjr. Now, Mr. Choirman, what further have we had decided inthisState? We have had it decided that a paper published in San Francisco and distributed throughout the entire State, if it contains matter claimed to be libelous, the libel may be prosecuted in any county of the State where the paper is circulated. Now, is it unreasonable to suppose that if some man high in public position in this State should nave had something said about him by some paper that he disliked, which might be true or false, that he could find somewhere, in the numerous counties of the State, a Judge who would agree with him in the proposition that that publication was injurious to his character. He might wander the State over and hunt through all thejudges for his Judge, and may bring the charge even without an indictment. Having had the mon prop- erly informed against, he may have him brought to trial before that same Judge; and having brought him to trial, what then? A unani- mous verdict is not required, but only a three fourths verdict — the mere dictum of nine men out of twelve. Is that all? No. This Digitized by Google 334 DEBATES AND PROCEEDINGS THUESDAt, amendment as proposed will provide, that in this great range of cases where one man may speak or write ill of another, the Judge shall have the right to decide what particular words spoken or published shuti amount to a defamation of character or constitute a libcl. With the changes proposed a man has one chance. It is a chance of himself against the Judge from first to last. It is the rights of one man in the hands of another one man. And now, if from first to last of this whole proceeding he has been in the hands of the Court, in the hands of an unjust Judge — and I regrot to say that sometimes men do find them- selves in such a position — then what chance is there for him? From first to last this Judge has ruled against this man's rights, and yet be is in that class of cases in which tliero is no appeal ; and in a class of cases which concern not merely the interests of a private individual, but which concern the interests of the people of our State. If the gen- tlemen ask why one manner of procedure should be adopted in one class of criminal cases, and a different one be adopted in this particular class, I pretend to say that the experience of the last eighty or one hun- dred years has affirmed the wisdom of such a provision. If the gen- tlemen say that the time was when such provisions were necessary, but that that time is not to-day, let me remind them that we make not a Constitution for a day. We make a Constitution, perhaps, for fifty or one hundred years, and no man can say whether or not this Constitu- tion shall not prove a shield, not merely to the people of to-day, but whether or not it may not prove a shield and protection to generations yet to come ; and that before it has ceased to be tlie Constitution of the State of California it may be a blessing and protection at one time to ten millions of people. Let us not forget that as to the rights of men and as to the contests between the powerful and the weak, that history repeats itself, and that as our State grows rich, and great, and strong, the same questions which presented themselves in the days of Woodfall and of Junius may be the very same questions with a different coloring, which shall appear in Congress and in this very building. It is due to ourselves that in this matter which involves the liberty of the press, we should be very careful. It is not merely an ordinary type of crime. It deals with that which is our only real safeguard. Now we have done away with the Grand Jury, for I claim that is the result of the provision we have adopted: we nave broken down the essence of the petit jurjr, and to-day we pro- pose to do away with the old law of libel. If, in one se&sion of the Constitutional Convention, we should succeed in sweeping away these three grandest barriers of liberty, then shall we have done more iniquity than I hope any other Ixxly of men will ever do in this State. SPKKCH or MR. UCCALLCU. Mr. McCALLUM. Mr. Chairman : In what I have to say I shall endeavor to avoid the repetition of anything which has been said, and to refer in the first place to the provisions of some Constitutions which I believe have not b«en introduced. The fact has been shown that in two thirds of the States of the Union the language that is in our Con- stitution does not occur. It was shown by the gentleman from Los Angeles, on the other side, that in ten States of this Union that lan- guage does occur. I propose to read very briefly as to six out of the other eight — and I have not referred to the other two, which would make the number complete — to show that in six other Constitutions a provision like that offered by the gentleman from Santa Barbara, Judge Fawcett, has been adopted. Ill the State of Connecticut the qualifying words are : '• Under the direction of the Court." That is, " the jury shall have the right to determine the law and the fact under the direc- tion of the Ourt." In Missouri, also. In Tennessee the provision is : "And in all indictments for libel the jury shall have a right to deter- mine the law and the facts, under the direction of the Court, as in other criminal cases." In Kentucky and Texas the provision is : "And in all indictments for libel the jury shall have the right to determine the law and the facts, under the direction of the Court, as in other cases." In Maine they have this peculiar provision : " And in all indictments for libels the jury, after having received the direction of the Court, shall have»a right to determine, at their discretion, the law and the fact." The amendment ofl^red by the gentleman from Santa Barbara is sub- stantially the same as I had drawn up, and it seemed to me to be so much better than either of these various qualifying phrases, and strik- ing out the very reason of the original provision in what is called the Fox Libel Act, that it occurred to me at once that the Convention would certainly be disposed to adopt that as an amendment to the section as it now stands in our Constitution. "The jury shall have the riglit to return a general verdict In all cases of libel." It has been shown, and I will not repeat it, but merely allude to it, that in England the jury was allowed only to return a special verdict, and that was as to the simple fact of publication. Take the language of the section : " In all criminal prosecutions for libels, the writ may oe given in evidence to the jury, and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted." Is there a quest ion of fact that can arise in the case that Is not there specially stated shall bedecidevision of the Constitution, which gives him the right to personal securitv, is to be construed to mean that he shall have penxmal security as to cliaracter as well as to person, and that he nuv defend his character to the same extent that he does bis person, and that the unwritten law will acqnit him before his countrymen. The gentle- man says there is a vast difference between these crimes. 1 admit it. The ^atest philosopher, perhaps as well as the acknowledged gre»l«* ix)et m our language, has expressed that difference very well when he said : " He who steals my purse, steals trash ; but he who filches from me my good name, robs me of that which naught enriches him and makes me poor indeed." The gentleman from the First District, Mr. Barnes, says he prefen in honest jury instructed by an honest Court, and he has given ua some instances where It soeins there was not an honest Court. I do not know what conclusions he means to draw from these premises. I do not understand it. I am aware that there h»ve been political parties who have denounced all th; Courts as corrupt. I suppose he is not prepared to go so far. Then another gentleman from the First District nas lesd something, in which I was very much interested, from a most celebrated case, showing the great value of this llbertv of the prees and how thst the truth should bo given in evidence, and how if it should appear to the jury that it was published for justifiable motive? the party shouW be acquitted ; but that nos nothing to do with the question as to whether the Court should instruct the jury as to questions of law, and thst ii the important point before us. Now, Mr. President, lot us make the application of the rule here at it is contended for, and how any gentleman claiming simple justice an ask it I cannot comprehend. The defendant is interested in having the C-ourt ^ve the law as well as the plaintiff— the State. Suppose s case. There is proof of a gross libel having been published, but there Is no legal proof that it is published In the county where the proeecation i> had. The Court says to the jury : " Gentlemen, it is necessary in order to maintain this case and convict the defendant that there should be proof of publication in this county." The jut-y, as they may be some- times, and are sometimes governed by their feelings, think It would not be very wrong to punish the defendant anj^how, and they return a Digitized by Coogle Nov. 7, 1878. OF THE CONSTITUTIONAL CONVENTION. 335 Terdict of guilty in that case. Now, I want to ask the legal gentlemen how this man who has been illegallr convicted, unjustly convicted, is to avoid the penalty in that case ? His counsel moves for a new trial. The Court answers that the jury under the Constitution as it is are the judges of the law and the fact. Plainly he must suffer the penalty under the law as it is. These questions are clearly of law. No qliestion of bet at all ; that is, where there is no testimony at all upon that point. Again, somebody in moments of maliciousness writes an infamous libel and puts it in his desk. Somebody looking through his desk finds this paper. He shows it to the person against whom it was written and he prosecutes for libel. The Court says to the jury : " Gentlemen, this was not published." The jury think that although it was not he ought to be punished anyhow. As a gentleman said to me in discussing this point before the meeting this afternoon : "A man that would think such a thing ought to be punisned for thinking it." The jury find the defend- ant guilty and the counsel addresses the Court and moves for a new trial, lie answer is that, though there was no evidence of the publica- tion the jury is the judge of the law and the fact. .The gentleman from San Joaquin speaks of the law with reference to the two propositions, as to whether a libel is true and whether it is pablished for justifiable purposes. I submit that there never has been known a case in the history of the State where if a publication was proved to be true it has not been deemed to be published for justifiable motives. As to these illustrations of what might happen I will cite a case \^ith which we are all familiar, and I am justified in referring to it in the Committee of the Whole as a matter of illustration. A gentleman is a candidate for a position and is defeated, which causes a bitter personal feeling. He publishes that every body that helped to defeat him, or that nobody who voted against him, had any decency or intelligence, and that all those who voted for him had. And he says, he thanks fortune that be is not contaminated with the sand lots. The question is investi- ^ted,and it appears on the trial according to the proof, as I understand It, and there are plenty of witnesses, that he sought to be contaminated with the sand lots, and they would not contaminate worth a cent. The question would be whether that is libel, and I would be willing for a jury to determine, but I certainly would not be willing to be the prose- cutor in any case of that sort. A man connected prol«bly with politi- cal affairs, whose political associations are the same as those who wish to be candidates, prepares to unite old parties in the presence of a giant yonng party rising in the land, and he gets committed and the leaders of another committee fail to unite. The people in tbe meantime, without reference to what the politicians are domg, in their own quiet way donnite, and send people to the Conventions to unite those who have defeated them as delegates to State Conventions and Congressional Conventions, for the same purpose. The people unite them, and for all I know, be may have had considerable agency in nominating the gen- tleman upon the State tickets for the Oanvention. I know nothing about that. If anybody made any promises directly or indirectly, h^ should keep his promises; I made none. It is not pretended that I made any, so far as I am personally concerned, but I will suppose that this scheme, mainly for the good of the country, but partly for the pur- pose of being Secretary of the Constitutional Convention miscarried. It only proves what the Scotch poet has said : " The best laid plans of men and mice all gang aglee." And it proves too what another poet has said, perhaps with more application where schemes of this kind are fonned : ** The piece well Rimed at duck or plover, Kicked liack and knocked the markaman over." But there is no libel in this. That is m^ judgment as a legal proposi- tion. I think the court ought to tell the jurv so. And if a man were convicted for having said these things, thougti he says them repeatedly and promises to continue to say them to the last day of recorded time, and sends bis paper to every delegate in the Convention — though so far as I know very few are subscribing for it — and even abuses parties because they do not answer, I still say that I do not deem it lib«l and I have no personal concern in the matter. But perhaps in this connec- tion I may be excused if I speak briefly of these things. I will suppose that I have proved what is simply the facts, which every gentleman knows to be the facts. So far as I am personally concerned, I voted for a candidate from our county, who, in our judgment of matters, was fully entitled to the vote of his local delegation. He, also, in our judgment, lost nothing b^ not having the powerful surroundings which the other candidate claimed, I have no doubt justly, to possess. On the con- trary, it was an argument, in favor of the one and against the other, sufficient, without descending, as I never have descended in any politi- cal contest in m^ life, to personal charges or personal considerations. So far as any combinations m the case I am supposing, this truth would also appear, that there never was a caucus^of any kind on any individual candidates — not a single one — and I appeal to any gentleman of the Convention as to the correctness of that statement. But further, that there was no caucus with any party with reference to any combination. I will ffo still further and say that there never was a caucus between one individual of one party with another individual of another party, and I ask any gentleman to state whether that is correct or not. I beg pardon for referring to the matter. I spoke earnestly upon the general proposition, and it seemed fitting^and proper that I should say tbig much for fear my motives might be misunderstood in asking that this amendment now pending may be adopted. The argument is in a nutshell. It has been stated. IWhas been urged. I say that the whole matter is presented in the brief proposition thkt our Constitution should provide that libel cases may be tried the same aa all other criminal cases. Honest men have nothing to fear from that. As to rogues, we know what has been said of that class. It is a great and fearful responsibility to char^ men with infamous crime. The -"-i who publishes a newspaper, if he is honest and faithful, deserves the highest credit for standing as a sentinel upon the ramparts of liberty. But, on tbe other side, it is equally important that honest men should be protected from the malice of the designing and tbe malicious. We pro- pose it shall stand as in all other cases ; that the jury shall render a general verdict ; that the court shall decide questions of law in that case as in other cases; that there shall be intelligence in arriving at the truth in that kind of cases as in every other case; and not a kind of a trial, so-called, where the presiding officer, in fact, baa nothing to do whatever, except to watch the proceedings of tbe jury and hear the jury decide upon questions of law. These are my views, Mr. President, and these are some of the reasons why I shall vote for the amendment offered by the gentleman from Santa Barbara. SEUAKKS OP MS. BOWABD. Mr. HOWARD. Mr. Chairman ; I propose to say a single word in regard to this proposition offered by the committee. I propose to vote for it, and for one reason — because it is in the Constitution of eighteen hundred and forty-nine. I care nothing about its being antiquated, as I am getting a little antiquated myself. Like my eloquent friend from San Francisco, I have great respect for the institutions of the past. Now, sir, this provision, as it stands in the report of the committee, has been the law of England and this country ever since seventeen hundred and ninety-two. f am ready to vote for any of the provisions of the old Con- stitution where they have proved to be good. But, as in the case of a unanimous verdict of a jury where abuses have grown up that I think demand correction, then, because it is a hoary-headed abuse, I do not propose to support it. What is the situation here? What is the proposi- tion which we have before us? It is, that the truth may be published; that if a libel — if asserted to be a libel — is true in fact, and published for good motives and justifiable ends, it shall be a defense. As to whether the motives are good, and whether it is published for justifiable ends, are questions of fact, as well as the question as to whether the subject-matter is true. But what class of motives are good, and what class of ends are justifiable, are questions of Uav for the Courts. I do not propose to give the Courts the right to instruct the jury; for this reason, that trials of libel are proven by long practice to be the most subtlely blended questions of law and fact, in all our Courts and in all our practice. Now, then, the question is, by whom, in that class of cases, is to be settled the questions of law? Experience has shown that, in point of fact and in point of history, the jury is the safest tribunal. That being the fact — that in libels the jury is the safest tribunal to determine the matter — I jiropose to adhere to that exjierienee, and to stand up for this section. There have been no abuses under it: I may say that there is nothing to reform; and when there is nothing to reform, the safest way is to leave it alone. Some strange positions have been taken here on this matter. It has been said that a defendant may be found guilty when the facts are all in his favor. I deny that proposi- tion. If Tie states his case and the facts do not sustain the verrtict, and he appeals to the Supreme Court, under all the rulings the Supreme Court IS bound to send it back. Mb. FAWCETT. He cannot appeal to the Supreme Court. Ma. HOWARD. I say he can appeal to the Supreme Court. Mr. FAWCETT. Not being a felony, he cannot appeal to the Supreme Court. Mr. terry. It is a misdemeanor. Mr. HOWARD. That is trtie. If there be no appeal then to tbe Supreme Court it is the fault of the law. It is the fault of the statute, and not thb fault of the law of libel. We could remedy that in the Code, or we could remedy it even if it requires a remedy. But I place my argument on this ground, that the ejcperience of nearly a century hav- ing shown that this provision in the Constitution is a safe one, and that in these particular cases the judgment of the law by a jury is a protection to the citizens of the country, it would be best to adhere to the Consti- tution as it was framed in eighteen hundred and forty-nine, and that by actual working and actual experience has been proven to be safe and reliable. SPEECH OF UK. RDOKRTON. Mr. EDGERTON. Mr. Chairman: The clause of the Constitution under consideration in relation to prosecutions for libel is, " and the jury shall have the fight to determine' the law and the fact." Now, sir, what does that mean? In order to arrive at a correct detennination of the meaning of the clause it may be profitable to make a brief historical review of this subject. Towards the close of the last century there was a series of cases in England growing out of publications against the government or against omcers of the British Government, and in these cases the practice was, after the evidence was in, for the Court, or the Judge, to say to the jury: "The only question" — (of course I state this in my own form, but itis substantially correct) — "for you to determine, f;entl'emen of the jury, is, did this man on trial publish the alleged ibelous matter; and there your duty ceases. It is for you to pass simply upon the fact of publication and I, the Jud^, or Court, will pass upon the questions of intent, the question of criminality, and pronounce the judgment." Now, sir, it was that usurpation of power, it was that dis- tinction between other criminal prosecutions and the specific prosecution for libel that set all England and Ireland in a blaze. Out of that state of affairs, sir, arose the much talked about Fox statute which was passed in seventeen hundred and ninety-two. Now, sir, I think my friend from Los Angeles entirely misappre- hends that statute when he says that this clause in the Constitution means nothing more than what was sought there, according to the interpretation of the Constitution 8« it now stands. Let us see what that statute is, and whether it does not place prosecutions for libel on the same basis that the gentleman from Santa Barbara is now attempting to do by his amendment. That statute was passed in 1782, and will be found in the thirty-second of George III. It reads as follows: " Whereas, doubts have arisen whether on the trial o£^«» indictraentj Digitized by Lioogle 336 DEBATES AND PROCEEDINGS Thuksday, or iaformation, for the making or publishing any libel, where an issue or issues are joined between the King and the defendant, or defendants, on the plea of not guiltj pleaded, it be competent to the jury impan- eled to try the same to give their verdict upon the whole matter in issue: Be it therefore declared and enacted by the King's most Excel- lent Majesty, by and with advice and consent of the IJord's spiritual and temporal, and Commons, in this Parliament assembled, and by authority of the same, that on every such trial, the jury sworn to try issue may give a general verdict of " guilty," or " not ipiilty," upon the whole matter put in issue upon such indictment or information ; and shall not bo required or directed by the Court or Judge, before whom such indictment or information shall be tried, to find the defendant or defendants guilty merely on the proof of the publication by such defendant or defendants of the paper charged to oe a libel and of the sense to be as<-ribed to the same in such indictment or information. "II. Provided always, that, on every such trial, the t'ourt or Judge, before whom such indictment or information sliall be tried, shall, according to their or bis discretion, give their or his opinion and direc- tions to the jury on the matter in issue between the King and the defendant or defendants, in like manner as in other criminal cases. "III. Provided, also, that nothing herein contained shall extend, or be construed to extend, to prevent the jury from finding a special ver- dict, in their discretion, as in other criminal cases. " IV. Provided, also, that in case the jury shall find the defendant or defendants guilty, it shall be lawful for the said defendant or defendants to move in arrest of judgment on such ground and in such manner as by law he or they might have done before the passing of this Act; any- thing herein contained to the contrary notwithstanding." That is all that great statute did. It placed the prosecution for lil>el upon the same ground aa any other criminal prosecution in England. It meant nothing more than this: that the Judge was supposed to know more of the law than the jury. He was to give the law to the jury, and then the jury would take the whole case into their hands and pass upon it. That is, they were to determine whether it was libelous or not, whether it was published for good motives and juslifiable ends or not, and whether it was true or not. And that is all that statute did. That is the law in England. The first proviso made it the duty of the Judge to charge the jurjr, as in all other criminal rases. The next clause provided for a special verdict, as in other criminal cases, as stated by the gentleman from Placer. I had some difficulty in hearing the gentleman from Placer, and do not know e-^actly what he said. At all events, that is the Fox Bill, and that is nil there is of it. I say that the law of England that was established in seventeen hun- dred and ninety-two is precisely the law as the gentleman from Santa Barbara, Judge Fawcett, is attempting to establish by his amendment. Now let us look a moment at the law in the United States. About the year eighteen hundred and five a great case came up, a leading case, a case that established the law, and out of which this constitutional pro- vision subsequently grew. It was the case of the People vs. Croswell, in New York, for a libel upon Thomas Jefferson. To show that the press of this day does not monopolize all the scandal I wish to show what a newspaper of those days said about these men. The libelous matter appeared in a newspaper called The Wasp. Whether it is the same that is now published in San Francisco I do not know. Here is the libelous matter complained of as charged in the indictment: " That the said Harry Croswell did, on the ninth day of September, eighteen hundred and two, with force and arms, at the said Cily of Hudson, in the said county of Columbus, wickedly, maliciously , and sedi- tiously, print and publish, and ^use and procure to be printed and pub- lished, a certain scandalous, malicious, and seditious libel, in a certain papf r or publication, entitled The Wasp, containing therein, among other things, certain scandalous, malicious, inflammatory, and seditious mat- ters, of and concerning the said Thomas JelTerson, Esq., then and yet being President of the United States of America, tliat is to say, in one part thereof, according to the tenor and effect following, that is to say : Jefferson (tlie said Tliomas JelTerson, Esq., meaning) |)aid Callender (meaning one James Thoni]>son Callender) for calling Washington (meaning George Washington, Esq., deceased, late President of the said United States,) a traitor, a robber, and a perjurer: for calling Adams (meaning John Adams, Esq., late President of the said United States) a hoary-headed incendiary, and for most grossly slandering the private characters of men who he (meaning the said Thomas Jefferson) well knew to be virtuous." That case was argued by Alexander Hamilton for the defendant, and he claimed nothirfg more than that these questions were questions of mixed law and fact, that they were like all other criminal cases, and that the jury should have the' power to determine the question of intent. It never was contended that the Court should not have the direction of the law of the matter. Now let us see how Mr. Hamilton argued that " But it is not only the province of the jury, in all criminal cases, to judiie of the intent with which the act was done, as being a parcel of the fact, they are also authorized to judge of the law as connected with the fact. In civil cases the Courts are the exclusive judges of the law, and this arose from the nature of pleadings in civil suits, lor anciently matters of law arising in defense were required to be spread upon the record by n special plea, and the jurjr were liable to an attaint for find- ing a verdict contrary to law. But in criminal cases the law and the fact are necessarily blended by the general issue, and a general verdict was always final and cimclusive botli upon the law and the fact. Nor were the jury ever exiwsed to an attaint for a verdict in a criminal case, and this is decisive to prove that they had a concurrent jurisn the same plane and basis that all other criminal prosecutions occupied. The result was the introduction of a bill in the Legislature of New York which was passed in eighteen hundred and five, which contains this clause: "That on every such indictment or information, the jury, who shall try the same, shall hare a right to determine the law and the fact, under the directum of ike Court, in like manner at in ollter criminal caut." Now, that is sU there is of it. And that is copied into the Constitution of the State of New York. I contend that that is the law and has been for nearlr one hundred years; not that the jury is to take the bit in its mouth and cut loose from all legal restraint in a case of libel, but they are to take the case and determine the law and the fact as they do in other criminal cases, and they are bound by it and they ought to be bound by it. I believe that is really a fair construction of the Constitution to day, but it has been perverted from its real meaning. For some cause the latter part of the law of England, the Fox Bill that has been so highly eulogized, has been omitted from the Constitution. I would like to ask the gentlemeu from Los Angeles, General Howard snd Colonel Ayers, or any other gentlemen who has taken that view, why should the jury be released from the restraint of instructions of the Court in a libel case when they are not released from the instructions of the Court in any other criminal case known from that of stealings chicken to the murder of a man? Is it because of the liberty of the prcssT Is that any more sacred than the liberty of the citizen in «dt other caseT I deny it. It seems to me, sir, that the jury, not in til libel cases, but of all cases should be under the instructions of the Court as to the law of any case. For that reason, as I understand it, I shall vote for the amendment offered by the gentleman from Santa Barbanu Me. HOWARD. I will read the present Constitution of the State of New York, adopted in l?46-7: "And the jury shall have the right to determine the law and the fact" So that if the gentleman is right in the construction of the statute, the Constitution of the State of Kev York has made a different rule. Mr. EDGEBTON. If the gentleman from Los Angeles, will look farther he will find that the new Constitutions of Penu^lvanis and of Missouri have restored the language of the statute of New York in 1805, which grew out of the Crosw^l case. It never was intended, neither in England or America, by any law or any lawyer, that the jury should take the bit in their teeth in a libel case and disregard the instructions of the Court. The only object of this provision was to get rid of that old rule which allowed the Judge to tell the jury to find only « to the question of publication. That was the evil attempted to be cured by this American statute in New York, and these provisions in Ameri- can Constitutions and by the Fox Bill. I do not believe that any of those Judges would have entertained for one moment a jiroposition th«t the jury was to disregard the instructions of the Court as to matters of law involved in a case of libel, when the^ were bound by it in every other conceivable case in the nature of a criminal prosecution. I do not see any reason for a different rule in a libel case. But what is a prosecution for libel? Why, the Judge determines upon the admissibility of testimony, and then after that the jury deter- mines upon the character of the libelous publication. They determine whether it was published for a good motive and for a justifiable end. No question of law now occurs to me. If one should arise I insist that it should be a man learned in the law who should instruct the jury u in all other cases. My reason, my good sense does not dictate to me any reason why there should be a distinction in favor of the editor of a paper or the writer of a calumny any more than in the case nf any other man. SPKKOH OF MB. BARBOUK. Mb. BARBOUR. Mr. Chairman : I rise for the purpose of expressing my •pinion and for the purpose of saving my distance. It seems to me that tnere is a controversy between certain gentlemen in this Conven- tion, as to who shall be entitled to the appellation of the most numer- ous speaker. I have not spoken yet to-day at all. I understand that a prize will be given to the most numerous speaker and I propose to son- test for that prize. I give notice to the gentleman from San Francisco, two or three gentlemen from Sacramento, and the gentleman from Ala- meda that I have not been very well. [Laughter.] I am going for thst prize, if I recover my voice and my throat gets well, a little offener. I propose, when this amendment that is oflTered by the genlleman from Santa Barbara is voted down, to offer another amendmenL I shall offer it with fear and trembling. I have heard so much during the last two or three days about irreverent hands, that whenever I wish to propose any change in the existing Constitution, I feel like a cul|>nt I have gotten it from the right in a voice like the fog-horn of San Francisco, which is like unto the wail of some spirit that was condemned to Goat Island ; and I got it from the left, in a voice like the wail of » dying bull calf, where we are appealed to not to lay irreverent hands on the t)onslilulion. I get it from the front and I get it from the rear, I get it from the enemy's ramp and my own camp, not to lay irreverent hands on the Constitution. This proposition, Mr. Chairman, a« it stands at present in the Consti- tution, 18 the invariable subject of an incessant conflict between Courts and lawyers whenever a libel suit arises. The Penal Code has |»ovided, as plainly as language can provide, that the jury shall not only deter- mine the law and the facts, but the Court is prohibited from charging the jury, and I propose to offer an amendment to that effect Our only Judge — and we ought to have more of them — has offered an amendment here to preserve the power of the Judges over this subject That very thing, sir, was the cause of the struggle that took place over this very athject — the efforts of the Judges to preser%-e the power to pun- ish those who might make an attack upon them, or on the government of which they were a part. Now, sir, the plain and simple man, not versed in the law, but who takes language in its ordinary acceptation and meaning, when he sees a positive and distinct statement that the jury shall determine the law and the fact would conclude that the Court was debarred from charging the jury. Else si^y the distinction? Why Digitized by VjOOQ IC Nov. 7, 1878. OP THE CONSTITUTIONAL CONVENTION. 337 not simply let it go, as all other criminal cases do go, upon the well under- stood line of demarkation between the power of the Court and the power of the jury. I say, therefore, that it is intended to mean more than to place it upon the ground of ordinary criminal actions, where a general verdict comprehends both the law and the fact, and wherein it is always under- itooa that it is an obligation upon the jury to receive the law from the Court. It is stated here that the jury are under obligations, even in cases of libel, to receive the instructions of the Court upon matters of law, find the facts, and then apply the law to the facts. If any gentle- man ever takes the trouble to mvestigate the authorities which are givuped together by Greenleaf, in section one hundred and seventy- nine, wherein he reasons himself into that conclusion, he will find not one of those authorities, except the opinion of Judge Story, in the 4th Sumner, supports the position that he takes, and that the plain intent and meaning is that the Judges under our system, elected as a part of the political machinery, shall not only be deprived of the power, but they shall not be reauired to charge the jury. There are but two propositions. They sball not be required, nor shall they be allowed of their own volition, to instruct the jury . I say that was the plain intent and meaning, and it is fixed in the Penal Codle. I grant that the Legis- lature is not particularly high authority, especialljf upon matters of pri- vate or special legislation, but on a matter of this kind it is not improper that we should take the views of the Legislature as the views of the peo- ple upon this very subject. The Legislature has re-enacted the Consti- tution in the Penal Code. In section five hundred and fifty-one, under the head of " libel," it has re-enacted the identical language of the sec- tion proposed here. In section one thousand one hundred and twenty- five It re-enacts it again. That section reads : " On the trial of an indictment for libel, the jury have the right to determine the law and the fact." Kow then, in section one thousand one hundred and twenty-six they show the purpose or the idea of the Legislature with regard to the power of the (Jourt over the verdict of juries, for they say : "On the trial of an indictment for any other offense than libel, questions of law are to be determined by the Court, questions of fact'by the jury ; and, although the jury have the power to find a general venlict, which includes questions of law as well as of fact, they are bound, neverthe- less, to receive as law what is laid down as such by tlie Court." Xow,the exception from that general rule of the case of libel shows the intention of the law-makers, who come fresh from the people, that in cases of libel the Judges shall not have the power to charge the jury upon matters of law. Again, gentlemen say that it proceeds upon the power of the jury to render a general verdict. Section eleven hundred and fifty illustrates the proposition. It says: "The jury may render a general verdict, or, when they are in doubt «» to the legal effect of the facts proved, they may, exc^t upon an indiet- nadjar liUl, find a special verdict" That declaration clearly shows that in cases of libel the jury may not avoid their obligation to pass upon the law and the fact by a general verdict, wliils't they may do so m any other criminal case. And, there- fore, it is, I say, that it is appropriate that a declaration should be dis- tinctly made in this Constitution, which will in the first place avoid the confusion into which this question has always thrown the Courts and lairyers, and in the second place afford a substantial protection to the parties. I warn gentlemen now, since they have abolished the Grand Jury, and since there is a disposition on the part of this Convention to reduce the power of the petit jury, that they must lodge a complete and abeolute power in the jury to pass upon questions of law and fact, or the press will be in continual danger. Why so, sir? It is for this reason: The Judges upon the bench are elected by the people just as any other officers are. They may become a target for the newspapers whilst they are candidates. They may itecome a target for their shafts after they get on the bench. Now the intention is to remove from the Judge upon the bench all possible temptation that he shall be influenced by any publicatioa that has been made in reference to himself, or his pulitioal party, or his personal friends, whereby the purity of the admin- istratinn of the law tlirough him may be affected. It is because of the wide-spread influence of the press, the immense ramifications of the press, that this obligation is imposed upon the Judges to abstain from charging the jury, because it never can be determined when some such influence will not operate on his mind. These questions that gentle- men apeak about as questions of law, or mixed questions of law and fact, are such as can be determined in all cases without difliculty, save and except the bare question of jurisdiction, which every lawyer knows can well be settled in another wav. I shall vote against the amendment ofiered by the gentleman from Santa Barbara, and when it is voted down I shall propose an amend- ment that the Judges in cases of libel shall not charge the juries. BPKICH or HB. WILSON. Mk. WILSON, of First District. Mr. Chairman : I did not intend to Esjr anything upon this subject, or participate in the discussion, and I will not now say much. What I sball say will be merely an explana- tion of the position in which I find myself. As Chairman of the Com- mittee on Judiciary, I made the report of the section now under consideration, and therefore I might be supposed to favor the section as reported. On the contrary, I am in favor of the amendment offered by the gentleman from Santa Barbara. The section was taken up before the committee at a late hour — after the discussion of other subjects— and it was adopted, because it was in the old Constitution, without further consideration. I suppose every gentleman then present is now free to act upon his own convictions on the final vote. The hour being now very late, and the matter having been very gen- erally discussed by the Convention, and, I think, very ably discussed, there is very little left for any person to say, and I do not intend to say 43 much in explanation of my intended vote. I understand that when a citizen is injured he has two remedies under the law — a civil remedy ■and a criminal remedy. It is very true that the criminal remedy is prosecuted in the name of the people, and for an offense against the people, but at the same time there is always an injured citiswn. That injured citiien, or his friends, make the complaint, and be is practically the party seeking to be vindicated. If a man attacks me with a weapon, with an intent to take my life, I may sue him civilly for such danger as 1 may have suffered, or I may resort to the criminal Courts for the pur- pose of vindicating myself. 6o, in cases of libel, as a private individual I have my civil rem^y and my criminal remedy. I may go into the civil Courts for my personal remedy, or I may call upon the people, in tlieir name, to proceed with the criminal prosecution, and thus vindicate myself. And, after all, it is a personal remedy as well as a remedy on behalf of the people. If my life is assailed and I resort to a criminal prosecution for the offense, I bring the accused before a tribunal consist- ing of a Judge and jury. We clothe the different officers of that Court with certain special functions. The Judge is selected because of his legal learning; because of his familiarity with the great principles of jurisprudence which we invoke in the administration of justice. We summon a jury as a part of the machinery of the Court, for the purpose of passing upon the facts, and the jury performs that particular function — being believed, under our system, to be better judges of the fact than the Court. Such a tribunal has been considered the best that can be devised. Yet, in such a case, concerning my life or my personal safety, the Judge lays down the law to the jury and the junr finds the facts. The jury, upon their oaths, are bound to take the law from the Court, and the Court is bound to tell the jury that it is their special province to pass upon the facts. Now, Mr. Chairman, when ray character is assailed — more precious to me than life or limb, more precious to my family; more precious to my children — what is my remedy ? I say to the State, this accusation has been made against me. This libel has been perpetrated; this crime has been committed, and I demand its prosecution. I bring this libeler before the Court, to be prosecuted in the name of the people. I stand upon the one side, seeking a vindication for the injury to my character. Lpon the other hand he stands accused of libel. What tribunal is best for the purpose of determining whether I committed the infamy that the libeler may have charged against mc? What tribunal is best to determine between him and me? Why is it that that tribunal I have just spoken of should not be trusted, when my character is assailed? Why IS it that that Judge, chosen for his legal acc|uirements, should not exercise the same powera? Why is it that that ^ury, qualified only to pass on the facts, should not be limited to their accustomed powers? Why is it, when my life has been assailed, the trial is to proceed in one way, and when ray character has been assailed, the trial must be con- ducted in a different manner? Why is it that the Judge, learned in jurisprudence, calm and impartial, who is required to lay down the law to the jury in the case when my life has been assailed, is forbidden to state the law to the jury when my character and my good name are involved ? This question involves something more than the liberty of the press. It involves the rights of the whole people as well as the press. This proposition to make the jury judges ot the law as well as the fact, may cut both ways. It may endanger the press as well as the citizen at large. Each may need the protection of the Judge against the ignorance and prejudice of the jury. But the question here after all is a question of good common sense. Why should there be a distinction made between different criminal actions? A great deal of eloquence has been heard here ; a great deal has been ably and forcibly said, and I have listened with admiration to many gentlemen who have spoken on this subject. It has been a source of gratification to find so much ability, learning and eloquence in thisCon- vention. One would suppose from the argument of the gentleman from San Francisco, Colonel Barnes, that Algernon Sidney died in order that this clause might be put in the Constitution. But when we turn to the Fox libel act, we do not find any such clause as this. We do not find that Sidney died for any such puqx)se. We do not find that he had any- thing to do with it. It was a different cause that led to the passage of that law. The distinguished gentleman from San Francisco, Colonel Barnes, has stated that tlie Engfish Judges had innovated upon the com- mon law ; they had made libel cases to occupy a different position from ordinary criminal cases. He says that in ordinary criminal cases the law andthe fact were presented to the jury; that is, the facts were pre- sented to the jury, and the Court charged the jury, and the jury ren- dered a general verdict. But the Judges, he says, had innovated upon the common law in the case of libel against the Crown, and they only submitted to the jury the one question a* to whether the publication had been made, taking into their own hands the question as to whether the publication constituted a libel, and as to what was the intent of the fiublication. He says, and says frankly, that the object of the Fox libel aw was to restore libel cases to the same platform as other criminal cases; and undoubtedly this discussion has developed and demonstrated the fact that the Fox libel act brought libel cases from the position they held, to the common level of all other criminal cases. It never was intended to advance it to a privileged position over and above, or beyond any other criminal case. And the object of the amendment offered by the gentleman from Santa Barbara is to put it upon that basis, and to keep it exactly where other criminal cases are. That is the reason why the amendment commends itself to the judgment of all. Why should the jury be permitted to judge of the law in this case any more than in any other? Are they dispo^ to lean toward the press? If they lean toward the press when it has defamed my character, then they lean against me, and they are an improper tribunal to submit the question to. I do not want any tribunal that leans against any man. I want it impartial, fair, and disinterested j otherwise it is unfit to determi^- "-"* Digitized l . wani 11 338 DEBATES AND PROCEEDINGS Friday, Question. If Ibey are biased agaiust Ibe press they are equally uufit to aetermiDe the law. Wliy should the jury d«t«riiiiue the law in libel cases, any more than in other cases? Are they better judses of the law? No gentleman has said that they are better qualified than the Judges to sav what the law is on questions of libel ; or that they know better the vital princi- ples underlying all questions of jurisprudence. Why then should they judge of the law? Why not take the law from the Judge whom the people have elected because of his proficiency and learning in the law? Why should we elect a Judge to determine questions of law and yet submit questions of law to a jury who are uninformed off questions of law? Would not the Judge in any event determine questions of evidence? Would not the Judge determine according to his idea of the law what evidence should go to the jury, and would not the jury be compelled to pass upon such evidence as the Judges admits to go to' the jury? The jury has no right legally or morally to take notice of evidence which is excluded from their consideration by the Court. I lay that the mere fact, that in this cose there is no appeal, is sufficient to warrant the adoption of the amendment in the law, for there is no remedy if the jury commit au error. The chances are about equal whether they will decide the law wrongly against the accused or rightly in his favor. There seems to be au idea that the jury is going to decide always in favor of the defendant. I do not understand that there is any guarantee of that; if there is then we should adopt the amend- ment. But in fact, the jury are iustas likely to find against as in favor of the defendant. I say there snould be no difference in the trial or mode of procedure in criminal cases; they should all occupy one com- mon platform. The tribunal, composed of Judge and jury, should resfiectively perform the same functions in libel cases that they do in other criminal cases. I do not think the question of the liberty of the press is involved in this amendment. The rights of the people, the liberty of the press, and of everybody else is preserved by the provisions of section nine, reported by the committee, excluding entirely the last clause. The provision is just, and everybody admits it, that the citizen who writes and publishes his sentiments should be held responsible for an abuse of that privilege. A libel case charges that the defendant has abused that privilege, and that is the question that comes before the Court. In other words, naa he published such an article against an individual ? if so, then is it true? And if true, was it published with good motives and for justifiable ends? These are q^iestions of fact. Now, I say that the better portions of the press are interested in having the law severe upon libel. Why? Because the better portions of the press do not commit libels. If 1 were the editor of a newspaper that I intended to conduct with decency and propriety, I would bo in favor of the severest libel law, because' the decent portion of the press is controlled by a whole- some public opinion, and does not require any such protection as is snp- posed to be obtained by authorizing a jury to find a verdict against the law and the right. I reroUect very well Macaulay's happy description of tiie emancipation of the press in England. He says: '• From the day on whicn the emancipation of our literature was accomplished , the purification of our literature began. That purification was enected, not by the intervention of senates or magistrates, but by the opinion of the great body of educated Englishmen, before whom good and evil were set, and who were left free to make their choice." He concludes by sayiug: " At this day foreigners, who dare not print a word reflecting on the tiovernmeut under which they live, are at a loss to understand how it happens that the freest press in Europe is the most prudish." I pray God the time m:nr soon come when we may truly say the same thing o? the press of California. BEIIARKS OP UR. ANDBKWg. Mr. ANDREWS. Mr. Chairman : I will not detain the committee bnt a moment. [Cries of " question."] As far as I am concerned they can have the question in about five minutes. Mr. Cliairman, when the proposition was made to refer these four sections of the Bill of Rights to the Committee on Judiciary, it was a close struggle in relation to carrying tliat reference. I was in favor of that reference, and probably it may ne that my action in that matter carried the reference. I had no idea that every single recommendation that was made by that Committee on Judiciary would be against the interests of the people or I should never have advocated that reference. But I did think that in one respect where the vote had been in favor of the people that they would stand by that report, but it seems that even in this I was mistaken, and that the committee surrenders its own report. I listened to the remarks of the gentleman from Nevada, Mr. Cross, and I do not think he has drawn this picture too heavily. I ask this committee to pause. I ask them to consider whither we are drift- ing, and where these innovations are about to carry us. That is all that I have to say, only that I do regret that on the only proposition where the Judiciary C<){umittee had stood by the people that they have sur- rendered it. REHABES or HR. o'dONXKLL. Mr. O'DONNELIi. Mr. Chairman: I have understood that every man that voted for this amendment of Judge Fawcett would be pub- lished in the Chronicle. [Laughter.] I am going to vote for that amendment, and I say that every member of this Convention that don't vote for it is a weak-kneed man. [Laughter.] When that section was placed in the old Constitution a man UmL a right to stone to death the blackguard libeler, but to-day we have no redress except with the pistol. I say that we should have a clause in the Constitution to treat every libeler the same as any other criminal. The amendment which I intend to vote for is this : " And the jury shall have the right to find a general verdict as in other cases." That is the amendment that was made by Judge Fawcett, and that is the amendment I am going lo vou for. We should treat these blackguard libelers the same as ve irould any murderer. I hope that every member upon this floor will vole for that amendment. I picked up the Chronicle a few minutes ago tail read an article that 1 would like to read. [Cries of " read," " read.'T I will read it. It says : "MrFarland moved to strike out the clause making the jury judge of the law and fact in libel cases. He said this would not abridge the freolom of the press, as it was freer now than anybody else, and used its freedom to malign reputable citizens and break up good nsnut. When brought to trial they say : " For God's sake don't try us according to law ; " and they call on a jury who arc ignorant of the law, and the Constitution makes them judges of the law as well as of fad. He wm willing to accord to the press all the freedom necessary for ordinsrv criticism, but he wished to bring men to justice who ruined othermen''i' character." The members in this hall that don't vote for that amendment, it appears to me, are afraid of that press. [Laughter.] I thank you kindlf for your attention. [Applause and laughter.] BIMARKS or UR. BABBT. Mb. BARRY. Mr. Chairman [Cries of " queeticSn I " " question ! "] Mr. Chairman : The time is short and [Cries of " question 1 "] I shall not detain the Convention. As one having the honor of being on the Judiciary Committee ; as one, believing at the time that the pro- vision in the Constitution was right, I still stick to that proposition. I propose to stand by my opinions, even though the honorable and er may say. Believing that this provision in the Constitution is what it should be, like the gen- tleman from Shasta, Mr. Andrews, who is opposed to change, except when the change is necessary, and is willing to stand by,the C«n. Hunter, Shoemaker, Burt, Inman, Shurtleff, Campbell, Johnson, Smith, of Santa Clara, Caples, Jones, Smith, of 4th District, Cajserly, Joyce, Smith, of San Francisco, Kelley, Soule, Charles, Keyes, Stedman, Condon, Kleine, Steele, Cowden, Laine, Stevenson, Cross, Lampson, Strong, Crouch, Larkm, Sweasey, Davis, Larue, Swenson, Dean, Lavigne, Swing, Dowling, Lewis, Terry, Doyle, Lindow. Thompson, Dudley, or San Joaquin, Mansfield, Tinnin, Dudley, of Solano, Martin, of Santa Cruz , Townsend, Dunlap, , McOallum, Tully, Eagon, McComas, Turner, Edgcrton, McConnell, Tuttle, Estee, McCoy, Vacquerel, Estey, McFarland, Van Dyke, Evey, McNutt, Van Voorhies, Farrell, Miller, Walker, of Marin, Fawcett, Mills, Walker, of Tuolumne, Filcher, Moffat, Waters, Finney, Moreland, Webster, Freeman, Morse, Weller, Freud, Murphy, Wellin, Garvey, Nason, West, Glascock, Nelson, Wickes, Crtjrman, Neunaber, White, Grace, Noel, Wilson, of 1st District, Graves, O'Donnell, Winans, a^' Ohleyer, O'Sullivan, ABSKIIT. Wyatt, Mr. President. Berry, Kenny, Stuart, Biggs. Martin, of Alameda, Wilson, of Tehama. Gregg, Overton, The reading of the Journal was dispensed with, and the same approved. LKAVK OF ABSRNCI. Leave of absence was granted to Mr. Hager for two days, and to Mr. Stuart for one day. BRrORT. Ma. HILBORN. Mr. President: I send up a report of the Com- mittee on Mileage and Contingent Expenses. Thk secretary read the report, as follows: Ha. Prksidkxt: Tow Gommlttee on WlMfe and Oontlngaot Bxpenscs hav« had under considenttl on RMolation No. 78 — to proTide for tli« payment of certajo expenses incurred by the Se^Kean^at-A^ns, in the purchase of Ice, etc., for the Coo* Tention-,-berewJth report the same bock, and recommend that it be adopted. We limre also had under consideration Resolution No. 67, presented by Mr. Baraee, to prorlde for the payment of Edward Wssnn, and Resolution No 7U, pre. tented by Mr. Kstee, to provide for the payment of Hiram Cloclc, for work M Porters of the corooiittae rooms, and herewith report both resolutions back and recommend tliat they be adopted. We have no doubt bnt these Porten were alMolutely neces SRiy to the proper performance of the busineoe of the Convention. The Convention D«glected to snthorise the employment of the Porters, and the Sergeant-at-Arnis, seeing the neceasity, assumed the responsibility of having the work done. In doing ■e 1m probably made a mistake. Re would have acted wiser had he permitted the ooounlttoe rooms to remain in darkness and filth, in which case the several com- Biitteca would tiave moved in the matter, and authority to employ Porters would have been sooner granted. We hope, however, that this is the last case of the kind «hkh wUi occnr in this Convention. S. O. HILBOBN, Chairman. ICK BILLS. The president. The first question is on the adoption of the first resolution. The Secretary will read. The secretary read : Jtetolved, That the iom of thirty-eight and thirty one hnndrvdths dollars b« and the same is hereby allowed to pay the bill of Pacific Ice Company, and bill of Sac- ramento Poet-ofilce, the same to be paid out of the appropriation for expanaea of the Convention, and drawn in favor of the Sergeant-at-Arms. The resolution was adopted. FAT OF FORTIRS. Thk president. The question is on the next resolution. No. 67. Th« SECRETARY read : Baolvtd, That Edward Wuon be and he is hereby allowed the sum of eighty- eight dollars for services as Porter twenty-two days in caring for committee rooms, and that the same be paid out of the appropriation made for the Convention. Mb. CONDON. I call attention to the resolution adopted here on November second, which, I think — the recommendation in relation to this resolution — is a violation of that resolution in reference to this matter. Thk PRESIDENT. The question is on the adoption of the resolution as recommended by the committee. Mb. CONDON. I move that the report be laid on the Ubie— that part of it. Mb. HILBORN. I hope some action will be taken on this matter. The resolution siwkeit of is not a rule of this Convention, and it can be rescinded at any time by this Convention Thi PRESIDENT. The motion to table is not debatable. (Laughter). Mb. HILBORN. If there is no objection I would like to make a statement in connection with this matter. When the rooms were apportioned to the different committees, there were fifteen rooms, all unprepared, and they had to be put in condition to be occupied by the various committees. No provision had been made by this body for cleaning them up, and putting in the necessary furniture. The Ser- geant-at-Arms, desiring to facilitate the operations of the Convention, thought best, and did employ these two gentlemen to do that work. As suggested by the committee, it would have probably been wiser to refrain from doing it, and then these various committees would have found them in darkness, and with the filth which had accumuGited since last session of the Legislature. But feeling that he wanted to accommodate the Convention, and doing what he thought was for the best, and believing it was for the best, he employed these two faithful men and set them to work, and they did the work until the Convention authorized other persons to do the work. As soon as the resolution was referred to this committee they investigated the matter, and found that it was absolutely necessary that two men should be employed. I think the resolution ought to pass. They are here on expense, and I hope the Convention will do something for them. Thk president. The question is on laying the resolution on the table. Lost. The president. It was adopted. Thk president. seventy-nine. Thk SECRETARY read: XetnlTtd, That the Controller of State be and be is hereby directed to draw bis warrant in favor of Hlmm Clock for one hundred and eight dollars, for twenty- seven days' services as Porter, and the State Treasurer to pay the same out of the approprlaUon fur the Convention. I hereby certify that Hiram Clock has been employed since the orgaoliation of the Convention in the capacity of Porter and Watchman, and that be has perfortned all the duUes faithfully. T. J. SHEBWOOD, SergeantHLt-Anns. Thk Prksidknt. Mr. Clock was appointed by the Governor at the opening of the Convention, and has served under that appointment. The resolution was adopted. BKPORT or (XlllllITTKK ON PBKAMBLK AND BILL OF BI0RT8. The question is on the adoption of the resolution. The question is on the next resolution, number A report from the Committee on Mb. VAN DYKE. Mr. President: Preamble and Bill of Rights. Thk SECRETARY read : Ma. PaniDiMT: The Committee on Preamble and Bill of Right*, to whom was referred the following proposltiona, to wit : Number three hundred and eighty-two, introduced by Mr. Scnell ; number three hundred and ninety-three. Introduced bj Mr. Dudley ot Solano; number three hundred and ninety-seven, introduced by Mr. Beeiatechcr; number four hundred and nineteen, introduced by Mr. Freeman; number four hundred and twenty, Introduced by Mr. Mansfield, spd number four hundred and twenty.one, introduced by Mr. Ringgold — beg leave to report that the propositions relate to matters on which the committee had already acted, and had embodied their action in the draft of article one of the revised Constitution, The committee, therefore, return said propositions, and recommend that they be not adopted. Respectfully snbmited, WALTER TAN DTKB, Chairman. Thk PRESIDENT. The report will lie on the table. AHKNDINO THK BULKS. Mr. NOEL. Mr. President: I gave notice that I would move to amend the rules by striking out rule seventy-one. If it is in order I will make that motion now. Thk PRESIDENT. It is not in order at this time. The next order of business is : Propositions and Resolutions relating to the Constitution. FBOPOSKD A1IKND1IRNT8 — 8TATK OFPICKRS. Mb. tinnin introduced the following proposed amendment to the Constitution, to allow State officers to appear, in certain cai^s, before tha Legislature. Digitized rtain cai^s, before th& byCoogle 340 DEBATES AND PROCEEDINGS Fridav, Sectiom — . Any State officer, who is the head of any of the departments of the State Government, shall be permitted to appear in person before either or both branches of the State Legislature, to explain any subject relating to his department that is then being considereo. Keferred to the Committee on the Legislative Department. DISPOSITION OF PHOPKaiy. Mr. LAVIGI7E introduced the following proposed amendment to the Constitution, in relation to disposition of property : Articlk - -. StCTiOH — . No person possessing property, real, personal, or other- wise, and who has one or more direct heirs, shall ever be allowed to dispose of more than one third of said property, either by will or gift, in favor of any other person, corporation, society, or association.' The remaining two thirds shall become the property of his heir or heirs. And any sales which may have been made during the life of the testa- tor or owner, which shall be proved illegal or fraudulent, of any part of said property, shall be declared null and void. Referred to the Committee on Miscellaneous Subjects. CITIES AMD TOWNS. Mb. E. 0. SMITH introduced the following proposed amendment to the Constitution in relation to restrictions on cities and towns, against their including adjacent farming lands within their corporate limits for purposes of taxation : Retolved, That it is wrong in principle, and unjust to parties con- cerned, for cities and towns to extend their limits over tracts of adjacent farming lands in any direction for the sole purpose of taxing them for the corporate benefits of such cities or towns, and that no town or city in this State should be permitted to incorporate within its limits, and to subject to corporate taxation, any adjacent farm or lands whatever with- out the consent of the owners thereof, or a majority of them. Referred to Committee on City, County, and Township Organizations. BALABIIS or OFFICERS. Mr. BARBOUR introduced the following projposed amendment to the Constitution, concerning fees and salaries of omcers: Sectiok — . No'State, county, or municipal officer, whose salary is fixed by law, shall receive to his own use any fees or moneys coming into his hands as such officer, or retain the same, or any portion thereof, on account of his salary; but he shall account for the same as public money, and shall forthwith, or as soon after the receipt thereof as may be, deposit the same in the treasury of the State, or county, or munici- pality, as the case may be. The Legislature shall enforce the provisions of this section by suitable penalties. Referred to the Committee on Legislative Department. TOWNSHIP OBQANIZATIONS. Mr. HAGER introduced the Constitution relative Mluoed the following proposed amendment to the to City, County, and Township Organizations : Section I. Any city having a population of more than one hundred thousand inhabitants may frame a cnarter for its own government, con- sistent with and subject to the Constitution and laws of this State, by causing a Board of fifteen freeholders, who shall have been for at least five years qualified electors thereof, to be elected by the qualified voters of such city, at any general or special election^ whose duty it shall be, within ninety days after such election, to prepare and propose a charter for such city, which shall be signed in duplicate by the members of such Board, or a majority of them, and returned, one copy thereof to the Mayor, or other chief executive officer of such city, and the other to the Recorder of Deeds of the county. Such proposed charter shall then be published in two daily papers of largest general circulation in such city for at least twenty days; and within not less than thirty days after such publication it shall be submitted to the qualified electors of such city at a general or special election, and if a majority of such qualified electors voting thereat shall ratify the same, it shall, at the end of sixty days thereafter, become the charter of such city ; or if such city be consolida- ted with a county in government, then of such city and county, and shall become the organic law thereof, and supersede any existing charter and all amendments thereof, and all special laws inconsistent with such charter. A copy of such charter, certified by the Mayor, or chief execu- tive officer, and'authenticated by the seal of such city, setting forth the submission of such charter to the electors and ite ratification by them, shall be made in duplicate and deposited, one in the office of the Secre- tary of State, the other, after being recorded in the office of the Recorder of Deeds of th%pountv, among the archives of the city, and thereafter all Courts shall take judicial notice thereof. The charter so ratified may be amended at intervals of not less than two years, tiy proposals therefor submitted by the legislative authority of the city to the qualified voters thereof at a general or special election, held at least sixty days after the publication of such proposals, and ratified by at least three fifths of the qualified electors voting thereat. In submitting any such charter, or amendment thereto, any alternative article or proposition may be pre- sented for the choice of the voters, and may be voted on separately without prejudice to others. Sec. 2. In counties or cities having more than one hundred thousand inhabitants no person shall, at the same time, be a State officer and a city or county officer, nor hold two city or county offices. Referred to Committee on City, County, and Township Organizations. Mr. van dyke. I move that the Convention now resolve itself into Committee of the Whole, the President in the chair, for the purpose of further considering the report of the Committee on Preamble and Bill of Rights. Carried. IN COMMITTEE OF THE WHOLE. The CHAIRMA1(. Section thirteen is before the committee. Mr. HOWARD. Mr. Chairman : I wish to offer an amendment to b» added to section nine. The CHAIRMAN. It is not in order at this time. Mb. HOWARD. Then I ofler it as an independent section. The chairman. We are now considering section thirteen. You can offer it at a subsequent time. Mr. van dyke. I offer an amendment to the section. The secretary read: " Add, after the word ' counsel ' the words, ' to be informed of the nature and cause of the accusation, to be confronted with the witnesses a^inst him, and to have compulsory process for obtaining witnesses in his favor.' " The CHAIRMAN. The Chair was mistaken as to the action on sec- tion nine. That section is still before the committee. Mb. van dyke. I withdraw ray amendment to section thirteen. THE LAW or LIBEL. Mr. HOWARD. I now offer my amendment. The secretary read: " Add to the end of the section : ' The judge may state the law, but the jury shall not be bound by the instructions of the Court. The Legisla- ture shall provide for an appeal to the Supreme Court in questions of law in convictions or prosecutions for libel.' " MB. Howard's rekabes. Mb. HOWARD, of Los Angeles. Mr. Chairman: I wish merely to state to the Convention that this is the substance of the provisions in several State Constitutions. That it is not the law, and has not been since seventeen hundred and ninety two; that the jury was bound by the instructions of the judge in libel cases. I read from the 14th Times Reports, 801, in the case of Harle vs. Catherall, in which the judge nud. in summing up: ''The first question was whether the corr^pondence which appeared in the paper was a libel at all — and according to the construction which had been put upon the Act of Parliament as regarded libel, the jury must judge for themselves. They were, perhaps, aware that it was for the Judge or the jury to decide what was a libel; but recently that (Question had been set at rest by Act of Parliament, which said that the jury were to decide, and not the judge. It had alwavs been the practice, since the passing of the Act, in these cases to leave the decision to the jury. He believed also that, according to the opinions of many eminent persons, the judge ought to state to the jury what his opinion of the case submitted to a Court was; so that w^ only the opin- ion of a Judge as a thirteenth juryman, as it were, and not a matter of law, which aided the jury in arriving at their decision upon the ques- tion of libel." That, Mr. Chairman is the law in the case. BEMABKS or MB. ATEBS. Mb. AYERS. Mr. Chairman : I may be permitted to express my astonishment at the action of the Convention on this matter on yester- day evening — astonished that in the morning, by a very lane majority they should have agreed to retain this substantial right in the Constitution, while in the evening of the same day they gave it aws^. A great deal of historical research was brought forward on vesterdar in support of the position which I took on the amendment offered by the gentleman from Sacramento, Mr. McFarland. I think the amendment now offered will restore in part the safeguards which were eliminated on yesterday. Great cases were alluded to, which may be called celebrated. I wish to read a line or two more from the same authority cited by my colleague from Los Angeles, General Howard : " If the Uw be clear, we may presume that the Judge states it clearly to the jurjr ; and if he does, undoubtedly the jury, if they are well advised, will find according to such directions." I think the amendment proposed by the gentleman from Los An(^le« will be a good one. The Judge will be able to communicate to the jury what is law in his opinion, while the jury will be left as before to decide for themselves the law and the fact. Mb. van dyke. Mr. Chairman : I think this is all out of order, for this very question has been voted upon by the Committee. The gentle- man can reach the matter when it oomes up in Convention, by refuung to adopt the report of the Committee of the Whole. We are traveling over the same^round again. The CHAIRMAN : Does the gentleman from Alameda raise the point of order? Me. van dyke. Yes, sir. The CHAIRMAN. It is not well taken. Mb. AYERS. I shall support the amendment offered by the gentle- man from Los Angeles, Mr. Howard, for the reason that I believe it will restore in part to the press the safeguards eliminated by last night's vote- 1 would like to know of any gentleman on the floor of this Convention what mischief has been committed under the old Constitution? Has there been any wrong done ? Has there been any difficulty in convict- ing libelers under that clause? Have there been any eecapies from just and merited punishment? I say there has not; and I say there is no need at this moment, in this State, of taking away this safeguaid which now surrounds a free press. This Convention will act wisely, and it will do an act of simple justice to itself and to the people by adopting the amendment proposed by my colleague. General Howard, thereby undo- ing a portion of the wrong you did yesterday. speech op MR. BROWN. Mr. brown. Mr. Chairman : I am in favor of the amendment that has been offered by the gentleman from Los Angeles, Mr. Howard. I am convinced that there are many cases in which the Judge decides frinting the libel, any more than the man who ii engaged in the business of forging notes or coining money. A libel is not a libel until it is pub- lished. The mere fact of setting down and writing a promissoiy note, and signing a name to it, does not constitute a crime. It is no crinw until he attempts to issue it, until he takes it out and attempts to dit- pose of it.' These libelous publications go into every county, and there- fore I say where it is issued and circulated is where the crime is com- mitted, and where be should stand his trial. The mere fact that a man has a printing office here in Sacramento, and publishes certain thiQgs,or sets them up, does not constitute the libel. It is circulating them broad- cast where people can see and read them. There is where the crime ii committed. I may live a thousand miles from the City of San Fran- cisco, a« I do about, and some people there may print an article that is libelous on me, and send ten thousand copies into the little town -what I live, circulate them in every hamlet in the county: throw them broadcast, so that every man, woman, and child will get to see and read it, and then if I want redress I must travel a thousand miles with mj witnesses to prosecute the perpetrators of that libel, and punish tht criminal. I say I will never support any such provision as that. I am as much in favor of the freedom of the prew as anybody. I say it has been the bulwark of our liberties; but I say the freedom of the press, in some instances, has been abused, and they have become licentious. But where they doeommit offenses which are punishable by law there is where they should be prosecuted. They should answer for the oflense where that offense has been committed. And if they commit an offense in eveiy county in the State, then prosecute them in every county in th* Stale, . just the same as you would a man who commits a forgery, executes forged paper, and circulates it all over the State. SrRKCB OP MB. ANDBBWS. ^ Mb. ANDREWS. Mr. Chairman : There is one very important dif- ference which will apply to the illustration of the genUemao from San Bemardin*, Mr. Rolfe. The profession of the forger is an unmitigated evil from every point of view. He is an outlaw and a criminal from the very day and hour that he conceives the idea of forging bills, and even before he circulates those bills, or false money, he is committing a crime. You cannot say that forgers subserve any great end in govern- ment, or that while some of them are good forgers, the majority are bad men. They are all bad men. It is different with the press. Newspa- pers are conducted, as a rule, by reputable citizens, and generally ooni- prise the best talent and the highest grade of infrUed. Thcv are acknowledged to be a great public benefit. Now, in the first case, we should use all means within our power to prevent the f>>rger from accomplishing his dangerous designs, and all means within our power to punish him for the offense. In the other, we should place no weij^ht upon it except it be absolutely necessary. It is only a oonstniclm commission ot crime where the paper is circulated. The actual com- mission of the crime is where the paper is published. I do not consider that the gentleman has given a fair illustration at all. For instance, you can take the forger up in Siskiyou County, as he suggested, and try him and convict him of forgery, and send him totbe Penitentiary for the term of years prescribed by law. But will the gentleman undertake to say that after he has been sent to prison for six years from Siskiyou that he can be tried by every other county in the State, for the same batch of money, and sentenced to an additional term in every county in the State? Or does he mean to say that, failing uf con- viction in one county, he can be hawked over the State until a jury in some one of the counties does convict? I hardly think the law perinil« anything of the kind. Therefore I hope this amendment will prevail. BKMABKS or MB. SHarTKB. Mb. SHAFTER. Mr. Chairman : When a paper is charged with haviiig libeled a man, it Js presumed that the publisher is innocent of the ofiense charged until the contrary is shown. But if a paper libels me— declares that I am a thief— then on the face of the paper there is an offense committed, and the burden is thrown on the paper to show that the statement is true, and that it was published with good motiree and for justifiable ends. The newspaper ought to be in itself a protection to the liberties of the people. But the liberties of the people are justas much to be looked after as the liberty of the press, for the liberty of the press is nothing more nor less than the liberty of a limited number of people. The papers are to be protected only because they are supposed to sufaaerve the cause of liberty and right. When a man is charged wiih being a thief, he has as much right to be vindicated at his own home as the newspaper has. I therefore move this amendment, which I think is eminently right and proper. It is to be added to the ameDdment already presented by Judge Campbell, and I hope that gentleman will accept it as a part of his amendment. Tri CHAIRMAN. Send up the amendment. Thb SECRETARY read: " Or in the county where the party alleged to be libeled resided at the time of the alleged publication." Mr. SHAFTER. That will confine the trial to two places, eithtf to the place where the paper is published or to the place wnere the libeled party resided at the time of the publication. Mb. CAMPBELL. I accept the amendment^ .oogle Nov. 8, 1878. OF THE CONSTITUTIONAL CONVENTION. 343 Mr. Chairman : Is an amendment in order? No, sir; there ia already au amendment to an ' Ma. EDGERTON. Tar. CHAIKMAN amendment. Ma. CAMPBELL. I have accepted the amendment offered by the gentleman from Marin, Mr. Shatter. Thi chairman. U the amendment ia accepted, then an amend- ment to the amendment will be in order. The gentleman from Sacra- mento will send up his amendment Ma. EDGERTON. I move to amend no as to read as follows: " In- dictments or informations for publications in newspapers shall be found and tried in the county wTiere such papers have their publication ofiBce, or in the counties where the party alleged to be libeleend on the matter of principle, we may as well strike out the whole section. I understand this to be one of the most important rights which the defendant has, and it is recognized as such in every State in the Union. Now, sir, is it not right to give the accused the right of compulsory process to obtain wituesses in his behalf? Are we to depend on the general principle for that right ? It seems to me that this is the very essence of the ri|^ht8 of accused per- sons, and they ought by all means to have a place in the Constitution. If we are to leave out this matteir we may as well leave out the whole section. The Federal Constitution provides that the 8ccu8eon depositions. REPLY OF MR. FAWCETT. Mr. FAWCETT. I think the gentleman has misunderstood me. Perhaps I do not make myself plain. When I spoke of depositions I had in my mind a case where there had been a preliminary examina- tion, and the testimony reduced to writing by question and answer. It is provided in the 'Amendments to the Codes of eighteen hundred and seventy-three, that in such, where the witness testifying afterwards dies, that the testimony could be introduced in evidence at the trial. The reason for that was. I suppose, that at the preliminary examination the defendant had hud an opportunity to cross-examine the witness, and all his rights were preserved. In that case there could be no injury done. The Legislature provided that in such cases the deposition can be used on the trial, in evidence. Now it is questionable whether that could be done under this proposed amendment. I say this plan has > tL-. ■■ jA ■ 344 DEBATES AND PROCEEDINGS Friday, worked well, and I think it should be continued. Thisproposed amend- ment will defeat it entirely. There is no method by which the testimony of a dead witness can be preserved. I spoke of depositious in that sense when I used the words. I hope the amendment will not prevail. The present law works satisfactorily, and I have yet to learn of any injury being done by it to the rights of a defendant. BEUASia OP MB. WILSOH. Mr. WILSON, of First District. Mr. Chairman : In confirmation of the statement made by the gentleman, I will say, that a few weeks ago there was in the Filleenth District Court, a criminal case of con- siderable importance, before Judge Dwindle. The prisoner was con- fined on a charge'of having murdered his own wife. The officers nar- rated some of the circumstances, showing it to have been a most brutal and fiendish murder. The preliminary examination had been had, such as was referred to by the gentleman from 8anta Barbara, and would have been sufficient to establish the case against the accused, but on account of some informality in preserving the evidence, it was ruled by the Court to be inadmissible. In the meantime the witness had died. Kow, Ach cases as this fre(}uently occur, and under this proposed amendment it will be impossible to admit these depositions. Such a doctrine would be dangerous. Thk chairman. The question is on the amendment proposed by the gentleman from Alameda, Mr. Van Dyke. Lost. Mb. HERRINGTON . Mr. Chairman : I will now offer my substitute. Thr secretary read : Skc. 13. In criminal prosecutions, in any Court whatever, the party accused shall have the fight to a speedv and public trial ; to have the process of the Court to compel the attendance of witnesses in his behalf, and to appear and defend, in person and by counsel. Xo person shall be twice put in jeopardy for the same offense; nor be compelled in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law. Mb. HERRIXGTON. Mr. Chairman: I call attention to this, that it simply allows the party to have compulsory pKooess. I do not know of any other clause in the Constitution where that clause is put in. It may be said that they will have compulsory process as a matter of course. This makes it a matter of law, not as a matter of course simply ; it makes it compulsory upon the Courts, and this isaright which cannot be gainsaid. I think it should be there if it is anywhere. I think this is the proper place for it. Thk chairman. The question is on the amendment. The amendment was adopted. Mb. CAMPBELL. I propose the following, to be added to tlie sec- tion as amended, which I send up. Thb SECRETARY read: "The Legislature shall have power to provide for the taking and using of depositions of witnesses in criminal cases when there is reason to believe that from any cause the witness will not attend at the trial, or may be unable to do so." Mr. CAMPBELL. Mr. Chairman : The reason of that amendment is simply this: There has been some doubt expressed whether the present statute uixm the subject of taking depositions is constitutional, and I know that the District Attorney should always have such power. I think it is necessary, and I hope it will pass. ABOOHINT OP MB. JONES. Mb. JONES. Mr. Chairman: If that amendment is adopted, it will, in my opinion, be a very dangerous thing. If it had been limited to a case where the deposition had been taken of a witness on preliminary examination, and the witness had died, I would not make any objection to it; but, if I understand it rightly, it would make it possible to try a man absolutely upon depositions taken from time to time, at different places, previous to the trial. It seems to me, sir, that it would take away all safeguards and protection. Suppose a man is on a ship which runs into San Francisco, and on the arrival of the ship into port the captain may tlirow him into jail upon a charge of mutiny, or any other charge in the catalogue. He is a poor man, unable to give bail, unable to procure able counsel. The captain wishes to sail again, and so the prosecution takes the deposition of the sailors, and the ship, with its crew, is away again. Ana when the man comes to trial, he may be tried purely upon depositions, there being no witnesses present. No chance to confront the witness; no opportunity of cross-examining them. I think it is no more than reasonable and right that the testimony of the wit- nesses, taken in the proper manner, in accordance with law, upon a preliminary examination, should be used. But to make it possible to try a man solely on depositions, I say is not right, because, in the case of a poor man, unable to employ counsel, great injustice may be done. This amendment is dangerous; it is going too far. If the gentleman would be satisfied to modify it so as to confine it to cases where the tes- timony is procured and used on account of the death of the witness, 1 see no objection to that, because on the preliminary examination the accused has an opportunity of confronting the witnesses, and cross- examining them. It is oftentimes the case that the accused cannot afford to employ counsel, and has to accept the services of counsel appointed by the Court — young men just beginning- in the practice of the law. He would therefore not be prepared to face the witnesses with counsel when these depositions are taken. In the case where the testimony of a witness is taken on the preliminary examination, and that witness dies before the trial, I think likely we can safely admit it without opening the door of danger. But to throw open the door to all classes of depositions is not wise, in my opinion; and I hope, for these reasons, that the amendment, in its present shape, may not pass. It seems to me to be dangerous. aKMABKS OP MR. CAUPBILL. Mb. CAMPBELL. Mr. Chairman : I think the gentleman hardly comprehends the scope and purpose of the amendment which I bare offered. It leaves to the Legislature the duty of throwing the proper safeguards around the taking of testimony in such cases. And I think the Legislature can be safely trusted to that extent. Now ve have an immense number of cases, with our migratory population, where men come to the city to-day, and want to transact their business and go to their homes to-morrow. They come from the neighboring States of Nevada anil Oregon, and from remote parts of this State, and it is difficult to get them at the trial without imprisoning them. The result is that justice often is defeated, because all that class of migratory persons are glad to get out of the way, and there is no way of securing their testimony unless they are thrown into jail. The prosecuting o£^%rs have not felt them- selves'safe in relying upon any section which has been enacted upon that subject, for the reason that they fear it will conflict with the Con- stitution. Now this merely leaves this matter to be regulated by the Legislature; it does not propose any precise system that shall be adopted, but leaves it where it should be left, to the legislative wisdom to determine the details. It it barely possible that such cases may arin as were alluded to by the gentleman from Mariposa, Mr. Jones. But such cases are decidedly improbable, and where an attempt is made to pile up depositions by anv fraud such as that, I think it is safe to asj that the jury would look at the matter in its true light, and regard the depositions as of no more force than so much waste paper. I think ibis amendment is really neoessarv in order to make the administration ol our criminal law effective and prevent the defeat of justice. Taketbtt class of crimes in San Francisco, swindling games of all kind, bank- ing games, strap games, etc, by which strangers are often mbbd They either have to be put in jail for several months, or the criminal cannot be punished, for many times they would rather lose {heir property than go to the expense of staying, or of making another trip. That a the actual result of it. I believe the Legislature can frame a Uw which will be applicable to cases of that kind without endangering the rightsof accused persons. Ta( CHAIRMAN : The question is on the adoption of the amend- ment. Adopted. Mb. mills. I offer an amendment. Thb SECRETARY read : " Insert after the word counsel, 'and to have a jury selected from the district, county or township in which the crime is charged to have been committed, unless the venue be changed as provided by law.' " Thk CHAIRMAN. The amendment is not in order. The committee have adopted a substitute for that. The question is now on the amend- ment of the Judiciary Committee as amended in Committee of the Whole. The Secretary will read the section as it now stands, with the amendments adopted. Thk SECRETARY read : Sec. 13. In criminal prosecutions, in any Court whatever, the party accused shall have the right to a speedy and public trial ; to have the process of the Court to compel the attendance of witnesses in his behalf, and to appear and defend, m person and b^ counsel. No person shall be twice put in jeopardy for the same offense; nor be compelled, in any criminal ease, to be a witness against himself; nor be deprived'of life, liberty, or property, without due process of law. The Legislature shall have the power to provide for the taking and using of depositions of witnesses in criminal cases, when there is reason to believe tnat from any cause the witness will not attend at the trial, or may be unable to do so. The amendment, as amended, was adopted. RUINENT DOMAIN. Thb CHAIRMAN. The Secretary will read section fourteen. Thk SECRETARY read: Sec. 14. Private property shall not be taken for public use without just compensation being first made to, or paid into Court for, the owner. Mr. hale. I desire to make an amendment to section thirteen. Thk chairman. It is too late. The committee have adopted it as amended. Mr. hale. I ask leave of the committee. "Object," "object." Mr. BLACKMER. I move that the committee now rise, report progress and ask leave to sit again. Lost. Mr. DUDLEY, of Solano. I offer an amendment to section fourteen. Thk secretary read: " And no right of way shall be appropriated to the use of any corpora- tion until full compensation therefor be first made in money, or secured by a deposit of money to the owner, irrespective of any benefit from any improvement proposed by such corporation, which" compensation shall be ascertained by a jury in a Court of record, as shall be prescribed by law." Thk chairman. The question is on the amendment proposed by the gentleman from Solano, Mr. Dudley. Mr. DUDLEY. Mr. Chairman: It has been a rule of the past that when damages were assessed for a right of way, to allow the prospective advantages to offset the damages. There is something unjust in permit- ting corporations to take for their own use the property of individuals, without rendering just and fair compensation therefor. They may run across thousands of acres of land, and ruin it, leaving the owners abso- lutely paupers. I hope the Convention will adopt this amendment Mr. EDGERTON. The gentleman is entirely in error in his state- ment of the law. Mb. DUDLEY. I stated the proposition J^did not pretend tojtate the law. r^ Digitized by >n^J^did not preiena Google Nov. 8, 1878. OF THE CONSTITUTIONAL CONVENTION. 345 Mb. BABNES. There was formerly a statute, the Act of eighteen hundred and fifty-one, as amended in eighteen hundred and sixty-two, in reference to this matter. Afterwards the principles of eminent domain were so stated that in no event could the land be taken without being paid for. Then you can proceed to assess the damages to that por- tion 01 the land not taken, and against that class of damages you can off- set the benefits derived by the owner of the tract, hut in no event can the land be taken without it is paid for at its (iiU cash value. The damages and Ijenefits form entirely different subjects. Ma. LAINE. I move that the committee rise, report progress, and ask leave to sit again. Carried. The Convention took a recess until two o'clock p. m. AFTEKNOON SESSION. Convention reassembled at two o'clock r. u., President Hoge in the chair. Roll called, and a quorum present. COBrORATIONS. Ma. ESTEE. Mr. Chairman: At the request of several gentlemen who will be obliged to leave to-morrow, I move that the report of the Committee on Corporations other than Municipal be made the special order for Tuesday next, immediately after the reading of the Journal, to take precedence over all other matter. Mk. LARKIX. Mr. Chairman : I shall oppose any special orders^y this Convention, for this reason : In order to do any work in this Con- vention the members must stay here and not be away every Friday, Saturday, and Monday, as they do when special orders are made. I have seen enough of it. Whenever a special order is made these men 20 an-ay and leave us here. We have been here now forty-four days. The reasons of our coming here were to amend our Constitution in rela- tion to corporations, in relation to taxation, in relation to the judicial system, and in relation to the legislative department. We have not reached them. We have wasted the time and passed it all away on the Bill of Rights, and it is not finished yet. We have had speciaf orders, and postponements, and delays, week after week, and have not touched the actual work that we came here to do. The people who voted for the Constitutional Convention demand of every, member that we should oppose further delay, and see that no special orders are made. Mk. ESTEE. Mr. Chairman : I am rather amused at the enthusiasm exhibited by the gentleman from El Dorado, when I consider that this is already a special order, and there are other matters that can come up. I will say to the gentleman that I am not going away. I will be here ready to attend to it. This motion was made for the reason that it was considered by a, great many of the friends of business— if I may use the term — those who desire to advance the business of this Convention, that we ought to have a full house when this imfiortant subject is taken up. The fact is that there will not be a full house to-morrow when this report will probably be reached. That is the fact. They will not be here. Now it is important that a matter of such grave importance should be considered by a full Convention, and I therefore hope that it will be made the special order for Tuesday next, immediately after the reading of the Journal. So far as I am personally concerned, I am ready to take it up now, but because the gentleman from El Dorado will be here, and because he hates to make the matter a special order, does not keep people here. Mb. BROWN. Mr. Chairman : I am opposed to this thing of special order for a day in the future. I hav« seen now this has worked before. We are told that certain gentlemen are going to be away, or will not be here. Do we expect the great business of this house to be carried on to perfection by a class of men, who are so exceedingly negligent that they will go away when they know that there is business of importance before the house. It is urged that these men are going to be away; that though there is important business before this body, and matters that they are expected to participate in, yet they will leave; and in view of this we must put it off until they happen to be here to suit their con- venience. That is substantially the position, and the gentleman from Ban Francisco can see it as plain as any of the rest of us. The class of men who will be awa^ are not the men to be depended upon in the great work of this Convention. I am in hopes that the members will not go, and that they will stay here and attend to business. It is necessary that we should, or else the one hundred days will be out and no Constitution perfected. If they will go let such gentlemen depart, and if there are aome gentlemen indolent and others careless and will leave, let them leave, but let the true and faithful remain here and work regardless of the negligence of others. Ma. WILSON, of San Francisco. Mr. Chairman : Just about one week ago the Committee on Corporations other than Municipal, made a report of some very important amendments to the Constitution — exceedingly. im|)ortant. Probably this Convention has no business before it of greater importance that what is involved in the recommendations of that committee. This was printed and laid upon our desks, if I recollect, on Saturday last, less than a week ago. Every day this week gentlemen have been engaged in discussing the Bill of Rights, and every night if they have been aoing what I have been doing, they have been siUing on committees. Now, I would like to know what gentlemen are r^dy to take up so important a question. I, for one, am not, and I have probably got about as much good hard work in me as any other man of my weight. I have been workiug every day in the house and at nights in the Committee on Judiciary. I take it for granted that every other gentleman has been working too. I do not believe that a crude and hasty discussion hern is going to advance business at all. We had better make haste slowly. I do not think that when gentlemen are working upon committees, or are at work in the examination of a report that is to come up, are neglecting their busioeas here. I know that 44 the best part of the business of the Convention is done when it is not in session. Very littleof the workof thisConvention isdone in the sessions of the Convention. We came here to debate questions and present what we have prepared outside of the house, and it is a very great mistake to suppose that because gentlemen do not answer roll call that they are neglecting business. Most of them study propositions outside of the house. I do not think this Convention is going to advance business by the discussion of any hasty and inconsidered ideas. I am in favor of the postponement because I think the eentlemen will be better prepared to discuss and decide the question if tne postponement is made. Ma. LARKIN. Mr. Chairman : I am aware that there has been work in the committee ; but at the rate we have proceeded it will probably take three or four weeks to dispose of this report of the Committee on Corporations. We can commence the discussion of that question when- ever it appears on our file. We can take it up and we can proceed with it section oy section, and we can examine it better here where we can consult together. After we amend it and discuss it for about three or four weeks, we may finally act upon the report of the Committee on Corporations. I am in favor of proceeding without delay or further postponement. It will take three or four weeks to dispose of it any way. Thk PRESIDENT. The question is on the motion of the gentleman from San Francisco, Mr. Estee, that the report of the Committee on Corporations other than Municipal he made the special order for Tues- day next, immediately after the reading of the Journal, to take preced- ence over all other matters. The ayes and noes were demanded by Messrs. Larkin, Barbour, Larue, Stedman, and Gorman. The roll was called, and the motion prevailed by the following vote : Andrews, Hager, Hale, Reed, Ayers, Rhodes, Barnes, Hall, Ringgold, RoliS, Barry, Harvey, Herold, Beerstecher, Sehell, Belcher, Herrington, Shafler, Blackraer, Hilbom, Shurtleff, Boggs, Howard, Smith, of Santa Clara, Boucher, Huestis, Smith, of 4tb District, Casserly, Inman, Steele, Chapman, Kleine, Stevenson, Charles, Lindow, . Sweeasy, Cowden, Mansfield, Swing, Cross, Martin, of Santa Crui , Thompson, Dowling, McFarland, Akcquerel, Van Dyke, Dudley,of San Joaquin, McNutt, Eagon, Miller, Van Voorhies, Edgerton, Mills, Walker, of Tuolumne, Estee, Murphy, Waters, Estey, Naaon, West, Fawcett, Noel, Wickes, Finney, Overton, Wilson, of 1st District, Freeman, Porter, Mr. President— 71. Garvey, Pulliam, NOtS. Barbour, Hughey, Prouty, Barton, Hunter, Reynolds, Brown, Jones, Schomp, Burt, Joyce, Shoemaker, Caples, Kelley, Smith, of San Francisco, Condon, Keyes, Soule, Crouch, Lam^n, Stedman, Davis, Larkin, Strong, Dean, Larue, SwensoD, Doyle, Lavigne, Terry, Dudley, of Solano, Lewis, Tinnin, Evey, McCallum, Tully, Farrell, McComas, Turner, Filcher, McConnell, Tuttle, Freud, McCoy, Walker, of Marin, Glascock, Moreland, Webster, Gorman, Morse, Weller, Grace, Nelson, Wellin, Harrison, Neunaher, White, Heiskell, Ohieyer, Wyatt— 62. Hitchcock, O'Sullivan, aURNOMIMTS TO BVLIS. Mr. McFARLAND. Mr. Chairman: A few days ago I made a motion to amend rule twenty-four, simply to the effect that where the ayes and noes are demanded, the names of the gentlemen making the demand shall be entered upon the minutes. I move to take it up now. Carried. Mr. McFARLAND. Mr. Chairman: The rule now requires that " on all motions whatsoever the President shall take the sense of the Convention by ayes and noes, provided five members present shall so require." Now, my amendment is simply to add after the word " require," the words " whose names shall be entered upon the min- utes." There is a great deal of time expended in calling the ayes and noes here ; and if gentlemen think enough of a matter to demand the ayes and noes, they ought to be willing to have their names go into the Journal as having mwie the demand. I move the adoption of the amendment. The amendment was adopted. Mr. NOEL. Mr. Chairman: In accordance with previous notiM,] >tice,1I i*^ " -*^ *. -■ _ 346 DEBATES AND PROCEEDINGS Friday, now move to amend the rules hy strikinf^ out in the Standing Rules rule seventy-one, and insert in lieu thereof the following: RCLI StrCSTT'OKK. lo all MMt wbrra propoaltloni or rtaolationri pmbodylng maltcrt pnpowd to li< tnlnxlucrd into the Conatltutlon uro pr1nt«l. It niu>t Iw by a iniOanl.T vote of the ConTenllun ; bat reports of itaBiling committeM •hall be priiited without any rote beiDg had. Mr. HAGER. I do not think any one understands the proposition. I have not heard it read. Thk secretary read the proposed amendment as above. Me. McCALLUM. I like that rule very well except the last clause of it. I notice*! that we have the reports of committees printed twice. Where it is desired to print the report of a committee wparalely we can do it, but as it is, gentlemen will notice that the reports of committees are duplicated by being printed in the Journal. 1 move to strike out that last clause,'" but reports of standing committees shall be printed without any vote being had." We can order them printed when we desire to. These things are printed twice now. The rule does not need to say anything u[K>n that proposition. They will be printed in the Journal as a matter of course. Mr. KOEL. I accept the amendment. Mr. HUE8TI8. Inasmuch as that is my notice and my proposed change of the rule, I also accept the ameodn>ent. Mb. . WYATT. Inasmuch as Mr. Hupftis claims the parentage of that resolution, and inasmuch as he called it up the other day and it was voted down by the Convention, I hope the Convention will not pass that in the style it is brought here. If Mr. Noel is willing to father the resolution he may do so, but I do not want Mr. Huestis to stand god- father to a child that has already been buried.> [Laughter.] The amendment was adopted on a division by a voto of sixty-three ayes to fifty-five noes. THR RtPORT OM CORPORATIONS. Ma. EDGERTON. Mr. Chairman : I move that there be ordered printed two hundred and forty extra copies of the re|K>rt of the Com- mittee on Corporations other than Municijial. Gentlemen are receiving letters fW)m lawyers and other gentlemen all over the State lo get copies of that report and the supply is exhausted. I am out myself. I have sent one away and I cannot get another. I suppose there are many gentlemen in the same fix. Mr. WYATT. I move a thousand copies as an amendment. Mr. CONDON. Forty thousand. Mr. AYEKS. Nine hundred and sixty. Mr. ESTEE. Four hundred and eighty- Mr. EDGERTON.^ I accept the amendment making it four hundred and eighty — that four hundred and eighty extra copies of number four hundred and forty-four be printed. The motion prevailed. * khinrxt imiiain. Mr. van dyke. Mr. President: I move that the Convention now resolve itself into Committee of the Whole, the President in the chair, to take into consideration the remainder of the report of the Committee on Preamble and Bill of Rights. Carried. IN COMMITTEE OF THE WHOLE. Thk CHAIRMAN. The Secretary will read the section as reported by the Committee on Judiciary and Judicial Department. Thr secretary read: Skc. 14. Private property shall not be taken for public use without just compensation having been first made to or paid into Court for the owner. Thr chairman. The question is on the amendment to section fourteen. offered by the gentleman from Solano, Mr. Dudley. The gen- tleman from Solano moves to amend by adding the following: "And no right of way sliall be appropriated to' the use of any corporation until full compensation therefor be first made in money, or secured by a deposit of money, to the owner irrespective of any benefit from any improvement proposed by such cor|>oration, which compensation shall be ascertained by a jury in a Court of record, as shall be prescribed by law." RRMABK8 OP MR. DL'DLRT. Mr. DUDLEY, of Solano. Mr. Chairman : I desire to oflfer one word upon that matter before the vote is taken. The only idea in the amend- ment is simply this, that damages shall be assessed and paid irrespective of the benefits that may be supposed to accrue to property because of any proposed improvement. It was stated just before the recess that the present law prevented the offsetting of the value of land by prospective damages, liiidoubtedly that is correct. But it has been the rule, and I presume that it is yet the rule, that damages outside of the value of real estate condemned, damages arising from the surveys run, or from cutting a farm into irregular shape, are aiuesaed by the offset prospective benefits which will accrue to that property. In this there is very little of justice. The whole community, in the case of a railroad, for instance, are equally benefited with the person who is suffering, and there is no good reason why one man should be compelled to sufler damage to his property for tlie benefit of a whole community. Now it was urged here before dinner that the Courts had already con- strued this matter, and we were requested to let it alone and not inter- fere with it. The amendment reported even by the Committee on Judiciary is different from the ola clause, which is the last clause in section eight of the Bill of Rights in the old Constitution. That is, the ideas are expressed in a greater number of words. Being a change of course it will be subject to a reconstruction by the Courts. It must be borne in mind that we are engaged in manufacturing a new Constitu- tion, which will involve the passage of new laws, and will require a construction by the Courts on these new laws. I do not think that such reasoning as that will lie against this amendment. Under the law which was passed, as I understood the gentlemsa from San Francisco, Mr. Barnes, in eighteen hundred and fiftv- one, and what remained upon the statute book until eighteen hundred and sixty-eight, it was tne rule, or at lea-st it was the pradiw, particularly on the' California Pacific road, to offset the entire damaf;« by the supposed prospective benefits. Now, if under the old Constita- tion such an act was passed and was in force, unless it is prohibittd, there is a ]ios8ibility of the re^naotment of such a law and the re^^b- lishment of such a rule of nmstruction. I submit that there ie tliat possibility, and I ask the attention of members of the Convention l« this matter, particularly those who are residents of the agricultural di^ trirls, and are liable in the future to be damaged in this way. It uiost be borne in mind that, as land becomes more valuable, as it is more generallv taken up and cultivated, and as the railroads increase, they can not be run across the country without doing very material dama^; without severing farms into irregular shape: without separating build- ings and destroying orchards, and there is no justice in permitting the feneral advantages accruing to the community to oflset that dus of amages. SPRICa or MB. RnOIRTON. Mr. EDGERTON. Mr. Chairman : The provision recommended by the Committee on Judiciary is as follows: "Private property shall not be taken for public use without just compensation having been first made to or paid into Court for the owner." This is a subject that has been very frequently before the Legislature in this State, and it has been very frequently before the Supreme Court of the State for adjudi- cation. It has been a very vexed question, and the rule in regard to it has. until lately, been a very shifting one. But, finally, a system his been perfected — I say that because I so think in regard to it — a system has been adjusted to the Constitution, or that clause of the Consti'tation as it now exists; and this only modifies that clause by the insertion of the word " first," at the suggestion of the gentleman from San Bernar- dino, Mr. Waters, so that it reads "compensation first made to or paid into Court," etc. Now, sir, it will be well enough to examine this system briefly, as it is now established, to see whether any change should be made in the Constitution, as it now stands, but the simple amendment made by the Judiciary Committee. The rule as to the compensatiou for the condem- nation of land is as follows : " The Court, jury, or referee must hear such legal tertimony as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess: "1. The value of the property sought to be condemned, and all improvements thereon pertaining to the realty, and of each and every separate estate or interest therein ; if it consists of different parcels, the value of each parcel and each estate or interest therein shall be assessed." We have got thus far the compensation for a thing taken — a thing taken out of the ownership, possession, and control of the individual and surrendered to a public use — no matter what it is. It may not be a railroad bed that is the thing taken under the exercise of the right of eminent domain. The whole value of the thing has to be paid inde- pendent of any considerations of benefit resulting to an adjoining propertv. " 2. U the property sought to be condemned constitutes only a part of a large parcel, the damage which will accrue to the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by ^d in this Act, the real estate, or the right, title, or interest therein described in such report, shall be and become the property of said company for the purposes of its incorporation, and shall be deemed to be acquired for, and appropriated to, a public use." The effect of that statute, Mr. Chairman, was simply this: that any railroad company, after it had determined upon the line upon which it would run, and complied with the provisions of the statuA in respect to the filing of the proper papers, might enter upon and take pos.session of any man's land they saw fit, and while still being in the possession of it have a proceeding to condemn it, and Commissioners appointed upon whose Judgment the land should be paid for. But the Commis- sioners were allowed to take into account the benefit the party was to derive from it, and if they thought he got a greater benefit than the value of the land amounted to, the railroad paid him nothing for his land, and it was considered an act of grace that they did not require him to pay for the additional benefit obtained. That law continued until the adoption of title seven of the Code of Civil Procedure. Emi- nent domain is there defined as follows: "Eminent domain is the right of the people or Government to take private property for public use. This right may be exereised in the manner provided in tnis title." We all know that tb» right of eminent donukin is a right as old as government. I believe it was either CEe.efore us relative to counties, cities, and towns. In the report of the committee having charge of those matters, it is propose*^ that the expense of roads and streets shall be cast upon the property benefited, however remote from the road or street to be opened. In this latter case ''benefits" are set-offs against "damages." The object attained is just compensation to the citizen who is injured. The natural persons assessed are required to pay money enough, and no more, than the person whose property is taken or damaged is entitled to have. The ' moment, however, five persons incorporate, their liability is enlarged; not because the person to whom payment is to be made has suffered any more, or is morally entitled to more or less, but because it is thought a • fit and proper exercise of governmental authority to wrongfully take a corporation's monev and give it to a man who has no just claim to it. It makes, in the minds of some, a marvelous difference whose ox is gored, and whose bull it is that has offended. From these considerations, I think that the proposed section is unjust, and ought not to be approved. There is another difficulty important to be considered. There is, doubt- less, an appeal to bo allowed from the judgment fixing damages. This will create large delays, seriously postponing important and pressing public improvements, including streets and highways as well as rail- roads. Mow, is it advisable to allow such appeal to have the effect of producing great inconvenience and public loss; or is it not better to allow the work to proceed upon depositing the assessed damages with the (?ourt, leavifig the corporation subject to any increase which may result from a new trial? These questions, it seems to me, are properly subjects of legislative action, and to the Legislature they ought to be left. It is, however, use- less td*pres3 this consideration. This section presents a feature quite common here — a general declaration of a principle — an attempt at inserting executory provisions but half accomplished, and leaving to the Legislature the task of finishing up the work, and of extricating, if possible, the subject from the muddle which the Constitution creates. BK1I.1RKS or MB. HEBBIitOTON. Mb. HERRINGTON. Mr. Chairman : I would like, myself, to offer an amendment if it were possible to be done. I am opposed to the amendment offered by the gentleman from Solano, and for this reason. It permits precisely the very thing which we have always attempted to avoid— that is, allowing in the exercise of the eminent domain, tlie par- ties to take the property in the first instance, and then compel the other parties to sue for damages that may accrue. That ought not to be done, and I submit, in engrafting upon the organic law measures of that char- acter, I am opposed to considering the effect that it will have upon the interests of the general public It is well understood that the exercise of the right of eminent domain, is vastly different in its character from the established proceedings in a Court of justice, and under that state of circumstauccs the jury need not necessarily appraise the pro(>erty. The consequence is, that if the Legislature see fit they may appoint any other tribunal to determine that question. " Due process of law," as was definee class of cases to which the one in question belongs." Now, to what clua does it belong when it comes to the question of property? Cnless you put it in your organic law, and in langua^ that cannot be mistaken, th« present provision you havein your Constitution, securingjury trial, will not give you a trial to fix your compensation for ilamages after the taking of the property. I desire to have it fixed in this identical iiroTis- ion that a jury trial may be had. And I desire that the jury ihall deter- mine in the first instance, the amount of compensation which any party shall be paid whose property is taken. There are none of us but want that. I am not desirous that any different rule from that which has pre- vailed, with reference to municipal corporations, should t>e adopted, but I am desirous that in every instance the jury shall determine the com- pensation to be paid. It is the moat fatal blunder in the world to incor- porate anything of that kind in a constitutional proposition. I propoee to offer this amendment, if this one now pending is defeated : "Amend section fourteen as amended by the Committee on Judiciary and Judicial Department, by adding thereto : 'And the amount of com- pensation shall be without rebate for benefits to accrue, and shall be first determined by a verdict of a jury, or as the parties interested shall agree.' '* There is nothing lumbering about that. That cuts to the marrow bone. It fixes your railroad companies and binds them to hare the question tried before a jury. It makes one law govern all cases. I am opposed to allowing bonds to be given. I did not feel that under m; duty here before this body I oould sit still and permit a provision of thst character to be voted upon without entering my protest against any such measure. It has been engrafted in our laws in the very teeth of the Cx>nstitution, and the Courts have gone so far even as to issue onien directing the Sheriff to put parties in possession of property under such circumstances. Of course the Supreme Court %ela that that could not be done under the Constitution ; but it has put a great many of our private citizens to a great deal of trouble. These are the things which we seek to avoid. If there is any hardship, let these other partiet undergo the hardship*. % I am opposed to this amendment for the reasons I have alle^. I think it is a fatal provision to insert allowing any such things as bonds to be given and property taken in that way. I hope the amend- ment will be voted down, and I shall have an opportunity Uf present this amendment, and that it will be adopted. BBHABKS of MB. DUDLBT. Mb. DUDLEY, of Solano. Mr. Chairman : I did not expect, when I offered that amendment, that it was going to create so much discus- sion. It is admitted finally by the gentleman on my left that the rule is to offset absolute damages by supposed benefits. Now, my amend- ment covers that one single idea alone and no other; that is, that abso- lute damages shall not b« set off by supposed benefits. There is no question of bonds. Neither does it enable anv individual to lie in the way of any corporation In any manner that does not now exist. The amendment refers simply to corporations other than municipal. So &r as swamp land districts, counties, towns, or any other municipal corpo- ration is concerned, it does not affect them the least. The clause pro- vides that " no right of way shall be appropriated to t^e nsc of any corporation other than municipal until full compensation therefor i^ first made in money, or secured by a deposit of money, to the owner, irrespective of any benefit from any. improvement proposed by such corporation, which compensation shall be ascertained by a jury in t Court of record, as shall be prescribed by law." That is the one ides in the amendment — simply to prevent the offsetting of absolute dam- ages against supposed benefits. It does not affect streets or public roads. And there is this difference between a railroad and a public road. A public road is generally run at right angles, and does notF cat up farms into inconvenient shapes, while railroads are the very reverse or that rule. That alone might form one reason for making a little difference. Gentlemen have sought during this discussion to mystify and lead astray gentlemen of the Convention upon this subjeci. They have tried to make it appear that it is all right now. It is asserted that after a good dejil of trouble we have Judge-made law to cover the ctst. We have got the decisions of the Supreme Court. Now we are provid- ing a new Constitution, and under tnat Constitution there will be new legislative enactments. For the purpose of not troubling our Judges to make law, I propose that this Constitution shall have this clause, which shall make it a law unto itself. BIUABKS of MB. MILLS. Mr. MILLS. Mr. Chairman : I have listened with a great deal of interest to this discussion, and it has mainly been on the questkin of what is compensation. Now, the law respecting the taking of private property, provides that before property can be taken, it must appear, first, " thai the use to which it is to be applied is a use authorized by law; second, that the taking is necessary; third, if alreadv appropriated to some public use, that the public use to which it is to de applied is a more necessary public use." Under that proposition, sir, the Question as to the necessity of its beinf; taken for tnat particular use, is made a question of law alone, and is never submitted to a jury. The right to submit that question to the jury is denied by the Courts. Whether it he necessary to take property or not, it seems to me, ought to be the first question and the main question for the jury to determine. An attempt may be made to locate a public highway across an orchard or through a man's garden, or through his door-yard. Now, should that question not be submitted to the jury? It seems to me, sir, that it should. I am in favor of the amendment. The rule has been well settled that general benefits are not to be counted, but it not infrequently happens uiat the Digitized . Nov. 8, 1878. OF THE CONSTITUTIONAL CONVENTION. 351 daiaage to the land that is taken is very small while the damage to other property not taken is very large. It seems to me that this amendment places it beyond question. How can it be said that there are any other benefits than the benefit to the whole community? What particular benefit is it to a man to have a railroad run directly through his place? It seems to me that this amendment wilf put that question at rest and settle it anuABKs or hb. cross. Mk. cross. Mr. Chairman: This right of eminent domain is per- haps the highest right exercised by government ; a right under which one indivimial really gets the benefit of taking away the property of another without the consent of the owner. Now, if that is the highest prerogative of this goverement, it ought to be guarded, and pretty well gained too. In framing a Constitution, we should put into it such pro- visions as we think will protect private rights, and the proposition of the gentleman here that it is not the proper place to guard these rights in Constitutions, is disputed by the fact that a large number of Constitu- tions have incorporated similar provisions. One of them has almost the words in which Mr. Dudley has proposed it. The Constitution of the State of Iowa has a provision which 1 will read: " Private property shall not be taken for public use without just com- pensation first being made, or secured, to be paid to the owner thereof, as soon as the damages shall be assessed by a jury, who shall not take into consideration any advantages that may result to the said owner on account of the improvement for which it is taken." Now, the proposition clearly stated, as I understand it, is this: The proposition first proposed to the committee amounts to this, that if the railroad company means to take half of my land, and takes it in such a way that not merely the land is taken but adjoining lands are injured, then the question will take the shape stated by Mr. Barnes. If the rail- road runs between my house and my bam they pay for the acreage taken. They may also be assessed for the damage which it is to me to have a railroad between the house and barn, but they may offset against that the foct that I ma^ derive some advantage b^ having the railroad 80 located. Now the objection to leaving the definition in the shape that the benefits may be odset against the damages, is illustrated by a case like this, which came within my personal knowledge. The railroad which runs from the City of Chicago to the City of Joliet, in condemn- ing a right of way, had to take from a large building the ground upon which a wing of the building stood. Kow the community were greatly interested in having that railroad constructed. Their minds were inflated with ideas of the great advantages to be derived. 8o they took the ground upon which uie wingof the house stood and the railroad track run within thirty feet of the side of the building. When the jury came to assess the damages the evidence introduced as to the benefit which would result was to this effect: that this building was a large building; that it could be turned into a boarding-house or a place for the traveling public to put up; people would put up at the house on account of its proximity to the railroad; and that the advantages to. accrue in that way would more than offeet the increased danger of fire and the inconvenience of alarms at unreasonable hours, and other prosi>ective damages. And the jury brought in no damages on account of the proximity of the railroad track to the building. But when the man came to try it on and make a hoarding-house out of it, he found the station located at another place, and the result was that the man's property was ruined. The danger in this class of cases is this — and I refer to General Howard for the expe- riences of southern California during the late construction of railroads in that country — that when men hear of a railroad coming they almost think that it is heaven come down to earth. Land worth five dollars an acre is going to be worth fifteen or twenty dollars an acre. Some- times that nappens and sometimes it don't. But the ordinary jury, as to the question of benefits, do become inflamed until they give unrea- sonable benefits, and that will be the observation and experience, I think, of men who have seen the thing. I have seen railroads con- structed in a certain town where a man could hardly get the government price for his land, on account of the inflamed sentiment of the public as to benefits. But what is the fact? The land adjacent that is not taken is benefited even more. The men whose lands are immediately adja- cent do not get the benefit. Who does not know that the lots one or two or three blocks otf are even more benefited? Then the result of the rule amounts to this : that the man over Jwhose ground the railroad is constructed receives really no benefit from the construction of the road, because they take from him the measure of damages, or take it in such a way that he receives no benefit. But other men, through whose land the railroad does not run, get the benefit of the railroad and stand no part of the damage. Now, as to this legislative provison, it seems to me that in the main it is a very good one. But we have not merely to inquire as to the quality of the present legislative enactment. We have to inquire as to the cer- tainty of its being a permanent provision. If this enactment of the p^ilature is in that shape that no railroad influence can shake it; if it is in that shape that twenty-five years from now it will stand just as it does to-day, it might answer the purpose very well. But who is not familiar with the fact that not only in tliis Stale, but in every State in the Union, the railroad power has been strong euough, whenever it took the matter thoroughly in hand, to control legislation, and to get such legislation as it seemed to want. Now, sir, we have a duty to perform here in making such a permanent provision in regard to this matter as ieems to us necessary and right. 'The question is asked, what difl°erence is there between the method of assessing damages for laying out a pub- lie road and for laying out a railroad? My idea of the matter is this: when you have laid out a public road every man has a right to the benefits of that road without cost or expense, and it is maintained by the public taxes. But when we come to talk about a railroad, rail- nods are not built for the public good. They are built for private gain, I and if any man desires to have the benefit of the railroad he can have it by payingjuat what the railroad company asks him for enjoying the privilege. This iaone diflferenee, or one reason why the rule for laying out a public road and for damages in such a case is not a good rule for damages in the case of these quasi public corporations who may take private property for their public use. As was suggested here, these prospective damages can be taken into consideration as well as the pros- pective benefits, and I will give you a true example of it from the words of one of the gentlemen who spoke on the other side. It was said that under these provisions a farm might be taken to be used as a place to deposit tailings. Suppose that can be done under the princi- ples which they want left in the Constitution, whenever parties propose to takes farm as a place to deposit tailings upon, the man who proposes to take it as a field to dump his tailings on has the right to say to the mau whose land is taken, "Sir, tailings will improve your laua. True, I take your land to deposit tailings on, but in five years the tailings will make better soil than you have to-day." Then the jury take into consideration the fact that at some future time the soil will be better than it is now. That is an illustration of the result of what the gen- tlemen want to engraft upon this system. But If, as they say, to put this provision in here will have no effect, I ask why it is that since this question has been up certain gentlemen, whose motives and intentions are not known, are standing about the doors of our Convention, and sending in for gentlemen to come out and talk with them on this very provision ? I ask, if this has nothing to do with these matters, why it IB that gentlemen who have been guardians of these rights for some years back are excited, and make such eloquent speeches on these mat- ters? I wish that some abler man than I could deal with this question, some man who could rivet the attention of this body to the real question at issue for a moment, would stand up here and advocate this matter. But the principles we advocate are nght aud we must stand for them. That is what we are here for. (tnd if we cannot talk — well, we know how to vote right on such propositions. [Applause.] Mb. BARTON. Mr. Chairman: I do not intend to make a speech upon this proposition at all; but, Mr. Chairman, I desire to say a few words. If the members of this Convention desire to do the people of this State a good — if they desire to render the people of this Stat^ a safeguard — they will not listen to the sophistries of the gentlemen opposed to this amendment, but they will put this safeguard in the Constitution in behalf of the people. I shall support this amendment, and these are the reasons why I snail support it: because I believe that it is the only safeguard that can be placed in this connection. Thb CHAIRMAN. The question is on the adoption of the amend- ment ofiered by the gentleman from Solano, Mr. Dudley. The amendment was adopted. The CHAIRMAN. The question recurs on the amendment offered by the Committee on Judiciary as amended. Mr. HITCHCOCK. Mr. Chairman: I have an amendment to offer. Thk SECRETARY read : " Private property shall not be taken for private use, with or without compensation, unless by the consent of the owner, except for right of way for drainage ditches across the lands of others for agricultural, mining, and sanitai^ purposes, in such manner as may be prescribed by law," Mb. HITCHCOCK. Mr. Chairman: My reason for offering that amendment is to cover an interest in the county in which I live, and I think the same jntercst exists in a large portion of the State. It is to secure the right of drainage. During the Winter our land is subject to overflow, and now we have no means by which we can get drainage. One individual can block up a country of ten or fifteen thousand acres of laud, and you cannot buy a right of way from him. There was a bill to cover our case, but it was inoperative because it was considered uncon- stitutional. We think there should be some way provided in this Con- stitution by which we could have the power, by paying for the right, to reclaim our lands. That is all. Mr. terry. Mr. Chairman : I offer an amendment to that, to fol- low after the last word of that. Thb SECRETARY road: " Provided that any resident of this State who is, or who has filed his declaration of intentions to become, a citizen of the United States, and who is not the owner of one hundred and sixty acres of land, may enter upon, take, and hold, for the purpose of cultivation or residence, any unoccupied or uncultivated land in this State, not exceeding one hun- dred and sixty acres, upon his paying the owner thereof, or depositing to his credit in a solvent bank, the value of such land, as the same is entered upon the assessment roll for State and county taxes made last before sucn entry, with twenty per cent, in addition to such assessment value, and from the time of such payment or deposit the party so enter- ing shall be the own^r of, aud be entitled to the exclusive possession and use of such land." Mr. TINNIN. Mr. Chairman : I rise to a point of order. It is that the amendment is not germane to the subject before the house. The CHAIRM.A.N. This amendment was only read for information. It was offered as an amendment to the amendment oft'ered by the gentle- man from San Joaquin, Mr. Hitchcock. The Chair is of the opinion that both are in violation of Rule Twenty-eight, which says : " No sub- ject different from that under consideration shall be admitted under color of amendment." Mb. waters. Mr. Cbairiiian : I move to amend section fourteen so that it will read: "Private property shall not be taken for public use without just compensation having first been made to, or ascertained aud paid into the Court for the owners." I will state briefly the object of iny offering this amendment. The reason is this: the amendment proposed by the Committee on Judiciary is good, with the one exception that it allows the property to be taken when the complaint is first filed in the suit, by making a deposit in 352 DEBATES AND PROCEEDINGS SatusdaY, Court. Kow, it seems to me that is not the object of this Convention, but that is the way it reads, and it has been adopted. In other words, it says the taking shall be when the money is ptud into Court as security. Kow, as I understand it, the Convention does not wish the deposit put there as security. It seems to ine that this Convention adopted that amendment without consideration, or without understanding it. That is its effect, unless I have mistaken Its rea^ling. Now, the reason why I support this amendment in preference to that part of the old Constitu- tion upon the same subject is this: this clause, as Judge Cooley says, is liable to construction, one way or the other, and while we are sitting here we should do away with the chance of misconstruction. I think we should make the terms so plain that the Supreme Court, or the Supreme Court lawvers, may not be able to get around it. It says that the damages shall first be ascertained and paid into Court, where they can get them, after being ascertained by the jury ; that he can receive his pav, if ho desires to receive his pay, or he can let it remain there until tKe final termination of the case. I think that that is all we could ask, and it seems to me that the Convention should adopt it. But the amendment you have already adopted, although it allows them to take the property of that man, he may not have the right to go there and draw down the money. I think that is a mistake you have made. Ma. BARNES. Mr. Chairman: Durin|; the remarks of the gentle- man from Nevada, Mr. Cross, I had occasion to speak to a member in another part of the room, and I went there and did not hear his speech, at least not all of it. But following that the amendment was adopted. I think that there should be some little care about the adoption, and certainly about the phraseology of an article that is to stand for so long a time. [Cries of " louder."] A very distlnguisheid gentleman was once making a speech and some- body kept halloing " louder, louder," and he said he doubted not that at the last day, when the heavens should be rolled away as a scroll, and the elements were melted away with fervent heat, and men should bo summoned to the judgment, there would be »)n)e fellow from that part of the hall halloing "louder, louder." I think if the gentlemen wish to listen they can hear. But with reference to tliis amendment, I wish it to be understood that I desired, and I so stated, to see the results of the statutes and the decisions of the Supreme Court crystallized into this Constitution, so that they will stay there. That was my idea, and I supposed that the debate would continue long enough to enable us to eflect that object. I would suggest now that this section be referred back to the committee for to-night, to present to-morrow a properly phrased amendment to the section, if the committee so desire, which shall fix it so as to conform to the statutes as now determined by the Courts of the State. Mr. DUDLEY, of Solano. Mr. Chairman : That amendment that I offered is couched in the identical language contained in the Constitu- tion of Alabama. I did not trust my own ability to express ideas in language to suit the gentlemen here. Mr. BARNES. Mr. Chairman : I did not mean to reflect on his lan- fuage or upon the law of it as it stands, only to put it together properly, was not criticising any particular thing. Ma. DUDLEY, of Solano. Mr. Chairman: I A> not know what objection there is to it. The first part of the section stands exactly as reported by the Committee on Judiciary. The latter part of the section reads: " The right of way shall be appropriated to tne use of any cor- poration, other than municipal, until full compensation therefor be first made in money, or secured by a deposit of money to the owner, irrespective of any benefit from any improvement proposed by such corporation; which compensation shall be ascertained by a jury in a Court of record, as shall be prescribed by law." Now I have no pride at all with regard to the manner in which the ideas shall be expressed. I only ask that this Convention shall stand by the decision it has made. I have no object Inn to its being couched in other language. But I believe, that considering the fact that it Is expressed in Kngtish, that one part Is written by the Committee on Judiciary, and that the balance is expressed in the language that has been adopted in the Constitution of the State of Alabama, you might as well stand by it. Thr CHAIRMAN. The question is on the adoption of the amend- ment offered by the gentleman from San Bernardino, Mr. Waters. Mr. DUDLEY. Mr. Chairman : I would like to ask whether, if this amendment is adopted, my amendment will stand as a part of the section. Thk CHAIRMAN. No, sir; it will not. If this is adopted it will strike out the amended section. Mr. ESTEE. I rise to a point of order : that there can be no amend- ment made to it that strikes that amendment out. If I understand that the amendment proposed by the gentleman from San Bernardino will entirely wipe out the amendment that was presented by the gentleman from Solano, I hold that it is out of order. Mr. WATERS. If that is the case, in view of the fact that I do not think the Convention desires to put in a clause that this is a mere security to be placed in Court, and as that seems to be the evident construction, I move that the vote by which that amendment was adopted be recon- sidered. Mr. HERBINGTON. I second the motion. Mr. ROLFE. Mr. Chairman : I think the same object can be accom- plished in a different way, if the gentleman will change his amendment by simply moving to insert the two words " ascertained and " between the words " or " and " paid." Mr. WATERS. I would state to the gentleman that only having heard it read, and not having it before me, I cauuot put in the amendment there. Mr. HAGER. Mr. Chairman: I would like to bear the proposition read in a way that we can hear it I am unable to tell what it is. I thought that the amendment as reported by the Committee on Judiciary would stand as reported, and that the amendment of the gentleman from Solano would come in after it. If I understood it properly, the sectloi reported by the Committee on Judiciary still stands and is not stricken out. Now, then, if I can hear it read, and if we can all hear it read, we will understand it. Thr SECRETARY read: " Amend section fourteen, by adding the following, namely: No right of way shall be appropriated to the use of any corporation other tlun municipal, until full compensation therefor be first made in money, or secured by a deposit of money, to the owner, irrespective of any bcuefit from any improvement proposed by such corporation, which compenn- tion shall be ascertained by a jury in a Court of record, as shall be pre- scribed by law." Mr. HAGER. Mr. Chairman: I ask that the proposition be read u ameudod. The Secretary revds the amendment. I want the proposi- tion read as ameuded. Thr SECRETARY read: Src. 14. Private property shall not be taken for public use without just compensation having been first made to or paid into Court for the owner. No right of way shall bo appropriated to the use of any corpo- ration other than municipal, until full compensation therefor be first made in money, or secured by a deposit of money to the owner, irre- spective of any benefit from any improvement proposed by such corpo- ration, which compensation shall be ascertained by a jury in a Court of record, as shall be prescribed by law. Mr. HAGER. It reads as I suppose it was intended to be. Thsl is the first proposition as reported by the Committee on Judiciary stands as It was reported by them ; " Private property shall not be taken for public use without just compensation having been first made to or paid into Court for the owner." In that it is provided that private property shall not in any case be taken without compensation being mode to or paid into Court for the owner. That stands as it is. Then comes the succeeding amendment about the right of way. Now, there may be a little conflict between the two propositions. The one relating to the right of way seems to adopt a ratoer different rule in order to ascertsin the damages from what the first proposition does In regard to private property. That is, that one must be paid to the owner, or into Court for the owner, and that the other seems to squint at the idea that it may be in some way secured. It would open the door for a bond, or eoinethlng of that kind. I think it should read right j that compensation bcin); |eid to the owner, or being placed In Court for him, be could be sbleto obtain it; and so that those who wish to make improvements shall pay it after the jury has made the award of the proper compensation. It ought to be secured beyond a peradventure that he should have a right to get the money out whenever they are put In possession. Mr. EDGERTON. Mr. Chairman : I have but one word to say. The author of this amendment, in his zeal to wrestle with a question that has exercised the finest jurists in this country, who have sought to place this right of eminent domain on a footing that would be j ust to the (leople and to those who want to condemn, has run off to a foreign Con- stitution and abstracted a provision which restores the whole question to the place where it was before this last legislation was had. Tne gentle- man from San Bernardino, Mr. Waters, Is entirely right when he sirs that it robs the owners of private property of the beni-fit of every benc^- cent provision as containe T Referred to the Committee on Legislative Department.^-jQQQ IP ■ V 8M DEBATES AND PROCEEDINGS Saturdat, Mo. BARRY iiiLnidiii-c(l the TuUowing propoeition to amend eectiong one atiii two of urticlo uidc; Bkction 1. A HufK'rmteiuleut of Public Instrurtion shall, at the gen- eral election fur Jiididal, State, anil diuiity officers, to be held in the year eighteen hundred and Beventyiiine, and every four years thereaf- ter, at ftUi:h geueml elections, be elected by the qualified voters of the Stale, mill shall eulcr upii the duties of hU office on the second Monday of Januarv eusain^ his election. The follofvin^ shall be [>refi]c(Ni to ai^f'tioa two; " The ditl'ueimi of knowkilge, as well asof virtue, among the |)eop1e, being essentini to the preservation of their rights and liberties, it shall lie the duly uf the Lcgialnture to promote public schools, and to adopt all meana which tUey niay deem oeeesDary and proper to secure to the people tlic advantages and op(»jirtuiiiUea of education." Heferred to the 0>inmittce on Eil mention. MDTtrit TO iUKXD HCLt FIFIT-SIX. Ma. TIXXIX. Mr. Fresidetit: I give notice of a motion to amend Rule Fifty-si I, by striking out the wunk, "and that the previous ques- tion shall not be moved." KKFOHT or CgitlrtTTKlt oy PBIICTIKO. Mr. shoemaker. Mr. PrertJng and Printing, to whom was Tf.{ttrv\ till* aiaiti-r ot iUv t:^3^i at printing t\>r lti« Coaveatloo up to and inclading Iho nloPteoinh litiy of IktutiuT iuMi, tii'j^ lenvt. to report that they have luul the same anilur coiisldeimllun, Dlill lliid ttil> f>A]ovin^ tiu'U : ■ t>ae Id eatpl<]76A la ihv c^nnpo&iag aa^l pn-m nwias of the State Printing Offlctf.u \tvT tinitf bofjk-^^^ ^_,-_,,_* $674 23 Out of iMj>rr.(?»tiruiit*d ua «n:h jolj <»» 80 FuMhig, «tJtrliin);^ jiDtl binding i»t cuntrmct prlcf') 226 fiO UalilnEB li>lalar.. ..tl,38» 63 Yon roiumlttDs npart thkt the ecdnutw arc coirect, and that the amount should Lie it]li>wed mn a Liroper charf^o. It^^alxhCttully fliibiuitted. SHOEXAKEB, Chairman. The PRESIDENT. The report will lie on the table. The Conven- lioti has now gone Ihrougb t lie on] or of business, what is the further pleasure of the Cuoventititi 'f Ma. VAN DYKR Mr. FriK.'cms to me to be a bad idea. Uenerally, the Couvontion is very Ihin on Monday morning. Last Monday morning there was otilyj nut a quorum here. There will be a small number prvscnl on next Monday tiiorning. I think this report of the ix>inniitte jirinted and upon the tables on Mon- day tnoming, or if it uhuuld eonie in t8ition is, that the Legislature is to have the pardoning power, and to that I object. If this Convention thinks it worth while to change the whole system, and put this pardoning power into the hands of this Board — tfiis town meeting — I have nothing to say against it. But let us understand this matter. I protest against it. My friend from Ala- meda, General McCallum, gives an epitome of the Constitutions of the various States on this subject. I nave looked over the Constitu- tions and I do not get exactly the same result that he does. In Ala- bama, Arkansas, Colorado, California, Indiana, Illinois, Iowa, Kansas, Missouri, Minnesota, Nebraska, North Carolina, Ohio, Oregon, Texas, Virginia, West Virginia, and Wisconsin, the pardoning power is con- fined to the Governor. Now, in Louisiana it is by and with the approval of the Senate. In Maine, Massachusetts, and New Hamp- shire, it is with the Senate. In Nevada it is with the Legislature. They simply allow the Governor to reprieve within sixty days, and the Legislature operates directly. In Rhode Island the Governor and Sen- ate pardon. In Georgia the Governor pardons, except in cases of trea- son and murder. There are twenty Stotes where the Govenior exercises unlimited authority. But the committee here thought that a Commis- sion would be preferable, and we compromised and put the Governor and Chief Justice together. I do not think that the majority of the Convention are satisfied with it. They wanted a more numerous Com- mission, and the gentleman from Alameda proposed adding the Attor- ney-General, the Commission to be appointed by the Governor, by and with the consent of the Senate, to consist of three members. As far as my opinion goes, the three should concur, and not a majority act. There exists to-day too much leniency, too much regard for the feelings of the criminals, and too little for the rights of the community. That is a thing we should ail try to avoid. It is a fair difference of opinion as to whether this power should be left with the Governor and two other persons, or with the Governor alone. I have prepared an amendment in case a Commission is decided upon, to make their decision unani- mous. As to the amendment giving the Legislature any control. Ism most decidedly opposed to it, and I trust it will not prevail. "^ ^^ ■01, Ifim 356 DEBATES AND PROCEEDINGS SATTJBDAt, KRMARKS OP UR. TOWKSIND. Mr. TOWNSEND. Mr. Chairman : This leaves the pardoninc power with the Legislature. It is not objectionable, sir, I think. I believe in allowing the Legislature to deal with it, either by creating a Court of Pardons, er by associating some other pereons with the Governor, or creating a separate Commission. Kow, I nm not afraid of the danger which the gentlemen speak of in leaving it with the Legislature to reg- ulate it. They are representatives of the people; come direct from the people, impressed with the views and wishes of the people. I fail to sec any danger that will follow the leaving of this matter to legislative wis- dom ana discretion. If we should t>e unfortunate enough at some future time to have a corrupt Governor, we might see the absolute necessity of taking the pardoning power out of his hands. Then, again, I believe the Governor would be relieved of a great deal of care andlabor by such a course. He has letters from all jiarts of the State; he is importuned by women with tears, and gray-haired men— every phase of sympathy that can be brought to bear, is used upon him to induce him'to grant pardons, and of this he would be relieved, while the pardoning power would be in just as safe hands. I cannot see any objection to it, and I shall vote for the amendment. REHARKS or HR. rBniilK. Mr. FREEMAK. Mr. Chairman : Whatever may be the opinions of this Convention, it certainly etition is got up bjr somebody and sent round, and signatures obtained, and the Governor is imposed upon, and pardons the man out. I think if they knew they would have to suffer, they would be more careful about committing crimes. But they feel pretty sure that they will get out in a year or two at most, and so the punishment has no tcrmrs for them. I believe that the pardoning power has been greatly abused in the past, and many times executive clemency is granted when it is unmerited. The Governor is imposed upon over and over again, and I believe that this power should have guards and restrictions thrown around it in some way. I trust for these reasons that the amendment will prevail. SPKECH OF MR. HOWARD. Mr. HOWARD. Mr. Chairman : I cannot support the amendment because it is practioally destroying the pardoning powgr> Neither do 1^ Digitized by Vj(J- ^ 358 DEBATES AND PROCEEDINGS Saturday, agree with the proposition so generally ex}>re88ed here, that the pardon- ing power has been abused. I have be»n in the State a long time, and except in a few instances of unintentional abuse, there has oeen none. The whole object of the pardoning power is to act upon precisely the same evidence upon which the defendant was convicted, and to exercise the quality of mercy upon that evidence. This argument is that the Executive is the safest depository for the pardoning power, beoiuse there the responsibility is direct. You hold the Governor responsible, and the political party by which he was elected is also made responsible, for unfortunately in this country we never will be able to get rid of party government, and the responsibility is best placed when it reflects upon not only the officer, but upon the party that elects him. Therefore, dividing the power will cure no evil, but will augment it, and if the error has been on the side of mercy, if you divide the power, it will be still more loosely exercised than before. I shall read a couple of para- graphs on this subject from Story. He handles the subject with his usual ability and learning. I read paragraph fourteen hundred and ninety-four, page three hundred and seventeen. He eays: " The next power is ' to grant reprieves and pardons.' It has been said by the Marquis Beccaria that the power of pardon does not exist under a perfect administration of laws, and that the admission of the g)wer is a tacit acknowledgment of the infirmity of the course of justice, ut if this be a defect at all, it arises from the infirmity of numan nature generally, and in this view is no more objectionable than any other power of government, for every such power in some sort arises from human infirmity. But if it be meant that it is an imperfection in human legislation to admit the power of pardon in any case, the propo- sition may well be denied, and some proof at least required of its sober reality. The common argument is, that where punishments are mild they ought to be certain, and that the clemency of the chief magistrate is a tacit disapprobation of the laws. But surely no man in his senses will contend that any system of laws can provide for every possible shade of guilt a proportionate degree of punishment. The most that ever has been ana ever can be done is to provide for the punishment of crimes by some 'general rules, and within some general limitations. The tot«l exclusion of all power of pardon would necessarily introduce a very dangerous power in Judges and juries of following the spirit rather than the letter of the laws, or out of humanity, of suffering real offenders wholly to escape punishment;, or else it must be holden (what no man will seriously avow) that the situation and circumstances of the offender, though they alter not the essence of the offense, ought to make no distinction in the punishment. There are not only various gradations of guilt in the commission of the same crime which are not susceptible of any previous enumeration and definition, but the proofs must in many cases be imperfect in their own nature, not only as to the actual commission of the offense, but also as to the aggravating or mitigating circumstances. In many cases convictions must be founded upon presumptions and probabilities. Would it not be at once unjust and unreasonable to exclude all means of mitigating punishment when subsequent inquiries should demonstrate that the accusation was wholly unfounded, or the crime greatly diminished in point of atrocity and aggravation from what the evidence at the trial seemed to establish ? A power to pardon seems indeed indispensable under the most correct administration of the law by human tribunals, since otherwise men would sometimes fall a prey to the vindictiveness of accusers, the inaccuracy of testimony, and the fallibility of jurors and Courts. Besides, the law may be broken, and yet the offender placed in such circumstances that he will stand in a great measure, ana perhaps wholly, excused in moral and general justice, though not in the strictness of the law. What, then, is to be done? Is he to be acquitted against the law; or convicted, and to suffer punishment infinitely beyond his deserts? If an arbitrary power is to be given to meet such cases, where can it be so properly lodged as in the executive department 7 * " The power to pardon, then, being a fit one to be intrusted to all gov- emmenta, humanity and sound policy dictate that this benign preroga- tive should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity that, with- out an easy access to exceptions in favor of unfortunate guilt, justice would assume an as^iect too sanguinary and cruel. The only question is, in what department of the government it can be most safely lodged? and that must principally refer to the executive or legislative departments. The reasoning in favor of vesting it in the executive department may be thus staled : asense of responsibility is always strongest in proportion as it is undivided. A single person would, therefore, be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The conscious- ness that the life or happiness of an offender was exclusively within his discretion would inspire scrupulousness and caution; and the dread of being accused of weakness or connivance would beget circumspection of a difterent sort. On the other hand, as men generally derive con- fidence from numbers, a large assembly might naturally encourage each other in acts of obduracy, as no one would feel much apprehension of public censure. A public body, too, ordinarily engaged in other duties, would be little apt to sift cases of this sort thoroughly to the bottom, and would be disposed to yield to the solicitations, or be ^ided by the preju- dices of the few, and thus shelter their own acta, of yielding too much or too little, under the common apology of ignorance or confidence. A single magistrate would be compelled to search and act upoQ his own responsibility, and, therefore, would be at once a more enlightened dis- penser of mercy, and a more firm administrator of public justice." I think, sir, that wo had better leave this matter where it is. The Executive is compelled to act with more consideration and caution alone than he would be if other parties were associated with him, and we know who is to be held responsible, and to be censured in case he abuses the pardoning power. gPEKCH or Ma. BKXBSTCCaiB. Mb. BEERSTECHER. Mr. Chairman : t hope the amendmentpro- po«ed by the gentleman from San Biego will prevail. As for myself, I would be in favor of the total abolition of the pardoning power. It was a power exercised br the kings and monarchs of Europe as a matter of divine justice placed in them, placing them over and above the Uw and the Courts. Mb. REDDY. Is it not also exercised by God Almighty according to all religious notions? Mb. BEERSTECHER. I am not here to discuss the limitations of the power of God Almighty, so I am not prepared to answer the queetion. Now, whenever a pardon is granted, under this system which allows pardons to be granted without stating the reasons or cause, it is a direct acknowledgment of the fallibility of judicial proceedings. Pardons, as a rule, are granted, not for the reason that anything new intervenes in favor of the prisoner, but they are granted almost solely and exclo- sively through the favor of political influence. There may be exceptioDS to the rule, but generally pardons are granted through pressure broaght to bear upon the Chief Executive by reason of great political influeoee or the influence of friends. Now, Mr. President, the amendment propoaed by the gentleman from San Diego, Mr. Blackmer, says that a^ardon shall not be granted unless upon newly discovered evidence. What objection is there to that? Who can say that it is not right and Just? What possible objection can be urged to it? Or, if the injustice of the sentence is made apparent, the pardon can be granted. These are the only two grounds upon which pardons should ever be ^nted: first, newly discovered evidence; or, second, where the injustice gf the sentence is apparent Then if the Executive grants a pardon, he must specifically state the newly dis- covered evidence upon which he predicates the {wrdon, or point out the injustice of the sentence. And it seems to me that in no case other than these two which I have mentioned should a pardon be gnmted. With d ue deference to the opinions of the gentleman from San Joa^nin, Ur. Terry, I don't see that he has made any argument at all, or given any good reason why this amendment should not prevail. He 8tat«a a case where men are brought up and tried by a jury of their countrymen. After a thorough investigation into the facts of the case, these jury- men find him guilty of murder. They are men who oome from among the people, representing the sympathies of the people. If a man is not prepared to influence the sympathies of twelve jurors who are unani- mous in their verdict, or if he cannot influence the sympathy of one out of the twelve, I say he is guilty, and upon that verdict he is sen- tenced to the State Prison. Then I must say, Mr. President, that I don't see any reason why the Governor should step in, and of his own volition, and without cause or reason, grant a pardon and tarn that man out ^f jail. The gentleman from Sonoma, Mr. Johnson, raised the objection that by the terms of this amendment the burden of proving innocence rests upon the convicted person, and that thus the rule of law, which says the burden is on the State to prove his guilt, is reversed. I call the attention of the eentleman to the fact that in this case the situation has been reversed. The State has already proved the guilt of the prisoner, and the prisoner is no longer in the position of as innocent man, and it is then for him to remove the shadow that rests upon him, and prove his own innocence. It is not for the State to keep on proving the guilt of persons who have been convicted on legal judicial proceedings. After conviction the man occupies a different position, and it is incumbent upon him thSTl to show that he is innocent. I hope the amendment of the gentleman from San Diego will prevail. If it does prevail, it will wipe out all the rottenness existing in the system of granting pardons, and place pardons, first, upon the basis of newly discovered evidence showing that the man was not guilty, and second, that the sentence is an unjust sentence. U will work a beneficial change in the system, in my bumble opinion. BKUABKS or MB. LABKIK. Mb. LAREIN. Mr. President: I did not intend to say anything about this matter. It is a matter that I was willing to cast my vote upon. But from the speeches I have heard I think there is great misap- prehension as to the number of persons pardoned in this State. I had occasion to inquire into this matter a short time ago, and I found that out of the thousands and thousands convicted in this State daring the last twenty-eight years, not over seven hundred and thirty have lieeo pardoned. Out of that immense number only seven hundred and thirty have been pardoned. Can any one say that the pardoning power has been abused ? We have often seen cases where the Governor refused to pardon a man when we thought be should. I believe the power is not so much abused in this State. There are cases where strong pressure is brought to bear for the conviction of a man, and in cooler moments the jury who brought the verdict, and the Judge who sentenced him,join is signing a petition for his pardon. Mb. BEERSTECHER. Can the gentleman cite an instance where a poor man has been pardoned? Mb. LARKIN. Yes, sir, many a one. I can cite cases in the County of £1 Dorado, because we are all poor men up there. I do not know, in the whole long list of Governors of this State, where wealth or power has ever controlled any one of them, and I do not believe that any gentle- man will charge that any one of them has ever been so controlled. From the first to the last I have known them all, and no man to-day that knew these men will get up and state that one of them ever bowed to wealth in the exercise of the pardoning power. I defy the gentleman to point out one instance where any Governor of this State nas fallen down to money or power in the exercise of the pardoning power. I have never heard of political influence influencing any Governor in these matten. I cannot believe that any man whom the people of the State of Califor^ nia would intrust with this high position wou^ stoop so low as to allow Digitized by V^-. Nov. 9, 1878. OF THE CONSTITUTIONAL CONVENTION. 359 political prejudice or political friendship to swerve him from his line of dutv. Insinuations such as these should not have been heard on this floor. Mr. BLACKMEE. Mr. Chairman: The gentleman misunderstood me if he gathered any such ideas from what I had to say on this subject. In speaking of the abuse of that power, I had no thought that any Gov- ernor had ever been unduly influenced, or ever corrupted, in granting pardons. I certainly could not have intimated any sucn a thing. I only intended to say that I believed every man here would agree with me that the sympathies of a man have been so worked upon that in cases where a pardon should never l>e granted he has found it impossible to resist that intluence. I believe that such demands should not be allowed to be made, because it is enlisting the sympathies unjustly to overturn a just verdict. Not that the Governor was ever, bought up with so much gold. I do not believe that any gentleman who has advocated this amendment intended to insinuate that Governors had been bought to do these things, and I do not think any of them entertain any such an idea for a moment. I do not wish to detain the committee, as it is time for the usual recess. I therefore move that the committee rise, report pro- gress, and ask leave to sit again. • Carried. The Convention took a recess until two o'clock.. AFTERNOON SESSION. The Convention reassembled at two o'clock ?. h. President Hoge in the chair. COXHtTTKS CLEBK. Mb. SCHOMP. Mr. Chairman : I wish to send up a resolution, with the leave of the Convention. Tbk SECRETARY read : Srtolted, That the CommlttM on the Bight of Snffrag* be allowed to employ a clerk for two (2) days only, at a compenaaitlon of five (5) dollars per day. Thi PRESIDENT. It will be referred to the Committee on Mileage and Contingent Expenses. Mb. BLACKMER. I move that the Convention resolve itself into Committee of the Whole for the purpose of further considering the report of the Committee on Pardoning Power. RKPOST. Mb. SHAFTER. If the gentleman will allow]|me I would like to make a report from the Committee on Pardoning I\>wer. Thi PRESIDENT. If there is no objection the gentleman will send itnp. •fat SECRETARY read : Ml. PRmsnr : The Committee upon the Pardoning Power, haring ooniidered the propoiittoD nomber four hundred and elEhty-foitr, introduced hy Mr. Grace, report the same, with a recommendation that the same be not adopted. SHArrEK, for Committee. Thi PRESIDENT. The report will lie on the table. STATIONIBT AOCOCNTS OF MKKBKRS. Me. lark in. Mr. President: There was a report made the other day in regard to the amount of stationery drawn ny the members. I desire that the gross amount drawn by each member be printed ; not the itemized account, but the gross amount. i Cries of "division," " ayes and noes," " ayes and noes."] fa. VAN DYKE. Mr. President : I would like to have a sup- Slemental report, as I understand that some of the members who were efident on that report have, since that report was made, drawn the full amount. [Laughter.] Mr. liARKIN. I know that gentlemen desire to know what their stationery account is. I desire to know what they are. I understand by a gentleman that the Secretary of State's ofliee never received the resolution restricting the amount to ten dollars. I desire that the gross amounts shall be printed and laid on the desks of members. No one should draw any stationery except such as is needed for use in the Con- vention. [Cries of "question," " question."] Hk. SMITH of Fourth District. Mr. President: I do not object to its being printed if it is printed correctly. There is a mistake in my account which makes it appear very large, when in fact it is not large. I took it to one of the clerks and found out that it was not correct. I want it printed correctly when it is printed. Hb. SHAFTER. Mr. President : I am charged with fourteen dollars. I am ready to pay that amount back to the State if the rest of the gen- tlemen will do the same. [Laughter.] There was a parcel of stufl" put in my desk which I did not want. The State may have it all back if it want^ it. I think, however, that this is a very small business for one hundred and fifty men, drawing fifteen hundred dollars a day from the Slate, to be engaged in. Mr. BEERSTECHER. Mr. President: In the account which the Secretary of State has presented, he has charged the spittoons and pen- racks, and other things which we cannot take home with us. I under- stand from the Secretary of State that he does not propose to pay any attention at all to the resolution of the Convention limiting the individ- oal members to ten dollars worth of stationery. The statute upon the subject is plain and explicit. It says the members of the Convention shall have the same right to draw stationery as the members of the Leg- islature. The members of the IJegielature are not limited. Some of , them draw eighty or ninety dollars worth of stationery. Now I have drawn, according to the bill, eighteen dollars worth of stationery. I dTe dnwn (taUonery of .tbe SacreUrjr of State to any amonnt more than t«n dollar*, be and they are herebj inatnicted to pay the exceea of luch amount I'Ter ton dollars into the Stat* treanuy, for the beneBt of the apprvpriathm fur the expenaee of this (Joarentlob. Mb. cross. I move that tbe resolution be laid on the table. Tbk president. The author of tbe resolution has the floor. Mb. REYNOLDS. Mr. President: This Convention passed a reso- lution the other day that members of this Convention should draw but ten dollars' worth of stationery. It appears from the reporbof the Sec- retary of State that some have drawn two dollars and fifty cents, and some twenty-four dollars; and unless there is some action taken, there the matter stands. The resolution allowing but ten dollars was a waste of time and paper. I send up the resolution for the purpose of supple- menting that and correcting the inequality, so that the first resolution will be of some use, and so tnat this matter shall be finally settled, and no more time wasted in discussing it. We passed a resolution instruct- ing the Judiciary Committee to inquire whether the printing for this Convention should come out of the appropriation for the Convention, or out of the appropriation for the State Printing Ofiiae. That very able and wise oommittee reported that the expense of printing should come out of the appropriation for the State Printing Office. But the Board of Examiners proceeded to pay the printing out of the appropriation for this Convention, without regard to the opinions of the Judiciar/ Com- mittee and without regard to the resolution of this Convention adopting that report. So with this stationery account, which is on tbe same foot- ing. I do not know whether this Convention can help itself ornot; but this I do know, that unless there is some such action as I propose, there will be nothing to prevent members drawing twenty-four dollars' worth, or two bundrM and forty dollars' worth, if they want to, and carrying it home to set up a junk shop with. That is the reason I offer this reso- lution, to supplement the other and make it of some us* and force. I hope the Ctmvention will pass the resolution. Mr, van DYKE. I certainly have a misapprehension here, or else a great many others have. I never understood that members were at liberty to take hoinn with them any stationery. It is a new idea to me that members can pack their trunks full of stationery, and when they leave the Capitol take it homo with them. I had supposed that it was furnished for the use of the members because they were perform- ing services for the State, and that it was only for their use while here. I myself have drawn a few cents over ten dollars' worth. I am allowed ten dollars for the committee. I do not intend to draw any to take home with me. I need things for my use here which I have not drawn. I want envelopes, I have not drawn any. I want inkstands and several other articles for use here in the Convention. I think this is a very small business, and it is spending time for no purpose Mr. TINNIN. We have been acting under the law passed by the last Legislature, which gives the members of this body a right to draw stationery. There was no limit to the amount. This body has passed a resolution limiting the amount to ten dollars, it is true, but most of this material was drawn before that resolution was passed. I believe we have wasted enough time, therefore I move to lay the resolution on the table. Th« PRESIDENT. It is moved and seconded that the resolution be laid on the table. Division being called, the motion to lay on the table prevailed by a vote of forty-four ayes to forty-one noes. TBK PABDONINO POWKB. Mb. McCALLUM. I move that the Convention now resolve itself into Committee of the Whole for tbe purpose of further considering the article on pardoning power. Carried. IN COMMITTEE OF THE WHOLE. Mr. Tinnin in the chair. Mr. McCALLTIM. I ask the Secretary to read the amendment of the gentleman from San Diego. Thk SECRETARY read : " Strike out all after the word ' impeachment' to and inclusive of the word 'pardon,' and insert in lieu thereof, 'and such power shall be exercised only in eases where evidence is newly discovered after judg- ment establishing the innocence of the convicted party, or the injustice of the sentence.' Also strike out the last clause of the section." BKMABKS or MB. KOCALLCH. Mb. McCALLUM. Mr. Chairman : Now I am opposed to the princi- ple of this amendment as interpreted by the author. But the proposi- tion goes far beyond what the gentleman intended, because the language is that the innocence of the party must be established by proof, leaving not even the question as to the benefit of any testimony which might Bub.sequently be discovered, raising a reasonable doubt as to whether be bad been justly convicted or not. I suppose the language of the amend- ment is stronger even than the gentlemen intended himself. But this is not a new question. I have some authority Mb. BEERSTBCHER. If the gentleman will permit me I desire to correct him. The amendment reads that such power shall be exorcised only in case of newly discovered evidence after judgment, which estab- lishes the innocence of the convicted party, or where it can be shown that he was unjustly sentenced. Mb. McCALLUM. Establishing the innocence of the party or estab- lishing the injustice of the sentence. That is the way it reads, and tbst is what I say now. I say the idea presented by tbe gentleman from San Francisco, and by others, is an idea that has never been rtceived with favor, and in addition to the authority quoted by the gentleman from Lot Angeles, Mr. Howard, I propose to read from Kent, first vol- ume, page two hundred and eighty-four. He says: " The President has also the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. The Marquis Beocaria has contended that tbe power of pardon does not exist under a perfect administration of law, and that the admission of the power is a tacit acknowledgment of the infirmity of the Courts of justice. And where is the administration of justice, it .may be asked, that is free from infirmity? Were it possible, in every instance, to maintain a just proportion between the crime and the penalty, and were the rules of testimony and the mode of trial ao perfect as to preclude every possibility of mistake or injustice, there would be some color for the admission of this plausible theory. But, even in that case, policy would sometimes require a remission of a punishment strictly due, for a crime certainly ascertained. The Tei7 notion of merry implies the accuracy of the claims of justice. An inexorable govern- ment, says Mr. Yorke, in his Considerations on the Law of FoHeiture, will not only carry justice in some instances to the height of injurv, but with respect to itselfit will be 'dangerously just. The clemency of'Mss- sachusetts, in seventeen hundred and eighty-six, after an unproToked and wanton rebellion, in not inflicting a single capital punishment, con- tributed, by the judicious manner in which its clemency was applied, to the more firm establishment of their government. And this pover of pardon will appear to be more essential, when we considerthat, under the most correct administration of the law, men will sometimes Isll a Srey to tbe vindictiveness of accusers, the inaccuracy of testimony, and le fallibility of jurors. Notwithstanding this power is clearly supported on principles of policy, if not of justice, English lawyers of tbe first class and highest reputation have strangely concluded that it cannot exist in a republic, because nothing higher is acknowledged than a magistrate. Instead of falling into such an erroneous conclusion, it might fairly be insisted that the power may exist with greater safety in free States than in any other forms of government; because abuses of the discretion unavoidably confided to tbe magistrate in granting pardons are much better guarded against by the sense of responsibility under which he acts. "The power of pardon vested in the Preaident is without limitation except in the single case of impeachments. He is checked in that case from screening public officers, with whom he might possibly have formed a daugeroiis or corrupt coalition,or who might be bis particular favorites and dependents." I say it is not too much to say that no precedent for this amendroeot can be found, neither in the Constitution of the United States, nor in tbe Constitution of any one of all the States in this Union. It is safe to say that no precedent for such a proposition can be found in auy nation under the sun, in any country on earth, and it certainlv does not exist in heaven, as we are taught by tlieologists. I have not beard from that other place called hell, and there is a dispute between leading theolo- gists as to whether there is such a place as hell, though old (^lifomiant remember there used to be a place called Hell Itself. I say that it is without precedeiit in any country, and it seems to me it is a most remarkable proposition. I have but this to add, that when men shall devise a i rowed it from another Constitution. I could not very well hear what the gentleman from Marin had to say about the Nevada Constitution. In Indiana they have a provision equally as good, that tbe Legislature shall provide for a Commission to act with the Governor. A POINT or OBDEB. Ma. WATERS. I raise the point of order that there is not a quorum present. I am so informed. Mb. McCALLUM. I call attention to the provisions of the Indiana Constitution. Mb. MURPHY. I move that the oommittee rise, report progress, and ask leave to sit again. I do this for the purpose or ascertaining whether there is a quorum present. Carried. IN CONVENTION. Tbx president. Gentleman : The Committee of the Who^ have instructed me to report that they have had under consideration the report of the Committee on Pardoning Power, have made progrea Digitized by Google Nov. 11, 1878. OP THE CONSTITUTIONAL CONVENTION. 361 therein, and ask leave to sit again, rention? What is the pleaiure of the Con- MIKORITT BKPOKT OV TBI OOmilTTII CM 0OBPOK1TIOK8. Mb. BARBOUR. Mr. President: I ask leave to send up a minority report or the Committee or Corporations other than Municipal. Tbb president. If there is no objection the report will be received. To the HonoiaUe PrMident of the Conrention : A mloorlty of the above eommltlee, while agreetng In the main with the report of the miOorliy horelu, be( leave to eubmit their report recomnieodlng certala tddt- tioDal pnvliioai and certain cluuigw in the propositions recommended l>7 the mi^rity: First— At the end of lectlon three insert the following : '*Tbe Pivsident. Manager, and Directors or Tnutees of savings tjnnics or tmst companies, or anjr corporation lor the deposit and loan of money, shall be Individ- oslly and severally liable for any and ail misappnipriatlon of the f\inds intrusted to them, or any netciect or abuse in the administration ol' their trust." Samd—At the end of section live insert thefollowiiig: ** All hiws poMed pursuant to this section may be altered tnva time to time, or repealed. It ehall be the duty of the Legislature to pa« Isws for the regulation sad control of corpomtioni formed under thla section ; to protect depositols of nrliigs banks ; to prublMt loans by the officers to thonuwlves or their partners, or the receipt by olficers of commissions; to prohibit ilitfcrlralnfttions between borrow. en on account of difference lu the amounts borrowed ; to prohibit exactions by sttumeys of savings banks fW>m intending borrowers ; and to regulate by law the salaries paid the olBcen of savings baulu. Third— In section eight, after the word ** companies," in line threa, insert the wortU " St their own valuation, as made for the purpose ot taxation." Fourth — At the end of section twelve Insert IJie following; **PnKid*d^ that co-operative societios may l>fl formed under general laws, which may provide by-laws of their own fur limiting the repreeentation of siiareholders of thc^r stuck. and the number of ihares Sliat may be held; and the Legislature' shall eiuKt snch laws as may be necessary for Iheir faithfUl managsmtnt and piotactiou, and may limit the liabilities of their membcn." F(fth— At the end of section fourteen Insert the following: " It shall be the dnty of the Legislature to regulate by law the dealing in shares of stock of corporatiuns; to prohibit margin and time salee; to prevent wash or pretended sales; to prohibit and punish the circulation of false reports to affect the price of shores of stocks ; and to punish and prohibit combining or pooling means for the purpose of inflating or depressing the price of sliarea of stocks." Sixth— lo section fifteen, after the word " control," In , line two, insert the fol- lowing: ** Railroads heretofore oonstnicled, or that mar hereafter be constructed in this State, are hereby declared public highways, and shall b« free to all persons for Om iraniportaiion of their persons and property." Avenih — In section twenty, after the word ** commission," in line seven, insert the following: **Said Gommissionera shall have supervision of all railroads, other than street nilrosds. In this Stite ; thry shall have tho sole power, and it shall be their duty to establish rates of charges for the transport^pn of pasaengen and freight thereon, sod publish the same from time to time, witoaiich changes as they may make; they lliall have power to correct abuses and violationi of law by inch railroad con>o- lationp or other transportation companies ; to hear and determine complaints against SQch railroad corpuratlon or other transportation comimnies, and afflx penalties and eotbrce them through the medium of the Courts ; examine the books and papers of all such railroad corporations; administer oaths, and summon and examine wit- nesses ; they ihall report to tUo Governor annually their ptw:cedlnKS, and snch othor fiicts ss may b«, deemed Important; and shall perform such other duties, and shall have such further powers as shall t>e inipoeed and conferred by Uw. Nothing con- tained in this section shall be held to deny the right of action against any such companies of any person or any other company." Koch of said Uomailssioners shall receive an annual salary of three thousand dollars. They shall be allowed one Secreuuy, who shall receive an annual salary of one thousand eight hundred dollars. 0LITC8 BARBOUB. WM. r. WHITK. LIAVI or ABSSKCC Mr. LARKIN. I ask leave of absence for Messrs. Hoge and Belcher for ttro days. Granted. Ma. GRAVES. I ask leave of absence for Mr. Mills for one day. Granted. A CALL OP TBI COMVEHTION. Ma. HUESTIS. There is not a quorum present, and I move that the Convention do now adjourn. Ms. NOEL. I object to any business being transacted. Ma. HUE:STIS. I move we adjourn. ["Question," "question."] Mr. WICKES. I have a resolution to offer. Mb. rolfe. There is no quorum present; I object [Cries of " object," " object," " question," " question," " call the roll," "ayes and noes."] TBI PRESIDENT. The Secretary will read the resolution. Tag SECRETARY read: Raolvtd, That the Secretary of Stats be requested to state the cost price of articles furnished to membeis nnder tlie head of stationery. Mb. TERRY. There is no quorum present, and no business can be transacted. Me. HOWARD, of Los Angeles (at two o'clock and fifty-seven minutes, p. b.) — I move to adjourn. Tbe president. The question is on the motion to adjourn. [Cries of "division," "ayes and noes."] The motion was lost. Mb. MANSFIELD. I move a call of the house. Tbb PRESIDENT. A call of the house is moved under Rule Twenty-two. Carried. Thb PRESIDENT. The Sergeant-at-Arms will close the doors. The doors were closed. The Secretary called the roll, and the following members answered to their names: Andrews, 3arbour, Bany, 46 Barton, Beerat«^er, BUckmer, Boucher, Brown, Burt, Caples, Hunter, Schell, Charles, Jones, Scbomp, Condon, Lampson, Shurtleff, Cowden, Larkin, Smith, of 4th District, Crouch, Larue, Smith, of San Francisco, Davis, Lavigne, Soule, Dean, Lewis, Stedman, Dowling, Lindow, Steele, Dunlap, Mansfield, Stevenson, Eagon, Martin, of Santa Cruz , Strong, Estey, McCallum, Terry, Evey, McComas, Thompson, Finney, McConnell, Tinnin, Freeman, McFarland, Townsend, Garvey, McNutt, Turner, Glascock, Moreland, TuUle, Grace, Morse, Vacquerel, Graves, Nason, Van Dyke, Hall, Neunaber, Walker, of Tuolumne, Heiskell, Noel, Webster, Herold, O'SuIlivan, Weller, Herrington, Overton, Wellin, Hitchcock, Porter, Wickes, Howard, Pulliam, White, Huestis, Hughey, Ringgold, Rolfe, Wyatt— 86. Tbb president. There is a quorum present. Mb. turner. I move that further proceedings under the call be dis- pensed with. Lost. Tbb PRESIDENT. What is the pleasure of the Convention? Mb. MURPHY. I move we now adjourn. Division was called. Ma. BEERSTECHER. I see by the roll-call that tbe gentleman from Del Norte, ilr. Murphy, is absent, and I object to his voting or making any motion. [Laughter.] Mb. ROLFE. I object to the Secretary counting any one who is not present Mb. BEERSTECHER. I object to his counting Mr. Reddy or Mr. Murphy, both absentees, according to the roll. Tbb president. Out of order. The motion is lost— ayes, 38; noes, 40. ' Mb. STEDMAN. I move that the Sergeant-at-Arms be instructed to bring in all absent members who are found around town, at the hotels, etc. Mr. NOEL. I move to emend the motion so as to read, "That the Sergeant-at-Arms be instructed to bring in all absentees to the bar of this Oiuvention." Division was called. Tbb PRESIDENT. The ayes have it Mb. EAGON (at three o'clock and fifteen minutes p. h.) I move we now adjourn. Division being called, the motion prevailed — ayes, 54; noes, 42 — and tbe Convention stood adjourned. FORTY-FIFTH DAY. SacBAMBNTO, Monday, November Ilth, 1878. At ten o'clock a. u., the President and President pro tern, both being absent, Mr. Larkiu moved that Mr. Tinnin take the chair. The motion being seconded, Mr. Larkin put the question, and it was carried. Mb. TINNIN. The Convention will come to order. The Secretary will call the roll. The roll was called, and members found.in attendance as follows: Andrews, Barbour, Barry, Barton, Beerstecher, Belcher, Bell, Blackmer, Boucher, Brown, Burt, Caples, Chapman, Charles, Condon, Cowden, Crouch, Davis, Dean, Dowling, Dunlap, Eagon, Edgerton, Estee, Estey, Evey, Farrell, PBBSIKT. Filcher, Martin, of Santa.Cruz, Finney, McCallum, Freeman, McComas, Garvey, McConnell, Glascock, McCoy, Gorman, McFarland, Grace, McNutt, Graves, Mofiat, Gregg, Heiskell, Moreland, Morse, Herold, Murphy, Herrington, Nason, Hitchcock, Nelson, Howard, Neunaber, Huestis, Noel, Hughey, Ohleyer, O'SuIlivan, Hunter, Jones, Overton, Kelley, Porter, Keyes, • Prouty, Kleine, Pulliam, Lampson, Reddy, Larkm, Reed, Larue, Rhodes, Lavigne, Lindow, Ringgold, Rolfe, Mansfield, ' Schell, -^^ Digitized by VjOOQ lt_ 362 DEBATES AND PROCEEDINGS Monday, Schomp, Swing, Shoemaker, Terry, Shurtleff, Thompson, Smith, of 4th District, Tinnin, Smith, of San Francisco, Townsend, Soule, Turner, Stedman, Tuttle, Steele, Vaequerel, Stevenson, Van Dyke, Ayers, Barnes, Berry, Biggs, Strong, Stuart, XBSINT. Hale, Hall, Harrison, Harvey, Hilbom, Campbell, Holmes, Casserly, Inman, Cross, Johnson, Doyle, Joyce, Dudley,of San Joaquin, Kenny, Dudley, of Solano, Laine, Fawcett, Lewis, Walker, of Tuolumne, Wyatt, Waters, Webster, Weller, Wellin, West, Wickes, White, Wilson, of Tehama, Wilson, of 1st District, Miller, Mills, O'Donnell, Reynolds, Shafter, Smith, of Santa Clan, " Sweasey , Swenson, Tully, Van Voorhieg, Walker, of ^arin, Winans, Freud, Martin, of Alameda, Mr. President. Hager, LKAVK or ABSINCE. One day's leave of absence was granted Messrs. Dudley, of 8olano,and Sweasey. Two d^s' leave of absence was granted Mr. Tully. Mb. MURPHY. I move that one day's leave of abaenee be granted all absentees. The motion prevailed, on a division, by a vote of forty-one ayes to twenty-one noes. THI JOCSNAL. Mb. HUESTIS. I move that the reading of the Journal be dispensed with. Carried. rnnion. Mb. CONDON presented a petition from furniture manufacturers and cabinet makers, in San Francisco, requesting that a clause be inserted in the Constitution prohibiting the further letting out by contracts of con- vict labor, Reading was dispensed with, and it was referred to Committee on State Institutions and Public Buildings. BKPOBT. Mr. terry presented the following report from the Committee on Legislative Department : Mil. President : The Committee on Leglslatlre Department beg leuve to report that thuy hare exftmined the ntrious propositions aubmitted to them, and report the ■amo back with the following subetltnta, which thejr recommend may be adopted as article four of the proposed Constltntion. D. 8. TEKRT, Chairman. JNO. MANSFIELD, T. D. HEISKKLL, J. B. GABVKT, JAMES CAPLK8, OH AS. T. riNNET, J. A. FILCHER, W. J. OBAVKS, 1). H. COWDEN, J. O. UcCALLUM. Abticlb IV. LKOISLATtVB DKPAKTMCXT. Sbction 1 . The legislative power of this State shall be vested in a Senate and Assembly, which shall be designated the Legislature of the State of Califoruia, and the -enacting clause of every law shall be as follows: "The people of the State of California, represented in Senate and Assembly, do enact as follows." Sec. 2. The sessions of the Legislature shall be biennial, and shall commence on the iiret Monday after the first Tuesday in January next ensuing the election of its members, at twelve o'clock u., unless the Governor shall, in the interim, convene the Legislature by proclamation. No session shall continue longer than sixty days, except the first session called after the adoption of this Constitution, which may continue eighty days. And no bill shall bo introduced, in either house, during the last ten days of the session without the consent of two thirds of the mem- bers of said house. Skc. 3. The members of the Assembly shall be chosen biennially, by the qualified electors of their respective districts, on the first Tuesday after the first Monday in Novemoer, and their term of office shall be two years. Skc. 4. Senators shall be chosen for the term of four years, at the same time and places as members of the Assembly; and no person shall be a member of the Senate or Assembly who has not been a citizen and inhabitant of the Slate, and of the district for which he shall be chosen, one year next before his election. Skc. i. The Senate shall consist of thirty members, and the Assembly of sixty members, to be elected by districts, as hereinafter provided. The seats of the fifteen Senators from the odd-numbered districts chosen at the' first election under this Constitution shall be vacated at the expiration of the second year, so that one half of the Senate, after the first election, shall be chosen every two years. Src. 6. For the purpose of choosing members of the Legislature the State shall be divided into thirty districts, as nearly equal in population as may be, and composed of contiguous territory, to be called Legislstin Districts. Each district shall choose one Senator and two members of the Assembly. The districts shall be numbered from one to thirty, inclusive, in numerical order, commencing at the northern boundary of of the State and ending at the southern boundary thereof. In the formation of said districts no county, or city and county, shall be divided, unless it contain sufficient population within itself to form two or more districts; nor shall a part or any county, or city and county, be united with any other county, or city and county, in forming any dis- trict. The census taken under the direction of the Congress of the United States in the year one thousand eight hundred-and eighty, and every ten years thereafter, shall be the basis of fixing and adjusting the legislative districts; and the Legislature shall, at its first session after each census, adjust said districts and reapportion the representation, ao as to preserve them as near equal in population as may be; but, in making such adjustment, no persons who are not eligible to become citizens of the United States under the naturalization laws shall be counted as forming the population of any district. Until such adiost- raent shall be made the First District shall consist of the Counties of Del Norte, Siskiyou, Modoc, Lassen, Shasta, and Trinity; the Second, of the Counties of Humboldt and Mendocino ; the Third, of the Counties of Tehama and Butte ; the Fourth, of the Counties of Colusa, Lake, and Sutter; the Fifth, of the County of Sonoma; the Sixth, of the Counties of Marin, Napa, and Contra Costs; the Seventh, of the Counties of Solano and Yolo; the eighth, of the Counties of Sierra, Yuba, and Plu- mas; the Ninth, of the County of Nevada; the Tenth, of the Counties of Placer and £1 Dorado; the Eleventh, of the County of Sacramento; the Twelfth, of the Counties of Calareras, Alpine, and Amador; the Thirteenth, of tite County of San Joaquin; the Fourteenth, of that por- tion of the City and County of San Francisco bounded and described ss follows, to wit': Beginning at a point where Larkin Street intersects the waters of the Bay of San Francisco; thence meandering along the shore of said bay, in an easterly and southeasterly direction, to the point where Market Street intersects said ba^ ; thence along Market Street to Ctli- fomia Street; thence along Calirornia Street to Kearny Street; thence along Kearny street to Vallejo Street ; thence along Vallejo Street to Lar- kin Street ; and thence along Larkin Street to the waten of the Bay of Sai Francisco, the place of beginning; the Fifteenth, of that portion of the City and County of San ^^ncisco bounded and described as follows, to wit: Beginning at the point where Larkin Street intersects VallejoStrMt; thence along Vallejo Street to Kearny street ; thence along Kearny Street to California Street; thence alon? California Street to Market Street; thence along Market Street to Veamy Street ; thence along Kearny Street to Pine Street; thence along Fine Street to Iiarkin Street; and thence along Larkin Street to Vallejo Street, the place of beginning. The Sixteenth, of that portion of the City and County of San Francisco bounded and described as follows, to wit: Beginning at the point where Franklin Street intersects Pine Street; thence aloi^g Pine Street to Keainy Street ; thence along Kearny Street to Market Street ; thence along Mar- ket Street to Van Ness Avenue ; thence along Van Ness Avenue to Tyler Street; thenoe along Tyler Street to Gough Street; thence along Googh Street to Geary Street ; thence along Geary Street to Franklin Street; and thence along Franklin Street to Pine Street, the phice of banning. The Seventeenth, of that portion of the City and County of San Franeiioo bounded and described as follows, to wit: Beginning at the point where lArkin Street intersects the waters of the Bay of Saji Francisco; thence along Larkin Street to Pine Street; thence along Pine Street to Franklin Street ; thence along Franklin Street to Geary Street ; thence along Geary Street to Gough Street ; thence along Gough Street to Tyler Street; thence along Tyler Street to Van Ness Avenue ; thence along Van Ness Avenue to Market Street; thence along Market Street to Ridley Street; thence along Ridley Street, and saia Ridley Street produced in a direct line westerly to the Pacific Ocean; and thence meandering northerly and easterly along the waters of the Pacific Ocean and the Bay of San Fran- cisco to Larkin Street, the place of beginning. The Eighteenth, of that portion of the City and County of San Francisco bounded and described as follows, to wit : Beginning at the point where Market Street internets the waters of the Bay of San Francisco ; thence meandering along the waters of said bay to the point where Channel Street intersects the witera of said bay ; thence along Channel Street to Seventh Street ; thence along Seventh Street to Harrison Street; thence along Harrison Street to Second Street; thence along Second Street to Market Street; and thence along Market Street to the waters of the Bay of San Francisco, the placs of beginning. The Nineteenth, of that portion of the City and County of San Francisco bounded and described as follows, to wit : Beginning *t the point where Second Street Intersects Market Street; thence along Second Street to Harrison Street; thence along Harrison Street to Sixth Street; thence along Sixth Street to Market Street; and thence along Market Street to Second Street, the place of beginning. The Twentieth, of all that portion of the City and County of San Francisco bounded and described as follows, to wit: Beginning at the point where Sixth Street intersects Market Street; thence along Sixth Street to Harrison Street; thence along Harrison Street to Seventh Street; thence along Seventh Street to Channel Street; thence along Channel Street to Harrison Street; thence along Harrison Street to Fifteenth Street; thence along Fifteenth Street to Howard Street; thence along Howard Street to Fmu- teenth Street; thence along Fourteenth Street to Mission Street; thence along Mission Street to Ridley Street; thenoe along Ridley Street to Mar- ket Street ; and thence along Market Street to Sixth Street, the place of beginning. The Twenty-first, of that portion of the City and County of San Francisco bounded and described as follows, to wit : BeginBing i* the point where Channel Street intersects the Bay of San Francisco; thence along Channel Street to Harrison Stveet; thence along Harrison Street to Fifteenth Street; thence aloiig Fifteenth Street to Hownd Street; thence along Howard Street to Fourteenth Street; thence akng Fourteenth Street to Mission Street ; thence ajong Mission Street to Bid- Digitized by Google Nov. 11, 1878. OF THE CONSTITUTIONAL CONVENTION. 363 tej Street; thence along Ridley Street and the line of Ridley Street, projected westerly, to the Pacific Ocean; thence southerly along the jfacific Ocean to the southern boundary line of the City and County of Sao Francisco ; thence along said southern boundary line to the Bay of San Francisco; and thence meandering along the waters of the Bay of San Francisco to Channel Street, the place of twginning. The Twenty- leoond, of Oakland Township, County of Alameda. The Twenty-third, of all that portion of the County of Alameda exclusive of Oakland Town- ship. The Twenty-fourth, of the County of Santa Clara. The Twenty- fifth, of the Counties of Merced, Mariposa, Stanislaus, and Tuolumne. The Twenty-sixth, of the Counties of Tulare, Inyo, Fresno, and Mono. The Twenty-Seventh, of the Counties of Santa Crux, San Mateo, and San Benito. The Twenty-eighth, of the Counties of Santa Barbara, San Luis Obispo, and Monterey. The Twenty-ninth, of the County of Los Angeles. The Thirtieth, of the Counties of San Bernardino, San Diego, Kern, and Ventura. Sic 7. Each house shall choose its own officers, and jiidge t>f the qualifications, elections, and returns of its own members. Sic. 8. A majority of each hoose shall constitute a ouorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner and under loeb penalties aa each house may provide. Sic. 9. Each house shall determine the rule of its own proceed- ing, and may, with the concurrence of two thirds of all the members elected, expel a member. 6k. 10. Each bouse shall keep a Journal of its own proceedings, and publish the same, and the yeas and nays of the members of either bouse, on any question, shall, at the desire of any three members pres- ent, be entered on the Journal. Sic. 11. Members of the Legislature shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest, ana shall not be subject to any civil process during the session of the Legislature, nor for fifteen days next before the oommenccment and after the termina- tion of each session. 8ie. 12. When a vacancy occurs in either bouse, from any cause, during the session of the Legislature, the house in which said vacancy occurs shall proceed immediately to elect, from the constituency deprived of representation, a member to fill said vacancy for said ses- sion. If the Legislature is not in session at the time the vacancy occurs, the Governor, or the person exercising the functions of Governor, shall issue writ* of election to fill such vacancy. Sic. 13. The doors of each house shall be open, except on such occa- sions as in the opinion of the house may require secrecy. Sic. 14. Neither house shall, without consent of t&e other, adjourn for more than three days, nor to any other place than that in which they may be sitting. Sic is. No law shall be passed except by bill. Any bill may origi- nate in either bouse, but may be amended or rejected by the other, and on the final passage of all bills they shall be read at length, and the vote shall be by yeas and nays upon each bill separately, and shall be entered on the Journal ; and no bill shall become a law without the concurrence of a majority of the members elected to each house. Sic. le. Every bill which may have passed the Legislature shall, before it becomes a law, be presented to the Governor. If he approve it, he shall sign it ; but if not, be shall return it, with bis objections, to the bouse in which it originated, which shall enter the same upon the Journal and proceed to reconsider it. If, after such reconsideration, it again paas both houses, by yeas and hays, by a majority of two thirds of the members of each house, it shall become a law notwithstanding the Governor's objection. If any bill shall not be returned within ten days after it shall have been presented to hira (Sundays excepted), the same shall become a law in like manner as if he had signed it, unless the Legislature, by adjournment, prevents euch return, in which case it shall not become a law, unless the Governor, within ten days after such adjournment (Sundays excepted), shall sign and deposit the same in the office of the Secretai; of State, in whicn case it snail become a law in like manner as if it bad been signed by him before adjournment. If any bill presented to the Governor contains several items of appropria- tion of money, he may object to one or more items, while approving other portions of the bill. In such case he shall append to the bill, at the time of signing it, a statement of the items to which he objects, and the reasons therefor, and the appropriations so objected to shall not take effect unless passied over the Governor's veto, as hereinbefore provided. If the Legislature be in session, the Governor shall transmit to the house in which the bill originated a copy of such statement, and the items so objected to shall be separately reconsidered in the same man- ner as bills which have been disapproved by the Governor. Sic. 17. The Assembly shall have the sole power of impeachment, and all impeachments shall be tried by the Senate. When sitting for that purpose, the Senators shall be upon oath or affirmation, and no person shall be convicted without the concurrence of two thirds of the members elected. flic. 18. The Governor, Lieutenant-Governor, Secretary of State, Controller, Treasurer, Attorney-General, Surveyor-General, Justices of the Supreme Court, and Judges of the Superior Courts, shall be liable to impeachment for any misdemeanor in office; but judgment in such rases shall extend only to removal from office and disqualification to hold any office of honor, trust, or profit under the State; but the party convicted or acquitted shall nevertheless be liable to indictment, trial, and punishment according to law. All other civil officers shall be tried for misdemeanor in office in such manner as the Legislature may provide. 8k. It. No Senator or member of Assembly snail, during the term for which he shall have been elected, be appointed to any civil office of profit nnder this State, which shall have been created, or the emolu- ments of which have been increased, during such term, except such '^"1 as may be filled by election by the people. Skc. 20. No person holding any lucrative office under the United States, or any otner power, shall be eligible to an^ civil office of profit under this State; provided, that officers in the militia, to which there is attached no annual salary, or local officera, or Foatraasters whose com- pensation does not exceed five hundred dollars per annum, shall not he deemed lucrative. Sic 21. No "person who shall be convicted of the embezzlement or defalcation of the public funds of this State, or of any county or munici- pality therein, shall ever be eligible to any office of honor, (rust, or profit under this State; and the Legislature shall provide bylaw for the punishment of such embezzlement or defalcation as a felony. Sec. 22. No money shall be drawn from the treasury but in conse- quence of appropriations made by law, and upon warrants duly drawn thereon by the Controller ; and no money shall ever be appropriated or drawn from the State treasury for the use or benefit of any corporation, association, asylum, hospital, or any other institution, not under the exclusive management and control of the State as a State institution; nor shall any grant or donation of property ever be made thereto by the Stale. An accurate statement of the receipts and expenditures of public moneys shall be attached to and published with the laws at every regu- lar session of the Legislature. * Sic. 23. The membera of the Legislature shall receive for their ser- vices a compensation, per diem, and mileage, to be fixed by law, and paid out of the public treasury; but no increase of the compensation shall take effect auring the term for which the members of either house shall have been electm. Sic. 24. Every law enacted by the Legislature shall embrace but one subject, which shall, be expressed in the title, and no law shall be revised or amended by reference to its title; but in such case the Act revised, or section amended, shall be reSnacted and published at length as revised or amended. Sic 26. The Legislature shall not pass local or special laws in any of the following enumerated cases, that is to say : Firtt — Regulating the jurisdiction and duties of Justices of the Feaoe, Police Judges, and of Constables. Second — l^or the punishment of crimes and misdemeanors. Third — Regulating the practice of Courts of justice. Fourth — Frovidiui^ for changing the venue in civil or criminal cases. Fifth — Granting divorces. SMh — Changing the names of persons or places. Seventh — Vacating roads, town plats, streets, alleys, or public grounds not owned by the Stale. Eighth — Summoning and impaneling grand and petit juries, and pro- viding for their compensation. Mnth — Regulating county and township business, or the election of county and township officers. Tenth — For the assessment or collection of taxes. Eleventh — Providing for conducting elections, or designating the places of voting, except on the organization of new counties. Tweifth — Affecting estates belonging to minors or other persons under legal disabilities. Thirteenth — Extendirig the time for the collection of taxes. Faurteenth — Giving eficct to invalid deeds, wills, or other instrumenta. Fifteenth — Refunding money paid into the State treasury. Sixteenth — Releasing or extinguishing, in whole or in part, the indebt- edness, liability, or obligation of any corporation or person to this State, or to any municipal corporation therein. Seventeenth — Declaring any person of age, or authorizing any minor to sell, lease, or incumber nis or her property. Eighteenth — Legalizing, except as against the State, the unauthorized or invalid act of any officer. Nineteenth — Granting to any corporation, association, or individual any special or exclusive right, privilege, or immunity. Ticentieth — Exempting property from taxation. Twenty-Jirii — Changing; county seats. Tuienty-second — Rtatoring to citizenship persons convicted of infamous crimes. Twenty-third — Regulatinj; the rate of interest on money. Tieenty-fourth — Authorizing the creation, extension, or impairing of liens. Tioenty-^th — Chartering or licensing ferries, bridges, or roads. 7Wno8it of gold and silver and other lawful money of the United States ; but no such associations shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, or the p^iper of any bank to circulate as mouey. 8ic. 32. The Legislature of this State shall prohibit by law any per- son or persons, association, company, or corporation, from exercising the privileges of banking or creating paper to circulate as money. Sec. 33. Each stockholder of a corporation or joint stoc& association shall be individually and personally liable for his proportion of all its debts and liabilities contracted or incurred while he was a stockholder, and the Trustees or Directors of such corporation or association, and each of them, shall be responsible, individually, for the misappropriation by the officers thereof of the funds or deposits of such corporation or association. Sic. 34. It shall be the duty of the Legislature to provide, by general laws, for the organization of city, town, and county governments, and for assessing and collecting taxes for the support of the same; provided, that no city, city and county, town, or countv shall ever incur a debt which, together with existing indebtedness, shall exceed two per cent, of the assessed value of the projterty therein. Such value shall be ascer- tained from the assessment roll tor State and county purposes made immediately previous to incurring such indebtedness; provided, hmoeeer, that a city, city and county, town, or county may borrow money under and in accordance with the following conditions and limitations in addi- tion to any other conditions and limitations contained in the Constitution , namely : the debt must be for some single work or object only, and must be authorized by a resolution passed by a vote of three fourths of all the members elected to the Board of Supervisors, Common Council, or local Legislature. Such resolution shall also distinctly specify the single work or object for which the debt is to be created, and the amount of the debt authorized, and shall contain provisions for a sinking fund to meet the same at maturity, and requiring at least ten per cent, of the principal to be annually raised by taxation and jmid into the sinking fund. Such resolution shall not take eflect until it shall be ratified at an election held in said city, city and county, county, or town, at which no other matter is voted upon, and which shall be held within days after the passage of said order or resolution. The Legislature shall make such laws as may be necesskry to provide for holding such election and ascertaining the result thereof. Sec. 35. In all elections by the Legislature the members thereof shall vote viva voce, and the votes shall be entered on the Journal. Sic. 36. The general appropriation bill shall contain no item or items of appropriation other than such as are required to pay the salaries of the State officers, the expenses of the government, and of the institutions under the exclusive control and management of the State. Sic. 37. Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian Eurpose, or help to support or sustain any school, college, university, ospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever ; nor shall any grant or donation of personal property or real estate ever be made by the State, or any city, city and county, town, or other municipal corporation, for any religious creed, church, or sectarian purpose whatever. Sic. 38. The Legislature shall have no power to give or to lend, or to authorize the giving or lending, of the credit of the State, or of any county, city and county, city, township, or other political corporation or subdivision of the State now existing, or that may be hereafter estab- lished, in aid of or to any person, association, or corporation, whether municipal or otherwise, or to pledge the credit thereof, in any manner whatever, for the payment of the liabilities of any individual, associa- tion, municipal, or other corporation whatever; nor shall it have power to make any grant, or authorize the making of any ^nt, of any public money or thing of value to any individual, municipal, or other corporation whatever; and it shall not have power to authorize the State, or any political subdivision thereof, to subscribe for stock, or to become a stockholder in any corporation whatever. ' Sic. 39. The Le^slature shall have no power to grant, or authorize any county or municipal authority to grant, any extra compensation or allowance to any public officer, agent, servant, or contractor, after ser- vice has been rendered or a contract has been entered into and perfonned in whole or in part, nor to pav or to authorize the payment of but claim hereafter created against tbe State, or any county or municipality of the State, under any agreement or contract made without ezprea authority of law, and all such unauthorized agreements or contract! shall be null and void. Skc. 40. The Legislature shall not ratify any amendment to the Constitution of the United States which may be proposed by Conneas, except such as shall have been proposed aiid published at least thirty days next preceding the general election for members of the Legislstare ratifying such amendment. Sic. 41. In case of a contested election in either branch of the Leg- islature, only the claimant decided entitled to the seat shall receive from the State per diem compensation or mileage. Sic. 42. In order that no inconvenience may result to the public service from the taking effect of this Constitution, no officer shall be suspended or superseded thereby until the election and quali&calionof the several officers provided for in this Constitution. ■lADIKO or BirOKTS. Ml. TERRY. Mr. President : The report is rather a long one, and it would probably be well to dispense with the reading and have itprinled. I will state that the report i* signed by all of the committee who were present. There are three propositions upon which the committee were not unanimous. Of course, aiiy member of the committee can, in the house or in the Committee of'^the Whole, propose any such amend- ments as they deem proper. Mr. ROLFE. I move that the rule requiring reports of committeei to be read be suspended, and that the reading of this report be dii- pensed with. Thi president. It requires one day's notice. Mr. GARVEY. a rule in order may be temporarily suspended. M R. CO WDEN. Part of the Le^alati ve Committee have agreed apoii a part of the report. I presume it would be the proper time now to put in the minority report Mr. Garvey has it Tri president. The Chair will rule that we cannot suspend the reading of the report. Mr.LARKIN. Is a motion in order now? TBI president. Yes. Mr. LARKIN. I move to take up and consider the resolution offend by Mr. Tinnin, to amend Rule Fifty-six by striking out "that the pre- vious question shall not be moved." THiPRE.«tIDENT. The Chair misunderstood the gentleman. There is a report of a committee before the house. Mb. murphy. By unanimous consent the rule can be suspended. Thi president. Hearing no objection, the rule is suspended sod the reading of the report dispensed with. HtJIOBITT BBPOBT. Mb. HEISKELL presented the following report from a minority of the Committee on Legislative Department: Mr. Pruidint: Ths andeninird memben of the Commltte* on L«(iiktln Department dissent frum the oonclueloiM arrived at by a ni^oritj of the conuniiM M to State aid to the various charitable and lienevolent institutions that iiarc bitk- erto carni for the orphaned wards of thi* State. The 8tate Is the caaniian ; it itudi in the place of parent* towards the orplians within its iimits. The tmct is a bifb one and ihould tie Mlmtnistered with a Adelitjr ccaumensiirate with its ol4iialioiii. It li the purpuae of the minority of jour committee to destroy existing inatiutltw which, aa agents of the State, perfbrni a portion of the fbucHons of goTeraoieol— Inititutiona which educate and rear three warde; inatitatJons from whose doort tiw orplian ia diicharged properly trained to take npon himself the obllgationf and dw- charge the dntir* of American citiienaliip. Yet the msjority have not pointed cot any way in which the places of theer instltntlont ore to be Silrd In the Nosoa; of government. None will l>e ao recklev ss to aaifrt that the State mart BO(,ia some form or other, care for them ; and the only alternative, if the opinion of the mi^urity of the committee should prevail with the Convention, wonld be the cl«a- tion of costly aaylnms and the raalliplicalion of pnbllc ofllees and eosunloduM te amnag* them. That sacb a cnura* would be unwise and woold result in a lovir grade of aervic* at on incnoaed cost, la a propodtloa which the undersigned balien cannot be sneceaaftolly controverted. The Legislature of this State has appmprlated for severml yeoi* past anno*lly,tb< mm of one hundred dollars for the support of each whole orphan, the snm 6i lev* enty-flve dollars for the support of eecli half orphan or abandoned child. An rnn- ■nation of the Controller's books will show that this is an averoce appropriatlM ne cents per day to maintain each petsoiL At StoO- ton it coata under forty-three cents, abunt, we think, forty-two cents. Now, it ■ concealed, we believe, on all liands, that the Stockton Asyltun li one of the bMt sis*- aged inititutloni in the United States. If not the best in the world. It bai bet* ■> for years. >o that It will not do to take the Stockton Asylum as a standard. The •*■< at onr Slate Prtaon Is forty-two and seveo-tontlia; at the Deaf, Dumb, and BUsd Asylum, ninety fire centi. Now, to start with, wo snniort the orphans at s h" expense lh*n any other class of people supported by the State. But that la ^^J^ Deeides iupporting them we clothe tliem, and It ooeis more to clothe a bny or girl ii an oaylnm than it does a convict in the State Prison, or an inmate In the IsMSe Asylum. Beside* that, we educal* them. The average orm the people fur a change. No complaint has been made as to the manner In which these great charities have been maintained. Bnt above tho question of costs there stands another as to the efficiency of the service, and the undersigned have no hesitation in asserting tlut the destinies of thb orphans are better placed in the hands of the good men and women of this Slate, who perform the dnty as a labor of love, than they would be In tho hands of oScen chosen at random and paid with gold for their services. We believe that under the present aystem the good of the orphans and of the State is beet subserved. That under this system the ends of government have been fiUly met in the ** beat service at the least expense." Baipectftilly submitted. MABIOM BIOGS, J. B. OARVET, T. D HKISKBLL, D. U. COWDGN. Ms. HEI8KELL. Mr. President: I moTs that report take the same course. , Thk PRKSIDEKT. ir there are no objections. Mr. McCALLUM. I call for the reading of the report. Thk secretary commenced the reading of the report. Mr. McCALLUM. I now move that the reading of the report be dispensed with. I only wanted to see what was in it. Carried. Mi. terry. I move that both reports be printed. Carried. PBiriODS QORSTIOK tR COMMITTU OP THK WBOLS. Mb. LAREIK. I move to take np the amendment to Rule Fifljr-six offered by Mr. Tinnin, of Trinity. The amendment can be read by the Secretary. Thr SECRETARY read: "Amend Rule Filly-six by striking out the words, 'and the previous question shall not be moved.'" The rule as it stood was as follows: RcLi 56. The rules of the Convention shall be observed in Commit- tee of the Whole, so far as they may be applicable, except for limiting the times of speaking, and except that the ayes and noes shall not be taken, and that the previous question shall not be moved. Mb. LARKIK. Mr. President: In the interest of this Convention forthe puiposes we have assembled, I think it is necessary that that provision of the rule be struck out. I think there is much debate in the Committee of the Whole that is not neceesary. I do not see why men should talk an hour on one proposition. Each gentleman can get up and give his views on the ^neral reason why he votes for or against a proposition. I think it is time that we had power on the Committee of the Whole to move the previous question. I think it will expedite busi- ness. I therefore move that that amendment be adopted. Mb. ESTEE. Mr. President : That is very probably the case, and probably this Convention will adopt it, but it will have no effect unless uother rule is changed. Another rule provides that Cushing's Manual shall be taken in all cases not provided for in the rules, and Cushing's 'Maniial will prescribe that in Committee of the Whole the previous question eaanot be moved. The ^ntleman mi^bt move to amend so «« to read, " the previous question may be called in Committee of the Whole." Mr. LARRIIT. I accept the amendment. Mb. TERRY. It would be better, and I move, to strike out the words "shall not" and insert the word "may." It will then read: " The rules of the Convention shall he observed in Committee of the Whole, so far as they may be applicable, except for limiting t|^e times of speaking, and except that the ayes and noes shall not be taken, and that tne previous question may be moved." Mb. HOWARD. I think it is too soon to adopt that rule. We ought to dispose of the question of corporations and taxation firat. I move to amend so that it will read : " On and after the twentieth of November the previous question may be moved." Mr. BEERSTECHER. Mr. President: I hope that the rule will not be adopted. JeSersou's Manual, Cush in k's Manual, and the rule aa adopted by the deliberative bodies of the United States generally, do not allow the previous question to be moved in the Committee of the Whole. That has been tho rule in this country for over fitly years. I do not see why we have become so wise — so much wiser than all deliberative Imdies, and therefore desire to break a rule that has been found to work justly, atkd which has been found to be necessary in all deliberative bodies. If the gentlemen do not desire to have this rule take effect, the easiest way is not to resolve yourselves into Committee of the Whole. That is the very purpose and the very object of going iiito Committee of the Whole, that the previous question cannot be niovetl. It is to give more liberty of action, more freedom of speech, and if you do not desire, to have that freedom of speech, then do not resolve into Committee of the Whole, but remain in Convention. It seems to me that when we go into Committee of the Whole, we should have the liberty of action which tho Committee of tho Wiiole gives to a deliberative body. This has been found necessary by the parliamentarians for over fifty years in this country. I do not see, Mr. President, why the gentleman from El Dorado, Mr. Larkin, should be imbued with so much more wisdom than tlie parlia- mentarians whose names are recorded in history in this country, or wliy this gentleman should desire every day to break rules that have been approved by the wisdom of this country. I hope that this Convention will vote down anything of this character. Mr. President, for those gentlemen who have a sufficient amount of brass it is easy to jump upon the floor at any time, and they will talk after they get upon the floor. As far as I am concerned, I am not afraid of this motion at all ; but I desire to allow every individual member of this Convention ffl^pportunity to get upon the floor and saying a few words. He may mit be as iuterestmg as some individuals are, but at the same time if he cannot so fluently utter his thoughts he may be able to stutter out words of wisdom. I believe in the stutterer of words of wisdom. I do hope that this amendment will not be adopted so as to give a few men in this Convention an opportunity of absolutely choking offa man who desires to speak. And therefore I hope that the Conven- tion will not depart from the general rule adopted by the brightest par- liamentarians of this country. Me. larkin. Mr. President: We have been now forty-five days, I think, in session here since we have met. The appropriation for this Convention will not last more than thirty days more — I do not think it will last that. We have not yet adopted one section of the Constitution. We have not yet agreed upon one single article of the Constitution. Over half the time whicn a majority of the Convention expected it would take liiem has passed. Nothing yet has been done. The motion is not made to cut off the remarks of the gentleman from San Francisco, because wo appreciate his remarks. It is not made for the purpose of hindering any member upon this floor from stating his position, for meiVibers are always courteous enough to yield to any man that privilege. But this Conven- tion should now come to its work. We have considered that bill of rights for over two weeks. The Convention should have the right to move the previous (luestion, and come Ut* vote on it. I am in favor of proceeding with this work. I am not here as a missionary to enlighten men, nor do I expect any other man to enlighten me by the arguments which are used here. If you expect to make a Constitution, you have got to adopt some rule by which you will proceed to it, and not by con- tinuing the course we have. I ask it in the name of the people that desire a new Constitution, that we start now and consider these propo- sitions, and that we have no more delays by speeches or special orders. The motion is made in good faith, and not to reflect upon any gentle- man for occupying the floor. It is made in the interest of making the Constitution that the people demand that we should make. This Con- vention will not ehoke off debate. Ko member desires to choke off debate nntil we have exhausted the subject. But I believe that this Convention can best determine when they are satisfied with the discus- sion of a question and when it should close.. I ask that we adopt the amendment offered by the gentleman from Trinity. Mb. T0WN8END. Mr. President: I hope this amendment will pre- vail. I do not think that Cushing's Manual or Jefferson's Manual ever contemplated such a body as tnis meeting together in the world. [Laughter.] Some members seem to think that they must give us thefr eulightened views upon every question. Allhoiigli I admit that it is very liberal of them, I do think that wo can struggle through without their opinions in some cases. I think by the adoption of the amend- ment we would save time and get along with the business better. Mb. terry. Mr. President : There is an additional reason for the rule. A great many speeches have been made here which were no doubt very edifying to tne members who sit in the immediate vicinity of the speakers, but the acoustics of this hall are so bad that the other members cannot hear. There are not more than seven or eight men in this hall whose voices can be heard by one third of the mcnibers of this Convention, and therefore I do not see that any great amount of instruc- tion is to be received by any long debates under circumstances of thi^ I ^ ! L 366 DEBATES AND PROCEEDINGS Monday, kind. The members in the immediate vicinitj of % speaker can hear what he says, but the others can hear the racket but not the words. It strikes me that we have been long enough here together, and these propositions have been printed long enough, and the reports hare been printed and considered long enough, for every member to have read and digested them, and made up his mind. I do not think that we want any more long speeches by members of the Convention. Ma. BLACKMER. Mr. President: I desire to oSer an amendment to the amendment. Thi PBE8IDENT. There are already two amendments. Mb. BEERSTECHER. I move that this whole matter be laid upon the table. I do it because nearly one half of this Convention are absenU Mb. LARRIN. I call for the ayes and noes. Mb. murphy. Ayes and noes, Mb. McCALLUM. Ayes and noes. Mb. DUNLiAP. Ayes and noes. Mb. hunter. Ayes and noes. Mb. McCALLUM. It takes two thirds to change a rule, and it will take only a majority to lay on the table. It takes two thirds to change a rule. Mb. BEERSTECHER. I withdraw the motion, with the -ennsent of the Convention. Thi PRESIDJINT The question is on the adontion of the motion made by the gentleman from Los Angeles, General Howard. Thb secretary read: "Amend by striking out the words 'that the previous question shall not be moved,' and insert in lieu thereof the words, 'that the previous question shall not be moved until after the twentieth of November.' " The president. That is the amendment to the amendment, on which the question comes first. Lost. Mb. BLACKMER. I desire to offer an amendment, which I have sent up. Tbk secretary read : "Strike out all after the word 'taken,' in the last line, and insert the following : ' but the previous question may be moved by a two-third vote of the members present' " Mb. BLACKMER. Mr. President: I offer this amendment for two reasons. First, because I think there should be more liberty in a dis- cussion in Committee of the Whole than in the Convention. This will secure it, because it will take a two-third vote to move the previous question. For another reason, that the phraseoloo* will be such as ought to be in a rule of this house. As it reads now wRh the amendment offered, we couple the time for speaking and the ayes and noes shall not be taken with a provision that the previous question may be moved. That is not what the Convention wishes to do. For these reasons I offer this amendment. It will give further liberty in the Committee of the Whole for discussion than we have in Convention, where the previous question may be called by a majority. Mb. NOEL. 'Mr. President: I hope that the amendment will not prevail, and that the roles of the Convention in this particular will not be changed. If the previous question may be moved in Committee of the Whole, the Convention may then very well dispense with the Com- mittee of the Whole altogether. The only object tnat there can be in resolving the Convention into Committee of the Whole is to allow the utmost freedom of debate. If the debate in Committee of the Whole is to be cut off, we need have no Committee of the Whole. If the very purpose of it is taken from it we certainly will not need it. Mb. MURPHY. As the previous question is under discussion, I now move the previous question. Mb. waters. I second the motion. Mr. DOWLING. I call for the ayes and noes. The question was put, and the Chair declared it carried, on a division, by an affirmative vote of eighlji. The PRESIDENT. The first question is on the amendment offered by the gentleman from San Diego, Mr. Blackmer. The amendment was lost. The PRESIDENT. The Secretary will read the next amendment The SECR,ETARY read: " Substitute the word ' may ' for the words ' shall not' '" Mb. van dyke. It ought to be stricken out and insert Mb. terry. I accept the amendment The secretary read : "Strike out the words 'shall not,' and insert the word 'may.'" •The amendment was adopted, on a division, by a vote of seventy-three ayes to twenty-four noes. The president. The question now recurs on the adoption of the rule 88 amended. Mb. EDGERTON. Wilfthe Chair state the positon of the question. The president. Notice was given ofa motion to amend RuleFifty- six, by striking out the words, "that the previous question shall not be moved." Thergentleman from San Joaqum, Mr. Terry, moved to amend the amendment, by striking out the words "shall not" and inserting the word " may." That amendment was adopted. The question now recurs on the adoption of the rule as amended. Mb. STEDMAN. I call for the ayes and noes. Thb president. We are acting under the previous question. The ayes and noes have been demanded by the gentleman from San Francisco, Mr. Beerstecher, the gentleman from San Francisco, Mr. Dowling, the fentleman from Monterey, Mr. Wyatt, the gentleman from Santa Clara, Ir. Herrin^ton, and the gentleman from San Francisco, Mr. Bell. The Secretary will call the roll. The roll was called. Mb. BARBOUR (when his name was called.) Mr. President: I Mk leave to explain my vote. The president If there bo no objection the gentleman will have leave to explain his v^>te. Mb. TERRY. lo bject [Cries of "object," Mb. BARBOUR. "object"] Very good. That illustrates the object of the amendment, and I shall vote " no." The president announced the rule as amended adopted, by the following vote: iXfs. Andrews, HeiskeU, O'Sullivan, Barry, Belcher, Herold, Overton, Hitchcock, Porter, Boucher, Hueatis, FuUiam, Burt, Hnghey, Reed, Caples, Hunter, Rhodes, Chapman, Jones, Rolfe, Charles, Kelley, Schell, Condon, Keyes, Schomp, Cowden, Lampson, Shurtleff, Crouch, Larkm, Smith, of 4tb District, Davis, Larue, Souls, Dean, Lavigne, Stevenson, Dunlap, Mansfield, Strong, • Edgerton, Martin, of Santa Cms, Stuart, Estee, McComas, Terry, Estey, McConnell, Tinnin, Evey, Filcher, McCoy, Townsend, McNutt, Turner, Finney, Mofiat, Van Dyke, Freeman, Moreland, Waters, Garvey, Morse, Webster, Glascock, Murphy, Weller, Gorman, Naaon, West, Graves, Nelson, Wilson, of Tehama— 7T. Gregg, Obleyer, Mora. • Barbour, Howard, Stedtnan, Barton, Eleine, Steele, Beerstecher, Lindow, Tuttle, Bell, McCallum, Vacquerel, Walker, of Tuolumne, Blackmer, McFarland, Brown, Noel, Wellin, Dowling, Reddy, Wickes, Farrell, Ringgold, White, Grace, Shoemaker, Wyatt— 2». Herrington, Smith, of San Francisco, Mb. DOWLING. I desire to change my vote from "aye" lo "no," The gentleman is too late; the Chair has an- for the purpose The president. nounced the result Mb. EDGERTON. I wish to state that this gentleman was upon his feet, and distinctly called, "Mr. President," nefore the vote wu announced. Mb. CONDON. I voted in the affirmative for the purpose of giviag notice of a motion to reconsider, and I now give that uotioe. PABDOMmO POWRB. Mb. FREEMAN. Mr. President: I move that the Convention resolve itself into Committee of the Whole, Mr. Tinnin in the chair, for tbe purpose of further consideration of the report of the Committee on Ptt- donmg Power. Carried. IN COMMITTEE OF THE WHOLE. The CHAIRMAN. The question is on the amendment offered by the gentleman from San Diego, Mr. Blackmer. The Secretary will read it The secretary read : " Strike out all after the word ' impeachment,' in the fourth lin«, down to and including the word 'pardon,' in the seventh line, and insert the following : ' And such power shall be exercised only in esse where new evidence is discovered after judgment eetabliehing'the inno- cence of tbe convicted party or the injustice of the sentence.'" speech or MB. BLACKMKB. Mb. blackmer. Mr. Chairman : This discussion has alreadv occu- pied considerable time. I do not wish to detain the committee for any length of time to further discuss the proposition, but I desire to say a few words upon the question, and perhaps this will be as good a time as I can take. I believe, sir, that all will agree, that we must have some government, and that that government must embrace among its other powers that of restraining and punishing those who transgress the he*i made for the protection of its citizens. It will be admitted that a gov- ernment without such authority could not exist Now, sir, this being conceded, it follows that the laws, or the enforcement of such authority, should be uniform in their operation ; and the restraint and punishment should be effective and certain in its application. The uncertaintr of arrest and conviction could not be entirely eliminated from the problem, because it was beyond the reach of the authority that provides for the punishment; but the uncertainty of punishment after conviction should be reduced to the lowest minimum, both for the protection of society tl large and for its influence on the criminal classes. A very large propor- tion of our criminals are educated to the profession. They are not the victims of some sudden impulse that carries them away, but they rtsrt wron^ in the beginning, and their whole lives have been a school of iniquity, from wnich they have graduated.-a9 outcasts aal criminsis. Digitized byVjOOQlC. Nov. 11, 1878. OP THE CONSTITUTIONAL CONVENTION. 367 The object of the law is two fold : first, to restrain And punish for the crime committed; and second, to deter others from committing like offenses; and no system can be effective unless these things are kept in view. The first ought to be done by Ihe conviction, and the punishment determined upon by law. So long as the convict be retained he is pun- ished for his crime. The second can only be effected when the punish- ment determined upon is sure to follow, without hope of pardon or abridgment. No one who has committed a crime against the peace of society should have reason to hope that he may escape the consequence of that crime after being convicted of it. Xow, Mr. President, I see no way to accomplish this very desirable object without making the punishment sure to follow the conviction, except where evidence is discovered that establishes the innocence of the convicted party or the injustice of the sentence passed upon him. This does not, as has been contended, abolish the pardoning power. It simply restricts the exercise to that class of cases where alone it should be exer- cised. The criminal who has been justly convicted of a crime has no claim upon executive clemency, and he ought not to be encouraged to expect it. Society has a right to protection from the injuries inflicted upon it by this 'dangerous class, and especially so if it has taken the necessary steps to protect itself by procuring a conviction and a sentence. It is not supposed that by any system we can adopt every case will be met exactW, but under the present system many are released while it is yet unsafe to allow them to go at large, and this is a case where there must be a judgment upon the basis of what is right as near as may be. We cannot consistently with our duty overlook the wrongs likely to be done society by an indiscriminate use of the pardoning power. I do not believe, nor would I be understood to say, that toe Execu- tives of this State have ever been influenced b^ money or by the hope of political preferment to exercise this jmwer m favor of any criminal or class of criminals. The cases in which they are urged to exercise it are made up with a view to enlistin|p sympathy in favor of the convict, and to make it appear that an injustice has been done him in the sen- tence, and they are so successfully managed that it is often impossible to determine the true inwardness of the application. Many of the honorable gentlemen in this Convention know by experience or observa- tion how easy it is, after a criminal has been convicted and served a portion of his time in the State Prison, to get a petition signed for his pardon. It is not an uncommon thing for the Judge before whom he was tried and the entire jury that convicted him to petition for the par- don through sympathy for bis family, who are the innocent sufferers for his crime. This has become so common that it is endangering society. I heartily agree with the sentiment that justice should be tempered with mercy, but we have no right Ui carry that sentiment so far in its application as to forget that mercy should also be tempered with justice. Sympathy for the guilty should not blind us to the right of society to beprotectod. Now, let us examine this proposition, and see what its effects would be if adopted. The first condition on which a pardon could be granted would be where evidence may be found after judgment establishing the innocence of the convicted party. This does not establish a new rale in regard to such cases. Pardons ought to be granted under such drcumstances. It is thought by some that the word "establishing" there is too restricted; that it compels applicants for pardons to prove too much; and if this was the only class to which this provision might apply there would be some point in the objection, but this goes fertber and includes every criminal who can produce evidence discovered after judgment, going to prove that the sentence was unjust. Now, if we take the whole proposition, it seems to me that it includes all who are entitled to pardons. If the convicted party be guilty, he has still an opportunitv to prove the injustice of the sentence. I think it is safe to say that there are many in whose favor this power bss been exercised who would have been as well off to remain where they were, and that society would have been more secure, while much neeiiless expense would have been saved if they had not been pardoned. I have for many years believed that one of the needed reforms in our criminal jurisprudence was the making the prescribed punishment sure to follow upon conviction. I see no way of oriuging about such a result except by restricting the pardoning power. I have no particular pride in this amendment, and do not object to its amendment if it can be improved, but I believe in the principle of it. I believe there is a demand for it, and I do not think we should hesitate to take this step in advance, and I believe, because we do not find a precedent behind whick to shield ourselves, we should accept it or reject it upon its merits. BIKAKKS OF MB. STIKLE. Ma. STEELE. Mr. Chairman: "To err is human; to forgive, divine." I am opposed to the adoption of the amendment, because It is too cast-iron, too inflexible, too relentless in its scope to be incorporated in the Constitution. It has been well said, I think, that the laws which a people or a nation enacts for its self-government furnish the best cri- terion by which to judge of its intellectual and moral status. 1 do not believe that the people of the State of California are willing to inoorpo- nte into their Constitution a provision virtually abolishing the pardon- ing power, or, at least, so curtailing and crippling it as to render it almost ineffectual. I believe there should be some room left for the exercise of mercy. Mercy blesses both the giver and receiver. I have no doubt that the object of the gentleman in pressing the amendment is a good one. He-wishes to relieve the Executive from this great pressure that is brought to bear upon him ; and, in the second place, to protect society more effectually against criminals. Those objects are good, but we pught not to do it in such a manner as to render the pardoning power ineffectual, or abolish it almost entirely. 9PIECH or UB. DOWLIMO. Ml. D0WLI9G. Mr. Chairman : I am not a sentimental man, and I am in favor of the amendment offered by the gentleman fh>m San Diego, Mr. Blaekmer, because, sir, the question of the pardoning power is one of essential importance to the people of California. We have to-day in this country — in this State — thousands of men running rampant through the land that ought to be ornamenting a rope, or in San Quentin. We have them in San Francisco by the hundred. Why? On account of the laxity of our laws ; because we are not inflexible enough. We want the best welded iron in order to keep down criminals nowadays. Mr. President, the reason that men should be more honest and more noble in this country than anywhere else, is because we have liberty here. We have liberty everywhere ; libei:tjr to rob, liberty to plunder, liberty to steal, liberty to do as we like, liberty to violate our laws. That IS not liberty ; for, Mr. President, liberty lies in obedience to just laws equitably administered and sternly executed. There is an invisible ligament bincling liberty to justice, and if that is once severed, liberty is very vague — very capricious, I should say — and It may depart forever. But if we do not allow justice to have its course and hold the scales, and deol out justice to every offender of the law, why, we will never have what we call peace ana tranquillity in the State. Why, sir, if a man commits a cnme and is tried by an impartial jury, before a just Judge, the jury has time to deliberate. They are called from all the walks of life ; they are called from the plow, from the workshop, and from the counting house. When they pronounce a verdict of guilty on a criminal, I say that the eternal words should be written over the gates of San Quentin : " He who enters here leaves all hope behind;" and out of those doors he should not go until the last hour, until the last minute has expired. When once we do that, why, we will not have the gates of San Quentin opened every now and then by the good and philanthropic Governor. I saw an account of a man, in the Sacramento Union, that assaulted and murdered a woman in San Francisco, and he has confessed that he has been half a dozen times in the State Prison. This thing of the pardoning power is getting to be used too freely. We have got to punisn crime or we will never have an end of crime, and I hope tnat that amendment will pass, for it is the very thing we want in California. arxECH or xb. biloheb. Mb. BELCHEB. Mr. Chairman : I hope that the amendment will I do not believe that there has been any serious abuse of the oning power in this State. We have at this time one thousand ve hundred men in the State Prison. We have had a large number at all times. Instead of the pardoning power having been abused, I think it might have been exercised more ^eely than it has with advantage. It is true, probably, that now and then a man has been pardoned who ought not to have been. But it Is human to err, and it must be possible, with any system, that sometimes the Governor may be mistaken in thd exercise of clemency. But there are, in my judgment, a hundred men in San Quentin now that would be better out than there, and no danger would be incurred by the State if they were pardoned. Now, it is said by the gentleman lost on his feet that the State is runningover with crimi- nals, and that may be. There are a great many traversing the country who are criminals. It is said that one has been found lately in San Francisco who is charged with murdering a woman, and who has con- fessed to having been twice in the State Prison. That I saw, but it does not appear that the man had ever been pardoned. There are criminals sent to the State Prison that never ought to be turned loose upon society, but there are men sometimes in the State Prison who ought to be par- doned. There are boys, such as were spoken of by the gentleman from San Joaquin. There is a large number of boys there. If the object of sending them there is reform, you will never reform them if you keep them there. And it may be that many of those boys might be reformed if let out and taken by their fVlends. I read yesterday of a boy some eighteen years of age, who came from Missouri less than a year ago, and has just been sentenced in Colusa County to four years in the State Prison. This boy was the son of an eminent physician in Missouri. He came to this State and tried to get work, but finding difficulties in his way at every step, and being unable to obtain work, he finally committed a crime, which was proven upon him, and he is sentenced to the State Prison. Now, that boy might not be really lost. It may be that th€f boy can be saved, not by keeping him four years in the State Prison, but by tiimine him over to better influences outside. Now, while it is true that one oDject of pun- ishment is to deter others from committing like offenses, still you must strive, as far as may be, to save those who have already committed crimes. Now, 1 say that instead of the Governors having abused this power, they have not exercised it enough, in my judgment. It ought ought to be exercLsed freely. Out of the one thousand five hundred men and boys in the State Prison, there are many of them that might be pardoned and the State be all the better off for their being pardoned. Now, I hold that the amendment offered by the gentleman from San Diego, Mr. Blaekmer, would practically abolish the pardoning power. You say that pardon may be granted when the jiarty is proved to be innocent. Of course such a one ought to be pardoned. Or, when it appears that the judgment is unjust. What is meant by a judgment being unjustT Here is a man who is called up and tried for a homi- cide,«nd the jury find him guilty of manslaughter, or murder in the second degree. There was evidence tending to show him guilty of an offense under the law. What Is meant by saying that the judgment is unjustT One Judge might sentence him for life, and another Judge might sentence him to five or ten years. Which one of these judg- ments is unjustT They may say it is iust in any case, because the man has been found guilty of the homicide. It is a just judgment, unless the party was convicted wrongfully. There ought to be a place where this question can be conslderml. There ought to be a man or a Board^ that can consider it. There are many cases where the ' Digitized by a man or a Board 368 DEBATES AND PROCEEDINGS Monday, Governor can be exerrised properly when those who do not understand bis reasons ma^ wonder why parties should be released from prison. A man is sometimes convicted under such circumstances that there is almost a general feeling of sympathy for him. ^ Take some of these cases that hare been spoken of, where there are some family disturl>- anoes. Somebody has entered into the family circle ; the man is gen- erally acquitted by (he jury; hut suppose the jury convicts? Mow, the Judge cannot help himself. If the jury says "guilty," the Judge must pronounce the sentence, because il is the law. The man has committed a homicide and is guilty before the law ; he must go to the Slate Prison for life, or for ten years, or for such time as the law prescribes, unless the Governor interposes his power and releases him from his imprison- ment. I say that th» Governor ought to do it, and if I were Governor I would do it if I bad the power. I would be willing to put more power in the hands of our Governors in this respect. They have not betrayed this trust; they have not abused this privilege; they have exercised it fairly and well, I hope the amendment will be voted down. SPIICB or MB. BAKET. Mb. BARRY. Mr. Chairman: I do not agree with the gentleman from Yuba, that the Governors have not abused this power. I believe that it has been abused, not in one case, but in a great many cases. I will not charge any particular Governor with exercising the executive clemency improperly, but cases have been too frequent where it has been exercised to thie detriment of justice. Kor will I hold that they have been governed by political influence, or by money. I would not lay any such charge at the door of any Governor. But it has been done by sympathetic appeals which they could not withstand. No wonder, is it, that the Governor will hie himself away to the mountains and remain away for weeks, when a wife or sister will be knocking at his door and pleading to him with the powers of speech and all the love that they have for a brother, son, husband, or father, as the case may be, until he is finally overpowered by the importunities on the part of friends or relatives of the prisoner, until he is finally compelled to grant a pardon. Now, sir, as gentlemen have intimated, pardons are frequently recom- mended by the jury and sometimes by the Judge, which I am sorry to say is against the interests of justice. When a man is convicted of a felony, sometimes the whole community feels that he ought to be pun- ished severely; but I care not how great that feeling is at the time, in a very short time it is removed, and gradually sympathy takes the place of it. Yet, at the same time, that will be abused. It is often carried too far, and it is so that men forget the perpetrator of the crime '4n the desire to have him pardoned, through sympathy. There is another objection to this amendment. I think that it places too great a restriction upon the power of pardon in this : that if a prisoner was taken sick, or when they are liable to die within a short time, there will be no power to pardon them. That is the case in a number of instances. Men who have been confined for five, ten, fifteen, or twenty years will fall into consumption, and it is evident that they can not live but a short time unless removed from there. There are times, in cases like that, when the executive clemency should be inter- posed; when mercy and humanity calls for it; that a person in that condition should be removed, especially when he has relatives that are willing to take charge of him; where in a short time he will answer before the Judge of all. I hold that in a case of that kind, where a man has relatives and where his time on earth is short, and there is no fear that the case will be abused, it is right that thoee who are relatives of his should take charge of him. It is right that his eyes should be closed in death by the mother who looks upon him as fondly as when she rocked him as a baby; she who never thinks that her boy was guilty, or son, or father, or husband, no matter what the crime may be. Ko matter how others look upon him ; though he may be an object upon whom all look with disdain; though he may be ostracised from society, yet there is still one and sometimes others whose hearts beat as warmly towards him as they ever did, and who cannot think him guilty. Ma. BLACKMER. Mr. Chairman: Is it not true to-day that the Srison discipline allows this class of convicts to be out as trusties in ifferent parts of the place or near byT It would be unlikely that a man would be denied that privilege or being put out in that way. Mr. BARRY. Mr. Chairman : I believe that under this amendment the Governor would be denied the exercise of the pardoning power even in a case of that kind. While that class of prisoners could ^o out in the yard, they could not go to their relatives. I do not think if the Pardoning Boanl had this power they would abuse it If a man was simply sick temporarily, for a short time, I do not believe that the Board would say that he should be pardoned, but only in those cases where the interests of humanity required it. When men become sick so that it is certain that they will die, then is the time for executive clemency. Mb. BLACKMER. If the ^ntleman will propose an amendment to cover that point, I will accept it. Mb. BARRY. Mr. Chairman : My idea is that this pardoning power should be placed in a Board of two, or three or more. Probably the best would be the Governor, Attorney-General, and the Supreme Court constituting a Board of Pardons. I have heard that with them the power has not been abused ; that it has been used wisely ; and I tfiink that if we had it in this State it would be much better. The argument is used that the Supreme Court is overworked now. Well, I think that with the provisions that we shall put into the Constitntion, their labor will not be so great as in the past, and that they could attend to this duty. But we might allow the Governor to use the power in cases of misdemeanor, and in cases of felony leave it be decided by the Governor, Attorney-General, and Chief Justice, or a majority of them. I do not thinjc anything less will satisfy the people of this State, than to have a Board of Paraons. So amend the Constitution that they shall be selected— either the Governor and Attorney-General, or the Governor, Atlomey-General, and the Chief Justice — if i^ntleinen object lo the Supreme Court being associated with it. I believe that with the Chief Justice, with his ability, with hir calm judicial mind, exercising the power with the Governor and Attorney-General, it would be a wise provision. I think that with such a Board of Pardons where the inter- ests of justice required that a man should not be pardoned the paidon will be refused. I think, therefore, that I shall vote against this proposition. aPIICH or MB. rBIBMAK. Mb. FREEMAK. Mr. Chairman: It seems to me that the amend- ment under consideration removes the word " pardon,'" in its proper significatiou, from the Constitution and laws of this State. If it is to be adopted California will be the first State in the Union to place a consti- tutional prohibition upon the promptings of mercy and the voice of humanily. Why talk about panloniiig a man who is shown to be inno- cent? Such a man has done nothing to be forgiven. His release from punishment is a matter of right and not a matter of grace. Neither it It a pardon to relieve a man, though guilty of crime, who has served out so much of his penalty as is just. Such a man, having paid the equitable penalty of his crime, is released as a matter of justice and not as a matter of favor. Pardon, as 1 understand the wont, is forgiveness for a crime committed, and in that sense of the term I defend the exist- ence of the pardoning power. It is not wise to place even a criminal where there is no incentive to good rather than to baa conduct. Is there to be no difference between that convict who obeys all the rules of the prison, who labors industriously and faithfully, and who, so far as he can, respects and preserves the interests of the State, and that other convict who lives in constant defiance of the prison discipline, who is universally an incorrigible dissolute, and who embraces every opportunity to injure the State and to take the lives of his keepers? Is it not common, even for convicts, in time of revolt, to place their services on the side of the Stste, and have they not even rescued from death the keepers who are placed over them? Is it not true that the sentences of several convicts in the State Prison were commuted a few years ago for their heroic conducts! the time of the fire there? Would you say to such men, " Sir, the State accepts your services and your devotion, but a provision in our Constitn- tion prevents us from expressing our gratitude to you. We cannot nuke any distinction in your favor. Your good deeds must await their reward in heaven?" And, sir, besides the instances I have just alluded to, there mnst be many cases where even after a just conviction, even considering the guilt of a man, his subsequent demeanor and bis subsequent conduct shows that he ought to be restored to society, and given an opportunity to make a man of himself. The proposition lender consideration would make the pardoning power simply a Court of appeal, or a place for the correction of errors. If that is the purpose, we ought to strike out the words, "Chief Justice of the Supreme Court,'' and the word," Governor," and place it in the hands of tne legal authorities. Pardon is intended to exist as a matter of grace, and there must be some one intrusted with this power in a civilised country. But it is said that the pardoning power has been abused. I suppose that no power can exist without mistakes. I suppose that there is no department of our government but what commits errors, and if we are resolved not to do anything that will not always operate correctly, we will stay the operations of every department of government. But I believe that more errors have been committed against than in favor of mercv. Why, sir, in the twenty-eight or twenty-nine years during whicL California has been a State, it is said that only seven hundred and thirty persons have been [wrdoned. That is not a large percentage. Do we not know that many of these persons were only set free alter their sentences bad almost expired, and when they had paid nearly the full penalty due to the State? Do we not know that many were only set free because the sands of life were ebbing low, and it was desired that they might end their days in the presence and care of friends? I deny that this power has been abused to any considerable extent, and I believe that a limitation, such as is propped here, would take from every young man their incentive to good behavior and to good conduct. But there is another consideration. It must be remembered that the pardoning power has been a part of our system of government. It must be remembered that the consideration of the existence of the pardoning power has entered into every sentence of every one of those one thousand five hundred men who are said to be serving there. I know a number of Judges who have told me that they have sentenced men to long periods of confinement because they believed that a desre to escape would be an incentive to behave righteously and properly, to so ingratiate themselves with the prison authorities that at the end of a suitable time, when the Wardens believed they had been sufficiently punished, and when they believed it was safe to restore them to society, that they would be restored; and the adoption of this will add to lbs sentence of these men who have been sentenced with a view to the existence and continuance of this power. BIUABKS or HE. SMITB, Or SAK rBAKCISCO. Mb. SMITH, of San Francisco. Mr. Chairman : I am opposed to the whole section, because in my estimation there are too many pardons entirely. I think that the Govemorshould be the laat roan to have any thing to do with the pardoning power. I am in favor of abolishing the pardoning power altogether. It appears to me that when a man has once been convicted ofa crime, he should suffer the consequences. It is offering a premium on crime. It is opening the door to corruption. I hope, if we must have the pardoning power at all, il will be vested in a Pardoning Board. I think the Governor should be the last man to hold this power, because he is generally too tender. He would not like to offend any political friends, as it would hinder his chances of elevating himself in political position. I do not wish (CL|eave it in the power « Digitized by LjOOQ IC Nov. 11, 1878. OF THE CONSTITUTIONAL CONVENTION. 369 anj Governor of thia State to turn loose the bank Bmashers and polit- ical thieves to again rob the people. Therefore, I think'it should oe in a Board of Pardon Commissioners. Mr. EINGGOLD. Mr. Chairman : I am opposed to all the propo- eitions, so far. I see no improvement upon the original section. For one reason, I should prefer that the Governor should be responsible, and that is that the Governor is anxious to be relieved of it For that reason I prefer to keep it there. I would be willing to have the power left right «here it is. ' BKMARKS OF MK. OTIRTOK. Mr. OVERTON. Mr. Chairman : It is a little surprising to me to see gentlemen get up here, some of them, and seem to want to abrogate entirely this pardoning power. One of the reasons that some of the gentlemen assign is that some particular man has got away with the funds of some savings bank, or he has done something which it is true he ought to be punished for, and they seem to think that because of that we ought to close the doors forever against the pardoning of prisoners. There are instances where I think this pardoning power should be exer- cised, and many of them. So far as I am concerned, I am willing to leave it where it has been, and where it is left in most of the States. I remember a case which illustrates it. I remember when I was prose- cnting attorney, that I tried some eight boys, at one time, for a robbery that they had perpetrated upon a lot of Chinamen— all of them young excepting one. They were led to it by this older head. They were con- victed—necessarily convicted — under the law, and had to be sent to San Qnentin. Nearly all of those boys, who were young, and many of them I bad known from little children, Tvere pardoned by the Governor. Nearly every one of them to-day, and all oi them, so far as I know, are doing well. ' They reformed and became good citizens. There are many cases of this kind, and like that mentioned by Judge Belcher, where the penalty must be inflicted, because it is the law. I say .that there should oe some way in which executive clemency can be exercised. I am in ikvor, so far as I am concerned, of leaving the pardoning power just as it is. I do not believe that it bas ever been abused, except in very few instances, and then I think it has been by the Executive being imposed upon. If the Executive has been imposed upon, they are just as likely to impose upon other men. I think it is bettor where there is only one man, because he will be more careful than where you divide the responsibility. Tas CHAIRMAN. The question is on the adoption of the amend- ment The amendment was lost. Mr. SCIIELL. Mr. Chairman : I desire to renew a motion made on Saturday in regard to this section. It is to " strike out all of line two and the words ' power to grant,' in the third line." It does not altorthe sense in anywise. The motion is simply to make a verbal correction. It will then read ; " The Governor shall have the power to grant reprieves, pardons, and commutations of sentence," etc. Adopted. Mr. HDESTIS. I mnre to strike out the word " previously," in the seventeenth line. As it now stands, the language is equivocal, and con- veys the idea that where a man shall have been thrice convicted he can be pardoned. Mr. SCHELIj. I understand that that word has already been stricken out Thr chairman. The Chair understands that it is not stricken out Mr. ROLFE. Mr. Chairman : It is obvious to any gentleman who will read this that this leaves it equivocal. If I understand the inten- tion of the committee it was to fix it so that where a person had been convicted of a felony three times, he could not be pardoned. Now, I think this would bear the construction that he would have to net up to his fourth conviction before this inhibition would apply. To prohibit the pardon it would have to appear that he bad been convicted three times previously to that conviction for which the pardon was asked. Now, it simply means that if with that oonvictioif he has been three times con- victed, a pardon cannot be granted. Therefore, it will read right if this word "previously " is stricken out. I know that is what was intended by the committee. I am on that committee myself, and Judge Shafter called ray attention to it before he left. The amendment was adopted. Mr. grace. I wish to submit a substitute for the whole section. Mr. ESTEE. I rise to a point of order. A substitute cannot be offered, as the committee has already adopted a part of the section. The <3HAIRMAN. The Chair will so rule. The motion is out of order as a substitute for the whole. BEUARKS OP MR.*ORACK. Mr. grace. Mr. Chairman : I am opposed to this thing of granting the power of pardon to the Governor. I do not think that the Governor knows any more about Che sentence of a criminal than a jury of twelve men. When a man has been arrested and tried before a jury of twelve men, who have sat in Court for days, with the best counsel that can be procured in the State ; they hear the evidence and they investigate it ; they ait there with a disposition only to do justice ; when the case goes to the jury they are instructed by a just and impartial Judge that if there remains any reasonable doubt in relation to the guilt or mnocence of the prisoner, that the prisoner is entitled to the benefit of the doubt; when he is convicted alter the jury has given him the benefit of the doabt, then I am of the opinion that that man is guilty, and when he is aentenced to the Penitentiary, he should stay there until he serves out the last day of that sentence. In relation to one other thing that was said Mb. terry. I rise to a point of order. There is nothing before the hooae. Mb. OBACE. Isn't the pardoning power 47 Trb CHAIRMAN. The Chair rules that the whole section is now before the committee. The gentleman has a right to speak to it Mb. terry. I understand that there is no motion to amend. Mr. grace. If the gentleman will sit down The chairman. The Chair will rule that the whole section is before the house. Mb. grace. The gentleman from Sacramento says that there has Jbeen seven hundred and fifty men pardoned out Well, let us multiply that by twelve. There has been nine thousand impartial jurors that have said men ought to go to thepenitentiary, and seven or eight Governors have pardoned them out. We have their opinions against nine thou- sand honest jurymen. These jurymen have investigated the cases and rendered impartial verdicts. It was their opinion that they wereguilty, and these Governors, for reasons brought to bear by friends, have seen fit, in their wisdom, to say that they should be pardoned. I believe that the Governor should have the right to grant reprieves. I put in a propo- sition to that effect, and they recommended that it be not adopted. I would like to have had the sense of the Committee of the Whole on that. I believe that there are instances where new facts are developed that would bring into question the justice of the sentence, and that the criminal should have a reprieve. I believe it should be the duty of the Governor to remand him to the District Court from whence he was sen- tenced, and if be could show anything to bring into question the justice of the sentence, let him prove it before a jury of his countrymen. I claim that there should be no other tribunal, and nothing above a jury of his countrymen. That no Governor should have the power to say that a man should be pardoned after he had been sentenced by twelve jurymen of his country. And then, if you want to come down to exact justice, if you want to meet the ends of justice, say that no man should go unpunished after that opportunity. There is nothing inhuman about that It would never affect any poor man. "The poor man may go to the penitentiary and the circumstances do not develop. It takes some- thing metallic to show the innocence of a criminal. I say that the bank smashing thieves and stock gambling thieves in this State, and every other State in the Union, can do things with impunity, and can ride roughshod over the law — steal, rob, and murder — and when they are sentenced then the Governor will pardon them out. There are cases in this State, and there have been in others. There is the case of Stokes, who murdered Fisk. He was only up in the penitentiary of New York for a few yearn and then he was turned loose, though it was in my opinion a cold blooded murder. There is not only a dozen cases in the United States, but hundreds of cases, where men of influence and wealth have been convicted aud there is no prison strong enough to hold them. If you give the pardoning power to the Governor there is no punishing the moneyed aristocracy or the land. Put it into the hands of jury- men, who are 0)od men. Mr. HERRINGTON. Mr. Chairman : I have an amendment to offei'. Tbr SECRETARY read : "Amend section thirteen, of article five, as proposed by the Committee on Pardoning Power, by inserting in line sixteen, after the word ' case' and before the word ' where' the words 'of embezzlement or.' " The chairman. The question is on the adoption of the amend- ment Mb. HERRINGTON. Mr. Chairman : I offer that amendment because of the peculiarity of the offense of embezzlement. It is an offense which but few persons, where an opportunity is given to com- mit it, are able to avoid. The trust that is reposed in these banking corporations, saving and loan societies; the trust that is reposed in public officers who have committed to their charge public funds; the trusts that are reposed in persons who have in their hands the estates of deceased persons and those of minors, orphans, and persons committed to the insane asylum, are peculiar cases in my estimation of the law. I think they ought to be exempt from the general rule applicable to pardons, and that is the reason for offering this amendment. It will make that clause of the section read : '• Neither the Governor and Chief Justice nor the Ijegislature shall have power to grant pardons, or com- mutations of sentence, in any case of embezzlement, or where the convict has been thrice convicted of felony." 'I'hese are the reasons that I offer that amendment. I think that that amendment presents a case which ought to be exempted from the general rule. Mb. ROLFE. Mr. Chairman: If I understand the amendment cor- rectly, it seems to me that it would make an absurdity on its face. " Neither the Governor and Chief Justice, nor the Legislature "—whereas the section does not propose to allow anybody but the Governor to grant any kind of a pardon. Mb. HERRINGTON. Mr. Chairman: I ask leave to include in that . amendment such an amendment as will make this last sentence conform to the first part of the section. Of course that is the way the section now reads, and it did not occur to me at the time that an amendment had been made to the former part of the section. Of course this last part ought to conform. I overlooked the fact that the amendment to the first part of the section had confined pardons to the Governor. It will not vitiate the section if it remains even in the form that it is now presented. If the gentleman will offer that amendment I will accept it; otherwise I ask leave to amend it so as to make it conform in that way. 'The amendment was lost Mb. SHOEMAKER (at twelve noon). I move that the committee rise, report progress, and ask leave to sit again. Lost Mr. WHITE. Mr. Chairman: I offer the following amendment. Thk SECRETARY read: "The Governor of the State shall have power to remit fines and forfeitures, to grant reprieves, commutations of sentence, and pardons, except in cases of impeachment; but no pardon shall be granted, nor sentence commuted, except upon the reoomtnendation, in writing, of 370 DEBATES AND PROCEEDINGS MOSDAT, the Lientenant-Govemor, Secretary of the Commonwealth, Attorney- General, and Secretary of Internal AfTiurg, or any three of them, afl«r full hearing, upon due public notice and in open seseion, and such rec- ommendation, with reasons therefor at length, shall be recorded and filed in the office of the Secretary of the Commonwealth." Mb. white. Mr. Chairman: That is the mode adopted in l^enn •ylvania. I copied it from the lateConstitutionof that State. Pennsyl- vania formerly left it to the Governor altogether. When she had her last Convention they adopted this mode. I think it is excellent. Kext, to do away with it altogether, which I am in favor of. Thk CHAIRMAN'. The Chair will rule that the amendment is out of order, as it seems to be a substitute for the whole matter. Mb. grace. I wish to offer an amendment. Tbk secretary read: "Insert after the word 'reprieves' the following: 'But nothing herein contained shall be construed to authorize the granline of pardons or commutations of sentence after conviction; but if it shall appear to the Governor that in the case of any person undergoing sentence, addi- tional testimony mitigating the other circumstances have been developed which bring into question the Justice of such sentence, the Governor shall h«ve me power to remand such person to the custody of the Court in which the sentence was passed, for a new trial.'" Mb. grace. Mr. Chairman: Now, all 1 have to say to this Con- vention is this: that if thev want to meet the ends of Justice and come down to Just exactly what fs right, they will adopt this amendment. If any man has been convicted of a crime of whicn he is not guilty, and facts have been developed since his sentence, why, that leaves a chance that he may still be acquitted of it; and, if he is really guilty, and there has nothing occurred only sympathy and friends and moneyed influ- ence on the outside, he will have to stay in the penitentiary. I tell you that a Jury of twelve men'ain't going to let them out. It takes evidence. It must be the truth that is sworn to and proved. The same rule should apply to pardons as to trials. It should be the same kind of evidence. If you establish a commission it will be something like the machine that got Mr. Hayes into tlie Presidential chair. I contend that three Dem- ocrats and two Republicans could have decided that Just as well as eight Republicans and seven Democrats. TLaughter.] If you want to get justice let it be an even tribunal. And, sir, if it is right for twelve men to send men to the penitentiary, then it will be nothing more than right' and fair to submit the question of the justice of a sentence to twelve men. Justice should be blind, and they should look at the evidence instead of the sympathy and the filthy lucre that has been brought to bear upon the Executive. I do not believe that there has been seven hundr«l and fifty men put in the penitentiary who ought not to have been. If so, you say nine thousand jurymen were not honest, and the Governors were infallible. I do not believe in the infallibility of the Governor. I think he is more liable to err than twelve Jurymen. If you are in favor of coming down to a fair, square proposition, whereby no man can be left in the penitentiary unless be deserves to be there, and no man can get out unless he ought to, then vote for this proposition. I am in hopes that this amendment will prevail. BBHABKS OP MB. STBDUAK. Mr. STEDMAN. Mr. Chairman : I do not desire to detain this Con- vention with a lon^ speech. I desire simply to say that in ray opinion the section is now m its proper form. I hope that all amendments will be voted down, and that the section will be adopted as it now stands. As I understand our prisons, they are, or ought to be, reformatory in character. When men are placed in the State Prison^ and understaud it, they are placed there in order that they might be reformed and become better men. Can we not extend to them mercy and charity T Mr. Chairman, let us put ourselves in their places. [Laughter and cries of "Oh, no I "] Mb. ROLFE. I move that the gentleman have leave to put himself in that position. [Cries of " Leave ! " " leave ! "] Mr. STEDMAN. Mr. Chairman : I cannot better express my senti- ments than by reading — for I do not remember it — the words of the old Scotch poem, and then I will sit down, and after which I hope the sec- tion will be adopted. Here it is : " Ob, g«(>tl; Kan jrour brother man. Still gentl«r, sister woman ; TboQgh they may gang Mr. EDGERTOK. Mr. Chairman : I merely rise to suggest that the gentleman sin^ it. [Cries of " sing I " " sing I "] Mr. STEDMAK. As I am not in the habit of soaring aloft as my friend from Sacramento is, I am sure that I could not as aptly be called a bird ; therefore, if he desires to sing it, I will turn it over to him. Perhaps I am not competent to read it correctly : "Ota, gently scan your brotlier man, Still gentler, sister woman ; Though tbey may gang a keunin' wiang— To atop aalde la bumaa. One point must still be greatly dark. The moTlng why they do it; And Just M lamely can yo mark How far, perhaps, they rue it." Mb. HOWARD. I move that the committee rise, report progress, and ask leave to sit again. Carried. IN CONVENTION. Thk PRESIDENT. Gentlemen : The Committee of the Whole have instructed me to report that they have had under consideration the report of the (Committee on Pardoning Power, report progress, and ask leave to sit again. The hour having arrived, the Convention took the usual recess until two r. H. AFTERNOON SESSION. The Convention reassembled at two o'clock p. h., Mr. Tinnin in the chair. Roll called, and quorum present. M0TICI8 TO AHBKD BULKS. Mb. ESTEE. Mr. President: I wish to give notice that to-momw I will move the adoption of the following rule, to be known as Rule Sev- enty-six : Tbk SECRETARY read the notice : " Every section adopted by the Committee of the Whole shall be refer- red to the Committee on Revision and Adjusting without debate, wboae duty it shall be to formulate the same ana report it bark to tlie Conven- tion before final action thereon." Mb. CONDON. Mr. President: I give notice that I will, on to-motrow, move to amend Rule Fifty-two, by striking therefrom the words, "by title." Mb. STEDMAN. Mr. President : I desire to give notice that I sbtll, to-morrow, move to strike out of Rule Fifty -six the words, "except for a limited time," and substitute other words. Tbk PRESIDENT. Send up the notice in writing. AMRRDIIBKTS. Mb. HERRINGTON. Mr. President: I ask leave to introduce, «t this time, a proposed amendment to the article introduced by the Com- mittee on Corporations other than Municipal, by adding thereto the fol- lowing: Thr SECRETARY read: "Every railroad company or association existing under the laws of this State at the time of the adoption of this Constitution, shall accept the provisions of this article in good faith before being entitled to claim or have any of the benefits of any future legislation thereunder." Mb. HERRINGTON. My intention is to make that section twenty- four of the report. Thb PRESIDENT. It will be printed and referred to the Committee of the Whole, to be considered with the article on corporations. Mb. FREEMAN. I move that the Convention resolve itself into Committee of the Whole to further consider the report of the Committee on Pardoning Power. Mb. BEEBSTECHER. I would like to have leave, before we go into Committee of the Whole, to introduce an amendment in relation to the creation of a Stale Department of Labor. The amendment was received : BTATB DBPABTUKKT OP LABOB AMD LABOB STATISTICS. SicTioN 1. There shall be a State Department of Labor and Labor Statistics. Skc. 2. The duty of the departm^t shall be to collect and pnblish slatistical details concerning every class of labor in this State; also to have general supervision of the commercial, industrial, educatioasl, social, and sanitary condition of the laboring classes. Skc. 3. Weekly and annual reports shall be made by the department and printed by the Slate Printer, and gratuitously distributed throngh- out the State. The chief of the department shall also report to each Legislature, and advise such legislation as may be neceasai7 to encour- age and protect labor. Skc. 4. The officers shall be a General Superintendent, with an offiff in the State Capitol building; and a Superintendent, with an office is the City of San Francisco. They shall be elected at the general St»i« election, and hold office for four years. Their salary shall be two hun- dred ($200) dollars per month. Sbc. 5. The Legislature may provide for traveling and other inci- dental expenses, and for employment of clerks, and their compensstion. Mb. BEERSTECUER. This amendment, was referred to the Com- mittee on Legislative Department. I think it was improperly referred- I understand that there will be a meeting of the Committee on Labor and Capital this evening, and I would like to have this amendment con- sidered at that time, therefore I move its reference to that committee. So ordered. NOTICB TO AHBND A RCLB. Mb. STEELE. Mr. President: I hereby give notice that, lo-morTDV, immediately after the meeting of the Convention, I will move to amend Rule Fifty-six as follows: • After the word " applicable " in the second line, strike out all the words down to the word "except" in the third line; in the fourth line, after the word "question," strike out "may" and insert '• shall not." and then add to the end of the rule : " Each' speaker shall be limited to one speech of ten minutes, except the Chairman of a standing commit- tee, who shall have the closing speech and dofible time when an^ k<- tion of the report of his committee is under consideration and disent- sion." Then the rule will read as follows: " The rules of the Convention shall be observed in Committee of the Whole, so far as they may be applicable, except that the ayes and noes shall not be taken, and the previous question shall not be moved. Eaf'> speaker shall be limited to one speech of ten minutes, except the Chair- man of a standing committee, whd shall have the closing speech and double time when any section of the report of his committee shall be under consideration and discussion." PABDOKIKO rOWBB. Mb. freeman. 1 now renew my motion that the Convention resolve itself into Committee of the Whole to further ooniider the report of the Committee on Pardoning Pow^fc Carried. Digitized by Google L Nov, 11, 1878. OF THE CONSTITUTIONAL CONVENTION. 371 IN COMMITTEE OF THE WHOLE. Hk. VACQCEREL. I send up an amendment. Thr SECRETARY read: "Add to the end of the section the following : ' But when a criminal has been sentenced to death, and the execution shall not take place on the day set, such sentence shall be commuted and another penalty inflicted.' " Me. VACQUEREL. The object of that amendment, Mr. Chairman, is to prevent the repetition of a scene that occurred four or five months ago. A man was tried and condemned, and should hare been hung on a certain day, but it appears that through some mismanagement he was subject to the torture of a postponement for eight days, and after that postponement he got ready to oe executed, and then there was another postponement. I do not believe that the law intends that a man shall suffer torture. Therefore this amendment provides that when a day is set for the execution, and it does not take place, the sentence must be commuted to imprisonment for life. The amendment was rejected. Mr. barton. I offer an amendment The SECRETARY read: "Amend by substituting the word 'twice' for 'thrice,' in line seven- teen." The CHAIRMAN. The question is on the amendment. ^ BKUABKS OF MR. BAKTON. Me. barton. Mr. Chairman: I desire to briftfly exnlain why I desire this amendment. Gentlemen of this Convention will remember, a few years ago, in eighteen hundred and fifty-seven, that France, being overrun with her criminals, her prisons being full to overflowing, took it upon herself to appropriate a sufficient amount of money to place these criminals on board of ships, and did so, and forwarded them to the coast of America. They were landed on the shores of North America, and they were scattered broadcast throughout the land. Many if not all of them were hardened criminals, unfit to remain in the enlightened and civilized country of France, and they were poured upon the American nation, and upon American society. I think, in this view, it would be very proper to restrict these sentences to twice instead of thrice. I think that when a hardened criminal has been convicted twice, that there should be no pardon granted. Again, many of you who have lived in this country very well under- stand that the penal colonies of Great Britain, from the Island of Aus- tralia, day after day, and week alter week, have poured these hardened criminals upon us, and the sooner we do something to protect ourselves and stop this influx of criminals the better. 'Tberefore I hope this amendment will prevail. Why should a man who baa been convicted twice, and is then convicted and sentenced a third time, be pardoned. If you leave it aa it is, there will hardly be a case that it will reach. It says no one who has been previously thrice convicted of felony shall be pardoned. Hence a criminal must be serving out his fourth term before this provision will debar him from a pardon. A man would hardly have time to serve four terms for felony during an ordinary lifetime, so that as it stands, it will avail but little. The CHAIRMAN. The question is on the adoption of the amend- ment. Mr. cross. Some gentlemen near me could not hear the amend- ment. Will the Secretary please read it again. The SECRETARY read the amendment. Division being called, the committee divided, and the amendment was adopted by a vote of sixty -seven ayes to twenty-seven noes. Mb. McCALLUM. Mr. Chairman: I ofi°er an amendment. The SECRETARY read : "Insert between the word 'Court,' in lino two, and the word 'shall,' in same line, in the article proposed by the committee, the following : 'and the Attorney-General, or a majority of them, the Governor being one,' so that it will read : Sec 13. The Governor shall have the power to grant reprieves, and the Governor and the Chief Justice of the Supreme Court, and .the Attorney General, or a majority of them, the Governor being one, shall have power to grant pardons and commutations of sentence, after con- viction, for all oS°en8es, except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as they may think proper, subject to such regulations as may be provided by law relative to the manner of applymg for pardons. Upon conviction for treason, the Governor shall have power to suspend the execution of the sentence until the case shall be reported to the Legislature, at its next meeting, when the Legislature shall either pardon, direct the execution of the sentence, or grant a further reprieve. The Governor shall com- municate to the Legislature, at the beginning of every session, every case ol reprieve or pardon granted, stating the name of the convict, the crime of which he was 'convicted, the sentence, and its date, the date of the pardon and reprieve, and the reasons for granting the same. Neither the Governor and Chief Justice nor the Legislature shall have power to grant pardons, or commutations of sentence, in any case where the con- vict has been previously thrice convicted of felony." The CHAIRMAN. The question is on the amendment. Me. McCALLUM. I have waited for the various amendments to be djspoaed of before offering this. I now offer it and ask that a vote be taken on it. Mr. terry. There is no such wording as the above. It has been stricken out by the Committee of the Whole. There is no such wonl as "Court" in there. I raise that as a point of order. Mr. McCALLUM. I am taking the report. The CHAIRMAN. The whole of the second line has been stricken out The Secretary will read it as amended. The secretary read : " Sec. 13. The Governor shall have power to grant reprieves, pardons, and commutations of sentence, etc." Thk CHAIRMAN. All the rest in relation to the Court has been stricken out. Mr. McCALLUM. Then I move to insert the words, " And the Gov- ernor, Chief Justice of the Supreme Coujt, and the Attorney-General." Mr. E8TEE. I raise the point of order that it has already been voted upon. Mb. McCALLUM. It has never been voted upon by the Committee of the Whole, or by the Convention. Mr. HOWARD.' It is not in order, because it has already been voted upon. Mr. terry. That has been voted upon, and it is left in that way. SPEECH OF MR. MCCALLCU. Mr. McCALLUM. Mr. Chairman: If you will allow me. The committee reported that the Chief Justice should be added to the Gov- ernor. My colleague. Judge Campbell, moved to strike out " Chief Justice " and insert " Attorney -General." That amendment was voted down. Then an amendment was offered by the gentleman from Sac- ramento, Mr. McFarland, to strike out certain portions of the section. That was the way that stood on that proposition. That there should be a council, consisting of the Governor, Attorney-General, and Chief Justice, has not been voted upon yet by the Committee of the Whole. I ask a vote of the committee upon it. I have waitetf for other gentle- men to present their various propositions, and in fact the other day, at the suggestion of the gentleman from Sacramento, Mr. McFarland, I gave way and let him present bis proposition first, and I now desire a vote of the committee on the proposition. I have but a word to say on it. We have voted, upon so many propositions, that it comes to this at last, that unless we aHopt something to this effect the Constitution will stand substantially as it is, which, if it is the wish of a majority of this Convention, of course we must submit to. But I desire to nave an expression on this one proposition. As far as I am concerned, in the County of Alameda, while this proposition was being discussed, every voter in the county is committed to trie proposition which has been expressed in this brief language, that the Constitution should- be so amended as to vest the pardoning power, now exercised by the Executive, in a Commission. I hold that where gentlemen stand on a plain proposition of that sort, if they can't vote for it, it is their business to resign, and let others who choose to vote stand in their places. I recognize the right of the people, and my object htts been to have a Commission constituted. So many have been suggested and voted down that it seems to me this is about all there is leftT On this question I wish to call attention to the Constitution of the State of Nevada. There the language is this : "The Governor, Justices of the Supreme Court, and Attorney-General, or a majority of them, of whom the Governor shall be one, may, upon such conditions and with such limitations and restrictions as they may think proper, repiit fines and forfeitures, commute punishments, and grant pardons after convictions in all cases except treason," etc Instead of having all the Justices, I use the name of the Chief Justice alone. As I understand the report of the Judiciary Committee, the Supreme Court is to consist of seven, and the Court will probably be held in two sections, in which case there would be less labor for the Chief Justice than either of the others. That is a good argument for it. I submit that while objections may be made to any form of Commission suggested, that the Chief Justice should be one and the Attorney-General another; and in this connection I will state that I have had a consulta- tion with some gentlemen from Nevada, and 1 understand from them that that constitutional provision there, on this subjecct, works exceed- ingly well, and without complaint from anybody. I have left out this large number of Judges, for one Judge is enough. Now, the Attorney- General and the Chief Justice can't grant pardons, but the Chief Justice and the Governor can grant pardons. I believe, without discussing this question, that I express the sentiments of the people that I represent, and the sentiments of a very large majority of the |)eople of this State, that this immense power should be in a Commission, to say nothing about the question whether it has been abused or not. It is too great a power. I would not take it from the Executive, but I would nave a Commission, so as to have some additional authority with him. I believe there should be a Commission. I have no doubt that the judg- ment of this Convention will be that there shall not be any more officers. I ask for a vote on the proposition, and then I shall have discharged my duty. Will the Secretary read the amendment? Th e secretary read : " The Governor, Chief Justice of the Supreme Court, and the Attor- ney-General, or a majority of them, the Governor being one, shall have power to grant reprieves, pardons, commutations of sentences," etc Mb. McCALLUM. It should read in this way: "The Governor shall have power to grant reprieves, and the Gov- ernor, Chief Justice of the Supreme Court, and the Attorney-General, or a majority of them, the Governor being one, shall have power to grant," etc. REMARKS OF MR. SMITH. Mr. smith, of Fourth District. Mr. Chairman : I don't see why we should not be allowed to vote on this amendment. The majority of this Convention have not settled down upon the proposition that the Gov- ernor alone should act in this matter. The plan suggested by Mr. McCal- lum is the one that came verj- near being settled upon. Now, as for me, as far as I am concerned, it makes no difference, but it seems to me that this great power should not be left in the hands of one man, because if it is left to one man it is liable to abuse, not by any intention on the part of the individual, not by any political influence upon the Governor alone, but on account of the difficulty connected with the exercise of a wise discretion, it should be exercised by more than one 372 DEBATES AND PROCEEDINGS Monday, man. Tbispardoningpower is one of considerable importance. It baa a great bearing upon the amount of crime, and should t>e exercised with a great deal of caution. Therefore, it seems to me that a cummiseion of some kind, that would deal with this matter, probably two or three per- sons passing judgment upon it, they would be more apt to treat the matter of a pardon, when it came before them, with justice and impartiality than one man alone could possibly do. I say I think the proposed amend- ment is a good one, and I shall faTor it. Mb. STRONO. Mr. Chairman : I do not see, sir, why the members of this Convention should be so fearful of the Grand Jury, and yet be BO particular about the pardoning power. I hope that amendment will not pass, because I think that the gentlemen of this Convention may at some future time stand in need of executive clemency. SPIKCB or MS. BALI. Mb. hale. Mr. Chairman : I was not aware, until a few minutes ago, that the committee had decided to strike out the Chief Justice. I am informed that that was the action of the committee, on Saturday last, [it would seem^ therefoce, that we are left the alternative of leaving the pardoning power to the Governor alone, as in the present Constitu- tion ; or to confer that power upon him in conjunction with the Chief Justice and Attorney-General; or, which is a very improbable thing, that the committee will elect to constitute a Pardoning Board, of other and new officers, created for that purpose. Mr. Chairman, I take it for granted that there is a general dis|>n>ition, or, rather, a general indis- position, on the part of the committee, to create new offices beyond the reasonable necessities of the government. I take it, therefore, that the committee will decide either to lodge the pardoning power in the hands of the Governor alone, or confer it upon him togetlier with the Chief Justice and Attorney-General. Now, we have ban a very considerable experienco under the present Constitution, and I doubt not there are many members on this floor who, in one wa^ or another, have come to have some personal knowledge of the difficulties surrounding the exercise of this power by the Gkivernor solely. Sometimes there have been public complainta of the absolutely improper exercise of this power. I am not here to say that these oomplamts are well or ill- founded. I speak only of the fact that these complaints have been made. That would lead one to the conclusion that the complaints have been well founded. Now, sir, this power of pardon is one of the highest prerogatives ever conferred upon the officers of government. One is convicted of crime — and presumably he has been properly convicted — he has been arrested, charged with a crime, has had his day in Court, has had the opportunity of defending in person and by counsel, and has not, by his own exer- tions, and the aid of friends, been able to secure an acquittal. Then he asks the Executive to interfere in his behalf. Therefore a great respon- sibility devolves upon the officers who are clothed with the power of pardon. Who will question the truth of the assertion that this power should be lodged in responsible hands in the interest of justice ana good government. Now, how shall we lodge this powerT . Where shall we lodge this power7 The amendment says with the Governor, Chief Jus- tice, and Attorney-General. It is to be noted in this connection that it creates no new officers, nor any additional expense. That it neither requires any additional salarjes, nor any increase in the salaries of those officers who are named as compoeing the Board. We are simply charg- ing three high officers of the government with this highest responsibility that can devolve upon anv person. It does seem to me, that it would be well disposed of, and well administered, if we leave this power in such hands as these. We might give our consent that the Governor should be one. As to myself, therefore, there can be no doubt. Can any rational objection be urged to allowing the Chief Justice to act in this matter — a man who is selected for that high position on accountof his high per- sonal qualifications, for his unimpeachable character, and for his judicial learning? Can you well place it in safer or more respoAible hands? I know it can be said on the other hand — as a projwsition it may have been said — that the duties of the Chief Justice would perhaps be so onerous, as Chief Justice, that this additional responsibility should not be cast upon him. There is some force in the objection, but the responsi- bility will be divided. If the svstem proposed here — if I understand correctly the proposition of the Judiciary Committee, the duties of the Chief Justice at least will be somewhat different — perhaps somewhat less in the amount of labor than hitherto have devolved, and now devolve, upon the Chief Justice. If the general plan should be adopted of two sections of the Supreme Court, the two sections might transact business without his presence. His presence would be required only when the Court would be sitting together. I am, of courae, discussing it from the standpoint of the committee's report. Now, it seems to me, in view of the grave responsibility which will devolve upon whoever exercises this power of pardon, that' it cannot be more safely and more judiciously invested than in the hands of the Chief Justice, and as some have remarked, with the Attorney-General, who is the law officer of the government, and peculiarly qualified by bis knowledge of cases coming before this Board to give valuable advice and aid. Now I would suggest also to the gentlemen of the Convention that this is one of those grave responsibilities where it is thought proper to the ends of justice, and partly as a matter of justice to the officers who discharge their duty, to divide it in some manner. Why, sir, I have had occasion to talk with more than one of the Governors of this State in times past, who assured me that they have often found them- selves driven clear to the verge of insanity by importunities and entreaties of persons and their friends asking for pardons. I can well conceive how this may be true. Any one of us placed In such a position, charged with this sole duty, would not only And himself greatly bur- dens, but greatly affected by the importunities of these parties. I would suggest, in view of these oonaiderations, that we take the Gov- ernor, the Executive of the State, selected by all the eledore of the State; the Chief Jystice of the Supreme Court, selected for his probity of character, for his learning, for his soundness of judgment, for hii wi^om ; and the Attorney-General, selected as the representative of the people to see that justice is done. When these three concur, or a majority of them, there will be no reasonable ground for doubting Uut a murdon will ever be granted improperly, or that it will ever be refused when it is just. In view of the circumstances I am strongly inclined to vote for this amendment. KKMARKS or UK. CAPLIS. Ma. CAPLES. Mr. Chairman : I do not rise for the purpose of mak- ing a speech. [Laughter.] But I do rise to protest eamestJy and explldtlr against this interminable speech-making.because we areall womout 1, sir, with every other gentleman on this floor, am prepared to vote,snd we were prepared to vote before this discussion commenced, and I hope I ma^ be permitted to suggest to the gentlemen who are so anxious totir their eloquence, that thev will have a better opportunity to air their eloquence on the live subj'ects of the day, and I therefore depiand « vote on this question. [Applause.] BKUABKS OP MB. BABBODB. Mb. BARBOUR. Mr. Chairman : I am somewhat terrified. I pro- pose to state that I shall support the amendment, and I shall do w for these reasons. In the first place, because I believe the pardoning power is too great a power to be safely vested in one man. In the second place, because 1 believe a large majority of the electors of this State demand that the power shall be tt^en out of the hands of the Got- ernor. In the third place, because I myself was elected upon a platfonn which distinctly calls for it. Read the tenth resolution of the platform of the Workingmen'a party. The pardoning power now vested in the Governor shall be aboIishM." Nearly one half of the people voted upon that projxMltlon in voting for the candidates of the Worklnpnen'i party, and there is no reason to presume that the other half were opposed to it. Tberefor« I maintain that the majority of the people of this State demand the abolition of it. How it is to be abolished wu not specified. I believe the amendment of the gentleman from Ala- meda is as good a one as can be devised. ' Thx CHAIRMAN. The question Is on the amendment Division being called, the committee divided, and the amendment was rejected by a vote of fifty ayes to fifly-five noes. Mb. LARUK. Mr. Chairman: I move the committee now rise. Mb. terry. I move that the section be adopted as amended. The chairman. The question is Mb. McCALLUM. Mr. Chairman, Mr. Chairman: I propose, sir, to submit a proposition from the Indiana Constitution, and ask a vote of the Committee of the Whole upo.n it. It reads as follows: " The General Assembly may, by law," Mb. TERRY. Mr. Chairman: I rise to a point of order. I« it in order to offer an amendment when a vote is being taken? Thi chairman. The Chair hadn't put the vote yet. Mb. McCALLUM. I have a right to call a division. Mb. terry. Has the gentlemen a right' to propose an amendment while a vote is being taken? The CHAIRMAN. Gentlemen have a right to discuss a propositioii until the result Is announced by the Chair. Mb. McCALLUM. I offer an amendment, and ask leave to read it here, and then I will send it up : "Insert between the words 'reprieve,' in line two, and the worJ 'shall' these words: 'The Legislature shall have jiower by law to con- stitute a Council, to be composed of the Governor and other State offiwn. a miyority of whom, the Governor being one, shall,' " etc Thb CIIAIRMAN. The amendment is out of order, because the word " shall " has been stricken out by previous action of the committee. Mb. McCALLUM. The last two words, "shall hav^" are there. The Chair is in error. Thb chairman. The Chair rules that the whole line was stricken out. The question is on the adoption of the section as amended. Adopted. Mb. LARUE. Mr. Chairman : I move that the committee rise, report back that we have had under consideration the report of the Committee on Pardoning Power, amended the same, and recommend its adoption as amended. O&rrioQ IN CONVENTION. Thb PRESIDENT. Gentlemen : The Committee of the Whole h»re instructed me to report to the Convention that they have bad under consideration the re|x)rt of the Committee on Pardoning Power, h«ye amended the same, and recommend Its adoption as amended. Those in favor of the adoption of the amendment say aye Mb. van dyke. That is upon the amendment, I suppose. Mr. white. I move a substitute for the whole section. Mr. EVEY. I move that the report lie on the table and be printed, as adopted by the Committee of the Whole. Carried. KXECUTIVB DXPABTMENT. Mb. freeman. Mr. Chairman: I move that the Convention now resolve itself into Committee of the Whole, the President in the char, for the purpose of considering the Article on Executive Department Carried. IN COMMITTEE OF THE WHOLE. The CHAIRMAN Section nineteen and amendments were under consideration. The Secretary will read the section. The SECRETARY read : Sio. 19. The Governor, Lieutenant-Governor, Secretary of State, Con- Digitized 1 Nov. 11, 1878. OF THE CONSTITUTIONAL CONVENTION. 373 troller, Treiwurer, Attomey-Geneml, and Surveyor-GenenJ, shall each, at stated times during their continuance in o(6cs, receive for their services a compensation which shall not be increased or diminished during the term for which they shall have been elected, which compensation is hereby fixed for the following officers for the two terms next ensuing the adoption of this Constitution, as follows : Gov- ernor, six thousand dollars per annum ; Lieutenant-Governor, the same per diem as may be provided by law for the Spealcer of the Assembly; the Secretary of 'State, Controller, and Treasurer, three thousand dollars each per annum, said compensation to be in full for all services by them respectively rendered in any official capacity or employment whatsoever during their respective terms of office; provided, hmoever, that the Legis- lature, after the expiration of the terms hereinbefore mentioned, may by law diminish the compensation of any or all of said officers, but in no caae shall have the power to increase the same above the sums hereby fixed by this Constitution. The Legislature shall by law fix the com- pensation of the Attorney-General and the Surveyor-General, and may m its discretion, abolish the office of Surveyor-General; and none of the officers hereinljefore named shall receive for their own use any fees or perquisites for the performance of an^ official duty. Thk CH.\IRMAN. The question is on the amendment, or substitute, offered by the gentleman from Sacramento, Mr. McFarland. Thk secretary read the substitute : Skc. 19. The Governor, Lieutenant-Governor, Secretary of State, Controller, Treasurer, Attorney-General, and Surveyor-General, shall each, at stated times during their continuance in office, receive for their services a compensation which shall not be increased or diminished during the term for which they shall have been elected ; but neither of these officers shall receive, for his own use, any fees for the performance of his official duties, and said compensation shall be in full for all services rendered in all official capacities during their respective terms of office. RIUAKKS OP KB. MCFikRLAND. Mr. McFARLAND. Mr. Chairman : I do not think the committee understand the purport of that amendment. It is simply to leave the compensation of State officers to the Legislature. That is the whole o^ect of it. In the report of the committee the compensation of State officers is fixed at a stated amount. The amendment now before the committee strikes out that part, and leaves the Legislature to determine the salaries of those officers. It may vary from time to time, and I think this is a matter that can be safely left to the Legislature. It ought not to be fixed arbitrarily in the Constitution. Mb. WHITE. I think it should be fixed permanently in the Consti- tution, and I am verv anxious to get in an amendment of that kind. I don't know exactly liow to do it. I have an amendment, but I expect it is out of order now. Mb. LARKIN. I am in favor of fixing the maximum of all salaries, and leave it to the Legislature to reduce them still lower. I think that it the general intention of the Convention. Mb. hale. I would inquire of the gentleman from Sacramento, if his amendment prevails, how does he propose to fix the compensation of those officers under the first term after the adoption of this Con- stitution T Mb. McFAKLAND. I will answer the gentleman. I do not want to include everything in one proposition, but I want the Convention to vote on the question whether this matter shall be left to the Legislature. If it is adopted I have another amendment providing for that matter. There will be a diflerenco of opinion, of course. I thought that it was better for the committee to vote upon one proposition at a time. If they desire to fix salaries in the Constitution they will vote this down. RRHABK8 or MR. MCCALLUH. Mb. McCALLUM. I submit to the gentleman that this is not correct as a legal proposition. The present salaries would remain without any provision on the subject. This same question was up before the legisla- tive committee with respect to the per diem of members of the Legis- lature, and I believe there was no difference of opinion whatever; I think every gentleman will say I am correct. Being not inconsistent with the general law it would continue. The proposition was this, sub- stantially, to reduce the salary of Governor two tnousand two hundred dollars, that is, his present salary is seven thousand dollars, not eight thousand, as stated the other day. But he gets a salary as member of the Board of State Prison Directors and as a member of the Board of Examiners, which makes his whole salary aggregate nine thousand two hundred dollars. Bat in the provisions of the proposition, as now pre- sented, his services in any other official position is struck out. In that view I believe we hod better not go into the business of the Ijegislature too extensivelv, perhaps, but vote on the amendment. Tns CHAIRMAN'. The question is on the amendment of the gentle- man from Sacramento. The amendment was rejected by a standing vote of eleven ayes. Mr. 'WHITE. I now offer my amendment. Th« SECRETARY read : "Strike out all after the word 'follows' in the seventh line and insert as follows: 'Governor, five thousand dollars per annum; Lieutenant Governor, the same per diem as provided by law for the Speaker of the Assembly; Secretary of State, Controller, Attorney-General, and Sur- veyor-General, shall each receive three thousand dollars a year; and the Treasurer, four thousand dollars; prooirfed, however, that the Legisla- ture, after the expiration of the terms of the present incumbents, may by law diminish the salaries of any or all of such officers; but in no caae shall have power to increase the same above the sums hereby fixed. The Legislature may, at apy time, in its discretion, abolish the office of GontrolTer and Surveyor-General; and none of the officers hereinbefore named shall receive kir their own use any fees or perquisites for the per- formance of any official duty. No deputy or clerK employed by a State officer shall receive a higher compensation than one thousand eight hundred dollars per annum. RKMARKS OF HR. WHITE. Me. white. Mr. Chairman : I desire to say that in most of the new Constitutions I find the compensation of State officers fixed, and it has become evident that it is necessary to guard against the constant increase of salaries. It is not so much what we save by this provision directly, but we want to set an example, and begin by paying just exactly what is right. You will see that this does not allow extravagant salaries to these clerks and deputies. This Convention should step in and say that no clerk should receive a higher compensation than one thousand eight hundred dollars per annum. Let us do what is right in the matter. I trust, sir, tliat the amendment will pass. SPEBOa OF HR. BROWN. Mr. brown. Mr. Chairman: It seems to me that there should be some degree of economy exercised. Economy is right when we con- sider it properly, I am under the impression that tnere is no member of this body who is not in favor of economy in a certain sense. But it does appear to me that when we come to an office so high as that of Executive of the State of California, to begin and cut down the salary of his office, it seems to me that we should go very carefully, and take into consideration some other matters. I have not heard very much said about high salaries; in fact there has been very little said on that subject among the people. I am under the impression that the people of this great State wish their Governor, and all their officers, to be prop- erly and fully paid. The principal thing that the people of ibis State are anxious about, is that they may know where every dollar goes that is paid out. That there shall be no purloining — in common parlance, no stealing. That is the ^rand point that the people are aiming at. And I do not think it is the wish of the people that the salaries of these offi- cers shall be reduced down in any such way. Now, the Governor of a great State like California is in a position socially to be compelled to spend an amount of money that men in other positions do not have to spend. In every sense of the word, it seems to be proper that we shall pay sufficient to keep up the position as it should be kept up. Few honest Governors — perhaps none — have ever made anything out of the office. Then why attack them in this manner? I am under the impression that the figure is entirely ^ low. I shall consequently object to the amendment. I think it is contrary to the sentiments of a large majority of the people of this State. I am in for reform in every- thing that deserves it, but I do not think this does, therefore I shall vote against the amendment. The CHAIRMAN . The question is on the amendment. Division being called, the committee divided, and the amendment was rejected ; ayes, 41 ; noes, 61. The CHAIRMAN. The next question is on the amendment of the gentleman from Santa Clara, Mr. Smith, to strike out "six thousand dollars" and insert "five thousand dollars," as the Governor's salary. The amendipent was lost on a division vote ; ayes, 39 ; noes, 60. The CHAIRMAN. Are there any further amendments? Mb. SMITH, of Fourth District. I move that the word "Treasurer" be stricken from the list of three thousand dollar salaries. The CHAIRMAN. Send it up in writing. The SECRETARY read: Reaolved, That the words " and Treasurer," be stricken out, and the word " and " be inserted before the word " Controller," in the same line. The CHAIRMAN. . The question is on that amendment Mb. SMITH. Mr. Chairman: I undertake to say that the Treasurer should receive more than three thousand dollars per year. It is cer- tainly not right to cut the salary of that office down to three thousand dollars a year. It is absurd. The laborious duties connected with that office, as well as the great responsibilities, certainly require at least five thousand dollars a year. If the clerk will return me my amendment I will change it so that the Legislature may by law fix the compensation of the Surveyor-General and Treasurer. The SECRETARY read the amendment as modified : " Strike out the words ' and Treasurer,' and insert ' and ' in the same line, and insert 'and Treasurer' in the seventeenth line." Mb. west. I ask for a division of the question. There are two questions involved — to strike out and to insert. If the question prevails, it will leave the compensation of the Treasurer to be fixed by the Legis- lature. I think it is the opinion of this Convention that the compensa- tion of that officer should be fixed in the Constitution. If it is the opinion that he should receive a small saltiry , why , say so, and not make an exception by leaving it to the Legislature. Mb. GRACE. Mr. Cliairman : I am not certain what this proposition is, but if it is to strike out so as to increase the salary of the Controller and Treasurer of this State, I am opposed to it, because three thousand dollars a year would be eight dollars and twenty-one cents for every day in the year, and I think that is enough. We can get the best mechanics for four dollars a day, and they can't always get that. Now, if a man doing nothing but counting out money, can get eight dollars and twen- ty-one cents a day, I think it is enough, so I am opposed to the amend- ment. The CHAIRMAN. A division of the question is called for. The first question is on the motion to strike out. Mb. smith, of Fourth District. Mr. Chairman: It seems that the amendment is not understood. The amendment intends that the Treas- urer shall not be included among the officers who receive a salanr of three thousand dol lars per annum ; that it shall be left among the officers whose salaries are to be fixed by the Legislature. Mb. grace. Is the object to increase, or reduce the salary? Mb. SMJTH. To increase it. Mb. grace. \ think he ^ts too much now, Digitized by' Google 374 DEBATES AND PROCEEDINGS TCESDAY, Tbk chairman. The question is on the motion to strike oat Lost. Mb. BARBOUR. I offer an amendment. Tbk secretary read: "In line nine, after the word 'Assembly,' the words, 'to be allowed only during tlie session of the Legislature.'" Tri! chairman. The question is on the amendment. Mb. BARBOUR. Mr. Chairman : I offer that amendment to make the section conform to the probable intention of the committee. As it reads now, the construction might be put upon it that the Lieutenant- Governor was to draw a salary during the whole of his term; in other words, that his salary will amount to three thousand six hundred and fifty dollars a year. I suppose the intention of the committee was that he should be paid only during the session of the Legislature, for it is well known that during the balance of the year his office would be a mere sinecure. The amendment was adopted. Mb. McFARLAND. Mr. Chairman : I oflTer an amendment to the section. The SECRETARY read: " Strike out ' three ' in line nine and insert ' four,' so as to read four thousand dollars instead of three thousand dollars." Thb CHAIRMAN. The question is on that amendment BPIKa or MB. HCPABLAXD. Mr. McFARLAND. Mr. Chairman : That will make the salaries of all the State officers four thousand dollars a year. I have no idea that it will carry, but I want a chance myself to vote for it There is a great deal of talk on this floor about what the people demand. They have sent their representatives to these halls of legislation year after year, fur thirty ye&n, and never made any demand or expressed any opinion through their representatives to reduce the salaries of these State officers. I say no man has any right to say here that the people demand this reduction ; and if they did demand it I would not vote for it knowing it to be unreasonable and wrong. We are sent here to do what is right. Now I see gentlemen around me here who belong to one or the other of the great political parties of the country, and who expect to find some gentleman who will be their standard bearer — and that is the only way that men are elected to office. They are elevated to office through the machinery of political parties, .and each of these parties, representing half of the people, expect to select men of high character in the State, men of ability, and when they select them, they expect them to perform the ordinary duties of candidates in the first place. How could you ask any reputable citizen of this State to take an office at such a salary. If he is rich, and cares not for the expense, he may do it, but take any gentleman engaged in business, ar$ you going to ask him to take a nomination from one of your political parties, and leave his business, and come to Sacramento for four years, for three thousand dollars a year? What will he do it for? The honor of thething ? A man cannot sacrifice his business for honor. Men occupying responsible positions as these in private life get more than that without gomg away from their homes. I would like to know what farmer — not a rich farmer — who perhaps has got his farm all paid for— his plans all laid out, so that by strict attention to business he will be able to get out of debt; a nice lit- tle home, who, when called on by the people, would be willing to leave his home and his business and come to the Capitol for four years, for a salary of three thousand dollars a year. Can you expect a merchant, who is making an ordinary, decent living, to leave his business in Marysville or Shasta, or Los Angeles, and come here and serve for four years for three thousand dollars a yeai Do you expect a lawyer with a lucrative practice to do it; or a doctor with a good practice that will suffer hy his absence? I do not believe we should ask it; I do not believe it is right I say that according to the cost of living, four thou- sand dollars is little enough for a man to leave his business and come here. If you cut down these salaries you will simply have this state of things, that you cannot get the ability, you cannot ^t the kind of material that you want for these positions. Then you will becomjielled to select your State officers from one of two extreme classes — either from the very wealthy class — who can afford to leave their business and come here, or else take a man without any business, a mere carpet-bagger through the country. I ask you if you think that is a fair price for a man who is qualified to fill these positions, and who is responsible? I do not believe it is. I think four thousand dollars is little enough. BXHABKS OF MB. LIKOOW. Mb. LINDOW. Mr. Chairman : I am sorry to make any back remark, because he states that'the people don't demand it The cry has been for the la-st eight years that salaries was too much, because taxes was so high. I think we rauat lower the salaries. They always leave up the big salaries for the big officials. [Laughter.] When a man is getting five or six dollars a day he don't mind high taxes. But when a man is getting only one dollar a day, I think we better look at these big salaries and cut them down according to this business. I think when one man gets six dollars a day and one man gets one dollar a day, we better lower these big salaries. The people, I am satisfied, want it aPKKCH or MB. WIST. Mb. WEST. Mr. Chairman : I have not occupied the time of this Convention to any great extent, nor do I intend to do so. But I cannot permit the present occasion to pass without bearing testimony to the fact that the people have demanded a reduction of salaries of their public officers; that one of the burdens of which the people have com- plained, has been the exorbitant salaries paid to public officials. It is true that about the time thai nominating conventions meet, and politi- cal platforms are to be made, the ears of these statesmen are open to the cries of the people, and they incorporate into their platforms a plank in favor of a reduction of salaries paid to public officers. Now, when the time has come that these promises are to be kept, and these pledges car- ried out, the testimony should be given to the people that the men who pledged themselves didn't mean it ; that it was simply an electioDeerin; dodge in order to get into office. 'The times demand the change. In the history of California we have come down to a level with the other States of this Union. Our trade, our commerce, our business, our indus- tries, and all our material wealth rests upon the some basis with those of the other States east of the Rocky Mountains; and why should there be such a distinction between the money paid for like services here and there ? I cannot see any reason for it. . I cannot see any justice in it, nor any demand for it at the present time, when we all know that the people have called this Convention together as much for that as for any other one object — to reduce the salaries of public officers. I deny the truth of the proposition that you cannot get good men to fill these offices. Our country is full of men capable of performing the duties of these offices, who will gladly accept the reduction. The time will not come in the history of this commonwealth, even if you reduce these ssls- ries below the amount fixed by the report of the committee, when nod and efficient men cannot be obtained to perform these duties and fill these offices with as much ability as has ever been shown in the past BPKBCB or HB. BABTOK. Mb. BARTON. Mr. Chairman: I do not know, neither do I care, what the sentiment of this Convention may be with regard to the reduc- tion of salaries of State officers. But for me, I come here under a pledge of reform, reform in everything within the power of this Convention, that is in my power where my voice can be heard. It has been stated, Mr. Chairman, and gentlemen of the Convention, that this it not demanded, but I want you to understand that the voice of the people has gone up from the north to the south, from the east to the west, in this State, demanding from your hands retrenchment and reform. And I demand that the voice of the people shall be heard through their rep- resentatives here when they cry aloud for relief. Go with me to the poor struggling men and women in this State, who ore trying to drive the wolf from the door, and ask them if they do not demand at your hands retrenchment and reform? That voice is coming up from ereiy part of the State, and from all conditions of men, and they demand retrenchment and reform at your hands, not only in regard to Slate officers, in county and municipal offices; they demand reform in eveiy shape possible, in every department of the public service. Now, when the Governor of the great State of Iowa can perform the duties of his office for one third less per annum, I would like to ask you if it is not high time that the people of California should oome down from that high and exalted position of false pride, and false ideas, and false prin- ciples? Thirty years ago I came to this place, and then I could eet mr five and ten, and even fifteen, dollars a day for the labor of my hands. But all that is changed now, and why should we keep up these exalted ideas and customs that were the outgrowth of that condition of business! I repeat again, that the people demand retrenchment and reform at our hands. And when you go back and tell your people that I am not act- ing in their interest, that I am a demagogue, I say they will thrust it back into your teetb, and tell you it is false. [Applause.] Tbb CHAIRMAN. The question is on the amendment of the gentle- man from Sacramento, to strike out " three thousand dollars," and insert " four thousand dollars." Lost. Mb, WICRES. Mr. Chairman: I have on amendment Thb SECRETARY r«ad : " Strike out all after the word 'assembly' as far as the word 'State' in the ninth line, aud insert: 'The State Treasurer shall receive fonr thousand dollars per annum, and the Secretary of State and Controller of State shall e«ch receive three thousand dollars per annum." Tbi CHAIRMAN. The question is on this amendment Rejected. Mb. BARBOUR. Mr. Chairman : I wish to offer an amendment to the section. Thb SECRETARY read : "Add in line sixteen, the following: 'No salary shall be authorized by law for clerical services in any office provided for in this article exoeeding one thousand eight hundred dollars per annum.' " Thb CHAIRMAN. The question is on the amendment SPEBCH or MB. BABBOUB. Mb. BARBOUR. Mr. Chairman : As bos been well observed by the speakers here, one of the great curses of the administration of public affairs in this country is the high salaries of public officers and the sinecures that exist Men in the Slate of California, devoting from six hours a day down to nothing at all to the public serviee,eooling Uieir heels in public office, are receiving from one third to one half more pay than is paid for like scrviee in private employment I know of no better criterion or test by which to fix the salaries of public officers than the same pay allowed to men of equaV capacity, equal education, and equal ability, as found in the private stations of life. And I assert, witiont fear of successful contradiction, that in the 8tat« of California, educated men, competent men to conduct the affairs of office, arti not paid on an average one thousand dollars a year. I know, Mr. Chairman, that there are men in this State, of superior ability, who may make fifty thousand dollars a year, or a hundred thousand dollars a year, by speculation, but not by legitimate pursuits. I know of men within my own personal knowle({ge, who are incapable of making an hono^decent living at legitimate business, and yet they come to San Frandsco snd become millionaires. But these are not to be taken as a criterion by which to fix the salaries of public officers. Not at all, sir. There is no reason that can be given by any gentleman on this floor why more should be paid public officers than is paid in the private afnirs o' life. And in the matter of clerical service to which my amendnient is directed, I maintain that I have proposed tbe-l»ighest figurathat is paid jy Ljoogk ..5««»-t- Nov. 12, 1878. OF THE CONSTITUTIONAL CONVENTION. 375 for clerical services in the State of ralifomia. That, too, in instances where the services rendered ure as laborious, and where it requires as much capacity as is required for a cleric in the office of the Governor, or any of the other State offices. Stock-broker's clerks, and all other clerks, do not average, as I am informed, more than one hundred dollars per month compensation. Gentlemen need not be afraid that there will be no one to fill these offices if the pay is reduced. Thomas Jefierson well said that few die and none resign, and I have never seen in all my experience, the salarv reduced so low that capable men could not t>e found to fill them. The people are crying out against these abuses, and the cry comes up in such a form that it is no longer the policy of true statesmanship to leave it to the regulation of the Legislature, especiallv where they themselves'bre directly interested. I suppose gentlemen afl know how this country was convulsed by the huge scale of salaries fixed by the Congress of the United States, and those men by a simple vote, dug their political graves forever, and buried themselves beyond the reach of the resurrecting hand forever and forever. And so it is that now, in the Constitution, is the time and place to fix these salaries, and if it becomes apparent to the mind of the people that the salaries are so low that good men cannot be obtained to fill these various positions, there will be no difficulty in procuring an amendment to the Constitution. I say that we should remove it Beyond the power of the Legislature. I am in favor of making a limit in the Constitution beyond wliich the L^slature cannot go, while they may reduce salaries stiU lower if they find it necessary. Mb. liARKlH. I would like to have the amendment read t^in. Thk SECRETARY read: "Amend, section nineteen, in line sixteen, by adding, after the word 'Constitution,' the words: 'No salary shall be authorized by law for clerical services in any office provided for in this article exceeding one thoQsand eight hundred dollars per annum.'" Thk CHAHtMAN. The question is on the amendmeut. Ms. McCONKELL. Mr. Chairman: I move an amendment to the amendment. Thi SECRETARY read : " Strike out ' one thousand eight hundred dollars,' and insert, ' one thousand six hundred dollars.'" Mr. BARBOUR. I accept the amendment. Tbk CHAIRMAIf. The question is on the amendment as amended. Division being called, the committee divided, and the amendment was adopted — ayes, SI ; noes, 44. Mb. LARKIN. Mr. Chairman: I move an amendment. Thk secretary read: " Add, after the word ' Controller,' in line nine, the words : ' Attorney- General and Surveyor-General;' and strike out, in line seventeen, ' Attomey^General and Surveyor-General.' " Tbk CHAIRMAK. The question is on the amendment. Me. LARKIN. The object is to fix the salaries the same m the other officers, and not leave it to the Legislature. Mr. HUESTIS. I would suegest to the mover of the amendment that, in order to make it read right, ne will have to strike out all of the latter part, commencing with the word " Legislature." Mb. LARKIN. I accept the amendment. No, hold on ; let me correct my amendment. Alter the word " Legislature," strike out the words: "shall by law fix the compensation of the Attorney-General and the Surveyor-General ;" and strike out between " Legislature " and " may." Me. BEERSTECHER. I would like to inquire what is done with the Attorney-General. Mr. LARKIN. He is added to the list of three thousand dollar a year officers, in line nine. Tbk CHAIRMAN. The question is on the amendment. Adopted. Mb. WICKES. I think there is a clause here which reads a little curious : " The Legislature shall by law fix," etc. I think it should read: "The Legislature shall fix, by law." Mr. HERRINGTON. I would like to offer an amendment, to correct the phraseology of the section. The condition in which it now is, places it in a very awkward attitude. It now reads: "The Secretary of Sti^te, Controller, Attorney-General, each three thousand dollars per annum ; such compensation to be in full for all services by them respectively rendered," etc. A very plausible construction would limit those last words to the offices last above mentioned. I propose the following amendment. The SECRETARY read: "Strike out all after the word 'Assembly,' in the ninth line, down to and including the word 'office,' in line twelve, and insert: 'Secretary of State and Controller, shall each receive three thousand dollars; and the Treasurer, four thousand dollars, per annum. Said compensation shall be in full for all services by the aforesaid officers, respectively ren- dered by them in any official capacity or employment.' " Me. van dyke. I understood the motion to insert Attorney-Gen- eral and Surveyor-General prevailed. Mr. HERRINGTON. I accept the amendment. The chairman. That has all been passed. Mr. white. The only motion, then, is to raise the Treasurer to four thousand dollars. Mb. FREUD. In looking over this section it has occurred to me that the committee has made an omission. It seems to me that the Superin- tendent of Public Instruction should be added to the list of ofi^ses in the Department of State. I move an amendment, that after the words "Secretary of State," shall be inserted the words "Superintendent of Public Instruction." Me. martin, of Alameda. That is already provided for. Tbk CHAIRMAN. The question is on the amendment proposed ky the gentleman from San Francisco, Mr. Freud. Mb. van DYKE. It seems to me that belongs to the article on education. That is the proper place to provide for that, and I suppose that is the reason for the omission. Mb. BLACKMER. The Committee on Education have formulated an article that will cover that. Thk chairman. The gentleman has a right to have his amend- ment put if he sees fit to do it. The question is on the amendment. Rejected. Thk chairman. The question is on the amendment offered by the gentleman from Santa Clara, Mr. Herrington. Rejected. Mr. BLACKMER. Mr. Chairman : I move that the committee now rise, report back the a(ticle on Executive Department, and recommend its adoption as amended. Carried. IN CONVENTION. The PRESIDENT. Gentlemen, the Committee of the Whole have instructed me to report to the Convention that they have Jiad under consideration the report of the Committee on Executive Department, have amended the same, and recommend its adoption as amended. What is the pleasure of the Convention? Mb. hale. I move that it lie on the table and be printed. So ordered. ADJOCEHMENT. Me. MARTIN, of Santa Cruz. I move we now adjourn. The motion prevailed by a standing vote of ninety-three ayes, and at four o'clock p. u. the Convention stood adjourned. FORTY-SIXTH DAY. Saceahento, Tuesday, November 12th, 1878. The Convention met in regular session at ten o'clock a. h.. President Hoge in the chair. The roll was called, and members found in attendance as follows: FEESIitT. Andrews, Harrison, ' Porter, Ayers, " Harvey, Prouty, Barbour, Heiskell, PuUiam, Barnes, Herold, Reddy, Barry, Herrington, Reed, Barton, Hilbom, Reynolds, Beerstecher, Hitchcock, Rhodes, Belcher, Holmes, Ringgold, Bell, Howard, Bolfe, BlacKmer, Huestis, Schell, Boggs, Hughey, Schomp, Boucher, Hunter, Shafter, Brown, . Inman, Shoemaker, Burt, Johnson, Shurtleff, Caples, Jones, Smith, of Santa Clara, Chapman, Joyce, Smith, of 4th District, Charles, Kelley, Smith, of San Francisco, Condon, Kej^es, Soule, Cowden, Kleine, _ Stedman, ' Cross, Laine, ' Steele, Crouch, Larkin, • Stevenson, . Davis, ,- IjOrue, Stuart, Dean, Lavigne, Sweasey, Dowling, Lindow, Swenson, Dudley, ofSan Joaquin, Mansfield, Swing, Dudley, of Solano, Martin, of Alameda, Terry, Dunlap, Martin, of Santa Cruz, Thompson, Eagon, McCallum, Tinnin, Edgerton, McComas, Townsend, Estee, McConnell, Turner, Estey, McCoy, Tuttle, Evey, McFarland, Vacquerel, Farrell, McNutt, Van Dyke, Fawcett, Miller, Van Voorhies, Filcher, Mills, Walker, of Tuolumne, Finney, Moffat, Waters, Freeman, Moreland, Webster, Freud, Morse, ' Weller, Garvey, Murphy, Wellin, Glascock, Nason, West, Gorman, Nelson, Wickes, Grace, Neuuaber, White, Graves, Noel, Wilson, of Tehama, Gregg, O'Donnell, Wilson, of 1st District, Hager, Ohleyer, Winans, Hale, O'Sullivan, Wyatt, Hall, Overton, Mr. President. Berry, Biggs, Campbell, Casserly, ABSENT. Doyle, Kenny, Lampson, Lewis, Strong, Tully, Walker, of Marin. LEAVE or absence. Leave of absence for one day was granted Messrs. Doyle, Strong, Sweasey, and Swenson. Indefinite leave of absence was granted Mr. Lewis. digitized by Google 376 DEBATES AND PROCEEDINGS Tuesday, TBI JOCRKAL. Mb. HUESTIS. I move that the reading of the Journal be dispensed irith, and the same approved. Carried. FETITIONS. Mb. shoemaker presented the following protest, signed by several hundred citizens of Kevada County, against taxing the capital stock of corporations: To the honombla tba Pr««ld*ot and memben of the OoiutltiiUoDal CoaTanUon of tJio State of Caliromla: Wbbkeas, PropoaitloDB hava bean oflerad in yonr honombla body, to be Ingrafted in the new organic law, making it mandator; upon tba Leefilature to tax the atock of incorporationa organized under the lawa of the btate ; ana whereaa, Incorporationa so organized are mainly for the purpoae of op«ning and dareloping minca, which, aa a rule, have no certain or fixed value until made io by an expenditure of moneya derived by aaeeaamenta upon the atockboldera of auch incorporationn ; and whereaa, the development of mining property, and the encouragement of mining Industry ii largely dependent upon the cooperation of individuals aaaociated togettjer under the law governing Incorporationa: and whereaa, the taxing of the stock of incorpo- laUona of this character would have a tendency to discourage mining, and retard the growth of one of the Important intereats of the State ; and whereaa, the property created by the expenditure of money upon the development of mines is the only legitimate subject of taxation of such incorporations, the certificates of stock being but the evidence of uwnerahlp therein ; therefore your petitioners, ciUxens of Nevada Coanty, do hereby enter their eameet protest against the adoption of any clause in the Constitution whereby the stock of incorporations shall be taxed, as wrong in principle, and calculated to discourage mining and other legitimate puraufta, and to cripple the efforts of those who, by their asaociaUon in companies, wonld othar- wiae add to the matedal wealth of the State. Referred to Committee on Revenue and Taxation. Mb. SHAFTER presented the following petition, signed by a large number of citizens of California, asking a provision in the Constitution for female sufirage: To the Conatitutiona) Oonventton in Sacramento, California, asMmbled : The undersigned citlxens of Callfomta, rsapeetfully petition your honorable body to so amend the Constitution tliat no citizen of the State shall b« diafranchiaed on acoount of sex. Referred to the Committee on Right of Suffrage. Mr. smith, of Santa Clara, presented the following petition, signed by a number of citizens of California, asking the insertion of a section in the Constitution providing for a local option law: To the honorable, the Constitutional ConvenUon of the State of California : AVe, the nndenignod, reapactfully petition yoor honorable body to insert in the new Conatltution of this State, a clause similar to that now in fore* In the State of Texas, to wit; SiCTioH — . The Legialatura ahall, at its lirat session, enact a law whereby the qualified voters of any county, voting precinct, town, or city, by a m^ority s>ote, mm time to time, may determine whether the salo of intoxicating Uqnon ^all be prohibited within the preecribed Umita. Referred to the Committee on Legislative Department. Mr. BEERSTECHER presented the following protest againstf the establishment of a State religion : To the Constitutional Convention at Sacramento: Whereaa, Propositions have been laid before your honorable body, for adoption, demanding: The recognition of the Christian God and Hlsso.called revelation aa the sonrce of all moral law, aa well as of all civil power ; the exemption of church prop- erty from taxation ; and the compulsory observance of the Christian Sabbath ; and whereaa, these, and all similar propoaltlons, are simply efforts to create and estab- lish a State religion, and as such are boatlle to the great principle of abeolute relig- ious liberty, aa guaranteed by the Constitution of the United States, and solemnly affirmed by the declaration of onr Government, In the eleventh article of the Treaty with Tripoli, of November fourth, seventeen hundred and nlnety^ix, George Wash- ington, President, that " the Government of tl)a United States is not in any sense founded on the Christian religion." 4fr Therefore, the San Francisco Turn Verein earnestly protests against all and every measure having a tendency to establish a State religion, and prays your honorable body to uphold in Its integrity the principles of religious liberty, the separation of Church and State, by rejecting all propoaltlons looking to an abridgment of the right of conscience. The San Francisco Turn Verein. AUGUST OTTO, President. BoSEKT C. Harh, Secretary. Referred to the Committee on Legislative Department. OOBPORATIONS OTRKB THAN UDHICirAI,. Mb. freeman. I see that on Friday we made the report of the Committee on Corporations other than Municipal, the special order for this morning, immediately after the reading of the Journal. I call for the special order. Thb president. The special order is the report of the Committee on Corporations other than Municipal. THI couuittie's dbaft. Following is the draft of the article on Corporations other than Municipal as presented by the committee: Article — . cobporatioms. Srction 1. Corporations may be formed under general laws, but shall not be created by special Act. All laws passed pursuant to this section may be altered from time to time, or repealed. Src. 2. Dues from corporations shall be secured by such individual liability of the corporators and other means as may be prescribed by law. Sf.c. 3. Each stockholder of a corporation, or joint stock association, shall be individually and personally liable for his proportion of all its debts and liabilities. Sbc. 4. The term corporations, as used in this article, shall be con- strued to include all asBociations and joint stock companies having any of the powers or privileges of corporations not possessed by individuals or partnerships; and all corporations shall have the right to sue, and shall be subject to be sued in all Courts, in like cases as natural persons. Bkc. 5. The Legislature shall have no power to pass any Act grant- ing any special charter for banking purposes; but corporations or asso- ciations may be formed for such purposes under general laws; but no corporation or association shall make, issue, or put in circulation, any bill, check, ticket, certificate, promissory note, or other paper, to circulate aa money in this State, except the lawful money of the United States. Sro. 6. All existing charters, grants, franchises, special or exclusive privileges, under which an actual and bona fide organization shall not nave taken places and business been commenced in good faith at the time of the adoption of this Constitution, shall thereafter have no validity. Sec. 7. The Legislature shall not extend any franchise or charter, or remit the forfeiture of any franchise or charter m the halls of legislation the corrupting influence of corporate power ; and it will establish mutual confidence between the producer and common carrier, which nothing else thus far devised has. It may be admitted that nearly all the great business enterprises of the country are in the hands of corporations. The insurance business is couducted by corporations, the banking business is conducted by corporations, the mining business is in the hands of corporations, the entire carrying trade of the country, not only of the Pacific Coast but of the whole nation, is in the hands of corpo- rations. Natural persons no longer control these great interests. The reasons, Mr. Chairman and gentlemen of the Convention, I attribute to three causes: First, the difficulty of one man controlling money sufficient to handle such great enterprises; second, the personal, finan- cial, and moral irresponsibility of corporations; and lastly, "corpo- rations never die." . * Mr. Chairman, in rising to defend the report made by your committee, sir, I am prepared to say for one, and I think in this respect I echo the voice of your committee, that your committee had no desire to imperil any of the great interests of the country. They had no personal or other motives to attack any of these interests. They know, and we all know, that the dollar owned by a corporation has as much right to be protected, to be defended b^ the or^nic law of this State, as the dollar owned by the humblest individual in the country. They know, and we all know, that the whole republic, and especially this coast, has been largely indebted for its prosperity to the railroad corporations of the country. We are aware, sir, and every member on this floor must be aware, that it would be impossible now to carry on the great commercial interests of the country but for railroads. We are aware, sir, every thoughtful man eveiTwhere must be aware, that at this time the wagon, the old stage coach, the old time-honored means of transportation of freight and pas- sengers, have passed away forever. That a new era has dawned upon the country, almost without our knowledge and in less than a generation. The capital invested in railroads has become enormous. We are aware, and every person, every thoughtful man must be aware, that no man can attempt to transport his freight to market, wherever his home may be, unless he lives upon some of the great streams of the country', except by railroads. No person visits his old home in the East, or thinks of visiting it, except Dy railroads. We acknowledge, then, sir, that rail- roads are great controlling carrying institutions, not onl^ of this country, but of the world. Why, sir, on looking at the statistics we find that while there is but two hundred million dollars engaged in the transpor- tation of all of the freight and passengers to foreign countries from the United States — in railroads alone there is more than five thousand mil- lion dollars ; that while the entire foreign traffic of the country last year was less than one thousand eight -hundred million dollars, yet the entire traffic of the United States by railroads far exceeds eighteen thousand million dollars. The whole thing is immense — it is grand in all its pro- portions. Nothing like it ever existed before in any country; nothing like it ever existed in any age; nothing like it, that we can anticipate, will ever exist again. The great services to the country of railroads in peace or war are beyond computation; they are widespread, reaching every interest, touching every individual. It being of such vast importance, the American people have come to think upon this question. The political and financial power of railroads in the United States are immense, and have become a grand imperium in imperio — a government within a gov- ernment, a power within a power, greater than the mightieat, grander and more colossal than an^ other financial institution hitherto known in the history of civilization. Sir, it was originally the belief of most of us — it was the belief of the fathers of the republic^thot monopolies in a free country could not and ought not to exist On that proposition there was a warfare made many years ago against the National Bank, and after a long and most earnest contest, that institution was destroyed. That was not the sole reason, but it was one of the grand moving pow- ers that controlled the public sentiment of the American people at that time, that monopolies must not be established in a free country. But, sir, monopolies do exist; monopolies will exist; in the very nature of things, they must exist Wo cannot help it. You may talk to the win& and tell them not to blow, and they will still blow. So it is with monopolies. We have got to take facts as they are. The people will not put fifty, or a hundred, or two hundred millions of dollars, or any other vast sum, in a great enterprise like a railroad institution or tha Digitized by iBstKution or tin Google 378 DEBATES AND PROCEEDINGS TCKDAY, building or establishing of railroads, unless it is virtually a monopoly. It is true that when it was found out that monopolies did exist to a certain extent, it was believed the evil could be remedied, if it be an evil — which I will reach hereafter — by competition, and thereby avoid the effect of the monopoly. But, sir, now I lay down the doctrine adopted by George Stephenson, and by many of the most eminent men of the country, that where combination is possible, competition is impos- sible ; that in truth and in fact there is no such thing as competition to- day in the great carrying trade of the country on land; that there cannot be. 1 am not prepared to say that it is best that it should be so. It is a great problem whether it is best to have two institutions to make you contribute to, or to have one. It is yet a very grave question whether two institutions, representing a large amount of capital — a larger amount, certainly, than one — can oppress the people a good deal more than one. For, let me say, Mr. Chairman and gentlemen of the Convention, that it is the highest intelligence of the country, the most careful minds, the most thoughtful intellects, that control the dollars of the country ,- that dollars are not going to be frittered away by useless competition when combination is possible— and combination is always possible in most of the transportation of freight and passengers by land. Now, sir, I wish very briefly to call your attention to some few estab- lished authorities upon these propositions: First— That competition with the railroad corporations is impossible, for I claim that we must educate ourselves up to the questions of the day so far as it is possible; that we have got to measure the facts as they come before us, and we have got to consider them as they are, not as some gentlemen may think eras I may think, they ought to be. I read, sir, from paie two hundred and four of Adams' book on " Railroads, their Origin and Prob- lems," in eighteen hundred and seventy-eight, writtan by Charles Francis Adams, Jr. He says, after following out a long argument made on that subject: " Carr}-lng now the argumeut directly into the case of railroads, and having recourse again to experience, we find that rail- road competition has oeen tried all over the world,and that everywhere, consciously or unconsciously, but with one consent, it is slowly but surely being abandoned. In its place the principle of responsible, reg- ulated monopoly is asserting itself." And 1 maintain that to-day that is the live doctrine, that " responsible and regulated monopoly must assert itself." That it is impossible for such vast amounta of money so invested not to be a monopoly, and that it is impossible to make them compete with each other, even if there are two roads running to a given point; and hence, that we must recognize the fact that responsible and regulated monopolies must assert themselves. Now, sir, I will call your attention, right on that point; to a well known authority. I read from a recent address made by Simon Stearn, before ameetingof the busineaa men of New York, at Steinway Hall, April nineteenth, eighteen hun- dred and seventy -eight, printed hy order of the Chamber of Commerce of New York. He says on page eighteen : "Effectual competition by sea does not exist; that competition by river and canal exista only to a limited and partial extent, and that committees and Commissions carefully chosen nave, for the last thirty years, clung to one form of competition after another; that it has, nev- ertheless, become more and more evident that competition must fail to do for the railway what it does for ordinary trade, ana that means have yet to be devised by which competition can be permanently maintained." Mr. Stearn is a publicist of well known ability, invited by the mer- chants and the ablest men of the State of New York to address them in Steinway Hall, on these great questions, and he undertook to teach the people as to the marked advancement made in these great institu- tions in order to show to them that the old idea that monopolies did not exist and that they could not exist, or that competition was a remedy, was untrue. And I think hesuoceeded in the most signal degree. Now, sir, I find, in Poor's Manual of Railroads for eighteen hundred and seventy-eight, page one — I read from page one to tour, Roman paging: "The statistics up to the beginning of eighteen hundred and seventy- eight showed that there were invested in the United States in railroads four thousand four hundred and sixty-eight million five hundred and ninety-one thousand nine hundred and thirty-five dollars; that th»gross earnings up to that time was four hundred and ninety-seven milTious two hundred and fifty-seven thousand nine hundred and fifty -nine dol- lars. Since then it has increased very largely ; that there was seventy- three thousand miles of railroad in the United States, while now there is seventy-seven thousand miles of railroad. In ten years the amount of monev invested in railroads, as appears by the oflBcial report, had increased four hundred and thirty-three per cent, while the miles of railroad had only increased a little over one hundred and twenty per cent., thus showing that the amount invested in these great enterprises is simply enormous; that over two hundred thousand people, adults, are employed in the United States to-day by the railroad corporations ; that to-day in New York there are twenty-seven thousand miles of rail- road, represented by one grand combination, representing over two. thousand million dollars; that one man (Colonel Finck) makes the rate of freighta and fares for over forty lines of railroad in the United States, and over twenty-seven thousand miles of road." I say this much, sir, to show only one point : that competition is im- possible; the power of such vast sums of money used in combined rail- road operations is too great to allow of competition ; the Government itself cannot compete with them ; that we might as well face the music first as last — that monopolies do exist. Whenever a railroad company comes to you and says we want to compete with another line, by buila- ing another road to San Francisco, it costs the people just so much more, and that is the experience everywhere. Now, upon this same subject, 1 wish to call your attention, to show that it is not confined to the United States alone; that in England, in eighteen hundred and seventy -two, one of liie most able reports was made ever made in any country, signed by the Chairman, Mr. Fortescue, then in Parliament. He says as fol- lows, in the report of the Transportation Commission of England : " Next,asregards competition between railroad companies, there hts.oo different occasions, been effected competition between railway compania in matters of charges, and it is probaole that the charges now made beu traces of that competition. But it may be taken as a general rule thu there is now no active competition between different railways iu tlie matter of rates and fares. Wherever different companies run betwees the same places, they arrange their prices. For instance, not only do the London and North Western, Midland and Great Western make th« same rate* between Manchester and Southampton, but bind theniselres by agreement not to make lower rates, so that we cannot lower its rates without the consent of the other two. And if a new railway sboald ever be started with a promise of lower rates, it is sure, after a short time, to arrange with its original rivals a system of equal charges." Mr. Chairman and gentlemen, that is only foUowing out the ordinsiy course of business, and it is fallacy for peopte to expect of gentlemea engaged in a great business of that character to do for them what no man in the ordinary affairs of business will do for his neighbor. Two men engaged in teaming, living side by side, would not be very apt to compete with each other so that they could not make- money. Again, I find, in the eighth volume of the debates of Pennsylvania, before the Constitutional Convention, that it was laid down as a geoenl rule, and adopted by that Convention, that no competition could be longer maintained. In that debate one of the most distinguished mem- bers said: " The only excuse or palliation made by any one has been by the gen- tleman from Philadelphia, who alleged that competition would cure these abuses. It is the weakest remark that he ever made in hia life, because to talk about competition curing these evils is as idle as the wind itself. Competition to cure evils alleged, indeed conceded, againstgreat corporations like these, is mere idle assertion. It cannot be done. Where can the competition come from to effect such great reformation? The great aggregation of wealth now centered in one or two great corpora- tions of the State very effectually preclude any remedy by competition." Sir Robert Peel, in that very able report to Parliament as far hack ai eighteen hundred and forty, told the English people that competition was impracticable ; that it was contrary to the ordinary rules of businen sense, and that we need not think they would be protected from future action of these great corporations by competition. Nay, sir, I miiht add still another authority. Sir Henry Tyler, than whom no more dis- tinguished man on the question of finance has ever been in the English Parliament, said the other day, in a great speech made before that body, that competition was impossible; that regulation was the only means of correcting any evils that may exist. He said more, sir. He said: " Gentlemen, the State must control the railroads, or the railroads will control the State." So, also, I call your attention to modem authorities, to James Parton's " Topics of the Times." I will not read it, but refer to page two hundred and eighty and pages tws hundred and seventy-eight and two hundred and seventy-nine, where gentlemen of the Convention can find additional authority on this subject; and I might add here, also, "Adams' Chapters on Erie," written in eighteen hundred and seventy-one. He says it is fallacy to suppose that competition ii possible. He also says: "Single men have controlled hundreds of miles of railway, thousands of men, tens of millions of revenue, and hundreds of millions of capital. The strength implied in all thii thej wielded in practical independence of the control Doth of governments and individuals, much as petty German despote might have governed their little principalities a century or two ago. Thus by degrees almost the whole of the system of internal communication through the northern half of the United States has practically been partitioned out among a few individuals, and, as proximity, or competition on certain debatable runds — the Belgiums of the system — brought the interests represented these men into conflict, a series of struggles have ensued, replete with dramatic episodes." I might call your attention also to the combination of all the rail- roads East. See the book by Adams, recently written on railroads, on page one hundred and seventy-four. I meral;^ wish to read one word and then I am through on this question. He is a recognized authority, and as I understand a Government Director of the Union Pacific— or was so a few years ago — a man of great ability and of large experience, and for many years he has been a Railroad Commissioner in the Stale of Massachusetts. Speaking of the recent meeting of railroad people in New York, he says : " The business was divided among the four trunk lines, on the basis of an apportionment of tonnage, ana not sn appor- tionment of earnings. Daily returns of all shipments from Ke» York to the West were made to the Commissioner, and thirty-three per cent of this business was allotted each to the New York Central snd the Ericj twenty-five per cent to the Pennsylvania and nine per cent to the Baltimore snd Ohio. Any road doing more than ita allotted share of business had, under the Commissioner's instructions, to turn the eicsB over to the road doing less than its allotted share, and to pay full rates for it." In other words, these four great trunk lines, the only ones that lead to New York and Boston, except the Grand Trunk of Unads, the only ones between Baltimore and Philadelphia and Washinzt«n,snd all that extent of sea line, stretohing over a distance of twelvelinndred miles, combined to neutralize competition, and they are doing it to-dsy. " In February and March, eighteen hundred and seventy-eight, a suc- cession of meetinp were held in New York which were attended by the representatives of no less than forty different corporations, operating some twenty-five thousand miles of road, or about one third of the whole system of the United States." Since then they had a meeting there which represented twenty-seven thousand iniks. " After some preliminary difficulties had been disposed of, a plan was adopted. Seven riintsof general railroad divergence at the Wesit were selected." Again, find the English Railroad Commission, hitherto and now existing, of whom Mr. Fortescue, in his report in eighteen hundred and seventy- two, says: " There is little real oompetitioD he(^een railwaz oompaoiei, Digitized by LjOOQ IC Nov. 12, 1878. OF THE CONSTITUTIONAL CONVENTION. 379 and Ihat little is rapidly diaappearing. The monopoly is inevitable. The self-interest of the companies cannot be trusted. That it is a mis- take to 3U|>pose that their interest and that of the public are one. The oulj practicable way out is by some form of rSgulation." >iow, Mr. Chairman and gentlemen of the Convention, I maintain that we have shown you, thus far, two propositions ; First, that mon- opolies, with this class of corporations, do exist, that they roust exist ; that from the amount involved they always will exist. And I am not prepared to say that it is not just as well for the people to have them exist, because that much money invested in any enterprise alwajrs makes a monopoly. Next, I think we have shown you that competi- tion cannot exist. The very name of monopoly of any business grows out of the idea, or the thought rather, that competition is impossible. Then if it be true that the carrying trade of the country is a monopoly — that there is no remedy by competition — the next (question wnicn I propose to submit to your consideration, is as to what is the remedy, if one is required. Now, in all the recent Constitutional Conventions the ablest men have recognized the necessity of the regulation of railroads. Not with the view, sir, of destroying them ; far from it. Not with the view of injuring a dollar of their money ; very far from that. In the Pennsylvania Convention it was admitted that some form of regulation was necessary; that without it, the people would not be protects! ; that without it the rights of the oorporations even were uncertain ; that It would be a benefit to both; that without the people the railroad corporations could not exist an hour, and that the interests of the people and the corporations ought to be mutual; that one was a public institu- tion, carrying on a public trust, and the other was represented by the mass of the people in their individual sovereign capacity, incapable of maintaining their own interests individually, ifinfringed upon. In the United States Senate, at the last meeting of Congress, there was a moat marked instance of the regulation of railroads by legislation; the well known Thurman Act was passed. It is true that Act was for the specific purpose of making the companies pay up; but, on recurring to those debates, we find the master spirits of the nation taking hold of this creat subject, and they treated it as one of national importance. And looking at it in that view alone, they claimed it was the interest of the people, their right, their duty, to regulate the railroad companies of the country. But, sir, regulation is of many forms. That regulation of some character is necessary is now admitted by all the thoughtful men in the country not engaged in that peculiar busi- ness. Why, let me put an instance. I apprehend that there is not a gentleman on this floor but would say that if any transportation com- pany charged a hundred dollars for a passage from here to San Francisco the Courts would remedy the evil by declaring that it was an outrageous price. Then if the Courts, or the Legislature, or the people, can keep the oorporations from charging an outrageous price for transportation of eirson and property, they can make them carry at a reasonable price, ut, sir, there is nothing in the report of your committee, let me say, fixing even a maximum of what that reasonable price is. The railroad companies are not even referred to as to any maximum rates. I do not believe this Convention — and I express only my own opinion — nor do I believe any legislative body, in the time allotted to it to consider such important questions, can fix maximum rates of freights and fares. I do not believe this can be rationally .done by any legislative body, because it is a business of itself; because it requires large study and great expe- rience in order to fix such maximums as may be just to the people and fair to the companies. Now, before I approach the other branch of this question, namely, as to the form qf r^iuation, let me say that I recog- nize that railroad companies, in their relations with the people, are a power.. As was well stated by a distinguished gentleman in the Penn- sylvania Convention, "the power of railroads is like that of steam — you cannot measure it; you cannot compute its value; but you must control it." Maasey said of steam : " Ton mtut hameas mo down with your Iron bands, B« lure of Tour curb aad rein, For I acom the strength of jonr pony hands Afl the tempest scoms the cbain.^^ Before we approach the question as to the form of control that ought to be adopted over this class of corporations, we must first inquire whether we have the power. The Supreme Court of the United States has decided we have. I will read from the 4th of Otto the decision in the case of Munn vs. the State of Illinois — the well known warehouse cases — page 125. Chief Justice Waite says : " From this source come the police powerB,Vhich, as was said by Mr. Chief Justice Taney, in the License Cases, 5 How., 583, 'are nothing more or less than the powers of government inherent in every sover- eignty, • • • that is to say, • • * the power to govern men and things.' Under these powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exereise it has been customary in England from tinie immemorial, and in this country from its first colonization, to reg- ulate ferries, common carriers, haokmen, bakers, millers, wharfingers, innkeepers, etc, and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, or articles sold." Now, why should they regulate ferries? Because of the public rela- tion of the I'ernr keeper with the people; because in most States he got the franchise from the people to run the ferry. In other words, the people in its sovereign capacity said : " This stream of water runs up through our valleys and belongs to the sovereign, but we will allow you to run a ferry here and collect toll from the people, but always and everywhere reserve the right to control that ferry." Chief Justice Waite continues : " To this day statutes are to be found in many of the States ujxin some OT all of these sabjects, and we think it has never been successfully con- tended that such legislation came within any constitutional prohibition against interference with private property." In the same decision, page one hundred and twenty-nine, the same authority says : " In later times the same principle canie under consideration in the Supreme Court of Alabama. That Court was called upon in eighteen hundred and forty-one to decide whether the power granted to the Citv of Mobile to regulate the weight &nd price of bread was constitutional, and it was contended that ' it would interfere with the right of the citizen to pursue his lawful trade or calling in the mode his judgment might dictate;' but the Court said: 'There is no motive * • • for this interference on the part of the Legislature, with the lawful actions of individuals, or the mode in which private property shall be enjoy^, unless such calling affects the public interest or private property in a manner which directly affects the body of the people. Upon this principle in this State tavern keepers are licensed, * • • and the County Court is required at least once a year to settle the rates of inn- keepers. Upon the same principle is founded the control which the Legislature has always exereised in the establishment and regulation of mills, ferries, bridges, turnpike roads, and other kindred subjects.' " It has been stated that corporations are in danger of being destroyed by the people. There never was an instance —and I challenge the pre- sentation of one — where the people, either in their sovereign capacity, by their Constitutional Convention, or by their Legislature, have im- posed terms upon any corporation whereby their interests have been imperiled. There is not an instance, so far as I have been able to find, where a corporation has been obliged to go into liquidation by the acts of the people ; while thousands upon thousands of them have fallen to pieces by their own improvident acts. The same Judge says further: " Under such cireumstances it is difficult to see why, if the common carrier, or the miller, or the ferryman, or the inn-keeper, or the wharf- inger, or the barber, or the cartman, or the hackney coachman, pursues a public employment, and exeroises ' a sort of public office,' these plaint- ifis in error do not. They stand, to use the language of their counsel, in the very 'gateway of commerce,' and take toll from all who pass. Their business most certainly 'tends to a common charge, and is become a thing of public interest and use.' Every bushel of grain for its passage ' pays a toll, which is a common charge,' and, therefore, according to Loixl Hale, every such warehouseman 'ought to be under public reg- ulation, viz. : that he • • • take but reasonable tolls.' Certainly, if any business can be clothed 'with a public interest, and cease to be juritprivati only,' this has been. It may not be made so by the opera- tion of the Constitution of Illinois, or this statute, but it is by the facts." Hence I argue that we have the right by precedent and experience to regulate corporations. The next question is as to its policy, and in the adoption of that rule, whether it is politic to do it is a question appeal- ing to every individual mind. It is a question of judgment — from his experience, from the history of the past — and let me say to my dis- tinguished friend from Mann, that there is nothing ancient about the railroads of the country; none of them came down here with knee- breeches and old flintlocks. The great railroad questions of the nation, are of recent origin — nothing old, nothing historical. There are no pre- cedents that are not of the living present; we can see it all around and about us. We don't go to any old musty tomes to find out what the opinions of our fathers were as to railroads, for they had none. The gentleman's reference to the past goes back too far. Many difierent remedies are presented in this article on corporations, each reaching, in some degree, a wrong complained of, and all touching the question of regulation. And about the first of them is the one relative to the estab- lishment of a Commission. I am aware, sir, that the question of adopting a section of that char- acter, providing for a Railroad Commission, struck many minds in this Convention as something unusual and extraordinary ; that to provide for a Commission in a Constitution was too pave a'matter, because it would take a long time to remedy the evil, if evil arises from it; that it would be better to leave this matter in the hands of the people, or, in other words, in the hands of the Legislature. On this point your com- mittee— or a majority of them — agreed. And among the reasons — ^11 of which I shall not attempt to give — ^they claimed, first, that a Commis- sion was the fairest body that could be selected; the fairest to the com- panies and the fairest to the people. They claimed it was the fairest, sir, because no man can act justly and fairly upon any important ques- tion of that kind unless he comprehends the subject ; and that a Com- mission elected for the term of four years can certainly so inform itself upon the questions as to be able to pass upon those questions that neces- sarily require the consideration of strong reasoning capacity; that a legislative body coming together once in two years, in session but a comparatively short time, could not give to this question such consider- ation as the magnitude of the subject demanded. Another of the chief reasons which was urged or discussed in that committee, sir, was that it got rid, to a large degree, of the great disgraces of the time — I will not say rn Califoniia only — namely, the corrupting influences in legislative bodies. I am not saying, sir, that it always happens in legislative bodies, or that legislative bodies are always corrupt when handling these questions, but what I do say is that it is recognized everywhere through- out the Union among thoughtful men that when questions materially affecting the railroads come up for consideration before legislative bodies the bad men of the country swarm around the Legislature. They seem to know something that nobody else does. That money is freely used on such occasions is not and cannot be denied. Why, sir, the other day I looked at the report of the committee appointed by the New York Legislature, in eighteen hundred and seventy-four, to investigate the operation of the Erie road. They brought before that committee that great magnate Jay Gould, and they asked him many questions which he answered with a frankness that none can help but admire, even if it was an outrageous admission. When asked what ^'Silarge meantfqr Digitized by VjOOQ IC 380 DEBATES AND PROCEEDINGS Tuesday, over one millioo twelve hundred thousand dollars to the India rubber account, he said, "Why, that is our lefnslatire expenses." In other words, "India rubber account" in the Erie books means legislative expenses. Your committee seriously think that It would be a happy day for the country, and a happy day for the people, when there shall be no " India rubber accounts" m the books or corporations. I do not claim that there has been any here. I hope not. I certainly do not charge it. And again, on the same memorable occasion — and I refer to it here because the question of legislative bodies attempting to control this sub- ject is before us — he was asked what his politics was. He was the President of the Erie road, and he said : " In Democratic districts I am a Democrat; in Republican districts I am a Republican; in doubtful districts I am doubtful, but I am always for Erie." He is admitted to be one of the greatest railroad financiers of the country. Your com- mittee thought that the remedy rested in a Commission, and whether that section which has been framed by them will represent jour ideas I am not here to argue. We believe that the principle is right; that a Commission elected by the people ought to control this matter; that while it is possible, sir, to buy three men — more possible to buy three men than to buy one hundred and twenty — ^yct pcrsoaal responsibility makes men honest; personal responsibility makes men couservative; personal responsibility always make men capable. When you throw the whole weight of this great question into a legislative body no one is responsible. Ail are, it is true, but there Is no individual responsibllitv. But when you elect a constitutional officer whose duty it shall be settle these questions; when he takes the oath of office it carries with It a solemnity and a realization of the duties which devolve upon him that in no case can rest upon the member of the Legislature. Again, I say there is nothing new in it. In the State of Maine they have Railroad Commissioners, and in Ifew Hampshire. Vermont, Massachusetts, New York, Connecticut, Pennsylvania, Michigan, Ohio, Illinois, Iowa, Min- nesota, Wisconsin, New Jersey, Missouri, and California. It is true, sir, that most of these Commissions have very little power. But they are of recent origin — most of them provided for within the last five years, all of them within the last twelve. They control these questions. In England, France, Germany, Italy, and Austria, the railways are under the strictest State surveilfance by officers occupying a similar relative position to these Commissioners. A remedy by Commission seems to us to be the correct one. And there is nothing new about that relative to other corporations. I was struck the other day very curiously by seeing in some of the papers that " we might as well think of controlling a bank and having a Bank Commission and an Insurance Commission." Why, sir, there are but a few of the States in. the Union that have not had a Bank Commission. California has only had one a year, and you already observe its beneficial results. And that Bank Commission has twice the power that is given in this section of the Constitution. It can go and close the doors of any bank in this State. It can demand the combination of their safes, and count their money, and examine their books and accounts, and can say: "Your securities are not good, air; you are insolvent, sir, and wo close your doors and shut down your business." And "Btlll it is a bank owned by private capital entirely. There is not one of the public hasany money there except as individuals. In New York they have an Insurance Commissioner, and that Insurance Commissioner not only controls the insiirance companies of that State, but when the insurance companies fall he handles all the money and distributes it to those to whom it is due and makes the collection. In other words, the State steps in and says to the individuals composing the companies: "You have Deen dealing with the public in some public relation and have proved untrue to your trust, and now the State in its sovereign capacity will take the power from you and settle with your creditors." So there is nothing new; there is nothing extraordinary about this. Let me say further — and I hope I do not offend anv p^;w>n who believes there is agrarianism in this — that there is no such thing as the existence of a railroad anywhere, in any country, except oy and through the sovereign will of the State. The right of eminent domain has to be invoked everywhere before they can build the road. To make a-personal illustration — not with a view of bringing the gentle- man's uame into my argumnnt^Mr. Stanford, for instance, has a farm five miles long. He builds a railroad across it; he carries as many passengers or as few as he pleases on his own land ; he can charge any price he pleases: he can discriminate between you and I; run his cars on any time he pleases. It is his; everything about it is his — the road- bed, the Iron, the engine, everything is his, and he controls it; because the law says that the man who owns the land owns everything, from the heavens above to the center of the earth. But, sir, be comes to the line of my friend here sitting in front of me, and he says, " I want to go through your land ; I want to go to Sacramento." My friend says: "I don't want you to go through my farm; this is my land, which I'lnher- ited from my father; every tree here is dear to me; this land is mine; it is my castle; as an American citizen, standing on my own soil, I say to you, ' halt!' " TMfc laws of the country say to him, as he marches on to the line, "halt!" and he stops. He cannot built his road any further. No private power can get him through. But he turns over to a certain section in the Constitution which reads: "Private property may be taken for public use." He goes on, and in the ordinary course of law he appeals to the State of California. He says: "You are the sovereign. I am about to establish a road for the public use, for carry- ing on a public enterprise — the transportation of pas-sengcrs and freights. I demand that you come and aid me to force my way through this man's land, because the good of the many, instead of the good of the few, Is always recognized by States, and this is for a public use." The State comes, and it raps at his door, and says: " It is true you are the sovereign here, but the State is higher thaji you, and we say to you when this man pays you a reasonable prica for fbe land, he CAA pass on with his railroad." And so he goes on through farm after farm, and by the exeroise of the right of eminent domain, he finally completes his road. In other words, in the building of his road, he has to appeal to the sovereign power of the State; but when we undertake to say that we will regulate the use of that road, which he acquired by the sovereign power of the State, be says it is his private property ; that you have no more riEht to say what be shall charge than you b&ve to Uke a man's shoes, who manufactures them in his shop, without paying. I contend that the analogy Is not good. Mr. Stanford, in his recent letter, which wa* written with marked ability, and I must say with extreme moderation — with a fairness that we cannot help but commend in the main — says : " Almost from the oommenoement of raitroad opera- tions in this State, we have found individuals anxious to commend themselves to the many; ready, under the plea of regulation, to con- fiscate. There haa been no measure of regulation yet proposed in this State that did not contain and which was not based upon the idea of confiscating the railroads — so tar as applied to the regulaticvi of the rates of freights and fares." In every civilixed country where railroads have been built, some form of regulation has been adopted. And why should it not be? They are estabi ished for a public use. They are common carriers. The people are all interested. Their money may be in it. But I am assuming that these roads were built by their own money. But when they built that road, when they incorporated themselves to build it, they knew exactly In what direction they were going to build it, and over what line. They knew that tbey were going to perform a certain duty to the public, namely, transporting passengers and freight fur a certain price, and the people had a right to regulate it just as much as they have a right to regulate a toll road. And it is really marvelous, when we obmc to think of it, that every gentleman will admit that evervwhere in this nation the Boards of Supervisors in the various counties nave always regulated the toll roads where the franchise haa been given to them, Sut that it is wrong to regulate theae matters of paramount interest on these great highways of the nation. It is because the railroads perform these great functions, and because they affect every interest and every want of the people, that they should be regulated by the people. I do not say that this company here has to be regulated. I am not saying that it has not I have m^ own private opinion as to that. But what I do say is that this Constitutional Convention should provide a means whereby all rail- road companies may be controlled. Why, sir, In the State of Ohio less than ten per cent, of the entire railroad values of the State is owned in the State. Y'ou do not know, nor do I know, how soon every railroad in this State may be owned by foreign capitalists — men who have no interest In common with us; pos- sibly not citizens, the most of them ; unacquainted with our institutions, uninterested In our people except to bleed them. I should feel that we had neglected a duty ii we did not provide for the«e possibilities. It may be, that while theae great railroad enterprises are in the hands of people almost bom upon this soil, with every affection and every inter- est Dere, they may not interfere with the people's rights as much as foreign capitalists; but when the capital is thrown into foreign hands, as Erie is to-day, and as many other Eastern roads are, I want to know what power of regulation you have unless you provide for it in this Constitution ? The next remedy, sir, which your committee has thought specially important,is found in section nineteen as reported, and that is as to dis- crimination. Section nineteen reads: Skc. 19. No discrimination in charges or facilities for transportatian shall be made by any railroad or transportation company between places or persons, or in the facilities for the transportation of freight or passengers within this State, or coming from or going to any other State. Persons and property transported over anj cailroad, or by any transportation company, or individual, shall be delivered at any station, landing, or port, at charges not exceeding the charges for the transpoila- tion of persons and property of the same class in the same direction to any more distant station, port, or lauding. Excursion and oommutation tickets may be Issued at speciail rates. There is an objection interposed to that section — interposed by the cor- porate interests — and that objection I think I have alresuly answered. The obiection is that it would interfere with competition; that if they were obliged to charge only two dollars and fifty cents from Son Fran- cisco to Sacramento to transport a passenger, and if that did not pay because of there being competition between Sacramento and San Fran- cisco, they could not charge more, they ought to be privileged to charge from some intermediate point a much larger sum. I contend, first, that that argument is not founded in reason. I confess I don't understand the railroad business as these railroad men do, but I ooufees I cannot understand the reason of this objection. It is admitted even by Colooel Finck, the great railroad man of the nation, and by all of the distin- guished and thoughtful men of the country, that oompetition is impos- sible, but they say that along certain waters it is possible. But I want to know of you what oompetition there is between here and San Fran- cisco. There may be two or three stem-wheel boats, but I want you to go and find somebody to travel on them. I want some gentleman to rise in his place and state if he knows of any real competition between here and San Francisco. But the section reads: "Not exceeding the charges for transportation of persons and property of the same class In the same direction to any more distant station." You can commence at San Francisco, and they can only charge three dollars from San Fran- cisco to Sacramento; from Vollejo to ^cramento, three dollars; from Napa Junction to Sacramento, three dollars : from Davisville to Sacnt- mento, three dollars; or from Dixon to Sacramento, three dollan. They cannot charge more, it is true, to Vallejo or Dixon, or the other intermediate places; they can charge only the same price for a less dis- tance than they do for a greater distance ; and even this provision in our report is not new; the committee does_not claim th^ honor of Digitized by Uoogle Nov. 12, 1878. OF THE CONSTITUTIONAL CONVENTION. 381 inrenting this. We find that Bection— or one of the same purport— in several of the most recent Constitutions adopted by various States in the Union. I find section three of the Pennsylvania Constitution, article aerenteen, reads as follows: "All individuals, associations, and corporations shall have equal right to have persons and property traiisportea over railroads and canals, and no undue or unreasonable discrimination shall be made in charges for, or in facilities for, transportation of freight or passengers within the State, or coming from or going to any other Btate. Persons or property transported over any railroad shall be delivered at any station at charges not exceeding the charges for transportation of persons and property of the same chm in the same direction to any more distant station; but excursion and commutation tickets may be issued at special rates." In that Convention were two ex-Governors — ex-Governor Bigler and ex-Governor Curtin. There were a large number of the most distin- guished men of Pennsylvania, and that section was carried almost unanimously, not unanimously, but by a large vote. Now, then, in Pennsylvania they have a very great opportunity for studying this question, because the carrying trade of Pennsylvania — I do not now remember the exact amount — %ut it is, I think, twenty-five times larger than that of California; it i^ a great many limes larger. And hence, the opportunity to ventilate the question before that Convention was better than it possibly can be here. Again, I find in Missouri, the Constitution which was adopted as late as eighteen hundred and seventy-five, I read section twenty-three, of article twelve, on corporations: "No discrimination in charges or fitcilities in trans|x>rtation shall be made between transportation com- panies and individuals, or in favor of either, by abatement, drawback, or otherwise; and no railroad company, or any lessee, manager, or employ^ thereof shall make any preference in furnishing cars or motive power." Again, in Illinois I find almost the same provision. I do not recur to it now, but my recollection is that it is also in the Illinois Constitution; also in Colorado ; and in the Ohio Convention the same rule was adopted, but when it was submitted to the people, the Constitution as a whole was defeated. Hence, Mr. Chairman and gentlemen of the Con- vention, we think that section nineteen is right. Nothing; that it is possible for us to imagine causes such a feeling of uncertainty on the part of the producer, as the fact that one man has to pay a larger sum proportionately for the transportation of his freight or his person than another. There is not any doubt in my mind that most of the troubles that have arisen relative to the railroad question between the people and the corporations have arisen from this reason alone. A rail- road company, being in possession of a great trust, it is ita duty to so conduct its business that it will not oppress the people; that before the law every citizen is equal ; that the rights of the many shall not be Bttbverted for the Iknefit of the few. On the question of discrimination by railroad companies, I will read from page one,hundred and twenty-three of Adams on Bailroads, where he says : "Where goods starting from the same point were to be delivered at difierent stations on the line of the same road, those forwarding them discovered to their cost that the tariff resembled nothing so much as an undulating line; for a distance of tvrenjj miles more would have to be paid than for a distance of forty miles. Those living between competing points were rigidly excluded from the benefits of competition. To such an outrageous extent was this carried that it became the common practice where an entire car-load of merchandise, destined to some way station on the line of arailroad, was paid through to a competing point far bej^oud on that line, to make a large extra charge for not hauling it to that point, but dropping it at its ultimate destination in the first place. It was exactly as if a traveler was to buy a through ticket from Albany to Buffalo, and the railroad company were to insist not only on taking up his ticket, but chaining him a dollar extra if be left the train at Syracuse." And that is a lair illustration made by the author. "Remonstrances against this absurd anomaly were treated by the ofScialS of the railroad companies as if they were too unreasonable for a patient hearing. This was much more the case in the West than at the £ast, but even in Massachusetts, when the State Railroad Commissioners on one occasieon urged upon acorporation the injustice of charging some twenty dollars extra on each car-load of wheat, which had been paid for on a through bill of lading to the further end of its line, if they left it at its point of destination, one hundred miles short of that end, thus making a charge of twenty dollars for not hauling the loaded car one hundred miles; in this ease their representations were met with the coun- ter proposal that, if the consignees preferred, the company would haul his goods by his door to the point to which they were billed and then back, charging both ways." Comforting, indeed. "He might pay the through rate forward and the local rate bock, or submit to tne extra charge, just as he chose. Besides all this, however, competition led to favoritism of the grossest character. Men or business firms, whose ship- ments by rail were large, could com*mand their own terms,jts compared with those whose shipments were small. The most irritating as well as wrongful inequalities were thus made common all over the road. Every local settlement and every secluded farmer saw other settlements and other fanners more fortunately placed, whose consequent prosperity seemed to make their own ruin a question of time. Place to place, or man to man, they might compete; but when the weight of the railroad Was flung into one scale, it was strange indeed if the other did not kick the beam." It is because of this kidking the beam that this committee has reported this section. And it is indorsed by the strongest minds everywhere over the country. I took occasion the other day, in this Btate, to ask an eminent railroad engineer where there was anything wron^ about it. Without wishing to be quoted, he said: "While in some instances it might hurt the companies, in the main it is right and ought to be done." The very word "discrimination," the very fact that one man — one man's dollar is not as good as another's — that because he lives ofT from some line of travel, or in some country place where the railroad passes him ; and because he cannot walk, or send his grain, to market, except in one way — I want to know why they should charge him for living at that place? This is not milea|;e rates. I reoogniiie what the English Board of Transportation Commissioners said in their report of eighteen hundred and seventy-two : that mileage rates in all instances would not be just. This is not mileage rates, because they can charge just as much for ten miles as they do for one hundred miles. Mileage rates would mean that they could not charge but one tenth as much, or that they could not charge any more. And if there is any injustice, even in this section, the injustice is against the shipper — against the man who travels — and not against the railroad company. In eighteen hundred and seventy-six — to show you how little freignt is transported by any means except by rail — right through Centraf New York, with a great canal following the same course, eigl^ty-three per cent, of the entire freight went by rail— eighty- three percent! You will see that in this fast age people cannot wait; they must thrust their grain into market. They rusn it with lightning speed. They do not object to paying a reasonable price — 4 fair price. I would not impose any terms that would make any railroad com- pany, or anybody, the loser; but I would say that one man's dollar should be as good as another's, so that when we ship our grain we feel that if we had to pay five dollars a ton, that our neighbor Jones, or Smith, or whoever he may be, pays the same price for the same class of freight, in the same direction, to the same point. And, again, these corporations are recognized by many of the authori- ties of the country as public highways. I do not say they are. We follow the decisions of the Supreme Court of the Unitetl States, and they say they are common carriers and subject to legislative control. Still, I believe the Pennsylvania, Ohio, Illinois, Missouri, and other of the Con- stitutions, all declared that they were public highways in the broadest terms. I will refer to Angel on High ways, page twelve, section eighteen : "A railroad, estabtlshed and existing under an Act or charter or incor- poration, like a turnpike or a plank road, is a public highway, but only to be used in a different mode. It is true everybody cannot go on iL Everybody cannot take posses- sion of it, but what the authority means is that the railroad, in its rela- tions with the people, is a public higliway. Here is a large number of authorities referr^ to sustaining that view. On page four hundred and sixty-four of the same book, section three hundred and seventy, the author says: "Public railroads, like turnpike roads and canals, are the creatures of statutes, and, as with turnpike roads and canals, the rights and duties of their proprietors, and of the public, flow directly from these statutes, and from the mutual relations thereby created between them. They are open to the travel of the entire public, upon the payment of the prescribed rate of toll. And, as in the case of turn- pike roads and canals, if there be any ambiguity in the language of the Acts, by which the right or the rate of toll is granted, that construction is to be adopted which is most favorable to the public, as against the grantee." There is the authority, a recognized authority upon that question. Now, then, upon this point, Mr. Chairman and gentlemen, I maintain that some sort of regulation should be made, and that the Commission is the best power to do it. That discrimination is wrong, and that we ought to provide against it. That what ought to be done can be done, and I am sure that members of the Convention will recog- nize the fact tliat this oug^t to be done. The whole people gave these companies the right to build their roads; the whole people are entitled to equal protection. The existence of the railroads depends upon the people, and the prosperity of people depends upon the fairness with which the railroads control their property. But for the people them- selves these roads would not have existed. But for the roads we could not transport our grain, our freight, and our persons. We are entitled to that mutual relation occupied by persons holding great trusts, whereby they put monev into an enterprise in whicii the public are interested. We say that tLe creature shall not by any act of ours become greater than its creator. We say the creature made by the statute, created by the law, shall not under any state of circumstances be more potent, more powerful to control its affairs, than the Stale itself. Why, the railroads of the East, says Simon Stern, are the real government. They have, says that author, all the substantial elements of power without anv of the responsibilities. Aye, it is perpetual with them, while public o6ffcer8 are fluctuating and pass away. If railroads cannot be regulated the railroads will control the internal commerce of the country ; they do control it. It is true the Constitution of the United States prescribes that Congress shall have the right to regulate commerce between the States ; and our organic law has always assumed that the State should regulate its own internal commerce; but, unless we take this thing in hand, we cannot regulate any longer, for the commerce as between the citizens of the State is now controlled entirely by the railroads of the country. This Constitution can only protect the people from evih which, at the time of its enactment, are experienced or in sight; we cannot anticipate what is in the remote future. The regulation of freights and fares is not new. For many years, in New York, it has been a law that no railroad company shall pay more than ten per cent, dividends; but the Legislature made this mistake : it did not make anj provision against companies watering their stock, which we hava provided against in this article. The result was that the New York Central accumulated a large amount of money, and one morning the people woke up and found that that company had increased its capital stock by the sum of thirty million ctollars — a quick way of making money — it was done in an hour, and then they could pay dividends on this additional stock. And let me say here, also, that ever since the organization of the New York Central there bag been a mileage rate for passengers — two cents per t^ 382 DEBATES AND PROCEEDINGS Tuesday, mile — 80 there is nothing unique in givine these powers to the Com- missioners. Similar provisions to that in this article will be found in the Constitutions of Pennsylvania, Missouri, and Illinois. We are not experimenting, except so far as it is an experiment to provide for a Commission in a Constitution. That far it may be an experiment, but we think it is an experiment we are entitled to make. The personal resimnsibility imposed on these men will cause the people to select such persons as are eminently qualified for the place. The interest of tlie railroads of right ought to be protected ; the rights of the people must be maintained. The railroads expect t much, the people receive too little. The future of the railroad problem, like the future of our country*, is yet a mystery ; but judging the future by the past, if we would perpetuate the one we must control the other. If rail- roads, with all their benefits, bring in their train corruption; if the eternal rock of purity and justice shall be rent asunder; if public station depends on the will of the few rather than the wish of the many ; then indeed may we echo the sentiment of the Irish imet: " III fmra the land, to hastening Ills a prey. Where wealth accumntates and men decay.** I recognize the magnitude of the question before us. I appreciate the difficultv of our position, but there is no man who is not deaf but has heard tlie demand of the people for justice. They hope to obtain it through this Convention. I hope their wishes may be heeded. An old Roman author once said : " Justice is the unchanging, ever- lasting will to give each man bis right." If this was deemed true then, here and now may we not secure that right? For the glory of Ameri- can legislation is- its justice, and the splendor of our history is the records of the liberty of the people regulated by law. [Applause.] Mb. HUESTIS. Mr. Chairman: 1 move that the committee rise, report progress, and ask leave to sit again. ■ Carncd. IN CONVENTION. Tax PBE8IDENT. Gentlemen ; The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, report progress, and ask leave to sit again. Tlie hour having arrived, the Convention took the usual recess until two o'clock p. M. AFTERNOON SESSION. The Convention reassembled at two o'clock r. u., President Hoge in the chair. Roll called, and quorum present. COKPOKATIOXR. Mr. ESTEE. I move that the Convention resoIVe itself into Commit- tee of the Whole, the President in the chair, for the purpose of further considering the report of the Committee on Corporations other than Municipal. Carried. IN COMMITTEE OF THE WHOLE. Thk CHAIRMAN. The article on Corporations other than Munici- pal is under consideration. The Secretary will read section one. Thk SECRETARY read: SitcTiox 1. Corporations may be formed under general laws, but shall not be created by special Act. All laws passed pursuant to this section may be altered from time to time, or repealed. Mb. LAINE. Mr. Chairman: I ofTered an amendment this morning, and I will send it up. I desire to read it 6rst. It will be noticed that the second clause of the first section provides that all laws passed pursu- ant to this section may be altered from time to time, or repealed. If we should adopt a new Constitution, with this provision as it stands, of course the old Constitution would be wiped out, and the laws that have already been passed, and are on the statute boole properly chargeable against him. The lability of each stockholcler is determined by the amount of stock or shAres owned by him at the time the debt or liability was incurred; and such liability is not released by any subsequent transfer of stock. The term stockholder, as used in this section, shall apply not only to such persons as appear by the books of the corporation to be such, but also to every equitable owner of stock, although the same appear on the books in the name of another, and also to every person who has advanced the installments or purchase money of stock in the name of a minor, so long as the latter remains a minor; and also, to every guar- dian, or other trustee, who voluntarily invests any trust funds in the stock. Trust funds in the hands of a guardian or trustee shall not be liable, under the pAvisions of this section, by reason of any such invest- ment, nor shall the person for whose benefit the investment is made be responsible in respect to the stock until be becomes competent and able to control the same; but the responsibility of the guardian or trustee making the investment shall continue until that period. Stock held as collateral security, or by trustee, or in any other representative capacity, does not make the holder thereof a stockholder within the meaning of this section, except in the cases above mentioned, so as to charge him with any proportion of the dcbtsor liabilities of the corporation ; but the pledger, or person, or estate represented, is to be deemed the stock- holder as respects sucli liability. In corporations having no capital stock, each member is individually and personally liable for his pro- portion of its debts and liabilities, and similar actions may be brought against him, either alone or jointly with other members, to enforce such liability as by this section may be brought against one or more stock- holders, and similar judgments may be rendered. The liability of each stockholder of a corporation formed under the laws of any other State or Territory of the United States, or of any foreign country, and doing busi- ness within this State, shall be the same as the liability of a stockholder of a corporation created under the Constitution and laws of this State." This substitute I have offered, sir, emlwdies all the points that is con- tained in the decision of the Supreme Court, and it embodies the iden- tical points contained in the statutory provisions which control the liability of stockholders at the present time. Therefore, so far, there can be no question of the validity and utility of this amendment, for it makes the liability of the stockholders perfectly clear, and will leave no sdjudication. This additional clause I have used here, " and also for a further sum at least equal in amount to the par value of his stock, any contract or agreement to the contrary notwithstanding," the object of my offering that is this : The operation of the law as it is, on the liabilities of stock- holders, in the event of the failure of any corporation or association, the first thing which is done is to realize on the assets of the corporation, whatever they may be. That is divided pro rata among the stock- holders of the eorporiition. Then this provision of the Constitution comes In and says in addition to that, each stockholder shall be liable for his proportion of all the debts and liabilities of the corporations. Now, sir, 11^ every stockholder, at the time of such failure, was fully solvent, there would be no loss to the creditor, because each would pay his proportion, and consequently there would be no los8. In experience, in practice, it almost universally occurs that more or less of the stock- holders, at the time of such failure,prove to be insolvent — not unusually half of them. Consequently, if there is one single stockholder owns one single share of stock at the time of the failure, nis insolvency would prove necessarily a loss to the creditors. And I think, sir, that it is necessary that this should be included in order to cover that discrep- ancy which always exists. I hold in this particular that our Constitution, and the liability of stockholders under it, is less than that of any other State in the Union, "because it is impossible for the association to fail under such a condition of afiitirs. Now, sir, I find, in several of the Constitutions, that the liability of stockholders is in excess of their assets, and any assessments not paid on the shares of stock, and in the further sum at least equal to the par value # such stock. This is the case in Ohio, Arkansas, Kansas, and some others. In addition to the assets — in addition to any assessments which may have been levied on the stock — in the further sum equal to the value of such stock. It is true, sir, that there may be rases in which the liability of stockholders under the present Constitution would be greater tlian the par value of the stock. In cases where the corjK)ration has failed for an amount three or four times the value of its stock, then even if half of the stockholders were not solvent, the pay of the remainder would be greater than the amount due from the stockholders, under the Constitutions of Ohio, Arkansas, and other States. But, sir, I . hold that this discrepancy of the law ought to be covered. That, as a rule, sir, in the failure of joint stock associations there is a loss which usually falls upon those least able to bear it. I have no antipathy against corporations. I have considerable stock in two that are solvent, however. I hold, sir, that it will not affect solvent corporations, but would strengthen those who are entitled to strength, by doing away with the competition of those which have no credit and no standing. It has been said that if this is adopted it will increase the liability of stockholders to such an extent that it will discourage corporations and joint stock companies. I think, sir, from the report of the Secretary of State made here the other day, that we are not likely to have any such result. Now, sir, it has been said that if this amendment is adopted it will have a tendency to contract corporati(ms ; that they will incorporate for a smaller amount, and that they will have a reserve fund instead — a sort of general fund in the shape of a reserve fund. I presume that is just about what the people of^this State would like to see; then if there is a failure there will be the pleasant surprise of a reserve fund to pay the debts with. Now, as to the last sentence, "any agreement to the contrary," etc., the object of that is this : it is a notorious fact in this State, and especially among insurance companies, that there is a provisiofi or clause in every policy — there are some few exceptions^— I believe, but it is in most all of them — providing that the jwlicy holder waives his right under the law and Constitution to recover anything in excess of the assets of the corpo- ration in case of the failure. It is generally printed in very fine type, and I presume there is not one in twenty that see it, yet it is claimed that it will hold, and in support of that proposition I ivish to read a short section from the same decision of the Supreme Court upon the same subject, page five hundred and thirty-seven ; " Corporations have a clear and undoubted right, under the Constitu- tion, to thus limit the liability of their stockholders by express stipula- tions to that effect in their contracts. A creditor of the corporation, by entering into such a contract, especially waives the benefit of the constitutional provision relating to the liability of the stockholders of a corporation. Section thirtv-six of the Constitution, above cited, was intended for the benefit of the creditors of the corporation. Its most enlarged construction Is to confer upon the creditor a right which did not exist at common law — that is, a right to resort to the individual and personal responsibility of the stocknoldcrs. But the Constitution does not compel the creditor to accept this benefit, or prohibit him from waiving it. It is clearly to be classed among those rights which he may umive by agreement, and he will be bound by an agreement to that effect, for a person may waive a constitutional as well as a statutory pro- vision made for his benefit" Then one other is contained in the twenty-fourth Wendel : " A party may waive a constitutional as well as a statute provision made for his own benefit. The contrary argument would deprive a criminal of the power to plead guilty, on the grou^d-^'^^' ^^^ Contti- tation has secured him a trial by jury." . . ( /^/^rv I O ' ' 'digitized by VjOVjyiL 384 DEBATES AND PROCEEDINGS Tuesday, Now, sir, it is expressly held in that decision that he may waive it — that the policy holder may waiv» his right as it stands now. Now, sir, I hold that this additional provision is necessary in order to prevent the stockholder — or, rather, the ]>olicy holder, from waiving his right; the trouble of that is this : that it is an advantage taken of the policy bolder, an advantage which he has no knowledge of until the failure of the company, and then it is too late. I hold, sir, that we should do something fur the protection of the policy holder, in order that he may not be deirauded. Th( chairman. The question is on the adoption of the amend- ment. gPERCH or MB. WILSON. Ms. WILSON, of First District. Mr. Chairman : I desire to say a few words in opposition to this amendment and in favor of the sectiou which has been reported by the Committee on Corporations other than Municipal. In the greater part I may say I indorse the views presented this morning by the Chairman of that committee, and I admire very much the candid and masterly manner in which the whole subject was presented. The gentleman must certainly have convinced everybody that a large portion of the business of this State is being done, and will hereafter continue to be done, by corporations. That coqiorations are absolutely necessary I think may be accepted as a fixed principle. We have in the State of California two kinds uf corporations, domestic and foreign; that is, we have corporations organized under ourown State laws, and we have a large body of corporations that are doing business here which are organized under the laws of other States and countries. We have English, French, and German corporations ; we have corporations organized under the laws of New York, Massachusetts, Pennsylvania. Connecticut, and many* of the other States, all transacting business in this State, in various branches of business and trade. The business of these foreign corporations is done by virtue of the comity existing between States and nations. We have the inherent right, if we so elect, to drive out foreign corporations and deny them the privilege of trans- acting business in this state. To do so, however, would be to place us behind the spirit and civilization of the age. No Slate has undertaken or had the courage so to do; no country, I believe, has yet undertaken so bold a step; therefore we may assume as an established fact, that the transaction of business in this State by foreign cor|wrations iMt only now exists, but will continue to exist hereafter, and legally and justly exist under the comity existing between the several States and nations. So far as I can learn, and so far as my experience goes, this proposed individual liability is an unjust discrimination against the citizens of California. My own opinion is that it should have no place in the Con- stitution at all, and I am in favor of striking out the entire clause in reference to individual liability. I am apprehensive that enough mem- bers could not be obtained to strike out m tuto this individual liability clause, but I will state, nevertheless, that in my opinion, an individual liability clause is an unjust discrimination against Califomians, and is largely in favor of foreign corporations. Take, by way of illustration, the London and San Francisco Bank, the Anglo-Californian Bank, or any ol these permanent foreign banks (and I believe they are all solvent, respectable institutions) doing business here. They come here from Europe, or perhaps from any of our sister States, and do business in the State of California, without any individual responsibility attached to their stockholders. But our home banks, which we should foster, organ- ized under the laws of this State, are placed under an individual liabil- ity law, and the foreign banks are accorded an immense advantage. Take the foreign insurance companies of oth^ States and other coun- tries, all are doing business here with perfect freedom, without any individual liability, while all of our domestic corporations are crippled with the individual liability clause, and thus placed at an unfair aovan- tage for the benefit of foreign capital. If a great fire occurs, in a large city like San Francisco, or a city like Sacramento, where it sometimes destroys property sufiicient to bankrupt a foreign insurance company, the policy holders here might pursue it to the extent of its assets, but they would be obliged to stop when the assets were exhausted. The Chicago fire caused the ruin of a great number of companies. The great Pacific Insurance Company was ren- dered absolutely insolvent, all its property was taken, and the stock- holders were obliged to pay an additional sum in solid cash out of their pockets, to make up the deficit. Here is the discrimination against Cal- ifornia. With this individual liability clause in the Constitution, we will be discriminating against ourselves. We, therefore, as law-makers, accepting the condition of things which exists, and knowing that we would be behind the spirit of the age in refusing foreign capital the privilege of transacting business in this State, knowingly and delibe- rately thus discriminate against our own citizens in favor of foreign cor- porations and foreign capitalists. Now I ask, is this wise, is it common sense? We are asked not only to continue the liability clause already existing, but proceed several steps further and all the while discriminat- ing against our own citizens. That is the question presented now. If I believed that a proposition alwlishing all individual liability could be adopted, I would favor it, and in any event I am firmly opposed to extending individual liability beyond the limit already contained in the Constitution. Now let us see what is the condition of stockholders. A stockholder invests his money, in the first instance in the corporation, and pays up his oapittU stock in full, as originally subscribed, and the entire capital stock thus paid up by all the stockholders is in the treasury of the corporation. Under our laws, and especially under our insurance laws, it is compulsory that the capital stock should be paid up in full; it always has been done so, but where it has not been paid in full, the cap- ital stock is held in trust in favor of the creditors of the corporation, and the stockholders can always be compelled to pay up the original capital stock as described by them in order to liquidate the debts of the corporation. A citizen of California, who becomes a stockholder in an institution or association of this kind, p.'\y8 in cash bit proportion due on bis stock as subscribed by him. In a majority of cases, when dios- ter comes, the stockholder is innocent and has not participsted in the mani^ment of the affairs of the institution, and is not to blame for Uie disaster; the stockholder has not participated in, or had any knowledge of the transactions which lead to the disaster. Take, for example, the case of the French Savings Bank, and undoubtedly the stockholden are all innocent men. They invested their money in that corporation and by misfortune in the management of its officers, subsequently lost it As a consequence, the stockholder is liable on his stock, for the lav com- pels him to pajr up in full, and now comes this proposed amendment and adds a third liability, which compels him to advance still more money. This is an illustration how the innocent stockholder who hu his money invested in a corporation may suffer by the mistake or mij- management of the officers of the institution. Why does not the gentleman make each individual stockholder liable for the entire indebt- edness of the corporation, as in the case of a partnership? Wh; not make each stockholder aWlutel^ liable to the whole extent? The prin- ciples that apply to a partnership do not apply to a corporation. It is not policjr or common sense to place them on the same footing, tot a partnership is essentially different from a corporation. These lavs are the outgrowths of the business experience or long years. Lav is not absolutely created or carved out of the head of anv man. It grew from the customs and usages of merchants long preceding adjudications br the Courts. Take by way of illustration the rules and regulations of minei. These mining rules and customs grew from neceasi^, from the progresi and industry of the State. The miners made their own rules and regu- lations, and afterwards the Legislature adopted them and crrstallized them into law, and the Courts administered them and proclaimed them law. Take the customs of merchants in all the different branches of trade, and the same thing appears, for all these customs and uaagee coo- tribute to make the law ; ana these are but a few illustrations of a thou- sand that could be made. I say, therefore, the laws and the institniions of the country are growing up and spring from the habits, usages, cus- toms, wants, and necessities of the people. One by one they have been adopted until we have reached our present position. When men enter into a partnership, they recognize individual liability to the fullest extent. Yet even in partnership it has been found useful to creste a limited liability. Take the great State of New York, and there we hare an illustration of the perfection which usages and custom may attain. There the^ have a statute limiting the individual liability in cases of partnership, and it was induced by wise statesnunship. For instance, an old retired capitalist weighted down with money is anxious to make a reasonably safe investment, and is favorably disposed towards some young, active, vigorous business man. The rich man of yean is willing to advance his money as an equivalent for the ability and enterprise of the young man, but he cannot do it, because the young man might be inuirudent or too venturesome or make some unfortunate investment, and the old capitalist would be ruined, and I ask therefore is it wise to permit the old man to hoard his money and retire it from circulation and at the same time deprive the young man full of ability and enter- prise of the use of the capital to honorably start himself and his family in life? Unquestionably, no. Create then the principle of limited liability by which the capitalist may contribute his twenty thousand dollars or thirty tfaousanct dollars or even his one hundred thousand dollars against the energy and vigor of the young man, and permit them to embark in any lawful enterprise. Such are the wise Uvsof the great State of New York, for there they have established the princi- ples of limited liability in partnership, and there the capitalist can con- tribute whatever amount he desires, publishing to th« world tliathe isa limited partner to the extent of twenty thousand dollars or thirty thou- sand dollars, or whatever the true amount may be- There are certain wise pr»>eautions throwu around tlie system in order to guard against fraud, and it is just and right that there should he. That system yet commends itself to the people of New York, and to- day remains in the statutes of that great State. It also prevails in Massachusetts and in many other States, I believe. No one has yel complained of it, and it has so prevailed in other States, and has nerer produced any injury or aught but good. There a young, active, vigw- ous man, may address a capitalist and say : " I have vigor and eaap and capacity to engage in business, but am without funds; will rou join me and contribute your money, ten thousand or twenty thousand dol- lars, and en{;age in this enterprise?" The capitalist says: "Yes.ifl can be limitM to twenty thousand dollars I will contribute that amount against your skill and business capacity." Under the law of New York find other States he is at liberty to do so. He publishes it to the world, and gives notice of the amount of money he contributes, and beyond that sum he will not be responsible. I have yet to learn of any objec- tion that can be urged against this wise system*. Why then is not this system wise in regard to a corporation? Why should not a man be allowed to unite in some greatf enterprise by noti- fying the world, by publication or otherwise, that he has coutribnted five thousand or ten thousand dollars, or any other amount, and that he will not be responsible for any amount beyond the sum of money origi- nally contributed by him ? The world is fairly notified of it, and eveir person who deals with the corporation has notice of the fact Is it not a wise policy to permit him so to do? For instance, in discussing sMi business matter which I desire to transact, the manager of a corporation says, very well, transact business with us, but in this case there is a ce^ tain limit to the liability of the stockholders, and you must take your risk ; you know it and are fully informed, and you know that if the corporation should fail, your recourse is first to the assets of the corpora- tion, and second, to a certain proportion which each stockholder bai to bear, and no more. If this individual liability clause is kept out of the CoostituUcai creditors must look to tbo funds ani assets of the corporation, and notn Digitized u Nov. 12, 1878. 0^ THE CONSTltUTiONAL CONVENTIOJt. 385 ingelsc.. The assets may not be suRicieiit, but creditors must assume that risk. All the world has had ample Dotice and dealt with the cor- poration knowing its status. In olden times there was no such thing as individual liability of, stockholders; it is entirely a matter of modern growth. Now, if we increase this individual liability what is the result? We will drive the capitalists of California out uf business and abandon almost all business to these foreign corporations and capitalists, because the California cap- italist will say, I cannot invest my money in an institution where I may not onl^ lose my entire original capital contributed, but also all my original stock, and I will therefore nave nothing to do with the enterprise. And there is no man in this Convention who would. The result will be that the home corporations cannot exist, and foreign cor- porations having no individual liability will do all the business. There are thousands of dollars paid in premiums every year to (oreign corpo- rations, which go direct to foreign countries and States, and thus immense sums of money are exported from our own State annually. Fires occur but seldom, and thus thousands and thousands of dollars every year are sent out of the State, to papr foreign insurance companies, including English, French, and German insurance companies, and companies in the other States. We have many such foreign companies in the City and County of San Francisco to-day, and we have domestic insurance institutions that have their money circulating here, premiums paid and divided here at home, but we will drive all this business from the domestic cor- porations into the bands of these foreign cor|X)rations, if we thus continue discriminating against our home companies in favor of foreign companies in the manner contemplated by the amendment. What other object is there or can there be in this amendment? A man Iwenty-one years of age, in the full possession of his faculties, makes a contract, but it is provided here that notwithstanding the fact that a man enters into a contract he shall not be bound by his contract. I never hare been in favor, and I never will be in favor, of restricting a man in the exercise of his own faculties, or in entering into such agreements as he may desire, and in my judgment that is the entire proposition involved in the last part of the amendment which the gentleman from Alameda has offered. A man goes into the office of an insurance com- pany, or into a bank, and the manager says : " I now notify you that we will not be responsible, individually, in any transaction you may enter into.wilh this corporation, and you must look to the cor|)orate funds and assets alone of the institution for indemnity in case of loss;" and notwithstanding that the whole matter is perfectly understood by the man, and he then makes an agreement knowing and understanding all the facts, the proposition of the gentleman from Alameda is, that he shall not be bound by bis contract. Six, eight, or ten men enter into an agreement to invest twenty thousand dollars a}>ieoe in an insurance corporation in any of the towns of this State, and publicly announce that they will agree to insure people in their institution, provided those insured will agree to look to tne company's assets alone, and shall not look to them individually in any event for indemnity in case of loss, and a man deals with the corporation on that basis, why should he npt be bound by it What is the objection and where is the wrong? Such a system is in entire harmony with the principle of modern insurance. The proposition contained in the amendment contemplates not only that the stockholder shall be individually liable for his proportion of all the debts and liabilities of the corporation, in proportion to the amount of stock he holds, but also in a further sum equal in amount to the par value of his stock, any contract engagement to the contrary not- withstanding. In other words, this Convention would undertake to say to the merchants and business men of this country, that it prohibits them from entering; into a contract which their judgment may approve, and their necessities and inclinations induce them to make. In my judgment the entire proposition is a discrimination against the citizens of California. At present the creditor has recourse to the capital stock of the corporation in the first instance, for the law requires the stockholder to pay up in full, and each stockholder is liable for his proportion of all the debts and liabilities of the corporation, according to tne provisions laid down in section seven of the article ns reported by thfe committee. I say, therefore, that even now we have proceeded far enough, for already there is sufficient discrimination against Californian in favor of foreign corporations. But to pass the limit and add the further liability, by which the stockholder must pay the entire capital stock again, in my opinion is going to the utmost extreme, and certainly is not based upon prudent statesmanship, business judgment, or common sense. I submit that the section as reported by the committee is stringent enough. It is, in my judgment, all that is demanded in the interests of the people, and I shall, therefore, oppose the amendment of the gentleman from Alameda, Mr. Webster. SPIEOR or MB. HAOEB. Mb. HAGEB. Mr. Chairman : I was not aware that this proposition Was coming up to-day, and I am not prepared to make any extended remarks. But I concur, substantially, in what has been said by my colleazue, who has just taken his seat. While he was speaking, I have been consulting other State Constitutions to ascertain their pro- visions on this subject. I have been unable to find any provisions in other State Constitutions similar to the one contained m our old, and proposed to be placed in our new. Constitution — that is, " that each stockholder of a corporation shall be individually and personally liable for all its debts and liabilities," etc. There may be similar provisions m other State Constitutions, but I have not, in my limited investiga- tjon, been able to find any. To continue this provision in the new Constitution is neither good policy nor in the interests of the people. It will not bring capital to our State; it may drive it from us. I know there is a prevailing prejudice against capital and capitalists, and to some extent it has manifested itself in this Convention. Many »up- 49 pose all stockholders in corporations are capitalists, but such is not the case. The provision applies to all corporations, and yet many of them are created for the purpose of developing industries, and the work and labor of the stockholders may constitute the principal capital. As I have stated, California, as far as my researches extend, stands alone with this provision. The Constitutions of Alabama and Minnesota have provisions "that each stockholder in any corporation shall be liable to the amount of stock held or owned by him." That is, if he holds ten thousand dollars worth of stock, and the corporation fails, he may lose ten thousand dollars, but can lose no more. In that of Nebraska, stock- holders in banking corporations are made liable to creditors for the amount of their stock, and also to an amount equal to the stock or shares so held. In the Arkansas and some other Constitutions, the provision is substantially the same, and applies to all conx>rations. In such case, the stockholder having stock to the amount of ten thousand dollars might be liable to a loss of ten thousand dollars additional, if the debts were sufficient to require the entire liability to be paid. The new Constitution of Missouri provides: " Dues from private corporations shall be secured by such means as may be prescribed by law, but in no cose shall any stockholder be individually liable in any amount over or above the amounts of stock owned by him or her." The Nevada Constitution has this : " Dues from corporations shall be secured by such means as may be prescribed by law; provided, that corporators, in coiporations formed under the laws of this State, shall not be individually liable for the debts or liabilities of such corporation." So in Ohio: " Dues from corporations shall be secured by such individual liabili- ties of the stockholders, and other means as may be prescribed by law, but in all cases each stockholder shall be liable, over and above the stock by him or her owned and any amount unpaid thereon, to a further sum at least equal in amount to such stock." The Oregon Constitution provides: "The stockholders of all corporations and joint stock compani^ shall be liable for the indebtedness of said corporation to the amount of their stock subscribed and unpaid and no more." These Are all the specific provisions I have been able to find; but in man^ of the State Constitutions there are general provisiena authorizing liabilities of corporations to be secured as may be pre- scribed bv law; but I have been unable to find another one like that contained in the Constitution of this S^te, which makes stockholders liable for the debts of corporations to on unlimited amount. The effect of this, as has been remarked, is to discriminate against our own citizens and in favor of foreign corporations doing business in this State. A corporation — an insurance company for instance — of another State where there may be no personal liability beyond the amount of stock paid or subscribed, may do business in t&is State, or our people may go to their office elsewhere and effect insurance. Will our capitalists invest their money to establish insurance companies here, with unlimited per- sonal liability, when they can take stock in a New York or English company without this liability? The personal liability clause gives no advantege to the home over tne foreign company. The rates of insur- ance for the home company is no higher in consequence of this unlimited personal liability, and yet in the event of a great conflagra- tion it might ruin every stockholder connected with it. Prudent men may be willing to lose the amount of their stock, or double that amount, but not to risk the loss of their entire fortunes. The general result will be only irresponsible persons will be willing to hold stock in insurance companies of this State. For these reasons it is well understood that many persons have declined to have any connection with our home insurance companies, and in many instances irresponsible men establish and hold the stock in such companies in this State. If such be the result, how is California or her citizens benefited? Does it make our State any richer by drawing capital to us, or poorer by driving it from us? Does it give any advantage to the home over the foreign companies of Germany, England, or the Eastern States? Does it increase or lower the rates of insurance? These are questions that address themselves to us for our consideration in the performance of the great work in which we are engaged. I have examined the new Constitution of the great State of Pennsylvania and the Constitution of the greot State of New York, containing the two great oommercial and manufacturing cities of the Union, but in them we find nothing similar to this proposed unlimited personal liability provision. To adopt such a provision will be unwise, against public policy and the interests of our people. I hope the proposition will be rejected. SPEKCH OF MB. BOWABD. Mb. HOWARD, of Loe Angeles. Mr. Chairman : I am opposed to the amendment ofiered by the gentleman from Alameda, Mr. Webster, because, in my opinion, it is neither one thing nor the other. I voted for this provision of the Committee on Corporations, because it was the provision of the old Constitution and had received a great deal of judi- cial interpretation. I contend that it. tends to make corporations dishonest, because men subscribe — perhaps men of capital — but if they see that the business of the corporation is not going to be prosperous, they sell out their stock, and the creditor of the corporation has no per- manency to look to. Now, if the gentleman would move that no corpo- ration should do business until all its stock was paid up, and that he should not be liable beyond the paid-up stock, I think I should be inclined to vote for it, because that would be returning to the ancient English principles of corporations. I am also opposed to the amendment ofTered by my friend from Ala- meda, because it is neither one thing nor the other. I disagree with the proposition that corporations are necessary. I hold, on the con- trary, that limited partnerships are altogether -sufficient. Now^ if^le 386 DEBATES AND PROCEEDINGS Tuesday, eentleman had moTed an amendment to that effect, I certainly should have supported the motion. As it is, everybody knows that there is no responsioility, and- can be none, in corporations. There is no fund to looK to as it is, and no responsibility of the corporator. It was well said by Mr. Burnett, in a letter published by him some time ago, that indi- vidual enterprise was destroyed by the godless corporations, and it was time it should be corrected. Now, what do we«ee here? That there is scarcely any business in the community that is not engrossed by corpo- rations— ^and by irresponsible corporations in the main jmrt. Why, what is the report of the Secretary of State the other day? That we have in this State over twenty thousand corporations ; and they embrace and cover eVery substantial business of the community, from the manu- facture of soap to the operating of railroads and the holding and cultiva- tion of the land. There is a corporation that, I think, originally held one hundred leagues of land. Now that is an abuse; that is an evil; and I am for going back to the old rule, that a man who subscribes to the capital stocK of a corporation shall put his money in aud be responsi- ble to that extent ; and when that is lost, he shall not be pursued fur- ther. But I am in favor of abolishing corporations altogether, and substituting limited partnerships. It must be apparent that the present rule has no ancestry to stand upon, and is at varisnce with the ancient common law procedure. As well stated by the Chairman of the Judi- ciary Committee, it is a discrimination against the corporations which are located here. The amendment ought not to prevail. sPKEca or UK. bkibihotok. Ma. IIERRINGTON. Mr. Chairman: I was not impressed with the proposition of the gentleman from Alameda, Mr. Webster, when it was first offcr^. I thought the section, as it was presented, was in better shape than the one he proposed to substitute for it. But, sir, the argu- ments have convinced me — the arguments in the negative, the argu- ments of the gentlemen who are opposed to this amendment — have convinced me that this amendment is better than I had supposed upon casual inspection, and I now think it ought to be adopted. Not fur the reason that the gentlemen who are defending that side of the question htkve opposed it, but because it seems to me that the argument against it is based upon a fallacious proposition. The idea advanced is that this is a discrimination in favor of foreign capital, and against home capital. Nov, let us see if that is so. Is it a fact that the greater security you S've to people who deal with corporations, tlie more you discriminate in vor 01 foreign capital? Is that soT Will the people deal where they have the least security, or will they deal where they have the best secu- rity? That is the proposition.* Now, 1 have always observed that where yon give the people ample security, there is the place where they are liable to trade. There is the place where they are most apt to place confidence. Now, if the foreign capitalists do not furnish some kind of security — ^that kind of safe security which will alTect business all around — ^they are not the persons with whom business will be trans- acted by the people. But there is another thing that should, in my opinion, be considered in connection with this question. It is the fact, Mr. Chairman, that this legislation is rather in favor of the people than of the corporations. It will be observed that this provision is somewhat more stringent than provisions that are usually embodied in the Codes and Constitution with reference to their liabilities. I say the foundation upon which the argu- ments on the other side have been based is fallacious, and I shall proceed to show why.- I say that the bare fact that we give to the people greater security is no argument that it is a discrimination in favor of foreign corporations agaiust home coritoretions. Let us admit for the moment that the home corporations will not be in condition to swindle the people to as great an extent as the foreign corporations. When corporations lose, it is not the corporations upon whom the loss generally falls. The parties whom their representations have convinced are the ones who lose the money, and not the corporators, and it is the people who lose money for whom we come hero to legislate, and not the home corpora- tions or the foreign corjmratious. Not agaiust foreign corporations or in their favor; not against home corporations or in their favor; but for the protection of the people. I say the principle upon which legislation should staud is the interest of the whole people, and not simply the moneyed corporations. Now, let it rest upon that basis, and not upon the proposition of discrimination between home and foreign corporations, and in that view of the case the stringency of the provision cannot be too great. We cannot be too secure; we cannot make these gentlemen furnish us with too much security. I appeal to the report which has been furnished us by the Secretary of State if the nineteen thousand corporations in this State do not bear testimony that the provisions are none too stringent. There need be no fear of driving out corporations. The proposed provision is not so severe as to render them any less secure ; not so severe as to drive them out of business. But we have a right and it is our duty to give the people who deal with them a little security, and this is not at the expense of corporations who do a legiti- mate business. I am going to vote for the amendment. Mr. smith, of Fourth District. Mr. Chairman : I offer an amend- ment. • The SECRETARY read: " Each stockholder or member of any corporation shall be individually and personally liable for such pro|x)rtion of all its debts and liabilities OS the amount of stock or shares owned by him in such corporation bears to the whole subscribed capital stock or shares of the corporation." Thk CHAIRMAN. The question is on the amendment. 8FKKCH OF MB. SMITH. Mr. smith, of Fourth District. Mr. Chairman : I would not under- take to enlighten the able and distinguished gentlemen who have pre- ceded my argument on this question. They are certainly men of long experience and great ability, and have brought able arguments to bear on this subject ; but, sir, there are mattersoonnected with this subject that force me to dissent from many of the opinions expressed here ; and it seems to me that the public opinion expressed on this matter hu something to do with tuis matter. Now, I believe it was Eeoeralijr understood that this clause in the Constitution was intendaf to fix > proportional liability against the persons holding an interest in corpora- tions. As a proof that this was the intent, I cite you to the Supreme Court, which ha* expressed that opinion in the case of French vs. Teschemacher et al., in the 24th of Cal., &18, to the effect that the con- stitutional provision does not mean what it purports to me&. In other words, that that certain proportion is not fixed in the Constitation. I will read that decision : " Section thirty-six, of article four, of the Constitution, relating to the liability of stockholders of corporations for corporate debts, is not aelf- cxecuting, nor does it contain within its own terms a rule of condact broad enough to embrace and definitely settle every question that nu* arise touching the individual aud personal liability which it impotti upon the stockholders." Now, the institution does not say what that proportion shsll be - that is left entirely to the Legislature. And what has the Legislature done ? Attempted to fix it, and have fixed the rate, and I have put ibe rate in my amendment. I have simply incorporated this becaiue I believe that the people of this State, free to act in this matter, have expressed themselves, and have had experience in this matter of per- sonal liability. As to the discrimination against Californians, I don't know bow that may be. I believe it is provided otherwise in other places— whether in the Constitution or not, I do not know now — requiring foreign corpora- tions to invest certain sums of money in the State as security ; and if this is not sufficient, it seems to me that it should be made sufficient, so as to place the foreign corporations on the same footing with home corpora- tions. I shall be glad to see a proposition that will cure this matter. I am open to conviction in this matter. If the law is as it is now, let us have some remedy, but I do not understand that the aim of this section is to remedy that matter. I have simply incorporated the statute upon this subject, and fixed the liability as it was understood to be fixed, but it seems was not fixed, in the Constitution. Thk CHAIRMAN. The question is on the amendment to the amend- ment, oflered by the gentleman from Kern, Mr. Smith. RRMAKKS or MR. WKBSTRK. Mb. WEBSTER. Mr. Chairman: There is one omission— and lo far as I have observed, the amendments are very similar — but there it one omission in the amendment of the gentleman, and that is the provision, "contracted or incurred during the time he was a stockholder." That is part of the Code as it stands to-day. His, I believe, does not con- tain that. That is evidently a very important clause, aud I followed the Code exactly in its construction, or rather, the decision of the Supreme Court — this section was based on that, and I have followed it very closely. As the law stands now, it is exactly the same. I will read it again : " Each stockholder of a corporation or joint stock association shall be individually and personally liable for such proportion of all its debts and liabilities, contracted or incurred "during the time he tons a MoekhoUtr, as the amount of stock or shores owned by him bears to the whole of the subscribed capital sto<'k, or shares of the corporation or association: and also for a further sum, at least equal in amount to the par value of his stock, any contract or agreement to the contrary notwithstanding." A part of this is the law as it stands to-day, and if we propose to change it, it seems to me we cannot do better than to adopt this amendment. I cannot conceive how there can be any reasonable objection to the first part of the section. Mb. smith. I withdraw my amendment with that explanation. Thb CHAIRMAN. The gentleman withdraws his amendment. Mr. FREEMAN. Mr. Chairman: I would like to have the amend- ment read as it now stands. Thr CHAI RMAN. The question is now on the amendment proposed by the gentleman from Alameda, Mr. Webster. RKMAKKS or MR. R8TBE. Mb. ESTEE. Mr. Chairman: I rise for the purpose of asking for • division of the question. The first part of the proposition : " Each stockholder of a corporation or joint-stock association shall he individually and personally liable for such proportion of all itsdeblsaod liabilities, contracted or incurred during the time he was a stockholder, OS the amount of stock or shares owned by him bears to the whole of the subscribed capital stock, or shares of the corporation or association." That is one projxwition. Then the second part as follows : " And »1*> f»r a further sum, at least equal in amount to the par value of his stock, anr contract or agreement to the contrary notwithstanding." 1 wish to state here that the gentleman from Alameda, Mr. Webster, signed the report of the committee with the express understanding that he should present this proposition to the Convention for its consideration. I state that. because nis name appears upon the report. He presented this amend- ment in the committee, but the majority of the committee didn't agree with him. I now ask for a division of the question. SFRRCH or MB. CROSS. Mr. CROSS. Mr. Chairman : This question of corporations is one of special interest to the portion of the State which I have the honor to represent, and while it is of special interest to that particnlar portion of the State, it is also of interest to all portions of the State. I am ipesli- ing now especially with reference to corporations, as connected with mining enterprises. Now, sir, I realize the marked ability and infioenoe of the gentleman from San Francisco, Mr. Wilson ; but still, sir, I sb*" not hesitate to attempt to answer one or two propositions which be hii Digitized by wo 1 t^ Nov. 12, 1878. OF THE CONSTITUTIONAL CONVENTION. 387 brought forward. In the first place, one of the propositions he states is this: that is, that corporations, or the stockholders in corporations, should be relie\ed from all individual responsibility. With this I can- not agree. Twenty men, or one hundred men, associate themselves together for the transaction of business in the shape of a corporation. They associate themselves for one purpose. Not for the public good, as might be supposed, but for the individual benefit and for the profit which they can make by it. If the corporation makes money, is suc- cessful, the profits are divided. But if it does not succeed — if there is a loss — then the corporators want to sit down in their offices and be relieved of all responsibility. Now, as I understand the amendment of the gentleman, it does not propose that there shall be an unlimited responsibility, but a responsi- bility to this extent : that if I own one share, and the par value is one hundred dollars, in any corporation, in case that corporation fails, or does not fail, I am responsible to the amount of one hundred dollars. Responsible to this extent, that if the stock is not paid up in full, I am still to be required to make it good, and also to pay one hundred dollars. Now, the arguments which he finds from the State of New York, and which Judge Hager also finds, are something like this: that we ought to enact similar provisions. Allow me to say that the State of New York has a provision letter for letter like the provision here reported by the committee, and in that State they then go further, and when a cor- poration is organized the stock is paid up in full, and then the corpora- tion has some actual stock upon which to work, and represents some responsibility ; while here corporations are formed without any paid up capital whatever, in a large number of cases ; and if, now, there is no individual responsibility, then there is nothing tangible to look to. Now, the next proposition is, that if we make corporations liable, it will drive business into the hands of foreign corporations, and discrim- inate against our home companies. I believe, on the contrary, that if we make individual stockholders liable to some reasonable extent— I am not in favor of any unreasonable requirement — we will by that means, instead of drivifag business away, draw business to us. I will instance a case : Suppose all the corporations iq the State had responsible names as stockholders and incorporators. Suppose it was generally understood that these individuals were responsible for the debts of the corporation ; then, sir, a man wants an insurance, he will not go to the foreign corpo- ration, but he will go to a home insurance company, because he is not merely benefiting the home corporation; but he knows that somebody is responsible, and that his money is securely invested. I think the direct result of this will be that the home corporations will have an increased business. Men would much rather patronize them, if the security is good. And all this talk about foreign corporations taking money out of the State. Why, these corporations are organized under laws that require the strictest responsibility — the strictest responsibility on the part of the corporations. Why is it that these foreign insurance men take so much money out of the State? Exactly on account of the individual responsibility of the corporations in that country. The responsibility of the Anglo-Californian Bank is recognized over the whole Stale, and because of the responsibility attached to it. Now, there is another argument in favor of this amendment, and a very strong one, and that is this : that as long as there is no individual responsibility on the part of the stockholders, there is no individual interest on the part of the stockholders. As long as there is no individ- ual interest on the part of the stockholders it is not strange that such mistakes have been made in the management of corporations as was the case with Duncan's bank,and kindred associations. It iseasy to account for. For instance, some wealthy gentlemen on this floor have an inter- est in a corporation which is not )>aying a profit, and there is no such thing as individual responsibility; they would feel very much like letting it go to the dogs, and never looking into it again. But let it be understood by each stockholder that ho\ is individually and personally liable to some reasonable extent, and then, sir, every stockholder will keep an eye on the business and management of the corporation, and will be interested in it to that extent; and then they will take pains to have an honest President, and honest agents, and honest business man- agers, because upon these things will depend, not merely the profits they will make, but the losses they may be compelled to stand. If this be discrimination against domestic corporations, and in favor of foreign corporations, it seems to me it is a wise discrimination. If an^ other State in this Union allows corporations to be formed without rating the capital stock as money, and then relieves the stockholders of all individ- ual responsibility, I have no wish to copy from their laws. The State of California deserves a lietter basis for the operations uf corporations. Another objection urged by the gentleman from San Francisco, Mr. Wilson, is this: that a man should be allowed to make whatever kind of an agreement or contract he chooses. Now the law does guard a man aeainst making improper contracts in certain cases. For instance, if Mr. Wilson should agree to pay ten thousand dollars to a man to murder another, you cannot compel him to pay the money. The law does exer- cise a guardianship over the contracts a man shall make. And it is specially necessary to have this guardianship in the case of corporations, and the reason for it is seen in a case like this: A man takes a policy of insurance — insurance seems to cut a prominent figure here in this dis- cusaion — he takes a policy, and in that policy are many conditions, and it is subject to all these conditions, and one of the conditions which many of these policies contain is this: that there is no individual responsibility on the part of the stockholders in that insurance company. Now, sir, I believe that we should have in this State a provision making the corporations responsible in some limited decree, to some reasonable extent, and there should also be some protection to a man who deals with these corporations, and he should not be compelled to read a lot of fine print in order to find out what the conditions are; the contract ■hovld be simple and plain. It is reasonable that these corporations siiouid be responsible, and that the corporation stockholders should be individually responsible to a reasonable extent. And it is equally reasonable that tney shall not be permitted to shirk that responsibility. Now, as to this matter of there }>eing different provisions m different State Constitutions. In some Constitutions the provision is that the corporate stock must be paid in full, either at the time the stock is issued, or at some brief period afterwards. Now, in such cases, this stock, or capital actually paid in, is some guarantee, for this reason : that when a man has paid in one hundred dollars, or one thousand dollars, or ten thousand dollars, into the business, and paid up his capital stock, then he is interested inthewelfareof that corporation to the extent of the money he has invested. In this State, where corporations are formed with no rule requiring them to pay up their capital stock, a man has no interest in it unless lie is in some way liable for the debts of the corporation. Now men in this State bind themselves together into a corporation by which they inaugurate enterprises which employ laborers; they buy supplies and go into the towns to make sometning without investing a dollar, with no chance of losing anything individually, and it seems to me that this state of things demands some change, and some change for the better too. And if we are to make a change in this respect let us not make it worse. In our mining counties, corporations that are organized in San Fraucisco send their agents to the milling regions and undertake to develop a mine, employ filly or a hundred men to work, and if the mine pays the men get their wages; and if the mine does not pay, why they will have to go down to San Francisco and hunt up tlio stock- holders, and when they find them they will be told that they are not responsible individually. I think the amendment will efi°ectually put a stop to these abuses. It will not hinder corporations that are organized on an honest basis, nor will it in any way retard the development of our great industries. SPKICCH or MR. WILSON. Mb. WILSON, of First District. Mr. Chairman : The proposition of the gentleman from Nevada is entirely different from the proposition before the committee. The proposition now before the committee does not contemplate making the capital stock alone responsible for the debts of the corporation. It does not contemplate making the corporation itself alone responsible ; it docs not contemplate making any corpora- tion assets alone responsible, as implied by Mr. Cross ; and, therefore, the argument of the gentleman is inapplicable and falls to the ground. Mk. CROSS. That is the venr reason why there should be individual responsibility; that is the way I figure it. Mb. WILSON. Mr. Cross takes as an example of the irresponsibility of stockholders, the ease of a mining corporation that employs labor and develops a mine. If the enterprise is successflil the laborers receive pay for their labor; if not, they receive nothing, because they cannot find a responsible stockholder. Then the gentleman proposes to follow up these stockholders, that are not worth a dollar, and legally proclaim them more responsible than they are in fact. Is that safe reasoning or sound logic? Mb. cross. They are irresponsible because the law makes them so. Mb. WILSON. The gentleman proposes to follow up these stock- holders and increase the individual liability of the stockholders that are not worth a cent. We do not make them any more responsible by this kind of legislation, nor do we make them any easier to find. Yet that is the gentleman's argument. The proposition is this : Where a corpo- ration has no capital stock (proceeding on the basis that all of its stock- holders wetp thoroughly responsible men, because it is absurd lo make men responsible who are not, in fact, responsible), the question then is, how far should the individual stockholder oe made liable. There has been considerable discussion about corporations where the stock is not paid up in full. In the first place, our laws are more stringent than the laws of any other State in the Union on that subject. There is no State in the Union where the law is any more strict in relation to paying up the capital stock of a corporation than ours. Many of them cannot commence business until a certain percentage is paid up. That is a mere question of legislation, with which we have nothing to do in the Constitution. The theory upon which a corporation is built, is that all the stockholders are compelled to pay up in full. If they do not, it is the fault of the Legislature in not requiring them to do so. Now, when the corporation has its capital stock paid up in full, how far should the stockholders be individually liable beyond the full paid capital stock? If the capital stock is not paid up in full, then, as I said before, it is the com- mon law of the land that the subscribed amount is in itself a fund in favor of all the creditors, and every stockholder can be compelled to forthwith pay up his original subscription. That is the law, and under the law of corporations it never has been departed from, and never will bo. If the stockholders refuse, they can be compelled forthwith to pay up, independent of the Constitution, and independent of any question of individual liability, because that is the original contract of the stock- holder, and that is the fund belonging, beyond question, to the creditors. We are now discussing a case of that character where the stockholders hare paid up in full. How far shall they be individually liable over and above the amount of their subscription, where the original subscrip- tion, paid up, is lost? The stockholder has lost all the money which ne paid m originally, and the question arises how far shall the creditor pursue him in order to recover the amount which the corporation is indebted to him? I say when he has lost all the money he put in origi- nally, that is going far enough. The amendment, however, proposes to make him liable to pay two, three, or four times. The amendment of the gentleman, of course, must proceed upon the assumption that the corpo- ration has a full paid up capital stock. The stockholder is liable in pro- portion to his capital stock paid up in full. But the amendment does not stop there. He is made liable, also, in a further sum proportioned to the amount of his stock. Then he is taxed three times. I do not intend to go over the whole ground again, but simply present this view to the Convention, that the whole question here is, how far shall the stockholder be liable, upoa the assumption that the original subscrip- 388 DEBATES AND PROCEEDINGS Tuesday, tion to the capital stock has been paid up, which he is compelled to pay, as I haTe shown — how far shall he be liable, I say, beyona the amouut paid up by him? I say the old Constitution goes far enough in that ■ respect. SPIKCa or MB. O'DOKMKLL. Mr. O'DONNELL. Mr. Chairman : I am in faror of the amend- ment of Mr. Webster. I think it is an amendment that ought to be adopted. It reads like this : " Each stockholder of a corporation or joint stock association shall be individually and personally liable for such proportion of all its debts and liabilities, contracted or incurred during the time he was a stock- holder, as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock or shares of the corporation or association; and also for a further sum, at least equal in amount to the par value of his stock, any contract or agreement to the contrary not- withstanding." That is the amendment. I am in favorof that amendment. It makes corporations strong. It gives capital more encouragement to invest in corporations. As my friend said, the California Bank would never have resumed business if it was not for this individual responsibility. Now a corporation is defined by Webster to be a body politic, formed and authorized by law to act as a single person ; but the true definition of corporations in this State is something like this: "A corrupt combina- tion of individuals formed together for the purpose of escaping indi- vidual responsibility for their acts." [Applause.] Corporations have committed with impunity crimes for which an individual would be sent to the State Prison for life. You all know that to he a fact. [Applause.] Mr. Chairman, I am in favor of this amendment, and I believe every honest mam in this hall is in favor of it. [Applause and laughter.] SPKECR or UK. SRArrlR. Mb. SHAFTER. Mr.' Chairman : There are two considerations that should affect the solution of this question. 1 do not suppose that the gentlemen will pretend that this Constitution will make any difference with contracts existing at the time the Constitution goes into force. No Constitution can impair the obligation of a contract existing at the time the Constitution goes into force. These will remain as thev are. Now much of the experience of this world has fallen to me, and my experi- ence convinces me of the correctness of the views expressed by the gen- tleman from San Francisco, that a sound policy recjuires the entire obliteration of that section of the report of the Committee on Corpora- tions. I think the liability of stockholders should be entirely wiped out I do not believe it can do any practical good to deal with the subject in this manner. I do not believe it will be of any practical benefit to the people who deal with corporations. It is simply a delusion. It is said that the law exerect to the gentleman from Placer, I think he is wrong. Rule Thirty-two provides as follows : " A suMtitute shall be deemed an amendment, and be treated in all respects as suob." Digitized by Google I hi I a-m Nov. 12, 1878. OF THE CONSTITUTIONAL CONVENTION. 389 That disposes of the matter. It was subject to amendment while it was before the committee, but when it was adopted as an amendment, that was the end of it. Me. EDGERTON. Mr. Chairman : I shall sustain the decision of the Chair for the reason suggested, that a substitute is nothing more nor less than an amendment to the proposition before the Convention. Now, sir, when this house passes judgment upon an amendment and adopts it, if we can then go on and add amendment after amendment, where are we going to stop? It seems very plain to me that the ruling is correct. I would suggest to the gentleman from San Francisco, in order to give him an opportunity, if the house should go against him, that he can move a reconsideration of the vote by which the substitute was adopted. Me. terry. The vote was taken on the first part and then on the latter clause. M». McCALLUM. Mr. Chairman: I submit that for the very reason that we have no substitutes, that the decision of the Chair cannot be sus- tained. "A substitute shall be deemed an amendment, and be treated in all respects as such." When an amendment has been adopted, what is the reason another amendment cannot be offered? Mb. EDGERTON. The reason why it is inadmissible is this: that the amendment has already been adopted. If he had offered his amend- ment before it was adopted, it would have been in order. Mr. McCALLUM. Not necessarily, because it does not yet appear what the amendment is. It may be an amendment to the original report of the committee, and yet not necessarilv connected with the prop- osition of my colleague which has been voted upon. It may be a mat- ter treating upon the matter in the amendment of my colleague. We can't tell till we know what it is. Mr. B.\RB0UR. The gentleman from Sacramento is extremely kind in offering to show me a way out of this difficulty. I shall not take that course. I propose, if I know myself, to be treated as the other members on this floor are treated, or have it decided at once that I have no such rights on the floor of this Convention. I have sat here, sir, day after day, aud heard the President call for more amendments — ask if there were any more amendments— before passing to another section. I have followed' the usual course in offering this amendment. This is the first lime I have ever seen a section passed without giving members a chance to amend it. The circumstance that there was only one amendment does not affect my right. There was no opportunity to offer my amendment, because the gentleman offered an amendment, and the amendment was dividol, and the Chair was not entitled to pass to the next section until he had called for more amendments, in order to per- mit the Committee of the Whole to perfect the section. Me. I^YNOLDS. Mr. Chairman : I desire to state another reason why the decision of the Chair should not be sustained, and that is this: When the substitute to section three was pending, and before any action was taken upon it by the committee, it was never possible for the gentle- man from San Francisco, or any other member, to know whether he desired to amend the section or substitute or not. And it is rendered all the moro plain from the fact that just upon the vote being taken the author of the substitute called for a division of the question, and so it happened that a portion pf it was adopted and a portion rejected. Now, under these circumstances, how was it possible for any gentleman to know before there was any action taken by the committee whether he desired to offer an amendment or not. That is an overwhelming reason whv the amendment should be in order. Mb. HAGER. Mr. Chairman : Technically I think the Chair is right. After an amendment is once adopted you cannot then amend that. Now the confusion here over this matter has risen out of our peculiar rule. We have a rule requiring that a substitute shall be deemed an amendment and treated in all respects as such. I regret, sir, that this rule was ever passed. Ordinarily and generally in legislative bodies, if a substitute should be adopted it takes the place of the original proposi- tion, and that the substitute is open to amendment the same as the original section would have been. But here a substitute is an amend- ment, and you cannot amend an amendment after it has been adopted. Now I forget just in what manner this amendment came up. If I recol- lect right, the mover introduced the proiKisition that each stockholder should be individually and personally liable, etc., and the question was divided. Now let me look at the authority on this. His amendment should have been a motion to strike out and insert, or a motion to odd, or a motion to strike out, before the substitute was put to a vote. The Chair is right. The rule is this: " Whatever is agreed to by the house, either adopting or rejecting a proposed amendment, cannot afterwards be altered or amended. Thus, if a proposition consists of A B, and it is moved to insert C, if the amendment prevails C cannot be afterwards amended, because it has been agreed to in that form, and so if it is moved to leave out B and the amendment is rejected, B cannot afterwards be amended, because a vote against leaving it out is equivalent to a vote agreeing to it as it stands." Now, in this case, the amendment was called a substitute, to strike out the section and insert what has been adopted. Therefore, it is a vote of the house. You have passed upon it. Now, to go back and revise that leaves us moving in a circle, and we would never oome to a con- clusion. But, hereafter, when we come into open Convention the amendment can be considered. Mr. BEERSTECIIER. Mr. Chairman : This is not a matter where the justice or injustice to the gentleman offering the amendment is to be passed upon. It seems to me that the gentleman should be allowed to present his amendment as a matter of justice. But at the same time, as a matter of law, as a matter of parliamentary law, adopted and established, I shall be obliged to sustain the decision of the Chair, because I think the Chair is correct in his ruling. I call attention to tectioii one hundred and twenty-six, Cushing's Manual, and also to Rule Thirty-two, which says that a substitute'^shall be deemed an amendment, and be treated in all respects as such. It declares a sub- stitute to be an amendment, and the substitute offered by the gentleman from Alameda, Mr. Webster, was an amendment to strike out and insert. The amendment of the gentleman from San Francisco, Mr. Barbour, should have been a motion to insert, a motion to strike out, or a motion to strike out and insert, before the vote was taken on the sub- stitute. I am obliged in this matter to vole to sustain the decision of the Chair. Mb. west. Mr. Chairman: I believe it is universally conceded, according to all parliamentary rules, that a substitute takes the place of the one under consideration. That the substitute may be considered separately, may be added to, may be amended by striking out and inserting, or in other words the friends of the substitute may proceed to perfect it before there is a vote taken upon it. Now, the gentleman from Alameda, Mr. Webster, presented an amendment under our rule. Section three was amended by the propositions of the gentleman from Alameda, Mr. Webster. Part of his amendment was rejected, which left section three before the Convention to add other amendments, and there was no limit to the power of the Convention to amend that sec- tion until they passed from the consideration of the section. I think the Chair is in error, and that the amendment ought to be entertained. Mb. TINNIN. Mr. Chairman: It seems to me that many of the delegates here have formed a wrong conception of this matter. Now, it is evident that the presiding officer in a place of this kind is placed in a very peculiar position. Now, as far as this matter is concerned the house has adopted an amendment, or substitute, offered by the gentle- man from Alameda, Mr. Webster, completing the Act as far as the house is concerned. Il had done all the act it was possible for. it to do — completed it— and the Chair was compelled, under the rules we have adopted, to sustain that idea, and rule as he did rule. And conse- quently Ine proposed amendment offered by the gentleman from S«n Francisco was out of order, and could not be entertained by the Chair. I take it that the Chair is right, and I shall sustain him in his (woition. Mr. ANDREWS. Mr. Chairman: To a certain extent I agree with the gentleman from Trinity. The act of the committee is complete ss far as we have gone. That amendment cannot be diminished, cannot be changed, but it can be added to and perfected. Any other rule would seem to me to be contrary to. reason. We could not, under such a rule, perfect our work. Wo cannot change or alter that which has been Eulopted, but we can add to it, and that is the rule of all parlia- mentary law. Mb. ESTEE. Mr. Chairman: I move that the committee rise, report progress, and ask leave to sit again. Me. TERRY. I give notice that to-morrow I will move to reconsider the vote by which this substitute was adopted. The CH.^IRMAN. The motion is, that the committee rise, report progress, and ask leave to sit again. . l)ost. Mb. JONES. Mr. Chairman : I wish to ask a question. The amend- ment offered by Mr. Webster was offered fo the Convention, and, before the vote, a demand was made for a division of the question. Upon that demand the question was divided, and the first part was adopted [Cries of " Question ;" " question."] If I am wearying the members of this Convention, it will be the first time in a great many days. I am asking for information, and that is a right conceded to every member on the floor. I ask this question : When the question was divided, and the first part adopted, is not the vote upon the second part next in order; or, is it not? Then an amend- ment can be offered, and is next in order. Then, upon the rejection or adoption of the second branch, all amendments are cut off. I don't undertake to s^ whether it is or not. I ask for information. Mb. BARBOUR. Mr. Chairman : I rise for thepurpose of explaining what the proposition was which I wished to offer. The amendment was, to insert, at the end of the section, a provision making bank directors responsible. I could not offer it before, because, until the other matter was disposed of, I was not able to tell whether I wanted it in the middle or at the end, or whether I wanted il at all. That is exactly the position in which it was put. Now, if that ruling is right, all a man has got to do is to move a thing which he calls a substitute, and have some man call for a division of the question, and the Convention will be tied up. I don't so understand parliamentary law at all. But, to ease the conscience of the gentleman from San Francisco, Mr. Beer- stecher, I have stated what the purpose of the omendment was, and I hope he will help get the thieving directors of savings banks out of it. [Applause.] Mb. ES'TEE. Mr. Chairman: The gentleman will have no trouble in getting his amendment in in good time. This whole question was discussed when the rules were adopted, and the reason for the rule is this: that when an amendment is adopted, another amendment cannot be considered which will change the judgment of the house, because in that case there would qever he an end. I think from what I heard of it that it would be a good provision. Mb. HOWARD. Mr. Chairman : I would like to inquire, after we have gone through with the section, if it would notjie in order for the gentleman to offer it as an idependcnt section? Me. CH.IIRMAN. Yes, sir. Mb. LARKIN. I move the committee rise. ["No;" "no;"- "no."] . The CHAIRMAN. The Chair will state the ground on which he makes the decision. It is a matter of no importance to the Chair. He desires to decide alwavs in accordance with wnat he understands the law to be. He desires to cio justice to every gentleman upon the floor. By the general parliamenttu-y law, when a substitute is offered, the friends of the original measure are at liberty to perfect it by amendment, and get it precisely in the shape they desire, before any vote can be taken 390 DEBATES AND PROCEEDINGS Wednesday, upon it. Then the qnestion comes on the substitute. Its friends nuiy then amend it and ^et it into proper shape, and then the question comes on it. If it passes, it takes the place of toe original measure and cannot be further amended. Now, this Convention has adopted a rule treating a substitute as an amendment. But it is still a substitute, and when offered, as it was in this case, by way of a substitute,^ it is an amendment to the entire section, and was open to amendment to any extent, and on any branch of it. It was discussed, but no amendment was offered. The gentleman called for a division of the question. It was divided, and the two propositions disposed of, one after the other. One was adopted and tne other rejected. Then the amendment being adopted took the place of the original section, and was no longer capable of amendment. That is the universal proceeding in parliamentary bodies. The question is, Shall the decision of the Chair stand as the judgment of the committee? Division being called for, the Chair was sustained — ayes, 82 ; noes, i3. Mb. ESTEE. I move that the committee rise, report progress, and ask leave to sit again. Mb. REYNOLDS. I desire to give notice that I am compelled to give before the committee rises Mr. terry. I have already |;iven notice. Mb. REYNOLDS. I give notice that I will, on to-morrow, move a reconiideratjon of the vote by which the substitute to section three was adopted. The CHAIRMAN. The motion is that the committee rise, report progress, and ask leave to sit again. Carried. IN CONVENTION. Tb« PRHaiDENT. Gentlemen, the Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee ou Corporations other than Municipal, have made progress therein, and ask leave to sit again. What is the pleasure of the Convention? AOJOCBNHKKT. Mr. van DYKE. ' Mr. President : I move that the Convention do now adjourn. Carried. And at five o'clock r. u., the Convention stood adjourned. FORTY-SEVENTH DAY. SicBiMiEKTO, Wednesday, November 13th, 1878. The Convention met in regular session at ten o'clock a. u. President Hoge in the chair. The roll was called, and members found in attendance as follows : O'Donnell, Ohieyer, O'Sullivan, Overton, Porter, Prouty, Pulliam, Reddy, Reed, Reynolds, Rhodes, Ringgold, Rol^ Schell, Schomp, Shafter, Shoemaker, Shurtleff, Smith, of Santa Clara, Smith, of 4th District, Smith, of San Francisco, Soule, Stedman, Steele, Stevenson, Strong, Stuart, Sweasey, Swenson, Swing, Terry, Thompson, Tinnin, Townsend, Tully, Turner, Tuttle, Vacquerel, Van Dyke, Van Voorhies, Walker, of Marin, Walker, of Tuolumne, Waters, Webster, Weller, Wellin, FBtSBNT. Andrews, Hale, Ayers, Hall, Barnes, Harrison, Barry, Harvey, Barton, Heiskell, Beerstecher, Herold, Belcher, Herrington, Bell, Hilborn, Black mer, Hitchcock, Boggs, Holmes, Boucher, Howard, Brown, Huestis, Burt, Hughey, Caples, Hunter, Casserly, Inman, Chapman, Johnson, Ohatjes, Jones, Condon, Joyce, Cowden,* Kelley, Cross, Keyes, Crouch, Kleine, Davis, Laine, Dean, Lampson, Dowling, Ijarkin, Doyle, Larue, Dudley, of San Joaquin, Lavigne, Dudley, of Solano, Lindow, Dunlap, Mansfield, Eagon, Martin, of Alameda, Edgerton, Martin, of Santa Cruz Estee, McCallum, Estey, McOomas, Evey, McConnelt, Farrell, McCoy, Fawcett, McFarland, Filchor, • McNutt, Finney, Miller, Freeman, Mills, Freud, Moffat, Garvey, Moreland, Glascock, Morse, Gorman, Murphy, Grace, Nason, Graves, Nelson, Gregg, Neunaber, Hager, Noel, West, Wickea, White, Barbour, Berry, Wilson, of Tehama, Wyatt, Wilson, of Ist District, Mr. President. Winana, ABSKMT. Biggs, Campbell, Kenny, Lewis. THR JOURNAL. Mk. CONDOK. I move that the reading of the Journal be dispensed with and the same approved. Carried. MKHOBtAL. Mr. estee presented the following memorial relative to equal and proportionate representation : To the OoTMtituUonftl ConTooUon of the Slate of Callfomli: The andenigned reipectfullr preaenU thli petition, reqaestlDg the eetabUsbmeiit of a morejufctf equal, proportional, nod ample system of repreeeDtatloii,aiid re^wct- fally npreeents: 1. That the preeent tj^vtem doe* not repreeent the vhole people. 2. That in Its practical operations it result* in fcrent injtutice and ineqnalitj. The OonatituUon, recognlKing eqiinlit/ mi the principle of ■pportlonmeot, reqairrs that representation sbKll be Apportioned lucording to popnliitiun (Sec. 14, Art. I), and that an enumeration of the inhabitants shall be taken, under the direction of tbe Legislature, every ten years, and this onnmention, with the national censot, shall serve aa the ImsU of reprenentatlun in both houees of the Legislature. The nunbfr of Anemblynien caonut be lees than thirty nor more than eighty (Sec. 29, Art IV.) The number of 8enatura not lees than one third nor more tlian one half of thf mem- bers of tlip Assembly. (Seo. 6, Art. IV.) The members of Aaeembly, aud one half the 8enatoni,are chosen bienninlly.at the same time and place*, and by the qualified electon of their respectivadistricU (Seca. 3, 6, and 6, Art. IV.) A plurality of toUs constitutes a choice (.Sec. 20, Art. II.) The Legislature preecribee eighty aa the oan. ber of Aasemblymon, and forty as the number of Senators, and divides the State into forty-eight Aaeembly Uistrictsandtwenty-nioe Senatorial OistrlcU. (Sututes 1874-5, page 36G, Act of March IG, 1874.) Thirty-two Aasembly Districts elect one Aseemblyman each. Pive Assembly districts elect two Assemblymen each. Six Assembly Dtatrtcts elect-three Assemblymen each. Five Aasembly Districts elect four Aatemblymeu each. • Klghteen Senatorial Districts choose one Senator each. Eleven Senatorial Districts choose two Senators each. Assembly Districts are composed of one or two eoonlles. Senatorial Diatricta ar* composed of one, two, three, lonr, or five counties. Senatorial IHetrlcts conriat of one, two, or three Aseembly Diatricta. One Senatorial District Is formed rfooe Assembly District and five Senatorial Districts, or of six Assembly Diatricta San Krancisou County is divided into five Senatorial Dtstricte, which are slw Asaemb'y Districts. Kach Senatorial DUtrict having two Senators, bienaially cbooeH one, except three districts, which quadrennially choose two each. Three Senatorial I iatricts return one Senator and one Assemblyman each. Nine Senatorial Districts return one Senator and two Aiuemblymen each. Six Senatorial Diatricta return one Senator and three Asaemb^ymen each your Senatorial Diatricta return two Senators and three Anemblymen earh. Six Senatorial DIatricts return two Senators and four Assemblymen each One Senatorinl Diatrict returns two Senaton and five Aasemblymon each. Four Ajsembly Districts return one Assemblyman and one Senator each. Two Aasembly Districts return two Aasemblyraen and one Senator each. Three Aasembly Districts return three Assemblymen and one Senator each. Three Assembly Districts return three Assemblymen and two Senators each. Five Assembly Districts return four Aaer mblymen and two Senators each. The Legislature Is a representative body. The puQineea It is intended to aeeoie- pliali ts to represent the whole people; to lodge tlie aovei^lgn power of the Slate in the representatives of the entire conntituency, so that the maH>rityof the people may govern. Let ua see to what extent our present syatem accomplishes these paippa«a. For convenience of illustration, lot us assume that there ar* one hundred ana one thousand vutera in the ^tatc: that the Legislature Is coropoeed of one hondrfd •ni one'members, eUcUd by tfu Slate at large; and tliat therb are twu poliilcal partlra. Kach party nnminatea one hundred and one representativea. The A party casta filtj' one tliouaand votes, and aecuros all the representatives. The B party ctsta fifty thousand votpa,aud isrxcliided from repres*»ntation. Fifty-one thtinsuid voters fasvf one hundred and one reprwcntAtivca. Fifty thonaand voters are disfranchised, and have not a single repn«entAtive. la thisjnst or equal? Is it proportional or naam- able? Voters should liave equal rights, equal advantagre, and eqnal reprteentslKMi In a representative govemmeut. The majority shonid receive all the represcntalires to which it is entitled. The minority should hare Its Just share. Here the ouslority are exclusively represented, 'the minority are denied the right of repn<«eststiou. The whole people are not represented. SufTrage Is not repreeentatlon. II ii tb* moans of representation. It Is sometimes urged that ^e succraaful candidate, ifl theory, repretients those who agree with and those who differ frvm htm In pellt' ical o[riniona. If there is some truth there is a great deal of falsehood io this theory, In all matters involving differencea of sentiments or desires, a sincere politieal snlag- onist does not and cannot represent his ]K>IIt:caI itdversaries. He rndesvon to Bwhl the legislation, control the policy, and direct the destinies of the State, in dinvt opposition to the views of his acverearips. In practical politics he does more. He seeks to exclude his opponents from ever again possessing a repreaentative voice, or' having a share or taking a pari in the government of their cmnmon country, ftctrt the nsoles) privilege, or rather burden, of casting ballots which count for notttin^. Political RQiagoniam, pariiaan animosity, and poriy intolerance are a sorry ntwtitB'B for true representation. The object of free government Is not to exclude electors ttom representatioo, bet to represent all. In this ir.staoce fifty-one thousand voten are entitled to fifty-one repreenntatives, and the fifty thousand voters to fifty represeotatlves. If tliat rew-t could bo accomplished, the Legislature would Justly and equally represent the entlfe conatitnenry. In the legialatlve honses, the majority of the people, by their representative*. ought to have tlte right of decision, the right to rule and govern, bnt ought not to have the exclusive and sole right of reproeontatlon. The right «f decirioD and the right if representation are distinct, and should not be confounded. The eiclmivi' representation of the niajorily, affurded by the illnstratlon, Is a violation of the pri- mary trutlis of republican government As one hundred and one ia the nombw^rf legislators, fifty-one poesess the right of decision; that is, a majority of the ou^rity of the people may exerclso the sovereign power of the State. A majority of the majority is commonly a minority of the people. Fifty-one repreeentaidves enact a law; fifty vote against it The fifty-one represent twenty-six thousand votera. The fifty represent twenty-five thousand voters, and fifty thousand voters are anreprr- seated. Thus, by their representatives, twenty-i«ix thousand votera, a mlBoriQr (^ the people, will wield the powere of Kovemraent and subvert the Ant priadplsi of democracy, which require that the minority of the State shall rule. TothsvalMi? of some legiaUtive acti, a tHo-tliirds vote is required by the Conatitnttoo; thtt !>» that the representatives of tiro thirds of the ppIe must assent. All these repre- sentativea only repreeent a trifle over one half of the people. The division of the Slate Into local subdivisions or districts to elect repr«sesCstiTM Is a better systsm thar to ole zi by the State at larg^ "I^ !> bsttsr, becaaae the Bdso^ Digitized by t5c (^ J Nov. 13, 1878. OF THE CONSTITUTIONAL CONVENTION. 391 llf or G. Legislature — Dem- ocrats, Senato, 9; House, 21; total, 30. Republicans, Senate, 0 ; House, 0; total, 0. Yesjio.yt. Governor's vote for 186.0 — Republican, 2.'i,586; percentage of total vote, 75.68. Democmtic, 8,8.'i7 ; percentage of total vote,24.29. Legislature— Republioins, Senate, 30; House, 213; total, 243. Democrats, Seuate, 0; House, 11 ; total, 11. * Maikk. Governor's vote for 1865 — Republican, 5,1,444; percentage of total vote, 63.20. Democntlc, 31,117; percentage of total vote, 36.80. Lrglsiature — Republi cans, Seiuite, 31 ; House, 136; total, 167. Democrats, Senate, 0; House, 15; total, 15. CoNNKrriccT. Govubiicans, Seuate, 21 ; House, 161; total, 182 Oemocrala, Senate, 0; Bouse, 76; total, 76. Uaixs. Governor's vote for 1866 — Republican, 69,626; percentage of total vote, 62.41. Democratic, 41,939; |Hircentage of tuUl vote, 37.59. Legislature— Republi- cans, Senate, 31; House, 138; hiUI, 169. Democrats, Sejiate, 0; House, 13; total,13. IklASSACHl'SKTTS. Governor's vote for 18GG — Republican, 91,980; percentage of total vote, 77.46. Democratic, 26,071; percentage of total vote,22.46. Legislature — Republlcanv, Seuate, 40 ; House, 229; total, 269. Democrats, Senate, 0; House, II; total, U. TiutoMT. Governor'svoteforlSOO— Republican,34,117; percentage of total vote, 75.13. Democratic, 11,292; percentage of total vote, 14.87. Legislature— Republi- cans, Senate, 30; House, 224; total, 254. Democrats, Senate, 0 ; House, 13; total,13. TutXEasEK, Governor's vote for 1867 — Kt^putiiican, 74,484 ; percentage of total vote, 76.76. Democratic, 22,548; percentage of total vote, 23.24. Lcgislattire — Republi- cans. Senate, 79; House, 2.'>; total 104. Drmocrats, Ser.ate,4; House,0; total, 4. VuuoNT. Governor's vote for 1808 — Republican, 42,615 ; percentage of total vote, 7:l.CU. Democratic. 15,280 ; percentage of total vote, 26.40. Legislature — Republi- cans, Senate, 30 ; House, 224; total, 2.'i4. Democi-nts, Senate, 0 ; House, 15; total, 15. Vebmost. Governor's vote for 1869 — Republican, 31 ,834 ; percentage of total vote, 73.54. Democratic, 11,455; percentage uf total vole, 26.04. Legislature — Republi- cans, Senate, 30; Uo>ise,211; total, 241. DeniucraU, Senate, 0 ; House, 14; total, 14. Maine, tiovernor's vote for 1872— Kepulillcan, 71,917; percttntage of total vote, 56 80. Democratic, 54,701; percentage uf total vote, 43.20. Legislature — Republi- cans, Senate, 30 ; House, 128 ; total, li'>8. Democrats, Senate, 0 ; House, 23 ; total, 23. VrcBMONT. Governor's vote for 1872 — Repnblican, 41,946; percentage of total vote, 71.63. Democratic, 16,613 ; percentage of total vote, 28 37. Legislature — Republi- cans, Senate, 30 ; House, 216- total, 246. Democrats, Senate, 0 ; lfon8e,32; total,32. Maine. Governor's vote for 1873 — Republican, 45,674; percentage of total vote, 58.56. Democratic, 32,316 ; percentage of total vote, 41.44. Legislature— Republi- cans, Senate, 30; House, 106; total, 136. Democmts, Senate, 0; Honse, 41; Inde- pendents, House, 3 ; Reformer*, House, 1 ; total, 45. Delawaec. Governor's vote for 1874 — Democmtic, 12,488; percentage of total vote, 52.58. Republican, 11,259; percentage of total vote, 47.42. Legislature — Dem- ocmts, Senate, 8 ; House, 21 ; total, 29 Republicans, Senate, 1; House, 0; total, 1. ' VsEXOXT. Governor's vote for 1876 — Republican, 41,723 ; percentageof total vote, e»M. Democntlc, 20,988; percentage of total vote, 31 94. Legislature, Republi- cans, Senate, 30 ; House, 205; total, '235. Democmts, Senate, 0; Houae,31; total, 31. .\l..iBA]aA. Governor's vote for 1S76— Democratic, 99,255; percentageof total vote, 64.10. Republican, 55.582; percentage of total vote, .35.90. Legialatnre — Demo- crats, Senate, 33 ; House, 80; total, 113 Republicans, Senate,0; Honse, 20; total,20. MASSACut'SETTS. Governor's vote for 1865--Republicau, 60,012 ; percentage of total vote, 76,57. Democratic, 21,245; percentage of total vote, 23.26. Legislature— RepnUlicans, Senate, 39; House, 221; total, '260. Democrats, Senate, 1; House, 19; toUl, 20. VKEanHT. Guvemor's vote for 1867— Repnblican, 31,694 ; percentage of total vote, tiSi. Democratic, 11,510 ; percentage of total vote, 26.63. Legislature— llepubli- cans. Senate, 20; House, 213; total, 242. Democrats, Senate, I ; House, 15; total, 16. Kansas. Governor's vote for 1808 — Republican, '29,79.5; percentage of total vote, 06.00. Democmtic, 13,809; percentage of total vote, 34.00. Legislature— Republi- cans, Senate, 24 ; House, 84; total, 108. Democrats, Senate, 1 ; House, 6; total, 7. MASSACHCSR-rrs Governor's vote for 1872 — Republican, 133,900; percentage of total vote, 69.19. Democratic, 59,620 ; percentage of total vote, .'10.81. Legislature — Republicans, Senate, 39 ; House, 212; toUl, '2i>l. Democrats, Senate, 1 ; House, 28 total, 29. MicHioAx. Governor's vote for 1872— Bepablican, 138,968; percentage of total vote, 69.92. Democratic, 81,880; percentage of total vote, 30.08. Lgi8laton has two thousand voters. Tbe district returning three legislaton has three thousand voters. The district returning four legislatbrs has four thousand voters. The district returning five le^slators has five thousand voters. The district returning six legiBlatorB hu six thousand voteiv. The following may bo the result of an electiou: Five hnndred and fifty voters secure one representative. Four hundred and fifty voters have co representation. One thousand and fifty votcn secure two representatives. Nine hundred and fifty voters have no representation. One thousand five hundred and fifty voters secure three representatives. One thousand four hundred and fifty voters have no representation. Two thousand and fifty voters secure four rept-c«entatives. One thousand dIuo hundred and fifty voters hare no representation. Two thousand five hundred and fifty voters secure five representatives. Two thousand four hundred and fifty voters have no representation. Three thousand and fifty voters secure six representatives. Two thousand nine hundred and fifty voters have no re]>re8entation. The ratio of repreeentation In this Instance is one thousand voters; and when the minority consists of one thousand or more voters, it Is reasonable and equitable that tho minority should receive some representation. Three thou»and and fifty voters have six representative; two thousand nine hnndred and fifty not one. The two thousand nine hnndred and fifty voters are Interested, as well as the three thousand and fifty voters. In the happiness of free government, and can any good reason bo assigned, consistent with justice and equality, why they should not have some repre- sentation, for the general welflire and their own security. The majority of a district should not be exclusively represeDt«d,etitioner will secure better results than the existing method: SacnoN 1. The Legislature shall apportion the State every ten years, beginning witli the year , by dividing the quallfled electors of the Mate by the number of Assemblymen, and the quotient shall bo the ratio of representntlon in the Aiisembly. The State shall be divided into a number of Assembly Districts, each of which shall contain, as nearly as practicable, three times the ratio of electors, and shall consist of contiguous and comiact territory. Three members of tlie Assembly ahall be elected In '~Bch Assembly Dlstrfct at each general legislative election. Sac. 2. In the election of three members of the Assembly in an Assembly Dis- trict, each qualified elector of the Assembly District may vote for three penons, as follows: two persons shall be designated and voted for as "Assemblymen," and one person shall be designated and vo^ for as "Third Assemblyman " The three can- didates highest in votes who have been designatel and voted for as "Assemblymen " (excluding In this case those candidates designated and voted for as "Third Assem> biymon "), shall be declared elected in the event that each of said highest candidates receives a number of votes equal to or more than one tlilrd of the ballots cast In all other cases, in dutermining the result of the election all the candidates shall be included, and the three candidates highest In votes shall be declared elected. In the case of an equality of votes preventing an election, the Assembly of which the siiccessfnl candidates will be memberb shall, In open public seuion, select from those candidates whose equal votes prvvout an election the candidate or candidates who ■hail be declared elected. Sac. •'{. Kach Senatorial District shall be formed of contiguous and compact terri tory, and shall consist of two Assembly Districts, and shall elect three Senators. The Senatorial Districts shall he numbered In regular order, commencing with one at one end of the State and ending at the other. The Senators shall be divided Into two classes, so that one class shall be elected at each general legislative eltiction Those elected in districts bearing odd numbers shall constitute a claff, and those elected In districts bearing even numbers sliall constitute a class. In the election of three mnml»ers of the Senate in a Senatorial District, each qualified elector of the Senatorial District may vote for three penfons, as follows, two persons shall be des- ignatotl and voted for us "Senators,'' and one person shall be dcitignated and voted for as "Third Senator" The Hamo principles shall be applied in the election of throe Senators In a Senatorial DlHtrict, as prevails In the electidff of three members of the Assembly in an Assembly I'istrict, and the result of the election ahall be determined in tlie same manner. In case of an equality of votes preventing au election, the Senate shall select the candidate or candidates to 1m declared elected in the same manner as the Assembly. Ordinarily the minor part of a district forms fWtm one third to nearly one half of the voters. Three ropresentHtives are selected fur a district so that this one third may equal the ratio of representation, and therefore be clearly, In Justice, entitled to a representative. Assuming there are three thousand votera In a district, the minority will elect one representative when it consists of one thousand voters or more; that is, from one thousand to one thonsand four hundred and ninety-nine Toters. When there is one or two vacancies to bo filled in a district, the present system prevails. There are only two novelties in this plan, and they are simple, easily understood, and practicable. The first is the provision thatstho minority shall not be represented unless it constltntes a snttstanllat part— one third — of the elector*. If a minority of one or an InHigniflcsnt or inconsiderable number of men had a representative, it would be unequal and unjust to tlie ni^orlty. There is another consideration which may Ito deemed entitled to some weight. In case no ]{mitHtit>n is imposed requiring the minority to consist of a ceiialn proportion of the electors to obtain a representa- tive, the majority, when great, confident of its strength, and willing to rii'k the result on a division of ita strength, may divide and secure all the representativoa. For example, in the event of a niinorily of six hundred votera, two thousand four hun- dred voters may form In two divisionwer and distributes it among the people throughout the State, npon the principles of Justice and equality, and supplies additional checks In the structure of the Legisia- ture Itstdf against its abuse of power. It is a common practice In both houses to refer proposed local legislation to the local delegation, which aometlmes consists of one member. One-mnn power Is necessary and useful In a grout many public tmsta, but ono'mnn |>oifrer In legislation Is dangerous. If the delegation is compoaed of three wo gain the advantages of the Investigation of the subject by three Independ- ent minds, and secure tho benefits and wisdom of deliberation and counsel. If one of the deiegalion represents the minority we have an additional check against abuse. To represent fully the people, both houses of the Legislature should oonalst of ample numbers. They should not be so large as to suffer from the confusion, pa^ sions, and disadvantages of a mnltltude, nor so smalt as to be the mere skeleton of representation. The proper numbers to be designated for any particular State is a snbject admitting of great diversities of opinion. The House of Hepresentatlves of Hassaclnisetts consists of two hundred and forty members; our national Uonse of Representatives, of two hundred and nlnety-iwo; and the English House of Com- mons of six hundred and fifty-eight. Under our present Constitution the Assembly may consist of not le«s than thirty nor more than eighty members, and the Senate, of not less than ten nor more titan forty members. The abuses of legislative power, in regard to the general welfare, are principally for two pnrpOHM, that In: to secure the passage of tnjurtotu legislation, and to pre- rent the enactment uf htnejirinl legislation. To ocoompllsh the first, both houses must be controlled. To accomplish the second, one house only need be controlled. If our Senate consisted of ten members, six coulu control it. As It now consists of forty members, twenty-one can rule It. Now it Is easier to comipt the Integrity of six or twenty-one men than of two hundred men. This observation evinces the resistance which numl>ers present to corruption. The larger the numbers, tho greater the opportunities of discloaure, and the more powerful the fear of detection. Small bodies ofl^er great temptatiou^ solicit Intrigue, and Invite the bribes of nnaorupulons greed and shameleu ambition. When the inconveniences of a multi- tude are avoided, as we diminish the numbers we destroy the sabstsace, sad approach Uie shadow of repraaentatlon— we dc«ert nfety and approach iDsecaritj. There is no desire to cast reproach npon any representative botly fur the tiriCiithrDl administration of ita high trust, but candor obliges us to admit that the Imkmu of experience aflTorded by the history of our State, instructs us that both bruchoitrf^ the Legislature are loo deficient In nnmbers for purity or sound govemmrnt A< these vile and infamous practices are evils to which small bodies are hdt*, it woald seem to be the part of wise patriotism In the organisation of our legiilsliveiif^pBrt* ment to apply the principle that numbers constitute a salutary check and harrier to these vices, and construct both house* of ample numbers. It U tnie ihat increaW uumbers will augment the expenses of this department. A well constnicted ht^ lature is a matter of the first magnitude to society; its Importance isiotraiiicfiidani to the guardianship of the intereets, the maintenance of the rights, the rodrm of the grievances, and the promotion of the wellore of the community, that tbe Increased expense of additional representatives is a concideiation eotitled to littl« weight It would be preferable to lessen the compeiuatioQ of legislators, or to permit the honor aad aerrices to ooe^s country to be the reward, thou to have the booses too It would be worse than folly to disregard the admonitions of experienc* and ptr* mit the Impulses of political parsimony to form Icg^latlve houses with sarh limited numbers as to Lie unsafe depositaries of the Interests of the people— bwuaai so deil* cieut as to be the prey of ringsters and corruption Ista— the scourge sntl diagiaoftof the commonwculth. lArge numbers more fully represent the differeat intensti, general or local, of the entire constituency, and have more sympathy for the puUic welfare. Tour petitioner believes that the sul^ect has Just claims to your stteotlon. ud respectfully requests Its consideration by the (invention, so that smne pUn nu; b» devised to remedy or leasen the it^ustice, Inequalltiea, and vices of tho pretent system. DAVIS LOCDERBACK. Referred to Committee on Legislative Department BKPORTS. Me. WILSON, of San Francisco, presented the following report from the Committee on Judiciary and Juaicial Departmemt: Mr. PaesiDRKT: Tonr Committee on Judiciary and Judicial Departtnent, 1o whom were referred reeolutions, amendments, proposals, etc^ nnmbers three, oinr, ton (twice), twelve, fifteen, twenty-one, iwenty-soven, thirty, thirty-one, forty-two, fifty-seven, sixty-five, seventy-six, eighty-five, eighty-nine, one hundred and Iflj- six, one hundred and seventy-four, one hnndnKl and eIghty,onehundndaDdriglilj* three, one hundred and eighty-nine, one hundred and ninety, one handrcdtnd nlnety>four, two hundred and eight, two hundred and twenty-two, two haodrMl snd forty-five, two hnndreti and forty-six, two hundred and forty -nine, twohandrodsBd sixty -two, two hundred and sixty-three, two hundred and seventy-two, two hasdrel and seventy-four, two hundred and seventy five, two hundred and nloeiy-one, tliiM hundred and ten, three hundred and forty-eight, three hundred and axty-flvclhref hundred and sixty-seven, three hundred and etghty-dx, three hundred and oiMt}^- nine, four hundred and four, four huudred and twenty-six, four hundred and fortf* two, four hundred and fifty-five, and four hundred and fifty-seven, beg Isave to report that they have considered the same, and recommend that they be aot adopted. . So much of such proposed amendments as your commtttaa have apinvvcd sre, in a modified form, contained In the Judiciary system which accompanies this rsfkort We have the honor to submit and recommend Its adoption as article six of tlip Constitution and thejudiclol department. S. H. WILSOK, ChalmisB. November 12 th, 1878. AsTtCLR VI. JCDICIAL DKPABTHENT. Skction I. The judicial power of the State shall be vested in th? Senate sitting as a Couii oi Impeachment, in a Supreme Court, Superior ('ourts, Justices of the Peace, and such inferior Courts as the liegislature may establish in any incorporated city or town, or city and county. Src. 2. The Supreme Court shall consist of a Chief Justice and six Associate Justices. The C«urt may sit in departments and in baDk,airf shall always be open for the transaction of business. There shall be two departments^ denominated, rc8peQ* tained in relation to the Court in bank. The presence of three Ju6tio» shall he necessary to transact any business in cither of the departments, except such as may be done at chambers, and the concurrence of thrw Justices shall bo necessary to pronounce a judgment. The Chief Ju5li« shall apportion the business to the departments, and may, in hisdiscfe- tion, order any cause pending before the Court to be heard and derided by the Court in bank. The order may be made before or after judpnent pronounced by a department; but where a cause has been allotted to one of the departments, and a judgment pronounced thereon, the order must tie made within thirty days after such judgment, and concurred inbr two Associate Justices, and if so made it shall have the efiect to VMSt« and set aside the judgment. If the order be not made within the time above limited, the juagtnent shall be final. No judgment by a depart- ment shall become final until the expiration of the period of thirty dsrs aforesaid, unless approved by the Chtef Justice, in writing, with thecon- currence of two Associate Justices. The Chief Justice may convene the iCourt in bank at any time, and shall be the presiding Justice of the Court when so convened. The concurrence of four Juslioea present at the argument shall be necessary to pronounce a judgment in bank; but if four Justices, so present, do not concur in a iudgment, then all the Jus- tices qualified to sit in the cause shall hear the argument; but to render a judgment a concurrence of four Judges shall be necessary. In ">e determination of causes, alt decisions of the Court in bank or in depart- ments shall be given in writing, and the grounds of the decision shs bo stated. The Chief Justice may sit in either department, and flhalj preside when so sitting, but the Justices assigned to each department shall select one of their uuml>er as presiding Justice. All sessions of the Court, whether in bank or in departments, shall be held at the Csmtsl of the State. In case of the absence of the jQ^iof Justice ftsm the plsn Digitized by LjOOQ IC Nov. 13, 1878. OF THE CONSTITUTIONAL CONVENTION. 393 at which the Court is held, or his inability to act, the Associate Justices shall select one of their own number to perform the duties and exercise the powers of the Chief Justice during such absence or inability to act. Skc. 3. The Chief Justice and the Associate Justices shall be elected by the qualified electors of the State at large, at the general State elections, at the times and places that State officers are elected ; and the term of ofSce shall be twelve years, from and after the first Monday of January next succeeding their election ; provided, that the six Associate Justices elected at the first election shall, at their first meeting, so classify them- selves by lot, that two of them shall go out of office at the end of four years, two of them at the end of eight years, and two of them at the end of twelve years, and an entry of such classification shall be made in the minutes of the Court in bank, signed by them, and a duplicate thereof shall be filed in the office of the Secretary of State. If a vacancy occur in the office of a Justice, the Governor shall appoint a person to hold, the office until the election and qualification of a Justice to fill the vacancy, which election shall take place at the next succeed- ing general election, and the Justice so elected shall hold the office for the remainder of the unexpired term. The first election of the Justices shall be at the first general election after the adoption and ratification of this Constitution. Skc. 4. The Supreme Court shall have appellate jurisdiction in all cas^ in equity; also in all cases at law whicn involve the title or pos- session of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars; also in coses of forcible entry and detainer, and in all such probate mat- ters as may be provided by law; also in all criminal cases amounting to felony, on questions of law alone. The Court shall also have power to issue writs of mandamus, certiorari, probibitiou, and habeas corpus, and also all writs necessary or proper to the complete exercise of its appel- late jurisdiction. Each of the Justices shall have power to issue writs of habeas corpus to any part of the State, upon petition by or on behalf of any person held in actual custody, and may make such writs return- able before himself, or the Supreme Court, or before any Superior Court in the State, or before any Judge thereof. Skc. 5. The Superior Courts shall have original jurisdiction in all ca-^es in equity, and in all cases at law which involve the title or pos- session of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand, exclnsive of interest or the value of the property in controversy, amounts to three hundred dollars, and in all criminal cases amounting to felony, and cases of misdemeanor not otherwise provided for; also, in actions of forcible entry and detainer, of proceedings in insolvency, of actions to prevent or abate a nuisance ; also, of all matters of pro- bate, and, also, of divorce and for annulment of marriage, and all such special cases and proceedings as are not otherwise provided for. And said Courts shall nave'the power of naturalization, and to issue papers therefor. They shall have appellate jurisdiction in such cases arising in Justices' and other inferior Courts in their respective counties as may be prescribed by law. Said Courts shall be always open (legal holidays and non-judicial days excepted), and their original jurisdiction shall extend to all parts of the State. Said Courts, and their Judges, shall have power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus, on petition by or on behalf of any person in actual custody, in their respective counties. Sko. 6. There shall be in each of the organized counties, or cities 4uid counties, of the State, a Superior Court, for each of which at least one Judge shall bo elected by the qualified electors of the county, or city and county, at the general Stale election ; provided, that in the City and County of San Francisco there shall be elected twelve Judges of the Superior Court, any one or more of whom may hold Court. There may be as many sessions of said Court, at the same time, as there ai^ Judges thereof. The said Judges shall choose from their own number a pre- siding Judge, who may be removed at their pleasure. He shall distri- bute the business of the Court among the Judges thereof, and prescribe the order of business. The judgments, orders, and proceedings of any session of the Superior Court, held by any one or more of the Judges of said Courts, respectively, shall be equally effectual as if all the Judges of said respective Courts presided at such session. In each of the Counties of Sacramento, Los Angeles, and Alameda, there shall be elected two such Judges. The term of office of Judges of the Superior Courts shall be six years, from and after the first Monday of January next succeeding their election ; prmided, that the twelve Judges of the Superior Court, elected in the City and County of San Francisco at the first election held under this Constitution, shali, at their first meeting, so classify themselves, by lot, that four of them shall go out of office at the end of two years, and four of tbem shall go out of office at the end of four years, and four of tbeni shali go out of office at the end of six years, and an entry of such classification shall be made in the minutes of the Court, signed by them, ■nd a duplicate thereof filed in the office of the Secretary of State. The first election of Judges of the Superior Courts shall take place at the first general election held after the adoption and ratification of this Con- stitution. If a vacancy occur in the office of Judge of a Superior Court, the Governor shall appoint a person to hold the office until the election and qualification of a Judge to fill the vacancy, which election shall take place at the next succeeding general election, and the Judge so elected shall hold office for the remainder of the unexpired term. Sec. 7. In any county, or city and county, other than the City and County of San Francisco, in which there shall be more than one Judge of the Superior Conrt, the Judges of suoh Court may holi as many ses- sions of said Court at the same time as there are Judges thereof, and' shall apportion the business amon^ themselves as equally as may be. Sic. 8. A Judge of any Superior Court may hold a Superior Court in any county, at the request of a Judge of the Superior Court thereof, u>d upon the request of the Governor it shall be bis duty so to do. 50 Skc. 9> The Legislature shall have nopower to grant leave of absence to any judicial officer; and any such ofncer who shall absent himself from the State for more than sixty consecutive days shall be deemed to have forfeited his office. The Legislature of the State may at any time, two thirds of the members of the Senate and two thirds of the members of the Assembly voting therefor, increase or diminish the number of Judges of the Superior Court in any county, or city and county, in the State ; proeided, that no such reduction shall affect any Judge who has been elected. Sec. 10. Justices of the Supreme Court, and Judges of the Superior Courts, may be removed by concurrent resolution of both houses of the Legislature, adopted by a two-third vote of each house. AH other judicial officers, except Justices of the Peace, may be removed by the Senate on the recommendation of the Governor, but no removal shall be made by virtue of this section, unless the cause thereof be entered on the Journal, or unless the party complained of has been served with a copy of the complaint against him, and shall have had an opportunity of being heard in his defense. On the question of removal, the ayes and noes shall be entered on the Journal. Skc. II. There shall be one Justice of the Peace elected in each township in the State, and the Legislature shall determine the number of Justices of the Peace to be elected in each incorporated city and town, or city and county, and shall fix by law the powers, duties, and respon- sibilities of Justices of the Peace; provided, such powers shall not in any case trench upon the jurisdiction of the several Courts of record, except that said Justices shall have concurrent jurisdiction with the Superior Courts in cases of forcible entry and detainer, where the rental value does not exceed twenty-five dollars per month, and where the whole amount of damages claimed does not exceed two hundred dollars. Sec. 12. The Supremo Court, the Superior Courts, and such other Courts as the Legislature shall prescribe, shall be Courts of record. Sec. 13. The Legislature shall fix by law the jurisdiction of any inferior Courts which may be established in pursuance of section one of this article, and shall fix by law the powers, duties, and responsibilities of the Judges thereof. Skc. 14. The Legislature shall provide for the election of a Clerk of the Supreme Court, County Clerks, District Attorneys, Sheriffs, and other necessary officers, and shall fix by law their duties and compensa- tion. County Clerks shall be ex officio Clerks of the Courts of record in and for their respective counties, or cities and counties. The Legislature may also provide for the appointment by the several Superior Courts of one or more Commissioners in their respective counties, or cities and counties, with authority to perform chamber business of the Judges of the Superior Courts, to take depositions, and perform such other busi- ness connected with the administration of justice as may be prescribed by law. * Skc. 15. No judicial officer, except Justices of the Peace and Court Commissioners, shall receive to his own use any fees or perquisites of office. Sec. 16. The Legislature shall provide for the speedy publication of such opinions of the Supreme Court as it may deem expedient, and all opinions shall be free for publication by any person. Skc. 17. The Justices of the Supreme Court and Judges of the Supe- rior Courts shall severally, at stated times during their continuance in office, receive from the State treasury, for their services, a compensation which shall not be increased or diminished during the term for which they shall have been elected. During the term of the first Judges elected under this Constitution, the annual salaries of the Justices of the Supreme Court shall be six thousand dollars each. The Superior Judges shall be divided into four classes: those of the City and County of San Francisco, and of the Counties of Alameda, San Joat^uin, Los Angeles, Santa Clara, Sacramento, and Sonoma, shall constitute the first class, and shall each receive an annual salary of five thousand dollars, payable quarterly ; those of the Counties of Butte, El Dorado,. Amador. Colusa, Coritra Costa, Humboldt, Mendocino, Monterey, Napa, Nevada, Placer, Santa Cruz, Solano, Tulare, Yolo, Kern, Yuba, and San Bernardino, shall constitute the second class, and shall receive an annual salary of four thousand dollars each, payable quarterly; those of the Counties of Calaveras, Fresno, Lake, Marin, Merced, Plumas, San Benito, San Diego, San Luis Obispo, San Mateo, Santa Barbara, Sierra, Shasta, Siskiyou, Stanislaus, Sutter, Tehama, Tuolumne, and Ventura, shall constitute the third class, and receive an annual salaiy of three thousand dollars each, payable quarterly; and those of all other counties of the State, not above enumerated, shall constitute the fourth class, and receive an annual salary of two thousand dollars each, payable quarterly. , Skc. 18. The Justices of the Supreme Court, and the Judges of the Superior Courts, shall be ineligible to any other office than a judicial office during the term for which they shall have been elected. Skc. It. Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law. Sec. 20. The style of all process shall be, " The People of the State of California," and all prosecutions shall be conducted in their name and by their authority. Sec. 21. The Justices shall appoint a Reporter of the decisions of tho Supreme Court, who shall hold his office and be removable at their pleasure. He shall receive an annual salary of twenty-five hundred dollars, payable quarterly. Sec. 22.' The Judges and Justices of the Peace shall not practice law in any Court of the State during their continuance in office. Sko. 23. A Grand Jury shall be composed of twelve jurors, and a concurrence of nine shall be necessary to the making of a presentment or the finding pf an indictment. Skc. 24. No one shall be eligible to the office of Justice of the Supreme Court unless he be at least thirty-five years of age, and shall have been admitted to practice before the Supreme (^Sft oLthe State; Digitized by VjO w 394 DEBATES AND PROCEEDINGS Wednesdat, »nd no one shall be eligible to the office of Jud|(e of a SupeMor Court unless he be at least thirty years of age, and shall have been admitted to practice before the Supreme Court of the State. Mr. belcher. Mr. President: That article is a long one, and I move that the reading of it be dispensed with. Tna PRESIDENT. Under Rule Fifly-thrce the report roust be read. Mb. BELCHEB. I move that the rule be suspended. Thk PRESIDENT. The rule cannot be suspended. It must be read. Mb. ROLFE. Mr. President: I think it could be dispensed with by the unanimous consent of the Convention. Any rule, I think, can he suspended by unanimous consent. [Cries of " Read," "read."] Thk secretary read the entire report, as above. Mb. CROSS. Mr. President: On account of the importance of this report, and the interest which a large number of men throughout the State take in it, I move that double the usual number of copies be printed, and five copies be placed upon the desk of each member. Carried, by an amrmativo vote of eighty-seven, on a division. KIOHT or SDPrKlOK. Mb. EAGON, from the Committee on the Right of Suflrage,made the following report: Ma. PaniDEXT : Timr CoromittM on th< Bight of Snffnce, *o whom were referred propoeed unendments numbers twenty, twentjr.«lx, thinjr nine, fortjr-two, forty^U, sixty-two, eighty, ninety ecTcn, ninety-eight, one hundred nnd eight, one hundred and forty-flre, one hundred and sixty-one, one hundred and sixty-three, one hundred and cighty-Bix, one hundred and ninety 4ix, one hundred and ninety-nine, two hun- dred, two hundred and aeTenty-Beven, two hundred and ninety-ftTe, three hundred and elx, three hundreil and thirty^>ne, three hundred and forty-three, three hundred and fifty-4'igbt, and four hundred and Kventy-three, and n-eolntloni unniben thir- teen and twenty, hare liad the same under ronrideration, and report them hack, and rv'-^ommend that the Convention take no further action on the same. The oommlttee lierewith submit a draft for article two of the Con,o\ver to remove all disabililles to exercise the elective fianchUe on account of sax. The lemainlng sections proposed are tli« same as In the present ConsUtullon. JOHN A. EAGON, N. G. WYATT, 0. W. CROSS. Vf. J. SWKASKT, J. B. OABVKY, 0. B. GLASCOCK, r. O. T0WN8KND, J. O. McCALLl'M. Abticlk II. RionT or surrBAOB. Section 1. Every native male citizen of the United States, and every naturalized citizen thereof, who shall have become such ninety days prior to any election, of the age of twenty-one years, who shall have been a resident of the State one year next preceding the elet'tion, and of the election district in which he claims his vote ninety days, shall he entitled to vote at all elections which are now or may hereafter be authorized by law ; provided, that no idiot, insane person, or person con- victed of any infamous crime, shall be entitled to the privileges of an elector J provided, that the Legislature may by law remove in whole, or in part, the disabilities to exercise the elective franchise on account of sex. Sec. 2. Electors shall in all cases, except treason, felony, or breach of the peace, be privileged from arrest on the days of election, during their attendance at such election, going to and returning therefrom. Sec. 3. No elector shall be obliged to perfonn militia duty on the day of election, except in time of war or public danger. Sec. 4. For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, nor w^ile engaged in the navigation of the waters of this State or of the United States, or of the nigh seas; nor while a student at any seminary of learning; nor while Kept at anv almshouse or other asylum, at public expense ; nor while confinea in any public prison. Src. 5. All elections by the people shall be by ballot. Me. CAPLES. Mr. President: As a member of the Committee on Right of Suffrage I desire to present a minority report, and ask that the report of the majority lie upon the table until the minority report is presented, that both may be printed together. Carried. LABOB AND CAPITAL. Mb. BELCHER, from the Committee on Labor and Capital, made the following report: Mb. FRKsinENT: The Committee on Labor and Capital respectfully report that they have had under consideration resolution number seven, introduced by Mr. Condon, and propositions number one hundred and twenty-eight, introduced by Mr. Joyce; number two hundred and Uiirty two, introduced by Mr' Wetlin; nnrober three hundred and ninety-six, introduced by Mr, Condon, and nnnib«*r four hundred and seventy-ooo, introduced by Mr. Howard, ^d they herewith report the iMck, and recommend that they b« not adopted. They have alao had under consideration proposition nnmber ninety-nine, tntn>- dnced by Mr. Farrall, and herewith report the same back, and recommend that U be referred to the Committee on Leflslative Department, I. 8. BKLCHER, Chairman. Norember I3tb, 1878. Mb. ESTEE. I move that the Convention resolve itself into Com- mittee of the Whole for the purpose of further considering the report of the Committee on Corporations. Mb. REYNOLDS. I hope the gentleman will withdraw the tiiMion for one moment. I have a proposition that I desire to have referred and printed. Mb. ESTEE. I withdraw the motion temporarily. Mb. REYNOLDS. As the Convention will probably go into Com- mittee of the Whole for some time, I ask funeral consent to introduce an amendment and have it referred and printed. There being no objection, Mr. Reynolds introduced the following pro- posed amendment to the Constitution, concerning OAg AND WATEB COHrANIBS. Sectiok 1. In any city where there are no public works owned and controlled by the municipality for supplying the same with artificial light and water, any company duly incorporated by the laws of this State shall, under the direction of the Superintendent of Streets of said city, have the privilege of disturbing and using the public streets and thoroughfares thereof, and of layinjc down pipes and mnduits therein, and of making connections therewith, so for as may be necessarT- for introducing into and supplying such city and its inhabitants either with gaslight or other illuminating light, or with fresh water for domestic and all other purposes, for which the same or either may be used, upon the conditions following: Such company shall make good all damages to such streets and thoroughfares, except necessarily occasioned by the reasonable use thereof, and be liable to such cit^ and its inhabitants therefor. Such company introducing and supplying gaslight or other light, and fresh water, or either, shall furnish the same, so far as neces- sary and required, free and without charge, to all public buildings, institutions, and school houses belonging to such city and used Air municipal purposes; and such company introducing and supplying water snail also furnish the same, free and without charge, to tne Fire Department, and for the extinguishment of fires. Each companr, it< property and franchise, shell be liable to such city and ila innabftants for the performance of these conditions. Referred to the Committee on City, County, and Township Organi- zations. CLASSirriNO land rOB ASSBSSMEaT. Mb. SMITH, of Santa Clara, introduced the following proposed amendment to the Constitution, relative to the classification of land for assessments: Section 1. For the purpose of defraying the charges and expenses incident to the administration of government, the inhabitants and property within the State shall be assessed and taxed according to its uniform and equal rates. Property shall be taxed according to its valoe, to be ascertained in the manner herein prescribed. The objects of taxa- tion shall be lands, tenements, and hereditaments, capital invested in corporations or associations, franchises, stocks in trade, moneys deposited or loaned at interest, valid debts of all kinds, personal property ofeTery kind, auctioneers, brokers, peddlers, retailers of spirituous or other liquors, commission merchants, and male inhabitants over twenty-one and not exceeding sixty years. Sec. 2. The lands subject to taxation shall be divided into not less than five classes, upon each of which a valuation shall be fixed by law, the minimum whereof shall not be less than one dollar and twentv-five cents per acre. The lauds in the several counties shall be assessed and apportioned according to its productive quality and situation, by per- sons apjKiinted for that purpose, once in every four years, and the value thereof shall be set down and classed separately, and said lands shall be taxed for the succeeding four years according to the said valuation. But no tax shall ever be levied upon growing crops of any kind. Sec. S. City, town, and village lots with improvements thereon shall form a separate class of taxable pro}>erty, and sliall be valued annually. Capital invested in corporations, franchises, stock in trade, money, or money loaned at interest, or valid debts, and personal property, shall each form a separate class, and shall be valued annually.* Auctioneers, peddlers, brokers, commission merchants, retailers o{ spirituous or other liquors, shall be taxed as the Legislature may direct. Sec. 4. Every male inhabitant over twenty-one and not exceeding sixty years shall pay an annual tax not exceeding . Referred to the Committee on Revenue and Taxation. BEPOBTS op the PBOCBED1N08. Mb. McCALLUM. Mr. President: Before we go into Committee of the Whole, I desire to make a motion, and I make it at the request of a number of gentlemen who voted to lay a certain report upon the table. They desired me to make the motion to take it from the table. I more that the report of th^ Committee on Mileage and Contingent Expenses, relative to inquiring into the expediency of procuring an official report of the proceedings of this Convention, be' taken from the table and referred to the Committee on Reporting and Printing, to report thereon. That involves no discussion, and I ask to make this motion at the request of a number of gentlemen who voted to lav the report ajion the table. Mb. cross. I second the motion. Mb. HILBORN. Is that report on the tablet -Was not the report of the Committee on Mileage and Contingent Expenses adopted T Mb. McCALLUM. It was laid on the table. Mr. HILBORN. My recollection is otherwise; but if 1 am wrong, I am. wrong. The PRESIDENT. The resolution in relation to phonographic Digitized by V^-' Nov. 13, 1878. OF THE CONSTITUTIONAL CONVENTION. 395 reporting was laid on the table. The question is on the motion of the gentleman from Alameda, Mr. McCallum. Mb. McCALLUM. Mr. President : I wish to say a word upon this subject. Some time since a resolution was offered here, which it will be found issubstantially to this effect: that if the reporting could be obtained on terms satisfactory to the Convention, that there should be an official report of the proceedings of this Convention ; and further, that that be referred to the Committee on Reporting and Printing, to ascertain upon what terms such reporting could be had. That was referred to the Com- mittee on Mileage and Contingent Expenses. They reported to the Convention, and the Convention laid the report from that committee on the table. This is not a resolution to employ an official reporter, but a resolution that the Committee on Reporting and Printing will report upon certain points which they had neglected, or failed to report upon before. Also, what it would cost to transcribe and print, and to lay the printed copies upon the desks of members every morning. I have Decome impressed very seriously with a fact that has no doubt impressed a gcnd many other members of this Convention, and that is, that in or.ier that our work may appear fairly before the public, it is necessary that there should be an official report of what is said here in the debates. It is no secret to this Convention how this thing is beinj^done now. The only report of the proceedings which goes forth is that published in one paper, and I do not know that it is improper to state the fact that those speeches are reported and printed in full, which are paid for at so much per column. The others are not so reported. Rich men in this Conven- tion can have their speeches reported and go forth to the public; but those who cannot aflbrd to pay for it, cannot have their speeches reported. That is the position the question occupies to-day. It may be, as some say, that the paper so reporting is not so generally taken a; some others, but it is true that it is the oniv paper which does purport to give any- thing like correct reports of tlie proceedings. That sends forth to the people of this State the reasons for what is done here, and the reasons will go forth upon one side, and none of the reasons upon the other, except so far as the other side may he able to pay for transcribing them and printing them. I say that it affects the wnole work of this (>>nven- tion. People are looking to what is done here, and to the reasons for it, and from what they read the^ judge of it. The newspapers throughout the State take ideas of what is done here from the same reports I have alluded to. They are not a mirror of what transpires here, but a repre- sentation of what transpires on one side. I am 'satisfied — and I make no reflection upon the gentlemen who can afford to pay for their speeches — for I believe that they have voted for official reporters from the beginning; but I say to the others, who cannot afford it, as this is to go to the people of the State in some shape, I propose, at any rate, that the Committee on Reporting and Printing shall have an opportunity to say upon what terms we can have these reports. The Committee on Judi- ciary have said that this expense does not even come out of the appro- priation of one hundred and fifty thousand dollars for the expenses of the Convention. If our Committee on Judiciary are right it does not affect this appropriation at all, and even if they are wrong, it does not affect the percentage but a little more on the script which will be paid to members after perhaps a few weeks more, than otherwise would be the case. My point is well illustrated in a very recent publication. lu this morning's paper one speech is printed in full and none of the others. We may ex|Mct the new^pers to print just such portions of the debates as they see fit. They will do it, and they have got the right to do it. In any other case gentlemen can pay for it, as I suppose this has been done this morning. At least I understand that is the rtilc. Kow, I want to know whether this is the manner in which our proceedings are to go forth to the public. I ask for a full vote upon the question. I hope that gentlemen will vote one way or the other. Mr. OVERTON. Mr. President: I voted against the proposition of the gentleman, and I expect to continue to vote against it. My reasons are Uiese : This Convention has spent three or four days in discussing the proposition of reporting the proceedings of this Convention, when it was up before the iiouse. They arrived at nothing. The matter is now dead, and so far as I ara concerned, I propose letting it remain dead by leaving it on the table. If the gentlemen here in this Con- vention want their speeches reported, they have my permission to pay for them. One reason why I should vote against an official report of the proceedings now, if the matter was again before me, is that I have ascertained that there are gentlemen who speak so long and so often that I am opposed to paying for their speeches. It would not be fair at all to have it come out uf the fund that is appropriated to pay the expenses of this Convention. There are some of us that do not speak any, who would have to pay the expense of the other gentlemen's speeches. Mr. TKRRY. I suggest that the members have twenty dollars apiece for speeches. The motion was lost on a division, by a vote of 44 ayes to 91 noes. CIVIL SRBVICK RKFOKM. Mb. FREUD introduced the following proposed amendment to the Constitution relative to civil service reform : " Ko assessment for political purposes on officers or subordinates in any department of the State should be allowed, and no subordinate should ever be removed from office for political reasons." Referred to the Committee on Miscellaneous Subjects. TAXATION or LAKD. Mb. VACQUEREIj introduced the following proposed amendment to the Constitution, entitled a resolution to facilitate the taxation of lands, and to prevent any fraud by the collector of such taxes : "All lands in the State of California shall hereafter be divided into four sections, as follows; First, agricultural lands, either improved or unimproved; second, pastural lands; third,tiinber lands; fourth, unpro- ductive lands. " It shall be the duty of each County Surveyor to survey, inspect, and classify in said sections, all the lands in his county, and report to the Surveyor-General, specifying the number of acres of each class of land in said county. " Whenever any land, classified under any of the preceding sections, shall, either by improvements, or by the will of its owner, be used for other purposes than the one specified in the surveyor's report, it will then be suoject to be classified m any other section to which it will then properly belong. The Surveyor-General will then make a report of all counties, and forward it to the Legislature; and it shall be the duty of the Legislature, after the reception of said report, to enact a law, taxing uniformly through the State, all lands of the same classification, and no land to be exempted from taxation unless it belongs to the State, or to the' United States Government. The collector of taxes in each county shall furnish sufficient bonds or securities, before he can perform any of his duties, for the amount of money that taxes upon land should bring according to the pro rata established by the Legislature. "Said collector will furnish semi-annually a statement of all lands taxed in the county, their rate of taxation, and the total sum paid until date, and if the receipt does not balance with the amount due by the tax- payers, he shall be held personally accountable and resjponsible for all sums less than said amount, according to the number oi acres, in their relative sections, subject to taxation in the county. " Whenever any Stale or Government land shall become the posses- sion of any individual or corporation, said land shall be surveyed, class- ified, and subject to the rates of taxation asserted by the Legislature, and the Tax Collector shall have power to collect such taxes without any special legislation. "Kon-payment of taxes on land for a certain length of time, to be specified by the Legislature, shall be a forfeiture of said land in favor of the State." Referred to Committee on Revenue and Taxation. AMCNDUBNT TO BDLR. Mk. STEDMAX. Mr. President: I desire to give notice that as soon as occasion offers, after to-day, I shall move to amend Rules Twenty- one and Thirtv-two. I send up the amendment. Thk SECRETARY read : " Amend Rule Twenty-one : Strike out all after the word ' deemed,' in the third line, and add the following : ' divisible ; and a motion to strike out on a division being negatived, or a motion to insert being decided in the affirmative, shall be equivalent to agreeing to the matter in that form, but shall not preclude further amendment; provided, that substi- tutes for pending propositions shall, for the purposes of amendment, be treated as original propositions.' " Amend Rule Tnirty-two to read as follows : ' Substitutes for pending propositions shall be in order, and for the purposes of amendment, bo treated as original propositions.' " MOTION TO RBCONSIDKB. Mb. CONDON. On Monday, sir, I gave notice that I would move to reconsider the motion whereby Rule Fifty-six was amended by striking out the words, " and that the previous question can be moved." My reasons were, Mr. Chairman Mb. TINNIN. I rise to a point of order. The point is that Rule Thirty-seven says, that "on the day succeeding that on which a' final vote on any proposition, or resolution, concerning the Constitution, or other resolution, has been taken, said vote may be reconsidered on motion of any member, provided notice of intention," etc. Now, that was done day before yesterday. The point of order is that the gentle- man cannot make this motion to-day. Mb. CONDON. Mr. President : You will remember, sir, that yester- day there was a resolution passed that the report of the Committee on Corporations should be considered immediately after the reading of the Journal, consequently there was no room for me to get my motion in at that time. I think it is nothing more than right that the motibn should be entertained now. There is a division of sentiment in reference to that matter, and on that day a number of the members were absent. Not more than two thirds of the Convention were present. I think it is only just and fair that these gentlemen should have an opportunity of expressing their opinion on this matter. I move that the motion lie reconsidered. Mb. STEDMAN. Mr. President: I second the motion, and in doing so I will say that I understand the purposes of the Committee of the Whole are to give freedom in debate. As I understand it, Mr. Presi- dent, the main question is never put in Committee of the Whole. We have no main question. The amendment to that rule places the Chair- man in the position of asking the committee, " Shall the main question be put?" when we have no main question. It is ludicrous. The previous question in Committee of the Wholel I second the motion, and I hope the. committee will adopt it. And, Mr. President, I gave notice the other day to amend Rule Fifty-six, and at the proper time I desi|:e to make that motion, and if the amendment is adopted it will obviate all necessity for the present provision. My amendment will make the last clause read : " but the Convention at any lime may decide, by a majority vote, when debates or any report or pending amend- ment shall close." As I understand it, this amendment was offered on the ground of economy of time. I do not believe that an^ gentleman desires to cut another off with the previous question, and if'^the amend- ment to the rule is adopted, which I shall offer then, we could close the debate at any time without resorting to the previous question. For instance, wq could say that the debate on the report of the Committee on Corporations should close on Friday. Then at that time the discus- es 396 DEBATES AND PROCEEDINGS Wednesday, sion would have to cease. That woulil obviate the neoenity of the previous question. I hope the raotion will prevail. M«. TINNIN. Mr. Presideut: I have no desire to debate this ques- tion, but as the position of the case seems to call for somethine, I desire to read the latter part of Rule Thirty-seven : "Such motion of reconsid- eration shall have precedence over every other motion, except amotion to adjourn." The gentleman could at any time have rose and made the motion, and the Chair would have entertained it. Mb. STEDMAN. I will state, and Mr. Filcher will boar me out, that he attempted at one time to bring up his motion to amend a rule, and the Chair decided that it could not be brought up at that time. Mr. ROLFE. Mr. President; The last argument of the gentleman is not a good one. If the Chair made a mistake in one instance, it is do reason why we should follow up the mistake. Tbi president. There was no such ruling.- Mr. ROLFE. Even if there was it proves nothing more than a mis- take. Thb president. Rule Thirty-seven seems to l>e very noeitive that the motion to reconsider must be made on the day succeeding that on which the final vote has been taken, and the rule also gives preference to that motion over every other motion. The Chair is compelled, under that rule, to sustain the point of order made by the genilcmau from Trinity. NOTICR. Mb. KOEL. I desire to give notice that I will move to amend Rule One, by striking out the words "ten o'clock," and inserting the words "nine o'clock." Also to amend Rule Two, by striking out the words " two o'clock," and inserting the words " half-past one o'clock." Mr. ESTEE. I move that the Convention resolve itself into Com- mittee of the Whole. BEPOBT. Mr. UILBORN. Mr. President: The Committee on Mileage and Contingent Expenses report back the following resolution, and recom- mend its adoption : Saotved, That Ui* CommittM on tho Right of SulTrago be allowed to employ a cleric for two (*i) days Dnly,ata compeiuation of five (5) dolUis per day. The report was concurred in. THB CBINBSE QUESTION. Mb. WICKES. Mr. President: I desire to offer a resolution. - The secretary read : Betolved, Thnt this ConTention authorize the electors of the Slate, in their vote upon th be done, if the gentlemen desire to abolish corporations, tUey ought to pn' that matter directly before us, and vote on it. I understand that the people throughout the State in manv kinds of business, take part in cOT- porations, and, sir, it would be pustiing things to an extreme to make a man who consented to be a director personally responsible for any delinquency on the part of any employ^. Digitized by Google Nov. 13, 1878. OF THE CONSTITUTIONAL CONVENTION. 397 BKMARKS or UB. LIKKIN. Mb. LARKIN. Mr. Chairman: I shall lupport that amendment because I believe it will meet a necessity called for for years. The Dime Savings Bank robbed the orphans, children, and women of this State of thousands of dollars because the directors published in oonnec- tion with that bank were not the real directors. That money was deposited on acconnt of some gentlemen (supposed to be) connected with the bank. They were not connected with it. The money deposits of these savings banks rest upon the honor of the directors. Because there are directors named who have high standing in the community, people put their money in the bank and deem it safe. Every f)erson who deposits money, every child, woman, and laborer of the country, has a right to expect that these men will examine into the affairs of the bonk. The directors are the men who should be responsible for every dollar that is put there if they do not see that it is properly taken care of by the officers of the bank. It would protect the people of this State from the robbery that has been done. BBIIABKS OP MB. FBBKHAM. Mb. freeman. Mr. Chairman: I think the amendment proposed by the gentleman from San Joaquin, Mr. Terry, meets a want which has developed in the history of every day affairs. Now, whoever undertakes these trusts of a public nature, ought to undertake them under such circumstances as would make him responsible to the people who trust him. Now, what is the ordinary history, for instance, of a savings bank? Why, persons desiring to start out, go to men of gooected us to do. The men who own the banks, the men who run the banks, are not the men who voted for me; they had three other candi- dates in the field against me [applause]; the men who voted for me are the men who have been swindled, are the men who have felt and do feel the great wrongs of this evil of irresponsibility in these corporation managers, and they with their votes asked me to come here and do what I could to remedy' this evil of irresponsible corporation management, and for one I am here to dn it, and right now. I shall vote for the amendment, and will vote for any proposition which will tend directly or indirectly to increase the responsibility of corporation officers, mana- gers, or decoy ducks, and I am in favor of drawing the line of demarka- tion upon the subject of corporations. Let us not lend the dignity of the State of California to an incorporation organized for the uuriwse of gathering swill in the street and feeding pigs; let us not lend ttic dignity of the State to an incorporation for the purpose of establishing henneries to hatch chickens ; but if we do make corporations, if we must have corporations for some purposes, and combined capital, then let it be for a purpose for which we can lend the dignity and the authority of the State to exercise the right of eminent domain, and let the right of emi- nent domain go hand in hand with corporations who are authorized to exercise these great powers of the Slate. Some things need that back- ing up, some things must have that, in order that the civilization of the present day may oe carried forward as it should be carried for\vard. But feeding pigs or hatching chickens does not need that indorsement. Men who say they are conducting savings banks don't need that indorsement. The whole discussion is: what can we do to make these people more responsible — these shams, these paper affairs? What can we do? Why, what you can do is this : Just say to them, "You can go upon your own responsibility, as every man in the community ought to do. If you have wealth enough, if you have intelligence enough, if you have integrity enough, if you have lived Icmg enough in this community to have the confidence of the people, just put up your sign and say, 'I propose to establish a dime savings bank in this community.' If people wilt come and deposit with you, well and good; better for both yciu and the community tnat you stand upon that platform. You understand that you are responsible for all that your clerks do; you are responsible for all embezzlement that is done; you are responsible for all misappro- priation that is permitted ; you are responsible for the money that vou receive to the persons from whom you receive it. In other words, like all other businesses you become responsible in everything you have for the conduct of the business." Then it is that honesty and faithfulness is imparted to the business. All business can be conducted by partnerships ^cept those which require the right of eminent domain, that is, for the purpose of taking other men's property for certain purposes which you could not take unless the State authorized you to take it. That is the rule in regard to inoorporations which we should establish under this Constitution. We see, already, from the personal experience that we have all over this State — when twenty-one thousand corporations are piled up before you by the Secretary of State as was done in this Convention the other day — there is enough, it seems to me, to give every reasonable man warning that we have already traveled too far on the road of corporations. Nothing can be done by individuals, every conceivable entarprise that is to be entered into must be incorporated. A man goes to establish a lumber yard, it must be incorporated. If he goes to establish a mill, it must be" incorporated. If he wants to hunt for quartz, he must incor- porate. Men almost marry their wives and conduct their family affairs by corporation at this day [laughter], and will soon do so unless the incorporation idea is stoppeil. Corporations I You cannot move, you cannot travel, you cannot go backwards or forwards but what you run against one or step on to one. I propose now that we enter into the business of disincorporating, and we should disincorporate largely. We will start out as God Almighty started out man in the first place, with the idea of each fellow taking care of himself for awhile. [Applause.] It was stated in the debate here yesterday that this Government was getting too paternal ; that the Government ought not to become so paternal that they would not be permitted to make contracts of their own. In other words, we ought not to become so paternal, that incorporations should have a right to relieve themselves of all the obligations that were supposed to be placed upon them by this Constitution and the law ; that, if we said that they* were to be responsible, as insurance companies, so and so, yet they might relieve themselves from that liability, and that they ought not to be pre- vented from doing so, and that the State ought not to take the part of ignorant and unsuspecting people who dealt with them. I say that we are already too paternal as regards corporations and not euough as regards the people. We have already corporation after corporation in this State under the paternal laws of the State. Everything is owned by some impersonal somebody with no responsibility attaching to it, ancl hence it is that everybody is seeking to incorporate, in order to make money fast, escaping any responsibility, and holding it perfectly proper to Digitized . m DEBATES AND PROCEEDINGS Wednesday, swindle anybody that may come within their clutches. Because, the main proposition seems to be now, to get money. It is like the advice of the old Dutchman to nis son. He said to him, "You must get money; get it honestly if you can, John, but get money!" and the whole money and banking corporations of the State of California have got imbued with the old Dutchman's advice in some shape or other, espcially the latter clause of the advice. Now, the reason that we ought to disincorporate up to the line I speak of, is this: Take the history of the Bank of California. That is an institution that was and is known and seen of nil men in the Slate of California, and nearly of all men upon the earth in a 6nancial point of view, and I think clearly illustrates the necessity of personal responsibility, and the greater the better. That bank, by the extravagance of its offiocrs three or four years ago, wasted the vast sums at its dis)x>sal, found itself three or four or five millions of dollars in debt to its creditors. The result of it was this, that four or five or six men owned that bank or owned ninety per cent of its capital. These owners were very rich men and they were in great danger — absolute, danger as it appeared — if they undertook to shirk the reponsibility, that they could and would be held responsible under the laws making them responsible for the amount of stock that they owned, and they were responsible for it all because they owned it all. It resulted then that they thought it was cheaper for them to keep the framework of that institution good, to hoW its credit throughout the world, to pay the indebtedness, rather than let the bank go down. But that is an exception and about the only exc«ption that can b« mentioned. Most of these corporations have no rich stockholders, they have straw stotk holders; most of these incorporations have no rich directors, they have straw directors; most of those corporations have no wealth connected with them in any shape, but they are erected for the purpose of dragging in wealth. Corporations are not creators of wealth; corporations do not go out and work. A corporation is a seine that runs around the State and seines in the hard earned money of those who dy should adopt. I am opposed for one to loading down this article so that by and by there will not be anything of it. I want the committee to understand also that this amendment was not voted down by the Committee on Corporations. It appears in the minority report, and that would convey the idea that we voted on it and voted it down. That amendment never art of^ the cspilal stock or the corporation ; or, " 3. To discount or receive any note or other evidence of debt in pay- ment of any installment actually called in aod required to be paid, or with the intent to provide the means of making such payment; or, "4. To receive or discount anv note or other evidence of debt with the intent to enable any stockholder to withdraw any part of the money paid in by him, or his stock; or, " 4. To receive from any other stock corporation, in exchange for the shares, notes, bonds, or other evidences of debt of tlieir own coiporation, shares of the capital stock of such other « rporalion, or notes, bonds, or other evidences of debt issued by such other corporation ;— Is guilty of a misdemeanor. " Sbc. 581. Every officer, agent, teller, or clerk of any savings bank, who knowingly overdraws his account with such bank, and ther«bT wrongfully obtains the money, note, or funds of such bank, is guilty of misdemeanor. " Sbc. 462. Every officer, agent, teller, or clerk of any bank, and every individual banker or agent, teller, or clerk of any individual, vho receives any deposits, knowing that such bank, or association, or banker is insolvent, is guilty of a mlwlemeanor. "Sbc. 563. Every director, officer, or agent of any corporation or joint stock association, who knowingly receives or {K>«es9e3 himself of any property of such corporation or association otherwise than in pav- ment of^a just demand, and who, with intent to defraud, omits to make, or to cause or direct to be made, a full and true entry thereof in the books or accounts of such corporation or association, and every director, olBcer. agent, or member of any corporation or joint stock association, who, with intent to defraud, destroys, alters, mutilates, or falsifies any of the books, papers, writings, or securities, belonging to such corporation or association, or makes, or concurs in making, any false entries, or omits, or concurs in omitting to make any material entry in any book of accounts, or other recorf or document kept by such corporation or association, is punishable by imprisonment in the State Prison not less than three, nor more than ten years, or by imprisonment in a county jail not exceeding one year, and*a fine not exceeding five hun- dred dollars, or by both such fine and imprisonment Digitized l )' rogle Nov. 13, 1878. OF THE CONSTITimONAL CONVENTION. m " 8bc. 564. Every director, officer, or agent of any corporation or joint stock association, who knowinel^ concurs in making, publishing, or posting anjr written report, ezhioit, or statement of its afiairs or pecuni- arv condition, or book, or notice containing any material statement wfcich is false, or refuses to make any book or post any notice required by law, in the manner required by law, other than such as are men- tioned in this chapter, is guilty of a felony. " Skc. 568. Every director of a corporation or joint stock association is deemed to possess such a knowledge of the affairs of his corporation as to enable him to determine whether any act, proceeding, or omission of its directors, is a violation of this chapter." Mb. REYNOLDS. I move that the further reading of the gentle- man's speech be dispensed with, and that it be printed. Me. B.\RNE8. It was only for the information of the gentleman's colleague from 8au Francisco that I was reading. Mr. LiIKDOW. Will the gentleman from San Francisco give way just one second? So far as he read the statute of law I have not seen yet that he caipe to the point where we can catch the directors and President and make them pay the money back to the people that they stole already. [Applause and laughter.] There is the gentlemen can go and st«al. They are responsible for what they have been taking. Mb. BARNES. What I was undertaking to do was to show that this provision in the Constitution is no more protection to the stockholders and creditors of these swindles to which I have alluded than the pro- visions of the Penal Code. I did not propose to read them, but the gentleman from San Francisco, Mr. Lindow, requested me to do so, as he desired to find out souietbing about the law. I was trying to accom- modate him until his colleague from San Francisco was kind enough to move to have it printed. Mb. lindow. I know the French Savings Bank. I have been robbed out of my money because the director cut his throat; nothing else. The Constitution don't give me my money back. Mb. BARNES. Well, then, we ought to have a provision in the Constitution that directors shall not cut their throats. I suppose that would be desirable too. Now, Mr. Chairman, the Civil Code provides for these cases also. I merely mention this by way of illustration, for I believe that they should be held responsible for everything to which they are a party. That is the law now, that every director of a corpora- tion is personally responsible for the acts of the corporation in any unlawful administration of the funds, and he is deemed to know what be might have known. The one object I had in rising to address the committee was simply to call attention to the fact that we can accom- plish all these things by general declarations, and leave the balance to the Legislature. We are doiiig too much, or trying to do too much, with the Constitution. You may as well enact the Civil Code on this subject. I refer to sections three hundred and nine and three hundred and ten of the Civil Code, without reading them. Section three hun- dred and sixteen says: " Any officer of a corporation who willfully gives a certificate, or will- fully makes an official report, public notice, or entry in any of the records or books of the oof^ratioD, concerning the corporation or its business, which is false in any material represeutation, snail be liable for all the damages resulting therefrom to any person injured thereby; and if two or more officers unite or participate in the commission of any of the acts herein designated, they shall l)e jointly and severally liable." These provisions go farther than the provisions suggested by the gen- tleman from San Joaquin. They furnish the people a complete remedy for all these mischiefs. The difficulty is not in the law, and it is not going to be remedied by any Constitution we can make, because we have ^t the law already . Let the law be administered and it isenongh. There IS an ample remedy provided for all those cases. Though I am perfectly willing to vote for it, though it ought to be the law and it is the law to-day ; if it is the opinion that the jieople are going to be protected any better against swindling corporations, or the swindling officers of swindling corporations, 1 think it is a mistake. I do not think it is needed in the Constitution at all, and I do not think that any gentleman on this floor is eutilled to a patent for the discovery. Mb. E8TEE. Mr. Chairman : I move that the committee rise, report progress, and ask leave to sit again. (^rried. IN CONVENTION. The PRESIDENT. Gentlemen : The Committee of the Whole have instructed me to report that they have had under consideration the report of the Commillee on Corporations other than Municipal, report progress, and ask leave to sit again. The hour havipg arrived, the Convention took the usual recess until two p. K. AFTERNOON SESSION. The Convention reassembled at two o'clock p. h.. President Hoge in the chair. Roll called, and a quorum present. ■ (SOLUTION. Mb. Dun lap. Mr. President: I wish to send up a resolution. The secretary read : BetcSwdt That the Sergeant^t-Arnia be and ho la her«by directed to deposit vith the Slaw Lfbimrian two copies of the daily proceedings of the Conveutiun, and of tach coromlttM report which hu beeu or may hereafter be printed by order of tbi> Goarentlon. The PRESIDENT. The question is on the adoption of the resolu- tion. Adopted. AMENOIKO THE BCLES. Mb. CONDON. I gave notice that I should move to amend Rule Fifty-two, by striking therefrom the words, " by title," so as to read that propositions in reference to amending the Constitution shall be read by the Secretary. Yon will remember that a resolution has been adopted which prohibits the further printing of these resolutions. Now, it becomes necessary that the Convention should have some knowledge of the matter, and I think it is just that the same should be read when presented. I move now to stnke out the word, "title,' or " by title." Mb. McCALLUM. I have no objection, if we avoid one thing. That is one of the rules that cannot be suspended, under Rule Sixty. The gentleman will remember that they will have to be read in full. I sug- §est that he add the words, "unless by a two-thirds vote the reading is ispensed with." It is one of those rules that cannot be dispensed with, not even by a unanimous vote. There is no suspending that rule. Mk. CONDON. I accept that amendment, unless the reading is dis- pensed with. Ma. ESTEE. I hope this'will not pass. There are now six propo- sitions befo:'e this Convention to amend these different rules, and the result will be that they will be so changed that none of us will know anything about them. If we cannot know what the rules are, we can- not abide by them. I hope the Convention will permit the rules to remain as they are. Mb. ROLFE. Mr. President; I hope this rule will not be changed. If the rule is changed, every amendment and proposition that comes before the Convention will have to be read In full, and it will occupy half the time of the Convention in listening to them, and then we will know nothing about the contents. Let them go to the proper com- mittee, and that is sufficient. Two thirds of the propositions which I desired to get into the Constitution I have taken dfirect to the commit- tees, and have not brought them here at all, and every other gentleman Can do the same. I do not think it is necessary to print any more prop- ositions. In fact, if there is any proposition to amend the Constitution that members desire to have read, they can ask for the reading, and the Convention can, by a vote, order them read. I hope that the rule will stand as it is. The president. The question is on the proposed amendment to ~ Rule Fifty-two. Lost. C0BP0BATI0H3 — LIABILITY OP DIBECTOBS. Ma. FREEMAN. Mr. Chairman: I move that the Convention resolve itself into Committee of the Whole, the President in the chair, for the purpose of further considering the report of the Committee on Corporations. Carried. IN COMMITTEE OF THE WHOLE. The CHAIRMAN. The question is upon the amendment to section three. SPEECH OP MB. BOLFE. Mb. ROLFE. Mr. Chairman : I approve of this last amendment in the main. I approve of its object. I do not know as that is any par- ticular reason why anybody else should approve of it; but I merely state the fact. I wish to say that the section of the old Constitution met my approval, though I voted for the amendment of the gentleman from Alameda, Mr. Weoeter, as far as adopted, which simply made it • more explicit as to the li'ability of stockholders. I do think that the stockholders themselves should have some protection ; and it seems to me that this very amendment affords protection to the stockholders, and noakes the officers of these corporations more responsible. There is where I think a great deal of the responsibility should lay — with the officers. Now, it certainly would be a hardship for a person who innocently becomes an owner of a few shares of stock, in the management of which he has had nothing to do except to vote at the annual election for President and directors, that he — in case the corporation should fail' through the bad management of the Board of Directors — should lose, not only the value of his stock, but an additional amount. And we certainly know that this would fall upon innocent creditors, where it would be a greater hardship. This affords relief. This amendment provides that the directors or trustees shall be liable to the creditors and stockholders: therefore, when an innocent stockholder loses the value of his stock, and an additional amount through the bod manage- ment of the officers, he has somebody to look to to make his loss good. But there is one mistake in this amendment which the gentleman probably overlooked. It is this: it is too general in one respect. I do not agree with my friend from Monterey when he says he would like to have it more broad than it is. I think it is too broad, or else I am laboring under a mistake myself. "The directors or trustees" — it don't say that the directors or trustees of corporations shall be jointly and severally liable to the creditors for all moneys embezzled or misap- propriated, etc. Now, mjr objection is that this is for all time. A cor- poration may be in existence for many years. The officers of a corporation may embezzle a hundred thousand dollars, and the fact may not be ascertained for two or three years afterwards, when a new Board came in. The new Board would be entirely innocent, and yet they would be liable, because there is no limitation upon this language. Under this clause the directors that come in long after these embezzle- ments occur, are to be held responsible. Why, the corporations may go on for years misappropriating money, and years afterwards, when an honest Board comes into office and unearths these frauds and embezzle- ments, the very Board that does it, and who are honest and innocent themselves, will be held responsible for it under this very provision as it is now worded. I know that no gentleman here will insist on such a thing being put into the Constitution ; and I am afraid this language willliear just that construction. I think the same language should be used here in reference to directors that is used in the other amend- ment in reference to the stockholders — that is, confine it to the directors of a corporation during the administration where these misappropri- ations and embezzlements occur. Mb. terry. I do not understand that the language .T)Wg'fe 400 DEBATES AND PROCEEDINGS Wednesdav, such interpretation as the gentleman puts upon it. But if there is any doubt upon it, I am perfectly willing to put in an amendment to cover the point. Ma. KOLFE. The Courts may hold so, if you leave it to implica- tion. I have prepared an amendment wbicli I will read, wbiw the gentleman says be will accept, using the same language as in the other part of the section : " Durmg the term of office of such directors or trustees," to be added to the amendment. Mb. BAKXES. I think the jioiut sought by the gentleman will be covered by adding to the clause the words, " through collusion, neglect, or omission of duty of such directors or trustees." Mk. terry. I do not want to throw the burden upon the stock- holders and upon the creditors of proving neglect. The proposition is to make them direct sureties, the same as other sureties. Mr. ESTEE. Allow me to ask a question : Suppose there are seven directors of a corporation regularly elected, three of them honest and four of them dishonest; three of them doing their very best to protect the stockholders and creditors and attempting to bring the other four to justice; I ask the gentleman if, under his amendment, the three inno- cent men will not.sulfer? Mr. terry. There is no such case where one director or three directors cannot interfere ami prevent fraud. Mr. ROLFE. Where a thief comes in and breaks open the safe and carries oif the funds of the corporation, I do not understand that this amendment holds anybody responsible in a case of that kind, except the thief himself. Ths CHAIKMAX. The Secretary will read the amendment. Thk SECRETARY read: "Add the words, 'during the term of office of such directors or trustees.'" srKKca or mb. o'oonnrli.. Mr. O'BONNELL. Mr. Chairman : I hope that Judge Terry will stick to this amendment and not allow the word, as Mr. Barnes recom- mends, " misappropriation," stricken out from the amendment. As it reads now, " Directors and trustees of corporations and joint stock asso- ciations shall be jointly and severely liable." [Laughter and applause.] I'll ^ive you something to laugh at directly. [Renewed laughter and contmued applause.] Now, Mr. President, to remove that word " mis- appropriation " I think kills the entire eflect of the section. They might just as well remove the word " embezzlement." These lawyers [laughter] they think they are addressing a junr of Hoosiers. [Laughter and confusion.] They made the majority of this Convention believe that we are not officers of the State. And now they are trying to make us believe that black is white. They did make the majority believe that this was no office, that we are not officers of the State, but I hope that my fellow delegates will not allow themselves to believe, bv remov- ing this word " misappropriation," it will not affect this anieuament to section three. It is really necessary that this amendment should be attached to the section in order to make it any ways binding on these directors and trustees. I hope that this amendment will prevail just as it is, without any alteration whatever. I think my friend from Stockton introduced this amendment in good faith. And it is a good amendment. It covers everj'thing. But my friend Estee says he wants the word "misappropriation " removed from the section. Why, sir, that's the best word in the section. [Laughter.] It makes up the whole effect of the section, and I hope that my friend Judge Terry will not allow it to be removed from the section. If it should not prevail, my intention is to try and get an iiide|)endent section to that effect. I hope this will prevail without any alteration. It covers everything. I thank you kindly for your attention. [Laughter.] sriKCB or UR. wilsux. Mr. WILSON, of First District. Mr. Chairman: The propositions involved in the amendment offered by the gentleman from San Joa- quin involve a question of principle and of business which should not be disposed of by an indignation meeting nor by way of sentiment. It is a question of cold reason and good common sense; and I desire, in the lew remarks that I shall make, to address the Convention in that aspect, and not endeavor tugbt these innocent directors to sufferT What have they done that they should be compelled to for- feit their property, when Inry themselves are utterly innocent and free from all blame in the mallerT If tbeamendment bad said tbeyahouM be responsible in case of omission of duty, in any case of collusion, in any case of misfeasance of the directors, there would have been some justice, some right in holding them responsible — but the amendment goes beyond this limit. It is conceded that, in such cases as I have just referred to, according to the established principles of common Uw, the directors or trustees are responsible to the stockholders and to the cred- itors. But we are now asked to proceed further and make the directors the guarantors and insurers of the good conduct of each other, and of the honesty and good conduct of every officer connected with the insti- tution without exception. I say it is not practicable. The directors of corporations will be compelled to establish the practice of requiring bonds of every officer connected with the institution. We therefore exclude the poor man from employment by corporations, because tbejr will be unable to furnish the enormous bonds that may be required of them under a provision of this character. There will be a monopoly of this kind of employment in favor of rich men's sons in such an event, and the result will exclude from banks and other corporations a large class of deserving men. The bonds will not be of much consequence after all, for in nine cases out of ten recovery is doubtful. I say it i» not a sound business principle to make directors of an institution respon- sible for the acts of the officers under all circumstances, independent of the collusion of such directors, or of their omissions of duty, or of their own misfeasance in office, and as a business man I desire to be placed upon the record as opposing it ; as a man of common sense I wish to appear upon the recoiil as resisting it, and, finally, as a man claiming to have some knowledge of the practical business working of corporations. I wish to be placed squarely upon the record as opposing this amend- ment. Arguing from the standpoint of the Convention itself, an innocent man, who has committed no fault and against whose integrity and character no man can speak a word or find wherein he has failed in the performance of his duty, is sought to be held responsible for the mis- deeds of another. For instance, the cashier of a bank is ingenious and skillful enough to rob the bank in the night, through collusion with the porter and others. He obtains the combination of the safe, and at night, with the porter and others, proceeds to rob the bank. Should the trustees and directors be responsible for that embezzlement? Vp>n what prineiijes of law or justice should they be responsible? In the first place, the corporation must have a cashier. In the second place, it must have porters. In the third place, it must have combinations on the safes, and some employ^ or officer must be in possession of the secret combination, for the business of corporations can only be transacted and carried on through agents, and it cannot be done in any other vay^and these agents must b« trusted by the diiecton;_jrake a banUng isitita- Digitized by Google Nov. 1^, 1878. OP THE CONSTITUTIONAL CONVENTION. 401 tioD if which, notwithstanding all the care and attention that the direc- tors have bestowed upon it, and notwithstanding they have counted the money of the bank and locked it up in the safe and the combination preserved in the hands of the cashier or secretary, in whom tber and tlie community have implicit confidence, and the cashier, through collu- sion, if you please, with the porter, effects an entrance into the safe and robs it in the night and absconds with the money of the bank. Should the directors be held personally responsible for that act? Me; terry. Suppose you' deposit money with a private merchant and somebody breaks m and steals it, isn't he responsiole to yon for the money? Why should a corporation be more favored than a private individual ? ( Applause.] Mr. WILSON. I will explain that in a moment, for there is a differ- ent principle involved in the proposition. The gentleman says if a man deposits money with a merchant, and his clerk steals it, the principal is responsible. That depends entirely upon circumstances, and it de|)ends also upon the character of the de[>osit. Let my learned friend consult the law, and he will learn that if the man with whom he deposited the money has exercised due care and caution, he is not responsible. The gentleman is utterlv mistaken in his law on that subject. Me. terry, ite is responsible. Me. BEERSTECHER. If the gentleman from San Francisco will allow me Me. WILSON. I suppose I am a law catechism — What is the chief end of man? Proceed. [Laughter.] Mb. BEERSTECHER. I ask the gentleman if there is not a differ- ence in the cases he mentioned, whether embezzlement would not mean money abstracted from depositors in the course of business and not money taken from the safe outside of the regular course of business? ' Mb. WILSON. I am now answering the illustration of the gentleman from San Joaquin, Mr. Terry, and I say his illustration is utterly wrong for another reason. Let us take a case where money is deposited with a merchant who has two clerks — one innocent and the other guilty — and the principle he invokes would make the innocent clerk pay for the default of the guiltv clerk, and he cannot escape that conclusion, and that is his proposition. The merchant who has lost his money by the defalcation of a dishonest clerk, compels the honest clerk to pay that loss. That is the principle of this amendment, and the innocent man must suffer for the dishonesty of another. Let us regard this in another light, and not permit this matter to go by default. When a bank loses its money by embezzlement of an employe, or otherwise, the creditor, of course, has a just claim against the bank for his money, according to the contract; but, because the money has been stolen from the bank, that fact does not release the bank from liability to the creditors. The money is there on deposit in the bank, according to law, and the stealing of the money does not release the bank from responsibility. This is not a question involving the liability of the bank to the creditors; it is not a question involving the liability of the bank to the stockholders; it is not a question as between the bank and the stockholders and the creditors. There is no such question before us, and I am not going to permit this amendment to pass by default, because I know I am ri^ht, and I desire to impress upon the good common sense and sound business judgment of the mem- bers the correctness of my views on this subject. The directors are not the principals of the institution, but are merely agents, and the question is, bow far shall the directors be held responsible for the acta of persons other than themselves in a case in which they are altogether free from fault, and it is upon (hat proposition alone that this Convention must solemnly record its vote. If you establish the proposition that it is impossible for money to be embezzled, and that it is impossible for money to be mis- appropriated, except by the default of the directors, then the amend- ment 18 right, because it is only u|>on such a theory that the directors have committed a wrong. I concede the proposition, that whenever directors are caught doing wrong they should be held responsible to the fulleet extent. Assuming that it is impossible that there can be any embezzlement or misappropriation of money except through the default of the directors and trustees, of course they should be held responsible ; but the propo- sition proceeds upon a false assumption. I am willing, so far as I am concerned, to accept this amendment by adding at the end the words, "through colhision, through neglect, or omission of duty of the trus- tees or directors." But the gentleman would go to the extent of making the directors absolutely guarantors and insurers against all accidents, against all treachery of employes, and loss of every kind to the corpora- tion. In other words, the directors of a bank, as I have said, may count the nioaey in the evening, lock it up in the safe and go home, und yet if any one of the large number of men connected with that bank, and having opportunities to commit fraud, steals the bank's money and commits robbery that night, the directors are made person- ally responsible for the loss by this amendment. There is no Constitu- tion or eodc of laws in the world that can actually prevent a man from committing fraud, and we cannot prevent it. We cannot make a, man honest Fraud will be perpetrated from now until the end of time, as it has been from the beginning of time down to the present. We can hold a man responsible who commits wrong. We can hold a mon responsible who, through his own neglect of duty, affords an opportunity for others to commit wrong. When we have so ordered we should proceed no further, for that is the place to stop. That is the point where judgment and wisdom tell us to stop. When we pass this prudent limit and hold a man responsible for the act« of another, where there is no fault attached to him, I say it is thoroughly wrong in principle and unjust in the extreme. Consider this matter a little and take for example Wells, Fargo & Co. That cor- poration transacts business all over the Union. It has an office and an ^«nt in eveiy village in this State. These agents receive money 51 throughout the interior of California. Where are the directors ? Where do they reside? The Board of Directoraare in San Francisco, the prin- cipal place of business of Wells, Fargo Si Co. Bullion is placed in charge of Wells, Fargo & Co., in the interior, beyond the control of the Board of Directors, and the agent steals it, of course the corporation is respon- sible, but the Board of Directors, personally and individually should not be responsible in such an event. What have they done to render themselves responsible? What great constitutional principles require that they shall be personally responsible for the embezzlement of a clerk or agent at one of these branch offices a thousand miles in the interior? The convenience of the public demands the maintenance of these vari- ous agencies, and its business is largely carried on in that way. It has an office in every village in the State for the benefit of the public, and large sums of money coming in and going out daily, and these agents must of necessity be trusted. The Board of Directors cannot personally and individually supervise all these officers; and yet the principle announced by the gentleman makes these directors and trustees person- ally responsible for the embezzlement of every agent and employ^ who handles the money of Wells, Fargo * Co. in the-State of California, and in fact throughout the Union. If there is any sound principle in such a pro|X)sition, I have vet to learn it. There are numerous otner institu- tions that have agencies which were established and are now maintained by and with the consent of the stockholders. The Bank of California has agencies in different places, in Virginia City, and other portions of the country. The Board of Directors uses its best judgment in the manf^ement of the institution and its acts are approved by the stockholders. The Board of Directors must remain in San Francisco and cannot be present at these various agencies, and know personally what is transpiring, and no matter how much caution it may exercise, embezzlement may be committed by some of the officers in these various places. No\v, what sense is there in holding them responsible for what they, together with all the stockholders, could not possibly prevent? In all corporations men must be trusted to transact the lawful business of the institution. A man occupies a position of trust in one of these banks, and checks come in from other banks, or through the Clearing House, and he col- lects the money on the checks and nevef returns to the bank, but absconds on the steamer and dejMirts from the State; should the direct- ors be personally responsible for his act? Men must be trusted. Some- body must have confidence reposed in them. Somebody must transact the business and perform these duties for corporations. And as I have said, an officer is sent oOt to collect forty thousand dollars from a bank in a large city where business is transacted and largely facilitated by an interchange of checks. The officer collects thirty thousand dollars, never returns to the bank, but starts off on the 8tcamer,or by some other mode of transit escapes from the State. And yet the institution of which he was an employ^ observed the greatest caution at all times, and the eniployiS enjoyed the eontidence and esteem of all the directors and stockholders; should the directors be held personally responsible under such circumstances? Frauds have been committed, although encircled with caution, and will be to the end of time. The Courts of law and equity have never yet been willing to specify any exact definition of what fraud is. The onljj definition we have is clothed in general terms. These are but a few of the many instances where such a provision would work injustice and wrong. I claim that it is wrong in a business point of view; wrong in any and every aspect; it is wrong upon principles of law and equity, and wrong in point of constitutional principles. Take, as a further example, the case of a director who is absent. He is called from the city on important business, and an embezzlement takes place in his absence by one of the officers connected with the bonk ; should he be held responsible? Take a case of sickness. In which a bank director is lying at the point of death in his bed at home. He left the bank under circumstances that assured him all was safe, and during his illness a robbery has been committed by an employ^. When he is convales- cent and recovers his consciousness, he finds that the law has made him responsibly for a wrong which he did not commit, and of which he had no knowledge, and which did not occur by reason of any neglect or omission of duty on his part. . That is just the princi)>le involved in this amendment of the gentleman from San Joaquin, Judge Terry; and innumerable instances might be presented and multiplied, of the extreme harshness and absolute injustice of this amendment, for its counterpart cannot be found in the heavens above or in the earth beneath. If the amendment had a provision at the end to the effect that " directors or trustees of corporations and joint stock associations shall be liable for moneys embezzled or misappropriated by the officers through neglect or collusiott-or omission of duty on the part of the directors or trustees," I would interpose no objection to voting for it as a law to take its place in the Civil Code; but it should not be in the Constitution under any cir- cumstances. In my judgment, the place for such an amendment is in the Code, and not in the Constitution, which must stand as the organic law of the land. SPIRCH or UB. DOWLIKO. Mb. DOWLING. Mr. Chairman: I don't expect to speak in the< interest of capital. I am not in the interest of capital, but, sir, the intention of this amendment it seems to me is very explicit. In fact, it is almost what I want, and I hope it will pass. The intention of the amendment is simply to preclude the possibility of any irresponsible corporation or company robbing persons out of their money. It puts a halter on money corporations, and gives to the laborer that which he has earned. I know an institution over in Idaho, that shut down their works, and they never paid a cent to their laborers, and the miners remainelace to put such a clause. The Convention of eighteen hundred and orty-nine, which framed the present Constitution of California, thought Ero|>er to put into the Constitution a clause defining the liability of stock- olders in a corporation. For twenty- 1 ' )r-nine years it hoar beeniiiere, onf ^^ Digitized by VjOO^ It. 404 DEBATES AND PROCEEDINGS Wednesday, to-dar I propose to renew the clause, and add to it what is made neces- sary by tne new order of things. Why should it be left to legislative , enactment? When this Convention assembled it was deemed proper by a commit- tee composed of experienced legislators, who are members of this Con- vention, to hnve a Committee on Corporations; a committee that should put into the Constitution which we are here to frame, certain clauses and articles respecting corporations, defining their powers, and fixing the liability of stockholders. They made a report in which these things were embodied. I thought if it was proper and right that the Constitu- tion should fix the responsibility of the stockholders of a corporation, that it would not be improper or wrong, in the same connection, to fix the liability of those who control the property of the stockholders. And therefore I oflTered this amendment to nx, by a ooustitutional pro- vision, the responsibility of the directors and managers, making them responsible for the conduct of those whose duty it is, under the law, to transact the business of the corporations, and to compel them to see that no money is embezzled or misappropriated. They are required, under the law, to oversee and investigate all the business of the corporations; to examine the accounts, and count the money. And it is their business to see that those officers who are under their control, subject to be dis- missed by them at a moment's notice, perform their duty properly, and neither embezzle the money nor misapply the funds intrusted to their custody. I do not see anything wrong, anything unjust, in such a propo- sition, saying to these three men: I place my money in your keeping and you shall be responsible to me for it; for the honesty of the persoiu in your employ. There is no wrong in that, nothing unjust, nothing that IS not e<]uitable. That is the efiTect of this amendment — simply to make these directors or trustees — by whatever name they are known — the sure- ties upon the bonds of the Cashier and Teller; that they will j>erfnrm their duly properly; placiuz them on the same plane as other sureties. Suppose a case of a State Treasurer, or a County Treasurer. It is no excuse if I go on the bond of the State Treasurer or of a County Treasurer, and he misappropriates the money. It is no excuse, I say, that I am innocent, and didn't know he was going to do it; that I tliought he was honest; that I ought not to pay the Iwnd, as the gentleman from San Francisco, Mr. Wilson, said. No, I went on his bond with my eyes (•pen, and I am required to pay. I do not pav because of any miscon- duct of my own, or any wrong of my own. It is my option to go on the bond or to withdraw, but while I remain on his bond I am responsi ble for his official acts. Now, where is the wrong or hardship of requiring these men who appoint the Cashier, or who control the actions of the Cashier — those men who have the power of appointing and discharging — to be respon- sible for any misappropriation of money, or any misconduct which will dimiuisb the funds of the corporation and entail a loss upon the stock- holders. And then again, another effect of it: if this amendment is adopted as apart of the Constitution which is to be submitted to the people of this State, the gentleman from Marin need be in no fears that the pro- vision will weigh down the Constitution. You will have no more respectable men allowing themselves to be made decoy ducks of. You will have no more figure heads, in the shape of B you will (orce them to do their duty. That is the only way you can force them. You say to these men, you must be responsible ior the acts of those men you put in there to manage and conduct the business. You can take security from them if you like, but we hold you responsible. But gentlemen got up and talked about this being a great outrage, and got very indig- nant over it. There is nothing that would give grounds for any such talk. It struck me aa a provision which should go into the Constitution in connection with the other provision making stockholders liable. It struck me as a provision, the need of which I have seen in this State many times, and it would prove a safeguard to the people and to the stockholders. It would prevent a repetition of the too common abuses of the past, without doing injustice to any honest men. I do not know who was alluded to when it was said by a gentleman on this floor, that perhaps some of the members at the great judgment day would exiiect to sit alongside of the Supreme Judges, or Associate Justices. When that day comes, if come it does, when we are wafted across to the other shore, I shall not be surprised at that very moment to see the immaculate Chairman of the Military Committee of this Convention, the Eminent Commander of the ceremonies there. [Laughter.] Now I think the sense of this Convention is that something should be done to prevent the robberies of the public by corporations, and it occurs to me that this is about the most effectual means of preventing it. It occurs to me that the Constitutinu is the place to put it, where it can- not be amended or repealed at any time by a hasty Legislature. I do not approve of the amendment offered by the gentleman from Alameda, Mr. Van Dyke, and would not accept it, because if I did I fear that some time in the future the law which now makes these officers appointed by the Directors would be changeoration stock, and the five directors get the whole vote of all the stockholders. Two of them are well known business men in the community, and three of them are strangers to the other two. But the stockholders put them there, and they say to the two that are well known, we know these three genUemen, and we make them our agents, and we have given them the controlling vote in the affairs of the corporation. At the first meetings resolution is presented contrary to the law, declaring a dividend, when there are no funds in the treasury, when the money will have to be borrowed to pay the dividend. Two of them enter a solemn protest against it, us violation of section three hundred and nine of the Civil Code, and enter a protest dissenting from the action of the majority, because, they aay, you are robbine the stockholders, and because yon are going oontrary to the statutes. But three of them, notwithstanding the statutes that pee- scribes that they shall not make any such dividend, vote for it iow if this amendment means anything, it means that the minority are responsible for the acts of every officer of the corporation. Now, let me pursue it one moment further. My friend, Mr. Dowling, is a director in a corporation, is one of the minority. He is a iwom officer, and he comes in at the mcetinz of the directors and entena solemn protest against this illegal act. He protests against the robbery of the stockholders, and against this violation of the law in any suoi manner. He is there defending the interetts of the stockholders aad the public But what is the result? Why, Mr. Dowling, who hasdone everything that it was possible for an honest man to do in order to pre- vent the consummation of this unlawful act, is made to pay forthecriniM of the men who voted for that resolution. The innocent and the guilty are alike punished. I want to know if this Convention will indoree that proiiosition. I cannot believe they will. The law by which this Convention was organized allows members to enter tbeir protest on the record against the adoption of any measure they may object to ; and for one, when the occasion comes, and this takes the proper shape, I am willing that my protrat shall stand the test before the people of this State. It is not honest ; you must know it is not. We all know it. We all know the country is full to overflowing with these corporations which are robbing the |>eople. You are seeking to remedy the etiis, but you are going the wrong way, using the wrong remedy. You are trying to load down this article on corporations that meets our approval. I ask you not to weigh down this article with that class of legislatkin that will destroy its usefulnesss. Sir, some questions rise which are loo serious to be treated thought- lessly. Applause falls faintly upon the ear when that applause follow! the advocacy of principles which will lead to the destruction of some of the great institutions of the country. We are here for the purpose of building up an organic law that shall survive after we are gone, and if that law, and every section of it, is sot founded on the eternal prind- files of justice, it will not be accepted by the people, and should not be. low will we make the innocent directors of corporations liable for every embezzlement done by the other officers of the corporation. I suppose the gentleman means civilly liable. If they are liable at all, why not make them criminally liable and send them to the (jenitentiary, because it is one and the same proposition — a dereliction of duty — and when- ever an embezzlement occurs there is a crime committed. And the directors are responsible for that crime. Why not go the whole length and say they shall be civilly and criminally liable. That is the logical deduction of the argument as I understand it. I know the gentleman is trying to reach and remedy an evil. And I would be willing to vote for almost any measure that would rid the State of these institutions that have so long robbed the people. But let us do it in a way that will be just and right and creditable to us as representatives of the people. Follow the illustration one step farther. Supjiose at the first meeting of these directors three of them decide to elect a well-known scoundrel— a man of notoriously bad reputation in the county — as Treasurer. "Two of them vote against him and say, we will not stand this outrage; it a not right, and we will utter our protest in the records, as the statute says they can do, and vindicate ou^ character before the community. They can do no more. Then this notoriously bad man takes hold of the funds and that night absconds with them. Aceording to this amendment, these men who have done everything they could do t« save the capital of the stockholders and creditors of that corporation, will the next morning have to pay the amount of money that this Treasurer has robbed the company of. The thing should not be thought of for a moment It should not receive serious consideration. Again, sir, I enter mv protest against loading down this article with amendments that can do no good, and n'lay accomplish great harm ; and I fcy to you, Sentlemen of the Convention, leave something to your committee that as been selected to take charge of this question; that haJs given it thoughtful inquiry and careful consideration. The committee took the old Constitution and saw how the old section read, and they examined the discussions of our Courts and saw that it had passed through and survived twenty-nine years of the history of the old Constitution; they Digitized u J Nov. 13, 1878. OF THE CONSTITUTIONAL CONVENTION. 405 mw that whatever wrong had been committed, sir, had been committed, not by reason of the weakness of this section of the old Constitution, but, as my friend from San Francisco says, by reason of the corruption of the officers who have been connected with these institutions. They saw, too, that only last Winter, and two Winters before, the people of this State, through the Legislature, attempted to remedy these evils. liast Winter, sir, your Iiegislature created the minority representation referred to by the gentleman from Santa Barbara, whereby the majority of the stockholders of a corporation should be represented uj>on the Board. So this great reform, following in the wake of the old section, your committee concluded to let that section stand. It has been amended already by the gentleman from Alameda. And now, after all this experience, we are called upon to attach to this section an untried, questionable provision — a more than doubtful provision. And where there is doubt as to the wisdom of a constitutional provision, it ought to be rejected. I think we owe it to ourselves and to the people to vote 'against this amendment. I have said this ranch because I felt it was due to the committee; I felt that it was due to the people; and I felt that if this amendment, as drawn by the gentleman, should be ailopted, it would have a venr marked effect in loading down this article on corporations, which i look upon as one of the most important to the people of any in the proposed Constitution. SFEKCH OF MS. REBRlNQTOil. Mb. HERRINGTON. Mr. Chairman: I am exceedingly gratified at the position of affairs, at the determination which is manifested here to maintain the integrity of the provisions attempted to be placed in the Constitution on behalf of the people. The question has been fairly pre- sented by the gentleman from San Francisco, Mr. Wilson. He has placed it on a fair basis for our consideration. Taking the arguments that have been presented by the learned gentleman, I think it pre- sents the strongest reasons why this provision should be ado{>ted. I say that we are in possession now of the fort, and it devolves upon as to hold the fort. I say the position is well taken, and the arguments are all on the side of this amendment. How easy it is for tnesc distin- guished gentlemen, when this provision is engrafted into the Constitu- tion, to say that no appropriation shall be made except by a majority vote of the directors. The difficulty is at once avoided. How easy it is to say that no man shall bo installed in office except he give a good and sufficient bond fur the faithful discharge of his duty and the faith- ful discharge of the trust i«iposed upon him. Is he in any worse con- dition than an officer of the State, wl)en he is put in charge of an office and a bond required from him? Why, it is nothing but a little govern- ment— imperium in imperio. Why, these officers do not hesitate because they have to giv6 bonds. If these directors are so blind as not to see their own interests let them suffer according to the provisions of the Constitution. In God's name let the people be protected for once. Now, where is the difficulty? Show me a plainer proposition. I see no difficulty about it. It is as plain as a Bunbeani. It is a contest for once where the people are in possession of the fort, and it should be held forever. [Applause.] It is not a question between the innocent and the guilty in the light the genyeman has slated it. It is a question in one sense as to whether the innocent shall suffer for the acts of the guiltpr ; but who are the innocent? The people are the innocent parties, and It is a question as to whether they shall suffer. It will not affect honest corporations, except to strengthen them. If they cannot be honest, if these corporations are sinks of iniquity, then, I say, let them go down, and God speed them in perdition. [Applause.] The people have suffered long enough. I feel in earnest on this question. The whole land has been groaning for years under the burden; the people have stood it long enough. I say if the wealthy corporations cannot protect themselves and exist under such a provision let them go down loo. Is not there a healthy condition without them? Cannot we get along without them? Why, if every corporation should leave the count)?, or disincorporate, tJie country would be just as well off. Just as well off. I believe, however, in the protection of corporations. If a corporation, like an individual, is honest and square, it need have no fear of the law. The law has no terrors for any but the wrongdoer. If they cannot trust their subordinates let them require bonds. If they who appoint them, and control, and direct them, cannot trust them, how can it be expected that the people and the stockholders can trust them? There is no difficulty about it in the world. No man should be per- mitted to hold a responsible position unless be can give bonds. Let the directors choose men who are fesponsible. The stockholders will not permit a director to retain his position very long unless be sees to it that the officers appointed are trustworthy. I^ow I say that the business of a corporation should be conducted with just as much care as the government of the State of California is con- ducted. The great trouble is, that the great interest of the people is lost sight of, and the interests of the stockholders too often lost sight of and forgotten. The whole course of legislation has been in that channel. There has been too little attention paid to the management, too little responsibility attached to those who are in office and control and man- age the affairs of these institutions, and I submit that for once there should be some regulation — some legislation for the protection of the •toeklwlders as well as those who deal with corporations. Let it be put in the Constitution. This is a good provision, and the Constitution is a good place to put it. It is a strong provision, and a just one. It com- pels these corporations to conduct their business honestly. It will bring aboat a healthy condition of things. There is nothing in it but what is right. Let the corporations do business, and be responsible as individuals do. If they cannot do business because we compel them to deal justly; if they cannot do business without robbing the people and the stock- holders; then the sooner they go down and are wiped out of existence th« better it will be for the country. These are the reasons why I favor the amendment. Mb. HOWARD. Mr. Chairman: I would inquire if the proposition is still open to amendment. - Thr CHAIRMAN. No, sir. There is an amendment to an amend- ment pending. REUIBKS or UK. HOWARD. Mb. HOWARD, of Los Angeles. Mr. Chairman : For the purpose of information, I wish to read an amendment which I shall offer when it is in order. In the fourth line, alter the word "liable," I shall move to insert "in all cases of negligence." I approve of the proposition of the gentleman from San Joaquin, to a certain extent, but I think it goes too far — farther than he intends — farther than his explanation indicates was his intention. Now, it was decided by the Supreme Court of the United States, in a very early case, that society had not all power; that society could not take property away from A and give it to B. And society can not declare an innocent man guilty. I hold that is the law. Now, you are going to hold A civilly liable for the criminal act of B, and they say that is good law. I deny it, because this Convention can do no such thing. My judgment is, that if this should be inserted in the Constitution, any enlightened tribunal would pronounce it void, for the reason that one man cannot be held liable, civilly or criminally, for the crime of another. This provision proposes to do so. Therefore, unless luy friend accepts this amendment, I cannot vote for the propo- sition. BKMIBKS OF MB. OltACI. Mb. GRACE. Mr. Chairman: I am in hopes the gentleman from San Joaquin will not accept any amendments. I am m favor of this amendment as it stands now, and I do not see how honorable delegates can get up here and raise such a cry against a measure which is as just as this. I don't see how they can say that innocent men are to be held responsible for the acts of corrupt men. I want these corporations niRde responsible. I want thcin to make persons give bonds and secur- ity, so that when depositors take money and deposit with banking cor- porations, or transact anv other kind of business with them, they will be secured. Now, if the directors are not to be responsible, I don't know who is. Somebody has got to pocket the losses when losses oocur, and if the officials are not to be responsible, then the loss must fall upon the depositors. Here the hard-fisted yeoman, the working men, and the working women of the country have to stand the loss of their little savings in order that the innocent director may go free. They say we must not make a law that will punish an innocent director. The innocent must not suffer for the acta of the guilty, they say. Well, sir, if somebody is not made responsible, these robberies will continue. Which is better, that an innocent director should suffer, or that inno- cent men and women who have worked hard for their money should suffer? The director is in a position to help himself, the people are powerless. I say these robberies must stop. When a man puts his money in the bank in the morning, he don't know whether he is going to get it out at night or not. The Constitution is the place for this pro- vision, notwithstanding the opinions of all the corporation lawyers in the State or here. 8PBICB OF MB. FBBKMIN. Mb. freeman. Mr. Chairman : The arguments against the prop- osition of the gentleman from San Joaquin, so far as I have been able to understand them, seem to consist of three propositions. The first was that the existing laws were sufficient. The second is that the liability imposed is too great, and the third is that the power of the corporations of this State may be so great as to overwhelm us if we insert the provisions in our Constitution. The first branch of the argument, namely, that the present remedy is sufficient, is not good argument, because the people are demanding a provision that will protect them and enable them to get their money. I say they have already suffered much, and you cannot put them away by simply telling them that yon can employ counsel and bring the criminals to prosecution. Their reply will be that they have lost their all, or at least, that they have lost all that they can afford to lose, and that the indemnity they want is something that will reinstate them in their lost possessions. But, turning to the Penal Code — but first, atten- tion has been called to the Civil Code by gentlemen of recognized ability as lawyers, and I assume that the provisions to which attention was called, are the only provisions upon this subject. Section three hundred and nine of the Civil Code is as follows: "Sec. 309. The directors of corporations must not make dividends except from the surplus profits arising from the business thereof; nor must they divide, withdraw^ or pay to the stockholders, or any of them, any part of the capital stock ; nor must create debts beyond their sub- scribed capital stock, or reduce or increase the capital, except as herein- after specially provided. For a violation of the provisions of this section, the directors under whose administration the same may have happened (except those who may have caused their dissent therefrom to be entered at large on the minutes of the directors, at the time, or where not present when the same did happen), are, in their individual and private capacity, jointly and severally liable to the corporation, and to the creditors thereof, in the event of its dissolution, to the full amount of the capital stock so divided, withdrawn, paid out, or reduced, or debt contracted ; and no statute of limitations is a bar to any suit against such directors for any sums for which they are made liable by this section. There may, however, be a division and distribution of the capital stock of any corporation, which remains after the payment of all debte, upon its dissolution or the expiration of its term of existence." Now, that has reference to the single instance of the withdrawal of money from the funds of the corporation for the purpose of paying too great dividends; and in that case only provides for the liability of those officers where persons enter their protest. This provision does not afl'ect the matter under consideration. That imposes no liability of the kind set out in this amendment. Now, the second section of (no Civil Codo ^ t^ 406 DEBATES AND PROCEEDINGS Thursday, Teferred to by gentlemen upon the other side is aection three hundred and sixteen. It reads as follows : "Sue. 316. Any officer of a corporation who willfully gives a oertifi- cate, or willfully makes an official report, public notice, or entry in any of the records or books of the corporation, concerning the corporation or its business, which is false in any material representation, shall he liable for all the damages resulting therefrom to any {lerson injured thereby; and if two or more officers unite or participate in the commission of any of the acts herein designated, they shall be jointly and severally liable." It is plain that that section is not a remedy, for it only refers to the making of false reports, etc. It is e<(ually plain that if these provisions did cover the subject, they are not in the constitutional law — they are not a part of the unalterable law of the land, where the history of the country points as the proper place to put them. Now, turn to the question of liability, and I say it seems strange that gentlemen will ar^e in favor of liability for the people who do business, and yet want no liability attached to them when they embark in corpo- rate enterprises. Why, sir, if there is to be no liability in our case, there would scarceljr be any liability at all. If I have a partner in my business, and he acts without my knowledge or consent, am ] not liable? It is true I am innocent. But I have placed myself in a position where pub- lic policy and the law demands that I should be liable. Now, a common carrier is engaged in carrying money, and the money is lost or stolen, is not the common carrier liable ? And yet the common carrier may be perfectly innocent. But public policy and law has required it. If I send a boy in my office out to collect a sum of money, and he misap- propriates it, am I not liable, however innocentT Public policy and the law exacts the liability. The logical conclusion of the arguments on the other side is that the officers shall not be responsible for anything. Mb. WILSON. If the gentleman will allow me. Suppose you have two hoys in your office, and you send them out to collect money, and one of them steals the money and leaves, arc you going to make the other boy pay the loss — held him responsible? Me. freeman. I have to pay it. Mr. WILS ES. I desire to call the attention of the gentleman to what I endeavored to say. I know he would not desire to misinterpret me, but from the fact that he is so far removed from me he probably did not understand me clearly. I said that if it was even desirable to have such a provision as this, it did not appear to me that it should be put in the Constitution, but that it belonged in the ('ode, and I called attention to the Civil Code and Penal Cone, and showed that the Legislature had been acting upon this and kindred subjects, and had got so far as to put these various provisions in the Code; and then I said if this provision was deserving of a place in the Constitution the others were just as good, and much more specific, and ought to go in too. That is the way jn which I alluded to it. That we ought not to undertake to legislate upon it, hut that we ought to make a general declaration of principles. In that respect I do not think the gentleman fairly stated the argument. Mr. FKEEMAN. I may have misunderstood the object of the argument. I know the distinguished gentleman spoke of the impro- priety of inserting the whole Penal Code in the Constitution. I under- stood him to refer to the Penal Code and the Civil Code. Mr. BARNES. I quoted the Code to show that the^ had been legis- lating upon this subject, and that if one of the provisions was entitled to go in, they all ought to go in. That is the only point I had in allud- ing to it. Mr. freeman. I may be unfortunate in my understanding. L only repeated it according to my understanding ; I do not want to enter into any question of memory. But to return to the question of liability. We have had a provision in our Constitution which looked to the liabil- ity of the stockholders for the debt and liabilities of the corporation. For man^ years, at least, we have had those statutory enactments neces- sary to give life and vitality to that provision. Now, each Legislature has maintained the proposition that the stockholders of a corporation ought to be liable for such proportion of it» debts and liabilities as their stock bore to the whole capital stock of the corporation or association. Upon the sympathetic arguments presented here, that is all wrong. Now, are not the stockholders upon the question of innocence, at least, more likely to be innocent than adireetor. They have the election of directors, anci the directors assume and have the sole right to manage the affairs of the corporation. It Is the Board of Directors, acting as a body, that authorize the making of contracts, and the employment of men to manage the business. They have far greater opportunities to make themselves conversant with the workings of the corporation than the stockholders have, and I say everpr reason which has impelled us, every reason which impelled the Legislature, to vote for the liability of the stockholders, would impel us to vote for the liability of the directors. Now, in regard to the question of public policy, this is the condition of affairs that has been developed in the history of this State: that a Board of Trustees are elected ; that they assume the management of the affairs of the corporation, and thereupon they proceed to bleed the pub- lic and the stockholders in every way possible. And that condition of affairs has arrived when it is incumbent upon this Convention to do eveiTthing it can possibly do to discourage these evil acts on the part of the Board of Directors. Now, in regard to liabilitv. In the first place, it is assumed no man need assume a position of that kind, unless he is willing to bear the responsibility. lie has the opportunity to know what IS going on. Now, in respect to embezzlements taking place, it has already been explained that the directors may relieve themselves of all responsibility or liability, by requiring bonds of the officers of the corporation. Now, in regard to misappropriation of money. It neces- sarily assumes an illegal act. It necessarily assumes some act which the body had no right to do. Now you say that the minority director is liable for this act, even though be proteat* againat it — if he votes against it and protests against it. He does not perform his whole datv when lie contents himself with voting against it and entering his protest If it is an unlawful act, the law provides some means of preventing it, and it is his dutr to take such legal proceedings as will prevent the oonsura- mation of the act. And it is because men have not done this that the people have suffered. It is because these men have not stood up and done their duty that abuses have existed, and this provision is to compel them to do their duty. And I say farther that it is not a sufficient answer to the proposition to show that such contingencies mky onasien- ally occur, because the question on every law, and every proposition, is not, is it wholly right or is it wholly wrong; but upon the whole, is there more of right in it than there is of wrong. And 1 say the ^ that some innocent director should, at some almost impossible con- tingency, suffer, does not stop us from inserting the clause that will protect those who are uniformly innocent, the people who have become victims to our present corporate system. The eloquent gentlemen on the other side have waxed eloquent in sympathetic appeals for the inno- cent director. liCt them give their sympathies to the widows sad orphans who have been robbed by the present system. If I see that I must do a wrong here I will do that wrong to the director, who is capable, who has the means of information to protect himself, rather than that the wrong shall be against the public who stand outside and bare no opportunity of knowing what the secret working of the institution i«. Nor is it tnie that directors are mere agents in the ordinary sense of the word. Ordiyrily an agent obeys a superior. He does what the superior tells him to oo. But the directors of corporations are not agents in that sense of the term ; they meet as a Board ; thepr vote ; they dispose of the business and disburse the funds of the institution. They ask noauperior what they shall do, therefore in that view they partake more of the character of principals than agents. Now, sir, the Chairman of the Committee on Corporations rose early in the day, and undertook to explain that this matter was voted down in the Committee on Corporations. As I listened to his speech I came to the conclusion that he was for this proposition; as I llsteueii further I came to the conclusion that he was against the proposition ; and finally I came to the conclusion that he was on all sides of the proposition. [Laughter.] Mr. ESTEE. Did you ever hear me say a word on this floor in fisTor of this amendment. Mr. FREEMAN. If I had heard you sayexplieitly you were cither one way or the other, I would have known where you were. Mr. ESTEE. I wish to ask the gentleman if m^ statement to this house was not this : that I was in favor of a proposition that would hold ihe parties who do the wrong to a strict accountability for thai wrong. MR. FREEMAN. My understanding was that the gentleman was on both sides of the question. My understanding was in the second place, that he was willing to vote for this amendment if the word " misappro- priation " was stricken out, and that he took it to be a most infinnoui thing that the corporation officers should be responsible for the embeitle- ment of its agents. Now one word more in reference to the threats that have been hctni here about loading down the Constitution. I do say this : that if the Constitution we shall propose, cannot be adopted without the oonsent of the corporation power of this State, I nope it will be defeated. [Applause.] '^'^ SPRKCH or MB. JOHNSOK. Mr. JOHNSON. Mr. Chairman : It must be borne in mind that this provision, if adopted, will be prospective only in its operations. It a not retroactive. It does not impose any liability for the past It is a rule for the future; and it says, in effect, that when this Constitution shall have been adopted and become operative, that such and such lia- bilities on the part of directors or trustees shall be hereafter incurred by them as part of the organic law uf this State. They will take their offices unoer it, knowing the law, and realizing their responsibility under it. In this there is no hardship, no injustice. It is true, there is no general law that may not in special and excep- tional cases work apparent wrong. However uniform the law msy it, there will be some instances where it appears to work injustice. But, sir, we have started out here by proclaiming in the Constitution that all our laws shall be uniform; and why insert such a proposition u that? Manifestly because it is right; because it commends itself to the judg- ment and common sense of every man in the State. It should be our boast that we are to live and prosper un4ertbeequal laws. The^sbouM be as uniform as the dew which descends upon the valleys. This prop- osition applies to all corporations. We are seeking to incorporate this provision in the Constitution, also, because it is founded upon the great principles of honesty and fair dealing. In founding a fundamental law for the government of the people, to which these laws shall conform, this should be the permeating idea. Let us look, then, closely at this proposition and the construction le^ti- mately to be plaocd upon it " The directors or trustees of corporations and joint stock associations shall be jointly and severally liable lo the creditors and stockholders for all moneys embezzled or misappropriated by the officers of such corporations or joint stock associations." It is the directors or trustees who are to be liable, and liable fortwhal! For embezzlement or misappropriation. Oentlemen opposing this prop- osition are instancing cases of theft and robbery. That has nothing todo with this amendment. It is not incorporated in it It says embezzle- ment, and what is embezzlement? An unlawful conversion of the property of another when the person converting is in the lawful posts- sion of it. The gist of the crime in a bailee is the unlawful oonvenion of property in his possession which belongs to another. In the case of larceny, the guilty party has not possession of the property at the time of the commission of the offense. The liability sought to be enforced is limited to cases only of embezzlement or UMsappropriatioo.f ^^ Digitized by V j IL S'' Nov. 14, 1878. OF THE CONSTITUTIONAL CONVENTION. 407 Well, sir, if these bank directors stand, and visli to stand before the public, assuming an attitude of superior honesty, saying, in effect, that they will take charge of the money of the people if tbey will intrust it to them, then there should be a corresponding obligation on their part to select proper employes, and to make good any loss incurred by their appointment, from einbezzlement or misappropriation. With this sword of Damocles hanging over them, they will select their best men. They will select those men who are above reproach and without fear of reproach. They wilt select them with a view to their own liability,and also to the responsibility of the persons so chosen. For their own pro- tection they may require bonds from their appointees, if they so desire. Besides, sir, the directors are not forced to occupy that position. It is voluntary on their part to sustain that reUtionsbip to the corporation. Their interests are the interests of the stockholders, and the interests of ' the stockholders are theirs. The effect of incorporating this projxaition into the Constitution will be not only to throw additional safeguards around the public, but to inspire confidence in our banks and bank officers. I believe it will commend itself to the people of this State; and, inas- much as other gentlemen have said they desired themselves on record on this question, I, too, wish my name to ai^)ear on the record as voting in favor of this eminently just provision. While these are my views at present, I am frank to say that I am always ready to be convinced ; and, if in the course of any debate on this proposition which may occur now or hereaner, it shall appear that its adoption will be injurious to the public interests, I shall be governed not by my present impressions, but by the public interests. With a slight change in the phraseology, I can adopt the sentiment of Horace, in his Epistle to Marcenus: " Bound to swear to the ipse dixit of no master, whither my judgment carries me thither I am borne a welcome guest." BIHARKS or MK. OVItRTON. Me. OVERTON. Mr. Chairman : I expect at the conclusion of the Convention to go home to my people. I expect to see them. I am not afiraid to go on the record on this proposition. On this particular point I want them to know just how I stand. I regard it as a matter of very great importance — vital importance — to the interests of the people of this State. Now, sirs, if the gentlemen here who seem to have a hostilitv and prejudice against corporations — and there are some — if they wish to insert in Ike Constitution that we are about to frame for the people of this State a clause against them — opposed to them — I can't say what my position may be. If they wish to do away with all banking insti- tutions, let them come direct to the point at once. But, sir, I don't desire to have an article inserted in this Constitution that in effect does that, or will cause a great many banks to disincorporate. Now, sir, I belong to the directorship of a bank, and it is witn difficulty we can get good men to act as directors of this institution. We have n little county, and represent some five or six persons. I know that it is a position not sought after. I have the honor to occupy a position as director of one bank, and I have never sought it myself— would rather not have it — but somebody has got to assume these duties. Now, in our bank, speaking for myself as well as others, if this personal liability clause is adopted, such as seems to be designed by this amendment, I do not think there is many of our banks in our county that could get a Board of Directors. There is ^ pay in it. Gentlemen say they may take a bond. That might be — I can't say. What kind of a bondT What amount of bond would they take? That would be according to the amount of money that passes through the hands of the officers of the bank. That amount of money that men have in their custody would be so large that they would not be able to give bonds enough to cover it. It would come to this, that nobody could get to be Cashier in any bank in this State but those who are immensely rich. This would work an inconvenience, for the deserving poor men of the country who are capable of occupying such positions would be shut out entirely. The men we have in our banks are not generally rich men, and I must say here that there has been no defaults up in any of the banks in the county which I live in, and they are all safe and sound. And I fear that because one or two banks in this State have acted a little scaly and gentlemen have lost by it, that they imagine every bank to be on the same footing. Gentlemen might as well say that if one County Treasurer in the State is a defaulter, every other County Treasurer should be looked on with suspicion. "There is no reason in it. They do good. It is true that occasionally, like everything else, there may be some bad men engaged in banking, but it is no reason why we should all be pursued. 'The banks of this State are useful in many wa^s. We cannot get along without them. I know that if this pro- vision goes into the Constitution, it Will have the effect of crippling the banks of this State, and I don't believe the gentlemen have been authorized by their constituency to do any such thing. I do not believe my constituent would sanction any measure that would endanger and cripple all the banks in this State. It is true, I am willing to see them guard against such institutions as tbey have had down in San Fran- cisco and some other parts of the State, who have really acted wrong- fully towai-ds the people of the State, but I am not in favor of crippling honest institutions wno are doing a legitimate business all over the State. I do not believe there is any law in the country that will justify OS in holding the directors of a bank responsible for the acts of the officers of the bank. It has not been done anywhere in the United States, it has never been done in this State. There is no place you can find where it goes to the extent that this amendment does. The director is responsible for the good behavior of the officers of the bank. He gets the best man he can find. In case he should be deceived in his judgment, he is liable to lose all he is worth in the world. Under those areumstanoes no man is going to take a position as director, because it H a dangerous matter, and he is liable to wake up any morning and find his entire fortune demolished by the wrongful acts of one of the officers. If the gentlemen want to kill the banks, let them come direct to the point. I don't know as it would make any difference to me if they did disincorporate, but I don't believe we are authorized to come here and insert any such provision as that. I think we are going too far. I don't know that I have much more to say. I wish my con- stituents to know jnst exactly how I stand in this proposition. I may be wrong, but those are my views. I don't think they ever sent me here to incorporate something into the organic law of the State that would trammel the whole banks of the State. Mr. van dyke. I move that the committee rise, report progress, and ask leave to sit again. Carried — ayes, 79; noes, 53. IN CONVENTION. The president. Gentlemen, the Committee of the Whole have instructed mc to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have made progress therein, and ask leave to sit again. What is the pleasure of the Convention f ADJODEIIHEKT. Mb. O'DONNELL. I move we go into night sessions. Mb. HOWARD. I move we now adjourn. Mr. GRACE. I move to adjourn until seven o'clock. The PRESIDENT." Not in order. The motion is to adjourn. Division being called, the motion prevailed — ayes, 82; and at five o'clock and five minutes p. u., the Convention adjoarned. FORTY-EIGHTH DAY. Baobamemto, Thursday, November I4th, 1878. The Convention met in regular session at ten o'clock a. u.. President Hoge in the chair. ' The roll was called, and members found in attendance as follows: Porter, Prouty, PuUiam, Beddy, Reed, Reynolds, Rhodes, Ringgold, Bolfe, Schell, Schorap, Shafter, Shoemaker, Shurtleff, Smith, of Santa Clara, Smith, of 4th District, Smith, of San Francisco, Soule, Stedman, Steele, Stevenson, Sweasey, S\ynson, 8\nng, Terry, Thompson, Du'dley,of San Joaquin, Mansfield, Tinnin, Dudley, of Solano, Martin, of Alameda, Townsend, Dunlap, Martin, of Santa Cruz, TuUy, Eagon, McCallum, Turner, Edgerton, McComas, Tuttle, Estee, McConnell, Vacquerel, Estey, McCoy, Van Dyke, Evey, McFarland, Van Voorhies, Farrell, McNutt, Walker, of Tuolumne, Fawcett, Mills, Waters, Filcher, Moffiit, Webster, Finney, Moreland, Weller, Freeman, Morse, Wellin, Freud, Murphy, West, Garvey, Naaon, Wickes, Glascock, Nelson, White, Gorman, Neunaber, Wilson, of Tehama, Grace, Noel, Wilson, of 1st District, Graves, O'Donnell, Winons, Gregg, Ohieyer, Wyatt, Hager, O'Sullivan, Mr. President. Hale, Overton, PRESENT. Andrews, Hall, Ayers, Harrison, Barbour, Harvey, Barnes, Heiskell, Barry, Horold, Barton, Herrington, Beerstecher, Hilbom, Belcher, Hitchcock, Bell, Holmes, Blackmer, Howard, Boggs, Huestis, Boucher, Hughey, Brown, Hunter, Burt, Inman, Caples, Johnson, Casserly, Jones, Chapman, Joyce, Charles, Kelley, Condon, Keyes, Cowden, Kleine, Cross, Ijaine, Crouch, Lampson, Davis, Larkin, Dean, Larue, Dowling, Lavigne, Doyle, _ Lindow, Berry, Biggs, Campbell, Kenny, Lewis, Miller, Strong, Stuart, Walker, of Marin. LEAVE or ABSENCE. Indefinite leave of absence was granted to Mr. Strong, on account of sickness; to Mr. Walker, of Marin, for three days. Mr. FREUD. I move that the reading of the Journal be dispensed with. Digitized by Google -^jLi. 408 DEBATES AND PROCEEDINGS Thursday, Thk president. There being no objection, the reading of the Jour- nal will be dispensed with, and the same approred. ERTITIONS AND MEMORIALS. Mb. AYERS. Mr. Pfeaident : At the request of the Grand Lodge 1. 0. G. T. , t have the honor to present the following petition and memorial in favor of a section in the Constitution relative to local option, and mo^ its reference to the Committoo on Miscellaneous Subjects: « To tbo honorable tbo Constitutional Conrention of the State of Otllfomla: We, the ondervlcned, respectfully petition your honorable body to Insert In the new Constitution of this State, a clause slmtbu' to that now in force In tbe State of TexaH, to wit: 8KCTI0N — . The Legislature shall, at Its first session, enact a law whereby the qnaliflod voters of any county, Yoting precinct, town,orcUy, by a majority vote, from time to tinif*, may dotonnliie whether the sale of Intoxicating llquon shall be pro* hibfted within tbe prescribed limits. Following is the memorial which accompanied the petition : To the President and Mcmbera of the Constitutional Convention: On behalf of the petition accompanying this memorial, transmitted herewith, your memorialists would respectfully represent tliat the proposition embodied In tbo prayer of your petitioners, to wit : " The Legislature fthall, at lis ftnit spsaion, enact a law whereby the qualified rotcreof any county, votlnK precinct, town, orciry, by a mnjorily vote, from time to time, may determine whether the sale of intoxicating liquors shall be prohibited within the prescribed limits," is identical with a clause preuentod by the Constitutional Convention of the State of Texas, and ratified by tlie people of that great commonwealth. The proposition pn«ented raises t^it a single leme before your honorable body, to wit: the expediency of the local prohibition of tbe traffic in Intoxicating liquors. In this statement we aMumo that tbo inherent right of tbe peopte to reg> ulale or t^Aprubibit by law the said IrafDc will not be doni^ The principle which commends the proposition brought before you by this petition, is that it refect tbe quflstioii of expediency of prohibiting the traffic in intuxtcating liquors to the peo- ple. This principle is In consonance with tho very genius of republican institu- tions. Tbe people of separate localities should have the right to determine for themselves as to whether the sale of intoxicating drink is inimical to tbe Irest Inter- ests of their respective communities. This application of tbe principle of bxml sov- ereignty is not new, but extends already to other questions of local character. We assume that those citizens Intcrest^Hl In the sale or intoxicating bcvemges rannut reasonably object to the adoption of this pro[>osition. No good citixen will demand protection in ttio right to engage in a businees which. In the Judgment of a mi^or* Ity of Mn neighbors, la denioralirJng to tlie neighborhood; and If the traffic In liquoia is not destructive of the morals and good order of a community, these separate communities may safely be trusted with such dotemiination of the ques- tion as the facts warrant. In tlie opinion of your memorialists any oppooition to the proposition on the part of those engaged In the traffic in liquors must Iw based upon the ground that, should the protHwition l>e inck rporated Into the Constitution, many communities would decide against the continuation of the traffic. This Is, in effect, nn admission that in all such commnnltlea tlie traffic is now carried on against the enlightened Judgment and moral conscience of a majority of tbe people resi- dent in such coniniuniU(4. The proposition herewith presented. If adopted, would relegate tliu whole question t*i the arbitration of tbe ballot box ; and representing tht^ who entertain the opinion that the traffic In intoxicating drinks is destructive of the best and highest Interests of the commonwealth, we cbeerfnlly submit the grave queetloii involved to this high arbitrament. To deny the prayer uf this peti- tion will, in the opinion of your petitioners, be in effect a denial of a sacred right. The right to determine what is necmsary and appropriate to accomplish the ends of government, ^^stablish order, nnd promote the general welfare of society, resides In the people, and all we ask Is, that this right shall be recognlEed in the determina- tion of the {asu<-8 arising out of contending opinions concerning the cliaraoter and moral tendoncies of the unrestricted traffic in intoxicating liquors. The nature of the pmpimitlnti herewith preeonted is sncli ns to abitolve nn from the necessity of pre- senting an}' considerations or arguments tending to establish tlie expediency of pro- hibiting tbe liquor traffic. Wn have no data upon which to found the awumption that in practice the proposition presented would resnlt in such prohibition ; the result would be dependent upon the will of the majority of the voters in the local subdivisions named. But it is obvious that tbe perpetuity or prohibition of tbe traffic will depend upon the verdict of tbo people, in utiom resides the right to deter- mine the necessity or reasonableness of all prohibitory laws. And, as in duty bound, your petitioners will over pray. Referred to the Committee on Mi^ellaneous Subjects. Mb. KELLEY, of Yolo, presented the following petition, signed by several thousand citizens of California, reqtiestin^ the insertion of a clause in the Conslitulion providitig for a local option law, or civil dam- age law, or4>oth. Following is the memorial : To the honorable gentlemen, the members of the Constitutional Convention now assembled : We, the residents and taxpayers of the State of California, fully realizing the Importance of tnis session, and the arduous duties and responsibilities that necessa- rily rest upon each individual member of said body, In the exorcise of the powetii vested in him; and realizing that many grave questions wiil present themselves to any body of men who shall assemble to consider such great facts as must necessarily nrise in tlte framing of a (institution to govern and direct the people of any country, State, or district, and especially our own loved and endeared State of California, where Nature has Ijcen so lavi(*h and Providence so wlso. And yet, with all our boasted advantages of climate, productions, mineral wealth, scenery, etc., wo have observed, with sorrow and pain, the rapid and constant increase uf crime, and the alarming tendency toward idleness, with all Its attendant elements of misery, wretchedness, and want; and in vain do we try to blind ourselves to the fre- quent necessity of enlarging our State Prisons and lunatic asylums, for even now they are crowdtnl to their utmost capacity. And believing that no greater question can present itielf to your honorable body than the em tbe attacks of crinoUae and silk sophistry, and blandishments, smiles, and tears. Graceful styles, and winning wiles. Charms replete, your hero greet; In dulcet strains, the siren i-eigna. But we pmcnt oar objection to the whole scheme of female suffrage, an otjectiOD as broad as humanity, as deep as human affection, and as comprehensive as hnmsn aspirations, vix.: that it would slowly, but surely, neceasnriiy, and inevHsbly, inf woman down Irom the lofty spliero which is her birthright, and her realm by tfa« Itatent eternal of Nature and Nature's God. When we attempt to reverse Nature'! Uws, we only violate them, and speedily and surely reap the penalty of that viols tion ; and when woman leaves the domain which is her's by divine right, and comes down — down into the political arena — and jiaddleB her own canoe in the historic pool, runs for (^nstalile, is elected Alderman, and Anally gora to the Legislature to v&na a contested seat, will anybifdy ask : are her garmenu ns white as of yore, when the Sroudly Mtt upon her legitimate throne, commanding our reverence and loriug evotion f Let us not dmecrate the temple wherein man's noblest, highest, holiest sspimtioa are crystallized in that sweetest word of human tongue— home. JAUE3 CAPLES. Thb president. The report will be printed, together with the majority rojiort, and the projiosed article on suffrage. • THE HOCK OP MKBTINO. Ma. ESTEE. Mr. President: I ask that the matter introduceii by Mr. Noel, relative to the change in the rule, bo taken from the table. Carried. Thr SECRETARY read the proposed amendment to Rule One: "RuLR 1. The Convention shall meet each day of sitting at nine o'clock A. M., unless it shall adjourn to some other hour.*' Ma. NOEL. Mr. President: The amendment to the rule which I fropose will save about one third to tbe working time of the Convention. hope it will be adopted. Mr. grace. I move to lay it on the table. Thb PRESIDENT. The motion is not in order. Mr. Noell bad the floor. Mb. noell. It seems to me, Mr. President, that we should do something to expedite business. In the earlier days of the Convention it was a correct rule to meet at ten oVlock in the morningt because then most of the work was being done by the committees. Now, however, the committees have reported, and there is no reason why we should not perform an honest day's labor for our money. Mr. GRACE. Is my motion now in order? Thb PRESIDENT. Yes, sir. Mr. grace. Mr. President: It is pretty hard for the members to get here at ten o'clock, and I move that it be laid on the table. Thb president. The question is on the motion of the gentleman from San Francisco, to lay the motion on the table. The (/onvention divided, and the motion was lost — ayes, 50; iioe8,91. Mr. BLACKMER. I moye to amend, by making it nine thirty, instead of nine o'clock. Mh. O'SULLIVAN. I move to make it seven o'clock in the morning. Mr. REYNOLDS. Mr. President : I hope the amendment to the nile will be voted down. There is such a thing as making haste slowly., and I, for one, do not wish to be driven through this C-onvention at a rail- road or race-horse speed. This body has been as industrious as any body of men that ever convened in the State of California. We have been hustled from breakfast into the committee rooms, and then called into Convention at ten o'clock in the morning, and into the committees again at twelve o'clock, and back into Convention at, two o'clock, with scarcely time for our lunch, and then into committees again at seven o'clock in the evening, and so on every day from the very commenee- ment of this (invention. There has been nothing done but work, work. from the very beginning, without time for thought or digestion. No*» sir, the work of the committees is well advanced, and we have got into Committee of the Whole, where we are endeavoring to shape our busi- ness, and I hope we shall proceed with the business. We will accom- plish our work as rapidly, and as well, if we take time to think as weU as talk. We come into Convention, and it is nothing but talk, talk. And now, sir, if gentlemen, instead of coming here at nine o'clock to com- mence talking, will spend the time in Itoiling down what they have to say, they will improve themselves, and advance our interests, and the interests of the State. We shall succeed in doing the work better, and get through quicker, than we will to come here at an early hour in the morning and sit until a late hour in the evening and do nothing but talk. I am not opposed to talk, but it should be talk that is the resalt of thought, and to some purpose, and not mere idle chatter. Let it be done, but let it be preceded hy some thought^me study ; and give ns Digitized by VjOOQ IC Nov. 14, 1878. OF THE CONSTITUTIONAL CONVENTION. 409 time for that thought. I am not afraid that one hundred days will run out, or that one hundred and fifty days will run out. The Constitution that is made in less than six months is not worth the paper it is written on. I am not afraid because the time may run out, or that the appro- priation will be exhausted. I came here to stay till the work is done. No matter if the hundred days run out, no matter if the appropriation runs out, no matter if it takes six months, I shall stay till the work is done ; and I do not want to be hurried. That is the reason why I shall vote against all these amendments. Eight hours here in Conven- tion is enough. Mk. GRA.C£. Is an amendment in order? The president. No, sir. Mr. grace. When it is, I shall ofTer an amendment. Mk. in man. I hope the amendment will pass. I am sorry the Workingman should be broken of his rest in the morning. I hope the Convention shall go to work at nine o'clock. I don't see any dim- culty about it — between the hours of four in the evening and nine in the morning. The gentleman talks about talk, talk, talk. I think be does his proportion of it. Now, I hope this amendment will pass. Mr. HOWARD. Mr. President: 1 call for the previous question. Mb. WYATT. I second the motion. Thk president. The question is: Shall the main question be now put? Carried. The PRESIDENT. The main question has been ordered. The first qaeetion is on the amendmentoifered by the (gentleman from San Diego, Mr. Blacknicr, to meet at nine o'clock and thirty minutes. Division being called, the amendment was lost^ayes, 49 ; noes, 89. Thi PRESIDENT. The question is on the motion of the gentleman from Lake, Mr. Noel, to meet at nine o'clock. Mk. grace. Is an amendment in order? Thi PRESIDENT. No, sir; the previous question cuts ofif all amendments. Mr. CONDON, I want to call for the ayes and noes on the question offered bythe gentleman from Lake. Mr, McPARLAND, I call lor the names of those demanding the ayes and noes. Mr. LARKIN, Ayes and noes, Mk. smith, of Santa Clara. Ayes and noes. Mr. NOEL. Ayes and noes. Mr. LARUE. Ayes and noes. Thi PBESIDEN'T. The ayes and noes have been demanded by the requisite number. The Secretary -will call the roll. Thi SECRETARY called the roll. Mr. O'DONNELL, when his name was ealle undertake to carr^ through this matter in the face of the opposition of the power of capi- tal. With all these considerations, I am forced to the belief that we should adopt this amendment. Now, these are troublous times, and the cause of it is as much in the bad management of banks, and the abuses of corporations, and in the abuses of the principal corporations, as anything else. Now, there is a disposition in this country to orranize for everything, and the organ- ization faculty has been abused. Organization is a good thing. Incor- porations, to a certain extent, are beneficial. But, sir, it has been carried in this State to abuse in organization. Why is it that in even- business transaction, every business department, incorporation is resorted to? Because, with incorporations, there is a chance for abuse, a chance for public deception, and they have been bled over and. over again throughout the State, perhaps here worse than in any other State in the world. Now, I say, if there should be a mistake made here, it would be a mistake in favor of the people. I do not think, at all events, that it is possible for the people oi California to endanger the corjMrations in any way. I think we nave got to a position in this State where some- thing should be done, because if there is anything that controls in this State, it is centralized capital in the shape of'^ corporations, and it will be a question to be tested in this Convention, whether the people, through the organized mediums, shall control the government of the State, or whether it is to be controlled by the organized money powers of the State. Now, Mr. Chairman, the question seems to me to center right here. It is absolutely essential that there should be an unfailing respon- sibility placed somewhere on these corporations. Is it possible to place that responsibility, and if so, where shall it be placed? I answer yes, it is possible, and here is the place for it. Make these directors individ- ually and personally responsible, and what will the result he? Why, no man will take a place of that kind under these corporations unless the stockholders will stand bv him and back him up, and be responsi- ble for him. The result will \e that this responsibility placed here, will reach throughout all the branches of the corporation down to the stock- holders themselves, and make them responsible throughout. Therefore, I say this is a good place to put the responsibility. Now, it is possible that the directors can be secured. It is a business proposition. The stockholders, as it is now, are individually responsible for all the losses that occur in the business of the corporation. Tnis only adds the matter of embezzlement and misappropriation. We have tried the old Constitution, and it has not provM sufficiently strong. It has be^n stronger than in any other State, and yet it has not been found sufficient. It then shows that there is something lacking, and that something stronger is wanted, and I say, it seems to me that this is an amendment that will meet the want, and cure some, if not all of the flagrant abuses which for so many years have been a blot on the name of our fair State, and I shall give it my hearty support. 8PIICH or MB. RKTHOLOS. Ma. BEYN0LD8. Mr. Chairman : I have no wish to prolong this debate, but it seems to me there are one or two points that have not been made, which I wish to touch upon, and I woald like to give a few of the reasons why I shall vote for the amendment. This debate has been one of surprises. I was surprised when the gentleman from Sacramento, Mr. McFarland, openly opposed it, and stated that he was opposed to making trustees liable, opposed to making trustees responsible for the due execution of (be trust tbey have undertaken. I was surprised that any gentleman should take such a position. I was not surprised when the Chairman of the Committee on C!orporations, early in the debate, got astraddle of the amendment, and, as with a corkscrew, tried to pull out the objectionable word " misappropriated," that ho might gulp down the remaining contents. But I was surprised further on, when he flung away his corkscrew and declared he wouldn't take the medicine at all, but was opposed to the whole villainous compound. I was surprised to see the gentleman take a position at all ou anything. He is no doubt surprised at himself, as he has astonished all his friends. I was likewise surprised at the gentleman from San Francisco, Chairman of the Com- mittee on Military Affairs. In fact, Mr. Chairman, the gentleman is a perennial surprise to me. I never know which most to admire, his ingenuity and skill or his eU)quence. He always excels in whatever he undertakes ; and whether it is when he ]>uts up a dumb bell the size of a beer barrel, or delights an elite and fashionable metropolitan audience, I stand in awe of his transcendent abilities. I only wish to notice in this connection liia attempt at pleasantry towards the mover of this amendment, suggesting that the gentleman had no patent right for his amendmcnt^no patent right for the proposition — and that it was found in all the Codes, found in the Penal Code and in the Civil Code, and he proceeded to read the various sections, but he did not read any provision in the Civil Code, or in any other Code, that covers this amendment, or which makes trustees of a corporation responsible for the misappro- {iriation or embezzlement of the funds of an institution over which they lave control. Ho forgot to find that place, and fora very good reason — it is not there. But I will tell you wtiat we do find in the Civil Code. I find the tracks of the same corporation trustees in the same section the gentleman read : " The trustees of a corporation must not make dividends, except frotn the surplus profits arising from the business thereof; nor must they divide, withdraw, or pay to the stockholders, or any of them, any part of the capital stock ; nor must they create debts beyond their subwribed capital stock, except as hereinafter specially provided," and so on. They are provisions, all of them, coming right up to the very verge of responslbilitv for the misappropriation of funds by others than them- selves, but the responsibility does not reach to those over whom they exercise control, and whom they choose to execute the trusts which they assume. I fancy, sir, while I am reading these lines, I bear the corporate coin jingle in the committee rooms of the Legislature which passed this Code. I fancy I can read between the lines where large amounts of capital stock of corporations have been issued and charged to account for " India rubber." And while on this Civil Code business, let me allude to what thfi gentleman from Sacramento, Mr. Edgerton, says. He says it will be such anunkind thing to make these innocent directors responsible for the execution of a trust by persons over whom they have no control, or their co-agents, and he cites sections three hundred and one and three hundred and three of the Civil Code. Let us see. Even supposing the case he cites to be true, and it is not true in one case in a thousand, where these very Cashiers and bookkeepers, and those sub-agents are not chosen by the directors themselves. Now, there is a section of the Code the gentleman did not read — I am sorry he is not in bis seat — which is as follows: "The corporate powers, business, and property of all corporations formed under this title must be exercised, conducted, and controlled by a Board of not less than five nor more than eleven directors, to be elected from among the holders of stock." That is mandatory. That is the trust tbey assume when they assume the responsibility of trustees or directors. To control the butinas and property of corporations is the trust they assume. The property and the business and the powers shall be under the control of these trustees, and it is that control which they assume. Mr. Chairman, this question has become narrowed down to a single point. The arguments all center upon that wonderful individual, that imaginary personage, the innocent director. Why, one would imagine from bearing the arguments of these gentlemen that Mark Twain's Innocents from the Holy Land were all turned loose here and made trustees and directors of banks. Mr. Chairman, there is no such thing in fact as an innocent director. He is an impossibility and a myth. He cannot exist. The case was cited here that a minority of a Board might possibly stand out and protest against the misappropriation of the money, and yet be unable to prevent its consummation, and then how unjust and cruel it would be to punish these innocent men for the acts of the majority. Why should the gentlemen use such arguments as that, or make such statements? I cannot imagine. Why, an innocent minority should know everything that is goinf; on, and tiiey have their remedy — publicity, law, injunction, resignation if need be, all these they can use to put a stop to it at any time. There is no such thing as an innocent trustee. And suppose there were; admit that there could be. We have adopted, almost without opposition from the other side of the house, a provision that the innocent stockholder shall be held liable for the trust which he assumes, and he has but one chance to exercise any control whatever, and that is when be drops his vote in the ballot box for trustee once a year, and yet he is liable to the entire extent of his interest in the corporation. And if that stockholder shall be held liable, not knowing anvthing abeut what the tnistees are doing, nor having any control of t&eir actions, bow much more should the trustees be held liable? Why in the name of common sense, law, and of jus- tice, shall we not hold the directors responsible — those who have assumed the responsibility of personally taking care of the corporate powers, ond business, and property of the corporation? There has been no attempt to answer that, but simply an evasive talk about the innocence of directors, and all that sort of thing. It was said by the gentleman from Marin that it is against the moral sense of mankind to hold the innocent responsible for the acts of the guilty. Let us see whether it is or not. The substitute which we have adopted contradicts this. Innocent men are held responsible — tbey are held responsible every day — and in a variety t^ 412 DEBATES AND PROCEEDINGS Thuesday, of ways. We hold the innocent stookbolder responsible for the debts and liabilities of the corporation. Whv, sir, there .are instances where the stockholder holds himself responsibfe, though the law does not ; and I am told that not many months ago, !n one of the interior counties, a bank became insolvent, and a portion of the Board of Directors, a minority I believe, though not bound legally by the action of their co-agents, assumed the responsibility, and gave as a reason that they were morally, if not legally, bound to make gm>d the trust which had been imposed upon them, and they did it out of their own private fortunes. Why, sir, it is not against the moral sense of mankind to hold the inno- cent responsible in the sense in which it is applied in this case. On the contrary, you must make everybody responsible who assumes a trust, whether he is innocent or becomes guilty. It is time, sir, to fix on these trustees some responsibility, and to require of them sureties for the due execution of their trusts. They have sold the |)eople and robbed them of their substance, and when called to account pleaded innocence, already too long. I say, sold them, and in saying so I but repeat the current news of the day. And here, Mr. Chairman, to show you how history repeats itself, and how the affairs of men in different times and places, ran in parallels, I beg to allude to Edmund Burke's arraignment of the English corporations, in the great debate on Mr. Fox's East India bill, in the House of Commons. With regard to the abuse of ths trust on the part of the trustees of corporations, be says : " First, I say, that from Mount Imaus, where it touches us in latitude 29", to Cape Comorin, in the latitude of 8", there is not a single prince. State, or potentate, great or small, in India, with whom they come m con- tact, whom they have not sold. I say sold — though sometimes they have not been able to deliver, according to their bargain. Secondlv,! say, that there is not a single treaty they have ever made which they have not broken. Thirdly, I sa^, that there is not a single prince or State who ever put any trust in the company, who is not utterly ruined." And I say, Mr. Chairman, that there is no agent of the people or any officer of this State, or any division thereof, great or small, high or low, from the utmost boundary on the north to the south, from the Sierras to the sea, with whom they have come in oontact, whom they have not bought and sold. There is not a single promise they have made, or trust they have undertaken, but they nave broken or betrayed. There is not a single depositor or stockholder whom they have not cither swindled or utterly ruined. Balston and his Board of Trustees sold bis stockholders and deposit- ors for a gamble in Spring Valley. Duncan and his Board of Trustees sold the depositors of the Pioneer Bank to the Shylocks and mortgage wreckers of Montgomery and California streets — and I have in mind some very ratpectable gentlemen of business who helped him to make the delivery. Burr and bis trustees sold his ver^ respectable bank, as well as himself, to Finney and his pals. So with the Odd Fellows' Bank. Gustave Mabe and his " innocent " directors sold their confiding depositors io squander the proceeds in gambling and riotous living. Time is too short for me to recount these unblushing swindles — too lim- ited even to name a list of the wrecks of savings banks that strew the past; aye, tffat fill the present moment with distress, starvation, and despair. But the parallel goes further. Mr. Burke continues : " The first potentate sold by the company for money was the Great Mogul, the descendant of Tamerlane. This high personage, as high as human veneration can look at, is by every account amiable in his man- ners, respectable for his piety according to his mode, and accomplished in all the Oriental literature. All this, and the title derived under bis charter, to all that we hold in India, could not save him from the gen- eral sale. Money is coined in his name; in his name justice is admin- istered; he is prayed for in every temple through the countries we possess. But he was sold." Substitute oar banks and other corporation trustees for the Indian Princes and the parallel is complete. 'These, too, are high personages as human veneration can look at; amiable in their manners and respect- able for their piety, etc. And I have no doubt the whole respectable brood are the ones to whom the gentleman from Marin alluded when he told us yesterday that he feared some people would " turn up their noses " at this Constitution, or at us who make it — I could not exactly under- stand which. Sir, there are some of these " respectable " persons wearing striped clothes at San Quentin, and some others of the Sunday school persuasion "turning up their noses" from behind prison bars at the county jails. And I have no doubt the "respectable voter," alluded to by the Cnair- man of the committee the other day, might be found among the nuivber. This is one branch of the argument that bank Presidents and corpora- tion trustees, being " respectable gentlemen," must not be held responsi- ble for stealing the orphan's patrimonv and the widow's mite. They must be permitted by indiscretion to roD the vulgar herd, the common people who earn money, and are not " respectable," without let or hind- rance, or they will not condescend to become bank trustees. They will yote down our Constitution, and then, adding insult to injury, will " turn up their noses at us." There is one other argument, so called, and that is, that we should not load down this Constitution with provisions that would sink, as the gentleman from San Francisco says, the Constitution under a deluge of indignant votes. Well, it so happens that this is an argument that can be used on one side as well as tne other — it fits everjr position in every case. I can assume, just as well, that if we put this provision in the Constitution that the people will buoy it up with a myriad of unanimous votes. And, when silted down, that is the reason these gentlemen fear that if they put this provision to hold trustees responsible for their trusts, the people will adopt it. That is what they fear — hence theae tears. It is a mistake, sir, that the people will reject this Constitution with this amendment in it. Why, sir, the paper that this amendment is written on would float in a political sea a ton of railroad iron. Put that into the Constitution and all the corporations in the State cannot sink it. It will carry a multitude of other objectionable provisions. You can safely put that into the Constitution, adopt the balance of the old one, and adjoura and go home, and the people will pronounce this Convention a mt^pui- cent success. I have but one furtuer remark to make, which is this: I challenge the gentlemen on the other side, that if they can show me one goo a private individual when he assumes to act as a trustee, and then delegates away his power, I will face about and vote against this amendment. arKICH OF MB. KAOOX. Mr. EAGON. Mr. Chairman : It seems to me, sir, that the advocates of this measure place themselves in this position : that in order to cor- rect an occasional evil, they would inflict a perpetual wrong. Therecan be DO other position taken as to this matter. I would not, sir, detain this house one moment were it not that gentlemen have spoken in regard to the record. Now, I desire to be placed on record as well as the gen- tlemen on the Ather side. I wish to go on the record as opposed to this amendment. Records amount to notning, except to scare men into vot- ing in accordance with popular clamor. I am not one of that class who can be frightened into supporting a measure which my judgment and sense tells me is not right, simply by having the " recora " flaunted in my face. I am not afraid to plaice myself on the record according to what my judgment tells me is right. Now, sir, it has been held out here that the people are being driven to the wall; that the widow and the orphan are to suffer in consequence of this amendment not being adopted. Appeals have been made to the passions. Such arguments as have been mawde here ought not to be listened to. There is no sound argument in them. This is a question, sir, whether you will do a wrong — a perpetual wrong — a wrong that shall last as long as the Con- stitution lasts— in order to prevent an occasional evil that is supposed to exist. Why, sir, the arguments advanced here do not reach the founda- tion of this question. I cannot take my seat without alluding to the illustrations made here by the able gentleman who introduced this amendment. He instanced a case that all the gentlemen upon that side seemed to think an unanswerable argument, but there is nothing in it. He supposed a case where a thousand dollars were placed in his hands, and he takes that thousand dollars and loans it to some responsible per- son. Is there a sane man in the worl^l who would not say be was responsible for it? Everybody knows it. He does it of his own voli- tion, and nobody compels him to do it, and consequently he is bound to return that money; and if he does not, he can be compelled to do it. The man looks to him, and not to the perhaps irresponsible party he loaned it to. Take another proposition : Suppose you go to him and two other gen- tlemen and say, here is a thousand dollars that I give to you to keep for me. The majority of you can loan it, or do what you please with it, and two of them vote to do this, and he opposes iL He goes and tells the man that the other two gentlemen have voted to loan it, and bare lost it — would it be right to hold him responsible, and make him pay for it, when these other two voted it away in spite of his protest and oppositionT It would not be right, and that is the ground upon which we oppose this amendment. It is wrong, sir. It will drive many of the corporatiou out of the State, and many, too, that are beneficial to the interests of the State. Because one or two or three savings banks have turned out dis- astrously, and some have suffered by trusting their funds in the bank, is no reason why every honest man should be driven out of business in this State. There are banks outside of San Francisco, sir, banks thst are sound and solvent. Banks in all the interior counties of the State, from which the farmers and othera derive great benefits. And if there are certain persons employed in these banks who occasionally turn out dishonest, I think it would be an outrage to say that these men should be responsible for something ovec which they have no control. There is uo pay attached to the position of director, and it is wrong to hold them responsible. I hope this amendment will be voted down, and that the common sense of tnis Convention will let it stand as it is. SPRECR OF MB. LIXDOW. Mb. LINDOW. Mr. President and fellow delegates of the Conven- tion : I am not prepared for taking up the Convention three minutes. I have not come here to make any speeches at all whatever; and I see that the gentlemen are anxious to ^t on the record. I tell him that my record is this: I am only coming herf to watoh the Convention. If I watoh good, I can't talk very much. But I have to make a few remarks to the gentleman what just spoke last. He said that he would five a thousancl dollars to these men. I never have that idea. When go into a savings bank, I toll the directors I want to deposit this money, and you have to take charge of it, save it, and keep it I never give him the money to keep it; I put it there to save it, so I can have it whenever I call for it. But the banks at this present day do not do that way at all. You can't trust a man with nothing; he won't save nothing. You bettor not trust him. That's the great difficulty, you can't do it. You can't trust anybody with nothing at all. For that reason I want to leave my record, that I am going to vote for this propo- sition, because I know that three quarters are in sympathy with tnis amendment. I don't want to say nothing against the one quarter, bat if this amendment is put not in the Constitution there will be a good deal of widows and orphans robbed. If the bank is well managed there can be no trouble, and we will never want a lawyer or a policeman. We only want an honest man to take charge. If things go smooth, I never want a lawyer. If we put this in, three fourths of the people will vote for the Constitution, and the oorporations can't break i^ down. [Ijaughter.] SPIKCB OF MB. BBOWN. Mb. brown. Mr. Chairman : The groxati-iua boon so oompletelf Digitized by VjO Nov. 14, 1878. Otf THE CONSTITUTIONAL CONVENTION. 413 gone orer in the wide range of discussion here it cannot be expected that any one commencing at this late day can produce any ideas for which he could obtain a patent. But it has been pretty well established before this body, that the amendment which is before us embraces certain good principles. Now, it appears to me that if public sentiment pre- vails in a certain way, and gives expression to certain views as the belief of the people of the State of California, and this sentiment is truly and fearleesly expressed by the people, for a series of years, that this is fearof public clamor that is influeuciug members. I am fully impressed with the opinion that we should not be unduly influencee reached, and that certain principles should be engrafted into the Consti- tution which will protect, not the banks in particular, not the corpora- tions in particular, but the great mass of the people of the State, we would not be here to cast a vote on this question. It was for just such things as this that this Convention was called. We are here' at the bid- ding of the people, to correct abuses which they no longer wish to bear. The Legislature may, it is true, reach the evil, but we are here to lay down certain fundamental principles, and that object must not be lost sight of. I believe that this amendment will accomplish what it is designed to accomplish. I believe it will be a protection to the public, and yet be no detriment to those corporations who conduct business honestly. I am convinced that if we adopt this amendment it will be one of the best acts of the Convention. Mr. terry. I move the committee rise, report progress, and ask leave to sit again. Carried. IN CONVENTION. Thi president. Gentlemen : The Committee of the whole have instructed me to rejiort that they have had under consideration the report of the Committee on Corporations other than Municipal, have made pron-ess, and ask leave to sit agaiu. The hour for recess having arrived, the Convention will take a recess until two o'clock. AFTERNOON SESSION. The Convention reassembled at two o'clock r. u., President Hoge in the chair. Boll called and a quorum present. Ma. HUESTIS. Mr. President: Firmly impressed with the convic- tion that this discussion has already been protracted to too great a length, in some cases resulting in mere idle and useless repetition ; that ■mole time has been afforded in the two days that have been consumed, and sufficient light has been abed upon the subject to enable each and every delegate to vote uuderstandingly upon the question, I now give notice that at three o'clock this afternoon, or as soon thereafter as I can obtain the floor, I will avail myself of the privilege accorded under amended Rule Number Fifty-six, of moving the previous question. Mb. STEOM an. . I rise to a point of order, that the previous question cannot be moved in Committee of the Whole. There is no sucn thing as the main question in Committee of the whole. The PRESIDENT. There is no question before the Convention. CORPOBITIOKS — LIABILITY Or DIBICT0B8. Mb. ESTEE. Mr. President: I move that the Convention resolve itself into Committee of the Whole, the President in the chair, for the purpose of continuing the consideration of the report of the Committee on Corporatious other than Municipal. Carried. IN CO.MMITTEE OF THE WHOLE. Mb. GREGG. Mr. Chairman : I am opposed to the amendment offered by the gentleman from San Joaquin, and will state my reasons very briefly, f think that the rule it would call into existence is without foundation, either at the present time, in the history of the common law, of the ecclesiastical law, or of the civil law. It was never intended by human reason to make persons liable for that in which they took no part. The proposition here proposes to make minorities wfio cannot control liable for the acta of officers brought into existence by a majority. Now then the rule is hardly satisfactory in other cases. If a man dies and appoints in his will three executors, cither with or without bonds, a majority may control the estate, and whoever heard it said, or who can find a case where the third parly, who'took no part in the administra- tion of the estate, was held responsible for the acts of these executors. He files his independent and separate bond, and where the majority act without the thiAl one, there is no authority fur saying that the third one should be responsible in the light of reason. Simply upon that proposition alone, in the light of the authorities, I am opposing the proji- osition tu make minorities rcs|K>nsible foV majorities. This is not the rule in close fiduciary relations, and it should not be here. There is nothing in history to match this proposition ; nothing since the action of Herod in destroying all the male childrenin order to reach the infant Savior, and of Pharaoh in destroying the Hebrew children in order to destroy Moses. Tyranny in the abstract is all that it is. Then again I have another objection to the amendment as here tacked on to the original proposition. The original proposition, as suggested by Mr. Webster, is as follows : "Each stockholder of a corporation, or joint stock association, shall be individually and personally liable for such proportion of all its debts and liabilities, contracted or incurred during the time he was a stock- bolder, aa the amount of stock or shares owned by him bean to the whole of the subscribed capital stock or shares of the corporation or association." Then this : " The directors or trustees of corporations and joint stock associations shall be jointly and severally liable to the creditors and stockholders for all moneys embezzled or misappropriated by the officers of such corporation or joint stock association." N>w, when does that liability commence? Is it before insolvency or afterwards? Is it when these corporations are controlling one or two hundred thousand dollars or fifty tnoustind dollars? Is it then that any one cnn step in and sue tlie stiwkholder and maintain an action simply because he urges misappropriation or embezzlement? Is it then that the stockholder can maintain nis oction against the trustee? Or when is it? Do you have to wait until the insolvency is determined? And then, when the insolvency is determined, an outsider may sue the stockholder and recover a portion, if he sees fit,eithor jointly orscverally, then he can go for the surplus upon the trustees, or he can sue the directors jointly, and thus waive the liability of the stockholder. It is simply a muddle and a contradiction, the stockholder of a bank being in one instance entitled to recover against the director, and in the other an outsider against the stockholder. Now, take it this way. We have banks in this State that the farmers have orgonized. One man lives in Sacramento County that may be a director of a San Francisco bank. He goes down there at stated times and carries out the by-laws and regulations as far as he can. He has helped to organize that bank for the ^od of the people of the State, or the farmers. Now, when he is at his home, some one of the ofiicers embezzles the funds of the bank. The very man on the outside whom he is attempting to aid, by giving his two, three, or four thousand dol- lars and his services, comes in and holds him liable for the officers of that institution, when it was organized for the very good of the same class as himself. It is wrong in principle. I hope the committee will not adopt it. BIMABK8 OP MB. WELLIH. Mb. WELLIN. Mr. Chairman: When I come into this Convention some time ago, the cry was that the majority of the delegates were latv- yers, but it appears that the majority have turned into bank directors, and they are becoming somewhat alarmed. We have seen banks rise in the City of San Francisco from almost nothing. We have seen men rise from the whisky counter to the position of trustees and directors of banks — and by what claim? Sir, it has been through the loose system of incorporation in this State. It is time that something be done to change tne system at once, and give some protection to the honest peo- ple. We find that notwithstanding all the law that these gentlemen have been reading, there is no answer to the question as to where the stockholders and pe9ple are to get their money back from. They have read us law, page after page, and they tell us that we have no protec- tion whatever, only just that which they choose to give us. It is time that the working, industrial classes of California, the man who toils upon the farm, the man who works down in the mine, the men who build the homes of the State, had some protection for their honest earn- ings. We are willing to meet them upon that proposition, and at least I insist upon keeping this proposition before the people. They tell us of the awful condition that the honest trustee will find himself in. How will these honest trustees get into the trouble that they tell us about? They say he is appointed. Is he obliged to go with the majority in robbing the storkholders and depositors? They tell me that four out of seven may make a loan, or use tne funds of the bank or incorporated company, and they say that these three who would not consent to the transaction are going to be held if the business proves a failure. Why, these men have Taws enough to protect themselves. What is to prevent these men, if tbey examine the security and find it not good, from withdrawing? If it is insecure it is their duty to the people to protest against that loan beinir made,or the funds of the people being given to irresponsible people. Their rights are just such as if tney were dealing for themselves. They would very soon find a means of stopping it if they were dealing for themselves, but because it is public money the case is different. We have seen banks rise and fall, and we have seen the people robbed of their earnings; and when they searched to find who were the responsi- ble parties, they were pointed to this, that, and the other one, and when the people wanted their money back there was no one responsible for it. It is time there was somebody hedged about and made responsible. I bave'known a corporation to start on the market with shares said to be worth twenty millions of dollars, and yet the five men who managed it owned twenty-five shares between them. Five shares each was suffi- cient fur them to qualify; and these men managed that business for their own individual interests, and they met with disasters; but, sir, the profits came b^fk to themselves. 'The gentlemen say, " How are you to do anything better?" Why, make these men responsible for their mismanazeineiit, and, I might almost say, their dishonesty. We have known where men having large interesta in mining speculations and stock of incorporated companies, have transferred that property to the hands of others. I know among my acquaintances of a certain gentleman who owns three hundred and fifty thousand dollars worth of property of this kind, and yet his home is not worth five thousand dol- lars, and that is covered by homestead exemption. Now, I want to kuow, who are you to look to for the money that is placed in their hands? It is time something was done, and something shall be done, and whether this Convention will do it or not, somebody will do it. The people have been driven to despair. As other gentlemen have supposed cases, now let me suppose one. Suppose a man working up here in the mountains chopping wood or working on a farm has a few hundred dollars, and seeks a place to deposit that money where it will draw some interest, ^e looks arounll Digitized by ^e looks arounll L.^. 414 DEBATES AND PROCEEDINGS Thursday, at the various enterprises, and finally purchases a few shares of/hank stock, thinking that is the best and safest of all. Supposing that this man should come here to the City of Sacramento or San Francisco, and he puts his few hundred dollars into the stock of one of these banks, and goes back to the farm. Through the management of the directors, he loses all of it, lie, trusting to their honesty, they lose the whole of the money. He finds that the majority of these directors never attended a meeting. They never looked after the money they were intrusted with, and I hold that they were the robbers. These men who failed to perform their duty should be held responsible for those they engagera- tions our law provides a way by which individuals may evade a just and reasonable responsibility. In other words, the power of the law — the power of the Stale — is exercisey never saw, not one of them, the innocent minority or the guilty major- ity. Not they, sir. How does it work ? How would it work? And bow has it always worked ? Do you mean to say that you can get the pro- tection by means of the statutes concerning the liability of corpora tors' Will they not put up figure-heads just as they always have done? Why not? Five directors constitute a Board, under the law. Two of these directors are the responsible men. Two of these are the directors who induce the investment. The three arc put there to carry out the plan. They take all the responsibility, while the two responsible men escape, under your Code, and that is how it is done. The. three figure-heads made the trouble, and the two responsible men say they opposed it. Where is the responsibilitv? They are the ones whose private fortunes induced the deposit, but the three figure-heads are the ones who put ap the sculduggery. This always happens in reference to these corpora- tions, the figure-heads go to Europe or .Mexico, and the innocent minor- ity remain. That, sir, lias always been the case, and it can happen in spite ofthe Code. Whilstdeath,ruin,anddevastation stalk the streeV, the scapegoat is abroad, luxuriating, and the dividend-receiving partners— the innocent minorities — remain at home. Then we say, Mr. Chair- man, after the thing occurs, and it is the invariable result, that some- thing is wrong, and we know that the remedy must be applied. Now, has anybody ever heard of the responsibility being brought home to any one of these directors whose responsibility, whosev financial posi- tion, and whose private fortune has bc«n the great inducing canseof the confidence of the community and the trust of the depositors? Has it ever been heard of, sir? Take the case of the Clay Street Savings Bank in San Francisco. There a quarter of a million of the funds of the depositors were drawn out on worthless security. Known to be such 1 Known to every director of the institution to be such I Mere certificates, signed by a Navy Pay Inspector and his clerk, unaccompanied bv a single voucher of any officer of the navy of the United States, ifow, a school boy ought to have known that that was worthless security ; but a quarter of a million of dollara was drawn from the bank by means of that good-for-nothing security. Now, upon investigation, it was shown that five per cent commission was received by the President of the institution fur allow- ing the funds to go upon that triUing securitjr. That would be nearly twenty-five thousand aollnrs. Now, I maiutain this proposition. In the first place, that security was no security at all. There was nothing back of it. The money was gone from the assets of the bank — etemaUy gone. I challenge the gentlemen to find a syllable in the Code by whicn these bank directors can be made responsible for that plain and bold misap- propriation of the funds of that bank. Not one syllable. And thusther crawled out in their innocence, on their ignorance of the transaction. Now, sir, what I ask to do, and what we are going to do, is to say that either you know these things, or you have got to know them; either that they shall be punished for their stupidity, or for their knavery, and I do not care which. But I understand that the officer has been retained. The chances are that they were like Abraham Lincoln's jury when he was defending a hog thief.— they had all got some of the pork. [Laughter.] Now, sir, it always works one way, unless it is once in a while when the directora themselves do vha> we want them all to do, as in the case of the Bank of California, where the directors came forward tliemselves and made good the deposits. That was right That was a just and hon- orable action. But it was, after all, nothing but their plaiu duty. Thej had permitted, month after month, and year after year, the niisappro- priation of the funds of the institution in doubtful or illegitimate spec- ulations. It had gone Mb. REYNOLDS. I wish to correct the gentleman's remarks. They called on the stockholders to make it good. Mb. BARBOUR. Mr. Chairman : Their capital was made good st any rate. The principle is the same. It ought to be done in ail eases. The question is, where we see one continuous result, is there a remedy, and it so, are we willing to apply it? It never has Ijeen but that the depositor has suffered. It never has been known that the director has been made to suffer. Our British friends are far in advance of us. Here but a few days ago a great financial crash occurred in the City of Glasgow, and ruin and destruction was spread all around. Now the whole directory are grinning behind prison bars, and their stockholders are rustling to make good the deficiency. ^J-^uppose thob they were Digitized by VjOOQIC Nov. 14, 1878. OF THE CONSTITaTIONAL CONVENTION. 415 til but one or two innocent, but I believe that the laws there do not reoogffize any innocent minority. In Qur country, the laws in regard to corporations have operated like that famous knife of that wicked (jiieen of antiquity. Her mind was continually dwelling upon devismg means of compassing death, snd she tried first one thing and then another. Finally she contrived a knife. One side of it was impregnated with deadly poison and the other side was not. All that was cut from one side or the knife pro- duced death ; all that was cut from the other side was healthful. Those that were invited to her banquets, and on whom she meditated her evil design, received food from the poisoned side of the knife, whilst hers was taken from the healthful side of the knife. She finally ^t the knife turned wrong, and took her own food from the poisoned side and killed herself. So it has been with these corporations. 8o it has been with these directors. The public, the people, the community have always been fed fn)m the poisoned side of the knife, and they have taken enough of it. They have always suffered all the loss. Now, sir, I want to turn the knife a little and distribute the poison so that there shall be some on both sides of the knife. [Applause.] Thb chairman. The Convention will come to order. SrilCB or MB. WKBSTIB. Mb. 'WEBSTER. Mr. Chairman : I have simply a few words to say. Every one appears to be desirous of getting upon the record in this mat- ter. I think, sir, that it cannot be charged that 1 have been disposed, in my action in this Convention, to favor any mismanagement of corpo- rations. My honest endeavor has ever been to protect the iunocint. While I am in favor of anything that is rcasi>naute, that is equitable, that is just, in the control and govcrunicut of all corporations, I cannot indorse the amendment as offered by the gentleman from 8an Joaquin, Mr. Terry. I can indorse a portion of it. I believe that in the present status of corporations that it might be expedient to increase the liability or responsibility of directors and trustees. I believe, sir, that there would be nothing very unreasonable about holding directors and trustees for the disposition of the funds which were placed in their hands, so far as their employes were concerned. I believe that they should be held to a stricter account in this particular. I believe that the trustees should be responsible, in a measure at least, for their employes. I believe, so far, that the proposition of the gentleman from San Joaquin is measur- ably correct; that if I am a director of a corporation, and I, with my associates, select employes, that we should be measurably responsible for their action. If the law provides that we shall be, then, sir, we will grotect ourselves, by requiring bonds of our employes. That is all right. 0 far, sir, I go. But when you say, sir, that I must stand responsible for every associate in that corporation; that it makes no difference what my own action has been, however perfect, however guaMed in the interest of the stockholders or creditors of that institution, that I should be responsible to the entire extent, individually and personally, I think it is going beyond reason. It has been said that there can be nothing like an innocent trustee or director. Let us see, sir ; there is nothing that brings us so closely to our reason as a matter that directly concerns ourselves. Now, sir, each member of this Convention was elected to this t>>nvention, independent of the action of any other member, only so far as his individual vote is concerned. Each is independent of the other, so far as his action is concerned here, and he cannot be held responsible for the action of his associates. Now, let us take an example which will bring this matter directly before us. Wo are here in the capacity of delegates to this Convention. A law of this State has placed at our disposal a fund of one hundred and fifty thousand dollars. It is absolutely at the disposal of this Convention. Therefore, the members of this Convention are the trustees of this fund. Will that be denied? They have absolute control over it. Now, sir, any misappropriation of that kind, according to the argument of the gentleman on the opposite side, each individual member should be responsible for. Now, let us see if there has not been some misappropriation. In my estimation there has. There were allowances made to employ^ that were not authorised by law, neither by a vote of this Convention. Employes that were not employed by the Convention, neither employed by the Chair. According to my conception there is a misappropriation of a part of the fund of this Convention. In my estimation, the print- ing of all these propositions that have been introduced here, was a mis- appropriation of funds. Further, sir, there was a rule established here by this Convention, that each member of this Convention should be allowed stationery to the amount of ten dollars and no more. Members have drawn in excess of that. We found that they were doing it and we brought up a resolution to the effect that any drawn in excess should be refunded. That resolution was defeated. Now, sir, under our very action I hold that every dollar in excess of ten dollars was misappro- priated, and that the trustees are bound to make it good, according to the argument of the gentlemen on the other side. Suppose that the State Treasurer should come up here and say : " Webster, you are a member of this Convention. There has been a misappropriation of these funds. You are placed here as one of the trustees over that fund. It has been misappropriated and you have got to make it gof day. I am not afraid of such a record. It has been said that the people of this State have suffered from these banking institutions until it has become unendurable. Admit it. Does the remedy lie in wrong and injustice? I think not. It has been said here that there are no innocent minorities, as much as to say that there can be no innocent man engaged in this banking business. I deny that. It has been said here that the lawyers here are to be suspected ; that the bankers of the State are to be suspected ; that all engaged in corpo- rate business are to be suspected, and every one that is said to be respect- able is to be suspected. I pity the man who entertains such opinions as these. No honest man ever yet suspected all of his fellows. If we take out the bankers, those engaged in corporate business, and lawyers, there are not many honest people left in the State — not enough to execute the laws. I do not believe in this wholesale abuse of any class. I believe that there are honest men among the bankers, among those engaged in corporate business, and even among the lawyers; and I believe there are rogues in the Workingnicu's party. [laughter.] I believe that there arc rogues in all parties. According to the view that has been expressed here there is only one way, and that is to adopt the method adopted by Herod, that in order to reach the guilty the mnocent must suffer. All must go in order that one must be reached. That is not a just principle of government. It needs no argument to show it. It would be folly for me to attempt to argue this ijuestiun after the able gentlemen who have spoken upon the question have dealt with it, and therefore I rose simply to place myself upon the record. It is said that the people of this State are laboring under great excite- ment in consequence nr the wrong that they are sutfering. If a man were to come from the remotest part of Africa, and could read, and read this amendment, he would need no further evidence of the fact, because no man that has a keen sense of justice and of right can read that amendment and subscribe to it. It is simply the result of an excite- ment. Nothing else could have produced such a law. I desire to say nothing further, as there is a gentleman already on the floor. Mr. DOWLING. Are you not a director or a trustee of a mining corporation ? Mr. REDDY. No, sir. But I say this, since the gentleman has asked the question, that there are mauy gentlemen of my acquaintance who are trustees of mining corporations, and I would not compare them in ^any way, shape, or form, either in point of integrity, or in physical or 'moral courage, with the gentleman who has asked the question — for fear that it might injure him. Mb. DOWLING. With the gentleman's 'permission I want it dis- tinctly understood that I would not be placed on a par with some of his friends. Mb. REDDY. If I was a trustee of a mining corporation, that would not necessarily impair my integrity or my standing, as I understand this matter. I ask the gentleman himself, have you ever been a trustee of a mining corporation? Mr. DOWLING. Yes. Mb. REDDY. Well, if there are no other questions of that character to be put, I leave the field. BEUIRKS or MR. HCCALLUU. Mr. McCALLUM. Mr. Chairman : I do not rise for the purpose of making a record. When the opportunity shall offer, which will occur in a few moments, my vote will be my record. I desire, however, to state one or two faots which have not been stated, and which possibly may be deemed worthy of consideration upon the (question which has excited, very naturally, a great deal of interest in this Convjention. As to what we say here, Mr. President, it may perhaps be truly said, in the style if not in the very language, what was said upon a very memorable occasion by one now no more on earth, at Gettysburg, that the world will little heed but long remember what we say here. But our State, Mr. President, at any rate, will never forget what we do here. It has been said very truly, and it is a just argument, that the Com- mittee on Corporations, which had the matter in charge, did not recom- mend this amendment Without availing myself of the liberty of the Committee of the Whole to express my views generally upon the report of that committee, I may at least say this: that while that committee has done a portion of its work well, in my humble judgment, it has left a portion of it wholly undone. This is a question upon which, in my judgment, that committee at least ought to have formally passed. If I correctly understand it, it did not pass upon this very important question at all, and this Convention is now without the action of the committee upon this very important question. It has been thoughtthat among our numerous committees that two committees sometimes act upon the same matter, and if gentlemen will notice they will find that section thirty-one of article four of the Constitution, under the head of Legislative Department, is where our Constitution refers to the subject of corporations. There is where the Committee on Corporations very naturally commenced. Now, if gentlemen will turn to the report of the Legislative Committee, and look at section thirty-three, they will find that this identical question was passed upon by the Legislative Committee. And it is no Inore than proper to say that it was not hast- ily passed, but after considerable discussion. I do not remember what member of the committee first suggested it^it will be found substan- tially the same as the amendment — but I will say that so many of us took part in its formulation that the whole fifteen members may be can- didates for that position, f^tion thirty-three, the latter cIsikc, is the amendment now pending without a substantial difference. Here it ji: " The trustees or directors of such corporation or ahsoclation, and etch of tbem, shall be resiwnsible, individually, for the misappropriation by the ofiicere thereof of the funds or deposits of such corporation or atao- ciation." The word embezzlement is not there used, and it is because the word " misappropriation " was thought to include that. I do not think it does any harm in the amendment, but it does no particular good. It is not worth discussing. So, Mr. President, as to the action of the com- mittee, I say that deliberate action has been had upon this very qncs- tion, and more than that, I believe that there was not a dissenting voice upon the Legislative Committee, numbering fifteen. Now, Mr. President, I pass on to one or two other considerstions, for I know that this Committee of the Whole desire to take a vote. The main point, undoubtedly, made here, and that which is apt to prodoce the most effect, is with reference to what are calleil innocent minorities. Corporations are diSerent from partnerships, but in this particular it ii the proposition to some extent to make the liability of trustees the »me as the liability of partners under similar circumstances. If the trusl««t were partners they would be liable on the case proposeil in the amend- ment. Being trustees it is proposed to make them liable to the same extent as specified. Now, Mr. Chairman, I have no war against corporations; I admit the great benefit that some of them have rendered to the couutrv. Mr judgment is that they are a necessity to civilization, and that so Air as the great railroad corporations of the world are concerued that they are the great civilizers of the world. And yet, when the further question comes up, as to the right of the public to control them, and the eipe- diency of asserting that control, I will put this foot of mine as far as be who goes furthest. There are a great many corporations which are not of any beneficial character, and if it should happen that of our corpora- tions, numbering over twenty thousand, some of them could not stand under an ameudment like this, there will be no great loss to the public. There are some of them which were orgnnizea — many of them— for swindling purposes and for no other, and the sooner they go down the better for the public at large. Mr. Bdgerton, this morning— I beg to be excused for referring to the gentleman by name — referred to a case where the Treasurer was elected by the stockholders themselves. I have only one answer to that, and that is, that under section three hundred and eight of the Civil Code, the Treasurer can be elected only by the directors, and if a Treasurer ever was elected by the stockholders it was in disregard of law, and he was not legally the Treasurer of the company. The law provides that by-laws may be made, it is true. But by-laws cannot be made in con- travention of the laws of the land. These officers referred to in the amendment are officers elected by the directors themselves. Supposes case where there are five directors, or three. Who compels anybody lobe a director and associate with the other two? There is an old sayinethat if you lay down with dogs you must exiiect to rise up with fleas. Ther are no more compelled to he directors than they are to go into partner- ships where they would be individually responsible. I do not believe, however, Mr. President, in the doctrine that these minorities are innocent. Suppose the case of a misappropriation where two directors against three — if there ma^ be a Board of only five in some cases — vote against the misoppropriation, there is nothing to pre- vent these two from preventing any mischief under that vote by injunc- tion in the Courts. No man ought to accept the position unless he expects to perform the duties of it. The director, as the statute calls it now — it was formerly called a trustee — it means the same thing. What are they ? They are persons who hold the property of others in trust They are therefore trustees, and if three against two vote one way, the two others oan proceed immediately to stop any further mischief. -' But, Mr. President, coming to the concuision of this matter, I unde^ stand the argument to be presented, that this is not proper matter for a Constitution. It ought to be left to the Legislature. Now I am opposed to putting any unnecessary legislation into the Constitution, but when I bear the ^ntleman from IjOS Angeles argue that it would not have force even put into the Constitution itself, it occurred to me that we certainir could not reach it by legislation. I prefer in that view taking the mid- dle ground between these extreme views of legal gentlemen— between the gentleman from San Francisco, who says that it is unnecessary bec«u« the Legislature can reach it, and the gentleman from Ixw Angeles, who hold^ that it is such an immense power that even the Constitution could not reach it. I prefer to take the middle ground between them, thai in the exercise of the highest legislative power in the way of govemraeni that it can be reached through the Constitution. I have but one word further, Mr. President. I have voted for this mat- ter in committee. I support it here because I believe it is right ; beconsel believe it is of so much consequence that our people should be protected as well on this as on the other side of the corporation question : the evils of the twenty odd thousand corporations of the State. I would vote for it even if I thought it might impair the prospects of the adoption of the Constitution by tne people next May. I shall go upon this principle m all matters of such magnitude as this, and vote right and do right acoira- ing to my judgment, though the Constitution itself which we propose should fail. B7EKCH or MR. INMAN. Mr. INMAN. Mr. Chairman: I do not propose to make any srt rech. Enough has been said already. But as gentlemen seem '« "* irons of getting upon the record I might as well do likewise. I '"^^ to say emphatically that I am opposed to the amendment offered ^!f^' gentleman from San Joaquin. I am opposed to it from the fact, Mr. Chairman, that I believe it will do more injury than it can P"*''''?^ good. I take it for granted that there are to-day fifty or one '"'"J™" small associations or corporations throughout the State that have been Digitized ■ Nov. 14, I8?g. OF THE CONSTITUTIONAL CONVENTION. 417 ^tten up directly in the interest of the farmers. I know of a great many of them. They are gotten up in the interest of the poor mah, not in the interest of the rich man. I cannot to-da^, and the gentleman cannot, call to mind one instance where any individual has lost one dollar by these small associations. Mr. President, if you pass this amendment proposed by the gentle- man from San Joaquin, my honest opinion is that you will drive every responsible man out of the banking business, and out of these associa- tions. You will leave only the irresponsible. Do you suppose that any man who has a private fortune of one hundred thousand dollars or two hundred thousand dollars is going to risk all when be has nothing what- ever to do with selecting his associates? This man he may not like, but there is a majority against him. He can enter his protest and with- draw. That may be just what they want them to do. The result is that the responsible men draw out and leave only the irresponsible. Jt seems to be the death blow to bankers. I believe that I am about the only farmer that has spoken to-day. I have seen the benefit of these small banks I have referred to. Farmers may need a small amount to harvest their crops. If they cannot get it their business must suffer. The grain would stand in the field unreaped, or if tliey should succeed in reaping it, what is the result? Why tney are forcM to rush it into the market when the price is low. I know what^the difficulty in pro- curing money has been in times gone by. I know in Mr. Friedlander's time how he would shut up the bank, and force men to sell their grain at his figures. But to-day we can go to these banks and get all the money we want by giving security. And I say where one dollar has been lost to the depositors in the banks of this State there has been hundreds benefited by them. Now, Mr. President, one would suppose that there never had been any good derived from banks; that we were almost bankrupt from the failure of two or three banks; that men were suffering throughout the State from it. Why, sir, we are the happiest and most prosperous State in the Union. This is not all the evil there is. I find gentlemen favor- ing this who are opposing in committees measures that have a tendency to relievo the poor men, if they will only carry them out, and those are measures to shut up the whisky mills. There is your curse. It is not vour banks. Itisyour whisky mills; it is extravagance ; it is gambling. )iow, I know something of this banking business. Men run to these banks that pay a high rate of interest. That was the way with the Dime Savings Bank. They went there for one per cent. I have never found any great evil to come from banking. The farm- ers and the merchants have been benefited thousands of dollars where there has been one lost in banking. Because one bank has failed, the whole system should not be denounced. 1/ a man commits a crime will you have every innocent man arrested? Now, the gentleman says I am voting for corporations. I am as free from the taint of them as he, or any gentleman on this fioor. I have always been opposed to the corporations when they try to take from the people their just rights, but I am not here to kill any legitimate enterprise. I have no war to make upon any corporation that does its duty well. But if you wish to pass a law to hang me for the acts of another man, I will not fasten the noose around my own ueck. I am not Bones. [Ijaughter.l My con- stituents can think of me as they please. I never cater U) p>ublic opinion when I believe it is wrong. What is public opinion? It is simply the aggregate opinion of individuals. An Individual can be wrong, and so can public opinion. Now, many gentlemen, like myself, want to get upon the record, and I give way. ;IK0UHKMT OF HB. BALt. Mb. hale. Mr. Chairman : I am not anxious to go upon the record. I do not care particularly about that, one way or the other. I am only anxious for the results of the labors of this Convention. If they are satisfactory, I shall be satisfied ; if not, no one has a right to be satisfied. Mr. Chairman, I would not say anything upon this question at this late hour, when this committee is tired, having spent two days upon this subject, but for one or two considerations. It does seem to me that a misapprehension — I doubt not in all candor — has been entertained or evinced by this discussion. That we may know exactly what the point is, I read the pending amendment: " The directors or trustees of corporations and joint stock associations shall be jointly and severally liable to the creditora and stockbolddk for all moneys embezzled or misappropriated by the officers of such cor- poration or joint stock association." Now, in discussing this question with members of this Convention privately, I find that a doubt seems to have crept in as to the effect of the language of this amendment. Two or three gentlemen waxed elo- quent against this sort of wrong, that if there bo a Board of Directors, consisting of seven, of a corporation or association, and four, being a majority, took some step which resulted in an embezzlement or misap- propriation of funds, and three protested against it with all their power to resist it, yet they would be held responsible. I was a little amused to hear gentlemen grow eloquent over the denunciation of such a wrong and outrage as this. Now, gentlemen of the committee, no such result is contemplated by the mover of this amendment, and 1 apprehend that no such result can follow. That conclusion Is based upon an assumption, false in fact, that the officers shall consist, among others, of the directors. The language is, the directors shall be liable, etc., for the embezzlement or misapplication of moneys by the officers. Now, the officers are not the directors at all; neither the four, nor the three, nor the seven. So far as the directors are concerned, if they are guilty of embezzlement or misapplication of the funds, they are liable to the stockholders and cred- itors without any provision of this kind. It needs no amendment to the Constitution or the Code. They are liable under principles of law as old as the civil law. But what is intended to be reached — the evil to be remedied — is to hold them responsible for the acts of their subordi nates. 53 Then, again, I will say this. I believe I have the authority of the mover of this amendment to say — and I allude to Judge Terry — ^that if there be a serious doubt entertained as to the proper construction of this language, he has no objection to a change .or the phraseology, so as to place it beyond any doubt. But this question does not come up here, I think. Now, in the Committee on Legislative Department, of which Judge Terry is Chairman, and several others, myself included, are mem- bers, we have made this as a part of our report : "And the trustees or directors of such corporation or association, and each of them, shall be responsible, individually, for the misappro- priation by the officers thereof of the funds or deposits of such corpora- tion or association." The idea precisely that is embodied in this, and I am informed he simply used that language because he did not have this draft before him. Mr. terry. I could not get it at the clerk's desk. Mb. hale. Precisely; I do not know that they all united in the report, but I thought so at the time. I think there was no objection. I am assured by two members that there was none. Now, sir, what are we aiming at? This: whenever a law is made, there is some object to b^obtainM — some end in view, which the legislator should always have in mind. What is it here? We have, as shown by the report of the Secretary of State, twenty thousand corporations in this Stat«. Think of it, Mr. Chairman ; twenty thousand corporations in a State with about one hundred and fifty thousand electoral Why, sir, if you divide this up among the electors of the State — and these corporations may be formed with the number of incorporators from seven to nine, I believe, according to the Codes — and if every elector of the State were a corpora- tor in only one corporation, there would not be enough electors to go round and make up these corporations. Business is done more largely through corporations than anything else. We conduct all our mines, onr manufactories, our commerce, our railroads, by corporations ; and, gentlemen, we have dealt more largely in corporations than anythinj^ else. Some gentlemen on this floor have sought to array a sentiment against tliis amendment, for fear it would work the extinction^of some of these corporations. In the name of God above I ho|>e it may I I shall rejoice with all my heart. I am tired of feeling that there is no influence in this State, no power in this State, except corporations. I am tired of it. But w« do not propose this amendment for the purpose of extinguishing any corporation. It is to hold corporations to their just responsibility. God made man, and man made corporations. God alone could give us soul, and a spirit, and a conscience, but man has never given conscience, nor soul, nor moral honesty to a corporation yet, and never will. As the law creates it, so it has got no conscience. It has no rule of right, except that which is made by the letter of the Constitution and the statutes. The purpose then, sir, is this, that we should lay down a rule here with our twenty thousand corporations, by which the people shall be protected in the future against the thieving and knavery and highway robbery that has been practiced wholesale for twenty years upon the people of this State. We are told that this thing is all wrong. One gentleman from San Francisco, the Chairman of the Judiciary Committee, waxed eloquent, and told us that it was without precedent in the laws of civil countries; nothing like it above, upon, or beneath the earth. Why, Mr. Chairman, the gentleman has forgotten, or seems oblivious to, the good, pl&in facts about him. What is the objection? What does he see? He says that here is a Board of Directors that may act honestly, and somebody in their employ may be guilty of an embezzlement, or misapplication of funds, ana then he tells us that it would be a high outrage, and without prece- dent, to hold this director responsible. He points us to the case of Wells, Fargo t Company, and says that these directors cannot be expected to keep track of each and every one of these men in their employ, and guard the companr,and the creditors, and the stockholders E^inst their embezzlement. 24ow, Mr. Chairman, with all due deference to the gen- tleman, I differ with him.. Take Wells, Fargo k Company as a case for illustration. Who knows who compose the company known as Wells, Fargo & Company ? Where, sir, is the security to their patrons? Nowhere to be seen. They take their boxes upon the stage lines, but they own not the stage lines. They convey their express on the railroad trains, but they own not the rail- road trains. They have a few offices here and there in the State, but you know nothing of the assets of Wells, Fargo A Co. But when you come to talk about Leland Stanford, Mark Hopkins, E. F. Miller, and Charles Crocker, and these men are the directors, the men who manage this concern, you know something about the responsibility of the con- cern. Now, he says we object to holding them responsible. If they are not responsible nobody can bo responsible. In other words, if the cred- itors and the stockholders cannot hold them responsible, then there is no remedy. Why should they not be responsible? Who appoints these agents? Why, these directors. It is their business to make wise and safe selections. The public trust Wells, Fargo & Co., because of the responsibility and supposed business discretion and wisdom of these men. That is the reason they are trusted, because they are exj)ected to exereise that wise supervision which leads to the correction of abuses, the greatest safety and economy. We are told that there are lio precedents for this in history. Why, what do these gentlemen mean? These directors not only have the power of selecting their own agents, but they can put them in or they can put them out as they please. They can take bonds from them if they require them. They can take any kind of protection until they are finally discharged. Now, let us take another case. Here is the State Treasurer. Under the law he is made the custodian of the public moneys belonging to the State of California. We are all interested in them. But, sir, before he can take that office, before he can handle one dollar of the State money, Digitized by Google 418 DEBATES AND PROCEEDINGS Friday,' he must give immense bonds. What does he doT Why, he must go around to A, B, C, and D, responsible men of the Btate, men capable of responding and who are able to make oath of their responsibility, to go npon his bonds. The Treasurer don't go to these gentlemen and say, " Come and look and see whether I am acting correctly as Treasurer." They have no power to do it. Now, if he is guilty of embezzlement or misapplication of funds they are made liable. There is a case wher^ the surety upon the bonds has no interest in the salary or the emoluments of the Treasurer ; has no power of supervising his work ; and yet the law exacts this penalty, tnat they shall make good the defalcation as sureties. Again, sir, take all the other officers, with the exception of the judi- cial, in the State ; your Sheriff, your Tax Collector, and all the subor- dinate officers of the State. Every Sheriff is rec^uired to give a bond, and they are in the same position. These sureties have no power to watch the Sheriff. The law gives them no power to examine tne Sher- iff's books, to advise him or to control him. But he is acting in a fiduciary capacity, and the law requires that they shall make good any- thing which results from his wrongful act. This system runs through every department of our government from the Treasurer of State %nd other State officers to every county officer, except a judicial officer. Every constable and everjr administrator has to give bonus. These prin- ciples are as old as the civil law, and we adopted it. Now, is not the reason as cogent why some responsibility should be imposed upon these directors. 1 suggest, sir, that tne people, with their experience of the wrong and the robbery which has resulted from the peculations, embezzlements, and misapplication of the funds of corpo- rations under the direction of these directors, should have at least the responsibility of the private fortunes of these men who assume to exer- cise that trust. And if it results in weeding out some of these too numerous corporations, all the better. We shall have no more such experience as this State has witnessed in the last three years. TRK PRtVIOCS QVISTIOX. Mr. HUESTIS. Mr. Chairman : I now, in accordance with previous notice, move the previous question. Mr. AYER8. I second the motion. Mr. EVEY. So do I. Mr. REYNOLDS. Mr. Chairman : I rise to a point of order. My point of order is that it is not competent for a Committee of the Whole, the rule to the contrary notwithstanding, to vote for the previous ques- tion. There is no such thing known, the wide world over, in parlia- mentary law, as the previous question in Committee of the Whole. It will only be necessary for me to refer to one authoriyr. It will be recog- nized at once. Section three huudred and three of Cushing's Manual says : " The previous question cannot bo moved in a Committee of the Whole. The only means of avoiding an improper discussion is to move that the committee rise ; and, if it is apprehended that the same discussion will be attempted on returning again into committee, the assembly can dis- charge the committee, aii T Digitized by LjOOQ IC 420 DEBATES AND PROCEEDINGS Friday, TRB JOCRHAL. Mb. CAPLES. I move that the reading of the Journal be dispensed with. Carried. "Mk. HILBORN. I have a resolution I desire to offer. The SECRETARY read: Jletolvtd, That five handred capio of the Joornal tw printtd and bound In book form, together with an appendix, both to he properly Indexed ; aleo, that two handred and Arty copies of the dally Joamal be printed and placed on the drake of the menbere. Mr. HILBORN. Mr. President : I take this method of calling to the attention of the Conventiou a matter which was hastily? adopted on the thirtieth of October, and which probably wa* not properly considered. I refer to the matter ot printing the Journal. The Convention will remember that a resolution was presented here, which was referred to the Committee on Reporting and Printing, asking them to examine into the advisability or practicability of printing the Journal. They made a report, and made an estimate of the cost of printing the Journal. Among the items of cost was the binding of volumes, the appendix, and indexing. They urged the advisability of placing on the desks of the members a copy of the daily Journal. It was put to a vote of the house and the recommendation of the committee concurred in. I apprehend that the majority of the members of the Convention when voting supposed that they were merely voting to have printed these slips which daily appear on our desks. It has, however, been construed at the printing office that ft carried also with it the intention and purpose to have printed Ave hundred copies of the Journal and the appendix, and that they should be bound and indexed. Kow it places the President in a peculiar situation, and we have now got to place some construction upon our action. I send up this resolution in order that the Convention may express an opinion upon that question. As it is now I apprehend that the Chair would hardly audit any bill that may be presented for printing anything that would go into these bound volumes. I would state another thing, that it becomes necessary for us to know this now, because the Committee on Contingent Expenses have before them a request on the part of the Journal Clerk that he be furnished with an additional clerk, in order that the minutes may be written up to be sent to the printing office, so that the back numbers of the Joumtu may be printed. Now then, if the house has not authorized the back numbers of the Journal to be printed, then that clerk would not be necessary. If they have, then we want to know it, in order that we may report upon that question. Mr. AYERS. Mr. President: I think it was perfectly understood at the time that this Convention required that the Journal of each day's proceedings should be placed on the table of each member. There is a misapprehension perhaps among some of the members with reference to the cost of printing these Journals. In the items tabulated and presented by the Committee on Reporting and Printing the cost of printing aud lay- ing the daily Journal on each table is placed at two hundred dollars, but that two hundred dollars implies that the Journal is to be printed in book form so that it can be bound, otherwise you could not have these slips at the rate of two hundred dollars, because the great bulk of the expense is in the composition. The reason that you can have these slips at that price is that the same type is used aud the only extra expense is a little paper, ink, and presawork. They are printed from the same forms that are used to print the five hundred copies that are to be bound. It would cost you nearly as much, except the binding, to have these slips placed upon your desks, as it would to have the entire work done as proposed by the committee. The items set forth that for the entire work of pir>- viding for this Convention five hundred copies of the bound Journal, the cost will be one thousand and thirty-nine dollars. It was supposed that an appendix would be inserted to this Journal which would make two hundred and fifty more pages, to contain the reports, etc. That appendix would cost five hundred and nineteen dollars and filly cents, as reported by the committee, and the probable cost of indexing, as reported by the committee, would be one hundred and fifty dollars. Then the cost of the slips, which is the mere cost of striking them off, as you have the type set and the matter prepared for striking off the copies for the bound volume, would only be an extra amount of two hundred dollars. The Chairman of the Committee on Contingent Expenses says that there are certain members who so misapprehend that report as to conceive that for the sum of two hundred dollars vou could have these slips laid on the table." That would be very wide of the mark. The entire cost of all this business will be one thousand nine hundred and eight dollars and fifty cents. That includes five hundred bound copies of the Journal, consisting of seven hundred and fifty pages, more pages, I believe, than are contained in the 8enate Journal. Of course if the Convention does not wish the appendix — does not wish the reports added to the Journal — there will be a saving of five hundred and nineteen dollars and fifty cent*. The committee considered when they sent in their report that this was clearly Illustrated In their rejxjrt, and under a motion which I made, that the Journal should be printed, I considered that the entire report — that the entire sum represented in the report — would be authorized bv this Convention. Mr. HILBORN. Mr. President: The resolution I have offered does not express my sentiments or my wishes. I merely put it in as a con- stmction of the Convention's former action. I Ijelieve that this will cost us from two thousand dollars to two thousand five hundred dollars. It is true that these Journals will be very nice things to have to take home and file away, but I reckon they are hardly worth two thousand five hundred dollars, I believe that we con have the Journals printed every day and laid on our desks for a much less sum of money, and that we ought to leave it for future Legislatures to have this Journal bound, and that we should not take this present appropriation for that purpose. S: Mr. REYNOLDS. I should like to ask the Chairman of the Commit- tee what the appendix is to contain. Mr. HILBORN. Reports of State officers, etc., that do not emaiula iroperly from the Convention. When we send out on in<^uity Is regsM . ~ the amount of stationeiy each member has drawn, for instance. Mr. REYNOLDS. Are not these reports spread upon the Journal itself? Why, then, is it necessary to have any appendix? Mr. cross. I sie that this daily Journal was commenced on the thirtieth of October. Now, if we are going to have any use for this at all, we wont the whole Journal from the twenty-eighth day of Septem- ber. There is no use of having this half of a Journal. I want the whole thing. Mr. O'SULLIVAN. As I conceive, the printing of this Jonmal has been ordered already, the printing of it complete, bound copies and every- thing else. I do not Me that Mr. Hilbom's resolution is wanted now. I think this Convention has ordered the printing done already, and it is a small matter of economy to stop the printing now. We certainly will want the Journal printed in full, and bound copies also. If we had gone into economy in voting down bills that should not have been paid ere, we would have done Mtter. Mb. AYERS. I will state that, according to the figures that we have from the State Printer, the onlv saving that would be made by refusing to have the Journals printed in book form, would be the cost of binding five hundred copies, which would be three hundred and twenty-five dollars, and the cost of paper and presawork, which would be one hundred and five dollars and sixty cents. There is the entirt amount of saving that there would be in the matter. , Mb. HILBORN. Let me suggest that there is another item, an extra clerk. Mb. AYERS. That is separate from the printing btisiness. That ia to assist the Journal Clerk. Mb. HILBORN. Yes. But it won't be neoeaaory unless the back numbers are written up. Mr. AYERS. You will only require a clerk for a short time to bring up the work. The minutes of the Minute Clerk can be used by the compositors in the setting up of the matter. It is a mere trifle. Mr. REYNOLDS. Mr. Tresident: In the back part of the house we are so unfortunately situated that it is impossible to hear what U going on at the desk, or anvwhere within range of the gentlemen wIm compose this committee. fCries of " louder."] Well, gentlemen are In the same fix there now as we are all the time. I have been unable yet to understand whether there has been an^ number of copies of the Journal ordered to be hound, or whether this resolution is for that pur- pose. Let the Chairman answer. Mr. HILBORN. Only by adopting the report of the Committee on Reporting and Printing, and It was doubtful whether that did or not The President didn't know how to construe that action of the Conven- tion. I offer tlie resolution to know whether they did order the biodiog or not. Mr. REYNOLDS. Then, this resolution of the gentleman is to do the work twice over. Tbr PRESIDENT. The Chair will state to the genUeman the posi- tion of the matter. We find on the second page of the Journal for the thirtieth of October, the report of the Committee on Reporting and Printing. That report you will see on page three was received, and on motion of Mr. Ayers, the Journal was ordered printed as recommended by the committee. The Chair was in doubt woether they intended to print and bind all these copies, or whether the Convention only intended to print slips to lay on the desks every morning. I declined fur the time to order the binding, etc, and to settle that doubt, the Chair- man of the Committee on Contingent Expenses presents this resolution— simply to give a construction to the former action of this Convention. Mr. REYNOLDS. That is right then. I'he resolution ought to pasi ^Mr. HILBORN. I suppose they all know that the result of the adoption of the resolution will be to incur this expense of two thousand or two thousand five hundred dollars, while a rejection of it would leave us just as we are now, with the slips on our desks and the other matter undisposed of. Mr. AYERS. I would like to ask the Chairman of the Com- mittee on Contingent Expenses how he swells one thousand nine hundred and eight dollars and fifty cents up to three thousand dollanf Mr. HILBORN. I said two thousand five hundred dollare. Mr. AYERS. Well, two thousand five hundred dollare? Is this extra clerk going to be paid five hundred dollars for a few days work ? Mr. GORMAN. I would like to ask what this wtti cost to lay the slips on our tables without any copies being bound — from the begin- ning. Mr. AYERS. It would cost about the same amount, less the cost of binding, tliree hundred and twenty-five dollars; less the cost of paper, one hundred and five dollars and sixty cents; and leas the presawork, thirty-eight dollars and forty cents. Mb. GORMAN. That would be four hundred and sixty -nine dol- lors. Thb president. Deducted from one thousand nine hundred and eight dollars and fifty cents. Mr. GORMAN. It would cost us one thousand five hundred dollars to print these slips alone. Mr. AYERS. Yes. Mr. REYNOLDS. This ommittee seems to be endowed with the faculty of making ambiguous reports. I move that it be laid on the table until we have an opportuuitv to find out what it is. Mb. AYERS. I call for the readingof the report. Let us see wheUier it is ambiguous or not. Mr. REYNOLDS. I am more than ever opposed to voting upon the resolution until I know better what it is. I insist upon the motion to lay on the table. Digitized by' 1 1U9I9I. upon MIO M*v"* Google .^..iUi^ I Nov. 15, 1878. OF THE CONSTITUTIONAL CONVENTION. 421 Mk. ATEBS. I will suggest that there is a mode of economy here. That would be to leave nut the appendix. The cost theu would be within the range of one thousand dollars. • Mb. HILBORN. I wish to a*k if the matter that will go into the appendix is not already printed and standing in type nowt Ma. ATERS. I think that there are a gr«at number of the reporta that were in type at one time, but I think tney have been distributed. Mb. HILBORK. I am convinced that these estmiates will be over- run in almost every particular. Now, I will say that the Journal Clerk is endeavoring to do his duty. He is working hard and well,oomparing the minutes and reading proof, etc All that he will aak is that we famish him a clerk durine the period when they may be printing the back numbers of the Journal — for the twenty-four days prior to the oom- menoement of the printing. Mb. BARRY. 1 second the motion to lay on the table. It is not debatable. Thk PRESIDENT. The question is on the motion of the gentleman from San Francisco, to lay the resolution on the table. The motion prevailed. NOTICK. Mb. INMAN. I have a notice I desire to give. * The SECRETARY read : " Mr. President : I give notice that I will move, to-morrow, to amend Rule Fifty-six, as follows: Strike out, in lines two and three, the words, 'forlimitmg the times of speaking,' and insert, ' that no member shall speak more than ten minutes on any one proposition, without leave of toe Convention.'" COBPOBATIONS. Mr. E8TEE. Mr. Chairman : I move that the Convention resolve itself into Committee of the Whole, the President in the chair, for the purpose of continuing the consideration of the report of the Committee on Corporations other than Municipal. Gamed. IN COMMITTEE OP THE WHOLE. The CHAIRMAN. Section four was under consideration when the committee rose. The Secretary will read it. The secretary read : Sec. 4. The term corporations, as used in this article, shall be con- strued to include all associations and joint stock companies having any of the powers or privileges of corporations nut possess^ by individuals or partnerships; and all corporations shall have the nght to sue, and shall be subject to be sued, in all Courts, in like cases as natural persons BANKt^O COBPOBATIONS. The chairman. If (here are no further amendments to section four the Becretanr will read section five. The secretary read : Sbo. b. The Legislature shall have no power to pass any Act grant- ing any special charter for tanking purposes; but corporations or asso- ciations may be formed for such purpliibited by the Constitution. Now unless this first clause of section five is put in, it seems to me that the Legislature would have power to grant special franchises to individuals. ■■MARKS OP MR. ■OLP^. M^. ROLFE. Mr. Chairman : It seems to me that this amendment ought to be adopted, for this reason, that the provision is in the wrong place, if needed at all. That is merely a prohibition against a special Act granting a special charter for banking purposes. This prohibits the granting of a special charter to either corporation or private individual That clause must have been drawn up under the impression that bank- ing would not be conducted except by corporations, whereas, I think, after two days discussion upon the question, that banking can be car- ried on by others than corporations. Therefore, that prohibition does not necessarily have any reference to corporations, as I can see, at all. If special banking charters are to be prohibited let it be in the Legislative Department. If that prohibition is necessary strike it out fh>m here, where it does not belong, and put it into the Legislative Department, as a restriction upon legislation. There is where it belongs if it belongs in the Constitution at all. ■■HARKS OP MR. HAOKR. Mr. HA6ER. Mr. Chairman : It is well enough to understand exactly what we are talking about, and what we are tryiiiz to do. I presume that we all understand that we are amending the old Constitution with reference to proposing a now. Now, the provision reported by the com- mittee is substantially the same as the old Constitution, and the criti- cisms would equally apply to the Constitution as it now exists. That is, the Constitution as it now exists, provides that corporations may be formed under general laws, but shall not be creatM by special Act. Buch is the amendment of the committee. The Constitution, as it exists, provides that the Legislature shall not have power to pass any Act granting any charter for banking purposes, but associations may be formed under general laws for the deposit of gold and silver. Now, the only substantial variation is by leaving out that provision for the deposit of gold and silver. " The Legislature shall have no power to pass any Act granting any charter for banking purposes; but corporations or aaso- ciations may be formed for such purposes under general laws." Now, I merelv refer to this to show that the criticisms indulged in here would eauaify apply to the old Constitution as it exists, except in the alteration ot the word that I have made. I think that the committee have been wise to follow the language of the provision in the old Constitution, inasmuch as that language has been in use, and the Supreme Court has passed upon its different relations again and again, and it is a well set- tled rule that when constitutional law, as well as statutorr law, has been repeatedly adjudicated, it should be left standing accoraing to that adjudication. Why should we change the phraseology and introduce something of a doubtful character? The only criticism that I assumed to make, was that it would amount to nothing, inasmuch as the Constitution we are amending has the same provision precisely. I can see a propriety in its reading as it does, because it applies to all corporations and partner- ships, men either of native or foreign birth, that they shall have no special privileges in this country as individuals, partnerships, or corpo- rations, to pursue banking. The gentleman from San Bernardino, Mr. Waters, says that special privileges have been granted men in this State. That is' true, and they were sustained by the Supreme Court of this State. The Legislature has again and again passed laws giving special franchises to toU-roads, fer- ries, and toll-bridges, and it has oeen almost impossible to get rid of them afterwards, in the earlier days of the State. I cannot see any good reason for changing the old Constitution in the manner that it is proposed to be changed by the amendment which is proposed by the Senator from Alameda; and I commend the Committee on Corporations that they have adopted the old Constitution in a treat many of^ the pro- visions that ar« well understood and well settled oy abjudication. RRMARKS OF MR. riLCRR^. Mr. FILCHER. Mr. Chairman : It seems to me that the report of the Committee on Corporations, while apparently retaining almost the old section, they still put a construction upon it that entirely defeats the idea contained in the old Constitution. The old section prohibits the liCgislature from granting a charter for banking purposes, while the sec- tion as reported confines it to a special charter. Mr. ESTEE. I have stated that the word " special " crept in there by mistake, and that we consented to have it ^tricken out. Mr. FILCHER. It is a broad declaration that associations and corpo- rations, without any limit whatever, can be formed, and in this respect at any rate, the effect of the section as reported would be the same as is proposed by the amendment offered by the gentleman from Alameda. I am opposed to either the amendment or the section reported by the committee, and if it is the sense of the committee that the section as it stands in the old Constitution should be adopted substantially, I hope that they will vote down these amendments and will coiuider an amend- ment I will send up. It is exactiv the same section as in (he old Con- stitution, except that it adds after the words, •' for the deposit of gold and silver," thtf words, "and other lawful money of the United States." There you have all the old provision with that addition that we have found necessary by experience. I think that is all the change neceMsry, and all that in wisdom we are justified in making. As to the remark of the gentleman from San Bernardino, Mr. Rolfe, that this matter oueht possibly to go before the Committee on Legislative Department, I would say that it was considered and thoroughly discussed in that committee, and after discussing and considering it, the change I suggest was made in the committee, and that was the only change. Thr CHAIRMAN. The question is on the amendment offered by the gentleman from San Joaquin, Mr. Dudley. The amendment was adopted. Mb. FILCHER. Mr. Chairman : I now offer my amendment, which I have sent to the clerk. Th^ SECRETARY read: " The Legislature shall have no power to pass any Act granting any charter for banking purposes, but associations may be torvam under gen- eral laws for the deposit of gold and silver and other lawful money of the United States; but no such associations shall make, issue, or pat in circulation any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate asmoney." ■■MA«K8 or HK. ■STE^. Ml. ESTEE. Mr. Chairman : Your committee, sir, in adapting the section as reported first, felt that the declaration should be made as found in the old Constitution, namely, that "the Legislature shall have do power to pass any Act granting any ctiarter for banking purpoees." That was held necessary for several reaaons. First, we wanted to hold all such institutions bound by all of the provisions in this Constitution and limited by all the provisions of this Constitution, so that the Legislature should not at any time in the future interfere with this great question, but that the banking institution, whether an association or corporation, should come in under general laws and l>e subject to all of its restrictions, and all of the restrictions in the other section of the draft reported by the committee. We adopted the old Constitution. It has stood for twenty- nine years, and ^less the gentleman can show some more potent reason tor striking that out, I appeal to the aense of the Convention to let it stand. Mr. hale. I understand that the report follows out the original intent of the old Constitution. Mr. ESTEE. Except so far as it adds to it. Mb. HALE. The old Constitution authorizes not corporations but associations to be formed under general laws for the deposit of gold and silver. Mr. ESTEE. If the gentleman will wait a minute, I will come to that. That was the reason that we left that first proposition in. The next proposition of the committee is : " But corporations or associations may be formed for such purposes under general laws." The old Con- stitution read, " but aasociations may be formed under general laws lor the deposit of gold and silver." The bet is patent to every member that corjporations had been formed for the deposit of gold and silver, and for the loaning of money, ever since eighteen hundred and fifty— ever since the adoption of the present Constitution. Your committee saw this strange condition of things. They saw a provision in the Constitution that no bank should exist, but banks did exist, and the Supreme Court held that, notwithstanding that provision, these banks could get into the Conrtsof the country and enforce their rights, and they have existed from that time up to the present. With that in view, your committee concluded to add this : " But corporations or associations may be formed for such purposes under general laws." That is fair, if there is going to be any. Of course, if the gentleman makes the point that there should not Se any banks, that is a different proposition. But if they are to exist, then your committee thought they should stand upon the same footing as any other business institution of the country. The next proposition is : " But no corporation or aseociation shall make, issue, or put in circulation any bill, check, ticket, oertificsle, promissory note, or other paper, to circulate as money in this State, except the lawful money of the United States." Now, sir, these were the reasons that moved vour'committee in reporting that section as it is. If it can be improvereei8ely the same footing as other corporations, giving them no more avor, and taking from tnem no more rights. There is a declaration in the first section of that article that corporations cannot be formed bjr special enactment. Now, is not that sufficient? Does not that apply to all corporations? Most undoubtedly. Now, the only purpose I can see had in view in the fifth section is to prohibit the issuance of paper to circulate as money. Now, I am willing to go to the extent of the committee and the old Constitution in that particular, and I have included individuals as well as corporations — tnat they should not be allowed to issue paper to circulate as money. And, with all deference, 1 cannot see the necessity, after we have declared most emphatically that DO corporation shall be formed by special Act, to repeat again that no corporation of a particular kind can be formed that way. I object to unnecessary repetition in the Constitution — to tautology. If any good can be done by it, I would like to see it; but it is not enough to sav that it existed in the old Constitution. But it did not so exist in the old Con- stitution. They have stricken out, "for the deposit of gold and silver." I am willing tliat they should be on the same footing with other institu- tions, and, while I voted to hold the directors and trustees responsible for the misappropriation of the funds intrusted to them, I am willing to concede that this class of corporations are a useful institution in the Btate, and have been promotive of the best interests of the State when properly managed and conducted, and I am willing that the^ should stand upon the same footing as all other corporations. That is the purpose I have in this amendment. Then the section will be stripped of everything excepting the declaration that neither corpor ration, nor individual, nor association, shall issue paper to circulate as money. BKMAKKS or MR. RKRRtKOTOII. Mr. HERRINGTON. Mr. Chairman : I would ask the gentleman to accept this proposition as a substitute for both amendments, and I think it will include the idea that was intended to be retained in the original section by the gentleman from San Francisco, Mr. Estee, and also the purpose of the gentleman from Alameda, Mr. Van Dyke, and not be subject to the objection of being tautological : " No person, corporation, or association shall be authorized to make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper,to circulate as money in this State, except the lawful money of the United States." That includes an inhibition to the Legislature, and at the same time it prevents them from issuing paper to circulate as money. Now, if the gentleman will accept that as a substitute, gentlemen can be accommo- dated with reference to the meaning which we desire that this section will have. Mr. VAN DYKE. That is my amendment Mr. HERRINGTON. With the exception of the words " be author- ised to." I can only get it in by your acoeptingjt as a substitute. REMARKS or MR. McrARLAKD. Mr. McFARLAND. Mr. Chairman : I suppose that the committee aimed at these three propositions ; that the Legislature shall not grant any special charter ; second, that associations or corporations may be formed for banking purposes; third, that they shall not issue paper to circulate as money ; and that the majority of the Convention are in favor of this proposal. Now, it does seem to me that we can accept that. I am sorry that the word " special " has been stricken out. It reads now that " the Legislature shall have no power to pass any Act granting any special charter for banking purposes," and yet it says " that corporations or associations may be formed under general laws." Now, the general law is in itaelf only a charter. A charter is a mere grant, and the gen- eral law is a grant, and I think the word " special " had much better be left in there. But, sir, if we are in favor of banks being organized for general banking purposes, except that they shall not issue money, it seems to me that this expre.%ion iu the report is much better than the old Constitution. The old Constitution says that there shall be no banks, but associations may be formed for the deposit of gold and silver. That means upon the face of it that you can only have places where money can be deposited with some person who shall take care of it for Bay and hand it back to you when you want it. Yet, we know that we nave had banks that do a general babking business, except that they cannot issue money, and I understand that the people want them and the Courts have been compelled to get around the proposition. If we want these banks it is much better to say so, and I think the committee has done so. It seems to me that this section had better b« left just as it stands. RKMABXS or MR. BARBODR. Mr. BARBOUR. Mr. Chairman : I hope that these amendments will be voted down. This committee is dealing with corporations. If I am correctly informed the Committee on Legislative I>epartment will propose a general section forbidding the Legislature granting any special privileges of any kind or forbiddmg special legislation of any kind. Thia section reported by the Committee on Corporations, is prepared as relating to corporation's. I do not mean to go into the Legislative Department, for that will be regulated by the matter presented by snother committee ; but if these amendments are voted down, and I get an opportunity, I propose to offer to amend the section where I think the committee have fallen short in not putting the banking corpora- tions, as they intended to do, on the same footing as all other corpora- tions. They stopped short, after providing that they might be formed under general laws, by not inserting " but such laws may be repealed or altered from time to time." I propose to add that to the section and make it conform to the declaration in section one which has already been adopted by this committee. Section one provides: " Corporations may be formed under gefieral laws, but shall not be created by special Act. All laws passed pursuant to this section may be altered from time to time, or repealed." In other words, putting the corporations under the control of^ the Iicgislature. This section five might imply that the banking corporations are not subject to that provision. Therefore, I propose to add to the section, after the words " under |^neral laws " the words, " but such laws may be altered from time to time or repealed," just as in the first section ; and then some proviso further as to the duty of the liCgislature in controlling and regulating them. REMARKS OF MB. FILCBBR. Mr. FILCHER. Mr. Chairman : I spoke to the substitute, but not since my amendment was offered, and I wish to point out the difference between the section as reported by the Committee on Corporations, the amendment propose(^by the gentleman from Alameda, and the amend- ment proposed by myself. In the first place, in the old Constitution we find a limitation. We find that while associations may be formed, it points out for what purpose. The report of the Committee on Corpora- tions ingeniously avoids the limitation, and simply provides that cor- porations may be formed for banking purposes That of course includes all, without any limitation whatever. Next, the amendment of the gentleman from Alameda, would simply declare that no corporation, person, or association shall be formed which shall have power to make, issue, or put in circulation anv bill, check, ticket, certificate, promissory note, or other papers, to circulate as money. The same limitation that now exists. But, that would leave the question open with the Legisla- ture to form the class or character of banking institutions without limit. Now, sir, it is wise, in my judgment, to retain the limitation. My amendment retains that specification, or the limitation. It declares that while a corporation may be formed, it shall be for the deposit of gold and silver and the lawful money of the United States, as exiierience has proven necessary. I see no reason why that clause should not be added. I believe the section would then be all that is desired. But, as for changing it as proposed by the report of the committee, and destroy- ing these limitations, I am certainly opposed to it. Gold and silver is lawful money, and there may be other money that Is lawful — and there is — so there is no reason for that limitation. While, on the other hand, I do not think it is wise to obliterate the restriction which states for what purposes these institutions may be formed. REMARKS OF MR. ESTBE. Mb. ESTEE. Mr. Chairman: If this amendment is adopted, a bank could not do any of the ordinary business. They could not nego- tiate notes; they could not loan money; they could not carry on that very kind of business that every man knows that bankers do do, and that they must do. If they are only for the purpose of receiving deposits of gold and silver, it amounts to nothing. They cannot carry on that business. We do not want to restrict the gentleman in^ny limitations that are Ultimate. If he has got any limitation that will protect the people against any evil, we are anxious that he should sub- mit it and have it adopted. And I will say that he is very much mistaken when he says that the committee has sought ingenuously to avoid the limitation. On the contrary, the committee sought ingenu- ously to impoee all the limitations consistent with the business in which they are engaged. I do not think that the amendment offered by the gentleman will be either advantageous to the people, or offer any limita- tion of use to the people, or protect the people from any wrong, and at the same time it would merely destroy that class of business. BKMABES or MR. LAINB. Mb. LAINE. Mr. Chairman : I hope that the committee will vote down all the amendments that have been so far offered. The object of the people in adopting this clause in the old Constitution was, first, to prevent the formation of banks, except under general laws; second, they desired to prevent the establishment of banks of issue. Now, they used language that accomplished that purpose, and I am entirely opposed to departing from the language of the old Constitution, unless some good can be effected by it. The first clause read: "The Legisla- ture shall have no power to pass any Act granting any charter for banking purposes." That covered individuals as well as corporations and associations. So we desire to preserve that intact. The gentleman from Alameda is entirely mistaken, when he'says that the Ensign Act fell for the reason that he assigns. Every lawyer here who has studied that decision must know that it fell because it was a practical evasion of the provision of the Constitution that provided that corporations should not be formed by special Act. The Ensign Act pretended to grant a special charter to individuals, on which they were to form a corporation within a given time, and if that part of the Act had been left out, the Supreme Court would have upheld the Act. But, in the language used by the framers of the first Constitution, it was provided that " aasoclations may be formed under general laws for the deposit of gold and silver." Under a strict construction, commercial banks could not be formed. However, they have been formed and carried on for a long time. The committee have changed that, but still inhibit banks of issue. 1 think that was very proper. This amendment, offered by the gentleman from Alameda, would open the door to special privileges to other than corporations, and leave the Legislature untrammeled m that regard. The other amendment leaves out the word "corporation;" and I was anxious to hear a reason for it, but did not. But the committee provide that "no corporation or asso- ciation shall make, issue, or put in circulation, any bill, check, ticket, certificate, promissory note, or other paper, to circulate as money in this State, except the lawful money of the United Slates," so that they have covered the whole ground. But the balance of the section, after the word "money," I am satisfied ought to go out. But either one of these 424 DEBATES AND PROCEEDIJTGS Friday, ftmendraenU will impair or destroy the usefulness of this section. I am satisfiod that the committee has worded it according to the wishes of the people of this State, and it ought to staud down to that wor4. KKMAKKS or HB. BEIR8TICHKB. Mr. BEERSTEOHER. Mr. Chairman : In this discussion, it seems to me, one important thing has been lost sight of, and that is this: the old Constitution has no article — no special article — in relation to corpo- rations and corporations alone. Now, it seems to me that whenever any Court passes upon any article of the new Constitution (if the new Constitution is adopted), the Court will take into consideration the sec- tion that it is passmg Ufton, and in what particular article that section happens to be. If the section being passed upon is under the general title of "Corporations," of course, of necessity, the section must be specially considered with reference to the law of aorporatious, and not with reference to the Legislative Department. In the old Constitution we had no article on corporations. Article four, in which we find the subject of corporations, is the article upon Legislative Department; and therefore, when, in section thirty -one of article four of the old Constitu- tion, it is said corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes, that section thirty-one relates to corporations. Then, when we come to section thirty-four of that article, it relates to banks, and not to corporations. And when the gentleman says that special pririleges have been granted other than privileges conferred upon corporations, of course — this article relating to everything within the bounds of the Legislative Department — it was necessary to designate, to make a distinction, between corpora- tions and other franchises and privilejjes that might bo conferred. But in the particular article under discussion, and to which the gentleman from Alameda has offered an amendment — it relates to corporations solely and alone, and every section found in that article relates to cor- porations. But when the word "charter" is used, it means an Act of the Legislature conferring the right of incorporation. It does not mean special privileges outside of corporations. And, as was well said by another gentleman, if we want to insert anything of that character in relation to banks, it ought to be iniaerted in the article on Legislative Department; and I am perfectly willing to vote for it in the article on the Legislative Department. But it seems to me, to allow it to stand in section five, is to say, in effect, that the Legislature shall have power to pass Acts granting special charters for other purposes, because there is a special inhibition which says that the Legislature shall have no power to pass any Act granting any charter for banking purposes. The ex- pression of one thing is the exclusion of everything else, and the exclu- sion of everything else may be said to be the expression of that very thing. Therefore, if we say here that the Legislature shall not pass any Act granting any charter for banking purposes, it seems to me tnat they can grant a special charter for other purposes. REMARKS or MR. HOWARD. Mr. HOWARD. Mr. Chairman: I propose to say a few words in favor of the amendment as offered by the committee, and I think it h very clear that the lanj^uage used by the committee is an improvement upon the old Constitution. I may say in the beginning that it was the intention, no doubt, of the frainers of the Constitution of eighteen hun- dred and forty-nine to allow all banking except banking for the purpose of issuing and circulating money. But it has been expressed in a very obscure manner. Section thirty-four, of article four, is this: " The Legislature shall have no power to pass any Act granting any charter for banking purposes; but associations may be mrmed under general laws for the deposit of gold and silver, and other lawful moneys of the United States, but uo such association shall make, issue, or put in circiilatioii any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate as money." Now that excludes banks of loan, and excludes banks from talcing any other deposits than gold and silver, which obviously could not have been the intention of the fmmers of the Constitution, although so expressed. But we know that our banks are banks of loan, and would be banks of very little utility if they were not banks of loan. They have jjone on loaning money continually, and alwajrs in violation of the Constitution. Now, sir, let us look at the next section. It says: " The Legislature of this State shall prohibit by law any person or persons, association.company, or corporation, from exercising the privi- leges of banking or creating paper to circulate as money." Now, in the first place, they say there shall be no banking except for the deposit of gold and silver. There shall be no banks of loan. There shall be no banks that may take any other money except gold and silver ; and then in the thirty-fifth section it is still further contracted. Now, it is obvious to every one that this language is obscure, to say the least. We have met it by providing, in substance, that there may be banks of deposit of all classes of money ; that there may be banks of loan ; that there may be banks for all jmrposes usually understood by the word banking, except banks for issuing paper money. It seems to me that the language of the committee is clear; that it gets rid of the difficulty of this ambiguity, and places banks where they should be placed in this country. It allows banks of loan and banks for the deposit of all kinds of money, but prohibits them from making paper money and cir- culating it. Now, sir, this provision is brought down from the Constitution of Texas, with which I had something to do. There we prohibited paper money. Now, 1 will say that in Texas we had no paper money up to the time of the Rebellion, when it was deluged by Confederate money. It was found to Ije a salutary ]irovision. We alwavs had an abundance of gold and silver, and I hope we shall adhere to the policy here, which has been engrafted upon our specific contract law, and which has pro- tected this State from the commercial convulsions and failures that have prevailed in almost every other State in the Union. This is to be done by prohibiting, in clear and explicit terms, banks from making; paper money to circulate as a circulating medium. We have used clear un- guage for that purpose. We have removed the ambiguities in the Con- stitution of eignteen hundred and forty-nine, and I trust, sir, that the language of the committee will not be tinkered with, but that we Till use clear language, as we have used, and which we propoee to engraft in the Constitution, to express what we mean. I hope these amendraenta will all be voted down. Thk oh AI RM an. The question is on the amendment offered by the gentleman from Alameda, Mr. Van Dyke. The amendment was lost. Tax CHAIRMAN. The question now recun on the amendment offered by the gentleman from Placer, Mr. Filcber. The Secretary will read it: " The Legislature shall have no power to pass any Act granting uy charter for ranking purposes; but associations may be formed under general laws, for the deposit of gold and silver, and other lawful money of the United States, but no such association shall make, issue, or pat is circulation any bill, check, ticket, certificate, promissoiy note, or other paper, or the paper of any bank, to circulate as money." Mr. HOWARD. Mr. Chairman : That is open to Cbe same objection. It prohibits banks of loan. Mb. WHITE. Mr. Chairman: I move to amend by adding at the end of the section the following: " All laws passed pursuant to this section may be altered from time to time, or repealed. It shall he the duty of the Legislature to passliwi for the regulation and control of corporations formed under this section; to protect the depositors in savings banks; to prohibit loans at high rates; to prohibit discrimination Mtween borrowers; and to regulate by law the salaries of officers of savings banks." Tbb CHAIRMAN. The question ison theamendment offered by the gentleman from Santa Cru«, Mr. White. The amendment was lost. BBMABKS or MB. BEBBIXOTOS. Mr. HERRINGTON. Mr. Chairman : I move to strike out the whole of the amendment and insert the following: " No iierson, corporation, or association shall be authorised to make, issue, or put in circulation anpr bill, check, ticket, certificate, or promis- sory note, or other paper, to circulate as money in this State, except the lawful money of the United States." Now, it seems to me, that ought to cover the ground contended for by the gentleman from San Francisco, Mr. Estee, and the ideas intended to be conveyed by the gentleman who offered the first amendment; and it also embraces the substance of the present section, and is not subject to the objection that was interposed to the section as it now stands. It inhibits the Legislature from authorizing any person, oorpotation, or association to issue any paper to circulate as money. It also, as a matter of course, attaches to the private individual. It leaves also the power in the hands of the Legislature to authorise these banking associations to loan money. It takes no authority away from the Legislature to give full and ample power and authority to do all the business they an now doing, and does not limit them to the deposit of gold and silver coin or other monevs of the United States. It strikes me that we should he satisfied with that and avoid the difficulty that is now in the way of the adoption of the section as it now stands. REMARKS or MB. BOLFB. Mb. ROLFE. Mr. Chairman : Irisetoa point of order. Hy point is this : that this amendment is substantially and almost literally the same as was offered by the gentleman from Alameda, Mr. Van Dyke, and voted down. Now, although I favored that amendment, it was voted down, and I cannot soe any material difference between it and this one. The only difference I can see is that one says, " no corporation, pereon, or association shall make, issue," etc., and the other says, "no person, corporation, or association shall be authorized to make, issue," etc He puts it in a different form, but I cannot see any difference in the , meaning. The CHAIRMAN. The point of order is not well taken. This is an amendment offered to another amendment entirely. BEMARKS or MB. BBOWN. Mb. BROWN. Mr. Chairman : I object to this amendment on the same ground. Now I do not wish to present myself before this body as a critic, or anything of that kind, but this amendment comes before as in a certain form. I am not saying whether other forms that embraced about the same are correct or incorrect, but I am opposed to this because I think it is decidedly ambiguous. " No person, corporation, or associa- tion, shall be authorised to make, issue, or put in circulation any bill, check, ticket, certificate, or promissory note, or other paper, to circulate as money in this State, ext in. Mb. McCALLUM. That is the very point that I urge in support of the amendment offered by the gentleman from Placer, ifr. Filcher. We need such a change as is m the amendment — that is, section thirty-one of the report of the Committee on Legislative Department — and there is no need to amend, or go to work upon this section five, provided, in the judgment of the committee, section thirty-one is good as it stands. That error does not occur in the report of the Committee on Legislative Department. It is now before the Convention in the amendment pend- ing. The section reported does not contain the clause now in the Con- stitution about associations for the deposit of gold and silver. They use generally, the language, " for such purposes." What is attempted, as a matter of grammatical construction, I am unable to very clearly under- stand. It reads : " The Legislature shall have no power to pass' any Act granting any charter for banking purposes; but corporations or associa- tions may be formed for such purposes under general laws." Now, we state, in that respect, the report of the Committee on Corporations is ambiguous. It is said that in the twenty-ninO' years of the Constitution the Courts have construed that section, giving the banlis the right to do the kind of business which the banks have done in all these years. Then if construction has been given to that language where is the necessity of changing that language? I am oppo^ to inserting anything in the Constitution, as we find it, or to striking anything from it, without some good reason showing the necessity. It is a strong argument against the section reported by the Committee on Corporations, that they change the section aifler the Courts have construed it fur twenty-nine years, without any difilculty. If it is wrong it has been so for twenty-eight or twenty-nine years. If difficulty can come in the future, I submit that we bad better not change it, for fear some other construction may be given, giving them some right which we do not propose to give by the amendment. Mb. LAIN£. I would ask the gentleman if the Supreme Court has ever construed that language? If it has, I never found it. MB., which the old Constitution did not seem to contemplate, and had permitted them to get into Court on that kind of business, notwithstanding the apparent inhibition of the Constitution, and we thought we would make it a little clearer if we could. Mb. McCALLUM. I would say, in answer, that the language reported by the Committee on Legislative Department is the language of the (^institution proposed by Mr. Laine, section thirty-four, it reads: " The Legislature shall have no power to pass any Act granting any charter for banking purposes ; but associations may be formed, under general laws, for the deposit of gold and silver; but no such associations shall make, issue, or put in circulation any bill, check, ticket', certificate, promissory note, or other paper, or the paper of any bank, to circulate as money." That is the identical section reported by the Committee on Legislative Department, with the addition of the words, " and other lawful money of the United States," a point upon which we are all agreed. So it is a part of his own Constitution. Mb. LAII^E. Mr. Chairman : Mr. Laine is not one of the Courts. Mb. McCALLUM. Mr. Chairman : I am not quoting any decisions. Here is section thirty-one of the report of the Legislative Committee, .which I beg leave to read and submit the matter to the committee : "The Legislature shall have no power to pass any Act granting any charter for banking purposes, but associations may be formed under general laws for the deposit of gold and silver and other lawful money of the Cnited States ; but no such associations shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or otner paper, or the paper of any bank, to ^iirculate as money." I 54 That is the amendment now pending, and I submit that it is rather preferable to section five of the report of the Committee on Corporations. My own judgment would have been to strike out section five and pass it entirely, and consider that when we come to consider the report of the Committee on Legislative Department, where it belongs. BIHABKS OP HB. HOWABD. Mb. HOWARD. Mr. Chairman: There is the same objection, the same obscurity, in the section proposed by the Iiegislative Committee that there is in the old Constitution : " The Legislature shall have no power to pass any Act granting any charter for banking purposes." Now, under that all banking is forbidden. That is the trouble with this thing. And then it goes on and makes a single exception : " but associations may be formed under ^neral laws for the deposit of gold and silver and other lawftil money ot the United States." It limits banking to that single operation. It, in effect, prohibits banks of discount, banks of loan, and banks of exchange. " But no such association shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate as money." So far as that is concerned it is the provision of the old Constitution and of all the amendments. The thirty-second section of the report of the Com- mittee on Legislation reads thus: " The Legislature of this State shall prohibit by law any person or persons, association, company, or corporation, from exercising the privi- leges of banking, or creating paper to circulate as money." Now there is an absolute prohibition against banking at all. All banking would be excluded under that. It strikes me that this is a very Inadequate way of banking. In effect it destroys — if it is carried out and interpreted by the Courts, as it is here reported by the Com- mittee on Legislative Department — all banking in this State, except that of receiving deposita of gold and silver, and other lawful money of the United Slates. It is not, I apprehend, the intention of this Convention to do that. If banking, banks of deposit, banks of discount, banks of exchange, banks of loan, and banks for general commercial purposes are beneficial institutions to everybody, I cannot believe it is the inten- tion of this Convention to prohibit banking entirely. Why should weT Mb. GREGG. I offer an amendment to the amendment. Strike out the words " in this State" at the end of the fifth line, and insert the word "individual" after the word "association," in the fourth line. Mb. grace. I move that the Committee rise, report progress, and ask leave to sit again. The motion was lost, on a division, by a vote of 55 ayes to 65 noes. Mb. GREGG. I have sent up my amendment in writing. The SECRETARY read : " Amend section five to read : ' Section 5. TheLegislature shall have no power to pass any Act granting any special charter for banking pur- poses; but corporations or associations may be formed for such purposes under general laws; but no corporation, association, or individual shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, to circulate as money, except the lawful money of the United States.'" KBUABKS or HB. HIOKB. Mb. HAOER. Mr. Chairman : There is something in the criticism that has been made, that a strict construction of this section would authorize corporations to make the lawful money of the United States. It says that no corporation shall make, issue, or put in circulation, any bill, etc., to circulate as money, except the lawful money of the United States. That is, they shall not make any money unless it be the law- ful money of the United States. By the Constitution of the United States, we are prohibited from making anything but gold and silver legal tender Mb. GREGG. My amendment strikes out " in this State." Mb. HAGER. I was going to read the Constitution of the United States. It says, that no State shall "coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; " and we cannot as a State make even the so-called legal tender of the United States a legal tender of this State. The Constitution, as it was originally fi-aracd, does not contain this provision, "except the lawful money of the United States," and I think it ought to be stricken out here. When you come to speak about the lawful money of the United States there is another power, beyond the authority of this State, which overrides anything we may do or say here. That is, the Constitution of the United States, and the laws made in pursuance thereof, are the paramount law of the land. Mb. ESTEE. When we come to a vote on this amendment, then the gentleman can propose an amendment to meet that. Ms. HOWARD. What power is there in the Federal Government to make any lawful money except gold and silver? Mr. HAGER. That is a conundrum that I am not called upon to answer. I did not undertake to say that the Government could make anything legal tender but gold and silver. I am arguing how far we can go. I read in the Constitution of the United States what a State may do, and it is foreign to our purpose to discuss what the Government of the United States can do. For my own part I should say that the greenback, so-called, never was a lawful currency within the meaning of the Constitution. Mb. HOWARD. That is all I wished. Mb. HAGER. That is my idea. The Supreme Court has decided that they were to a certain extent. But they decided one way and then decided the other way, and if it should come up now the general pre- vailing sentiment is that the Supreme Court would decide that all cur- rency issued since the war is in violation of the Constitution. These are my ideas ; but we are not here for the purpose of discussing that matter. Mb. TINNIN. How about Butler's fiat mone Digitize "e'dV Google 426 DEBATES AND PROCEEDINGS Friday, Mr. HAGER. That is Ihe easiest defined money in the world. You print on a piece of paper " I am a dollar," and it is a dollar. That is fiat money as I understand it. But as I was saying, I think these words, " in this State, unless the lawful money of the United States," should be stricken out altogether, and I have drawn an amendment with reference to that matter to strike out these words and let the clause stand juat aa it was in the old Constitution; "but no coriMiration or association shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory not«, or other paper, to circulate as money;" and there it stops. Then the Constitution of the United States comes in as the paramount law, and it says, whatover is the legal money of the United States, any bank, or any corporation, can make use of the same as any individual; that we, by our legislation, cannot do anything with it one way or the other. If ray friend will accept my amendment to strike out all after the word " money," that is, the words, " in this State, except the lawful money of the United States," it would Temove the difficulty. I am opposed to having that clause left in. They might make money to circulate in some other Slate. They might send it into Nevada and elsewhere to circulate as money. Mb. ORECHi. My amendment strikes out " in this State." Mr. HAGER. But if it stands as reported now any banking corpora- tion of the State of California might make and issue money to be circu- lated in the State of Nevada, in New York, Philadelphia, Europe, or elsewhere, provided they did not make it to be circulated in this State. We want no such provision as that. We do not wish it to appear that there is even an implied authority to issue paper money to circulate anywhere in the world. It has never been the policy in this State to have anything but gold and silver for money. The banking corporations have been for oeposit and discount, and nothing more. So they ought to be, for the reception of money and for the loaning of money, but not for the issue of paper as money in any form. The older States of the Union are coming around now to that principle and stop State banks from issuing paper to circulate as money. I will offer this amendment if I am in order. Thk chairman. There is en amendment already pending, but the Chair will receive the amendment to perfect the original section. Mr. HAGER. So that the section will stand as in the original Con stitution. Mb. McFARL.^ND. I move that the committee rise, report progress, and ask leave to sit again. IN CONVENTION. Thr president. Gentlemen : The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have made progress therein, and ask leave to sit again. The Convention took the usual recess untiltwo o'clock p. u. AFTERNOON SESSION. The Convention reassembled at two o'clock p. u., President Hoge in the chair. Boll called and quorum present. RKPOBT OP TBI COHMITTKE DM CORPORATIONS. Mb. ESTEE. Mr. President: I wish to send up a supplemental report from the Omimittee on Corporations other than Municipal, and ask that it go to the table, and be printed without reading. So ordered. Following is the report: Sacbahiiito, Noveinber 15tb, 187S. Mb. Prmident: Tour Commltteo on Carponkttons other. than Manicipal, to whom were referred proiKise't amendnientfl number four hundred mid aflyH>iie, Introdnced by Mr. Hnle; number four hundred and 8ixt3'K)ne, Introduced Ity Mr. Vacquei-el; number four hundred and ninety-eight, introduced bjr Mr. Hughey, hare had the same nnder consliieniUon, and report them hack, with a reoommenda- tion ttiat the same tie indefinitely postponed. The committee recommend tliat section lix of the article on corpomtiona, aul)- mltted by the committee on October thirtieth, he amended so ai to read as follows: Sec. 6. All existing charters or grants of exclusive or special prirtlegf*, under which an actual and Uina fide organixatton shall not have taken place, and biuincM been commenced In good faith, at the time of the adoption of this ConstitntloD, shall thereafter hare no validity. The committee also recommend that section fourteen of the article proposed by the committee be amended to read as follows: Sec. 14. Every cor|x>Tation, other than religious, educational, or benevolent, organlaeil or doing business in this State, shall have and maintain an offlce or place in this State for the transaction of its business, where transfers of stock sliall t>e made, and in which shall be kept, for public Inspection, txMks In which shall be rcconled the amount of capital stock subscribed, and by whom ; the names of the owners of its stock, and the amounts owned by them respectively; the amount of stock paid in, and by whom ; the transfers of said stock; the amount of Its assets and llabilftiea, and tlie names and place of residence of its ofllcen. The committee also recommend that tlie following words be added to section twelve: Provided^ that cooperative societies may be formed under general laws, which may provide by by-laws of their own for limiting the representation of shareholders of their stock, and the number of shares that may be held ; and the Legislature sttall enact such laws as may be necessary for their faithful management and protection, and may limit the linbllities of their members. The comiiiittee further recommend the adoption of amendment number four ban* dred and flft.v-cight, proposed by Mr. McConnell, to bo known as section fifteen, and that the numbering of the sections following he changed to correspond thereto. The section proposed reads as follows: Sec. 16. No corporation organir.cd outside the limits of this State shall be allowed to transact business within this State on more favorable conditions than are pre- scribed by law to similar corporations organized under the laws of this btate. The Legislature shall enforce this section by appropriate legislation. Rospectfuiiy, M. M. ESTEE, Cnialrman. RIPORT PROM THK CONTBOLLKB OF STATE. Mb. HILBORN. Mr. President : I have a ooinmunication from the State Controller, addressed to the committee of which I am Chairman, showing the precise condition of the appropriation under which we tic working, how much has been drawn, the daily expenses, and bow Ion; the fund will last. Thb secretary r«ad: CoxTBOLLEB's OiTiCB, November mh, Wit. To the Hon. 8. 0. Rllbom, Chairman Committee on Contingent ExpeDses: Amount appropriated for expensM of Constitutional Convention $150^ 00 tkjst of Convention up to and including November Ifith, aa shown by t^oh- iroller's hooks -■ KJM 00 Balaoes In appropriation Per diem of delegates and attaches . Estimated expenses other than per dleiu Estimated total expenses per day IS7,US00 1,«100 IHOO «,T46 00 From the above showing, I would estinute that the appropriation for expenus of Constitutional Convention will hist for thlrtj-three days, from and indudigi Uit seventeenth day of Norcmtier. The estimated exponsm, other tlian per diem of members and attaehfs. is onlj so approximation, made by uking the amounts that bare already l>een paid for prist ing, statlonety, etc., and dividing it by tha nnmher of days up to date of paymsst that the Convention bad bean in aeasioo. W. B. 0. BBOWN,Coatnlld insert the word ' individuals ' after the word ' association,' in the fourth line." Thb CH AI RMAN. The question is on the amendment to the amend- ment. The SECRETARY read the amendment offered by Mr Gregg: " Amend section five so as to read as follows : " Sec. 5. The Legislature shall have no power to pass any Act gnnt- ingany special charter for banking purposes; but corporations or soo- ciations may be formed for such purposes under general laws; but no corporation, association, or individual shall make, issue, or put in circu- lation any bill, check, ticket, certificate, promissory note, or other pspef to circulate as money, except the lawful money of the United Stitse." Tac CH AI RMAN. The question is on the amendment to the amend- ment. Lost The CHAIRMAN. The Question is on the amendment proposed by the gentleman from Placer, Mr. Filcher. SPEECH OP HE. WILSOX. Mr. WILSON, of First District. Mr. Chairman: I hope that the amendment will not pass in the shape in which it is propoaed, and thtt the section reported ny the committee will be itdoptea. No one can i^ore the fact that wenave a large number of banks in this State, exer- cising general banking powers, and all of the powers except Jssuing money. Now, under the old classification of banks, a bank of deposit was a generic term which embraced all except those which issued money. But this is not confined to that. It is analogous, therefore it should not be put in the Constitution. The Code of California contaiiii some provisions showing the legislative construction of the old Coiiiti- tution. That legislative construction provides for the accumulation, saving, and loaning, so as to create what are called savings banks. Also, provides for banks of discount and deposit, and ultimately the section was altered so as to provide for all other ^neral business purposes. Now, we have banks of savings, general savmgs banks; one institution I think I may mention here, against which nobody will make any objection whatever, and that is the Hibemia Savings Bank of Ssn Fran- cisco. I never heard anjf objection to that institution, or to the man- agement, or a^inst the directors, in any way whatever. It is certainly a very useful institution, and the practical workings of it are to induce , the laboring classes, having small earnings, to bring them and deposit them in the bank, that the money may go into general circuUtion, thus adding to the aggregate amount in the general business of the country. Now, upon these deposits, the depositors receive regular dividends. The money is loaned out, and as far as this bank is concerned, the business has been done safely. It is a good institution, and the benefits are rec- ognised by all. And yet, literally, upon this amendment no such bBiik could exist. None of the savings banks could exist, because, to restrict it in this manner, it oould not loan the money out, and it would hsv^ to remain in the raults, and it would be simply in the pooession of * safe deposit company. Now, the safe deposit company receives money to keep safely, and nothing else. If the Constitution is intended to limit the business to this one thing, then say so. If yon intend to have your savings banks, which receive money of the people and loan it out on interest, and pay dividends to the depositors, and awomvodate ths (^ Nov. 15, 1878. OF THE CONSTITUTIONAL CONVENTION. 427 general commercial necessities of the country, if that is the desire, then this provision should be broad enough to embrace it. If you intend to embrace other banks, which are banks not only of deposit but banks for loans, for discount, and banks to the whole extent, then this language should be broad. The great and principal business of the world is done bj banks that are not oanks of issue. And that I am not incorrect, I say that the Bank of France, in Paris, is not a bank of issue, but a bank possessed of general powers of banking institutions — that is, such as loanin|; money, discounting paper, selling bills of exchange, etc. It is impossible to get along, it seems to me, in this 8tat«, or in any of the modem States of the Union, without banks of discount. The bullion of the country goes to the banks, and then goes into the mints ; a portion of it is transmitted to the East in bullion, and upon that bullion banks draw their exchange. Exchange is necessary to the countr)'. Unless our own banks — those incorporated here in our own State — are permitted to sell exchange on the East, that business will fall to the foreign banks. They will sell exchange, and the home banks will be deprived of it. Without banks of exchange it is impossible to get along. It seems to me, therefore, that this section as reported by the committee: "The Legislature shall have no power to pass any Act granting any special charter for banking purp<»es ; but corporations or associations may be formed for such purposes under general laws; but no corporation or association shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, to circulate as money in this State, except the lawful money of the United States," prohibiting them from putting in circulation anything that should cir- culate as paper money, is the proper clause, and that the old Constitu- tion should be amended in that respect, because the old clause simply limited them to banks of deposit. We find, upon examining the Jour- nals of the old Convention of eighteen hundred and forty-nine, that the Convention was composed mostly of old fashioned, hard-money Demo- crats. They came here, therefore, with all that prejudice, and dislike, and abomination of anything in the nature of paper money, many of them coming direct from those States that were flooded with paper money, and they determined to put a veto on the issuing of paper from local banks. Such was the meaning of the Constitution. They meant that we should have banks of deposit, banks possessed of other general banking powers, except the power to issue paper money. Everybody here will agree to the wisdom and policy of that clause, or the mtent of that clause. I do not suppose there is a gentleman upon the floor of this Convention who would he in favor of blowing banks to issue and circulate paper as money. Therefore, the question is, shall we so word this Constitution as to make it plain and clear, that there can be no doubt about the proposition that banks may exist having the general powers belonging to banking institutions, or shall we adopt this obscure language of the old Constitution? It is wise to make this section as clear and as plain as we can. ■ It says they may exist for general bank- ing purposes, and that is all. They are specially prohibited from making, issuing, or putting in circulation, any paper money of any description. I do not see how any difference of opinion can exist on this suoject. This first clause is a prohibition of any charter except for regular bank- ing purposes. That has been explained. The objection is insisted on here that this clause was intended to prohibit individuals from doing a banking business. It says, for general banking purposes, corporations and associations may be formed under general laws. So far, that is perfectly consistent and perfectljr harmonious. Then follows another distinct prohibition, making it still clearer and stronger: " But no cor- poration or association shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, to circulate as money in this State." Now, with the insertion of the word "individ- ual" there, and strike out the words "in this State," it seems to me that the section should be adopted, and that is what this Convention desires. Otherwise, you have all the time to place the construction of the old Constitution, which is apparently against its letter, seemingly against the ordinary meaning of language, in order to make your sav- ings banks in this State to exist, in order to permit any bank to discount paper, or sell bills of exchange. For that reason, I would suggest that some gentleman who voted in the negative on the amendment oflTered by the gentleman from Kern, to move a reconsideration. This section, as reported by the committee, will be sufficient, with a few trifling alterations. Then it would resud in this way : " The Legislature shall have no power to pass an^ Act granting any special charter for banking purposes; but corporations or associations may be formed for such purposes under general laifs; but no corpora- tion, association, or individual shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, to circulate as money " (Omit the words, " in this State,") " except the lawful money of the United States." I will say one word in regard to that sentence, " except the lawful money of the United States." Of course, it is generally understood that the United States is going to make no money except gold and silver, but we cannot tell what may occur. Whatever is lawful money, whether paper' or gold, the banks ought to have the privilege of circu- lating. Therefore, I can see no harm in leaving those words in the section. I can see no harm in th« amendment proposed by the gen- tleman from Placer. gPKBOB OF HB. JONKS. Mb. JONES. Mr. Chairman : For myself, I would prefer if possible that a still simpler form than section five be arrived at. While I do not particularly disapee with the remarks of the other members, it seems to me that there is a confusion of ideas arising from the language of the section as it exists in the report of the committee, and I believe the will of the Convention to be in favor of the amendments proposed. Follow- ing th« inaxaiple set here I wish to say that in case I should have an opportunity, I propose to Kubmit for the consideration of the Convention what seems to me to be a reduction to its lowest terms, of the absolute sense of the Convention, as sought to be embodied in the various amend- ments, though I may be utterly mistaken in that idea. The amendment I propose to submit strikes out of the second line of section five the word " special," and "for banking purposes;" strikes out the remainder of the second line and all of the third liae to the words "no corporations;" add the word "persons" where the amendment of the gentleman from Kern inserts it, and strike out the words, "except the lawful money of the United States," and the words "in this State," in lines five and six, so as to read: " Sec. 5. The Legislature shall have no ])ower to pass any Act grant- ing any charter. No corporation, association, or person, shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, to circulnt« as money." Mr. Chairman, the reason why it seems to me that this will embody the sense of this Convention, and why it is that it embodies my best judgment of the intent and meaning of the section. A great number of words have a tendency to mislead members. The first sec- tion of this article prescribes that corporations and joint slock associa- tions may be formed under general laws. Now, I understand that to be a general proposition. There is no restriction, nothing to prevent such corporations or associations from being formed for any legitimate pur- pose. I think that is clearly understood by the Convention. Then, when we oome to section five, why introduce words saying that a par- ticular business shall not be specially chartered by the Legislature ; it seems to me that, at least, it does introduce the implication, when we say that the Legislature shall have no power to pass an Act granting a siiecial charter for banking; purposes — it does imply to the ordinary mind, and we'll come within the legal rule — that the expression of the ' one is the exclusion of the other; that it may be done for other pur- poses ; that the Legislature may pass such laws forany other purpose than banking institutions. I do not understand that this was meant by the committee when they reported this section, but it certainly bears that construction. If we don't mean that, why say it? If we simply mean that the Legislature shall not pass any Act granting any charter, why not say it and have done with it? Then, following the words of the report, that corporations or associations may be fonned for such purposes under general laws. Is there anything to prevent them organizing for this or any other business under the first section of the report? If that is so, why put these superfluous words in there? And then it is implied again that other business may not, perhaps, be done under general laws, "rben conies the proposition, that no corporation or association shall make, issue, or put in circulation, any check, etc., to circulate as money in this State. The words, " in this State," are not required. And, fol- lowing up the words, "exce)>t the lawful money of the United States." Now, I see no propriety, no use that these words can serve here. If we adopt this section as it stands, we will not adopt it to the extent that you cannot pay a man, or deliver to another man, to put ip circulation, greenbacks, if he is willing to take them. No bank can emit any paper money whatever if we leave off these words. If we retain them, then we retain this word person. Then we liave this proposition, that no person can put in circulation any, even of the lawful currency of the United States, for that would be paper money. It would be a nugatory provision as regards the person. Now, Mr. Chairman, it seems to me that we can dispense with all these words upon which we have been differing, which would simplify it very much. The Hibemia Bank, that have been doing business under the present Constitution, will stand where they stood in the beginning. 'There will be no discrimi - nation against them. But even if it should be found necessary, as this Constitution will not be retroactive — there will be abundant time for them to adapt themselves to any provision which we may adopt. If they have been outside of the Constitution heretofore, there will be abundant time to bring themselves within the scope and the protection of the organic law. Therefore, I speak against the amendments that are proposed, for the simple reason that it seems to me that the amend- ment I have suggested will be all sufficient. It will prevent the issu- ance of any paper money, which seems to be the principal object here. The oth^ amendments, as well as the section itself, are calculated to mislead. Mb. DUDLEY, of Solano. I move lo reconsider the vole by which the amendment proposed by the gentleman from Kern, Mr. Gregg, was rejected. . Mr. HOWARD. I second the motion. Mb. TERRY. The rule requires notice to be given the same day. Mb. WILSON, of First District. I do not think so. The rule says you must at least give that notice. You cannot do it at a later period than the day on which the vote was taken. It is not exhaustive of the power of the Constitution. Thb CHAIRMAN. The motion to reconsider can be entertained by the unanimous consent of the Convention. Objection is made. The fuestion is on the amendment proposed by the gentleman from lacer. SPKECH OP HB. HAORB. Me. UAGER. Mr. Chairman: We have two reports before us on the same proposition. The Legislative Committee have reported upon the same branch, and they adhere more closely to the phraseology of the old Constitution. In the old Constitution these provisions are under the head of " Legislative Department;" therefore the committee had aright to report on them. I think it is nothing more than fair that we should discuss the different propositions brought in here by the Com- mittee on Corporations and the Committee on Legislative Department. So it is a matter of choice between the two, whether we shall take the proposition reported by the Committee on Corporations, or whether wo » shall adopt the proposition reported by the Committee on Legislative I f> 428 DEBATES AND PROCEEDINGS Friday, Department. The Legislatire Committee have adhered more strictly to the provision of the Constitution as it now exists. The Committee on Corporations have departed from that provision, and changed the phrase- ology. They have changed the language in one particular about which I have some doubt — using the express terms that charters for banking purposes may be formed under general laws. The old Constitution does not contain any provision so broad as that— that corporations and asso- ciations for bankmg generally may be formed under general laws — but it provides that corporations may be formed under general laws for the deposit of gold and silver. That'is the provision in the old Ooastitution ; and the Committee on Corporations have changed the phraseology by putting the words into it, " may be formed for banking purposes under general laws." The one limits them to the deposit of gold and silver, the other allows them to be formed for general banking purposes. The Committee on Legislative Department have reported back the following provision : "8kc. 31. The Legislature shall have no power to pass any Act granting any charter for banking purposes; but associations may be formed under general laws for the deposit of gold and silver and other lawful money of the United States. But no such association shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate as money." Nobody objects to that; so that the Legislative Committee have reported substantially what was in the old Constitution. Now, the point to be decided by this Convention is, which do you prefer — the language that was used in the old Constitution, as modified by the additional words, " or other lawful money of the United States," or the provision reported by the Committee on Corporations? I sent up one amendment, to strike out the words (as reported by the com- mittee) " in this State," and "except the lawful money of the United States;" which will make it satisfactory to me. But, upon reflection, I am inclined to favor the proposition reported by the Committee on Ijegislative Department, with tne simple amendment which I will send up and explain. I am inclined to adhere to the Constitution as it is, with some little improvement, and that is, to let it read in this way: " The Legislature shall have no power to pass any Act granting any charter for banking purposes, but associations may be formed under general laws for the aeposit and loaning of gold and silver, and other lawful money of the United States." My amenclment is to put in the words "and loaning." Mr. FILCHER. I accept the amendment. Mr. HAGER. That will cover every bank now legally in existence under the laws of this State, if it was originally intended to have banks of deposit and discount. Kow I think perhaps it is the sentiment of this Convention that we should not engraft anything in the Constitution which would authorize banks for general banking purposes so far as to authorize the use of any paper money in any shajie by them, or in any form. I hope never to see a banking corporation in the State of Cali- fornia with authority to issue paper money. I know that it ia oontrary to what has been the policy oi the State, the purpose of the State, con- trary to the sentiments of the people of the State, and it has become the sentiment of the world. AH the old State institutions are going out of existence. The Bank of France has been referred to. That, like the Bank of Englond, is an official government institution. The notes are guaranteed by the government. Go where you will, in England, in India,' in Turkey, anywhere, and you will find the notes of the Bank of England and of the Bank of France in circulation, and considered better than gold. But in England there are no private banks that issue paper money, not »ne. The Bank of Ireland is the only one that does. Take the great Bank of London, and other banks; they are merely banks for the purpose of receiving and loaning money, according to the phraseology of the provision here. Mr. WILSON. Don't they discount paper and sell exchange? Mb. HAGKR. Certainly; and I do not intend to prohibit that here. Mb. WILSON. You are prohibiting by construction, why not put in the words? Mb. HAGER. The Rothschilds of London are not classed as bankers, but general commercial men. They are depositors who receive and loan money. But I did not intend to restrict the operations of banM here as they now exist. My intention is, as far as I can influence the Conven- tion, not to have anything in the Constitution that will authorize the issuing of anything like paper money by the banks. Now, sir, I think the trifling amendment which I offer will make the section reported by the Committee on Legislative Department ocoeptabls. NOTICI or BRCONSIDIBATIOK. Mb. HOWARD. I give notice that, to-morrow, I will move to recon- sider the vote by which the amendment proposed by the gentleman from Kern, Mr. Gregg, was voted down. SPIRCH BT MB. O'DONNKLL. Mr. O'DONNELL. If I understand the amendment, it is, "The Legislature shall have no power to pass any Act granting any charter for any banking puqioses, but corporations and associations may be formed for such purposes under general laws; but no corporation or association shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, to circulate as money." Now, Mr. Chairman, I think it is the duty of this Convention to do everything in its power to put a curb on these rotten banks. But there seems to m a strong tendency here on the part of many dele^tes, to put'' in a provision to injure the force of section three, which is aimed to destroy these rotten banks. As long ago as eighteen hundred and twenty-eight, General Jackson predicted and swore that these gigantic corporations were the most terrible foes with which a republic has to deal. Experience has proved the truth of that prophecy. At that very time Old Bickory was engaged in making war against the most terrible corporation that ever existed in America, that is, the United States Binli at Philadelphia. And he destroyed it. Destroyed it at the risk of bii life. That is the way the delegates in this Convention have got to dati with these gigantic corporations, who, singly and alone, would be <»&. temptible, but who, banded together for ^nnder, are more retnoraelea and merciless than a band of cutthroats. Corporations, it seems to m«, and monopolies, have a club with which tyrants beat ourbrains out It is an engine by which the wealth and power of the country is central- ized in the hands of a favored few. It is these dark crimes conducted under the cloak of respectability. It is a power which to-day wields thousands of millions of dollars. It is a power which to-day wields and controls your Senators, and I think, Mr. President, that it ii hlgli time now that we should put a curb on these rotten banks. I find a strong feeling here to-day, in regard to this amendment There on be but one or two little objections to it, and those we have rectified so tu, I think, removing that word In the second line " special," before the word charter, and removing in the fifth line the words " in this State," and the words " except the lawful money of the United States." Now I hope that the members of this Convention will suppoK that, and rote down all other amendments. Some of the gentlemen have asserted here that it would have a tendency to blot out some of these banklni institutions. I think it would be a good thing if they were all blottel out. I don't think there are half a dozen solvent banks in the State of California- -all the rest are rotten. iA Voice. " Name them."] fa. O'DONNELL. I can name them if you want them. gPIICH ur MR. ISTII. Mr. ESTEE. Mr. Chairman : It strikes me that the amendment pro- posed by the gentleman from San Francisco, Judge Hager, accompliibes no purpose except to weaken the amendment of the gentleman from Placer, Mr. Filcher. I know it has been accepted by the gentlemta from Placer. The reason is this : the committee reported that corport- tions and associations may be formed for such purposes under general laws — that is, for banking purposes. Banking is a generic term, and the committee intended that there should be associations and oorporstiou for banking, having all the powers of banks, with one solitary excep- tion, and that exception was the making or issuing of paper money or anything of that cnaracter. Now, sir, we ilo not want to mark out any line for these banks to follow— that is for the L^slatnre to do; because if gentleman insist in putting in the words "and loaning," it may be inferred that they con only receive and loan money, and nothing else. Let me say to these gentlemen, and all concerned, that receiving and loaning money is not the chief part of banking; not the most bene- ficial port. Selling exchange, deposits, checking out, and saving the money of the people, are some of the things done. And I hope the Convention will vote down this amendment, and then yon can amend the section by striking out the words wbfch have been shown to be useless. 8PXI0R or MR. JOHXSOS. Mr. JOHNSON. Mr. Chairman : It seems to me that in elaborstinf a new Constitution, we should depart from the phraseology of the old instrument as little as possible, and only when some grievance has been sustained. If there is no grievance it is better to retain the old phrase- ology, because our people are familiar with the language and its meaning. Now, let us consider this section of the present Constitution, section thirty-four of article four, and see what grievance under it remains to be remedied. " The Legislature shall have no power to pass any Act granting any charter for banking purposes." So far there is no olgeo tion, and in the report of the committee I see that they retain Uie phraseology. Then the section further provides, " but associations nuT oe formea under general laws for the deposit of gold and silver." l should prefer the word corporations, instead of " associations," but sm not particular. The section as reported by the Committee on Corporations other tbsn Municipal reads : "The Legislature shall have no power to pass uj Act granting any special charter for banking purposes ; but corporation! or associations may be formed for such purposes under general laws, but no corporation oi^ association shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or' other paper, to circulate aa money in this State, except the lawful money of the United States." Mr. HAGER. Let me refer you to section four, where the term cor- porations is defined. I will read it: " Skc. 4. The term corporations, as used in this article, shall he con- strued to include all associations and joint stock companies having snj of the powers or privileges of corporations not possessed by indimuaU or partnerships; and all corporations shall have the right to sue, and shall be subject to be sued, in all Courts, in like cases as natural peraons." Mr. JOHNSON. I am not very particular about the word " ooipo- rations," hut I think that word would be sufficient by itself and prefer- able to any other, because section four, as just read, makes it indnde associations. i Now, to resume. In section thirty-four of article four of the preeeiit Constitution, the disjunctive conjunction "but" is followed dt this language : " Associations may be formed under general laws lor the deposit of gold and silver." In the report of the committee it is proposed to amend as follows: " But corporations or associations may he formed for such purposes undei general laws." Leaving out of consideration the tautology implied in the words "a>r- porations or associations," the amendment of the committee thus &r is an improvement. What is the use of stating whether these banks shall loan money, or receive deposits of money, or discount paper, <»■ «™ exchange? There is no occasion for it at all, and th« longua^ of the t^ Nov. 15, 1878. OF THE CONSTITUTIONAL CONVENTION. 420 committee thus far is preferable to that used in the present Constitution. It is a change from the old section, which limited, it would seem, asso- ciations to be formed under general laws, to the deposit of gold and silver. We come now to the qualifying clauses. In the present Constitution the qualifying clause reads: "But no such assooiation shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate as gioney." In the report of the committee the qualifying clause is : " But no cor- poration or association shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, to circulate as money in this State, except the lawful money of the tTnited States." This amendment of the committee is certainly subject to criticism With an ellipsis the proposed amendment would read that no corporation should make any money except the lawful money of the United States. In other words, that only corporations should make, and that they should have the right to make, the lawful money of the United States. The intent of the present Constitution was to inhibit the making or circulating of paper money by corporations, and in it there is another provision that the Legislature shall inhibit individuals from creating paper to circulate as money. It has been suggested that the word " indi- vidual" could be inserted in this proposeoT amendment, so that the inhibition shall run against corporations and individuals alike, and the whole be embodied in one section. I think this is a good suggestion. This proposed inhibition of the committee is not agamst individuals, but against corporations or associations. It occurs to me that the inhi- bition should be equally against individuals. Kow, in order to preserve the old phraseolo^ as nearly as possible, would it not be better to read in this way : " But no corporation, asso- ciation, or individual shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, to circulate as money T" The gentleman from Kern proposed an amendment, but he left out the word " make." In this amendment which I propose to offer, this word is inserted, and the word "individual" is inserted, so that the whole will read as follows: " The Legislature shall have no power to pass any Act ^nting any charter for Banking purposes, but corporations or associations may be formed for such purpK>ses under general lawsj but no corporation, asso- ciation, or individual shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper to circulate as money." I preserve as far as possible the phraseology of the provisions of the present Constitution, with which our people are familiar, and at the same time seek to correct them, where correction is advisable or neces- sanr. Ma. WILSON. Allow me to look at your amendment. Mb. JOHNSON. With pleasure. Mr. van dyke. I would like to ask the gentleman a question; "but associations may be formed for such purposes under general laws." I would ask if that cannot be done under the first section of this part? Mb. JOHNSON. In answer to that I have this to say: that the phraseology in our present Constitution, as I have already remarked, should be preserved as far as possible, unless there is some grievance. We are not here as mere sticklers for phraseology, not to make idle criticisms, not to say there is a word too much in the old, but intelli- gently to discuss the sense of it. Inasmuch as the present Constitution has this provision, that corporations may be formed under general laws, and this further provision that the Legislature shall have no power to pass any Act granting any charter for oanking purposes, etc., I see no reason why these two sections should not be preserved in the new Con- stitution. Mb. van dyke. They are given the power to form under the first section, and why repeat here that they may be formed under general lawsT Mb. JOHNSON. There is a special inhibition in the existing Consti- tution against granting charters to banks by special Acts; but it is added they may be formed under general laws, for the deposit of gold and silver. I think it best to retain this special inhibition, for the reason that it is emphatic, and we are familiar with that language; ^lut the words, " for the deposit of gold and silver," should be eliminated, and the words, " for banking purposes," or something equivalent, should be substituted, as those words will include all the pilrposes for which banks ore instituted ; and then will follow in proper order the limitation on the power of banks as to making or issuing paper to circulate as money. Thus the cognate sections in the existing Constitution will serve to illus- trate and explain the new; and by comparison the purposes and objects of this Convention will be readily seen. The advantage of my pro- posed amendment is, that the phraseology of the present Constitution is put slightly changed, the inhibition is equally a(pinst corporations and individuals, and it is in the same section, and it does not give to any corporation the privilege to make the lawful money of the United States, a privilege which — with all due deference to tne Committee on Corporations other than Municipal — would not be much protection to the defendant in a criminal case in the United States Criminal Courts. Mr. Chairman, I now ofier this proposition which I have read as an amendment to the amendment. The chairman. The question is on the amendment proposed by the gentleman from Sonoma, Mr. Johnson. SPEECH or MB. CBoas. Mb. CBOSS. Mr. Chairman : It seems to me, in a matter of so much importance as this is, we should be quite deliberate in our action. These banks are a necessity ; something that our business men cannot get along without. The commercial world can hardly move without Mnks, with those very powers which they have now. The banks to- day, in California, as I understand it, exercise five important functions. One is, receiving deposits and loaning money. This is done by the savings banks, and by the ordinary commercial banks. Also, transact- ing the business of buying and selling exchange, end issuing letters of creidit. Also, another branch, which is very important to us here, and will become more so in the future, and especially to the mining regions of the State, a^d that is the business of handling gold dust and bullion produced by the miners. Now, sir, the amendments which have been offered, except the last, it seems to me, limit tlie business of banking substantially to only one of these important functions. As I underatahd the amendment proposed by the gentleman from Placer, it amounts to this: that hereafter banking corporations and associations may be formed under general laws mr the deposit of gold and silver, or other lawful money, and for the loaning out of the same. Now, section nine of the report of the Committee on Corporations other than Municipal reads: " No corporation shall engage in business other than that expressly authorized in its charter, or the law under which it may have been or may heretofore be organized; nor shall it hold any real estate for a longer period than five years, except such as may be necessary for carry- ing uh Its business, or which is incident thereto. That section probably will be adopted by the Convention. Now, the gentlemen propose to say that banks may be organized for the purpose of receiving and loaning money. This section nine says that the busi- ness of corporations shall be limited to that expressed in the charter, and this amenament will limit the banks to receiving and loaning money, and in that case the old maxim will apply — exprtssio uniua est exclusio alterius — and when this amendment is adopted, which says that bank- ing associations may be formed for receiving moneys and loaning moneys, that is all they can do. Then the stockholders in banks will be cut off from the large profits arising from selling exchange, letters of credit, dealing in gold dust, and making collections, and the commercial com- munities would be cut off from the dues which they derive from these sources. We must consider these matters carefully. Simply because it is a bank we must not tear it to pieces. We cannot get along without banks; and the business of receiving deposits is so intimately connected with the issuing of letters of credit, the business of buying and selling exchange, the business of making collections, that they must go hand in hand together, and we should not adopt a provision which will cut off the stockholders in banks from receiving the benefits which will accrue bv allowing these various branches to be combined. In some sections of the State these incomes amount to a considerable sum. I have in mind one bank in Nevada City, where the total expenses of the bank are sus- tained by the business of dealing in and handling bullion. Now, the stockholders have the full benefit of this. It is a ousiness which is as safe OS any that a bank could do. I am opposed to any provision which will take that very important and profitable and legitimate business away from them. The banks could not afford to keep open simply for the transaction of the one branch of business proposed by the amenament — that of receiving and loaning money. The expenses of the bank would have to come entirely out of the earnings of the depositors' raonev, and it would leave nothing to be paid to the depositors in the shape of divi- dends. I am therefore opposed to all these amendments, and in favor of the substitute proposed by the ^ntleman from Sonoma, Mr. Johnson. Thk CHAIRMAN. The question is on the amendment of the gentle- man from Sonoma, Judge Johnson. BKUABKS op KB. HCCALLDH. Mb. McCALLUM. Mr. Chairman : I wish to call attention to the fact that a section of the Constitution seems to be overlooked in that amendment. Section thirty-five of the present Constitution, which in the report of the Legislative Committee they do not propose to change, reads as follows : " The Legislature of the State shall prohibit by law any person or per- sons, association, company, or corix)ration from exercising the privileges of banking, or creating paper to circulate as money." Section thirty-four reads as follows: "The Legislature shall have no power to pass any Act granting any charter for banking purposes; but associations may be formed under general laws for the deposit of gold and silver; but no such associa- tion shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate as money." The report of the committee seems to cover both those sections. Sec- tion thirty-four uses the identical language of the report of the Legisla- tive Committee, except the use of tlie word " association." It says, " (wnciatioiu may be formed under general laws, etc., for the deposit of gold and silver, but no such anaociation shall make, issue, or put in cir- culation," etc. The legislative report uses the identical language of the Constitution except the words, " or other lawful money of the United States." Therefore it seems to me to be the very expression of the Con- stitution as it is. TBE PBEVIODS QUESTIOK. Mb. McCONNELL. Mr. Chairman : I now move the previous ques- tion. Mb. WYATT. I second the motion. The CHAIRMAN. The previous question has been moved. The question is. Shall the main question be now pi^t? Carried. The CHAIRMAN. The main question has been ordered. The ques- tion comes first on the amendment to the amendment, offered by the gentleman from Sonoma, Judge Johnson. Division was called for, and the amendment to the amendment was adopted ly a vote of 81 ayes to 46 noes. The CIlAIRMAN. The question is on the adoption of the amend- ment as amended. Digitized by Google 430 DEBATES ANt) fflOOEEDlNGS PRIDlt, Adopted. OSAKTS, CHABTBB8, AMD rBlKORISU. Th« chairman. The Secretary will read gertion liz. Thr SECRETARY read: Sic. 8. All existing charters, ei^nts, fraachises, special or exclusive Erivileges, tinder which an actual and bona fide organisation shall not ave taken place, and business been commenced in good faith at the time of the adoption of this Constitution, shall thereafter have no validity. Mr. LAIXE. I would like to ask tho Chairman of the committee what is intended to be done by this .section. Mb. ESTEE. I have au amendment to the section which was adopted by the committee this morning. Then I will explain it. I will aik the Secretary to read the amendment. The secretary read: Sbc. 6. All existing charters or grant* of exclusive or special privi- leges, under which an actual and bona fide organization shall not have taken place, and business been commenced in good faith, at the time of the adoption of this/k>ustitution, shall thereafter have no validity. BEHABK8 or MB. B8TBI. Mb. ESTEE. Mr. Chairman; I will state for the benefit of the gen- tleman from Santa Clara, the reason why this section was modified, and the reason why we have placed it in our report. Section one, of article sixteen, of the now Pennsylvania Constitution reads as follows: "Skctiox I. All existing charters or grants of special or exclusive privileges, under which a bona fide organization shall not have taken place, and business been commenced in good failh, at the time of the adoption of this Constitution, shall thereafter have no validity." The reason of that is this : that it seems in the last twenty-five years the whole State has been covered with certain exclusive privileges, franchises, etc., under which, in many instances, no organization nas taken place, and no work has ever been done, but the parties still claim certain invisible rights to water, without having actually appropriated it, without performing any of the work which is re<)uired by the Act of the Legislature. A large number of these water nghta were applied for. Notices were put up, and that is about all that has ever been done. Now, these special grants and privileges should end some time, and that is the object of this provision. The object is to invalidate all fraud- ulent claims and force men to enter into the work in good faith, and with that object in view the committee have presented this section for the consideration of the Convention. Mb. JOYCE. Mr. President: It seems to me this section should not have any place here. It seems to me we are suSering from the schem- ing tricks of cor|iorations. The gentleman has acknowledged just now that there is no competition in corporations. Now, this amounts to nothing unless we can have some competition. To-day the people of the City and County of San Francisco are looking to have anybody that will bring them a difierent water svstem from the one that supplies them. I think if this was to be passed It would shut ofT the water competition of the City and County of San Francisco. I think the people of the City and County of San Francisco need some system to regulate competition with the present system, and it may be that some of these other com- panies will make it convenient to give us a competing line. We need a competing railroad system too, and if this should be passed and made part of the Constitution, I think it would shut ofl* all competition. I move that any further consideration of this section be laid on the table. [Laughter]. Tug CHAIRMAN. That motion is not in order. The question is on the amendment pro|x>sed by the Chairman of the Committee on Corpo- *rationB other than Municipal. Mb. ESTEE. The amendment is simply to strike out the word "grants" and place it in a different position, so that the section will read : " Sue. 6. All existing charters or grants of exclusive or special privi- leges, under which an actual and bona fide organization shall not have taken place, and business been commenced in good faith at the time of the adoption of this Constitution, shall thereaf^r have no validity." Mb. SCHELL. Why do you striktf out the words " franchises and special privileges?" Mb. ESTEE. We thought it better to follow the language of the Pennsylvania Constitution. It is intended to cover all ^nts made by the Legislature to any person or persons, or corporations, where the parties nave not complied with the provisions of the law. Mr. LAINE. Mr. Chairman: I desire to send up an amendment. Thr SECRETARY read: " Amend the article reported by the Committee on Corporations by striking out section six thereof." Mb. LAIKE. Mr. Chairman: It seems to me that this can serve no good purpose. I am not able to see any purpose that it can serve. I am fearful it will work some wrong, because if grants have been made, they are either contracts or not. They are either valid or invalid. If they are contracts, we cannot by an^ means impair them. I see no good in it, therefore, I move to strike it out. BIHABKS or HB. SaArTIB. Mb. 8HAFTER. I wish to call the attention of the Chairman of the Committee on Corporations to the language of the section. It says: "All existing charters or grants, or exclusive or special privileges." Now, what class of cases would that cover in this State? I may nave a franchise to build a bridge across a river somewhere, or build a toll road, and it would be a little awkward if I had to go and execute it before this Constitution is adopted. But the general law establishing the proiKwition that a certain number of men may organize a corpora- tion anil ^o on and take up water rights, is that in the nature of a grant to them; is it a charter to them; is it a special privilege? I do not think it is s charter, or a grant, or a special or exclusive privilege— that it the term used in this section. A charter or grant means a charter or grant to some person mentioned by name, or to some association of persons. There must be a grantor end a grantee, and the grantee must be named and known too. I understand the proposition that anybody may go on and locate the waters uiider general laws. But a charter or grant contemplates a grant to some person who must be named. If anybody can lake, there is no special grant or exclusive privilege. I am aware that the wholesale appropriation of the waters of the Stat« should be prohibited, but does the phraseology of this amendmenl accomplish that result? I think not, sir. ■niABKS or MB. istbb. Mb. ESTEE. Mr. Chairman: Ybur Committee on Conwrstiona thought that this was a very important provision to put into the article relating to corporations. And your committee were informed, and believe it to be an acknowledged fact, that when gentlemen come to go through the statutes, they will find a very large number of grants of the kind I have mentioned privileges and charters for various tliingi throughout the State, which exist now only upon the statute, and which are a living menace to enterprise and improvements in tboK branches of business to which these privileges relate, and your com- mittee believed, sir, that there should be an end somewhere, and that the balance of these thin^, where no work has been done, should be wiped out; and I cannot imagine bow it can hurt anybody. I do not see how it could harm a single peraon or a single bona fide institution in this- State. I cannot see where it will wrong any one, and it ee^ tainly will do a great deal of good. Mr. SMITH, of Fourth District. Mr. Chairman : I do not sappsee I can inform the gentleman upon a question of law, but it seems to me there is danger in this proposition. Now, some of the grants and char- ters given by the Iiegislature might exceed the powers of the Legislature under the present Constitution, and this clause would make good all that it had done wrong. I say it might do sq. If any person has acquired any right properly, from this State, any ^nt that tne Legisla- ture bad power to make, then it does not reqnire a provision of thii kind in the Constitution to protect him in his rights. They hold these rights at law, and by the law, and they cannot be violated by any Con- stitution. It requires no provision to protect them in their rights, and no provision can deprive them of their rights. Therefore I shall oppose this section in the Constitution. Mb. WHITE. Mr. Chairman : I trust the Convention will adopt that clause. I can't see any possible harm it can do, and there may be a great many half dead corporations that will be wiped out. I hope the members of this Convention will consider this thing well. I think it can't possibly do any harm, and it may do a great deal of good in wiping out many of these useless corporations; so I trust, sir, that it will be adopted. The C^ommittee on Corporations were unanimous in its favor. Mb. LARKIN. 'I desire to ofier a substitute to section six. Tbb CHAIRMAN. The motion cannot be received now. SrECCH or HB. BEBBIKOTO!!. Mb. HERRINGTON. Mr. Chairman : I do not know whether there is any virtue in this provision or not. It is as plain as anything in the world can be that its retention in this Constitution can do no harm; and if it does no further good it will stimulate these gentlemen who have these charters, to commence work, to organize and proceed to busi- ness. If at the time of the adoption of this Constitution, if it should be inserted here, and the people adopt it, they have really oreaniied in good faith, this provision will have no effect upon them. But if tbey have not organized and commenced work in good faith at the time of tlie adoption of 'this Constitution, then under its provisions the charters vill have no existence. If they refuse to act, if they refuse to put in forte the powers vested in them by virtue of their incorporation, they v-ill cease to exist. There are the beat reasons in the world why this pro- vision should be retained here. If they refuse to comply with the terms of the statute authorizing their existence, they should be made in some way to conform to it Here is a provision that puts them oo their good behavior. They are compelled to proceed at once and organ- ize, as the law contemplates they will do, for the benefit of the people, as is supposed their organization is instituted for. I do submit, there- fore, that we should keep it here and compel these parties to make me of these rights conferred upon them, or else give them up. BEMABKS or MB. HOWABD. Mb. HOWARD. Mr. Chairman : I merely wish to say that the pro- position in this section is this: it cannot operate upon any charter utiles there has been a forfeiture, and a forfeiture for non-user cannot be enforced without direct proceedings. This provision saves the expense of direct proceedings in a Court. It seems to me, therefore, there csn be no objection to it. It will do a great deal of good without doing any wrong. BEMASKS or MR. McrABLAND. Mb.'McFARLAND. Mr. Chairman: It is no argument gainst striking out the clause that it can do no harm if it is allowed to remain. The first chapter of Genesis might be put in the Constitution, and a motion to strike it out might be resisted for the same reason. It does do harm by its own dead weight, if nothing else. It is harm in itself. Now it only says, " charter or ^rant under which no bona fide orgznia- tion, etc., shall have no validity. If a man claims a ri^ht to water I do not think this can afl'ect it. More than this, there is one good it might do, it might benefit the lawyers — that worthy and deserving class. It would certainly give rise to a great many law-suits. The bet as to whether or not corporations had organized at the time this mt$ into effect would have to be decided in the Courts. It would only oe 1 1^ question as to whether certain corporations were in existence at the time of the adoption of the Constitution ; and that wouldgive rise to » ^ le t^ Digitized by LjOOQ IC Nov. 15, 1878. OP THE CONSTITUTIONAL CONVENTION. 431 great many law-suits, as to whether the}r had organized or not, and as to whether work had been conunenced in good aith or not. It seems to me we bad better strike it out. KUfAKKS OP MB. CB0S8. Mb. cross. Mr. Chairman: Now, this forenoon , gentlemen of the Convention were in such a hurry that they could not take time to go to dinner. Now they j)ropose to talk for hours over this sectiou. Now all of them agree that it can do no harm, but the only objection is that it cannotdo any good. The section might possibly do some good, but it is doubtful, and 1 think it would be more beneficial to the people and tax- ravers of this State to devote the time of this Convention to the con- sideration of tazatiou and other important subjects. BIMABKS OF MB. HAGKB. Mb. HA6ER. Mr. Chairman : The provision, as the gentleman has said, is contained in the Pennsylvania Constitution, and also in the last Constitution of Missouri, adopted recently. The reasons for its adoption are very different — the causes do not exist here that exist there. In Pennsylvania and Missouri, as well as other States, charters were obtained from the Legislature. Corporations were incorporated under charters from the Legislature. We have no such things here. Therefore, when you say charters, grants, etc., shall have no validity unless they do thus and so, does not have the same significance as there. It might be put in a different shape. I would say that no exclusive urivileges heretofore granted, and that hereafter may be granted, shall have no validity in this State, etc. I am against exclusive privileges of any kind being granted to any person. But, this is in the Constitution of Missouri and Pennsylvania, and I cannot see that it can do any harm. BKMABIS OP MB. SBAFTKB. Mb. SHAFTEB. Mr. Chairman: The objection I have to this, is that it does not cover a class of cases where special charters have been assumed under the general laws, and which form a very large share of the evils complained of. Therefore, I have drawn an amend- ment to that effect. Perhaps the phraseology may bo defective, but it is open to debate and criticism. I will read it: "All special or exclusive privileges, whether claimed under general laws or by special grants, shall have no validity unless such claim for special or exclusive privilege shall have been appropriated by occupancy or organisation, andT business commenced in good faith before the adop- tion of this Constitution." Mb. JONES. I would ask if it would not be better to substitute the word " and " in place of the word " or," before the word "organization ?" Thk CHAIRMAN. The question is on the motion of the gentleman from Santa Clara, Mr. Laine, to strike out the section. Lost. Th« CHAIRMAN. The question is on the amendment offered by the gentleman from San Francisco, Chairman of the Committee on Corpora- tions, as follows: The SECRETARY read : See. 6. All existing charters or grants of exclusive or special priv- il^es, under which an actual and bona fide organization shall not have taken place, and business been commenced in good faith, at the time of the adoption of this Constitution, shall thereafter have no validity. Mr. 8HAFTER. I offer an amendment to the amendment: "S«c. 6. All special or exclusive privileges, whether claimed under general laws or by special grants, shall have no validity unless such claim for special or exclusive privilege shall have been appropriated by occupancy and organization, and business commenced in good faith before the adoption of this Constitution." Thb CHAIRMAN. The question is on the amendment to the amend- ment. Mb. MILIjS. Mr. Chairman : I desire to ask a question, whether that would not confirm all the grants made? Mb. ESTEE. Not much. Mb. MILXjS. As I understand- this provision it confirms every grant made, and I am opposed to that, and therefore I vote no. I hope this amendment will not prevail. I am not in favor of any proposition that will confirm these grants. Mb. ESTEE. I think likely the gentleman has not beard the section read. Mb. mills. Yes, I have read it. Me. ESTEE. WeU, it is all right. Mb. MILLS. The proposition is to confirm all the grants 0e have made. That is the proposition. You can't go into the Supreme Court against any man under this provision. Not much. No, sir. Leave it as it is, and let us get down to business. Me. smith, of Fourth District. I ask the Chairman of the commit- tee whether or not this will not have the effect of confirming all these grants, as the gentleman has just suggested? That question has been on my mind also. This section says, they shall have no validity unless they do certain things. Would it not be inferred that they shall have validity if they do certain things, whether they are legal or not? Will not this section go to that extent? The chairman. The question is on the amendment of the gen- tleman from Marin, Mr. Shafter. Me. HOWARD, of Los Angeles. I think the amendment proposed by the gentleman from Marin is a great improvement, and I hope it will be adopted. EKMAEKS OP MB. CBOSS. Mb. cross. Mr. Chairman : There is a question about this provision which bothers me some, and perhaps either the gentleman who proposes this amendment, or some other gentleman, will set me right. Now we have in this State such a thing as mining claims, which becomes a special privilege. Also a claim for water rights, the (^aiming of the waters of certain streams, and springs, and lakes. These claims are necessary and are certainly an important interest in this State. As I understand this amendment, as proposed by the gentleman, it will amount to this : that immediately affer the Constitution takes effect, any claim which is now recognized by the laws of this State is liable to be cut off bj- this pro- vision, and the benefits arising from such claim will be cut off. If I am wrong I wish to be corrected and informed as to the true meaning of the provision. I want to understand it, but my judgment is that this will be the result. The laws of this State provide that a man may go on to a stream of water and there make a location, and claim all or a portion of the water of such stream. For instance, this Constitution is to be voted for on the fiflh of next May. As the law exista I may locate a water right on the third of May, for instance, and the law allows me sixty days in which to commence constructing a ditch, or canal, or other works, by which to conduct the water to the place where it is to be used. Now, as I understand this amendment, if I locate a water claim the day before this Constitution is adopted, if it should be adopted, by the adoption of the Constitution, I lose that right unless I commence work on the very same day. I understand if I commence work on the day after the adop- tion of this Constitution that my claim will have no validity, because I did not commence to ))erform some act to appropriate that right previous to the adoption of the Constitution. This will be true of corporations and individuals, because it is a special privilege, a special grant. BKMABKS of he. ESTEE. Mb. ESTEE. Mr. Chairman: The original section reads: " Sec. 6. All existing charters, grants, franchises, special or exclusive privileges, under which an actual and bona fide organization shall not nave taken place, and business been commenced in good faith at the tim'e of the adoption of this Constitution, shall thereafter have no validity." Then the committee amended it so as to read as follows: " Skc. 6. All existing charters or grants of exclusive or special privi- leges under which an actual and bona fide organization shall not have taken place, amd business been commenced in good faith at the time of the adoption of this Constitution, shall thereafter have no validity." • Now, I do not see how any intelligent man can put such a construc- tion on the section, because the question of compliance or non-com- pliance with the law would constitute a question of good faith, and on that every lawyer will agree with me, I think. Now, as to the amend- ment of the gentleman from Marin, I think it is more explicit, and as far as I am concerned, I am in favor of it. I wish to say to the gentle- men of the Convention that there is nothing unique in this — we did not invent it, but found it in the Constitutions of Missouri, Colorado, and Pennsylvania; and it will be found in all, I think, of the more recent Constitutions, and it commended itself to th« committee as a proper provision to be'put in this Constitution, and I am unable to see now it can injure anything. I think the amendment proposed by the gentle- man from Marin is a little more explicit. The CHAIRMAN. The question is on the amendment of the gen- tleman from Marin, Judge Shafter. Mb. JONES. I do not know as to the meaning of the gentleman from Marin, but I suggested the word " and " in place of the word " or." Mb. CROSS. I want an answer to my question, whether that will not cut off all such things as mining claims or water claims. Mb. SHAFTER. Everything of that kind will enter into the ques- tion of good faith. Mb. CROSS. Suppose these claims are made after the adoption of the Constitution? Mb. SHAFTER. It will have no effect at all. Division was called for, and the amendment of the gentleftnan from Marin, Judge Shafter, was adopted b^ a vote of 65 ayes to 43 noes. * The CHAIRMAN. The question is on the amendment as amended. Mb. BARNES. Mr. Chairman: I am opposed to the amendment and to the section simply because, whatever is intended by it, it will be utterly futile and a waste of words. Whatever riehts have been acquired cannot be overthrown by any provision in this tJonstitution. Rights that have been forfeited by non-compliance with the law can be set aside by law without any constitutional provisions. It will neither invalidate anything that is good, nor overthrow anything that is bad. The whole section, as covered by the amendment of the gentle- man from Marin, is, in my judgment, iiot only useless, but worse than useless — it is vicious. The CHAIRMAN. The question is on the amendment as amended. Division was called for, the committee divided, and the amendment as amended was adopted — ayes, 65 ; noes, 48. EXTENSIOl) OP PBANCHISBS. The CHAIRMAN. The Secretary will read section seven. The SECRETARY read: Sec. 7. The Legislature shall not extend any franchise or charter, or remit the forfeiture of any franchise or charter of any corporation now existing, or which shall hereafter exist under the laws of this State. Mb. BARTON. Mr. Chairman : I offer an amendment The SECRETARY read : " Sec. 7. The Legislature shall not extend or renew any franchise or charter," etc Mb. BARTON, My object in offering this amendment is to make it a little more plain and explicit. Mb. WILSON, of First District. Mr. Chairman : I would ask whether a motion to strike out the whole section is in order, and if it will carry with the amendment? The chairman. Yes, sir. Ma. WILSON. I move that the whole section be stricken out. The chairman. The question is on the motion to strike out the whole section. Digitized by Google 432 DEBATES AND PROCEEDINGS Fridav, SPEECH OF MB. WILSON. Mb. WILSON, of First District. Mr. Chftinnan : I desire briefly to express the views I entertain upon the section before us. It is practi- cally modeled after the Pennsylvania Constitution. It certainly is bor- rowed from that Constitution, although the phraseology has been , Bomewhnt altered. lu Pennsylvania, at the time of the adoption of that Constitution, they had no law or previous Constitution resembling ours. They had no incorporations existing under general laws. They had merely the old fashioned system of special charters, and under the decisions of the Supreme Court of the United States all these special charters were placed beyond the control or power of the Legislature. They were held to be inviolable contracts, and every one familiar with the subject must know that the Legislature could not alter or repeal them, or impair them in any manner. When the new Constitution of Pennsylvania of eighteen hundred and seventy-three was adopted, they accepted and adopted substantially our system, providing for incorpora- tions under general laws, and providing that all such corporations should tlierealter be subject to alteration and amendment by the Ijegis- lature, and at the same time, in order to coerce the old corporations then existing under special charters to accept the new Constitution of eighteen hundred and seventy-three, and to place themselves in a position where the Legislature could control them by enacting laws which would affect them, the Constitution contained the following clause by way of induce- ment. Section two, of article sixteen, provides : "Sec. 2. The general assembly shall not remit the forfeiture of the charter of any corporation now in existence, or alter or amend the same, or pass any other general or special law for the t)enefit of such corpora- tion, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this Constitution." In other words, the Legislature of Pennsylvania was denied the power to remit forfeitures, or to enact any laws for the benefit of corpo- rations existing under special charters, except upon the conditions set out in section two, whicn I have just read. That section notified all corporations then existing under special char- ters, that unless they gave their unqualified consent to the provisions of the new Constitution, and placed themselves entirely subject to it, the Legislature in the future could pass no laws of which they could receive the benefit. When they did accept the new Constitution, the Legislature might then, in itSi discretion ana judgment, remit forfeitures, or other- wise make them the recipients of its bounty. Such a provision is utterly inapplicable in California, because every corporation heretofore and now existing has been and still is under the control of the Legislature, and the existing genml law under which they all exist may be altered or amended at any time in the wisdom of the Legislature ; and the amendment proposed by the gentleman from Santa Clara to section one of this report, and adopted by the committee, provides that these gen- eral laws may be altered or repealed, not only as to corporations here- after to be formed, but as to those which already exist under the present Constitution. Now this section in the Pennsvlvania Constitution, as any one may perceive by reading it, was intended merely as a standing inducement to these older corporations, with special charters, to place themselves in the same position as our present corporations are placed, and within the reasonable control of the Legislature. Every corpora- tion now existing in this State has been organized under the general law, and they arc all subject to the general power of the Legislature to alter, repeal, or amend the general law. But in the State of Pennsyl- vania, as I have said, many corporations were acting under special charters, and the Legislature' could not control or interfere with them. They could not be affected in any manner by the legislature of that State, and this provision of their Constitution of eighteen hundred and seventy-three was to induce them to place themselves in a position where the Legislature could legislate with reference to them. But if they preferred to stand on their special charters, and defy the Legisla- ture, they could legally do so, but as a penalty in consequence of such election, they could never receive the benefit of any future legislation, because they refused to place themselves on a common platform with the other corporations of the State. We have no such special chartefs in California, and therefore we would receive no benefit whatever from such a provision in our Constitution; and as altered by the committee here— with all deference to them — it would work irreparable injury. As altered, the committee has ignored the entire latter part of the pro- vision contained in the Pennsylvania Constitution, and has taken from the Legislature of California the power which the Constitution of Pennsylvania confers upon the Legislature of that State. The difference in the two is this : tltat whereas the power was reserved to the Legisla- ture in Pennsylvania, there is no reservation whatever made in favor of our liCgislature. There they have absolute power in the premises, while here the power is entirely denied to our Legislature. I do not think it is right. This section provides as follows : "The Legislature shall not extend any franchise or charter, or remit the forfeiture of any franchise or charter of any corporation now existing, or which shall hereafter exist under the laws of this State." We have a vast number of corporations in this State which will be injuriously afiected by this provision. Benevolent associations, and all that great class of corporations will be affected. Why should we to-day declare that the Legislature of this State fifteen years hence shall not extend or renew the charter of any of these worthy institutions which may expire at that time; in other words, why should not the Legisla- ture, at some future time, pass general laws under which existing cor- porations may renew their corporate existence for an additional period of time, by adopting certain forms and complying with certain condi- tions to be prescribed by the Legislature? Why is it that the purely benevolent associations of this State, or any other class of associations incorporated for fifty years, and whose char- ters are about expiring, should not be permitted to renew their existence under general laws uniform in their operation? Why is it that Die banks of this State fifteen years hence should not be allowed lo renew their existence under general law ? Why is it that all the cnrporalioiu in this State hereafter, when their terms expire, must be compelled to withdraw from business and cease to exist T A bank may be pmsperrxu, or a corporation organized for benevolent purposes may be in a flourish- ing condition ; they may be beneficial, worthv, and deserving, and one of a class of institutions which the people of tLe State desire to continue and foster, and yet, under the provision suggested, they would be am- pelled to wind up their business and pass out of existence. Many of the corporations in this State now domg an extensive business v«e organized twenty years ago, and their charters and corporate powere are therefore limited to a few years hence. Why should we compel them U> abruptly wind up their business? Why drive them thus out of exiat- enoe? Gentlemen may say they can reorganise ; but they cannot reor- ganize and transfer their property except at a very great risk and possible disaster to depositors, stockholders, and creditors. Suppose that the charter of the Bibemia Savings Bank should expire at the end of five years, under this provision it would be compelled to wind op its business at an immense sacrifice, call in it« money and settle up with its depositors, and legally terminate its existence before a new organintion could be effected. I am apprehensive that if the section is adopted as at present drawn, it would prevent the Legislature from hereafter pa»ng any general laws under whicji a corporation whose existence is about to expire, can reorganize without entirely winding up its business ami legally passing out of existence. There is no just reason for adopting such a course, and in my judgment there is no sense in ii. I have shown already that this section does not contemplate performing the same functions here as the one in Penn^lvania, and that the reasons which there exist for the enactment of such a provision do not exist here, and under our laws can never exist in Calitbmia. I daim Uiat our Legislature should be invested with the power It pass a general law by which corporations about to expire may continue their existence upon the terms and conditions which the Legislature in its wisdom may see fit to impose ; and as to the question of forfeiture, I do not see why the Legislature should not be vested with equal discretion on that sub- ject. Forfeiture may arise in various ways. A corporation may forfeit its charter by non-user ; it may forfeit its charter by undertaking to perform an act beyond the scope of its corporate powers, and in various other ways may incur a forfeiture of its charter — still the forfeiture does not occur forthwith upon the act being committed, it is only a ground of forfeiture which requires proceedings by the Attorney-General of State, who files a petition setting forth that the corporation has rom- mitted or omitted certain specified acts, and seeks toe judgment of a Court to declare the forfeiture or asking for a writ of quo warranto. Sometimes questions of law arise upon the construction of the charter, and often it is difficult to tell whether a corporation has exceeded its powers or not A corporation may in good faith have been acting out- side of its powers through inadvertence, and without intending to vio- late its charter. Any person aggrieved is at liberty to apply to the Attorney-General for the purpose of having him file or institute pro- ceedings against the corporation, and in such cases the Attorney-General occupies the position, so to speak, of a Judge. He carefully reviews the matter, and takes a judicial, as well as a judicious view. If be ascertains to his satisfaction that the corporation has willfully committed an act or omitted the performance of an act which the law requires to be done, he may proceed by due course of law to have the charter for- feited. Should he find simply a technical violation, and yet no actual bad faith, no intent to disregard the law, he may in the exercise of a sound discretion dismiss the proceeding. Sometimes he notifies corpo- rations of their failure to comply with the strict letter of the law where he is satisfied there is no bad faith or intention of omission, and requires their compliance with the law forthwith. I remember upon one occasion of presenting that question before the Attomey-GenenJ of this State, and 1 found from an examination of the authorities tbatsudi was the universal rule ond custom. The Attorney-General would aflToid the parties a full and fair hearing, and then determine from ail the fiuts adduced whether he would institute proceedings or not, and he acted upon this exact proposition which I nave stated. If it were a mere technical forfeiture — that is a forfeiture based upon mere technicil grounds, where the corporation was acting in good faith, he would never institute proceedings. Every lawyer knows that questions often arieess to whether the act sought to be done by a corporation is inside or out- side of the line of its power, and it requires at Umes a nice discrimina- tion t* define the limit. It is frequently a difficult question to deter- mine. In a case of that character, where an innocent mistake has been made, it is never the rule to institute a forfeiture. The law in its bounty does not favor forfeitures. I believe the question of forfeitures should be left as it is at present, to the judgment, discrimination, and wisdom of the official law officer of the State. If the violation is merely tech- nical and no wrong intendets thequesticm exactly, and presents it fairly to the Convention, I withdraw my motion to strike out, so as to allow his to come before the Convention. I think the amendment is a very proper one. The Legislature is not allowed, by special Act, to extend any franchise, or to remit forfeitures. Whatever they do must be done by general law. Now, the Chairman of the Com- mittee on ('orfmretions says, you will have the entire lot of corp)ration» coming to the Legislature for an extension of charters. With all respect to the gentleman, I say it is absurd ; it is an impossibility. Because the Legislature could only legislate by general law ; they cannot legislate for the benefit of anybody, and the distinction between general and special law ought to bo too marked to require any explanation. A gen- eral law is one passed which atl'ects all alike, the provisions of which are applicable to all alike, and which benefits one as well as another. If any individual wants to take advantage of the general law, be must bring himself within its provisions; while a special law is inlenderations to continue their existence, and that these laws must be general laws. The gentleman from Nevada desires to obtain the same, and so we are all in accord on this part of the proposition. Mr. E8TKE. I have here section one of the report, which I will read: "Section 1. Corporations maybe formed under general laws, but shall not be created by special Act. All laws now in force in this State concerning corporations, and all laws that may be hereafter passed pursuant to this section, may be altered from time to time, or repealed." That would certainly apply Co every corporation. Mr. WILSON. It seems to me that anyboamen< are plving Iwtweeu here and China. What propriety is there in j>erinitting tfiat corporation in going to the Legislature fora remisBion of Its forfeiture? I am opposee the Convention will have good sense enough to stick to this report BRMARKS or MR. BARTON. Mb. barton. Mr. Chairman: This section seven is very brief and very short, but it cmliodies agreat deal. I hope this Convention will not pass upon it without due consideration. My amendment reads that the Legislature shall not extend or renew any charter. Now there are hundreds of charters extended, and the people of this State, I think, are becoming tired of it. When the people, in their generosity, have granted them a franchise for a number of years, I think when the time expires they should be comp<>lle48| Omdal and lecturing expenses ■ ' ■ Collefrt* celebrations ' ' fuel, lights, and water ■ \ Pdstageanu revenue stamps ' ' 1 Stationery ' <^ "" ."-.»' Urayton property Kqulpmenl and repairs Laboratory , Advertising and printing Free scholarships Preparatory Department Insurance Museum Tompkins Endowment Toland Medical CoUoge University printing omce Agricultural Department Students' cottagex State Geological Survey.. .1.. 36 00 1.10 10 2,003 66 t38.()61 67 1 7,469 80 120 00 784 46 14S90 1,64ft 00 I 4t.au 66 ' 1.0<& M I 9C3 40 7.211 73 «&3»&l 1,274 40' 27 IS 902 00 609 30 160 73 47 63 29 91 21.122 23 ; 7,444 83 1 17 980 Xi| 1,900 001 (40..')46 38 29' 368 94, 735 82, 19)77 1 123 29' 94 63 391 72 62 60 1352 43 107 41 115 79 318 45 889 40 224 79 103 39 8.639 71 I 3,196 44 1,460 67 I 2,199 64 1 96 83 942^1 1333 36 1,9.13 74 1,036 99 $478^30 14 99329 94 4.726 0 32372 80 1321(16 9,107 00 SS7JS6 37 3.991 37 4367 90 22339 83 18389 8) 1389 61 4304 00 4,013 9< 6,900 98 983 13 1396 89 88.787 S 31327 82 7319 94 8J46C2 4,<99 99 2343S 10.720 41 2,»819 148 60 32233 2,614 04 18.843 94 26,906 00 3,499 a 1324 00 1,00000 274 43 761 97 3,194 24 30,140 00 14,432 9!l 68 35 340.994 90 19380 00 12394 M ToMIS I $14,170 99 , (148,092 76 $137360 11 $68398 87 $76.368 99 $379,617 47 $335,411 94 $203,918 96 I $199,720 09 $231,496 83 $1,736316 21 462 301 349 60 : 3,564 69 973 20 2,287 23 I 981 oS 1,311 90 I 98 15 1321 «9 28 90 9211 00 2..338 59 12.(133 64. 29,121 29, .'., 197 90 104 00 Contingent Fund Labor Contingent Fund — Mechanical I>e[tartment Military Department Interest and discount Brayton Real Estate Fund -. KxcesM payment;! 1 '.. Mechartcal Arts College ■ United ytates Endowment ., ' ' Seminary Lanil Fund Investment : Bills receivable, account of Land Fund 30 91 18M89 2.697 46 137 22 3346 86 1,000 00 . 3 001. 36 00 1,961 19 !'" 1349 "19 1,646 90 192 21 I 160 IS I 1,629 00 790 87, 2396 36 i'saoiV 99 90 . Vmot,' 761 97 139,640 00 77,039 50 , , 20,140 00 711 73 7325 49 69 39 38.434 00 89330 00 19,380 00 ■ 1239910 * Secretaries, Curators, Land Agents, Janltois. etc (b.) See Appendix ** B.'* APPENDIX "A." SIORIOATION OP CASH KKIlr'TS. Endoumuntt — {From Omgrasional OranU.) Land Fund — Trom tales of land, gmnt 150,000 acres. Seminary Land Fund — From saTea under grant of 1 ant 150,000 acres $366,273 03 r ser- onty-two sections I93U& 09 forfeited Seminary Land Fund — ^Fnmi aalea of forfeited lands resold by the Bogents of the University 480 00 Total cosh receipts from Congressional endo«*m6nta $376,269 02 Income — [From Congreational Bndowmenit.) Land Fund Interest— From interest received on deferred payments of principal, grant of 15(i,000 acres $182,176 82 Land Fund Fees — From fees on applications, certificates of deposit, and patents 9,252 50 Interest on excess liaymeuta 3,;l72 46 Seminary Land Fund Interest — (On bonds) 1,111 50 Seminary Land Fund Interest— On deferred payments, Controller's warrants 608 48 Forfeited Seminary Land Interest , 546 82 Forfeited Seminar}' Land Fund Fees 16 00 Special Investment Fund Interest — Flt)m InTestmeut of excess payments in bonds 1,042 00 Interest on Certificates of Deposit — From interest on preliminary deposits of one dollar per acre, made by applicants for lands under the grant of l.'iU.flOO acres. Said deposits held by the Land Department of the Univenrity, awaiting action by the United States Land Oflices 143*9 56 United States Enrlownient Interest — From interest on bonds purchased from proceeds of sales of land l>«iong* ing to the grant of 150,1)00 acres 36,609 OS Seminary and Public Building Land Fund Interest — From interest on deferred puymsots of principal, Con- tnillor's warrants 27,217 00 276,242 17 Total cash receipts ftom Congressional endowments and income therefrom $062301 17 Trust Funds. Excess Payments — From collections of SI 26 per acre on double minimum lands $61,974 84 Slate Geological Survey, collections on account of 4,417 86 Total cosh receipts from Trust Fund 66,392 09 College of California — From amounts received from soles of real estate, etc $83,235 00 Building Fund— From amounts received for construction of buildings 357,396 37 440,631 37 Amounts of income received from the State to pay cur- rent expenses .^ 662,150 42 Total cosh receipts from all sources $1321,676 66 APPENDIX "B." BIOKKOATION OF CASB DISBC RSEM I>CTS AMD INTISTHKITTS. Investments. United States Kndowment Fund — Investment of proceeds fh)ra sales of the agricultural grant of 160,1100 acres, in bonds of the par Jialue of $348,000, at a cost of $346,934 50 Amount bnmght forward . $346,934 60 Seminary Land fnvesiment Fund — Investment of pro. ceeds from sales of the seminary grant of seventy*two sections. In bonds of the par value of $19,000, at a cost of ..». 19,380 00 Brayton Keal Estate Fund — Investment from proceeds of the sale of Oakland property ibi> called Brayton prop, erty), in bonds of the par valne of $11l,.'>i|0,at a cost of.. 20,140 (10 (NoTK. — The Treasurer i f the I'tiivenrfty now holds mort- gage notes receiveii in part payment from sales of above property, amounting to $68330, bearing interest at tbt rate of eight (Ki per cent, per annum, payable quarterly. As the notes are paid. Investments are made In bonds for account of said fund.) Bills receivable — Investment of pixiceeds Iwiouging to the grant of 150,000 acres 12,896 10 (Nora.- This amount of $12,895 10 was credited to the Land Fund, forming a part of tne statement of cash receipts, and is h«l[e repreoonted by a joint note due January let, 1879, bearing teo per cent, per annum interest.) Building Fund— Cost of College buildings linown as North and South Hall, formerly linowu as tk>llege of Agricul- ture and College of Letter* 367396 37 Students' College — Cost of eight cottages built for occu- pation of Btitdenis 26,906 00 University Site Improvements — Oist of ornameotol and tiseful trees, fencing and grading the grounds 32,672 80 University Water (Ximimny — Cost of construction of water ditch, reservoirs, iron pipe, etc 5,967 50 College of California — Cost of lands, expenses of surreys, legal services, etc 80,682 52 -Apparatus 22335 83 Library 18399 89 Brayton Property— Cost of three blocks in Oakhind and bnildtngs thereon J. 88,787 28 Museutu .« 2,;i98 21 University printing office 2,614 04 Mechanical Arts College— advance 69 35 Total cash investments , $1,031,478 39 Trust Funds. Excess Payments-;Amounts paid the United States $U,432 59 State Geological Survey — Amounts paid for account of 3,%59 23 18,9m 82 Amounts disbursed for payment of current expenses of the University 706,746 00 Total cash disbursements atid Investments $1,75^16 21 The following statements of accounts, which are made up of donations, casli received from excess payments, and bank certificates of deposit, do not properly iMlong to the exhibits bl cash receipts and expenditureo, and are deposited witL ^e following savings banks: Digitized byCjOOQlC Nov. 16, 1878. OF THE CONSTITUTIONAL CONVENTION. 437 CHIOK »\VtVat BANK, OF OAKLAND, CAUrOBNIA. DebiU. To dopodt of renU and InterAt thereon— Agurix Prufenonhip— fram Msrcb 1.1th, 1H73. to June 30th, 1878 To deiKwIt of donations (account of Medal Fund), and lntere«t thereon ftom March 13th, 1873, to June 30th, 1878 To deposit of donation bjr H. D. Bacon, of S500, for ao Enfftneerlng Fond, and intert^ thereon To deposit account of exceai payment, made June 30tb, 1877..^, 000 00 iTo Interest thereon 2«S 00 1832 73 3,486 02 714 33 Amonnt brought forward To deposit! of certilScatea of deposit. Issued bj the Bank of California, (saldcertiflcntee repn«entlng the preliminary depoalta made by appli- cants for lands): Sepoaited rebruarjr 24th, 1877 (12,0(19 S3 And interest thereon to January let, 1878 884 60 6,255 00 (11,288 68 12,024 93 Total debits $24,213 61 CniUU. By amounts paid for medals (account of Medal Fund) 9760 00 By amounts paid for apparatus ordered by Pn^feesor of Civil Kn- gineeriog, on account of fingineering Fund 628 38 * By amount transferred to Treasury of Unirersity of certlAcate of deposit 1,000 00 • Total credit. 2,278 38 ^^Uuice due Unirerslty HIBIKNIA (ATlKOa AMD LOAN SOCIKTT, SAN rBAHCISCO. DebiU. To deposit Of exceea-paymenls, made October 12th, 1877 To interest on same, to January 1st, 1878 121,936 23 $5,000 00 93 76 BRCVBITT BATINflS BANK, SAM rRANOtSCO. To depoait of excess payments, made from June 30th, 1877, to January 31st, 1878 - To interest on some, to January 1st, 1878 t6,093 76 128,162 90 448 00 <28,«10 60 SAM FBAKCUCO SATIN08 I'HION, SAM TBAKCUOO. To depoatt of certificate of depoait, issued by Bank of California, mads February 23d, 1877 $12,212 62 To depoait of certificate of deposit by Bank of California, made June 26th, 1878 3,260 00 To interest to June 30th, 1877. $286 27 To fhtereat to January 1st, 1878 606 17 792 44 $16,266 06 THK OAKLAND BANK OF SAVINOS, OAKLAND, CALIFOBNIA. To deposit of excess payments, made October 12th, 1877 ^ $3,000 00 To interest to January Ist, 1878 70 8.1 Total - $6,070 83 KBTAPITULATIOK Deposit with saTings banks, for account ot Agaadi Piofessorahip $832 73 Deposit with saTings banks, for account of Medal Fund 2,736 62 Deposit with sarlngs banks, for account of Cirll Engineering Depart- ment — - 186 95 Depoait with savings banks, for account of excess payments 44,162 60 Deposit with saringi banks, for account of excess (laymenta, interest 867 58 l>e|>oeit with savings banks, for account of certificates of deposit 26,601 96 Deposit with savings banks, for account of certificates of deposit, inter- eston same '~ 1,678 04 Total amount deposited with savings banks to June 30th, 1878 $76,966 37 CIVIL KNOINBEBINQ DBFABTMENT. NoTember 13th, 1876— To depcsit of donation tnm H. D. Baron $600 00 To intarcet from April 26th, 1873, to Jnly 1st, 1876 169 22 To Interest from Jnly 1st, 1876, to January 1st, 1878 — 46 11 $714 33 November 13th, 1876— By amount paid for apparatns $363 99 February 20th, 1877— By amonnt paid for apparatus . 104 64 Tebmary 20tb, 1877— By amount paid for freight 69 76 628 38 Balanca doe June 30th, 1878.. $186 95 TBI nmVBBBITT HIDAL IWND. Dr. DtpotUed with Iht Union Savingt Bank, Oakland, California. Or 1874. Jnly 30-1 Oct. 10. Oct. 10. 1876. To cash for medal i (Frank Otia) To cash for medal (J. M. Whitworth). To cash fur medal (F. H. Whitworth) THE AOAMIX rBOrEmOKSHlP FUND. DepotiUd with tht Union Savingt Bank, Oakland, Otli/omia. Cr. 1876. June 3U. 1877. June 30. 1878 June 30. To balance.' To balance. To balance. 1873. I $486 6C March 13.. By cash from rent.l '! Juno 30...' By interest I II Dec. 31 I By interest \ 1874. I I, June 30... By interest |1 August 19. By cash fh>m ivnt. , Nov. 14 By cash from rent.: i Doc 31 ; By interest 1875. I l' June 30 By interest \ I Doc. II By cash trom rent.i ,1 1876. ,1 June 30 By Interest. $485 56 ~^" i $679 09 [ 1876. June 30 I By balance. 1 Dec. 18 By rent 1877. ' Juno 30... By intereat. $100 00 2 33 5 04 6 08 100 00 100 OU 9 27 15 22 123 00 22 60 $679 00 1877. June 30.. 1878. Jan. 31 March 31. By balance.. $486 66 $485 SO 126 00 68 53 $679 U9 $679 09 By interest. By cash from rent. June 30.. 28 64 125 00 $832' 73 . June 30 I By balance. VOi 73 $832 73 BECAPITULATIOH. Total receipts $1,821,676 65 Total disbursemeuts and investment* s. 1,766,216 21 Excees of receipts over dIsbnrBements and inreetments $65,459 44 CASH STATEMENT. By cash balance with Treasurer. D. 0. Mills, June 3d, 1878 $21,296 94 By cash depoait with savinga bank, account of excess payments, June 3d, 1878- 44,162 50 Total.. - $65,4.i9 44 JOHN LeCONTE, Preatdent of the Unlvcisity of California. KOBT. E. C. STKABNS, Secretary of the Board of Beg«nts, University of Chlifornia. WHAT HAVE THE BE0EXT8 OF THE CNIVERSITY TO SHOW FOR THEIR EXPKNDITCRK? 1. They have secured a corps of professors and instructors of ability and repnta-. tion, and established a curriculum of studies which, for Its range and variety, bears comparison with the oldest and best endowed Institutions t^ the Kastcm States. 2. They have, la the course of nine yenrs, succeeded In establishing an institu- tion of high grade, which already assumes an acknowledged rank amung the uni- versitios of our country — in which instruction is Imparted in all branches uf culture and useful knowledge, free to all residents of California, both male and female. No money consideration can represent tlie value of such an institution to the state. 3. The amonnt expended fur Instruction in its various lomis, for free scholar- shlpa, and for supptirt (during a short iwriod) of a preparatory department, has, of course, gone beyond recall. For this they have nothing tangible to show. It is rep- resented by tlio knowledge Imparted to hundreds ((f the youth of our State It will assnredly bear its fruits in time, in the form of wine statesmen and legislators, accomplished scholars, original thinkers and investigators, able Jurists, public bene- factors, and virtuous citizens. Dollars and cents cannot represent the value of these contributhins to modem civiliaitlon 4. But, aside from the intangible blessings conferred by the University, the Regents have properliet of great value to show for the money expended. The State now owns: 0.) (2-) (3.) («•) (6.) (6.) C-) (8.) (»•) (10.) (11.) (12.) (13.) (14.) Two hundred acres of land at Berkeley, with cost of ornamenting, grading, and improving site— valued at $250,000 nree first-class bnildings at Berkeley, with the furniture of the same 397,000 A museum, embiacing extensive collections of geological, minemt- ogical, botanical, and ethnological specimens; also, works of art, etc.— moetly private donations 60,000 A library, containing over 14,000 volumes— expended by Regents 18,000 Private donations (estimated value) 17,000 (Vtllectioni of apparatus, physical, chemical, and other aids to in- stroetlon 25,000 Eight (8) cottages for students 24,000 Oymnasinm building— recently the gift of Mr. A. K. P. Harmon... 7,000 Printing olHce property j 2,54,10 Printing press— gift of Dr. Samuel Mcrritt 1,600 Propagating houses, bam, farm implements, and orchard containing over five hundred varieties ; also many varieties of grapes, etc. 4,IM0 Forty-seven acres of land near Oakland — a gift from the late Edward Tompkins — present valne 40,000 Toland Medical Hall in San Francisco— a gift from Dr. U. U. Toland 75,000 Medal Fund— a gift from friends of the Univeraity 2,600 Bmytini property— mortgaged notes 68AtO Brayton property — investment in bonds . 20,140 Seminary land Fund — invested by Regents in six per cent, bonds — cost 19,380 $1,022,450 JOHN IkCONTE, President of University of Callforaia. University or Caufobnia, CJolleob of Aoriccltvbk, ) BcRKELEV, November 18, 1880. ) Honorable J. R. Frend ; DeabSib: Tour fisvor of sixteenth came duly to hand. As It would be difficult, and on acconnt of the state of my eyes almost Impossible, for me to make out, at short notice, as full a statement as would be desirable In respect to the matteis yon allude to, 1 mail to you with this such printed matter as 1 have published, bearing on the questions in hand. My Wnlnut Creek lecture, and the first fifteen pages of t^ 438 DEBATES- AND PROCEEDINGS Saturday, mj report to the Pre«ident, contmfn ttie gfst of the whole matter, ao &r u my rtews on the pastf preeont, und fukoro -of the Atnicultiiral Department are coiicerneil ; and I have ouly to add that, with the aid of the appnipriatiuii made hy the last Legislature, theee vicwa are now being carried out aa rapidly aa possihle, in accord- ance with a printed, but n(ft a« yet publislied, programme, uf which, uiifurtunatAdy, 1 have no copy to send you, hut which is iu the haoda of both Mr, Martin and Mr. Winaoa. This programme includes: * I. tk>ursi>a of lectures on ** special cultures," in accordance with the circular herewith iiiclused. This is given regularly tiy Mr, C. H. Pwinelle, and by other lecturer* specially competent in particular sutjects, aa these can be ot>lAiued. Among the latter, a clinical lecture on "glanders" was last week delivered by Dr. A. Do ThvbI, of Snn Francisco, to a large audience, fllr. Dwinelle*s lecture* are regularly attended by four students, and almost always by fmm two to six |ien(onB not regular students In the agricultural course, of which this is the "senior" year. 2 A garden of economic iMitany, This is now l>eing laid out and occupied, on the level tract next the entrance from the railroad depot. It will enibmce, as fully as possible, all tile economically useful plants capable of outdoor culture in this climate. At the same time, culture experiments on a larger scale are being carried out on the grounds north of the brunch of Strawberry t'reek; and, for the cub tnre oi plants requiring heat, an addition is tieing made to the propagating houses already occupied. A large number of se'ds of important forest trees have lately been put into the ground, to be later transplanted Ut suitable positions in the University domain, srhich will ultimately (if my plans are carried out) Ijo to the agricultural student what the cabinet of minerals and laboratory are to the mining student. 3. Increased and improved means of demonstration in Instruction in the several practical counies, in the way of collections, illustrations, implements, etc. 4. The continuation, to the extent rendered possible by our means, of the work of an agricultural survey, as explained in my report to the Preeident, page eleven and following ones, and exomplifieil in the appendix, pagt^ twenty to sixty-three. A nnml>er of Iniport-tiit matters have t»een under examination since the date uf this report, and will be published before long. At the moment, the work has received a check in the resignation of mv assistant, who can be replacotl only by training up another graduate in his stead. For this purpose, I have selected Mr. F \V. Mor^e, of the class oi eighteen hundred and «eventy-eight. 1 conifider tlie pn>^ecutlou of this work as the key to the situation, as It is the most direct nieans of proving tt) farmeia how great are the l>eneflts to lie derived by their tM>ns fnau the study of the scientific principles underlying agriculture. I can- not but ascribe largely to the published and unpublished results of this work, the gratifying increase of students in the strictly agricultural Course, and tlie increased attendance of others upon the le<-tures of the department, so far from the "single student" of current report (which doubtless originated in the statement that there was but one student in the senior class this session i, the facu uow are as follows : Regularly attending senior course of special cultures t Uegulariy attending junior course of agricultural chemistry 6 Electing the course of economic liotany, second term, sophomore .. VI Total In agricn'tural course proper, by January 1st, 1879 22 Peduct aa twice mentioned 4 Total attending regularly 18 It sholtld bo rememliered that, moreover, the entire scientific division of the sopho* more clasa {from forty-five to fifty students) atteml regularly the first term of my coune, to^it.; general botany, which l>egins the agricultural course. After the first term they elect their college, as above stated. When you remember that years ago not a single student elected the agricultural course at this time of the year, the change that has occurred cannot but bo gratify- ing. The course has become acceptable and res|>ectable, In the eyes of the students and tli'Jr [Mrents, In pruftortion to its inctcised thoroughness and educntionHl value And I have no fiMirs as regards its future iiicri*nse of patronage and u-iefulness, if the policy that has effected this change Is continiu-d. Let me add that I consider the number of students now in attendance here, on this course, as a fair index of the . interest now taken by the farming population in the profennomat education of their sons OS farmers. If the means and appliances for such education hero are not, at tills time, all that could be desired, whatever is ufTere*! is indispensable, and what is lacking can iu a great degree be made up .by practice on any well conducted farm. For mere drill in farm operations no sensible man will send his son to college ; and busioesH management of a farm will never be learned under the artificial conditions of a College farm. I am unable to sec why, of all professional schools, the Agricul- tural College should be 8ae considered as such, young men will not need to be surrounded by a dense "agricultural atmoepliere," in onler to keep them to their profession. And then, the many farmers who now send their sons to all but the agncultural course at the (Jniversity. will cease to tell their sous that they " can teach them ail the farming they need at home " 1 am hopeful that this day Is coming sooner in California than elsewhere, for natural reasons; but its coming will not l>e hastened by removing our future farmers fnun contact with the rest of the rising and cultured youth of the State ; and if Mr. Morritrs own statement is to be believed, that waa asaui^ly not the olijoct of the " Morrill grant." In conclusion, allow nic to suggest that the first thing needful for rendering the aid of science aoeeasible to the rural population is, that the rudiments, at least, of natural science should he effectually, and not only nominally, taught In the comm.tn schools. The reason why this is not now done. Is simply that there arv too few teachers competent to give such Instruction, and if the l.^niversity does no more than supply these teachers. It wilt have done the greatest poeaible service to the cause of agriculture. Then, indeed, "form schools" scattered over the country could do it'ul service, because they would have suitable material to work upon. But so long aa there ar« no teachere, no law or constitutional provision can create eOl- clent schools. If there is any farther information that 1 can furnish you, plooae let 'me know, and I will do so aa rapidly aa poeaible. Very respectfully youn, EUO. W. UILOABD, LOCAL OPTION PETITION. Mr. smith, of Santa Clara, presented the following petition and memorial, signed by a number of citizens of California, requesting that a provision be inserted in the Constitution, providing for a local option law: To the honorable the (institutional Convention of the State of California: We, the undersigned, respectfully petition your honorable iiody to insert In the new Constitution of this State a clause similar to that now in force In the State of Texas, to wit: ,SK(rTloN — . The Legislature shall, at its first session, enact a law whereby the qualified voters of any county, voting precinct, town or city, by a minority vote, from time to time, may deteriuiue whether the sale of intoxicating liquore shall be prohibit^Kl within the prescril>ed limits. Referred to the Committee on Education. COBPORATIONS. Mb. FREEM.\N. I move that the Convention now resolve itself into Conimiltee of the Whole, the Presidenf in the chair, for the pur- pose of continuing the consideration of the report of the Committee on i'xirporatioiis. Mb. INMAN'. Before that motion is made, I desire to avail m^-self of my notice to ameyd Rule Fifty-Six, and ask that it lay over until there is a full house. Thk president. If there bo no objection, the gentleman will be allowed until Monday or Tuesday. ' Hearing no objection, it is so ordered. Mb. McCOMAS. I desire to present a memorial from the Board of Supervisors of Santa Clara County, asking for the establishment of a Htate Hospital, and ask that it be referred to the Committee on State Institutions and Public Buildings, without printing. Thb PRESIDENT. If there be no objections it is so ordered. Mb. REYNOLDS. I hope the gentleman will withdraw his motion to go int4i Committee of the Whole, for one moment The PRESIDENT. It is moved and seconded that the Convention resolve itself into Committee of the Whole, for the purpose of further considering the report of the Committee on Corporations other than MiinicjiMtl Mr. REYNOLDS. I insist that I have the floor, and had it while the motion wits being put. The PKESIDE-N'T. The gentleman did not have the floor. The motion prevailed. IN COMMITTEE OF THE WHOLE. Tbe CHAIRMAN. The Secretary will read the next section, section eight. EMINENT DOUAIN AND POLICE POITEB. The SECRETARY read: Sec. 8. The exercise of the right of eminent domain shall never be so abridged or construed as to prevent the Legislature from taking the pro[>erty and franchises of incorporated companies, and subject them to public use the same as the pro|)erty of individuals; and the exercise of the police power of the State shall never be so abridged or construed at to periiiit corfiorations to conduct their business in such a manner as to infringe the equal rights of individuals or the general frell-being of tbe .State. Mr. BARBOtlR. Mr. Chairman : I call attention to what appe«r8 to be a clerical error in line three, the won! "subject" should be "sub- jecting." I have, however, another amendment to ofier. The SECRETARY read: "Amend se<-tion eight as follows: after the word 'companies,' in line three, insert the words, ' at their own valuation as made for tbe purpoae of taxation.' " Adopted. • Ma. BL.\CKMER. Mr. Chairman: I notice in the same line what is undoubtedly a clerical error. The word "subject" ought to be "sub- jecting." It is not in grammatical form. The CHAIRMAN. That is a mere clerical error and will be corrected, of course. If there be no further amendments to section eight, the Secretary will read section nine. LIMITATION OP CORPORATIONS. The SECRETARY read : Sec 9. No corporation shall engage in business other than that expressly authorizml in its charter, or the law under which it may have been or may hereafter be orga^ixed; nor shall it hold any real estate for a longer periocar that the moneys of the corporation have been properly expended, when they have not been properly expended. There are some corporations that have issued stock, and issued bouds on fictitious indebtedness. There is one in this State that I might name. It is well known that it issued one million dollars of bonds — construction bonds, they were called — for constructing a certain road that never was and never will be built. Now, sir, what your committee intended to do here, was to enforce the rule of common honesty with corporations asjwith individ- uals. They intended to do nothing more. It was the object of the committee not to impose any peualty upf)n a corporation that the law did not already impose upon innividuals. Mr. ROLFE. Mr. Chairman: I am laboring under the same igno- rance that the gentleman over there is. I will ask if you mean that it shall be void as against the company? Mr. ESTKE. Eitlier against the company, or any stockholder, or anybody else. remarks or MR. BARNES. Mr. BARNES. Mr. Chairman : We understand then that when the directors inside the ring create an indebtedness and pay money to them- selves, that that indebtedness upon which they have collected and received money is void. Is that it? Take the can* of a railrend — the California Piicific Railroad extension. They did issue, aot merely a million dollars of bonds, but two million and a quarter of bt»ids, and sold them in Europe upon a pn>jected road that never was built at all, and for which the company received nothing but this Napa brntiet? a few miles of railroad, for two million and a quarter of Ixmds. NowT" in whose hands shall they be void? Suppose the fraudulent directors — for we are wontt« consider all directors fraudulent — shall determine to raise money for their own account ujjon the company paper, and in accordance with law, the directors authorize the President and Secretary of the company to make and execute a corporate note for ten thousand dollars, and to Iwrrow money upon it, and they take that ten thousanil dollars and put them in their ixK-keb". Now, then, the indebtedness is held or owned by some person who discounts the company's note put out in that way. The directors have robbed the comi>any' they have robbed the stockholders, and now it is proposed to rob the bona fide holder of the note, the innocent discounter. That is what it amounts to, if it amounts to anything at all. Now, there is nothing better under- std than that the bona fide holder of commercial paper is protected in the holding of it. You cannot have commereial law, or commercial transactions, except upon that basis. Is it meant by this to say that if the directors of a company shall misappropriate money and" rob the company, that the man who has loaned the money is responsible? If so, we have a new element in" commercial law in this great reform State of California; that a man who loans money to a corporation or associ- ation has got to be certain before he loans it that everything is all right on the inside, and has got to know as much and more than the directors themselves. He has to inform himself as to what becomes of the money; and after he has loaned his money he has got to follow that money and see it invested in the land or applied to the purposes of the corporation. Fictitious indebtedness is always void. But there may be a fictitious indebtedness that is good in the hands of a bona fide holder. There is not a gentleman on the floor of average capacity, which we lawyers claim to be, as well as truly good, that can understand what is meant bv that phrase " in their." It is like some of these other ill-considered plirases, like one adopted yesterday. It is vicious. It opens the door to more litigation, and overthrows well settled principles, if it amounts to anything at all. Therefore it is, that before we put this into the Con- stitution of this State, that is going to stand for fifty years or so, I wished that we could all understand it, so that we would be able to explain it, Mr. ESTEE. Mr. Chairman : My friend asks me a very leading question, and then he answered it in a very elaborate manner, for himself. Mr. BARNES. Mr. Chairman: The reason I did that, was that when I asked it before, the Chairman of the Committee on Corporations did not appear to understand me. He came up to the scratch and looked at i^t and then walked away. remarks or MK. ESTEE. Mr. ESTEE. Mr. Chairman : If the gentleman wishes to ask any more questions, all right. And if he wants to answer them himself, that is all right; but the proposition here is whether this section eleven is so worded as to convey correctly the ideas intended to be conveyed ; and secondly, whether these ideas will meet the evil complained of. Now I am not unaware, sir, that it is im|>08sible to draw any section but what is subject to criticism by all persons, and especially by very bright intel- lects. I am very well aware that my friend has the capacity of making black seem white and white seem black, and I know that if there is any- body here that can put the language into any peculiar shape I know he can do it. Now if the gentleman will propose an amendment to section eleven that will meet the evil which he condemns, and which we say exists, this committee will be most glad to accept of his eminent services in that line. Mr. BARNES. I will undertake the job. • Mb. ESTEE. The amendment proposed by the gentleman from San Francisco, Mr. Casserly, I think is a good one, that all fictitious indebt- edness shall be void. Why shouldn't it be? Me. BARNES. But against whom? Ma. ESTEE. Why shouldn't it be? There is no reason in the world. Now, my friend says'tbat this fictitious indebtedness majr come into the hands of innocent holders. That is possibly true ; but this will not relate back to anything in the past, and it will make (leople who buy bonds — I do not mean railroad bonds, but any bonds issued pursuant to this Con- stitution— see where their money does go. And it is right enough that they should. In other words, that they shall not do as has been done heretofore by companies, issue bonds for fictitious indebtedness, and sell those bonds at twenty 'or thirty cents on the dollar, and then hold the stockholders responsible for the payment of the interest on them. 1 1 Digitized by tereat on tnem. 1 1 Google 440 DEBATES AND PROCEEDINGS Saturday, cannot, for the life of me, see, with this in view, with a full knowledge that this section exists, how many persons can be deceived. It is possi- ble that there might be instances where there might be a wrong; but it strikes me that it will meet and remedy a great evil. Mark the lan- guage: "Ko corporation shall issue stock or bonds, except for money paid, labor done, or property actually received." Now, they know whether they pay money for them or not, " and all fictitious increase of stock or indebtedness shall be void." Then it goes on further and says : " The stock and bonded indebtedness of corporations shall tiot be iucrea8eaid." If it means any money at all, it •mounts to nothing. It would be a very dangerous thing to say that all fictitious increase of stock shall be void. Who is lo say whether the increase is fictitious or not? If the property of a corporation has advanced, it certainly would not be fictitious to increase it to the same extent. At what point would it be fictitious? It opens the door for an immense amount of litigation, and while you are attempting to benefit the people, you are putting them in a worse position than they are now. These corporations are used every day, by rich and poor, in the development of the country. I think it would be better to strike out the whole section, and leave it to the Legislature. It is true that there have been cases of watering stock, but this proposition includes everybody and every class of corpo- rations, and, it seems to me, is dangerous. If any law is necessary to reach that particular class, it may be done much more safelv by the Legislature, where the law can be changed. Gentlemen will £nd that when they start that it must necessarily do injury, and give rise to great doubt and much litigation. I think it is much safer to strike it out. REMARKS or MR. WHITK. Mr. WHITE. Mr. Chairman: I merely rise to correct one point. It would appear from the gentleman's remarks that the committee put this in to cover some idea of their own. Now, it will be found in the Con- stitutions of Pennsylvania and Missouri, and most of the lote Constitu- tions. The committee have compared it with thejse, and then saw the application, and we all understood it; and I think there is nothing in it that a plain man cannot understand. It is a provision to prevent frauds of that, kind, and everybody knows that there has been fraud. It is found in the other States, onose you have engrafted in the Constitution a eUnae forbidding fictitious stock, and this supp)sod corporation or gas cnmpanr, insteaany to ascertain whether it «ai or not according to the requirements of the law. The section reads: " No cor|>oration shall issue stock or bonds, except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtedness shall be void." I presume that the Chairman of the Com- mittee on Corporations had in his mind that India rubber account that he spoke of the other day. That would be a fictitious indebtedness. A railroad corporation, or street railroad corporation, may come up to the Legislature, and they may employ a lobby to get certain bills through. You will find that nothing appears on the Ixmksof the company that money was spent for any such purpose. You will find charged, under the head of construction account, thirty thousand dollars. That is, without any items, without any information, it would appear that on account of money expended for construction there is a charge of thirty thousand dollars. It is a fictitious indebtedness, so far as the stock- holders are concerned, but the directors have expended the money. It is a fraud on the stockholders, but it is a matter which they have done, inasmuch as they had the Ppwer to do it, to pay out and use the com- pany's money. I see the difficulty, as my colleague .has said, in regard to the public generally. Now, I would like to amend it in this way: " No corporation shall issue slock or bonds, except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtMness shall be void ; and the directors of all oorpomtions shall be jointly and severally liable for any fictitious indebtedness created or authorized by them." Would not that cover the point? Mr. ESTEE. Mr. Chairman : That is all right, so far as it goes. But our section says that " the stock and bonded indebtedness of corporations shall not be increased, except in pursuance of general law." Mr. HAGER. I leave the rest of the section exactly as it is, but I make the directors directly responsible for the fictitious indebtedness. Mr. ESTEE. We find iust exactly such a section in Pennsylvania, Missouri, and Illinois, and it strikes me that it is right. Mr. HAGER. If the gentleman will point out the section in the Missouri Constitution. Mr. ESTEE. You will find it in section eight, article twelve, of the Missouv (V>nstitution of eighteen hundred and seventy-five. Mr. HAGER. It is there, sir. Mb. WEST. You will find it also in section thirteen, article eleren, of the Illinois Constitution — the same in substance. Mb. IIAIiER. It is in the Missouri Constitution, and refera to the ConslitulioD of Pennsylvania and that of Illinois, I suppose. I am inclined to adhere to the Constitution of Missouri and the one in Penn- sylvania, because they are drawn with reference to making the Consti- tution to a certain extent a code, so far as it is a liinitationupon legisla- tive power. I am rather in favor of Constitutions being drawn in thai shape— that they should contain, if necessary, a code, because Oonstiiu- tions cannot be changed and overturned so easily. Laws may be by Ihj Legislature at any time ; but in a Constitution, when it is once engrafted there, it is like a rock against which the surges of corruption may pre- vail in vain, and I am in favor of engrafting in the Constitution every provision that I may think necessary for the protection of the people, rather than to leave it to the Legislature. remarks op MR. BARKES. Mr. BARNES. Mr. Chairman : t see no peculiar holiness or saneti')' in the section because it has been shipped over here from Missouri. H it is good we ought to adopt it. If it is bad we ought to reject it. ' Digitized by 1 we ought to rejec Googl( But J Nov. 16, 1878. OF THE CONSTITUTIONAL CONVENTION. 441 while we are endeavoring to phrase an idea in order to meet what is acknowledf^ to be a mischief in the business of our corporations, I think it is just as well to phrase it, if we can, so that it will cover the evil intended to he corrected. Now, I will suggest this to the Chairman of the committee. Of course, it may be crude and perhaps not couched in the most tilting language. I remember hearing — if tne Convention will pardon me one moment— I remember hearing it said that the elder John Adams, who wrote the Preamble and Bill of Rights for the Con- stitution of Massachusetts, gave to that g>eat work at the ripe age of eighty-nine years, after twenty-five or thirty years study of republican institutions, after vast travel and experience to live and to learn, with a thorough knowledge of everything that relates to the rights of the peo- ple that could be drawn from the earliest existence of republics to the charter that has been so often spoken of here, which was wrung from King John by the Barons at Runemede — that he was occupied seven months, in the solitude of his chamber, in writing the Preamble and Bill of Rights of the Constitution of Massachusetts, around which all these other Constitutions have clustered. But we seem to think that we can come upon the floor of this Convention and suck a stump of lead pencil for five minutes, take an old scrap of paper and prepare any amendment for the Constitution of the State. Mr. HEISKELL. We have the benefit of his vast wisdom. Mk. B.\RNES. The work is altogether too hurriedly done; and therefore I say in apology for any amendment of mine, that I would much prefer that amendments should go to a committee for study and examination. It is very easy to use language, but it is not so easy to construe it when it has to be investigated. Here is my suggestion: " No corporation shall issue capital stock, or any evidence of corporate indebtedness, except for money paid to, work or labor done for, or prop- erty actually received by it in the course of its busir-'«8. No corjxira- tion shall increase its capital stock, except for the acquisition of propertv, or for the appointmeut of property among its stockholders, actually held and owned by said corporation at the time of such increase. No corporation shall create any indebteduoss except as herein provided for the issue of capital stock; provided, that. nothing herein contained shall affect any bona fide holder for value of any evidence of corporate indebtedness." Now, that wotild cover the fictitious indebtedness by defining what they might contract a debt for, and the fictitious stock by defining what they might increase their stock for, with a proper reservation in cases of indebtedness only. REMARKS or MR. BERRSTKCHER. Mr. BEERSTECHER. Mr. President: The learned and eloquent gentleman from San Francisco has told us what a gentleman from Mas- sachusetts did, and how many years it took that man to finally get into condition to be able to frame the Preamble and Bill of Rights of the Constitution of Massachusetts, but I must say that I was unable to eee what pertinence these remarks had to the subject in hand. But, when the gentleman from San Fraucisco said that the Constitutions of all the other States clustered around the Constitution of Mnssacbusetts, the only reason for that clustering that I can see is, that the gentleman from San Francisco happens to be born in Massachusetts himself, and that probably accounts lor the clustering business around Massachusetts. Mr. BARNES. I beg leave to correct the gentlemau. I was not bom in Massachusetts. I think it is as good a place to come from, however, as 1 do not remember where the gentleman came from, and I have not yet known him long enough m this State to know where he lives here. I think all this is out of the question — we are not discussing that subject. Mr. BEERSTECHER. I stand corrected. I understood the gentle- man to tell lue the other day that he was born in the Stale of Ben. Butler. Mr. BARNES. I never could have said that, for Ben. Butler has not got any State. He certainly did not get the State of Massachusetts at the last election. I am aware that the Convention biographer has located me in Massachusetts, and he also gave my age and previous con- dition of servitude, but he was incorrect about them. But that has nothing to do with this amendment. Mr. BEERSTECHER. I call the attention of the Convention to sec- tion seven of article sixteen of the Constitution of Pennsylvania. Sec- tion seven of article sixteen of that Constitution is the exact counter- part of the present section before this Convention ; or, I should say, the present section is the exact counterpart of the section in the Constitu- tion of Pennsylvania. Section seven reads as follows: '• No corporation shall issue stocks or bonds except for monejr, labor done, or money or property actually received j and all fictitious increase of stock or indebtedness shall be void. The stock and indebtedness of corporations shall not be increased except in pursuance of general law, nor withwut the consent of the persons holding the larger amount in value of the stock first obtained, at a meeting to he held after sixty days' notice, given in pursuance of law." It seems to me that we can well atTord to copy a Constitution, such as was formed by the men who sat in Convention in Pennsylvania. The present section is a direct blow at the whole system of corporate compa- nies in the State of California. A great talk is made here about inno- cent purchasers. Mr. President, in my humble opinion, I consider this talk about innocent purchasers as all bosh and bombast. Innocent pur- chasers! If men desire to be innocent, then let them not be stupid and foolish. If a man desires to purchase a promissory note, he naturally looksintothefinancialreaponsibilityofthemakerand the indorsersof that note. He naturally desires to ascertain whether the note is based upon any financial responsibility. If ho does not do that, if his own igno- rance and stupidity leads him to purchase a worthless piece of paper, he must suffer the consequences. We never can. make laws to protect fools against their own foolishness. Talk about innocent purchasers 1 If a 56 man desifts to be an innocent purchaser, let him be a sensible pur- chaser. It is very well known that the great bulk of the stock of cor- porations ia negotiated, not directly by the ofBcers of the corporation, but is negotiated through the medium of brokers or agents. Whoever desires to buy stock, let him examine whether the act creating the stock is a valid act in law. Let the business be done through the medium of banks of financial ability ; let them go to institutions and to men that they know to be solvent, and before purchasing let them require these negotiating agents to indorse the pa|>er. Then, if the paper is worth- less, they can come back upon the indorsers. There is no trouble about protecting innocent purchasers at all. And if the history of the railroad corporations of the United States, if the history of the corporations of the State of Caiifoniia is studied, it will he found that the great evil always has been the watering of stock. And it is to prevent the water- ing of stock, to prevent the fictitious issue of stock, that we desire to have this section inserted in the new Caustitulion. The gentleman from Sacramento, Judge McFarland, Bays that a num- ber of corporations are started in this State without any principal at all except a place to prospect. Mr. President, I have known a number of corporations to be started and run in this State for a number of months that did not even have a place to prospect. I know one company that was called the English ){me. When a certain newspaper in San Fran- cisco sent its correspondents, to ascertain where that mine was located, they were unable to find that they had any location or that they had any place to proAeet at all, and yet their stock sold in San Francisco, and was (turcnased. It is in order to break down this wildcat system of doing business, and in order to protoct the citizens of this State' and all other States against these corporations without any financial ability whatever. If a corporation desires to do business let it do business as a copartnership does business. Let it have money to do its business with, and let it have something to represent its capital stock; and if it has no financial ability, no principal, no means, then let there be no corporation. BEMARK8 OF MB. BROWM. Mr. BROWN. Mr. Chainnau : We have heard this matter discussed to a considerable extent, and it appears to n\e that new light has been shown with regard to the principles set forth in section eleven. Now, for instance, when we read this, on the first few lines, which has been under discussion, we cannot discover anything inconsistent or anything that is sinister in its tendency. It appears to be broad, correct, honest, and what might be wished (bn " No corporation shall issue stock or bonds except for mopey paid, labor done, or projK-rty actually received." That looks like starting out upon a solid basis. It looks after the old stylo of honesty, and it would appear at first review that it would be ac- cepted and acted upon, but we find that there are members who can see something deeply sinister in it where common minds cannot, and if such gentlemen can make it plainly appear that there is something wrong, something radical, something sinister in its tendency, it is well for us to start out and act accordingly. But if, afler due effort, there is a failure in that regard and nothing really wrong, nothing inconsistent, nothing cor- rupting, nothing contrary to our Constitution is shown up, why I think we may pronounce that nothing has been accomplished against what is here presented. Now, for instance, with regard to another portion of this section eleven: "And all fictitious increase of stock or indebtedness shall be void." That looks to be correct; and, in fact, the gentleman from San Francisco, Mr. Barnes, says that it is a principle that does exist. Well, now I am satisfied that the minds of the membcrsof thjs Onvention would inquire if this is a principle in law, why is it that it becomes so dangerous and subversive in section eleven, as to change the order of business. It is said that it would change the order of business. Now we are desiring to change this, and we think this reaches it. In the midst of every- thing I am convinced that this has been thought of before. Here, gentlemen say, that men com<» here and chaw the stump of a lead pencil, and think upon matters for a moment, and conclude that they know more than men whose mighty minds have been engaged in the investigation of these matters. Now, for instance, I have nothing in particular to say with regard to the men who have sat in any Con- vention, but { would suppose that the gentleman would admit at once that the men assembled even in the Constitutional Convention of Mis- souri would know as much as membei's who have chawed a pencil here for a short time, and who oppose the measures which are presented here. We have also the Convention of Pennsylvania, %vhich has investigated these things. These new deleterious effects that he speaks of as being introduced into business, have not been dragged to light before this body to show that there is something injurious in the article under discus- sion. With these matters before us, and being convinced that nothing has been shown against the proposition contained in section eleven, I am in hopes that the membcrsof this Convention will consider it on its true merits, not particularly because it has been adopted in the Constitution of Missouri, not particularly because able men in Pennsvlvania have adopted the same thing, but because it will prevent fraud in the State of California. THE PREVIOUS <]DESTI0N. Ma. KEYES. Mr. Chairman : I move the previous question. Seconded by Messrs. Lindow, Larkin, Smith, of Santa Clara, and Smith, of Kern. The main question was ordered, on a division, by a vote of 52 ayes to 3tf noes. The CHAIRMAN. The main question has been ordered. The first question is on the amendment oSered by the gentleman from Sacra- mento, Mr. McFarland, to strike out section eleven. The amendment was lost. The CHAIRMAN. The question now recurs on the amendment offered by the gentleman from San Francisco, Mr. Barnes. The Secre- tary will read the amendment for information- Digitized by' Google 442 DEBATES AND PROCEEDINGS Saturday, Th« SECRETARY read: " Ko corporation shall issue capital stock or any evidence or corporate indebtedness except for mone^ paid to, work or labor done for, or prop- erty actually received by it in the course of its business. No corpora- tion shall increase its capital stock, except for the acquisition of property or for the apportionment of property among its stockholders actually held and owned by said corporation at the time of such increase. Ko corporation shall create any indebtedness, except as herein provided for the issue of capital stock; provided, that nothing herein contained shall aSect any bona fide holder for value of any evidence of corporate indebtedness." The amendment was lost. Mr. WILSON, of San Francisco. I desire to offer an amendment. Mr. BEERSTECKER. Can an amendment be offered nowt Tbk chairman. The Chair has not heard the proposition of the gentleman from San FranciscoT Mr. WILSON, of San Francisco. I desire to offer ikn amendment to section eleven. Thk CHAIRMAN. That is one of the anomalies of having the pre- vious question in Committee of the Whole. There can be no more amendments. Mb. WIIiSON, of San Francisco. I simply give notice that I will offer an amendment to line three, section eleven, after the word "void," to say that nothing herein contained shall affect bo)yi fide holders for value paid without notice. A PKOTIST. Mb. REYNOLDS. I rise to a question of privilege. I desire to enter my protest against the action of the C>>mmittee of the Whole in ordering the previous question. It is subversive of the popular rights. It is sub- versive of the rights of the minority in the committee. It is subversive of the rights of the minority of the Convention. Mr. TINNIN. I rise to a point of order. It is that the protest must be sent up in writing. Thk CHAIRMAN. The rule allows it either in writing or verballv. Mr. BEERSTECHER. The previous question being called, I think cuts off all debate upon all subjects. The CHAIRMAN. The previous question has already exhausted that section. The gentleman will state his question of privilege. Mr. REYNOLDS. I have nothing more to say. I have stated my whole objection. • Mb. AYERS. I rise for information. Is there ^ny such thing as a question of privilege in the Committee of the Whole? Mb. REYNOLDS. Is there any such thing as the previous question in Committee of the Whole? The CHAIRMAN. The gentleman will state his question of privilege if he desires to speak to it. Mr. REYNOLDS. I have stated the whole of it. Tbb CHAIRMAN. The Secretary will read the next section. RLKCTIOit or DIRECTOB8 OF CUBP0RATIOK3. Tiir SECRETARY read: 8kc. 12. The Legislature shall provide by law that in all elections for directors or managers of incorporated companies, every stockholder shall have the right to vote, in person or by proxy, for the number of shares of stock owned by him, for as many persons as there are directors or managers to be elected, or to cumulate said shares and give one candi- date as many votes as the number of directors multiplied by the num- ber of his shares of stock shall equal, or to distribute ihem, on the same Srinciple, among as many candidatea as he shall think lit; and such irectors or managers shall not be elected in any other manner. Mr. ESTEE. Mr. Chairman : By direction of the Committee on Cor- porations, I offer an amendment to that section. Thk SECRETARY read : " Provided, that cooperative societies may be formed under general laws, which may provide by by-laws of their own for limiting the representa- tion of sliareholders of their stock, and the number of shares tliat may be held ; and the Legislature shall enact such laws as may be necessarv fbr their faithful management and protection, and may ifmit the liabil- ities of their members." Mr. WILSON, of First District. Mr. Chairman : I have another amendment, not at all in conflict with the one oflered by the Chairman of the committee, to this effect: " Add to the section, 'and in elections for directors and trustees of cor- porations having no capital stock, each member may cast the whole number of his voles for one candidate, or distribute them upon two or more candidates, as he may prefer.' " Section twelve, as reported by the committee, contains a very impor tant and beneficial proposition, and one which has lately been acted upon, allowing parties to cumulate their votes upon one candidate, instead of scattering them. The section is good so far as it goes, but persons may be members of corporations and not stockholders. Now, this principle is not applied by the committee to corporations of that character. I think theprincime ought to be extended also to that class of corporations. I find m the Fennsvlvania Constitution that the same principle is extended to that class of corporations — as well to the ordi- nary mone^'ed corporations as to the beneficial and, benevolent societies, Now, if this principle is good in one case it is good in the other. The Constitution of Pennsylvania is broad enough to cover all that class of corporations. Section four of article sixteen reads as follows: "In all elections for directors or managers of a corporation, each mem- ber or shareholder may cast the whole number of his votes for one can- didate, or distribute them upon two or more candidates, as he may prefer." There it applies to all corporations — as well to this class as the other. The object of my amendment is to make it apply to other corporstieni than merely pecuniary corporations. bkmarks or MB. blackmbr. Mb. BLACKMER. Mr. Chairman: I desire to say a word upon the amendment as proposed by the Committee on Corporations. It is a fart that there are a great number of people in different parts of the State who have desired to organize cooperative societies, wherein they could distribute the profit arising from the business; if it was a mercantile business, between those who patronised the corporation and also those who had furnished capital for it, it was found nert^asary, in order to keep these corporations, when they came to be prosiierous, in the bands of those who were receiving the benefits, to limit the votes of stock- holders to a certain number, and not have it based upon the amount of 8t4>ok that they owned. This was to prevent large stockholders, when the thing came to be a suoreiw, stepping in and buying up a majority of the stock, and then control it in their own interest. The last Legisla- ture ailoiited a provision which covers the ground covered by the amend- ment offered by the Committee on Corporations, that these corporations may 1)0 foniied, and by their by-laws regulate the number of votes that each st/H'kholder might cattt at an election ; ano8ition by Judge McFarland is well taken. Sec- tion four of the report of the Committee on Corporation, provides that, "the term corporations, as used in this article, shall be construed to include all asstx-iations and joint stock companies having any of the powers or privileges of corporations not poi»essed by individuals or partnerships." I would inquire of the Chairman of the Committee on Corporations, if a coO|)erative society would not necessarily be a corpo- ration, and a corporation a cooperative society, under this definition. All of us who [Kiesess a knowledge of current history know that this plan of corporate functions are not being tried alone in this Stale. In fact it did not originate here. It is an importation from abroad. I doubt not that the ideas concentrated and crystallized in this term have been already and will in the future prove to be very beneficial, and the case, in the mind of the Chairman of the Committee on Corporations, is all well enough in itself, but will involve the Constitution in an inextri- cable confusion if section four stanfis as we have passed it. In other words, we shall l)e saying that corporations may elect their trustees and managing Boards only in one way, which we have prescribed, or which we propose to prescribe in section twelve, and then go on and say thata certain class of these corporations may adopt their own rules. Now that is to break down the rule itself. I am in favor of this rule as it is contained in the committee's report of section twelve, with the amendment proposed by the gentleman from San Francisco, Mr. Wilson. I see no objection to that. I think the language adopted in the Constitution of Pennsylvania, from which he read, probably is a better form than that proposed by himself. It can be easily conformed to that mode of expression. But the object of that is sufnciently accomplished by his proposed amendment. I am not in favor of the amendment suggested by the Chairman of the com- mittee, because it breaks down the rule which the Convention hu intended to establish in the government of corporations. Now, what is the reason? These managing Boards of a corporation constitute the authority by which all its business is transacted, all its property is acquired ana managed, all its privileges and franchises, when they pos- sess such, are to be exercised. So it is intended that all the stockholders who may not be familiar with the inside manipulations of the corpora- tion may be enabled to consolidate the number of votes that they are "entitled to cast upon one or more of their managers, was to obtain at least a minority representation in that Board of mana^rs. Now, sir, that reason is Just as cogent in respect to the cooperative class as anr other class. The avowed principle upon which all these corporations are .founded is upon the cooperative principle. So for as they depart from that they nave departed from the principle of corporations. U would be dangerous to break in upon this rule. There would be no reason for the adoption of section twelve. I think the amendment offered by the gentleman from San Francisco, Mr. Wilson, is riebi, though the language in the Pennsylvania Constitution is preferable, bat as to the other, I trust that it will not be adopted. BEMABKS or MB. BABBOCB. Mr. BARBOUR. Mr. Chairman : I only rise for the purpose of speaking to the question of the general propriety of provisions coneera- ing cooperative societies. I have not undei^eiad the amendment ofiered Digitized by V^jC J Nov. 16, 1878. OF THE CONSTITUTIONAL CONVENTION. 443 by the gentleman from San Francisco, Mr. Wilson. The minority of the Committee on Corporations introduced a proposition, at the request of a number of friends of the principle of cooperation. It is a subject that I confess I do not fully understand, but it is complained that the present constitutional provision is in their way ; that they are subject always to that difficulty with regard to representation, where the repre- sentation is upon shares. I believe that the main feature of co<>perative societies is a vote regulated by the membership. If I understand rightly they are an extremely useful society. They are the means of combining the labor of persons of small means into a society where every member is entitled to just as much voice as every other member. And another principle Is that members are not allowed to accumulate into their own hands, more than a certain proportion of the principal of the concern. They have sometimes succcedcniodeling that amendment and applying it elsewhere, at the request of those gentlemen who take a special interest in it, I would ask leave to withdraw the amendment that I profX)sed. I ask leave to withdraw it, with the understanding that I may present it again. Mb. west. I object Ma. IIAGER. I would suggest to the Chairman of the Committee on Corporations just to |)ase over that section for the present. Mb. ESTEE. I do not suppose there is any objection. Mb. west. Mr. Chairman: There is a diversity of interest that would be affected by the adoption of those several amendments, and in order that the committee may have the privilege of reconsidering the proposition, and harmonizing these different and adverse interests, I move that the committee rise, report progress, and ask Ipave to sit again. I do this in order that in Convention we can refer this back to the Committee on Corporations. Mb. SCUELL. I move that the further consideration of the section be passed. Mb. west. If it is the sense of the cpmmittee we can pass these amendments for the time being. I will withdraw my motion. Mb. SCIIELL. My object is that it may be referred back to the oom- roiUee when we get back into Convention. The motion prevailed. The CHAIRMAN. The Secretary will read section thirteen. Thb SECHETitflY read : 8(c. 13. The State shall not subscribe to or be interested in the stock of, or in any manner loan its credit to any person, company, asso- ciation, or corporation. Mb terry. Mr. Chairman : I offer a substitute for the section. " Sbc. 13. The Legislature shall have no power to give or to lend, or to authorize the giving or lending of the Credit of the State, or of any county, city and county, city, township, or other political corporation or subdivision of the State now existing, or that may be hereafter estab- lished, in aid of or to any person, association, or corporation, whether municipal or otherwise, or to pledge the credit thereof in any manner whatever, for the payment of the liabilities of any individual, associa- tion, municipal or other corporation whatever; nor shall it have power to make any grant, or authorize the making of any grant of any public mone^ or thing of value to any individual, municipal or other cor- poration whatever; and it shall not have power, to authorize the State, or any political subdivision thereof, to subscribe for stock or to become a itodiholder in any corporation whatever. TUB CHAIRMAN. The question is on the substitute offered by the gentleman from San Joaquin. RKMABKS OF MR. TERBY. Mb. terry. Mr. Chairman : That is the clause agreed upon by the Legislative Committee, and it seems to me to be more full. The propo- sition reported by the Committee on Corjiorations other than Municipal does not go far enough. If it is important that the State should not become a stockholder in these corporations, it is equally important that counties and cities should not be permitted to aid them. We know it has been done in this State, and we know that it has resulted in great loss to counties, cities, and municipalities. It is therefore desirable to prohibit it altogether. Mr. ESTEE. The general principle is correct. I did not hear the reading distinctly, but if it is intended to prevent a city like San Fran- cisco, for instance, from acquiring and owning its own waterworks, I cannot sustain it. Mr. TERRY. It only prevents it from owning stock in a corpora- tion. Mr. ESTEE. Does it not prohibit it from pledging the credit in any manner? Mr. TERRY. In aid of any corporation. Mb. ESTEE. In the fifth line, I do not know what that means. I would object to anything that will restrain large cities like San Fran- cisco from owning its own waterworks. I think it is correct in princi- ple, provided that oonstruclioii cannot be "put upon it. Mb. terry. It cannot have any effect to prevent the city from buying and owning its own waterworks exclusively. It prevents the city from becoming a stockholder in any private corporation, and noth- ing else. Me. BEERSTECHER. I would inquire if the substitute is section thirty-eight of the report of the Committee on Legislative Department. Mr. terry. Yes, sir. Mr. ESTEE. I think there is probably no objection to it. RKMABKS OF MR. UAOEB. Mb. HAGER. Mr. Chairman : I can state in this connection, that the Committee on City, County, and Township Organization had before it this section, and have recommended the following: "Skc. 21. No county, city, town, or other public or municipal cor- poration, by a vote of its citizens or otherwise, shall become a subscriber to the capital stock, or a stockholder in any corporation, association, or companv, or make any appropriation, or donation, or loan its credit to, or in aid of, any person, corporation, association, co.mpany, or> insti- tution." We have already adopted the principle that is there offered. It is substantially what is here offered. I mention this for the purpose of announcing to the Convention the fact that the committee havingcharge of this matter have agreed substantially upon the provision here offered. Mr. ESTEE. I think it is correct, and I certainly do not object to it. I hope the amended proposition wilt be adopted. Thb chairman. The question is on the substitute proposed by the gentleman from San Joaquin. RKMABKS 'or MR. HRBRINOTON. Mb. HERRINGTON. Mr. Chairman : I am opposed to the insertion of that section in lieu of the section reported by the Committee on Cor- porations. This is not the proper place for the provision as it is pro- posed by the gentleman from San Joaquin. Very many of the provisions contemplated in that amendment no doubt will be inserted in the Con- stitution. But the proper place is in the Legislative Department, where it has been placed by that committee. I Will read section twenty-two. I know what I am*talking about. It reads as follows: " Skc. 22. No money shall be drawn from the treasury but in conse- quence of approppations made by law, and upon warrants duly drawn thereon by the Controller; and no money shall ever be appropriated or drawn from the State treasury for the use or benefit of any corporation, association, asylum, hospital, or any other institution, not under the exclusive management and control of the State as a State institution, nor shall any grant or donation of property ever be made thereto by the State. An accurate statement of the receipts and expenditures of pub- lic moneys shall be attached to and published with the laws at every regular session of the Legislature." Now, I submit that section twenty-two is in its proper place, and its provisions are proper. Now, section thirty-eight has reference to the powers delegated to municipal corporations denying the power of the Legislature to delegate any power whereby they should be permitted to invest money in these corporations in any way. I submit that the pro- vision, as it IS here reported by the C/ommittee on Corporations, ought to be adopted. It is clear and perfectly applicable to the purposes designed by the committee, while the other provisions of the proposed amend- ment are not as proper as under the bead of legislative department. The effect of its being separate only makes it more clear as to the real intent and purpose of the provision. When you undertake to restrict the legislative power under the head of corporations, you are not apply- ing it in the proper plac<>, and I submit that this amendment should not be adopted. The provisions are adequately provided for in sections twenty-two and thirty-eight of the legislative department, and that is the proper place. Mr. grace. Mr. Chairman : Rule Two says the Convention shall take a recess from twelve o'clock until two, and it is now twelve o'clock. Mb. WELLIN. 1 raise the point of order : the Convention is not in session. Rule Sixty says this rule shall not bo suspended without a two- thirds vote, and one day's notice. Now, the vote by which this motion was carried was not a two-thirds vote of the membera present, and I therefore move that the committee rise, report progress, and ask leave to sit again. Digitized by' , ana asK leave ro Google 444 DEBATES AND PROCEEDINGS Saturday, Mr. INMAN. I suggest that the gentleman go out and get his lunch. Mr. BEERSTECIIEK. There was no objection at the time. Tlje motion was loet. KRHARKS or MB. VILJIOIi. Mr. WILSON, of First District. Mr. Chairman : The amendment as proposed by the gentleman from San Joaquin has mach in it that is unobjectionable, but it has some things in it which are hardly proper to act upon now, if I understand it. I was not aware that any such amendment would be presented to the Convention this morning. I had examined section thirteen as reported, but I had not examined section thirty-eight of the legislative report, now before us as a substitute. If I understand it. upon a casual reading, it has a wide scope. It reads: "8kc. 38. The Legislature shall have no jwwer to give or to lend, or to authorize the giving or lending, of the creoration or subdivision of the State, now existing, or that may be hereafter estab- lished, in aid of or to any person, aumciation, or cor|x)ration, whether municipal or otherwise, or to pledge the credit thereof, in-ony manner whatever, for the payment of the liubilities of any individual, associa- tion, municipal or other corporation, whatever; nor shall it have power to make any grant, or authorize the making of any grant, of any public money or thing of value to any individual, niunici)>al or other corpora- tion, whatever; and it shall not have power to authorize the State, or any political subdivision thereof, to subscribe for stock, or to become a stocknolder in any corporation whatever." Now, it se^ms to me, under that portion which savs, " nor shall it (the Legislature) have power to make any grant, or autiiorize the making of any grant, of any public money or thing of value to any individual, municipal or other corporation, whatever," the Legislature would be deprived of the power to aid any benevolent institution — for instance, orphan asylums — that now receive donations from the State. I do not thmk the Convention expected this section would be precipitated upon them this morning. It is outside of the ordinary run of the busi- ness. We are not considering that department, but the de|>artment on corporations. We are considering the matter of corporations other than muuicipal; and this now comes m to apply to municijial corporations, and the powers of the Legislature in certam matters which have nothing to do with private corporatitms or corporations other than municipal. This morning, if I were called upon to vote on this, I would vote against it, for this reason : that I am not prepared to say now that this State should not assist the orphan asylums, deaf, dumb, and blind asylums, and other benevolent institutions; and if this section is passed in the language in which it is couched, it certainljr would cut off all aid to such institutions. There are other portions of it with which I agree; but I am not now intending to discuss the section, but merely to call the attention of the committee to the fact that it involves this important question. For that reason, and because I want to reflect upon this matter, I move that section thirteen and the amendment be temporarily postponed. RIMARES or MR. HALB. Mr. hale. Mr. Chairman : I hope this motion will not prevail. I do not see any reason why we should pass it. I do not know why this committee is not as well prepared now to discuss this nuestion as they will be at any other time. I aiti quite willing to say tnat I shall vote for this amendment, because it wul do precisely what the gentleman who last spoke fears it will do. -Now, if tnere is any objection this is as good a time to hear it as any other. This is the fiftieth day of the Con- vention's session, and it is high time that these matters should be passed upon. I am quite free to admit that I shall vote for this amendment, because it will have precisely the effect that the gentleman attributes to it. In fact, the language is very explicit. There if not much chance for any one to mistake its meaning. Its true inwardness is expressed in its words. It is intended to cut off from receiving State aid, those institutions which the gentleman has mentioned.* I do not know of any better time than the present to discuss the question. If gentle- men have anything to say, let them say it now. If tliere are any reasons why the system of the past twenty years should be continued, let those reasons be given here and now, so that we may reach a vole. RRMARK8 OF MR. BARNR8. Mr. BARNES. Mr. Chairman: The amendment 8Uf;geeted by the gentleman from San Joaqiiin is not in order, because it is not germane to the section under consideration, which is confined simply to the (ques- tion of the State becoming a stockholder, or loaning its credit to private corporations. The proposition of the gentleman involves not merely the giving or loaning the credit of the State, but also the credit of any city, county, township, or other political subdivision of the State, to any mrson, association, or corporation, whether municipal or otherwise. That is entirely a different subject. That matter was included in the Preamble and -Bill of Rights — section twenty-two, t think — and it was by consent stricken out or withdrawn. Mr. terry. Because it was in the report of the Legislative Com- Mr. BARNES. Well, it formed a part of the Bill of Rights. Under the bead, now, of Corporations other than Municipal, it is sought to incorporate a clause here which cowers, not merely these quasi corpora- tions, but also municipal corporations, and also cities, counties, and towns all through the State, and also covers the question of making donations, which is a very broad question, and not at all involved in the question under consideration. There is no other possible limitation upon the legislative power that under this mode of amendment might not be introduced and debated here. 1 hope it will be allowed to remain where it belongs. My point of order is that it is not germane to the subject under consideration. Mr. HOWARD. Mr. Chairman: If it is in order, I more to amend the motion of the gentleman from San Francisco Mr. CHAIRMAN. There is a point of order to be disposed of first Section thirteen provides that, "the State shall not subscribe to or be interested in the stock of, or in any manner loan ita credit to. any per- son, company, association, or corporation." Rule Twenty-eight pro- vides that," no subject, different from that under consideration shill be admitted under color of amendment." The Chair is of the 0|>iiiiaD that the subject-matter is not differant from section thirteen. The point of order is overruled. Mr. HOWARD. I agree with the gentleman from Santa Clan, that this section should await action until we reach the report of the Com- mittee on Legislative Department. I move that section tbirteeo be stricken out. The CHAIRMAN. There it a motion now pending that section thirteen and the amendment offered by the gentleman from Stn Joaquin, be temporarily postponed, and that the committee proceed to the consideration of section fourteen. Mr. HOWARD, is not my amendment in order? The CHAIRMAN. No, sir. Mr. HOWARD. I think it had better go out or be postponed, becaiue it is too weighty a subject to be considered m haste. Tbr CHAIRMAN. The question is on the motion to postpone tem- porarily. The motion prevailed on a division vot«, ayei — 13 ; noes 38. Mr. TINNIN. Did a majority voteT The CHAIRMAN. There were eighty-one votes cast. TheSecretan will read section fourteen. The SECRETARY read : Sec. 14. Every corporation organized or doing business in this State, under the laws or authority thereof, shall have and maintain an olSce or place in this State /or the transaction of its business, where tninslen of stock shall be made, and in which shall be kept, for public inspe^ tion, books in which shall be recorded the amount of capital stock sub- scribed, and by whom ; the names of the owners of its stock, and the amounts owned by them respectively ; the amount of stock paid in, and by whom ; the transfers of said stock ; the amount of its assets tud liabilities, and the names and place of residence of its officers. Mr. E.^TEK Mr. Chairman: I have in my hand an amendmtnt which has been ogreed upon by the Committee on Corporations other than Munici|)al. It merely changes a few words. I move that it be substituted for the original section. The SECRETARY read : "Sec. M. Every corporation, other than religious, educational, or benevolent, organized or doing business in this State, shall have and maintain an oilice or place in this State for the transaction of its busi- ness, where transfers of stock shall be made, and in which shall be kept, for public inspection, books in which shall be recorded the amount of capital st4>ck subscribed, and by whom; the names of the owners of its stock, and the amounts owned by them respectively; the amoant of stock paid in, and bv whom ; the trausfera of said stock ; the amoant of its assets and liabilities, and the names and place of residence of its officers." The chairman. The question is on the amendment proposed br the Chainnan of the Committee on Corporations other than Municipsi. Mr. SCHELL. Mr. Chairman : I move to amend the amendmentbT striking out, in line four, the word " public," before the word " inflec- tion." Tbe chairman. The question is on the amendment to the amend- ment. RRMARES OP MR. SCHELL. Mr. SCHELL. Mr. Chairman: They should be open for inspection by any person interested in the stock. I think it is entirely too broad. My recollection is, that in the committee that word "public" was stricken out on my motion. I think it is improperly in there no«. Possibly I am mistaken, but I remember that I made the Motion to strike out tbe word " public." and I think it was stricken out; and my understanding was that the motion was carried. I think the section is entirely too broad. Under our statute, under the Code, every stock- holder of a coiporation has a perfect right to inspect the books of the corporation and see who has made transfers of stock and to see who the Btockholdera are. This accomplishes all that is desirable. I thinli it is too broad, when we say that every man, whether he has any interest or not, shall be entitled to come into the office and examine theboolu of the corporation. I do not think he has any more right to do it than he has to come into my private office and demand an inspection of my books, in which he has' no interest and no possible right. I think it is in there impro])erly ; but whether so or not, it ought to be out REMASER or MR. WHITE. Mr. WHITE. M^ recollection is that Mr. Schell dM put that amend- ment, and we voted it down. I recollect it was the subject of consider- able discussion, and we concluded it would be one of the best means of preventing fraud, and enable the persons who wish to invest in certain companiesw judge whether they should do so or not, and so that when corporations put their stock on the market everybody will know the position. That is my recollection, that the Judge's amendtnent was voted down. I hope the word will not be stricken out. It is one of the most important words in the whole section. Mb. HOWARD. That is my recollection also. REMARKS OF MR. PILOBEB. Mr. FILCHER. Mr. Chairman: It seems to me that if we strike out that word, as suggested by the gentleman, we take the vitality on' of the whole section. You might as well strike out the whole section if you are going to make that discrimination. Yon might as wdl have nothing at ail in there. The books are already open t» inspection by those directly interested. The stockholders may go in at any time ana t^ Nov. 16, 1878. OF THE CONSTITUTIONAL CONVENTION. 445. inspect the books and accounts. I hopr the amendment will not be adapted. BKUARKS or UB. HILBOKK. Mb. niLBORN. Mr. Chairman : Is it the deliberate purpose of this aectinn to open the doors of all the oorporatlona in this State to a crowd ol curious persona who may take a notion to look at the books? I would like to know when and at what lime the business of the corpora- tion is to be done, if a crowd of men make a break into these offices at any time they see fit and demand to look at the books? I would like to know when the business is to be done? As the law now stands, any- body who has any interest in the corporation may examine the boolcs at any time they may see fit; but I hope this Convention will not do buch a foolish thing as to make the books public property. RBMARES or MB. CROSS. Mk. CROSS. Mr. Chairman : There is one portion of this section, it eeems to me, which is of importance. Section three, which we have already passed, is this: " Eanh stockholder of a corporation, or joint stock association, shall be individually and personally liable for his proportion of all its debts and liabilities." Now, bow is any person to whom there is an indebtedness to know what stockholders are indebted to him, unless he can obtain that infor- matiun in some way? Now, sir, they must inspect the books in order to know who the stockholders are, so as to enforce the rejponsibilitv. There must be some way of ascertaining who the stockholders are. f f this sec- lion is adopted they will have the means of obtaining that information at all times. The section provides: "Sbc. 14. Every corporation organized or doing business in this State, under the laws or authority thereof, shall havo and maintain an office or place in this State for the transaction of its business, where transfers ofstock shall be made, and in which shall bwkept, for public inspection, books in which shall be recorded the amount of capital stock subscribed, and by whom; the names of the owners of its stock, and the amounts owned by them respectively; the amount of stock paid in, and by whom; the transfers of said stock ; the amounts of its assets and liabili- ties, and the names and place of residence of its officers." Now, it seems to me that another great advantage is this : that if par- ties should wish to become owners in the corporation, they should have the privilege of investigating the affairs of the corporation, so as to know how to invest. I think it will have a tendency to make these corporations more honest in their accounts, and they will not be so likely to charge so much to " India rubber account." BRMABKS or HR. BARKIS. Ms. BARNES. Mr. Chairman : I understood the amendment of the Chairman of the Committee on Corporations to make an exception in &vor of benevolent and charitable institutions. It reads: "Sbc. 14. Every corporation, other than religious, educational, or benevolent, oreanized or doing business in this State, shall have and maintain an office or place in this State for the transaction of its business, where transfers of stock shall be made, and in which shall be kept, for public inspection, books in which shall be recorded the amount of capital stock subscribed, and by whom ; the names of the owners of its stock, and the amounts owned by them respectively ; the amount of stock paid in, and by whom ; the transfers of said stock; the amount of its assets and liabilities, and the names and places of residence of its officers." I think it would be much better to say, " corporations having capital stock." That covers it. These societies do not have capital stock. Churches, so far as my limited experience goes, have no capital stock. There is another objection to this, if I understand it. " Every corpf>ra- tion organized or doing business in this State shall maintain an office for the transaction of business, etc., where transfers of stock shall be made." Now, that refers to two classes; one class organized under the laws of this State, and another class doing business in this State. I sup- pose that covers every case — foreign insurance companies, the Liverpool, London, and Globe, and all the companies doing business here. They must all get and keep an office in this State, where transfers of stock shall be made. Then they are to keep books for public inspection. It seems to me that there aro several words which do not belong there. The word " and " should Ije sutetituted for the word " or," so as to refer to corporations native and to the manner bom. But this covers the case of every corporation, wherever organized, that does business in this State. It would compel them to keep a record here of all transfers- — - Mb. FILCIIBR. Are there not corporations doing business in this State that have no capital stock, and yet do business? Mr. BARNES. I know of one recently exploded in San Francisco. If it has no capital stock, why then you cannot require them to make transfers of st)ck ; it cannot transfer what it does not have. It seems to me that it should relate to corporations organized and doing business in this State, and having capital stock, and I move to amend by substitut- ing for the word "or" the word "and," in the first line. Tbr UUAIRMAN. There is an amendment to an amendment pending. REMARKS or MR. BSTBE. Mr. ESTEE. Mr. Chairman : The committee, by this amendment, Krovides that every corporation other than religious, educational, or snevolont, doing business in this State, shall have and maintain an office, etc Now, the criticisms of Col. Barnes, upon the wording there, in relation to foreign' corporations, I think will convince every thoughtful man that we should compel them to have and maintain offices in this State. Why not? Why, for instance, if the Liverpool. London, and Globe Insurance Company is perfectly solvent — why should not the people of this State who patronize it, know the stockholders. Also the iMOion and San Francisco Bank — why are we not just as much entitled to know who the stockholders are, and how much stock they have, and how much is paid in, and by whom, as we have to know the same things about the Bank of California, or any of the banks incorporated uudor our own laws. This is a proposition that seems to strike me as just and reasonable. I think we ought to have the right to examine their books. Mr. BARNES. I did not suppose for a moment that it was anjrthing more than a misprint. If that is the idea it will have to be considered ' a little, because it will be impracticable to require corporations organized in Great Britain, with a capital of thirty-five or forty millions of dollars, to comply with the mandates of this provision. It is ridiculous. Who will be any the wiser bv reading over the list of names of stockholders? How will we know whether they are responsible or not? What does this section mean ? Does it mean that these corporations shall keep a transfer office in San Francisco? Mr. ESTEE. It means just what it says : " Shall have and maintain an office in this State for the transaction of the business." That is required under the present law — " where transfers may be made." Mr. BARNES. Wh^ don't you read it as it is — " shall be made ?" Mr. ESTEE. Yes, sir; that is a better word. I accept the oorrectjpn. Where transfers of sl^wk shall be made. That is the proper wording — " shall be made," and iu which shall be kept books for public iu8j)ection. The section reads this way, and says just what it moans, and nothing else: "Sbc. 14. Every corporation, other than religious, educational, or benevolent, organized or doing business in this Ktatc, shall have and maintain an office or place in this Slate for the trausaction of its busi- ness, where transfers of stock shall be made, and in which shall be kept, for public inspection, books in which shall be recorded the amount of capital stock subscribed, and by whom ; the names of the owners of its stock, and the amounts owned by them resjiectively ; the amount of stock paid in, and by whom; the transfers of said stock; the amount of its assets and liabilities, and the natnes and place of residence of its officers." We are entitled to this information. The people of Sun Francisco are entitled to know how much of the capital stock of the London and San Francisco Bank is subscribed. That institution no doubt is perfectly responsible, but we claim the same right to investigate for ourselves, as we do in regard to an^ other bank located there. I claim that we should treat foreign corporations and local corporations exactly alike, and theirs should not be put on a more favorable oasis thai^ours. We do business with them, and their securities and their business should be known just as much as the affairs of our local corporations. Mb. BARNES. Why? Mr. ESTEE. Because it is a business proposition, that we should know just as much about them as we do about our own corporations. They come here and do business. We deal with them ; we trust them, and we have a right to know. Mr. B.\RNES. What object could there be in knowing the uames of the stockholders? We would not know whether they were responsible men or not. Mr. ESTEE. Of course that is one object, but not the entire object. We want to know who the men arc, where they live, and all about it. Mr. BARNES. What sort of good will it do a man to know who the stockholders are in the London and Globe Insuraqoe Company, who are scattered all over Great Britain. Mb. ESTEE. We may nut know as to that, but we should know as to a great many other insurance companies scattered over different sec- tions of this Union. We want to know how much stock has been paid up, and the .names of the owners of this stock. It is true we may not know them ; we may not know whether they are responsible or not, but we might go to people who are well known in the commercial world — in>ew York, Boston, Liverpool, and London. Itsays: "and the amounts owned by them respectively." They might publish a circular stating that well known capitalists of London own stock in the com- pany. A great many business men might say, they are perfectly respon- sible, and when we come to look at the books it might be found that these capitalists did not own any stock. " The amount of slock paid in, and by whom ; the transfers of said stock." This is a general provision intended to apply to all corporations, and your committee thought it was just. If tne section can be improved, I shall be glad to hear any amendments or suggestions from the gentlemen who are finding faulK with it. REMARKS or MR. LABKIN. Mr. LARKIN. Mr. Chairman: I believe this section to be important to become a part of the Constitution. My experience as a legislator is that it has been heretofore impossible to get any information in relation to corporations. Tliey refuse to allow their books lo be inspected. Under the provisions of this section I have no fears of curious men annoying the companies, only those men who own stock, or those rep- resenting owners, would examine the books. People should have the right to know all about them, because they are all more or less inter- ested iu their actions — in the policy and success of these corporations. I deem the section just. It protects the people, and I believe it should be adopted as a part of the Constitution. sriEcu or mr. baokr. Mr. HAOER. Mr. Chairman : I am in favor of the section, provided it be made applicable only to corporations formed under the laws of this State. This State ought to have a genei-al supervision over, and control of her own corporations, and I am in favor of placing in the Constitu- tion provisions amply sufficient to effect this purpose; but the proposed section not only applies to all domestic corporations but also to alt for- eign corporations that may do business in this State. Now, suppose the Bank of England, or any other foreign corporation, should, for business purposes, have an agency in this State; ought we to require them to . Keep their records here, with their books of transfer, list of stockholdergr I ^ ^ t3 ■446 DEBATES AND PROCEEDINGS Saturday, etc., open to public inspection? It is idle to propose suob a thing when iUi acooinplishinent is entirely out of the question. There, too, are the foreign insurance companies of England, Scotland, Uennany, France, and the countries of the world over, as also of the other States of the Union, that have their olBces and agencies here, engageil in the business of insuring property for Oie benefit of our people. Would you require them to keep their records here, with all the information required by an exact compliance with this proj)os<>erative provision "which will prevent any foreign corporation from doing business in this State, and from the evil effects of which we cannot be relieved by future legislation. RKMAKKS or MR. HOWAKD. Mr. HOWARD, of Los Angeles. Mr. Chairman: I think I may point my friend to the example of a certain Uovernor of Rhode Island, who never spoke unless he had something to say, and always left off when he bad done. Now, I disagree with him on this protiosition altogether. These foreign corporations do not transact business nere for the purpose of accoininodatiiig our people, they come here for the pur- pose of making money — nothing else. Now why treat them any better than our own corporations? Why should tbey have any immunities which our home corporations do not possess? The object of this pro- vision is obvious; that the public may know who the paKies are that they are dealing with ; that they may know whether or not the corpora- lion is solvent, and tliat we may have some security for the business of the country. Why foreign corporations should not be compelled to give that information I do not know Mr. HAGER. We might require them, for instance, to deposit insur- ance money in order to do business. Mr. H0W.\RD. That does not go at all to the (question we are dis- cussing. Not at all. It affects it in nowise. Now it may be important to uB to have foreign insurance companies here. But it is not important to have those here who are not solvent, who are not trustworthy, who have no capital ; and we know that a great many of these life insurance companies have no capital, and are little better than frauds. Now, sir, there is no difficulty about corporations being able to comply with this provision, for I have never known one that did business on any kind of an honest basis, that did not give the names of thestockholdera, and culty whatever about this law. They are here for the purpose of mak- ing money. They do not exist here by law, they are here as a matter of comitv. Mr. \frlLSON. The directors are published, not the stockholders. Mr. HOWARD. I have.seen some that gave the names of stock- holders; it may not be a general custom. But there is no trouble about that thing. There.is no difficulty in their doing it. They are as able to do it as State institutions, and why they should not be required to do it I am unable to see. If they choose to withdraw from the country that is their business, but we shall not tolerate them here unless they are responsible, unless they have capital, unless they are solvent. It strikes me that it is our duty to see that they have capital. The pro- vision proposes that the pul>lic shall be enabled to obtain the necessary information to enable them to determine that fact, to determine whether the oorporatioD can be trusted or not. rrharks of MR. barnrs. Mr. BARNES. Mr. Chairman: One word more. This section hts in it more than is contemplated by the gentleman from Los Anfjtlts, General Howard. It requires now as it stands that every corpnratioii shall maintain an office in this State for the transaction of bluiues^ where transfers of stock shall be made, and that books for that purpose shall be kept, and in those books, which shall be open to public iuspw- tion, shall be kept all the dealings of the corporation. I would call his attention to this, that the only object we have in requiring books to be ke|>t is to show who are stock holders, in order that the cr^titors of the company may know to whom he has to look, and that is all of it It is not as a matter of ^neral information. This alticle does not come UDilily, and there is only a corp*>rate liability. You cannul hold tlie stooltbold- era liable because an agent comes here to do business. They hare no such provision as that. They have a limited liability .\ct, where the liability of the stockholder is prescribed in a certain way, not like ours. But it does not impair the security of the one who deals with theami- pany. It requires that they shall transfer their stock. They might do it and nobody know it. It is a useless change that accomplishes nu esrthly ; good to anybody. If it could be pointed out to us what good itcould d<>, ! it would be all well epough. The gentleman from Los Angeles says vc have a right to know if the company is solvent. WAI, sir, I appnil to any sensible man if the list of stockholders of the Liverpool, London and Globe Insurance Company were published, what man on Ibe fai-e of the earth — or this part of the earth— would know whether they were solvent or not? Who would know, and how would tbey know? They would be names we never have heard of. We would not Vno» them, and no living man in the State of California would be able tn itll whether they were solvent or not. Print the names of I»ndon dir«- tors, and who among us nould be any wiser than before? We know our neighbors in this State — whether they are good or not, or we think we do^thougb sometimes we get badly fooled on that. But I sty it can be of no assiittance to require a list of the directors in London, and a list of the stockholders in London, and a list of the transfers. Kren time a man bought or sold a share of stock, it would have to be shoirn on the transfer books in the San Francisco "oflSce. All the transfers that take place on 'Change in London, or Liverpool, or Hamburg, or Paris, would have to be notol on the agents' books here. Every time a stocli- holder dies in any of the great cities, the records of his estate niiis'. be forwarded here, in order that we may know who the administrauir sold his stock to, and when we find . out we know just as much as we did before, and no more. Now, what sense is there in it? The effect of it. as Judge Hager has said, will bo. to drive this desirable class of business men out of the State. As a matter of common sense this provision should be confined to the creatures of our own laws. The chairman. The question is on the amendment offered by the gentleman from Stanislaus, Mr. Schell, RRMARKS or MR. OASSRRLT. Mr. CASSERLY. Mr. Chairman : I am one of those who believe it is tlie duty of corporations to exhibit their books when persons— rtoelt- holders, creditors, or otherwise, whoever may have an interest in them— desire to inspect them. And if this section was not so strict I would be very willing to vote for it. It seems to me as it stands to be an ol>8truction to the transaction of business by the old corjmrations. The gentleman from Solano, I think, touched the point when he urged as an objection that any number of people, at any hour in the day, or nnder any circumstanctw, would have a right to go to the officenf a corporation and obstruct the business of the company, get in the way of the clerb, out of mere idle curiosity, having no interest in the* affairs of the com- pany whatever. But the real difficulty is with malicious persons, inte^ ested in the business of other parties, or employed by them, who would congregate and spy upon the books to the great detriment of the busine» Now, sir, I have no particular admiration for corporations. I wa» brought up iif a political school that instilled into me a wholesome jealousy of corporations, and4 have it to-day ; it is bred in my bones. and I suppose t shall retain that jealousy until I die. I am fnrfnl of these enormous aggregations of wealth and power which aocoiupsny modern corporations. But, sir, where is the sense, where is the judg- ment in our clamoring against foreign corporations? Some gentlemen have said that they should not stand on any better basis than our own corporations. I do not know that they should; neither should they be discriminated against, for they certainly serve a very useful purwse here. Whenever there is any great property to insure, we go to these foreign companies which have almost unlimited capital. There is not capital enough at home to take all the risks. The foreign corporations never attempt to interfere with legislation. If there be any class of corporations that are wholly innocent of any wrong against us it is thii class of foreign business'corporations. It seems to me that it would not be to the interest of the people of this State to paas snch Uws as wouU drive them away. Have we forgotten the fate of Chieago? Burnei out in one night, millions of property destroyed. American insumnoe companies bankrupted and almost annihilated; and hut for foreicn insurance companies t'hicago would hardly be there to-day. I do not believe in driving them out of the State by hostile legislation. If the,' should be driven away there is no safety for San Francisco from a pwt calamity by fire, for who does not know that San Francisco is as com- bustible as any city in the world? I hope, therefore, that this section will be materially amended before being finally adopted. Mr. HOWARD. Mr. Chairman: As soon as*it is in order, I shall move an amendment to insert after the word "inspection" the wolds "by every person having an interest in the same." Mr. SCHELL. Strike out the word "piiUic " and I wiU ucept the amendment. f* ^ Digitized by' 'piiUic " and I will u Google Nov. 16, 1878. OF THE CONSTITUTIONAL CONVENTION. 447 Mb. HOWARD. Very well, strike it out. I do not think the word " public " adds any force to it. The gentleman accepts this amendment, to add the words, " by every person having an interest in the same." BFKKCH OF MB. WTATT. Mr. WYATT. Mr. Chairman: I do not rise for the purpose of modi- fying the section to make it read smoothly, or for the purp<»e of making it fit home or foreign corporations any better than it does now. For, sir, if I could have my way, I would at ope fell swoop wijie them all from the face of the earth. And If that is radical, then I must say I am a radical upon the subject. In discussing corporations, if you attempt to restrict them in any way whatever, or exercise any control over them, then we are told that they cannot live, and that they will be forced toquit the business. You must not put them on a level with other classes of citizens, or they cannot live; they will have to leave the country if you do. They must be privileged over and above all other classes of citizens. If you undertake to restrict home corporations, then the cry is raised that you are discriminating against domestic corporations and giving foreign corporations an advantage over them. If you say anything al>out gov- erning foreign corporations, then you hear the cry raised that the jjeople cannot do without them, and that they will be driven from the country. Now, my proposition Is that foreign corporations here are not doing busi- ness as eleemosynary institutions. It they are here, they are here becaase it pays. They are here to make money, and for no other pur- pose. And if they cannot stand and do business upon the same footing aa the others, then let them bundle up their traps and take their freight to the mother country as soon as possible. Mb. SOIIEXL. I rISe to a point of order, that the gentleman is not discussing the question before the committee. I do not understand that to be the question. A motion was made to strike out the word " public." In the first place, the Chairman of the Committee on Corporations offered an amendment; an amendment to the original report of the committee. Then I made a motion to strike out the word " public." That is the auction now before the house. I think the committee is bound to vote first on that amendment, and then the question can come up as to whether the t>hraseology shall be changed so as not to include foreign corporations. Thr CHAIRMAN. The point of order is not well taken; the gentle- man from Mont«rey will proceed. Mr. WYATT. I was stating that I was opposed to granting foreign insurance companies, or any other foreign companies, privileges that are not to be granted to home corporations. No corjwratlon ought to be n-anted privileges beyond what are enjoyed by the citizen, but they are. But at least, as between corporations, foreign corporations ought not to be granted privileges beyond domestic corporations. Now, I do not believe the State of California exists by reason of corporations. I am inclined to believe that a very large number of corporations exist by reason of the State of (Jalifomia, and that they do not give existence to the State. I do not give them the credit of creating wealth. I do not give them the prominence of giving liberty to the people. I am in utvor of restrictlnf^ corporations, foreign and domestic, to the same level, and If ihe restriction necessary to some corporations drives others out, let them go. The foreign corporations, as I said before, are not here for the purpose of giving us eleemosynary institutions; they are here for the purpose of employing their capital profitably to themselves. If the domestic corporations can do business with profit under these restric- tions, the foreign corporations can do the same, or go where the climate is less toirld. It is sometimes an advantage to rely upon ourselves, upon our own resources. I believe the chastening hand of jwverty has been advantageous to some people and some communities. The State of Mississippi came out from under carpet-bag rule without a scratch of public debt, for twenty-five or fifty millions of dollars might have been forced upon the market, and would have been If she hiKl had any credit. But having repudiated her public indebtedness, her bonds could not be negotiated upon the market of the world, and the only detriment they xx>uld be was to tax all they could get for the time, and when carpet-bag rule was raised it left the State without any indebtedness, but without a dollar in the treasury. Having no credit saved the State millions of dollars. And I am of the opinion that the State of California might be benefited likewise by dealing at home, and not depending so much on foreign capital. I can dispose of foreign corjrarations, so far as I am concerned. If they cannot come here and do business upon the same terms as our domestic corporations, then they had better not stay. BEUAKES or MB. ROLFE. Me. ROLFE. Mr. Chairman: I confess judgment, that upon this subject under discussion there is a great amount of ignorance. There is another satisfaction I have, that In exposing my ignorance, not more than forty or filly gentlemen can hear it. What I shall have to say will he more to obtain information than to enlighten anybody else. First, I would like to know whether the State of California has any power to enforce this section. Now, If after passing it, it will amount to nothing, what is the use of passing it? Have we any power to enforce it upon them. Suppose the article on corporations does not apply to them. Suppose thev do not or will not keep books, transfer books, then what? Mb. TERRY. Put them in jail. Mb. ROLFE. What good will that do? It will keep the man from transacting business for awhile, and then he will go where he does not have these restrictions. But suppose he does keep an office here, and suppose he keeps a transfer book, and supixise he does not keep it correctly, how are you going to know? Suppose the company is insol- vent, how are you going to know ? Suppose they put men on the books who do not own a share of stock, how are you going to tell ? These names may be put on there for the sole purpose of keeping up the credit of the institution. Suppose the company directs its agent In San Fran- cisco to put the name of one of the Rothschilds on the list, everybody knows that they are good, they are worth their millions; how are you going to know whether it is a true entry or not? You might go to England and make Inquiries, but how many of the people who deal with these companies are going to that trouble and expense, and if they did the agent might be out of reach by that time. There is another objection, It seems to ine, and that Is this: It requires every corporation, other than religious, benevolent, and educational, to keep an office here. Now there are religious and benevolent institutions here in this State, who, I believe, have capital stock. Now will we include them ? It has been suggested by one gentleman that those words be stricken out, and in their place, the words "corporations having capital stock," and 1 hope that amendment will be adopted. The tact of a corporation being religious does not necessarily prevent its being bad, according to my experience. * BEHARKS or HE. HALL. Mr. HALL. Mr. Chairman : I do not see why there should be any discrimination between home and foreign corporations. I think both should come under the same rule, ami if we apply this process of regu- lation, it certainly should apply to all. But the matter now which seems to be of greater importance Is the motion made by the gentleman from Stanislaus, to btrikc out the word " public." I think that motion should be sustained. There is a very dangerous principle embodieerson and every person in the community, the right to enter the place of business ol^ the oorimration, and inspect the books and the business, to overhaul every book connected with the insti- tution. This is no more than a fair construction of the language. Look at it : " Sec. 14. Every corporation, other than religious, educational, or benevolent, organized or doing business in this State, shall have and maintain an oflice or place in this State, for the transaction of its busi- ness, where transfers of stock shall be made, and in which shall bo kept, for public inspection, books in which shall be recorded the amount of capital stock subscribed, and by whom; the names of the owners of its stock, and theHunounts owned by them respectively ; the amount of stock paid in, and by whom; the transfers of said stock ; the amount of its assets and liabilities, and the nantesand places of residence of its officers." Now, sir, I maintain that under this provision it will be within the power of any man, a constitutional right, moved by whatever motives or feelings he may be, to enter the place of business of any corporation, and demand as a constitutional right, to examine and have explained to him every book connected with the business of the institution. Now, sir, I am not here as the advocate of any corporation. I have never been connected with them, never have been in a situation in my life to take advantage of the benefits flowing from such institutions. I have never been connected with them in any manner, except occasionally in a professional capacity. I am for retaining every power, and every right, which, by the law and by the Constitution is reserved to the people over these institutions; and I go further, and say that they should be surrounded by every possible safeguard neces.°ary for the protection of the public, and for the general welfare of the people; but I am not in favor of doing an injustice to those institutions oy any legislation which rshall mrticipate in here. My conduct here shall be influenced by a spirit of justice and fairness. As a legislator here, I shall not participate in the making of any laws that will violate the spirit of justice. And I say that if we shall adopt this provision, and make it a ]>art of the Constitution, great injustice may result to these institutions. It may be perverted toiwrong ends and for undue purposes. If we shall say that institutions of this character shall keep oiien books for public inspection, to which all persons shall have access at all times, without any restraint whatever, depriving the Legislature of any power to grant any relief, we shall enable men, moved by improper motives, to inflict a wrong upon these institutions, under color of constitutional right. I am opposed-to the principle. I am opposed to it now, and I shall oppose it during the entire session of the Convention. I hope the amendment of the gentleman from Stanislaus will prevail. REMARKS or MB. TEBRT. Mb. TERRY. Mr. Chairman : I am in favor of retaining the word "public" in this section. I think without it the section is al^olutely of no benefit to anybody in the world, and no check whatever upon the corporations. I cannot sse any very great wronf; that is going to be done to any honest corporation that transacts business fairly and is sol- vent. In having jiersons at liberty to ascertain and know who are its stockholders, the amount of stock Subscribed, the amount of its assets, and the amount of liabilities. They are required by law to make monthly statements under oath embodying this public information which we now seek to acquire. My friend, who is somewhat exercised about it, says, suppose they do not make these statements, but make false statements. But this section requires that these books shall be kept open for the inspection of the public. It is objected to because so many people will go there out of mere idle curiosity to examine these books. Now, gentlemen, for twenty-six yeara the books of every Recorder's office in this State have been open to public inspection — to anybody who wanted to look at them, and who ever saw a great crowd of people attracted by idle curiosity, going there and interfering with the business of the office, examining to see whether A had transferred to'B, or B to C? No, sir. Nobody will go there to examine the books except those who have some Interest in knowing whether they are solvent or not. Me. HILBORN. Nobody objects to the stockholders examining the books. Mb. TERBT. The general public will not wish fo examine these > Diqitized bv V , _ t^ 448 DEBATES AND PROCEEDINGS Monday. books out of mere idle curiosity, unless it be some public spirited news- paper man who may want to 6nd out whether these meu are deserving of public trust; whether the institution is sound and solvent. If the institution holds itself out as solvent, it ought to be glad of the chance of giving this information. There will be no one who will examine these books except those who have some kind of an interest, either the stockholders or those who may desire to have dealings with the corpo- rations. Now without this word "public" the whole ew'tion might as well be stricken out. The law already provides that the stockholders may go and examine these lHH>ks, and we want them ojwn to those who have no dinn-t proprietary interest. There are hundreds of men who are not stockhoUlers who are more interesteonietimes cuts us olf from offering amendments. The last section was passed in this way, and I bad no op|H>rtunity to oOer an amendment. I nave an amendment, and ask if it Ts in order. Tut CII.\IRMAN. The gentleman will be permitted, I think, to offer it. Ma. HAGER. I shall offer the following amendment : " No foreign corporation shall do any business in this State without having at least one place of business and an authorized agent in the game, irpon whom process mav be served." Me. ESTEE. That is the statute now. Me. IIAGER. That is the statute, but statutes are sometimes re|iealed. Statutes are sometimes werful, as we all know. The Legislature some- times falls down under the pressure of corporations, and though it may not be so in this case, still I can see no harm in putting it permanently in the Constitution. I hope it will be adopted. REMARKS or MR. LAINI. Mr. LAINE. Mr. Chairman: I have listened patiently to the dis- cussion of this question. I fear that there is some dis|>o8ition on the part of the Convention to go l>eyond what our better judgment would dictate to be right. I am aware that thej)eoration, other than religious, educational or benevolent, organized or doing business in this State, shall have and maintain an office or place in this State for the transaction of its busi- ness, where transfere of stock shall be made, and in which shall be kept, for pu'blic inspection, books in which shall be recordetl the amount of capital stock subscribed, and by whom, the names of the owners of its stock and the amounts owned by them respectively, the amount of stock paid in, and by whom, the transfers of said stocit, the amount of its assets and liabilities, and the names and places of residence of its officers." Now, as has already been well said, suppose we have this system established, what real benefit will it be to the people of this State? There are corporations from England, and France, and Germany, and from different States of this Union. Suppose we compel them to keep a transfer book, would we know the stockholdersT Why, nonsense. It would take weeks and months, to obtain any information as to who they were. It would, in the next place, be practicably impossible for them to comply with this provision. Hence, if this section is made to apply to our own domestic corporations, and then changed so that people shall not be allowed to inspect the books out of mere idle curios- ity, it will do. It is true that these curious people might learn something, but these corporations cannot afford to devote their time to the gratifying of mere idle curiosity. If it is made to read in tliia way, I would support the projKisition : " Every corporation having capital stock, organized and doing business in this State," etc. If it is altered to read in that way, with the other corrections I have mentioned, it would not be objectionable. If it is left as it is, those foreign corpora- tions cannot comply with it, and if they »>nld it would not t^nefit any- boection frun mere idle curiosity. Mr. terry. Would tbe^ be inspected from mere idle curiosity? Mr. HOWARD. Thev might take interest enough to do so. Tmr CHAIRMAN. I'be first question is on the amendment of the gentleman from San Francisco, Judge Hager, to add to the end of the section : " No foreign corporation shall do any business in this State without having at least one place of business, and au authorized agent in the same, upon whom process may be served." Division was called for, and the amendment w'as adopted by a vote of iO ayes to 29 noes. Tbk CHAIRMAN. The question is now on the amendment to the amendment offered by the gentleman from Stanislaus, Judge Schell. The Secretary will read. Thk secretary read: "Strike out the word 'public,' between the words 'for' and 'inspec- tion,' in line seven, and add after the word ' inspection,' the words, ' by every |)ei-sn any subject not designated in the Govemoi'i proclamation calling such session." I move that it take the some coarse and be printed. Carried. Mr. EDGERTON. Mr. President : I send up a report from the Com- mittee on Revenue and Taxation. The secretary read : Mr. Presidsxt: Your Committee on RevenneaiidTaxatloD.towhomweieieleiied reeolutiona numl>erR tweire, twenty-two, tweuty-iiTe, twenty -Dine, Ibirty-fivc, fom, forty-eight, fifty-four, seventy, aeventy-flve, eeventy-acven, ninety-two, niuety-foar. one hundred and ten, onehundred and twenty-Bix,one hundrednnd tbirly-Hght,one hundred and fifty, one huudred and fifty-five, one hundred and fifly-eighl, one linn- dred and sfxty-eight, one hundred and eighly-ack, and recommend that no fnrliieT actioD l>e taken thereon, for the reaann that such propoeitlom and suggestions therHo contained, as yonr cuminlttee deem it expedient to adopt, Imve lieen Incorporated in the plan agreed upon, and herewith reported and recommended to tbe Cunveniioa, by a minority of your committee, for adoption. Messrs. Casserly, Class, Prouly,^unier, and BdgertoD, dissent from sectioa two (i) of tbe plan. Messrs. Biggs and Tully, ttam section four (4). Messrs. Dudley, Overton, Prouty. Tully, and Turner, iVom section IIto (5). Mr. Overton, from section six (6). MessA. Cross and Turner, fhim section seven (7). Messrs. Dudley, Overton, Tnlly, Turner, ard Gdgerton, from section nisefd). Messrs. Dudley, Overton, i*routy, Tully, and Turner, from section eleven (11). Messrs. Cross, Overton, and li^lgerton, from section fourteen (14). Messrs. Cross and Turner, from section sixteen (16); and Messrs. Cross, Overtoil, Shatter, Wilson, and iCdgerton, from section seventeen (17X Your committee recommend that such plan, upon the sutiject referred tolheoi,* the Convention shall adopt, be inserted in the new Constitution in the fomi of a se)*. tale article, and designated, " Article — . Kevenue and Taxation." HENKY EDOEBTON, Oiainiiu. revekdb add taxation. Article — . Sectiom 1. All taxes shall be uniform upon the same class of nib- jects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws. Sec. 2. All property, including franchises, capital stock of corpon- tions or joint slock associations, and solvent debts, deducting therefrom debts due to bona fide residents of the State, and excluding growing crops, private property exempt from taxation under the laws of the United States, public property belonging to the United States, or to this State, or any municinality thereof, and all property and the proceeds thereof which is used exclusively. Sec. 5. A mortgage, deed of trust, contract, or other obligation by which a debt is secured, shall, for the purposes of assessment and Isu- tion, be deemed and treated as an interest in the property affected thereby. Except as to railroad and other quasi public corporations, in case of debts so secured, the ralue of th^propierty affected by sodi Digitized by V- Nov. 18, 1878. OF THE CONSTITUTIONAL CONVENTION. 451 mortgage, deed o( trust, contract, or obligation, less the value or Buch leeunty, shall be assessed and taxed to the owner of the property, and the value of such security shall be assessed and taxed to the ..owner thereof, in the county in which the property affected thereby is situate. The taxes so levied shall be a lieu upon the property und siKSurity, respectively, and may be paid by either party to such security; if paid by the owner of the security, the tax so levied upon the property aoTected thereby shall become a part of the debt so se<-ured ; if the owner of the property shall pay the tax so levied on such security, it shall constitute a payment thereon, and to the extent' of such payment, a full discbarge thereof. Skc. 6. Every contract hereafter made, by which a debtor is obli- gated to pay any tax or assessment on money loaned, or on any mort- gage, deed of trust, or other lien, shall, as to any interest specifiiid therein, and as to such tax or assessment, be null and void. Sue. 7. No corporation, except for benevolent, religious, scientific, or educational purposes, shall be hereafter formed under the laws of this State, unless the persons named as corporators shall, at or before filing the articles of incorporation, pay into the State treasury one hundred dollars for the first fifty thousand dollars or less of capital stock, and a further sum of twenty dollars for every additional ten thousand dollars of such stock ; and no such corporation shall hereafter increase its capital stock without first paying into the State treasury twenty dollars for every ten thousand dollars of increase. Sec. 8. No license tax shall be imposed by this State, or any munici- pality thereof, ^pon any trade, calling, occupation, or business, except the manufacture and sale of wine, spirituous, and malt liquors, shows, theaters, menageries, sleight of hand performances, exhibitions for profit, and such other business and occupations of like character as the Legisla- ture may judge the public peace or good order may require to be under special StAte or municipal control. But the Legislature may by law impose any license, or other tax, on persons or corporations owning or using franchises or corporate privilej^. Sbc. 9. The Legislature shall provide for the levy and collection of an annual poll tax of not less than two dollars, for school purposes, on every male inhabitant of this State over twenty-one and under sixty years of age, except paupers, idiots, insane persons, and Indians not taxed. Said tax shall bejpaid into the State School Fund. Sxc. 10. The power oi^ taxation shall never be surrendered or sus- pended by any grant or contract to which the State shall be a party. Skc. 11. The Legislature shall provide by law for the payment of all taxes on realproperty by installments. Skc. 12. The Legislature shall by law require each taxpayer in this State to make and deliver to the County Assessor, annually, a statement, under oath, setting forth specifically all the real and personal property owned by such taxpayer, or in his possession, or under his control, at twelve o'clock meridian, on the first Monday of March. Skc. 13. Assessors and Collectors of State, county, city and county, town, or district taxes, shall be elected by the qualified electors of the county, city and county, town, or district in which the property taxed for Slate, county, city and county, town, or district purpcnes, is situated ; provided, that vacancies may be filled by appointment, according to general laws. Skc. 14. The State tax on property, exclusive of such tax as may be necessary to pay the existing State debt, shall not exceed forty cents on each one hundred dollars for any one year. Sec. 15. A State Board of Equalization, consisting of two members from each Congressional District in this StAte, shall be elected by the qualified electors of their respective districts, at the general election to be held in the year one thou^nd eight hundred and seventy-nine, and every four years thereafter, whose duty it shall be to equalize the valu- ation of the taxable property in the State for purposes of State taxation. The Boards of Supervisors of the several counties in the State shall constitute Boards of Equalization for their respective counties, whose duty it shall be to equalise the valuation of the taxable property in the county for the purpose of county taxation. Skc. 16. The State Board of Equalization shall assess the value of all the property of all railroad corporations in this State. For tRe pur- pose of taxation, the value of all lands, workshops, depots, and other buildings belonging to or under the control of each railroad corporation, shall be apportioned by said Board to the counties, cities and counties, cities, townships, and districts in which such lands, workshops, depots, and other buildings are situate; and the aggregate value of all other property of such railroad corporation shall be apportioned by said Board to each county, city and county, city, town, or district in which its road shall be located, according to the ratio which the number of miles of such road completed in such county, city and county, city, town, or dis- trict shall bear to the whole length of such railroad. Sic. 17. The value of the capital stock of a corporation shall be assessed in the county in which its principal place of business is located, and separately from all other property belonging thereto j and such stock shall be assessed at its market value when the assessment is made. The real and other personal property of such corporation shall be assessed in the several counties respectively in which the same is situate. The value of such stock, over and above the aggregate value of such real and other personal property, according to such aitsessment, shall be taxed in the county in which the principal place of business of such corporation is locatM ; and the value of such real and other personal property shall be taxed in the several counties respectively in which the same is situate. The shares of stock belonging to the stockholders in such corporation shall be exempt from taxation ; provided, that the provisions of this sec- tion shall not apply to railroad corporations. Sio. 18. The iJe^sIature shall pass all laws necessary to carry out the provisions of this article. He. EDGERTOK. I move that nine hundred and sixty copies of the draft be printed. , Ma. ROLFE. I move to amend by adding that five copiee be placed upon each member's desk. Mb. EDGERTON. I accept the amendment. The tnotion prevailed. RESOLDTION OF INQDIRT. Mb. RIKGKjOLD. I have a resolution to offer. The secretary read : RaolMd, That the San Franciaco Gaslight Company, of the City and Conntj of San Frftiicisco, be and in hereby directed to f^irnlsh to this Convention ft itHtenient •etting furth the number of meters wliich said cunipnny hut fnmUhed to consiimen uf gas since the organization or tlie company, the amount or money depooited with the cotupAiiy tor meters furnished, the amount of money refunded for meters taken back by the company, and ttie amount of money the company still relaina as dep(«its for metets Rctotvtd, That the Secretary of this Convention be and be is hereby directed to forward immediately a copy of the above resolution to the President and Secretary of the San Francisco Gaslight Company. Mb. RINGGOLD. I have been requested to introduce that, and I now move its adoption. Adopted, on a division, by an affirmative vote of 80. Mr. ESTEE. Mr. President: I now move that the Convention resolve itself into Committee of the Whole, for the purpose of further considering the report of the Committee on Corporations other than Municipal. FRRVIOtIS QCKSTIOX IK COMlItTTCK OF THE WHOLE. Mr. DUDLEY, of Solano. Mr. President: I desire now to make my motion to amend Rule Fifty-six, of which I gave notice on Saturday. Mb. TINNIN. Mr. President: The previous question has been moved and carried several times in this body, and I think it is very satisfactory to the members. In fact I tbink it the only protection that we have had the last few days. I move that it be laid on the table. The ayes and noes were demanded by Messrs. Reynolds, Heiskell, Tully, Jovce, and Dudley, of Solano. Mb. EfiYNOLDS. Mr. President: I want to see this Convention put upon the record on this subject. Mb. HUESTIS. I rise to a point of order. Mr. HEISKELL. Yes; ten or a dozen of you rise to a point of order. Mb. HUESTIS. The gentleman has no right to consume the time of the Convention in discussing a motion to lay on the table. The PRESIDENT. The point of order is well taken. The roll was called, and the motion to lay the amendment on the table was lost, by the following vote: Moreland, Nason, Ohleyer, Porter, Pulliam, Rhodes, Rolfe, Shafter, Shurtleff, Smith, of Santa Clara, Stevenson, Terry, Tinnin, Townsend, Tully, Van Voorhies, Waters, Wilson, of Tehama, Wyatt— 56. Ringgold, Schell, Schomp, Smith, of 4th District, Smith, of San Francisco , Boule, Stedman, Steele, Sweasey, Thompson, Tuttle, Vacquerel, Walker, of Marin, Walker, of Tuolumne, Wellin, West, Wickee, White, Mr. President — 58. Harvey, The PRESIDENT. The question is on the adoption of the amend- ment as offered by the gentleman from Solano, Mr. Dudley. The Secre- tary will read it. The SECRETARY read: " Amend Rule Fifty-six to read as follows : "RULE rilTT-SIX. " The rules of the Convention shall be observed in Committee of the Whole, so far as they may be applicable, except that the ayes and noes shall not be taken, and that the previous question shall not be moved." Me. DUDLEY, of Solano. Mr. President: I am not clawed as one of ATIS. Andrews, Heiskell, Ayers, Hitchcock, Boggs, Holmes, Brown, Howard, Burt, Huestis, Campbell, Hunter, Caples, Inman, Chapman, Johnson, Cowden, Kelley, Crouch, Lampson, Davis, Larkin, Estee, Larue, Estey, Lewis, Fawcett, Mansfield, Finney, McComas, Garvey, McConnell, Glascock, McCoy, Graves, McNutt, Gregg. Moffat, KOBS Barbour, Herrington, Barry, Hilbom, Barton, Hughey, Belcher, Jones, Blackmer, Joyce, Condon, Kleine, Dowling, Laine, Doyle, Lavigne, Dudley, of Solano, Lindow, Eagon, McCallum, Edgerton, McFarland, Evey, Morse, FarreU, Nelson, Filcher, Neunaber, Freeman, O'Donnell, Freud, O'Sullivan, Gorman, Prouty, Grace, Reddy, Harrison, Reynolds, 462 DEBATES AND PROCEEDINGS Monday, the talking members of this Convention, and I make this motion to-day, because I think that I saw a great deaKof inconvenience arising last Saturday from movinz the previous question. The situation seems to be this: a section is brought up for consideration, and one member moves an amendment, then another member moves an amendment to the amendment. Xo more amendments can be offered until these are disposed of. They are discussed until the patience of the Convention is exhausted. The previous question is moved, and no more amendments can be offered to the section at all. We have no chance to vote upon any amendments except the first two. I am willing to limit the time of debate, but certainly I think we should have a chance to consider and vote upon more than two amendments. I hope the amendment will be adopted. The ayes and noes were demanded by Messrs. Burt, Tinnin, Kelley, Wellin, and Huestis. Mk. ROLFE. Mr. President : I am ojiposed to the way the role stands now, and I am opposed to the way it is proposed to be amended ; therefore I shall vote against the amendment. It is as the gentleman says: a proposition comes before the Committee of the Whole and some gentleman moves an amendment; another gentleman moves an acnend- mcnt to that. Then we get tired of discussing it, and ih^ previous question is moved and carried, and then we only have the nght, as I understand it, to vote on these three propositions, without givmg any opportunity of making other amendments; whereas, it is possible that neither the proposition nor either of the amendments suit the Conven- tion. I think the evil could be avoided in a different way — by allowing the previous question to be put and carried, but with such a modifica- tion that after we vote down all the amendments pending, then other amendments may be offered. But I shall simply vote against the amendment changing the rule. The roll was called, with the following result: Ayers, Harrison, Beddy, Barbour, Harvey, Reynolds, Barry, Herrington, Ringgold, Schen, Barton, Hilbom, Belcher, Hughey, Smith, of 4th District, Blackmer, Jones, Smith , of San Francisco, Condon, Joyce, Kleine, Soule, Dowling, Stedraan, Doyle, liaine, Steele, Dudley, of Solano, Lavigne, Sweasey, Eagon, Lindow, Thompson, EdgertOD, Mansfield, Tuttle, Estey, Mc("allum, Vacquerel, Walker, of Marin, Evey, McFarland, Farrell, Mills, Walker, of Tuolumne, Freeman, Morse, Waters, Freud, Nelson, Wellin, Gtarvey, Neunaber, West, Gorman, O'Donnell, Wickes, Grace, O'SuUivan, White, Graves, Prouty, MOItS. Mr. President— 63. Andrews, Holmes, Ohieyer, Boggs, Howard, Porter, Boucher, Huestis, Pulliam, Brown, Hunter, Rhodes, Burt, Inman, Rolfe, Campbell, Johnson, Schomp, Caples, Kelley, Shatter, Chapman, Lainpson, Shurtleff, Cowden, Larkin, Smith, of Santa Clara, Crouch, Larue, Stevenson, Davis, Lewis, Terry, Estee, McComas, Tinnin, Fawcett, McConnell, Townsend, Finney, McCoy, Tully, Glascock, McNutt, Van Voorhies, Gregg, Moffat, Wilson, of Tehama, Heiskell. Moreland, Wyatt— 55. Hitchcock, Nason, Tbs PRESIDEKT. It takes a two-third vote to change a rule. The amendment is lost. Mb. REYNOLDS. Mr. President: I give notice that I will, on to-morrow, move to reconsider the vote by which the resolution in rela- tion to printing the Journal was this day indefinitely postponed. Mb. SMITH, of Fourth District. Mr. President: When this rule was first changed, it was change*! by a vote of the minority only. There were no ayes and noes called at that time. According to that the rule still stands. OOBFOBATIOMS. Mb. EBTEE. I move that the Convention resolve itself into Com- mittee of the Whole, the President in the chair, for the purpose of further considering the report of the Committee on Corporations other than Municipal. Carried. [Three o'clock and fifteen minutes r. M.] IN COMMITTEE OF THE WHOLE. The CHAIRMAN. The pending questions were the amendments to section fourteen. The gentleman from San Joaquin moved to strike out the words " other than reli^ous, educational, or benevolent," in line one, and insert the words " having capital (took." Mr. ESTEE. Will the Secretary please read the section as now amended ? Tm SECRETARY read: Bxc. 14. Every corporation, other than religious, educational, or benevolent, organized or doing business in this State, shall have ud maintain an office in this State for the transaction of its business, wbm transfers of stock shall be made, and in which shall be kept for inspec- tion, by every person having an interest therein, and legislative oim- mitteca, books in which shall be recorded the amount of capital ttock subscribed, and by whom; the names of the owners of its stock, ud the amounts owned by them respectively ; the amount of stock paid in, and by whom ; the transfers of said stock, the amount of its assets «nd liabilities; and the names and place of residence of its officers. No foreign corporation shall do any business in this State without having at least one place of business and an authorized agent in the same, upon whom process may be served. Mb. TERRY. My amendment is withdrawn. "■ Tbb CHAIRMAN. The question is on the amendment offered by ih« Committee on Corporations «a amended. Thz SECRETARY again read the a mend ment-aa amended. Mb. terry. It says, "and doing business." Tail SECRETARY. It says, "or doing business." Mk. BARBOUR. If it reads that way there is a repetition, because if the word "or" is used it refers to the foreign corporations, and thej are, according to the amendment of Judge Hager, required to keep u office where the business is transacted. • The amendment as amended was adopted. rOBEION COBPOBATIONS. Mr. ESTEE. Mr. Chairman : I now offer an additional section, to follow this section, pursuant to a report mado by the Committee on Cor- porations other than Municipal. Thk CHAIRMAN. The Secretary will read section fifteen, as reported by the committee originally. Thk secretary read: Skc. 15. All railroads, canal, and transportation companies shall be common carriers and subject to legislative control. Any association or corporation, organized for the purpose, shall have the right to constmct and operate a railroad between any points within this State, and to con- nect at the State line with railroads of other States. Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad, and shall receive and transport each other's passengers, tonnage, and cars, loaded or empty, without delay or dis- crimination. Mb. estee. The section I offer was offered by direction of the Committee on Corporations, to precede this section fifteen, and be numbered section fifteen. Thb secretary read : Sec. 15. Nocorporatiou organized outsidethelimitsofthisStatesball be allowed to transact business within this State on more favorable condi- tions than are prescribed by law to similar corporations organised under the laws of this State. The Legislature shall enforce this section by appropriate legislation. The CHAIRMAN. That is offered as an independent section, bat operates as an amendment. Mb. fawcett. Mr. Chairman: I offer an amendment to the sec- tion proposed. The SECRETARY read: " Amend section fifteen by adding : ' A corporation or association ma* be sued at the county where the contract is made or is to be perforraeo, or where the obligation or liability arises, or breach occurs; or at the county where the principal place of business of such corporation is «t- uated, subject to the power of the Court to change the place of trial u in other cases.' " Mb. E£TEE. Mr. Chairman : That does not seem to be pertinent to section fifteen that was just banded up. Mb. FAWCETT. I think it does. Mb. ESTEE. Section fifteen was on foreign corporations. Mb. FAWCETT. It may not be pertinent, but before we passall these sections on corporations I wish to offer that, either as an amendment or as an independent section. The CHAIRMAN. The gentleman can offer it as an independent section. Mb. fawcett. I submit that it would be more proper added to section four, but inasmuch as we have passed that, I suppioe it is (<» late. I will therefore offer it as an independent section, after the seeiion oftered by the gentleman from San FrancTsoo is disposed of. I with- draw it as an amendment. The section offered by Mr. Estee was adopted. 8DITS AOAINST CORPORATIOKS. Mr. fawcett. I now offer that amendment, to be known as me- tion sixteen of the chapter on corporations. The secretary read : Sec. 1(J. A corporation or association may be sued at the ooantj' where the contract is made or is to be performed, or where the oblip- tion or liability arises, or breach occurs ; or at the county where the principal place of business of such corporation is situated, subject to the power of the Court to change the place of trial as in other cases. Mb. HERRINGTON. Mr. Chairman: With unanimous consent, why might not that be attached to section four? Mb. fawcett. Mr. Chairman: I suppose the object of this amend- ment will be readily apparent to all. Under our system, corporations have a legal residence at their principal place of business. The iwalt is that corporations in this State are legally resident, nearly all of them, at the City and County of San Francisco, and that under our rules of practice, those who have litigation with such corporations must go to Nov. 18, 1878. OF THE CONSTITUTIONAL CONVENTION. 453 the City and County of San Francisco to sue. For instance, if the gen- tleman from Los Angeles has a cause of action against the Southern Pacific Railroad Company, he must go to the City and County of Ban Francisco with his cause of action ; bring his suit, carry his witnesses, and maintain bis litigation there. That operates unjustly and unfairly. I think that the rule ought to be, that a person having a cause of action against a corporation should be entitled to meet at the place where the cause of action has arisen, where the obligation or liability arises, or the breach occurs. We have transportation companies plying on the South Pacific Coast — steamship companies. It often happens that shippers there lay a cause of action against a steamship company, and they have to go to San Francisco at great expense, delay, and mconvenience. The eSecl of this amendment will be to authorize them to sue at the place where the cause of action arises, or at the princiml place of business of the corporation. I think it is eminently just. Perhaps it may be said that it more properly belonas to the Code of Civil Procedure, but it is quite as important to the rights of the people aa many of the provisions contained in this report. * The section was adopted. BAILROADS. The chairman. The Secretary will read section fifteen of the report, now numbered section seventeen. Tbk SECRETARY read : Sic. 17. All railroads, canal, and transportation companies shall be common carriers and subject to legislative control. Any association or corporation, organized for the purpose, shall have the ri^ht to construct and operate a railroad between any points within this State, and to connect at the State line with railroads of other States. Every railroad company shall have the right with its road to intersect, connect with, or cttws any other railroad, and shall receive and transport each other's passengers, tonnage, and cars, loaded or empty, without delay or dis- crimination. Me. O'DONNELL. I would like to add to that section the following words: "The Legislature shall, by appropriate legislation, establish a tariff of prices to be charged for the transportation of paasengers and freights on railways in this State, by which all such railways shall be governed." ' Mb. ESTEE. It does that now. Mb. O'DONNELL. I offer it as an amendment. I will send it up. Tbe SECRETARY read the proposed amendment as above. REMARKS or MB. BROWM. Mb. brown. Mr. Chairman : I was wishing before it came to a vote upon amendments to know more precisely with regard to the meaning of the language in the fifteenth section now before us. I acknowledge that I am not able to fully comprehend it with the preeent lights that I have before me. It says : " All railroads, canal, and trans- portation companies shall be common carriers, and subject to legislative control. Any association or corporation, organized fur the purpose, shall hare the right to construct and operate a railroad between any points within this State, and to connect at tbe State line with railroads of other States." Now, I do not fully comprehend that portion about " organized for the purpose." It seems different when there is a purpose spoken of; but what that purpose is, I am not able to understana. Is it transportation companies that is spoken of? If it is for the purpose of being a transportation company, 1 am not sure of it by the language. If it means organized for the purix>9c of being common carriers, any company organized for that purpose, it does not seem to be clear. There is also legislative control spoken of, and it is not clear whether it is for them or not. What follows afterwards seemed at first to explain it: " shall have the right to construct and operate a railroad between any points within this State, and to connect at tbe State line with railroads of other States." Now, instead of the latter part being the purpose, there are several purposes spoken of, and I thought before voting upon it I would wish to hear what the purpose is, whether organized for the purpose of common carriers, or organized for tbe purpose of an associa- tion, as immediately precedes it. Mb. BARBOUR. I move to amend section seventeen hj inserting after the word "control," in the second line, the wonia, " railways and navigable canals heretofore constructed, or which may hereafter be con- structed in this State, are hereby declared to be highways, and shall be free to all persons for the transportation of persons and property thereon, under such regulations as may be prescribed by law." The chairman. The first question is on the amendment offered by the gentleman from San Francisco, Mr. O'Donnell. Mb. Campbell. I sent up an amendment there. The chairman. That amendment will be the second question. The secretary read the amendment offered by Mr. O'Donnell. Mb. TINNIN. Mr. Chairman : I desire to call the attention of the committee to the amendment. It seems to be the entering wedge to defeat the Commission that the committee have decided upon. I merely desire to call the attention of the committee to the fact. Me. WHITE. Mr. Chairman : I hope the Convention will not enter- tain that amendment. If the gentleman is opposed to the plan of tbe Committee on Corporations, his time will be when we reach the twentieth section. It will cause a great deal of confusion in the whole argument. I trust that the Convention will observe the object of it and vote against it. REMARKS OF MR. K8TEE. Mb. ESTEE. Mr. Chairman : Section seventeen, or section fifteen as it is printed, was drawn up by your committee to meet two or three propositions. First, that ail railroads, canal, and transportation com- panies shall be common carriers, and subject to legislative control. Of course we are aware that they were common carriers, and that common carriers were subject to legislative control, and that expression was taken from the decision relative to the power of railroads and their duties to the people. The second proposition is, that " Any association or corporation, organ- ized for the purpose, shall have the right to construct and operate a railroad between any points within this State, and to connect at the State line with railroads of other States." That was merely for the purpose, should the time ever come when there would be an opportu- nity for a competing line, to give that line an opportunity of running to the State line of this State to connect with any other railroad that might come from any other State or Territory for the purpose of trans- porting freight and passengers to this State. The next was: " Ei*ry railroad company shall hjive the right with its road to intersect, connect with, or cross any other railroad, and shall receive and transport each other's passengers, tonnage, and cars, loaded or empty, without delay or discrimination." The object .of that was to prohibit any railroad companpr from favoring one competing lino over another, and transporting their passengers and freight or their cars to the exclusion of others, and thereby n^ezing out, if I may use the term, any connecting line. This section was taken almost verbatim from the Constitutions of Pennsylvania and Missouri. In the Pennsyl- vania Constitution it is section one of article seventeen. It reads: '■ All railroads and canals shall be public highways, and all railroads and canal companies shall he common carriers. An^ association or corporation organized for the purpose shall have the right to construct ana operate a railroad between any points within this State, and to connect at the State line with railroads of other States. Every railroad- company shall have the right with its road to intersect, connect with, or cross any other railroad; and shall receive and transport each the other's passengers, tonnage, and cars, loaded or empty, without delay or discrimination." Now these were the evils that were attempted to be remedied by your committee in reporting section fifteen, and I will state to the gentleman from San Francisco, Mr. O'Donnell, that the amendment which he pro- poses is quite unnecessary, unless he wonts to destroy the harmony of this article. If he does', why of course he had better adopt it. The proposition is covered by sections nineteen, twenty, twenty-one, and twenty-two. Section nineteen provides against discrimination, and sec- tion twenty provides for Railroad Commissioners, fixing their powers and duties. I hope that all amendments for changing this section, so far as the regulation of freights and fares are concerned, will be voted down. BEMABKS or MB. McrABLAKD. Mb. McFARLAND. Mr. Chairman : I think that this code ought to be amplified a little. We say every railroad company shall receive and transport each other's passengers, tonnage, and cars, loaded or emptj. Now in order to make toat effective we ought to provide that each rail- road company should have a certain width gauge. They might come with narrow gauge cars and our roads would not take them. It does seem to me that if they are going to take the cars from the other States that it should be so arranged that the cars of other States and our own should be the same gauge. BBMABES or MR. o'donxell. Mr. O'DONNELL. Mr. Chairman: This section embodies a great popular demand. It is a measure which involves simply this proposi- tion : Shall the people control the corporations, or shall the corporations control the people ? That is the question now before this Convention. The section I think is a little cloudy, and delegates do not exactly under- stand the reading of that section. It says here in section fifteen, or section seventeen as it is amended : "All railroads, canal, and trans- portation companies shall be common carriers and subject to legislative control. Any association or corporation, organized for the purpose, shall have the right to construct and operate a railroad between any points within this State, and to connect at the State line with railroads of other States. Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad, and shall receive and transport each other's passengers, tonnage, and cars, loaded or empty, without delay or discrimination." Now my amendment is: " The Legislature shall, by appropriate legis- lation, establish a tariff of prices to be charged for the transportation of passengers and freights on railways in this Slate, by which all such rail- ways shall be governed." There is an addition. That is the reason that I offer the addition there. As it is now, they have a right to charge their own prices for passengers and freight. The corporations have been controlling the people for the last fifteen or sixteen years. It seems pretty near time that the people were controlling these corporations. I nope that amendment will be added to that section. Mr. AYERS. Mr. Chairman : I trust that the members of this com- mittee will incontinently vote the amendment down. This State has trusted long and patiently to the liegislature of this State to handle that question. They have not done it; and it behooves this Convention itself to handle it; and I believe that this report, further on, provides an effective way by which we can gain control of that matter. Mr. HOWARD. Mr. Chairman: I wish to say to the gentleman from Sacramento that, so far as the Central Pacific and the Southern Pacific are concerned, the Act of Congress provides that the gauge shall be uniform, and it also provides that they shall receive freights and passengers from other roads and run the cars over their roods. Mr. LAINE. I desire to call the attention of the Chairman of the committee to the wording of this section. I think you will find that the word "railroads" ought to be "railroad." You make railroads common carriers instead of railroad companies. Mr. ESTEE. That is right. The Secretary will strike out the letter " 8" there. SPEECH OF MB. HALE. Mb. HALE. Mr. Chairman: I hope. that this^uBndment wil gte ! ^- 454 DEBATES AND PROCEEDINGS Mo>(^DAY, prevail. I see that the vote upon this question must neressarily be a test vote upon much more than appears upon the face of the proposed amendment. I beg the indulgence of the house while I attempt to point it out. As has been very truly said by the Chairman of the com- mittee, the adoption of this amendment will be striking a blow, if not a death-blow, to the scheme presented in their report, so far as it applies to a Railroad Commission. For the purpose of showing the correctness of this conclusion, I will take the liberty of reading section nineteen. It is not now^ before the house, but I wish from it to show that the pro- posed amendment is not necessary : "Sec. 19. Ko discrimination in charges or facilities for transportation (hall be made by any railroad or transportation company between places or persons, or in the facilities for the transportation of freight or paasengere within this State, or coming from or going to any other State. Persons or property transported over any railroaid, or by anv transporta- tion company or individual, shaH be delivered at any station, landing, or port, at charges* not exceeding the charges for the transportation of persons and property of the same class in the same direction to any more distant station, port, or lalhling. Excursion and commutation tickets mav be issued at special rates." The next section provides : "Sic. 20. Three Railroad Commissioners shall be elected by the qualified voters of this State, at the regular gubernatorial elections, and whose salary shall be fixed by law, and whose term of office shall be four years. They shall be qualified electors of this State, and shall not be interested in any railroad corporation, or other transportation com- pany, a« stockholder, creditor, agent, attorney, or employ^, and the act of a majority of said Commissioners shall be deemed the act of said Com- mission. Said Commissioners shall have sole power, and it shall be their duty, to correct abuses by railroad corporations or other transpor- tation companies; establish rates of charges for the transportation of passengers and freight by railroad or other transportation companies, and publish the same from time to time, with such changes as they mav make; report to the Governor, annually, their proceedings, and such other facts as may be deemed important; hear and determine complaints against railroad or other transportation companies; affix penalties and enforce them through the medium of the Courts, and perform such other duties as may be prescribed by law. Nothing in this section shall pre- vent individuals from maintaining actions against any of such com- panies. It shall be the duty of the Legislature to confer all such further powers on the Board of Railroad Commissioners as shall be nece-iaary to enable them to perform the duties enjoined on them in the foregoing sections." Mr. Chairman, it will be observed from the construction of the sec- tions I have read, that they deal with the matter in detail. The scheme of the committee is substantially this: that so far as the regulation of tariffs for the conveyance of passengers or freight upon railroads in this State are concerned, they shall be determined by the Railroad Commis- sioners. Kow, sir, I am quite aware of the fact that there is a divided sentiment on this subject; that there are two opinions as to the proper mode of reaching this one result, namely, the exercise by the State of its proper supervision and control over railroads in the matter of con- veying passengers and freight. The committee's report proceeds upon the assumption, as I take it, that it is unwise to attempt to regulate fares and freights by the terms of statute law. Am I correct, Mr. Chairman? Mr. E8TEE. Yes. Mr. hale. Now, we have not been without experience in this " this , has '■ declara- tions and laws, and I might add, that while the United States and the Courts of this country, both State and Federal, have upheld and sustained as the prerogative and power of the State to exercise this control over the railroads in the conveyance-of passengers and freight — while, I say, this is true, this other fact stares us in the face, that we have been attempting, through the medium of the Legislature, to exercise this con- trol for the past fifteen years, and thus far all eflTorts at success have been abortive. I suppose, without being particularly familiar with the views of the committee, that they are of the opinion (judging from the past) that we would be likeljr to have a similar experience in the future, and they have presented this scheme providing for a commission consisting of three Railroad Commissioners to be elected by the people, to become the agents of the people and the railroad companies, and fix and determine in all cases the scale of prices for passengers and for freight upon rail- roads in this State. For mvself, Mr. Chairman, this plan meets my unqualified approba- tion. I had the fortune — perhaps I should say the misfortune — at quite an early day, to introduce into the Legislature of this State the first bill ever proposed for the regulation of fares and freights. It did not become a law. I need not deal with a detail or explanation of it. At nearly every session of the Legislature, from that time until this, efforts have been made to pass bills of that kind, and they have either proven wholly or partially abortive to accomplish any beneficial exercise of State control over these railroads by suon means. I do not propose, sir, to discuss the reason, why that has been the case. I may call attention to this one fact, and would allude to a public docu- ment, or what isiin the nature of a public document, an open letter written by the President of the Central Pacific Railroad Company— I allude to Governor Stanford. I ubt not it was written in the hope that it would be read and appreciated by the members of this Con- vention. 'While utterly disagreeing with theconclusionsreaclied in that communication, I recognize, and you will all recognize, the soundness of many of its views. The soundness of many of them, and I think I might say most of them, are most prominently illustrated in our past experience, in our attempts to legislate upon this subject. To regulate fares and freights by the establishment of maximum and minimum rates, have proven to be abortive. In other words, be proceeds t« reason out and reach the conclusion, that for the purpose of regulating lares ind freights it is impossible to effect it justly and beneficially, either to the people or the railroad companies, by any statute of the State regulat- ing fares and freights. For instance, it is true, and it will be plain to every gentleman who is familiar with the subject, that it would be utterly unreasonable to expect any railroad company to transport fr»m San Francisco to the State line, or between any points in this State, s cargo or a carload of silk goods at the same, price that it would convey for the same distance a carloaanies, and Iheu remove this notorious source of vexation, excitement, and corruption from the halls of oor Legislatures, and relieve us from the turmoil which it occasions among the people, and place it where there will bea wise, calm, and just exerdse of the power of control by the people of the State over these railroad companies. Mr. Chairman, I hope this amendment will be voted down, and that in lieu of it the Convention will adopt the scheme presented by the committee as shadowed in section nineteen and twenty of their report. Mr. WICKES. Mr. Chairman : I think the gentleman who offered this amendment was premature. I do not think the vote upon tbli sec- tion Me. FILCHER. I have been informed that the gentleman is waiting an opportunity to withdraw it. Mr. WICK'ES. If gentlemen would moderate their zeal to ensable' proposition and a declaration that is just as necessary as and more necessary than the declaration that they are common carriers. I do not know, and the people of this State do not know, but that the time will yet come when they will not only want to act upon the declaration that they are public highways, free to all persons for the transportation of their persons and property theoretically, and under proper control and regulation, but that they shall declare that communities and places along the lines of the road, under proper regulations, can put their own cat's and their own locomotives upon these public highways. Whilst not depriv- ing anybody of their property, whilst not depriving them of their fran- chise, pay all due and proper bills that may be coming to them, but at the same time make the only possible competition in the Stat« of Cali- fcrnia — perhaps the only kind of competition that Is possible under the peculiar geographical formation of this State. I hope that the com- mittee will adopt the amendment. SrKKCH or MB. HCFABLAND. Mb. McFARLAND. Mr. Chairman : I wish to ask the gentleman from San Francisco, Mr. Barbour, If he means, when he provides that a railroad shall be a highway, that any person can use It for the trans- portation of goods; whether he means that every person has the right to use it for the transportation of general freight, putting cars and loco- motives upon it. Mb. BARBOUR. Yes; under such regulations as may be prescribed by law. Mb. MoFARLAND. I supposed you meant that a railroad shall be a public highway, upon which any person can put such cars and loco- motives 08 thev please. Mr. BARB6UR. The gentleman misapprehends me. I say this declaration is made upon the same ground that we declare the right to control fares and freights. The same power can put a proper regulation upon the use of the roadbed, regulating the schedule time, and making a time table. Mr. McFARLAND. Then I understood the gentleman right He says now that railroads shall be public highways, upon which any per- son can put cars and locomotives, in the manner provided by law. That Is what the railroads in this State are to be compelled to do, and the Legislature Is to fix up some schedule of time upon which you, or I, or anybody can run a train of cars. I do not care to argue tnat ques- tion. I merely wanted to know what his idea was. I would like to call the attention of the committee to the two final sentences or clauses In this section. They certainly ought to be amended In some way. The second clause is entirely unnecessaiy, it seems to me. The general law provides that anybody can build railroads in any part of the State, from one end of it to the other, by paying for private property. What is the use of saying that they may connect with other lines outside of the State, for they have that right if they choose to do so, anyway. This clause is simply useless and unnecessary. The last clause reads: " Every railroad shall transport each other's passengers." Now, each other's passengers refers to the preceding plural. It does not seem to me that it is grammar or common sense to say the compa- nies shall transport each other's passengera and cars. The clause seems to need amendment — I hardly know how. Now, if that first word was "all" and the third word in the plural. It might perhaps help the case some. But, certainly, It does not mean anything to say that every railroad company shall receive and transport each other's passengers. Why should you provide that any railroad shall receive the passengers of any other company? They are common carriere, and bound to take all passengers. 'There is no use in providing that they shall receive passengers, for they are bound to receive all passengera. They are common carriers, without any declaration in the Constitution to that effect. I do not see any necessity for putting these provisions in. SPIECH or MB. SMITH. Mb. SMITH, of Fourth District. Mr. Chairman: As I understand it, the only amendment is the one offered by Mr. Barbour, Thi chairman. Yes, sir. Mb. SMITH. I am somewhat surprised at the committee omitting this part of the section introduced by Mr. Barbour — this atnendincnt — inasmuch as I have looked over all the new C>)nstitutions of those States that have dealt with this railroad question, and found without exception that they contain this provision, or substantially this provision. And when I consider further that in making railway and canal companies common carriers, that it is only half of the question, I am surprised at this able committee leavingout the other half. Of course, you can't make the roads common carriere, no more than you can make a river a com- mon carrier. You can moke the road a public highway and the company a common carrier; you can declare a river or canal a public highway, and the company plying thereon a common carrier. y^r»w this question Digitized by VjOOQIC 456 DEBATES AND PROCEEDINGS Tuesday, is not a new one by Uij means. I presume that no lawyer on this floor will deny the fact that it has been established by all the decisions known upon railroads, that they are considered public highways. It has been decided in a recent case in the Supreme Court of the United States, the case mentioned by the gentleman from San Francisco, Mr. Barbour. They are considered puolic highways — not ae common roads, not as canals, not as turnpike roads, not as street railroads, not as streets — but they are considered as improved highways. In this case, the People vs. Kerr, 27 Cal. p. 207, this question is fully defined. Now it is not presumed that the Legislature will presume to allow men to put on trains and pass each other, nr to run them on their own time. The object is to declare them public highways, and we want it in the Constitution, where the Legislature cannot repeal it. Mr. Church, one of the ablest delegates in the Convention of Illinois, and one of the ablest jurists of that body, makes this declaration on the subject: "Railway companies, with the extraordinary privileges they have been allowed to enjoy, and the extraordinary powers they have been allowed lo exercise, in confiscating private property for private corpora- tions, have been justified by the Courts, ouly on the principle that rail- roads are a species of public highways — improved highways, they are called by the Courts — ^yet the practices have been such that all partici- pation by the public in these highways has been denied, unless they conform themselves entirely to the private regulation of the private corporation; the people, whose property has been condemned, having had no voice in the matter. The public, in their sovereign capacity, as law makers, hare been held to have no participation in the regulation of these highways; but practically the roads, and franchises, and extra- ordinary immunities have been held and controlled by the companies simply as private property. This proposition is simply declaratory of the limitation of those rights as they have been indicated by the Courts, and justified in the exercise of those great powers over private rights. The proposition does not contemplate any encroachments u^n the rights of property ; but that under the sovereign power by which the people of the State have the right to subject private property to public uses, this railroad property may be Subjected to the public uses as a public highway, under such reg- ulations as shall be prescribed by law, in reference to compensation and use." Mr. HOWARD, of Los Angeles. I would like to inquire if the amendment is open to amendment? The chairman. Yes, sir. Mr. HOWARD. Then I suggest an amendment, after the word " law," by inserting the words, " securing just compensation to the rail- way or canal." I shall vote for the amendment of the gentleman from San Francisco with the amendment I have suggested. I am willing to vote for it with this amendment, but I will not without. If we declare that anybody shall have the right to put on a train, it does not follow that they may do it without paying the railroad company. It is not within th« power of the Legislature to take away the right of t&e com- pany to demand just compensation for the use of the road. Now they must be under some police regulation in order to avoid accidents nnd collisions. This amendment of the gentleman secures a declaration recognizing the right to put cars on the road, and I shall favor it. The late Transportation Commissioners, in their report to the Legislature, say that one of the great means of solving the railroad problem is to permit any one who desires to run his own cars on the railroad, paying, of course, a just compensation therefor. SPIKCB OF MR. (8TEI. Mr. ESTEE. Mr. Chairman: When your committee was examining this subject, it was not unanimous in favor of the report adopted. The same amendment now presented by the gentleman from San Francisco, Mr. Barbour, was presented by him to tne committee, and it was duly considered by the committee, and rejected. So far as I understand, it was voted down because your committee believed, in considering this matter, that it would be better to assume the middle ground, and go to no such extremes as is proposed by the gentleman. The committee's report commences by asserting that all raifrnads, canal, and transporta- tion companies shall be common carriers, and subject to legislative con- trol. It was thought by us that, as the highest Courts of the country had declared that these common carriers were subject to legislative con- trol, we would formulate a section making that law jiermanent, rather than say they are public highways; the first had received judicial inter- pretation, the latter had not. It is true that in Illinois, and I think in Missouri, railroads are declared to be public highways, but under this section of the Constitutions adopted in those States, nowhere is there any attenipt to control railroads to the extent claimed by the gentleman from San Francisco, Mr. Barbour. Again; "transportation companies" was a terra put in, as I understand it, for the purjwse of reaching those com- panies referred to by the gentleman, namely, red lines and star lines, which are understood to be companies within companies, organized for special purposes, with exclusive and special privileges, to transport pas- sengers and freight on more favorable terms than outsiders can obtain. We declare these companies, as well as railroad companies, to be subject to legislative control. Now, what does that mean? If it means any- thing, it means that the Legislature of the State shall have control over all those companies. And that, as 1 understand it, is what we want to do. It certainly is all that ought to be asked, it is all I am willing to do, and, for one, aa far as that section is concerned, I believe it is right as it stands. I do not believe in putting in words that we ourselves do not know the meaning of, or which are of doubtful interpretation. What construction will be placed upon the proposed amendment no one can know. I do not believe that anybody, outside of the owners of the railroads, contemplates running cars upon any of the railroads in this State; to run them on their own time, under their own direction, regsrdlea of the peculiar business in which the companies are engaged, for the tnas- portation of passengers and freight, would be hazardous in the extreme. We are aware that there can be but one head to a railroad company. There must be one rule b^ which its business is done, and one time table. There must be a time for leaving One point, and a time for arriving at another. The business is of such a peculiar character that It must necessarily be under the control of one company and one mind. I do not believe there will ever be any practical solution of the railroad problem by allowing people indiscriminately to place and run am on other people's railroad tracks. For that reason I do not propose to liiTor any amendment that will even contemplate the carrying out of that idea. I think we had better strike at the evils in sight, rather thai hunt up imaginary evils and attempt to remedy thera. The evils that exist let us remedy by means within our power, and which are pradica- ble. There is a section reported by your Committee on Corporatioiu which puts most of these matters in the hands of a commission. That commission will have a large control of this subject. Unless some eeii- tleman can present some better formulated section, conveying the idea found in our report, I shall support the report as made by the commit- tee. I do not say this section cannot be improved by amendment— that none other can be presented worthy of consideration — but, after full examination by your committee, it was believed that this section, a> reported, would best convey the views of your committee, and would represent the views of the people and of the Convention on this subject. Mr. smith, of Fourth District. Suppose one of these canal com- panies should sell to an individual; would the law of common catrien apply? Mr. ESTEE. I am not aware of any right at common law to sell a franchise. There is no right of alienation at common law. The ririit is statutory only. If the gentleman wants to amend the section oy inserting the word " individual," all right. Mr. SMITH. A railroad cannot be sold without selling the firanchiae, and can be in the name of an individual as well aa a company. I onlj mention this as an illustration that there are many matters that are not, could Mr. ESTEE. Well, if the gentleman will point out what's the matter, and how it will be remedied by inserting the words "public highways." which will not be remedied by the section as it stands, I will support it. If he will refer to one solitary evil that can be covered by the langoa^ suggested by him, let the amendment be adopted. I submit, if he will turn back to the part already adopted, he will find that we hare adopted a section that expressly provides that the Legislature shall not pass any law iwrmitting the alienation of franchises, except as therein prescribed. I think my young friend is mistaken in his point. Mr. SMI'tH. I would ask if there can be an alienation of a franchise under the law? Mb. ESTEE. As I stated, it is not permitted at common bw. It is done under the statute. Mr. smith. Under no circumstances? Mr. ESTEE. I know of no instance where at common Uw the owners of a franchise can be permitted to alienate the franchise. Mr. SMITH. Section ten reads: " Sro. 10. The Legislature shall not pass any laws permitting the leasing or alienation of any franchise so as to relieve the franchise or property held thereunder from liabilities of the lessor or grantor, lessee or grantee, contracted or incurred in the operation, use, or enjoyment of such franchise, or any of its privileges." I think they can be alienated. Mr. ESTEE. That section does not say that it can be or cannot be alienated. But I say, under the law, as I understand it, franchises are grants from the State, and cannot be sold at common law. They esn- not be alienated. The right to sell is statutoiy. Mr. waters. I wish to ask the gentleman a question. Under our statute law to-day, cannot franchises be sold under forced sale— under execution? Mr. ESTEE. If there is any special law on the subjed., I do not know of it. This is the common law, and has for years been made the law of this State. Mr. waters. I think this gehtleman will find it in the Code. Mr. ESTEE. I ask the gentleman this question : Unless otherwise specially prescribed, hasn't it always been the law that franchises can- Mr. waters. The Code provides that it can be done by forced sale or execution. SPCBCa OF MR. XI>OIRT0N. Mr. EDGERTON. Mr. Chairman : As to the point last made, as to the power to alienate a franchise — atcommon law a franchise is regarded as a matter of trust between the Crown and the grantee, and therefore not subject to alienation — in this State it has been held, over and orer again, that any corporate franchise may be sold on execution, and the title passed, and that is the rule in this State now. Mr. ESTEE. Yes, sir; forced sale. Mr. EDGERTON. It can be at forced sale, and of course there are arrangementa for consolidation, and all that. Now, as to the question immediately in hand, the amendment of the gentleman from San Fran- cisco, Mr. Barbour, declaring railroads public highways. It is true, sir, that this provision is found in the Constitutions of some other States, and also in the laws of other States. I object to their drawing the Con- stitution of Pennsylvania on us. Because this provision is found in the Constitution of some other State is no reason why it should be adopted here. I never could understand to what this proposition points, unlMi it be that these railroads are to be declared highways in the fall senseof the word — open to anybody to go on with his steam engine, with his directors' car, with his passenger car, and hi»~(ieight car, aod use tifi Digitized byLjOOQlC Nov. 19, 1878. OF THE CONSTITUTIONAL CONVENTION. 457 road to the exclusion, perhaps.of the proprietor of the road, under regu- lations, of course, to be provided by law. Now, there is nothing new in this scheme. It is as old as railroad law, almost. At a verj eariv day in the history of railroads in England, where railroads originated, the Duke of Wellington, in one of the first debates of Parliaineut, stated that it must always be observed that there was an analogy between a railroad and the King's highway, and it is that analogy that has been paraded before us here ; and he tells us that upon that false analogy the past superstructure of legislation was reared, which iu Kngland was found to be utterly useless, and was in the end repealed. The folly of that legis- lation is, that the proprietors of a railroad may be separated from the carrier. In England tlicy passed many laws providing rules and regu- lations by which the proprietor could go with nis steam engine and cars over his own road. But the system was found to be a perfect humbug. It was found to work very great injustice, great inconvenience, and resulted in many accidents. As far as this section is concerned, I think the criticisms of the ^ntleman from Santa Clara are merited. Like a great many other sections, it is drawn in a bungling manner; it is bad English, bad grammar, and worse sense, and is evidence that the school- master was abroad. It ought to be referred to the Committee on Educa- tion to be reformed. I hope the amendment will be voted down, and that the amendment of the gentleman from Santa Clara, Mr. lialne, will be adopted. SPEKCH OF MB. HKRRIXGTOM. Mr. HERRINGTON. Mr. Chairman : The first part of this prmposi- tiou simply declares that these companies are common carriers. Now, let ns see how closely allied common carriers are to highways. It will be admitted by every one that those who run a stage line upon the pub- lic road are common carriers. They are not necessarily connected with the road. They are not so fastened to the road as that no distinction can be made. Now, the distinction is a very plain one, and when we say we will control common carriers, we simply mean those carrying upon the road. The two terms, common carriers and public highways, have not necessarily any connection whatever. There is ns broad a dis- tinction as there is between the clouds and the earth, as between land and watar. There is no necessary connection whatever. Now, let us see if these are public highways. Nonsense. The authorities are full of these propositions, and the power of eminent domain is never exer- cised except where it is directed to a public use, for the public good, and yon cannot call in the great power of^ the State to assist you in acquiring an absolute right except it is for a public use. Now, what is a public use? Why do you call it a public use? Simply because it is a ilse to which all your citizens have a common right, upon certain conditions. What are those ^nditions? Why, simply the ]myment of the toll to support the public highways, in your busmess as common carriers. Now, Coolcy — I do not know — he was not much of a railroad lawyer, I guess, but he understood a little about what constitutes a public use and what constitutes public highways. That distinguished author, page &33, says: "Every government is expected to make provision for the public ways, and for this purpose It may seize and appropriate lands. And as the wants of traffic and travel rec^uire facilities beyond those afforded by the common highway, over which any one may pass with his own vehicles, the government may establish the higher grade of highways, upon some of which only its own vehicles can be allowed to run, while others, differently constructed, shall be open to use by al! on pavment of toll. The common highway is kept in repair by assessments of labor and money ; the tolls paid upon turnpikes, or the fares on railroads, are the equivalents to these assessments; and when these improved ways are required by law to be kept open for use by the public impartially, they also may properly be called highways." How is that? I think it is just precisely what this amendment pro- vides, which we are trying to put into this Constitution. This provision means that they shall not be above the people. We want to declare that it is a public use, te distinguished rrom a private use. That is what it means. We want to distinguish it from a private use now attempted to be forced upon this Convention by the distinguished and influential chief of the railroad companies in the State of California, who is admitted to be potent. Now, I have given you the distinction between a common carrier and the road upon which he runs his vehicles; the conveyances and the road itself, as contradistinguished. I propose to vote for this amendment, because it simply declares a pro- position of law which is as old a,3 the hills and government itself. Mr. EDGERTON. Mr. Chairman: I rise to ask the Chairman of the Committee on Corpqrations one question. In the last clause, in line five : "Every railroad company shall nave the right with its road to intersect, connect with, or cross any other railroad, and shall receive and trans- port each other's passengers, tonnage, and cars, loaded or empty." I want to know if " loaded or empty " has reference to the passengers? [Laughter.] Whether the passengers are loaded or empty, or whether it has any particular reference to starting before breakfast? Mr. ES'TEE. Does the gentleman wish an answer? The section reads: "All railroads, canal, and transportation companies shall be common carriers, and subject to legislative conlrol. Any association or corporation, organised for the purpose, shall have the right to construct and operate a railroad between any points within this State, and to connect at the State line with railroads of other States. Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad, and shall receive and transport each other's passengers, tonnage, and cars, loaded or empty, without delay or dis- crimination." If the gentleman wants to know whether I consider him loaded or empty — [laughter] — I don't know but that is good grammar. Mb. EDGERTON. If the gentleman will allow me; I move that the whole report be sent to the Committee on Education, to be reformed. Ms. E8TEE. Mr. Chairman: I do not intend, as far as I am con- cerned, to permit, if I am able to prevent it, any important amendment 68 to this article to be laughed down. I believe it represents the advanced and true ideas of the times, and meets the requirements of the age. If you want to defeat it, defeat it squarely, or help us correct it, if it is wrong. If it is right, stand by your guns and pais it. [Applause.] SPEECH OP MR. JOBNSOl). Mr. JOHNSON. Mr. Chairman : I do not see any great difficulty about this section of the article on corporations, but I think it would be better in this wise: "AH railroads, other than street railroads, and all canal and transportation companies, shall be common carriers and subject to legislative control." I thmk that is better phraseology, as it confines it entirely to street railroads. " Any association or corporation organ- ized for railroad purposes" (that would be entirely proper) " shall have the right to constrtict and operate a raBroad between any points within this Stote,and to connect at the State line with railroads or other States. Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad, and shall receive and trans- port each other's passengers and cars," etc. That would answer the purpose intended by the additional section of the gentleman from Placer. This would remodel the section and confine it to steam rail- roads. In respect to the amendment of the gentleman from San Fran- cisco, Mr. Barbour, I have t^is to say, I am not in favor of any experi- mental provisions in this Constitution. We have declared railroad companies to be common carriers, and that seems to me to be broad enough. I am not in favor of introducing anything into the Constitu- tion which is vague and indefinite, to be construed by the Supreme Court. I want to use the simplest language possible. I do not believe the people would sanction such an innovation as this. I do not think this amendment should be adopted, because we cannot tell what con- struction may be put upon it. It may seem harmless, and yet when it comes to be construed, we may find that railroad companies have not the right to a reasonable possession and use of their own property. Mb. GREGG. Mr. Chairman : I move that the committee rise, report progress, and ask leave to sit again. Carried. IN CONVENTION. Tbk president. Gentlemen : The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have made progress therein, and ask leave to sit again. ADJOCRMMENT. Mb. McCALLUM. I move that the Convention do now adjourn. Carried. And at five o'clock and fifteen minuljes the Convention stood adjourned. FIFTY-THIRD DAY. Sacramento, Tuesday, November I9th, 1878. The Convention met in regular session at ten o'clock a. m.. President Hoge in the chair. 'The roU was called, and members found in attendance as follows: Andrews, Ayers, Barbour, Barnes, Barry, Barton, Beerstecher, Belcher, Bell, Blackmer, Boucher, Brown, Burt, Campbell, Caples, Caaserly, Chapman, Charles, Condon, Cowden, Cross, Crouch, Davis, Dean, Dowling, Doyle, PRESENT. Garvey, Glascock, Gorman, Graves, Gregg, Hager, Hale, Hall, Harrison, Harvey, Heiskell, Herold, Herrington, Hilbom, Hitchcock, Holmes, Huestis, Hughey, Hunter, Inman, Johnson, Jones, Joyce, Kelley, Kleine, Laine, •Lampson, Dudley, of San Joaquin, Larkin, Dudley, of Solabo, Larue, Eagon, Lavigne, Edgerton, Lewis, , Estee, Lindow, Estey, Mansfield, Evey, Martin, of Alameda, Farrell, McCallum, Fawcett, McComas, Filcher, McConijiell, Finney, McCoy, Freeman, McNutt, Freud, Mills, Digit, Moffat, Moreland, Morse, Nason, Nelson, Neunaber, O'Donnell, Ohleyer, O'Sullivan, Porter, Prouty, PuUiam, Reddy, Reynolds, Rhodes, Ringgold, RolJe, Schell, Schomp, Shafler, Shurtleff, Smith, of Santa Clara, Smith, of 4th District, Smith, of San Francisco, Soule, Stedman, Steele, Stevenson, Strong, Sweasey, Swing, Thompson, Tinnin, Towusend, Tully, Turner, ' Tuttlo, Vacquerel, Van Dyke, Van Voorhies, ""'Ogle 458 DEBATES AND Walker, of Marin, Wellin, Walker, of Tuolumne, West, Waters, Wickes, Webster, . White, Weller, Wilecn, of Tehama, Wilson, of Ut District, Winang, Wyalt, Mr. I'resident. Berry, Biggs, Dunlap, Grace, Howard, Kenny, ABSEXT. Keyes, Overton, Martin, of Santa Cruz, Reed, McFarland, Shoemaker, Miller, Stuart, Murphy, Swenaon, Noel, Terry. LtATK or ABSRXCt. Leave of absence for one day was granted Messrs. Dunlap and Keyes. Leave of absence for two days was granted Mr. Swenson. THI JOURNAL, Mr. HUESTIS. I move that the reading of the Journal be dispensed with, and the same approved. Carried. OEATK OP HON. J. M. RTRONO. Mr. JONES. Mr. President : It is my painful duty to inform you, and through you the members of this Convention, of the death of a member of this body. Mr. J. M. Strong, a member of this Convention, representing the Assembly District composed of tlie Counties of Mariposa and Merced, died while in attendance upon this body this morning, in this city, and I ofler these resolutions in respect to that matter, for the consideration of this Convention: Whrrkas, We have been iuforrned of tfa« death of the Honomble J. U. Strong, a delegmte to this Convention frum the Ouuntie« of Mariposa and Merced ; therefore, Rtsolved, That It li with a foeling of profound ngrtt that we hare heard of the death of Ilouorabte J. M. Strong, a delegat« to thia Convention from the Counties of Uaripoea and Merced. Ruolved, That in hh deatli thli Convention has loet an honest, faithful memtter; society a nteful and liiteltigent citizen, and hie tmci\y a tender and devoted parent. Raolvtd, That in tliia hour of their deep affliction and grief, we ten er to bia fam- ily our ftincure condolence Mnd profound Bympathy. Retolvfd^ That a committee of five 1>e appointed by the Chair to take charge of tho Temaios of tlie deceae^.'d, and to defray the neccMary expenses In connection with his faneral out of the funds of tliU Convention. Rualrtd, That the .Secretary ba directed to forward a copy «f theao reaolotlona to the family of the decaased. Retolved, That this Convention do now a4)onm out of nepect to the memory of the deceaead. Thk president. The question is on the adoption of the resolutions. The resolutions were adopted unanimously. THit coMyimii. Thk president. The Chair will appoint, as the committee pro- vided for in the resolutions, Messrs. Holmes, of Fresno; Heiskell, of Stanislaus; Lampeon, of Tuolumne; Brown, of Tulare; and Jones, of RIHARKS OP MR. CASSKRLT. Mr. CASSERLY. I cannot refrain from adding a word in regard to our deceased fellow member. I had at one lime a great deal of corre- spondence with him in respect of his efforts to make the raising of cotton a success in this State. I found biiu an intelligent, upright, straight- forward man. At that time his experiment fell short of success, and I believe carried with it a large part of his fortune. Whether or not the experiment, under the best of circumstances, could have been an entire success, is more than I am able to say ; but ho manfully and courage- ously addressed himself to the effort to make it a success. I feel that our young State owes to such as he the tribute of her good_wiII, of her praise, and kindly remembrance. Mb. REYNOLDS. I move to lay over for one day the motion of which I gave notice yesterday to reconsider the resolution on printing the Journal. Thk president. If there be no objection, the gentleman will have leave to make his motion to-morrow. Pursuant to these resolutions, the Convention stands adjourned until to-morrow at ten o'clock. [10:15 a. h.] FIFTY- FOURTH DAY. Sacrambkto, Wednesday, November 20th, 1878. At nine o'clock and forty-five minutes a. m., a quorum being present, the President called the Convention to order. OBSKQUIIS UP MR. STRONG. Mr. LARKIN. I desire to offer a resolution. Thb secretary read: Besolred, That a recess b« taken until on« o'clock thik day, to enable memben to participate in the obsequies of the Hon. J. H. Strong. Mb. LARKIN. Mr. President: I desire that this resolution may pass, so that this Convention will pay due respect to the memory of a deceiased member ; that we shall march in a body down to the depot and see the body on the cars. I hope there will be no objection. Mr. west. I second the resolution. Adopted, unanimously. Thb PRESIDENT. The Convention will take a recess, according to the resolution, until one o'clock p. u. AFTERNOON SESSION. The Convention reassembled at one o'clock r. u., President Hoge in the chair. PROCEEDINGS Wednesday, The roll was called, and members found in -attendance as follows: PRB8BMT. Andrews, Hall, Pulliam, Avers, Harrison, Reddy, Barbour, Harvey, Herold, Reed, Barnes, Reynolds, Barry, Herrington, Rhodes, Barton, Hilborn, Ringgold, Beerstecher, Hitchcock, Rolfe, Belcher, Holmes, Schell, Bell, Howard, Schomp, Bigg8. Huestis, Shatter, Blackmer, Hughey, Shoemaker, Boggs, Hunter, ShurtlefT, Boucher, Inman, Smith , of Santa Clara, Burt, Johnson, Smith, of 4th District, Campbell, Jones, Smith, of San Francisco, Caples, Jovce, Soule, Cas.>»erly, Kelley, Stedman, Chapman, Kleine, Steele, Charles, tiaine. Stevenson, Condon, Lampson, Strong, Cross, Larkm, Sweasey, Crouch, Larue, Swenson, Davis, Lavigne, Swing, Dean, Lewis, Terry, Dowling, Lindow. Thompson, Doyle, Mansfield, Tinnin, Dudley, of San Joaquin, Martin, of Alameda, Townsend, Dudley, of Solano, Martin, of Santa Crui, TuUy, Dunlap, McCallum, Turner, Eajjon, McOomas, Tuttle, Er agricultural, mercantile, and manufkcturing purposes, may. vote on all qaeMioos affecting such societies In manner prescribed by law.'' The committee recommend that no alteration be made la SfCtion tfilrteMi, H reported by the committee, and which reads as follows? A .oogle Nov. 20, 1878. OF THE CONSTITUTIONAL CONVENTION. 459 8kc 13. The St«t« ahsll not nibKribe to or b* interMted in th« itock of, or In ftny manner lo«n ftn credit to, aoj person, companj, aawK-iatlon, or corporation. U. U. KSTt:E. Chaimian. Mb. ESTEG. I more that it lay on tha table aud be printed. Carried. THE STATE DKIVKRSITT. Mb. WINANS. Mr. President: This Convention some time" since passed a resolution calling upon the President and Secretary of the Board of Regents of the Un^ersity of the State of California to furnish to the Convention a statement in brief of its financial condition, the nature of its fund.i, etc. The President of the Board of Regents, who is the Gov- ernor of the State, could not, of course, comply with that requirement, because he is located in this city and the worlc was required to be trans- acted in Berkeley, but the Secretary of the Board of Regents and the President de facto, did prepare and have presented to this body a report, in which the matter involved was exceedingly voluminous and the work very complicated and extensive. It has been discharged with extraordi- nary expedition, and the report has been ordered printed. It requires, in order to present the subject-matter more clearly to this body, that it should be separated into the different funds. The funds should be pre- sented as separate funds, and the Secretary of the Board of Regents is now here and with the permission of this body can in a short time so arrange the matter now in the printers hands as to present a clear and distinct view of the subject, in that way, by segregating the funds. The Committee on Education, by a unanimous vote last night, instructed me to present to this body the following resolution : '• Resolved , that the Sec- retary of the Board of Regents of the University be authorized to arrange the report of the financial affairs of that institution, hitherto presented to this Convention, and now in the hands of the printer, so as to segre- gate the several funds therein set forth ; and also to add to said report, to be printed therewith, the separate report of t^e President of said Uni- versity respecting the donations thereto." The President also sends up a separate report, in which he specifies all the donations which have Deen made to the University that have already been completed. There are several donations the moneys from which have not been received, but are in due course of transmission to the University. The President's report is indispensable to a full under- standing of the other, and our committee requests the passage of this resolution, that the tabulated statement now presented and in the hands of the State Printer, may be so arranged and classified as that it will show the condition of the University uinds in the clearest manner; and in order that the President's report as to the donations that have been made to the University may be superadded to the report of the Sec- retary. I therefore offer that resolution. Tb« SECRETARY read : Xaoletd, That the Secretary of the Board of Kegonts of the UntTerBity be anthoriieii io arrange the report of the financial afliain of that institution, hitlierto preeented to thie Gonrention, and now in the hands of the printer, so as to aearegate the aeveral funds thervin set forth ; and also add to said report, to be printed there- with, the separate report of tlie Preaidentofsald Unireisitj respecting the donations thereto. Adopted. Mb. WIN.\NS. Mr. President: The Committee on Education also instructed mV to present the following resolution : Xaalced, That the letter of E. W. Hllgard, Agricullnral Professor of the Vnl- ventity of California, respecting the condition nnd future prospects of the Acrlcul- taral Itrpartiuent of the University, submitted to the Coniiiilttee on Educat&n, l)« printed, and copies thereof funiishod to the memtien of this Conrention. The object of that resolution is this: Ofie of the members of the Com- mittee on Education corresponded with the Agricultural Professor of the University, nnd has received a letter from the Professor, in which he fully sets forth the character and future prospects of the Agricultural Department. It contains valuable information for the use of this Con- vention, and will correct errors and misapprehensions which now exist. It is therefore asked that this letter be authorized to be printed. It will not consume much time, or involve much expense to have it printed. The SECRFfARY read : JZesaitxd, That the letter of R. W. Hllgard, Agiicnitural Professor of the Uni- versity of California, respecting the condition and future prospects of the Agricul- luntl Department o( the Dulveraity, submitted to the (X'mmittee on Education, be printed, and copies thereof furnished to the memlien of this OonvenUon. , Adopted. [The reports and letter alluded to above are printed in the proceedings of November sixteenth, as finally printed for the use of the Convention — RBrOBTERS.] ESCHEAT TO THE STATE. Mb. SMITH, of Santa Clara, presented the following proposed amend- ment to the Constitution, relative to property escheating to the State: f\r»t — Ko person other than citizens of the United States, and those who are eligible to become such citizens, shall hereafter in this State acquire any estate in lands. And all real property acquired in violation of this provisioti shall escheat to the State. Second. — Within the jurisdiction of this State, all lands, the title to which shall fail from a defect of heirs, shall escheat to the State. Referred to the Committee on Lands and Homestead Exemptions. ■ KCHANICS' LIRNS. Mb. crouch presented the following petition, signed by a large num- ber of mechanics, citizens of California : To the President and Members of the Constitutional CoUTention : OcnTLUCiCK : The undersigned respectfully represent that the practical working of the present legislation, and decisions of Supreme Court based thereon, regarding the rights of mechanics, material-men, and laborers to a lien for their Itihor and material furnished, is such that those who in a measure depend upon such law for jiHt protection tail In nearly all cases to obtain it, because of the loelBcient working of said law. Wherefore, we pray you to declare, in our organic law, the right of every mectuinic, material-man, and lalwrer to a perfect lien on the thing whereon bis labor has l>een expended or for which his materials have been furnished. Moreover, we would state that we would be satisfied with amendment number one hundred and sixty-seven, introduced by Mr. Van Dyke, on October tenth, eighteen hundred and seventy-eight, and read and referred to Committee on Misceltaneous Sul^ects, as follows: **Skc. — . Mschanfcs, material-men, artisans, and laborors of ever}' class shall have a lien upon the property on whicli they have bestowed latwror furnished mate- rials, for the value of such lalwrdone and materials furnished, and the Legislature shall provide by law for the speedy and efficient enforcement of said liens." And your petitioners will ever pray. Referred to the Committee on Miscellaneous Subjects. MOTION TO AMEND BCLE. Mb. INMAN. Mr. President: I wish to bring up my motion to amend Rule Fifty-six. The SECRETARY read: " Amend Rule Fifty -six as follows : Strike out, in lines two and three, the words, ' for limiting the times of speaking,' and insert, ' that no mem- ber shall speak more than ten minutes on any one proposition without leave of the Convention.' " Mb. BEERSTECHER. I move that it be laid on the table. Mb. INMAX. I will call for the ayes and noes. The ayes and noes were also demanded by Messrs. Hunter, Dean, Smith of Santa Clara, and Ohleyer. The roll was called, and the motion lost by the following vote : ATKS. Ayers, Gorman, Schell, Barbour, Grace, Shurtleff, Barry, Hale, Smith, of San Francisco, Barton, Herrington,, Stevenson, Beerstecber, Hilbom, Sweasey, Belcher, Howard, Swenson, Bell, Hughcy, Terry, Blackmer, Johnson, Thompson, Boucher, Joyce, Townsend, Casserly, Kleine, Vacquerel, Walker, of Tuolumne, Charles, Lindow, Condon, Martin, of Santa Cruz , Wickes, Doyle, McComas, White, Dudley, of San Joaquin, McConnell, Wilson, of Tehama, Eagon, Kelson, Wilson, of 1st District, Estee, O'Donnell, Winans, Fawcett, O'Sullivan, Wyatt, Freud, Reddy, Mr. President— 58. Garvey, Reynolds, Glascock, Ringgold, NOES. Andrews, Inman, Reed, Boggs, Jones, Rolfe, Burt, Kelley, Schomp, Campbell, Laine, Shafter, Cross, Lampson, Shoemaker, Crouch, Larkin, Smith, of Santa Clara, Davis, Larue, Smith, of 4th District, Dean, Lnvigne, Soulc, Dowling, Lewis, Stedman, Dudley, of Solano, Mansfield, Steele, Dunlap, Martin, of Alameda, Swing, Edgerton, McCallum, Tinnin, Estey, McCoy, Tully, Evey, Mills, Turner, Farrell, Moffat, Tuttle, Finney, Moreland, Van Dyke, Graves, Morse, VanVoorhies, Gregg, Murphy, Walker, of Marin, Hager, Hall, Kason, Waters, Neunaber, Webster, Harvev, Herold, Ohleyer, Welter, Overton, Wellin, Hitchcock, Porter, West— 73. Huestis, Prouty, Hunter, Pulliam, Mb. SMITH, of Fourth District. Mr. President: I move to amend by striking out " ten " and inserting the word " fifteen " before the word " minutes." Mb. BEERSTECHER. Mr. President: J hope that any pro|)osition concerning the limiting of speeches upon the siibject of corporations, or any other subject that we are about to enter into at this tjme, will be voted down. Mr. President, I am thoroughly satisfied in my own mind that the object of passing a resolution of this kind at this particular time is to stifle debate upon the subject of corporations. I for one do not propose to vote for any proposition to choke off any one, or for the purpose of stifling debate upon this important subject. We are now considering the siioject of corporations. We have finished with corpo- rations generally, and ar^ now entering upon the subject of railroads. Now, at this particular juncture comes the proposition to limit the time of speeches to ten minutes. Just as soon as we reach the subject of railroads — a subject that interests ever^ producer and every working man in the State of California — this motion is made. And not only that. The next subject will be the Chinese question, and then will come taxa- tion and the legislative department. The debates, if debates are to be had at all, ought to ke had in the Committee of the Whole, and. if there is to be a limit the limit ought to be in the Convention. I am willing to limit debate in the Convention, but I never will place myself unon record as voting to limit debate in Committee of the Whole, /-^r^l f> i 460 DEBATES AND PROCEEDINGS Wednesday, It seems to roe a very significant fact that this motion for a ten-minute limit has not been broached at all until we have reached the subject of railroads. I think the subject of railroads ought to be thoroughly dis- cussed, as well as the subjects of Chinese and taxation. I propose to vote against any amendment of this character which will stifle and cut off debate upon those important subje<'ts. It has not been done in any Convention heretofore, it is unparliamentarj', and it is out of place at this time. Mr. IKMAN. Mr. t'resident :.I am the author of that amendment, and I introduced it simply to shut off such long-winded speeches that we fenerally have from the gentleman who has just taken his seat. Now, Ir. President, I am just as far from being in the interest of coqioralions as the gentleman is, and my votes will show it. We have spent some fifty days here and done nothing; ten minutes is as long as any gentle- man neied take to express his views as a general thing. But my amend- ment says, " without leave of the Convention." I presume that this Convention will grant any gentleman they desire to hear all the time he wants. I am satisfied that they will. ' But let them all_take their own time and we will not get through here until the end of time. I am very anxious to see exactly who ere the friends of the people and who are not. My vote will be my record. My vote shall agree with my talking and with my past history, and I refer the gentleman to that to satisfy him as to whether I wear a collar or not. I do not wear any. If he does I am only sorry for him. In regard to the amendment, I think five minutes would be better than fifteen. I am satisfied of that. We do not want these long speeches, Mr. President. Mb. HOWARp. Mr. President: I move that the Convention resolve itself into Committee of the Whole on the article before the house. Mb. BEERSTECHER. I want the ayes and noes on this question. Me. HERRINGTON. Ayes and noes. Mb. grace. Ayes snd noes. "^ Mb. O'DONNELL. Ayes and noes. ' Mr. O'SULLIVAN. Ayes and noes. Mr. HAGEIt. Mr. President : I am inclined to favor the proposition about short speeches. One of my colleagues has said that it was unpre- cedented. I think he is mistaken in that regard. lu the Constitutional Convention of Illinois the limit was ten minutes. In the Constitutional Convention of Pennsylvania the limit was twenty minutes. But what I object to most is the rule we have adopted, an erroneous rule I think, in regard to calling the previous question in Committee of the Whole. That cuts off not only debate, but is worse than that, it cuts off any amendment that a member may wish to offer. I would much prefer to cut off these long speeches than to cut off the privilege of amending a proposition. But if we have the rule that we have adopted, and call the previous question in Committee of the Whole, and then shut off debate by a ten-minute rule, I think we should be brought up with a very short turn. I have been against calling the previous question in Committee of the Whole. It is unprecedented in any legislative or deliberative body. It not only cuts off debate but it stops any amend- ment that any gentlemen may wish to offer. I think it will perhaps be a valuable rule if we limit the debate to ten minutes, and I would favor that, but I would recommend the Convention to rescind the other rule about cutting off debate in Committee of the Whole by calling the previous question. I would not object to a rule that would allow the committee to lay any amendment on the table without debate for the purpose of bringing that matter to an end. That is, that any amend- ment might be laid on the table without laying the whole subject-matter on the table. In that way we could expedite matters very much. If we could get our rules in that shape we could lay any objectionable amendment on the table, and then act upon some other amendment. If there is anything worth discussing in it we can discuss it, if not we can lay it on the table. But this previous question business sometimes cuts off a very important proposition which some gentleman wishes to offer, and which the Convention would adopt if an opportunity was offered. Mb. TINNIN. Mr. President : I wish to state to the gentleman that I propose to offer this as an amendment to the rule: " Provided, that when the previous question is sustained it shall only apply to the amendments then pending, and other amendments may be offered to the section." That will cover all the defects objected to by the gentleman who has just spoken. Mb. LINDO W. Mr. President : I voted " aye," myself. If this Con- vention thinks I want to make big speeches — they know I don't speak at all. I am glad that the big speeches always comes from the big side of the house, and I have seen gentlemen make speeches a day and a half. I am glad to have the debates. It is worth the time. If a gen- tleman will stay here and talk three days, I never will break him off, so that I can understand what it is about. I have seen there last week that it was discussed from the other side of the house — there was just where I was glad about that. If it was from the other side of the house they ought to vote it down. It was discussed over two days from the other side of the house; and I always will vote fur it to give a man as long as possible. Let him speak, so long as he speaks to the point. You have to speak at the point. No, sir ; so long as I can see it is good for the people at large I will vote for it. I am not in favor of fifteen minutes. Give kim all the time he wants; then you will all be enlight- ened. [Laughter.] Mb. TULLY. I hope the amendment will be adopted. The president. The question is on the amendment to the amend- ment. Mr. TCLLY. Mr. President: I hope the ten-minute rule will be adopted, for this reason : I will state that I am very fond of listening to fine speeches, but I am satisfied that if the debates go on as at present, that the Convention will not get out of Committee of the Whole in the hundred davs. I am satisfied of another proposition : that any ordinary man can tell all he knows on any subject in this Convention in ten minutes. If my friend Beeretecher cannot do it, I advise him to go out and rent a hall, and we will all come and listen to him. Mb. west. Mr. President: I hope that the amendment to the amendment will be voted down, and that the amendment, as ofTeRil will be adopted. I believe it to be economy. I believe every man can explain his vote, and the reasons for his thus voting, in ten minutes. I believe that it is time that we should economize time. Mb. grace. Mr. President: I move the previous question. Mb. BOUCHER. I second the motion. Mr. VACQI'EREL. I second the motion. • Mr. BEERSTECHER. I call for the ayes and noes. Mb. TINNIN. I desire to offer my amendment. Mb. grace. I am in hopes that all the amendments will be Totel down. Thk president. The question is not debatable. Shall the main question be now ordered T The main question was ordered. Mb. BEERSTECHER. I call for the ayes and noes. Tbi president. The ayes and noes have been demanded already. The main question has been ordered. The first question is on t&e amendment offered by the gentleman from Kern, Mr. Smith. The roll was called, and the amendment rejected by the follo^iag vote: Ayers, Herrington, Smith, of 4th District. Barbour, Hilbom, Smith, of SanFranciseo Barnes, Howard, Soule, Bany, Belcher, Johnson, Stedman, Joyce, Stevenson, Bell, Kleine, Terry, Caples, Laine, Townsend, Casscrly, liarkin. Van Voorhies, Charies, McComaa, Walker, of Marin, Cross, McCoy, Weller, Dean, Moffat, Wellin, Dowling, Murphy, White, Dudley, of Solano, O'Donnell, Wickes, Eagon, Ohieyer, Wilson, of 1st District, Freeman, Reed, WyaU, Gorman, Reynolds, Mr. President-SO. Hale, Shurtleff, Ron. Andrews, HaU, Porter, Barton, Harrison, Prouty, Beerstecher, Harvey, Herold, PuUiam, Blackmer, Reddy, Boggs, Hitchcock, Ringgold, Rol^, Boucher, Heustis, BuH, Hughey, Scbell, Campbell, Condon, Hunter, Scbomp, Inman, Shafter, Crouch, Jones, Shoemaker, Davis, Kelley, Smith, of Sianta Clan, Doyle, Lampson, Steele. Dudley,of San Joaquin, Larue, Sweasey, Dunlap, Lavigne, Swenson, Edgerton, Lewis, Swing, Estee, Lindow, Thompson, Estey, Mansfield. Tinnin, Evey , Martin, of Santa Cnii , TuUy, Farrell, McCallum, Turner, Fawcett, McOonnell, Tuttle, Filcher, Mills. Vacquerel, Finney, Moreland, Van Dyke, Freud, Morse, Walker, of Tuolumne, Garvey, Nason, Waters, Glascock, Nelson, Webster, Grace, Neunaber, West, Graves, O'Sullivan, Wilson, of Tehama, Gregg, Overton, Winans — 85. Hager, The PRESIDENT. The question recurs on the amendment offered by the gentleman from Alameda, Mr. Inman, to strike out, in linM two and three, the words, "for limiting the times of speaking," and insert " that no member shall speak more than ten minutes on any one propo- sition without leave of the Convention." The ayes and noes were demanded by Messrs. Beerstecher, White, Grace, O'Donnell, and Lindow. The roll was called, and the amendment to the rule was lost by the following vote : ATIS. Laine, Lampson, Larkin, Larue, Lewis, Mansfield, McCallum, McComas, Mills, Moreland, Morse, Murphy, Nason, Andrews, . Filcher, Barry, Finney, Boggs, Freeman, Burt, Gorman, Campbell, Graves, Chapman, Hager, Hall, Cross, Crouch, Harvey, Herold, Davis, Dean, Hitchcock, Dudley, of Solano, Hunter, Dunlap, Inman, Estey, Jones, Evey, Kelley, Digitized by Gdr^e 'tf-^ Nov. 20, 1876. OF THE CONSTITUTIONAL CONVENTION. 461 Van Dyke, Van Voorhiee, Walker, of Marin, Waters, Webeter, Weller, West, Wilson, of Tehama— 67. Reed, Reynolds, Bhodca, Ringgold, Schell, ShuHleff, Smith, of 4th Distrirt, Smith, of San Francisco, Stevenson, Sweasey, Swenson, Terry, Townsend, Turner, Martin, of Santa Cruz, -Vacquerel, Walker, of Tuolumne, Wellin, White, Wickee, Wilson, of Ist District, Winans, Wyatt, Mr. Presiden^^TO. I desire to give noticeof an amendment to Rule Fifty Ohieyer, Soule, Porter, Stedman, Prouty, Steele, Pulliam, Swing, Rolfe, Thompson, Schomp, Tinnin, Shafter, Tullv, Shoemaker, Tuttle, Smith, of Santa Olara, NOI Ayers, Grace, Barbour, Gt^gg) Barnes, Hale, Barton, Harrison, Beerstecher, Herrington, Belcher, Hilbom, Bell, Howard, Blackmer, Huestis, Boucher, Hughey, Caplee, Johnson, Caaserly, Joyce, Charlee, Kleine, Condon, Lavigne, Dowling, Lindow, Doyle, Du'dley,of San Joaquin, McConnell; Eagon, McCoy, Edgerton, Moffat, Estee, Nelson, Farrell, Neunaber, Fawcett, O'SuUivan, Freud, Overton, Garvey, Beddy, Glascock, " KOTtCK. Me. TIXNIN. six. Thx SECRETARY read: "Provided, That when the previous question is sustained, it shall only apply to the amendments then pending, and other amendments may t>e onered to the section." Laid over for one day under the rule. ILIOIBILITT TO OFPICI. Mk. huestis. I have a resolution to refer. Thk secretary read : Baa^d, That tta* Goininitte« oo Mlacsllaneons Butijacts l>e Instmctad to rfport to the ConrentloD a section providing, in efTect, that merobers of this Convention ahall iiot be eligible to any offlce under the Constitution, at the Ant general election after Its adoption. Mb. HUESTIS. Mr. President: I believe that the adoption of that resolution will havea salutary effect upon this body, and I call for the ayes and noes. Mb. beerstecher. Mr. President: I move to lay the resolution on the table, and I call for the ayes and noes. The ayes and noes were demanded by Messn. Fawcett, Huestis, Tully, West, and Condoii. Mr. edgerton. Mr. President: I move to strike out the words " at the first general election after its adoption." Mr. beerstecher. With the consent of the house I withdraw my motion to lay on the table. Me. edgerton. I move to amend bv striking out the words, " at the next general election," so that no gentleman in this Convention will ever be eligible to any other office. [Laughter.] Mr. FAWCETT. I call for the ayes and noes. The ayes and noes were demanded by Messrs Huestis, Overton, Hitch- cock, Caiacrly, and Grace. Me. REYNOLDS. I move to insert in the place of the words " stricken out," by the ■amendment of the gentleman from Sacramento, the word " forever." Mb. BEERSTECHER. I second that motion. The PRESIDENT. It is the same amendment as that already pend- ing. Mb. BARNES. Mr. President : I do not believe that this suggestion is at aU necessary. [Laughter.] My own opinion being that if we don't behave better than we nave been behaving up to this time, that it will be enough to finish the political or personal career of any man to say that be was a member of this concern. I move that we lay this whole subject on the table and proceed to business. We have had fun enough. The president. The question is on the motion of the gentleman from San Francisco, to lay the whole subject-matter on the tahle. The ayes and noes were demanded by Messrs. Fawoett, Huestis, Winans, Caaserly, and Condon. The roll was called, and the motion prevailed by the following vote: Andrews, Ayers, Barnes, Barry, Barton, Beerstecher, Blackmer, Boucher, Burt, OtmpbeU, >TE8. Caples, Estey, Chapman, Evev, Filcher, Charles, Crouch, Freeman, Dean, Freud, DQwling, Glascock, Dudley,of San Joaquin, Gorman, Dudley, of Solano, Graves, Eagon, Hale, Edgerton, EMriaon, Harvey, Herold, Herrington, Hunter, Johnson, Kleine, Lampson, Lavigne, Lewis, Lindow, Martin, of Santa Cruz, McCallum, McConnell, McCoy, Mills, Barbour, Belcher, Bell< Casserly, Condon, Cowden, Cross, Davis, Doyle, Dunlap, EstAe. Farrell, Fawcett, Finney, Garvey, Grace, Gregg, Hager, Hall, Hilbom, Morse, Nason, Neunaber, O'Donnell, Ohlever, O'Sullivan, Porter, Reed, Reynolds, Rhodes, Rolfe, Schell, Schomp, Shafter, Shurtleff, HOBS. Hitchcock, Howard, Huestis, Hughey, Inman, Jones, Joyce, Kelley, Laiue, Larkin, Larue, Mansfield, McComas, Moffat, Moreland, Murphy, « Nelson, Overton, Prouty, Pulliam, Reddy, PEIKTIXO THE JOCBNAL. Stedman, Steele, Stevenson, Sweasey, Terry, Tinnin, Turner, Tuttle, Van Dyke, Walker, of Marin, Walker, of Tuolumne, Wellin, Wickes, Wyatt, Mr. President — 75. Ringgold, Shoemaker, Smith, of Santa Clara, Smith, of 4th District, Smith, of San Francisco, Soule, Swenson, Swing, Thompson, Townsend, Tully, Vacquerel, Van Voorhies, Waters, Webster, Weller, West, White, Wilson, of Ist District, Winans — 64. Mb. REYNOLDS. Mr. President: Pursuant to notice given at the last session, I now move to reconsider the vote by which the resolution for printing the Journal was indefinitely postponed. I do not wish to consume the time of the Convention with any remarks upon this ques- tion at all. [Cries of " louder."] I do not care to consume the time of the Convention with any remarks concerning this resolution, neither have I any personal interest in the matter one way or the other, any further than to extricate the Convention from the absurd position in which it now is on this question of printing the Journal. When the resolution was before the Convention before, I explained fully the situ- ation. The Convention was not then so full as it is now, and- I will just say a word or two in regard to it. This resolution which I now seek to reconsider is a resolution explaining and giving effect to a former motion to print the Journal. The Convention supposed it had ordered the Jour- naljprinted. The printing office also supposed it had, and has gone for- ward and printed the Journal from that time until this. Now there seems to be some doubt about the legal effect of the motion, and this resolution seeks to remedy that defect. The molion was intended to order the copies printed for binding, and the slips to be laid on our desks. The printing office has done that, and incurred the expense, and we now wish to state distinctly what we mean. We are not going to incur another dollar's expense by this motion, whether it is passed or not. Now in regard to the figures. I understand that the gentleman from Placer has been to the printing office and ascertained exactly what the figures are a'nd what they will be when we have- completed the work that is designed by the resolution. I think the Convention wishes and intends to ueal honestly and fairly with tho printing office, and not get into any absurd position on Ibis matter. I would like to hear from the gentleman from Placer. Mb. HOWARD. Mr. President: Is it in order to move to go into Committee of the Whole? Thk PRESIDENT. There's a question already pending. Mr. HOWARD. I move to lay the motion on the table. The motion prevailed, on a division, by a vote of 50 ayes to 46 noes. COSrORATIONS. Me. HOWARD. Mr. President : I move that the Convention resolve itself into Committee of the Whole, the President in the chair, to further consider the report of the Committee on Corporations other than Muni- cipal. Carried. IN COMMITTEE OF THE WHOLE. The CHAIRMAN. The pending amendments are to section fifteen of the report of the committee, now numbered section seventeen. The Secretarv will read the amendment offered by Mr. Barbour.' The s'ECRETARY read : "Amend by inserting after the word 'control,' in line two, the fol- lowing : ' Railways and navigable canals heretofore constructed or which may hereafter be constructed in this State, are hereby declared to be highways, and shall be free to all persons for the transportation of per- sons and property thereon, under such regulations as may be prescribed by law." The CHAIRMAN. The gentleman from Los Angeles, Mr. Howard, moves to amend the amendment by inserting after the word " law," the words, "securing just compensation to the railway jai^panal." Thf question is on the amendment to the uneudmeut. ^ O^^O \c jy Laoogle 462 DEBATES AND PROCEEDINGS Wednesday, e; BPKICH or MB. CAPLIS. Miu CAPLE8. Mr. Chairman : This amendment is certainly one of very great importance. The first objection that I have to it is the ambi- guity of the term " public highways." The author of the amendment, the gentleman from San Francisco, a laxryer of well known and recog- nized ability, has put his construction upon it, and I presume that his construction is a correct one. He states to the committee that his inter- pretation is, that it would place railways upon the same footing as toll roads — wagon toll roads. That is, that everybody may go upon it and run their engines, their locomotives, their cars, and carry freight on their own account or the account of others. Kow, as I remarked, the term "public highwajrs" is an ambiguous term, and is susceptible of two constructions; but inasmuch as the ^n- tieman from San Francisco has put his own construction upon it, it is fair that we should argue from his own terms. Now, I venture the assertion, Mr. Chairman, that, taking that construction, that the scheme is wholly and utterly and entirely impracticable — that to run a rail- road upon that basis would be a moral impossibility. Let us suppose, for instance, half a dozen individuals, or a dozen individuals, or com- panies, construct their trains and put them upon this road. WhoJs to regulate the time? Who is to be responsible for the accident*, for the collisions, for the confusion worse confounded that would result, cer- tainly, inevitably, and unavoidably? Now, Mr. Chairman, we hold railroads responsible for the damage to persons and property by accidents or collisions. From whatever cause we hold them responsible. Kow let us suppose this state of thing! inaugurated— -a road that is regulated by nobody, or by everybody. II has been said that what is everybody's business is nobody's business. Who would regulate the time? Who would be responsible for the acci- dents that would occur by collisions, and the various accidents that would occur from the inevitable confusion that wculd attend the run ning of the road? I hold that the practical common sense of every man will show him that the scheme is utterly impracticable. It is true that many Stale Constitutions have adopted' this very phraseology, but we are not informed yet as to what construction, if any, the Courts have lit upon that term. But I will venture the assertion that the theory ja« never been carried out practically in any State, no matter what con- struction is put upon it by the Courts — that it is impossible to do it. Then there is another aspect of the question that is important. The right to do this thing. The committee have adopted section fourteen of the Bill of Rights, that declares : " Private property shall not be taken for public use without just compensation having been first made to or paid into Court for the owner, and no right of way shall be appropriate^ to the use of any corporation other than municipal until full compensa- tion therefor be first made in money or ascertained and paid into Court for the owner, irrespective of any benefit from any improvement pro- posed by such corporation, which compensation shall be ascertained by a jury in a Court of record, as shall be prescribed by law." Now, Mr. Chairman, before we can take private property for public use, or for private use, or for any other use, we have got to do one of two things. We have got to confiscate that property or condemn it. What this proposition may mean to do is open to discussion. It is not exactly confiscation, because it provides that it shall be regulated by law. Law does not contemplate confiscation. And the amendment looks towards a certain kind of compensation to Ite made to the railmad company. Therefore we cannot call it confiscation. Neither, on the other hand, can we call it condemnation, because the right of the State, by virtue of its power of eminent domain, is recognized, not only by the Constitution and the statutory law, but by the law of universal applica- tion, as a judicial proceeding. Yet we are told by the gentleman from San Francisco that under this amendment anybody or everybody may put a train upon the railroad, and that there should be certain com- pensation provided. This would imply the neceiwity of a specific act of condemnation for every train that would be put upon tbaUroad. And I would just suggest in this connection again that the exercise of the right of eminent domain is a judicial proceeding, therefore we must institute a judicial proceeding every time that a railroad train is put upon that road. This, of course, is an absurdity. It may be argued by gentlemen that there may be one specific act of condemnation by the legislative power that will provide for condemnation for all, but I hold that that is wholly inadequate, for the reason that this is not the mode prescribed hy law for the condemnation of property under the State's right of eminent domain. That would be a judicial proceeding and would not come within the purview of the laws of the case as rccogniced by the laws of all civilized countries. Now I desire to read from Cooley on Constitutional Limitations something pertinent to the subject under discussion. He says : "The definition given of the right of eminent domain implies that the purpose for which it may be exercised must not be a mere pri- vate purpose; and it is conceded on all hands that the Legislature nas no power, in any case, to take the property of one individual and pass it over to another without reference to some use to which it is to be applied for the public benefit. The right of eminent domain, it has been said, dues not imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for full compen- sation, where the public interest will be in no way promoted by such transfer. It seems not to be allowable, therefore, to authorize private roads to be laid out across the lands of unwilling porties by an exercise of this right. The easement in such a case would be the property of him for whom it was established; and although the owner would not be deprived of the fee in the land, the beneficial use and exclusive enjoy- ment of his property would, in greater or less degree, be interfered with. Nor would it be material to inquire what quantum of interest would pass from him. It would be sufficient that some interest, the appropriation of which detracted from his right and authority, and interfered with his exclusive possession as oiwner, had been taken against his will; and if taken for a purely private puipose, it would be unlawful." Now, in tliis connection, I desire to suggest to the committee the fart that a practical application of the rule as laid down in the amendment would be, in my judgment, not a public use, but a private use, for the very good and sufficient reason that the public could not, in the very nature of things, avail themselves of the privilege. Here is a farmer who may be well off. He may be worth twenty-five thousand dollan. or fifty thousand dollars. Can he construct a railroad train and put it on that road? Certainly not. He could no* do it. The most that could be done would be to enable competing companies to construct trains and put them upon the road and run in opposition to the road itself; that is. the owners of the road. Therefore, I hold that it would be a private and not a public use. It is true, it may be said, that it would cheapen freights by competition ; but in this connection it may be said that we have proposed and do propose to establish by law a tariff of freights and fares. Should we not oe satisfied with our own action, after having established a rate of tariff for freights and fare*? Should we not be satisfied with our own work? Should we go farther and ask to still further cheapen freights by authorizing a competition in this mode and manner? Now, Mr. Chairman, the theory upon which this amendment pro- ceeds is, in my judgment, directly in violation of the law governing the exercise of the right of eminent domain. The mode ignores the judicial proceeding. It assumes that the Legislature may prescribe regulations. That is not condemnation under any law in existence; because, as I will read from Cooley on Constitutional Limitations, it is purely and essentially a judicial proceeding. Besides, considering the matter from a pure, equitable, and just standpoint, it would be an out- rage, and it would be a destruction of the party's right. It would be taking from one man anf confiscation, or con- Digitized by VjO Nov. 20, 1878. OF THE CONSTITUTIONAL CONVENTION. 463 d«mnation, or whatever it may be called. I confess my utter inability to comprehend the nature of the proceeding proposed here, I say that it is not confiscation, and it is not condemnation. And in the event that it should be indorsed by this committee, I shall certainly propose to refer it to the Judiciary Committee, with instructions that they shall christen the foundling and give it some name by which we may know it SPEKCa OF UB. GRRSO. Me. GREGG. Mr. Chairman : I was much surprised when the gen- tleman offered the amendment. The purpose of the committee was to declare railroads under the control of law in the charges of rates of freights and fares; but I did not think there was one member of that committee that supposed the railroads themselves were the things that the law was to control. We found that the decisions and the rules would give the power of control — not against the railroads, but against those who operate them. The declaration in Munn vs. Illinois, in the first of the Granger cases, is this : " Under the powers inherent in every sovereignty, a government may regulate the conduct of its citizens toward each other, and, when neces- sary for the public good, the manner in which each shall use his own property." That was the warehouse cases. It was to use the property owned by a person in a public relation that we wanted this control by law. In the first railroad case that was before the Supreme Court uf the United States, the declaration uf the Justice there is that railroad comimnies are carriers for hire. Tliey are incorporated as such, and given extraordinary rowers, in order that they may better serve the public in that capacity. Th^ are therefore engaged in a public employment, effecting a public interest, and under the decision in the case of Munn vs. Illinois, subject to legislative control. That is the whole sum and substance of that decision, and that class of decisions. And when any gentleman who pretends to be a lawyer gets up here and lays down the proposition that they are public highways and subject to control, I am astonished. It is the railroad companies that are subject to control in their charges, and not the railroads. Bailroads have been considered the property of the railroad companies, and as such, owing to their public relation, subject to police control. As private property, they would be subject In control. Now we have the curious declaration that they are public highways. What is the effect? I ask the gentleman to answer it. Will iliey no longer be subject to taxation, if they are public highways? When there are injuries committed upon them, who is res{)onsible ? Who is respon- sible now? The public highways?. I ask him, what will be the result of any such declaration? Why, I believe that the proposition is to declare that anybody may run here and there over the railroads of the State, at their pleasure, and only be subject to some charge for that privilege. Of course, every one recognizes that railroading now is a dangerous employment, and in some of tlie States the common law rule has been advocated in regard to liability for injuries. Now, what is the result of such a declaration as this? It accomplishes nothing in the purpose that we are now proceeding upon. If our pur- pose is to regulate freights and fares upon railroads, when we declare that they are common carriers and subject to legislative control we have declared the whole truth. When we say public highways, we declare something that is endangering the whole of our system of tt^xation, and of our laws for the protection of the public. What would become of the laws requiring the company to fence the road. They would say : "Why, they are public highways; if they must be fenced, they must be fenced by the owners, because that is the rule." When a fire occurs along the line, occasioned by sparks from a passing locomotive, who will pay the damages? The railroad companies will say : " Why, we are not respon- sible; this a public highway. If anybody is responsible it is the public, and not us; because we are only going over it the same as you or any- body else can ." These foolish innovations, I will call them, they produce great changes in our jurisprudence — changes we cannot anticipate suddenly, upon the declaration. But, sir, the whole aim and purpose is accomplished by declaring them common carriers, and subject to legislative control. The other is not demanded. If gentlemen wish to make them free to any person to run cars and locomotives upon them, put a declaration of that kind in here. Of course, it will not amount to anything. Let them say that hereafter these common carriers shall permit anybody who desires to run trains over the road to do so. Then you will not be building up a system that may destroy the relations of this class of property to the public. But when the gentleman declares them public highways, he does it without examining the authorities, for not once in these cases can the gentleman find that they are controlled because they are high- ways'. You are controlling the corporations that run them, and not the railroads. The railroad is their property, and they are subject to control. REHASKS or MR. WtCKRS. Me. WICKES. Mr. Chairman: Every proposition that is placed before this house elicitsagreatdeal of talk; and I do not belie ve it amounts to much in determining the position of members who havealready made up their minds, either upon principle or upon prejudice. For my part, I think that we should employ what brief authority we now possess wisely and well, and to do that we must be just to all classes alike, whether rich or poor, high or low. I am opposed to this amendment, because I believe it involves a partial confiscation of the railway beds. I do not believe in laying obstructions in the way of associated wealth that is employed in developing the resources of our State. I believe rather in encouraging it, but preventing it from oppressing society. I believe that our railway system, under proper regulation by the State, might be made a benefit to all in developing the resources of the State. I am in favor of the State jurisdiction over railroad corporations, and in favor of their being equitably taxed, but I am opposed to this amend- ment, because I believe that it involves a partial confiscation of the rail- road beds. Mr. GREGG. Mr. President: I argued the proposition upon the supposition that the other day the gentleman from San Francisco, Mr. Barbour, accepted the amendment of the gentleman from Los Angeles, Mr« Howard. Mr. BARBOUR. I said I had no objection to the amendment. I accept the amendment. Mr. ESTEE. Mr. Chairman : I offer an amendment to the amend- ment; a corrected section as corrected by the Committee on Corpora- tions, which they authorized me to present to the consideration of the Convention by way of a substitute. Thr SECRETARY read: "All railroad and transportation companies shall becommon carriers, and subject to legislative control. Any association or corporation, organ- ized for the purpose under the laws of this State, shall have the right to connect at the State line with railroads of other States. Every rail- road company shall have the right with its road to intersect, connect with,orcro8sany other railroad, and shall receive and transport each the other's passengers, tonnage, and cars, without delay or discrimination." Adopted, on a division, by a vote of 78 ayes to 31 noes. The CHAIRMAN. The question is on the amendment as amended. The secretary read : " Sr.c. 15. All railroads and transportation companies shall be com- mon carriers and subject to legislative control. Any a. accomplish some good. I do not think it is wise to adopt the amendment, although I would be in favor of having the principle applied to every corporation in the State. BBMABKS or MR. BEIB8TBCHKR. Mb. BEERSTECHER. Mr. President: I hope the amendment, under the circumstances, will be voted down, and I will then make a motion to rerefer this section back to the Committee on Corporations other than Municipal. It seems to me, Mr. President, that when in section fifteen we say that all railroads and transportation companies shall be common carriers, that is sufficient in that direction. We say they ahall be common carriers. Now it is proposed, according to the express terms of section fifteen, to make them common carriers, and then we say in section sixteen that " no president, director, officer, a^ent, or employ^ of any railroad or canal company shall be interested, directly or indirectly, in the furnishing of material or supplies to such company, or in the business of transportation as a common carrier of freight or passengers over the works owned, leased, controlled, or worked by such company." He cannot be interested, directly or indirectly, in the legitimate business of the corporation of which he is a member, and certainly everybody will admit that the President and directors ought to he selected from among the stockholders of the company. It seems to me that the statements made by Judge McFarland are entirely perti- nent here, and it seems to me that the section should be reconstructed. I am not in flrror of any provision that will oblige the companies to put up directors of straw, and a Fretident of straw. It o«rt«inly would not be advisable. I see one of the Ban Francisco journals, the Morning Call, refera to this matter, and suggests that the natural effect of this section would be to compel tbem to go outside for offioera. I think it is non- sense. SPIICH or HB. SBiirTBB. Mb. SHAFTER. Mr. Chairman : I do not see any reason in the world why all corporations should not be included within the purview of this section, and their officers put upon the same category as rsilmsd officers, if the evil is exactly the same in both cases It strikes me, sir, that it would hardly he proper or reasonable to compel the Directors of a corporation to sell their stock simply because they are Directois. They may take advantage of the knowledge their position gives them and speculate in the stock, but cannot the private stockholder who is possessed of the means of a«|uiring inside information, do the same? But to say that either the director or the stockholder may not buy or sell the property, is in direct and flagrant violation of all princi- ple of commercial business now existing or that have existed since the world began, and I shall be sorry to see any such innovation upon long established principles made by this Convention. Now, sir, as regards the otficers of a corporation not being allowed to carry on business as common carriers to transport freight and passengers, such as carrying on the business of express companies, we all know what the evil com- plained of is, and that is intended to be remedied. But, sir, what sensF, what reason is there in debarring a director of a corporation from selling bis property to the corporation, the same as any pnvate citizen can do. What sense, or reason, or justice is there in that: As I stated a few days ago, I am a director and an officer in a railroad company. I put my money into the enterprise, knowing that I was going to lose it at that, so far as any profits that might arise from the earnings of the road itself. The only way by which I calculated on being recompensed for the loss, was in the hope that the property which I owned on either side of the road would be enhanced in value bv reason of having the md there, and thus counterbalance the loss. Now, on one side of that road it is twenty-eight miles to timber, and on the other side, about ten miles from the station to the timber. I have sold to the company twentr thousand cords of wood, and I have sold it to them cheaper than it could be bought for of anybody else, and yet, according to the idea here advanced, I ought to be debarred from selling my woml to the corpora- tion, even though I sell it at lower figures than any one else can furaisb it, simply because I am an officer of the company, having put mr money into a precarious enterprise, for no other reason than to avail my- self of these advantages. I have a thousand cords lying there now, and yet if you adopt this restriction the corporation will have to go thirty miles away, and pay half a dollar a cord more than they are paying me, and for what reason ? For the simple reason that I, who have this wood to sell, have the misfortune to be a stockholder and director in the cor- poration. Another thing. That railroad was built partially for the por- pose of carrying the milk from that region to San Francisco. I am engaged in milking about five thousand cows. Under this section 1 cannot send that milk to the cit^. It is admitted tliat the law should be 80 framed as to prevent certain patent abuses, preventing the direc- tors from paying one price for an article and charging the stockholders 'another. This should bedone by specific provisions. Neither the direc- tore nor the stockholdere are entitled to any privileges. If they hare anything to sell, they should not be allowed to receive any more pay for it than any other citizen; but they certainly, in all reason, tre entitled to receive as much, and entitled to sell to the company when the company wants to purchase. All such things as contract or finance companies, or rings within rings, should be guarded against by special provision ; but such general provisions as this will not accomplish any- thing, and the person who puts his money out to build a railroad, not with any hope of reward in the way of dividends, but with a view solely to making a market for his produce, and providing a means of sending it to market, stands lower down, because his interest in the enterprise debara him from competition or selling to the corporation when it wants to purchase. I say be stands on a lower and less advan- tageous footing than the citizen who has not risked a dollar in the enter- prise. Sir, it seems blank nonsense to me. If you shall say that no man who puts his money into a corporation shall do any business with the corporation, then men will not be very likely to enter into any such enterprises. Nothing of that kind will suit me. BBUABKS or MB. rBIOD. Mb. FREUD. Mr. Chairman: In reference to the gentleman fiwm San Francisco, the Chairman of the Committee on Corporations, I will state that I prefer to offer this amendment to section sixteen, becanse I find this is the provision to which it was offered in the debates of the Constitution of Ohio. I will state that it was defeated there by a tie vote, and no member of that Convention objo<-tcd to it because it was offered as an amendment to this section in their Constitution. In response to the gentleman from Marin, I will state that the directors and President of a corporation hold positions of public trust towards the stockholders, and therefore the stockholders have a right to expert their duties ini]>artially and justly discharged. If, as the gentleman states, these directors, of whom he is one, desire to buy and sell, or in any way deal in the capital stock of the corporation, or take part in any of the contracts of the corporation, it is their duty, and they ought, to resign. BaMABES or MB. BABBOCB. Mb. BARBOUR. Mr. Chairman : The abuse which this section is aimed at is well described in the report of the Railroad Commissioners to the Legislature last Winter, and I beg the indulgence of members while I read a portion of that report with regard to the officers and directors of corporations dealing with themselves. I read from section fifty-four of the report : Digitized by Google Nov. 20, 1878. OF THE CONSTITUTIONAL CONVENTION. m "That the fixed capital of most of our railroad companies has been illegally exaggerated or inflated, scarcely admits of doubt. The process of building railroads through the instrumentality of a construction com- pany, managed by the same persons who control the railroad company, has grown, of late, to be familiar; it may be called common knowledge. The directors, or persons controlling the railroad company, organize a construction company composed of themselves, or of persons acting in their interest; a contract is made between the two companies for the construction and equipment of the road, which the construction com- pany agrees to do for a price, nominally measured in money, but pay- able entirely in mortgage bonds and stock of the railroad company. In this way, as the construction of the road proceeds, bonds and stock are issued for an amount which bears no necessary relation to the cost of the work, but is fixed, arbitrarily, in advance. As the same persons control both companies, any modifications of the construction contract which their interests may suggest are made by common consent, and when completed the road and its equipment are represented by an amount of fixe4 capital in the shape of full-paid stock and bonds, on which henceforth interest and dividends must be earned, and which exceeds the actual cost of the work just as much as the directors see fit to prescribe in advance. The evils of this system of inflated capital are not confined to an enhancement of the cost of transportation. It not only ^fiords an excuse for excessive rates, but operates to deter from the construction of rival roads, or the establishment of other competing lines, by giving a fictitious idea of the cost of the construction and of the wealth and power of those who are to be competed with. It like- wise practically restricts the building of railroads to those who are will- ing to take the risk of violating the law by virtue of which they are constructed." ' So, it will readily be seen what the evils are that this section aims to correct. The provision is right and just, and this Convention will act wisely if they adopt it. KKMABKS or MB. gCBILb. Hk. SCHELL. Mr. Chairman : I wish to say that I think this section is not justly entitled to the criticisms which have emanated from the gentleman from Sacramento, Mr. McFarland, and the gentleman from San Francisco, Mr. Beerstecher. They say that the President and directors and agents of a railroad company must necessarily be inter- ested, either directly or indirectly, in the transportation of freights and passengers, and, therefore, it involves an inconsistency. Now, I do not understand that to be the meaningol this section. I think, for one, that if the section means anything, it means that no Piesident, director, or officer, or agent, shall be, as an individual, interested, directly or indi- rectly, as a common carrier in the transportation of freight or passen- gers. It is the company itself which is mterested in that matter, and the President, who is but an individual, acting as the agent of the company or the officer of the componv, cannot, as an individual, be interested in the transportation of freigiit and passengers.^ And that is . precisely the meaning of it, that he shall not be a common carrier him- self, but it is to be the company that is the common carrier. That is the thing desired to be reached by this section. Now, I desire to say one word in relation to the amendment offered by the ^ntleman from San Francisco, Mr. Freud. It would not be proper, m my judgment, to amend this section in this way, for it certainly would destroy the object of the section, and would involve an inconsistency. The gentleman desires to have it apply to all corporations. The object of the section is to apply to railroad and transportation companies, and none other. Now, if it is made to apply to every other company, then every other company or corporation is denied the right to act as a common carrier. Vie do not suppose, Mr. Ci^irman, that other companies can act as common carriers. We do not suppose that a mining corporation could act as a common carrier. We do not suppose that a banking corpora- tion could act as a common carrier. Hence, I say the amendment of the gentleman from San Francisco involves an inconsistency, and would read in this way : That all companies and corporations shall be pro- hibited from carrying on the business of transportation and carrying passengers as common carriers. The amendment involves an incon- sistency, and I hope it will not pass, and that the section as reported will be adopted. Tbi chairman. The question is on the amendment proposed by the gentleman from San Francisco, Mr. Freud. 8PIIICH or HR. WIL80M. Mb. WILSON, of Firet District. Mr. Chairman : One word on this subject. I have no doubt myself that the construction placed upon the amendment of the gentleman from San Francisco, Mr. Freud, by the gentleman from Stanislaus, Judge Schell, is the correct one. This is a prohibition that owners in corporations shall not transact the business of common carriers. A man may own a sawmill — be a stockholder in a sawmill, sawing wood or sawing plank, making lumber, up in Hum- boldt, and if he was he could not deal in the business of transportation at all. He could not be a stockholder in a Humboldt sawmill and a stockholder in a railroad company in Los Angeles. I do not see any reason why a man transacting business in Humboldt could not own stock in a company in the City of Los Angeles. That is the natural reading and construction of this section. "No President, director, officer, agent, or employ^ of any corporation, shall, during his terra of office, be interested in the business of transportation as a common car- rier," etc. Certainly the gentleman did not intend an^such construction to be placed upon it, but that is the natural construction, it seems to me, that a Court would place upon it. Therefore, as a matter of course, this amendment will be voted aown by this Convention. If a man is inter- ested in a corporation in Ban Francisco which is engaged in making •hoes, he cannot be interested in the business of transportation as a com- mon carrier. There is no good reason why he should be prohibited. 59 The man who owns mining stock cannot be interested in a railroad. That is certainly the construction that can be placed upon it. Now, the original section sixteen is susceptible to the construction filaced upon it by the two gentlemen preceding me. Called upon as a awyer to construe thai section, at the lyqupst of a client going to operate under it, I would say, if you are a President, director, agent, or employ^ (if any railroad comfiany, or canal company, you cannot own any of the stock in that company, because it is an interest, and you are prohibited from being interested directly or indirectly. As a President you cannot be interested in any way or shape. Now, the learned gentleman from Merced, Judge Schell, says that this is the business of the corporation which is l>eing carried on, I say, in the business of the corporation the stockholder is interested, and the meaning of this is that he shall not be interested. " No President, director, officer, agent, or employ^, of any railroad or canal company shall be interested, directly or indii-ectly," etc. It seems to me he is directly interested. The wording is very broad — "he shall not be interested." Of course the business belongs to the artificial entity of the company, but certainly the words are broad enough, it seems to me, to bear this construction. " No President, direc- tor, officer, agent, or employ^ of any railroad or canal company, shall be interested in the business as a common carrier." Now, if a gentleman is interested in any railroad — if he is interested in a narrow gauge railroad as a stockholder — he could not have his goods transports over a wide gauge 'railroad, because he is engaged in the transpor- tation of goods over a wide gauge road. There will be very seri- ous results, in my judgment, growing out of this section. As to the first portion of it, in relation to the fumishini; of material and supplies by the officers of the company, 1 have this to say : In the first place, this is a principle of the common law, and you do not want to take up a principle of the common law, for the very reason laid down by the gentleman, Mr. Porter, that when you come to specify one thing you naturally exclude everj'thing else, under the maxim," expressio uniut exclusio at alteriitt." Now, it says the President shall not be interested in the furnishing of material and supplies, which might be construed as a permission for them to do everything else. They may make any other trade, they may sell real estate, they may speculate in a thousand ways, so long as they do not furnish material or supplies. The limit is simply upon furnishing material or supplies. Jhey may trade with the company in any other way, they may speculate in other ways. For that reason I think it is much better to let it rest on the common law principle, that no man can serve two masters; that he cannot act as an officer of the company and be engaged in speculation with the company at the same time. Better leave it as it is. It is better, broader, and more comprehensive in the law than you can make it in the Constitution. There are many good things we approve, but we do not want to put them all in the donstitution. We approve of the command, " Thou shalt not steal," but need we embody it in the Con- stitution? We approve the command, " Thou shalt do no murder," but need we therefore embody it in this instrument? Certainly not. We leave that to the Legislature. Therefore I am opposed to this whole section. I am opposed to the first part, because it is only a partial and limited exposition of the common law principle. Tho common law doctrine is better and clearer than anj^hine we can put in the Constitu- tion. I am opposed to the second jpart of it because it is susceptible to the construction — and that is enough — that no President, director, officer, agent, or employ^ can own stock in his own company. I am opposed to the amendment of the gentleman from San Francisco, Mr. Freud, be- cause, as I said before, it would exclude a man who is a stockholder in a Humboldt sawmill from owning any stock in any railroad company, or in any transportation corporation. 8PIKCH or MB. ISTKK. Mb. ESTEE. Mr. Chairman : I hope the Convention will pardon me for referring to the authority of the Constitutions of the older States of the Union in the debate upon this occasion. I confess, sir, I think the experience of others can well be taken as a guide for our action. Now, I find, notwithstanding the very elaborate orgument of my friend from San Francisco, Mr. Wilson, in opposition to this section, that in nearly all the recent Constitutions that nave been adopted, this section, or some- thing subBtontially like it, has been adopteaiiy." Therefore he is interested, both directly and indirectly, as a stockholder. The general law provides that no one can be an officer of a corporation unless he is a stockholder. It is admitted here that the object of this provision is not to require that the President, directors, officers, and employes shall not be stockholders; that is admitted. The section — I don't care if it is found in other Constitutions — in the absence of judi- cial construction, is susceptible of no other construction than that it pre- cludes every person who is a stockholder from being engaged in the business of transportation, directly contrary to section fifteen. I am in favor of the principle presented here in "this report, therefore I have tried to make it intelligible, and not contradictory of what we have done. Therefore I offer this amendment. BIHAEKS OF HB. HA6RB. Mb. HAGER. Mr. Chairman : I have not had much opportunity to consider this amendment (Mr. Freud's). As a general rule the report of a committee ought to be followed, unless for special and obvious ret- son its recommendation should be disregarded. In this matter I prefer to adhere to the report of the committee. Section sixteen, as 1 under- stand it, is intended to prohibit theofficers and managers of corporations from dealing with themselves. It is intended to protect stockholders by making it unlawful for directors to enter into contracts for or tmon; themselves. This same provision may be found in other State Conai- tiitions. It is contained in the Constitution of Pennsylvania ofeightwn hundred and seventy, and after being in force for six' years it was again adopted in the new Constitution of that State — ratified in eighteen hun- dred and seventy-six. This is some evidence that the provision k a good one, and has operated satisfactorily in one of the great Slates of the Union. Now, I do not understand, as has been argued, that this provition will operate to prevent directors, etc., from disposing of their own prop- erty. They are only prohibited from either directly or indirectly dis- posing of their own property to the companies of which t^eyaredirerturs. It is true, as has been said, directors may have |iower to dispose of the whole corporate property, and to deal with the public genenllv. The section does not prevent this, and is not intended to restriot their powers in this regard, but only to limit their powers when making con- tracts among tlieniselves, or in which they may be personally intetrsted. In furnishing materials or supplies, the directors cannot deal with the President or director, officer, etc., of the company, and such Prfsideil, etc., shall not either directly or indirectly be interested therein, but ther may deal with any one else. "They may sell the corporate property, purchase or authorize the pur- chase of proiierty as fully as the law may authorize, in all other respecb, notwithstanding' this limitation. If the limitation he nothing more than the declaration of a principle of recognized common law, there certainly should be no objection l« its being a declared principle of constitutional law. As to the other brancji of the prohibition, that directors, etc., shall not be interested in the business of transportation as a common carrier, etc.. over the works owned, etr., by such company, we all understand its purpose. We all know it is a common practice for railroad companies to grant special privileges and concessions to individuals and cnmpsnies for the transgiortatiim of freight, etc. Not granted to the public gener- ally. We have heard of the '• Red Line," tno " Blue Line," and others. that have these special privileges ; we have also heard of express onm- |>anies haying certain exclusive privileges, and it is asserted and gener- ally believed, the directors and ofticers of railroad corporations are some- times interested in these special and exclusive privileges, to the detriment of the public and the stockholders who have no interest therein. The purpose of this portion of section sixteen, is to put a stop to this practice, and I am in favor of its adoption. It reads, " railroad and canal rampi- nies." Canal companies should be stricken out, as was done in section fifteen. BKMABKS OP UK. WEST. Mb. WEST. Mr. Chairman : I am glad to see gentlemen so morally inclined as to quote so copiously from tlie good book. I remember, also, of having r«ad some time, in a Sunday schix)! book, that God created man upright; hut he has sought out since that time many inventions. It is in order to preclude some of those evil inventions that man in bis wis- dom has suggu!sitioD3 that thev occupy in the company. What is that for? The 'object is to exclude these officers, while they are occupying positions of trust in the company, from the business of transporting freight and passengers on their own account. You all remember the great fire of eighteen hundred and fifty-two, when the City of Sacramento was laid m ashes by the flames. D. O. Mills, one of your citizens, and a man of great influence and resources, he chartered the solitary boat that was capable of transporting lumber, and he was able, in the period of three days, to furnish you lumber at three hundred dollars per thousand. You could nut get lumber in any other manner. How was it done? Why, by simply controlling the solitary line of communication. Now, what is the object and purpose of this section? Simply to prevent these officers from being interested in such a manner as to make a discrimination against the public That is the object and purpose of It. Does any gentleman understand the force and effect of the argument? Do you understand the depth and breadth of this section? Do you understand the purpose for which it has been drawn? I accept the construction given to it by the learneanies being organized within the company, to do a carrying business over the same line. This was the evil which existed in the State of Pennsylvania, and which exists here. For instance. Wells, Fargo & Company have an exclusive monop- oly of the packet business over all the railroads of this State, and they reap a very large reward from the expeditious manner in which they are enableil to conduct their business. The evil in Pennsylvania, and other States, was this: lines were gotten up called fast freight lines, which ran almost entirely independent of the general lines and general freight business of the company. They solicited freight at great points like New York and Cincinnati, over blue lines, red lines, and star lines, which, under their contract with the railroad companies, had peculiar advantages. They had the right of way over the railroad, and tlie right to displace all other trains, so that they could get through more ouickly. For such trans|>orlAlion, these companies charged a hlgner rate than the usual pric« over the same roads. These corporations were thus enabled to reap a large reward. In these contracts the officers of the corporations were largely interested. In other words, they derived benefits from the contracts for the transportation of freight made by themselves with themselves. These were the two great evils. They were sought to be overcome by that section of the Constitution read by the gentleman trom San Francisco, Mr. Estee. I am opposed to the motion of the gentle- man from Sacramento, to send it back to the committee. Let us vote on it as it stands. I am prepared to vote for the section just as it is. THK FBKVIODS QOSSTIOK. Mr. IIUESTIS. Mr. Chairman : I move the previous question. Mr. INMAK. I seooud the motion. Mb. EVEY. I second it. Mr. STEELE. So do I. Mk. SMITH, of Santa Clara. I second it. Thr CHAIRMAN. The previous question has been called for. The question Is, Shall the main question be now put? Mr. REYNOLDS. .1 rise to a point of order. My point of order is that it is out of order to move the previous question in the Committee of the Whole. I also make the point that there is no rule by which the previous question can be moved m the Committee of the Whole. Thr CHAIRMAN. The gentleman is out of order in debating the question. Mr. REYNOLDS. My point is that there is no rule by which the previous question can be moved in the Committee of the Whole. The CHAIRMAN. Rule Fiftpr-six expressly provides for the previ- ous question in the Committee of the Whole. Mr. REYNOLDS. Mr. Chairman: It is understood that there was an attempt made to change Rule Fifty-six, so as to pnovide for the pre- vious question in the Committee of the Whole. There was an attempt made to change Rule Sixty, which passed by a majority vote, but not by a two-thirds vote. Now it requires a vote of two thiiijs of the whole Convention to change a standing rule, but a rule or order may be tem- porarily suBjiended by a vole of two thirds of the members present. That is Rule Sixty. The vole by which Rule Fifty-six was attempted to be changed was not a two-thirds vote of the whole Convention — see Journal of November eleventh, eighteen hundred and seventy-eight j affirmative 77, negative 29, which was not a two-thirds vote of the whole Convention. Now, Rule Sixty reads as follows: " No standing rule or order of the Convention shall be rescinded or changed without a vote of two thirds, and one day's notice being given of a motion therefor. But a rule or order may be suspended temporarily by a vote of two thirds of the members present." The expression of the one thing is the exclusion of the other; there- fore. Rule Fifty-six was not projwrly amended. The amendment was not carried according to Rule Sixty, and it is therefore not in order to move the previoxis question in the Committee of the Whole. The chairman. The point of order is not well taken. The ques- tion is: Shall the main question be now put? Carried on a division vote — ayes, 73 ; noes, 33. Thr chairman. The first question is on the amendment offered by the gentleman from Alameda, Mr. McCallum. Digitized by' Google 468 DEBATES AND PROCEEDINGS Thcrsdat, ' Tai CHAIRMAN. The question is on the substitute of the gentle- man from San Francisco, Mr. Freud, which the Secretanr will read. Thi secretary read : " No President, director, oflBoer, agent, or employ^ of any corporation shall, during his terra ot office, either directly or indirectly, buy or spec- ulate in the capital of said corporation, or be interested in'the fumisbing of material or supplies to such corporation, or in the business of trans- portation as a common carrier of freights or paiwengers over the works owned, leased, controlled, or worked by such corporation." Lost. TBI CHAIRMAN. The Secretary will read section seventeen. Mr. IXIWLIKU. Is not an amendment to the other section in orderT The CHAIRMAN. No, sir. The SECRETARY read section seventeen, now numbered section nineteen : Sue. 17. No railroad or other transportation company shall grant free passes, or passes or tickets at a discount, to any person holding any office of honor, trust, or profit in this State ; and the acceptance of any such pass or ticket, by a member of the Legislature or any public officer, shall work a forfeiture of his office. Mr. MrCONNELL. Mr. Chairman : I have an amendment to offer. The SECRETARY read : "Amend by adding afler the word 'office,' in the fifth line, the fol- lowing: 'The Legislature shall provide by statute for the punishment an a felony of any officer or emplove of any railroad or other transporta- tion company who shall give or orter to give to any public officer of or in this State, legislative, executive, or judicial, or "other position, a free ticket or pass, or ticket for less price than the usual rates, or who shall knowingly permit such officer to ride on or over such railroad without paying therefor the usual rates.' " Me. 8HAFTER. I move to amend. After the words " public officers," insert, " or member of any Constitutional Convention." Mr. JJcCONNELL. I accept the amendment The CHAIRMAN. The question is on the amendment to the amend- ment. Mr. McCALLUM. word "punishment," The chairman. I move to insert the word " capital " before the so as to read, "capital punishment as a felony." That amendment is not in order at present. REMARKS OF MR. BARXES. Mb. BARNES. I hope these amendments will be voted down. This is making a farce of a very serious piece of business. I think it is time to stop these ridiculous amendments which are intended to make this a matter of ridicule. What is the use in putting in an amendment, '• any member of a Constitutional Con vention 7" It is simply ridiculous. It is not a proper provision to put in, and I hope my sportive friend from the hills of Marin will get a lesson that will make him refrain from this kind of sport in future. Let hira retire to his favorite hills if he wishes to indulge in this kind of thing. For my part I am tired of it REMARKS or MB. SHArTER. Mr. SIIAFTER. Mr. Chairman: This amendment seems to me to be a very reasonable proposition. I do not see why this provision should not be made to apply to the members of Constitutional Conventions as well as to officers of the State. The gentleman has accepted my amend- ment, and I think it is just as proper and just as sensible as the balance of the provision, though I don t think either very sensible. REMARKS or MB. ESTEE. Mr. ESTEE. Mr. Chairman: The section as originally reported reads ns follows: "Sec. 17. No railroad or other transportation company shall grant free passes, or passes or tickets at a discount, to any person holding any office of honor, trust, or profit in this State; and the acceptance of any such pass or ticket by a member of the Legislature, or any public officer, shall work a forfeiture of his office." That provision is found in several of the Constitutions, and it will not do any harm here, and it may do considerable good. I wish to suggest to the gentleman from Marin, and a number of other gentlemen who argued very learnedly hero that we were all officers of the State, that if we are, it is quite unnecessary to adopt theamendment proposed, because this section says, "any person holding any office of honor, trust, or profit in this Slate." If being a member of this Convention constitutes an officer; if membership here is an office; if it be an honor; if it is a trust; the amendment of my friend is entirely unnecessary. I hope the section will be adopted as it is presented. Mr. SHAFTER. I am gratified to see the gentleman from San Fran- cisco backing down from his position and coming over to my ground at last. He said then that we were not officers, and now he agrees with me that we are. I offered this amendment in accordance with the decision of the majority of this Convention. I am glad to sec the gen- tleman coming over to my side on that matter. Mr. McCO>NELL. Mr. Chairman: I hope this amendment will be adopted. The man who offers a pass as a bribe, is as guilty as the one who accepts it, and ought to be punished. The section is a proper one, and this amendment is necessary to give it full force and effect. Mr. REYNOLDS. I move the gag rule, politely called the previous question. Mr. HOWARD. I second the motion. The CHAIRMAN. The previous question has been called for. The question is. Shall the main question be now put? Carried. Ayes, 80. Tai CHAIRMAN. The main question ha* been ord«r«d. Tl>« question is on the amendment of the gentleman from Sacramento, Mr. McConnell. Lost The CHAIRMAN. If there are no further amendments, the Secre- tarr will read section eighteen. ■The SECRETARY read section eighteen, renumbered section twenty: Sec. is. No railroad company, or other common carrier, shall com- bine or nMlke any contract with the ownera of any vessel that leaves port orTnakes port in this State, or with any common carrier, by which com- bination or contract the earnings of one doing the carrying are to be shared bv the other not doing the carrying. Mr. AYERS. 1 offer an amendment The SECRETARY read: " Amend section eighteen, by adding after the word 'carrying,' in the fifth line, ' and whenever a railroad corporation shall,'for the pur- pose of competing with a rival railroad line, lower its rates for trans- portation of passengers or freight from one point to another, luch reduced rates shall not be again raised or increased from such reduced sUndard.' " The CHAIRMAN. The question is on the amendment. SPEECH or MR. ATERS. Mr. AYERS. Mr. Chairman: I offer this amendment in obedience to what I consider a correct principle. This is a principle which is in part contained in the O'Connor Act of two years ago. and which hti worked some good. That Act required that rates existing on the 6rst of January, eighteen hundred ana seventy-six, should remain the rst«< from that time forth. The rule worked well in some portions of the State, at least it did in that portion of the State which I in part rep- resent. At thnt time Senator .Tones, of Nevada, had built a railrou from Santa Monica connecting with Los Angeles. The Southern Pacific Company already had a road in operation from Ijoe Angeles to Wil- mington, both roads reaching tide water, and giving the inhabitaata of that section the benefit of an ocean highway. But it was soon fonud that the policy of the old comjiany was to crush out every competinn line, so, in order to kill off this competing road, they put the fares down to a very low rate, less than a paying rate. While' the fares werethm reduced', the O'Connor bill was pasned, fixing the rates at those which obtained on the first of Januarj-, eighteen hundred and seventy-sii. The Santa Monica road was froien out, and the owner was compelled to sell to the old corporation, and they found themselves in this position: that while killing off the opposition thev had placed the rates below a fair and living rale, and when they ha*) killed it off this law came in and prevented them from raising tliem again. It worked well in that instance, but a factor has come in which prevents the people there from realizing the benefits of that Act. The aim of this amendment is to incorporate that principle in the Constitution. There are many pUcn in this State where an e.-«tablished line of railroad might subserve the interests of the people, and be made to pay a fair rate, and might be made a good investment to its owners, but under the existing cir- cumstances no man is willing to place his money in the stock of a corporation of that kind where Uie great monopoly has the power at any moment to crush it out of existence or compete it out of exig- ence. At the presvnt time I know, that if thnt protection were in the Constitution, the people of my section of the State would dis- enthrall themselves from the oppression now put upon them, and build a road, provided the great corporation could not come in and crush it out by ruinous competition with them, lowering their rates until this result could lie accomplished, and then raising them again, and making up for the loss afterwards. I know that the people or my section would take stock in building a narrow gauge road into Inyo County if it were not that it is well understood that the moment such an enterprise is undertaken the great corporation would step in and either crush it out, or discourage it just before it is entered upon, by threats, as they do every such project that is undertaken, that they will also build a rotul there. Now, it seems to me that competitinn ought to be encouraged and protected. I do not think the old corpo- rations would be apt to put down their rates below a fair standard fw the purpose of crushing out opposition, if they were made aware that they could not raise them again. We have' already established this principle by legislative enactment, and I hope the ConvcntioD will pa.is this amendment. Mr. O'DONXELL. I move to amend the amendment The SECRETARY read : "Amend by adding in the third line, afler the word 'carrier,' the words, ' navigating the waters of this State,' and ' no corporation shall offer to pay any bonus or premium to prevent lawful competition with its business as a common carrier.' " Mr. O'DONXELL. This is an amendment that ought to prevail. It provides that no corporation shall offer to pay any bonus or premium to prevent lawful comiietition with its business as a common carrier. Mr. WILSON, of First District. Mr. Chairman: I move that the committee rise, report progress, and ask leave to sit again. Carried. IN CONVENTION. The PRESIDENT. Gentlemen: The Committee of the Whole bare instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have made progress therein, and ask leave to sit again. ADJOVRNMEKT. Mr. GREGG, I move that we do now adjourn. Carried. And at four o'clock and forty-five minutesf. m. the Convention itood •4Journed. ^ Digitized by ' !>. tes£. M. the Conventioi Google Nov. 21, 1878. OF THE CONSTITUTIONAL CONVENTION. 469 FIFTY-FIFTH DAY. Sacbamekto, Thursday, November 21 st, 1876. The Convention met in regular session, at ten o'clock a. u.. President Hoge in the chair. The roll was called, and members found in attendance as follows: Andrews, Ayers, Barbour, Barnes, Barry, Barton, Beerstecher, Belcher, Bell, Blackmer, Boucher, Burt, Campbell, Caples, Caaserly, Chapman, Charles, Condon, Cowden, Crouch, Davis, Dean, Dowling, Doyle, Duilley, of San Joaquin, Dudley, of Solano, ' Dunlap, Eagon, Edgerton, HJstee, Estey, Evey, Farrell, Fawcett, Fileher, Finney, Freeman, Freud, Garvey, Glascock, Gorman, Grace, Graves, Gregg, Hager, Hale, Uall, IlarrisoD, Harvey, Herold, Herrington, Ililborn, Hitchcock, Holmes, Howard, Huestis, Hughey, Hunter, Inman, Johnson, Jones, Joyce, Kelley, Keyes, Kleine, Laiue, Lampson, Larkm, Larue, Lavigne, Lewis, Lindow, Mansfield, Martin, of Alameda, Martin, of Sania Cruz, McCallum, MeOomas, McConnell, McCoy, McFaJland, McNutt, Mills, Moffat, Mereland, Morse, Murphy, Mason, Kelson, Neunaber, O'Donnell, Ohleyer, O'SuUivan, ' Overton, Porter, Prouty, PuUiam, Roddy, Reed, Reynolds, Rhodes, Ringgold, Rolfe, Schell, Schomp, Shatter, Shoemaker, Shurtleff, Smith, of Santa Clara, Smith, of 4th District, Smith, of San Francisco, Soule, Stedman, Steele, Stevenson, Strong, Stuart, Sweasey, Swenson, Swing, Terry, Thompson, Tiuniu, Townsend, TuUy, Turner, Tuttle, Vacquerel, Van Dyke, Van Vwirhies, Walker, of Marin, Walker, of Tuolumne, Waters, Webster, Weller, Wellin, West, Wickea, White, Wilson, of Tehama, Berry, Biggs, Brown, Wilson, of 1st District, Wyatt, Winans, Mr. President. Cross, Hciskell, Kenny, Miller, Noel. LEAVE OF ABSBMCE. One day's leave of absence was granted Mr. Cross. THE JOCBNAL. Mb. huestis. Mr. President: I move that the reading of the Journal be dispensed with, and the same approved. Carried. PETITIONS. Mr. Van Dyke presented the following petition, signed by a large number of mechanics, citizens of California, asking for the insertion of a clause in the Constitution providing for a lien law: To the President and Mentben of the Cuimtftutioiial Convention : Gkntlkhkn: Tlio undersigned respectfully rcpreeent that tlie practical worlting of tbe preeent legislation, and decisions of Supreme Court Ijased thereon, regarding the liglitfl of nieclianics, inaterlai-men, and laborera to a lion for ttiuir labor and materlHi fumlslied, is sucli tliat those who in a measure depend upon such law for just pi-otectloii fail in nearly all cases to obtain it, i>ecaU8e of the iilelBcient worlting of seld law. 'Wherefore, we pray you to declare in our organic law tbe right of every mecluiulo, niaterial.man, and latMrer to a perfect lien on the thing whereon bis labor has been expended, or for which his materials have been furnished. Moreover, we would state that we would be satisfied with amendment numt>er one hundred and sixty seven, introduced by Mr. Van Dyke, on Octotier tenth, eighteen hundred and seventy-eight, and read and referred tu Committee on Miscellaneoas Sabjects, as follows: " tiEC. — . Mechanics, matcrial'men, artisans, and laborers of erer>' class shall hare a lien upon tlie property on which tliey have bestowed labor or furnished materials. for the value of such labor done and mateHals furnished, and the Legislature shall provide by law for the speedy and efficient euforcemont of said liens." And your petitioners will eVQr4)ray, Referred to Committee on Misoellaneous Subjects. Messrs. Stedman, Wellin, and Barbour also presented petitions on the same subject. Referred to Committee on Miscellaneous Subjects. BESPONSE TO IMQDIBT. The president. I have here a communication from the Superin- tendent of Streets of th^City and County of San Francisco, in response to a resolution of this Convjmtion. If there be no objection, it will lie on the table and be printed" Orriot OP SvmimtvDtm or Pcblic ST»«mi asd HtonWATS, CiTT Hall, 8an Frakcisco, November 19th, 1878. To the hononsble Constitutional Convention, Sacramento : Gentlkm EN : In compliance with resolution number seventy-three, passed by your honorable body, I herewith have tbe honor of transmitting the Information sought for in said resolution. Holding myself entirely at yonr serrtce for any information connected with tliis department, I remain, Bespvctfully.your obedient servant, L. H. MANZKR, Supt of Streets, etc. Per Levis Conn. I ASSESSMEMTS FOB BTBEBT WOEK.* Teab Kmiiio- I at 3. » I % 4 if CO 1 = a" 9 3 A 3 O £ wti. June 3D.. 1868. June 30.- 1809. JaDe.W.- 1870. June 30.. isn. Jimeao.. 1872. June W. . 1873. June 30.. 1874. Jiiiie30.. 1875. Jnne 30. . 1876. Jnne 30.. 1W7. June 30.- 1878. June 30.. ToUU. (327,333 M8,7S4 623,036 436.433 373,S10 U4,«7« 199,406 238,277 62,909 29M33 478,948 169,027 «96,8»7 00 237,482 30 114,902 94 103,411 69 73,264 OO 61,004 00 87,926 00 61,346 24 70,023 86 100,966 01 132,918 84 67,878 94 1117,994 OO 172,087 88 47,424 69 137,OM24 129,229 00 34,461 00 40,216 00 90,690 81 89,613 14 9<,349 7< 361,999 38 269,a'i6 m tll7,271 00 143,898 76 203,066 13 169.663 82 89,463 00 43,304 00 67,124 00 109,919 18 93,491 31 74,230 08 92,971 72 40,908 66 1196,749 00 237,796 49 369,998 36 213,480 79 62,219 00 8,797 00 99,316 OO 84,388 77 162,437 15 296,198 40 3<6,784 85 100,417 36 149,378 47,423 90,097 93,929 5,467 17,933 6,062 8,902 11,419 14,399 26,953 6,707 tll,165 00 11,494 00 10,372 89 21,092 60 36,821 II 64,430 74 18,081 49 (21,863 96 99,694 29 47,826 47 (47,423 00 37,968 19 27,796 36 97,237 00 39J03 00 10,634 00 18,264 00 32,349 49 34,422 93 37,922 87 113,132 72 89,813 39 (90,194 00 139,787 63 134,073 39 79,326 81 64,169 00 32,823 00 44,617 00 42,127 69 56,090 87 67,736 66 163,890 46 93,443 34 (88 00 26,74* 86 20 79 (14,881 OO 6,2n 00 16,113 00 24,147 99 41,192 99 73,705 70 6,681 07 1,362 99 14,119 28 14,665 98 9.110 16 (1,002,883 00 1,911,486 66 1,9(9,616 96 1,2M,130 09 843,419 00 380,698 00 906,098 00 667,488 40 603,492 32 1,087,026 69 1,862,194 81 912^70 18 (3,7S7,M6 84 { (1,206,441 82 (1,994,692 91 (1,190,920 66 (2,094,in 13 (297,829 46 (173,377 83 (129,344 72 (941,767 72 (1,004,199 81 (182,892 71 (66,112 02 (12,188,799 63 * This statement refers to (|U«stion number one, of Resolution No. 73. Tbe following appllA to inquiry nnmlier two. of resolution number seventy-three. It is a literal statement of the amount expended on accepted streets only^ and does not include any amount in any way except for street repairs: 1867— Ending June 3tith, of that year.. (17,581 81 18fi»— Knding Jnne 30tb, of that year 26,205 65 IM9— Ending Jnne 30tii, of that year 45,174 86 1870— Ending June .TOth, of that year 51,211 75 1871— Ending June 30th, of that year.- 94,288 64 1872— Knding Jnne 30tb, of that year 91,418 48 Amount carried forward 8000,000 00 Amount brought forward.. $000,000 00 1873— Ending June 30th, of that year „ 89,562 60 1874— Ending June 30th, of that year 277,443 60 1878— Ending June 30lh,of that year 163329 32 1870— Ending June 30th, of that year 390,404 80 1877— Ending June 30th, of tliat year 269.266 77 1878— Eliding June 30tb, of that year. 118,953 24 Total lor twelve yean (1,623,191 00 This is exclusive of materials, street cleaning, and sewer cleaning, but only what it baa cost to keep tbe accepted streets in repair. Digitized by Google 470 DEBATES AND PROCEEDINGS Thursday, ACQUISITION AND AUKKATIOH Or LAKO. Mr. DAVIS introdu<^ the following nroposed amendment to the Constitution, relative to the acquisition ana alienation of land : Amend by adding a new section, to be known as section , and to read as follows : Sec. — . The Legislature may by general law promote the abolition of land monopoly, by regulating and restricting the qifantjty which hereafter may be in any manner acquired or alienated. Beferred to the Committee on Land and Homestead Exemption. Mr. ESTEE. Mr. President : I move that the Convention resolve itself into Committee of the Whole for the purpose OOD IN THE CONSTITCTIOS. Me. VAN DYKE. I desire to present a petition from citizens of Oak- laud, requesting that there be a suitable expression in acknowledgment of .^Imfghty God as the source and authority for civil government. I desire to have the petition laid on the table, as the Committee on Pre- amble and Bill of Rights have already reported. . The petition was read and laid on the table. PETITION — TAXATION OF STOCKS. Mr. EAGON presented the following protest, si^ed by a large number of citizens of Amador County, protesting against the insertion of a clause taxing the capital stock of minfng and other corporations : To the honoraUIn the Pmident and Heinb«i« of the CuDstlttitfonal Convention of tho StAte of Cahr<>rniA: 'Whkrrab, l*n)pi>sjtiuns have b^en ofTerrd In yonr honorable body to be engrafted in the new orgnnic law, making it mandatory npon (he Lejii^lature to tax the ttoclc of incorporati.m^ orgHiii/f.d under tlic laws of the State; and, WiiKRKAa, Incorporatiunn no organJKed are mainly f4tr the purpose ot opening and developii:g minee which, as a rule, have no certain or fixed value until made so by an experidltnre of moneys derived by assessments upon stockboldi rs of said inoor* porations; Hiid, • Wherkas, The development of mining property and the encouragement of min- ing industry is largely dependent upon the coOperatiou of individuals associated togt-ther under the law governing inrorpnratioiis; and, Whrrkas, The taxing of the stock ol incorporations of this character would have a tendency to discourage mining, and retard the growth of one of the moat im|M>r- tant interi^sts of the State ; and, Whrrraa, The property created by the expenditure of money upon the develop- ment of mines is the only legitima^• sul>Jeci of taxation of such incor|iorations — the certlticatcs of stock being but evidence of ownership therein; Thfrffwe^ your petitioners, citizens of Amador connty, do hereby enter tlieir earnest protest against the adoption of any clause in the Constitution whereby the stock of incorporations shall be taxed, as wrong In principle, and calculated to dis- courage mining and other legitimate purauits, and to cripple the eifurls of those who, by their association in companies, would otberwlfc add to the material wealth of the State. Laid on the table. AMENDMENT TO ROLE FIPTT-SIX. Mr. TINNIN. Mr. President : I move to take up the amendment to Rule Fifty-six, of which I gave notice yesterday. Mr. ESTEE. Mr. President : 1 move that the committee resolve itself into Committee of the Whole, the President in the chair, for the purpose of Mr. TJNKIN. I rise to a point of order. I made a privileged motion. The president. The Chair is of the opinion that it is not a privi- leged motion. It is moved and aeconded that the Convention resolve itself into Committee of the Whole, for the purpose of further consider- ing the report of the Committee on Corporations other than Municipal. Lost. Mr. TINNIN. I move now to take up the amendment to Rule Fifty-six. . Cirri ed. The secretary read : " Amendment to Rule Fifty-six : Prwidtd, that when the previous (|uestiou is sustained it shall only apply to the amendments then pend- ing, and other amendments may be onered to the section." Mr. van dyke. Mr. President: I hope that amendment will be adopted. We saw the utilitjf of it here yesterday. As the rule stands now, the previous question is moved and carriea, and the result is we cannot amend a section reported by any committee, for it will work like this: objectionable atnenuments may be offered to a section, and they will be voted down as a matter of c-iurse. Then the section, however objectionable in itself, cannot be amended. This will allow the Com- mittee of the Whole to vote down objectionable amendments, and then go on and perfect the section, and of course that is in the interest of good, governmeni and what we all desire. I hope that the amendment will be adopted. Mr. HERBINGTON. Mr. President: I move to amend by inserting before the word " amendment," the word " last," so that it will read " the last amendment then pending," because we might desire to retain the first amendment offered while we would be unwilling to discuss the last amendment that is pending. Now, 1 move to amend by inserting the word " last" before the wore! " amendment." Mr. REYNOLDS. Mr. President : I make this point of order. This resolution admits that there is a previous question in Committee of the Whole. If you will refer to Rule Fifty-six you will find that in Com- mittee of the Whole the previous question shall not be moved. I hold, sir, that the nile has never been changed. It is true that on the eleventh of November an attempt was made to change that rule, which resulted in a failure by a vote of seventy-seven to twenty-nine, and the Journal declared that the amendment was " adopted by tlie following .vote." That, Mr. President, is probably a mistake of the clerk, an error of the Journal, for we find by Reading Rule Sixty that "no standing rule or order of the Convention shall be rescinded or changed without a vote of two thirds, and one day's notice being given of the motion therefor; but a rule or order may be suspended temporarily by a vote of two third* of the member* preeent, except Rules Fifty, Fifty-one, Fifty-two, Fifty- three, and Fifty-five. Hence it follows that seventy-seven was not two thirds of the Convention required to change an established rule, and was therefore lost. Secondly, there is no authority for the use of the rrevious question in Committee of the Whole. The point of order that make therefore is that this resolution is not in order. Ma. McFARLAND. Mr. President: I do not believe that this Con- vention wants to fritter away the whole forenoon talking over this amendment. For once in my life 1 move the previous question. The president. The Chair is of the opinion that the point is not well taken. The rule was changed bv a two-thirds vote. Mr. REYNOLDS. I api>eal from the decision of the Chair. The PRESIDENT. It tokes three to appeal from the decision of the Chair. Mr. SMITH, of San Francisco. I second the appeal. Mr. nelson. I second the appeal. The PRESIDEafT. The gentleman from San Francisco, Mr. Rey- nolds, raised the point of order that the amendment proposed to Rule Fifty-six is not in order. The Chair held the point of order not well taken, from which decision an appeal has been taken. The question is. Shall the decision of the Chair stand as the judgment of the Convention? Mb. BEEKSTECHER. Mr. President : It seems to me that the only question between the Chair and the gentleman from San Francisco, is this: Rule Sixty says, "no standing rule or order of the Convention shall be rescinded or changed without a vote of two thirds." If " two thirds " means two thirds of the delegates elected to this Convention, or in other words two thirds of one hundred and fifty-two, then in such case the rule was not change*^. But if " two thirds" means merely two thirds of the members present, then the rule was changed, and regularly changt^d. Mr. ESTEE. I rise to a point of order. My point is this: thai the President of this Convention recognized a motion calling for the pre- vious question. If that be so, then any intermediate questions are not debatable. The PRESIDENT. The point of order is well taken. Ma. BEERSTECUER. Then I suppose that the appeal is not in onier. The president. The appeal is in order, but not debatable. Shall the decision of the Chair stand as the judgment of the Convention ? The ruling of the Chair was sustained, on a division, by an affirma- tive vote of 103. The president. The gentleman from Sacramento called for the previous question. There was a second. The question is, Sb»ll the main question be now put? The motion prevailed. The PRESIIiENT. The main question has been ordered. The amendment to the amendment, offered by the gentleman from Santa Clara, Mr. Ilerrington, was not seconded. The question is on the adop- tion of the amendment offered by the gentleman from Trinity, Mr. Tinnin. The amendment was adopted. CORPORATIOKB. Mr. ESTEE. Mr. President: I now move that the Con vention resolve itself into Committee of the Whole, the President in the chair,)for the purpose of further considering the report of the Committee on Corpora- tions other than Municipal. Carried. IN COMMITTEE OF THE WHOLE. The CHAIRMAN. The amendments to section eighteen were the amendments pending before the comoiittee. The Secretary will read. The secretary read : " By Mr. Ayers. Amend section eighteen by adding after the'word 'carrying,' in the fifth line, 'and whenever a railroad corporation sTiall. for the purpose of comjwting with a rival railroad line, lower its rales for transportation of passengers or freight from one point to another.such reduced rates shall not be again raisM or increased from such reduced standard.' " REMARKS OP MR. WTATT. Mr. WYATT. Mr. Chairman : I hope that the amendment proposed by the delegate from I>os Angeles will be adopted by the committee. If it would not weary the committee I would like to have read sections sixty-four, sixty-five^sixty-six, sixty-seven, sixty -eight, sixty-nine, and seventy of the report of the Board ol"^ Commissioners of 'Transportation — General Stoneman, Mr. Doyle, and Mr. Smith— to.the Legislature two years ago. It contains a recommendation, and gives the reasons in full ?or that recommendation, which is covered by the amendment proposed by the gentleman from Los Angeles. I hate to tax the patience of the committee to read so long a document, but I should like very much for these sections to be read. The CHAIRMAN. It cannot bo read except J>y a vote of the Con- vention. Mr. WYATT. I will read it myself as a part of my argtiment. It is better than anything I can say, and the members of this Convention, in my humble' opinion, ought to hear it. The chairman. The gentleman can adopt it as his speech. Mr. HOWARD. Can it not be read by the Secretary aa a part of his speech? The CHAIRMAN. Not except by vote of the Convention. Mr. WYATT. I can read it. The Commissioners sav : "Before cimcluding the consideration of rates of freight, the snbfeet of competition calls for some remarks. Without seeking to deprecate the great benefits derived from the construction of railroads, one evil, incident to their construction, which cannot be denied, is their tendency to destroy all other means of oommunicatiou^,fiu>ecially in % uew and Digitized by Coogle w Nov. 21, 1878. OF THE CONSTITUTIONAL CONVENTION. 471 sparsely settled country. The almost iinliiuited capacity of the rail- road, its superior speed, sarely, and punctuality, give it a natural prefer- ence over all other modes of communication for certain purposes. The passenger, to whom time is always important, invariiibly prefers it, and the stage coach infallibly disappears on its construction. 8o also does the old-fashiou carrier's wagon, which cannot possibly compete with it in price or speed. So far, its operation in displacing previous modes of conveyance, is normal, and consequently beneficial to the public But the greater cheapness of water-Dome freight, es(>ecially over natural wat«rs, secures a preference to it even over the railroad for many pur- poses, and this, incidentally, tends to keep down railroad rates. This natural and healthy competition, however, the railroad managers inva- riably seek to destroy. ' "The history of all competing lines of transjiortation is nearly, if not quite, uniform. It commences with a reduction of prices by the railroad company, responded to in the same way by the other party, and fol- lowed up on both sides until rates are reached which resolve the contest into a siuele question — which party has the longer purse? When that point is reached, the railroad, which, once constructed, is as much a permanent feature in the geography of the country as a river, buys off the opposition line, and prices are raised to a point sufficiently high to indemnify the company for its previous concessions, for which, proba- • biy, indemnity bas alreaily been found in the augnientatinn of charges to'polnts not reached by the water line. As the organisation of trans-^ portation lines by water necessarily calls for the ouUay of oonsitlerable capital, new parties are little likely to recommence the enterprise, after the old line, with established connections and trained employes, has been fairly beaten off the route, and thus the railroad secures an abso- lute monopoly of the carriage, even between points- possessing navigable water routes, and at higher prices than would be charged over the latter. In this way the steamers which formerly navigated the interior waters of the State have passed into the possession or control of railroad com- panies, and recently the steamers plying on the coast have been com- pelled, by the low and evidently losing rates of the Southern Pacific Road, to come into an arrangement to pool their earnings with that road. " How, it is no part of the normal functions of a railway to destroy other means of transjiortalion, or su))ersevern the management of such enterprises in the hands of enlightened self interest. "A railroad, as before observed, is a permanent feature of the country. On the faith of its existence, and the regularity and cheapness of its communication, people settle on the line of the road, and adapt them- selves, adjust their industries, and invest their means on the faith of its permanence and the permanence of the accommodation it affords. To permit it afterwards to withdraw or diminish those facilities, or to enhance their cost, is a wrong to the jwrties so related to it, differing only in degree, not in kind, from permitting it to tear up its rails and destroy its roadbed. The management of a railroad, oven in the hands of men ever so selfish (if they be but wisely selfish), is naturally pro- greesive. Additional facilities for business and travel go band in hand with additional businp.ss and travel, and usually precede and lead to them. The superior aocoinmodations of Mie Oakland ferry have created Oakland, not Oakland the ferry. The railroads created Chicago, not Chicago the roads. This is the history of all the great West. " It is not, |>erhape, passible to frame a law which will compel the adoption of an enlightened and progressive policy by the companies without conferring undue power on executive officers; but it is in the power of the Legislature to prohibit any progress backwards, by forbid- mg the raising of rates and the withdrawal of facilities once furnished. Such changes of this kind. If any, as may be consistent with the public interests, the Commissioners may be authorized to assent to on behalf of the public." Mr. Chairman, and gentlemen of the Convention, I sa^ \hat the experience of this State is as well portrayed in the few sections I have read to you as it is possible for them to be portrayed, and any man in the State of California who has any knowledge of the railroad system of management in this State, and of the geographical conformation of this country, is perfectly aware that the system of conducting business is precisely as described by these Railroad Coniinissioners, and com- plained of yesterday by Col. Ayers, who introduced the amendment. Take, for instance, the Kapa Valley. There is a railroad there, and who can now build a competing railroad there? It is a moral impossibility. The valley had just as well be shut up by nature to a second railroad as to be closed by the [rawer of capital as it is there. But not only is that valley bo shut up, but every valley in the State is sought to be. A rail- road in possession of a valley now can prevent all other competing lines entering. If it does not prevent the construction of a competing line, and one should be built, it is run out of existence by a reduction of rates, and stands as a warning against all future efforts at competition. With this clause in the Constitution they would either be compelled to furnish such facilities as would be reasonable to the community, or they would be liable to be competed with by competing lines and with capital. I hope that the amendment will be adopted. REIIARK3 OP MR. ESTRK. Mr. ESTEE. Mr. Chairman: lam opposed to this amendment, for the reason that I do not think it is at all necessary if sections nineteen and twenty should be adopted. Section eighteen reads: "No railroad company or other common carrier shall combine or make any contract with the owners of any vessel that leaves port or makes port in this State, or with any common carrier, by which com- bination or contract the earnings of one doing the carrying are to be shared by the other not doing the carrying." Now, the amendment proposed by my friend from Los Angeles, goes to the effect that in case any railroad company lowers its rates of prices for freight or passengers for any cause, that they shall never raise them again. Mr. ayers. Mr. Chairman : I will call the gentleman's attention to the fact that it provides that if they lower the rate in competition with a rival line. Mr. ESTEE. Of course that would raise the question as to whether it was in competition. They would say it was not. It would raise a question of fact in every instance. It would be holding out a premium against their ever* lowering their rates, because, if they ever did, it would be a question of fact as to whether they lowered in competition, and therefore they never could raise tbem if the busineiis did not pay. But, my chief objection is that sections nineteen and twenty remedy all the evils that my friend, complains of. Section twenty, speaking of these Commissioners, says that they " shall have the sole power, and it shall be their duty, to correct abuses by railroad corporations or other transportation companies: establish rates of charges for the transporta- tion of passengers and freight by railroad or other transjwrtation com- panies, and publish the same from time to time, with such changes as they may make; report to the Governor, annually, their proceedings, and such other facts as may be deemed important; hear and determine complaints against railroad or other transportation companies; affix penalties and enforce them through the medium of the Courts, and per- - form such other duties as may be prescribed by law." Now, if this Convention adopt that section and adopt that principle, then the Commission would have the power to regulate fares ana freights first, and, second, they would have the power to correct abuses by rail- road companies. My idea is, and I think it was the opinion of the committee, that that meant all the complaint and evils that my friend speaks of. I hope that this amendment will not be adopted, because we cannot now, looking at it and examining it carefully, know exactly the con- struction that may be given to the words which are embodied in his amendment. But we do know thaf' section twenty, if adopted, will remedy all these evils, or, at least, I think so, and that was the opinion of the committee. I hope that new things that do not seem to meet any necessitv, will not be put in. * If there is any great necessity for it, let it go to the taUe and be printed, and let this Convention have a fair opportunity of examining the proposed amendment. RIUARES OP MR. GRACE. Mr. GRACE. Mr. Chairman : I am in hopes that this amendment, offered by the gentleman from Los Angeles, will be adopted. The way the matter stands in the State of California, it is almost utterly impossible for there to be and exist any such thing as a competing line against the great corporations that control the^jublic thoroughfares and highways of this State. There is a corporation in this State, which has its principal office and place of business in San Francisco, known as the Central Pacific Railroad Company, and the different companies that it controls, that runs every steamer and every railroad line that is run, almost, in the State of California. A man cannot leave the State of California without he buys his ticket and pays his fare to that company, and it is impossible for any line to compete with it, because if any company invests their money they immediately reduce their fares to a trifle, and reduce so low that it will starve them out and force them to quit, and immediately that they stop, then the fare goes up higher than ever to make it up. I tell you that it is a system of wholesale robbery, and I know that there are gentlemen on this floor that have got retaining fees to stand up and try to gag down and to defeat the will of the people in compelling the railroad corporations in this State to do a legitimate, square, honest business, as any individual has to do in this community. Now, Mr. Chairman, if there should be a steamboat in opposition to the Sacramento boats put on to-morrow, the fare would be reduced to fifty cents. You could go from Sacramento to San Francisco for fifty cents. But as soon as it was drawn off they would raise their fare to three dol- lars. The working people, the honest people, the producers of the Slatp of California are tired of it, and they send their delegates representa- tives to Sacramento to amend this Constitution in such a way as would forever prohibit these corporations from robbing the hard-fisted toilers of the country out of their honest money. And all we want here upon this floor, all I ask them, is to make these thieving corporations come down and do a legitimate, square, honest business, the same as any responsible private citizen of Caliiomia has to do. I do not see as there is any other wav to do it except to adopt this amendment, put it into the Constitution, and fix it so that they cannot change it like they do the Code ever}' lieg- islature. I tell you' I have seen for yeare in California that some way the corporations manage to control the Legislature ; that they can change the Code any time that suits their convenience ; and I am m hopes that you will come right up to the mark and vote in favor of this amendment of the gentleman from Los Angeles, and it will hav^ good effect. Digitized by ^^..-^,, 472 DEBATES AND PROCEEDINGS Thursday. RUaABKS OF MK. TINMIK. Mr. TINNIN. Mr. Chairman: I am nnt a professional gentleman. I presume that I ran safely say that I am not one of the paid gentlemen on this floor, alluded to by the grntleniau who lias just taken his seat. Kevertheless, I am opposed to this amendment. I am op|io8ed to it because it proposes to interfere with the system that is being adopted b^ this committee. N«w, if we commence on that system, if we adopt this idea of appointing a transportation Commission, vested with sole powers to regulate this matter, why do we step in and interfere with a pro- gramme in regard to their duties? This idea may conflict with the idea of the Commission. If this ConimisHion is established, if their duties are laid out, they can step in,when a railroad would attempt to raise freights and fares where they had lowered them before, and regulate them. That is the system that we should adopt. We should adhere to this system, and allow the Commis'ion to control this matter. Mr. JOYCE. If the railroads reduce their rates haven't the people a right to keep them there T Mr. TINNNIN. That is a question it is impossible for me to answer. I sa^ that the Commission is to be established to remedv these evils, and if we adopt that system let that Caminisiion remedy tJie evil. RIMARKS or HR. TERRT. Mr. terry. Mr. Chairman : I do not see any conflict between sec- tion twenty and this. I do not understand that if this amendment, offered by the gentleman from Los Angeles, is carried, that it necessa- rily conflicts with any (lart of section twenty. Section twenty provides for the appointment of a Cominisaion who sliall fix the rates of fares and freights. I do not supiiose it is contemplated that the Coininiraion shall say to the railroads, "If you are willing to take less you shall not take less." This simply provides that when they voluntarily, by their own motion, and to carry out their own ends, fix freight at a certain rate, that they shall not raise it. I do not know thai there is any present neces- sity for the ailoption of the amendment, but if the gentlemen who have been here for some yeare will look into the post, they will see that it would have been a very useful pnivision in years gone by, when the carrying trade and the waters of this Slate were monopoliied by a cor- jxiration. Whenever an individual or company came hero with boats, willing to work for fair coin|icn8ation, freights and fares were put down to nothing, until they were starved out.and then put up again. Now, if some man starts an ox team to carry freight, and for the purpose of starving out that teamster, they lower their rates of freight, and say that they are able to carry for less than the teamster, let it stay at that price. It (foes them no harm. Our |)olicy is to encourage competition. I do not think it is a good argument that this amendment should not be voted for, because section twenty has been proposed to the committee. How do we know that section twenty is going to be adopted 7 I say here and now, that 1 do not propose to give, by my vote, to any trium- virate the power that is proposed to be given to three Comraissionere in the State of California. If they i^ould give nie the appointment of the Commission,! do not know where I could find three men that I would be willing to trust so far. It is against the principle of the Lord's Prayer. These men are being led into temptations which they would be more than men if they could withstand. RIHARKS OP MR. WBITR. Mr. WHITE. Mr. Chairman : I would like to see that amendment adopted, because there is, perhaps, a^anger that section twenty may not be adopted. I understand that there is a powerful effort being made to defeat it. Letters are written here to members from every quarter of the State, begging them not to odopt that section. If we should lose it by the influence of the railroads, I would like at least that that cliiusc should be adopted. I do not think that it is inconsistent in the least with section twenty or section nineteen, and I think that gentlemen who are opposed really to the monopoly of this railroad ought to stead- ily vote for everything that tends to check it as we go on. The monop- olies will be on one side and the representatives of the people on the other. We may be defeated in that struggle, and therefore let us take, as we go along, every single amendment that lends to curb and control the railroad. Therefore I hope that the amendment will be adopted. We will strive hard on the section, but we may be defeated, so I am ask- ing of you who are opposed to the railroad to adopt that amendment. RIMARKa or MR. LARKIN. Me. LARKIK. Mr. Chairman : So far as my vote upon this section is concerned, I shall not be governed by any anticipations of what may ■ be done on the twentieth section. Sufficient for the day is the evil thereof. When we get to that section, I think it should stand on its own merits, but the proposition of the gentleman from Los Angeles is a good proposition. It is a proposition demanded in this State. I will refer the gentlemen of this Convention to the firal railroad built in this State, the mad from here to Folsoin. and from that on to Shingle Springs. The fare is four dollars, forty-five miles. Let a stage line be put on that will carry people foytwo dollara and fifty cents or three dollars, and they will reduce their fares to one dollar, in order that the stage company cannot compete. The fare has been kept up because it is impossible to start a road and run it for a few months. But, provide in that section, that if they reduce their fares they shall so remain, they will be coin(>elled to keep their rales at a reasonable price, or there will soon be competition. The fare from here to Placerville used to be five dollars. It is now five dollars and fifty cents, with a railroad running within five miles of Placerville. All we ask is such reasonable oppor- tunities as we would have, proviiling there was no railroad there. If we pass Ibis provision, men could lake their teams on the road again, and reduce the price of freight. But, the very niotnent thai is done now, the railroad will reduce their rates to half the rates. Every man who knows the history of the old Steam Navigation Com- pany, thai have for yean controlled the trade of the river, knows llist they will reduce at any time the freights and fares upon the river, and freese out any company that starts there. I do not desire to do aur injustice to a corporation, either railroad or otherwise, but the rights of the people are to be considered first. But if the companies, for the pur- pose of freeiing out oimpetitiou, reduce their rates, let thera remiin there. I believe that the amendment is jusL I believe Uiat it is equit- able. I believe that it is in the interest of the people of this State. REMARKS OP MB. BLACKURR. Mr. BLACKMER. Mr. Chairman : 1 hope this amendment will be adopted. I can certainly see no injustice in it to the corporations, and I see in it a provision that will be in the interest of the people of thi> State. It does not need that I should call the attention of this com- inittee to instances where the people have been wronged by the very oiieretions of the corporations that this amendment proposes to rvinedr. They are common everywhere, in many places in our Stale. Wherever there is a business grows up in any particular portion of the Slate, and the railroad is there with its track and its cars to do that business, they then, by the combiualions that it is possible for them to make, endeavor to control that busineas entirely. Tney do it from the selfishneaaof a corporation. It is a selfishness natural to the position. They have built their works for the purposo of doing the carrying trade, and the • jirofit is to be determined oy the amount they carry and by what they are expected to charge for it. Now, then, if another corporation attempta to put a road from one point to another, which is already reoched by the corporation, they will induce freights between these two points to a figure so low that no corporation can live by it, and the consequence is that the smaller or weaker corporation must go to the wall, while that which has been enabled to create the monopoly , having the longer purse, can hold out until t'ne smaller corporation is uniible to do anything, and they not only do a great wrong to the people who have invested in the competing line, but to the whole community. Sir, it 18 a fact well known to many here that the corporations all along the coast, above and below, have managed to control the coast line of steamers, so that wherever there was any opposition and people were enabled to get their freight at anything like a fair rate, that oppo- sition has been crushed by a rearted here that the rauroad has attempted to load dorfn this Constitution with obnoxious measures, that it may be defeated before the people. I would scorn to make any such reference to any man. I believe, and I will continue to believe, that every gentleman in this Convention is an honest man and votes for what ho believes to bo the best interests of the whole country and of his constituents. I repeat, again, I am tired of these allusions; I think they are in bad taste and unbecoming to any gentle- man on this floor. REMARKS OF MR. BALK. Mk. hale. Mr. President: This is one of those cases where I am unwilling to vote without explaining the reason of my vote. Having come-to the conclusion that this amendment ought to be voted down, I wish to state the reasons why I come to that conclusion. It has been shadowed forth by the Chairman of the Committee on Corporations, Mr. Estee. Believing as I do, that it is the best policy for the people of the State to adopt the Commission system, upon the plan — I do not speak of all the details — reported by the committee, 1 feel very reluctant to vote for any measure wiiich will either have a tendency to prevent its adoption by the Convention, or, being adopted, may cripple its usefulness. As has been truly said by the Chairman, the commission plan which they have adopted, furnishes a foundation upon which, according to their estimate, there shall be an effective remedy for the evils aimed to be corrected by this amendment Mr. Chairman, I would ask the reading of the amendment from the desk for the purpose of getting at the exact laDguage. Thk SECRETARY read : " Amend section eighteen by adding after the word ' carrying,' in the fifth line: 'And whenever a railroad corporation shall, for the purpose of competing with a rival railroad line, lower its rates for transportation or passengers or freight from one point to another, such reduced rates shall not again be raised or increased from such reduced standard.' " ' Mb. hale. The proposition is that when a railroad company, or transportation company, shall lower its rates in competition with a rival line, then, and only then, are they subject to this rule, that they shall not afterwards raise their rates. Now, I call attention to the fiict, Mr. Chairman, that this species of constitutional legislation is in the nature of lex talionit. I submit that it is not wise for that reason alone. In other words, we say to the railroad company, " Now, if you dare to put your rates down, either above or below living rates, if put down for the purpose of superseding or breaking opposition, you shall not afterwards raise them." I suhmit that it is not dignified or right. For myself, sir, I do not propose as a member of this body to legislate nor to make con- stitutional law merely for the purpose of crippling anybody. I have no more disposHion to do an act of injustice towards a railroad company than I have towards the people. The truth of the matter is, our duty is to do justice to all and injustice to none. Now, the plain purjwse of the committee here is to establish a Commission — a ComralBsion repre- senting whom? It will be said on the one side " the people." Yes, they will represent the people. I hope, on the other side, that they will 60 equally represent the transportation companies; that they shall be a Commission whose duty — a duty as high as was ever imposed upon a citizen or officer for the execution of a trust — is to deal justly, to deal honestly, to deal wisely, not only for the protection of the rights of the people, but equally for the protection of the rights of the railroad companies. Mr. Chairman, I think we shall fall into a gr(»t error here, if we permit ourselves to lend color to the pretense of arraying ourselves or the people against the transportation companies of Uiis Stale. Every intelligent man in the State of California knows, if he has studied the history of his own time, that these transportation companies have wrought a mighty revolution in the destinies of this State; a revolution already achieved, and still only in the future to be accomplished. It is not our duty, and in my humble judgment, it is not our moral right to array ourselves against these great improvements which are the engines of progress in the world to-day, and will be in the future. Now, sir, I do not wish &ny one to imaj;ine that because I take this, which I believe to be a broad, liberal, and just view of the subject, that I am opposed, in spirit or letter, in part or in whole, to a just and reasonable restraint upou these corporations. This, in my judgment, is the truth of the matter, that while these railroad companies are in the great work of working a mighty revolution in the destiny of California, equally with the destiny of the civilised world, yet the experience of the time has demonstrated the necessity of the exercise of that power, now fully recognized as belonging to the State, to control these corporations in the exercise of their franchise rights; to do it, sir, with a strong hand; with a steady hand. That it shall be a control that shall not be awake at noon-day and asleep at midnight. That it shall be strong and steady, but that it shall be jusL We have been trying legislation. We have been attemptintt, for the last fifteen years, to accomplish this supervision of the railroads through legislation. The<^ailure has not only been complete, but it has been disastrous, or disgraceful — both, I think. I use the terms with a full knowledge of their import, and advisedly. I am in favor, nevertheless, of exercising this power, and I want lliia Constitutional (Convention to submit to the people a plan upon which they can exercise that control ; do it steadily, firmly, wisely, and justly— justly to all parties concerned. I am, for that reason, in uivor of setting this Commission going from the highest authority that exists in the laud, and that is by the people themselves. Let them select them. Not from San Francisco, not from Placer County, but from all over the State of California. It is said by some men that we are intrusting to these men extraordinary powers. True, sir, you are, but there is no other way, in my judgment, of liaving a steady', uniform, and just control. It is said that you will lodge this power in the hands of men where it will be unsafely lodgeany, that it acquired certain rights and interests in this great national work, and that the Legislature of California, by a solemn Act passed, consented to that, and therefore the United States of America is a party to this contract, and the State of California, by an Act of the Legislature, is a party to this contract. They forget that the United States has large interests in that road. The United States has a mortgage upon that road. There are other bondholders who have a mortgage upon that road prior to the United States. The Act of Congress reserves the right to regulate the freights and fares itself upon that road. Recently, by an Act paswd here in this last session of Congress, called the Thurman Act, Congress has undertaken to legislate upon this subject and made very large demands upon the Central Pacific Railroad Company. The bill was introduced'oy the Senator from Ohio, Mr. Thurman, and it made verr large demands u|)on the Central Pacific Railroad Company and the Union Pacific Rarilroad Company for a sinking fund. Hereafter, the Central Pacific Railroad Company and the Union Pacific Railroad Com- pany have to pay very large sums of money into the treasury of the United States. In the first place, as I understand this Act of Congress, there is a Hen, first, in favor of the bondholders, upon this road: then there is the lien of the United States upon it, by way of a mortgage. Then the United States has a claim upon this road for five per cent, of ib net earnings. Then the Act provides that in addition to that the road shall pay up certain sums each year, amounting to a certain specific amount, which shall go into a sinking fund, there to be placed at interest in order to meet the bonds as they mature under the original Act of Congre«. Besides these great burdens upon the receipts they have, of course, their current and running expenses. Now, I regard this business Mb. grace. I would like to know if the Central Pacific Railroad Company has ever paid anv interestT Mr. WILSON. I will answer you. The Supreme Court of the United States has held that the interest has never matured ; has never yet been due. The Supreme Court of the United States has so decided. This a an intricate business, the running of a railway. The road must be«elf- sustaining over this period of time. It has no longer any subsidies. The time has arrived when it must pay its debt, and these annual snm^ it must make out of the running of its road. There may be some gen- tleman in this Convention wise enough to state here to-day, theamoantof monev which is necessary to meet all these accruing sums. I confess, it would take me, with my limited learning, information, and experience, several years to undertake the management of the Central Pacific Rail- road (kimpany, if I ever could do it at all. Some gentlemen who are wise enough "to run that institution may be able to tell us now the amount necessary, of fares and freights, to enable this road to perform all of its obligations. I am not. Now, if it should ao happen that a railroad company — the Central Pacific Railroad Company, if you please — has reduced its rates of freights and fares on a certain portion of its line, and by reason of tliat it is unable to meet its obligations to the United Statesiii is unable to pay all of its accruing debts, its interest, and its running expenses, wonlH any member here say that the Legislature, if it had the power, ought not to enable them to raise their rates to make the institution self-sus- taining? Yet, the proposed amendment would prevent th« Legiahrtur; Digitized by Google Nov. 21,1878. OF THE CONSTITUTIONAL CONVENTION. 475 from exeroiBine that power. Tour Transportation Commissioners may report this road as not self-sustainine, that at the present rate it will run in debt and become forfeit to the United States. In such a case any one here would say that the rates ought to be raised, no matter what they might have been. The road should be permitted to aare itself from insolvency, to raise its rates, and any sensible Lezislature would allow it to raise ita rates. But if this amendment is adopted, the Legislature would be powerless to effect any good. The hands of the Legislature would be tied, and it would be impossible to save it from impending ruin. That is the reason why we should be careful as to what we insert in a Constitution. Leave it to the Legislature, where there is some flex- ibility. There must be Judgment exercised upon the present condition of things. There must be some room to warn off a crisis which may arise; but put it into this iron-bound Constitution, and it is beyond con- trol. Though ruin stares the State in the face, the legislative body or the Executive of the State is unable to render any assistance. It seems to me that such a course is not. wise. This State can exercise control over corporatious, and can regulate them better through its Ijegislatiire than it can through provisions in the Constitution. The (^ustitution is not intended as a Code. The Constitution is intended as a great system of general principles outlining the form and principles nf the government, leaving the Legislature to fill up the blank upon the escutcheon, and to make everything work according to the interests, the wants, and the exigencies of the people. Now, because I oppose this am'>ndment, is no reason why I snolild oppose such power being vested in the Legislature. Upon the contrary, I would provide that the Legislature might pass some rational and proper Acts upon this subject, sufficiently guarded and with sufficient flexibility to avoid wrong, and at the same time to enable ihem to conduct their business in a self-sustain- ing manner. Now here, as I said before, if the directors commit an error of judgment contrary to the wishes of the stockholders, that wrong becomes by virtue of this clause in the Constitution beyond remedy for- ever, and may produce insolvency and forfeiture against the interests of the people. I know that it is popular here to say, " Let them be forfeited. Put corporations under rigid laws to do no wn>ngj if wroug follow from a violation of the Act, then let forfeiture follow." That kind of argument is not sound, because the State has an interest in these great improvements. The State and the people at large are interested in these groat works, and it is not to the intereat of the people that they should be destroyed. It is not to the interest of the people that thry should.be made incapable of sustaining themselves b^ the profils which they may make by their business as common carriers. Different years make a great difference in the carrying trade in this State. If I am correctly informed, whilst a year or two ago a hundred vessels were loaded with wheat at the Oakland wharf, the succeeding year but three vessels were loaded. Now it may be that Commissioners, or the Legislature, having control of this matter, would look to that condition of things, and not expect that a carrier would carry at the same rate one year that he would carry it another. Men in business would not so act. When freights were plenty, when they had more than they could do, they would be willing to reduce rates. When freights were light and they had the same expenses to meet, freights and fares might be higher. I say that the Legislature should be allowed to control these matters. There is a flexibility; there is a capacity to conform to the necessities of the hour. By this constitutional provision the whole subject-matter is placed out of the power of the people, because the Legislature is the people, by its repre- sentatives. I know that there is a great disposition here to say that the Legislature cannot be trusted ; that the Legislature will be bribed ; that the Legislature will commit fraud. But I beg leave to say here that this Convention can proceed upon no such theory as that. This Con- vention cannot present as one of the cardinal principles upon which it acts that one of the great departments of the government of this State will not faithfully and honesliy perform ita duties. This Convention, which claims for itself so much virtue and honor and integrity, and I may say so much hostility to railroads, was elected by the same people, in the same manner, and under the same general circumstances that the Legislature is elected. I do not see why that great branch of the government may not be trusted as it always has been, and always must be, with the essential powers of legislation which pertain to a great State. I object to the amendment offered by the gentleman from Ijos Angeles, Mr. Avers, for the reasons which I have stated ; that the power is better lodged either in your Commission, if that should be the determi- nation of the Convention, or with the Ijegislature, if it should be left to legislative control. While I can only give my single voice, I think this would be unwise as a clause in the Constitution, placing this subject matter bevond the reach of the people through their representatives in the Ijegisfature. Mr. f ULLY. Mr. Chairman : Is an amendment in order? Me. O'DONXELL. I shall first have to read Rule Forty-four to my friend from San Francisco, Mr. Wilson. " If any member be called to order for offensive words spoken in debate, the person calling him to order shall report the words excepted to, and they shall be taken down in writing at the Secretary's table." Mb. WILSON. Mr. I'^iiairman: I am very much obliged to him for his prescription, Ipit I prefer my own doctor. Mb. O'DQNKELL. Mr. Chairman: I wish to ask who he alluded to aa an "unfealheren words used in debate before Mr. Wilson got the floor, and now two gen- tlemen have spoken, but I desire to offer a resolution upon that subject, and I do not want to be cut off bv the rule. Mb. STEDMAN. I claim the 'floor. Tbb chairman. The gentleman from San Francisco, Mr. Sted- man, has the floor. Mb. STEDMAN. Mr. Chairman: The amendment reads as follows: "And whenever a railroad corporation shall, for the purpose of compet- ing with a rival railroad line, lower its rates for transportation of passengers or freight from one point to another, such reduced rates shall not be again raised or increased from such reduced standard." Now, then, the gentleman has argued to this Convention that this amendment contemplated keeping down the rates when any reduction in rates was made by toy railroad corporation for any. purpose whatever. Now, Mr. President, that is not true. The question presented to this Convention is whether we are going to prevent extortion by these corporations. I want the law to stand up boldly between these corporations and the people. I stand in this Convention as the advocate of the people, not of the corporations. I do not charge that any gentleman is for the corpo- rations, but I say that I am for the people. If an individual or a company «hall place svrailroad, or a steamboat line, or any other com- mon carrier to eoinjiete, with this Central Pacific Railroad Company, we know it to be a fa«t that in the past this Central Pacific Railroad Com- pany has reduced its freights and fares to such a low rate that it was impossible for the new line to compete with it, and it has been froze out. But the question is whether it will not be right, when such a reduction is made in order to freeze out a new company — a company that is the friend of the people from the fact that it is a competing line — to say that when the Central Pacific Railroad Company, or any other railroad or common carrier, shall reduce its rates for the purpose of freezing out this line, that it shall not have the power to again raise such rates. I believe it would be right, and I shall vote for the amendment, because I think it isfor the people. I think the people are crying out for such legisla- tion as this, and I think it should be put into the Constitution. Mb. GRACE. Mr. Chairman : I move that the committee rise, report progress, and ask leave to sit again. IN CONVENTION. Thb PRESIDENT. Gentlemen : The Committee of the Whole have instructed me to report tittt they have had under consideration the report of the Committee on Corporations other than Municipal, have made progress therein, and ask leave to sit again. The hour having arrived, the Convention took the usual recess until two o'clock r. M. AFTERNOON SESSION. The Convention reassembled at two o'clock p. u.. President Hoge in the chair. Roll called, and a quorum present. . A FRIVILKOXD BKSOLCTIOM. Mr. BARNES. Mr. President: I wish to offer a resolution. Thb secretary read : Whereas, Tbo gentleman from San Francisco, BIr. Orace, tins pnbliclj aaserted,^n detuLlc, In tills tK^y, aa follown: "1 linow that thoro arc gvntlcnion on tills floor whu liave got retHining fees to stand up and try to gag down and defeat tlio will of Uie people, In compelling the railroad corporations in tliia State to do a logitiinate, square, honest business;" and, whereas, the language above quoted amounts to the charge of an ofTense against the law of the land, committed by seme member or membere of this body, and to a charge of glTlng or offering a bribe to a member, or by corrupt means or device, directly or indirectly, to control or Influeuce a member in giving his vote; Hesolvedy That the gentleman firom San Fiunclscv, Mr. Grace, be and ho fs hereby required to name the persons, within or without this body, whom he knows have entered into such corrupt agveement to gag down and defeat the will of tlie people, to the end that the power of this Conventiou to pilnish guch offense may be exercised pursuant to law. Mb. BARNES. Mr. President : Since the assemblying of this body, the charge embraced in the language used by the gentlemen has been, in one form or another, repeated— not once, but, if my recollection serve me, many times. Mb. BEERSTECHGR. Mr. President: I raise a point of order: I call attention to Rule Forty-four of the standing rules, which reads: " If any member be called to order for offensive words spoken in debate, the person calling him to order shall report the words excepted to, and they shall be taken down in writing at the Secretary's taole; and no member shall be held to answer or be subject to censure of the Convention for language used in debate if any member has spoken, or other business has intervened after the words, and before the exception to them shall have been taken." My point of order is that other business has intervened since Mr. Grace uttered the words complained of, and other members have occu- pied the floor, and spoken, and therefore, according to the standing rule number forty-four, tne gentleman from San Francisco, Mr. Grace, is not answerable nor censurable by this Convention for anything he then said. Mr. BARNES. In reply to my, colleague from San Francisco, I will call attention to the fact that the resolution does not involve the calling of the gentleman to order for abusive words spoken in debate at all. Me. BEERSTECHER. For the purpose of cenaurin"^ Digitized by 1 in aebate at all. ;t5t)ogIe 476 DEBATES AND PROCEEDINGS Thursday, Mb. BARNES. On the contrary, Mr. Preaident, when a gentleman rises in his place and asserts that there are members in this twdy, upon this floor, who have taken money for the purpose of gagj^ing and' defeat- ing the will of the people of this State, that he is not censurable for making the statement. If it be true, and I take it that no gentleman will make a aharge of that character unless he knows it to be true. No gentleman will say, " I know there are gentleman on this floor who have got retaining fees to defeat the will of the people of this State," imless he states it upon good grounds, and from knowledge. Xow, this is not for the purpose of censuring the gentleman, but when a charge of that kind is made, I think the Convention is entitled to know who Uieae persons are. Mr. STEDMAN. I rise to a point of order. As I understand it, the resolution is not debatable. Thk PEESl DENT. It is debatable. The point of onler is overruled. Mr. BARNES. Mr. President : I would like to proceed in order. This is not for the purpose of censuring Mr. Grace; that is not what the resolution is oflcred for ; hut it is to an<>rd the gentleman an op)>ortunity to state who the members are that are guilty of these things, and the Convention an op|>orlunity to know who it is that has been bribed to stand up in this Convention and defeat the will of the people. We are in the middle of a very important debate, as important aa anj^that will lake place here ; we are aUcmt to consider questions of very great im- ]x>rtance, in respect to which, and the policy of which, gentlemen may welldifler; and before we proceed further I think we ought to be in- fonued if there is any one here who is paid to advocate any proposition, anybody who is a hireling to anybody for any purpose, in order to weigh his wonlsand know what dependence to put in his words. I can say for myself, as far as this debate has pnx^Med, I have seen nothing in the report of the Committee on Corporations Uiaf I do iiol give my per- sonal and hearty assent to. I stand with the committee on the main propositions; but there may be gentlemen here who may raise questions and present considerations that may. in the light of their ability and learning, materially influence and change the views which I entertain; und if there is a man hera on this floor, who comes here paid and bribed to defeat the will of the people of this State, I want to know it, and I want tu know it too, before he speaks here, in order to under- stand and appreciate what he says, and why he says it. If the charge of the gentleman from San Francisco be true, the Convention has a right to know who the man is, in order that he may be dealt with as he deserves. You will remember that the Act under which this Conven- tion was called, has reference U> this very subject. It provides the means by which the Convention may deal, or shall deal, with any per- son who shall occupy such a position. This is not the first time it has been alluded to, it has been often alluded to ; but this is the first time the charge has been absolutely and publicly made, and now is the time to deal with it. Tbr PRESIDENT. The Chair is of the opinion that the resolution is not in conflict with Rule Forty-four, and tiKrefore decides that the point of order raised by the gentleman from San Francisco, Mr. Beer- stecher, is not well taken. The question is on the resolution, which the Secretary will read. Tag SECRETARY read : Wherkas, Tbe gentleman fmni San Francisco, Mr Gnue, has publlcljr aawrted ia dftmte in this body us follows: " I know that Ui,rp are gentlemifn on tills floor who have got rt-tJiitiing ffes tu stand up and try tti gug down and defeat the will of tbe people in comtielling ruilniftd curpomtlons in this tilnto to do a legitimate, aqaare, * honest busiiieiM;" and whereas, the language above quoted amounts to a charge of an offense agHiiist tlie law of the land committed by sDUie memlier or memljars In this hcuXy, and of a cliartie of giving or offertng a bribe to a member, or t>y corrupt means to devise, directly or indirectly, to control or influence a member iu giving his vote ; Ruolvtd, That the gentleman from San Francisco, Mr. Grace, be and Is heroby refiulred to name the pcnona, within or without this body, who he knows to have entered into such corrupt agreement to gag down and defeat the will of the people, to the end that the power of this Couventlou to pQuish such otfense may be exercised pursuant tu law. AK APPRAL. Mb. BEERSTECIIER. Mr. President: I most respectfully appeal from the decision of the Chair. It seems to me, sir, that when it says that no member Thk president. The gentleman is not in order; it takes three to appeal. Mr. STEDMAN. I second the appeal. Mr. BARBOUR. I second the appeal. The president. The Chair decides that the resolution is not in conflict with Rule Forty-four, and overrules the point of order, and from that decision of the Chair the gentlemen appeal to the Convention. The question is: Sliall the decision of tbe Chair stand as tbe judgment of the Convention ? Mr. BEERSTECHER. Mr. President : I take this appeal with due deference and respect to the ruling of the Chair; but the resolution of the gentleman from San Fraiftisco, Mr. Barnes, asks the gentleman from San Francisco, Mr. Grace, to rise before this body and make explanation as to the words used by him in debate this morning. Of course, if this resolution is adopted, of necessity Mr. Grace will be obliged to rise before this Convention and make answer. Rule Forty-four says : " If any member be called to order foroflensive words spoken under tlebate, the person calling him to order shall report the words excepted to, and they shall be taken down in writing at the Secretary's table ; and no member shall be held to answer or be subject to censure of the Convention for larguage used in debate, if any mem- ber has spoken, or other business has intervened, after the words spoken and before exception to them shall have been taken." Therefore, with due deference to the Chair, in my humble opinion the resolution is in direct conflict with Rule Forty-four, that no member shall be held to answer for language used in debate, if any member has spoken, or other business intervened. It seems to me, as I said before, that the resolation is in direct conflict with the standing rule of this Convention; tnd furthermore, it seems to me useless and idle to call upon the gentlemu, Mr. Grace, to get up here and make an explanation, when the wordi were not direct to any person, to any gentleman ; and I am sorry that the gentleman from San Francisco, Mr. Barnes, feels so sore over the words that have been used. Mr. BARNES. Mr. President: I accept the sympathy of my friend, Mr. Beerstecher, but I am not sore over words uttered in' debate. I an sorry that gentlemen have seen fit, whenever there has been any differ- ence of opinion upon subjecU under debate here, to throw oiit the* insinuations, when these subjects have been debated, on one side at least, with fairness and candor. I am (orry that these charges should have been made. This thing has been more than once protested a«ifl&it This morning was the first time that they have assumed a definite form. I submit that the view taken by the gentleman from San Francisco, Mr. Beerstecher, is not the correct one, b^use this is not a charge apinst Mr. Grace at all. It does not call on him to answer for aiir vonls spoken in debate, because if they were true he had a right to say theni. and be ought to have said them. If any member upon this floor knowi of any one who is paid to clay here and defeat tbe will of the people, he ought to rise in his place and say so. I would if I knew it Tbere is po charge against the gentleman at all. As far as this reaalutiou i> concerned it simply seeks to inform the Convention who it is. Mb. TULLY. Is it simply a resolution of inquiry? Ml. BARNES. Yea, sir; he says he knows there are ^ntlemea on this floor who receive money for flagging down and defeating the will of tbe people. Now, I cannot conceive of any charge more serious. Mr. grace. I spoke it generally. I d'id not say tbe geutleman va here ; that was not tne intention Mr. BARNES. I have the floor, I believe. Thr president. Tbe gentleman from San Francisco, Cokoel Barnes, will proceed. Mr. BARNES. I was very much struck with the observation when it was made, and I took occasion to go to the reporters, aud from two of them obtained the language which I have quoted. He said this: 'I know that there are gentlemen on this floor wno have got retaining fees to stand up and tr|r to «ig down and defeat the will of the people, in compelling the railroad corporations in this State to do a legitimate, square, honest businev-" I now ask the Convention to adopt that reso- lution. If Mr. Grace says he did not say it, or did not mean it, well enough. But if he knows anybody, or if he can even point the finger of suspicion at anybody, I want to know who it is — that is all. Mr. B.\RB0UR. I wish to offer an amendment. Mr. terry. The question is on the appeal. Tai PRESIDENT. Yes, sir. Mb. HAGER. Mr. President: I did not bear the words spoken, and I did not know thai anything of that kind had been said. In pariit- mentary bodies I always bind myself not to violate parliamentarv rales and usages, because order is necessary for the conduct of business, snd unless we observe order, of course we will fail to reach the point of debate. The ordinary rule applicable in cases of this kind — the general parliamentary rule, as well as the rules governing this body — are to the effect that the words must be taken down at the time; they most be recorded at the time they are spoken. The President may order them taken down by tbe clerk, and then the matter comes up immediatelj. Cushing lays down the rule as follows: " If offensive words are not taken notice of at the time they an spoken, but the member is allowed to finish his speech, and then ut other peraon speaks, or any other matter of business intervenes befoie notice is taken of the words which gave offense, the words ate not to be written down, or the member using them censured. This rule is estah- lished for tbe common Eecurity of all the members, and to prevent the mistakes which mt48t necessarily happen if words complained of are not immediatly reduced to writing." Now, there is a d ispute as to what was said. We cannot appeal to the reporters, because that is contrary to the rule. When words are uttered that are ofi°ensive, some member can rise in his place and hare the words taken down ; and the member may then be censured. But it is now in a stage where we cannot take notice of it with a view to ccnsar- iug the member who uttered the oflTensive words. I do not see how ve can do anything in the matter. I regret that this resolution has been brought up, because I am at a loss to Know how to vole. I am inclined to think tne appeal should be sustained, inasmuch as the period hu passed under which this body can take notice^ of the oflensive words. Mb. TULLY. I think, sir, this case don't come within Rule Forty- four for offensive words. That rule says : " If any member be called toorderforoff'enslve words spoken in debate. the peraon calling him to order shall report the words excepted to, and they shall be taken down in writing at the Secretary's table; and no member shall be held to answer or be subject to censure of the Conven- tion for language used in debate, if any member has spoken or other business has intervened after the words spoken and before tbe eioep- lion to them shall have been taken." I think the Chair is right in its ruling. If this is aiiytbing.it isstes- olution of inquiry, and perhaps, if it is lirought up in proper shape, this matter might be inquired into by a committee, or otherwise; but, sir, I do not think the gentleman himself can be held to answer for the lan- guage, or censured under this rule. I do not see that it is anything but a resolution of inquiry. But it certainly cannot be brought within tbe scope of this rule, because be would have to be called to order by some person for words spoken, and the words taken down. I sobiail to the gentleman to change the resolution in some way, so as to maks 'A t resolution of inquiry. Mr. BARBOUR. Mr. President: The language of tbe rsaolutioe >• Digitized by kngt tJ' Nov. 21, 1878. OP THE CONSTITUTIONAL CONVENTION. 477 extraordinary. It is an order, as I understand it, to name certain per- sons Me. BARNES. I rail your attention to the fact that it does not make any charges against Mr. Grace himself, nor impugn his motives. .\Ie. BARBOUR. The resolution sets forth that he made certain statements, and follows up with an unqualified demand that he shall name certain persons. Suppose he says, I am not at liberty to comply with the resolution without betraying confidence, what happens? Would it not be monstrous to ceusure him for not doing what no gentle- man could doT I maintain that you cannot impugn the motives of a member of this Convention in any such manner. It is enough to say that it cannot be done. I havehadchargessentmeby letterday afterday, impugning the motives of some of the Workingmen's delegates on this floor, and saying that some of them are ready to sell out. If this matter is to be investigated, there is a good deal more to be added to it. Ms. IIAGKK. I move the matter be laid on the table. Mr. LAKKIX. I regret that this matter should have been raised here. In legislative boaies I believe there have been paid advocates, but I do not believe there are any such in this body. As to Mr. Bybour's statement, no one believes that he has sold out to any one, or that he is a paid advocate of any company, and no investigation on these general charges should be gone into. If they are to be gone into at all, then I am in favor of a thorough examination. Tbk president. The Chair will state the reasons for the decision. Rule Forty-four provides: "If any member be called to order for offensive words spoken in debate, the person calling him to order shall report the words excepted to, and they shall be taken down in writing at the Secretary's table; and no member shall be held to answer or be subject to censure of the Convention for language used in debate, if any member has spoken or other business has intervened after the words spoken and before exception to them shall have been taken." The resolution here is of a different character; it does net proceed against the member, or call him to account for the use of offensive language at all. It is not in conflict, therefore, with Rule Forty-four, or the par- liamentary rule. The Convention can institute an inquiry at any time, and in any shape they may deem proper. This resolution is capable of amendment, so as to appoint a committee, or in any other way that the Convention may see proper. It has nothing whatever to do with Rule Forty-four, and therefore the Chair decides that the point of order raised by the gentleman from San Francisco is not well taken. From that decision an appeal has been taken. The question is on the appeal. Hb. VACQUEREL. Mr. President: I wish to call the attention of members to the fact that not very long ago I was required to get up here and explain myself, though it was two days after the words were spoken. I did explain my position. It has been asserted that I am — not exactly a traitor — but a man to be looked upon with suspicion. Now, I say if a member is asked to explain, he should explain. I bad to stand up here and explain, and besides that explanation, I am Iqpked upon with distrust, as a man that might be bougnt by the corporations, and if this thing is to be investigated, I am in favor of it. Tri PRESIDENT. The question is. Shall the decision of the Chair stand as the judgment of the Convention ? Me. west. I move that the whole matter be laid on the table. MR.INMAN. I object. The president. The question on the appeal must be decided, unless Tou move to lay the appeal on the table. Ma. WEST. I move to lay the appeal on the table. Ma. REYNOLDS. Mr. President Mb. VANDYKE. Mr. Pres Me. REYNOLDS. Mr. President: I desire to state Thb PRESIDENT. The motion is to lay on the table, and it is not debatable. The question is on the motion to' lie on the table. Mr. BARNES. Will the Chair be kind enough to state what the effect of this motion wiU be; does it lay the whole subject on the table? The PRESIDENT. No, sir; simply the appeal. The resolution will remain before the Convention. Mb. WEST. I move that the whole subject-matter be laid on the table. The PRESIDENT. The appeal must be disposed of. The motion to lay the appeal on the table prevailed — ayes, 85. Mb. BEERSTECHER. I move that the resolution be indefinitely postponed. The PRESIDENT. The Secretary will read the resolution. The SECRETARY read the resolution again : ^'■iBUs, The g'ntl«in*n from Sun Franclico, Mr. Grace, hu publicly aaaortn) In U«lMte, In this body, as follom; "I know thiit there are gentlempn on this floor who harr got retaining fees tn stand up and try to gag down and defeat the will of the people. In compelling the nUlruad corptiratlons in this State to do a logitlmate, ^iian>, linneet buatnesa; " and, whereas, the laiigaage above quoted Hniunnts to the charge of an offense against the law of the land, committed by sonie member or memben of this body, and to a charge of giving or oOering a bribe to a nieuiber, or by etirrupt means or oerice, directly or indirectly, to control or Inflneoce a member in Klring his Tote ; Baolttd, Thai the gentleman trom San Francisco, Mr. Grace, be and he Is hereby required to name the persons, within or without this body, whom he knows have* entered Into such corrupt agreement to gag down and defeat the will uf the people, to the end that the power uf this Convention to punish such oflTense may be exercised pnniuuit to law. The president. The question is on the adoption of the resolu- tion. "^ Me. REYNOLDS. Mr. President: I am opposed to the passage of the resolution, for the reason that there was no foundation laid for the " whereas," that the gentleman from San Francisco has made certain statements, that he has used such and such language. The resolution PMports to repeat the exact words used. I say that no foundation has been Uid for the resolution by eetablishing the fact that the gentleman fron 8m Franciaoo, Mr. Grace, used thoee words. And DotwitbttaDding the point of order made by the gentleman from San Francisco, Mr. Beerstecher, has been overniled, still the parliamentary rule holds good that if language is put into the mouth of any gentleman, for which he is to be investigated, or anybody is to be investigated, the foundation must be laid by establishing the fact that he used these words. There has been no such foundation laid here. There is no proof before this Convention that any such words were used, and that is the reason of my objection. Cushing's Manual, 227, says: "If a member, in speaking, makes use of language which is person- ally oflensive to another, or insulting to the assembly, and the member offended, or any other, thinks proper to complain of it to the assembly, the course of proceeding is as follows: The member speakiug is imme- iliately interrupted in the course of his speech, by another or several members rising, and calling to order, and the member who objects or complains of the words is then called upon by the presiding officer to state the words which he complains of, repeating them exactly as he conceives them to have been spoken, in order that they may \te reduced to writing by the Clerk; or the member complaining, without being so called upon, may proceed at once to state the words, either verbally or in writing, and desire that the Clerk may take them down at the table. The presiding officer may then direct the clerk to take them down," etc. Now, if you are going to investigate, you must have something to investigate. Then, sir, tnat makes it necessary to establish the words that were used, and how. The gentlemen should have been interrupted at the time he used the offensive language, and the words should have been taken down by the clerk. Now, the language which is put in the gentleman's mouth, was not taken down at the time by the clerk. It is said here by the gentleman introducing the resolution, that ho obtained a copy of the words from the shorthand reporters' notes. Perhaps he has, but there is no official reporter here, and if there was, the short- hand notes are not evidence, because the attention of the Convention was not directed to it at the time, and it was not taken down. Mk. BEERSTECHER. Mr. President: I call the attention of the Convention to section six, Mb. REYNOLDS. I believe I have the floor yet. Mb. BEERSTECHER. Then go on and talk. I thought you had finished. Mr. REYNOLDS. Mr. President: Besides these objections to the resolutions, outside of that, I am fully prepared to go into any amount of investigation. There have been charges, and counter charges Mb. BARNES. On this floor? Mb. REYNOLDS. I did not say on this floor, but by members of this body. Early in the session here the gentleman from San Francisco was reported to have said Mb. BARNES. Where? Mb. REYNOLLDS. It has been stated in a caucus here, that "we must unite two thirds against one third," and referring to " these com- munists here." Now, who are the "communists?" Let us have a committee of investigation, and find out who are the communists on this floor. Let us go into the investigation business for the balance of the session. There is plenty of room ibr it. And I call attention now to the fact that the gentleman complains of something this morning which I did not hear, that certain gentlemen had been alluded to as "corpora- tion lawyers." Very well; I heard the latter part of th^gentleman's argument, and if it meant anything at all it meant that if Leiand Stanford and the railroad company have not the ability to rob the people of California to as great an extent as they desire, the Legislature ought to provide the means for their doing so. That was what the gen- tleman's argument meant, or it means nothing at all. Now let us find out whether there are any corporation lawyers here, and let us find out whether there ore ony communists in this body. Wo are ready to pass the resolution to that effect. Mb. BEERSTECHER. I call attention to section six, or a portion of section six, of the law calling this Convention. It says the Convention shall have power to expel any of its members, and punish its members and officers for disorderly behavior, by imprisonment or otherwise, but that no member shall be expelled until after the facts have been examined into and reported upon by a committee appointed for that purpose. Now, it seems to roe that it is contemplated in every case, not falling within or under Rule Forty-four, that a committee shall be appointed to make an investigation; and, Mr. President, I don't believe that this body has got any power to oblige the gentleman from San Francisco, Mr. Grace, to make any answer to the resolution, should the resolution be passed. Mr. President, if that resolution were passed upon we should not make any answer to it, and 'the Convention could do nothing about it at all. It is an absurd resolution and ought to fall through. But if the object is to appoint a committee, I shall vote to appoint a committee, because I want to find out who the " featherless bipeds" are who sit in this Convention. I want to find out their names. I want the names of the "Communists; " and if wo are going into an investigation, let us go into it thoroughly, and let us e.^amme every cir- cumstance that has been uttered upon this floor. But, at the same time, I do not believe that the opinion of the people of California, or the votere of California, will be changed in the least. The opinion of the people as it exists will remain, and this resolution of investigation, or any investigation, is not going to remove the cloudof darkness that envelops members upon this floor, if there is any such cloud of darkness. There- fore the resolution is useless. If members desire to purge their reputa- tions, the^ are not going to accomplish it in any such way as this, because the opinion of the people of this State will remain, resolution or no resolution. I do not believe in thif method of procedure. I will vote against this particular method, but I will vote for a committee to inves- tigate gentlemen who have given utterance to certain things on this floor, because I do not approve of them. I do not approve of these things; they belong not in a deliberative body of this kind, and I bop it will be voted down, and I hope we will reiume the buaioeea i * ' Digitized u_ I biiese I hope 478 DEBATES AND PROCEEDINGS Thdrsdav, ConveutioD, and I hope we will not take up the time that belongs to the people of this State, already overburdencKl with grievous taxation, on account or this Convention and other matters. Mr. smith, of Kern. I do not see the necessity of spending valua- ble time on this matter, and I move to lay the whole matter on the table. Mr. O'DONNELL. Mr. President: I understand this matter in this way — that there is a motion to indeAnitely postpone. Thr president. Yes, sir, but another gentleman moves to lay it upon the table, which motion takes precedence. The question is on the motion to lay on the table. Mr. waters. I call for the ayes and noes. Mr. HUESTIS. Ayes and noes. Ms. SCHELL. Ayes and noes. Mr. WHITE. Ayes and noes. Mr. O'DONNELL. Ayes and noes. Mr. GRAVES. Ayes and noes. The roll was called, and the motion to table was lost by the following vote: Ayers, Gorman, Reynolds, Barbour, Harrison, Rine;gold, Barry, Herold, Smith, of 4th District, Barton, Herri ngton, Smith, of San Francisco, Beerstecher, Hughey, Stedman, Bell, Joyce, Sweasey, Condon, Kleine, Swenson, Dean, Lindow, Tuttle, Wellin, Dowling, Morse, Do^, Nelson, West, Evey, Neunaber, Wickes, Farrell, O'Donnell, White, Freud, Ohlever, Wy«tt-41. Garvey, O'SuIlivan, • K0R8. Andrews, Harvey, Porter, Barnes, Hilborn, Prouty, Belcher, Hitchcock, Pulliam, Blackmer, Holmes, Reddy, Boggs, Howard, Reedf Boucher, Huestis, Rhodes, Burt, Hunter, Rolfe, Campbell, Inman, Schell, Caples, Johnson, Shafter, Casserly, Jones, Shoe maker, Chapman, Kelley, Shurtleff, Charles, Keves, Smith, of Santa Clara, Cowden, Lame, Soule, Crouch, Lampson, Steele, Davis, Larkm, Stevenson, Dudley, of San Joaquin, Larue, Stuart, Dudley, of Solano, Lavigne, Swing, Dunlap, ^ Lewis, Terry, Eagon, Mansfield, Thompson, Edgerton, Martin, of Alameda, Tinuin, Estee, Martin, of Santa Cruz Tully, Estey, McCalliim, Turner, Fawcett, McComas, Vacquerel, Filcher, McConnell, Van Dyke, Fineey, McCoy, Van Voorhies, Freeman, McFarlaud, Walker, of Marin, Glascock, McNutt, Walker, of Tuolumne, Grace, Mills, Waters, Graves, Moffat. Webster, Gregg, Moreland, Weller, Haeer, Hale, Murphy, Wilson, of Tehama, Nason, Wilson, of 1st District, Hall, Overton, * Mr. President— 99. Me. McCALLUM. The vote just taken sustains the Chair in his decision that this does not come under Rule Forty-four. It must follow that this is not intended in any manner as a reflection upon the gentle- man named in the resolution. There is a word used there that ought not to be used. It is the word " required." I move to insert the word " requested." Mb. BARNES. I accept the amendment. Me. REYNOLDS. Mr. President: I understand the previous ques- tion is now before the house. Mr. O'DONNELL. Mr. President: Mr. BARBOUR. I send up the following amendment. Thr SECRETARY- read: "Amend by adding to the resolution as follows: 'And the gentleman from San Francisco, Mr. Wilson, shall be required to answer as to who he meant by the words, 'unfeathered bipeds,' and 'communists.'" Tbr PRESIDENT. The amendment is out of order. Mr. BARBOUR. I offer another amendment as a substitute. Thr SECRETARY read: Booked, That a aimmlttee of fiTe be appointed hj Ihe Chair to inTMtig«t« tb* focta of tlie matten btated by Mr. Grace, and any other niattera impugning th« integrity of nienibera, with power to send for personB and papen. Mr. van dyke. One thing at a time. Thr president. The question is on the amendment. Me. BARBOUR. Mr. President: That is in accordance with what I understand to be the opinion of gentlemen on this floor. If we are going into an investigation of this matter after it has passed, by the most liberal construction you can give it, ^e have the right to investigate other matters. If you can investigate a matter one hour or two boon after the speech has been delivered, and after other business has inter- vened, and after other persons have spoken, there is no reason why yoa cannot go a day, or a week, or a month, back. There is no reason why, if you depart from the rule in one case, you should not depart in all cans. I have a farther reason, Mr. President. I have been, all the time, anxious to go ahead and make a Constitution. I have not amsamed any more of the time of the Convention than was proper; T have not brought forward long briefs and propositions ; I have not risen to ques- tions of privilege ; but, if it has got to come down to it, even so, I will bring in my mud, and others here will bring on their mud. That is all there is about it. I propose now to make a change, and I will do so, too: that this is a trick, a traiuparent trick, gotten up for the purpose of get- ting rid of one vote which may be in the way of certain schemes and purposes; and if you can fire one member out on a charge of this kind, fur contempt or otherwise, there is nothing to hinder you from firing out all the minority, and running this thing to suit yourselves. Now, I am associated with a class who have been taken from the machine shops, and other fields of labor. They are not skilled in the art of putting things. I, myself, have indirectly put as grave charges as this against the majority here, and against the mover of the resolution, but 1 have done it in such a way that they could not take it up. I have said things time and time a^in just aa strong as the language used by the gentle- man this morning. There is just this diflercnce: one man, who is skilled in parliamentary language and tactics, can say things with impunity that another, less skilled, would not be allowed to sav. The$ration8, 1 think we have a right to know it. If, as my friend, Mr. Barbour, says, and it may possibly be the case, it was an expression thrown out in the heat of debate, in ii straigbtforvanJ, blundering way, I think it is time that blundering should be stopped. I do not want any more of it here. I do not want to get up and call the gentlemen on tpe other side hard names. There are lots of names we might call them — I know some of them come from a climste where names are much in vogue, and some of them seem to follow out the ides 4iere. The gentleman says he can throw as much mud as anybody. But mud throwing is not what we are here for. What I want to know is this: Does the gentleman from' San Francisco, Mr. Grace, know of any man on this floor who has been paid to defeat the will of the peeple of this State? If he does, let him say so. If he says it was but an expression that fell from bis lips in the heat of debate, let him say ta, and that will be the end of it. Nobody proposes, as the gentlemen says — at least such an idea ne»er entered ray head — lo expel Mr. Grace from this body, or have him &11 from grace in any sense. It only means that if he knows of any such person who has been bribes it would be as well that I should not. But I cannot stand here, sir, and hear myself misrepresented in such broad terras. I can- not do it. Mr. President, I was born in this country, under the stars and stripes, and the blood of my ancestors stains every battlefield that has become familiar in history, from the period of the Revolution down to the present time. I did not make the assertion as stated ; if I had, I would stand up to it though the heavens fall, though the earth should open and swallow me. I did not say, I never meant to say, that any lawyer in this Convention was paid a retaining fee for the purpose of attending to the business of the corporations m this Convention. I meant to say — perhaps the language was misunderstood — I intended to say there were lawyers that had retaining fees, paid by corporations, to attend to their business, outside of the Convention, in this city. I know that was my meaning, and I believe there are. I did not say they were here as delegates to the Convention to represent corporations. Colonel Barnes, the author of this resolution, I have always admired as a man and a lawyer who stands high in his profession, and if I had a case in Court now I would as leave put it in his hands as anybody, but I regret to see him misrepresenting me. I am willing to stand by what I say, but my lanioiage has been misunderstood. All I want is for the corpo- rations to do a square, legitimate, honest business, just as partnership firms and individuals do. Mb. B.^RNES. If I may do so without being accused of tjeing afraid. I will say that I am satisfied with the explanation. I was surprised myself to hear him make the remark, and I went to the reportars-^ Me. grace. As to working on the railroad, I have worked for the railroad company. I worked as a carpenter at four dollars a day. They cut me down and I refused to stand it. Ma. BARNES. I ask leave to withdraw the resolution. Thb president. If there is no objection, the gentleman will have 1««W, The Chair hears no objection. The resolution is withdrawn. RAII.R0AO COMPETITION. Me. DUDLEY, of Solano. I move that this Convention resolve itself into Committee of the Whole, the President in the chair,for the purpose of taking into consideration the report of the Committee on Corporations. Carried. * IN COMMITTEE OF THE WHOLE. The chairman. Section eighteen, and amendments, are before the committee. The first is the amendment of the gentleman from Los Angeles, Mr. Ayers: "And whenever a railroad 'corporation shall, for the purposeof competing with any other common carrier, lower its rates for transportation of passengers and freights from one point to another, such reduced rates shall not be again raised or increased from such reduced standard." To which the gentleman from Tuolumne, Mr. Walker,move8 an amendment to add." unless the lowering or raising of such rates be by mutual consent of the competing parties." The ques- tion is on the amendment to the amendment. RKMABKa OP lis. VAK DTKR. Mr. van DYKE. Mr. Chairman : I call attention to the fact that this jtenalty is not mutual. It binds railroad companies, transportation companies, but it does not apply to stage companies or steamboat com- panies. That is the way it reads now. Therefore the penalty .is not mutual. It seems to me to open the door to all sorts of blackmailing schemes against the railromi company. A steamboat company can com- pete against a railway company, and raise and lower its rates at will, and so can a stage companv. A railroad company cannot. So the penalty is not mutual. I thinlc it is mischiev«us. Mb. DUDLEY, of Solano. Is the question on the amendment I sent up, or on the one last sent up? 'The chairman. Thequcstion j^ on the amendment to the amend- ment, offered bv the gentleman from Tuolumne, Mr. Walker. Mb. O'DON^ELL. I sent up an amendment to this section last evening. Tbk chairman. It has been lost sight of. The question is on the amendment to the amendment, proposed by Mr. Walker. IlOSt. Mb. BLACKMER. Mr. Chairman : Mb. DUDLEY, of Solano. Mr. Chairman: Tbe CHAIRMAN. The question is on the amendment proposed by the gentleman from Solano, Mr. Dudley, to add, "except by consent of the Legislature." SPEECH OP MR. ESTER. Mr. ESTEE. Mr. Chairman : That comes right back to the original proposition, namely, whether this matter shall be left to the Legislature or to a Commission. I hope the amendment will not be adopted. I do not think this Convention wants to place that power in the hands of the Legislature. I want to say one wora to the gentleman from Los Angeles, as to the eflect of his amendment, as proposed to be amended by the gentleman from San Joaquin, Mr. Terry. What I understand by the proposition is this : to remedy certain evils local to his section of the State, and thereby to remedy evils of like character iu other portions of the State. Now, Mr. Chairman, suppose the citizens of Los Angeles do go to work and build a road down to tbe coast. They raise the money and build a road down to the ocean. The moment they commence building that road, the Central Pacific will put down their rates, and the result would be that the competing line would have to put down its rates to a very low figure in order to get business, and they could not again raise them. The result would be that the competing line would be the first to suffer. My idea is that the very remedy my friend seeks for will prove an injury. It is a two-edged sword thatwill cut both ways. 1 hope it will not be adopted. I hope this Convention will con- clude to leave these matters in the hands of a Commission, and if you are not satisfied with the Commission as recommended in section twenty, then adopt some other; but I hope it will be taken out of the hands of the Legislature and left to some distinctive body elected by the people of the whole State, with full power to deal with these great questions. SPEECH OP MR. DOWI.INO. Mr. DOWLING. Mr. Chairman: I hope the amendment to the amendment will pass, because the amendment offered by the gentleman from Los Angeles, Mr. Ayers, is an article that ought to be inserted in the Constitution, by all means. I am acquainted personally with the ills which the people of Los Angeles have suffered from the lowering and raising of the rates by this great, overshadowing monopoly. They lowered their rates on the local line between Los Angeles and Santa Monica in order to freeze out Jones and his cohorta. Now, Mr. Chair- man, I am interested In this thing myself. I am one of a party that went down to Los Angeles, during the excitemeni;, and bought some town lots there. These lines have since )>een abolished. We all know that corporations have rights that are to bo respected, and protected, too ; but it must not be forgotten in the meantime that individuals have rights which are sacred and must be held inviolate. I believe, Mr. Chairman, that we are here as representatives of the people, in order to engraft some laws and provisions in the Constitution by which they will be better guaranteed in the future than in the past. Now, sir, this amendment is a new idea; it is one that is compatible with reason, with common law, with common sense, and common justice. No man has a right to deprive another man of his property. I don't believe that any transportation companv has a right, under this same principle, to drive a competing line out ol'^ existence. Now let us look at this thing in Cal- ifornia for a moment. The original old wagon roads were superseded by railroads. It has robbed their functions and destroj-ed their vocations; hence, the only mode of transportation we have is railroads. In the City of San Francisco, it must be remembered, some years ago, when the rail- road fare was raised to six and one fourth cents on the street cars, ther^ was an opposition line of omnibuses started at five cea Digitized by 3 Street cars, tnere 480 DEBATES AND PROCEEDINGS Friday, as soon ob they were fairly under way the street rar monopoly reduced fares and drove the opposition out. As soon as the opposition was run off the old companies raised the fares to the old st4indard. The Legisla- ture then passed a law restricting the monopoly, iiow, sir, this is a common sense question, though it may appear superficial. We have several places in this State to-day where omnibuses and stage coaches could make a living if the railroad companies had not the power to reduce the rates and drive off the competing line. As soon as they get started down comes the fare until they are driven off, and then the fare comes up again. Now, sir, this is not an infringement of the rights of the railroad at all; we don't want to do that. Wo want to bring down the railroad company to a basis so they will make a good fair interest on their investments, and not crush and abuse the people. Then, certainly. I hold that the amendment offered by the gentleman from Los Angeles ought to pass. I hope it will be adopted. Now, sir, I am sorrv for this little squabble going on here to-day. It is in fact outrageous tor a body of men assembled together, representing the people, spending an hour and a half or two hours wrangling about nothing. Or course, sir, there has been always, in the heat of debate, remarks made by speakers which, in cooler and calmer moments, they would be'sorry for. I know that is the way with myself. A man who was never in a deliberative body before, is apt to say things he would be sorry for. But I would Ifke to know of the gentleman from Ran Francisco, Mr. Wilson, who ho referred to when he mentioned the " unfeathered biped." [Criesof "Come to order."] Perhaps be referred to myself. [Laughter.] There is the bullfrog, an unfeathered biped, [laughter] which represents capital and concentrated wealth, bloated and pompous. Now, I don't care,' as far as I am concerned, what gen- tlemen may call me. They may call me an unfeathered biped ; they may call me a jackass. [Laughter.] Mb. IIUESTIS. Is the gentleman talking to the question? I would like to know what the question is. Thr CUAIRMAN. The question is on the amendment to section eighteen. Mr. HUE.STIS. I suggest that the gentleman bad better confine himself to the auestion under consideration. Mb. DOWLING. Of course, we have to have our merriment. I would like to know if I have not some rights here as well as Mr. Wil- son. He was not called to order this morning. When I stand up to defend myself, the gentleman calls me to order, and wants to know what the question is. I will tell him. I don't care if he calls me a Jackass, an animal that can bawl louder than any other. But a corpo- ration jackass outbawls them all. SPBBCB or MB. BOWABD. Mb. HOWARD, of IjOs Angeles. Mr. Chairman: I would not at this late hour say a word on this amendment, if the people whom I in part represent were not deeply interested in this question. I do not think the proposition has been fairly met or fairly dealt with. The Chairman of the Committee on Corporations says that we ought to adhere strictly to the report of the Committee on 'Corporations, and he intimated that this proposition would somehow conflict with the report. It seems to me that this is entirely a mistake, l>ecause this provision ought to be incorporated in the Act creating this Commission. Now, I do not assume as a member of the Committee on Cor;wrations, that we know everything. I do not assume that we know better than anybody else or everybody else. But this proposition was recommended by the late Board of Transportation Commissioners, composed of General Stone- man, a graduate of West Point, Mr. 'f uttle, a professional engineer, and who a short time since was in the employ of the ("entral Pacific Rail- TOod Company, and Mr. Doyle. The legal propositions contained in the report, and themes discussed, are from the pen of Mr. Doyle, who stands among the foremost men in his profession in this Stale; and, hoving devoted two years of constant study to this subject. I assume that what they recommend is worthy of the consideration of this Con- vention. Now, sir, they say this: that all of the steamer lines are under the control, if not owned by the Central Pacific Railroad Com- pany, and that, therefore, we have no chance of competition through water communication. That being the case, this provision is necessary to protect society here, and to preserve it from the grasping schemes of this monopoly. That is the fact in the southern portion of the Slate. It is true. Now, sir, what is the proposition? It is proposed that when one party is in possession of a line which is a monopoly, and competi- tion goes in — and competition is Ibe life of all business — that the old line shall not, by reducing rates themselves, drive off this competition, and then afler they have driven it off, raise the rates again and make the community pay for the cost, I say the amendment applies legally and properly to all common carriers. I maintain that a stage coach line would have no more legal or moral rip;ht than a railroad company; therefore, the whole thing ought to be subject to the same regulations. Now, sir, allow me to state the facts as best I can ; allow me to state them as the Commissioners have stated them, and I shall not go beyond their statements, as they state them in Los Angeles County. Previous to the laying down of any rail there, the transportation of freight did not cost over ten dollars a ton, and generally not over six dollars. But as soon as the rails were laid down, and the Southern Pacific commenced operations, freights were increased to nearly double those figures, by rail. And then, when the railroad to Santa Monica came to be built by Senator Jones, the old line again reduced its freights, for the purpose of running off the competition. And they kept it reduced until they had not exactly run out the opposition, but forced Senator Jones to sell his road to them, and the Commissioners say that is the history of the whole subject everywhere, and they say true. Then they raised it again — a year ago last Jnly they, i^ consequence of their purchase, raised freights again on general merchandise fifty per cent., and they continued them at that figure. Having in the meantime oombined antl pooled freights and fares, as this report says, with the steamship com- pany, they again raised the rates. A gentleman of that county, bavin; a small steamer, thought he could do a safe business, and benefit the community as well as nimself; he put hisstearaeroii inopposiiioD. He put it on and carried freight at four dollars a ton. 'The compaiiT reduced, aud he reduced to three dollars per ton, and then they redund to one dollar, driving him off or compelling him to sell to them. Thii is'thc thing we are arriving at. This monopoly is a vice ; it is conlnrv to public policy; it is contrary to right and justice; and I contend, ai the Commissioners have said, that we want a law which shall |ireTeiil them from raising their rates again when they have lowered them for Ibe purpose of running off competition. The recommendatiun of the Transportation Commissioners is right, and will aocomplieb good, tnd ought to be adopted. Now, sir, we contributed seven hundred and fi^ thousand dollanto the railroad by way of subsidies, to enable the roaa to cut our own throats. But, thank God, they did not get it by my vote. I made what feeble oppo- sition I could to it They have not only combined with the steamship companies, but they have bought up the landing and wharves. They are virtually monopolising the ocean, by driving off all competition. They forced the steamers to pool freigbta and fares and increase the rates for both. Now, sir, if the railroad company would take up their rarls and quit the ocean, and leave it as free as it was before they came there, they oould get from the people of Loe Angeles another Kven huiidrempaDT, the Supreme Court of the United States decided that, " Where two separate corporations were created to make railroads, they had no right to unite ana conduct their business under one management; nor had they a ri^hl to establish a steamboat line to run in connection with the railrotds- Notes (ci ven for the purchase of the steamboat cannot be recovered upon." Now, it has been settled in English cases, and in American cases, that i railroad being chartered to transport freight by rail has no power to own or run a line of steamships. I assert that if this comfmny was pro- ceeded against in the Courts for a forfeiture of charter on the ground of willful misuses, that their charter would go under so quick that the heads of the officers of the company would swim. Now, all we ask is that justice shall be done, and that the law shall be enforced that shall loosen the grasp of these monstrous monopolists. The O'Connor law provided that the rates prevailing on the first of January, eighteen hundred and seventy-six, should not be increafed. They were increased, in violation of that Act, and the railroad had influence enough in the Legislature to get that Act repealed in the Hart law. The Commissioners directed suits to be instituted for its violation in Los Angeles, but before they could be instituted the law was repealed by the Hart Act, which took away the right of action. This demon- strates the enormity of the abuse, and how little reliance can be placed upon a ^gisiature manipulated by the railroad, and how potent the railway is for control. DRATR or A HRMBBR AKN0I7NCRD. Mb. BEERSTECHER. Mr. Chairman, and gentlemen of the Con- vention: It becomes my sorrowful duty to announce to this CoBTeBtkiB tb« death of the Honorable B. F. Kenny, delegate elect from the Sty Digitized (^ ^ v*?? Nov. 22, 1878. OP THE CONSTITUTIONAL CONVENTION. 481 and County of San Francisco, and in respect to his memory, Mr. Presi- dent, I' move you, sir, that the Convention do now adjoarn. It is announced in this dispatch that there will be a further dispatch announcing the time of the funeral, and it would be better for the Con- vention to adjourn until to-morrow morning, when we can determine what farther action to take. Tbk chairman. The motion cannot be made in Committee of the Whole. Mb. BBERSTECHER. I move that the committee rise, report pro- gress, and ask leave to sit again. Carried. IN CONVENTION. Thk president. Gentlemen : The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have made progress therein, and aak leave to sit again. What is the pleasure of the Convention 7 ADJOCENMBNT. Mb. BEER8TECHER. Mr. President: I move that the Convention do now adjourn, out of respect to the memory of our deceased fellow delegate, the Honorable B. P. Kenny. Carried, and at three o'clock and fifty minutes p. u., the Convention stood adjourned. FIFTY-SIXTH DAY. Sacbaminto, Friday, November 22d, 1878. The Convention met in regular session at ten o'clock i. u., President Hoee in the chair. • 'The roll was called, and members found in attendance a» follows : Andrews, Harrison, Prouty, Ayers, Harvey, PuUiara, Barbour, Heiskell, Reddy, Barnes, Herold, Reed, Barry, Herrington, Reynolds, Barton, Hilbom, Rhodes, Beeratecher, Hitchcock, Ringgold, Rolfe, Belcher, Holmes, Bell, Howard, Schell, Blackmer, Huestis, Schomp, Boggg, Hughey, Shafter, Boucher, Hunter, Shoemaker, Brown, Inman, Shurtleflf, Burt, Johnson, Smith, of 4th District, Campbell, Jones, Smith, of San Francisco, Caples, Joyce, ■ Soule, Caaserly, Kelley, , Stedman, Charles, Kenny, Steele, Condon, Keyes, Stevenson, Cowden, Kleine, Strong, Crouch, Lftine, Stuart, Davis, Lampson, Sweasey, Dean, Larkm, Swenson, Dowling, Larue, Swing, Doyle, Lavigne, Terry, Dudley, of San Joaquin, Lewis, Thompson, Dudley, of Solano, Lindow, Tinnin, Danlap, Mansfield, Townsend, Eagon, Martin, of Alameda, TuUy, £dgerton. Martin, of Santa Cruz Turner, Estee, McCallum, Tuttle, Estey, McComas, Vacquerel, Evey, McConnell, Van Dyke, Farrell, McCoy, Van Voorhies, Fawcett, McFarland, Walker, of Marin, Filcher, McNutt, Walker, of Tuolumne, Finney, Mills, Waters, Freeman, Mofiat, Webster, Freud, Moreland, Weller, Garvev, Morse, Wellin, Glascock, Nason, West, Gorman, Nelson, Wickes, Grace, Neunaber, White, Graves, O'Donnell, Wilson, of Tehama, Gregg, Ohleyer, O'Sullivan, Wilson, of 1st District, Haeer, Hale, Winans, Overton, Wyatt, HaU, Porter, absimt. Mr. President. Berry, Cross, Noel, Biggs, Miller, Smith, of Santa Clara. Chapman, Murphy, lkavk or absbnck. Leave of absence for two days was granted Mr. Smith, of Santa Clara. THE JOUBNAL. Mb. schell. I move that the reading of the Journal be dispensed with, and the same approved. Curled. 61 DEATH OF MB. KBNNT. Mb. dowling. Mr. President: I rise in connection with the death that was announced here yesterday — the death of the Honorable Bernard F. Kenny, of San Francisco, a young man just verging into manhood ; one whose upri|;bt conduct and gentlemanly behavior had endeared him to us all. I ofier the following resolutions. Thk SECRETARY read: Wherzas, It ban pletued Almighty Ood to remove m onr midst, by death, one of the delegtitee to this ConTentlon, the Honorable fiernard F. Konny, a native of the City and County of San Francisco; therefore, Rtiolvtd^ Tliat it is with feeiines of profound regret that we have heard of the dmth of the Honorable Bernard 1> . Kenny, a delegate to this Convention from the City and County of San Francisco, Rttolrtd^ That in his death this Convention has lost an bouest and faithful mem- ber, society a useful, moral, and intelligent citizen, and bis parents a fond and atfeo- tionate son. Rt»olv«i^ That in this hour of deep affliction and grief we sincerely tender bis parents our sincere condolence and pnifound sympathy. Rttolvtd, That a committee of six bo appointed by the Chair to act as pall-bearera, and convey the remains of the doceaeed to the place of burial, and to defray all necessary eVpenses in connection with his funeral out of the funds of the Conven- tion. Raolred, That the Secretary be requested to forward a copy of these resolntioiu to the parents of deceased. Rttolvai. That this Convention do adjourn at twelve o'clock on Saturday, ont of respect to the memory of the deceased, until two o'clock on Monday next. The resolutions were unanimously adopted. The president. The Chair will appoint as the committee, under the resolutions, Mr. Beerstecher, of San Francisco, Mr. Barnes, of San Francisco, Mr. McCallum, of Alameda, Mr. Barbour, of San Francisco, Mr. Larkin, of El Dorado, and Mr. Reddy, of Inyo. Mb. FREUD. Mr. Chairman : At this sad hour I feel that I cannot without pain drop upon the green memory of my companion, and col- league, and friend, a few flowers of devoted love. He was one of Cali- fornia's frank and noble youths. I fail to recall one harsh or unkind word towards friend or foe that ever fell from his lips. His ambition was not lofty. He did not care for fame, nor yet did he sigh. He loved his party much, but he loved his country more. I cherished him for his candor. I admired him for his principle and his liberality, but, above all, I loved him for his humility. I would never desert him while living, nor shall I now fail him when dead. He was one of those of whom it ought be said, of all the world, " This is a man." pbtitioms — mechanics' liens. Mb. van dyke presented the following petition, signed by a large number of mechanics and others, citizens of California, asking that a provision be inserted in the Constitution for a lien law : To the Preetdont and Uerobers of the Constitutional Convention ; OsirrLUiiN: Tlie undenigned respectfully represent that tlie practical working of the present legislation, and decisions of Supreme Court based thereon, regard- ing the rights of mechanics, material.men and laborers to a lien for their labor and material funiished. Is such that those who in a measure depend upon such law for Just protection fail in nearly all cases to obtain It, because of the inelBcient work- ing of said law. Wherefore, we pray you to declare in our organic law the right of every mechanic^ material -man, and ialiorer to a perfect lien on the thing whoreou his labor has been expended, or for w hich his materials have been furnished Moreover, we would state that we would be sallslled with amendment number one hundred and sixty-seven, introduced by Mr. Van Dyke, on October tenth, eighteen hundred and seventy-eight, and read and referred to Committee on Miscellaneous Snlfjects, as follows : " Section — . Mechanics, material-men, artisans, and laborers of every class shall have a lien upon the property on which they have bestowed lalxjror furnished mate- rials, for the value of such labor done and materials furnished, and the Legislature shall provide by law for the speedy and efficient enforcement of said liens." And your petitionen will ever pray. Referred to the Committee on Miscellaneous Subjects. Messrs. FARRELL, WELLIN, TERRY, GORMAN, LARKIN, THOMPSON, HEROLD, and SMITH, of San Francisco, presented petitions on the same subject. Referred to Committee on Miscellaneous Subjects. CONSTBUCTIVK FEES OF OFFICEBS. Mb. ESTEE introduced the following proposed amendment to the Constitution, relative to constructive fees of officers : " No person holding an office or position under any law of this State, or under appointment by any corporation, board, or body created or authorized by any law of' this State, shall receive or be entitled to com- pensation for constructive services. " The Legislature shall pass no law authorizing any person to receive pay or compensation, except for services actually performed." Mb. ESTEE. Mr. President: I move that it bo referred to the Com- mittee on Legislative Department, and ordered printed. Carried. NOTICB. Mb. CAMPBELL. Mr. President: I desire to give notice that on to-morrow I will move amendments to Rules One and Two. I send it up to the Clerk. The secretary read : Kesolved, That Rule One be amended so as to read as follows: The Convention shall meet each day of sitting at half-past nine o'clock A. H., unless it shall adjourn to some other hour. Saolved^ That Rule Two be amended so as to read as follows : The Convention shall take a recess each day from half-past twelve o'clock p. H. to two o'clock p. M., and from five o'clock p. m., or such earlier hour as the Convontioa may determine, until seven o'clock p. h. Laid over one day under the rules. Ma. ESTEE. Mr. President: I move that the Convention resolve itself into Committee of the Whole, the President in the chair, for the purpose of further considering the report of the Committee on Corpora- tions other than Municipal. '"^ ' Digitized by' nmiitee on tjorpora- Google ■x;i.- 482 DEBATES AND PROCEEDINGS Friday, if. ff-t ii' '^¥f. BirORT — WATIS AXD WITBB BIOBTS. Mr. TIKNIN. Mr. President : I would like to offer a report from the Committee on Water snd Water Rights. Thr secretary read: The Comniltteo on W»ter and Water Hlf;hta, to whom were referred pr.-po«lt]uns Dunibem two, thirty, sixty-three, ninety-three, one hundred ftnd forty-fonr, one hun- dred and fleventy-two, two hundred and eighty-five, three hundred and tliirty-iteren, three hundred and sixty-two, three hnndred and sixty-three, three hundred and slxty-ft>ur, four hundred and twelve, and four hundrvd and twenty-eight, hare care- fully considered said propoaitioiu, and recommend that no further action he had thereon. The committea recommend that the following Motions be made part of the Oon- •titotion : Section 1. All water appropriated, or that may hereafter b« appropriated, for sale or rental, Is hereby declarad pablic, aud subject to the control of the State. Sico. 2. The unappropriated waters of the lakes and rivers of this State are declared to be public property, and may be appropriated by Individuals, awociations, or corporations* subject to such conditioiis and rwtrictions a« the Legislature may UnpoM. Sec. 3. The Legislature shall enact laws permitting the appropriators of water and the owners or occupants of land to constnict levees, ditches, canals, flumee, and aqueducts, or run their water through natniml channels fur agricultufal, mining, manufacturing, milliog, domestic, dialnage, reclamation^ or sanitary purpoMs^aCTi'Sa the laud of others. W. J. TIKNIN, E. P. SOl'LK. THOMAS McOONNKLL, M. K. O. PILLIAM, JNO. WALKEB, O. W. Hl'NTGB, T. H, KSTEY, Bl'SH McCOM.VS, JO!unties thereot- provided, the expetiiie of the printing thereof he not chargeable to the funds provided for the expenses of this Convention. Thk PRESIDENT. The resolution is not in order at present, but if there be no objection, the gentlemen will have leave to introduce his resolution. Mr. HERRINGTON. Mr. President: I am informed by the Com- missioner that he has the matter to which that resolution is addressed, already prepared for his annual report, and that if the Convention desire that information, he can furnish it in about a week, and that he will have it printed himself. It will have to be printed with his annual report, and the Convention may as well have the benefit of that inform- ation this murh in advance. I rertainly think it would save a great deal of labor on the part of members who are desirous of informing; themselves thoroughly with reference to corporations. It would require at least a mont)i's labor on the part of any gentleman, to look up this matter. It would certainly be a valuable class of information for the Convention to have. The resolution was adopted. COBPORATIOKS. Mr. ESTEE. Mr. President: 1 move that the Convention resolve itself into ('oinmittee of the Whole, the President in the chair, for the purpose of further considering the report of the Committee on Corpora- tions other than Municipal. Carried, IN COMMITTEE OF THE WHOLE. Thb CHAIRMAN. Section eighteen and the amendments were before the committee. The Secretary will read them. Thk SECRETARY read: Skc. 18. No railroad company or other common carrier shall com- bine or make any contract with the owners of any vessel that leaves port or makes port in this State, or with any common carrier, by which combination or contract, the earnings of the one doing the carrying are to be shared by the other not doing the carrying. Amendment by Mr. Ayers. " Amend section eighteen by adding after the word 'carrying,' in the fifth line: 'and whenever a railroad cor- poration shall, for the purpose of competing with any other common carrier, lower its rates for transportation of passengers or freight from one iwint to another, such reduced rates shall not be again raised or increased from such reduced standard.' " Amendment to the amendment, by Mr. Dudley, of Solano: "Add, ' except by consent of the LegisISture.' " Mr. C.XMPBELL. I desire to offer an amendment. Thk CHAIRMAN. There is already an amendment to the amend- ment pending. Mb. CAMPBELL, had been accepted. Thk chairman. I was under the impression that the amendment The immediate question is on the amendment offered by the gentleman from Solano, Mr. Dudley, to the amendment. Mb. GREtiG. I move that the further consideration of section eighteen be passed over until sections nineteen and twenty are disposed of. It may be that this matter may affect the adoption of those sections. BBUABIS or MB. BBOWS. Mb. brown. Mr. Chairman : I have not been present nor heard the discussions, but it appears to me, if such a regulation as that should be adopted, that it might have a tendency to cramp the Commissioii spoken of, provided that Commission Bhoul<{ be finally determined opoi. Here it is proposed that this part of it shall be regulated by a special Act, that once these rates of freights and fares are reduoed,'theT shall remain so. Yet, it seems, in this report as presented, so that the Com- misston is to have sole power. I have no doubt but that it is proper in some cases, to regulate to a certain extent, but yet it might conflict with their action. I am opposed to the amendment. Mb. ESTEE. Mr. Chairman : I sAsond the motion of the gentlemui from Kem, Mr. Gregg. I hope it will be adopted. BIHARKS or MR. ATRRS. Mb. AYERS. Mr. Chairman : I hope that this motion will not pre- vail. I do not see that the amendment now before the Convention trill at all conflict with section twenty, providing this Convention adopts section t*enty. We have yet to pass upon section twenty and the amendment, and the amenainent tnat is now before the ConventioD is one which I believe a majority of this Convention, and of the people of this State, believe is necessary to the protection of the people; and I believe in incorporating into this Constitution as we go along such principles as we consider shall be for the safety and protection of the jieople. The amendment is not, however, inconsistent with section twenty. It will act as an admonition tothe Commissioners, should they be appointed, and it seems to me it will be the greatest protection in the Constitution to the people of the whole Slate. I hope that tlie amend- ment will not be passed over for the present, and I hope that it will be adopted before we get through with it. BEMARXS or MB. ESTEE. Mb. ESTEE. Mr. Chairman : The reason I second the motion it that I am opposed, for one, to meeting this issue except right square in front Now the gentlemen have presented amendments here which would seem to settle certain propositions which are presented to this Conven- tion squarely in sections nineteen and twenty. I hope that the committee will pass over this section for the present, and then come back to it,u they have to come back to sections twelve and thirteen, and then con- sider section eighteen with the amendments proposed by the gentleman from Los Angeles. I will say to the Convention that it does not endan- ger the amendments. It does not affect the gentleman's right, Itdoes not affect the right of this Convention in any decree to adopt any amendment they desire to put to sorlion eighteen. But I hope we will meet the question first as to the power ol regulation, as represented in sections nineteen and twenty, squarely, and not by a side track. That is my only object in seconding this amendment. It is not with any view of smothering the question as presented by the gentleman from Los Angeles at all. His amendment will come up in its regular order. RBMARK8 OF MR. ANDREWS. Mb. ANDREWS. Mr. Chairman: I hope this section that the com- mittee now has under considemtion will be acted on at this time. It seems to me that it docs affect certainly the time of this Convention. Wehave now been considering it one or •woday5,and now,thatwehave had it fully discussed, we are just as ready to act upon it as we will be at any time. I concur with the gentleman from Los Angeles in con- sidermg that this section, and the amendments pending to this section, do not affect the other sei'tioiis |>tesented by the Committee on Corpo- rations. I consider, Mr. Chairman, that this Convention should art upon that matter by itself. The question is whether this amendment which is now projiosed is a correct amendment — whether thislimitation should be made? I believe that it ie an amendment which should be mode. I think it stands bv itself, aud has nothing to do with whether this Convention shall conclude to propose a Commission or not I hope that we will act upon this section, now that we have spent the time in its consideration that we have. Mb. SMITH, of San Francisco. Mr. Chairman: I hope that the motion made by Mr. Gregg will be voted down, and that the amend- ment of Mr. Ayers will be adopted. It seems to me that if the Chair- man of the Committee on Corporations has such great confidence in this Commission, he ought to leave this whole article on corporations in the hands of the Commissioners. It is justas sensible as to skip over section eighteen until we get to section twenty. Thk chairman. The question is on the motion of the gentleman from Kem, Mr. Gregg, to temporarily pass this section until after the consideration of sectiw Tork Onttrat and Hudvm River Railroad, 1862 to 1871, both indmire. Grooe earnings $187,032,624 00 Operating expenaee 127,958,239 00 Net earnings .„ Or 31}^ per ct-nt. of the whole. t37,074,')86 00 antral Piu!\/ic Railroad, 1864 to 1871, tncZtuiee. Gross earnings $28,374,781 00 Openting expensea 15,162,203 00 Net earnings Being 4e>4 per cent, of the whole. Baltimore and Ohio Railroad, for the year 1871. Gross earnings -_■ m. Openting expenses-.^ Net earnings . Or 36 3-10 per cent of the whole. Oadral Miciflc Railroad, year 1871. Gross earnings .._ Operating expen8ee...„ •13,212,578 00 (12,557,529 00 7,998,175 00 t4,559,3a4 00 .. $9,546,342 00 4,325,428 00 Net earnings Or M 6-10 per cent, of the whole. $5,220,914 00 AiUi'iaore and Ohio Railroad, year ending S^ttmber 30, 1875. GrooB earnings $14,441,238 00 Openting expenses 9,908,066 00 Net earnings . Or 31 4-10 per cent, of the whole. $4,536,673 00 Oroee earnings Openting expenses . Rnntylvania Railroad, year 1875. Net earnings Or 33 1-10 per cent, of the whole. $34,464,104 00 23,040,908 UO $11,423,196 00 Xiw Tork Central and Budton River Railroad Cbmpany, year 1876. Gross eaniinge $29,027,218 00 Openting expenses _„ . 17,262,107 00 Set earnings $11,765,111 00 Or 40^ per cent, of the whole. Grots earnings . antral Paeijte Railroad, year 1876. .. $17,021,015 TO 7,417,944 00 $9,600,071 00 Openting expenses Net earnings Or 66 3-10 per cent, of the whole. Now, sir, with its magnificent dowry, with all of its land lying along the line of the road, they have not been driven to the necessity of bring- ing it into the market. They have been realizing these immense sums, and have their millions of acres of land in reserve; and this is not the whole secret of this matter, as has been said by the gentleman from Los .\ngeles. They have not only claimed these great nighways overland, 'but they have also usurped the ocean highway, the throne of interna- tional sovereignty. They have even tried to take the trident from Neptune over the sea, and to wield this in connection with this great landed power. Talk about a company such as this being thrown into bankruptcy? No, sir! Now, I will read the next reason that Mr. Wilson gives: " Accidents will occur; severe seagons and h*ivy Winters be encountered ; fires will bum depots and sheds and other property." The same answer applies to that. In reducing these fares and freights they will take these mat- ters into consideration. So that is not available. What is the next reason given? That is the second one, which I omitted before: "Sec- ond— He believed the amendment would put it out of the power of the Legislature to exercise, when it finds it right to do so, wholesome disci- pline and control over these carriers." Now, sir, I imagine that if there are three men elected by the people of this great State, as is contem- plated by section twenty, that the people will hold these men to a rigid resfionsibility. I tell you that not one of these Commissioners selected by the suffrages of the people would dare violate that trust. They would not pretend to do it. These Commissioners would doubtless act for the interest of the people. But, sir, as to the idea of putting it out of the power of the Legislature to control this matter, we can insert a facile provision in this Constitution for an amendment to this Constitution. We can put it in such a shapes that if our own provisions in this Con- stitution should operate against the interests of the people of this State, these sections can be changed by an easy amendment of the Constitu- tion. Now, sir, let us look at this matter in a practical, business light. Here isthis^reat railroad enterprise, with its hundreds of arms, like Briareus, stretohiug over the State of California, and owing to its spirit of grasping cupidity, not confining its operations alone to the land, but reaching out farther, so that the little boat which passes through the gateway of com- merce here on the Pacific slope, that golden gateway, as she speeds along on her errand, with her little capital, to carry our produce to the City of Los Angeles, or the City of San Diego, encounters the power of, and is terrorized by, this magnificent corporation. This grasping cupidity stretehes out its tentacles to inveigle this little com- petitive corporation. It prevents the growth of the towns in the southern portion of this State. And yet that is not all. It docs not confine itself to the Pacific seaway, but these great river routes through- out the State of California are similarly affected, and the wharfage, the river fronts, as well as the ocean front, are taken by this magnificent corporation so as to exclude all capital and all competitive enterprise. Sir, I have always regarded the State as the alma mater of her citizens. I have always regarded that doctrine taught many hundred years ago by one of the seven wise men of Greece, as the best doctrine, that that government is best which protects the rights of the weakest citizen as well as the strongest. My sympathies, therefore, are in favor of the weaker power, and I very often find myself drifting in that direction. But I endeavor to control it by a judicious exercise of reason in the same connection. I say further that this is no case for sympathy for the Central Pacific Railroad Company. This provision is applicable to all railroads. We do not make any specialty in respect to the Central Pacific Railroad Company. This provision covers the whole ground, and is applicable to all of these corporations. I say that if there is any place for sympathy it should be exercised in favor of the weaker power ; in favor of these weak competitive enterprises. They start out with their little capital. Tbev find that they are anticipated ; that they ar« compelled to sell out: that their boats are driven away from the ocean highway, and this great power forestalls and controls the whole trade. In the first place these great corporations seem to commend themselves to the attention of the public : " Why , we reduce the carriage ; we reduce this tariff of freights and fares." But, after they have frozen out the small enterprise, they go back to their first love, they reestablish their tariff, and make it more odious than before. It is a good deal like the invitation which the ^iant gave to Ulysses to go into his cave and partake of his hospitality, intimating to Ulysses, that, as a mark of distinguished respect, he would eat his companions first and himself last. So it is with lliese corporations. Digitized by VjO 4 484 DEBATFiJ AND PROCEEDINGS Feidav, This giant monopoly will consume these little competitive industries firet, and afterwards the otherwise growing towns of the south. No, sir; in the very nature of thinjp the carriage bj water is cheaper and should be cheaper. The expense is less. There is a less number of operatives; there is leas capital embarked ; but on the other hand, the railroad com- mends itself on account of its increased expedition. This southern country should be developed, and we should endeavor to have it devel- oped by all of these competitive enterprises. It is a noble country ; a country with a climate which istemperetl to the invalid; a country with its orange groves, its lemons, and almonds, and semi-tropical fruits, reminding us of the Gardens of the Hesperides. But the interests involved are not confined to the South. The whole State is interested in this matter, because, as I have said before, this great railroad has almost oorraled the State from one end to the other. Now, sir, it occurs to me that inasmuch as this doctrine, which is contended for by us, is founded upon conceded power; inasmuch as it has the sanction of hun- dreds of years ; inasmuch as it can be made plastic by an easy process of amendment of the Constitution, and the argument in favor of its expediency being equally strong; it occurs to me, I repeat, that the amendment which is oflered by the gentleman from Los Angeles, Mr. Ayers, should be adopted, and I hope, sir, in behalf of the people of this great State, from one section to the other, that it will be adopted. Not that I wish to disturb any vested rights. Whenever I come in sight of the Rubicon and find that the vested rights of the people of this great State are disturbed or in any wajr impaired, I shall not cross it, but shall stand upon the sure foundation of any and every constitutional safeguard. BKMABKS OP MB. BLACKMIB. . Mb. BLACKMER. Mr. Chairman: I hope that the amendment may be perfected, so as to suit what I believe is a majority of this Convention, and that then it will be adopted. I beg leave to say a few words upon the question. At present it is presented in this light : The original proposition, as presented by the gentleman from Los Angeles, Colonel Ayers, was, that whenever a r^lroad corporation should, for the purpose of competing with any other railroad 'corporation, lower its rates, that thereafter it should not be allowed to raise them again from that reduced standard. Since that time there was an amendment accepted by the gentleman from Los Angeles, including in this class of corporations, or mcluding with the railroads, all common carriers. As the proposition now stands, if any railroad corporation shall lower it« rates for the purpose of competing with any other common carrier, it shall not again raise them. It does not say that no common carrier shall lower its rates for the purpose of competing with any other com- mon carrier, but they shall be compelled to retain them at that reduced standard. Now, sir, in my judgment it ought to embrace common carriers upon one side as well as upon the other, or we shall have this result : a railroad corporation may not combine against any com- mon carrier, and reduce freights for the sake of freezing them out, but a corporation doing the same business, if it is not a railroad corporation, may with impunity combine against any common carrier, ana having frozen out the competing line, they are Allowed to take their freights and fares back again to the old standard. In my judgment that is not correct. I do not sec why we should inhibit railroad corporations from doing this, and allow others who are engaged in the same business to do it. I think the amendment, as it stands, should be amended so as to include all corporations doing the business of common carriers; that they shall not be allowed to lower their rates, or having done it to com- pete with other common carriers, that they shall not be allowed to raise them again from that reduced standard. I j>ropose, if I have an oppor- tunity, to offer an amendment to that effect. Now, sir, in regard to the question as to whether this is something which should not be put into this section, provided we adopt sections nineteen and twenty. It seems to me that neither one of those sections cover this point at all. Section nineteen regulates the matter of dis- crimination in charges of freights and fares from one point to another, and it puts it into the hands of this Commission to determine that. But the question as to one corporation reducing its rates for the pur))08e of killing another corporation and then taking it back ajgain, is not included either in sections nineteen or twenty, and, as I said yesterday, it seems to me that it is a very proper direction to that Commission, if it should be appointed, that they should sec to it that this is notallowed. It is one of the things that should come within the purview of this Commission, and I hope the amendment will be adopted. I think we shall not do ourselves justice unless we adopt an amendment of this kind, and it is certainly very proper here. I hope it will not be con- fined to railraad corporations, upon the one side, who are inhibited from doing this thing, but that they shall not be allowed to oppress those who are doing a business, no matter what the corporation is on the other. Whatever is included on one side, should also be included on the other. BK¥ABKS or HB. CAMPBKIL. Mb. CAMPBELL. Mr. Chairman: I am very reluctant, after this question has been so long under discussion, to say anything upon it, but it seems to me that there are some considerations connected with this matter which have not been presented to the Convention, and which ought to operate upon our minds in determining this question. As the amendment was originally presented by the gentleman from Los Angeles, I was in favor of it with a slight alteration, which pieced the competing line upon the same ground with the line originally in opera- tion. But an amendment has since been accepted which, it seems to me, will be mischievous and dangerous in its consequences, and the dan- gers of which have not been foreseen and explained to the Convention. When the Commissioners recommended that in the event of a competing line of railroad being constructed, the original line, after reducing its rates to break down that competition, should not be permitted to raise them, they made, I think, a wise recommendation. They did not clothe it in the legal lan|;uage of a section, but they simply put forth the gen- eral principle, which meets with my hearty approval. Now I, in com- mon with most of the members of this committee, have felt the exactions and oppressions which have been practiced upon the people ofthis Sttle for a number of yean by the giant corporation which, with its branchet, has overshadowed the State, the Legislature, the officials of the State, and the people themselves. And for the lost few years, so far as I h«ve taken any i»rt in public life, it has been simply for the purpose of aid- ing organized opposition to these exactions and oppressions. And at the same time I feel that that sense of indignation which we all experience at the oppressions and exactions which we have witne^ed, may lead ub into extreme measures which, so fa^from benefiting the people and remedying existing evils, may lead to other evils, the consequences of which we have not foreseen. Now, the amendment as it now stands proposes that whenever a rail- road corporation shall, for the purpose of competing with any other common carrier, lower its rates for transportation of passengers or freight from one point to another, such reduced rates shall not be again raised or increased. Now that is a prohibition in the first place, l« inhibit them from at any time authorizing these rales to be changed; no matter what changes in the road ; no matter what changes in the financial condition of the country may take place, rendering a change necessary, there is no power under that amendment, even assuming that sections nineteen and twenty should be adopted, which can at anv time authorize the corporation which has lowered its rates in oonaeqaence of any competition from any Cjuarter, or of any kind, ever to raiae those rates again until the Constitution has been amended. Now with refer- ence to railroads, I desire to eny that at the proper time, and when it shall become proper to offer it, I have an amendment which I shall desire to offer, and which I will now read for the information of the Convention. It goes as far as I think we ought to go, and no farther. It is as follows : Add to section eighteen, " And wnenever s railroad corporation shall, for the purpose of competing with any other railroad, constructed or in process of construction, lower its rates for transporta- tion of passengers or freight from one point to another, it shall not again raise its rates without the consent of the governmental authority in which shall be vested the power to cegulate freights and fares upon'railroadi ; nor shall such other railroads raise its original rates without simiUr consent." As the section originally stood, while the competing line might raise its fares and freights the one which had lowered its rates never could raise its rates again. That would be clearly unjust and improper. In my amendment I limit it to competing railroads, for this reason : if this section is adopted in the form in which it is now before the bouse, it will offer an uulimited capacity to blackmail railroad corporations. I do not limit myself to the Central Pacific Railroad, or to its branches. I do not suppose, and I hope it will not be the case, that this will be the only railroad ever built in this State. We have already some one «r two othen. We have the Santa Crui Railroad — a road which goes from Alameda to Santa Cruz — now in process of eonstruction. There is another railroad already built by the citizens of Santa Cmi, running from Wataonville to Santa Cruz. There will doubtless— under proper restrictions of the power of the vast, overshadowing monopoly which now controls — be a number of other railroads — short railroadfc constructed from one convenient point to ai*ther in the State. Well, now, if you aay, in regard to these railroads, that any railroad company building a competing line, as against them, shall, if it lowers its rates, not be permitted to raise them, you do that which is just But if you leave it the way it is, any man having, for instance, a stage line for which there is no present profitable employment, might go to them and say, " Gentlemen, if you don't pay me so much money I will put on an opposition to you. My stage line at present is doing nothing, or nothing profitable, and I can afford to cut under you for the present and I can run for some time against you, and while! run I will destroy your business." You can see at once that if that is the case it offers an unlimited opportunity for blackmailing railroads. Now, here, for instance, there was a'little railroad between Gait and lone City, in Amkdor County. It has, to be sure, been swallowed up by the railroad corporation, and is under its control. But suppose that road had been running alone. It was built at great expense. It was diflicult for those who were engaged in it to run it. - A very slight opposition wonid break them down. Now, if it so happened that anybody cho,ie, having an unprofitable stage line, to run in opposition to it, that enterprise, vain- able in itself, and instituted for just purpoets, 'might be broken down and utterly destroyed. And so with all that class of weak railroads built with limited capital. There is no reason why this should be con- fined to competing railroads alone. A railroad is a permanent stnieture. It cannot be moved from place to place. It cannot be shifted about here and there. Along the coast, for 'instance, where there is wafer communication, a vessel or a steamship may be run from one point to another to-day, and shifted to-morrow to a different locality. We all know that in dull times these steamers may be out of employment They find it diflicult to obtain freights and fares. They may be willing to put on their lines at hardiv living rates. Now, we all know that water transportation is a good deal cheaper in the main than railrosil transportation. It is much leas expensive. Now, if in such a case as that a person owning such a vessel, or steamboat, or any other means of transportation, would Imve an opportunity to go to the railroad oom- pany, and say, "Gentlemen, so much money, or I put on an opposition line. I will either take your business from" you for the time t»ing,or I will force you to reduce your rates to less than a living rate." It may be used as an engine of vast oppression. ^ may be uKd as a check to the construction of small railroads — the construction of which might be of vital importance to the State. It is not done now for fear of thii central corporation, but take away that fear by suitable provisions in your Constitution, by limiting its powers, in tlie manner proposed ia the amendment which I just now read, andTyJu if ill effect the poijwse Digitized by VjO Nov. 22, 1878. OF THE CONSTITUTIONAL CONVENTION. 485 and object in view ; and if in conneotion with that you go on to further Eroride for such regulation of freight* nnd fares as shall be just, you ave then put a check upon the undue exercise of corporate power. I do not desire, Mr. Chairman, to detain the Convention, I have merely presented these considerations because I feel that in the form in which this amendment stands, I cannot support it; but if put in a reasonable form, one which will do justice to the people, and not be oppressive to any one, I will support it. SPKEOH OP MR. RAOIK. Mr. HAGEB. This amendment, offered by the gentleman from Los Angeles, Mr. Ayers, is an inflexime rule which applies to all railroads, if they should do anything of that kind. I would prefer, myself, to have an amendment added (which I have drawn), if I could get it in, by adding: " unless the Legislature, by law passed by a majority vote" — or by a two-thirds vote, just as may 6e preferred — "of all the members elected to each house, shall authorize a change of rates." That will not conflict with the action of any Commission that might be appointed under the subsequent section, if that should be adopted. Then the Commission would be authorized to fix the rates in this ease, just the same as in all other cases. And, as I cannot offer it under the rule, if the author of the proposed amendment would accept this in addition, I think, perhaps, it would popularize the measure. Mr. ATERS. I would accept the amendment, with the leave of the Convention, to have the rates changed by a vote of the Legislature. Me. HAGER. Then the amendment will rearations, and are dependent upon the State for the advantages they Mr. ESTEE. I will ask the gentleman if be does not know that sec- tion fourteen has been amended, and already adopted by this committee as amendNl? Mr. HAGER. Certainly. I ask why it was not put in its place and confined to railroads, as in the C-onntitutlon of Illinois, from whence it was taken? Then it would not have been objectionable, but if I had wanted that provision rejected, I would have made it applicable to all corporations ; but I do not intend to impugn the motives of the Chair- man of the committee, or the committee, in the least. I am critidsini the act of the committee rather than Impeaching their motives. But I should have put this section under the head of railroads, and made it applicable to railroads alone, as in Illinois, Penn^lvania, and Missouri. There is another provision in the Constitution of Illinois to which I will call the attention of the Chairman of the committee, Mr. Estee. and should have been pleased If it had a place in the report of the commit- tee. I have It before me — Constitution of Illinois, article eleven, section fifteen. It reads as follows: "The General Assembly shall pass .laws to correct abuses and prevent unjust discriminations and extortivn in the rates of freight and passenger tariffs on the different railroads in this State, and enforce such laws by adequate penalties, to the extent, if necessary for that purpose, of for- feiture of their property and fhinchises." That, sir, sounds like business. That sounds as if those Constitution- makers intended to put in some provision that might be and could be enforced. Why did not the Chairman, or rather the committee, put a clause here that these Commissioners might take steps to enforce these provisions, if necessary by a forfeiture of the property and franchises of the corporation? Why did they not put that there when quoting from the Constitution of Illinois? Then there would have been some reason by which we could Infer that the intention was to put some check upon the power of railroad corporations. But they arc not there. So in these States, Illinois, Pennsylvania, and Missouri, the three last Constitutions, they have declared that all railroads are public highways. That "pub- lic highways " is left out here. And we never had an opportunity here to vote whether we would so declare, inasmuch as under our peculiar rule a substitute was adopted and cut off all other amendments. Now, sir, I am in favor of engrafting into this Constitution snch wholesome and necessary provisions as may be required to protect the people, and prevent the railroad from oppressing them. I care not if this Constitution swells into the magnitude of a code. Let it be a code if it is right. Principles, if correct, should be eternal ; Constitutions, if founded on correct principle, might be eternal, and I do not object to it. I prefer a Constitution founded on correct principles, even if it were of the magnitude of the Pandects or the Pentateuch, to -the fluctuation! that prevail in legislation. As we all know, laws are evanescent; like Summer flowers, they fall and fade away. Legislatures meet and p»«« laws ; and other legislatures meet and repeal them. Sometimes corpo- ration pressure is brought to bear upon Legislatures, and legislation is thus influenced. Courts may declare laws unconstitutional. Men are elected to the Legislature under pledges. When the Copventions meet, the candidates rush before them like the leaves of the forest when Of Slimmer is green ; they get their nominations, they make their pledges against railroad monopolies, against water monopolies, against gas monopolies, and against monopolies of all kinds, and when they sre elected, too often, like the leaves of the forest when Autumn is blown, they fall, they fall. They forget their pledges, and forget the platforms upon which they were elected, and we are subject to uncertainty and to change. Not so with Constitutions. Constitutions are made in a diSsr- ent way — / Digitized by' dilutions are made m a Google Nov. 22, 1878. OF THE CONSTITUTIONAL CONVENTION. 487 " By freemeD casting, with nnpnrchftflcd hand. The Tot« that ahakei the turrelg of the land." Freemen make Constitutions. The people make them, and it requires the same power to amend or destroy them. Constitutions cannot be declared unconstitutional. They are something fixed and permanent, as B general rule, and, like a rock in tlie ocean, the surges of corruption may dash against Ihera in vain. If right, the Constitution will be our protection when laws may fail. Therefore, I am in favor of engrafting m this Constitution every provision tliat I think wholesome and right, even if it swells to a volume of the sizeof the codes of the State of Califor- nia. No harm can come of it if it is right. And if we do not avail our- selves of this opportunity, if we do not engraft some provisions in the Constitution that will be accepted by the people, it will be a source of disappointment from one end of the State to theother. In regard to this particular amendment, with the amendment I have sent up, I am ready to give it my support. Mb. DUDLEY, of Bolano. The gentleman from Los Angeles having accepted the amendment of Judge Hager, which covers the same ground as mine, I withdraw my amendment in order to permit Judge Campbell to get his in. I believe the Committee is ready to vote, and, for one, I should like to have the previous question. Mr. grace. Does the gentleman want to move the previous ques- tion and cut off the debate ? Mr. DUDLEY. I do not desire to call the previous question if there is any desire to debate the question further. Mr. CAMPBELL. I now send up my amendment. Thk SECRETARY read: " Add to section eighteen, 'and whenever a railroad corporation shall, for the purpose of competing with any railroad constructed, or in pro- cess of construction, lower its rates for transportation of passengers or freight from one point to another, it shall not again raise its rates with- out the consent of the governmental authority in which shall be vested the power to regulate fares and freights on railroads; nor shall such other railroad raise its original rates without similar consent.' " remarks or HB. LARKIN. Mb. LABEIN. Mr. Chairman : 1 think that amendment is a good one, and I hope it will be adopted by this Convention. I think that each provision in this Constitution should stand upon its own founda- tion, and I hope that the members of that committee will not be such sticklers for their particular ideas as to seek to defeat any amendments that are offered. So far as this provision is ooncenied, I do not intend to vote for the proposition to give that Commission the power that is provided for in section twenty. I believe that the amendment of the gentleman from Los Angeles, with the amendment as sent up, is the cor- rect principle, and is a proposition which should be adopted in that sec- tidfc, and be adopted by this Convention. I have not the fears of the future Legislatift-e of California that the experience of the past would seem to warrant. In eighteen hundred and sixty-nine, when the ques- tion of subsidy was fought upon the floors of these legislative halls, but one member south of San Francisco, but one member in the south end of the State, was opposed to subsidy. I allude to Fowler, of Tulare. Every other man from the southern portion of the State came upon the floor of the Legislature and demanded, in the name of the people of the southern part of the State, that this people should devote ten million dollars to the building of this road. That is not the condition now. They have pillaged the people. In the history of this State, wherever this corporation controls, wherever they have sought to oppress the peo- ple, wherever they have the monopoly, they claim that they have a right to all the profits'upon the articles which are raised; all that can be made above the actual cost of raising. The people have seen the situa- tion. They have seen the slavery that has been brought upon them, and will be kept upon them, if they are allowed to continue in power. So in the northern part of this State. Years ago I said that we never could regulate this question ; never could correct these abuses, until a majority of the counties of this State had these railroad corporations to deal with, and then we would find a clear working majority, without regard to parties, in favor of limiting and controlling this immense cor- poration. The vote of California has indicated the opinion of California. That rote will be to protect the people, and I am willing to trust the Legisla- ture. What I Cannot we trust the Legislature? Cannot we trust the people themselves? What power on earth can we trust? Where else can we rest the future hopes of the people? No Commission for me that shall have the power of the Legislative, Executive, and Judicial Departments of the State of California. Let us give It to the people. They have indicated their intention to stop the abuses of this corpora- tion. In every county, in every village, in every hamlet of the State, where they have left their mark, the people are aroused. It is an anom- aly that a corporation created by the good will, created by these mag- nificent endowments that Judge Hager speaks of, should have created such a change in the civilization of the State wherever they have a road. Why, in Los Angeles they are now prohibiting the people there from running a skiff without their permission. Their transportation costs them more now than before they had a railroad. And that is the reason why these men that set here oome here and stand by the people of that part of the State, and in standing by them stand by us and the balance oftheState. Let us pass this pm{iositinn as submitted here and amended. It is better than the twentieth section. It is a principle that is right and just, and that the people of the Slate will indorse. Mr. 8HAFTER. Mr. Chairman: I wish to say a few words before the Convention votes upon this amendment, but I beg to inquire as regards a question of order Jhat seems to embarrass a great many. Now this Committee on Corporations has reported an independent proposition, not as an amendment, but as a proposition submitted by them. It is an independent proposition. Now one member proposes an amendment and then another amendment is proposed to the amendment. The rule has been to vote upon these two amendments and then pass to the con- sideration of the next section. Tag CHAIRMAN. That rule has been amended. Mr. SHAFTEB. Mr. Chairman: Then the pending amendments are only cut off. But the practice has been here to vote upon the amend- ments and then the section is held to be adopted because the Convention refuses to amend it. I disagree with that ruling. A distinct vote should be taken upon the approval of the proposition after we get through with the amendments. As the hour for recess has arrived, I respectfully ask to be recognized when the Convention meets this afternoon. I move that the committee rise, report progress, and ask leave to sit again. IN CONVENTION. THK PRESIDENT. Gentlemen : The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have made pro- gress, and aak leave to sit again. The Convention took the usual recess until two o'clock p. h. AFTERNOON SESSION. The Convention reassembled at two o'clock p. h., President Hoge in the chair. Boll called, and quorum present. TRB BAILROID COMUISSIOH. Mr. ESTEE. Mr. President: I move that the Convention resolve itself into Committee of the Whole, the President in the chair, to further consider the report of the Committee on Corporations other than Muni- cipal. Carried. IN COMMITTEE OF THE WHOLE. Mb. CAMPBELL. Mr. Chairman : On the suggestion of some gen- tlemen who think the language of the amendment somewhat doubtful, and that it may he construed only to appl^ to railroads already con- structed and in process of construction, I desire to add the words, " here- tofore constructed or hereafter to be constructed." Tbr CHAIRMAN. If there is no objection, the clerk will insert the words. 8PKECH or MR. SHArTER. Mr. SHAFTEB. Mr. Chairman : I have no lengthy speech to make to this Convention upon the question before it. I have sat here and listened patiently to the arguments and reasonings which gentlemen have indulged in, and have drawn from them such wisdom as was capa- ble of being assimilated, and I crave the attention of the Convention for a few moments, while I give the reasons for what will be ultimately my action in this matter, unleaa further debate shall convince me that I am wron^. I regret to see this topic treated as it seems to be, not in a judi- cial, impartial, and just manner in some respects. Justice is the gift of God, sir, and ought to be impartially administered by those into whose hands it is given by the law. I am admonished, sir, that men are pass- ing away constantly, and in a few years there will not be a solitary one of us leR; but after we are dead and gone our work will still remain, and I, for one, want that it should be planted upon equal and impartial justice, upon honesty, and upon law. Mere personal considerations should not be allowed to influence our actions. In the first plac%, we ought to consider the importance of the rail- roads of this State to its welfare and material prosperity. The railroads have redeemed this State from a wilderness, and made it what it is to-day. The railroad property of the State to-day pays taxes on five hundred millions of dollars. Five hundred millionsl And they say here, and I have no doubt it is so, that if property waa impartially taxed, thejr would pay a good deal more. Take away these )vads, tear up the rails, and the country would soon revert to savagedom, unless somebody else should oome in and build roads, and place their charges upon a basis that would make them self-sustaining. I hear gentlemen on this floor constantly asserting that the road was built with somebody else's money. That is entirely a mistake/sir. The money was given to them outright, and belon(;ed to them upon the consideration that they would build the road, which they did. There is no legal right, there is no moral right, to ignore their absolute title to that property whatever. It is the basest meanness, in my judgment, in a man wno makes a gift to another, to use for a particular purpose in his own way, to call him to account for the use. There are strong moral considerations as well as legal considerations, in this case, considering the manner in which that ' trust was executed. They received this money to be used for a benefi- cial purpose. The property was given to them, and belongs to them. As far as legal considerations are concerned, they are under no legal obligations whatever to the people. They may nave made a bad bar- ^in, or they may have made a good bargain ; that does not matter; it IS as broad as it is long. But I will not dilate upon this matter. A great deal has been said here as to the immense wealth of those gentlemen who have been engaged in these operations, and I must say that it seems to me that this language was characterized by a strong expression of envy and jealousy. I nave no feeling as to the manner and style in which these gentlemen choose to live. If they can live in buildings costing a million of dollars, that fact does not trouble me — not in the least. If I wish to go inside of their mansions, and they wish to have me, I will do so, and if not, I can stay away without any feelings of envy, or jealousy, or dissatisfaction whatever. I say sucn ideas and such reasonings constantly breaking out are calculated to dis- turb the judgment of people; they are calculated to disturb the poise of the scales of justice. They are thrown into the scale for the purpose of heaping obloquy upon the question, and exciting prejudice in the public ■ UsjiLl. 488 DEBATES AND PROCEEDINGS Friday. i: mind. Such arguments are made for the purpose of and are calculated to Excite distrust and disoonteot in the public mind. Now, gentlemen cannot conceal the fact that the eeneral tendency of our acts here is to avoid all deposit of powers in the Legislature — the tendency is to give to the Lefrisiature no power whatever upon this par- ticular subject. I may say, I think, without varying from the fact, that th« tendency is to withdraw from the Legislature, whenever it is possi- ble, all power to legislate upouHhis subject. We take off part of the power with regard to railroads, and leave the balance. I for one cannot adopt this idea in any respect whatever. We started out by declaring that the legislative powers of this State shall be vested in a Senate and Assembly. It is said in the report of the Committee on Legislative Department, that the Legislative DepaKnient of the State shall consist of the Senate and Assembly. Now I do not suppose any gentleman here will for a moment entertain the proposition to take the legislative powers of the State, except in exceptional cases, from the Senate and Assembly. But, sir, what is the reason that a distinction should be made against the railroads and their function. The lives of other citi- zens, and their property, and their rights in every other respect, their personal rights, are left with the Legislature. The Legislature may say Tor what a man shall be hanged ; what the punishment shall be for stealing. You define and express his right to hold property and to con- vey property; you leave all this matter to the people at large, through their representatives in the I^egislature. You confide every vital inter est in the community to the Legislature, but propose to take the man- agement of railroads away from them, and confide those powers to another body. Why f Because you say the people themselves are loo ignorant, too corrupt, to make laws for their government — applicable to this particular case. There were heroes before Agamemnon, and there have been heroes since. There were honest men before us, and there will be honest men who will come after us. There will be statesmen and honest men who will survive when we have passed away, and they will be wiser than we have been. We are the oldest men that ever lived in the world. We have bad the benefit of the learning, and the wisdom, and the expe- rience of all that have lived before us, and those who come after ue will have, in addition to that, our experience and wisdom added to their own. They will be better learned and more enlightened than we upon this topic. And yet you solemnly propose to say that they have sent us here, a-s members of this bod^, and that all the wisdom, and all the ability, and all the virtue in this State, when we go away from the capitol, will (lie with us. Sir, I do not believe any such thing. When they under- take to tell me that the people of this State are too corrupt to elect the proper men to come here to administer the law and to create law, too, for every portion of government, and for the affairs of government in its daily intercourse, I say 1 do not believe it. We bad better go back and make a new distribution of the powers of ^vernment, and provide that the powers of government shall be vested m an Executive, Legisla- tive, Judicial Department, and in a Coniititutional Convention, and a Railroad Commission. That is the only division that can be made, and what answer can there be to the proposition? That is precisely the position certainly, if this provision is adopted. Now, sir, constant allusion has been made to the untnistworthiness of members of the Legislature. I know that in almost every session of the Legislature it is charged that some dishonest, tainted men have been sent here. But you go home to their constituents and tell them that, and they will vote down your Constitution. They can't believe it. I do not believe it either. I have been here for three several ses- sions of the Legislature. I saw men in the Legislature that I thought I might get along 'just as well without any particular acquaintance with them, but they were very few in number, and after all, I mieht just as easily have been mistaken as themselves. It is said here that the Legislature cannot be trusted. I see two or three or half a dozen men about me who belong to that company, who have served with credit in past Legislatures. It is said by some that the people of this State sent us here to reg- ulate corporations. Well, sir, I should be glad to receive some authori- tative expression what the people do want upon this subject. Way back in eighteen hundred and sixty this railroad excitement commenced. There was not a man in the State who would not turn his pockets wrong side out to help build a railroad. The people were will- ing to give them all they asked, and all they did was to take all the people gave them. You forced it upon them, and they scarcely had to ask for it. You gave it to them without any restrictions whatever. Congress gave them fifty millions of dollars themselves without scarcely inquiring what they were going to do with it. They did not even inquire where their probable terminus would be. It was mentioned as being at or near the Bay of San Francisco, and they stretched that as being at Sacramento. It was given to them without a solitary condi- tion. All this was done by our delegation in Congress. The State itself gave them millions of dollars, and the people subscribed for millions of their stock. I voted against it, and would do it again. Another bill was passed granting them ten thousand dollars a mile for every mile the Pacific Railroad had built or should build in this State. These subsidies amounted to about twenty million dollars. The people got cooled down a little, and sent me with others here to have that Act repealed. We did so, and what did the people do? They sent the man who introduced the bill and got it passed to the United States Senate. Talk about the j>eople wanting this thing and that thing, here is an instance of it. 1 was sent here to repeal the bill, and I did so, and after I had done so I could not probably have got a vote, because I was a monopolist and the other gentleman was an anti-monopolist. The people are generally hasty, and do not examine deliberately. Now, sir, this thing takes away certain rights of the Legislature. This amendment seems to contemplate a contest or competition between rail- road companies and other public carriers. The original proposition was as to competition between railroad lines. That proposed to correct u evil which cannot occur. Now, the only competition that there can be of any consequence is by water to Marysville, Sacramento, Colusa, Red Bluff, and the coast ports down below San Francisco to Monterey, Lot Angeles, San Diego, and other places. These are the only places int«^ ested in any practical respect. And it is seriously insisted that this firovision shall go into the Constitution, and shall not be left subject to egialative control at all, and all for the particular benefit of these places. Now, sir, as was said this morning, freight and passengers can be carried by water a great deal cheaper than by rail — two to one, almost always. There is fifty per cent in favor of water transportation. I admit 1 am entirely in favor of having these railroads supervised, and compelling fair dealing in regard to freights and fares; having some competent authority to fix that matter and make it obligatory upon these corporations to deal fairly with the people. I do not believe it turning the State over to the railroads; nor do I believe in taming the railroads entirely over to the people who are making this clamor. Ttkt the case of I^os Angeles. I am advised that the receipts on that n«d are not sufficient to pay interest on the money invested, let alone the running expenses, and nothing allowed for wear and tear of the road. After demanding that their rates be fixed at a given specific sum— no matter whether right or wrong — along comes a steamboat running on the ocean and competes with it. ^nyoody knows that a steamboat ran run land carriage off, fares being the same; the steamboat can run the cars off, if their means of competition be the same. It is merely i question of money, and the weaker must go to the wall. Suppose the steamboat puts its rates down below the actual cost of carrying on the railroad, wnat is the railroad going to do? It has to run at a dead lots for every ton of freight carried. And yet this amendment goes upon the ground that the railroads drive off oppoeition by carrying belew cost. Uow are they going to run if they have competition? The steam- boats can carry for a sum that will not pay the expenses by rail; and you propose tliat they must either continue their ola prices and lose all the business, or carry at a dead loss, and continue to do so. The same people who make complaints here are the very ones who patronize the railroads the moment tbey reduce their rates on aconnnt of competition, and aid them directly in runnine off the competition which they are talking eo much about. Why do not these geotlenien }>ay seven, and eight, and ten dollars a ton to the steamboat, and con- tinue to pay it, instead of patronizing the railroad, and assisting in run- ning off the opposition? Because they look to their own temporary, selfish interests. When they have by assisting the railroad, driven off competition, they come up to the Constitutional Convention and ask to be relieved from the rule which they have put in force, and that the competition rates shall be nmtinued for their benefit. I say it is in direct violation of the provision of the Constitution which declares thsl punishment for crime shall not be excessive, and this is a violatioa of this rule. You want this Constitution to say that the r^lroad company shall continue to carry freight for lees than actual cost, as a penalty for the crime which it has committed in running off this opposition, and take freight at the prices which the people prefer to pay. They demand that they shall continue to reap the beneiSts accruing from the crime which they themselves participated in, and that the penalty should be continuous as to the railroad company, while they themselves go free. That is the case. What road is going to run and carrv passengers for five dollars when it costs ten dollars, and carry freight for three dollars a ton when it costs six and seven dollars? Why, sir, it is compelling the road to run at a dead loss, and that is equivalent to absolute destruc- tion of the road. That is what it will do. When they have to run at > loss you may be sure they won't run at all, and you will have to put in another provision, and say that they shall be compelled to run their railroad anyway, whether at a loss or not. That is the only way to make this law eficctual. There should be a provision inserted that they sfasll still continue to run, notwithstanding tbey have to run at a dead loes. I do not see any way of avoiding it. But, sir, I say, because these peo- file have got their blood up at some improper action or some supposed Deal grievance, this provision should be forced into the Constitution, i< monstrous, and violates all relation between crime and punishment— s perfect Draconian Code. I believe one amendment here is to submit this question to the Lws- lature — to the majority of the Legislature ; the other isproposed by Mr. Hager.to have a two-thirds vote of the Legislature. Well, it seems to me rather a hard state of things that these corporations, confessedly obliged to carry freight and passengers at less than cost,- should l« obliged to come to the Legislature and get twp thirds of that body to go for them-:-two thirds of that corrupt body. It will cost too much. We had better take that money and divide it among ourselves, for we are virtuous and can take care of it. Why compel them to get tiro thirds? Why should two thirds be required to act in this case? It is inflicting a penalty which is not general. It is subjecting them to a rule which nobody else is subjected to. It seems to me a monstnxu proposition that the Legislature on this matter is to be compelled to follow a different rale from that laid down in all other cases of like char- acter. Now, I could almoet leave the matter here, but there are other sections that are cognate sections, and are also involved in this discus- sion. There will be a conflict if these amendments are adopted. I would like to know how it is going to be ascertained whether there it any such competition between the railroad companies and the steam- boats ; how is it going to be decided ? Who is going to decide it ? There must be some sort of machinery in the matter to work with. The Con- stitution does not include this. Here is a simple declaration that if the; are competing, and lower their rates, they cannot again raise them. Now,%Hppose they do raise them after the steamboat is driven off, who is going to say whether they were competing or not? They simply raise them, ond in what manner are you gome to show they were competing? Who is to settle it? It will nave to oe left to somebody to dedM. Digitized by V^jO Nov. 22, 1878. OP THE CONSTITUTIONAL CONVENTION. 489 Some indication should be put in that section, either to ascertain that fact, or else' to declare that the simple fact of raising the rates after the steamboat has stopp^ running, shall be considered sufficient to establish the fact that they were competing. There is nothing of that kind in the section. Now, as to the twentieth section , I do not believe that anv man can look at it for a moment and not see that the whole basis of republican insti- tutions is shaken absolutely; that the whole basis of the Constitution is absolutely shaken. Three men are to be giTen absolute control over one hundred millions of dollars, forming at least a sixth part of the entire assessment rolls of this State ; and, as I said before, if justly assessed, no doubt it would greatly exceed that amount. I think I mav safely say that one (quarter of the assessable property is composed of railroad prop- erty. This entire property is to be given over to the legislative, execu- tive, and judicial control of these men. Well, sir, I would like to see these men. I would like to see them stuck up here for examination. Why, sir, the whole nations of Europe would flock here to look at them. They would be the center of all eyes, and their names would be in every mouth, and the monarchs of the world could not be compared with them. They would be a Trinity that it would hardly be blasphemy to call Deity itself, such a Trinity as was distinguished among the heathens. I am horrified. With all respect to the Convention, they will be the Govern- ment, and there is no branch of the Government that will have any control over them. The Courts will have nothing to do with them, except to enforce the mandates of the Commissioners. The Courts are obliged to do this. They no longer form j»rt of the Government of the State. They are mere whippersnappers, standing there to obey the beck and whims of these three men. The judges will crouch down before tbeui like Gerard says the natives do when they meet the lion, and say, '•You are the masters, we are but dogs to your will." What does this say? "Shall not be interested." "Their compensation shall be fixed oy law. Said Commission shall have the sole power, and *it shall be their duty, to correct abuses by railroad companies or other transporta- tion companies." This covers stage coaches, omnibuses, and city rail- roads— in fact, there is not a single mode of conveyance that does not fall within the scope of their supervising authority. You cannot select oat three or four kinds of transportation companies — it must apply to all interests alike, railroads as well as all others. Now, sir, this is puerile. "These Commissioners shall have sole power to correct abases by railroad corporations and other transportation companies." What is an abuse? If I say you must pay your fare before you get on my stage, is that an abuse ? Put a man off the cars if he does not pay his fare, is that an abuse? It has been held b^ the Courts that you have a right to put a man off the cars, and if he will not go, use force, and if he hangs on, put the screws to him and shove bim off. Whether if you put him off in the middle of a desert that would constitute an abuse, I do not know. If you specify that a man must buy his ticket before he gets on the cars, is that an abuse? Some of my friends here mij^ht object to colored gentlemen — for whom I entertain great respect, which I manifested at the time when they needed it — getting in the same car, and have them put out. If a China- man gets into the same car with you, and he is put out, is that an abuse? If you happened to get a couple of old lineljack, New England abolisb- inists, they would fetch you up with a round turn. Now they shall " hear and determine complaints^gainst railroad and other transporta- tion companies, affix penalties, and enforce them through the medium of the Courts," etc. Now what is a complaint ? Is there any definition as to what shall constitute a complaint? None at all. The terms of the section, it seems to me, are a little ambiguous. How does the complaint have to be presented 7, Do they have to follow these three men around, as the populace used to the Chief Justices on the King's Bench, pulling them by the coat-tails, saying, I have such and such a complaint, where- upon the Judge would bear and determine them right then and there. In order to hear a complaint, as I understand it, the man complained of should have a chance to be heard. Notice, among lawyers, is considered to be the very essence of justice. Without notice, no man can be deprived of his property. And in the Courts notice is absolutely neces- sary. I do not know but these Commissioners may decide to determine cases as Sir Thomas Moore did — no, I know they will not either. When Sir Thomas Moore's wife got into a dispute with the fiehwoman, he took Mrs. Moore and placed her at the head of the hall — she being the more dignified— the nshwoman at the foot of the hall, and the dog in the middle, and commanded them to whistle. They did so, and the dog ran to the fishwoman, whereupon she was awarded the dog. They may administer law in some such crude mode as that; something like Soncho Panza, on the Baratarian Island, when he decided the ques- tion of alleged assault upon the woman, and awarded the money. The result of this sort of thing will be bad. It violates the moral sense of mankind. It violates the experience of ten centuries of labor and work to get the administration of justice up even to its present imperfect form. Itviolatesevery principle of law, it violates ever principle of public faith. Itviolatesevery principle of caution, and of common sense, and weshould pause and hesitate when we come t« give such absolute sovereign powers to these men. They will have power to snuff out of existence any and every interest in the State. I have been railroading more or less for twenty years. Even with that experience I doubt my ability to satisfy myself upon the simple question of freights and fores from here to San Francisco. How much less would be men selected at random, without experience or knowledge, to administer upon such a great interest as this — men utterly ignorant of the essential low down details of the busi- ness? SPKECB OF MB. KDOEBTON. Ma. EDGERTON. Mr. Chairman : When the Convention first went into Committee of the Whole for the consideration of this report, it was announced by the Chair that full liberty would be allowed m the com- mittee, and that gentlemen in their remarks upon any amendments 62 could traverse the whole subject I have no desire, sir, to avail myself of the utmost latitude of this rule. But it will be agreeable to my feel- ings, while I am now up, to discuss sections nineteen and twenty, and, incidentally, section eiguteen, with its amendments. They are cognate sections, intimately related in their more remote relation*, at least, and may be properly considered together. I shall, therefore, with the con- sent of the Chair, pursue that course. An analysis of section nineteen will reveal some extraordinary provisions. With the indulgence of the committee I will read it. I may do so with an emphasis different from that which it received at the Secretary's desk, and possibly in a manner that will better develop its meaning. It is as follows : " No discrimination in charges or facilities for transportation shall be made by any railroad — " And I may here observe parenthetically, that this inanimate mass of matter known as a railroad, is made to assume a wonderfully live per- sonality all through this report. " Or transportation company between places or persons, or in the facil- ities for transportation of freight or passengers within this State, or coming from or going to any other State." That is to say, in the charges for facilities for transportation first, and afterwards in the facilities for the transportation of freight and passen- Sers. How the force of the first sentence is augmented by the latter I o not see. " Persons and property transported over any railroad, or by any trans- portation company or individual, shall be delivered at any station, landing, or port, at charges not exceeding the charges for the transporta- tion of persons and property of the same class, in the same direction, to any more distant station, port, or landing. Excursion and commutation tickets may be issued at special rates." The section inhibits, absolutely, any discrimination whatever in the business of transportation. I therefore challenge it, first, upon the ground that it is repugnant to an immutable economic law and various economic conditions, under which such discrimination is not only justi- fiable and equitable, but indispensable to the success of the business. It then extends the inhibition to transportation from points within to points beyond, and from points beyond to points within the State. I therefore challenge it further, upon the ground that it is a direct attempt to regulate commerce between the States, as such a usurpation of an exclusive power of the Federal Government, and a plain violation of the Constitution of the United States. The section then descends to particulars, and inhibits greater chari^es for transportation over a shorter than over a larger distance. Such charges in themselves constitute dis- crimination in the strictest sense, and the provision is clearly within the purview of the first clause of the section. I therefore object to it upon the ground first stated, and upon the further ground that it is surplusage; and, if I may borrow an aphorism from Lord Bacon and slightly change it, "all surplusage in an organic law is accursed." But, sir, it carries the principle of inhibition still further, and applies it indiscriminately to all transportation companies and to indiviauals. I therefore object to this provision, upon the ground that, for the evils at which it aims, if any exist, there are ample common law remedies; that under no circumstances could the subject-matter rise above the level of an ordinary legislative enactment; and that to elevate it into the organic law is to belittle and degrade that instrument. I challenge4he whole section further because it is legislation. And the pertinency of this observation will appear further along in my remarks. Finally, sir, departing from the substance, I challenge the whole form of the section, upon the ground that it is defective in construction, cumulative or ambiguous, or both, in its provisions, and in point of literature every- way disgraceful, and that hopelessly so. When the Chairman of the Committee on Corporations other than Municipal addressed this com- mittee some days since, in a speech running through nearly two hours, with the avowed purpose of making an exposition of his most extra- ordinary report in its whole scope, and of the intent and meaning of its various sections, I was surprised that he did not resolve this section into its component parts and lay them fully before our view; that he kept nearly aloof from its specific provisions and contented himself, and attempted to impress the constitutional mind of this house with the per- fection of his work, by the bold, unfounded assertion that the section contains nothing new. I have observed that some gentlemen on this floor, and (Conspicuously the Chairman of the Committee on Corporations other than Municipal, have contracted the fatal habit of browsing through the organic laws of other States, borrowing enough to show a want of invention and inventing just enough to show a total want of judgment; wrenching from its context a phrase here and a sentence there, which they think fives the slightest color of sanction to their peculiar fancies, and then ringing the result of their labors in here in form of superficial, charla- tanic patchwork, of clumsy hybrid eclecticism, and attempting to pass it off upon the credulity and judgment of this house under the author- ity of great names abroad. Now, sir, against all such quackery as this I enter my protest. When there can be found in, or compounded out of, the organic law of any other State, a terse, unmistakable expression of a broad, universal principle of government, applicable alike to all parallels of latitude, it is eminently befitting that it should be presented here for our consideration. But, when the principle of selection is car- ried to the extent of pressing upon our approval those special exceptional provisions of other organic Taws which nad their origin and growth in the peculiar cireuinstances and condition of the communities for which they were framed; which are wholly unsuited to the political habits, modes of thought, and social wants of our own people, it becomes obnoxious and open to severe animadversion. Above all things, when those provisions are robbed of the only qualifying terms that make them tolerable anywhere; without which they would become mere definitions of tyranny everywhere; when they are brought forward and urged upon us thus mutilated and distorted, the act becomes one of rank. 490 DEBATES AND PROCEEDINGS Feiday, barefaaed iinpootun. ' And it ia that precise kind of imposture that I arraign here to-day, and which I intend to 'expose and denounce with- out stint. Turning now to the gentleman's speech, he said, and I quote his exact language : " And let me say that this is nothing new. I want you to understand distinctly that the committee do not claim the honor of inventing this. We find tliat 8ection^^)r one of the same purport — in several of the most recent Constitutions adoptertaion, not only over all the railways, but for every conceiv- able description of common carriage in the State; and the «a/< jwwer to change those rates at will ; also with the «o/< power to fix penalties for the violation of the rates thus established, and to correct abuses by trausportatlon companies and individuals employee necessary to enable it to per- form the duties thus enjoined, and to execute the powers thus c>>nferred. There can be no doubt but that the section would, if adopted a propria vigort create a tribunal endowed with legislative, judicial, and executive powers. The word "establish " as appliedio " rates" of transportation, means to fix, to ordain, and clearly imports a legislative power. The words to "hear and detenoine" are a perfect definition of judicial power. Mr. Bouvier, in his law dictionary, defines jurisdiction to be the " authority by which judicial oflicers take cognizance of and decide causes. Power to hear and determine. It includes power to enforce the execution of what is decreed." And in the case of the United States against Aredondo, rejxirtcd in Sixth Peters Reports, at l>age seven hun- dred and nine, the rule is laid down by the Supreme Court of the United States, that " the power to hear and determine a cause is juris- diction ; it is roraitt jiidice, whenever a ca^ is presented which brings this power into action." Now, sir, if there is any one political apothegm more sacred to the American people, which is more Aioroughly imbedded in their political thoughts, feelings, and instincts, than another, it is that which teaches the (listribution of the three great organic powers of government, legis- lative, judicial, and executive, into three great corri'sjKinding depart- ments; and the maxim implieain its perfection that the entire masiof each of these great powers, so far as it aflects the community at large' shall be lodged in its appropriate department. The discovery of this groat principle of government, for countless ages locked up in the arcana of politics, ** Which kings and prophets waitMl for. And sought bat uevor found," Is the crowning glory of the Anglo-Saxon race. It is the source of every political and social blessing we enjoy, the palladium of our liberties, the solid rock on which securely reposes the whole fabric of Anglo-Saxon institutions. To the extent that you impair this great conservative principle, to that extent you weaken free institutions. Destroy it, and republican government would perish from the earth. And yet right here in this young republic, which lives, and moves, and has its being by force of this vital principle; in this Constitutional Convention, swoni to guard, preserve, perpetuate, and build upon it ; a foul assault is made upon it. It is projiosca, not only to blend these great port of the Rail- way Commissioners of Massachusetts for the year eighteen hundred and seventy-three, he says : " The essence of the system is, that certain persons, whether the Legislature itself, or officials designated by ttie Legislature, have rtatiou on the English rail- ways. A single statute referred to by Mr. Adams, in the book from which the gentleman read so copiously the other day, contains over three hun- dred sections. It had incorporated in it all the old turnpike toll Boards, and contained regulations of the most minute character. But they were found by experience to be nugatory, and simply because they were based Ujion a false principle now admitted to be so In England, and gen- erally In the Uniteortation is, that they shall be reason- able, and that there shall be no unjust discrimination. The comniittre raised by the British Parliament in eighteen hundred and seventy-two, to whose re|iort the gentleman (.Mr. Eatee) referred in his speech the other day, was a select committee, "appointed by the House of Lords and the House of Commons to inquire into the subject of the amalgama- tion of railway companies with special reference to the bills for that purpose now before Parliament, and to consider whether any and what regulationt should be im)>oeed by Parliament iu the event of such amal- gaination being sanctioned, and to report to the House." On this committee were distinguished representatives of the great industrial interests of England, and some of the roost distlngaished statesmen of the present age, among them the Jiarl of Derby and the Manjuls of Salisbury, now world renowneerhaps of*the remote future: a ques- tion which certainly had not presented itself, and which they had no disposition to precipitate. They accordingly fixed definitely the |»IIct of Great Britian as an expectant one. The railroad system was to be left to develop itself in its own way, as a recognized monopoly, held to a strict public accountability as such. Whenever it should appear that it abused its privileges and power, then the time for action would bare arrived. As yet this was not the case in any such degree as called for a decisive and far-reaching measure of reform. To better watch over il meanwhile, and to cause its members to work with less friction among themselves and with a more careful regard to the equal right* of private persons, an exceptional piece of governmental machinerj' was pn>THied in the form of a Board of Commissioners. The powers of this tribunal were both judicial and executive in character and very broad. It »•> its duty not only to hear all complaints of private parties, but to inter- vene in cases of difficulty which might arise between the companies themselves. The Board was. In fact, designed to insure to the commu- nity an easy and equitable interchange of traffic over its railmad linM, as well as to put a stop in so far as might be practicable to that unjast and vexatious system of discrimination which seems to be' insepsisble from all active railroad competition. Through this Board the ex«p- tional character of the railroad system was at last recognised. An attempt was made to deal with the auoiifnly as an anomaly. Mean- while, the most noticeable feature in the cafeer of the Board, which hat now been in existence five years, is the very trifling call which seems to have been made upon it. So far as can be jud^d from its annnal reports, the cases wh ich come before it are neither n umerous nor of great importanoe. Il would, however, be wholly unsafe to conclude from this fact that such a tribunal is unnecessary. " On the contrary, it may confidently be asserted that no corapeten' Board of Railroad (^mmissioners, clothed with the peculiar powers of the English Board, will ever, either there or anywhere else, havemuj cases to dispose of. The roere fact that the tribunal is there; "■*'* machinery does exist for the prompt and &n%i decision oCthatdaav Digitized byLjOOQlC Nov. 22, 1878. OP THE CONSTITUTIONAL CONVENTION. 495 questioDS, paU an end to them. They no longer arise. Thev oeaM to arise for the simple reason that the railroad corporations in these mat- ters are not like the members of a numerous and complicated business community. The controveries among them, which do not involve legal points, are comparatively simple and con6ned to few persons. These they will in the vast majority of cases settle themselves, if they only know that if they do not so settle them a public official will. The English Board has always been composed of very conipetrnt men. Accordingly the officials of the corporations, knowing quite well in advance what their decisions will be, do not probably care to encounter them. A single test case disposes of innumerable sut^equent cases." Time does not permit me to recount the many other empirical laws upon the subject we are considering, which are now, at last, a dead let- ter upon the statute books of other States. Passing them by, I can only characterize them as Mr. Adams says the select committee of Parliament referred to, characterized similar laws in England : " They showed with great precision how, during that period, the English railroad legislation had never accomplish^ anything which it sought to bring about, nor prevented anything it sought to hinder." The Chairman of the Com- mittee on Corporations other than Municipal, Mr. Estee, has paid a merited tribute to the great ability and nigh character of Charles Francis Adams. He is the oldest Sailroad Commissioner in the United States, and has devoted years of patient investigation and study to the railroad problem in all its relations. His opinions upon the questions we are now considering must necessarily possess great value, and we may safely take them for a guide in our deliberations. In an address delivered by him to the farmers of Wisconsin, at a State Fair held in that State, at a time of great popular excitement over railway affairs, speaking upon the subject directly before us, he said : "And in the first place let me say one word of myself; and it will be no word of laudation; perhaps I might better describe it as a confession of sadly modified aspiratione, if not indeed of downright failure. I am an old soldier now in this discussion. I was among the first to begin in the public prints; to-day I am the senior Railroad Commissioner in the United States. If you ask me what I have done, what I have accom- rlished, I must needs answer : Little enough in comparison with what , a few years back, hoped, but still something. At least I have come tack to first principles. Another thing I have learned in the healthy though disheartening school of experience, and that is to revise my opinions, for I must needs confess it, that there is hardly a single theory as respects railroads and their relations to the State which 1 held six years ago, that I have not since, as the result of honest study and mature reflection, either greatly modified or wholly abandoned. I have grown common sense, I think, and like most men thankful at last for little things. Six years ago, in the height of the railroad discussion, a Board of Commissioners was established in Massachusetts, and I became a member of it. The principle upon which the Board was established I at the time thought wholly unsatisfactory; I have since concluded it was a wonderfully happy legislative guess. The Board had no powers, or next to none. It was simply an agency through which publicity could be secured; it was to be the lens through which the scattered,, diveiging, individually powerless rays of public opinion could be cast, concentrated into a focus, and brought to bear on any given point of railroad management. In those days I had not the faith m public opin- ion which I have now, and it seemed to me that the law which organized our Board, and then placed us face to face with those great corporations, powerless to do more than to investigate and discuss, it seemed to me that this law was framed in a total misapprehension of the necessities of the case; that it left us in a position which challenged contempt. The fact is, like most officials, I yearned for more power. I wished to be able to compel, as well as to recommend. I wanted a little force bill of my own. This, I am now rejoiced to say, the Legislature of Massa- chusetts was too wise, perhaps too wisely distrustful, to give me. The law was badly, clumsily framed, but it was based on a very simple idea. A Board of Arbitrators was to be created, with a certain sujiervisory power. It then became the duty of its members to investigate every complaint brought against any railroad company, and this, too, without cost to the party bringinE it." Mr. Chairman, if the history of the railroad and its management in England and in the United States, if the partial investigations and thoughtful studies of eminent specialists ana statesmen, teach us anv- thing at all, it is that all attempts at a forced regulation of rates for rail- road transportation, whether it be in form of legislative enactment or of constitutional provision, always have been and always must be the worst kind of empiricism ; that the business of a railway is based upon, and must be conducted in accordance with those universal and immutable principles which lie' at the base of every other business; that an arbi- trary interference with it by government in any form always has been,' and from the nature of the case must inevitably be, in proportion to the extent to which it is exerted, destructive. The great student and observer of railway affairs in this country, from whom 1 have drawn so liberally in the course of rav remarks, has never given utterance to sounder views upon this particular phase of the sub- ject than those he addressed to the farmers of Wisconsin, when he told them, alluding to a state of things in remarkable analogy to that now prevailing in this house, that — " Political makeshifts are more in vogue just at present than political philosophy. Accordingly, as our swollen statute Dooks bear ample evi- dence, tife regulation law-maker has during the last six years been more than ordinanly busy. I do not know that the passion for legislative panaceas for every ill which the social flesh is heir to is peculiar to America. I do not think it is; only in other countries it takes a difier- ent form, and is called not an Act of Legislature, but by some other name, such as "ukase," "firman," "mandate," "imperial decree," or the like. But if there is one thing which human experience has proved more thoroughly than another, it is that the limits of effective legisla- tion are very narrow, and that nine laws out of every ten, so far as they have any effect at all, rather defeat than further their object. This somewhat important fact, however, has not received amonc^ us of late any very marked consideration. The essence of all successful republi- can government is conceded in thought to rest in an appeal to a calm and educated public opinion,* but in our practice, the penal law repre- sents the Constable — force; and the moment anything is wrong, it is but necessary to get control of the Constables to have it set right. So, in Massachusetts, for thirty years, now, they have been trying through the agency of the Constables to make men temperate ; in nearly every State in the Union, the Constable is invoked to see that the borrowers do not pay more interest than is good for them ; in the South, the Constable must see to it that civilization receives no detriment; in the West, the omnipresent Constable must have his eye on the railroads, so that no injuries shall occur from any deficiency in the operation of natural la^s. To my mind, the force system, whether in Turkey, or in Russia, or in Massachusetts, or in Wisconsin, is all wrong. It is based upon power, not upon reason; upon an arbitrary will, not an enlightened public opinion. It is as if a physician were to cover with plasters the outward indication of disease and stolidly ignore its seeds m the depth of the system. A thorough investigation of causes and resiilta would, I am confident, reveal past all dispute, tjie utter futility of the larger part of our statutes, and, by no means least of all, those intended to regulate our railroads — a department of legislation based ou the principle that the State must sever itself from all connection with business undertak- ings, because experience has shown that every such connection tends to waste, to jobbery, and to corruption, and from this basis seeks at once to convert our Legislatures into irrespousible Boards of Railroad Directors, thus substituting a system of organized meddling in place of legitimate business, finally compelling the wealthiest corporations to have recourse, in self-protection, to systematic legislative corruption — an evil ten times worse than the worst executive jobbery." Sir, the sentiments here advanced are no less pertinent to the scheme now proposed to us than they are to a legislative force bill. Mr. Chair- man, I denv that there is anything in the present management of rail- roads in this State; or in the existing condition of public opinion here, which demands the expression of the power of this Convention upon the railroad corporations of this State. I deny that there is now, or that there ever will be, any action necessary to be taken by the government of this State in reference to railways that may not, with entire safety and absolute propriety, be left to the legislative departments. And, sir, I unhesitatingly affirm that in every instance in wnich your Legislature has been called upon to act upon this subject, it has treated it intelli- gently, wisely, and to the best interests of the people, as well as of the corporations. I deny that the people demand tne adoption by this Con- vention of sections eighteen, nineteen, and twenty, or of any single pro- vision contained in them. The management of the railway system of this State is, and for man^ years past has been, eminently satisfactory to that large class of people in this State having dealings with these corpo- rations; and of this I have evidence of the nigbest character at hand. In the first report of the Railroad Commissioners of this State, made in the year eighteen hundred and seventy-seven, I find the following state- ment: " In October, eighteen hundred and seventy-six, we issued a circular, which was addressed to many hundred citizens in various parts of the State whom we deemed likely to be able to furnish us with information or suggestions of value, in connection with the subject of railroad trans- portation. A copy of it is as follows : Sacbauento, October. 1876. Among tlie priocipal objects proposed by the LegiMitturo in crentlng a Board of Transportation Commlsdoners, is the C4>mpilHtion of facts and statietics connected with the Iniilding and operation of rmllrrHtds in tliid State, and also the inTestiga- tion of tlieir mitnngemont, oipecially as it affects tile interests of their patmns and the public generally. It is Ijelleved that an impai'ttal investigation of this sntiject will rt«ult in substantial advantage to all concerned; and to this end this Uoard desires to receive information and suggestions and statements from all who are inter- ested. As your (wsition has pitibably led you to give mom than usual attention to the nut\|ect, there may he matters to wtlich, in your opinion, the attention of tho Board should be called; in which event, it is requested that you will conimunicato them to this Board in writing. By order of the Board. WALTER M. PHILLIPS, Secretary. " This was transmitted to Supervisors, county officers, members and ex-members of the Ijegislature, Judges, prominent merchants, store- keepers, editors, hotel-keepers. Patrons of Husbandry, etc., and it led to some valuable communications, although not to contributions of public opinions, or information on tho subject as full or extensive as we might have reasonably looked for. "We have deemed it our duty to visit and inspect, so far as such inspection can be made in transitu, every part of every railroad in the State, in order to acquaint ourselves, so far as possible, with the circum- stances, local connections, situation, and condition of the various roads. " Without entering into unnecessary detail on this subject, we observe that generally the railroads of the State are in good order, and their management wise and economical, and conducted with a view to public convenience." And further along in their report, in reference to dis- crimination between individuals, tney say : " J>o instance of the occur- rence of this abuse has been brought to our notice. There are rumors of its existence, and it is even said that the sufferers by it fear to complain, lest they be punished by further and ruinous discrimination. While it is possible that there may be some foundation for these suggestions, it is. also probable that the instances, if they exist, are of rare occurrence, and in most, if not all cases, explainable by circumstances unknown to, or insufficiently considered by, the [Mirties who have felt aggrieved. The present law is somewhat defective on the Subject, and we believe the amendments proposed will be found sufficient to correct it." But, sir, there is further evidence at hand, and the witnesses aro now living and here present The testimony I am now about to adduce proves to what agencies the regulation of this subject ainnild be left, c~ Digitized by : afaotild be left, at Google 4% DEBATES AND PROCEEDINGS Satcrdav, far as we are at present advised concerning the conduct of railway business in this Btate. And the instances I am about to cite are only a few amonc a great many which might be enumerated. Two or tbree Summers agoa special committee, representing the farmers of Solano County, who desirea a modification in tneir favor of the then prevailing rates of transportation on .the California Pacific Railroad, presented their demand to the managera of that road, and, after mutual consultation upon the subject, their demand was promptly acquiesced in. Boon after this a similar committee, representing a like class of citizens in Yolo County, presented to those gentlemen a similardemand, except that the reduction asked in their oaj San Kmnclaco, Juljr 3, lgT7. j OsKiaAL Oto. 8. EvAXS, Stockton— Daar Sir: Referring to the interriew between JoUFielf and sjiaocUtes of the committee appointed for the piirpoae, and OoTenior 8tanford, PreeidenC of thlfl company, 1 ain Instntcted to fay that the company will crant yoar request, and make the nte on grain Id car-loads, from points between Tehama and Lincoln, on the Oregon division, to Stockton, fifty cents per ton lower than to San Francisco. Very truly youn, J. C. STUBBS, Oeneial Freight Agent These, sir, are only a few of almost nnmberless instances that mi^ht be cited, which show that there is a silent legislation constantly going on between the people and these great corporations, which, if left to itself, will much more satisfactorily adjust the relations between them, than will any number of " force bills" and Constables. The Act of eighteen hundred and sixty-onen»ncerning railroad coqiorations, fixed maxima for transportation at ten cents per mile for paswngers and fifteen cents per ton per mile for freight. As, in the progress of time, the railway system of the State became perfected, as tne volume of business increased, the classifications of freight became more and more liberal, the rates of transportation were from time to time reduced, and at the session of the Legislature of eighteen hundred and seventy-five and eighteen hundred and seventy-six, when the Senate Committee on C-orporations caused to be published in the public journals invitations which were spread broadcast all over the laud, calling u|>on any and all persons to bring forward their complaints, if any they had, against the railway corporations, not a single individual responded. The Legislature at that session adopted the classifications of freights and the rates of charges of all the railway companies in the State in force on the first day of Januarj', eighteen hundren and seventy-six, and fixed them in what is known as the O'Connor bill as maxima rates. At the session of eighteen hundred and seventy-six and eighteen hundred and seventy- seven the Hart bill became a law. During the interval of two years the classifications were adjusted upon a basis still more favorable to the public, the rates of charges were still further reduced, and the Legisla- ture again fixed the rates and classifications in force on the first day of January, eighteen hundred and seventy-eight, as maxima rates. The legislation to which I refer had the sanction of some of the purest and most eminent men in your State, and was the result of their investiga- tion and study in their capacity as members of your Legislature. Amoug them were your present Governor, Miles O'Connor of Nevada, and a gentleman now a member of this body. I allude to Mr. Laine, of Santa Clara, himself a member of the Senate Committee on Corpora- tions at the time to which I refer, and than whom a more patient, hon- est, industrious, and valuable legislator has never been a member of a legislative body since the Commons sat. Mr. Chairman, there seems to be an intense prejudice against corpo- rations in this body, and I cannot forbear to say that, in my judgment, it is as unfounded and unjust as it is intense. What is a corporation? It is a number of persons united in one body, under an artificial form, designated by a common name, having succession, and the capacity to sue and be sued, to acquire and hold property. It is the purpose of a corporation to secure a concentration of the brains, the will, and the capital of a number of individuals, in order to carry on great enter- prises. These corporations, sir, have jerked this State a hundred years ahead of the i)oint of progress at which it would have stood without them. They nave been potent and beneficent instrumentalities for the diffusion of literature, of science, and art; for the spread of education; for the encouragement of commerce, of agriculture, and of manufac- tures. Occasionally, to be sure, one of them goes down, and then there goes up a general howl against corporations. It is to be admitted, that some evils are incident to this form of organization, but I know of no human institution that is altogether exempt from evil, in some form, unless it be this immaculate body. Of course, everybody looks for a f:neral ascension from this hall at no distant day, but no one expects it, believe, until all the money is gone. Mr. Chairman, I confess that I have addressed this Convention not without some misgivings. I am a lawyer, and have been a legislator- two employments that seem to have come under the ban of this boase. I have a realizing and saddened sense that the profession to which I belong does not enjoy the confidence, the respect, the homage of the people, in that high degree that it once did. But, sir, for this the people are themselves to blame. From what I cannot but regard as a most mistaken notion, they have done everything in their power, for the lut forty years, to popularize, to democratae, that profession. And its better representatives have not made an effort during that period to close np its ranks against charlatans and pretendents, that has not been thvirtea by the people. For example, a«provision was placed in the Codes, which became the law in eighteen hundred and seventy-three, prohibiting any person from practicing in any Court of record in this State who hid not been admitted to the Supreme Court. It was a salutarv provbion. and a security to the citizen. But at the next session of the Legislature a bill was introduced to repeal it, and though the lawyers made ererj' effort to preserve it, the farmers and mechanics ia that body opposed it. and it was repealed. But, sir, granting all that now may be said to the disadvantageof that profession; concede, if you please, that, as is alleged, it is somewliat conservative, somewhat aristocratic in its tendencies: as I look over this body and realize how large and predominatiug is the democratic element in it, I cannot but think it a fortunate circumstance that there is a good number of lawyers in it. and among them the best in the State; some, indeed, who rank with the best in any State. And I do not think the excellence of the work of this body will be at all impaired if a very wide scope is given to the influence of the lawyer in it. One of the profoundest of political philosophers — and a very dose observer of our American institutions — in his great work entitled "De- mocracy in America," wrote thus of my profession : " The profession of the law is the only aristocratic element which can be amalgamated without violence with the natural elemeiits of democ- racy, and which can be advantageously and permanently combined with them. I am not unacquainted with the defects which are inherent ia that body of men; but without this admixture of lawyer-like sobrielj with the democratic principle, I question whether democratic institutions could long be maintainedf; and I cannot believe that a republic could subsist at the present time, if the influence of lawyers in public businea did not increase in proportion to the power of the people." Sir, it was the skill and wisdom of lawyers that laid the foandatioo and reared the superstructure of that benign Government under which we sit in this hall. It was an immortal company of lawyers whose statesmanship, supported by the deathless valor of its heroic armies, kept that Government firm on its foundations in thei' most tremendooi shock of war the universe has ever felt. It was a lawyer, who, at the call of his country in the hour of its direst peril, left the walks of his profession and became the greatest organizer of war the world hss ever seen. But, sir, I need not stand here and call the roll of its heroes, la the Senate, upon the bench, at the bar, in the camp, in the stricken line of battle, always and everywhere when civilization aiid the rights of mankind have been assailed, that profession has been in the vanfusid of their defenders. The bones of its martyrs are at the base of every great monument which marks the progress of the race, and there is not a legal security, nor a constitutional guarantee of liberty or labor that is not illustrated by their genius, or consecrated and cemented by their blood. Mr. Chairman, I cannot resume my seat without admonishing mem- bers that we are daily wandering further and further away from thee great organic principles which alone ought to engage our attention is compounding a Constitution ; that a torrent of radicalism has set ia upon us which threatens to overwhelm our work; that we have already lost much of the public confidence- Let us curb the last innoratioa that has taken possession of us, this rerun novarum lubido, which the ?:reat Latin philosopher said was the bane and destruction of all repub- Ics, and come back to sound principles, liet us adhere as near as may be to the present Constitution. Under it there has been consummated more of general progress, more generally diffused happiness and pix»- perity, than has ever before been realized in the same period of lime bv any other people on the globe. For more Ihan a quarter of a centur)' it has held in equilibrium, like an elemental force, the rivalries of sec(ioa«, the antagonistic customs, the chuhiug prejudices and passions of all the alien races of the earth. Believe me, sir, when I say it has the afliK- tions of this people, and that they will not tolerate" any very radical changes in it. Let us amend it in a few particulars, adding a little to the judicial force, changing a little its provisions regarding taxation, and putting a few more restraints upon legislative power. Do this, and »e shall regain the public confidence ; do this, and we may return to our constituents oonndent of being greeted with that most inspiring of all salutations to a public man, " Well done, thou good and faithful ser- vant." Me. AYERS. I move that the committee rise, report pn)grett,aiid ask leave to sit again. Carried. IK CONVENTION. Thk PRfiSIDENT. Gentlemen : The Committee of the Whole Ii«« instructed me to report that they have had under consideration tie report of the Committee on Corporations other than Municipal, h*" made progress therein, and ask leave to sit again. ADJOUBKHENT. Ma. VAN DYKE. I move that the Convention do now adjeum. Carried. And at five o'clock p. v., the Convention stood adjourned nstil w* morrow morning at ten o'clock. Digitized by' Google Nov. 23, 1878. 0^ The const iTtJTIONAL CONVENTION. 497 FIFTY-SEVENTH DAY. Sacbamcnto, Saturday, Norember 23d, 1878. The Convention met in regular aeasion at ten o'clock a. m., President Hoge in the chair. The roll was called, and members found in attendance as follows : PBiaUIT. Andrews, Harvey, O'Sullivan, Ayers, Heiskell, Overton, Barbour, Herold, Porter, Barnes, Herrington, Prouty, Barry, Hilborn, Reddy, Barton, Hitchcock, Reed, Bcerstecher, Holmes,, Reynolds, Bell, Howard, Rhodes, Black mer. Huestis, Ringgold, Rolfi, Boggs, Hughey, Boucher, Hunter, Schomp, Blown, Johnson, Shoemaker, Burt, Jones, Shurtleff, Campbell, Joyce, Smith,of San Francisco, Caplea, Kelley, Stedman, Chapman, Keyes, Steele, Charles, Kleine, Stevenson, Condon, Laine, Stuart, Crouch, Lampson, Sweasey, Davis, Larkm, Swenson, Dean, liarue. Swing, Doyle, Lavigne, Terry, Dudley, of Solano, Lewis, Thompson, Eagon, Lindow, Tinnin, Edeerton, Mansfield, Townsuul, Turner^ Estee, Martin, of Santa Crui Erey, McCallum, Tuttle, FarreU, McComas, Vacquerel, Filcher, McConnell, Van Dyke, Finney, McCoy, Van Voorhies, Freeman, McFarlaud, Walker, of Tuolumne, Freud, McNutt, ■Waters, Garvey, Mills, Webster, Glascock, Moffat. Weller, Gorman, Mottiland, Wellin, Grace, Morse, West, Graves, Murphy, Wickes, Gregg, Nason, • White, K' Nelson, Wilson, of Tehama, Neunaber, "~ Wilson, of 1st District, HaU, Noel, Wyatt, Harrison, Ohieyer, ABSIKT. Mr. President. Belcher, Dunlap, Schell, Berry, Estey, Shafter, Biggs, Fawcett, Smith, of Santa Clara, Casserly, Inman, Smith.of 4th District, Cowden, Martin, of Alameda, Soule, Cross, Miller, Tully, Walker, of Marin, Dowling, O'Donnell, Dudley, of San Joa< luin, Fulliam, Winans. LRATI or ABS8N0B. Leave of absence for one day was granted Mr. Dowling. Two days' leave of absence was granted Mr. Schell. THK JOORKAI.. , Mb. TINKIN. I move that the reading of the Journal be dispensed with, and the same approved. Carried. ADJODBMIfKNT. Mr. martin, of Santa Crus, offered the following resolution : Saohed, That when this Convention s4jonrns to-dajr, it shall be w^onrned till two o'clock p. M. on Mondaj, December second, eighteen hundred and MTenty- eight. Mb. KE7E8. I second the resolution. Mb. GRACE. I move to lay the resolution on the table. Carried. Mb. C.\MPBELL. I desire to call up my resolution amending Rules One and Two, as to the time of meeting of this Convention. Thi PRESIDENT. The gentleman is out of order at present PBTITI0N8 — MECHAIIICS' LIEMS. Mb. REYNOLDS presented the following memorial, signed by a large number of mechanics and others, citizens of California, asking for a provision in the Constitution for a lien law : To the President and Members of the Constitutional Convention : Qimiaits : The nndenlgned rtspectftilly rfprmont that the pmctlcal worlting of the prveent legislation, and decisions of tlie Supreme Court based thereon, reKardlng the rights of mechanics, material-men, and laborers to a lien fur their lalior and material furnished, is such that those who in a measure depend upon such law fur jnst pr.ttectioo. Call in nearly all cases to obtain it, because of the inefllcient working of said law. Wherefore, we pray yon to declare In onr organic law tlie right of every mechanic, ■saterfal-man, and laliorer to a perfect Men on the thing whereon his labor has been ensoded, or for which his materials have been furnished. Moreover, we wonld state that we would be satisfied with amendment number one hnadred and lixty^iven, introduced by Mr. Van Dyke on October tenth, eighteen 63 huudred and tevt^nty -eight, and read and' referred to Committee on ICiscellaneoaa Sal^ects, as follows : **Seo. — . Mechanics, material-men, artisans, and labomnif of erery clan, tball have a lien npon the property on which they have bestowed labor or furnished materiftls, for the ralue of such labor done and materials furnished, and the Legis- lature shall provide by law for the speedy and efficient enforcement of said liens. And your petitionen will ever pray. Referred to Committee on Miacellaneous Subjects. Mr. FREUD presented a similar p^ition. Referred to Committee on Miscellaneous Subjects. THE BDPRBUI COURT. Mr. BLACKMER presented the following petition from members of the bar of San Diego, m regard to eesaious of tne Supreme Court at Los Angeles: To the honorable the President and Members of the ConreDtlon to amend the Coo- Btltutlon of the State of California: The undersigned memorialigts, as citfxens and members of the bar of San Diego County, respectfully represent to your honorable body: That we have been unable to discover any hardship In tha operation of the law requiring the Supreme Court to hold certain of its sessions at points outside of the capital of the State. Nor have we been able to discover any good or even pUusible r^ajton, either from the arguments of the advocates of the proposed rMtrlctlve amendment or from our own Investigations, why a term or terms of the Supreme Court should not be profitably and conveniently held at points other than tha capital. That no popular discontent has been manifested nn the part of the people of the State at the action of the Legislature in providing for the holding of certain terms of the Supreme Court in San Francisco and Iam Angeles; and that the suggested change in limiting the 8e»lons of the said Court exclusively at the impltal by tha organic law, Is uncalled fur by any public demand on the part of the people of tha Sute. That for onraelves, as citizens and members of the bar, and as far as public opiulon has been manifested upon this subject within the sphere of our obnervation, wu are convinced that the sentiment of ihe people of the State, and eHpecially of the central and southern portions, is manifestly opposed to the adoption of any clause which wuuld present the people of the l^tate from legislating upon thin subject as the future growing and changing interests of the people might demand. That the mptd increase of population and wealth, involving a proportionate increase ofbutdneas in thn suuUiern part of the State, requires that the Legislature should at least be left at Hlwrty to give us such termsof tlie Supreme Court as our future exigencies shall demand. Kven at the present time our Supreme Court bust* nesB is very large, as shown by the fact that the term Just held at the City of Lob Angeles has consumed three weeks of constant and arduous labor on the pai-tof Ihe Court and counsel, and was yet insufflcient to dispose of (he busiueae before the Court. That, at the southern part of the State, sessions of the Supreme Court are required as a necessity, saving mucit (Ime to counsel and to lltlganta, besides the expense incident to more than a thousand miles of travel from points in the southern connties to the capital. And upon these grounds, and because no rights or privileges of others are Intrlnged upon, we would hereby ask ymir honorable bodj^ take such acUon as may prevent the iDCOCporation of any such restrictive provision in the amended Constitution. LBVI CHASE, W.T.McNKALT, K.W.HENI»EICK, WALLACK LEACH, WILL M. SMITH, W J. WALKER, W. J. HUNSAKBR, W. J. GATBWOOD. Ordered to lay on the table, to be printed, and referred to the Commit- tee of the Whole with the report of the Committee on Judicial Depart- ment. OOMXOKICATION. The president. I have received a communication which the Secretary will read, Thb SECRETARY read: Thb Sak FsAKctsco Gasuoht Compamt, X San Fsancisco, November 2lBt,,1878./ J. P. Hoge, Esq., Preaident of the Constitutional Convention, Sacramento: Dkar Sir: Copy of resolution number eighty-nine came to hand, and in reply have to say that the San Francisco Oasllght Company, since Its organization, has famished to consumers an immense number of meters, averaging between three thousand and four ihonsand annually, all of which are kept In perfect repair by the company witliout charge to consumuni. There has also been a large nnmber discontinued on account of removals, eto., leaving in use at the present time about thirteen thousand one hundred meten at customers' premises. The average life of a meter Is about five years, and its destruction is a total loss to the company, as tHey are not sttld to consumois of gas, and no deposit is ever required, nor any rent chai^;ed for then» while In use, as Is the custom In England and the Eastern States. Very respectfully, WM. O. BARRETT, Secr«tai7 for San Francisco Gaslight Company. Laid on the table. RKPORT — PUBLIC BITILDIKOS AND GROUNDS. Mb. OVERTON presented the following report from the Committee on State Institutions and Public Buildings: Mb. Presideivt: Tour Committee on Sute Instflntions and Public Bnitdlngs, to whom was referred proposed amendments number three hundred and fifty, by Mr. CamplMll; nnmber eighty-fonr, by Mr. Cowden; number four hundred and sixty* five, by Mr. Freud; number three hnndred and eighty-three, Uy Mr. Webater, have had the same under consideration. Number three hundred and eighty-three, by Mr. Webster— we recommend lis reference to the Committee on Education ; number four hundred and sixty-five, by Mr. Freud, to the Committee on Labor and Capital; propo- sitions number three hundred and fifty, by Mr. Campbell, and number four hundred and sixty-five, by Mr. Condon, conteining the principles which your committee have embodied in the following sections, and recommend their adoption. A. P. OVEHTON, Chairman. Article — * Section 1. There shall be a State Board of Prison Directors, to Con- sist of five persons, to be appointed by the Governor, with the advice and consent of the Senate, who shall hold office for ten years, except that the first appointed shall, in such manner as the Legislature may direct, be so classified that the term of one person so appointed shall expire at the end of each two years during the first ten 3'ears, and vacancies occurring shall be filled in like manner. The appointee to aAacancy, occurring^ Digitized by V^v ^ 498 DEBATES AND PROCEEDINGS Saturday, before the expiration of a term, shall hold only for the unexpired term of his predecessor. The Governor shall hare the power to remove either of the directors for misconduct, incompetency, or neglect of duty, after an opportunity to be heard upon written charges. Sic 2. The Board of Directors shall have the charge and soperin- tendence of the State Prisons, and shall possess such powers, and per- form such duties, in respect to other penal and reformatory institutions of the State, as the Legislature may prescribe. Sec. 3. The Board shall appoint the Warden and Clerk, and deter- mine the other necessary officers of the prisons. The Board shall have power to remove the Wardens and Clerks for misconduct, incompetency, or neglect of duty ; all other officers and employ^ of the prisons shall be appointed by the Warden thereof, and be removed at his pleasure. Sic. 4. The members of the Board shall receive no compensation other than reasonable traveling and other expenses incurred while engaged in the performance of official duties, to be audited as the Ijegis- lature may direct. Sec. 5. The Legislature shall pass such laws as may be necessary to further define and regulate the powers and duties of the Board, Wardens, and^Clerks, and to carry into effect the provisions of this Article. Me. CONDON. Mr. President : I move that the report lay on the table until such time as the minority report is submitted, and that they both be printed together. Carried. PAT or OAB FOBTIS. Mr. O'StJLLIVAN offered the following resolution : Raolved, Tb*t the Controller of State be and he is hereby authorised to draw his warrant in favor of Patrick Leavy, for thirty-eight dollars, for eerrtcea as Qaa Porter prior to October seventeenth, eight handred and seventy-eight, payable oat of the approtiriation tor the expense* of this ConventloB. Referred to the Committee on Contingent Expenses. AMKKDHRKT TO BULIS. Mr. CAMPBELL. I now ask to call up my resolution to amend Rules One and Two, in relation to the hour of meeting. Thr PRESIDENT. The Secretary will read. Thr SECRETARY read ! Ruolved, That Rule One be amended so as to read as follows: The Convention ihall meet each day of iltUng at half.past ntoe o*clock a. H., unlees it shall ai^oum to some other hour. Setotvtd, That Rule Two be amended so as to read' as follows; The Convention shall take a recess each day from half-past twelve o*c]ock P. M., to two o'clo<^ p. N., and from five o'clock p. m., or such earlier boar as the Convention may deteAiue, until seven o'clock p. M. Thr PRESIDENT. The question is on the adoption of the amend- ment to Rule One. . The amendment was adopted, on a division, by a vote of 80 ayes to 20 noes. Mb. BEERSTECHER. I desire to sit from one o'clock in the evening tintil one o'clock next morning. Thr PRESIDENT. The next question is on the amendment to Rule Two. Mr. REYNOLDS. Has the vote been announced on the last? Thr PRESIDENT. Yes, sir: 80 ayes to 20 noes. The amendment was adopted. Mr. REYNOLDS. I rise to a point of order. The PRESIDENT. The gentleman is too late with his point of order. Mb. REYNOLDS. I don't know that The president. The gentleman is too late with his point of order. Ma. REYNOLDS. I don't know that.it is ever too late to refer to a rule or correct a mistake. Rule Sixty declares that "no standing rule or order of the Convention shall be rescinded or changed without a vote of two thirds, and one day's notice being given of the motion therefor; but a rule or order may be suspended temporarily by a vote of two thirds of the members present, except Rules Fifty, Fift^-one, Fifty-two, Fifty-three, and Fifty-five." Under that rule it requires one hundre change a rule by the vote of two thirds of the members present Tht farthest we can go by a vote of two thirds of the members present is to temporarily suspend a rule. And what is the reason of this rule? It a that there may be something like permanency to your rules. If vou adopt any other construction of it, why a two-thirds majority of a Care quorum of the Convention can turn the rules upside down, as they bare done several times, and the next day you are all at sea, and the mem- bers of the Convention know not what the rules arc. And further: at the time the Committee on Rules were constructing these roles, and I appeal to the Chairman of the Comnoittee on Rules if he did not dis- tinctly state that that was the construction, that it required two thirds of the members elected to the Convention to change a rule, but that two thirds of the memljers present could temporarily suspend a rule. But two thirds of those present could not go at it and change the whole code we have adopted. There can be no other construction. It comes under the rule that the expression of one thing excludes the other. That applies to this case, perhaps not perfectly, but it applies. It applies to this extent, that we have said in the rule that a rule or order cannot be changed except by a two-third vote. I hold that that means two tbinia of the Convention. Why ? Because in the next clause the expression is, " two thirds of the members present." The first part of the rule does not say two thirds of the members present, and it certainly means t«o thirds of the whole Convention. There can be no doubt about this. There can be no two opinions about it. Mr ROLFE. Mr. President: Rule Three says that not less than seventy-seven members shall constitute a quorum. Therefore, I la^ if seventy-seyen membeta are present that constitutes the Conventioii. although (I'H^'VC fifty may be absent. Those present constitute the Convention inhere are seventy-seven. Then Rule Sixty says that no rule or prder shall be changed without a two-third vote. What does that mean? It means two thirds of the Convention, and if there is a quorum present, and two thirds of that quorum vote in favor of chang- ing a rule, it is a vote of two thirds of the Convention. I cannot put any other construction upon it. I know that in every instance in our constitutional provisions where it is required that a certain raajoritr of all the members elected to either branca of the Legislature, must vote on a certain proposition to carry it, it is so distinctly stated, as, for instance, creating or changing a judicial district. Our Constitution says it can be done only by a vote of two thirds of all the members elected, whether they are present or not. No other eonstniction can be placed upon this rule where it say* that a*nile may be changed by a two-third vote. No other meaning can be put upon it, than that it means a two- third vote of those present, provided a quorum be present. Mr. TINNIN. Mr. President: I was a member of the committee that framed this rule, and I claim that when that body made this rule they intended it to mean what it said. If they had intended that a two-thirds vote of all the members elected were required to change a vote they would have said so. I think if they had meant that two thirds of the members elected were required to change a rule they would hsve said so. So far as the gentleman from San Francisco, Mr. Reynolds, is concerned, I give him credit for his perseverance in this great etraggle, and I will say that he is entitled to a patent on his idea. I have served in the balls of legislation here for many years, and in all that time do member before him, to my knowledge, has ever contended for this peculiar idea. I think that he deserves credit for his persistency in giving forth an idea that is peculiar to himself. It was evidently the intention of the Committee on. Rules that a two-third vote of ihoa present should control this body in a vote of this kind, and I contend that the change was properly made by this body some weels ago when they amended Rule Fifty-six. Mb. 8TEDMAN. Mr. President: Perhaps I am one of the peculiar ones, too, and perhaps I do not understand the English language. I do not know much, but certainly I must agree with Mr. Reynolds in his construction of this rule. And the Chairman of the committee under stands the rule in the same manner. Mb. ESTEE. Who told vou I did? Ma. STEDMAN. Well, the Chairman told me be did. " No rule or order of the committee shall be rescinded or changed without a vote of two thirds, and one day's notice given of the motion tberelbr: but* rule or order may be suspended temporarily by a vote of two thirds of the members present, except Rules Fifty, Fifty -one. Fifty-two, Fiitj- three. and Fifty-five." Why do they say that? The gentleman from San Bernardino, Mr. Rolfe, says that evidently the first clause means seventy-seven members — ^two thirds of seventy-seven members. Follow-^ ing that argument out, less than two thirds of seventy-seven could change a rule temporarily. I do not understand it so. I think itisveiT Flain that only two thinis of the whole Convention can change a nile. do not care much at any rate. [Cries of " question."] Mb. HAGER. Mr. President: I just want to say two or three wont I presume this rule must be construed in connection with the othere- Rule Three provides that not less thin seventy-seven members shall constitute a quorum for the transaction of business. That constitutes a quorum. If two thirds of a quorum vote that ends the matter accordin; to my notion. That is my interpretation of Rule Sixty as construed with Rule Three. I think the decision of the Chair is right Mb. REYNOLDS. Mr. President: I understand now that the Cbta- man of the committee does not hold to the opinion that itreqoiRSS two-third vote of the whole Convention to change a rule. Now, }lr. President, my recollection is perfect as to the debate in the ComniiK** on Rules, that took place on the adoption of Rule Sixty, and in aaiwtr to my question — Digitized by' Google Nov. 23, 1878. OP Titfi CONSTITUTIONAL CONVENTION. m Mb. TINKIN. I call the gentleman to order. He has no right to refer to the debates in committee. It iscontrary to parliamentary rules. Thb president. It certainly is out of order to refer to anything that tookplace in the committee. Mb. REYNOLDS. Out of order? As usual! [Laughter.] Thk president. The Chair holds that the point raised by the gentleman from San Francisco, Mr. Reynolds, not well talsen, for the reason staled by the gentleman from San Bernardino. Two thirds of the members present — there being a quorum present — can change a rule after one day's notice of the motion thereof. Mb. murphy. Mr. President: I move that the gentleman from Ban Francisco be laid on the table. Tb« PRESIDENT. Too heavy. [Laughter.] Thi president. The question is: Shall the decision of the Chair stand as the Judgment of ibe Convention? The Chair was sustained. Mb. ROLFE. Mr. President : I ask that the motion to change Rule Two be divided, so that we can vote upon the two propositions. Mb. LARKIX. I move that the question be divided. Thb PRESIDENT. The first question is on the first clause of the rule. Mb. GRACE. Why not say perpetual session from two o'clock until ten o'clock in the evening? I move to amend, so that it shall read from two o'clock to ten o'clock. Tbk PRESIDENT. The motion is not in order now. We are voting on a division of the question. Me. O'SULLIVAN. Mr. President : I move to amend, so as to read : "The Convention shall take a recess each day from twelve o'clock ii., to half-past one o'clock p. m." Lost. Thb PRESI DENT. The question is on the adoption of the first divis- ion of the amendment, that the Convention take a recess from half-past twelve H. to two o'clock p. u. Adopted. Thb PRESIDENT. The question recurs on the second division of the amendment, that the Convention take a recess from five o'clock p. M., or such earlier hou r as the Convention may determ i ne, u n til seven o'clock p.m. Mb. O'SULLIVAN. I have an amendment to offer to that: "The Convention shall take a recess each day from five o'clock p. u. until seven o'clock p. m., and from one o'clock A. M. until eight o'clock a. m. Lost Thb PRESIDENT. The question recurs on the second division of the amendment offered by the gentleman from Alameda. Mb. WILSON. Mr. President: I think it would be a great mistake for this Convention to meet at night. We are coming here to some very important questions. We are n)x>n some very important questions. .Now, I would like to know what time any gentleman will haive for the study and examination of the great questions under discussion. Sup- pose we go into this discussion on corporations, and sit here morning, noon, and night, what time has any gentleman for that reflection and study which each should give to the subject? It would be a great mis- take. This Convention wants to do its business well. Everybody, it seems to me, has been working pretty hard. I think this Convention has been as industrious and hardworking a body as any Convention that ever sat. I do not think any complaint can be made of the progress we have presented. Mb. CAMPBELL. Mr. President: In view of those considerations, with the permission of the Convention, I will withdraw that part of the amendinent. Thb PRESIDENT. There being no objection, the gentleman has leave. COBPORATtOKS. Mr. ESTEE. Mr. President: I move that the Convention now resolve itself into Committee of the Whole, the President in the chair, for the purpose of further considering the report of the Committee on Corporations other than Municipal. Carried. IN COMMITTEE OF THE WHOLE. Thb chairman. The question before the committee is the amend- ments offered to section eighteen of the original report of the Committee on Corporations other than Municipal. SPBBCa OV MB. HOWABO. Mb. HOWARD. Mr. Chairman : I shall endeavor to be concise in what I have to say. I can assure you, sir, that the Committee on Cor- porations, of which I am a member, has been in nowise surprised or moved from their purpose by the flood of vituperation and abuse which has been poured upon us by the salaried officers and pensioned press of the corporation. We anticipated, sir, when we presented this report, that the henchmen of the railroad would sound the bugles of monopoly — hasten to lick absurd pomp and "crook the pregnant ninges of the knee where thrift may follow fawning." Mr. Chairman, this is a question of no ordinary magnitude. The con- trol of the Legislature over corporations has agitated not this country alone, but England also, and their reviews state that the railroads, even in England, are too strong for Parliament, and that they control the Legislature of that country; and the thinking men of Great Britain are endeavoring to frame such rules in Parliament as will relieve the coun- try from their oppressions. And here, sir, it is the same. The corpo- rations rule the country. It is the whisky ring, it is the bank ring, it is the railroad ring, it is the manufacturers' ring, but ring always. Now, sir, for my part, I intend to maintain, as far as I can, the legislation in England and in this country for two centuries in relation to common carriers, and to follovf the judicial sentiment and the decisions of the Supreme Court of the United States. And standing there, sir, with that line and plummet in hand, and not going beyond these soundings, so far as I am concerned, I intend to apply the knil'e of reform to the putrid excrescence of existing abuses. The committee has been assailed for copying provisions from other Constitutions -of other States, and has been charged, even, with mutilat- ing them. It cannot reasonably be objected to the report of the com- mittee, that we have availed ourselves of the wisdom of others. We have reported nothing here but what is to be found in the Constitutions — the latest Constitutions — of other States. If there is any objection to the report, it is that we have not gone far enough, in borrowmg the most stringent provislous — that we have not embraced all the late reforms. They have been briefly summarized in a late number of the International Review. I will read a brief paragraph, that it may be seen that we are not groping in the dark, but that we are availing ourselves of the light and wisdom of others : " Railroad and canal corporations are common carriers and their ways public highways; they shall be chartered under general and uniform (in each State) laws; each shall have the right- to connect with any other, and transfer and receive freight without delay or discrimination, but no corporation shall consolidate, directly or indirectly, with a parallel or competing line. Rates may be regulated and shall never be higher from a given point to another, than from the first point to one more distant, except tne latter be on excursion or commutxtion. Discrimination in rates between individuals or corporations asking to be served is prohib- ited, and railroad officers are not permitted to become privately interested in transportation or furnishing supplies. Common carrying corporations are forbidden to engage in mining or other business. Every corporation is required to have an office in the State (for transfer of stock), and annual reports are required to be made to some State authority." Now, sir, there is not a line in that summary which our report does not present. Now, sir, the report falls short of many of these provisions, because we have not declared that they are public highways, and we have not provided — as the gentleman from San Francisno, Judge Hager, probably correctly contends — that a violation of the law shall work a forieiture of charter. We are dealing with common carriers, and ever since the sub- ject has been known, from the Year Books down, it has been a principle that a common carrier is bound to carry for all, without discrimination, for a just compensation; and all the elementary books, and all the cases, show that the determination of what is a just compensation is a matter for the Legislature, and, in the absence of legislation, for the Courts. I read a brief paragraph from Judge Story, on bailments : " One of the duties of the common carrier is to receive and carry all goods offered for transportation, by any person whatsoever, upon receiv- ing suitable fare." * That, sir, is and always has been the lawl It is crystallized with time. It is the law of the ages. But here it is contended that the cor- poration alone has the right to fix the compensation and to regulate the ireights and fares. If there is any law for that; if there is any book so crude as to maintain such a proposition, I would be much obliged to any gentleman if he would produce it. Sir, upon what conditions does the railroad receive its charter? What is it organized for? Gentlemen say it is created for the private stockholders — for their own ^ain and emolu- ment alone. Such IS not the law. I refer to a recent Illinois case, where this matter is briefly stated. It is the case of the Peoria and Rock Island Railway Company vs. The Coal Valley Mining Company, 68 Illinois, 489. " The primary consideration and principal object in the creation of railroad corporations, and in conferring upon them privileges not enjoyed by private citizens, was the accommodation of the public and the pro- motion of their interests. It was not merely to aggrandize and enrich stockholders. The benefit to be derived by the stockholders was only incidental to accomplishing the primary object." That is the rule, sir. It is a mistake to say, and it is a false principle to assert, that these railroad corporations are for the private cupidity of the private stockholder, alone. Sir, I maintain that the right to ref- late fares and freights in this State by the Legislature, by legislative authority, is, in tne first place, based on contract; that the railroad itself, under the Act of eighteen hundred and sixty-one, agreed and stip- ulated that the Legislature might prescribe and regulate, might alter, might change the rate as to freights and fares, at pleasure' Ijet us look then at the nistor^ of this thing in California. It is not what the gen- tleman from Mann — and I am sorry he is not in his seat — said on yes- terday; it is not true that the corporate powers of this Act were forced upon the stockholders by the State or by the Federal Government. The truth is, as every one knows, that Mr. Stanford and the other corporators in the Central Pacific Company, inspired the Act of eighteen hundred and sixty-one. It was passed on the twentieth of May. In June the^ filed their articles of incorporation. They let no grass grow under their feet. They knocked at the door of the next session of the Federal Legis- lature. They solicited and obtained a grant, on the first of July, of land and money. There was no forcing of them. They were ripe for it and were all too willing to grasp the extended hand of subsidy, of national bounty. Sir, what is Uiat Act? It is said by the President of the Central Pacific Comrany that it is impossible to form a maximum of freights and fares. Why, this very Act, in the fifty-first section, declares a maximum for freights and fares of ten cents per mile for pas- sengers, and fifteen cents per ton for freight, per mile. But the eleventh subdivision of section seventeen declares the power said roads shall have : " The corporation shall have power to regulate the time and manner in which passengers and property shall be transported, and the tolls and compensation to be paid tnerefor, within the limits prescribed by late." This provision gives to the Legislature the power, and the sole power, whenever they see fit, to control this matter. It was a compact; it is a contract ; it is a covenant, by the railroad, and its officers and their minions cannot rail the seal off the bond. It stands there, and will Digitized by VjOOQ IC 500 DEBATES AND PROCEEDINGS Saturday, stand there. Ns}r, more, sir; when the^ appeared in Wasblnfrton, they appeared with the articles of incorporation in one hand and the Act of eighteen hundred and sixty-one in the other, and the grant was made to them upon the conditions that the Legislature of California should control the freights and fares precisely as much as though it had been recited in hoc verha in the Act They were paid for it — richly paid, thrice paid — by the State and Federal Governments and the munici- palities. Now, is it not extraordinary that the President of the Central Pacific Company should come and tell us that the Legislature has no power to reflate the freights and fares; that the company alone can accomplish it; that for the Legislature to attempt it is an act of con- fiscation, a war upou property, and, as its pensioned organs say, "com- ' munism." Mr. Chairman, if it is a war upon property, it is a war which they have created ; if it is communism, it is their communism ; if it is confiscation, it is a confiscation which the incorporators provoked. It is too late for them to come and say that we cannot regulate this matter. It is a degree of effrontery and impudence which would over- whelm any natural person with shame; which would cover him with his own blushes. It is a position which could only come from a person without a soul, and therefore comes from the corporation. And now, sir, in that letter of the President of the Central Pacific Company, which has been so bespattered with praise by his peculiar set — a letter which, beyond a few wise saws and aphorisms which no one disputes, which have no application to the subject in hand — it is a bundle of sophistries from begiuning to end. He answers, when asked to comply with his contract to permit the Legislature to regulate freights and fares: "Oh, that is confiscation, that is a war on property ;" and he pleads that in bar of his contract. If any such plea, in sucn a manner, was ever preferred in any Court, or in any tribunal, or any legislative body, before, I would like to see the antiquarian who would produce it. Now, let us apply this principle to the railroad itself. Suppose some purchaser— for they sell their land on time — suppose the purchaser of one of their odd section^, granted by the United States Government, had fiven his note and his mortgage for the purchase, and that the Central 'acific Company, happening to need a little of the legal coin of the realm, in convention times or in legislative times, should call on this purchaser to comply with his contract, and be was to say, " Why, that IS confiscation; that is communism, to ask me to comply and to pay my mortgage. That is a war on property." Could he not say, as well as Stanford — he would say — " I am the legal owner of that land ; the fee is in me; and don't you know, that, according to your letter, the owner is the man to run the thing? The owner is the man to control it; the owner is the man alone that can manage the affair; and therefore I shall not pay." That would be a personal application of Governor Stanford's own argument; and I think he would" be apt to turn round to the railroad attorney who indited his epistle, and exclaim with Ham- let to Polonius: "All of which, sir, though I most powerfully and potently believe, yet I held it not honesty to have it thus set down." Mr. Chairman, what of this clamor about war upon property? Who is to war on property? It was said by the Secretary of the Treasury the other day, in his speech at Toledo, that two thirds of the voters in this country are property holders. Are the people to war on them- selves? Are they to war on their own property? There is no danger from the people. The people are to be trusted, so far as proi>erty is con- cerned. They pay the taxes in peace, and they bear the flag of the country in war. Then, it is said that regulation is communism. The railroad organ — for the railroad is in all sorts of business, it runs news- papers, it runs steamboats, it speculates in town lots, and it would establish a Methodist Chureh South and a Methodist Church North, if they thought it would pay in this materialistic age — the Record-Union, has denounced this report as communism. It is not long since it denounced Jesus Christ as a communist. Only two or three days ago it denounced the decision of the Supreme Court of the United States in the Elevator case as communism. Well, sir, I think, as the committee are classed in company with Jesus Christ and the Supreme Court of the United States, they can survive all these attacks. [Laughter.] Sir, I question no man's religion. The editor has the right to promulgate his own views of religion in his own way, and he is responsible for it only to his-God; but when the corporation undertakes to set up a press to assail the religion of the country, and to divert in that direc- tion subsidies which have been given it for a railway, it becomes a question of what lawyers call tUtra vira. They are going a little out of the charter. If it is not ultra vira, it is certainly ultra vile. Yet this cry of confiscation, war on property, and communism, raised by the President of the Central Pacific, is in the mouth of all his lieges. It is a common observation, that when the President of the Central Pacific takes snuff, all his pensioned presses and his retainers, in the Convention and out, sneeze along the whole line. Sir, I assume again that the Legislature has the right to regulate this matter of freights and fares, for the reason that it stands on higher ground even than the solemn compact with which this corporation received its charter — it stands, sir, on the principle asserted in England and in this country for over two centuries, that the Legislature has the right to regulate the occupation of common carriers; that for all that time legislation has exercised it, and that the power admits of no con- troversy ; and I maintain, furthermore, that the decisions of the Supreme Court of the United States in the Elevator cases expressly go upon that ground — the principle that the Legislature has the right to regulate the compensation of common carriers, for the reason that wherever their business touches a public interest, it was held in the Elevator cases (and they were not corporations), that the Legislature had the right to regu- late their business and prescribe their coni])en3ation. And let me sav, sir, the opinion of the Supreme Court of the United States, as given in the opinion of Chief Justice Waite, will stand the test of the scrutiny of time and of human talent; and, although I a^ree with most of what the learned gentleman laid on yesterday evening in commendation of lawyers, I want no greater eulogy of lawyers for their patriotism, their attachment to the liberties of the country, to the rights of the people, than the opinion of Chief Justice Waite. It is an opinion that will hud his name down to posterity with that of Sir Edward Coke, that rough old lawyer of liberty, of Marshall, and of Taney. And now, sir, what is that decision? I will ask the Secretary to read two short paragniphi from it, that it mav be seen that I do not seem to misrepresent it. Ml. THORNTON, Assistant Secretary, read as follows: " A ' body politic,' as aptly defined in the preamble of the Conidtii- tion of Massachusetts, is a social compact, by which the whole people covenants with each citizen, and eacn citizen with the whole people, that all shall be governed by certain laws for the common ^ood. 'This does not confer power upon the whole people to control rights which are purely and exclusively private (Thrope vs. the R. and B. Railrosd Company', 27 Vt. 143), hut it does authorize the establishment of laws requiring each citizen to so conduct himself and souse hisown property as not unnecessarily to injure another. This is the very essence of gov- ernment, and has found expression in the maxim, fie vtm tw nl odienum non laxlas. From this source come the police powere, which, as was said by Chief Justice Taney in the License cases (5 How. S83), ' are nothing more nor less than the powers of government inherent in every sovereignly. • • • That is to say • • • the power to govern men and things. Under these powers, the goTeroment legn- lates the conduct of its citizens, one toward another, and the manner in which each shall use his own property, when such regulations become necessary for the public j^ood. In their exercise, it has been customarx in England, from time immemorial, and in this country from iufiisl colonization, to regulate ferries, common carriers, hackmen, bakere, millers, wharfingers, innkeepers, etc., and in so doing to fix a inaximnra of charge to be made for services rendered, accommodations furnished, and articles sold. To this day statutes are to be found in many of the States upon some or all these subjects, and we think it has never jet been successfully contended that such legislation came within anyof tie constitutional prohibitions against interference with private properij. With the fifth amendment in force. Congress, in seventeen hundred and eighty, conferred power upon the City of Washington to regulate • • • the rates of wharf^e at private wharves • • • the sweeping of chimneys, and to fix the rates of fees therefor * * * and the weight and quality of bread (3 Statutes, 587, Section 7), and in eighteen hundred and forty-eight, to make all necessary regulations respecting hackney carriages and the rates of fare of the same, and the rates of hauling by cartmen, wagoners, carmen, and draymen, and the rates of commission of auctioneers. (9 Statutes, 224, Section 2.) " This brings us up to inquire as to the principles upon which this power of regulation rests, in order that we may determine what is within and what without its operative effect. Looking, then, to com- mon law, from whence come the rights which the Constitution protects? We find that when private property is affected with a public interest it ceases to be juris privati only. This was said by Lord Chief Justice Hale, more than two hundrwl ^ears ago, in his treatise ' De Partibus Maris,' and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest^when used in a manner to make it of public conse- quence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he in effect grants to the public an interest in thai use, and must submit to be controlled br the public, for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discon- tinuing the use, but so long as he maintains the use he must submit to control. Enough has already been said to show that when private property is devoted to a public use it is subject to public regulation." Mr. Chairman, it would be presumption in me to attempt to add U> the force of that reafioning. It stands boldly out; it has never been and never can be refuted. The law as stated by the Supreme Court, and the reasons given for it by Chief Justice Waite, will never fail, perish, orbe destroyed. Then, sir, we place our power to regulate these corporations on two grounds : First, upon the contract whicu the corporation cannot go behind without dishonor and disgrace; and, second, upon the gen- eral law of the subject, as announced by the Supreme Court of the United States; and it is quite idle for the President of the Centnl Pacific Railroad to come and say in answer to all this, that control is confiscation. But the President of the railroad goes still further. He says there is only one way in which the State can control his corpora- tion, and that is to purchase it — to buy it out; and he intimntes that he is open to a bid. It leaked out, sir, nearly a year ago, after the sup- posed collapse of the Texas Pacific, that the Central Pacific would pish for the Mississippi, and it also became apparent that if the Sontnen road was completed below the snow line at the distance from the Atlan- tic to the Pacific of only fifteen hundred miles, that the Central Pscife as a trans-continental ' road would become a useless elephant in the hands of the present corporation. It is now said that the railway man- agers are pushing for New Orleans. It is known that they have now on the bar, twenty-three feet of water at the mouth.of the Mississippi, and the engineers confidently expect to obtain thirty; and when that isdone, the great trans-Atlantic transportation, as a matter of expedition, as a matter of cheapness, will give the southern road, by whomsoever owned, the trade and commerce. I trust the State will never purrhase this useless elephant, if it becomes so by the construction of this south- ern road. It should be content, I think, that they shall keep their elephant; that they should feed him, and travel him. and show him. according to their own pleasure — the State of California having the power to regulate the price of the show, [Laughter,] It has been more than surmised that, after the owners of the Central Pacific have extended their road, the Southern Pacific, to tjie Mississippi, they will abandon the northern road to the General Qovemment in payment of their bonds and interest due. The Mississippi has been wdl termed a t^ Nov. 23, 1878. OF THE CONSTITUTIONAL CONVENTION. 501 great inland aes. If the depth of water on the bar anticipated is attained, fiiBt-claas ocean steamers loaded with merchandise can ascend as high as Memphis, and return with cargoes of cotton and Western produce. It is easy to see that such a result will revolutionize the com- merce of half the continent The managers of the Central Pacific exhibit sagacity in preparing for that result. The result of the decision of the Supreme Court of the United Slates is that whenever a use so affects the public interest and the public business that the public becomes interested in it, then the Legislature has the right to control the use. Now, sir, I will read from the book which the gentleman (Mr. Edger- ton), referred to on last evening— Part two of the Internal Commerce, the chief, Niramo, of that division of the bureau, who discusses the whole question of railways and freights and fares, and discusses it with afflu- ence of learning which has never been bestowed upon it by any one else, and he gives the amount of the internal commerce of the conntiy. It never has been doubted that Congress, by legislation, had the right to control our foreign commerce, and yet the internal commerce is six- teen times larger — and it is denied that we can control our own internal commerce. Sir, I dispose of that sophistry by reading this : " The value of the commodities embraced in our foreif;n commerce, and the estimated value of commodities transported on railroads, are as follows : Talneof Imparts and exports (foreign commeree) »t,121,63*,227 Kstimated ralne of commodillM tmnsported on rail (Internal com- merce) .18,000,000,000 " It appears from these estimates that the value of the railroads of the country is about twenty-three times the value of the shipping engaged in our foreign trade, and that the value of our internal commerce or rail- roads is about sixteen times the value of our foreign commerce," and yet gentlemen tell us that this vast internal commerce, this vast necessity, this great absorbing and overwhelming interest of the country, is beyond the reach of legislation. It is said by the Railroad Commission of California, and bjr Mr. Adams, and by everybody acquainted with the subject, that the railw^ is a practical monopoly. It is a practical monopoly because it runs off, wherever established, all other means of transportation. It is under the control of a few men ; on the Atlantic side of some four, on this side at most, I believe, of some six, and those men have a right, or at all events they exercise the power by controlling the price of transportation. Review, a couple of years ago, that whether the manufacturer or other producer can market at a particular place depends upon the rates of charges of the railroad. I will ask the Secretary to be kind enough to read a paragraph that I have marked, from the pen of Mr. Grosvenor, a distinguished railroad man, published in eighteen hundred and seventy- three: " Three men meet in a room in New York. They are not called kings, wear no crowns, and bear no scepters. They merely represent tnmk lines of railway from the Mississippi to New York. Other points settled, one says, 'As to the grain rate; shall we make it fifty from Chicago?' ' Agreed ; crop are heavy, and we shall have enough to do.' "Business finished, the three enjoy sundry bottles of good wine, ^e daily papers presently announce that ' the trunk lines have agreed upon a schedule of^rates for freight, which is, in effect, a triUing increase; on grain, from forty-five to fifty cents from Chicago to New York, with rates to other points in the'usual proportion.' The conversation was insignificant, the increase 'trifling.' But to the farmers of the North- west, it means that the will of three men has taken over thirty millions from the cash value of their products for that year, and five hundred millions from the actual value of their farms. The conversation is imaginary, but the startling facts upon which it is based are terribly real, as Western farmers have learned. The few men who control the great railway lines have it in their power to strip Western agriculture of all its earnings — not after the manner of ancient highwaymen, by high- handed defiance of society and law, the rush of swift steeds, the clash of steel, and the stern 'stand and deliver!' The bandits of modern civilization, who enrich themselves by the plunder of others, come with chests full of charters; Judges are their friends, if not their tools; and they wield no weapon more alarming than the little pencil with which they calculate differences of rate, apparently so insignificant that public opinion wonders why the farmer should complain about such trifles. "An increase of five cents per one hundred pounds in the cost of trans- portation from Western States to New York or other Eastern markets, is equivalent to'three cents a bushel on wheat, two cents and eight tenths on rye and com, one cent and six tenths a bushel on oats, and (allowing for convenience, forty-nine pounds to the bushel of barley and buck- wheat, laws of different States varying widely) two cents and four tenths to the bushel of barley or buckwheat. At these rates, supposing the change in rates to affect the whole crop of all the Northwestern States alike, the loss in value to the farmer upon the crop of eighteen hundred and seventy'-one, as given in the latest agricultural report, may be thus stated: Wheat Com Hay 0»to„ Kye Barley Buckwheat .' Quantity Produced. 149,600,000 bushels 690,900,000 bDihela 10,916,000 tone 153,789,000 boahels «,626,00U boahels 10,019,000 buehrls 1,694,00U boahels Total.. Loee In Value. »1,488,000 19,344,000 10,915,000 2,400,000 185,000 245,000 41,000 »37,679,000 "This loss of over thirty-seven million dollars in the selling price of the products of forty-four million three hundred and seventy-five thousand one hundred acres cultivated, is about eighty-four cents an acre. It is a loss, not of valuation, but of the yearly income or profit upon which valuation is based. The actual value of land for farming purposes is that sum upon which the net profit of the yearly crop will yield a fair interest. At seven per cent interest, whatever reduces the net profits seventy cents per acre, reduces the actual value of the land ten dollars per acre. Hence the loss of thirty-seven million six hun- dred and seventy-nine thousand dollars, in the yearly income from certain lands, is equivalent to a loss of five hundred and thirty-eight million two hundred and seventy-one thousand dollars in their actual value. Such is the result of a ' trifling* change of five cents per cental in rates of freight!" From these facts, we learn what is the condition of the farmers in this country. We see that they cannot, when transportation is at such a figure is at present, send their produce with any profit to market; and if the five cents per bushel increase in grain produces that result in the West, what must it effect here, where it is changed and increased, from time to time, twenty-five, and, in some instances, even fifty per cent. I shall also ask the Secretary to read from the recent report of the United States Senate Committee of the Forty-first Congress, a single paragragh: " In the matter of taxation, there are to-day four men, representing the four great trunk lines between Chicago and New York, who possess, and who not unfrequently exercise, powers which the Congress of the United States would not venture to assert. The^ may at any time, and for any reason satisfactory to themselves, by a single stroke of the pen, reduce the value of property in this country by hundreds of millions of dollars. An additional charge of five cents per bushel on the transpor- tation of cereals would have been equivalent to a tax of forty-five mil- lions of dollars on the crop of eighteen hundred and seventy-three. No Congress would dare exercise so vast a power, except upon a necessity of the most iniiierative nature; and yet these gentlemen exercise it whenever it suits their supreme will and pleasure, without explanation or apology. With the rapid and inevitable progress of combination and consolidation, these colossal organizations are daily becoming stronger and more imperious." Now, eentlemen of the Convention, you observe the power, aggres- sion, and oppressions of these corporations, and can it he said that we have no control by legislation; that we are powerless to prolept the country ? I deny the premises and the conclusion. It has no founda- tion. The proposition is monstrous. Be sure of one thing: the people here in this Convention may be baffled now, as they have been oaflled and betrayed for the last six years, but this cause cannot fail . It is the cause of the people; it is the cause of the country; and justice and power are witli the millions. This question for the next ten years will dominate all others in this country, and any party that places itself in the route of the people to reform will be shivered like a staff at the fountain ; it will be wiped out and will pass into oblivion. For my part, I have been a tolerably strict party man. I was reared in the school of Jefferson ; I have voted for every Democratic nominee for President from the reelection of General Jackson to the nomination, and I like to have said the election — though I would not have got far wrong if I had — of Mr. Tilden; but I would not hesitate to trample down all party allegi- ance in the cause of this party of reform. The time has come when the running of party conventions of both political parties b^ these corpora- tions must cease. For one I shall vote for no Demooratiq railroad man. I do not acknowledge the democracy of any such white blackbird. Heretofore, the managers of the railroad have controlled the political organization and conventions of both parties. On each ticket were their own instruments, and it was immaterial to them which succeeded. A writer in the North" American Review, two or three years since, declared the railway no longer purchased the votes of Senators in detail, but furnished funds to elect their man, and had title to him and all his votes for his term. Of late the Central Pacific has fallen in with that policy; elects their man, and sends him to Washington with a collar around his neck, on which is inscribed in golden letters " Central Pacific," so that if he is lost or strays he may be recaptured and returned to his lawful owners. I trust that in this Convention we shall inaugurate measures of reform which will put an end to this national infamy and disgrace. "There are suggested two means of control, two remedies for this evil. One is to leave it absolutely to the liCgislature; the other is to take it out of legislative control and place it in the hands of a Commission. The latter is the course which the committee has recommended. I shall indulge in no reflections upon the Legislature. I have not seen it more tlian once or twice for the last ten years. I only know it from public report and public disgust, and thus judging it, I say it is an unfit place, morally, for the repository of this power. It is objected, sir, that we have no right to delegate this function to a Commission. I so under- stood the learned gentleman from Marin, yesterday — that it is giving to one body legislative, judicial, and executive power. Well, sir, suppose it is. Have we not the right in this Convention to do so? Is there anything over us but the 0)nstitution of the United States and natural justice? And does that impede us? Everybody knows that the Con- stitution of the United States has no application to this subject. But it is not true that any sound objection can be interposed to it on the ground that the Commission would possess legislative, executive, and judicial functions. There is nothing in that objection. It has been decided not only by the Supreme Court of this State, but by the Supreme Courts of various other States, that the delegation of powers like these is perfectly regular and constitutional. It was decided in this Stale, first, in con- struing the powers of the Boards of Supervisors, not a constitutional body, but a mere creature of the statute, and the Cotu-ts held there w«8 Digitized by VjOOQIC 502 DEBATES AND PROCEEDINGS Monday, no objection to it; that it exerciaes legislative, judicial, and executive powers, and in a more recent case, the Court has discussed the principle more at large, goi|ig over the decisions of the Supreme Court of the State of Illinois and other Courts, in which they hold that to dele^te powers like these is perfectly regular and consistent with republican government, and free from any objection of any character. I refer to the decision in the case of the Savings and Loan Society vs. Austin, 46 Cal., and that case, so far as this principle is concerned, is unreversed, is unqualified, is unaffected by any other decision. I will ask the Secre- tary to read for roe a couple of short paragraphs : " That the Legislature cannot, in a general sense, delegate its legisla- tive authority— its power to enact laws — is a proposition which, at this day, no one will question or deny. But, whilst the proposition is undoubtedly true in its more general sense, it cannot be mamtained in its most restricted sense. As was observed by Mr. Justice Caton, in delivering the opinion of the Supreme Court of Illinois, in the People vs. Beynolds,5 Gilman, 12 : ' We may well admit that the Legislature cannot delegate its eeneral legislative authority; still it may authorize many things to be done by others which it might properly do itself. All power possessed by the Legislature is delegated to it by the people, and yet few will be found to insist that whatever a Legislature may do, it shall do, or else it shall go undone. To establish such a principle in a large State would be almost to destroy the government. The Legislature may gratit ferry privileges, or it ma.y lay out roads, and specify their metes and bounds; and yet who will den^ that it may delegate this power to others, either by general or special lawsT So, also, it may pass all the laws re<]|uiBite for the government of a particular city, or township, or school district, and who will doubt the propriety of its authorizing this to be done by the people within limits of the city, town, or district, by their local representatives, or even directly? This is making laws, and laws, too, of as binding efficacy as if passed directly by the Legislature. They are dependent upon the Legislature for their vitality and force through the act of incorporation or law under and by virtue of which they are made. Necessarily, regarding many things, especially affect- ing local or individual interests, the Legislature may either act medi- ately or immediately. We see, then, that while the Legislature may not divest itself of its proper functions, or delegate its general legislative authority, it may still authorize others to do those things which it might properly, yet cannot understaudingly or aec«mber ■ecoiid, eighteen hundred and eeventy-elglit, at two o'clock p. M. Mk. west. Mr. President: I call for a division of the question — first, on theproposition to have evening sessions; and, second, that we adjourn from Wednesday until Monday. Mr. larkin. I am in favor of the first proposition, and not the second. Mr. AYERS. While I am fully in favor of the first proposition, I am opposed to an adjournment for that length of time. TBI PRESIDENT. The Chair is of the opinion that the question is not capable of division. Mr. AYERS. Then I shall have to vote against the whole resolution. Mr. larkin. Mr. President: The majority of the members of the Convention cannot get home and stay any length of time in the time specified in the resolution. Those that have railroad connections may fp home, and many of the members have just come from home. I think it is time enough to adjourn on ThanKsgiving day. So far as I am concerned, I desire to proceed with the work. We may have some- thing else to do for the balance of our lives besides attending the Con- stitutional Convention. Ma. BROWN. Mr. President: It appears to me that it would be decidedly wrong to a4Journ and lose time as wished for in that resolu- tion. Now, it is evident that the people of this State are looking to this body, and they expect this Convention to attend to business carefully, and they know full well — as well as this body knows— that it is almost a matter of impossibility to get through with the business in the proper time. It is very gratifying to see gentlemen anxious to go home and give thanks with their families, and open their hearts large as they ought to be; but it is not necessary. Now, to conclude that we should go to ac^ouming when there is so much business before this body, it appears to me that it must show itself to every mind as being decidedly improper. Tbat it will make this Convention appear to disadvantage before the people of this State, and they will not approve of it. I hope tbat the resolution will not be adopted. Mr. ESTEE. Mr. President: I hope that the resolution will be adopted, and I am free to say to this committee, so far as I am concerned, that I am willing U> assume the responsibility with my constituents of adjourning over Thanksgiving day. An adjournment merely over that day, without allowing us to go home to our friends, amounts to nothing at all. With many of us it is a time-honored practice to be at home with our families on Thanksgiving day. It is 1m day of the year. It is made a dita non by the laws of this State. No Courts are held on that day, and when gentlemen get up here and attempt to tell us that our constituents will not approve of our adjourning over Thanksgiving day, I think they mistake the temper of the people of this State. I think' I work as many hours as any gentleman on this floor, but I do not believe that the people expect us to work at times when under the laws and under the customs of the country we are expected to adjouriL Koir, what will be the result? Mr. LARKIN. I mode no objection to adjourning on Thankagiving day. Mr. ESTEE. Unless we adjourn beyond that day we cannot go home. Mr. HUESTIS. The gentleman must be aware that it is impossible for some of us even to get home on the time allotted in the resolution. Mr. ESTEE. It is true that there are a few members of this Conven- tion who cannot reach home. It is a misfortune. It is to be very much regretted, but let me say. tbat a very large majority of this Convention can reach home, and they want to go home. If yon adjourn over for Thanksgiving day, you will adjourn until two o'clock, and yon will only have the half day of Friday and a part of Saturday. If von idoiit the resolution you will have evening sessions, and the people will be perfectly satisfied with what we do. 1 sincerely hope that this Conven- tion will adopt the resolution. Mr. white. Mr. President : I trust that the Convention will not adjourn. We can work on Friday and Saturday. I suppose everybody is willing to adjourn Thursday. But if this resolution is adopted the arrangement will be that we will really lose four or five days, t sm willing to lose Thankagiving day, but by this resolution we will lose four days. Ma. CAPLES. Mr. President: I am opposed to the resolution. We have already spent something more than half of the time allotted to us to make a Constitution, and we have performed but very little. Wehtve merely made a beginning; and if it be the intention and the desire of this Convention to perform tbat function for which they were sent here, it certainly does seem to me that we should proceed with all di^tch. Now, the excuse ofi°ered by the gentleman for this adjournment of four or five days is that it is Thanksgiving. Now, Mr. President, we have very little to be thankful for, so far as anvthing that has been sccom- plished in this Convention is concerned, f sympathise with gentlemen who desire to go home, but they should have thought of that neoe«tT before they took upon themselves the public trust that they have assumed in this body. I hold them to the bond, at least so far as my vote can go; to the faithful performance of that duty that they have assumed in com- ing here. I do sincerely hope that in view of the absolute necessity that exists that we shall refuse this adjournment. Mb. BARTON. Mr. President : Over half of the time has been spent, let us say, and it has been said that nothing has been done. 1 deny the charge. This body has been the hardest worked body, deliberative and legislative in its character, that has ever sat in the State of California. I am in favor of the adoption of the resolution so far as I am concerned. I deny that we make haste by overworking ourselves. There has never been a Legislature, even in the State of California, where during the holidays members did not go home, those that could get to their homn, and enjoy the holidays with their families, and the people never laid anything' in regard to that. They were perfectly willing that these hard worked men should go home. I shall vote for the resolution, and hope it will be adopted. Mb. cross. Mr. President : It seems to me that this question of the adjournment is not thoroughly understood. Some of tne gentlemen who live at a great distance from the Slate Capitol do not understand the programme. We who live near by will be able to p to our homes, and we have a programme. First let me say that this State will lose nothing bv the adjournment, as during that time, by law, we draw no salary, 'fhese gentlemen who live near here ore to invite such mem- bers of the Convention who live at a distance to go home with them and spend Thanksgiving day with them; eat Thanksgiving day dinners. They will be treated so well that they will not feel like work again until about Monday. Take these matters into consideration, and vote for the resolution. Mb. HILBORN. Mr. President: I feel called upon to oppoee this resolution. We must not follow this infamous Legislature that we have here each two years. The thing that has brought the most discredit upon the Legislature is their adjournments for the holidays. When we come to the Legislative Department we propose to change the time of the meeting of the Legislature, so that we can get rid of this inftmy. Now hero is a proposition that puts this bodjf on the same plane with these infamous Legislatures. We propose to lose just about as much time as these corrupt Legislatures. I think we ought to set a better example, and I am opposed to the resolution. Mr. KLEINE. Mr. President: I move that the professional men be left here to make their speeches. Mr. McCALLUM. Mr. President: I wish to- call attention to one thing. If we adjourn for one day. Thanksgiving day, the State will lose one day's pay. If we adjourn from Wednesday until Monday, which is over three days, the State will lose nothing whatever. From Wednes- day until Monday will be over three days, and the law says that if « adjourn over three days there is no compensation whatever. It is dif- ferent in this case from the Legislature. They were always paid for the time. On the other side, the members lose nothing, as the time of this aidjoumment would be put in at the end of the one hundred days, so it is a case where there is no loss on either side. I shall vote for the reso- lution. Mb. WHITE. Mr. President: I move to amend so as to adjourn until the first Monday in January, because we have got Christmaa Ma other holidays coming. Mr. TULLY. I second the motion. The amendment was lost. Tbe SECRETARY read the resolution. Thb PRESIDENT. The liuestion is on the adoption of the reso- lution. Mr. larkin. I wish to correct the^ gentleman bom Alanwds. This Convention held that they were not unjaer^a law. Digitized by niwp^a law. t \jOogle Nov. 25, 1878. OF THE CONSTITUTIONAL CONVENTION. 605 The ayes and noes were demanded by Meosra. Larkin, Huestis, Dean, White, and Evey. The roll was called, and the resolution adopted by the following Totc: Bany, ATIS. Grace, Overton, Barton, Gregg, Pulliam, Belcher, Hamaon, Scbomp, Boggs, Harvey, Shatter, Boocher, Heiskell, Shurtleff, Burt, Hughey, Stedraan, Campbell, Johnson, Steele, Chapman, Keyes, Stevenson, Charles, Larkin, Stuart, Cross, Lindow, Sweasey, Crouch, Mansfield, Swenson, Doyle, Martin, of Santa Cru* , Thompson, VanVoorhies, Edgerton, McCallum, Estee, McComas, Walker, of Tuolumne, Estey, McConnell, Weller, Farrell, Moffat, Wellin, Fawcett, Moreland, Wilson, of Tehama, Filcher, Morse, Wilson, of Ist District, Garrey, Noel, Winans, Gorman, Ohleyer, XOES. Mr. President— «0. Andrews, Herrington, Rolfe, Ayers, Hilbom, Smith, of 4th District, Beerstecher, Holmes, Smith, of Ban Francisco, Bell, Howard, Soule, Black mer. Huestis, Swing, Brown, Kelley, Tinnin, Caples. Kleine, Towusend, Cowden, liampeon. TuUy, Davis, Larue, Turner, Dean, liewis. Vacquerel, Walker, of Marin, Dowling, McCoy, Dudley, of Solano, Kason, Waters, Dunlap, O'DonneU, Webster, Eagon, O'Sullivan, West, Evey, Porter, Wickes, Finney, Reed, White, Freeman, Reynolds, Wyatt-55. Freud, Rhodes, Hale, Ringgold, Mk. larkin. I change my vote from " no " to " aye," for the pur- pose of giving notice of a motion to reconsider. I now give notice toat, on to-morrow, I will move to reconsider the vote by which the resolu- tion was adopted. Me- GRACE. Does that apply to a night session this evening? Thb PRESIDENT. Yes, sir. TIXT-BOOKS. Mr. O'Sullivan offered the following resolution : Saolvtd^ That the Superintendent of State Printing be reqneatod to furnish to this Convention an estimate of ttio cost of composition, paper, and binding of a series of KeaiierB, such as the Pariflc Coast Readers, and McGuffey's Series of Readen, the work to be done by the State, under Its present system. Tliat he be requested to eatimate the cost of the first edition of one thousand, and alio the cost of each suc- ceeding thousand. Ma. LARKIN. I move to lay the resolution on the table. The motiou prevailed, on a division, by a vote of 57 ayes to 49 noes. Mk. ESTEE. Mr. President: I move that the Convention now resolve itself into Committee of the Whole, the President in the chair, for the purpose of further considering the report of the Committee on Corporations other than Municipal. Carried. IN COMMITTEE OF THE WHOLE. The CHAIRMAN. Section eighteen and amendments were under consideration when the committee rose. The gentleman from Los Angeles, Mr. Howard, bas the floor. SPIICB or IIB. HOWABD (CONCLCDEO). Mb. HOWARD. Mr; Chairman : Before I pass to the consideration of what I have to say in relation to the nineteenth and twentieth sec- tions, I propose to allude to a point made by the gentleman from Sacra- mento, on the eighteenth section of this report. He argues that the eighteenth section is unconstitutional, because it attempts to regulate foreign commerce. I do not agree with that position. There is no attempt in the report to regulate foreign commerce. The whole pur- pose is to regulate the internal commerce of the State and the rivers and harbors of the State, for which State legislation and State government is entirely competent. I have not time, sir, to analyze the decisions of the Supreme Court of the United States; that has been done in a recent work by Mr. Pomeroy, in a very able manner, and which is a book that has commended itself to the approbation of the profession. After giving his close analysis of the cases, he says: "So far as the decisions of the ultimate tribunal upon constitutional interpretation now stand, the following propositions seem to be estab- lished: First, the several States have power to pass laws regulating the internal police of their own territories, which territories include navi- gable rivers and harbors, as well as unnavigable streams, and the land itself. These police measures are not, in any true sense of the terra, regulations of commerce, although they may sometimes have direct reference to shipping, to the condition of harbors, and other instruments by which oommerce is carried on, or to the commodities themselves 64 which are the objects of interchange or traffic. They are simply a part of the general system by which each State endeavors to protect the good morals, lives, health, persons, and property of its inhabitants." The decisions of the Supreme Court of the United States bear him out fully.to the effect that the State, through its Legislature, has the right to control its rivers, its harbors, its streams, its internsl commerce. It is extraordinary that all the advocates of monopoly on this floor find it necessary to trample down all the rights and powers of the State as they are acknowledged and enforced by the decisions of the Supreme Court of the United States. This pooling of freights and fares, which the report forbids, between railroads and steamers, wlien only one party does the carrying, for the purposes of enhancing prices and running off competition, is a most flagitious abuse which calls loudly for re/orm. It exists to a greater or less extent throughout tlie Union". Mr. Nimmo, in his report, gives the names of more than twenty railways and steamers in the Southern States, who are united in an extended combination for this purpose. The ring formed .by the Central Pacific, the Union Pacific, and the Pacific Mail Steamship Company for this purpose, is well understood by the people of California. It is confessedly an effort to prevent tlie New York and San Francisco merchants from shipping by the way of Cape Horn. There is a contract between them by which the steamers, as a consideration for allowing the railroad managers to regulate their freighU and fares, receives a bonus for every ton of freight and each passenger, which is said to amount to between six hundred thousand and seven hundred thousand dollars a year. Such is the tax which this combina- tion imposes upon the people, production, and commerce of California. And, now, sir, I proceed to say a word on the pending amendment to this eighteenth section. Mr. Clerk, I will ask you to read the amend- ment offered by the gentleman from Alameda, Mr. Campbell : " And whenever a railroad corporation shall, fur the purpose of competing with any railroad constructed, or in process of construction, lower its rates for transportation of freight from one point to another, it shall not again rai.se its rates without tne consent of governmental authority in which shall be vested the power to regulate fares and freights on rail- roads, nor shall such other railroad raise Its original rates without sim- ilar consent." Now, sir, I have a word to say in regard to what fell from the gentle- man from Marlu, Mr. Shafter, the other day, in relation to this subject. He says, substantially, that this proposition is offered to enable the people of Los Angeles to go back and to maintain the standard of freights and fares tbat existed formerly. That is quite a mistake. He alleges the people of Los Angeles have asked here for action of that sort. That is equally unfounded. The people of Los Angeles have asked for nothing. My colleague has offered an amendment which covers the whole case, without any particular reference to Los Angeles. It is the case of Sacramento; it is the case of Marysville; it is the case of Santa CruE ; it is the case of Monterey ; it is the case of Santa Barbara ; it is the case of Ventura; and the case of San Diego. It seems to me that the gentleman is quite gratuitous when he arraigns here the people of - Los Angeles as wanting something in this Constitution for their own particular and peculiar benefit. Again, sir, the gentleman treats this subject as though it were a proposition to engraft something in the Con- stitution which was improper. Not only that, sir, he assumes that the people of Los Angeles are making a false clamor. In other words, he seems to say that the railroad served them right when it refused to obey the law of the country, and afl3icted them with the discrimination which the Railroad Commissioners condemn. That it may appear that the Commissioners have condemned it, I shall ask the Secretary to read from their report a single paragraph which I have marked : "Quite recently, the active competition between the railroad and steamer lines carrying between San Francisco and Los Angeles resulted in an arrangement lor pooling and dividing the earnings of the two lines, at rates of freight, etc, to be agreed on. The Southern Pacific Railroad not having been completed to Los Angeles at the time of the passage of the Act of April thirti, eighteen hundre^ and seventy-six, and no tariff of freight or fare adopted over it, the railroad rate between the two cities was not affected by that Act, and remained within the control of the company. Merchandise going by sea had, before Jan- uary first, eighteen, hundred and seventy-six, been taken from steamers' decks (by lighters, via Wilmington, and over the wharf at Santa Monica), and delivered at Los Angeles by the railroad company at schedule rate. Since the pooling arrangement, this rate has been increased, on the suggestion that no charge was then made for the light- erage in the one case or wharfage in the other, and that the increase consists of only a reasonable charge for these two independent services. The merchants of Los Angeles regard this enhancement of the price of transportation as a violation of the sixth section of chapter first of the Act, and we are of the opinion that they are right. At all events, the principle is too hnportant to be allowed to rest on the decision of the railroad company alone. We have, therefore, formally requested a return to the former tariff by the company, and if its directors persist In refusing this, shall feel it our duty to institute legal proceedings to enforce It." Thus, Mr. President, you will see that the Commissioners say that this Act was illegal, and that they have directed proceedings, or would direct proceedings to be instituted to correct this evil; in other words, to recover the penalties imposed by this Act. They did so direct, but, ^fore the suits could be brought, the railroad came here, passed the Hart bill, as everybody knows, and repealed the Act, and, of course, repealed the penalties and dismissed all the suits that accrued under them. The Act briefly was this : " I( shall not be lawful for any of said corporations to increase any rates of freight or passage, or to raise the classification of any species of goods, or to change any rule or instruc- tion to employes, in such a manner as to increase the cost of transporta- tion over and above the rates charged in such tariff, or in use on the 606 DEBATES AND PROCEEDINGS Monday, first day of January, eighteen hundred and lerenty-Biz; provided, neT- erthelen, that any such railroad company may issue excursion tickets at reduced rates, for special trains betvecn certain places and for a fixed time." And tlie Act denounces heavy penalties, denounces that it is extortion, declares it unlawful discrimination, and makes i^a crime, and the gentleman from Marin will allow me to express some astonish- ment that a member of the bar of his prominence sliould stand up here and defend crime, and say that when the railroad commits a crime against the people of a particular locality, that it served them right, and they have no reason to complain. It strikes me that it is an extraordi- nary position for any friend of the railroad and any member of the bar to occupy on this floor. Now, sir, I understand him to justify the rail- road in its combination with the steamer for the purpose of running off competition. If that is his position, sir, I disagree with him altogether. I maintain there is no law for such a position ; I say, furthermore, that it is a violation of the Act of eighteen hundred and seventy-six. It is not a case of the railroad endeavoring, by a legitimate running of its own cars, and by the competition created by its own-cars, to keep down rates or run off an opposition line of steamers, but it is a case of a railroad buying up steamers, a railroad leasing steamers, or of a railroad combining with steamers for the purpose of buying up wharves, fronts on the ocean, for the purpose of monopolizing the ocean and prevent- ing all competition by sea. If such a practice can be mdulged in and defended, then the ocean ceases to become a highway of commerce and the highway of nations. I maintain, therefore, that this amendment is necessary, is proper, and that with it we take from the railroad the means of purchasing and owning steamers, and its absolute control of all transportation without competition, and that there can be no compe- tition with the railway whatever; if it is not adopted, and this is the language substantially of the Railroad Commission, and it is the lan- guage of experience, for the Commission says there is no competition, and none can be had with the railroad except by the ocean ; and this the railroad has assumed, and is assuming sole control, and docs control the steamers and transportation of the ocean — takes property on sea and land. It has a practical monopoly of all transportation in California. If we cannot protect ourselves against this abuse — if it is not the pur- pose of this Convention to arrest this abuse, we had better adjourn sine die, and go home. I read from a case the other day, which I will again refer to. It states a principle of law in relation to this matter which is sound. It decides that a railroad, being organized for the pur- pose of transportation by rail, has no right to own or lease steamers; nas no right to combine with steamers; has no legal right to do any thing but to transport overland by rail. That also is the law, as stated by Mr. Brice in his work on ultra vires, in which he collects the authori- ties fully, and the decisions of the Supreme Court of the United States. I will read it : "Where two separate corporations are created to make railroads, they had no right to unite and conduct their business under one manage- ment, nor had they a right to establish a steamboat line to run in con- nection with the railroads." There is no doubt that a violation of the above principles is such a willful misuser as works a forfeiture of charter. There are several other English cases to the same effect. Does the learned gentleman (Vom Marin intend to defend this practice by the railroads of this State of buying, of owning, steamers, of monopolising the ocean, and thrusting all competition whatever away? I take it that he does not, because he told us that he was in favor of controlling railways by reasonable regu- lation. But what does he conceive to be reasonable regulation in con- nection with this subject? Does he conceive it to be reasonable for a railway thus to put competition out of the way, and thus to monopolize the rivers and tne ocean, and thus to hold society in the iron grasp of one monopoly ? Now, sir, as the railroad is a corporation of our own creation, we have a right at least to put our hands upon the railroad, and say, " You shall not practice this abuse." And it is for that reason that the section is eminently necessary and proper, for the result of that practice is clear. Passage is so kept up on the steamer and on the railroad, by this com- bination with and the regulation between the two, that the passage is so high on the overland train for overland emigrants that it is very seldom that any laborer has saved up money enough to pay his way to this State. I understand that the passage on the overland train from New York to San Francisco or Sacramento is nearly seventy dollars ; between sixty and seventy; while the ocean steamers, over which the President of the Central Pacific Company presides, brings Chinamen laborers here for about twenty dollars, and therefore it is that the Federal Govern- ment has subsidized the railroad to employ Chinameu ; it has subsidized the steamer to bring them, and by arrangement between the two, it holds fares at such a rate that the Chinamen preoccupy the ground. That may be public policy, that may be right to the laborer, that may be right to commerce; but if it is I mistake justice, and I mistake the sentiment of the people of this State. The gentleman from Sacramento defends discrimination by the railroad; he defends the discrimination against which the nineteenth section is aimed; that is, the discrimination as to persons and places, and he reads from the one hundred and sixty-seventh page of Mr. Nimmo, from the report of the Bureau of Internal Com- merce. He read a paragraph, but he omits to read the paragraph which precedes it. I shall read it for him , and he will remember that Alger- non Sidney, when he was on his trial, said : " If you begin at one place vou may prove atheism by the Bible, because in one place it says, ' thare is no God ; ' but if you read further you will find it says ' the fool in his heart hath said there is no God.' " I will ask the Secretary to read that paragraph: " The discrimination complained of in the Western States relates chiefly to ' local rates,' which are the proper subjects of inquiry and of relief by State authorities. Already the question has received the earnest atten- tion of the Legislatures, of the Courts of justice, of Railroad Commis- sioners, and of others whose attention has been called to the subject, fiom duty, from interest, or fW>m the force of personal inclination. Manjr unjust discriminations with respect to freight rates have undoubtedly been made ignorantly by managers of railroads, from the fact that tbejr had no knowledge of the cost of performing the various classes of serr- ice of the roads intrusted to their care. A few able men in this countr? have investigated the economy of transport by rail, and other important conditions which necessarily exert an intluenoe in determining freij^lit charges. These men have pursued the subject in a thoroughly scientific manner, and have brought to the task great ability and patient research. It is their opinion that many freight tariffs have been framed by nil- road managers in violation of economic and commercial principles. This was especially the case during the first twenty-five or thirty yean of the history of railroads." Now, sir, m every paragraph (and I might read others in which Mr. Nimmo speaks of this discrimination) he condemns, in the most marked terms, discrimination between persons, discrimination between places. And he declares that discrimination between places is of the most mis- chievous character — is a violation of all law and of all justice. He san: "For several years railroads have discriminated to such sn extent against the commercial and industrial enterprises of certain cities in thii country, that fears have been entertained ol^the practical confiscstionot hundredsof millions of capital invested in productive enterprises. Bnch a result is not only to be deprecated, but if possible* to be prerented. if such destruction of values should be brought about, either by the voinn- tary or involuntary action of railroad managers, a doubt might arise in the public mind as to the security of property in all commercial cities." And therefore it is that this lieneficent thing which this cofiperatiTe society — as it is termed by the President, this cooperative sDcietv, I believe he calls it — has been and is now discriminatmg between placet in a most unauthorized and unjustifiable manner, according to all notions of right and by the rules of oommerce. And yet the gentleman from Sacramento sees something in this to admire. It was suggested the other day, rather than stated, that Congress had something to do with the regulation of these freights and fares on the Central Paofic It was intimated, I think by the learned Chairman of the Judiciarr Committee (Mr. Wilson), though he approached it very gingerly, and rebounded from it with commendable prudence. The fact is, that Con- gress has nothing to do with the freights and fares of the Pacific Sti\- road, because it nas agreed, in accepting the Act of eighteen hundred and sixty -one, and making a grant of subsidy of lana and money ta these incorporators on the faith of that Act; it has agreed to the seven- teenth section of that Act, which says that the State, and the Slate alone, shall regulate the freights and fares; and I am informed that the railroad was sharp-sighted enough to see it, and that they introduced a bill into the Legislature to change it; that the bill passed both houtea of the Legislature, and was vetoed by Governor Low, on the expcts grounds that the Slate had that right and ought to preserve it All that Congress can do on the subject would be to regulate the national fares connected with the road as to the matter of the transportation of the mails, troops, and military stores, and the telegraph, and there iu power ceases; for, in the Act of Congress, which gives to Congress the right to alter or amend or repeal the laws of Congress, that right is con- fined entirely and exclusively to the subsidy granted under Ijie .Act of Congress. Therefore it is that Congress has no power on the subject, but it is exclusively a matter for State regulation. It has no power except that it might, with regard to this State, as it can with regard to every State in the Union, regulate freights and fares as to inter-Stale commerce. It might pass a Taw regulating freights and fares, but not in consequence of the Act of Congress of eighteen hundred and sixtr- two, but in the exereise of its power under the Federal Constitution, to regulate commerce between the States. That is the whole extent of its power; and I imagine that no lawyer who looks at it seriously will maintain the reverse, Mr. Chairman, if we do not create a (Commission for the regulation of freights and fares, we are bound to deal with what the Act of eighteen hundred and sixty -one declares we may control and may r^:ulate, the maximum of freights and fares. I understand the gentleman from Marin to say that we ought not to regulate freights and fares by s Com- mission, bemuse, he maintained, that while the peopl^^annot find three honest men in the whole State to elect, that tney may easily find an honest tribunal in a Legislature elected by the people. That is his proposition. Three honest men among all the people of the State can- not be found, and yet the Legislature may become a disintere^ed, an intelligent, and honest power of regulation. It seems to me that that proposition carries upon its face its own refutation, aocording to his own argument, because he admits that the Legislatures are no better nor worse than the people. If we come to the regulation of freights and fares here, what is the rule? What ought we to do ? What is the first element in freights and fares? It is stated by Mr, Nimmo, In this very able report, at pap thirty, he says it is: "First, gradients; second, cost of roads; third, cost of labor and materials; fourth, cost of fuel; fifth, effects of fn^ and snow; sixth, volume of traffic; seventh, distance; eighth, aliga- ment of road; ninth, distinction as to bulk or packa^ traffic; tenth, regularity of movement; eleventh, nature of commodities, as to thnr being perishable or fragile; twelfth, speed ; thirteenth, quantity trans- ported of one kind; fourteenth, dead weight; fifteenth, maintenance of road ; sixteenth, skill in management." These, he says, are the elements. And now, as to the cost of the road; and the gentleman from Marin makes a statement, with which I concur, that in point of law it makes no difference whether the subsidies were given or not to the road; that if given, it is as much their property as though it had been put in by themselves. I admit that this is so; bat another element is this: all the books hold that when we cams to estimate a thing for dividends and for profits^— that the railroad haw Digitized by VjC^' Nov. 25, 1878. OF THE CONSTITUTIONAL CONVENTION. 507 right to anything but fair dividends — the cost of the road is an element to be counted. And when it comes to a question of profits, If this road has been built by gratuities from the Gorernment,,a8 we know it has, to a large extent, with gratuities and subsidies from the Federal Govern- ment, with gratuities and subsidies from the State Government, with gratuities and subsidies from municipalities, then it is that we have a right in controlling the profits to look at the cost. I am for appointing a Commission, for giving them time for framing them, time to invest!- fate and visit the localities that complain, and to adjust the rates. And Ir. Adams says, and Mr. Nimroo, substantially the same thing, that wherever it has been done, upon the suggestion of the Commissioners to the railroad that there is an abuse, and that some power will reach for them if they don't correct it, that they have always corrected it. Now, sir, I have already read a letter from one of the largest shippers of the country, which shows what their charges are; and now, sir, let us see what they are in other countries, and in other States, for from that we may approximate at least what would be a fair charge here. It appeared from the letter of a shipper, which I have alreadv referred to, that on some articles of commerce nearly two hundred dollars per ton, through freighi, is charged by the Central Pacific. These charges are more than a fair compensation, and result in larger profits than the railroad should receive. The railways have divided large profits, as a general thing, notwithstanding the late commercial revulsion. It is said in a recent issue of the Banker's Magazine, a publication of high authority : " If railroads built with greenbacks worth only fifty per cent, in coin, are now worth fifty per cent, of their greenback cost, they are worth precisely what they cost. On the whole, admitting that the direct profits of railroads to their owners are less conspicuously clear than their effects in advancing the general interests of the country, and while admitting, also, that these profits have been in some instances inequitably divided, and in other eases diverted into unworthy channels, we believe that in the aggregate, and after allowing for all losses, they much exceed the average rate of profits upon their investment." The great loss of the railways, whenever any has occurred, has arisen mainly from the fact that they have been run in the interest of the managers rather than that of the stockholders. It appears from Poor's Manual, that the very roads which, by reducing the wages of the opera- tives, produced the j^eat strike of eighteen hundred ana seventy-seven, were at that time dividing a profit of about seven per cent. The man- agers endeavored to compensate themselves for a shrinking of business by a reduction of the wages of the employes. It was right and com- mendable in the State and Federal Government to put down these riots at all hazards, because the true remedy in this country for all political evils is the ballot box, and not the toroh. Still the course of the railways can no more be defended than that of the mobe. What are sourees then from which a fair tarifTof freights and fares may be derivedT A learned engineer in New York, writing for the November Scribner for eighteen hundred and seventy -seven, says: " Before the war, the cost of movement on leading main lines was about a cent and a third per ton per mile. From eighteen hundred and sixty to eighteen hundred and seventy, it was a cent and a half. In view of the advance of labor and materials, this was practically a reduc- tion. Since that date, the cost has gradually decreased. In eighteen hundred and seventy-five, on the trunk lines, the rate averaged about eight mills, and in eighteen hundred and seventy-six, only six— the Pennsylvania road reporting under six, and the Philadelphia and Erie at five, the New York Central being stated at seven, and the Lake Shore at five and a half. The Baltimore and Ohio furnish no data on this sub- ject. It will be remembered, moreover, that the above applies to the whole tonnage, both through and local, and that the former costs less to move than the latter, being exempt from large terminal expenses — cars not fully loaded, trains not filled up, ana other unfavorable conditions that affect the purely local trade. It is the opinion of the managers of the New York Central and Pennsylvania roads that the net cost of through freight will not exceed four mills." , Now, sir, that is the statement of freights and fares as it then existed. It is true that within the last two months they have made another com- bination and have run them up, it is said by some, fifty per cent. Mr. Grosvenor, writiHg again on this subject in eighteen hundred and seventy- seven, in the International Review for September, eighteen hundred and seventy-seven, page five hundred and ninety-three, says — it is an article to prove that .competition has run down rates too low, and with that I am inclined to agree ; he says : " The average receipts in cents and decimals for all freight per ton per mile during each of the years named, on six roads which moved in eighteen hundred and sixty, and now move, a very large proportion of all freight between the West and the East, have been as follows : 1860. 1873. 1876. N«w York CsDtral lAka Short 2.06 202 1.97 1.84 2.06 1.90 1.672 1J36 1.R7 1.453 1.415 1.414 1.061 .817 1.03 1.09 .802 .928 Michiewi Central . Eri« . Pennqrlvanta PlttabDish, Ft. W and C AT«r%g* nf all . _ ^ . ..»,....._.». 1.96 1.480 .968 "These roads, not only on grain, and not only on through freight, but on all freight business done, have reduced their average charges per ton per mile, more than fitly per cent, since eighteen hundred Bn(rBixty,and more than one half of that reduction has l^n made within the past four years. On most of the other important roads the reduction Has been fully as great" Taking the official data for a basis, it is true that the railroads of Cali- fornia are charging two or three times as much as the trunk railroads. Now, it seems to me, that it would not be difficult, certainly, for the Commission to take the data, to see what is the average charge in other States, to see what ought to be the increase here, for there ought to be some increase, to see how much that increase should be, and to form a maximum of freights and fares. There has been a great deal of eulogy here upon the railroad — of what it has done for the country, of how much it has built it up, of how much it is doing for the commerce of the State, of how much it has benefited San Francisco. That may have been true to some extent, but it is not true as to present operations. On the contrary, it is well known that for the last twelve months the course of that railroad, by its extravagant charges for freight and passage, its unwise conflicts with other transpor- tation companies, has driven immigration from Southern California to Oregon. It is now, b^ the extravagant freights and fares,.driving com- merce from California, and, in the place of attracting the whole com- merce of the region of Arizona, and especially the northern part of it, which is the richest portion of it in minerals, to San Francisco, by their extravagant charges they have driven it, and are every day driving it from San Francisco. The merchants of San Francisco all know that, and yet they are under such a system of terrorism that they dare not complain. I conversed, just before I left home, with several merchants from Prescott, and they all concurred in the statement that it was in their interests, and they were actually pursuing that course of bringing freight from the Kast on the Denver road to points on the road nearest to them, and then transporting them by wagon to Prescott, and to other points in Arizona; and if the present policy of the railroad prevails, it will not be twelve months before ninetenthsof that trade which belongs legitimately and fairly to San Francisco, will be driven from it. There are two sides to the pretended benefits of this monopoly. It is not a one sided thing at all, and if something is not done to control the freights and fares policy on that road, and done speedily, all the trade of Arizona and of Sonora, and of Chihuahua, which should be done in San Fran- cisco, will go to Chicago and other places. Yet the gentleman from Sacramento says that competition is a bad thing, that consolidation is a beneficent thing, and that discrimination is a wise and good thing. It is contended by some gentlemen that it is wiser to leave this subject to the Courts than to the Commission. I submit it is too large a question fur the Courts, and that they have no time to study the subject sufficiently to control it. An English writer in the Fortnightly, to whom I have already referred, says: " The power to adjust has been delegated to Courts of law, instead of some tribunal possessing practical acquaintance with the subject. Upon this point the following is the view of Lord Campbell, expressed during a debate in the House of Lords on the Canal ana Railway TarlflT Act of eighteen hundred and fifty-four: They were to form a just judgment on all matters of complaint relating to railway management that might come before them, and they were to lay down a code of regulations for the government of railways. The Judges, and himself among them, felt themselves incompetent to decide on these matters." The writer continues: " The question of resorting to law with a great and powerful railway company has been far too formidable a one to be taken in hand by any single Individual, and, as a result, grievances and over-charges have been submitted to rather than fight a battle with sides so uneqiially balanced." The discussions in Parliament in eighteen hundred and fifty-four led to an alteration of the law in that country, and the creation of a Com- mission, a special tribunal for the regulation of transportation companies. Section fifteen of the Act of Parliament of eighteen hundred and sev- enty-three provides : " The Commissioners shall have power to hear and determine any question or dispute which may arise with respect to the terminal charges of any railway company, when such charges have not been fixed by any Act of Parliament, ana to decide what is a reasonable sum to be paid to any company for loading and unloading, covering col- lection, delivery, and other se'rvices of a Tike nature. Any decision of the Commissioners under this section shall be binding on all Courts in all legal pleadings whatever." The Act further pnfvides : " Where a railway company use, maintain, or work, or are a party to an an;^ngement for using, maintaining, or working, steam vessels, for the purpose of carrying on a communication between any towns or ports, the provisions of this section shall extend to such steam vessels and to the traffic carried thereby." "Section 12. Subject to the provisions in the last preceding section contained, the Commissioners shall have full power to decide that any proposed through rate is due and reasonable, notwithstanding that a less amount may be allotted to any forwarding company out of such through rate than the maximum rate such company is entitled to charge, and to allow and apportion such through rate accordingly." The Enilish experience on the subject, and the present English law, is in favor of a Commission. I owe an apology to the Convention for detaining it for so long a time. The magnitude of the subject must be my excuse. Gentlemen of the Convention, the country expCcts, and has a right to look to us for reformation on the subject of railways and transportation companies. Nelson placed at the masthead of his ship, at the battle of Trafalgar, " England expects evei^ man (o do his duty." The people of Califor- nia, on this great and vital question, expects every member of this Con- vention to do his duty, according to h is best judgment and his conscience. 8FIKCB or MB. BKEBSTECBKB. Mb. BEERSTECHER. Mr. Chairman: In the consideration of this subject, it seems to me, with due deference to the gentlemen who have spoken against the report of the committee, that with all a web of fal- lacies has been spun around this subject. Corporations have been considered as natural or private persons, and their rights and dutii gle 608 DEBATES AND PROCEEDINGS Monday, tested in the cmrible of private rights and duties. Now, to me, Mr. Chairman, this is simply a fallacy. Corporations stand upon a wholly different footing than that of natural, private persona, ana their rights and duties are wholly different. It seems to ine proper — as it has been stated here that the regulation of rorporations would be equivalent to confiscation, that it would be an interference with the rights of property, that it ia contrary to the spirit of our institutions, and contrary- to the spirit of the aze — to examine briefly into the subject of corporations. First, Mr. Chairman, I will call the attention of the committee to the language of Chief Justice Marshall, in the celebrated Darmoutb College cases, in which the Chief Justice, in describing a corporation, uses the following language : "A corporation is an artiflcial being, invisible, intangible, and exist- ing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence." I call the attention of the committee particularly to the effect of the words of the Chief Justice in saying that it is a mere creature of law. That it possesses only those powers which the charter of its creation confers u[)on it. And I propose to show what the charter of creation of the existing corporations have conferred upon them in the State of Cali- fornia, and what rights the people have to regulate these existing cor- porations. It seems to be necessary to do this to meet and controvert the allegation that is flung into our face repeatedly, that we intend to oonfisc^^e this property; that we are intorfering with the rights of property. I also call attention to Field upon Corporations, in which he says: "The power to confer corporate franchises and privileges has always been considered as vested in the sovereign authority of the State. It is an act of sovereignty." In section seventeen of the same work the author says : " The public benefit to be derived is the consideration on the part of the State for the creation of private corporations. The motive of the sovereign creating it is supposed to be some good that the public will derive from it. This advantege has been considered sufficient to bring their creation, by the Legislature, within the scope of their general powers to legislate for the public benefit, and it seims now to be universally recognized." It is the public benefit that if to be derived that is the consideration on the (wrt of the State for the creation of private corporations. Ma. REYNOLDS. Mr. Chairman : I am very sorry to have to refer to it, but it is very unkind of the gentleman to interrupt these gentle- men in the lobby here who want to converse. His speech gives them a great deal of trouble. Mb. BEERSTECHER. Mr. Chairman : I further call attention to section twenty-eight of Field upon Corporations. This work of Mr. Field is the latest work upon the subject of corporations published in the United States, and it is recognized authority upon the subject. lie says in section twenty-eight : "A charter, or act of incorporation, for private purposes and personal objects, if accepted, becomes a contract between the parties accepting and the State, and an offer of corporate privileges, on one side, must be accepted on the other, in order to give the contract full force and virtue." In section thirty-one of the same work, he says: " If a charter is offered, it is only necessary, as a general rule, that it be accepted by a majority of the persons mentioned as corporators. But it must, in all cases, if accepted, be taken unconditionally ; and by accepting the privileges conferred, the corporators will be required to perform the conditions imposed by it. Nor can the corporators claim the benefits of the charter unless they perform all the precedent condi- tions required by it in order to constitute the corporation. These con- ditions precedent are anything which, by the express provisions of the charter or Act, are required to be performed by the persons claiming the benefit of it, as a preliminary to incorporation, or the foundation for the exercise of the powers and privileges of the grant." In section thirty-three he says: " Where persons proceed to moorporate under general statutes enacted for this purpose, the signing of the preliminary articles of association, or the certificate required by the stetute, and a compliance generally with the requirements of tae. law, would undoubted^ be deemed an acceptance of the grant and the conditions of it." But I propose, Mr. Chairman and gentlemen of the committee, to show to you that the Central Pacific Railroad Company have, by a writing under the hands of their directors and signed by the President and Secretary of that company, directly accepted the provisions of the Constitution of this Stete and the statutes in force at that time. I call attention to section thirty-one of article four of the Constitution of this State: " Corporations may be formed under general laws, but shall not be created by special Act except for municipal pur[>oees. All genera] laws and special Acts passed pursuant to this section may be altered from time to time or repealed." The corporations in this State are therefore formed under general' laws, and those laws, by the organic law of the land, are subject to alter- ation or repeal, and every corporation accepting a corporate charter in this State, accepts it under this constitutional provision, and therefore its charter is subject to alteration or repeal. It is in nowise an unlawful interference. It is in nowise an unjustice on the part of the State if they do alter, repeal, or change the charters of these companies. Because the law in existence at the time the contract is entered into becomes a part of the contract. And every man and every person who is bound by that contract is bound by the law in existence at that time, and has no right to complain. Mr. Chairman, I hold here a copy of the acceptence of the Act of the Legislature of the Stete of California by the Central Pacific Railroad Company, filed in the office of the Secretary Qf State on the twenty- Dlnctors of ths Cralnl PkUc Railroad Oonpujr of Ckli- foroia. sixth of November, eighteen hundred and sixty-two. I read from that document : , Know all msn bj thes* prMwnts: That th* Ccntial Padfle Bailnad Comfur at C^^lfornla, a ooipamlton duly Incorpontrd nnd the opinion which I have just read, this constitutional proviaiai and this statute which was in force at the time the company took its thirter Digitized by V It ■ * - - Nov. 25, 1878. OF THE CONSTITUTIONAL CONVENTION. 509 from the State, was a part of the contract and entered into that contract, and every man that took a mortgage, and every individual that took a bond, and every individual who took a dollar's worth of stock, knew that the mortgage, bond, and stock were subject to the constitutional {)roTision and subject to the law that existed at that time, because that aw and that Constitution form a part of the contract, and, therefore, when we say to these men, " We desire to change the laws under which you exist," they say to us that you cannot do it, because it is an injus- tice, we reply to them that, " It is a part of the contract that you volun- tarily entered into." And can a man groan at the bond that he himself signed? It has been said that we propose to confiscate — that wo have no right to r^ulate. We do not propose to confiscate, and we have the right to reguiat«. These men, if ttiey had private property, if they had individual propert;^, they saw fit to take that individual and private property and subject it to the regulations of the public. . Ko one compelled any of the railroad magnates" of this State to turn their private property into rail- road property. But when a man takes his private money, his private property, and places it into a certain institution and into a certain posi- tion, then he cannot complain if the laiy steps in and places regulations upon him. Ko one asked these men to take their money and build railroads, and when they voluntarily built these railroads they are sub- ject to the laws of this State that control railroads; and they have got nothing to grumble at. I have heard gentlemen state upon this floor that these corporations were beneficent institutions; that they were charitable institutions, and that they never were created for sordid or selfish purposes. Mr. Chair- man, I deny the assertion. And I do say to the gentlemen of this com- mittee, that all these corporations, be they railroad or be they private corporations, were formed by the corporations for the purpose, not of being charitable to the public, not of oenofiting the public, but for the purpose of benefiting the individuals that incorporate them; for the purpose of making money; for the purpose of placing money into the pockets of the men that manipulate these concerns. But it has been said that they were not made for this purpose, and that they should not be looked upon as having been created lor any private or selfish pur- C. The argument seems to me ridiculous in the extreme. Every one If a that they are a money-making enterprise ; that these men who incorporated those institutions incorporated them with the express design and for the express purpose of increasing their private fortunes. Mr. Chairman, without entering into the subject as to where and how much of the corporation property in this State — ^as to when and how much of the corporation projwrty of this State — came from the State, it would not be difficult, if desired, to establish the fact that not only the authoritv to associate in corporations, but also the means by which these California corporations have been created, have been called into exist- ence, and have been carried on, came from the State. But, as a gentle- man on the other side of the house said, it is not for us, at this late day, to say that it was not proper that this money and these donations should be given to those companies. All I desire to say upon that subject is, it only again proves to us how a child can be ungrateful to its parent, as these corporations have become ungrateful to the people who contrib- uted towards their establishment. I read from the opinion of Breeee, Chief Justice, in the case of Munn vs. The People, decided in the Supreme Court of Illinois. It was argued that it would deprive them of anticipated profits, and that is the argu- ment, and the only argument, that can be used on the other side; what they expect to make by the monopolies of these corporations. The Judge says: " Anticipated profits are not, and cannot, be held and regarded as property in the ownership or possession of him who owns the article out of which profits are expected to flow. The property is one thing, and remains untouched — the profits are not in este, and cannot be claimed as property." We do not desire to confiscate by these provisions, but we desire to regulate, and we merely regulate the property ; and the Chief Justice of Illinois, touching upon that subject, says that it is not confiscation of property, because contemplated profits which are not yet in existence cannot be re^rded as property. He continues : " When it is said one is deprived of his property, the understanding is, it has been taken away from him; he is divested of title and possession. This provision in the Bill of Rights has never been so construed by the Courts of any State whose Constitution has such a provision, as to deny to the I,egislature the power to make all needful rules and regulations respecting the use and enjoyment of property." I call attention to page ten of the report of the Commissioners of Transportation of this State, commencing at section twenty-two : "Over the great plains which form the valley of the Mississippi River, a network of railroads is spread, affording various means of transit between any given points, and the whole are in communication with the great seaports by five great trunk lines of railroad, as well as the Erie Canal ana the Mississippi Kiver. Ko combination of so many interests as these can entirely suppress competition, for even if prices be agreed on, it will still exist in' the eSbrt of each party to secure the greater share of business by superior facilities, greater dispatch, and the like. Combinations, too, so extensive in their ramifications, break down of their own weight, and are succeeded uniformly by periods of active competition. Local interests and the competition of the seaboard cities for the trade of the great West, conduce, by increas- ing terminal and shipping facilities, to the same result. Here, our condition is quite different The great interior valley of the State, extending from the Oregon line to the Tulare Lakes, forms a single geographical feature, communicating with the sea by the Sacramento and San Joaquin Rivers, and by the roads controlled by the Central Picific-Companjf. The Valleys of Los Angeles, of San Jos^, of Napa, rettlama, Russian River, etc., have each its separate railroad to the seaport. None of these various lines, by any possibility, comjSete with the other. No reduction of prices, not even free transportation on one of them, would have any necessary effect in reducing prices on the others. The only competition to which our railroads are subject, is such as may arise on the ocean, or the interior waters of the State, and the railroad companies have become the owners or acquired control of the steamer lines which navigate these. These circumstances, while they increase the difficulties of the question in our State, render all the more necessary a constant and vigilant supervision of the management of the corporations which practically enjoy a monopoly of transportation busi- ness of this State. " Among all civilized nations the construction, supervision, and care of highways has, until the beginning of the present century, been exclusively an affair of government. The extent of civilization of any country has been indicateld by the character of its roads. The most striking and characteristic monument of the civilization and power of the Roman Empire, that which distinguished it from that of the Egyp- tians, Assyrians, and Greeks, was its great system of highways, ' marvels of conception and execution, which are still preserved, and which, even at the present day, traverse all those parts of Europe that acknowledged the sway of the Roman Emperors.' To devolve the construction of public roads upon private corporations is a modern idea, which first found expression in the creation of turnpikes, and afterwards, with the progress of invention, in railroads. The latter were at first designed to be operated as turnpikes are, every one putting on his own conveyance and paying a toll to the owners lor the use of the road. Afterwards, from the advantage of a peculiar form of carriage, and more especially from the adoption of steam as a motor, it came about that the owners of the road first supplied the moving power, and presently became them- selves the carriers, and, finally, the exclusive carriers over them. Yet the traditional policy of confining the ^rant of such franchises to corpo- rations (over which, as creations of positive law, the control of the sov- ereign was complete), illustrates the proposition that they have ever been regarded as public highways, and designed to be kept entirely within tiie control of the government. " The power of the State over corporations of its own creation is un- doubted, and, for all practical purposes, unlimited; for, having created, it can destroy them ; and, having the power to destroy, it may impose, as conditions of their continued existence, such terms as it sees fit. If, therefore, abuses have grown up in the railroad system, it is in the power of the Legislature to reform them ; provided any form of enactment capable of expression in general language, any general rule, can be made adequate to the purpose." Again, I call attention to the decision of the Supreme Court in the case of Munn vs. The People, upon appeal in that case. This case was a suit brought by Munn and others, to restrain the State from interfering with the regulation of the rates of storage in the warehouses of the plaintiffs. Now these warehouses were private buildings. They were not built under any charter of the State. They were private buildings, built by private capital— entirely aprivate enterprise — and yet the State of Illinois undertook to regulate this private enterprise not having the relations of the railroad toward the people of that State. As the Supreme Court of the United States held that it was perfectly competent for the State to control the rates to be charged in the warehouses, so the Supreme Court of the Uniteme freights, especially over natural waters, secures a preference to it even over the railroad for mau^ pur- poses, and this incidently tends to keep down railroad rates. This nat- ural and healthy competition, however, the railroad managers invariably geek to destroy. "The history of all competing lines of transportation is nearly, if not quite, uniform. It commences with a reduction of prices by the rail- road company, responded to in the same way by the other party, and followed up on both sides until rates are reached which resolve the cou- test into a single question — which party has the longer purse? When that point is reached, the railroad, which, once constructeu, is as much a permanent feature in the geography of the country as a river, buys off the opposition line, and prices are raised to a point sufficiently high to indemnify the company for its previous concessions, for which, proba- bly, indemnity has already been found in the augmentation of charges to points not reached by the water line. As the organization fit trans: portation lines by water necessarily calls for the outlay of considerable capital, new parties are little likely to recommence the enterprise after the old line, with established connections and trained employes, has been fairly beaten off the route, and thus the railroad secures an abso- lute monopoly of the carriage, even between points possessing naviga- ble water routes, and at higlier prices than would be charged over the latter. In this way the steamers which formerly navigated the interior waters of the Stale have passed into the possession or control of railroad companies, and recently the steamers plying on the coast have been compelled, by the low, and evidently losing rates of the Southern Pacific Road, to come into an arrangement to pool their earnings with that road. " Now, it is no part of the normal functions of a railroad to destroy other means of transportation, or supersede their use, except mjar as it is permanently more advantageous or cheaper than they. That in the hands of private owners and under the spur of individual gain it does so, is one of the fruits of the system of committing to private hands that which is a natural function of government. " Such proceedings as we have adverted to are a public evil. They affect vitally the interests of whole communities, and lead to the decay of flourishing interior towns, and this without permanently cheapening the cost of transportation to producers or benefiting any one, except the owners of the railroad. If legislation can prevent them, they should be prevented. " It is, however, vain to denounce as illegal the contracts by which they are effected, for evasion of such enactments is easy. We bielieve it can best be accomplished by laws which will require the management of the railroads to be as permanent in its character as their structure is, and forbid, without the consent of the public authorities, the retraction of any concession once made by them to the public This rule has the advantage of being just in itself, easily enforced, and in harmony with the rules that govern the management of such enterprise in the hands of enlightened self interest" Me. KOEL. I would suggest that there is no quorum present, and move a call of the house. Thi chairman. It cannot be done. There ia a gentleman on the floor. Mb. BEERSTECHER. Mr. Chairman : I do not desire to weaiy the house, and I will simply call attention briefly in review to the fact tbst there is a constitutional provision ; that there is a statute law enacted under that constitutional provision; that these railroad companies all accepted their charters subject to the organic constitutional law, and subject to the statute in force at that time ; that the Central Pacific Rail- road Company expressly filed an acceptance of the terms of the statute, and agreed tu conform to the terras of the statute; that the Courts have uniformly held, even in the absence of any statute of that character, that the people had the right to control enterprises of this character. As to the feasibility and as to the propriety of the control, there can be nodoubL If the members will take tne trouble of reading the report of the Trans- portation Commissioners — and I would state that I am positive that Ibe Transportation Commissioners werein nowise the enemies of the nilrosd company, and that they represented truly and without exaggeration the condition of this State — they will see that if the Legislature attenipU to establish a maximum rate of fares and freight, that it will operate unjustly ; tl 2it it will be either too high or too low ; and that it will be necessary to amend these rates of fares and freight, as established by the Legislature, continuallv. It seems to me that it will be proper to estab- lish a Commission. The Commission, as it stands now, I think has too much power vested in it ; but I understand that it is intended that the section will be modified, and if the section is modified to some extent I certainly propose to vote for it, because in no other way can railroedj be justly regulated than through the medium of a Commission which will be in session at all times; a Commission composed of men wbocsn travel over these railroads; who can personally inspect these grieianre; who can daily — ^yea, hourly — chang* the rates of frvight, which the Lejr- islature can never do. As to vesting the power in the hands of thne men, I believe that the three men would more faithfully execute and more honestly carry out the will of the people, would be more eqaitshl; and honest between the railroads and the people of this State, thiu whii the Legislature possibly can be. I do not desire to throw any refleccioii upon the Legislature; not at all. But these men come here and they expect to remain but a short time ; they desire to conclude their businw in as few days as possible, and to go again to their homes. One man comes front the northern part of the State, another from the southern part of the State, and another from the central part of the State, and each one of them has got an axe to grind. Now the man from the north says to the man from the south, we willuniteour interests, but you mnM vote upon the railroad bill in order to do it. And it is a well known &<1 that many of these local axgs have been ground upon the railroad bills as the only means of uniting men, saying: "If you vote for this railraaJ bill we will vote for your pet hobby that you have brought down from your district." No money need be used in these matters at all, bot we know that the Legislature of this State, and that the Ix!gislature of every Slate in the Union, has been paralysed and been unable to cope with the great powers of these corporations. It seems to me that the report of the committee is eminently a JD8ition in the catechism, and the answer to the first question: "What is the chief end of man? " will be — " to be bom in or migrate to this glorious State, to live under tho-mild and beneficent and equitable government of the Central Pacific Railroad." We must stand at the nod and beck of this modem Jove, and be governed by his direction. Now, sir, we all recognize the importance of this question. It is a question which not only engages the attention of the very best minds in this State, but it has also engaged the attention of the best minds in other States of this Union, ana of other countries, aud.it has not been mastered yet. But, sir, we have our humble pert to perform in endeavoring to arrive at a correct solution of this question, and, sir, we have the experience of other States and other countries to guide us in our action here. At first the railroad corporaliona were granted all the privileges they asked; and it has been proved that those privileges were such as they could not consistently exercise without restramt. The result has been here, as elsewhere, that those privileges have been used until the interests of the people have been lost sight of, and the interests of the corporation have overpowered all else. They have been granted subsides, not only under the Federal Government, but by States, cities, and counties; and they have been enabled to build their roads by reason of these subsidies. Then they exercised the right of eminent domain, and they have taken private property ior their use, often against the will of the owner. But it was done upon the ground that it was for the public good, for only upon that ground could It be taken. Now, sir, this Convention is called upon to provide a remedy for some of the evils and abuses which we all know to exist in this State. We are asked to restrain the wrongs which these corporations have been perpetrating upon the people of this State, under the guise of law and vested rights. We are peculiarly situated here. The entire carrying trade of this coast Is under the control of one conwratiou. lu regard to two of the largest corporations, one belongs to the other — the offspring of the other — while many others are controlled by it, either by lease, or some other process; and there is no question about it that the Southern Pacific Railroad is entirely under the control of the Central Pacific Company, and many of us know by experience that not only are those corporations identical in their control, but that the whole business of the transportation of freight and passengers is under the control of the men who are the directors of the Central Pacific Railroad Company. Why, sir, the men who control that corporation also control not only the entire carrying trade by rail, but they also have a controlling interest in all the steamship lilies doing business on this coast, and also in the principal line of ocean steamers crossing the Pacific. And, sir, I wish here to call attention to the roads that are under the control of this corporation. The list contains all the standard gauge roads in the State, with the excep- tion of four or five unimportant roads. Then, sir, if I am not incorrect m ray statistics, and I do not think I am, they have the main line from San Francisco to Ogden, the Oregon division, the San Jos^ branch, Los Angeles and San Diego Railroad, Sacramento and Placervllle Railroad, California Pacific and its branches, San Pablo and Tulare Railroad, Los Angeles and Independence Railroad, Visalia Railroad, the Southern Pacific and its branches, and some others. The same corporation also owns the Sacra- mento and bay steamship line, a line of steamers on the Colorado River, the Oregon steamships, the Pacific Mail steamship line, and the entire express business of this State is under the control of that same corporation. Now, sir, when we realize the fact that all the power con- centrated in these corporations is centered in the hands of a few men, and that these very men, by reason of this combination, are able to con- trol the entire carrying trade of this coast, we may well pause and ask ourselves the question whether it is safe to allow these corporations to go on increasing, and eventually absorb every road which joina them, without saying to them, "Thus (&i shalt thou go and no farther; from this time you shall be under restraint and regulation." In my judg- ment, sir, there is no safety to the State, and no protection to the people, without regulation. Thejr have been allowed to take the property of private individuals for their own use, and that, too, without the consent of the owner. It Is true they have paid for it, and having done so it becomes their property. But they have been permitted to exercise the right of eminent domain only upon the theory of the public good — when it is clear that the great mass of the country will oe benefited by the taking ; and before this power could be invoked in their behalf the Courts found it necessary to declare railroads a kind of public hiehway. They were considered quasi-public corporations before this right of eminent domain could be invoked in their behalf. And as such public corpora- tions, or public highways, the public have a rieht to expect and demand at least that tjiey shall not be oppressed by them. They have surren- dered their property to them because the public good demanded it. And, sir, when the public good is lost sight of and ignored, it is time for the people to step in and exercise their right over these corporations — the right of regulation and control. Nowfsir, as an illustration of how these roads have grown, the Central Pacific Railroad Company had not capital enough of its own at the time it started to build fiftv miles of road. They received aid from the Fed- eral Government ancf from other sources to build this road, and in eight- een hundred and sixty-nine it was opened to public travel, and since that time, during the nine years that it has been in operation, the com- pany has been able, over and above all expenses, which involves salaries, running expenses, and the interest upon the money invested, they have been enabled to collect from the people, over and above all these expenses, eleven million dollars. . Now, sir, when we remember that this immense amount of capital has been further extended, influenced, and controlled, until it has absorbed the entire carrying trade, not only by rail, but of the whole ocean, we are forced to the conclusion that the concentration of this vast amount of capital, together with the iuiluences that they employ, is a power that in the very nature of things must be a standing menace to this State. Let us see how the managers of thia corporation have been able to accumulate this capital which they have used to secure the entire carry- ing trade of this coast. It is a simple mathematical problem. They take the price of the produce which they are to carry, in the distant market, at its value in the market, as the minuend of the problem, and then estimate the price of the article where it was produced, as the sub- trahend, and the remainder is taken for freight. Now there are plenty of instances of this very thing, and here is one: A gentleman livine in the southern part of the State had a large amount of barley. He bad advices from Yuma that if he would send one hundred tons there he could get two cents a pound, while at the place where it was produced it was only worth one. It took but six hours for the train to go from his place to Fort Yuma. He went to the agent of the company to inquire what it would cost, and he was informed that they would carry it for one dollar per hundred. There is the problem. It was worth two dol- lars at the market, and one dollar at tne place where it was produced. One dollar from two leaves one, the price of carrying it. That is the problem,and that is the reason they are able to accumulate this immense amount of wealth, and secure the entire carrying trade of the country. Now, sir, tbis is a truth which cannot be successfully contradicted, that this has been and is to-day the policy corried out by the railroad corpo- rations of thia State; and they have been able to continue this policy for two reasons — first, because by their management the carrying trade has been monopolized; and second, because the Legislature — the only power known to the State whereby they could be controlled — has failed . to regulate them. It IS claimed by many, and by the corporations, that the State has no right to regulate or control them in any way, but that the owners should be entirely at liberty to charge what they please ; that the State has no more right to say what they may charge for freights and fares than it has to dictate to the merchant what he shall charge for his goods, or to the manufacturer what he shall charge for his wares. But, sir, there is this essential difference between the two cases: that in the case of the corporation, the people, through their Legislature, have granted it the privilege of doing a carrying business as common carriers, and allowed them to condemn the private property of individuals for their own use, because they believed it to be for the public good, and believed that the people would be benefited by such a course. But, sir, when the public good is not only lost sight of, but the public itself is discriminated against, then, sir, in my opinion, it is time that the State should step in and regulate it. This doctrine of non-control by reason of vested rights cannot hold in regard to these corporations. I submit that we are driven to this posi- tion. If the corporations have the right to continue to commit these great wrongs against the people, then, sir, we come to this: that the people, through their Legislature, have a right to repudiate the privi- lege granted, and regulate and control them. These corpoi^tions exist by reason of the action of the Legislature, and certainly, to deny this right to control would be to say that the creature is higher than its creator. Now, sir, the private individual is compelled to live within certain prescribed limits. A corporation is an aggregation of individuals. And if the people do not possess the right to go beyond these prescribed limits and commit these wrongs against the public, why should a num- ber of individuals, banded together as a corporation, or in partnership, have a right to commit these wrongs ; and now can it be said that the Legislature has not the right to control them? Now, Mr. Chairman, though it has been very aptly said that corpora- tions have no souls, yet they are, in a certain sense, immortal. Men who accumulate large properties die, and the estates are distributed. Partnerships, though the accumulations may grow, are dissolved, and the property ii again distributed. But these oorporationi go on almost t^ 512 DEBATES AND PROCEEDINGS Tdksday, forever, though I know they are usually restricted in their fint charter to a certain nunil>er of yean, but their accumulations are accumulations for all time, and the power once in their grasp is nerer relaxed. There is no remedy for these wrongs but rei;ulation and control. As has been well saad in this discussion, competition (ails, because the corporations have been able to combine and defeat iL The Courts are powerless, for the reason that corporations are indifferent to individuals when suits are brought by them. The individual may carry his grievance into Court, and the corporation is usually quite indifferent as to the result, for if they lose, they still have the power to fall back upon the people and saddle the loss upon them ; and even if the individual wins his case, it is generally after a lone and protracted litigation, and be has a barren victory, and is generally ruined. They care nothing for any threatened danger to their charter, and very few individuals care to come within their reach. Now, sir, these privileges have been granted by the people ; these corporations are the creatures of the creators, and they must give way. It is not the sovereign people of the State that are to be controlled in the interest of the corporations, but it is the cor- porations that must be controlled in the interest of the sovereign people. Now, sir, the question presents itself to us, how shall they be regu- lated, in what direction, and how far? In the direction, in my opinion, of not allowing them to exercise a dangerous discrimination. It should go far enough to restrain them from extorting rat<^ unnecessarily oppressive, and from discriminating for or against any locality or indi- vidual. They should not be allowed to take money from the people without rendering a just compensation, but they should not be restricted to such an extent as to prevent them from doing a legitimate business. I believe corporations should be encoura^;ed so long as they are doing a legitimate business. They are a necessity, and, honestly conducted, a benefit to the State. But when, by reason of the exclusive privileges that have been granted to them, they become oppressive monopolies, absorbing everything that comes within their grasp, then it is timothey were regulated. We live in a country that is noted for corporations, and we ,ive in a State that is to-day the home, the abiding place, of the most magnificent monopoly the world has ever seen. The means by which this monopoly has been established, and these extortions have been accomplished, and the manner in which they shall be regulated, are questions for us te take into account, and one must necessarily relate to the other in this question of regulation. The proposition before this committee is, in my opinion, the only means by which we can accom- plish the result sought. While I should prefer the proposition changed in some particulars; while I shall, if opportunity olfers, endeavor to so amend one or two of its sentences to meet the objections which I think are obvious, yet, in the main, the plan, I believe, to be a correct one. There are but two ways, in my judgment, to accomplish the regulation of corporations. One is by means of the Legislature, and the other by means of a Commission. Now, sir, the history of legislation in thin State upon this question is this — that it has been a broken reed >» the hands of a ^ianU I believe the history of legislation in this State will bear me out in this assertion. The members have struggled manfully with the question until it came to the final vote; but in the end the corporations have always carried their point, and with it many other measures that the State would have been much better off without. Now, it is claimed by some that we are conferring too much power on this Commission ; that we are creating a Boanl of autocrats that will be beyond the reach of any power within the State, and that this is unsafe. But there are two reasons why these extreme powers should be vested in the Commission. One is, because they would be powerless without them ; and the other is, that it has been proven that it is not safe to leave this matter to the Legislature. Three years ago the people had a Commission appointed for this very purpose. They were able, honest, and earnest in the work they did, but they failed, because they had not power enough. And they came to the Legislature with their report, which was full, ample, and complete in most points; but, sir, they had this same complaint of a lack of power to accomplish what the Commis- sion was designed to accomplish. They asked the Legislature to grant them the necessary power. But, sir, when their report came before the Legislature, they were quickly snuffed out of existence. That has been the history of almost every etTtrrt that has been made to control these corporations. I believe, sir, that we cannot, in justice to ourselves and to tne people of this State, allow this opportunity to pass without taking the necessary steps to control these corporations by a wholesome regula- tion. The necessities of the case require it, and the people demand it; and if we would be true to the trust confided to us, we cannot ignore this demand. These corporations have had grants of special privileges, entirely in their own hands, which they have exercised to the detriment of the people. They have been allowed to exercise these privileges solely on the ground that the public good required it. But when, by reason of the exercise of those privileges, they commit great wrongs upon the people, they must not be allowed to continue these wrongs under tbd plea of vested rights and the obligation of a contract, else we shall be met with the anomaly of allowing a corporation to do a wrong, when neither the Legislature nor the people possess such power. These wrongs and oppressions on the part of corporations must be met and dealt with by this Convention. There are but two ways by which it can be accomplished: one is, by and through the Legislature; and the other by means of a Commission. The latter has had a practical trial, and had it not been lx>und hand and foot by the Legislature, would have afforded us some relief. We shall be recreant to the trust imposed upon us, if we do not deal with this subject with a firm band. Mr. CAMPBELL. I move that the committee rise, report progress, and ask leave to sit again. *^*'^***" IN CONVENTION. Tbi PRESIDENT. Gentlemen: The Committee of theiWhole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have made pro- gress therein, and ask leave to sit again. # AWODKKMKHT. I move the Convention do now adjourn. Mb. AYER8. Carried. And at eight o'clock and twenty minute* r. adjourned until to-morrow morning at ten o'clock. M., the Convention SIXTIETH DAY. SACSiiHKirTO, Tuesday, November 2(th, 18TS. The Convention met in regular session, at nine o'clock and thirty minutes A. M., I^esideat Hoge in the chair. The roll was Slled, and members found in attendance as follows : PBKSKXT. Andrews, Hale, Porter, Ayers, Hall. Prooty, Biirbour, Harrison, PuUiam, Barnes, Harvey, Beed, Barry, Heiskell, Reynolds, Barton, Herold, Rhodes, Beerstecher, Herrington, Rolfe, Belcher, Hilbom, Schell, Blackmer, Hitchcock, Schomp, Boggs, Holmes, Shatter, Boucher, Howard, Sburtleff, Brown, Huestis, Smith, of SanU Clara, Burt, Hughey, Smith, of 4th District, Campbell, Hunter, Smith,of Son Francisco, Caples, Johnson, Soule, Casserly, Joyce, Stedman, Chapman, Kelley, Steele, Charles, Ke^es, Laine, Stevenson, Condon, . Stuart, Cross, Lampson, Sweasey, Crouch, Larkm, Swenson, Davis, Larue, Swing, Dean, Lavigne, Terry, Dowling, Lewis, Thompson, Doyle, . Lindow, Tinnin, Dudley, of San Joaquii , Mansfield, Townsend, Dudley, of Solano, Martin, of Alameda, Turner, Dunlap, Martin, of Santa Cruz , Vacquerel, Eagon, McCallum, Van Dyke, Edgerton, McComas, Van Voorhies, Estee, McConnell, Walkei-, of Marin, Estey, McCoy, Walker, of Tuolumae, Evey, McFarland, Waters, Farrell, McNutt, Webster, Fawcett, Miller, Weller, Filcher, Moffat, Wellin, Finney, Moreland, West, Freeman, Morse, White, Freud, Nason,- Wickes, Garvey, Nelson, Wilson, of Tehama, Glascock, O'Donnell, Wilson, of 1st District, Gorman, Ohleyer, O'Sullivan, Winans, Grace, Wyatt. (»"■*»!> Overton, Mr. President Hager, ARSirr. Bell, Jones, Reddy, Berry, Kleine, Ringgold, Biggs, Mills, Shoemaker, Cowden, Murphy, Tully, Graves, Neunaber, Tutde. In man. Noel, LEAVE OF ABStXCE. Leave of absence for one day was granted Messrs. Bell, Glascock, maA Edgerton. Two days' leave of absence was granted Messrs. Neunaber and Shoe- maker. THE JOVBKAL. Mb. BARTON. Mr. President : I move that the reading of the Jour- nal be dispensed with, and the same approved. Carried. RKFOBT — WATEB AKO WATEB RIORTS. Mb. SMITH, of San Francisco, made the following report: To the bonontble Fratdeiit of tbe Oonventlon : A mtnoriljr of your CommlttM on Water and Water Bights beg lett« ts rvport the following 0«ctlona to be Inserted tn the new Oonstitntion, recognixinf that Utm itglit of waU-r does not depend on the ownership of tund. and as a niUnral element for the use of n\An, 1 qiieetion the right of thu LeigitUitnre or of Congrees, if rach ham bc«a the cane, to grant away that which b<^longa to tbe people, SscTTloif 1. All lakes, except srtificliil reeenroin, shall be declared pabtie pn^ ertjr. All mnnlng water shiil! be declAred pnbUc property, snliject only to tka control of the Stale. Bkc. 2. Three Wiiter Commlisloners shjill be eU-cted bj the qaalKed voton at this State, at the gubernatorial elections, and whose salary ehiUI be Axed by lav,an4 whose term of office shall be four years. They shall be qoahfied electoit of 1' ' State, and shall not be interested in any water company i "^ Digitized by mpaoy as atnckhoMsr a Nov. 26, 1878. OP THE CONSTITUTIONAL CONVENTION. 613 ■l^t, Attorney, or employer, and the act of a m^oritj of lald CommlMioDen ehall be deemed the act of Hid Oommiwlon. Said Commiselonen ehall hare the lole power, and it ifaall he their duty, to eetablish rate* of chanree for water, from what ionrcee water ehall be taken by rach oompaniea, report to uie Lecialature when in ieauon their proceedinn, and each other beta aa may b« deemed important. H. W. SMITH. Thi president. The report will lie on the t«ble, and be printed with the report of the Committee on Water and Water Rights. • RSPOBT or COMMITTn ON MIKIMO. Mr. PULLIAM made the following report from the Committee on Mining: Mb. PamsKirr: Tour Committee on Mining renieelAilly report! that It liaa care- fally conddered propodUona nnmban nlnety'One, three bnndred and (brty-flre, and three hundred and fifty, and herewith return the iame, and reconunend that no ftartber action be taken on them. M. K. 0. PULLIAM, for the Committee. Laid on the table. 1 THAMKSOmHO AMOQBHlllHT. Mr. ESTEE. Mr. President: I move that the resolution by which this Convention agreed to adjourn to-morrow, at twelve o'clock, be reconsidered. I make this motion now, in order that it may be disposed of, BO that we will know. Mr. LARKIN. Mr. President: I am really glad that the gentleman from San Francisco takes it upon himself to act as my prompter, but I think he will succeed better in some other line. That motion, as a matter of courtesy, I was entitled to make. If the gentleman has any ulterior object, I propose to give him full opportunity to explain it. I gave that notice in good faith. Not that I am opposed to the jieople being thankful; not that I am opposed to the institution. I believe in it. That institution has no reference to a day; it was to an event. The people of New England celebrated Thanksgiving day not on the twenty- eighth of November, but on any day. It was a harvest feast; a time that they returned thanks to their God. Mb. BARNES. Mr. President : I call the gentleman to order. He is speaking on a subject not germane to the matter under discussion. I do nut know that the Supreme Ruler of the universe has anything to do with the adjournment. Mr. LARKIN. I don't think he has. But I am not certain but that some god has arisen that these men are worshiping who desire this adjournment. It may be, and I state here that we have spent one third of the time in delays and adjournments. I believe that these men are sincere in this motion. Many men are sincere in opposition to a Con- stitutional Convention, and men that voted against a Constitutional Convention. Men come here who represent the men who voted against a Constitutional Convention. They are satisfied with the old one. With all its evils, they prefer it to any Constitution this Convention may make. I have heard it said that they would go from this Con- vention and oppose any Constitution made here. These adjournments and delays have been perfectly in order. They are appreciated. So it is that one third of the time pf this Convention has oeen ta)(en up with unnecessanr speeches and motions that tended to hinder the work of this Convention, if possible, and carry it over beyond the time to which this appropriation will extend. Then the people will demand an adjournment, leaving us with a Constitution partly made, and the people of the State disgusted with our action. A portion of the press Las denounced this Convention and misrepresented us — actually mis- represented us before the people — and whatever Constitution is made by this Convention, be it as perfect as is possible, will be opposed by that element of the people of this State; and they are represented on this floor. These men who are satisfied with the present corporation laws of this State will oppose any new Constitution. These men who are satisfied with the present system of taxation, by which they escape their just share of the burdens of government, will oppose this Consti- tution; and some of them will seek that way to accomplish their pur- pose. I say that the bare majority that called this Convention, called it in the interests of the people, and not in the interest of these de- structionists. Wait until we have gathered our harvest — a harvest to the people of this State, of equal taxation, of limited corporations — then we can hold a thanksgiving, and such a one as has never been held in Cali- fornia; not until then. Wait until the people have gathered that har- vest— a harvest that was sown by the good will of the people — then we are ready to adjourn I Mb. BARNES. A-a-men. [Laughter.] Mb. LARKIN. On this question I call for the ayes and noes. Mb. ESTEE. Mr. President: I did not interfere, or intend to inter- fere with any of the duties that devolve upon the gentleman from El Dorado, in this Convention. I did not suppose that I would effect any- thing gi^t by making this motion. If I moved to go into Committee of the Whole I knew that he would have no opportunity to press the motion, and knowing that the notice had been given, I thought it was no more than just and fair that it should be decided this momme before going into Committee of the Whole. As to any insinuations tuat the gentleman may express, I do not wish to respond to them, or make sny remarks about them; but I will say this, and I appeal to the Conven- tion to verify my statement, that the eentleman from El Dorado has taken up more time on the floor of this house in calling for the ayes and noes on different questions, in order to make a record, than any five gentlemen on the floor of this house. Mb. hale. Mr. President: I desire to say one word. I trust that the vote to reconsider will prevail, and that upon the final vote the resolution will be rejected. So far as I am individually concerned, it will not inconvenience me materially. I reside only thirty-six miles from this Capital. I can go home. I can spend the time very pleasantly with my family and friends, and I enjoy a Thanksgiving dinner as well as most of you, and I heartily Bympathi2e with those gentlemen here who are anxious to return home for that purpose. But I submit two 65 considerations. One is, we propose to adjourn over from Wednesday noon until Monday. The result will be that it will be a discontinuance of the period of the Convention, so that those who are forced to remain not only will be unable to attend to any of the business which called them here, but they will not even be permitted to receive any compen- sation for the time they slay here. It is true that there are many gentlemen who could return home and doubtless enjoy a very pleasant time. But I think, sir, it is decidedly an unfair thing to those who can- not go, who are residents so far from this Capital that they cannot go, and enjoy this Thanksgiving day, to require them to make this sacrifice. I think it is not fair to them. Besides, sir, I believe it wiU be found that we are all of us very anxious to make a final completion of the work of this Convention. We know the difficulties that surround us here. We know that there is a large amount of our work not accomplished. We know too that there will be much hardship upon members oecause the compensation which has been provided by law will soon be exhausted. I think it is not fair that we should fritter away our lime. I think we can in no manner show our thankfulness more effectually, more sin- cerely, more rationally, than by sitting here in our places on that day as well. as the days of this week, and attend to our duty. They say this is a non-judicial day, but that is no reason why we cannot sit in this Convention on that day as well as any other day of the session. For myself I think it will be found true that those who are in private busi- ness wish to conclude their labors here. It is important that we should conclude. We do not want to do things halfway. Let us stay here and work in this Convention until we get through — whether it is one week, or four weeks, or six weeks, at our own expense. We have been sent here by the people to perform a duty, and I think every member ou this floor willisee the performance of it accomplished. I trust that this motion to reconsider this vote will prevail, and that we shall come to the conclusion to stay here and perform our duties. Thanksgiving day or no Thanksgiving day, until we have completed the work for which we came here. Mr. smith, of Fourth District. Mr. President: I am opposed to this adjournment. This is a work that only comes once in a quarter of a century. ' We have now passed through nearly two thirds of the time allotted to u« by law, and we have not one quarter of the work accom- plished. 'Now it is proposed to adjoam and have • little play. A few members in their minds hoping to put into their stomachs good dinners want to draw the balance of the members from this Convention^ I think it is unfair. I think it looks too much like child's play^on an extraordinary occasion. Now, when the members of the bar have an^ extraordinary work on hand they work at it night and day until it is finished ; when the farmer has a press of work be works out in the rain and hail until it is done; and now that we have got much more perhaps than we can do in the time left to us, I say that we should sit here and do it. Wait until Christmas and New Years come on. I propose to stay here on Thanksgiving day at least, and if we have to adjourn on Christmas and New Years, let us leave onr play until that time. Mb. McCONNELL. Mr. President: I am in favor of not rescinding the resolution. ■ Mb. BARNES. Mr. President: In accordance with a time-honored custom as old as Plymouth Rock, the Governor of this State has issued a proclamation calling upon all people to refrain from their usual occu- pations and spend some hour of the day in suitable religious exercises, and the balance of it in social pleasure. We may not all meet him on the first, but we can meet him on the other. We can lay aside our usual vocations, as I think we ought to do. It would be a moet remarkable spectacle to see this body in session on that day. The gentleman from Item says this is an extraordinary occasion. It would be most extra- ordinary of this Convention, at a time when all the rest of the people of the State had suspended their usual vocations, when your stores are closed, commerce is suspended, and business, for the hour, all over the countrv, from one end to the other, is paralyzed, should sit here and go on witn the business it has in hand. For one, I hope that no such idea as that will be entertained. .1 believe in these holidays. Thanksgiving day is a dies rum, by law, the same as Christmas and New Year, and I would like to see the man who would say that we ought to sit here on Christmas. I would like to see the man who would say that we ought to sit here and work on Sunday. Thereis just as jnuch reason for it. It seems to me, sir, that there is something else than economy in these speeches on this subject; something behind it. If gentlemen would lay aside those considerations, I think we would get along better with the work. We have got to adjourn over Thanksgiving day I We have got to ! The gentleman from Placer to the contrary notwithstanding. Mr. HILBORN. Will he bring out the military to effect that result ? [Laughter.] Mr. BARNES. I do not know what that remark was. I could not hear my fiit friend from the country, but I have not the slightest doubt, although I did not hear it, from the sritirk on his countenance and the titter around him, that he made some allusion to the Military Com- mittee. That seems to be the end and aim of some of the gentlemeu on this floor. Whenever there is anything occurs that offers the slight- est opportunity, they bring up the military. When the report of that committee is taken up we will see how much there is to laugh at about it. But apart from my warlike character I am in favor of observing Thanksgiving day, and Christmas, and New Years. This day is a dies non, ana except with a certain class of people who do not believe in Christian thanksgiving, all business is suspended. So far from the gentlemen losing their pay for all this time, I hold that they will be paid for three of the days. I wish to heaven there was no pay about it, but so far as the pay is concerned I think the gentleman from Placer is in error about that. We can adjourn for any period greater than three days. The law says " the delegates to the Convention shall receive Mb. LARKIN. A majority of this Convention has decided that the law has no bearing upon this Convention. I rise to a point of orderl Digitized by a point of orderl v^oogle 514 DEBATES AND PROCEEDINGS Tuesday, Mk. BARNES. " The delegates to the Convention shall receive the same per diem and mileage as members of the Legislature ; provided, no oompeusation shall be allowMl delegates after tie expiration nf one hundred days. No pay shall be allowed for any recess longer than three days at one time." We are entitled to pay for Wednesday, ThursdRy, and Friday, and we may lose a day. We nave got pay for every Sun- day. I am in favor of the adjournment. Some of these gentlemen who have been speaking and who spend all their time here, would do better if they went home — a good deal better. They would see what their constituents think of them. Go home, as we do, and hear what people say, and I think some of them would come back with a large sized flea iu their ear. It is awful I awful ! [Laughter.] I move to lay tlie motion to reconsider on the table. Mk. brown. Mr. President, and gentlemen of the Convention : This question has assumed considerable magnitude, and we have hearmmiuionen be elected by the people, with power to make prima facie rates ; with power to make a Khedule of freights and fares, and the Courts can decide if it is reason- able and just. Then if the Transportation Commissioners make out a tariffwhich is thought to be unreasonable by the people, they can go into Court and have it modified before a jui^ of the people. If these Trans- portation Commissioners make the freights exoeedmgly low, so that no common carrier can carry, give the corporations the same right. And, gentlemen, if we have not got the moral courage to do right toward the railroad company, we will never get right done towards the people. We have got to have the moral courage to do right to them before we can have any hope of ever having justice done towards tha people. I am not one of those who are so far carried away as to think that we will get the people protected and let the railroad bankrupt if they mttst. I do not think that to be statesmanlike. Let us do right, and in doing right let us come back to the principle that has been found safe to go by in every business in the world. Now, they say that you can not tell what is reasonable. That is a ques- tion that has been solved thousands and thousands of times. It is just as easy to figure up what a company can carry a carload of freight from here to Sain Francisco for as it is to figure up how much it is worth to haul a load of that clay from the river bed over here to the Park. It is only that ^ou look at it with a microscope, and the railroad wants you to look at It with a microscopic view, Mow, that is the rule. But you cannot be microscopic when you come to the affairs of man. You must make allowances; you must estimate ; or, as some people have called it, you must guess. And it is but a guess at the best. Kow, when you come to figure freights and fares, you have got to consider the life of a car, how long a car will last, how long an engine will last, respecting the cost of each, the cost of keeping them repaired, etc. Gentlemen, you have to do the same thing in the case of hauling the clay to the Park. You must consider the cost of the horse and of the waeon, the amount you can haul, how long the horse and the wagon will last, the necessary repairs, how much the man who drives the team is worth, etc. That same rule has been in existence since the common law. But we cannot be so microscopic in anything except railroads, and I do not think it is reasonable that we should say that every trifle should be figured. It is not just. Another thing they may say — that what would be a reasonable com- pensation must be estimated or weighed according^ to the prevailing mode of transportation before railroads came into existence. I deny iu That view of the case would contend that the human Cunily had made no progress in the way of invention. These people, the ownen of the Central Pacific Bailrdad, claim all this property as private property. So it is, but it is in the public use. They claim all the improvements that give them the advantage over the stage traffic, although they do not claim them as a matter of legal right. Go to the passenger train that arrives in Sacramento this morning — look at the cow-catcher on the engine— and you will find an inscription thereon that John Jones or some other man has taken out a patent upon it ; go to the first wheel and you will see a similar inscription; go from there through the train, to the last timber on the last car, and you will see the stamp of invention everywhere. Do you wish to tell me that the railroad companies are entitled to the whole profits of the invention of the human family? Do they expect us to regulate freights and fares, on the assumption that these railroad compani^ are the inventors of every invention that places them above the stage coach ? I say no. It is not theirs. The inventor is poor enough. These men who have given their inventions to the civilized world are poor enough. But mind you, the railroad stock- holders are not the inventors. They are not entitled to the credit ; but what they are entitled to is this — a just and reasonable compensation as considered with the expenses, as it is now considered with tne advance- ment of improvements, and not considered from the standpoint of fifty years ago. Kow, sir, this plan, which I understand will be introduced, though not by myself, will prevent the Commissioners doing wrong toward the companies, and will prevent them doing wrong towimi the people. And I thmk it will place this question of transportation and the difficulties that may arise in the business, as nearly as possible on a level with diffi- culties arising between corporations and others, or between individuals themselves. It will bring them just as near to the same course of pro- cedure. It will take them out of being special classes just as nearly as it is possible to do. Kow, sir, when you brin^ corporations down to the level of other men, I hold that you have achieved a great end. A cor- poration knows the way into the back room of a Bailroad Commis- sioner's office ; but when you bring them before a jury of the people of this State, it is the last tribunal before which they wish to be tried for their discriminations or extortions. I think this plan the best because it makes all equal before the law. They will not then be coming to the liCgislatura to redress their wrongs. One of the main causes of a great deal of this railroad trouble has been the fact that the railroad com- jpaniea have been so placed that the individual could not get at them. They have been hedged about with all this Commission machinery so that the individual could not proceed. But just the moment you place them on the common law rule, give the corporation its rights and the people their rights, and they know that the Courts are open to punish these railroad companies, then the clouds of war will drift from the sur- face. As soon as tne corporations find out that if they charge exorbitant rates — if they charge above the rates fixed by the Commissioners, or even if they charge the rates fixed by the Commissioners, if they are unreasonable they will be liable to complaint in the Courts, and have to rty the penalty— they will bring their rates down to reasonable ones, think with the benefit of the experience of the States beyond the Bocky Mountains before us, we should adopt a system based upon that experience. Mb. ESTEE. Mr. Chairman : I send up an amendment which receives the approval of a minority of the Committee on Corporstiona. TBI SECRETARY read: " Insert after the word ' no,' in the first .line, the word 'unjust'" sraicH or kb. tibit. Ma. TERRY. Mr. Chairman : I am in favor of section nineteen as it came from the committee, and I think that the interpolation of the word "unjust" would tend to raise questions upon every complaint of discrimination. The c|uestion of what was just orunjust discriminatioD would be constantly rising, and we would do better to stand ^pon the section as originally reported, and to allow no larger charge for a short di-stanre than for a longer distance. There can be no justice in discrim- ination like that. If the railroad company, or any other transportation company, can afford to carry a ton of freight a certain distance for fire dollars, they can carry it any less number of miles for the same price. Ma. ESTEE. The amendment does not affect that part of the sec- tion. This is as to the question of facilities for transportation. Ma. TERRY. Then, I assert that any discrimination against one place and in favor of another, or against one man and in fiivor of another, or against one corporation and in favor of another, is unjiut upon the face of it, and not to be justified under any possible eontis- genoy, and, therefore, that the word has no place there. Any dlacrim- ination between persons is unjust — giving one man an advantage over another. Any discrimination between places — giving one place an advantage over another — is ui\just upon the face of it. Therefore, the word ought not to be inserted, and they should be absolutely required to give every man the same facilities, and at the same price as other Individuals. Kow, a great deal was said here upon this question by varioas gentle- men, who enlightened the committee with some ideas that were sew and some that were not, about the rights of these corporations, and I believe that before the debates got through, it was pretty well under- stood by the Convention that " corporations," as used in the argument, meant the Central Pacific Railrcwd Company. As was said by Mr. Edgerton, it seemed to acquire a personality in the coune of the debate. It was said by the distinguished gentleman from San Francisco, Mr. Wilson, and I confess to surprise at the statement from that soarce, that because of the fact that thtf United States was a creditor of thii railroad company, and had a mortgage upon it, and because of the fact that other men had become creditors of this railroad and had morteagei upon its property, therefore the State had no ri^bt to interfere with the prospective profits of that company, and render it leas able to settle with its creditors, Mr. WILSOK.of First District, I used that for the purpose of shov- ing that the Legislature, in view of that, might want to alter its policy. If we place it out of the power of the people to control, we might ^ into a position not contemplated. Mr. TERRY, That is a chance that the creditor takes who loam upon property, the title of which is subject to ffuctuation of value. The creditor can stand In no better position than the debtor, and in no case can a man perfect his title by giving a mortgage or lien upon it. Mb. WILSOK. I have no doubt of the powerto regulate these things, and have not said anything of the kind. Mr. terry. I misunderstood it then. Mb. W1L80K. It was in reference to the first amendment offered by the gentleman from Los Angeles, that if the rates of freight and ftre were put down, they never could be raised, I said it might put the tail- road in such a condition that it could not meet its obligations, and that the Legislature could not allow them to raise the rates in order to meet the exigencies of the case. Mr. terry. Well, if the railroad company, by putting down their rates, choose to commit hari-kari, for myself, I have no objections to iU I think that the amendment of the gentleman from Los Angeles is emi- nently proper, and ought to be adopted ; that they themselves are the best judges of what they can afford to carry froight for, and if for any purpose they announce their willingheas to carry for a certaun rate, they should be held to their contract, and not be allowed to raise it. Some allusions have been made to the magnificent donations of money, property, and credit which have been made by the Federal Government, by the State of California, and by several counties in the State. The gentleman from Marin asserted that these were free gifts, without any conditions; that after the propcrtv passed it became the property of the railroad, and that they were under no leeal obligations to the donor. True, sir, the recipient of a gift is under no legal obligations to the donor, but the obligation of common gratitude is held to oe an obligation by most natural persons. There was an implied understanding at the time. when these donations were made to this oorpontion that the property which was given to them, and the money which they wore endowed with, was not to bo used as a weapon against the donors; not to be osed for the oppression of the people by whom the money was given. It is true that it gave them an opportunity to increase the reaonrees of the State, and it was supposed that they would use it so as to furaisb employment for thousands of laboring men in building the roads, mak- ing cuts and tunnels, and laying down the rail*. It was expected that thus a benefit would accrue to all. It was not expected that with these magnificent donations, the honest workingmen of the country would be thrown aside, and that hordes of Mongolians would be imported into the country to take the place of these working men. The parties that made the magnificent donations did it for their nenefit, and not for the benefit of the corporation. How has it beenT Go upon any of the lines, and you will scarcely see one citizen out of five hundred men emrdoyed. That, then, was a part of the implied condition of the gift that has not been kept by this corporation. ^-^ Again, something was spoken of the varn witii' which men looked Diqitized by 'LjV^..' Nov. 26, 1878. OF THE CONSTITUTIONAL CONVENTION. 517 upon the wealth acquired bj theae men ; that thej aaw their ma^ifi- cent houses, and they enTied them the possession of them. Whether men look with pleasure or displeasure upon the accumulation of wealth, depends in some measure upon the manner in which that wealth is aocumulated. Now, when this Central Pacific Railroad Company was organised there were many stockholders. I believe only six stockhold- ers, who assumed the directorship, acquired wealth. I have not heard of any others reaping any very considerable profit fVom it. It is said that by forming a Contract and Finance Company, and taking a contract from themselves to build a road for themselves, that they put into their own pockets all of the money that came from the various sources into the corporation. However that mav be, I know of some stockholders we never got rich from the profits o{ this corporation. The County of Placer became a stockholder to the extent of about three hundred thou- sand dollars — certainly more than twice as much money as any one of the present owners of that enterprise ever put into it of their own ; and according to the wealth of these men, estimated at from eight to fifteen millions, the County of Placer ought to have had fifteen or twenty mill- ions. I would like my friend from Placer, Judge Hale, to tell me how much that county made out of it The County of Sacramento was also a subacriber to the stock to the extent of some three hundred thousand dollars. Certainly that was more than any one of these individuals put in; and while they have their fifteen or twenty millions, and are liv- ing in opulence, how many dollars has the County of Sacramento real- isra? The County of Santa Clara subscribed two hundred and fifty thousand dollars, and the County of San Joaquin two hundred and fifty thousand dollars, and as the owner of twentv-five hundred shares, according to the profits made by the directors, who certainly did not put in half that amount to the man, ought to have had twenty millions of dollars, and not one dime of it has ever gone into the treasury of that county. Now, is there not some reason why people should look with some displeasure upon the accumulation of these large sums in the hands of a few men who are charged with using it for their own inter- ests, for a corruption fiind in the Legislature, and perhaps, in some instances, in the Courts of justice. It is our duly here to adopt some plan by which the people of Cali- fornia are to be protected against this tyrannical corporation, because it baa just come to be this question : either you have got to govern that corporation or the corporation will govern you. That is the question which the Convention has to determine first and the people afterwards. I examined with a good deal of care the twentieth section of this report of ttie Committee on Corporations, and I could not bring myself, as I thought, to support it; but I must confess that my determination to vote against that twentieth section was very much shaken by what might have been a warning or threat, one or the other, held out by the gentle- man from Sacramento, Mr. Edgerton, in his eloquent address upon this subject. He intimated that the passage of that section would drive this corporation into politics, and that they would probably be able to control the election of these Commissioners and owning these Commissioners. They could discharge five or six thousand Chinamen and employ voters in their stead. Now, gentlemen, if I was certain that even that mucl^ good would result from it, if I was certain that five thousand Chinamen would be discharged and that five thousand citizens would be employed, and thus be able to earn an honest living for their families, I should be almost tempted to vote for it with all its faults. If it secured the dis- charge of aliens and employment of citizens who have families to sup- port which would add to the future prosperity of the State, it would go very far to counteract the evils which might follow from this power m the hands of three men. I have too much regard for the honesty and intelligeDce of the people of this State to believe that the elections can be controlled by such measures. The people have seen too much of that in the past. In spite of all their influence, a square vote of the people of this State will sustain any measure which is intended to curb the grasping avarice of that corporation, and prevent further oppression upon the people of this State. It is said that they themselves are the best judges of what they can charge; that no information can be obtained which will enable the Legislature or Convention to fix the rates at which their roads ought to be run. And it is said, in the argument against the amendment of the Sntleman from Los Angeles, that some man might get a stage line, .▼e a parcel of old stages on the line, and blackmail the railroad com- rny, and be might say, " If you don't come down with so much money will run opposition to you," and they would be compelled, unless they could put down their freights and fiires, to submit to blackmail. Well, (gentlemen, I have always heard that one of the principal argu- ments in favor of fostering these railroad corporations was that it would secure a cheaper mode of transportation than stage coaches and mule teams. If that is not true — if the railroad company cannot aflbrd to carry both freight and passengers at rates cheaper than stages and mule teams — then the sooner the corporations are destroyed the oetter for the future of California. If the freights are the same and the fares are the same when this work is being done by mule teams and stages, they are the best, for the profits of transportation are shared by the whole com- munity. The farmers, in the first place, sell the animals, the wagon- makers make the wagons, the farmers raise the grain and hay to feed the animals, the blacksmith shoes them, the harness-maker makes the harness, and the money is scattered over the country to every class of {wople in it. Whereas, the profits arising from the freights and fares of the railroad company goes, most of it, into the hands of a few enormously rich men, and the btdance of it into the purses of aliens who do not expect to become citizens of our country, and come here only upon the expectation of gathering as much as they can of the fatness of the land in the shortest possible space of time, and return with it to their own country. I say that unless the element of cheapness comes in they are an absolute curse to the country. What effect have they had? It is said that they increase the pros- perity of the State. Why, who ever heard of an able-bodied man in California going around and begging for a meal, or begging for the • privilege of working, until these thousands of coolies were imported and employed by this company. What a spectacle was witnessed in San Francisco the other day, when one of these magnates gave notice that a certain number of men might be employed at one dollar a day and find themselves, to do some work, and hundreds of men were sit- ting there all day long, more having offered than could be employed, begging for an opportunity to earn even so small a sum. Is not that scene witnessed every day? Are there not hundreds of able-bodied men willing to labor, anxious to labor, who are absolutely deorived of the privilege of earning, by their own labor, the price of the ibod that is necessary to sustain life? Deprived of the liljerty of carrying out the primeval curse which was plamd upon man, to earn his bread by the sweat of his brow. And we are told that this is private property ; that we must not inter- fere with it; that the Central Pacific Railroad Company are the best judges of the price at which they can run. Well, so they are the best judges, and so they would be, if they were guided by the commonest principles of fair dealing. But their judgment is altogether exercised upon the side of self. It was shown by the statistics, read here the other day, that out of the gross earnings the profits were more than ten per cent greater in California than any other railroad in the United States. I believe the highest was thirty- six per cent, in the other States, while it amounted in this State, according to the report of the Commis- sioners, to fifty -six per cent Now, these men have made enough out of this magnificent corporation to be willing hereafter to deal falHy. We know that they won't deal fairly, and it is our duty to make thein do it. It is our duty to prevent discrimination between places. They start out their railroad track and survey their line near a thriving village. Two or three cases of that kind happened between here and Lathrop. They would go to the most prominent citizens of that village and say, " If you will give us so many thousand dollars we will run through her^; if you don't we will run by," and in every instance where the sutwidy was not grante it is absolutely certain that they are not carrying freight anywhere at a price so low as to lose money. Then if they do not lose money, they can afford to carnr fifty miles at the same price they do one hundred. They can afford to carry to any intermediate point upon the same mad for the same that they do the whole distance. I do not propose to detain this Convention any longer in what I have to 8^, and end as I begun, by saying that the amendment proposed by the Chairman of the Committee on Corporations ou^bt not to be adopted; that in the very nature of things there can be no discrimination between individuals as to railroad facilities which is not unjust upon the very face of it, and we do not want any question raised or any trials had as to whether it was unjust or not Say, "You shall not discriminate. If John Smith comes to you with a ton of freight, treat him the same as if Peter Jones came to you with the same kind of freight, and give him the same advantages." The putting in of that amendment, the insertion of that word "unjust" here, would give rise in every case to liti^tion and in<^uiry. Just have it understood that the^ shall not discriminate. We decide here in this Convention a fact that is patent to every man, and we say, " You shall not discriminate at all." 8PKKCH OP MR. BABTOH. Mb. BARTON. Mr. Chairman: I concur with the gentleman last on the floor, in regard to section nineteen. It reads, in my opinion, just as it should read. It is the proper interpretation, and meets the wants and demands of the people of this State to-day. Mr. Chairman and gentlemen of the Convention, I confess myself at the present time in rather an awkward position. For several days I have had a desire to be heard upon the subject pending — the report of the Committee on Corporations — but having a degree of temerity, and a lack of courage, perhaps, to force myself upon this honorable body, I find myself with my manuscript totally routed and emasculated by the eloquent speeches and arguments offered by the very learned gentlemen who have addressed this Convention upon the subject; and when our old friend, General Howard, like an old Spartan, rose here and made his voice resound upon the side of the people, as against the oppression and encroachments of this soulless corporation, I telt as though the whole subject had been exhausted. I felt as though there was not a single word left for me to say ; and I do say now, to the fullest extent, and I with all sincerity and honesty of purpose, that Mr. HAWtlrd^the gentle- ^ Digitized by VjO ^ 518 DEBATES AND PROCEEDINGS TtJESDAy, man from Los Angeles, has more than answered every argument and .sophistry that has been introduced upon the floor of this house upon the part of the corporations. I do not say by their paid attorneys ; but, gen- tlemen of the Convention, it grieves me very much when I ftnd myself associated with what is considered the very brightest and best talent of the people of this State — the chosen, and seletrted as such — to find upon one side of this Convention men who are willing to come forth and fight the battles of the people, as against the oppressions and tyranny of the the corporations; ana upon the other siae, another class of mdivid- uals who have been elected and are entitled to seats upon this floor, who come here with the determination — anruing from their reasoning, or their standpoint of reasoning — with a full aetermitfation that the people shall be thwarted in their efforts to revise the fundamental law of this State. And, Mr. Chairman, being a farmer from the northern part of the State— from one of the cow counties of the north — I want it distinctly understood, that neither the imperial frowns nor the scorns of the hirelings of the corporations in this State, can deter me from my proper rights upon the floor of this Convention. I, too, am here for a purpose, and if I might be indiscreet enough to use indiscreet language or terms, if I should in haste use any language that would be indiscreet enough to call things by a proper name, I will hold myself personally responsible for every word I utter in behalf of the people upon this question, and against that soulless corporation that has crushed down labor to-day to the menial serfdom of the Mongolian slave. Mr. Chairman, I came here with the determination of working for the interests of the people (the corporations will take care of them- selves); and in making Just laws for the people, we cannot refrain from making proper laws for every one; and when I have beheld the ridi- cule and the scenes that have been perpetrated on this floor, I have been reminded that if the people were to hear all about the burlesque and the unreasonable conduct of this body, they would exclaim, with all their vigor and power, "This Convention does fall short of our expecta- tions." And I am fearful that that will be the verdict. Wo find ourselves occupying a position here, as delegates in this Con- vention, to revise the Constitution of this State; and it bears a relation similar to that of a jury, as we discuss and pass upon each of the propo- sitions which are proposed to the new Constitution. Therefore, sir, great care should be taken that we may arrive at Just and equitable conclu- sions, and render such a verdict as will be Just, alike to those who are interested in railroads and other corporations, and to the people at large. A spirit of fairness should, and I hope will, characterize our actions and our conclusions. That the best interests of the State shall be promoted, of all other conclusions, will no doubt be admitted on all sides. Yet, sir, there is a strong feeling in the minds of the people of this entire State, that the corporations control this Convention; and when we look around this chamber and find the array of legal talent which is pitted against adopting the report of the Committee on Corporations other than Municipal, we are not surprised that such a feeling exists in the minds of the people at large. We find, sir, the ablest lawyers in the State — many of tnem — battling here against that report. On the other side we find the farmer, the merchant, the mechanic, and, in a word, sir, the producing classes. Does not this state of things itself bring conviction to the unbiased mind 1 It would be idle, indeed, for the farmers and merchants and mechanics upon the floor of this house to cross blades, if you please, in debate with such distinguished advocates as Mr. Wilson, Mr. £dgerton, Mr. McFarland, and others. But, Mr. Chairman, we desire that our views shall be heard; and, sir, while we admit the ability, the skill, and the ingenuity of these gentlemen, we must still admit that the provisions of this report ask for nothing but what is fair and just, nothing but what the people of this State demand, when we find that the Central Pacific Railrmui Company earn such profits with the magnificent donations of the Government and the people, and seem determmed to dictate in all questions of State policy, from the election of a United states Senator down to the selection of a Warden of the State Prison. Mr. Chairman, there seems to be a conflict between this monstrous corporation and the people, and it might just as well be determined at once, now and for all, which shall control. It is fair to presume that the Commission will be just to these corporations; and if they are, what is there in the provision proposed by the committee's report which these railroad people complain of. The people are just and fair, and the rep- resentatives of the people have, or should have, no other motive than to reflect their will. Have the railroad companies become so obnoxious to the people that they are afraid that justice will not be done them 7 Or are they afraid that justice will be done? It seems to me, sir, that the provisions of the committee report, when amended as proposed, will meet the demand which the people of this State have made of us; and, sir, nothing short of this will fill the measure of that demand. Of the corrupting influence of this railroad I desire to speak a few words; They have robbed cities of their water fronts; they have ruled through highest styles of power and tyranny in the counties of this State, and by their gross system of colonization they have removed county seats, against the will and the wish of the people; they have subsidized the press of the State, and of the Nation ; they carry the political destiny of almost every man in this State around in their pock- ets; they have driven out of our State almost all of the intelUgent labor, male and female, by giving Chinese slaves the preference. Both they and their henchmen, and their organs, have slandered the intelli- gence of this State and Nation by the statement, namely : that had it not been for the Chinese, the great Central Pacific Railroad could never have been built I brand that as an insult to the intelligence of the American people, and especially to the people of the State of California. I brand such a statement as a falsehood, and characterize it as a gross insult. I am sorry Mr. Edgerton is not here, because I do not desire to say harsh things about a gentleman in his absence, but I shall only refer to him casually. He said the other evening, that the Southern Pacific Railroad was running at a loss of five thousand dollars a day, or one million five hundred thousand dollars a year. I believe that is about his statement. Why, sir, this is the man who, as a servant of the peo- ple, said that these gi^ntic railroad kings set themselves up over m u our masters. Now, sir, if they are losing five thousand dollats per day, or one million five hundred thousand dollars per annum, I must sty that I am compelled to give them less credit than I have always gireo them, to invest their money in an enterprise that never will pay any better than that. I will guarantee, gentlemen of the Convention, that the Southern Pacific Railrmui and the Central Pacific Railroad combined, will do nothing of the kind, to build a road where it will not pay them a percentage on their capital. In one breath, Mr. Edgerton says the lail- road would discharge their Chinamen and employ white men, and thereby elect their Commissioners, and the next breath he says the result would be to utterly drive out and destroy the railroads of this State. Speaking of the lawyers and their eflbrts, he eulogizes that pro- fession. So fiir as I am concerned, I think the lawyer is a neoessaiy evil, to say the least of it. I have no unkind words to offer against the lawyers as such. It is possible that it is neoeasarv that we should hare that intelligent class with us. I have no objection to it ; but when I find myself frowned down, or an attempt made to frown me down, because I am a farmer, forsooth, with their imperial frowns, then I claim it as my right to antagonize against that enormity, the profession of ths law. And while upon that subject, allow me to say that the people of this great Nation do distrust the profession of the law. In our natioiul Congress, out of about five hundred members, three hundred tod ninety-seven of them are lawyers, twelve fanners, and the remainder are composed of bank Presidents, railroad directors, and so on, and so on. Now, this disparagement of representation upon the part of the lawyers, does not speak well for the Nation; and, take the history of this State and its legislative career, and it does not speak well, in my opin- ion, for the lawyers. What our friend, Mr. Howard, has said of ths lawyers, covered nearly all the grounds, but what was left untouched, the gentleman from San Francisco, Dr. O'Donnell , finished up last night Therefore, I may leave the lawyer to occupy precisely whatever position he desires to occupy in this life without any molestation upon my part whatever, because I accord to him, as I accord to every individual, the right to think and act for themselves, in accordance with his own will and conscience. And, Mr. Chairman, while I am upon this subject, I desire to lay that since I have been upon the floor of this Convention there has been a determination to cast their imperial frowns upon me and my friends to that extent that it is not pleasing in my sight nor to my feelings. Whilst I have endeavored to extend to the gentlemen eveiy couitesr that was in my power, I have been branded with the sneering remtik that I was a Kearney ite; that I was a communist; that I was an agrarian. I brand it as a falsehood. I am, sir, if I know myself, a representative of the people of this State, and of no individual. 1 bend the knee to no individual. I speak my sentiments clearly and boldly upon every subject, whether intelligently or otherwise, I will refer to the public to determine. But when a man rises upon the floor, tad with his imperial frown atteinpts to drive me from my position in this body, by telling me, because I dare to be a Workingman, and cast my lot and my voice upon that side, I tell the gentlemen upon the floor of this Convention that it is an odium I am proud to wear, because of the fact that I find a majority of this Convention, gentlemen, upon the side of the people, and, God knows, they were not all elected upon my ticket Thank God for itl I say all praise to those gentlemen who have dared to have the manly courage to come out here and tssert their independence in behalf of the great fight and struggle they tn called iipon to perform here, and identify themselves with my tide of the Convention, if you please, in defense of the people and the people's rights. Why, sir, Mr. Edgerton, the gentleman from Sacramento, almost scandalized the Chairman of the Committee on Corporations, and the entire committee. And while I am upon this subject, allow me to call attention to the contrast in his position here to-day, and that which be occupied four years ago last Winter, when I was entitled to a seat upon the floor of this very chamber, from this county, then my own home. When we found that monstrous corporation in here with its representa- tives, and the great fight was being made for the United States Senator, I then found myself here upon the side of the people as I do to-day, and along with me was the honorable gentleman from Sacramento, Ur. Edgerton. The very manly fight that was made by that gentleman and his friends in behalf of the people, and against the corporation — for I bad the honor of stumping the county with him and being with him during the campaign — a more honorable fight than he made was never made in the State of California. Yea, even the noble Haight never made t nobler fight than Mr Edgerton. Then what has como over the spirit of this man's dream? We find hira here to-day villifying, and scandalizing, and breaking down the report of the Committee on Corporations, and oe does not offer to this honorable body one sentiment in argument that would lead to anything like an intelligent conclusion upon this snl^'ect, whereby this body might adopt some other report or some other means that would meet the people's demands in this State. Why, sir, at that momentous time, four. years ago last Winter, when the people were aroused from one end of the State to tho other upon the subject of corporations, what do we find then? We find the honorable fentleman from Marin, Mr. Sbafter, championed by one side of the ouse, and Mr. James Farley, of Amador, from the other side, and the people sandwiched in between these two great parties, attempted to be crushed out of existence, making a manly fight, as we are to-day mak- ing. What was the result? The manly courage of the people's repre- sentatives went on from day to day, and from week to week, and ths Republican and Democratic parties pooled th^ir issues, itsaa please, Digitized byLjOOgle Nov. 26, 1878. OF THE CONSTITUTIONAL CONVENTION. 619 pooled their political issues, and were willing to cast aside all of their bickerings and wars of years, throw Mr. Shafter overboard, and cast their entire Tote, as they propose to do in this Convention, for the corpora- tions and against the people ; and though in our infancy, in our weakness as an element standing up and daring to battle for the people, we came forth from our sandwiched position, claimed the dignity of men, and made a gallant fight, which resulted in the overthrow of the mandates of the corporations, and elected the people's choice of this State, Newton Booth, to the United States Senate. Then it was, sir, that a Bemocrat, like myself, who has been for thirty years in this State, rose above party and voted for Newton Booth. Then it was that a Democrat like me could cast aside every other oonsideration and support the measures and the demands of the people. Mr. Chairman, it does vex my heart, it pains me, to see the bright intellect that the people have sent here pitted against the insignificant and lowly representatives of the people of this State. Coming here as we do, without any knowledge in parliamentary law, without any expe- rience in legislative matters, to see these misled minds pitted agamst us, I tell you, gentlemen of the Convention, it does grieve my soul and my heart. For why? Because I claim, air — because I brand them — I send it home to their hearts — their motives are sinister, and not in keep- ing with the demands of the people and of the times. And, sir, this corporation, this Central Pacific Kailroad corporation, has filled our land with tramps, and when one of them comes along — a white man — he may be a man of education ; he may have beeaeducated in the highest schools of the East; yet he has journeyed with his educa- tion to this shore, and when he knocks and asks for admission and employment, because he carries his blankets upon his back he is told, "Begonel you are a tramp; we prefer to employ Chinamen." I am sorry to say that this spirit has permeated not only the corporations, but it has permeated the body politic all through the State. We find it, if you please, in its ramifications deep down among the Grangers, where I belong. I scorn them and brand them as false to their professions; that they are not Grangers, and are not entitled to the appellation. Mr. Chairman, I shall not weary the committee but a short time fur- ther. The ground has been so thoroughly covered and so much has been said, that I believe that the intelligent members of this Conven- tion— and I claim they are all such, and God forbid that I should utter anything otherwise — are ready to vote, and I hope that they will, as nearly as possible, adhere to the report of the committee. Now, in regard to the appointment of the Commission, which section twenty refers to. I am not willing, for one, to submit this matter to the Legislature, and I will not support any proposition that has a tendency to throw this question into the hands of the Legislature in anv shape, form, or nature. It has been asserted by Mr. Shaller, that there are only three distinct branches of gnvemment in this State. Admit it, sir. I am perfectly willing to admit that there are but three, but when the time comes that a soulless corporation will even go so low and so con- temptible as to control the two great (so called) political parties and their party machinery, so that three distinct branches of government will not run this State, I am in favor of making four, yea five, if it is necessary, in order to mete out the views and the demands of this people. THE AMKNDIIINTS. Mr. LARKIN. Mr. Chairman : I would ask what amendments are pending to section nineteen? I think that after being discussed for the last three or four days this house should dispose of it, so that we can dis- cuss section twenty. In section twenty there is a question involved in relation to the Commission, and if there are no other amendments, 1 will move Mb. CAPLES. I have one. Mb. LARKIN. Mv objection to the amendment of the gentleman from San Francisco, Mr. Estee, is that it nullifies the section. We should provide positively that nodiscrimination inchargesor facilities for trans- portation shall be made. That is clear and positive, and I believe that the Convention is ready to vote down that amendment and carry that section as it stands. Therefore, as soon as the Doctor has offered his amendment, I shall move the previous question. Me. CAPLES. Mr. Chairman : I desire to offer an amendment to the amendment. Thb SECRETARY read : "Strike out, in the first line, the word 'discrimination,' and insert the word • robbery .'" Mb. CAPLES. Mr. Chairman: I do not desire to discuss this question at all, and I confess that the two terms are equivalent — discrimination and robbery — but I have a decided preference for the latter. Therefore I offer the amendment. Mr. BARBOUR. Mr. Chairman : If I understand it, the report, so-called, by the Chairman of the Committee on Corporations, to insert the word " unjust," purports to be a report of the committee. Mb. ESTEE. I did not say it was a report of the committee. I said I had submitted it to a majority of the committee. I do not think it makes any diffei^nce one way or the other. I offered it at the sugges- tion of members on this floor who were friendly to the proposition, and with a view to uniting the friends of the measure. RItMABKS or HR. BARBOUR. Mb. BARBOUR. Mr. Chairman: I seriously object to this manner of introducing-amendments. Every morning the Chairman of the Com- mittee on Corporations comes in with an amendment, and says it is by the action of a majority of the committee. Running up to a member whilst perhaps he is talking to a man, he asks him, " Have you any objection to this proposition?" The member has no opportunity to examine it. Then he hands it in here as the act of a majority of the committee. I object to that mode of procedure, and I rise now, not for the purpose of discussing this amendment, but to say, as one member of the committee, that I never did consent to it, and do not now. To insert the word, "unjust," there, destroys, or qualifies, the whole section. In the speech of the gentleman from Sacramento, no allusion was made to the misfortunes to which the people of Illinois run by inserting that word into the Constitution, or where they had finally to legislate down to the proposition that the discrimination must be considered prima facie unjust. The moment you proceed in this direction, the question is raised, what is unjust discrimination ? and you^o wrong altogether; you open wide the door for construing the section away. I say wat there is no discrim- ination that is not an unjust discrimination — prima facie an unjust dis- crimination. And that is all that is necessary to be said. It is inferred that any discrimination is an unjust discrimination, and I have not one particle of doubt that if those Conventions that have employed the word had the work to do over again, that every single one of them would leave the word out of the section. This Convention, seeing the dilemma into which these Conventions run, should not insert the word and open the door for construing it away. Mb. GRACE. Mr. Chairman : I move that the committee rise. Mb. TULLY. I would ask if an amendment is in order? Tex CHAIRMAN. The gentleman can send up his amendment, and it depends upon what it is. Thb SECRETARY read : " Amend section nineteen so as to read : 'The Le|;islature shall, after the adoption of this Constitution, establish and provide a system for the enforcement of an equitable tariff of rates to be charged for the trans- portation of freight and passengers by the railroad and transportation companies of this State, and all appropriate legislation to prevent undue and unwarrantable discrimination in such charges or in the facilities for the transportation of the same class of freight Or passengers by such companies between persons and places, and sliall compel the observance of the same by fines and forfeitures upon such railroad and transporta- tion companies, and by imprisonment of the officera or employ^ thereof, at its discretion.' " BBMARKS op MR. VCCOKNKLL. Mr. McCONKELL. Mr. Chairman: Idesiretooccupy theiimeof the committee but a few moments, and I will first read a few lines from the speech of the gentleman from Marin, Mr. Shafter. He says : " Way back in eighteen hundred and sixty, this railroad excitement commenced. There was not a man in the State who would not turn his pockets wrong side out to help build a railroad. The people were willing to give them all they asked, and all they did was to take all the people gave them. You forced it upon them, and they scarcely had to ask for it. You gave it to them without any restriction whatever. Congress gave them fifty millions of dollars without scarcely inquiring what they were going to do with it. They did not even inquire where their probable terminus would be. It was mentioned as being at or uear the Bay of San Francisco, and they stretched that as being at Sacramento. It was given to them without a solitary condition. All this was done by our delegation in Congress. The State itself gave them millions of dollars, and the people subscribed for millions of their stock. I voted against it in the Legislature, and would do it again. Another bill was pwsed granting them ten thousand dollars a mile for every mile the Pacific Railroad had built, or should build in this State. These subsidies amounted to about twenty million dollars. The people got cooled ddwn a little, and sent me, with othera, here to have that Act repealed. We did so ; and what did the people do? They sent the man who introduced the bill and got it passed to the United States Senate. Talk about the people wanting this thing and that thing, here is an instance of it. I was sent here to repeal the bill, and I did so, and after I had done so I could not probably have got a vote because I was a monopolist, and the other gentleman was an anti- monopolist. The people are generally hasty and do not examine deliberately." In view of the vast past experience of the gentleman — nineteen years as a legislator, and a great many years as a railroad builder — I expected we should hear from him something that would offer a solution to the whole question. I remember the time very well when the people of San Francisco opposed the building of the Central Pacific Railroad, and called it the " Dutoh Flat swindle." It was at a time in its history when it was struggling for existence, without means, and in need of friends, and it was perfectly safe to oppose it. It was at this time that the f^ntleman, as he says, was sent up to Sacramento for the purpose of making a new bargain, in which he partially succeeded, by which the people are now, and have been ever since, paying the Central Pacific Railroad one hundred and eight thousand dollars a year. The people, as he tells us, failed to recognize his great services, and sent anotner gentlemen to the United States Senate, who had assisted the railroad. In course of time the struggling company accomplished the mighty undertaking, and its terminus was established at San'Francisco. A few short years pass, and the people send the gentleman again to Sacramento to revise the fundamental law of the land. Beholdl What a change has come over the spirit of his dreams! The struggling infant is now a giant, successfully contending with the people ofthe entire common- wealth; making Governors, Representatives, and Senators; controls the entire transportation of freight and passengers upon this coast, and threatens to enslave a free people. Where does tne gentleman from Marin stand now ? He has already answered. His speeches upon this floor too plainly tell on which side he is enlisted. This fight never will be settled, and it ought not to be settled, until it is settled upon the eternal principles of right and justice. Thecorapany will have a barren victory that ignores these principles. I desire information upon the following questions: The distance from Winnemucca to Sacramento City is three hundred and twenty-four miles, and the return to Winnemucca, six hundred and forty-eight miles, and is over the high Sierra Nevadas, where the grades are high, the curves sharp, and often deep snow ; and Mr. Edgerton 520 DEBATES AND PROCEEDINGS Tdesdat, sajs the cost of bMiling is incrsased five timM for ereiy twentj feet of grade. Now, harin^ two carloadi of freight at Winnemncca readj for shipment, and deeinnz to aend it to marlcet — say to Boston, Maasachu- setti — is it necessary that it should be taken to' Sacramento and then returned to Winnemuoca before it starts on its destination? If the rail- road should take your freight a^nst your wishes to Sacramento and return it over the same road to Winnemucca, and charged you for that •errioe one and one half cents per peund, or three hundred dollars per oarload of twenty thousand pounds, would you not think it unjust and wrong? This is the management in eighteen hundred and seventy- eight. I find, in looking over bills of iMing in eighteen hundred and seventy-three, that a different policy prevailed. Freight did not come over to Sacramento, but went directly east, and the charge was only one cent per pound, or two hundred dollars per carload, although it was three hundred and twenty-four miles nearer Boston than Sacramento. In addition to these charges through rates are added. Do you think such management in transporting produce to market a wise and just policy toward the producer? Should a person be punished because he IS nearer market than his neighbor? Do you think that part of a thing is worth more than the whole of it? I cannot think of anything where such a rule would hold good, except it be upon the long speeches in this Convention. [Laughter.] I desire to know of the gentleman from Marin if his agent on his little farm in Marin should take his butter and cheese, the produce of his dairy of five thousand oows, and trans- port it to Ukiah— one hundred miles in an opposite direction and back again — before it took its departure to San Francisco, the market he wished it sent to, and chargea him one and one half cents per pound for that kind of service, if he would retain him in his employ and think he was a good and wise servant? If he answers all these questions to the satisfaction of the Convention, I shall be disposed to assist him to the United States Senate the next time he is a candidate for that high and honorable position; for certainly no other man will be his equal in this State. And I would ask him further — he having been a lawyer for forty years, and a man of large experience and extensive practice, and familiar with legislation in California — if he can tell us what has become of the Contract and Finance Company? If so, was it a financial suc- cess? Also, what has become of the Western Development Company, and was that equally successful ? And further, what is the name of the new company that has recently been formed, and are its objects the same as its deceased brethren. Mb. grace. I think we have a rule that we should take a recess from twelve o'clock to two. I am as much in favor of getting along with the business of this Convention as any gentleman on this floor, but I cannot see any use in sitting long after the usual hour and then having the balance of the time in the evening. We can take the recess at the usual hour. I therefore move that the committee rise, report progress, and ask leave to sit again. Carried, on a division, by a vote of 73 ayes to 35 noes. IN CONVENTION. Th« PBESIDENT. Gentlemen; The Committee of the Whole have instructed me to report that they have had under consideration the report of the Conxmittee on Corporations other than Municipal, have made progress, and ask leave to sit again. The Convention then took the usualn-ecess until two o'clock r. H. AFTERNOON SESSION. The Convention reassembled at two o'clock p. v., President Hoge in the chair. Roll called and quorum present. aiCOHSIDIBATIOll HOVID. Mb. TINNIN. Mr. President : On yesterday the Convention passed a resolution to adjourn until Monday, at two o'clock. A ^ntleman gave notice of a motion to reconsider. That motion was laid on the table. I now move to take it from the table. Mb. BARNES. I move that the whole matter be indefinitely post- poned. Mb. McCALLUM. That motion cannot be entertained until it is taken from the table. It is not now before the Convention. Until it is taken from the table it is not before the Convention. Thi PRESIDENT. The gentleman' from San Francisco, Mr. Barnes, moves to indefinitely postpone the' motion. Mb. HILBORN. I hope this motion will prevail. Mr. BARNES. I moved to indefinitely postpone the motion of the gentleman from Trinity, Mr. Tinnin. Thb PRESIDENT. The question is on that motion. I&ies of " division," " division."] Mb. van dyke. What will be the effect of that motion ? Thb president. To indefinitely postpone the motion of the gen- tleman from Trinity. Mb. smith, of Kern. Will the Chair state the effect of that motion ? Thr president. It will have no effect except to indefinitely post- pone the motion made by the gentleman from Trinity. Mb. LARKIN. Ayes and noes. Me. CONDON. Ayes and noes. Mb. WHITE. Ayes and noes. Mb. WYATT. Ayes and noes. Mb. HILBORN. Ayes and noes. Thb PRESIDENT. The Secretary will call the roll. The roll was called, and the motion to indefinitely postpone prevailed by the following vote : ATBS. Ayers, Boggs, Casserly, Barnes, Boucher, Chapman, Barton, Burt, Charles, Blackmer, Campbell, Cross, Crouch, Johnson, Shafter, Dowling, Joyce, Shurtleff, Dudley, of San Joaquin, Keyes, Smith, of Santa Clara, Dudley, of Solano, Lindow, . Stedman, Dunlap, Martin, of Alameda, Steele, Ertee, Martin, of Santa Cnu Stuart, Estey, McComas, Thompaon, Van I^ke, Farreli, McConnell, FawceU, Miller, Van Voorhies, Filcher, Moreland, Walker, of TuolujBM, Garvey, Moras, ' Water% GrefWr Noel, WeUer, HalV Ohleyer, Wellin, Harrison, Overton, Wilson,of 1st District, Harvey, Pulliam, Winans, Heiskell, Schomp, Mr. Preaideot— «1. Herold, son. Andrews, Holmes, Reynolds, Barlyrar, Howard, Rhodea, Barry, Huestis, Ringgold, Smith, of 4th District, Brown, Hunter, Caples, KeUey, Smith, of San Francisco, Condon, Laine, Soule, Cowden, Larkin, Stevenson, Davis, Lame, Swenson, Dean, Lavigne, Teny, Doyle, Lewis, Tinnin, Eagon, Mansfield, Tully, Evey, McCallum, Turner, Finney, McCoy, Vacquerel, Freeman, McFarland, Webster, Freud, McNutt, West, Glascock, Moffat, White, Gorman, O'Donnell, Wickes, Herrington, Porter, Wilson, of Tehama, Hilbom, Reed, Wyatt— 68. Hitchcock, Mr. LARKIN. I object to the name of Mr . Noel being counted. Thk PRESIDENT. Too late ; the result has been announced. BXPB1ISI8 or A OOKIUTTBB. Mb. HOLMES. Mr. President: I present a report from the eon- mittee appointed under a resolution of this Convention adopted Novem- ber seventeenth. Tbb SECRETARY read: BiCBAMnrm, NoremlMr 2Mi, lOTt K«. PusisiKT : Tonr onnnilttM appolntMl on the wnBteeath Inslaat, to aakt amngemsnti for th« otasqnlM of HoBorabl* i. M. Straof , lata a DMrnbtr <( tUi CoaTentlon, beg leave to report tbat in the dieehaise of their duties laeaind expenses to the amoant of two bnadred and alne^ dollan and Hfty cento, far wUdi Tonchen are herewith presented. The oommlttee recommend the adoption of the following reeolntlou: Bttalved, That the Oontioller lie aod he ie hereliT anthoiiied to draw his mmat In fitror of the Sergeant-at-Arms for the amonnt of two hundred and oinetx dollais and fifty oente, to pay the expeaees of the obeeqoles of the lata HoiuMmMe J. M. Strong, a member of this Oonventioa, and tbat the State Treasnrer be ud be it hereby anthoiixed to pay said wanaot oat of the fandi ^>pn>piiatsd to tbit Convention. Raotvtd, That the per diem for the remainder of the ieedoa of this Oonventioa, which the lata Honorable J. M . Strong would bare been entitled to as a membw of this Convention, be paid to the family of deceased. 8. A. HGLIIES, Chdniu. Tbb PRESIDENT. The question is on the passage of the reeolutioD. Adopted unanimously. TBI BlILBOAD COVKISSION. Mb. E8TEE. Mr. President : I move that the Convention now resolve itself into Committee of the Whole, the President in the chair, to fiuiher consider the report of the Committee on Corporations other thsa Municipal. Carried. IN COMMITTEE OF THE WHOLE. Tbi chairman. Section nineteen is before the committee. SFBBCa OP MB. STEDMAV. Mb. stedman. Mr. Chairman : I feel somewhat diffident, after listening to the very able arjpiments of the distinguished gentlemen who have preceded me on both sides of this great question, in offering a few remarks after this subject has been so thoroughly discussed; yst,sir, recognising as I do, the fact that the subject-matter involved in the sec- tions now under consideration is of vast interest to the people sf this State,and balieving as I do, that no subject will be brought to the atten- tion of this Convention of greater importance than this question of cor- porations, the solution of which will require the most careful eonvden- tion, and, also knowing that the public mind is excited upon thisque^ion of railroad corporations especially, I cannot, in the performance of the duties incumbent on me as a representative of the people, do lea thas raise my voice in favor of these sections. The people expect us to act squarely on this question, and not dodge it. They expect ns to place restrictions on these corporations, for the reason that there is, as has been demonstrated by the able gentlemen who have addressed the ConveaticD on this side of the question, special abuses that have crept into the rail- road system, which demand special remedies. It \> propoaed in nctioD nineteen, that: " No discrimination in charges or facilities for transportation shall be made by any railroad or transportation company between places or per- eoiu, or in the facilities for the tranqiortation of freight or paasengeit -IBUm^ Nov. 26, 1878. OF THE CONSTITUTIONAL CONVENTION. 621 within this State, or coming from or going to any other State. Persons and property transported oyer any railroad, or by any transportation company, or individual, shall be delivered at any station, landing, or port, at charges not exceeding the charges for the transportation of per- sons and property of the same class in the same direction to any more distant station, port, or landing. Excursion and commutation tickets may be issued at sfiecial rates." The section provides that no greater charge should be made for carry- ing a short distance than for a lonjger one. Here is one of the causes of complaint. A greater charge is in many cases made for carrying ten miles, where the business is local and no competition can exist, than in other cases is made for carrying fifty, and even one hundred miles, over the same line. In the matter of freights, I am informed that grain is carried from San Francisco to Yuma for ten dollars per ton, and although Loe Angeles is about thirty-six hours nearer Yuma than San Francisco, it costs the merchants of Loe Angeles just the some price — ten dollars per ton — to axp(ftt their grain there. Instances of further discriminations in favor of localities have already been noticed in this discussion, and thousands of additional instances could be cited, as well as the other unjust enforce- ment of arbitrary rates, made at points where no relief can be had from the extortion of the carrying companies, for the sole purpose of exacting all the tribute which the commoditiee carried will stand. On the other hand, where there is competition, a carload of freight is. carried a hun- dred miles for a sum le« than is charged for carrying the same freight ten miles where there is no competition. It is a matter of fact that upon small communities great impositions are practiced in putting upon them enormous charges for transportation, in order that the companies may be the better able to carry from the great cities at very low rates. And it is to abolish this abuse that this section is offered. I think all will agree with me that this injustice to the shippers from intermediate points is setting to be too grievous to be borne mueh longer, and a remedy must be found. It is the experience of the past which tells us that we cannot expect the remedy from, or through. Legislatures. If restrictive laws were enacted, the companies would get other Legislatures to repeal them — therefore the necessity of putting in a constitutional provision which cannot be repealed, and which, being enforced under proper legislation, cannot fail to be salutary in its influence. The next section provides for the creation of a Board of Bailroad Commissioners, who " shall have the power, and it shall be their duty, to correct abuses by railroad corporations or other transportation com- panies, establish rates of charges for the transportation of passengers and freight for railroad or other transportation companies," etc. It has Deen said by gentlemen on this floor that this section contem- plates the creation of a triumvirate, having powers that are absolute, exercising executive,judicial, and legislative functions combined. Weil, sir, what if it doesT To my mind there is merit in the proposition. I believe it is a correct one — for here are three officers of the State clothed with the sole power, not only to regulate fares and freights, but to enforce a proper obedience. It is an absolute necessity, to my mind, that there should be public officers charged with the duty of investi- gating these outrages and wrongs, and havine the power to apply the remedy. It is evident to all that the acts of this Commission must fall far short of our anticipations, unless we provide some means by which they can be enforced. The eloquent gentleman from Sacramento, Mr. Edgerton, spoke of the limited powers of existing Railroad Commissioners, especially the English Commissioners. Why, sir, the English Board of Railroad Com- missioners provide for the limitation of freights and fares, as well as the character of the train's service, requiring them to run first, second, and third-class trains, and specifying the time for such service ; also how cars shall be constructed, the length, breadth, heighth, etc., and various regulations, completely demonstrating the fact of their having and exercising the same powers in effect as are sought to be conferred upon the Commissioners provided for in this section. The gentleman admits the fiust that in England the solution of the railroad question was recog- nized as an anomaly in the exeroise of governmental powers, and that a creation of an anomalous power was necessary ; that it required a Board possessed of different functions from any of the former methods; that it should possess powers of a combined legislative, executive, and judicial character. He admitted further, that there it was impracti- cable for Parliament to deal with the question, and that in order for the workings of this supervisory and controlling Board to be effectual, they should he clothed with arbitrary powers in some particulars, and then attempts to argue from the fact that they ore caUed upon to exercise these arbitrary powers in but few instances, that the necessity for the existence of such a Board is brought into question. Does not the gentle- man know that the very fact of the existence of such a Board, clothed with ample remedial powers, and ready to exercise the saiqe upon the development of any reason for so doing, is, in itself, the reason why so little call is made upon it? And I am frank, sir, in saying that if we had had heretofore as thorough a control over the carrying companies in this State as is maintained in England, there would never have arisen this vast system of extortion and unjust discrimination, that now char- acterizes the railroad operations in this State. ¥toj sir; there is no question in my mind as to the duty of the State to exereise, through this Commission, all the powers contemplated by it, anomalous though it may be, if her citizens are to be protected. The gentleman's ailment, therefore, resolves itself down to this : that under the claim of vested rights these corporations can bid defiance to th* government — if they will acknowledge there is a government. He, with other gentlemen who have spoken on thissubject, claim, according to the arguments they have made, that there is no government that can control, and regulate, and limit their demands. I maintain, sir, that corporations are subject to governmental powers, the same as individu- 66 als. I hold that the charges of railroad corporations can be limited, the same as tolls of ferry, bridge, plank road, and turnpike companies. It is a fallacy to assert that a railroad, or any private corporation, can have a vested right in any governmental power. It has been said that this is a matter of legislation. Whenever it suits some gentlemen on this floor to oppose certain measures, it is legislation ; but when it suits their pumose to thrust the same into the Constitution, it is constitutional law. I have not heard an^ definition here of constitutional law as contradistinguished from legislation. I do not know where to draw the line. No one has attempted to do this. It is legislation when they do not want it, and it is Constitution when they want it placed in the fun- damental law. The Convention of Massachusetts of eighteen hundred and twenty, in an address to the people — a document prepared by Judge Story, Chief Justice Shaw, Daniel Webster, and a dozen other great lawyers and eminent men, set up the distinction, and this is what they said : " In framing a Constitution, or revising one for an extensive commonwealth, in which various interests are comprised, nothing more can be hoped for than to establish general rules adapted to secure the greatest good for the whole society." This provision, I hold, is one of that kind — a " general rule for the ^[reatest good." It is not mere legislation, and it is one of the most important on this subject. I am opposed to this eternal cry of legisla- tion. We know what will be the result if we give up this matter of the regulation of corporations into the hands of the Legislature. The people are demanding that we secure them this protection through the medium of the organic law, and, sir, for my part, I am willing that organic law shall stand between the people and these vast moneyed corporations. The time has come when the constitutional power of the State should be brought in use to protect the people. In my judgment there can be nothing done by this Convention that will give such universal satis- faction as providing in the Constitution for the protection of the people against the aggressions and extortions of these great monopolies. Rail- roads are great and grand things. I place as high an estimate on the inestimable value of these immense commereial enterprises that are running throughout our State and country as any man, but I would rather see every railroad which has been constructed sunk out of sight, than to see this free people become, as they gradually are becoming, the slaves of these immense corporations. No gentleman has had the hardihood to assert that abuses do not exist. They not only exist, but are practiced under the forms of law. This crying evil demands redress at our hands. This robbery under the forms of law should be ended. The New York Evening Express recently, in an article on railroads, said : " The most vital issue in the United States to-day, is whether the State shall be ruled by the people or ruined by the corporations." This is too true. The daylight robbers are abroad, stealing from the people under the protection of miserable charters, and the practice is being rendered respectable by being followed under the cover of legal- ized methods, which gentlemen say here we cannot interfere with. I do not know that I can better illustrate the practice than by reading an extract from a chapter of Erie : " Pirates are commonly supposed to have been haltered and hung out of existence, when the Barbary Powers and the Buccaneers of the Spanish Main had been finally dealt with. Yet freebo^rs are not extinct ; they have only transferred their operations to the land, and conducted them in more or less accordance with the forms of law, until, at last so great a proficiency have they attained, that the commerce of the world is more equally, but far more heavily, taxed in their behalf than would ever have entered into their wildest hopes, while, outside the law, they simply made all persons stand and deliver. Now, too, they no longer live in terror of the rope, skulking in the hiding place of thieves, but flaunt themselves in the resorts of trade and fashion, and disdaiuingsuch titles as once satisfied ancient Pistol, or Captain Macheath, they aro recognized as ' President this,' or ' Colonel that.' They rob and steal in every conceivable manner. We have seen our lands taken from the people and given to these corporations by corrupt Congresses, and these same corporations whose miserable, grasping, and soulless existences have been flattered into life by this wholesale robbery of the people, using the wealth of which they have defrauded you and I to corrupt our Legislatures and our Courts, until they are almost able to defy us." These corporations are not the great benefit to the people they are said to be. They have laid their blighting hands upon every avenue of labor, have prostrated industries, reduced wages to starvation prices, and, in pursuance of this policy, have introduced into our midst, to compete with our white labor, swarms of the most degraded race whom God ever knew, or the devil ever dreamed of — the filthy, leprous Chinese — a race to whom no refinement is possible and no civilization attainable; to whom virtue is unknown, and vice and depravity their only religion. Our white laborers cannot compete with them, and are forced to suc- cumb and accept labor from these corporations for the support of them- selves and their families at the mere pittance of one dollar per day. This great State, with resources vast enough to support thirty millions of people, has only a population of eight hundred thousand, and notwith- standing this^ there are thousands of our people suffering the greatest poverty in consequence of the general corruption of the times. And now, Mr. Chairman, in conclusion, I desire to say that my con- stituents, who have sent me here, have charged me to give all possible aid to the curtailment and limitation of the powers of these grasping cor|x>rations, and the abolishment of the abuses and evils wbicli have grown up under their fosteripg care, and every sense of my duty to them, as well as all of my personal convictions, induce me to vote for these sections as they stand. To these corporations, together with the privileges that have been granted, there has been confided a high, sacred trust; and, sir, standing upon the broad platform of reform, i demand that in the enjoyment of their privileges they shall alse,.discharga their 'iDigitized by Gioogle 522 DEBATES AND PROCEEDINGS Tuesday, trast with a proper regard for the welfare of the people, who, in giving the one, will inaiiit npon the other. 8PIECB Of MR. lAOON. Hb. EAGOK. Mr. Chairman : I am well aware that the Convention is becoming wearied over the protracted diacuasion of this question, and I need not detain this body any ^at length of time in hearing what I have to say. I would not detain them at all; yet, sir, there are some things I desire to say in order to set myself right in voting as I shall upon the questions now under consideration. I have not occupied any of the attention of this Convention before, and I shall ask their indul- gence that I may say a few words, more in explanation of my vote than for the purpose of attempting to produce any new ar^ments that will influence the vote or action of any gentleman upon this floor. Now, sir, I am in favor of the amendment of the gentleman from Los Angeles, as modified by Judge Hager. I am in favor of that amendment, for the reason that I am unalterably opposed to section twenty, creating this Commission. I believe, sir, that the object sought to \fe accomplished might very well be left to the Legislature. In voting as I ^hall, I can- not be charged as being either a friend or a foe to the great railroad cor- porations of this State. I have never had any connection with them, and never was said to bo their friend or their foe; but I have always acted in public life in a manner to do justice, both to the people and the railroad corporations, and always intend to do so. Now, sir, I have not lost faith in the people. Like Judge Bhafler, I believe an honest Legis- lature can be elected, if the people themselves will look to it and see that honest men are sent to the Legislature. It has been too often the case that these positions are left to men incapable ef filling them — ignored by good men for more remunerative offices, without receiving proper attention from the people. I believe, sir, that this section twenty is in conflict with the spirit of our Government. It is a centralization of power that no man who believes in the true principlesof government can give his sanction to if he will investigate the matter. I have arrived at these conclusions, not from the force of the argument of the gentleman from Sacramento, Mr. Edgerton, because I difler with him as to the line of his argument. That argument was more a defense of the railroad corporations than it was to sustain right constitutional principles. I differ also with the gentleman ftom San Francisco, Mr. I^tee, in regard to his conclusions, but I am satisfied that a great portion of his argument is correct. ■ There is no need of reiterating here what everybody knows. Go back to the commencement of railroading in this State, when Governor Haight first took a stand against railroads. These matters have been written upon and talked over day after day and year after year. Every man in tnis assembly knows well enougK what the grievances of the people are. They know that these questions have been talked over. Every man in this body has reaii them. Every man knows that there has been great wrongs perpetrated by the railroad companies, but tlfat is not the question here. The question here, in my judgment, is where the lodgment of this power to control should be. It is admitted by all that wc have a right to control freights and fares; that we have a right to legislate against discriminations; and all we have to do is to arrive at the simple conclusion as to where this power to control should be lodged. Is it ^tter, I ask, to lodge it in the hands of a Commission oompo^ of three men, or is it better to lodge it with the people them- selvesT Letiine say right here, that my honest conviction is, as soon as this Convention attempts to take that power away from the people of this State and place it m other hands, the people of this State will spit upon your Constitution, and I would not blame them for doing so. What right have we to take away from the people the great right of govern- ment— under a republican form of government — to act through the Courts? Why, sir, if the people send corrupt men here without intending to do so, is it not an argument to throw in their faces that they themselves are to blame? It seems to me so. I can argue it from no other point. If the people are corrupt, they will send corrupt men to the Legislature, which I deny as a general thing has been done. If they are honest they will send their best and purest men here. I think they will hold the members of the Legislature to a stricter accountability nereafter. This being done, sir, would you take this power away from the people and place it in the handsof three frail men? As has l>een intimated by Judge Terry, I wodld not place these men in a position where they would be so tempted as these Commissioners would be under this condition of affairs, provided these railroad corporations are as corrupt as you make them out to be. Now, sir, I say the people of this State will not give up this power. It is not a mere matter of legislation, that can be undone in two years sliould it prove oppressive. Gentlemen forget, it seems to me, the responsibility that is placed upon them. They forget the importance and the magnitude of the act they are about committing in this (k>n- vention. They do not look to the great principles of our Government ; that it is republican in form ; they do not stop to consider that the great- est, most important thing the people can do is to frame an organic law. Gentlemen nave forgotten, I think, that they have been sent here for the purpose of founding a government for one of the greatest and grand- est States in this Union. And yet they would put this into the Constitu- tion, where it cannot be changed, altered, or amended; no matter what hardships it may work, it must stand there until a new Constitution is framed, if you place this great power, this vast power, this absolute power, in the hands of these three men. Then, let us look further to the succeeding section, which districts this State, and says how these Commissioners shall be elected, and from what portions of the State they shall be elected. Now, it has been the cry all over the State for years, and it is the cry in this Convention to-day, that the railroad corporations control the politics of the State ; that they con- trol our legislative bodies; that they control our Courts; that they have a controlling power over this body. I deny it, sir; but if such is the case, how easy it would be for them, under the classification here, to elect three meip to do their bidding, and do as they shoulddictate against the people. If you will notice how the State is districted — and certainly I mean no disrespect to the committee, for it would have been almost impossible to have done otherwise — -you will find that the railroad passes through two thirds of the counties in every districL We know they sometimes interfere in the politics of the Slate. They control many of our primary meetings, and political conventions. How easy it will b« to go into these districts where, out of twenty-two counties, ten are inter- sected by railroads, how easy it will be for them to control our primary meetings, and our conventions, and nominate three men who will cany out their wishes and desires. I say they oould do it without any trouble at all. It is absurd to say that we can carry on this government without parties. They can organize a party in their favor if they see fit to do so. Now, sir, they could elect three men as easily — more easily — than they could elect one hundred and twenty men to the Legislature. If theycaa elect or control a body of one hundred and twenty men, how much more easily can they control three men elected under their influence, aifd ia their own cause. And there is no denying the fact that, if they see proper, they can have influence and power in our political organization, and they do have it. For these reasons I am opposed to this twentieth section. I shall vote against it upon the ground tnat I do not wish to take the power out of the hands of the people. I believe it can be controlled better by the Legis- lature, that the power will be safer in the Legislature, than in the hands of these three men. I believe, sir, again, that if we put that into the Constitution, the people will not allow that power to pass out of their hands, and that they will reject what we have done here, and what we may do, and all our work will go for naught. And, sir, as 1 said before, 1 am not here to protect railroads or to ruin railroads. I believe that the right place to lodge this power is in the Legislature, not in the hands of the Commissioners, therefore my vote shall be cast against this sec- tion and the sections following it, and I shall vote for the amendment of the gentleman from Los Angeles, Mr. Ayers, as modified by Mr. Hagcr. I believe that is all we were sent here to do upon this question, nothing else ; not to take the power out of the hands of the people and place H in the hands of three men. If there is danger in the others, there is ten times more danger in bringing it down to the point the committee would have us bring it to. Some of the gentlemen who have spoken here, Mr. Beerstecher, for one, who has not been a resident of this State for more than a year, and has recounted all the things that arc oat of place. He, perhaps, has some excuse, but it seems to me that this is only consuming time to no good purpose. It is not the place. If these Commissioners are to be elected, these gentlemen should go before them and make their speeches there. Either before them or the Legishitare is the place to rectify these evils, if they exist. 8PKECU OF HB. ISTKK. Mb. ESTEE. Mr. Chairman; I would not again claim the atientioD of the Convention in discussing the subject before us, did I not believe the gravity of the questions involved demanded it. I do not propose to make any defense to personal allusions made of myself, or explain the motives which have actuated me in the perfornunce of my official duties in this Convention, except only wherein the public interest mar be affected thereby. The report now under consideration requires no apology, and will receive none at my hands ; yet, in so far as the criticisms of this great measure recommended by this report vaaociatea the person with the sub- ject, I am entitled to be beard. It has been stated that members of this Convention, favoring the report of your Committee on Corporations, are candidates for office, and are, hence, shaping their actions here so as to ingratiate themselvca into the good wishes of the people, and thus secure their election. If this were true, which I deny, it proves too much, for it shows the people ars in favor of the report. Whom do we represent, if not the people? For whom are we making a new Constitution? Who are to pass npon oar work? The people? By whom are we to be judged, but by the people? For one, herel And, now, let me say, I am a candidate for no office ia the gift of the people; yet it is honorable to aspire to public station. In a republic no man should hold himself aloof from politics, or avoid the dutiej) or responsibilities of his citizenship. An honorable ambition to serve one's country is laudable, and every citizen should be willing- nay, anxious — to do so upon all fit occasions. I say this much, sir, because I understand the peculiar bctics used to underrate the value of the report of the committee of which I am a member. Sir, in my opening remarks, the other day, on the article on corporations, I attempted to make clear five points, viz. : First, that the railroads of the country had now a virtual monopoly of the canying trade ; second, that competition was practically impossible ; third, that the power of these great corporations was so boundless that the rights of the people were in danger, unless some remedy was devised; fourth, that regulation was the only practical remedy; and, fifth, that the best and safest form of regulation, for both the people and the railroads, was by a Commission. I attempted to present these five propositions, and U> convince members of the Convention that these were the real questions at issue. Aa far as T understand it, the gentlemen upon the other side have admitted — at least not denied — the truth of the first two propositions, namely: that the railroads of the country have now a virtual monopoly of the carrying trade; and, second, that competition is practically impossible. Bui they deny the truth of the last three of these propoo- tious. And upon these three arises the issue between us. Sir, before I proceed to discuss these, I wish to call attention to some of the arguments made by the distinguished gentleman from Sacra- mento, Mr. Edgerton. I regret exceedingly he is not in his seat. My distinguished friend commenced by saying that I bad deceived the Digitized by Google Nov. 26, 1878. OF THE CONSTITUTIONAL CONVENTION. 523 people of this Stat«, and the membora of this ConveiitioD, and quoted from mT opening remarks as follows : " Ana let me say that this is nothing new. I want yon to understand distinctly that the committee do not claim the honor of inventing this. We find that section — or one of the same punwrt — in several of the more recent Constitutions adopted by various States in the Union. I find section three of the Pennsylvania reads as follows." Now, sir, I did not use those words; and I read the sections from the Pennsylvania and Missouri Constitutions. And here, and now, after having redxamined them with great care, I sojr that in substance— in substance — the same are found in the Constitutions of these two States. And even if they had not been, my reading those sections showed exactly what I meant, and clearly vindicated any unintentional mis- statement I may have made on that occasion. And in pursuing that subject, I took occasion also to refer to the distinguished men who parti- cipated in the framing of that Constitution in Pennsylvania, and refer- red to ex-Governor Bigler, Jere. Black, and other distinguished men of the State of Pennsylvania — men who had lived there for over half a century, some of them nearly three quarters of a century — and that these men took part in the debates in the Pennsylvania Constitutional Convention, and everr one of them maintained that it was necessary to adopt such a provision in the Constitution of Pennsylvania. The gentleman took occasion to say in his speech that I had misquoted from their speeches that the section iu the Pennsylvania Constitution was passed by a simple majority of three, and that Jere. Black was not a member of the Convention at the time, having resigned some time before. Let me say, sir, that it was a mistake in one respect only. On looking at the records, I find that Jere. Black had resigned his posi- tion as a member ot the Constitutional Convention. I so stated on the floor of this Convention, which should have convinced the gentleman that there was no intention on my part to deceive the Convention. But, sir, in answer to the assertion of the gentleman, let me call the attention of the Convention to what Jere. Black did say, and then we will be able to observe whether or not I have led the Convention into error as to Mr. Black's position. I will read from page four hundred and eighty-seven, of volume two, of the Debates of tne Pennsylvania Convention, from remarks made by Mr. Black, upon the question of imposing new penalties and new oaths upon the members of the Legislature, upon the ground that they could not be trusted when dealing with corporations; Here is what he says: " Bjr such dereliction of duty on the part of the Legislature, that cor- poration has grown so mighty that its little finger is thicker than the laws of the commonwealth which created it. I do not say it bestrides your narrow State like a Colossus, for the ancient Colossus of Rhodes was but the image of a pigmy in comparison to this Colossus of railroads. Her stride is across the continent from ocean to ocean. Her head is in the clouds, and the arms of her gigantic power stretch out on either side from one horizon to the other." That was the quotation, sir, which I intended to make when I read, or supposed I read, from Jere. Black, in my former remarks on this sub- ject, but I got hold, in the hurry of the moment, of the wrong page; my distinguished friend is entitled to all the benefit of the criticism. Again I read, from page four hundred and eighty-nine of the same volume, in regard to the control of these gieat corporations, where Jere. Black says : " The gentleman preceding me has described the tree of liberty, as his poetic fancy sees it m the g ^^^ 524 DEBATES AND PROCEEDINGS Tdesday, aerious consideration of tbi* Convention, that it will not rMuire anj argument to show that these sections confer no power. Mr. rbairman, and gentlemen of the Convention, it is not the grammar, it is not the want of sense, that troubles these gentlemen — not a bit of it. H^ friend from Sacramento could stand the bad grammar, and the bad construc- tion — it is not that that bothers him — very far from it. It is because there is too much in it ; because it means too much; because it goes too &r. That is the trouble. The report does mean something, and hence these criticisms. If the sections referred to had meant nothing, there would have been no struggle like this to cause their defeat in this Con- vention. I think, also, mj friend from Sacramento made a very grave mistake when he challenged us to produce any great names anywhere who were in favor of a similar proposition. He said it could not be so, and he paused in the debate to ask me to name some of them. I will call your attention to a few great minds of the country who have favored similar propositions. In the Forty-third Congress, which met two years ago, Mr. McCraryjpresent Secretary of War, was appointed Chairman of the Committee on Railways and Canals, of the Forty-third Congress, and during that session he proposed a bill providing for the appointment of a Commission of nine persons, with full power to require reports from all the railroads and other transportation com- panies engaged in commerce between the States, and to regulate and enfiirce the rates of fares, that they, the Commission, might adopt. The bill reported by that committee mspired a very lengthy debate, which runs through page after page of the Congressional Becord.and I will give the names of some of the distinguished men, members of the House of Representatives, who favored the bill. Among them were: Messrs. McCrary, Hoar, Hurlbut, Pratt, of Iowa, Stanard, formerly Lieutenant- Governor of Missouri, Haxelton, Fort, Orr, Woodworth, J. A. Smith, of Virginia, Colton, Mellish, Hawley, present Assistant Secretary of the Treasury, Monroe, Lawrence, Kasson, McNulta, Gunckcll, Cobwin, Gar- field, Kendall, Erastus Wells, of Missouri, Ilolman, and Wolfe, of Indiana. The bill passed the lower house, but reached the Senate too late in the session to reach final action at that session of Congress. The arguments made in the discussion of this great question, I cannot better express than by reading an extract of a speech made by the Hon. J. P. Jones, Senator from Nevada. The argument made by advocates in favor of the McCrary bill, says Senator Jones, was: "That their,the railroad companies, operations are part of that general movement known as commerce, which by the Constitution of the Unitejl States is placed under the regulative control of Congress. That where railroad operations are Inter-State in mileage, extent, and character, they must necessarily be subject to such control. That it is both the right and duty of Congress to regulate, supervise, control, or it may be to possess and own them. The sovereignty rests in this practical power of Congress. It is in all respects a correlative of the rights to create such corporations, to grant them great franchises, to exercise the high preroga- tive of eminent domain in their behalf and for their security ; above all, it is a necessary sequence to the power to grant subsidies to railroads and otherwise aid in their construction." These were the arguments expressed by these distinguished gentle- men in favor of the bill, and that bill passed the House, aa I said, but reached the Senate too late in the session for final action. Later than that, on February ninth, eighteen hundred and seventy-four. Repre- sentative J. Q. Smith, of Ohio, offered a resolution setting forth that Congress has the constitutional power to regulate by law commerce between the several States, and protect the people "from all unjust or oppressive tolls, taxations, obstructions, or other burdens, whether impoeed by railroad companies or combinations thereof," and that the "condition and magnitude of the commerce among the several States are such as to demand the prompt and wise exercise of the power and duly declared in this resolution." This resolution was passed by a vote of one hundred and twelve to sixty-four. But more recently, sir, in the Senate of the United States, a committee was formed, of which Mr. Windom was Chairman. That committee, after a lengthy examination of the subject, framed the fol- lowing report and recommendations, which was adopted by the Senate of the United States: First, That legislation be framed to enforce the publication of all schedules of freight and fares made and issued by the inter-State railroads, and that no changes therein shall be allowed till after due notice, to be fixed by law. Second, That quantity should be receipted for, under regulation to be fixed by law, for freight carried between States. Thira, That inter-State railroads touching at any inland port or point should be prohibited from charging more to or from such port or point than to or from a more distant point on the line. Fourth, That the power of the several States should be exercised to pro- hibit inflation of the stock by the process known as " watering" it, or by any other method. The States should also prohibit railroad officials from beinKJnterested in the " non-ooOperati ve freight or car companies or lines. Fifth, That Congress should authorize the organisation of a bureau of internal commerce, empowered to collect and report all neces- sary information on the subject, and also to compel inter-State transpor- tation companies to report at least annually, under oath, their rates of freights and fares, receipts and expenditures, sales of bonds and stock, cost of same, amount and value of commodities carried, together with such other facts as the chief of the bureau may deem necessary. The committee further found that the problem of cheap transportation could only find solution in governmental control, and through the con- struction by Government of one or more through railroads as competing lines, and by the improvement of certain natural, end the construction of certain artificial waterways, which were specified. Besides other pro- visions which will be found in the report of the committee, the leading men of that body, let me say, favored the adoption of these resolutions. This question has been before the Congress of the United States for a period oT four years and over, and in a very short time Congress will doubtless find some adequate means of remedying the evil as far u inter-State commerce goes. Your committee, sir, did not attempt to go beyond the boundaries of the State, and the criticisms made by the gen- tleman (rota Sacramento npon the point, that it was unconstitutional, because we undertook to regulate inter-State commerce, seems to me very fallacious. He got that from the following expression found ia section nineteen: " No discrimination in charges or facilities for transportation shall be made by any railroad or transportation company between placet or per- sons, or in the facilities for the transportation of freight or passengen within this State, or coming to or going from any other State." "Coming from or going to any other State." Now, I submit, Mr. Chairman and gentlemen of the Convention, that the only reasonable construction that can be given to that section is that the regulation as to freights and fares shall aJfTect only freights and fares within this State, and coming from other States and going to other States. Mr. Edgerton also said in his speech that heretofore there never had been any success- ful attempt made at rexulating fares and freight*. That it was a false principle, that it would result in nothing, that we are standing npon dangerous ground when we attempt it, and that the ownership and management of property must go hand in hand. ITow, sir, I submit, that there has been, ana there is to-day, a virtual regulation of freights and fares in a great many of the States of this Union. In Eneland this is done, and in nearly all of the European Governments, and there is in the United States'to-day, as for instance in the regulation of the transportation of cattle and other live stock. Only two yeare ago Con- gress passed a law providing that in the transportation of cattle by railroad from one point to another, it should be done in a certain speci- fied manner, directing the manner and how often trains should stop, and how long they should run without turning them out of the cars lor water and feed; and all the railroad companies, at least all eaitof the Rocky Mountains, obey that rule now, and it seems to work exceedingly well. In England, in relation to the freight and passenger tariff, tu Commissioners have control over the subject. There are some qnestioni, it is true, which they do not touch. Looking at the law passed by Parliament in eighteen hundred and seventy-three, organiiing the Commission and fixing its powers, I find, on page one hundred and fifty-three of the Law Jounuki, volume forty- two, among other powers, the following: " It shall not be lawfuf for the Commisslonen in any case to compel any company to accept lower mileage rates than the mileage ratee which such companv may for the time being legally be charging for like traffic carried by a like mode of transit on any other line of communication between the same points, being the points of arrival and departure of the through route ; and the Commissioners shall have power to hear and determine any question or dispute which may arise with respect to the terminal charges of any railway company, where such charges have not been fixed by any Act of Parliament, and to decide what is a reasonable sum to be paid to any company for loading or unloading, covering col- lection, delivery, and other services of a like nature. Anv decision of the Commissioners under this section shall be binding on all Courts and in all legal proceedings whatsoever." Parliament has always controlled these companies in England, not in all cases to the fullest extent of governmental control, but in a large portion of them, and especially the class by which the people are most affected, such as second-class and third-class passenger traffic The con- struction given to these rules is very much stronger than any that can possibly be given to sections nineteen and twen^ of this report. Again, on page one hundred and fifty-five of'^tbe same book we find the following: " For the purposes of this Act the Commissioners shall — subject as in this Act mentioned — have full power to decide all questions, whether of law or of fact; and shall also have the following powers — that is to say : (a.) They may, by themselves or by any person appointed by them to prosecute any inquiry, enter and inspect any place or building, being the property or under the control of any railway or canal company, the entry or inspection of which appears to them requisite, (i.) They may require the attendance of all such persons as they think fit to oome before them, and examine, and may require answers or returns tosocfa inquiries as they may think fit to make, (r.) They may require the productiou of ell books, pftpers, and documents relating to the matlen before them, {d.) They may administer an oath, (c) They may. when sitting in open Court, punish for contempt, in like manner as if they were a Court of record. " The Commiasionen may review, and rescind or vary, any decision or order previously made by them, or any of them. Save as aforesaid, every decision and order of the Commissioners shall be final." Thus, you see, these provisions found in our report are not new. We can find abundance of precedents for our action. While I admit that in some instances the control of railroads by State Legislatures hss not worked successfully, yet it must have a commencement, and this is but a commencement. But admitting partial, or even total failure, in aome instances, there are now no less than sixteen of the States of this Union that have Railroad Commisslonen, and every one of them organised within the last ten or twelve years. In the Congress of the United States the first time this question was ever discussed was within the last six or seven years, so far as the regulation of railroads was concerned. Then. in our Courts, the decisions affecting railroad transportation compsnits only date back seven or eight yeara at most I need not stop to speak of all the benefits of this section. I find that other distinguished men besides those I have named have favored the regulation by the States; and in our own State, Senator Booth, »ho favored it very strongly — and if I recollect rightly, my friend, Jixige Hager, favorM the resolution which came into the Senate fiom the House. I think he was in favor of appointing that committee. Mk. EAGER. That committee was appointed before. I was there t^ »l^< 1 Nov. 26, 1878. OP THE CONSTITUTIONAL CONVENTION. 525 when the report came in. I will say that when a report comes in the body votes to receive it, and it is printed. We do not undertake to sub- scribe to it, because we could not read it or know what it contained until it was printed. He. jBSTEE. I find, also, that my distinguished friend from Sacra- mento, Mr. Edgerton, the other day said : "Sir, I unhesitatingly affirm that in every instance in which your fegislature has been ^led upon to act upon this subject, it has treated it intelligently, wisely, and to the best interests of the people, as well as of the corporations." And yet he follows it up by saying that the interference of the people of this State with this class of property is unwise, and productive of mischievous results. I find some very good authority on this question, and I shall call attention to the fact that my friend from Sacramento, Mr. Edgerton, has changed his views a great deal on the subject. Now, I do not claim that a gentleman has no right to change his views. On the contrary, I believe be has, and I do not believe, either, that the fiict of the gentleman's actions, four or five years ago, being inconsistent with his actions now, is necessarily evidence of the fallacy of his position to-day, except in so far as what be said four or five years ago is true. I quote from a speech delivered by the gentleman on August eighteenth, eighteen hundred and seventy-three, on the subject of lights and fares. I am aware that the gentleman's inconsistency, if he be mconsistent, does not necessarily weaken his argument; but as his speech of eighteen hundred and seventy-three was such an able one, and the authority so undoubted, I desire to read a tthort extract from it, merely to sustain my side of the case, and to show that he was right then and wron^ now. I want to show what were the opinions of a very able man on this subject. He says : "A subject of the greatest importance to the material prosperity of the State, which demands legislation at the earliest possible moment, is the regulation of rates of transportation on our railways. The rates now imposed by the difierent companies controlling these thoroughfares are extortionate, and, in many instances, run into larcenpr itmff. So fre- quently outrageous have their exactions become, so unjust the discrimi- nations thepr practice between individuals and places, that the continued existence of those institutions under the present regime is almost a matter of doubtful expediency. When producers are compelled to move their freights by horse and mule teams for a distance of fifty to a hundred mites right alongside a railroad, one of two conditions of things is true — either ue railway mahagers are a set of unmitigated extortionists, or the country is too poor to support a railroad. The grinding policy of the mana^rs of those roads in thisStato have made them the adversary of every interest they were created to subserve, and their managers objects of just and general condemnation. How outrageous and exas- perating to the common sense of justice, is the spectacle of these great institutions, called into being by the people's power, built and equipped with their money, responsible to their sovereign will, designed to pro- cure a freer vent for the products of the earth, to furnish new incite- ments to the cultivators of land, to be the most powerful instruments in increasing the quantity of money in the State, to be, in fine, the faithful handmaid of labor and industry, perverted into the mere instru- ments for the aggrandisement of a few selfish men into mere tourniquets, by which they may check or stop at will the circulation of the material system of the whole Stato. We propose to remedy these abuses, not by any attoinpt at empirical, retaliatory legislation, but by an adjustment of a scale of rates on freights and fares that shall be pust, both to the companies and to the people. The power of the Legislature over this subject is indisputable." It will be seen by this that my friend from Sacramento entertained very difierent opinions five years ago from what he does to-day, and I leave it to the candor of the members of this Convention and of the people of this State as to whether he was ri^ht five years ago or whether he IS right now. I think he has made a mistake. I think he was right then and wrong now. I think his argument then was conclusive upon that subject, and his argument the other day a fallacy. Again, I find in that very elaborate speech, speaking of the power of these corpora- tions and the necessity of cmtrolling them, the following: "The companies are common carriers, intrusted with public institu- tions— for such the railroads have been held by the Courts, both of England and America, lo be — and they are in the exercise of a public employment, a sort of public office. It would be the important dut^ of the next Legislature, at the earliest practicable moment in the session, to appoint an appropriate committee — probably it should be a joint com- mittee of the two bouses — endowed with plenary power to investigate the whole question of freights and fares from top to bottom, to tear ofi' the mask from the Contract and Finance Company, and from the affairs of all other companies, and ascertain the actual cost of construction and equipment of these roads, and the necessary cost of keeping them in repair and operating them, and a just scale of rates of charges for transportation that will yield a fair return on actual investment, and expense of operation and repair." It will thus be seen that the gentleman from Sacramento, five years ago mainteined the absolute necessity of taking hold of this great sub- ject. He thought it was due to the people of the State that it should be investigated. He thought it was right and proper that freights and fares should be investigated and regulated, and I cannot forget — I have not forgotten — how eloquent the gentleman became when debating upon this question. I remember how his whole soul welled up when talking on the subject, and be seemed to be on fire, not as he said we were the other day — " with eyes aglare, head down, and tail up, crowding the best brains of this body into the dust with the mere weight of body and hardness of hoof" — but in the fullness of manhood, defending a great cause and maintaining a great principle. I.would repeat the eulogium of the gentleman from Sacramento, Mr. Edgerton, paid to the bar, could I add anything to the strength and beauty of his illustration. That would be impossible, but the learned gentleman will pardon me if I take up the theme where be left it. ' I would add that in every instence where lawyers have stood in the front rank of their fellows, in the van- guard of human progress, it has been when they have defended the rights of man, when they have stood between the oppressed and the oppressor, when they have gathered around the altar of liberty, when tne^ have followed the average judgment of the great middle classes, which is always rieht I glory m this profession. I reoogni^ within its ranks the defenders of the Constitution and the laws. I know their immeasurable value in a free country. I know their learning and their patriotism, their honor. Without the great names and the life-long devotion to the people's cause of the bench and the bar some of the brightest pMes in our history would be left out. But, sir, the great common people of the country, the middle classes, the people as a whole, includinjj every class represented by every voca- tion, every interest, the masses in a free country, are the Btete. It was the people moved by one impulse, and that the sublimest that ever animated the human breast, that struck the first blow in the war for our liberty. It was the farmers, the middle class, who fought the battles of Lexington and Concord ; they commenced that conflict and stood by it till the end. It was the masses who gathered around the dying Warren at Bunker Hill. It was the people who followed Washington through victory and defeat for seven years of that war. They formed the lines that encircled Saratoga, and they filled the trenches at Yorktown. Whenever liberty demanded a martyr the people produced him. On a hundred battlefields in every part of the Union, on sea and on land. In the bivouac of the camp, and in the shock of arms. At the polls, in the church, in the school-room, by the humble fireside, at the plow, or directing the ceaseless movement of machinery by night or by day, in peace or in war, they have made our history. God bless our country, tor the people are the Steto. And the people, the whole people, must be made secure in all their legal rights. This, and this only, we are trying to accomplish. Kow, sir, when m^ friend from Sacramento spoke about there being a mere temporary excitement of the people on this subject, it would have been more thoughtful in him, if he had said there is an evil somewhere, lei us look for it and apply the remedy. For unless there was an evil the people would never have become excited about this matter. For one, I recognize the fact that all men are at times Ifable to be mistaken. I recognize the fact that it is human to err. But, sir, we are here to amend the organic law, and to make an organic law for the whole peo- ple of this State, not for the railroads, nor against them ; not for any particular class ; and I want to know of gentlemen here if they do not see in the signs of the times a necessity for protecting the people against the encroachmenU of these corporations ? I took occasion the other day to say in my opening remarks that it would be but a very short time before the railroads would be owned by foreign capital. At that time J was not aware that there was any immediate proMbility of such an event occurring. I find in the Becord-Uuion of this morning the following dispateh : "Chicago, November 2ith. — The Times has what it believes to bo trustworthy information that Jay Gould has originated, and the stock- holders of the Central Pacific Railroad have seconded, a plan to consoli- date the Union and Central Pacific Railroads under one management, with Sidney Dillon as President; Clark, General Manager of the Union Pacific, as General Manager; and with one Board of Directors. This will greatly reduce the clerical and official force, saving enormously in salaries, and in the cost of transporUtion,and will form a continuous line, under one management, from Omaha to San Francisco. It is stated that the particular* are nearly arranged, a conference having taken place with General Manager Clark in New York, and with General Freight Agent Vining, of the Union Pacific, in San Francisco, during the week. A consultetion will be held this week in New York between General Dillon and the President of the Central Pacific. It is further stated that the principal owners of the Central Pacific are anxious to retire, in order to take part in the construction of the Southern Pacifi: Railroad." If this be true, what was foreshadowed the other day will soon occur, namely : that these great railroad and transportetion companies of this coast will soon be in the hands of foreign capitelists, and the people who havegrown up amongst us, who know all our necessities, whom we know, will soon pass out of the directorship of these enterprises, and how mora than ever necessary will it be for the people to have some power behind the throne to control these great enterprises in the future when they shall have passed under the control and management of men whose interesU are not allied with the Stato. Jjet me say that the great necessity for regulation is shown in an article by Charles Francis Adams, upon the Railroad Commission in Great Britein. Hesa^s: " Whenever it should appear that the railroad company abused its privileges and its power, then the time for action would have arrived. As yet this was not the case in any such degree as called for a decisive and far reaching measure of reform. To better watoh over it mean- while, and to cause its members to work with less friction among them- selves, and with a more careful regard to the equal rights of private persons, an exceptional piece of governmental machinery was provided in the form of a Board of Commissioners. The powers of this tribunal were both judicial and executive in their character, and very broad. It was its duty not only to hear any complaints of private parties, but to intervene in cases of difficulty which might arise between the com- panies themselves. The Board was, in fact, designed to secure the com- munity an easy and equiteble interchange of traffic over its railroad lines, as well as to put a stop, in so &r as might be practicable, to that Unjust and vexatious system of discrimination wnich seems to be inseparable from all active railroad competition. Through this Board the exceptional character of the railroad system was at last recognised. An attempt was made to deal with the anomaly as an anomaly. Mean- Digitized by VjOOQ IC 526 DEBATES AND PROCEEDINGS Tuesday, vhile, the most noticeable feature in the career of the Boanl, which has now been in existence five years, is the very trifling call which aeemato have been made upon it. So far as can be Judged from its annual reports, the cases which come before it are neither numerous nor of ereat importance. It would, however, be wholly unsafe to conclude from this fact that such a tribunal is unnecessary. On the contrary, it may confidently be asserted that no competent Board of Railroad Com- missjoneBB, clothed with the peculiar powers of the English Board, will ever", either there or anywhere else, have many cases to dispose of. The mere fact that the tribunal is there, that a machinery does exist for the Srompt and final decision for that class of questions, puts an end to lem. They no longer arise. They cease to arise, for the simple reason that the railroad corporations in these matters are not like the members of a numerous and complicated business community. The controversies among them, which do not involve legal points, are comparatively simple and confined to a few persons." The mere fact that there is a power behind the throne; the mer$ fact that the sovereignty of the State has provided for a Board of Commis- sioners, or some representative body that can handle this subject, will render the occurrence of discriminations, and all that sort of impositions practiced .upon the people, less frequent. And let me say right here, that the point made by the gentleman from Sacramento, and the gentle- man from Marin, that there are no injuries now being inflicted upon the people by the railroad companies, cuts no figure. If it was true, it cuts no figure here. I claim it is not true. We are attempting to place the people out of reach of these influences — out of reach of these evils — and we must have these Commissioners vested with such power that the rail- road company itself cannot veto what the Commission attempts to do. I say, whenever tlie railroad company can exercise the veto power over these Com missioners, we may ns well abandon all hope of any good results, for nothing will be accomplished. ^ow, Mr. Chairman, it is claimed by some gentlemen that this matter should be left to the Legislature; that we nave no confidence in the people, or else we would be willing to leave it to the Legislature; and they appeal to us by saying that we were elected by the people to this Convention, and if they were wise enough to select us to represent them in the Convention, they would be wise enough to select suitable legisla- tors to control this matter. Mr. Chairman, I claim that this is not at all analcMjous. That is no argument, for this reasoui it is not that the Legislature is necessarily corrupt, but it is because, under no state of circumstances can the Legislature ever act intelligently upon the matter within the short period of time allotted to that bmly. It cannot remedy these evils. For my part I have as great respect for the integrity of the people and the integrity of our legislators as my friend from Marin, or my friend from Saeramento, Mr. Edgerton; but I challenge those gen- tlemen to show an instance — a solitary instance — where the Legislature of this State has acted intelligently in regulating this great question. A committee of the Legislature — which sitsninetydays,or sixty days — can hardly get to the first step on this great question before the expiration of the term. We want a permanent body, that will know exactly what the people require, and what the companies require, and will thus be enabled to act wisely. I think that was a very inapt allusion made by the gentleman from Sacramento, when he said that England had for twenty years been legislating upon this subject; that they passed over three thousand bills relating to this matter, and that this legislation had cost the com- panies four hundred million dollars. That is, that these railroad com- panies in Great Britain had spent over four hundred million dollars to curb the Parliament of England. I confess, sir, it was an inapt expres- sion to argue in the same speech that the railroad companies sbould still have such opportunity to spend more money and corrupt more legislation. We want to place this temptation out of tlie reach of railroad companies. It is not because we say that Legislatures are corrupt — very far Irom it, sir — but because we want this temptation removed. And let me say right here to the gentlemen upon the other side, that if they can present some rational scheme — one that will be better than the one we have pro- posed— let them present it, and let us see what it is. They are always talking about the imperfections of ours. Let them present some scheme that is better for the people and more secure for the companies. I fear they are in the position of the ass in the fable that could lean against a wall and topple it over, but had not the capacity to rebuild it. liet them present some scheme, perfect in its character, that will remedy these evils. Gentlemen say to us — point out the evils. Why, Mr. Chairman, it appeals to the reason of every man that vast con- centrations of power, whatever that power may consist in, are always dangerous to a free people unless it is regulated and restrained by la.w. Even then, sir, it requires constant watchfulness on the part of the legislative department of government. It requires the constant atten- tion of the people to see that their rights are not infringed upon. It is human nature that if a roan has a million, he wants two millions; and if he has two millions, he will want ten, and in order to attain that end he will go to the verge, if not beyond tlie law; and I tell you, sir, the time is coming when you will have to regulate the corporations of the country. You have an opportunity now to do it. Let us try. Iiet us consult together, and if you have any better scheme than we have pre- sented— if you have any amendments to offer — let us know what they are. For one, sir, I believe, in the depth of my heart, that it is our duty to do it — that we owe it to the people of this State. We owe it to our- selves to follow the example of those Conventions in the East that have recently framed Constitutions, and put in a stringent section upon this great question, to limit their powers and circumscribe their capacity for evil, and then if you go before the people with that measure in your Constitution it will not be beaten. I do not agree with the gentleman from Marin and the gentleman from Sacramento, that that expression at the ballot box will oe fatal to the Constitution. But if it should be fatal, after we have done our best to protect the people, by framing such a Constitution as will protect them from the encroachments of these great corporations, then let it be beaten. We shall at least have done our duty. We shall at least have performed the responsible duty that has been imposed upon us. I recognise, sir, the question of taxation, and other questions which the gentleman referred to, as important questions; hut I have always notiwd, when- ever we are discussing some subject which the gentlemen do not Ifta, they try to evade it by saying : "Why not go to taxation ; why not go on to something else, and leave this subject?" Let us stay right where we are, and consider this subject until we have done with it, and arrive at such conclusion as in our judgment is best for the people of this State; and if we do that, my word for it, no gentleman on this floor will ever have occasion to regret it. No gentleman can ever regret having done right, and this is right. I^t us put such a provision in the Constitotioo as will forever hold these corporations to a strict accountability to the sovereign power that gave them birth. Tbk CHAIRMAN. The question is on the amendment, to insert the word "unjust." SriBCH or HE. HAI.K. Me. hale. Mr. Chairman : I trust the amendment will not prevail. The section, if amended as proposed, or rather the first clause of it, will read in this wise: " No unjust discrimination in charges or facilities for transportation shall be made by any railroad or transportation company between places or persons, or in the facilities for the transportation of freight or passengers ^within this State, or coming from or going to any other State." I object to this word " unjust" being interjected as proposed, because we should thereby positively, or at least by implication, sanction the idea that only unjust discrimination should be prohibited. By putting in this qualifying wo.rd, we, in effect, say that discriminations may be made which are not unjust. That is precisely the point of my objection. I insist on these two propositions. First, I say it is not true, practically, that discrimination can be made in the respects specified and yet be just. The other is, that it inteijects into the clause an element of uncertainty so as to destroy its practical value. It has been said by one gentleman, speaking of what they are pleased to call dangerous powers proposed to be conferred upon the Railroad Commissioners, that they were not only above the Legislature, and above the law, but alwve the people. But f answer, if this clause be left as it comes from the committee, the criticism is not well founded in &et. The one all important feature of the section, in my judgment, is that it lays down certain fixed and invincible rules of action governing alike the railroad and other transportation companies and the Oommisstonen. One of them is, that no discrimination whatever shall be made between persons or places, or in the facilities for transportation. But when, as b^ the amendment, you say no uiy'tiji discrimination may be made, it must obviously be left to the Commissioners to decide what is just and what is unjust. That is precisely, sir, what I do not wish to be done. Nor do I wish to refer such a question to any future Legislatures to deter- mine, but I desire to prohibit all such discrimination as unjust. If yoo do not enact the clause as it comes from the committee it will be no role at all. Moreover, if, by the adoption of the amendment, you say that no unjust thing shall be done, then, consistently, you must go furUier, and define what is just and what is unjust, else the Commissionen may decide arbitrarily and irresponsibly, or it would be left to the Legislature hereafter to determine the whole question. Mr. ANDREWS. If the gentleman will allow me a question? Mb. HALE. Certainly. Me. ANDREWS. You believe, then, that the railroad oomptny should be prohibited from charging more for a heavy grade than for a light grade? Mr. hale. I intended to discuss that question farther on, bat I suppose I may as well express my views upon it now as any time. One of the most notable features of our current history of progreas and civilization — not limiting our observation to the State of California, but extonding our observation over the whole country — is the fact that the established railroad lines through and over the country, have come to be the chief public highways, over which passes the great mass of the internal commerce of the nation. I am not prepared, at this moment, to state what proportion of the internal commerce of the United States is so conducted, or to make a statement of the aggregate value or volume of our national commerce, or the relative amount of our internal com- merce as compared with the entire commerce of the nation. Probably, however, it is safe to say that the internal commerce of the United States comprises not less than four fifths of the entire commerce of the nation, and perhaps more. The commercial conditions of a people furnish the best indication of their financial condition^-of the prosperity or adversity. This is universally recognised as true. Now, sir, we observe as one of the results of the establishment of great railroad lines, that the greatest bulk of internal commerce of the whole oountiy i> transacted over them. This is not a fact existing to-day merely, but every indication, prophetic of the future conditions of the county, point to the conclusion that in the future this is to be more absolut^y true than now. It is therefore safe to predict that a much iar^r pn>- portion of the internal commerce of the country in future will pass over these railroads than at the present time. Now, take this as a start- ing point: this aggregation of commerce on lines of railroads tends to concentrate capital, material, improvement, and population, along their alignments, and chiefly at their terminal points. To be more specific, as n result of the establishment of lines of railroads in the State of California, we perceive as a practical result the aggregation of nearly all commercial capitel of the Stete, and nearly all the commer- cial business of importance transacted upon this coast at San Frandsm. Does any gentleman challenge the truth of that statement? Now, sir, upon what condition of fact does that important result depend? I maintain, sir, it is the legitimate result of t^ discriminations that are Digitized by V Nov. 26, 1878. OP THE CONSTITUTIONAL CONVENTION. 627 now permissible, that actaally are made, that have been made, and •win be made, except as restrained by the provision as here reported by the committee, that there shall be no discrimination between persons or between places, in the charges or facilities for transpoiiation. For an example, sir, can you ship goods from New York to Auburn, to Sacra- mento, to Stockton, to San Jos^, with like facilities as to San Francisco? No, sir, nothing of the kind. I had a chance a short while ago to test that. I found that I could not make a shipment to Auburn, my place of businessv at all, owing to an arrangement between the great railroad companies. I found myself compelled to pay through freight to Ban Francisco, and then pay local rates back over the same road to my place of business. The tendency and necessary result i^ such arrangements and policies is to discourage all business except at grand terrain^ points on these great railroads, and hence the necessity of the interdiction of all discrimination^between places, as to charges and facilities for trans- portation. This provision proposes to require of these companies that they shall not tolerate any such discrimination in any case whatever. It may be said, Mr. Chairman, and I recognize the truth of the proposi- tion, that the railroad lines can do the aggregate of their transportation busiiftss exclusively between terminal points, at lower rates and for less money then they could if governed by the provisions of this section nineteen as it comes from the eommittee. But I nevertheless claim that it is sound public policy, that it is sound American statesman|hip, not only for us in California, but for the people of the whole country, to break down this system of concentration, otherwise, by the adoption of extended railroad lines and other modes of interior transportation for the conduct of our internal commerce, we will destroy the prosperity of all the points along their lines except the terminal |>oint<, where capital will be aggregated. That certainly is not a condition of things to oe desired. That will destroy the prosperity and importance of the interior portions of the State, and transfer the wealth of the country to the few great railroad centers. This question of discrimination between places and between persona, in the charges for freights and fares, and the facilities for transportation, is a matter of the greatest moment. If we wish to preserve the integrity of the people, as a whole, and the rights of all the people in the various parts of the State, wherever they may be, we must provide against this discrimination. Now the gentleman from Shasta, Mr. Andrews, asks me if I would make a difference between a light grade and a heavy grade road. In the transportation over the entire line, I answer no. These railroads are State and national'faighways, and over them, as such, the business of the country, the commerce of the country, is and must be conducted. The people, when they travel, must travel upon these lines. A lav of neces- sity compels this result. For instance, in some portions of the county where I reside, the railroad charges for passengers are fixed at such a rate that the old stage lines could resume their business profitably, but they are, nevertheless, deterred from doing so, for the reason that the railroad company can, without loss to itsell^put the charges down to a point where the stage companies could not compete, and by so doing the stage lines would be driven off. The result is that they do not attempt to compete with the railroad, because the railroad company have it in their power to drive off all competition. The result is that if we wish to travel between points on the railroad, we must travel in the cars, or by our own conveyance. It is in this sense that the railroads are public highwavs. Not that any roan should have the right to go upon tne road and ride free of any charge or cost. He must do so upon the terms and con- ditions prescribed by law. But when that regulation is made — and it should be regulated — it should be made equal; it should be uniform, so that all citizens of the State of California, upon the line of the road, shall have the right to travel upon it, upon the jmyment of equal charges. " But," say the gentlemen on the other side, " the risk is a great deal more on some roads; it coats a great deal more to build and operate a road over a heavy grade than where the ground is level ; that more power is necessary to move freight over one than the other." That is true, sir. I recognize that fact. For instance, there is on the railroad line below the Town of Auburn, where I reside, a long, deep cut, eighty feet deep, and the actual cost, as I am credibly informed, of constructing that short piece of road, was eighty thousand dollars. Coming thence down toward the City of Sacramento, on the railroad, you pass along an easy tract of country till you come to the bridge and its approaches across the American River, which cost perhaps one hundred thousand dollars. Going still farther up in the mountains you come to a series of tunnels which coat very large sums of money, greatly disproportionate to the average cost of the general line of the road. . Now does all this furnish good reason why the railroad company shall throw upon the immediate community around this cut, these tunnels, and near this bridge, the bur- den of the entire cost of coustrurtion ? These difficult places are, after all, only parts of the general line of railroad, which is a highway. The entire railroad line has no value except as it may connect over the river, through the tunnel, and through the cut. The people who live at these points have contributed alike with all others in the construction of the entire road. In one sense you may say these roads belong' to the com- pany, but in another sense they do not. After all, sir, the coat of these .roads, whatever it may be, sooner or later comes out of the pockets of the people. It must be so, because the ultimate cost of the road has been or will be realized out of the proceeds or earnings of the road. Again, it must be conceded that one of the highest duties the State owes to its citizens, that the government owes to those who are governed, is to fur- nish reasonable facilities for commerce, and intercommunication of the people, as by the opening and maintenance of highways. Indeed, sir, the character and condition of the highways of any people supply the most significant and important indications of the degree of progress and civ- ilization of the country in which they exist. Therefore, sir, one of the moat important duties the State has cast upon it, in legislating for the people, is to provide a system of highways for the convenient conduct of all the internal commerce of our people. This involves the transporta- tion of all the freight, and the conveyance of all the passengers, and we should have sudh highways that all the ] Mb. HOWARD, of Los Angeles. I move a call of the committee. Tai CHAIRMAN. That motion cannot be made in the Committee of the Whole. The question is on the amendment of the gentleman from San Francisco, Mr. Estae. BEMABKS OF MB. HAOBB. Me. HAGEE. Mr. Chairman : I trust the amendment will not be adopted. I do not intend to discuss it, only to say that you might just as well strike out the entire section if you put that word " unjust" in. It will throw it open to adjudication, and inject into it an element of uncertainty, and instead of being a permanent rule it is an uncertain rule. The question will have to oe determined as to what is unjust dis- crimination. One may say it is one thing, and another would eay it is another. You would have to call a jury in every case to determine that question. You might as well strike out the section. The CHAIRMAN. The question is on the amendment. Lost. Mb. TULLY. I have an amendment. Thk CHAIRMAN. The Secretary will read the amendment. Thk SECRETARY read : " The Legislature shall, after the adoption of this Constitution, estab- lish and provide a system fur the enforcement of an equitable tariff of rates to lie charged for the transportation of freight and passengers by the railroad and transfer companies of this State, and all appropriate legislation to prevent undue and unwarrantable discrimination in such charges or in the facilities for the transportation of the same class of freight or passengers by such companies between persons and places, and shall compel the observance of the same by fines and forfeitures upon such railroad and transfer companies, and by an imprisonment of the officers or employes thereof, at its discretion." Mb. LARKIN. I don't think that is a proper amendment to this section. I think he had better offer it as a separate section. Mb. TCLLY. I offer it as a substitute for section nineteen. I am opposed to the creation of these Commissioners by the Convention. If this is adopted it will in effect be a substitute for nineteen and twenty, as I understand. It leaves the whole matter of regulating the freights and fares to the Le^slature. The CHAI RMAN. The question is on the amendment. Lost. Mb. WEBSTER. Mr. Chairman : I offer an amendment. The SECRETARY read: " Amend section nineteen by inserting the word 'other' between the words 'or' and 'transportation,' in the second line, and by inserting the word ' other,' between the woijls ' any ' and ' transportation ' in the fiah line." The CHAIRMAN. The question is on the amendment BEHABES OF MB. WEBSTEB. Mb. WEBSTER. That is merely a verbal correction. It will then read as follows: "Sec. 19. No discrimination in charges or facilities for transporta- tion shall be made by any railroad or other transportation company between places or persons, or in the facilities for the transportation of freight or passengers within this State, or coming from or going to any other Slate. Persons and property transported over any railroad, or by any other transportation company or individual, shall he delivered at any station, landing, or port, at charges not exceeding the charges for the transportation of persons and property of the same class, in the same direction, to any more distant station, port, or landing. Excursion and commutation tickets may be issued at special rates." You will notice in the preceding section, these words are used. I think it is an omission in this section. It is simply to make the language more plain and definite. It may appear, as it stands now, a* if railroads are not included in the term " transportation companies." I think there is no objection. The amendment was adopted. Ms. DAVIS. I have an amendment to offer. The SECRETARY read: "Amend section nineteen by inserting after the Tfoti i&taie,' and Digitized by-V^jL^' 528 DEBATES AND PROCEEDINGS Tuesday, before the word ' peraons,' in tine four, the following wordi : ' Except fi«igbt of a perishable nature, which eball at all time* take precedence. ' Tax CHAIRMAN. The queation is on this amendment. ■IMABU or MB. DjlTIS. Mb. DAVIS. Mr. Chairman : I presume the committee will under- stand that there are many articles that are liable to decay on account of the heat of Summer and the cold of Winter. It is not neoeaaary for me to occupy the time, as the necessity for this amendment must be appa- rent, and I hope it will be adopted. BBMABBS Of MB. BBBBIXOTOll. Mb. HERRINGTON. Mr. Chairman: I think this amendment would make the section nonsensical. The truth of the matter is, that the first part of this section is aimed at discrimination as to the price of freight; it is aimed at discrimination between persons and places only; and if this amendment is added to the end oi that aentenoe, it wouJd make nonsense of it, and there is no use of it. BI1IABK8 or MB. CB0S8. Mb. cross. Mr. Chairman : The objection raised by the gentleman himself is not well founded. If he will read a little farther he will discover: " No discrimln^ioD in charges or facilities for transportation diall be made by any railroad or other transportation company between places or persons, or in the facilities for the transportation of freight or passengers within this State, or coming from or going to any other State." It says " facilities for transportation," and the proposed amend- ment says, "except perishable articles." I think the object of the amendment is a good one, and I think it is highly necessary. Fmits, milk, meat, etc., must be preferred over all other freights, or else they will be virtually prohibited. It would hardly be possible to supply the markets of San Francisco and other cities with perishable produce, unless these perishable goods can be shipped through without being delayed by other goods. It seems to me that this is a very necessary amendment to make. If you do not amend it, then perishable goods can have no preference. Mb. ESTEE. Mr. Chairman: I do not see any objection to the amendment. I do not see why it should not be adopted, to do away with any doubt. BBMABKg or MB. WIST. Mb. west. Mr. Chairman : In the eighth line you will see the words "same class." Every gentleman acquainted with, the business of shipping freight knows that all articles of freight are classified according to the nature and character of the freight Now, perishable articles will be in a separate class — in a class which recognizes these articles. They will be shipped in that class, and under the regulations governing the shipment of that class of freight. But no discrimination will be allowed between persons having perishable goods. That is the meaning of the section, that the same class of freight offered at any depot or station, shall be taken and transported without discrimination. I do not think that the amendment is at all necessary. BBMABC8 OP MB. BBTMOLM. Mb. REYNOLDS. Mr. Chairman : It does not seem to me that the proposed amendment is necessary at all. I take the view of it that the gentleman from Los Angeles, Mr. West, takes. I suppose there is a class of freight, such as produce for the cities, of a perishable nature, and I suppose the railroad company makes a regulation that all such freight shall take precedence over other freight not perishable ; and cer- tainly such action on their part could not be held to be a discrimination according to the language of this section. It is a just regulation, and in no sense discrimination. Then the section does not prohibit, as has been intimated and agreed here, a Just regulation oi these matters. But it does prohibit discrimination. What does the word "discrimina- tion " mean T Why, sir, the very signification of the word is " injustice." And the attempt to interject the word " unjust " before the word "dis- crimination," was equivalent to saying that you shall not do any " unjust injustice." That is what it amounts to. Bo I think, with regard to this amendment, that there is no need of it, because a regula- tion that would provide for the forwarding of freight of a perishable nature, would not be discrimination in favor of or against anybody else. It seems to me so, and therefore I shall vote against the amendment. Ma. CAMPBELL. I wish to ask the gentleman a question, whether, when he says a man has a very discriminating mind, he means the man has a very unjust mind T BIMABK8 OP MB. TAN DTK!. Mb. van dyke. Mr. Chairman : It seems to me that this amend- ment suggests to us that we have made a mistake in voting down the amendment suggested by the Chairman of the Committee on Corpora- tions. Now it does strike me that we should have the word "unjust" there. I have as yet heard no answer to the question propounded by the gentleman from Shasta, Mr. Andrews, if a difference in cJiarges on different roads, for instance, where the grade is different, would be a dis- crimination. I think it must be a discrimination, and we sav here that there shall not be any discrimination, leaving out the wora "unjust." Now, is it not a discrimination to say that one kind of freight shall be run through with greater expedition than another kind? Is not that a discrimination with reference to freight? It strikes me that It Is, and I do not see bow any man can say otherwise. It is obvious, from the fact that the gentleman suggests this amendment, that it is a discrimination. But the question is, is not that a just and proper discrimination? If it is, why, certainly, the committee mode a mistake in refusing to insert the word " unjust." Some gentlemen may say that the Courts will con- strue that to mean only a just discrimination. That it means that you shall not unjustly and unduly discriminate. Now, if the Courts are obliged to inteije^ this amendment in order to make common sense out of it, why leave it for the Court* to do; why not put it in the Constitu- tion ao as to take away such necessity on the part of the Courts, and make our meaning plain. If we want the Court* to construe it in that way, then it is our business to put it in here. I merely throw out thii suggestion. I have not occupied the time of the committee on this sab- ject, e generally conceded at this time that the power to regulate these corporations exists in the State. If that has been a debatable question heretofore, since the decisions of the Supreme Court of the United States, reported in the fourth of Otto — more generally called the Granger cases — I presume that it can no longer be considered a debatable question merely upon that point; and the decision announces no new law, but refers to law as old as the time of Sir Matthew Hale, in support of the doctrine there enunciated ; and, although corporations may desire to have a different rule, I presume that now no one will seriously contend that the power of the people, through the Government, cannot be invoked to regulate these corporations. But, sir, admitting that to its fullest extent, I cannot subscribe to the policy which this twentietli section contemplates. Now, sir, what do we understand by the power of the people to regulate these corporations? Sir, we merely understand that this power of the people is to be exercised through the Government. It is not contemplated nor imagined that the people, en masse, can regu- late these questions. They must do it through their organization, to wit : the Government. Now, sir, what is the Government as under- stood by the American peopleT Why, sir, one of the great triumvirate that indited the papers known generally as the Federalist, Alexander Hamilton, at that day announced it in one of its papers that it was axiomatic that popular republican government consisted of three coordi- nate, coequal branches, to wit: legislative, executive, and judicial ; and that constitutes popular republican {^vemment It was because the old confederation did not conform to this, because it did not have in it and did not recognize these cardinal principles, these axioms in a popular government, that it was displaced and tne present Government of the United States was'installed in its stead. And it was in advocacy of the present Constitution of the United States against the weak, puerile Gov- ernment of the old Confederation that this announcement was made — that now it had been admitted an axiom in government, that in order to exist as a government, it must possess these three coordinate, indepen- dent powers. All the States of this Union, Mr. Chairman, recognize this as cardinal 67 in all government in this country. I hope gentlemen will bear in mind the dinerence in this respect between adopting this and an ordinary legislative enactment. We are not now forming an ordinary legislative law, but we are preparing and formulating a Constitutional Government. We are ^ing down to the substratum, and what we put into this instru- ment will control not only the Courts, but the executive and judicial departments of the Government. Then, sir, if this twentieth section is incorporated into the Constitution, what do we have? Why, we destroy that feature in republican representative government, of three distinct, , independent, coordinate departments, and we create a fourth, which is greater in some respects than all the others, and, like Aaron's serpent, swallows them all up. Now, cam there be any denying this? Why, a mere inspection of the twentieth section will show you that this is no exaggeration at all. It provides for the election of these men like, the Governor of the Stale; it defines their duties; it gives them the sole power in these matters. They not only have the power of legislation, under the law, in fixing these rates, but they have the judicial power to bear and determine. It is the very essence of jurisdiction and judicial power, and they can call upon the Courts and the rest of the depart- ments to enforce their decrees. They therefore embrace, to this great extent, all the three departments of government, and in matters more important, than can possibly come before the other three. Now, sir, as to the argument in support of this departure A«m our theory of government — because it can be nothing less than that — it is a clear departure from our theory of government, and if that section pre- vails, we must modify that article of the Constitution which distributes the powers of the governme'nt, in order to conform to it. What are the arguments deduced in support of such an extraordinary proposition as that? That the people demand this; that the Legislature cannot be trusted. Well, now, Mr. Chairman, I deny the right of some gentle- men, the youngest members of this body—some gentlemen from San Francisco, who perhaps have been in the State only a few years — I deny that they have any authority above their fellow members here for announcing what the people demand. As the witty John Van Buren once remarked when he was answering this demagogical catch of what the people want, what the people say, and what the people were going to do, that he didn't know of any better guide or rule to ascertain what the ))eople wanted, than to ascertain what he wanted himself, inasmuch as he claimed himself to be one of the people. How do we know what the people want except by ascertaining what we, as men of common sense, of common intelligence, as a part of the people, coming from the people, want? What we want Is what the people want, necessarily. We are of the same constituents that they are, part and parcel of the State, and it ig sheer demagogism to continually harp upon what the people want. In a matter of such great moment, such vast ma^itude, a matter that will affect us, if adopted, for years in this State, it seems to me that it requires that we should address ourselves to it in a calm and dispassionate manner, and not be continually appealing to the feelings or prejudices of membere to control them in one way or the other. Now, sir, the other argument that we cannot trust the Legislature. Do members stop to think for a moment what the inevitable result ^f that admission is? It is nothing more nor less than an acknowledg- ment of the failure of republican government. There is no escape from it. If we solemnly declare here that experience has demon- strated that the legislative department of the Government cannot be trusted in the exercise of the necessary functions falling to such a body, I say the (inclusion is inevitable, and there is no escape from it, that republican government is a failure, and some other government must •be adopted. Now, sir, I challenge anjr gentleman on this floor to stand up in bis place and admit here the logical result of this claim, that the Legislature cannot be trusted, and that is, that republican government on American soil has proven a failure. I wish no gentleman of the committee to announce that as his deliberate opinion, because that is what it comes to. Now, sir, who are these legislators? Where do they come from? Why, we would suppose if we had just come into this Convention from some other countnr, and were unaccustomed to our form of government, that the members comprising these Legislatures wore a race different from ordinary mortals; that they didn't come from the rest of the community. Who is it that electa the Legislature? Why, the same qualified electors that elect your Governor; the same qualified electors that elect the Judges of your higher Courts. And it is claimed here, that these men who must, in the nature of things, be trusted, if you preserve the form of government, that these electors scattered through the State are incompetent, and when we cease to exercise the functions which have been committed to us by their choice, that they, forever after, are incompetent to select men to discharge their business in a legislative capacity. That is the argument. Now, sir, is there anything to justify that? Suppose there have been abortive attempts at cheeking evils. Does it follow from that that you cannot trust the Legislature in anything, or forever more? Why, is it not the history of every effort in this line, that it must be repeated — that you must try again? As a matter of course it requires experience to ascer- tain what is right in the premises, and the very gentlemen here who have so maligned the Legislatures, and who say they will not trust the Legislatures, have, of themselves, admitted that the Le^slature, in the nature of things, cannot, during ope session, arrive at a just schedule of freights and fares. Notwithstanding this admission, tb^t the Legisla- ture, with all its wisdom, and however honest it may be, cannot, during one session, arrive at a correct conclusion in reference to this subject, and still they say: "You cannot trust the Legislature; we roust fix it all up right here; we must leave nothing to be done in the future." Now, this is perfectly impossible. You must trust the Legislature. Unless we conclude to do that in the future, as it has been in the past, it will be better for us to adjourn at once, and acknowledge that the whole structure was a failure. ^.^ Now, sir, I am in favor of a Commission; I think/it a s^per and a> Digitized by VjCJ- ' ^ 630 DEBATES AND PROCEEDINGS Tdksday, legitimate mode of arriTing at the matter; I think it is neoeieary in order tu place within the knowledge of the Legialature sufficient and correct data on which they can found proper action. But, sir, while I am in favor of a Oommiasion, I am not m favor of surrendering the State gov* emraent to any three men. Right here I wish U^ ask tnoee gentlemen, who are so loud in their denunciation of Legislatures, and who say it will not do to trust the Legislature, how they expect to select these three Commissioners? They do not propose to disfranchise the present electors of the State. I have not heanl tnat proposed. Here these three Com- missioners are to be selected by the same elector* that send us here, by the same that select your Governors, by the same that select your mem- bers of the Legislature, and your Supreme Judges — precisely the same. Now, in all these three departments of government, the^ have proven themselves ignorant and corrupt — these electors — but m reference to these three Comniiaeioners, it is presumed here, I suppose, that they will select from the whole State, the only honest, the only intelligent men in the State. It i»a mere delusion. Mr. Chairman, as practical business men, we must look at this question in a practical business point of view. All this talk about the people desiring this to be thrown into their hands is simply talk, because the people, en masse, cannot select these men. They send men and delegates to some Convention; that is the first move- ment to select these Commissioners. Where do these delegates goT Tliey go to a State Convention composed of politicians, just like all our Btate Conventions are. What is the business of that State ConventionT Why, they commence at the head of the ticket, usually at the office of Gov- ernor, and go along down, and among the rest, they nominate these Railroad Commissioners. Now, Mr. Chairman, it is within the knowl- edge and experience of all of us, that while we had a State Printer elected in this State, the whole work was a job from beginning to end, and it was so much a scandal that the whole thing was wiped out of existence, because of its demoralising effect in the nominating Convention ; because in every Convention, whether it was a Republican Convention or a Dem- ocratic Convention, the same experience followed, that this State Printing Office, being an office of considerable emolument, demoralized every Con- yention. It was farmed out among men who put up and put down things on purpose to nominate the State Printer. Every one knows that to be the effect, and the same result would follow iti case you elect these three Commissioners. These three offices, possessing such immense power, would be sought for, not for the salary, because I do not think very much compensation would be allowed them, perhaps three thou- sand dollars per annum, but for the purpose of makmg out of the office, either in farming it out or by corruption. The result would be that the Democratic Convention, and the Republican Convention, and the Workingmen's Convention, or any other State Convention, th^ might meet to nominate these officers, would be demoralized, in order to secure these officers — for the purpose of nominating these officers — and the people would be obliged to vote for the Commissioners pre- sented on one of these tickets. I say, Mr. Chairman, that we must look at this in a practical point of view. That would be the practical working of this section. . Now, the gentleman from Los Angeles referred to Boards of Super- visors as an analogy to this. Boards of Supervisors and other Commis- sions possess, in a measure, legislative, executive, and judicial powers. Mr. Chairman, there is a great difference between these subordinate Boards and Commissions and a Commission appointed under the Con- stitution. They are subordinate to the power of the State necessarily. This Commission, if we pass this section, would not be subordinate to the other powers of the State. The Chainnan of the Committee on Corporations has referred to the great powers of the Transportatioi^ Commission in Great Britain. That is not a parallel case, because every lawyer knows, and perhaps most laymen, that in Great Britain they have no written Constitution. In Great Britain there is no power above the power of Parliament. Parliament in Great Britain is omniiwtent— essentially so. Therefore the Commission in Great Britain is a Par- liamentary Commission, and there is no analog unless we empower the Iiegislature to appoint a Legislative Commission. Then there would be nn analogy. Now, sir, it makes no difference, practically, how much power that Commission has in Great Britain, because if they attempt to abuse their trust the strong hand of Parliament can shut down on them and destroy their power and in fact put them out of existence by one breath. How is it here, if this twentieth section enters into the Consti- tution? Why, as I remarked before, it is necessarily above and beyond the reach of the legislative power. And what is the legislative power? It is the power and voice of the people — nothing else. They are the repre- sentatives directly from the people. Therefore you create a body df men who are alone and beyond toe reach of the people. Is not that so neces- sarily? I say there is no analogy between the Commission in Great Britain and the Commission you propose to establish here. Further, Mr. Chair- man, the Chairman olthe Committee on Corporations and other gentlemen have referred to the powers of other Commissions in this country. I wish to ask some gentleman who has informed himself upon this sub- ject, whether there is any case in the United States where in the Consti tution there exists a provision at all like this twentieth section. I want to know if there is a single Constitution within the whole of the States of this Union where there is embodied in the fundamental law of that State, or any other State, a provision at all similar to this twentieth sec- tion, where it provides for a body of men to whom it commits the sole power to establish their rates, to hear and determine questions, and to call upon the other powers of the State to enforce their edicts. Sir, I understand that the majority of these Commissions are purely legislative Commissions. Now, sir, there is no danger in anjr Commission of that kind, however great its powers may be, for there is a power behind it that can throttle it whenever it attempts to abuse the hi^h trust con- ferred upon it. I say there is no danger in a Commission if you reserve some power that can control it; butjiere there is no reservation at all. Therefore the argument that was attempted to be adduced here in favor of this, drawn from reference to other Commissions, I think has no great force. Mr. Chairman, I wish to impress upon the member* of the committee the important fact that we are liable, very liable, in the present temper of the people — and I have no doubt that the state of feeling has been produced b^ many abuses; I do not deny that — but I ny, Mr. Chair- man, in this Constitutional Convention, smarting under this feelin|, or actuated by a feeling of enmity or hostility to these great eorporatioDi, we are in danger or running to exceascs which we will not disooTer, perhaps, until too late to correct them. But the correction will come; and if we commit excesses here the result will be the defeat of this instrument. Now, sir, for one, I came here, and I have no doubt the rest of the gentlemen in the Convention all came here, with the sincere purpuxc of working to the sole end of revising the Constitution so ss to improve it, and to better adapt it to the wants and conditions of the peo- ple of the State at the present time. There are some great and impor- tant questions that we should act upon, and that we should imprors va in the present instrument. They are known to us all. I am in &vor, with reference to corporations, of holding on to all we have got, making it fixed in the fundamental law of the land, but in doing so not to go to excesa in such a manner that we cannot remedy it if the instrurant is adopted, or that will possibly insure its defeat on the other hand. Ve should attempt to remedy the evils in reference to aasessment and taxa- tion. The^ are evils under which the people of this State are groaning. All recognize the inequality of taxation. We should reform the judicjal branch of our State, and I say this without designing to reflect upon the judiciary; I attribute it to the system. I say we want ■ change. Evtiy one recognizes the fart that it can be improved. We should aix^sh tM separate judicial elections; that will relieve the people of the State of hundreds of thousands of dollars of useless, unnecessary expenses. We should transfer our elections from the odd to the even year, thereby saving other hundreds of thousands of dollars. We ar« neoessarilT obliged to have elections on even yean for President and memben of Omgress. These things all will recognise as a vast improvement on the present Constitution. If we attend to them, and attend to the queslioi of corporations, in a dispassionate, calm, and prudent way, ana if our action is based upon judgment, and not upon passion or prejodioe, w« will frame an instrument here that the people will approve, and under which their prosperity also will be enhanced. spiica or MB. wicsis. Ma. WICKE8. Mr. Chairman: I think I rightly represent the tem- per of that section of the State which I have the honor to represent, when I state that they wish a change in the mode of railroad inlerrea- tiim and legislation, and a wave of popular indignation against eorpon- tions, and against the Central Pacific Railroad in particular, bore many of us hither. But popular clamor is silent now. The people outside await our action here, with dignified and breathless expectation. They do not wish us to indulge in invective ; they will award us no credit fiir denunciation. They wish us to treat this question within the pure, serene atmosphere of reason and constitutional law. Since God gave the command to man to subdue the earth, and to ears his bread by the sweat of his brow, the line of evolntion, in the develop- ment of industrial growth, has extended from "the wants of the individ- ual to the Vants of the community. From the initial point of civilia- tion to the present advanced age, the gradual concentration of bosines power has been analo^us to the increasing nervous power from the coral zoophyte to organic man. There is now a web of interdependenoe everywhere, made up of the reciprocal relations between the prodacer, transporter, and consumer. Society is now a vast oi^fanisro, m vhicfa the growth of industrial resources requires and has built up this grealer concentration and cireulation of business power. The great railroad trunks and their branches are the lai^ circulatory blood vessels of this organism, stimulating business activities everywhere. Tet it needs a head, and its tendency is to consolidate undera head, or a combinstioi. This head will subordinate the Slate to its influence, or the State mmt subonlinate it to legislative control. The Convention seems agreed to this, yet analysis of it gives three classes of minds, differing as to Ibe mode. Some' are for leaving this power in the hands of the Legislstaie; some would vest it in an inquisitorial Commission, and otheis wooM vrsl it in this elective Commission, with plenary powers, as reported by the committee in section twenty of its report. I am opposed to its control by the Legislature. The people knovthsl its intervention hitherto in railroad matters has been farcical. Firti — Because of the facilities presented for the corrupting of that body — responsibility being too much distributed to secure the rigid lem- tiny of the public. Give due Weight and consideration to the vordiof one whom so many of you admire — Henry Edgerton — found in tspteA which he delivered, reported in the Sacramento Union August eighteentli, eighteen hundred and seventy-five, from which I reeul. He says: "But a few years since, a director of the Central Pacific Railroad Company said, in substance, that that concent would not tiien actively participate in general politics, because it was easier to buy legislators than it vas (thank God) I todebauch the people." Despicable, execrable as was botli the motive and the sentiment, experience has proven the obeerrstioa s shrewd one; for the facility with which they have hitherto manipulated your Legislatures is proverbial. The two fast, one Democratic snd the other Republican, instead of exercising their constitutional fonetioBS as acn<>rilinate branch of the government, in the true intereels of tie people, at once abdicated their sacred trust to tiat compaxy, and became Its obsequious tool. The most servile and abject of the parliamenta of France never bent in more complete submission to the will of a Bonrboa monarch than did those bodies to the behests of the railroad kings. "The evidences of the surrender were bald, convincing, and hniailiat- ing to the last degree. Visiting the Assembly chamber on the o**"* of a final vote upon a measure of great public interest, the bill for tha tJ' Nov. 26, 1878. OP THE CONSTITUTIONAL CONVENTION. 531 reduction of freights and fares— forgetful of the rule excluding frora the floor of that august body those who were not member*, or in the cate- gory of State officers — I was proceeding to a seat inside the rail, when I was courteously reminded that my irreverent feet were on holy ground, and directed to a seat in the gallery. Arriving there, I soon discovered that I had been ordered away only to make room for Uie' leper Stanford, with his body-guard and train-bands who thronged the floor of the chamber, as well as every recess and precinct of the Capitol ; and then followed such a satumalian scene of legislative perfidy and debauch as was never before enacted since the Commons sat." He stated furtlier, that "the individual conscience and will shall be stifled beneath the despotic influence of powers usurped and centralized in relentless, remorseless, irresponsible, moneyed corporations." That "the authors of these rings, had they lived in the days of Publicola, would have been .hurled from the Tarpeian rock I" iSecom^— Again, I am opposed to direct legislative intervention, be- cause that body meets but a short time, once in two years, henoe it can- not give that close and constant attention which this subject demands. Third — The XiCgislature is generally composed of men who have no fitness for intervention in railroad affairs. I am in favor of the elective Commission as reported ; first, because it is a representative body, elected by the people. In this connection, I deny that it is an absolute body, because its powers seem to embrace the three departments of govern- ment. The division of government into three branches is an arbitrary one for convenience of administration. The legislative, executive, and judicial functions naturally telescope into or blend with each other,(and are reciprocative. Again, this tribunal is limited in various ways — they must report to the Governor; they must bring suit through the Courts'; they must perform such duties as may be prescribed by law. Again, they are bound by that instinctive sense Of justice in the hearts of the people, to give a fair hearing to the Railroad Directors before they fix any tariflfor take any judicial action. Next, I am in favor of it because responsibility is so localized in this triumvirate, that the light of public scrutiny can be concentrated upon it in an intense focus. Third, it is the best custodian of the public interests, because it can give constant attention to this work. fburth — In selecting this tribunal of three from the large population of California, the people have a great mai^in of choice from which to secure men of fitness and integrity. I regret to call attention, in this connection, to an invidious compari- son that was drawn here, in a gentleman's speech, between the members of this body representing the legal profession, and those from other voca- tions in life. He declared that "the lawyers were the brains of the Convention, who, when deliberating upon any important measure, were overpowered by a rush of brawn and muscle from the other side of the house." Now, if the lawyers are the brains of the Convention, their instincts and jud^ent cannot be unerring, for they differ and divide upon every question. It was further stated that in the structure of our civil freedom, "every atone had been cemented by their blood." If they have thus served their country, it has well rewarded them by bestowing upon them the best part of the ofiices in its gill. But I have no preju- dices against lawyers. Si me of them upon this floor are ornaments to their profession and to society. A word, however, might have been said in enlogr of the students, artisans, yeomanry, and workingmen of our land. Of all professions, the student philosophers stand highest; men who follow in the footsteps of Newton, Galileo, Bacon, Kepler, Stephen- son, Brunei, Rittenhouse, Franklin, Fulton, Howe, Morse, and Edison. These are the men who have exalted human nature above the petty- round of earth, and made life sublime. They have laid the matheinatic chain from star to star, and sounded the depths of the universe. They have applied the logic of mathematics to grind your corn, to lift the water from your mines, to propel your loaded trains up the ascending grade. They have made a way for navigation across tne pathless sea. They have forged the electric chain and bound the lightning's Aviiig. A meed of praise also might have been awarded our artisans. These men, in times past, with level, square, line, and plummet, planned and raised the colossal pyramids, built the temple of Solomon, lifleil the mighty dome of St. Peter, and its kindred cathedrals ; found Rome brick, and left it marble; and none are more worthy to wear the crown of civic honors than those, who, at the call of our country, left the plow, anvil, and work-bench, by braton and muscle to push roads through the swamps of the South, along which to carry the flag of the republic, 'mid storm of shot and shell, to victory. These are the men who are now coming to the front to maintain the integrity and dominion of the Caucasian race; to redeem and ennoble their country; to whom I apply the inspired words of the prophet Ba\tLk, I bless them, and they shall be blessed. [Applause.] Me. WATERS in the chair. » BFIECH or MR. BIBBOCB. Mb. B.\RB0DR. Mr. Chairman : I had supposed that when we came to the consideration of this report, each section would be disposed of as we reached it, but this debate has drifted away from the proposition of the gentleman from lios Angeles, Colonel Ayers, a fusilade has been opened along the whole line — one of them assailing the whole report and the whole plan offered by the committee. I, as a member of the committee — after deliberating a considerable time upon this whole section, which seems to be the rock Eihead on which the railroad corporations are liable to split, and against which all the engineering efforts of their engineers here are directed — now subscribe to it. I gave my consent to it, although in the beginning doubting very seriously the propriety of intrusting such power to any Board of men, whether appointed or elected, or in anywise constituted. I do not subscribe to the details of the plan as presented, exactly. I have a minority report, which I shall endeavor to present and^ve considered, which, in my humble judgment, meets some of the objections which have been made against the general plan of the Commission, as to the powers that are sought to be conferred. And when it is so amended as to meet the wishes and to meet the views of those who are sincere and earnest in their desire to respond to what seems to be a universal demand of the people of this State, I hope it will go through, and that it will receive the sanction of the people at the polls, when they come to the ratification of the Constitution we may submit. Now, sir, my position on the subject of corporations is this: I am not to be deterred from what I conceive to be my duty, from what I think I may safely say has been the practice of my whole life, by any compari- sons to " unfeathered bipeds," or " mad bulla, with horns down and tails erect." I shall not be deterred by any cry of that kind, from rescuing this country from what I believe to be the most dangerous tendencies, the most anti-republican theories, which threaten our free institutions themselves; from pernicious doctrines which have been advocated, and which have grown by legislative enactment and decisions of Courts into usages which require, in my humble judgment, the beheading erocess. This great legal lie which has been preached all over the nitcd States, and which has been preached in this Convention, shall be met by an indignant people, or the representatives of an indignant people, who offset against all this sophistry that is thrown on the plain common sense of plain, practical men. Now, sir, the subject before the committee is railroad corporations and their regulation. The argument is substantially put forth here, that the railroad property, that is to say, including the franchise of the railroad, its right of way and its right to take toll, are private property. Against that, sir, I maintain that our whole theory of government rises up against these assumptions. But for forty years, in consequence of a mis- taken idea from a decision of the Supreme Court of the United States, that great legal lie has been maintained, and has been rammed down the throats of the people, until corporations have grown more powerful than the Slate, and in their blighting presence, as in the presence of the upas tree, no business can live. No honorable ambition can stir in the breast of an honorable man with any hope of success, for the path to honor lies only in servility and subservience to corporate power. I maintain that the emergency is upon the people of this State now, to come fully up to the progressive spirit of this afe. Now is their golden opportunity to rid themselves of that which will ultimately destroy the sovereignty of the State, and destroy free institutions themselves. Therefore I am in favor of bringing to bear on the railroad corporations, the whole constitutional power of the State; the police power, the power of taxation, the power to regulate them as common carriers, and the roads as public highways ; to punish abuses aud violations of the law, and to use all the powers of the State, except the power of eminent domain, to condemn and take their property, and I shall hold that that power is reserved and declared so tliat the State may, whenever it sees fit, exer- cise that sort of power too. But at present, sir, on account of the politi- cal corruption, it may not be wise to exercise that power. When in the . course of time, by returning to first principles, by returning to the prin- ciples put forth by the new party which has arisen in the State of Cali- fornia, that the office shall seek the man and not the man seek the office, it may be possible for the State to own and control its railroads without detriment to the public service. Now, sir, I maintain that, at the present time, the line is being drawn. We shall soon see who are the frienitB of the people. We shall soon see who are upon the side of the people, on the subject of the regulation of the railroad corporations within this State. All that we nave done now, all of the sections that we have adopted with regard to discrimi- nation, ^o for naught. They are bald, naked declarations. The mere declarations of a Constitution are not self-execyting, and the machinery must be provided by which to carry them into eflTect. What use is it to declare in the Constitution that railroads shall not discriminate between persons and places? You must render them effective, sir, by providing the machinery, right upon the heels of it, to make it effective, and bring a power to bear equal to or greater than the power that is guilty of the abuses. Many arsumenta have been made here by gentlemen opposed to this section, and to the genert^ scope and spirit of the report of^ the Commit- tee on Corporations. We are accused here of not treating the subject in a judicial and impartial manner. It is said by one that whenever a great argument is presented, that you will hear bellowed out, " Corpo- ration lawyer." The gentleman from Sacramento, Mr. Edgerton, says that whenever you talk about or in favor of a corporation, certain mem- bers act like a herd of mad butts, that put their heads and horns down and rush madly forward with their tails up, reckless whither they go or who is in the way. Now, upon the subject of this power, and as to the nature of the property which is here denominated private property, predicated upon some claim of vested right, I will reaa an autnonty. 'The Chairman of the Committee on Corporations, in hisopening argument, did fall a little short in insistinj^ that the renowned lawyer, Jere. Black, was a member of the Constitutional Convention of Pennsylvania at the time of the adoption of one of the sections in this report. I will read now from the opinion of Judge Block, when he was on the Supreme Bench of the State of Pennsylvania, with regard to the character of the property which these corporations have, and which they claim to have now in the State. This was a case of the forfeiture of a railroad franchise, and the defense set up that it was a taking of private property without com- pensation. He says : " The authority given by the Act of October, eighteen hundred and fifty-five, to the defendant, to take possession of the railroad, is asserted by the plaintifTs counsel to be an actof confiscation— a taking of private property for public use, without compensation. If this be true, the injunction ought to be awarded, for no Legislature can do such a thing under our Constitution. When a corporation is dissolved by a repeal of its charter, the Legislature may appoint, or authorize the Governor to appoint a person to take charge of its assets, for the usr^f the creditan Digitized by VjOOQIC 532 DEBATES AND PROCEEDINGS TlTKSDAY. and stockholders; and this is not oonflscation any more than it ia cnnfiB- cation to appoint an administrator to a dead man, or a committee for a lunatic But money, or goods, or lands, which are or were the private property of a defunct corporation, cannot be arbitrarily seized for the use of the Btate without compensation paid or provided for. This Act, however, takes nothing but tne road. Is that private property T Cer- tainly not I It is a public highway, solemnly devoted by law to the public use. When toe lands are taken to build it on, they were taken for public use ; otherwise they could not have been taken at all. It is true the plaintifls had a right to take tolls from all who traveled or car- ried freight on it, according to certain rates fixed in the charter, but that was a- mere franchise — a privilege derived entirely from the charter, and it was gone when tne charter was repealed. The State may grant to a corporation, or to an individual, the franchise of taking tolls on any highway, opened or to be opened, whether it be a railroad or river, canal or bridge, turnpike or common road. When the franchise ceases by its own limitation, by forfeiture, or by repeal, the highway is thrown back on the hands of the State, and it becomes her duty, as the sovereign guardian of the public rights and interests, to take care of it. She may renew the franchise, give it to some other person, exercise it herself, or declare the highway open and free to all the people. If the railway itself was the private property of the stockholders, then it remains theirs, and they may use it without a charter as other people use their own — run it on their own account; charge what tolls they please; close it or open it when they think proper; disregard evei^ interest except their own. The repeal of charters on such terms would be courted by every railroad company in the State, for it would have no effect but to emancipate them from the control of law, and convert their limited privileges into a broad, unbounded license. On this prin ciple a corporation might be rewarded, but never punished for miscon- duct. Repeal of its charter, instead of bringing it to a shameful end, would put 'length of days in its right hand, and in its left hand, riches and honor.' But it is not so. Railroads made by the authority of the Commonwealth upon land taken under her right of eminent domain, and established by her laws as thoroughfares for the commerce that passes through her borders, are her highways. No corporation has any property in them, though corporations may have franchises annexed to and exercisable within them. ' That is from the 28 Pa. State Reports, 307. Again, on page 324 of the same book, he says : " It is further objected to this law, that it is an act of confiscation — takes private property for the public use of the State without compen- sation. The Government of the United States is forbidden to do this by the Federal Constitution. That instrument, of course, has nothing to do with this part of the case. But the State Constitution also declares that ' no man's property shall be taken or applied to public use without the consent of his representatives, and without compensation being made.' Does this Act violate the State Constitution in that part of it? We answered this in the negative when we refused the special injunc- tion, and gave reasons which need not be repeated. Railroads built under the authority of law for general purposes of commerce, are pub- lic highways. On this principle alone we decided that municipal sub- scriptions were valid. On this principle alone can land and material be seized to make them. On this principle alone can the laws be justi- fied which limit the tolls vpon them. On this principle alone have ve the power, so often exercised, of compelling those who have the charge of them to keep within the boundaries of the law. On this principle alone we have always held that no individual or corporation can pos- sibly have any right or privilege connected with them except what the law has expressly conferred. 'The charter of this company contained a series of regulations, presenting the manner in which a public highway should be used. The repeal abolished those regulations and substituted a different set. By the charter, and by the charter alone, were the plain- tiffs authorized to interfere with it at all ; the repeal necessarily took that authority away. A public highway is not private property any more than a public office is private property. The execution of the law relating to an office is intrusted to an individual; a corporation as well as an individual may be intrusted with the execution of the law which relates to a highway. In either case, if the trust be abused it may be withdrawn; but neither the highway nor the office is thereby extin- guished. The people still have a right to be served in both, and it is the duty of the State to see that they are." That is the opinion of Judge Black. Corporations, apart from their abuses, are undoubtedly good things; the principle which prompted their formation was a good principle. It sprung from the old Anglo- Saxon spirit of voluntary association. They were never understood to be independent of control at all, but were entirely under the control of Parliament. They first begun their assumptions something like one hundred years ago, in the case of the greatest corporation and the great- est monopoly on earth, the British East India Company, Thatoonipauy grew so powerful that it defied the Parliament of the country. They claimed the charter of rights of man, just as our lawyers talk about vested rights covered b^ a provision of the Federal Constitution, as of properly being taken without due process of law, and the other jirovis- loii prohibiting a State from passing any law impairing the obligations of a contract. Now, I read from another very distinguished gentleman, one who is generally considered a great friend of popular rights, Edmuud Burke, in a speech in Parliament on the bill to take away the Charter of the British East India Company. There the objection was that the bill was an attack on the chartered rights of man. He says : " As to the first of these objections ; I must observe that the phrase of ' the chartered rights of men,' is full of affectation ; and very unusual in the discussion of privileges conferred by charters of the present description. But it is not difficult to discover what end that ambiguous mode of expression so often reiterated is meant to answer. The rights of men, that is to say, the natural rights of mankind, are indeed sacred things; and if any public measure is proved mischievously lo affect them, the objection ought to be fatal to that measure, even if no charter at all could be set up against it. If these natural rights are further affirmed and declared hy express covenants, if they are clearly defined and secured against chicane, against power and authority, by written iostra- ments and positive engagements, they are in a stiU better condition; tliey partake not onl^ of the sanctity of the object so secnred, but of that solemn public faith itself, which secures an object of such importance. Indeed, this formal recognition, by the sovereign power, of an oriKJnil right in the subject, can never be subverted but by rooting up the hold- ing radical principles of government, and even of society itself^ The charters, which we call by distinction great, are public instmmenls of this nature; I mean the charters of King John and King Henrv the Third. The things secured by these instruments may, without aoy decekful ambiguity, be very fitly called the ckarttrtd rigkU of mm. " These charters have made the very name of a charter dear to the heart of every Englishman. But, sir, there may be, and there are chsr- ters, not only diilerent in nature, but formed on principles the coy recent of those of the great charter ; of this kind is the charter of the East India Company. Magna Charta is a charter to restrain power ind to destroy monopoly. The East India Charter is a charter to establiafa monopoly and to create power. Political power and commercial monop- oly are yiot the rights of men; and the rights of them derived from charters, it is falli^ious and sophistical to aX\ ' the chartered rights of men.' These chartered rights (to sneak of such charters and of their effects in terms of the greatect possible moderation), do at least suspend the natural rights of mankind at large, and in their very frame and constitution are liable to fall into a direct violation of them. " It is a charter of this latter description (that is to say a charter of power and monopoly) which is affected by the bill before you. " The bill, sir, does, without question, affect it ; it does affect it essen- tially and substantially. But having stated to you of what description the chartered rights are which this bill touches, I feel no difficulty at all in acknowledging the existence of those chartered rights in their fullest extent. They belong to the company in the surest manner; and they are secured lo that body by eveiy public sanction. They are stamped by the faith of the Icing; they are stamped by the faith of Parliament; they have been bought for money, for money honestly and fairly paid ; they have been bought for valuable consideration, over and over again. I therefore freely admit to the East India Company their claim to exclude their fellow-subject from the commerce of half the globe. I admit their claim to administer an annual territorial revenue of sevai millions sterling; to command an army of sixty thousand men; and to dispose — under the control of a sovereign imperial discretion, and with the due observance of the natural and local law — of the live* and fortunes of thirty millions of their fellow creatures ; all this they poseees by charter and by acta of Parliament, in my opinion, without aeaadov of controversy. " Those who carry the rights and claims of the company the furthest, do not contend for more than this; and all this I lre»\j grant. But grant- ing all this, they must grant to me in mv turn, that all political power which is set over men, and that all privilege claimed or exercised in exclusion of them, being wholly artificial, and for so much a derogation from the natural equality of mankind at large, ought to be some way or other exercised ultimately for their benefit. " If this is true with regard to every species of political dominion, and every description of commercial privilege, none of which can be origi- nal self-derived rights, or grants for the mere private beaefit of toe holders, then such rights, or privilegM, or whatever else ^ou dioow to call them, are all in the strictest sense a tnat; and it » of the very essence of every trust to be rendered accountable; and even totally to ceoM, when it substantially varies from the purposes for which alone it could have a lawful existence." , I maintain, sir, that the only way by which corporations which are monopolies — that is all that can be said pf them — the only way by which they can be maintained and be consistent with the spirit of our institutions, is to also hold that they are exercising a public trust, and that the very essence of that trust is the accountability of those exercis- ing it, and its liability to cease whenever it perverts or becomes sub- versive of the natural rights of mankind, or the political rights of a community. In the beginning of this republic of^ ours, our wise old fathers thought but little of these things. Wealth had not accumalated, corporate power had not been asserted as in modem times, and they provided not for them in the original Constitutions, and did not con- template them. The only one about which controversies arose, to say extent, in this country, was the United States Bank. That »aa held, by those who went in for a strict construction of the Constitution, to have been established without the sanction of law, and to have been established in violation of the Federal Constitution. That bank, sir, had become, as all these powerful corporations have become, desirous of polit- ical control, and General Jackson, and the great cohorts who marched to victory under his banner, put it down, and then it was discovered to be, as too many of them are, a rotten shell. Then came the question of internal improvement, when the battle raged again. Propositions to suliecribe puolic moneys were combated vigorousl;y by those who fsvond a strict construction of the Constitution, and a strict limitation upon Uie powers of Congress to assist and aid in internal improvements; and I suppose that the members in this committee know that the only «sy by which they were ever allowed to grant a single foot of land or s subsidy of a single dollar in aid of any enterprise of a private charteto' whatever, was upon the power to establish post and military iWa Now, this corporation, which is doing the principal transportation bni^ ness of the State of California, obtained a subsidy from Congress of lands and of money upon that ground and that ground alone — a owlt- bution which was made by virtue of the power asserted in CoagreM l» establish military roads and post roads. It «aa not then coatcmded t> Oigitized by VjC^ Nov. 26, 1878. OF THE CONSTITUTIONAL CONVENTION. 533 be a creature independent of the power that created it. It was not then contended to be greater than the power that created it ; but it was dis- tinctly asserted to have been built and established by the public money, subject always to public control as such. And yet genUemen are tell- ing us here in this Convention that we have no right to inquire into their title. That we have no right to go back and examine what gifts they have received — gifts from the State, gifts from the counties, gifts from the Government— all of which proceeded upon and depended upon governmental control, and holding them to a strict accountability for the trust which was conferred upon them. And if it should turn out that these gifts amount to more than the whole value of the property itself; if it should turn out that the vast subsidies of lands and of money ^ven by the Government of the United States, given by the State, Siven by the counties, have been sunk in the private exchequer of the ■rectors, whilst they have got mortgage bonds to represent the money borrowed to build the road, they still tell us that we have no right to inquire what has become of this money ; we have no right to look at the privato fortunes swelled into millions by the individuals engaged in the work. In the days when they were soliciting this aid at the nands of Congress, of the Legislature, and of the Boards of Supervisors, they sung a different tune, and gentlemen have but to refer to the debates in Congress on the Central Pacific Railroad bills, to see that, in those days, no such tremendous power over the property was claimed, but they were only the agents of the people. Now, we have no right to inquire. Poor suffering men I Objects of compassion and solicitude, as they most bel Another says, pass this Commission "bill, and you will drive them into politics. My God ! are they waiting to be driven into politics in this State? Is that what you call forcing into politics? Why, this is as good as the description by Byron of the females of Islam standing on the street comers while the city was being plundered and sacked : "Some TolcM of the buxom middle-aged Were aleo henrtl to woDder in the dla, (Widows of forty, were these birds long Olged), ' Wherefore Uie ravlsbing did not begin V " Forced into polities 1 Could they get any deeper in than they are now T Have they not made up their slates? Don't they hold the sov- ereignty of the State already ? Don't they make Governors, Senators, Judges, and everything for you ? And yet you force them into politics. The only thing I hope for then is, if they should be driven into bank- ruptcy, that they will have enough to retire on, and my impression is that they will. I oorae now to the great American departure — the direful spring of fruitful woes unnumbered to this dear land of ours — I refer to the oft quoted Dartmouth College case. Daniel Webster, with his ponderous and massive logic, and his overmastering appeal for his alma mater, persuaded the Supreme Court of the United States to declare the inviolability of char- ters, and to place them under the protection of that clause in the Fed- eral Constitution forbidding the Impairing of the obligation of contracts. I know, sir, that that high tribunal never intended by that decision to d&lare what it has been for nearly half a century claimed they did declare. I know that the framers of the Federal Constitution, when they inserted in that instrument the inhibition of interference with con- tracts, never contemplated the charters of corporations. They had in their minds the private contracts of the citizens — and they never dreamed that their act would be ao construed as to bind the State hand and foot and deliver it over thus bound to merciless, soulless monopolies. But this I know, that up to the titqe of that decision, the power of the State over all its creatures had never been questioned. Its sovereign ■way over all internal subjeots affecting its well-being had never been doubted j its power of self government, self preservation, and self judg- ment, had never been impugned. There were no corporate monopolies in existence then threatening society, nay, the sovereignty of the State itself. The Dartmouth College foundation was an old grant from the Crown of England, and it was eloquently claimed that its usefulness, nay, its very life itself was imperiled by threatened State interference and State control. The Court threw itself between the people and the college, and flung its shield of power over the doomed institution. A description of the aivument of that celebrated case relates that, under the melting pathos of Mr. Webster, the grave old Justices of the Supreme Court wept. So, too, sir, the people of these United States have wept and groaned in consequence of that decision and the use made of it. " A charter is a contract," say the Court, "and as such is within the protection of section ten of article one of the Federal Constitution, for- bidding the State to pass any law impairing the obligation of a contract." No matter how grevious to be borne, the State must bear the burden. All subsequent Legislatures are bound as with Promethean bonds. " It may reserve the power," says one of the Judges, in an obiter, " to mod- ify or annul the contract." But if a base and Unworthy Legislature fails to do so, the State must pay the pound of flesh, strictly according to the bond. This decision has been the fountain from which has flowed the mon- strous assumptions of corporate power. They have sprung from it full panoplied, like Minerva from the brain of Jupiter, and they rush back there for protection like that cry of hell hounds, described by Milton, which, " never ceasing, barked with wide cerberean mouths full loud, and rung a hideous peal; yet when they list, would creep, if aught dis- turbed their noise, into her womb, and kennel there, yet there still barked and howled, within unseen." It is natural for men to crave power; it is delightful to be above the law. And so they stuck an incorporation on every element and force of nature, and consolidated the corporations. The earth and the fullness thereof was theirs, by legislative grant. They incorporated on the cra- dle and on the grave. They came in myriads, aggregate and sole. We rise out of incorporated beds; we put on incorporated boots, hat, coat, shirt, pants, and vest; we take up an incorporated paper; we sit down by an incorporated stove, to a fire kindled by an incorporated match ; we bathe in incorporated water in an incorporated tub ; we breakfast on food handled by a dozen corporations; we live, move, and breathe through the day for the benefit of corporations, and at the close tumble back into our incorporated bed, lighted by incorporated gas. Not a right of way, from the obscurest deer trail np to the straight and narrow way, has been left unincorporated, and the broad road that leads to death, where thousands walked, is now plastered with incorporations, and freightsand fares have been reduced on that memorable highway so that States and nations are now being railroaded through to death on better terms than sinners got afoot before. The wealthy and powerful combine their means to control the indus- tries of the country. The impecunious birds of prey, bummers, and drones of society, combine and incorporate their nothings — capital ten million dollars — and float their shares in the rich man's wine, and the poor roan's soup. They incorporate on a hole in the ground, with a prospect in it ; they incorporate on the hole, without the prospect, and they incorporate on the prospect without the hole. They incorporate to eflect all ends — they end all the eflects of the gudgeons and suckers who bite. Like Frankenstein's bab^, there was no end to its growing, and no limit to its voracity. And, likt that wonderful child, it started in to devour its author. The sovereignty of the State fled in dismay before it. Such have been the consequences of that decision, that the operation of corporate combination and unlawful appropriation have left nothing unincorporated nor unappropriated of that common stock granted by charter of Almighty God for the use and benefit of mankind. The natural tendency of mankind is to refine, but refinement, according to them, is stealing from the hands of the many by the few. I believe it is somewhere said that eternal vigilance is the price of liberty. Now, it is because of the refinement of mankind — the refinements for which my own profession has been largely responsible. In the eloquent language of the gentleman from Sacramento,- Mr. Edgerton, '" they have been in the vaneuard in the battles of freedom ;" they have also been in the van- f;uard when the rights of man were to be denied by the refinements of the aw. That is true, and it cannot be denied. We see the law, simple and plain, in a new community. Take the history of this State itself, with regard to the appropriation of mines. In the beginning, the evidence of title was simple possession. You held your title by being on the.land. You held it by having your home on the ground, and by having your tools there. They called it pick and shovol representation. That was the law — a man should onlv hold that which he worked. A man might be sick, perhaps, and that would not be right, so they held that three days in a week would be suSieient, and then two days was suffi- cient, and then they said one day would be suflficient, and then they begun to refine upon that, that work done somewhere else for the benefit of the ground would suffice to hold it, and then they conceived the idea of putting a paper upon it and having it recorded; by notice and a record. Then they begun to hold by law, and kept on refining and lost the more simple rules and regulations of miners, because of the disposition pf mankind to refine. Now a days you can hold it without anything almost. The tendency has been brought to bear upon them until it has gone so far that the doctrine is declared of absolute property in running water, awny off from the old simpler idea of the riparian rights of the owners along the banks, and thus that tendency has been made use of. It has crept into and poisoned the very framework of our society and of our institutions. Nothing can be done, nothing can be carried on without falling back upon the corporate principle, and where a thing is not a subject of incorporation they make a ring, and ring a ring over everything. Even the law has its ring. They could not be incorporated very well, and so they make a ring. The whole evil brood has grown up, and they have fastened themselves upon the country, because of tnis assumption of the absolute power or ownership of Erivate property that is essentially public, granted to them as public, eld as an agency or trust, with the accountability attaching to all trusts. Now, I say, and that is my deliberate judgment, and always has been, from the time I sav the disposition of mankind to display the spirit of the swine that is in all of us, wherever the law permits or tolerates appropriations of this kind, then turning round and saying, "you cannot touch me; I am protected by virtue of some vested right." I say, it is time to return to first principles. That is what I want to see done. That is what the people of this State want to see done. They want to see a return to the first principles — to the principles of our fathers — where the functions of the government were supposed to bo within the control of the people, and the sovereignity to reside there, not only in theoir but to be exercised by the people. Now a gleam of light shone out over this country when the Supreme Court of the United States did better than to reverse the Dartmouth Col- lege decision. I say that they did better than to reverse it. They ignored it. Thejr went over it, and they went under it, and they placed the corporations upon an equality with all persons. That is what the Supreme Court of the United States did, and they never so much as squinted at the old Dartmouth decision. That was a victory achieved by the Grangers. It was the power of that organization that ruled the Legislatures and disciplined tne Courts. They, sir, it was, who, stand- ing firmly, shoulder to shoulder, in defense of the rights of the peo- ple, as against the corporate assumption, carried their Legislatures and passed their regulating laws. It went to the Supreme Court, and they affirmed in the broadest manner, without reference to t&eir charter, or their assured rights vested in a charter, that they were subject to con- trol in the business in which they were engaged ; subject to control, because their use was a public use ; subject to control, because it was clothed with a public character, and affected the interests, the funda- mental Interests, of society itself. They affirmed it because it was indls- penslbly necessary that it should be affirmed, or it would soon turn out that the sovereignty of the State would give way and be administered solely by the corporations. Digitized by' na oe aaminisierea Google 534 DEBATES AND PROCEEDINGS Wednesday, What is the practical effect before our own face and eyesT We aee it here around us, and we hear it oume up in indignant cries by the people of the State. Oentlemen say thyt there are no abuses; that the man- agement is altogether lovely. The eloquent gentleman who addressed the committee so long the other day, whatever he may have thought four or five years ago, now contends that they need no regulation. In other words, that they want to be let alone. And yet I remember read- ing one of his speeches, where he said that the railroad management was simply grana larceny, or something to that eflect. Now the ques- tion is, where is the change? What great revolution has come over that corporation, if the gentleman was right five years ago and is right nowT That problem can be solved by ever^ man for himself. I attack no man's motive. But the practical effect in tbe State of CaU ifomia to-day, is what I wish to call the attention of this Convention to. As I said before, three quarters of the whole transportation business of the State has fallen under the control of one rai I road corpora- tion. And now, sir, the idea of the sovereignty of the State, the rule of the majority, the greatest good to the greatest number, the administration of the government for the legitimate purposes of the government, have become only child play abstractions. The sovereignty of tbe State has been imprisoned withm the four walis of a structure at tbe comer of Fourth and Townsend streets, in San Francisco. Stanford and companjr have captured it and chained it there. They have subjected it to their will, and they have bound it to their bidding. Whenever they allow it to go forth, it goes in charge of a keeper. Whenever they bring it out to lend a semblance of popular rights, it comes in the charge of a number of keepers — their political agents — ^who follow it around and feed it on oorporation milk. Is the I^islature about to convene? they bring it there and unchain it in the lobby. They order a Code, or laws to be enacted, and behold, in the name of the people, the law is enacted t Is a United States Senator to be elected T they bring it into the arena ; they order his election, and lo, the faithful is elected. Is a convention to con- vene to nominate a Governor of the State, and the principal officers of the State; to nominate a county Sheriff" and the other officers of the county, and the judicial officers? they bring it there and make up the slate. What are the attributes of sovereignty? Eminent domain — the right to take private property for public use, on compensation? The Cen- tral Pacific Railroad Company goes around over the State and bullies the citizen with this assumption of power. Nay, sir, bullies the State itself, and even assumes the right to take public property for their own private use. Is it the power of taxation? The railroad company knows no limit to the boundless claim to exercise this right beyond the capacity of the people to bear. They bring the lever down and apiculture groans; they raise the lever up and agriculture proves a highway to wealth. They snatch the diadem from the brow of commerce and order trade to "stand and deliver! " while they empty its pockets. Three or four men sit down in a room and with one scratch of a pen extract a million from the industries of the country. And yet you tell me that there is no necessity for controlling a power like this. They run their car wheels over the liberties of the people, crushing in thelrdevastating career a hecatomb of human hopes, and rear upon their ruins an empire of arbitrary.power. It is against that company that I contend. It is against them that the people have rallied. It is irainst them the battle is to be fought. It is a question now of power. The question is, who shall exereise the sovereign power of the State? These railroad corpo- rations never injured me. I fear not their threats and I care not for their favors. But mj philosophy teaches me that if we expect to main- tain our free institutions; if we expect to maintain this republic: if we expect to maintain in California anything like a republican form of gov- ernment, these oorporations must M controlled, and the meaiv must be devised to do so effectually. Now, sir, I come to the subject of the Commission. I have said in the committee-— I also argued by way of consultation with the committee — that there might be danger; that we might create another despotism more grievous and more oppressive than these corporations; and a very remarkable cireumstance is, that I have seen that same kind of argu- ment UTfed in notorious and well known railroad organs, and urged by corporation lawyers — I beg the pardon of the gentleman ; I mean outside of here — the very self-same argument, that we were in danger of creating a despotism. Why, they say that this branch which we pro- pose to establish here, is like something never heard of in the sky, in the earth, or in the waters under the earth. I deny it. I say that it is only proposed here to create a constitutional Board, and to give it a per- manent character, differing but little from that which has been estab- lished all over the continent of Europe and in many of the States of the United States. I maintain that we are only proposing to supplement a remedy for those very defects which their experience has pointed out, in order lo make them efficient, and of more valuable service to the people. I have relied very greatly upon the report which was lately published by Mr. Adams, a member of the Massachusetts Commission. It is full of valuable information, and it brings us to the conclusions reached by the gentlemen who are composing the Committee on Corporations. They take into consideration the fact that the circumstances surround- ing the communities where these Commissions have been created were totally and eijtirely different from anything we have upon the Pacific Coast. Two conclusions are reached bv Mr. Adams. Of course, he is in favor of the Commission, just as gentlemen here say that they are in favor of a Commission — a poor, feeble Commission, which would be kicked out of the office of the Central Pacific Railroad Company, but which could march intoarailroad office in Massachusetts and be listened to. The conclusion is, that the Commission has in its power to correct abuses by means of publicity. He reasons very liberally, and he rea- sons well, to show how a Commission, with full power to' in vestigate, to examine books and papers, to order abuses to be corrected, can become familiar with the business of the road, and make it extremely disadvan- tageous for a railroad company to refuse to listen to their requests, or oilers, whichever you may choose to call it. Why, whitn Mr. AdtRu* Commission went into a railroad office, in the State of Massachusetts, when they looked over their dealings and told them that they were practicing extortion, if they paid no attention to them, what happened? The next thing was a publication — an official publication — to tbe woiid, that that road was a cheating road ; a notice like that, which would be put up at your toll gates, where there was an official notice to avoid that road, because if you went over it it would cheat you. In Massacfan- setta the traveler had the choice of seven diff°erent routes to the sea- board, avoiding the route which he bad been warned againsL Now, how much application has that to tbe State of California? How mueh application has it to any system of railroads that we know of in the Slate of California? Are not gentlemen ashamed of lugging anything of that kind into thisConvention, and telling us that you can bring the railrmui to terms by the fear of exposure in the State of California? Why, sir, a Commission of respectable men, created by the laws of the Legislature, at the session before the last, were unable, after two yean constantly endeavoring to do so, to obtain even a sight of the books of the railroad company, when, lo and behold, they were legislated out of office. That is how much publicity would aff°ect the railroad corpora- tions of this State ; and so all over the United States, except the State of California, if you are traveling over great trunk lines, yon have tb* advantages of three or four routes,and if official notice is given to you by those who have investigated their business, that they will cheat yon, that they are an unwortbv route, you go away, and go around them. It is the transient loss of business by which they are held in control. But Stanford and company would say as old Tweed used to in New York, when they found him stealing, with both bands in the treasury, "what are you going to do about it?" That would be the beautiful working of that plan of publicity. I understand that a great newsf taper, one of the best that was ever published on the Pacific Coast, or in the United States— I refer to the old Sacramento Union — occupied itself for years and yean with giving publicity to railroad abuses, and the consequence was that, as powerful as that journal was, they tat down on it, and inashed it. Publicity I Too thin! Now, what is the other plan ? I find that I cannot go further to- night, on account of my throat. I yield the floor. Mr. FARRELL. Mr. Chairman: I move that the committee rise, report progress, and ask leaive to sit again. Carried. IN CONVENTION. Tub PRESIDENT. Gentlemen : The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have made progress, and ask leave to sit again. MOTICI8. Mr. cross. Mr. President: I give notice that on to-morrow I will move to reconsider the vote indefinitely postponing the motion to take from the table tbe motion to reconsider the vote on adopting the resolu- tion of adjournment until Monday, December second. Mr. IIAGER. Mr. President: I wish to give notice that I will move a substitute for section twenty, in case either of the amendments should be voted down. I cannot oner it in the stage in which it now stands, but I wish to give notice that I will ofier a substitute for section twenty. I do it now, that it may be printed, and that members may have sa opportunity of examining it. I would aak that it be received, and printed in the Journal. Thk CII.\IR. If there be no objection, the gentleman will have letre. The secretary read: Sic. 20. There shall be elected, at the next general election, and eveiy four years thereafter, by the qualified electors of this State, a Botrd « three Railroad Commissioners, whose term of office shall be four yean, with such salary as may be fixed by law, not to exceed thousand dol- lars a year. Such Commissioners shall be qualified electors, and for fin years citiiens of this State, and shall not be interested, pecuniarily or hj employment, or in any other capacity, in an^ railroad or transportatioD company, or in the business of common carrier of passengers or freight They shall each take the constitutional oath of office ; and before enteraig upon, and for the faithful performance of, the duties of their office, they shall each give a bond, with two sureties, in the sum of tweatf thousand dollars, to be approved by the Governor. The Commisslonen, or a majority of them, shall have power, and it shall be their duty, t» establish reasonable and just tariffs and rates of charges for the tiiuu- portation of passengers and freights by all railroad corporations: and, for this purpose, they shall have power to administer oaths: to examine tbe books and papers of such corporations; to summon and examiBe the officers and stockholders thereof, and other witnesses; to hear com- plaints: inquire into and correct abuses; prevent partial and oajait discriminations and extortion in the rates of charges and tbe tariA for tbe transportation of freights and passengers. They shall publish, semi- annually, full statements of tbe tari<& and rates of chai^ies established and authorized by them, and of all abuses, discriminations, and extor tion, and report the same to the Governor. Whenever such tsriffi snd rates shall oe established and published, they shall be binding upoa, and must be observed by, all such corporations doing business in tlui State, and may be enforced by the Commissioners, or by any futj in interest, through the Courts; but nothing herein shall prevent any par- son from maintaining an actlou for injury or damage against sudieof- poratlons. The Legislature shall confer on the Commissioners saeh further powers as shall be necessary to enable them more fully to perform their duties; and it shall pass laws, with adequate penalties, to ft* extent, if necessary, of forfeiture of the franchises of such corpwiti** to enforce the action of the Commisaioneray ' The Commisaionen, im Digitized by V^jC Nov. 27, 1878. OF THE CONSTITUTIONAL CONVENTION. 635 by the Legislature, bj a ten house, and shall also each of them, may be removed from ofSce majority vote of all the members elected to eac' be liable, personally and on their o£Bcial bonds, to any party aggrieved, for neglect of duty or any malfeasance or corruption in office. Ms. HUESTIS. I move that the Convention do now adjourn. Carried. And, at nine o'clock and five minutes, r. h., the Convention stood adjourned until to-morrow at nine o'clock and thirty minutes, a. m. SIXTY-FIRST DAY. Sacbamento, Wednesday, Kovember 27th, ItjTS. The Convention met in regular session atnineo'cloek and thirty min- ntes A.M., President Hoge in the chiir. The roll was called, and members found in attendance as follows : Andrews, Hale, Prouty, Ayers, Hall, PuUiam, Barbour, Harrison, Reed, Barnes, Harvey, Reynolds, Barry, Heiskell, Rhodes, Barton, Herald, Ringgold, Rolfc, Beereteeher, Herrington, Belcher, Hilbom, Befell, Blackmer, Hitchcock, Schomp, Boggs, Holmes, ShafUtr, Boucher, Howard, Shurtleff, Brown, Huestis, Smith, of Santa Clara, Burt, Hunter, Smith, of 4th District, Campbell, Joyce, Smith, of San Francisco, Caplea, Kelley, Soule, Caaserly, Keyes, Stedman, Chapman, Kleine, Steele, Charles, Iiaine, Stevenson, Condon, Lampaon, Stuart, ^ Cowden, Larkm, Sweasey, Cross, Larue, Bwenaon, Crouch, Lewis, Swing, Davis, Lindow, Terry, Dowline, Mansfield, Tinnin, Doyle, Martin, of Alameda, Townsend, Dudley, of San Joaquin, Martin, of Santa Crui, Tully, Dudley, of Solano, McCallum, Turner, Dunlap, McComas, Vacquerel, Eetee, McConnell, Van Dyke, Estey, McCoy, Van Voorhies, Evey, McFarland, Walker, of Tuolumne, FarreU, McNutt, Waters, Faweett, Miller, Webster, Filcher, Mills, Weller, Finney, Moffat, Wellin, Freeman, Morse, West, Freud, Nason, Wickes, Gtarvey, Nelson, White, Glaaoock, Noel, Wilson, of Tehama, Gorman, O'Donnell, Wilson, of 1st District, Grace, Ohleyer, O'SuIlivan, Winans, Gregg. Wyatt, Hager, Porter, ABSCICT. Mr. President. Bell, Hughey, Neunaber, Beny, Inman, Overton, Biggs, Johnson, Reddy, Dean, Jones, Shoemaker, Eagon, Edgerton, Lavigne, Moreland, Thompson, Tuttle, Graves, Murphy, Walker, of Marin. TUK JOCJINAL. Ma. TINNIN. I move that the reading of the Journal be dispensed with, and the same approved. Carried. LIAVE or AB8IC!ICK. Messrs. Johnson and Thompson were granted leave of absence, each for one day- Messrs. Moreland and Overton were granted leave of absence, each for two days. IX BirEREtlCK TO AOJOCBMHEKT. Mb. TINNIN. Mr. President: I move that the motion of Mr. Ijar- kin, the notice of reconsideration, be taken from the table. It was laid on the table yesterday. Mr. BARNES. Mr. President: That motion has already been passed upon by this Convention, and I raise the point of order that the motion cannot be made again. The proceedings on that subject will be found in the daily Journal of yesterday. The resolution provides for adjourning from Wednesday noon until Monday, and provided also for two night sessions, to make up for the time proposed to be taken. Now, that reso- lution was adopted and carried into effect A night session was held on Monday night, and another last night. The motion to reconsider was made, and Mr. Gregg moved to lay the motion on the table. The roll was called, and the motion was laid on the table. Then in the afternoon Mr. 'Tinuiu made the same motion which he is now making, moved to take from the table the motion to reconsider the vot« on the adoption , and I moved to indefinitely postpone the motion, and it was indefinitely postponed. I submit that tuat was a determination of the whole ques- tion, and that motion cannot now be renewed. I submit the following points of order: First, the motion to reconsider, made by Mr. Estee, was laid on the table. The motion of Mr. Tinnin to take from the table the motion to reconsider was defeated. This disposed of the whole matter, and was equivalent to a defeat of the motion to reconsider. The motion to reconsider was defeated; second, there can be no reconsideration of an order, the execution of which has already commenced, and even if the motion should prevail, the Convention cannot change the order of the twenty-fifth instant, relating to adjournment, as the extra sessions, which were part of the order, have already been had. Me. TINNIN. Mr. President : The statement made by Col. Barnes is correct to a certain extent. The motion made by me was laid on the table, but it could extend no farther than the particular subject-matter, and it was so ruled by the Chair at that time, and was so understood. The question was asked of the 6hair at that time, and the Chair ruled that It affected only that motion. The question was raised whether or not it would carry the whole subject-matter with it, and the Chair rifled that it would not. Now, Mr. President, so far as the motion made by the gentleman from El Dorado is concerned, it is on the table. It is subject-matter before this Convention. When any matter is laid on the table it is not disposed of; if it was, the reports of committees could be passed by in this way. Committees make their reports, and they are laid on the table, ana consequently subject to action by this body ; and I bold to the position that the motion made by the gentleman is on the table, and can be taken up at any time. Laying on the table is not a final disposition of the subject. It is in effect saving that the Convention desires to consider the matter at some future time, and I hold that this motion is in order. Mb. BARNES. Mr. President: The gentleman is mistaken. The motion made by me was to indefinitely postpone his motion, and not to lay it on the table. It is so recorded. Here is the Journal :" Mr. Barnes moved to indefinitely postpone the motion, upon which the ayes and noes were demanded, the roll was called, and the motion to indefinitely post- pone prevailed." ^Here the vote is stated.) Now, I contend that there should be some limit to these motions, after the subject-matter has been once, twice,yea, three times, passed upon by this body; and if this system of tactics is to prevail, there will beno limittothisthing. The Convention has executed a contract, bo far as those who desire to go away are con- cerned. It was suggested that we should have two night sessions to make up for the time, and these night sessions have been had, and our part of the contract performed. They agre«d, that if we would consent to hold these night sessions, they would take a recess; and now having held two night sessions, they propose, by a forced construction of par- liamentary law, to have their cake and eat it too. I do not think it is fair. Mb. ESTEE. Mr. President: I propose to submit my reasons why the gentleman from Trinity, Mr. Tinnin, is not in order, and I think the gentleman will bear me out. A resolution was adopted by this body that we adjourn to-da^ until two o'clock on Monday, and also that we have two evenine sessions, commencing on Monday evening and ending yesterday. Tbat was all in the resolution adopted by this body. Now, to take this matter from the table— on attempt to reconsider it — is not in itself the original proposition Mk. TINNIN. When a matter is laid upon the table, is it a final dis- position T Mb. ESTEE. It was not laid upon the table. It never was laid upon the table. It was only the motion to reconsider it that was laid upon the table. As the matter has been partially executed, it never can be recon- sidered as a question of law. It is executed in part, and as a question of law, when a proposition has a body and has been executed in part, even though notice may have been given, it cannot be reconsidered, because the same question will not be before the body again. I appeal to the gentleman it this is not law. Mb. SHAFTEH. Mr. President: The Chair ought to first decide this question. Now, the right to make a motion, and the right to hear it, always depends upon tbe right of the body to decide the question then and there. You decided the question tbe other day, and entered into a sort of a contract. You made a rule, and that rule has been partially executed, and it is too late to change that rule. We meet under the general rules at ten o'clock, and yet we are here at half-past nine lender this rule which is now sought to be abrogated. If we do reconsider this vote and repeal this rule which has been partially executed, then we are here without any organization at all, because the general rule requires us to meet at ten o'clock. H shows that when a rule is partially exe — cuted it is not subject to reconsideration. It cannot be made so. Now, if we take up this motion and pass it to reronsider the vote, it stands as if it had never been passed at all, and we sit here under a rule that requires us to come here before ten o'clock. Now, this motion depends upon our right to pass upon the ultimate question Mb. TIKKIN. The gentleman makes a misstatement. We are here at half-past nine o'clock by the rules — by a change in our standing rules. Mb. SHAFTER. I may have been mistaken about that, but we have not held the two night sessions under the general rules. The^ were held under this special rule, and it has tberemre been executed in part, Slid cannot be abrogated. That is the doctrine of Cushing. We nave commenced to execute this order, by holding two night sessions, and it is utterly impossible to reconsider and put ourselves back in the position we were in before, if we do reconsider, the whole resolution goes for nothing absolutely, and then we come to the question whether we will pass the resolution. Suppose we refuse to [nss it, what is tbe result T You have sat here during two night sessions, without any authorify whatever. Digitized by Goo gle^ L 536 DEBATES AND PROCEEDINGS Wednesday. Mb. "BBOWK. Mr. President : Now, we have beard of a certain agreement. We heard nothing of any such agreement or contract when the resolution came before this Convention. Certain gentlemen may have agreed to certaio things in their minds, or may have agreed to one or two principles, but as to any such agreement with those who passed this resolution, I am satisfied the gentleman from San Francisco IS mistaken upon that point. Now, by those who objected to the reso- lution there is 'an effort made to defeat it. In order to vote intelli- gently Mr. walker. I raise a point of order. The point of order raised by the gentleman from Ban Francisco, Mr. Barnes, has not been ruled upon, and no appeal has been taken, and it is not debatable. Ths president. The point of order raised by the gentleman from San Francisco, Col. Barnes, nas not yet been paiHed upon. The Chair has no objection to hearing the views of members upon the question. Mr. brown. There was no such arrangement as that made, to my knowledge. Now, my impreosion is that Gushing and Jefferson have clearly advanced the idea that where there is a general sentiment in a body to be carried out, that parliamentary law and usage does not come in the way of carrying it out — the general principles which the body wishes to carry out. Now, if it be that this body wishes to accomplish certain things, it is not bound by anything that mi^y have been agreed upon by certain members among themselves. * Thi president. The gentleman is not directing his remark! to the point of order. He must confine himself to the point. Mr. brown. I have endeavored to do so. Now, this matter is clear. It is evident that the majority did not know the purpoae of the resolution. It seems as though they did wish a certain division of the quation. I think when the majority of this body desires to do a certain thing, they should have the right at all times to do it I shall therefore favor taking up the resolution and acting upon it. Mr. TDLLY. It seems to me we might make a compromise hega — that is, that gentlemen who wish to go home shall be granted leave of absence. Those who wish to remain here and go on with the business, could do so, agreeing not to vote upon any subject until Monday, at two o'clock. It seems to me that will satisfy the whole Convention. They can make speeches during that time. Ma. DUDLEY. Rule Forty-seven of the House of Representatives makes it very clear that thfl point of order made by the gentleman from San Francisco, Colonel Barnes, is a good one. It says when a motion of this kind is made,and is laid on the table, it is deemed a finality . Now, it is true that the gentleman from Trinity did not move to reconsider. He moved to take the motion to reconsider from the table. Under this rule he is out of order. Mr. HOWARD, of Los Angeles. Mr. President : I do not rise for the purpose of discussing this quration of order, except to concur in the sug- gestion made by the gentleman from Santa Clara. The President will remember that in the House of Representatives it was the constant prac- tice to have the House meet to discuss questions, with the understanding that no vote should be taken. It seems to me if we do that it will give satisfaction all around. There are certain gentlemen here prepared to speak, to assign their reasons for the votes they may cast upon this important question, and the Convention cannot deny them the privilege. Therefore, with this understanding, those who do not wish to go home can remain here and discuss these questions for two days, with the understanding that no vote is to be taken until Monday. That will sat- isfy everybody, and I think it is a wise course, because it cannot be denied that these long adjournments are distasteful to the people of this State. If we do this, the tinte will be well occupied, and those who wish to go home can do so. Mr. GRACE. If I understand the gentleman from Los Angeles, it won't make any difference whether there is anybody here to listen to these speeches or not. Mr. HOWARD. It don't make any difference now. [Laughter.] Mb. GRACE. I think it might be just as well to let the gentlemen print their speeches at their own expense, without delivering them. I make that motion. Thb PRESIDENT. The motion is not in order now. Mb. O'DONNELL. Mr. President: We have occupied in the neigh- borhood of four hours and a half in the discussion of this question, and I move that the whole matter be indefinitely postponed. Thr PRESIDENT. Out of order. Mr. LARKIN. Mr. Dudley, of Solano, has quoted a part of the rule in the House of Representatives. I have never known any such rule in a parliamentary body as that a motion laid on the table is a finality. Under our rules indefinite postponement is not a final vot«, because a majority may reconsider. I insist that we iiave a right to reconsider the vote, and I insist that a vote be taken. Thb PRESIDENT. Genileraen: The Chair will state the reasons which govern him in deciding this point of order. Before doing so he desires to correct the gentleman from Trinity, Mr. Tinnin, in the state- ment he made about the decision of the Chair. On yesterday there was a motion made to lay on the table the motion offered to reconsider, by the gentleman from San Francisco, Mr. Estee. The Chair was asked whether that motion would carry the whole subject to the table. The Chair answered that it would carry nothing but the motion to reconsider to the table. Mr. TULLY. It was the motion of the gentleman to indefinitely postpone the motion to take from the table. Thr president. The gentleman is wrong, as he will see if he will permit me. The gentleman from San Francisco, Mr. Estee, moved to reconsider the vote by which the resolution to. adjourn was adopted. Mr. Gi'egg moved to lay the motion on the table. The Chair was asked what the effect of that motion would be. He answered that it would carry with it nothing except the motion to reconsider. After that vote was had, and in the afternoon, the gentletuan from Trinity moved to take the motion to reconsider from the table, and that motion was in- definitely postponed. The Chair made no decision on the question at ill. By the thirty-seventh rule uf this Convention no motion for a reconsidcn- tion can be made, except upon notice being given on the day the vote ii taken, and the motion must be made the next day. This rule is contniy to all parliamentary law. On Monday there was a resolution oflfered and passed by this Conven- tion, providing for two night sessions of this Convention, and for la adjournment on Wednesday, at twelve o'clock. That resolution was carried, and notice given of a motion to reconsider. The Convention went on and performed and complied with a portion of the resolution, and two night sessions were held, and the motion now comes up to take this original motion to reconsider from the table. Very well. The motion to reconsider was made on Tuesday, and a motion was made to lay the motion to reconsider on the table, and that motion prevailed. This was equivalent to a vote refusing to reconsider. The affirmative of the one proposition included the negative of the other, and was a final disposition of the motion to reconsider. It cannot be taken np under Rule Thirty-seven, because the time has expired. The whole case was decided. Now, that being the fact, this motion to take (rom the table cannot be entertained, because it cannot be heard. Not only that, but for the farther reason assigned by the gentleman from San Francisco, that the Convention has gone on and performed a portion of the resolution, and it is impossible to reconsider. Therefore, the Chair decides the point of order well taken. AK JLPPRAL. Mb. TINNIN. Mr. President: I dislike very much to appeal from the decision of the Chair, but as I believe there is a great principle involved in this matter, which may at some future time have an effect upon the decisions of this body, in re^rd to laying a thing on the table, I appeal from the decision of the Chair. Mr. WHITE. I second the appeal. Mb. WYATT. I second the appeal. Mr. HOWARD. I second the appeal. The president. The question is. Shall the decision of the Chair stand as the judgment of the Convention? MkTHALE. Mr. President: I desire, before voting on the appeal, to inquire of the gentleman from Trinity, Mr. Tinnin, if there is not an error of fact that should be corrected. Is not this the real history: On Monday there was an effort made to adjourn. A resolution was offered adjourning on Wednesday, and that resolution was adopted. Notice of reconsideration was given by the gentleman from El Dorado, Mr. Larkin. That would be taken up the following day, which was yester- day. Yesterday that motion was made, and a motion to lay that motion on the table was made and prevailed. Last evening, as I see by the report of the proceedings, Mr. Wickes, of Nevada, gave notice of a motion to be made to-day to reconsider that vote. A motion was made to indefinitely postpone that motion, which prevailed. Mr. Cross gave notice of a motion to reconsider the vote by which the motion to recon- sider the vote by which^he Convention laid the motion to reconsider on the table was indefinitely postponed. I suggest to the gentleman that the matter can be reached by reconsidering the vote by which that motion was indefinitely postponed, in pursuance of the notice given by the gentleman from Nevada, Mr. Cross. Tbb PRESIDENT. The question is. Shall the decision of the Chair stand as the judgment of the Convention? Mr. LARKIN. I demand the ayes and noes. Mr. WYATT. Ayes and noes. Mb. CONDON. Ayes and noes. Mr. TULLY. Ayes and noes. Mr, tinnin. Ayes and noes. The roll was called, and the decision of the Chair was sustained by the following vote : atbs. Ayers, Harrison, O'SnIIiTan, Barnes, -Harvey, Porter, Barton, Heiskell, Prouty, Beerstecher, Herold, PuUiam, Belcher, Herrington, Reed, Blackmer, Hilbom, Rhodes, Boggs, Hitchcock, Ringgold, Bolfc, Boucher, Holmes, Burt, Huestis, Schell, Campbell, Hunter, Schomp, Caples, Keyes, Shafter, Casserly, Lampson, Shurtleff, Chapman, Ijewis, Smith, of 4th Di»tri(*, Charles, Lindow, Soule, Crouch, Mansfield, Stedman, Dudley, of Solano, Martin, of 2d District, Steele, Dunlap, Martin, of Santa Crus, Stuart, Estee, McCallum, Sweaaey, Estey, McComas, Townsend, Farrell, McConnell, Turner, Fawcett, McFarland, Van Dyke, Fllcher, McNutt, Van Voorhies, Finney, Miller, Walker, of Tnolinm". Freeman, Mills, Waters, Garvey, Morse, Weller, Gorman, Nason, Wellin, Grace, Kelson, Wilson, of T^nia, Hager, Hale, Noel, WUson, of 1st Distnet, O'Dounell, Winans— 8*. Hall, Ohieyer, Digitized byGooQle Nov. 27, 1878. OF THE CONSTITUTIONAL CONVENTION. 637 Smith, of San Francisco.'Wbite, Stevenson, Wyatt— 34. Andrews, Howard, Swenson, Barbour, Joyce, Swing, Barry, Kelley, Terry, Brown, Kleine, Tinnin, Condon, Laine, Tully, Cowden, Larkin, Vacquerel, Croas, Larue, Webster, Davis, ■ McCoy, West, Dowling, Beynolds, Wickes, Doyle, Evey, Freud, POOLINO OP KARNIKGS BT C0BPOBATI058. Ha. ESTEE. I move the Convention resolve itself into Committee of the Whole. Mb. TIKNIN. I make the point of order, that the order of business has not been gone through with, and that it requires a two-thirds vote to go into Committee of the Whole. Thb president. That motion is always in order. Mbu ESTEE. Mr. President: I move that the Convention, now reeolve itself into Committee of the Whole, the President in the chair, for the purpose of further considering the report of the Committee on Corporations other than Municipal. • Carried. IN COMMITTEE OF THE WHOLE. Thb CHAIRMAN. The Secretary will read section twenty and amendments. Mn. HAGER. We have not got through with section eighteen yet. It was ruled out of order day before yesterday, in consequence of the previous question having been voted down, and I presume we must go back to the section, as the prooer order of business. Thk CHAIRMAN. That depends upon the pleasure of the com- mittee. Ma. HAGER. Otherwise section eighteen will be omitted. I move we commence with section eighteen, as the order of business. Thb chairman. If there is no objection we will pass back to sec- tion eighteen and the pending amendments. The Secretary w^U read. Thb secretary read : Sbc. 18. No railroad company or other common carrier shall com- bine or make any contract with the owners of any vessel that leaves port or makes port in this State, or with any common carrier, by which combination or contract the earnings of one doing the carrying are to be shared by the other not doing the carrying. Aniendment by Mr. Ayers: "Amend section eighteen by adding after the word ' carrying,' in the fifth line, 'and whenever a railroad corporation shall, for the purpose of competing with any other common carrier, lower its rates for transportation of passengers or freight from one point to another, such reduced rates shall not be again raised or increased from such reduced standard.' " Amendment by Mr. Campbell : " Add to section eighteen, ' and whenever a nilrrad corporation shall, for the purpose of competing with any railroad constructed or in process of construction, lower its rates for transportation of passengers or freight from one point to another, it shall not again raise its rates without the consent of the governmental author- ity in which shall be vested the power to regulate fares and freights on railroads, nor shall such other railroad raise its original rates without similar consent.' " BBMABKS OP MB. BABBOVB. Mr. BARBOUR. Mr. Chairman : I propose to limit my remarks to the amendments. In regard to the proposition of the gentleman from Los Angeles, Mr. Ayers, I propose to support it. It has been pretty thoroughly debated, and I have not much to say upon that subject. I believe the principle involved in it to be the correct one. I believe in giving the small capilalist a sight for his money. I do not know whether jrour honor ever indulged in the national game of "poker" or not, but it is pretty well known that these large capitalists mvariably get away with the " pot," because the small capitalist has no sight for his money. But it never has been the policy in a regular poker game — the great national game described by the ez-Minister to England, Mr. Schenck, who is a learned authority on the subject of poker — to deny to persons of small capital a sight for their money. And the reason I shall support the amendment proposed by the gentleman from Los Angeles, is that I believe it involves the cardinal principles of the great national fime of poker, as expounded, if not practiced, by our Minister to ngland, of giving every man, no matter how small bis capital, a sight for nis money. I shall not occupy the floor until the subject of the Rail- road Commissioners is resumed ; and inasmuch as my friend McCallum is looking anxiously at the Chairman, I yield the floor to him. SPBECH OP KB. MCCALLUM. Mb. UoCALLUM. Mr. President: I had not proposed, and do not now, in view of ill health, to discuss any question except that which is immediately before the Committee of the Whole, and that very briefly. As to the amendment proposed by the gentleman from Ijos Angeles, Mr. Avers, I am in favor of one feature of the amendment offered by my oolleague, Judge Campbell, and opposed to another feature, to con- fine the competition only to railroad lines. The case has been cited here of the case of freights and fares between the City of Sacramento and the City of Placerville, where, until the railroad was established, the fare by stage was five dollars; and for years, when there was two lines, they both made money. But, as I happen to know, it was three dollars. Since the railroad was established is was five dollars and filly centa. And it is that price, for the simple reason that if any stage ooin- pauy should attempt to run stages there, they would be crvished out by 68 a reduction of the price. Therefore, to confine thisjcompetition simply to railroads would not remedy the mischief intended to be remedied. There is another feature, however, of the amendment which I think is good. That is, that these rates shall not be raised unless by the consent of the governmental authority having the right to control fares and freights. Now, by delegating this to the governmental authority tJie gentleman reaches the point which I have thought there was some difiBculty about, and that is, it does not make any difference whether it be ultimately left to the Legislature or to the Commission, it is referred to the proper authority in either case. To lay down the iron rule that when the rates shall be reduced in consequence of competition, as a constitutional provision, that they shall never be raised, as provid^ by the amendment of the gentleman from Los Angeles, Mr. Ayers, appears, in my judgment, Mr. Speaker, to be very dangerous indeed. It does not follow that because — even if all the reasons that have been stated, that have been suggested here, are true, in support of the amendment — it does not follow, therefore, that such an iron rule should be adopted, especially when you propose, by a section already before this Conven- tion, to give the absolute control to a Commission, which, of course, would h&ve the right to raise or lower the rates as the circumstances might render proper. These sections have been all considered together, and I believe, Mn President, that we have reached that stage of this controversy — similar stages have been reached by the Legislature from time to time — and in my judgment a crisis is upon us, and in my judgment the action we are soon to take will illustrate whether this Convention is to do anything upon the subject or not I am one of .those who believe that there is now an irrepressible conflict between monopoly powers andtpopular rights. And we cannot escape it if we would, and I believe the miyority of us would not if we oould. In that section reported by the committee there are some leading ideas I favor, and I very much regret to hear gentlemen who claim to be in favor of popular rights, finding faults and suggesting no remedy. That the committee have acted honestly, intelli- gently, and faithfully, I have no doubt, though I differ with some of the provisions of the main section now to be voted upon. The leading ideas are right. They propose a Commission to regulate freights and fares. They are oppo8e a day or time when such business is again in order; when the subject again comes, or is brought up, the motion for the previous question is still the pending question, and must be again put to the bouse, and so on as often as the decision is in the negative." Thb CHAIRMAN. The previous question was ordered in this case, and the body refused to put the main question. It carries the subject over for one day, but then the previous question is exhausted. The point of order is overruled. Mb. McCALLUM. I am in favor of a Commission — that this mat- ter should be regulated by a Commission, as distinguished from the Legislature. And I don't propose in that connection to reiterate, but say in general terms that tne Legislature has been tried — and I must express my astonishment at the remarks of the gentleman from Sacra- mento, Mr. Edgerton, as to the intelligence and honest actions of the last Legislature of this State in Ibis respect. I undertake to say that no man can read the bill passed by the last session, without saying that the bill was prepared by the attorneys of the Central Pacific Railroad Com- pany ; that it is a bill simply in the interest of the corporations, and in no sense in the interest of the people; and they violated a great public trust, and this Convention should take no chances in any legislative Senate or Assembly. If mistakes are made they can be corrected by a Commission, because the Commission is all the time in session. If the Legislature makes a mistake, they cannot correct it. Besides, no one can expect the Legislature, during a session not exceeding sixty days, to make an intelligent bill of freights and fares. It requires time — much time — to be expended on this subject. I am perfectly aware that in taking this position I am taking a posi- tion, not as gentlemen seem to think, on the strong side, but in a great sense the weak side. If there is any great power in this State over all other powers, political or otherwise, it is that great corporation called the Central Pacific Railroad Company. It has controlled absolutely the politics of this State for fifteen years. Why, it has< Digitized by oiiea aosoiuieiy me 538 DEBATES AND PROCEEDINGS Wednesday, Mahomet, for he could only order the mountains to oome to him, and when the moautains wonld not come to him then he would go to the mountains. But when the Central Pacific Railroad Company orders the mountains to come to them they oome. Gentlemen talk about popular ideas, and accuse us of takinz this side of the question because It IS popular. If I wished to rise to the skies on beds of^ flowery ease, as the gentleman from Santa Clara quotes the language, I would make no resistance to anything which that company might want. Nearly a quarter of a century ago, when the California Steam Navigation Com- pany was charging ten dollars between Sacramento and San Francisco, and freights in proportion, one branch of the Legislature passed a bill on this venr question, regulating freights and fares, and all this old argument of vested rights, familiar to us all, was ua^. It passed the Senate, but in the House it was defeated on the opinion of the then Attorney-General of the State, that such a bill, reducing the rates for freights and fares, was untihnstitutional. Since then these questions have been decided bv the highest Court in the nation, and several of the State Courts, and it is now no longer a debatable question as to the right to regulate freights and fares. The only question now is that of expediency, and how there can be any question as to the expediency I cannot for a moment understand. I say this because it is contradicted here and denied in some form, though not expressly denied, by those gentlemen advocating what they call commissioners of inquiry. We have had that before, and we have it now, I suppose that means that they are to suggest a bill for the Legislature to pass, provided they can- not'make some e raise them. In some cases, I admit, in some parts of the State, they are low enough. There is no complaint about the fare between San Francisco and Oakland. But even at the present low rates that franchise is immensely valuable, and as they might want to raise them there some time, 1 think it would be safer to put in an amendment that these Commissionera should have the ri^ht to limit the rates, but in no case to increase them. I think that is going far enough. I do not think they should be allowed to increase tfiem. Tou have provided that these Commissioners shall be elected for four years. Now, sir, the argument in favor of a longer term is, that they may become posted in their business. I do not believe the position is one so exceedingly difficult that it will require a man to give his whole time to it for exceeding one vear, to be thoroughly posted on this matter of regulating freights and fares. It is true, it is more difficult than to regulate tolls on loll roads or bridges; but a man who gives his whole attention to it ought to acquire the necessary knowledge in one year. But another objection to a very great length of time is this: that if the pe<^le should make a mistake — and I concede they may make a mistake^ they have made mistakes — they ought to have a chance to rectify it If they should make a mistake there is no way to rectify it, because it is in the Constitution. I would therefore like to offer an amendment, when we reach that point, so as to provide that those Commissioners shall be divided into three classes — one, two, and three — the first Com- missioner to be elected for one ^ear, the second for two years, and the. third for four years, and so provide that there shoU be one of these Com- missioners elected at every general election, upon the same principle ol our government which provides that, as to tlie Assembly, there shall be an election at every general election, every two years, in order that there may be frequent changes, and bring this power as near home to the people as possible. I do not believe that it is proper to provide that these Commissioners shall prescribe penalties. I^x penalties, and enforce them through the medium of the Courts. I am not so much troubled about this general idea of the Commission having legislative, executive, and judicial powers, because that is often the case from the very necessity of the duties of their office, that all these powers shall be exercised to a limited extent. It is not that so much, but there is no necessity that they should fix penalties, and act, as I understand it, as a criminal code. ^The main thing that these Commissioners will have to do, is to provide against discrimination, and fix rates of freights and fares. Of course, if these rates are fixed, and higher prices are charged, there will be a cause of action, and the party would have a right to recover damages for these higher prices, if be bad removed the freight and paid the charges. But this may properly be left to the Legislature, as to the penalties that are not now sufficiently provided by law. I don't know that I would object to a little legislation in the Constitution, and these penalties for a viola- tion of the provisions of this new and untried system might be put in a separate section of the Constitution. Again, while I am decidedly in favor of a Commission to fix and limit the rates of freights and fares, which is substantially the ideas in section twenty, at the same time I am in favor of recognizing the fact that we have a Legislature, and that so long as they represent and con- trol the government and the laws, we must recognize the right of the people, through the Legislature, to reach all their departments of govern- ment. Therefore, I should be in favor of giving the Legislature a supervisory right over these Commissioners. They are not to be feared so much on account of offirmative action as they are on account of non- action, and the rights of the people ignored. I have no apprehension that any legislation will ever be found in the State of California, if the Commissionera fix the rates of freights and fares, that the Legislature will raise it. Nor have I any apprehension that any Legislature will ever assemble that will remove a Commissioner because he is faithful to popular rights. Therefore, I would go further, and jive the right to remove one or all of these Commissioners by a majority vote of both branches of the Legislature. I would be in &vor of that, not because I would not have confidence in whoever would be elected Commissioners, but keeping all the time in view the fact that mistakes may be made, and that when mistakes are made, the power should be lodged some- where to correct them. I would provide, first, for the election of a Com- miasioner at every general election ; next, in case one of them should be unfaithful, that his removal should be required upon the ground of a violation of his trust, or neglect of duty, so that eventually this right may come home to the people. Thev have a right to %xercise this great riEbt; that has been decided by the highest Court in the nation. £ntertaining these views without an opportunity of offering any amend- ment at this time, I shall, when an opportunity presents itself, eventually vote with reference to procuring such amendments; and I say, once (at all, that every vote that I shall give, and every amendment I shall offer, shall have no other object and aim than to reach a definite clear expres- sion of the constitutional right of the people to regulate, not only railroad corporations, but, when we reach it, to offer the amendment which I pre- sented some time ago. All corporations coming under the general head of furnishing articles or rendering services for public use, that in all cases, without exception, the char^ for artides lumished and servicei performed, shall be specifically regulated by law. SPncB or HR. ATIIS. Mk, AYERS. Mr. Chairman: The debate on section etghteen has taken in the whole range 9t the question at issue. Althon^, when I offered my amendment forbidding the railroads from raising their rates when once lowered for the purpose of competition, I felt that it posoeased a principle of vast importance to the people of this State, and I knew that it would provoke discussion, I had no idea that it would bring oat so extensive, so exhaustive, and so able a debate as it has. As I said, when I offered the amendment, it was for the purpose of protecting the small capitalists as against the immense, overgrown, and olmoet incom- putable wealth of the great corporation which handles and controb all the roads of this State; and, while speaking to this amendment, I diall ask of this Convention the liberty which has been accorded to others, to also traverse the whole subject. It is difficult, Mr. Chairman, coming in at the heels of this exhanstive debate, for one to avoid repetition ; but I will endeavor to do so, and will merely give to this Convention my views upon what I consider the best criticisms that have been made against my amendment. It has been objected that it would not be a wise policy £a place in the Constitution s principle so iron-clad in its character as is presented in this amendment- one which would hold the railway corporations and transportation com- panies to a rigid rule, and one which could not be relaxed except by a revisal of the Constitution. But I submit that the amendment icoepCed by myself and offered by Judge Uager will take away that objection in a great measure. Where the rule operates unjustly — whether it be unjustly towards the railroads or whether it be unjustly towaids the peo- ple— the Legislature, b^ a two thirds vote, ma^ relax it I opine, Mr. Chairman, that no Legislature, where a c)uestion of absolute justice is brought before it, will fail to give that required two-thirds vote. Another objection has been that, under the operation of this amendment, the great railroad corporation would be blackmailed by land, by river, sad by sea. I take it that he who attempts to blackmail this great monopoly will need to have a purse well linod with "the coin of the realm." I take it that no prudent or sensible business man will ever undertake, by land, by river, or by ocean, to run an opposition to this great corporstioil for the mere purpose of blackmail, knowing in advance that whatever moneys he might put into that enterprise would be swamped iner- ocably. Gentlemen say that stage coacnea and mule teams will sprii^; up for the purpose of carrying passengers and freight in opposition to this company, and that they will be protected by this clause in the ConstiUi- tion. Well, sir, if stage coaches and mule teams can compete with that great modern invention, the railroad, I say let them do so. But the principle of this proposition is that the railroad companies shall not lie permitted, for the purpose of driving out opposition, for the pnrposeof crushing out local enterprises, to use the power of the great wealtb they have aggregated to themselves, and then come back, after they have crushedout that opposition, and compel the people to indemnifj them for what they htve spent in so doing. There may be instances of black- mail occurring under it, but we have blackmail in every business. Whtt this Convention should look to is whether it will encourage fair competi- tion, and if it will do so it will protect the people. I will venture to say, Mr. Chairman, that there is no railroad in this State, outside of the great corporation, which does not exist by per mission and will, and sufferance of the Central Pacific Company. I s>j that it is the history of rftilroads in this State that whenever the grstt corporation has gone after a line, it has captured it and put it in its pocKet It will be conceded by every gentleman in this ConrentioB, that the natural highways of this State ought to be as free to its mm- meroe, as open to the enterprise of every citizen, as open to competitioii, as the ocean itself. But it is not so now. There is not a point of nil- road vantage in this State; there is not a navigable stream; not u ocean harbor anywhere within their reach, that is not controlled by the great corporations. The Sacramento River, whicii is a natural highway between the mountains and this city and the bay, is as effectually ii the grasp of the great monopoly as though they owned evenr droi of water in it ; and as I am informed, not a landing can be eifeetea on this river within the limits of Sacramento — except two hundred lisetof frontage which is lield under an old franchise which they have never been able to secure— hut is under the control or ownership of that monopoly. If we go from this to the other points on the river, and ts the bay on the Oakland side, we will find the same condition of aAin to exist. The United States Government has spent over half amilliOB of dollara in creating for the people of the southern counties, at Wil- mington, a t(arbor which will be available toi^pping. No^ithstM^- Digitized by Vj005 IC Nov. 27, 1878. OF THE CONSTITUTIONAL CONVENTION. 539 ing that the Government has spent thisenonnous sum, notwithstanding that it has created a fine harbor, one which will ultimately prove of capacity stiflficient to carry 09 the marine business of the southern coast counties and of Arizona — notwithstanding this, Mr. Chairman, you nor I nor anybody else can reach that harbor except over the territory claimed and, perhaps, owned by this great corporation. It is as effectu- ally sealed out (W>ni the people as though there were a Chinese wall built around it. Well, sir, this is not a fine atat« of affairs, and, if we can overcome it by anything we can do here, we would be false to our trust, false to ourselves, and false to the people if we did not do it. I therefore say, Mr. Chairman, under existing circumstances, that there are no competing points in this State, and there will be none unless the remedy which is here proposed is adopted. My distinguished colleague, I thinlc, has fairly answered the gentle- men who have asserted on this floor that this amendment is the result of merely sectional grievances. I think he has shown that it will apply to nearly the whole State. It will certainly apply with great effi- cacy to Sacramento, and, sir, I think it will soon apply to every place on this coast. Mr. Chairman, this amendment only contemplates nold- ing the transportation oompanies to fair rates. Now, why should they go below lair living rates? If they do so, they do it for sinister, and I may say, for criminal purposes; and if they do so it is their own volun- tary act, and taken in connection with the intention, they should be punished. There is one peculiarity of our State that does not exist in the other States of the Union. The conformation of our State has been greatly conducive to the creating of this one-road power. The other States are crossed, traveled, and gridironed by a great many roads, and they have, in a great measure, been relieved by competition. Here we have none — and if we can bring that relief to our people by the adop- tion of this amendment — why should we not do so? I was astonished when the learned gentleman from Marin, Mr. Shafter, a gentleman whom I highly respect, and upon whose opinions I have always placed great value, used the arguuient which he did. He said, alluding to the amount of freight available at Los Angeles, that the Southern Pacific Railroad was losing monev. In other words, because Los Angeles had not volume enough of trade to enable that company to pay tneir run- ning expenses now for the entire line of the road, that, therefore, the people had no right to complain. Mr. Chairman, that road, as far as we are concerned, is but one portion of a great contemplate system. Would the gentleman have us pay for the entire system? The benefits derived from that road are to come in the future. If they intend to make it pay as tbey go along — make it pay interest on the capital invested, and a surplus to contmue it — why, God help those who live on its line I I believe, sir, with Edmund Burke, that the medicine of the Constitution should not tie its dail^ bread ; but I believe the medicine should be of a character, in this instance, to cure the evils which the great railroad corjwration has brought upon^this State. And if this medicine is a drastic remedy, and will eflect a cure, I think that would be reason and cause for adopting it. So much, Mr. Chairman, with reference to the amendment. I shall now pass very briefly to a review of the other sections, partic- ularly section twenty. I will premise by saying that I am ready to vote for section twenty as it came from the committee, or to accept such modifications as may recommend themselves to my judgment; or, I will even — if gentlemen wish to ofier such amendments— I will even go farther than this section has gone, to curb the corporation in its power oTcr the people of this State. The first clause of the section reads as follows: "Three Railroad Commissioners shall be elected by the qualified voters of this State at the regular gubernatorial elections, and whose salary shall, be fixed by law, and whose term of ofiice shall be four years." The only objection I hftve heard to that clause is, that the term is too long. In my judgment, the term of four years is not too long. I believe that if the term were even longer the people would receive gp'eater benefits, for railroading has become, by its amplitude of classifications, and by the great mysteiy thrown around it, one of the most intricate sciences known to industrial or other economy. As to the propositions that these Commissioners shall be elected by the people, I 'wisn to be understood that I shall oppose any effort, any amendment, by which this power shall be taken away from Ihe people. Mr. Chair- man, this great corporation has been able to reach nearly every branch of our Government. It has been enabled to influence our Legislatures, and it has been enabled, by what means I do not say, to have its own way in spite of the people of this State for the last ten years. There is but one factor in this Government which it does not reach, and that is public opinion. The people are too numerous, and public opinion too diverse m its ramifications, for that power to ever reach it, and I shall oppose any other mode of ap^wintmg this Commission than that of election by the people. There is another objection made to this section. "The Commissioners shall hear and determine complaints against the railroad and other transportation companies, fix penalties, and enforce them through the medium of the Courts." It is argued that this gives the Commission too much power. Now, sir, there is only one amend- ment that might with safety be made to this clause. I would be willing that the Commission should hear complaints in public and determine them as against the railroads; but, as to fixing penalties, why should not these Commissioners aflix penalties? Who will be better able to judge what the abuses have been than the Commissioners? /5id then here is the conservative principle in that clause, " that they shall be enforced through the medium or the Courts." I think that provision is guarded. I think that even the railroads themselves can- not complain of it, and I think the section, as far as that portion of it is concerned, ought to meet the views of every gentleman on this floor. Mr. Chairman, the language and syntactical construction of this section have been criticised by gentlemen in a peculiar manner. Gentlemen have shown their knowledge of grammar, their knowletTge of the nice oonttruction of phrases, and they have exhibited a smartness which would perhaps be commendable in a public school,but which I consider entirely out of place anlong gentlemen who generally know what the English langu^e means, whether it be theoretically grammatical or not. These hypercriticisms of the verbal construction of this section remind me of a great episode in history. You will remember, Mr. Chairman, that in that great Convention of sixteen hundred and eigttty- eight, where the leading minds of England were assembled after James the Second had thrown the Great Seal of the State into the Thames and had abdicated the throne in a most pusillanimous manner and fled to France, Parliament met and resolved itself into what is generally known now as the great Convention, from which dates all the popular Conventions since tnat day of the Anglo-Saxon peoples. That Conven- tion embraced men of a great variety of views; men who were willing » and anxious to stickle upon points in which prejudices of long standing were concerned, and there seemed to be no possibility of getting them together in one mind upon the grand object for which they had assem- bled. In a happy moment the great lawyer, John Somers, ofiered a resolution. That resolution at once brought the Halifaxes, the Derbys, the Rochesters, the Nottinghams, and all the leaders of antipodal opin- ions together. In speaking of the resolution Macaulay says : "This resolution has many times been subjected to criticism as minute and severe as was ever applied to any sentence written by man: and perhaps there never was a sentence written by man which would bear such criticism less. • • • It is idle, however, to examine these memorable words as we should examine a chapter of Aristotle or of Hobbes. Such words are to be considered, not as words, but as deeds. If they effect that which they are intended to effect, they are rational, though they may be contradictory. If they fail of attaining their end, they are absurd, though they carry demonstration with them. Logic admits of no compromise. It is therefore not strange that some of tne most important and most useful political instruments in the world should be among the most illogical compositions that ever were penned. The object of Somers, of May nard, and of the other eminent men who shaped this celebrated motion was, not to leave to posterity a model of defini- tion and partition, but to make the restoration of a tyrant impossible, and to place on the throne a sovereign under whom law ana liberty might b« secure. This object they attained by using language which, in a philoeophical treatise, would justly be reprehended as inexact and con- fused." Now, Mr. Chairman, I dispose of the verbal inaccuracies and of the criticisms of that section upon the same ground that Macaulay disposes of the resolution of John Somers. If the language can be con^nied to mean that henceforth the railroads shall be regulated by law ; that they shall not be permitted to oppress the people with extortions; that they shall not discrimhiate against persons or places; that they shall not use their ereat wealth to confiscate and absorb the property of others; that they snail not corrupt our Legislatures; that they shall not continue to tax every man's gocKls and products as much as they please; that they shall not defy the power of the State, and ride roughshod over the people. If it shall do this, I care not whether its major agree with its conclusion, or whether its moods and tenses will stand the test of a pedagogue's criticism. If it shall give to the people of California the relief they seek, its words will be deeds, and such deeds as every lover of his State will fervently hope to see realized. My vote will go with my judgment, and my judzraent is that this section, and the sections which have already b«en adopted, including the amendment which I have had the honor to offer, will afford to the people of California full protection from the oppressions and the aggressions of the railroad monopoly. Mr. SCHELL. I move that the committee rise, report progress, and ask leave to sit a^in. Lost on a division vote — ayes, 5S ; noes, (5. SrRECB OP MB. SHAFTKB. Mb. SHAFTER. Mr. Chairman: I take the floor for the purpose of setting myself right before the Convention and before the world. I must deprecate the practice that has been indulged in by gentlemen on this floor, who it seems have constituted themselves my censors, of tak- ing a word here and a word there from my remarks, and perverting its meaning, and making that the basis for their criticisms. I do not think that is fair, and I regret to have to be constantly defending myself. I am very much surprised and highly delighted at the encomiums which have been heaped upon me, but the reputation of the gentlemen from whom they emanate, for learning and ability, do not justify them in talking like fools. [Laughter.] I would much prefer it if they wouki kindly change the medicine. They bestow their encomiums, and then the censure. I would much prefer it if they would bestow the censure first, and then smooth me down with encomiums. The gentleman from Los Angeles, General Howard, has credited me with saying that a superior officer is not responsible for the acts of a subordinate; that the directors of a bank are not responsible for the misappropriation or embezzlement of funds by their subordinates. I said no such thing. I did say that certain subordinates in the bank would not fall within the meaning of this clause in the Constitution, because they are not officers of the bank, hence the directors, under this clause, would not be responsible for their conduct. Why, I learned a long time ago that the superior is responsible for his suboniinate, in all cases. It is necessary, in a discussion of this kind, to observe what is snid, to get at the correct moaning. These misrepresentations arise from the fact that gentlemen take a word here and a sentence there from my remarks, and proceed to criticise me upon that. My friend makes me say things which I never thought of saying ; makes me give utterance to principles that any unwhipped boy ought to know better than to utter. Now, General Howard (and I will take occasion to say, that he is the Nestor of the Convention), has presented the claims and complaints of the people of Los Angeles. It was his duty to do so. No matter whether those claij '?^ 540 DEBATES AND PROCEEDINGS Monday, are real or imaginaiT, it is his duty to present them for adjudication before this body. He has imputed to me the statement that I thought the railroad company bad us«d the people of Loa Angele: right. I hope my prdfession has taught me more justice than that. I am not one who would belittle the claims of any community. They ought to be pre- seiAed and fully considered. If we find that these grievances are well founded, it is our duty to redress them. I am not disposed to find fault, but I think these gentlemen are not doing me justice in their arguments. What I did say was, that whenever an opposition has been started, the same people who make complaints here are the very ones to patron- ize the railroads the moment the rates are reduced, on account of the competition, and aid them directly in runningoff the opposition. That they look to their own temporary, selfish interests. TBat when they have, by assisting and patronizing the railroad, succeeded in driving off the opposition, they come up to this Convention and ask to be relieved from the rule which they themselves have put in force. That they became partieept eriminu, and that they had nobody to blame but them- selves when the opposition was driven off. They simply consult their own temporary interest, and under the circumstances the people are not in a position to complain. If I stand upon the comer and advise a man to commit murder, or if I peer around and tell him when tbc coast is clear, I would be a party to the murder, if it should be committed. These men who shove out money to these grasping corporations to help kill off competition, I say are not morally in a condition tu find fault with the natural consequences of their own ads. I do not mean that they should suffer any penalty, but that they are not in a position to cry out against the men whom they aided in doing these things. Now, the question here is whether, after the rates have been reduced, the companies should be held to this reduction? It seems to me, sir, that it is unusual and excessive punishment. It is unstatesmanlike, and is giving way a little too much to the clamors of the people. Under the amendment of the gentleman from Los Angeles the same thing will be done, except that it will be done in a roundabout way. The result will be the same. The railroad company will not run at rates which do not pay, and no law can compel them to do so. They will not lower the rates on the road, but when an opposition steamer is put on, somebody, no one can tell who, would put on an opposition steamer at rates that would compel the opposition to draw off. Nobody would know who owns the steamer. It is true that under this provision the owner would be prohibited from again raising the rates, but he would not want to. He would have accomplished the purpose aimed at — the retirement of the other steamer. When the next opposition comes on, the same steamer perhaps, under a diflferent ownership, would be called into use again to baffle the opposition. Thus the law could continual ly be evaded. Anybody can see in an instant that this would be the result. I greatly prefer the amendment offered by the gentleman from Alameda, Judge Campbell. In regard to the criminal acts which General Howard claims have been committed, I do not see why they do not arrest them and have them indicted and punished. They have the Courts and juries appar- ently sufBciently prejudiced against the railroads to find a verdict, if they are guilty. If any crime should be committed by the railroad companies over in Marin, I am morally certain they would be hauled up and punished. I am of the opinion that the only reason they are not punished is that they are not guilty. If they should commit any crime over in the county where I live, you bet your life they would be indicted and punished very quickly [laughter], and not much talk about it either. Now, in regard to the steeple business, the only reason I mentioned that Mr. HOWARD. I did not do the gealluman any intentional in- justice, because I said he could raise his steeple as high as any one when- ever he chose. Mb. SUAFTER. I have no ambition in that direction at my time of life. I merely alluded to this matter of palatial residences in reply to others who had mentioned the matter. If I had twenty millions I do not think I would want to live any differently from what I do now ; yet, we cannot tell. I remember an ancient quotation which runs, " Is thy servant a dog that he should do this great sin ?" Yet, it turns out that he did do it. Men's ideas change with their interests. A man is an extremist when he has nothing ; But as soon as he gets possession of six hundred and forty acres of land he will hold en to it and see that nobody else gets a slice of it. He won't be in favor of a division of prop- erty then. I do not take anything back that I said in regard to rail- roads advancing the prosperity of the country. If others want to go back to the days of the gee-haw-buck — the long train of oxen, let them do it. Railroads have done a ^at deal to elevate mankind, and it cannot be denied, and I have no wish to dispense with them. Me. HALE. Mr. Chairman : One word Mr. BARNES. (At twelve o'clock) I raise the point of order, that we have reached time of adjournment under the resolution. Thk CHAIRMAN. The gentleman cannot raise a point of order, because the gentleman from Marin is on the floor. Mr. SHAFTER. I had finished, but I thought Judge Hale wanted to ask a question. Mb. BARNES. I move the committee rise, report progress, and ask leave to sit again. Carried. IN CONVENTION. The president. Gentlemen: The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have made progress, and ask leave to sit again. ADJODBNHINT. Me. REYNOLDS, at two o'clock. I move that this Convention adjourn until Friday, The president. Out of order. Mr. hale. I move we now adjourn. The president. In pursuance of the resolution adopted by this Convention to adjourn at twelve o'clock, I now declare the ConTontion adjourned until Monday, December second, at two o'clock r> u. SIXTY-SIXTH DAY. Sacbamehto, Monday, December 2d, 1878. The Convention met, pursuant to adjournment, at two o'clock r. ic, President pro tem. Belcher in the chair. The roll was called, and members found in attendance as follows : Barnes, Hilbom, Beddy, Barry, Hitchcock, Reed, Barton, Holmes, Reynolds, Beerstecher, Howard, Rhodes, Belcher, . Huestis, Binggold, Bolls; Bell, Hughey, Blackmer, Hunter, Schell, Boucher, Inman-, Schomp, Brown, Jones, Shoemaker, Burt, Joyce, Shurtleff, Campbell, Kelley. Smith, of Santa CImn, Caples, Keyes, Smith, of 4th District, Chapman, Kleine, Smith, of Ssji Franciso), Charles, Laine, Soule, Condon, ■ Lampeon, Steele, Cowden, Larkm, Stevenson, Cross, Larue, Stuart, Crouch, Lavigne, Sweasey, Davis, Lindow, Swenaon, Dean, Mansfield, Swing, Dowling, Martin, of Santa Cruz , Teny, Doyle, McCallum, Tinnin, Dudley, of Solano, McComas, Townaend, Dunlap, McConnell, Turner, Estee.*^ McFarland, Tuttle, Estey, McNqU, Vaoquerel, Van Dyke, Evey, Miller, Farrell, Mills, Van Voorhies, Fawcett, Moflat, Walker, of Marin, Filcher, Morse, Walker, of Tuolumsfe, Finney, Alurphy, Waters, Freeman, Nason, Weller, Freud, Nelson, Wellin, Gorman, Neunaber, West, Grace, Noel, Wickes, Graves, O'Donnell, White, Gregg, Ohleyer, O'Sullivan, Wilson, of Tehama, Hale, Wilson, of 1st District, Harvey, Porter, Winaas, Heiskell, Prouty, Wyatt. Herold, Pulliam, ABSEIIT. Andrews, Garvey, McCoy, Ayers, Glascock, Moreland, Barbour, Hager, Hall, Overton, Beny, Sh&fter, Biggs, Harrison, Stedman, Boggs, Harrington, Thompson, Casserly, Johnson, TuUy, Dudley, of San Joaquin, Lewis, Webster, Eagon, Martin, of Alameda, Mr. President Edgerton, LEAVE or ABSEHCE. Leave of absence was granted to Mr. Andrews for one day. Indefinite leave of absence was granted to Mr. Ayers, on aceoaDt of sickness. Leave of absence was granted to Mr. Casserly for five days. THE JOCBKAL. Mb. caples. I move that the reading of the Journal be dispensed with. So ordered. Mb. HILBOBN. I move that the Journal be approved. So ordered. . OOMMCNICATIOII PBOM THE COXTBOLLEB. The president pro tem. I have here a communication from the Controller of State, which the Secretary will read. The secretary read: CoHTBOLLSB's Omci!, Sacbahcito, December HM"- To the honorable the Preddent and Hrmbers of the ConetitDtioiuil Oonrentkn : GsHTLKitE!! : Thc ConTenlion hAvlng adjonmed from Moreinber STth to I^ay that the rates fixed by these Commissioners shall be deemed prima facie evidence that they are reasonable, and make their violation punishable by a forfeiture on the part of the corporation of a lar^ sum of money, or by the imprisonment of its officers — yon put the railroads in such a position that they will not dara to contest the rate fixed by the Commissioners, unless ik is palpably and clearly unreasonable, and in such cases they ought to be perroittea to contest it. I think this plan will do justice to all parties. It compels them to produce their books, and to submit them to the proper examination of the Commissioners, and it iiniwses severe penalties if they testify falsely before the Commissioners. It gives the people every chance to have these rates regulated without oppression. I wish to see no injusticedone on either side, and that the rights of the people, which have been grossly trampled upon by these corporations, shall be in the'future absolutelv maintained. Whv, Mr. Pre8ident,just look at it. 1 shall not go over it in detail, but we find this state of facts : That five men incorporating a railroad company, contributing but a small sum originally out of their own means, have been enabled, first, to freeze out every other stock- holder, and to become owners of a most princely domain, while the other stockholders, their partners in the enterprise, through their manage- ment, through their organization of companies within companies, have been deprivM of all benefit of the investment. You find that that great corporation, beginning on nothing — virtually nothing — has succeeded, out of the profits and gains which they derived from that original investment, from the subsidy which it got bjr means I will not now undertake to describe, that it controls the entire transportation of this State by land and by water; that it haa been enabled to build hundreds of miles of railroads out of its exactions upon the people; that the peo- ple to-day are contributing enormous sums to enable them to build other railroads, and to inci-ease their power over the State and over the coast; that they have succeeded in obtaining this control of transportation by land and by water; they have even control of the ferry between San Francisco and Alameda County. I do not begrudge them a reasonable compensation for their enterprise. I am perfectly willing that they should have palatces to live in — that they should enjoy all the luxuries of life; but I am not willing that they shall put their hands into the pock- ets of the people day after day, and year after year, and take millions from them for their own use and benefit without an equivalent in return. I desire that this extortion shall cease now and forever. It is with this view that I introduce this amendment. There is nothing in it, if the^ act honestly and fairly, of which they need complain. They are public corporations, existing by authority of law, and they cannot expect that the public, who are interested in their acts, are to be kept from any knowledge of their inward workings. They cannot expect to say to the people that it is none of their business. In faime.^ and justice the^ cannot complain of the public being fully informed in relation to their business; they cannot complain of being compelled to charge only reasonabl)3 rates of transportation; they cannot complain at being obliged to adopt a system of bookkeeping which will show the true condition of their affairs — how much they receive, from what sources it comes, and what disposition they make of it — and if they refuse to comply, they ought to be subjected to the severest penalties. They have refused in the put, and it is time it should stop. I think it is time for the people to step in and put a stop to the system which has prevailed of allowing unscrupulous men who control these corporations to tax the people at will. They should be regulated by the laws of the land, and neld to a strict accountability. Mr. Chairman, I am compelled necessarily to be absent this evening, so I have requested another member, at the proper time, to introduce this amendment As I said, I have omitted the mode of selecting these Commissioners. Now, one word in regard to section eighteen. That has not been passed yet. I have an amendment to that also. The amendment of the gentleman from Los Angeles, as amended by Mr. Hager, provides tnat when any railroad company shall rednoe its rates to crusn out competition, that the rates shall nof again be raised without the consent of two thirds of the Legislature. Now, sir, I do not want the Legislature to have anything to do wii^ this matter of consent. I want that to be vested in the Commission — such Commis- sion as this Convention shall, in its wisdom, think proper to provide for. And farther, it seems to me that by leaving it to the Legislature, it would in many cases necessarily do injustice. Take the case which was presented by my colleague here, of the railroad between this city and Shingle Springs.' Why, the genileman says they used to mn stages there and carr^ passengers for three dollars a head. The railroad baa driven them off by putting down the rates. But, this Sacramento and Placerville Railroad, as I am informed — and I have never heard the statement denied — has never made a dollar out of any of its properties, and I do not believe they are to-day. Bnt, it would, at any rat«, be under the supervision of the Railroad Commissionen, and if it does make mon than a reasonable amount, they can reduce the rates to a rea- sonable basis. But, there is this about it: take a peculiar railroad like that, and you may put on a competing line of stages, if yon please. The stages were run on the Placerville route in the palmy days of that country. Now, a railroad line is fixed and permanent. It is built at great cost, and run at a heavy expense, whereas a stage line can be put on and off at will, for the purpose of blackmail. I believe the amend- ment offered by the gentleman from Los Angeles will tend to prevent the building of short lines of railroad, and to render unprofitable some of those already established. If a man has an unemployed stage, he can put it on and run opposition to the railroad, for the purpose of black- mail. The railroad company must not lower its rates, because they cannot be raised again. So with the owner of an unemployed vesseL He can run it in opposition to the railroad on any of the natural high- ways of the State. He can afford to run cheaper on water than they can on land, and when they come down to his rates, they must neces- sarily lose money, and they dare not put the rates down. Mb. terry. Has not this been voted on in the Committee of the Whole. I raise that point of order. Ma. CAMPBELL. The eighteenth section has not been voted upon. Ma. TERRY. I have been informed by the clerk that the Conven- tion has so voted. Mr. CAMP^LL. No, sir, section eighteen was passed over on account of the previous question having been moved. Mr. ESTEE. It has never been disposed of. Thi CHAIRMAN. Section eighteen has not been disposed of. Mr. CAMPBELL. It has not been disposed of, and that is the reason I am discussing it. I say it would be dangerous to put such a provision in the Constitution, compelling these railroad companies to go to the Legislature for permission to raise their rates, as the Legislature only meets once in two years, and they would be compelled to run for two years oftentimes at a loss. I say it would be rank injustice; and while I am in favor of the strongest restrictions, I am not willing to do them any injustice. Mr. O'DONNELL. I move that the committee rise, report progress, and ask leave to sit again. I gave way to Judge Campbell beeaute he wanted to go away, fwish to rise to a question of privilege. Ma. ESTEE. I object. Mr. O'DONNELL. I want to rise to a question of privilege. Mk. waters. The doctor had the floor for that purpose before the Convention went into the Committee of the Whole. He, at the sog- festion that Judge Campbell wished to get away, gave way to him. [ow all he asks is to have a few moments lor a question of privilege. Mr. ESTEE. What is the harmin waiting until we come out of Com- mittee of the Whole. I would be willing to give way, but it makes do difference whether he speaks now or not. Mr. MURPHY. I move that the gentleman have leave to make his statement now. Thr CHAIRMAN. The question is. Shall the committee rise? Division was called for, and the motion was lost by a vote of J8 ayes to 3t noes. Mr. O'DONNELL. Mr. President : I rise TBI CHAIRMAN. The motion was lost and we are still in Commit- tee of the Whole. The question is on the amendment of the gentleman from Los Angeles. The Secretary will read section eighteen and the amendments. Thr secretary read: Skg. 18. No railroad company or other common carrier shall combine or make any contract with the owners of any vessel that leaves port or makes port in this State, or with any common carrier, by which combination or contract the earnings of one doing the carrying are to be shared by the other not doing the carrying. Amendment by Mr. Ayers: " Amend section eighteen by adding after the word ' eonying,' in th« fifth line, ' and whenever a railroad corporation shall, for the piupt** of competing with any other common carrier, lower its rates for tiaiis- portatiou of passengers or freight from one point to another, sa^ reduced rates shall not be again raised or incrsosed from such ntdnesd standard.' " Amendment by Mr. Campbell : Digitized by' Google Dec. 2, 1878. OF THE CONSTITUTIONAL CONVENTION. 543 "Add to section eighteen, 'ajid whenever a railroad corporation shall, for the purpose of competing with any railrgad constructed or in process of construction, lower its rates for transportation of passengers or freight from one point to another, it shall not again raise its rates without the consent of the goTemmental authority in which shall be vested the power to regulate fares and freights on railroads, nor shall such other railroad raise its original rates without similar consent.' " The chairman. The question is on the amendment of the gentle- man from Los Angeles, Mr. Ayers. Mr. west. My recollection is that the gentleman from Los Angeles accepted the amendment of the gentleman from San Francisco, and the question would therefore come on the amendment of Judge Campbell. Thb chairman. The question is on the adoption of the amend- ment proposed by Judge Campbell. Mk. RHODES. I desire to call attention to the verbal amendment which I supposed bad been accepted at the time : " Constructed or here- after to be constructed." Thk chairman. Yes, sir. Mb. CAPLES. As Judge Campbell is not in, I will state that he agreed to make that correction^ and it was my understanding that it was to be a substitute for the words, " in process of construction," and I was under the impression that be had made that correction. He agreed to do so, and I presume afterwards forgot it. I now move to make that correction. The chairman. It seems to have been made here, but there is a line drawn over it so the clerk did not read it. Thb secretary. The correction is in ink and has been marked out. showing that he made it and afterwards erased it. Mb. HOWARD, of Los Angeles. That is a mistake — he did not intend to erase it. Mb. CAPLES. I move as an amendment, to make that correction by inserting the words, " or hereafter to be constructed." Mb. BLACKMER. I rise to a point of order. There is an amend- ment to an amendment pending. I understand that Judge Campbell erased it himself. Thb CHAIRMAN. The Secretary says he does not know how it was done. If there is no objection it will be considered as being in. Mb. HALE. I ask the Secretary to read that again, without the pro- posed amendment. Thb secretary read: Amendment by Mr. Campbell : "Add so section eighteen, 'and whenever a railroad corjioration shall, for the purpose of competing with any railroad constructed, or in pro- eess of construction, lower its rates for transportation of passengers or freight from one point to another, it shall not a^ain raise its rates with- out the consent of the governmental authority in which shall be vested the power to regulate fares and freights on railroads, nor shall such other railroad raise its original rates without similar consent.'" Mb. hale. II^ seems to me that the language there is ample to express the purposes in view. It says roads in process of construction. It does not mean simply that it would operate simply upon roads now built, or being built. It is appficable to roads built or being built at the time of the lowering of the rates. I presume Judge Campbell struck that out, thinking it unnecessary. Mb. O'DONNELL. Mr. Chairman: I find by Rule Thirty-nine that a question of privilege shall be entitled to supersede all other busi- ness, and Rule Fifty -six says these rules shall be applicable to the Com- mittee of the Whole, so far as applicable. Thb chairman. A question of privilege must come before the Convention, and not before the Committee of the Whole. Mb. O'DONNELL. The same rules apply. Thb chairman. It is not in order. Mb. WILSON, of First District. Mr. Chairman : I would like to have an explanation, so as to see whether the committee understand this matter as I understand it, so that we can vote upon it understaiidingly. Section eighteen was before the committee, and the gentleman from Los Angeles, Mr. Ayers, moved an amendment. To that amendment the gentleman from San Francisco, Mr. Hager, moved an amendment which, according to my recollection, was accepted by Mr. Ayers. Then came the amendment of the gentleman from Alameda, Judge Campbell, as an amendment to the proposition of Judge Hager. Now, the proposition of Judge Ha^er, as I understand it, does not change section eighteen, but adds to it. I am not very clear in my mind as to whether the amendment of the gentleman from Alameda, Judge Campbell, is a sub- stitute or an addition to it. It seems to me it would supersede the Hager amendment ' Mb. ESTEE. The gentleman from Los Angeles, Mr. Ayers, accepted the amendment of Judge Hager, and now the first question is upon the amendment to the amendment proposed by the gentleman from Ala- meda, Mr. Campbell. If it is adopted it will supersede the other amend- ment Tbb chairman. If adopted it will operate as a substitute. BEMABBS OT HR. TEBRY. Hb. terry. Mr. Chairman: The objection I have to the amend- ment is that it permits railroad corporations to reduce their fares for the purpose, at pleasure, of killing off opposition. Now, it occurs to me that if there is any object at all in preventing a reduction in fares and freight, in order to prevent opposition, it is just as important that it should be prevented whether it be a railroad or an old fashioned mule team. There is not a bit of difference. There will be no competing railroads in this State, and the only opposition the railroads will have to contend against is water carriage or by teams, so the effect of the amendment will be destroyed absolutely. The section will be of no use whatever; of no possible benefit to the people; no possible check upon the railroad companies of this State. KKliARIS OF HB. BLACEHBB. Mb. BLACKMER. Mr. Chairman : I hope this amendment will be voted down. Suppose a railroad company builds a road from San Fran- cisco to some point on the coast, and establish their rates between these two points. A corporation may be formed for the purpose of running a line of steamers from San Francisco to that point The corporation run- ning the steamer, under this provision, would be allowed to reduce their rates until they had compelled the railroad company to suspend; and when that is accomplished, not bein^ a railroail corporation, the steamboat company would be allowed to raise their rates again without asking leave of anybody. They could kill ofif the railroads as fast aa they could be built. Mb. ESTEE. Would not that be the resultof both these amendmenteT Mr. BLACKMER. Yes, sir; and for that reason I hope this amend- ment will be voted down, and I shall then propose an amendment that will include all corporations or associations that are doing business as common carriers. Further, that they shall not again raise the rates unless the Legislature authorizes it. Not that the Legislature shall raise them, but to compel the corporation to go to the Legislature and get authority to put the rates up again. I will read it: " And whenever any corporation or association doinj^; business as a common carrier shall, for the purpose of competing with or rendering unprofitable the business of any other common carrier, lower its rates for transportation of passengers or freight from one point to another, it shall not again raise its rates, unless the Legislature, by a two-thirds vote of all the members elected to each branch thereof, shall authorize such change." Mb. McFARLAND. That will require a special law. It is an excep- tion to the general rule, that laws should be general. Mb. BLACKMER. Perhaps it would be. Mr. ESTEE. I will state to my friend that he will get things badly mixed if he undertakes that, because we have a provision that the Leg- islature shall pass no special laws. I hope both amendments will be voted down. Trb CHAIRMAN. The question is on the amendment of the gentle- man from Alameda, Judge Campbell. SPKECH or UB. CROSS. Mb. CROSS. Mr. Chairman : This amendment proposed b^ the gen- tleman from Alameda, Judge Campbell, seems to be very objectionable in itself. It applies only to a case where one railroad is competing against another railroad, which is a case that does not exist in any part of this Stete. Now if this amendment be adopted, it disposes of ana does away with the amendment proposed by the gentleman from Los Angeles, Mr. Ayers. For instance, some one starts a steamboat to run from Sacramento to San Francisco, for the purpose of carrying freight and passengers. The railroad company can put on an opposition boat^and puts the price down so low that the other boat is soon run off. Now, the railroad company is enabled to do that, (or the reason that it can make up the loss resulting from carrying freight and passengers below cost, by charing an unrea- sonable price at other points. The result will be this, if this amendment is adopted, that whenever any boat is put on this line between here and San Francisco, the Central Pacific Railroad Company can put on a com- peting boat and put the rates of freights and fares at just wnat it pleases, and after having run oS the opposition, then they raise them again, as they always have done. Now it seems to me that is the very object of this amendment, to allow railroads to monopolize the carrying business on the natural highways of the country; if it is not, I am very much misteken. Here is the City of Marysville, that has withstood fire and flood. And it is to-day, after the many misfortunes, one of the most prosperous interior towns in the Stete, for the simple reason that she has, through thick and thin, maintained an independent line of steamers between there and San Francisco. And she is to-day maintaining this line of steamers. Now this amendment offered by Mr. Ayers will prevent the railroad company from competing that line of steamera out of existence. But the other amendment, offered by the gentleman from Alameda, Judge Campbell, will enable the railroad company, if it chooses, to put down the rates of freights and fares from Marysville to San Francisco until the steamer is run off, and Ux the loss of the transaction upon the people of other portions of the State where there are no natural high- ways, where competition is impossible. And when they have succeeded, by these means, in running oil the steamers, and crushing out the oppo- sition on the great natural highways, which God made for the use and benefit of the people, which, by the overshadowing monopoly of these corporations, have become worse than useless in this Stete. I say this amendment of Judge Campbell will leave us worse off than we are now. Everybody knows there are no competing railroads in this Stete. It is between the railroads and steamer lines on these iuland streams. This amendment will not better our condition a particle. They can lower the rates and raise them at will. Thb CHAIRMAN. The question is on the adoption of the amendment of the gentleman from Alameda, Judge Campbell. The amendment was rejected. Mr. BLACKMER. I now offer an amendment to section eighteen of the report of the committee, as a substitute for the amendment of the gentleman from Los Angeles, Mr. Ayers. The SECRETARY read: " Add to section eighteen the following : ' And whenever any corpora- tion or association doing busii^ss as a common carrier shall, for the purpose of competing wiui or rendering unprofiteble the business of any other common carrier, lower ite rates for transportetion of paseengera or freight from one point to another, it shall not again raise ite rates, unless the Legislature, by a two-thirds vote of all the members elected ' to each branch thereof, shall authorize such change.' '/ ' /^/-^rr | r> 544 DEBATES AND PROCEEDINGS Tuesday, Thi chairman. The queation is on the amendment to the amend- ment offered by the gentleman from San Diego, Mr. Blackmer. SBHARKS or UK. BLACEUKB. Hr. BLACKMER. Mr. Chairman: The question raised in regard to the Legislature, it ^eems to me, does not affect the amendment which I have offered. The object of this is not that the Legislature shall raise these rates, but that the corporations themselves, who do these thing* — lower their rates for the purpose of driving off competition, or making unprofitable the business of any other common carrier — before they can raise the rates again, they must get permission of the Legislature to do it. I think this will accomplish a good purpose. The Commissioners might do this without any publicity whatever, if it is left in their hands. Nobody would know it but the corporations until the report of the Com- missioners came out. But if you compel the corporations to come to the Legislature, they will have io show good cause — show that they did not violate the provisions of the Constitution — before permission will be granted the Commissioners to put the rates up again. I think this is a good provision. I believe it is not open to the criticisms that have ralleu upon it; and I believe there is justice in it, and that we should include all corporations that are doing a carrying business. I see no reason why railroad corporations should be prohibited from doing these things, and still leave it open for other common carriers to lower their rates for the purpose of killing off opposition lines, and then raising them again. I say it is no more than just that railroad and other com- mon carriers should be placed upon the same footing. RB1IABK8 OP MR. HCPARLAKD. Mb. McFARLAKD. Mr. Chairman : These amendments are all aimed at the old lines. It is not plain how it will affect new lines that have no original rates to be lowered. A new line cannot lower its rates, because it never bad any rates. My experience is that the new lines are the worst, because they are generally put on to blackmail the others. I know the old California Stage Company used to carry people at very reasonable rates, and some men, who had a few old horses and a sta^ or two, used to put them on in opposition for the purpose of blackmail. They compelled the stage company to reduce fares or lose their busi- ness. Now, this proposed amendment would put things in this condi- tion : A new line is put on ; the old line cannot reduce, because if they do they cannot raise the fares again. But the new line can run off the old lino and then raise its own rates to a paying basis, because there is nothing in the provision to prevent it. I say you are doing a great wrong. I will state to my friend from Nevada a case : A man up there, having finished some large teaming contract, and having a lot of horses and mules on hand, with nothing tor them to do, could put on a line of freight teams to Colfax, and for two or three months in Summer ouuld carry freight cheaper than the railroad does to-day. Now, what would be the effect under this rule Mr. cross. If the teams can carry cheaper than the railroad, let the teams carry it. Mr. McFARLAND. Then the gentleman does not express the wishes of his constituents, for they do not wish to dispense with the railroad. I say for two or three Summer months they might be able to carry cheaper than the rates now charged by the railroad. But they could not cany at all when Winter comes. Does the gentleman want to put them in a condition where they would have to stop running, or run at a loss? If he does, he would find that his own constituents are against him. Mr. cross. If mule teams can compete with railroads, then they should have a chance to do it. REHARtS or hr. BALK. Mr. hale. Mr. Chairman : We have great difficulty in procuring a proper form of the amendment under the rule that there can be but two pending amendments. In reality, the proposition of the gentleman from San Diego, Mr. Blackmer, -is in the nature of a substitute to the amendment proposed by the gentleman from Los Angeles, Mr. Ayers. There ought to be some machinery by which we can perfect a substitute, if it is not already acceptable. In some respects I like the provisions of the amendment proposed by the gentleman from San Diego, Mr. Black- mer, better than those of the amendment of the gentleman from Los Angeles, Mr. Ayers. I find objections to both. In the first place. I think the objections urged by the gentleman from Sacramento, Judge McFarland, to the phraseology, are well founded as to both these pend- ing amendments. In other words, while the true policy may seem to be the same as between two transportation companies, whether railroads or steamboats, or railroad against steamboat, or railroad against mule, or ox teams, that if one lowers its rates for the purpose of driving off opposition, it shall not be privileged to raise them back a^in, until they have secured the permission of the proper authority. For instance, a steamboat is put on for the purpose of competing with the old line. It puts its rates originally at whatever figure is desirable. It does not reduce its rates for that purpose, because it has no established rates to reduce. Now, will this provision apply to them as well as to all others? If not, the phraseology ought to be amended. Mr. blackmer. Under my amendment, if they are corporations or associations doing business as common carriera, then my amendment applies to them. I? the gentleman thinks it is not clear, let him pro- pose an amendment and I will accept it. Ma. HALE. I made this suggestion because I desire to see the pro- vision properly framed. I desire to see it framed in such a manner that the rule shall be equally applicable to the old and to the new lines, whether one or both change their rates. I desire that the rule shall apply to both, that they shall not increase their rates except by permis- sion of the proper authority. As to another point; of course, I do not know what may be the disposition of the committee when we come to section twenty. We cannot tell whether the committee will adopt the idea of a Commission. I hope they will^ If the idea is not adopted, I hope this power of granting or withholding consent to raise rates afier they have been reduced will be lodged in the Legislature. If the idea of a Commission is adopted, then that power ought to be lodged in the Commission. I think the words "or establish" ought to be inserted u this amendment. Mr. blackmer. I accept that amendment, after the word "lower" the words "or establish." Tbb chairman. The question is upon the adoption of the amend- ment of the gentleman from San Diego. Mb. O'DONNELL. I sent up an amendment to this section a wed ago, and it has laid there all this time and never been brought forward. Mr. JSTEE. Mr. Chairman: 1 think all these amendments pro- posed to this section are vicious. I do not believe they will remedy the evil complained of. I do not believe they will do any good, and I io believe taey will do a great deal of harm. Mb. O'DONNELL. I have the floor, I believe. Mb. ESTEE. Mr. Chairman : Is the gentleman from San Franeisea entitled to the floor? If he is, I will sit down. Mb. chairman. He was calling the attention of the Chair to an amendment. Mr. O'DONNELL. The amendment I offered was laid on the taUe and never brought forward. My amendment was this : " No railroad company or common carrier shall combine or make any contract with the ownera of any vessel that leaves port or makes port in this State, or with any common carrier navigating the waten of the Slate." Thk CHAIRMAN. It is not in order this time. Mb. shoemaker. I move the committee rise, report piogreas, and ask leave to sit again. Lost BRMABKS or MB. LABKIK. Mb. LARKIN. Mr. Chairman: The question before this house btbe amendment of Mr. Blackmer. I am opposed to that amendment. I am in favor of the amendment of Judge Ayers. The amendment offered by the gentleman from San Diego would prevent competition between two stage lines in this State. If either one of them lowers its rates, it can't raise them again without permission. The object of the amendment of Mr. Ayers was to protect the people against the immense monopoly that has been built in this State by the great donations of land and money and bonds drawn from the people. The present owneis, or pretended owners, are oppressing the people, and for that reason 1 shall vote in favor of the amendment of Mr. Ayers, Their property occupies a different relation frbm any other line in this State. A different posi- tion from railroads in other States. H is the lands, bonds, and money of the people placed in the hands of these men that built these mads, and gave them the power which they now wield over the people. That is the reason why this amendment should apply to railroads, and not to all carriers, because the people themselves built these roads. There are carriers in this State who are operating on their oVn private capital. They have never drawn a dollar from the State ; they have never been granted subsidies of land, theyjiave never received any bonds, and hence do not stand in the same relation with the people that the rail- roads do. Therefore, I hope gentlemen in this Convention will vote to sustain the proposition of the gentleman, Mr. Ayers. REMARKS or MR. KSTEB. Mb. ESTEE. Mr. Chairman: I was going to say a few words upon this subject when the gentleman from San Francisco interrupted me. What I was going to say was this: that the result of the amendments now before the committee will be this: to absolutely, freexe out any opposition line that may be established — and I have listened for eeveru days here to hear any gentleman ^ive a reason why such would not be the case. I attempted to make this point clear the other day. Suppose the people of Los Angeles establish a line from Los Angeles to Anaheim— a fast passenger line. The present line, belonging to the Central Pacific Railroad Company, would put down the rates. "That road is but a dioit road, and they have a network of roads all over the State. The result is, the opposition line must carry freight and passengers lower than the main line, or they will not ^t any business. "Tbat is a business proposi- tion, the correctness of which will not be disputed by any gentlemsa on this floor. Now what is the result ? The result is, that the old line, having a network of railroads all over the State, can afford to cut the rates down on that short line, and make it up out of the roads elsewhere, where there nevercan be any opposition. There is no man in thisSlste, insane or otherwise, who would put his money into a railroad enterprise, if either of these amendments is adopted as a part of thtf Constitution. There will be no such thing as competition. Mr. cross. As the matter stands now, could any competing com- pany build and maintain a line of railroad? Mr. ESTEE. I will answer that Question. There is not rantal enough ; there is not trade enough ; there are not people enoo^ to justify competition. There is no such thing as a healthy competitioii. and cannot be in my judgment. There is no real competition oetween railroad lines in the great State of New York, or in Sew England, or even in England, much less here in this State, with its vast extent of territory, and less than a million people. Such a thing, gentlemoi, is impossible. Let us look at these things as they arc, not as they ought to be. Put that amendment into the Constitution and there never can be any real competition. The result would simply be that some roads would be run at a loss in order to freeze out all opposition, and the kss so sustained would be made up elsewhere. They could not come up here to the Ijegislature and apply for permission to raise the nttf. because we have agreed to a clause that no special bill shall beptaea; at least the Committee on Legislative Department have agteed to % and it will be adopted, of course. [Laughter.] That eoone il ■ i one. It is admitted by all experienced legislators to lM|tt>* ' ~~ Dec. 3, 1878. OP THE CONSTITUTIONAL CONVENTION. 545 course. Hence, this would fall within the prohibition of special legisla- tion. I. hope none of these amendments will be adopted. I can see nothing but evil in them. It may sound well, but it is no remedy. It is as sounding brass and a tinkling cymbal, but it is no remedy for the evil complained of. BIXARKB or HB. TERRT. Mr. TERRT. Mr. Chairman: The gentleman cannot point me to a competing line that has been built anywhere in this State that has not been frozen out. This would not be the case if we do our duty, and compel these men to adopt a reasonable rate of freights and fares every- where. We ought to provide that these corporations shall not receive above a certain per cent, upon the value of their property. These abuses will not exist if we make these provisions here m this Constitution, and declare that the rates of freights and fares shall be so regulated as to produce but. that percentage, and if it overruns, have it paid into the State treasury. I shall argue upon that basis, satisfied that no wrong can be done. I hope the amendment of the gentleman from Ijos Angeles will be adopted. The chairman. The question is on the adoption of the amend- ment of the gentleman from San Diego, Mr. Blackmer. Lost. Mr. O'DONNELL. I now offer my amendment. Loet. The chairman. The miestion is on the adoption of the amend- ment of the gentleman from Los Angeles, Mr. Ayers. Division was called for, and the amendment was adopted by a vote of 66 ayes to 39 noes. Mr. shoemaker. I move the 'committee rise, report progress, and ask leave to sit again. Mb. ESTEE. Let the next section be read, so that this section will be disposed of. Mr. hale. This amendment ought to be amended in one respect, and if we rise now the members will have an opportunity of amend- ing it. The chairman. The question is on the motion to rise. Lost. • Mr. hale. I move to substitute for the amendment as acted upon, to strike out after the word "unless," these words, "the Legislature, by a two-thirds vote of all the members elected to each house, shall authorize such change," and substitute the corresponding words in the Campbell amendment, " without consent of the governmental author- ity in which shall be vested the power to regulate fares and freights, authorizing such change." Me. HOWARD, of Los Angeles. I ris4 to a point of order. Mk. SHOEMAKER. I move that the committee rise, report progress, and ask leave to sit again. Mk. LARKIN. This amendment has been adopted Mr. shoemaker. I rise to a point of order Ms. ESTEE. You cannot change the object of the amendment. Yeu can perfect it, and if that is for the purpose of perfecting it, it is in order. The CHAIRMAN. Thisamendment will be entertained. The point of order is overruled. BEHIBKS or MR. HALE. Mb. hale. Mr. Chairman : I have no desire to occupy the time of the committee. This amendment, however, should prevail, it seems to me. Now, sir, if you are going to appoint a Commission to regulate freights and fares, and confer upon tnem the general power to do it, then I am unable to see the reason why this power of consent should not also be left to them. Moreover, the policy should be, if you are going to adopt this Commission system or dealing with railroads, to take the entire subject out of the hands of the Legislature and vest it in the Commission. It certainly belongs there, if you are going to have anything like harmony in this system. REMARKS OF HR. CAPLKS. Mr. CAPLES. Mr. Chairman : I had already prepared an amend- ment the same as that offered by the gentleman from Placer. I think it is right and proper. We expect to organize and institute a Commis- sion to deal with this whole subject-matter. That proposition may fail, but it is my impression that we shall institute this Commission. If we do, that is the true governmental authority to have charge of this sub- ject. Again, it seems to me that the matter, as it stands, relegating this matter to the Legislature by a certain vote, would be to invite lobbying, and that would be in contravention of the cardinal principles of the report here of the legislative committee prohibiting special legislation. That is another serious objection to leaving this matter to the Legia- latore. I therefore desire and earnestly hope the amendment will prevail. In the event of a failure to agree upon these Commissioners, It would go to the Legislature, because that would undoubtedly be the proper governmental authority in that case. In the event that we do institute this Commission, it will leave the matter with them, where it will properly belong, without any conflict of terms — without ooutrtwlic- tion. I nope the gentleman's amendment will carry. The chairman. The question is on the amendment. Division was called for, the committee divided, and the amendment was adopted— ayesj 61 ; noes, 43. Mb. shoemaker. I move the committee rise, report progress, and ask leave to sit again. The chairman. The question is on the motion that the committee rise, report progress, and ask leove to sit again. Lost on a division vote — ayes, 51 ; noes, 51. The chairman. The Secretary will read section twenty. The secretary read; Sec. 20. Three Railroad Commissioners shall be elected by the qualified voters of this State, at the regular gubernatorial elections, and whose salary shall be fixed by law, and whose term of office shall be four years. They shall be qualified electors of this State, and shall not be interested in any railroad corporation, or other transportation company, as stockholder, creditor, agent, attorney, or employe, and the act of a majority of said Commissioners shall be deemed the act of said Commis- sion. Said Commissioners shall have the sole power, and it shall be their duty, to correct abuses by railroad corporations or other transporta- tion companies; establish rates of charges for the transportation oi pas- sengers and freight by railroad or other transportation companies, and publish the same from time to time, with such changes as they may make; report to the Governor, annually, their proceedings, and such other facts as may be deemed important; hear and determine oomplaiuts against railroad or other transportation companies; affix penalties and enforce them through the medium of the Courts, and perform such other duties as may be prescribed by law. Nothing in this section shall pre- vent individuals from maintaining actions against any of such com- panies. It shall be the duty of the Legislature to confer all such further powers on the Board of Railroad Commissioners as shall be necessary to enable them to perform the duties enjoined on them in the foregoing sections. Mb. van dyke. I have an amendment to section twenty. The chairman. The first question is on the amendment of Mr. Prouty. Mb. terry. Mr. Chairman : I move that the committee rise, report progress, and ask leave to sit again. IN convention. The president pro tem. Gentlemen : The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have mode progress, and ask leave to sit again. QUESTION or rBIVILEQE. Mb. O'DONNELL. Mr. President: I rise to a question of privilege. My rights as a member of this Convention have been assailed by a venal sheet called the San Francisco Chronicle. That paper, in its issue of last Saturday, published the following false and defamatory language in relation to my action on this floor. I will read it: " As to O'Donnell, it may be said of him that he is an adventurer in his profession, and as a politician beneath contempt; and he hates the press because it has opposed I}im. And that is the motive of his opposi- tion. He was elected as a Workingman and a reformer, and on a plat- form which, if it had any meaning, meant hostility to the arroeance and corruptions of the railway monopoly, and he has shown a desire recently to go back on the platform and assist the corporations in one of its most vital points, namely, to defeat the proposition for a Railway Commission for the regulation of fares and freights. For this act of treachery he should be read out of the Workingmen's party, and if they fail in this duty the Chronicle now respectfully warns them that it will cause their disruption and utter failure." Mr. President, that is an extract from the degraded Chronicle. The creatures which purport to be its proprietors are now under indictment for libel, and their trial will take place at the next terra of Court in Placerville.' Of their conviction I never had any doubt. As to the paper itself, it has been branded by the Workingmen's partv as a Judos and a traitor to the very cause it professes to advocate. As to the statement that I have shown a desire to defeat the measures for the election of Railroad Commissioners, every member of this Convention can testify it is false ; and it being false I take this occasion to brand the editor of the Chronicle as a malicious libeler and a willful liar. [Applause.] ADJOCBHUEKT. Mb. SHOEMAKER. Mr. President: I move the Convention do now adjourn. Mb. grace. Mr. President: I have a motion to make. I move that Dr. O'Donnell be appointed a committee of one to punish the Chronicle for this libel, and that the trial take place in some other part of the State. The PRESIDENT pro tem. Not in order. The question is on the motion to adjourn. Carried. And at four o'clock and twenty-five minutes p. M. the. Convention stood adjourned until nine o'clock and thirty minutes a. ii. to-morrow. SIXTY-SEVENTH DAY. Saobauento, Tuesday, December 3d, 1878. The Convention met in regular session at nine o'clock and thirty minutes a. m.. President pro tem. Belcher in the chair. ^ The roll was called, and members found in attendance as follows : Doyle, Dudley, of San Joaquin,. Dudley, of Solano, Dunlap, Edgerton, Estee, Estey, Evey, Farrell, Fawcett, Filcher, Finney ' Digitized by PBE8ENT Andrews, Burt, Borbour, Campbell, Barnes, Caples, Barry, Chapman, Barton, Charles, Beerstecher, Condon, Belcher, Cowden, Bell, Cross, Blackmer, Crouch, Boggs, Davis, Boucher, Dean, Brown, Dowling, ler, jGoogle 546 DEBATES AND PROCEEDINGS Tuesday, Lindow, Shurtleff, Mansfield, Smith, of Santa Clara, Martin, of Alameda, Smith, of 4th District, Martin, of Santa Cruz , Smith, of San Francisco, McCalJum, Soale, McComaa, Steele, McConnell, Stevenson, McFarland, Stuart, McNutt, Sweasey, Miller, SweuBon, Mills, Swing, Moffat, Terry, Moreland, Thompson, Moree, Tinnin, Murphj, Townsend, Xason, Tully, Noel, Turner, O'Donnell, Tuttle, Ohieyer, O'Sullivan, Vacquerel, Van Dyke, Ovetton, Van Voorhiea, Porter, . Walker, of Mario, Prouty, Walker, of Tuolumne, PuUiam, Waters, Reddy, Webster, Reed, Weller, Bernolds, Wellin, Khodea, West, Bingttold, Kolfe, Wickes, White, Schell, Wilson, of Tehama, Schomp, Wilson, of 1st District, Bbafter, Winans, Shoemaker, Wyatt. ASSIST. Eagon, Nelson, Garvey, Neunaber, Glascock, Btedman, McCoy, Mr. President. THI JOVRSAL. Freeman, Freud, Gorman, Grace, . Graves, Gregg, Hager, Hale, Hall, Harrison, Harvey, Heiskell, Herold, Herrington, Hilbom, Hitchcock, Holmes, Howard, Huestis, Hughey, Hunter, Inman, Johnson, Jones, Joyce, Kelley, Keyes, Kleine, Laine, Lampson, Larkin, Larue, Lavigne, Lewis, Ayers, Berry, Biggs, Casserly, Me. CAPLES. Mr. President: I move that the reading of the Jour- nal be dispensed with, and the same approved. Carried. HIMOBIALa. Mr. bell presented a memorial of the Representative Assembly of Trades and Labor Unions of the Pacific Coast on the following subjects : First — The contract system, and praying for a law prohibiting the lame on public works. Second — Against the letting of State Prison labor to contractors. Third — To prohibit children under fourteen years of age from being employed in snops and factories. And also urging the adoption of certain articles reported by the Com- mittees on Chmese, and on Corporations other than Municipal. RepresenUtiTe Aisembly of Trades and Labor Unions of the Pacillc Cout do hereby memorlaltze the Constitutional CouTeoUoo, now in seeaion, on tlie following subjects: jptrit — The contntct system, as pncttced by State and nmnlclpAl anthoritles, In the letting and permitting the eublettlng of contncti, without holding the iul>- contrmctor reeponiiible, as provided by tiie Consolidation Act, paased by the Legisla- ture In eigbteen hundred and seventy^ne, and thui defrauding the State, ai well aa its citizens, thla all being dono under the connivance of Conimisaionen appointetl to guard the public's interest. We, therefore, would reep<>ctfully recommend the adoption of a law prohibiting the letting of any State, county, or municipal work of any description by contracts, lo as to hsTe all public work done by the day, and eight (8) hours to constitute a legal day's work. Tor illustration of the above evils, see Stone-cutters' memorial. Second — The State Prison labor. Ws Indofie the clause introduced by John D. Condon and P. H. Wellin, as sufficient remedy for eVils as now existing at our Slate Prison, to wit: the famishing of prison labor at forty cents per day to unprincipled contractors, to the disadvantage of honest manufacturers and honest labor, particu- larly the cabinet, shoe, harness, sash and blind, door makers, and all other labor Indirectly. TAtrti— -We would most respectfully recoounend the adoption of a clause prohib- iting children ander tbs ags of fourteen years from working In any shops or facto- ries. Next, ws Indorse and respectftilly recommend the adoption of the following sections: By the Committee on Corporations other than Municipal, sections three, seven, eight, ten, eleven, twelve, and thirteen. By Committee on Legislative Department, ws unanimously indoiss section thirty- three. By Committee on Chinese, we indorse sections one, two, three, four, Ave, six, seven, eight, and nino. B. WESTINI, , Secretary of the Bepresentatives of Trades and Labor Unions. Referred to the Committee on Miscellaneous Subjects. Also, the following memorial from the Journeymen Stonecutters' Association, of the Pacific Coast, against the contract system of labor on public work)!: WnEREAS, Thsre was a law passed at the session of the State Legislature of eigh- teen hundred and sixty-six and seven, enacting that all State work should be dono by the day, but its effect is nulliflcd by the passage of special Acts authorizing con- tract worlc; and, whereae, since the passage of said Act, there has been the following public buildlnga constructed, under the bead of special legislation ; First — The Deaf and Dumb building, which woe partially destroyed, in eighteen hundred and sixty-eight, by the falling of the walls, they being constructed in such a manner that they could not support the roof; and two years after, the State, by relief Acts, paid the original contractor forty thousand dollars (140,000) to rebuild the same walls ; and in the year eighteen hundri-d and sevonty-flve, when the build- ing took fire through defective Hues, the entire walls fell in complete mass of confus- ion, wherein, if said building had been constructed with half care, as to plans and speclficatious, the walls would stand for ages to testify to the solidity of their eon- stnictlon. Smmd— The State Normal School, erected at San Jtat, which has been a disgiaes to this commonwealth since Its first inception, and wo believe it is UMlay, after con- sidentble expense to the State in patching up a l«d job. rAi'rd— The College of Letters building, of the University of California, which the public investigation of the Bnlldiog Committee of the Legislature of aeventy-tcmr and scventy-nve proved to be the poorest constructed buildiug (both as to workman- ship and material) that could poeaibly be constructed with any show of decency, and a personal inspection from your honorable body will show the most glaring proof of tile foregoillg. Ibtirth—ibe Napa Insane Asylum, which was also by special Act, at an estimated cost, by the architects whose plans were approved, of dx hundred thousand dollan, but the State was compelled to pay some one million four hundcvd thousand dollais, an exccAS over oriclnal cost of eight hundred thousand dollais, and to^lsy there are portions of the building which are fast decaying. ri/lh—U the Branch State Prison building, at Folsom, where the contractor gava bonds to finish said building, but finally collapsed, cheating all the poor working- men,and his creditors, out oftheir hard famed money. When the Slate commenc«i suit against his bontlsmen to perform the contract, they Instituted aeoonter suit for damagra in the sum of thirty-six thousand dollara, and were granted judgment in the >ixli District Court, of Sacramento. Stith— It the preeeni contiact for the same work, which Is beios canisd on by Just such said actions. The memorialists could give a great many Instances, In the contract work on the Pacific Coast, which is a living disgrace, of which your honorable body Is perfectly cognisant, as thsy havs been pretty thoroughly ventilated in the public presa. K. WKSTINK, Secretaiy Trade and Labor Uaiona. Referred to Committee on Miscellaneous Subjects. HINOEITT RRPORT OH CHIRCSB. Mr. O'DONNELL presented a minority report fiom the Committee j on Chinese, aa follows: \J Ma. PacsiDBNT : The undersigned, a member of the Committee on Chinese, asks leave to present the following minority report: The power which, it is conceded, is possessed by the Legislatures of the re^MCtiva itatee to pass quarantine regulations, is conclusive of the right of a State to pr«voiit the landing of criminals or paupen upon her soil. If a State may, by virtue of her sovereignly, pass laws to quarantine a vessel for a single day then nhs has the power to continue such vessel in quarantine fyr an indefinite period. The power to prevent the landing of the cargo of such vessel, therefore, necessarily resides in the State. I heartily concur In the report of the majority of the committea In reepoct to tho neceMity of preventing any fnrther Chiness immigntlon. It Is nnanirnoasly con- ceded by all parties — by native Americans as wsll as by citixens of Irish and Germaa descent — that the coolie Is a curse, and that some power should be invoked to prevent the further importation of the ravolting creatures to these shores. Upoo that point 1 fUlly acquiesce with the maiority of your consmltteo. I dlsagifm with them only as to the means to be employed lo accomplish a great national lesalt. The coses in which the Supreme OiuR of the United Slates decided that untry and in this State to-day. And if this Government ever falls, and a monarchy Is established on its ruins, it will be the very reason that the [wople have not been educated properly^ that the demagogues have lefl them to stray from the doctrine that law and order must be preserved, and that the rights of private property must be respected. There is the danger. And I will tell you this: there is a principle in the science of government that is as true as mathematics and as eternal as the stars, that men will be protected in their rights of property. If they cannot be protected as the citizens of a republic, they will be pro- t^ted as the subjects of a King; and the history of the overthrow of free government, back to the very dawn of human annals, shows that free governments have been overthrown through that very fear of want of protection. It was that very fear which enabled the dtesars to erect an empire upon the ruins of Roman liberty. It was that fear of pro- tection that enai^led the Charleses and Philips to break the ancient Constitutions of Spain and destroy her free Cortes. It was that fear that enabled nearly all the monarchs of medieval and modem Europe to esteblish absolute governments upon the ruins of liberty, and it is that fear to-day that stands in the way of Republicanism in France. The fear of the Commune, sir, will enable the opponents of Republic- anism in France to defeat it if anything does. Ana it is that fear which will overthrow this Government, if it is ever overthrown. "But I do not believe it will be. I believe the people have been too well educated la the principles of their government to allow it. But there is the danger. One of the ablest and most liberal of British statesman said that no Government can stand where the ballot is universal, and as to the United States he said this: " At present every man, no matter bow poor, has a prospect of bettering his condition. He, therefore, is interested in maintaining law and order." But he appealed to the next century and said, "when the time comes that America was populated as thickly as France and Germany, and when a great majority of men will be com- pelled to remain poor, that they will not remain poor with the ballot in their hands." We have some exhibitions of that principle in this State at this time; and it is the duty of us to try and Inculcate among those with whomve associate and those who come after us a respect for the principles of American liberty, a respect for American government, a respect lor the rights of private property. If that is gone, everythin^f S"^ When I look back through the history of American and English liberty, from the day when John Hampden risked his magnificent fortune and his head upon the question of constitutional liberty, and see through wlist sacrifices and devotions &nd martyrdoms from that day to this, we hare arrived at this magnificent structure of American government, I feel as if I should like to do something to make it permanent, safe, and secure for those who come after us. We cannot do it, If we instill into the people a want of respect for personal rights and private property. When that is gone, your Government falls ; and I say that this whole report upon corporations is impregnated with the desire to undermine and overthrow the rights of private property. From the beginning to the end of it, I say, sir, that this mania — this political m^aria that has spread over the land — has reached the Supreme Court of the United States, and has caused that decision in the Supreme Court of the United States — and I say that the whole decision and the doctrines set forth in it are subversive of American liberty, and that they will, in the end, be overruled and set aside. Men will be upon the Supreme Conrt of the United States who will ignore and overrule that decision. If they do not, and it is carried out to its legitimate consequences, the people of this country are slaves — minorities slaves to majorities. Now, in regard to the railroad companies in this State, the statements are wonderfully wild and exaggerated. One gentleman said here, I believe, that the railroad companies were employing seven or eight Chinamen to one white man. That is not true. I understand that there are not more than one Chinaman to seven or eight white men. Gentle- men talk about this railroad having been built to a great extent by Chinese labor. It had to be built that way or not at all. Everybody knows that the interest of this State was to push that railroad forwani as fast a^ possible, and that could not be done except by the use of all the hands that could be employed. It was said that the railroad oom- panies had imported Chinamen. I understand that is utterly false; but they have maae use, to some extent, as other citizens have, of that kind of labor. It seems to me that every gentleman ought to understand that it is to the interests of California that the railroads of Callfomi* should be under the control of California men. They have been w owned thus far. What has been the result? Why, sir, when yon go ts far as the Central Pacific runs eastward, to Ogden, you find that the trids to that point comes to California, and upon the-etber side it goes to Ui» Digitized by le-otuer sn t^ Dec. 3, 1878. OF THE CONSTITUTIONAL CONVENTION. 549 £a>i And I bare been informed by a gentleman not connected with the railroad, that if the City of Ban Francisco had given her million of dollars, as she agreed to do, that the railroad would have been pushed one hundred miles further, and we would hare had all the trade of Utah. Everybody knows that if the Southern Pacific is owned and con- trolled by California men, that the whole trade of that part of the coun- try, almost to the Mississippi River, will come to California, and if it is owned by Eastern men it will go there. And yet you want to fill up your Constitution with burdens and provisions that will discourage any California man from putting a dollar into railroads. We all know that tne men who have controlled these railroads are rapidly passing away. Two or throe of the most influential and able of them have lately gone, and the time must soon oome when the roads must pass into other nands. Where is it going? There are not many men in California outside of the few who know how to manage it, that know much about railroad business. And of those who would be will- ing to try it, there are few that have the capital. And yet, if you put all these burdens upon it you simply drive out of the minds of that class of men any idea of controlling our railroad system. There are men in the East who have been in the railroad business for years, who have command of a great deal of capital, who would be glad to own our railroads, but we want to do something to encourage our own men to control these railroads. If you put these burdens upon them they go necessarily to Eastern men. 1 suppose that Gould In-day would give a large amount for a controlling interest in our roads. Then the trade of Nevada and every point a hundred miles east of this city would go to fill the eoifera of the rich men of Chicago, St. Louis, New York, and Boston, which now comes here to build up the same city which these gentlemen represent, and which they are endeavoring to ruin by this class of legislation. Why, sir, a gceat deal has been said about the members of this railroad company getting rich. Well, sir, would you expect them in such a magnificent enterprise as that to get poor? Would you expect an enterprise costing the millions of money that the Central Pacific Railroad cost to be so nicely graduated at the start that the men who built it would neither lose a dollar nor be in a position where they could make more than legal interest? Why, sir, the mechanic, the carpenter, the contractor, in estimating the expense of a house costing only a few thousand dollars, will sometimes make a mis- take of several hundred, and yet you expect that a railroad can be com- menced at the Pacific Ocean, run over almost inaccessible mountains, over deserts, through Indian countries, through undiscovered countries you might say, and that at the start you are going to calculate this thing down so nicely that the men who build it shall neither lose a dol- lar or make more than legal interest. Why, sir, would any man of common sense go into a hazardous business of that kind upon any such terms? Suppose some men were going to pro8paying six hundred thousand dollars — a little more than one half— because she believed that it never could be a successful business operation. That is history. But because it turned out success- ful, and a few men got rich, gentlemen say, "Take it away from them." Is that sense? Is that justice? Is that in accordance with any rule or system of laws the world ever saw ? Suppose I go out upon that public domain, and the Government says I may take a piece of land if I want to prospect for a mine there. I go and spend perhaps thousands of dol- lars, and find no mine, and I lose it all. The gentleman over here at the right goes on, and he finds and makes maybe a million. Do I go to him and say: "Give me your mine; pay into the State a certain por- tion of the products of that mine ; you shall not be allowed more than ten per cent, on your expenditure?" If that is not confiscation, what is it? Do gentlemen undertake to say that the State owns these railroads? I do not understand anybody to take such a position as that. Who owns the locomotives and the cars that run on them? Are they not private prop- erty? And yet you propose to hand over that'property — every car, every locomotive, every station, every machine shop which that company has built — you propose to take it all and give it over to three men, with a strong hand, just as if you proposed to take from the gentleman his homestead and give it to me. Don't they own it practically under the bill? Can't they control it without any other governing power at all — without any restraint whatever? What could the railroad companies do under that bill except to say to them: "Gentlemen, upon what terms shall we be allowed to use our own property?" There is no restraint upon them; there is no limit to their powers. No man can point to the line where it stops. These three Commissioners can in the course of their four years control millions of property ; property not their owii; property that does not belong to the State which proposes to give it to them ; property which belongs to private individuals; and yetthe^ have the power to take that property and control it, and make it utterly worthless, if they choose. It seems to me the position is too monstrous to be entertained by any body of sensible men like this. I have nothing further to say. I only say that I stand upon this principle: that the Legislature, under the decision of the Court, have the right to regulate fares and freights; that at the present time it is not policy to do it; that the people who are dealing }vith the railroad com- panies do not ask it to be done ; and that the power it possesses should be left with the Legislature that comes fresh from the people every year — ^the Legislature which, if it happens to commit an error, can cor- rect it. I shall not detain the committee any longer. SPRECB OP UK. DOWLIKO. Mr. DOWLING. Mr. Chairman: I only wish to place myself in a true light regarding how I shall cost my vote on this twentieth section. I am one of those that do not want to sail on an unknown sea without any instruments with which to find out where I am going. I do not want to sanction any innovation on well-established principles without knowing the reason why. The gentleman from Sacramento, Mr. McFar- land, says that the railroad problem will solve itself if we let it alone. Does the gentleman know — he ought to know — that the interests of the State and the railroad are to-day antagonized, and we want to see a tribunal that will harmonize the two interests. Again be says, that the majority is the slave of the minority. Well, that is known many a day ago. It is an old thing. But, sir, Mr. Hamilton says that it is of great importance in a republic, not only to guard society against the purposes of its rulers, but to guard one part of society against the injustice of the other. De Toqueville says no matter how strong a government may be it cannot easily escape from the consequences of that which it has once admitted as the foundation of its Constitution. Now, sir, there is a principle established— there is a grand principle underlying section twenty — and that is the principle upon which our government is established. The underlying principle is the principle of equity and justice. This corporation question is a very complex prob- lem, no matter from which side it is viewed. I have not heard a speech delivered on this floor since this subject was taken into considi'ration that was not for or against this corporation question. Now, sir, I am glad the lines that separated us in tne commencement here are getting to be obliterated. I am very proud, sir, that the line of demarkation is drawn so clearly and so well defined, with this monopoly on the one hand and anti-monopoly on the other. On a Question oT this kind, where a new idea is being considered, we should not be wafted away on the winds of popular opinion. We should be guided, sir, by reason, by common sense, and by good sound judgment. I heard one gentleman make an attempt to solve the problem, that is to express bis views, so that it would be just to the railroad, and just to the people, but his uncertainty showed conclusively that be had no fixed opinions on this matter. Now, sir, we want the Commission. A Commission is the only way to solve this question. Commissions want knowledge, they want power, they want control, they want honesty and justice. That is my idea of Commissioners — self-knowledge, self-control, self-government. These three alone rajsc them up like sovereign power. Now, sir, there is a reason why we should have the Commission and there is a reason why we should not have the Commission, and they are these: The reason «ve should have a Commission is because the people want to be represented and protected. The reason that we should not have a Commission is because the railroad companies or the railroad monopolies do not want to be bridled. They want to be let alone. They want to be let run rampant the same as they have for the last fifteen years in California. Again, sir. What are the functions of the Commission? Now the functions of the Commissioners are simply first to execute, and second to report to a higher authority. But gentlemen cannot see a higher authority than the Commission. That is an ignis fatuu.i — that is what always appears before their imagination — an absolute and autocratic Commission. But, sir, if I understand this section aright, I think that it exacts from the Commissioners a report annually to the Governor — though so far as I am concerned I would have them report semi-annu- ally— and through him to the Legislature. I also understand that by an amendment that has been offered here by the gentleman from Sacra- mento, I think, Mr. McConnell, that he provides that two thirds of the Legislature can remove these Commissioners for dereliction of duty or abuse of their trust. That don't seem to me like an autocratic Commis- sion. That don't seem to me like an imperial triumvirate. I spent my boyhood days under an autocratic government. I have been raised under a monarchical government, and I know what it is. But for the life of me I cannot see where this has any analogy whatever to a mon- archical form of government. And let me confess here on this floor that notwithstanding all the political corruption, notwithstanding all the railroad oppression, notwithstanding all the rascality that exists in public places, I would rather be a dog in a republic than to be a British Lord. Now, sir, that tells exactly how I stand about raonarchv. It is a well established principle, and as old as the right of eminent domain itself, that no man can De deprived of his life, liberty, or prop- erty without due process of law. That is plain enough. Now, again, our whole system of government is Commissioners. The President of the United States, Senators, Representatives, Governors of Stales, in fact, all of our officers down to a common Constable, are Commissioners, deriving their power from whom? From the sovereign. Deriving their powers from the people. But, sir, our sovereign is not found 'nei^ the fy a raa^c wand. Xhey have even entered into the sacred presence of the United States Senate chamber. Why, air, Senators are but machines and Representatives tools in their hands. In fact they run the ship of State. They have the control of the whole government, and certainly we cannot say but that the judiciary to-day in California, as well as in evenr other State in the Union, is dishonored with their contaminating influence. Now, then, what remains to be done to stop this avalanche of scandal. We have got, as far as possible, to remove the influence of corporate power from our body politic. You can remove it, and I defy any man to show a better way to remove it than by electing a Commission to supervise the highways — to correct abuses by the railroad corporations of this State. It underlies the whole structure. Because, if we have a Commission to legislate and to determine on these abuses, why Stanford and his cohorts and his minions will not come to the Legislature. They won't own Legislatures. The Hart bill, if it passed now, would not he treated, if we nad a Commission, the same as it was treated here last Winter. The Record-Union says, in criticising the speech of the Chair- man of the Committee on Corporations, that the right of eminent domain is simply the exercise of State sovereignty to condemn private property for public use, that the prospects of benefit to the public may be enhanced thereby. Well, what the Record-Union is trying to get at is this: it is trying to say that this property belongs to the corporations, and it is nobody's business. They can regulate it to suit themselves, independent of the people. But, sir, it is a new idea. It is a new idea, indeed, that \^hen the property of the citizen interferes with the pros- perity of the State, the sovereign power can be invoked and the property of the citizen can be condemned, but when the State interferes with the property of a corporation, there is a howl raised, and it is nothing but communism; it is nothing but confiscation. I am sick of such tom- foolery as that The Record-Union, or Mr. Stanford, need not be afraid at all. But the sooner they realize the fact that the power that can condemn the beggar's hovel, can condemn the biggest railroad, and can condemn all the railroads in the State of California, the better for themselves, and the better for the people of the State of California. We recognize the utility of railroads, and we recognize that they are almost indispensable to the existence of the State, and the people appre- ciate this; but they have abused their prerogative. They nave violated their trust. They have severed the links binding consanguinity between man and man. And instead of the railroads being a blessing to the State of California, they are a curse. They are getting to be intolerable. Now, sir, I will not detain this Convention much longer; but I will say that when the railroads came they were hailed as the messengers of prosperity — the heralds of joy. But they came, and with them c&rae hordes of Asiatic slaves, fresh from China, to compete with the citizens of this republic I know that Chinamen were in California before we bad railroads; but the floodgates of China were not opened until the great railroad magnates received subsidies from Congress, from the Fed- eral Government, to build these railroads; and as soon as they had received these subsidies they went to work and brought hither hordes of these lepers to contend against the honest working men of this country. The gentleman from Sacramento made an allusion to raining. He com- pared the railroad to mining. I would like to know who built the rail- road, and to whom does the railroad belong? If the question was asked on a solid basis, and answered from an honest standpoint, it would be shouted back that they belong to the people who paid for their oonstruo- tion; belong to the people whose money built the railroads ; and belonged to those men who went to work and toiled and worked to construct them. They belong to the United States. That is the solution of it. Again he says, that we came up here fh>m San Francisco to buck against the locomotive. We did nothing of the kind. We came up here from San Francisco to try to frame a Constitution for the State ofCali- fomia. We are not localized. We do not look at the interest of San Francisco alone. We look at the interests of the great State of California. Now, sir, with such tools and amounts of money taken from the public treasury, is it any wonder that the inarch of railroads has been a suocess in this StateT I don't think it is. The railroads, sir, have been a suc- cess in California. They have penetrated the remotest precincts of our State. The Sierra Nevadas, the Tehalchapi Pass, and the Colorado Desert, ofler no resistance to their onward march. They span the moun- tains. And who owns them 7 Xhey are owned by a few individuals whose concentrated wealth surpasses the wildest flights of imagination. We have lots of railroads, but we have multitudes of men who cannot even procure the privilege of obtaining work. They cannot even get it. Something is wrong. Everything is monopolized. Everything is monop- oly. Go and ask this question down in Tulara County to-day : " What is wrong?" and ask the big boa constrictor of California. The land is monopoiiied. The railroad owns the land. They seduced, as it were, these people to ^ on, a few years ago, and cultivate it, and now they want fifty and sixty dollars an acre for it That is what is wrong. Let us see what railroads are now. We have heard, in oonnectieech. He says: "First, I think the construction of the section is a violation of every principle of republican government. It sets up three men in this State, the selection of whom is left to chance," etc The selection of whom is left to the people of this State. The selection of whom is left to the sovereign of this State, and the responsibility is directly resting upon these men. They have got to be responsible to the sovereign and to nobody else. Even as the section states, coming, as it does, from the Committee on Corporations, but it is amended so that the Governor of the State will have supervision over them, so that they are to be subordinate to him, and they can be removed by the Legislature. I do not care whether it is the Legislature or the judiciary, it matters not to me, but when a man abuses his trust, I say that he ought to be removed. I cannot see how this great question of railroads can be solved, unless it is solved by three business men ; men that will go into the field and learn the exigencies of the occasion; that will study out what is neces- sary for the people and what is just to the railroad. And then, whether they are appointed or whether they are elected, if they solve the ques- tion, it amounts to the same thing. But the Legislatures in the past have proven themselves unworthy of our confidence. Besides, the Legisla- tures were only machines gotten up by corrupt Conventions; gotten up in thejnterest of capital; and now, sir, let us leave this (Question to the people, and the people will overcome all obstacles. I will vote for the Commissioners, sir. I will vote for them should the heavens fall ! BEMABKS or HB. O'DOMKRLL. Me. O'DONNELL. Mr. Chairman: When we contemplate Leland Stanford as the railroad President and capitalist, we see that the ambition of man is unsatiated. Give him all the Kingdoms of the world and, like Alexander, he will weep because there are no more worlds to conquer. [Laughter and applause.] Stanford, not content with his rule in the Korth, hae gone mto the South, and is now determined to control abso- lutely both hues of travel from California. The appointment of Railroad Commissioners to regulate the tariff of prices for the transportation of freight and passengers is a necessary measure; but, sir, their powers should be limited. If they betray the trust devolved upon them then the Governor of this State should have the power to remove one or all of the Commissioners, and to appoint others in their places. We are providing for their election; let us not forget also to provide for their removal from office. Now, in rerard to this section twenty, I intend to propose an amend- ment to it: "It shall be the duty of the Legislature to provide by law for the removal of any Railroad Commissioner guilty of malfeasance in office or breach of any trust reposed in him by the Constitution or laws of the State of California. The power to hear and determine complaints against railroads or other transportation companies shall not be construed as conferring upon them, or either of them, any judicial authority." I think, Mr. Chairman, that this section with that amend- ment, would be a good clause in the Constitution to control this railroad king, Stanford. I am satisfied that a majority of this Convention will be willing to adopt this amendment to section twenty. It covers every- thing; and I hope that the delegates in this Convention will vote for the Commissioners with these provisions. Thank you kindly. gPIECH OP HE. WTAIT. Mb. WYATT. Mr. Chairman : I shall vote to engraft section twenty, or something that is equivalent to section twenty, upon the* Constitution of the State of California. I shall do that in obedience, first, to what I consider my own duty in the matter, and secondly, because I believe that I shall be carrying out the will of the constituents who sent me here. It was said this morning by Judge McFarland : " Why are we dealing with the railroad subject? Who has appeared before the Com- mittee on Corporations 7 Who has oomplaincd of the railroads? Who haa said anything about the railroads? Let the railroads alone, as you let other people alone, and let the railroads regulate themselves as other businesses regulate themselves." I submit, Mr. Chairman and gentle- men of the Convention, that that is all very fine in a general way; but I submit that it does not meet the facts of the case with reference to the railroad corporations of the State of California. If I have any knowledge of the political history of this State for the last twelve years, every can- vass that has been conducted in this SUite has been upon the basis of the corporation or railroad question. Sometimes the people have seemingly won in these political contests, most generally though, in the ultimate results, the railroads have got away with the people. After having wrestled with the subject in this political point of view for the last twelve years, it was the abuse of the railroad corporations and other corporations supplemental to the railroad corporations, that induced the people of this State to call this Convention, and this Con- vention has been assembled for the purpose, and for the paramount pur- pose, of dealing with that question above and beyond all other questions. If I was followed here by petitions by my constituents; if I was fol- lowed here by lobbyists irom my constituents to urge me as to what course I should pursue in this case; if I was constantly followed up here and directed about this matter, I should say it was because my con- stituents believed that I was not faithful in carrying out the pledges which I have made to them. If there was any one question above another before them that elected me, it was that I agreed that I would vote for such provisions, that I would present and sustain such proposi- tions as they oelieved would be wholesome in regulating the rates of the railroads. And if they were to follow me here with petitions, by the thousands, it would be upon the principle that they believed I had for- gotten my pledges; it would be upon the idea that I had forgotten the issues upon which I run and upon which I was elected. I then am here in obedience to the agitation of this question before the people. It was discussed before them; it was agitated before them. This subject wai over and above all others in reference to voting. Not only with me, but so with almost every man that occupies a seat upon this floor. And hence it is that the people repose confidence in our honesty, in our integrity, and in our manliness, that we will discharge the duties upon this floor that we promised we would discharge when we made speeches before they elected us. It is objected that this section providing for the Com^nission will give too much power into the hands of the Commissioners. Mr. Chairman, that government fails of its duty, and fails in the discbarge of its duty, that IS not equal to meeting the emergencies b^ which it is surrounded. When it is necessary to meet an evil of one kind the government must meet it. Wlien another and a different kind of evil arises, the govern- ment must meet that. When you have no railroads you do not want any Railroad Commissioners. When you have railroads, if you deem it necessary to have Railroad Commissioners, if all other expedients fail to govern the railroads, then it is the duty of the government to form a Railroad Commission. The question is : Who shall bell the cat? That has been the question before tne people of the State of California for the last twelve or fifteen years. We nave been elected for that purpose, and I for one will endeavor to do it, in the shape of this Commission, if I can get a majority of the Convention to sustain me in that action. I conceive, Mr. Chairman, that it would be worse than idle — that it would be folly— to have a figurehead Commission — a Commission such ' as the Legislature, at the last session, furnished the people of the State of California; a Commission even like the first Commission instituted, want- ing power enough to grant any retnedy to the people. If we have any Commission let it be an eCTective Commission. Let it be one as Well in truth as in name, that can give some remedy to the people. I further want that Commission planted upon such a foundation as that it is not liable to be overturned every Legislature that meets. For we are well aware that the railroads have to elect very few members to the Legisla- ture in order to control the Legislature. Other members, not in the interests of the railroads, come with projects of their own. The projects of the individuals are pooled with the railroad members, they succeed in getting a majority of one or two in either branch of the Legislature, and then it is that the purpose is thwarted and prevented frorii being put into the form of law. I, then, want the Commission above the Leg- islature, practically speaking. I want the Commission so that they can act responsive to the behests of the people, and not the Legislature. It is said that the Commission will be clothed with extraordinary power. Then many other officers of government are necessarily clothea with extraordinary powers, be it in a republic, monarchy, or any other char- acter of government that you may take. Some officers of^ government must necessarily be clothed with authority. The Kxecutive of this State is clothed with wonderful authority. When it is looked at in all its length and breadth, with power to award life or death, it is almost immeasurably above the power proposed to be given to this Commission. Take the judiciary. They are under no bonds. They are clothed with a public charge. Every twenty years the entire wealth of the country passes through their hands — so the history of judicial matters informs us. Thej[ deal not only with the property of men, but with the lives of men. This Convention is clothed with no such powers as these. No other part of the Government exists with such powers as the Judicial Department of this Government. You have Generals that you send out into the field who have no law, but are a law unto themselves; and yet it is a part of the Government, and a necessary part of the Government, and an absolutely necessary part of the Government. And if it becomes necessary for us to have Commissioners clothed with the powers in order to curb the greed of the railroads, we must have Commissioners of that character. We must either govern the railroads or the railroads will govern us. We must either govern concentrated and monopolized capital, or it will govern us. We must either meet this question — and meet it in that shape that we can do eSective work against the encroach- ments of the corporations upon the powers of the people — or else our work is useless. I do not want a Commission with limited powers. I want one with power ample to grapple with the power that they have to grapple with. Take a railroad corporation, like the Central Pacific Railroad Company, absorbing all the other railroads in the State. Hav- ing been donated government land and money, and authorized to issue first mortgage bonds on their road — having all these privileges voted to them by the Government — they say that these donations were made by the Federal Government, and that the State has no right to control them. That was about the proposition brought before the Legislature of the State by Governor Stanford and those that he pretends to represent : " We have received these liberal donations from the Government of the United States; we have been endowed with certain rights and privileges by the Government of the United States; and you, the Legislature of I the State of California, being a subordinate branch of the Government (^ 552 DEBATES AND PROCEEDINGS Tuesday, of the United States, have no ri^ht to pan laws regulating fares and freights. You are interfering with our rights under the laws of the Government of the United States." For the last year or two, I believe, that point has been abandoned hy those who represent the railroads, and they no longer claim this high privilege; but now they sa^ that — notwithstanding all the millions of donations that have been given by the Government, State and Federal — yet, that the wiser policy would be not to regulate them, but to let them regulate the people. Go to them and ask them how much they have expended, and they will answer as though it is impertinence upon your part, and they will inform you nothing upbn the subject. Ask them what their running expenses are, and the same answer is ^iven you. Ask what are the gross receipts, and the same answer is given you. The only thing you do know is this, that they have the carrying trade of the State, in pas- sengers, freight, and everything that is transported from one portion of the State to another; that ther charge you so enormously that you are simply the hewers of wood and drawers of water, and they are the ones that fare sumptuously everv day. Take one of them when he commences as a member of a corporation in Sacramento, fifteen years ago, worth ten or twenty thousand dollars, at the outside. I would ask if the State of California and the United States have not reasonably rewarded him for his services by paying him a million dollars annually for his services. That certainly ought to be a reasonable compensation for the services of any gentleman that we can conceive of. You cannot set a limitation to their reaching out. There is nothing too low, too fine, or small for them to reach for. There is nothing too big or too high for them to reach for. If you travel up and down the road you will find that they are engaged with every candy boy in the monopolyof candy peddling on the cars. If you stop at one of the depots, the very hacks belong to them, and are a monopoly in connection with the railroad. The Central Pacific Railroad Company, in connection with the Union Pacific Railroad Company, has not only spanned the continent, but it has branches throughout the length and breadth of the State of Califor- nia, and is reaching down and building the Southern Pacific Railroad, to span the continent south of us, all under the grasping mind of one chief spirit. If you consult the public prints, and take what the papers say, you will find that the receipts of those railroads sum up to fifteen itad eighteen million dollars per annum, and that the net receipts of these railroads are from nine to eleven million dollars per annum; that the net receipts of the Central Pacific Railroad Company, since its con- struction from here to Ogden, have been about forty-nine'millions of dol- lars. Aggregated then with this vast capital, owning all the railroad lines of this State; owning largely the river transportation of this State; own- ing the steamship lines that ply up and down your coast to the whole extent; owning the Oriental steamships that ply between here and China and Japan, under subsidies from the Government; owning your street railroads; owning the ferry at Oakland, and the candy factories of the State'; owning the lines that haul your passengers to and from the hotels; owning all these vast ramifications in society, I ask if it is not time that thegovemmental hand was laid upon themT witat controls this vast capital aggregatedT Aggregated wealth is »88'*8*'*<1 greed, and aggregated greed knows no point upon which to stop except to consume everything that comes within its reach in a money point of view. This very corporation, with the various ramifi- cations that it has in the State, draws to itself the surplus money of the State, just like the free rays of the noonday sun dry up the moisture upon the damp ground. It consumes all the financial interests of this State. Four or five or six men aggregate all of the wealth — wealth that is unknown almost to this age, and to former ages unheard of. They have this wealth so vast that men speak of millions and millions of dol- lars, and they do not conceive of the magnitude of the sums of money that they speak of. We have got so used to big figures by reason of the civil war tnat we have had, that we have no conception of the vast amounts that we talk abouL Then, I ask, how is any individual to grapple with this mighty corporation? How is any individual man to right himself as against the powers of this corporation? How is any individual to stand out when your Legislature, and your Governor, and your organized society is not able to put any restraint upon them as yet? I ask if it is not about time that this Convention should say that they would act upon this matter, and act upon it efficiently : act upon it as though they intended their action to reach the evil. While I do not desire to destroy railroads; while they are an institution that cannot be done away with ; while they are one of the institutions of this age that the people must have, and will have; yet they will be too expen- sive if we have them at the cost of liberty and the rights of the people. They must be controlled. They must be put under the strong hand of the law. That people is the freest — that is the most perfect lil^rty, as I heard defined the other day, where there is a perfect law perfectly administrated. We want the railroads under the law, and we want the law administrated to the railroads, and we want their strong hand and their strong power curbed. Gentlemen, I am for the Commission, and I do not want the powers of the Commission lessened from what it is reported by the Committee on Corporations. I am perfectly willing; to have that section as proposed by Judge Campbell, oy which the rights of the Commission will be more sharply defined, more penalties introduced ; by which the section will make itself more self-operating than it is at the present time. But I do not want the powers of the Commission curbed. I want the powers of the Commission to be strong enough to meet the powers of the railroad, and in meeting the railroad you do not meet men of flesh and blood, but you meet men of capital and greed in a corporate capacity, without a soul. I hope then, gentlemen, that the section will only be modified so as to make it more specific; so as to more specifically specify the rights of the Commissioners; so as to make it more effectual in the hands of the Commissioners; but not so as to give the Commissioners less power. I am, therefore, in favor of section twenty, and am willing to vote for such further specification of powers as in my opinion will make it more effective. But I am not in favor of making it more limited or weak at regards the powers of the Commissioners. 8PII0B or MR. DCDLKT, Or aOLAMO. Mr. DUDLEY, of Solano. Mr. Chairman : I desire to ofier a few words upon the subject under consideration here, this section twenty of the report of the Committee on Corporations. It will take me but a few minutes, however. I am in favor of a Commission, having a foundation in the organic law of the State, and so firmly grounded thai it cannot be wiped out of existence. I believe that the Commission ought to have tb« power to acquire the knowledge upon which intelligent action can be based. I believe the difficulty in the past has grown out of the fact that sufficient knowledge could not be obtained. But I cannot bring my mind to the support of the section as it now is. The power — the extrant power — that is there given to this Commission, is certainly, so far as th< United States is concerned, unprecedented. I believe it to be unneces- sary and uncalled for, and, to my mind, it is dangerous. I believe thst this Commission ought to be endowed with power to investigate the affairs of the companies, to examine their books and their papers, t« ascertain their receipts and disbursements, and, in fact, to acquire the requisite knowledge upon which intelligent action can be based. They should be compelled to report to the Governor, or the law-makine power, and leave it to the people, through their Legislature, to take such action as may be required. It was an open question, for twelve or fifteen yean, whether there was any power in tne people to regulate these corporations. I believe it is generally conceded at the present time, that that power exists. Very few, if any, deny it Having reached that point, why w« should desire to get rid of that power and place it in an arbitrary Com- mission which is above and beyond the control of the people, as much to aa the corporations have been, I do not understand. I believe that hav- ing finally established the right on the part of the people to regnlats these corporations, the next step to be taken is to acquire the requieit* knowledge upon which intelligent action can be baaed, and then to act by the law-making power of the State. With a view to modifying this section — in case no one else oflera an amendment of the kind — I have prepared one. I believe it is not in order at the present time. I asp a part of the section introduced by Judge Campbell, which is propositioo number eighty-two on the file. I have also made use of the section is reported by the Committee on Corporations, and have modified it accord- ing to my own judgment. If the Convention should vote down the amendments pending, and an opportunity offen, I would like to oSer this amendment. I desire to say, while I am up, that I dislike very much to disagree with that portion of the Convention which thinks as I do on tbe main question, and that any vote I shall cast shall be cast with a view to modifying this section in the manner spoken of. I do not feel compe- tent to discuss this question to any great extent. Nor do I propose to. I simply desire to oner a few remarks in answer to the gentleman from Sacramento oonceming the decision in the Granger cases. I am not a lawyer, neither have f read the decision very carefully, but if I under- stand the groundwork of that decision it was this: that whstern should become a monopoly — it mattered not whether it was in oorpont* hands or private property — if it became a monopoly, and by virtue rf such monopoly it assumed proportions that enabled it to oppress the people, or to take from them an undue proportion of their earnings, then the law had a right to interfere. I oelieve that to be a correct principle. Again, it has been often urged in this debate that Ihs advantages to California of having the Central Pacific Railroad nnder the control of citizens of California are very great; that had it not been for the fact that men interested in California had succeeded in main- taining control of the Central Pacific road, that the trade would hare gone east instead of coming here. It was urged this morning that if the Southern Pacific Railroad should be built by eastern eapitajfists thst the inland trade would go east and not come here. Now I understand that there is no power in any railroad or other means of transportati(ni to force the trade from one point to another along the line of commoni- cation unless it is by discrimination. Now if we admit that any man or set of men owning or controlling any means of communication have the right (the right carries the power) to so discriminate as to carry trade where they see fit, and prevent it from flowing in its natural chtn- nels, we admit what I believe to be a wrong principle, one founded upon a wronj; idea of the rights and privileges of corporations. The right to discpminate is a dangerous power, and one that we ought at all times to subject to control. With the consent of the committee I will read my amendment. It proposes to amend section twenty by striking out all after the word "commission," in line seven, down to and indud- ing the word "law," in line sixteen, and insert the following: " Sic. 20. Three Railroad Commissioners shall be elected by tbe quali- fied voters of this State, at the regular gubernatorial elections, and whose salary shall be fixed by law, and whose term of office shall be fbor years. They shall be qualified eleotora of this State, and shall not he interested in any railroad corporation, or other transportation company, as stockholder, creditor, agent, attorney, or employ^, and the act of » majority of said Commissioners shall be dcemecl the act of said Com- mission. Said Commission shall have the funeral supervision over all railroad corporations and other transportation companies in this Slate; they shall investigate all charges of extortion, of discriminatioD, or of unmir dealing; they shall have power, and it shall be their duty, to examine tbe books, papere, and documents of such companies; to inves- tigate their affairs, ascertain their receipts and disbursements, their manner of doing business, and their rates of charges for freights sod fares. Said Commissioners, and each of them, shall have access to all the books, papers, and documents of all such corporations; and any officer of any such corporation having the care, custody, or eontioi of t^ Dec, 3, 1878. OF THE CONSTITUTIONAL CONVENTION. 653 such books, papers, or documents, vrho shall, at any reasonable time, refuse to any Commissioner access thereto, shall be deemed guilty of a misdemeanor, and fined not more than five thousand dollars or impris- oned in the County Jail not exceeding one year. Said Commissioners, and each of them, shall hare power, in the discharge of their duties, to administer oaths, issue subpoenas for and examine witnesses upon oath; and any witness who shaH peijure himself before said Commissioners, or either of them, shall be liable to all the. pains and penalties affixed by law to the crime of perjury ; and any witness who shall fail to attend, or refuse to testify in any material matter, shall be punished for contempt by the District Court, as in other cases of contempt. Said Commissioners, or a majority of them, shall have power to institute suit, in the name of the State, against such corporations, to enforce their demands for information, or to enforce their privilege of examining books and papers, and to compel such companies to comply with the law and with the terms of their charters. Said Commissioners shall perform such other duties as may be prescribed by law; the^ shall make a full report to the Governor, annually, of all their proceedings, and of all information obtained which may be deemed important. Nothing in this section shall prevent individuals from maintaining actions against any of such companies. It shall be the duty of the Legislature to confer all such further powers on the Board of Kailroad Commissioners as shall be necessary to enable them to perform the duties enjoined on them in this and the foregoing sections." I know that it is urged against an amendment of this kind that it contains what may be called legislation. It is true that it is open to that objection. But there seems to be a general disposition here, and there has been in all the States that have held Constitutional Conventions in the past ten or fifteen years, to legislate to a greater extent than formerly. I see that all of the late Constitutions are more voluminous than the old ones. I suppose the reasons are the same as those that incline members here to legislate a little in this Constitution. If the principle upon which the legislation is based is right, and if the legislation is correct, there certainly can be no difficulty. If it is wrong, of course it ought to be avoided. After the Convention shall have passed upon the amend- ments pending, if an opportunity offers, I shall offer this amendment. The principal difference between this and the report of the Committee on Corporations is, that this Commission will not have absolute power, but it will have all the power necessary and reasonable. I do not agree with the remarks of those who express a lack of con- fidence in the Legislature. It is true that some of our Legislatures have earned unenviable reputations, particularly upon this question. But I have had the pleasure of conversing with quite a number of gentlemen that have served in California Legislatures when this question — the control of corporations — has been brought up. These gentlemen are sound upon this question. They voted for the Freeman bill and they voted for the Archer bill. These gentlemen have stated to me that they were compelled to act without the information necessary to enable them to act intelligently; that they were, comparatively speaking, taking the step in the dark; that they did not know whether those acts would be just or not. If a Com- mission can be established with the power to acquire the requisite knowledge, that knowledge can be presented to the Legislature in a proper form. If any grievances are being suSered by the people they can be specifically pointed out, and that Commission would be enabled to point out a specific remedy. I have no hesitancy in trusting to the Legislature to remedy any grievances that can be found. I believe the people will never elect any Legislature which will not act whenever^a specific remedy may be suggested. I do not believe that we are the only honest men in the State. , I am satisfied that our constituents are quite as capable of electing honest men to serve in the Iiegislature as they were to elect honest men to serve in this Convention. There are any quantity of honest men who are just as capable as those who are repre- senting them in this Convention to-day, and they are as likely as any others to be sent up here. Quite a number of the delegates here have been honored with seats in the Legislature of California in the past, and I believe the;^ were as honest and intelligent then as they are now, and if their constituents see fit to send them here again, they will act just as honestly and intelligently as they will in this Convention. Mb. BIj.^CKMER. I would like to inquireof the gentleman whether his amendment gives the regulating of fares and freights to the Com- mission or the Legislature? Mb. Dt7DLGY,of Solano. It is patterned after the Massachusetts law, and it will leave it with the Legislature. I incorporated the same ideas that I find there. My first draft of it did not include this part as to fines and penalties, etc., but, on further consideration, I copied into it a part of the proposition of Judge Campbell, number eighty-two, which pro- vides for fines and penalties for non-compliance with the demands of^the Commission, provided such demands are warranted by the Constitution. Me. GBACE. Mr. Chairman: According to the rule, we should each day take a recess from twelve o'clock until two o'clock. The CHAIRM VN. From half-past twelve until two. Ms. GRACE. I move that the committee now rise. Mb. ESTEK. I move that the committee now rise, report progress, and ask leave to sit again, for the reason that there are one or two gen- tlemen absent who will be here immediately after recess, who for special reasons cannot be here to attend to it now. The motion prevailed, on a division, by a vote 66 ayes to 31 noes. IN CONVENTION. Thk president. Gentlemen: The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have made progress therein, and ask leave to sit again. Mb. ESTEE. 1 move that the Convention take a recess until two o'clock p. M. Carried. 70 AFTERNOON SESSION. The Convention reassembled at two o'clock f. x.. President pro tern. Belcher in the chair. Roll called, and quorum present. THK BjklLBOAD COMMISSION. Mb. ESTEE. Mr. President: I move that the Convention now resolve itself into Committee of the Whole, the President pro tem. in the chair, for the purpose of further considering the report of th^ Committee on Corporations other than Municipal. Carried. IN COMMITTEE OF THE WHOLE. The PRESIDENT pro tem. Section twenty and amendments are before the committee. SPEECH OF MB. HEBBINOTON. Mb. HEBRINGTON. Mr. Chairman and gentlemen of the commit- tee: It has not hitherto been my practice to weary this body with long speeches. There are some considerations, however, which have not yet been submitted, and it may not be improper for me at this time to sub- mit them. I do submit that a more practical view of this question is susceptible of being taken and considered by this committee. The com- mittee have ranged from the doctrine with reference to the power of the Legislature to control these corporations; from the power of the people to enact a Constitution whereby this same power shall be conferred upon a Commission. Those who hav^ opposed this Commission have taken the ground that these corporations <»wn. In absolute right, the property which is vested in them; that they are absolutely free from all control, and ought to be free from all legislation; that they should be entirely free and absolutely absolved from all obligation to obey the mandates and behests of the Legislature in regard to the control which is sought to be exercised over them. That is the reasoning of the abl6 and ingenious argument which the chief magnate of the corporation has placed upon our desks. They have presented facts and figure8,and they^ have sought to establish the doctrine that these corporations were, and of right ought to he, free fh)m all control by the Legislature, either under the police power, or under the power of administration. It is well understood by this committee, by every member of it, that the powers of this State are divided into legislative, executive, and judicial. That subsidiary to these powers are other sovereign powers which are denominated the police power, the power of eminent domain, the power of taxation, and some other authority and powers which the people of this State, in their sovereign capacity, have the right to exercise. Judge Cooley, in his great commentary upon constitutional limita- tions, lays down, as a proposition settled and fixed, that it is not within the power of the Legislature to divest itself of this sovereignty. Now one of the attributes of sovereignty is the exercise of the police power. I understand that the scope of authority has been fully discussed before this committee. The great principle upon which it is exercised was announced by the gentleman from San Francisco, Mr. Barbour, in the lucid and explicit argument which could not be misunderstood ; and it is baaed upon the trusteeship of these corporations, which is the condition, and the only condition in which they are supposed to exercise it. That is the only way in which it can be exercised. The gentleman from Sacramento, Mr. McFarland, has conceded m his argument, that the Legislature has power to regulate freights and fares. In the argument of Mr. Edgerton, a few days ago, he.endeavored to prove and to satisfy this Convention that there was no such power in the United States to reach and control the railroad corporations in this State, and other cor- porations doing a common carrying business. Having mentioned the questions at issue here, and the proposition being settled, that it is within the province of the Legislature and within the province of this Convention to control these corporations under the police power of the State, it becomes necessary to consider the practical effect of the section and the proposition of a Commission.' Upon this proposition I maintain that the discussion has been mere logic — not confined to the direct issue, nor to those matters which should be presented and considered more in detail by this committee. I mean to say the practical effect of the powers proposed to be conferred upon this Commission. Now, what will^ be the effect ? Let us suppose our Commission to be organized ; that it is now ready to operate; that it has absolute power to pass upon the various (Questions that have been declared here as the foundation of its authority, and as giving scope and extent to that authority, what effect will it have? It is declared in this section twentieth, that "the Commissioners shall have the sole power, and it shall be their duty, to correct abuses by railroad corpora- tions or other transportation companies ; establish rates of charges for the transportation of passengers and freight by railroad or other trans- portation companies, and publish the same from time to time, with such changes as they may make," etc. Now, the question is, what is the scope and extent of that power, and to what extent may the Legislature provide for its exereise? And if that power e^xtends to adjudication, what amount of time will be spent by the Commissioners in rectifying and correcting abusea? There is the first question presented to this Convention, and it is a practical question. The next thing is that they are to establish charges, or rates of charges, for the transportation of passengers and freights by railroad and other transportation companies, and publish the same from time to time, with such changes as they may make. The practical question suggested by this {)rovi8ion is, what amount of time would it require for these doramissioners to obtain a sufficient amount of knowledge to enable them to pass upon the question of regulating freights and mres? What amount of experience, what amount of understanding, what extent and scope of knowledge, and what degree of judgment, are requisite to pass upon these questions, and put them in shape so as to.-h^ve a practiaal ''^""°'" Digitized byL.OOgTe 554 DEBATES AND PROCEEDINGS Tuesday, The next question is: "Report to the Governor, annually, their pro- ceedings, and such other facts as may be deemed important." Of course that is a subsidiary question, embracing within itself part of the propo- silion last read. "To hear and determine compUinis against railroad and other transportation companies." Here is another question that presents itself for practical consideration. " Hear and determine com- plaints against railroad and other transportation companies." The gen- eral principle is declared, but there appears to be no mode provided to carry it out. A provision to enable them to carry out this principle would seem to be requisite. One of the roost important questions that will rise for consideration on this subject, is the amount of lime required for the consideration of the various questions that may be presentM before these Commissioners for their adjudication and decision. Wheu one of these questions shall be presented before them, and its members come to consider the force and effect of the various circumstances, and the facts produced before them, the next question will be, bow many of these same questions are pending in the same localities or elsewhere in the Stats, and what time will be necessary for these Commissioners to devote to the subject of investigation in the various places where these charges may be made. They shall "affix penalties and enforce them through the medium of the Courts, and perform such other duties as may be prescribed by law." Here is another question which presents itself for practical solution. How are these penalties to be affixed ? First, they have been authorized to hear and determine complaints themselves. Then they are to affix these penalties and enforce them through the medium of the Courts. Well, if this Commission is estab- lished to determine these same questions, and they are then to [j&ss through the Courts, where is the use of an investigation before the Com- missioners? Now, it is true there is a provision in this section which says : " Nothing in this section shall prevent individuals from maintain- ing actions against any of such companies/' I suppose that provision, as a matter of course, will relegate parties to the Courts in those cases where they are not given their rights under the regulations and restric- tions of the Commissioners. However that may be, in any case these same parties, as far as the provisions of this instrument are concerned, have a right to appeal to the Courts. Now, I am simply suggesting a practical view that ought to be taken, and announce that I am in favor of a Commission, ana it is because I am in favor of a Commission that I am suggesting the difficulties which may present themselves, in relation to these identiciil propositions. I desire, if it is possible, that some of these difficulties may be avoided which seem to present themselves, that I may be able to support it, and support it conscientiously and freely, as I desire to do. It seems to me that the powers which ought to be conferred upon this Commission are just such powers, and none other, as reason and common sense would suggest. Now, what are the powers that ought to be conferred upon this Commission? First, the power that the Legislature has now, to exercise control over these corporations. It is manifest upon the face of things that it would be almost impossible for the Legislature to obtain the requisite information from the time of the election until the meeting of that body, or to the close of its session, to enable them to pass intelligently upon the very questions here proposed to be passed upon by this Commission. Is it proposed, therefore, to leave the authority of fixing freights and fares in the Legislature, where it is dead to intelligent action on the part of the Ijegislature, unless some steps be taken whereby that body may be informed with reference to the matter? If this is proposed, we must make the necessary provisions to furnish the Legislature with data, to enable them tt> act intelligently. The next question is in relation to the |M>wer of fixing and determin- ing rates of freights and fares. There may be some little ground for this difference of opinion here, as to whether the Legislature ought or ought not to retain tnat power, whether it ought to be vested in the Leg- islature or in the Commission exclusively. As far as I am concemad I care very little. I prefer to vest it in the Legislature, and I prefer giving to these Commissioners a kind of judicial authority, which will enable them to act intelligently, that will require sumptuary action, that does not require the tedious process of an investigation in the Courts to deter- mine the facts and circumstances of the case. Now I am suggesting these practical considerations of this subject to the committee, fully satisfied that they are all of one view in this: that they are all endeavoring to arrange some practical system whereby this whole matter can be adjusted in a way that shall do justice to the peo- {>Ie, and do no wrong to the corporations. It is manifest that the Legis- ature cannot remedy these evils. Now we can arrive at a just basis by giving to these Commissioners such powers as may be necessary in the performance of the duty assigned them. I am constrained to believe that the plan adopted here will have to be somewhat different from the plans adopted in other States. It is in vain to talk about restriction of the railroad companies, unless it be restriction that is practical and effectual. It must be effectual. There must be some restraming author- ity. It has been said here that this is establishing a despitism ; but what greater despotism is presented for our consideration than the des- potism of these aggressive corporations. It is said that when a tamecof wild beasts had placed his h^ul in the lion's mouth, and felt the pres- sure of the teeth upon his head, he called to the manager of the men- agerie in deep solicitude, and inquired if the animal was shaking his tail, and when informed that such was the case, replied, " Then I am done." We find ourselves in the same attitude. We have this corpora- tion lion on exhibition, and we have our head in his mouth, and we are now inquiring if he is shaking his tail. If he is, we are done. Now, this is the simple proposition. Here is a power that has been created and fostered by the government of the State and of the United Statesr It has amassed capital until — as far as financial resources are concerned — it is more powerful than the State of California or any other Slate. If there are any restraints thrown around them they must be effectual ; and in my opinion we can make it no more permanent or effectual than by putting it in the Constitution. It is simply oompelling the railroad corporations to deal justly with the people. The propoei- tion presented to us is upon what basis will you fix freights and fares. Upon what basis? The railroad magnates, when they fix rates, go to their patrons and inquire bow much profit they make, and the rates are fixed to cover the amount of profits. That is a very certain basis. It is just as sure as the profits upon the shipments. There is no mistake on the part of the railroad companies. If, upon a carload of freight the profit is eight hundred dollars, then eight hundred dollars is the price of shipment If itissix hundred dollars, then six hundred dollare is the price of shipment. If it is five hundred dollars, then five hundred dol- lars is the price of shipment. That is the doetrine upon which the rail- road companies fix their rates ; that is the doctrine upon which their whole freighting system is carried on. Now we propose to fix them on a different basis, and if we can arrive at some solution of this question, and place it in this section, whereby these powers shall be so placed that a proper restraint can be placed on these corporations, we will deserve the thanks of the people. I believe the result can be obtained by good, patient, practical work, and in no other way. 8PIICB or MR. WIL801I. Ma. WILSON, of First District Mr. Chairman : From the number of days this honorable body has been considering the question under discussion — section twenty, as reported by the Committee on Corponttions other than Municipal — and the number of gentlemen who have spoken upon the subject, I naturally infer that the matter under consideration is regarded as of the utmost importance. It should be so treated. But I fear my power to interest or enlighten those who may give me their attention at this late period, when the subject has been so ably discussed and probably exhausted. The traveler who has often passed over the same route no longer enjoys the scenery, but merely enduring the trip as a necessity, hastens on to his journey's end. So, I fear this Con- vention merely tolerates the speaker and looks onlv with pleasure to an early termination of the debate. Nothing, therefore, but an impera- tive sense of duty impels me to intrude myself at this time. I find that the governmental control and regulation of railroad companies is one which has agitated and taxed some of the best minds of the age, and that profound thinkera have admitted its intrinsic difficulties and perplexities. It is indeed a subject out of the line of ordinary busi- ness, and presents anomalies nowhere else to be met, overturning even, to some extent, or at least creating exceptions, to some of the most treasured theories of political eeonomr. 'The principles of free trade, the most favor6d of all doctrines of tlie publicists, are (bund to have a limit in railroad affairs, for left to themselves competition ceases and nionopolv results. The railroad problem, as it is justly styled, has been discuBsecf over and over nuny times in England, Belgium, France, and Germany, as well as in different States of the American Union, and each time, when it was supposed the solution had been reached, the phantom glided away as delusive as human hopes. We have gravely discussed here the questions of competition. Stale ownership, mileage rates, maxima rates, discrimination and abusM. We have heard the railroad kings denounced and an oppressed people bemoaned, but after all we are merely acting over again scenes ana pans that have already been seen and acted in other places. How fully his- tory repeats itself. In the language of the wise man of Israel, "the thing that hath been, it is that which shall be; and that which is done, is that which shall be done; and there is no new thing under the sun." We have had great Granger excitements in the great States that border the Mississippi, and numerous remedies against railroad abuses hsve been proposed; numerous laws have been parsed, altered, and repesled. Yet the true remedy has not been reached. I am not, therefore, disre- spectful to the honorable committee here in doubting if they have reached the "consummation so devoutly to be wished," and have given us a perfect solution of the great railroad problem. It is no discredit to them if they have failed in an endeavor so often tried without eucoeas, and so difficult in its nature. I doubt if it is to be the glory of this Con- vention to send back to Iowa, Illinois, Massachusetts, England, France, and Germany, the news that we have mastered the subject that hu so much distressed them. We should approach the subject as one to be determined on principles of reason ana common sense, and if wise ws will gladly avail ourselves of the experience of other Stales and nsuons on this suoiect. The discussion here necessarily involves: First- Abuses and wrongs existing or likely to happen. Second — The power of the State to regulate and control. Third — The expediency of the exercise of that power ; and. Fourth — The special remedy of three Railroad Coromiasionen, with Ihe powers proposed by the committee. First — As to the abuses practiced by railroad companies little need be said by me. Already their sins have been detailed with ^reat relish on this floor, and anathemas loud and deep have, in all bitterness, beta pronounced against them. If we accept as true all that has been said here against them, they have indeed "done those things they ought not to have done, and left undone those things they should have done." But I am not their apologist nor panegrrist on this floor. The proposi- tions which I seek to maintain demand at my hands neither praise nor blame of these corporations. Wo all agree upon the fact that oorpors- tions are necessary to the accomplishment of great ends at this pertod of the world. The vast enterprises of the age are beyond the rwch of private fortunes on this continent, and can only be accomplished 1^ aggregated wealth and organized corporations. They have certain advantages over private persons, and tnerefore have become numeroos and powerful. Naturally, great railroad companies become great moDop- olies, and have a large capacity for good and evil. Where great power exists there is a susceptibility of abuse. Men are controlled by self- interest, and where self-interest and power combine, abuse is not only possible, but probable. Believing therefor^ as Ido, that the railroad Digitized by VjC- Dec. 3, 1878. OF THE CONSTITUTIONAL CONVENTION. 555 aompanies of the eountiy hare accomplished much for the people, and are a standing evidence of our progress and greatness, I also believe that their power is so great, their importance so vast, and abusra so probable, that the State must give them especial attention and exercise over them a wholesome control. Second — As to the power of the State to regulate and control the cor- porations of its own creation, there is no longer a doubt under the decis- ions of the Courts. It matters not whether this is derived from the original power reserved by the State under the Constitution and law, to alter, amend, and repeal all laws on the subject of corporations, or from the police power of the State — it is sufficient that the power exists, and that the question has now passed beyond the realm of discussion. The only limit to the power seems to be that it is confined to the boundaries of the State; that it must be regulatioa'and not confiscation, and cannot divest vested rights. When, therefore, I have heard gentlemen on this floor long and earnestly contend for the existence in the.State of this conceded power, I felt like using to them the language of Oliver Wen- dell Holmes, in his lines to an insect: "Tbon •a;est an nndinpnted thioc la such a solemo way.** Third — As to the expediency of the exercise of the power of regulation and control within reasonable limits, it seems to me there can oe little donbt. It has been exercised in all the nations of Europe as necessary and proper. It has been exercised in many of the States of this Union, and m some instances at least with success and benefit to the people. Whether rightfully or wrongfully, there is in this State, as well as in the other States of this Union, a general feeling of dissatisfaction with railroad management. There is a general demand for regulation and control. In the language of Charles Francis Adams, Jr., "Jealousy of great corporations isacardinalprincipleof American political faith." If no abuses exist, regulation will do no barm; if they do exist they will be corrected. But a great State should not exercise its governmental powers wantonly. The State is never vindictive. It only acta for the general good of all. It is just, fair, and impartial. Its action is not for injury; its movements are not for harm. A human father will not maim or torture his son because be is the author of his being; nor will the State wantonly injure or destroy what it has created. Its action is the great and majestic movement of a sovereign, looking only to the com- mon good and general welfare. It must look to the vast importance of railroads in the progress of the State and in the development of its great resources. It must remember that this State, so enormous in its territo- rial limits, has a less number of miles of railroad than most of the States in the Union, and that its own companies should be dealt with justly and fairly. It should not stifle enterprise or place its ban on future works. It cannot play the role of Rip Van Winkle and go to sleep in its own mountains, to wake up twenty years hence and find itself poor, ignorant, uncouth, and a mere object ol pity or ridicule. It should therefore exer- cise its vast powers wisely and discreetly, so as to protect the people, and, at the same time, deo^ justly by the companies, and in such a spirit as will not deter enterprise or impede the State in its onward career of greatness. Fourth — But what particular remedy should be adopted 1 Upon great general principles those who oppose the recommendation of the commit- tee doubtless agree with those who sustain it. The disagreement arises when we attempt a practical application and descend to particulars. The Chairman of the committee says, to those who condemn the remedy proposed by the committee, that we do not show a better one. Now, the afiBrmative of the issue is on the committee to show that this system is good and should be adopted. It is enough for us to show that it should not be adopted. When in India the car of Juggernaut passes along, car- rying its graven images, and its priests singing obscene songs, and the devotees throw themselves under the wheels to meet a certain death, it is enough to show that this is not the religion of the true God, nor the teachings of the Divine Being. Any religion is better than that. So, here we may show that the system proposed is unwise, unjust, and destructive of the best interests of the country, though we may not be able to present the true remedy. A wrong remedy may only exagger- ate the injury, as an improper prescription may carry the sick man to his grave. We have in this State a series of railroads. These are all to be placed under the control of the Railroad Commissioners, and be man- aged by them. They are to be elected by the people in districts. They are to have " the sole power, and it is their duty to correct abuses by railroad corporations, or other transportation companies; establish rales of charges for transportation of passengers and freight by railroad or other transportation coiupt^nies; and publish the same from thne to time, with such changes as they may make ; report to the Governor annually their proceedings, and such other facts as may be deemed important; hear and determine complaiuU against railroad or other transportation com- panies; afSx penalties and enforce them through the medium of the Courts, and perform such other duties as may be prescribed by law." It is also mandatory on the Iicgislature " to confer all such further powers on the Board of Railroad Commissioners as shall be necessary to enable them to perform the duty enjoined on them in the foregoing sections." Kow, this provision in a Constitution is without precedent. Notwith- standing the great attention which transportation has excited within the last five years in the other Stales of this Union, and the great amount of legislation intended to prevent railroad abuses and to regulate railroad afifairs, and notwithstanding the fact that Constitutions have in the meantime been formed, not one State of the Union contains such provis- ions as are proposed here. The honorable Chairman of the committee, whose report is before us, frankly admits that this is an experiment. Now, a Constitution is a bad place in which to try experiments, for should the experiment fail, the process of change is very slow, and of extreme difficulty ; whilst an experiment tried through the ordinary channels of legislation is easily managed. If partially successful, and more legislation is needed, it is easily obtained; if the experiment fails, the law is easily repealed, and that which experience proves to be better can be substituted. This, therefore, should be enougn, if nothing else could be said, to determine us to omit this from the Constitution and leave it to the Legislature. Why not leave it to the Legislature? Other States have Commissions created by the Legislature, and they have worked well. The much-lauded Commission of Massachusetts did not originate in, and is not mentioned in, the Constitution of that State. It originated in the Legislature, and all its merit is due to the Legislature. It has been a successful experiment as there managed. Had it been of constitutional creation, it would have been a failure, because it has from time to time been altered by the Legislature, and its present perfection is the result of repeated statutes. It has been a growth, and as experi- ence demonstrated the usefulness of a new and additional provision, it has been adopted. The superiority of a legislative discretion over an inflexible constitutional rule, is fully shown by Mr. Charles Francis Adams, Jr., in his work on the " Railroad Problem," so much eulogized by the Chairman of the Committee on Corporations. He says (page 140): " Undesignedly the Massachusetts Legislature had rested their law on the one great social feature which distinguishes modem civilization from any other of which we have a record — the eventual supremacy of an enlightened public opinion. The line of policy thus happily initiated was carefully pursued. New and wider powers were, year by year, con- ferred upon the Board, but always in the same direction — power to investigate and report. The Commissioners meanwhile were not slow to realize the advantages of their position, and have repeatedly put themselves on record as desiring no more arbitrary powers — as feeling themselves indeed stronger without them. » » • « "Without remedial or corrective powers themselves, behind them stood the Legislature and the judiciary, ready to be brought into play should any corporation evince an unreasonable spirit of persistence when once clearly shown to be wrong. The policy thus described would seem to have worked sufficiently well in Massachusetts. The Commission has certainly succeeded in sustaining itself, for while at every session the Legislature has conferred upon it new powers, always in the same direc- tion, the railroad corporations have never appeared in opposition to it as a body."— [Page 143. The truth of this is fully shown by the changes made in the law of Iowa. That State adopted a very stern and severe system, called the " Potter law," under great excitement against railroads. Recently that law has been repealed, and the system of Massachusetts practically adopted. Mr. Adams, in his book already spoken of, says (page 145): " A great advance towards a better condition of aflairs in this respect has, however, been secured during the last year, through the action of the Iowa ^gislature in repealing the so-called " Potter law," and sub- stituting for it a Commission, practically organized on the Massachusetts plan. It will only remain for those who compose the Commission to fairly try the eflect of intelligent public discussion aa a substitute for ignorant force. That the experiment should now be tried by them and made to succeed is of the utmost importance; if it does succeed, the whole movement in the west will be advanced by one entire stage." In Wisconsin the same law was enacted and repealed. In various other States during the Granger excitements (as they were called) legis- lation of a crude and experimental character was enacted on this sub- ject; but repeals, alterations, and amendments have since been the order of the day. Had the legislation, at first deemed proper, been put in the form of constitutional law, the injuries to the community would have been incalculable. " The experiment," therefore, had better not be tried in the Constitution. Whatever is done should be done through the Leg- islature. The power of regulation exists, independently of constitutional announcement. Whilst there may be no harm in its declaration in the Constitution, yet we cannot add to the power by such declaration. Why, then, should not the exercise of the power be left to the discretion of the Legislature? What is the objection? Cannot the Legislature be trusted with this power? Is it likely to be tabused ? This Convention cannot act upon any such theory. The powers of the Government of this State have always been divided into three great and separate depart- hients — the legislative, executive, and judicial. The legislative power has always been vested in the Senate and Assembly, called the Legisla- ture. I nave yet to learn that any one objects to this system. Iliave yet to learn that there is any disposition to organize this State upon any other basis. We are a government of the people, but the people act through their representatives in these departments of government. Without these, our republican form of government cannot exist. They are a necessity to our form of government. Shall not the legislative department be trusted with legislative powers? The negative implies much — very much. It implies a failure of our system of government — a failure of self-government. On the contrary, I insist that our form of government is right in theory and right in practice. If abuses exist — and that they have existed no one will deny — let the abuses be pre- vented, not the use destroyed. Liberty itself has been abused, but let us none the less preserve it with zealous care. Do we not, and must we not, trust the Legislature with vast powers? Why, then, may it not be trusted in this? If a Legislature fresh from the people is not to be trusted, then let us have no Legislature — let us vest the legislative power in some new functionaries of government. Let some one be bold enough to devise some organism through which legislation may be effected without the intervention of a Legislature. I am not prepared to say that our Government is a failure. I am not prepared to say that a representative republican government is not the best form of government on earth. I am for adhering to it, with its three great branches, and am for intrusting them with the necessary and usual powei^ with which such bodies are invested. That the power with which the Legislature is vested may be abused, is, I repeat, no sound argument against it, as power vested anywhere may be abused. Use 556 DEBATES AND PROCEEDINGS Tuesday, and abuse are as wide apart as virtue and vioe; for tliat which, when properly used, is virtue, becomes vice by abuse. Religion may turn to bigotry^ and liberty to licentiousness — but shall we not still venerate religion and cling to liberty? The distinguished gentleman from Los Angeles, General Howard, gives us a very low standard for the Legis- lature. His statpments are, in substance, that men of abiltty cannot for such low compensation go to the Legislature, and that it falls into the hands of very bad men. If this be so, here is room for a great reform. Has, indeed, our past system led to this, that the immediate representa- tives of the people are men of low intellect and low morals? Why has not the Legislative Committee proposed some wholesome reform ? Why does not some. reformer on this floor, or the able gentleman from Los Angeles himself, introduce some section that would obviate this? The subject of railroads and railroad corporations, great as it is, sinks into insignificance'compared with this wretched condition of this great branch of our government, if the views of the gentleman from Los Angeles be true. Gentlemen are not consistent here. They leave the great Legis- lative Department almost wliere it has always been, and yet pronounce it utterly recreant to its great duties. But bo far as corporntions — and railroad corporations' in particular — are concerned, we know that the last two Legislatures have passed very stringent laws on the subject. And we find in this Convention, which, like a Legislature, is fresh from the people, the strongest disposition to hold all corporations subject to the direct control and regulation of the Legislature, and a disposition to correct and reform all abuses. In this body there are numerous gentle- men who have recently been members of the legislature, and do not fall within Mr. Howard's denunciation — Estee, Larkin, Tinnin, Edger- ton, Shafler, Murphy, Campbell, Hilbom, Lainc, Graves, Dudley, Hale, and others. Another objection to section twenty as reported by the committee is, that it changes our form of government. We have heretofore had a government in which there were three great departments — executive, legislative, and judicial — and each has been forbid to exercise any of the functions of the others. The system now proposed introduces a fourth department of the government called the "Railroad Commission," In which all the powers of government are combined. They ore to a great degree independent of the other three departments of government, and above and beyond them, and exercise combined and mingled functions, at once legislative, judicial, and executive. To the extent that they are vested with these, the other departments of government are divested. The Commissioners are to have the " sole power to correct abuses by railroad corporations or other transportation companies." No matter how great the abuses the Commissioners may commit, the Legislifture is powerless to correct them. The Governor is powerless ; and the Dis- trict Attorney and Grand Jury have nothing to say— their " occupation is gone." The Commissioners have the sole power to " establish rates of charges for the transportation of passengers and freight." No mat- ter what errors they commit, no matter what mistakes or abuses, the people and the railroad may alike groan, for there is no power in the Legislature to act, and the sole arbitrary power of the Commission knows no superior and cannot be revised. They have the " sole power to hear and determine complaints against railroad and other transpor- tation companies." Here is a wide judicial power granted. The power to hear and determine is jurisdiction, and so jurisdiction is described. This is the exact language used in many cases to give jurisdiction to Courts, as has been shown by gentlemen who have preceded me. If, therefore, any one has a complaint against any railroad or transportation company, the Commissioners are vested with the sole power to near and determine it — that is, not only to decide, but render judgment. The right of trial by jury is cut off and there is no right of appeal given. From all their great powers and their exercise as before stated there is no appeal, no review, no power of repeal. Here, then, will stand in our Government a constitutional triumvirate as great in many respects as that of Rome in the olden time. In their department they are as absolute as Ctesar, Pompey, and Croesus were in their day. How truly "history repeats itself," when we return to the government of the triumvirs. They may raise and lower the rates of freight and fare to suit their views, and thus they can play with the value of the stock in the market, and determine the value of the bonds and mortgages on the road. It will be in their power to increase the running expenses whilst lowering; the freight and fares, and thus disable the corporations from paying their interest and expenses or making the payment imposed on them Dy law. They will be sole judges of what are abuses; of what repairs on the roads are necessary, and of what the rolling stock shall consist. They will determine complaints on their own notions of right and wrong, and however erroneous or malicious their acts there will be no remedy or appeal. The Act provides for no rules of evidence, no modes of trial, no tests of accuracy. They are to be all powerful and are to be responsible to no one. And who are to be the men clothed with these transcendent powers? What are to be their qualifications? Only that they are electors and not interested in or connected with the companies. Railroading is a special business: it requires great training and experience, yet any unskilled man is eligible. If we had to elect an architect of State buildings, we would prescribe a special qualification for the business; but here is a business requiring skill and training as much as that business. Any men who during a popular excitement or in party strife can secure a majority in the sev- eral prescribed districts, may take this very intricate and peculiar busi- ness out of the hands of the Directors and managers of tlie companies and destroy the property in a short time. I cannot think that this scheme can meet the support of the majority of this Convention. The power is too great and is too absolute. It is not sufficiently guarded. These men would be too far above all law and all control. It is too capable of abuse. The Commission may demand blackmail as the alternative to ruin. They may be corrupted, and the temptation will be great. The power is alike perilous to the people and the rail- roads. The gentleman from Los Angeles, General Howard, also safe that the three Commissioners could be trusted ; that they would have so motive to do wrong, and would be simply controlled by a desire to do their duty honestly. The same might have been said of the triumvin of Rome; or of Napoleon, when First Consul of France; or of Dantnn, Robespierre, or Marat. Why did not they when clothed with power simply do their duty? The same able delegate read from the reporter the committee of the United States Senate on taxation, showing the immense power of three or four railroad managers, and how they exer- cised it in raising and lowering values in a manner that Congress would never dream of exercising. Yet the same gentlejnen advocated putting that same power, so far as this State is concerned, in the handi of the three Commissioners we are to create. Nay, more; for those spoken of ill the Senate report were subject respectively to the control ana regaU- tion of the States where the corporations were created, but here the proposition is to vest this vast power under the Constitution in the Com- missioners, and thus place them entirely beyond the power of the legis- lative, judicial, or executive branches of the government. This would be a grand mistake — an unpardonable sin. Lodge the power and control where it should be — on that great branch of the government which muit be trusted, and that is the legislative department. The great nu'lroad problem has not yet been solved. The best business minds of the age are at work upon it; Commissioners are carefully studying it; and statesmen are giving it their most profound attention. Some progress has been made, and the experiments continue. Great laws of political economy are working out their inevitable results. The subject will be mastered, and the end reached. What is the best to be done and tbe true mode of regulation will be ascertained. Xiet us be in a position to avail ourselves of the experience of others, and through our Legislature, from time to time, apply the remedies and control which shall be shows t« be best. This will be statesmanlike; this will be true wisdom. This State has an immense territory. Railroads are a necessity to its progress and development, and yet the small States of the Valley of the Mississippi far surpass us in extent of railroads. By a rational system of management — by discreet regulation through the Legislature— we may at once protect the people from abuses and wrongs, and deal justly with railroad corporations. We should be friendly with legitimate rail- road enterprises. We should not fight railroads, but only railroad abuses. Thus, by rational management, fair dealing, and enlightened views, such judicious regulation and control may be exercised as will stimulate railroad building, elevate their credit, give them stability and strength, and greatly add to their success. Public confidence will be restored, and railroading, the greatest factor in the progress of the ftiture, will become as popular as it is now unpopular. Then may the State go on in her career of greatness, looking to an earlier development of her great mining interests, a speedier realization of her agricultoral resources, an extension of her commerce, and establishment of new and increasing manufactures. But we must, in aid of all this, perform oor duty. We are to make a new and revised organic law — not a code. We are to establish a great system, declare great principles, and provide for the movements and action of a great government in its accustomed channels. We must provide for a legislative department of the govern- ment, but must not ourselves legislate. We should pass no codes: we should enact no statutes. We provide for an executive and jodicisl department, but we neither execute the laws nor judge of their isfrac- tion. We take the present as it is and provide for the future only. Let us not forget our true position here, and that we are the architects and builders of the Constitution of a great State. Let it not be like the rude but of the savage, the wretched adobe of the Mexican ; but rather like our own capitol at Washingtim, with a foundation broad and deep, massive columns crowned with superb capitals, a mighty dome lifting itself to loftiness, and with faultless proportions throughout. Then it may long defy the ravages of time, and when compellra to fall, as all things of human origin must fall, even its broken fragments will tell what it was in the fullness of its original splendor. SPEECH or MR. WIST. Mb. west. Mr. Chairman: I have not occupied many minutes of the time of this Convention, and I do not, at this stage of the discussion of this important question, propose to occupy the time of the committee for any great length of time. I consider it my duty and my privilege to express the views which I entertain upon the questions which have been so ably discussed by the different gentlemen who have spoken upon this twentieth section. To us has been committed a great taA— that of laying the foundation for a great superstructure. To us the ffo- pie of this great State are looking that this foundation shall be laid in the eternal principles of right and justice, that it shall be laid in view of the contingencies and circumstances that surround the State and commonwealth. If we look back over the history of the State, and of the commonwealth, we shall find that we occupy a position very differ- ent in regard to corporations -from perhaps any other State. Sinee eighteen hundred and sixty-sixty-one, corporations have grown won- derfully in the United States. They have assumed gigantic proportiooa. They have exercised great and wonderful powers. Some of those powers have been exercised for good in the development of the resourees of the State and country, and some of them have been exercised for their own selfish .ends, and their own aggrandisement, without due regard for the good of the people. Now, it is our duty to formulate a rule by which these corporations shall be governed ; not to act with any vindictiveness; not to act in any spirit of persecution. Indeed I do not believe that a single member of this Convention, not a single member of the committee, feel that they would in the least cripple the railroadi of the State. They recognize the fact that railroads are a part of oor civilization, a material part of our growth, and valuable aids to A* development of the material resources of this State. We would notdo without them. We could not do without them, and it is a faiat aonmp- (^ Dec. 3, 1878. OP THE CONSTITUTIONAL CONVENTION. 567 tion on the part of any gentleman to assume that any respectable num- ber of the members here are endeavoring to run these enterprises out of existence, or so cripple them that their growth and construction would not be continued or encouraged by the people of this State.. Mr. Chairman, it is not necessary for me to discuss the power or the right of the State to control and regulate corporations. That is a ques- tion beyond the nece-ssity of discussion. As the gentleman from San Francisco has said, that question has been settled. The right and the ?i)wer of the State to exercise control over corporations, is undenied. he question for our immediate consideration is, what is the best policy, what is the best and moat proper course in which to exercise this power? The experience of the older States has been cited, and it is right that we should learn from the light of experience. "We should pay due regard to that experience. liet us take a brief view of the experience and result in those States where this subject has been adjudicated — where the best minds have considered this momentous question. Begulation by the Legislature has been tried, and has proved a failure. It has been tried in Iowa, and I have heard from the gentleman from Sacra- mento that that was a very bitter experience. But let us inquire why this has been so? What caused the law to be abolished in Iowa, and in other States of the Northwest? Allow me to say, right h^re, that I am not one of those who believe that the Legislature is necessarily corrupt, or that the people will knowingly send bad men to represent them in tne Legislature. But I do argue — and I argue upon the basis, in the light of experience — that representatives coming from diifercnt localities in the State have their different ICcal interests in charge, put those inter- ests foremost' in their endeavors to serve their local constituency, and combinations are nearly always formed in order to carry out these local enterprises. Kow, if we leave this matter in the hands of the Legisla- ture, the railroad corporations will necessarily combine with these local interests, and this has been done over and over again to carry their schemes through, or to hamper and hinder legislation on this subject. Now, in some of the Western States, the Legislatures attempted to regulate and control these railroad companies. They passed the Potter law, so called. In that law they attempted to go into the minutiae of regulating fares and freights ; the classification of freights into classes — classifying all kinds of freight and goods to be transported over the lines. It would astonish any person to examine that array of figures. This law, for instance, would be put in force three or four months after the adjournment of the Legislature. The railroad companies would take up the law, examine its equalities and inequalities, and if there were any faults to be found, they were magnified, and the defective portions were put into full operation and execution, while the better portions were allowed to go by default. They entered into politics with the law in their hands, and the actual extortion, which was the result of their interpretation, worked great individual hardships, and created dissatisfaction among the people, and so, at the next session, the law would be amended. Thus the law was kept moving, and constantly changing all the time from one Legislature to another, from one sys- tem to another. The enactment of one Legislature would be ameuaed by its successor, until the people finally became disgusted. Now, that has been the history of railroad legislation in every State adopting the plan of legislative control. Then, again, one or two of the Westem'States tried the Commissioner system. Each succeeding Legislature, after the creation of a Commis- sion, would tamper with the Act, changing the duties ot the Commis- sioners, given theui new and different instructions, keeping them constantly in the Courts, depriving the people of that settled policy that can alone secure prosperity and give permanent relief. That is the history. That has beeu the history, and that will be the history in California for the next twenty years if you remand this back to the Legislature. The prosperity and growth of the State can only be secured by having a settled and fixed policy in dealing with this great subject, and that you will never have if you leave it to the Legislature. We know that in all the aflairs of life, in order to be successful, we must persevere in one course. Many a man has grown rich gathering rags, because they stuck to it But this constitutional changing will prevent prosperity in any enterprise, I care not what it may be. Now, we have a diversity of mterests in this State. I wish to speak from an agricultural standpoint for a moment. ' How does this unsettled policy, between the people and the corporations, aflTect the agricultural interests of the State? The farmer looks over the ground. lie gets his seed furnished on time; gets his agricultural implements on credit; puts in a crop, and estimates the profits on that crop from the probable market prices in San Francisco, less the cost of transportation. The harvest comes round; the crop is harvested; the grain is thrashed, and ready for market. The railroad corporation, under this unsettled sys- tem which allows them to raise or lower their rates at will, ascertains what the ^rain will be worth in San Francisco ; ascertains just what the agricultunst can raise the crop for and make a bare living, just sufficient go that he will not be driven from the soil, just suSicient so as not to deprive him of hope for the future, and the difference between that figure and the market price in San Francisco will be the rate of freight fixed by the corporation, and if there is a raise in the market the farmer gets no benefit from it. If he succeeds in raising a good crop, and prices are good, be will reap no benefit. If failure overtsJces him, he is bank- rupted, as farmers have been too often in this State. Now, if we want to continue the prosperity of the commercial interests, of the manufac- turing interests, of the laboring interests of the State, I care not what industry it may be, we must have a settled policy. We want a fixed policy. It would be better for the railroad companies of this State if they would acquiesce in the settled policy of the State, as they have in ' some other States, and in England, where there is little or no conflict. It has been ably illustrated here, by a speech which we have listened to. Now, I repeat, that it is ntft in the interest-of any party, not in the interest of any faction, not in the interest of either agriculture or the common laborer, the mechanic, the merchant, the professional man, or any other man, to continue this irrepressible conflict between capital and labor in any of its branches. Wnat we need more than anything else is a settled and safe policy, that is alike just to the employer and those employed ; to the producer and the consumer; the buyer and the seller; and for one, I believe the only way we can secure this is by the adoption in our Constitution of a provision creating a Board of Commis- sioners to govern and control the railroads of tlie Stale. We are told that this is an arbitrary power, and almost unlimited power. I think not. These Commissioners are amenable to the people themselves just as any other o£Bcers elected in like manner. They are responsible for their acts. The people select them with direct reference to this special duty. They are not selected at random, as some of the gentlemen would have us believe, but we select three of the best qualified men we can find for this particular duty. Three men whose time will be devoted exclu- sively to the performance of the dut^; whose education and experience fit them for the discbarge of this important trust, and when we have selected such men, thev can accomplish great good. They will be in session all the time, and delays will be avoided when wrong needs to be redressed. Not so with the Legislature. Whatever wrong is enacted will remain until the next Legislature meets, and until it has had time to consider and digest the enactments, and until the new machinery can be put into operation. Now, I hope, and believe, that this Convention is convinced of the importance and necessity of creating this Commission. It is said here that the people do not demand this thing. Why, sir, let me state to the gentlemen that the most important part of the platform adopted by the County Convention which nominated me to the position which I now hold, was in regard to this very matter of regulating and controlling corporations. It is a living, burning issue with ihe people, and I know that my county does not stand alone. The people are demanding that in this Constitution the corporations shall be bridled. It is demanded in the interest of the poor and the weak. The strong need no protec- tion; the rich need no protection ; they are able to protect themselves. It is around the people that the protecting arm of the law must be thrown. There is no aanger that corporations will be crushed out by the aggressions of the people. There is no fear that capital will be driven from the country, tor both are amply protected. Let us enact laws that will give the people equal protection. That is all they ask. 8FEECR OF HR. BROWK. Mb. BROWN. Mr. Chairman : This question has been under discus- sion for a great length of time, and great ability has been brought to bear upon it. There is no question but this great amount of talent, and precedent, and law, that have been presented before this wonderful body, should have an influence upon its judgment; and it is a matter of some consequence that light should be obtained upon a question of so much importance as this. Great mountains of legal lore nave been precipitated upon us from far and near. History has beeu ransacked, law has been read and read again, authorities quoted, and I have be- come convinced, long ago, that so far as the evidence was concerned, and the instructions, that this body was fully prepared to vote some days ago. Still, I am convinced that there cannot be too much law, or too much authority, or too much investi^tion. Now, we have heard, in this discussion, of Europe, and how the^ thought they had succeeded in solving this great question. In this country efforts have been made by the Legislatures of the land, in the different States, and they have evidently been only partially successful. But it is interesting to us in this way : that the many missteps that have been taken, and the many mistakes that have been made, have been rectified, and we can profit by their experience, and not make the same mistakes. It is a matter of lue utmost importance here that the nicest judgment and discrimination should be exercised, and that nothing whatever should be done rashly by this body, upon whom the eyes of the people of this State are directed, and in whose acts the interests of the State are concentrated for a time. Now, I am convinced of one thing — that men will differ on the best propositions that can be pre- sented, and that the ablest minds will honestly differ— but it is a matter of a difference in judgment and convictions. I have been thoroughly convinced that this is a question in which the people of this State feel a viUd interest It affects their interests to a vital extent, and I have to some extent doubted the propriety of giving these Commissioners the sole control. It appears to me that this is a proposition to do that thing. Now, when we come to consider this matter in its full extent, we do not know that we will be able to get the best men in the land to fill these positions; and if we did, we do not know what may befall them after they are elected. Human nature is human nature the world over, and if they should prove false to their trust, they would be entirely beyond the power of the people. Farther, Mr. Chairman, in this section twenty it seems that they have not only power to fix freights and fares, but their decrees are to be enforced through the Courts. If they are to fix them, it appears a little strange that they should enforce them through the medium of the Courts. The Court is compelled to carry- out their acts, carry out their behests, and determine in accordance with what they have determined. If they are to fix fares and freights, why should we trouble the Courts to do this, if they have no discretion in the matter? In this respect, I think there is an amendment needed. I am under the impression that this unlimited power is, when we come to look at it, a little too much like the iron bed of Procrustes. I fear it. Under these circumstances, I am opposed to the Commissioners; but I feel that there should be certain amendments, and the time is passing away, and this is very soon to be acted upon ; and it is a matter of great consequence that we should proceed with the business and accomplish what we were sent here for. Now, I am satisfied that the people of this State want something more in the Constitution than we have had here- tofore in regard to the regulation of freights and fares. / There are some Digitized by t^ 558 DEBATES AND PROCEEDINGS WEDNESDAt, amendments already in hand, and I feel eomewhat disposed to vote for some of them. While I have no objections to members here speaking and civing their views; but I think we ought to come to a vote before very long. SPIKCB OF MB. OOBMAH. Mb. GOKMAN. Mr. Chairman: I would like to say a few words as to the way I shall cast my vote, and as to the reasons upon which I base my action. I am not prepared to vote for this Commissioner clause as it stands at present; at least, it does not suit me as well as some of the amendments which have beei^ oflbred here. It would seem by the remarks made by gentlemen on this floor, that the feeling of hostility towards railroad corporations is merely a pretense of demagogues, to make political capital for themselves, and that in truth the people make no complainU; that they are perfectly satisfied and contented with the manner in which the railroaas are conducted. Now, sir, if that is so, why do the people at every election of late years elect what are termed anti-monopoly men T Why do candidates of all political parties indig- nantly deny any affiliation with railroad rings? If railroads are honest and just w> their dealings and their charges, what need can there be for rings? If they are honest and just, why is it that such a pressure is brought to bear upon the Legislature at every session ? Sir, it is not in California alone that these complaints are heard. They are coming up from almost every portion of the country, and this same feeling of hos- tility, engendered by the same causes, is manifested everywhere, and becomes more bitter as the years go by. Is this spirit of hostility towards railroad corporations groundless? Is there no cause for it? We shall see. Ijet us go back in the history of raiUoads and see if there is not a cause for it RailrxMtd corporations in this country were at first confined to short lines, reaching from one large city to another. They were built by men of small or moderate means, and were scarcely over one hundred miles in length. But as years went by these short roads 'were consolidated, until some of them finally reached half across the continent. Several of these great trunk lines were thus formed, which, with their branches, obtained the control of the carrying trade of a great tract of country, and of immense value. As the power and wealth of the railroad increased, their desire for more propertv also increased; and by sharp practice in manipulating stocks on Wall street, a few men, and in some cases one man, soon came to oc>ntrol each of these roads. When they had gained control of vast tracts of country, they commenced a system of discrimi- nation and high charges for freights and fares which compelled the people to resort to the Taw for protection ; but they were not successful. The railroads, by means of their vast wealth and power, were able to defeat the people and carry their point. To do this they did not hesitate to resort to bribery and other unlawful means. This they did with a high hand, and, as has been mentioned on this floor, they carried it to such an extent in New Jersey that that State was dubbed the "Camden and Amboy State," for years. Vanderbilt and Jay Gould always bring a tremendous pressure to bear upon the New York Legislature. Aa for Pennsylvania, for years it has been said that Tom Scott carries the Legislature in his breeches pocket, as has also been said of California in regard to the Central Pacific Railroad Company. We find that they have expended vast sums of money on the India rubberaccount, bribing members of legislative bodies, and even invading the halls of the National Capitol, bringing disgrace on the whole nation. In Illinois, Judges of the Courts accepted passes for themselves and their families to the Pacific Coast and return, and we find that passes are given from the highest officer of the State down to the smallest county and town officers. One gentleman on this floor says that congressional bodies take a broad and statesmanlike view of these railroad questions. Yes. Ames, Colfax, Dawes, and others did, when railroad bonds are used to mold their views. As I have mentioned, these corporations have resorted to fraud in discriminating on freights and fares, and other curious ways, as, for instance, the same amount is charged per car from Chicago to New Orleans, as from Chicago to Keokuk, Iowa. But it is not necessary for me to pursue this particular branch of the subject further, after the able manner in which the gentleman from Los Angeles, General How- ard, has handled it. We read of meetings of railroad Directors and officers, representing half the railroad lines of the countrj-. Are these meetings for the pur- pose of lowering freights, or are they not rather for the purpose of rais- ing them ? Upon the consolidation of the Chicago and Northwestern, they raised the rates thirty per cent. Are not many of the railroads of this country owned by foreign capitalists, and what interest can they have in the industries and welfare of this country. At home they are satisfied with an interest of four per cent, or less on their capital, but here they want fifteen per cent. The Oregon Railroad traverses the richest valleys in the State; they cannot be excelled in the whole country. The Northern Pacific Railroad is owned almost exclusively by foreign capitalists, as is the case with several of the eastern roads. In the State of Oregon, owing to their lakes, canals, and rivers, the rail- roads have been compelled to reduce the rates, and the people can ship their produce to market cheaper than we can. For some time these railroad corporations refused to be governed, in a great many cases, by the laws passed by the Legislatures. Although restricted in some cases, in a certain sense they would manage to evade the law. They would increase their capital stock and create fictitious values. The Baltimore and Ohio Railroad Company, in eight years, increased their capital fifty- five millions of dollars; the Pennsylvania Railroad Company, in nine years, increased their capital one hundred and twenty-six million dollars; the Erie has watered its stock until it has reached two hundred million dollars. In eighteen hundred and sixty-eight Commodore Vanderbilt increased New York Central eighty-four per cent., yet in this year the sworn statement of the Directors says the road was unable to pay six per cent, on the existing capital. The New York Central and Harlem increased nine million dollars in six year*. Fort Wayne leased a branch road, and on that portion increased their stock eight million dollar*. In eighteen hundred and sixty-seven a report made by the leading commereial paper says: Twenty -eight roads increased their capital stock during twenty-two months, one hundred and thirteen million dollars. The gentleman from Sacramento says: " Talk about the people want- ing this thing or that thing, I say they want no such thing." I most beg leave to differ with him. The people all over the country are demanding reform, not only in regard to railroad corporations, but in every branch of government, and they speak in no uncertain tones. They have been defeated on every hand, and the burden is beooming unbearable. This is shown by the elections of late years, and the proof may be seen in this very body. Now let us look at home. One corporation, composed of five or six persons, own and control three fourths of all the railroads in this Slate. All the main lines, and a great many of the branches, as has already been shown here, are controlled by them. Owing to the peculiar forma- tion of the country, no such thing as railroad competition is possible,u in other States. Let us see how this corporation was received by the people throughout this country when the road was first built. It it not a well known fact, that the people, wherever the railroad passed, received them with open arms, and they were given a hearty welcome everywhere? Did they not give them all kinds of support? Cities, counties, and towns gave them large amounts of money, or took their stock, gave them the right of way, and assisted the enterprise in every manner possible. Have not the people, in truth and in fact, built these roads and equipped them ? What, then, has changed the sentiment of the people ? Why have they demanded that the railroad shall be controlled ? The reason is, that when they have got all that it is possible for the people to give, they want still more. They have become tyrannical and refuse to obey any law but their own. They have carried things with such t high hand that they have come to imagine themselves above the Got- ernment, and if matters go on in the future as in the past, they will become dangerous to republican government. They have been falling from being benefactors of the people, as a late writer has well said, like the New York Central, have become a fraud ; or, like the Erie, a scandal ; or, like the Pennsylvania, a |K>litical dynasty. Combining together, they may rule State and nation. We hear a great deal said about the amount lost daily by the Southern Pacific RailrMd. Well, when the company started to build that road they knew exactly how much trade they might expect, and have prob- ably not been disappointed. One would imagine by listening to eentle- men on this floor, that the railroad company was a sort of benevolent or philanthropic society, going about building roads for the convenience of the people. Gentlemen, whf n the Central Pacific built this Southern Pacific it was for the purpose of binding still closer in their toils. It was to close the only door left open for relief. Let the people not thank them for this road, but look at it rather as a curse, for by building the Southern Pacific they cut off all hopes of successful competition by any other transatlantic road, holding a still firmer grasp upon the whole State. We have seen bow railroads have from small beginnings and honest dealings at last become despotic and corrupting agencies, backed by millions of money. The morality of the whole country has been greatly lowered wherever their power is used. No officer, whether high or low, from the President of the UnitM States and the Judges on the bench, down to the lowest official in a country village, is exempt from their contaminating influences. This is, I must say, the most lamenta- ble part of the whole outlook on corporations. As a people we hsre greatly changed for the worse; where once we trusted every officer elected to fill any position, we now suspect every one in office; we look on our legislators with distrust, and no wonder, when we see men who, before election, not having money enough to pay a hotel bill, their friends ^oing round begging people to vote for them, and saying that their children would jump for joy, and after the session is over takings trip to Europe or to the East, and buying fine houses. When men come here pledged to certain reforms, and after coming to the sest of government scarcely get warm in their seats when they fall down, turn a complete somersault, and forget their pledges; or when a railnwd magnate rolls a barrel of whisky into the Sergeant-at-Arms' room in the Capitol building of a capital city, is it any wonder the people shouM think it time to take the control of corporations in their own hands? U it any wonder they think no measure too strong to curb their power! We cannot overestimate the danger these great corporations are lo * republican form of government. It is like a snowball, so small at fii^ you can hold it in the hand ; but roll it in the snow, and in a short time it becomes too large to be handled. But they are unlike the snow- ball in this, that in one hot day one will be melted away, while the other ^ws still stronger every day. Millionaires, with all their richet. will die, but corporations live on forever. I will close by quoting Chief Justice Waite. Discussing the Granger cases, he says: "A good govern- ment never puts forth iie extraordinary power except under circum- stances which demand it" I think, Mr. Chairman, this is a case where it is demanded. SPKRCH OF MB. VAC()CIREL. Mb. VACQUEREL. Mr. Chairman : I will only occupy your time for a moment. I have listened patiently to all the speeches here. I h*« learned that one author said something on the subject, and another men said another thing, and still I have not been able to know how to vote. Now, sir, the railroad, if it be an evil, is a necessary evil. The laws in force in Europe cannot be put in force here, because the conditions ai« ^ difierent. The laws of one State might work well here, while the ls»» of another would fail to give satisfaction. Now, sir, I do not care what Mr. Black may have said; or what anybody else may have said,onr constituents sent us here to remedy the local evils under which they sie t^ Dec. 4, 1878. OP THE CONSTITUTIONAL CONVENTION. 559 suffering, and of which they complain. Now, I have heard it asserted that leKisIatots are corrupt. If that is so, then the Commissioners Trill be liable to be corrupt also. I cannot vote for section twenty as it is reported by the committee. It gives too much power to these three men.i I believe it is conferring too much power. I do not believe the Commissioners should make the law. It is against republican princi- ples. The Legislature alone has the right to make laws in a free government, therefore I will vote for Commissioners only with' power to carry out the laws made by the Legislature, and report to the Legis- lature. The Legislature, upon the report of the Commissioners, can pass the necessary laws regulating freights and fares as proposed by the Commissioners. That plan I think would work a great deal better than the plan proposed here of giving the Commission such arbitrary and unlimited powers. This proposition affects great questions. If you try to stop the rtver in its course it will burst its banks and overflow the country. All violation of natural laws will bring its punishments. Now, if we give too much power to one branch of government, or too much to another, they will turn out masters of the people. Therefore, I insist that these Commissioners shall not be clothed with this arbitrary power. The Legislature is composed of direct representatives of the people, and they, are the ones to exercise this power. Mr. ESTEE. Mr. Chairman: I move that the committee rise, report progress, and ask leave to sit again. Carried, on division — ayes, 66 ; noes, 54. IN CONVENTION. Thi PRESIDENT. Gentleman: The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have made progress therein, and ask leave to sit again. ADJODRNUKNT. Mb. ESTEE. Hr. President: I move we adjourn to meet at seven o'clock this evening. Mr. McFARL.\NI). I move the Convention do now adjourn, and that is a privileged motion. Mr. ESTEE. I rise to a point of order. Tbe PRESIDENT pro tem. The motion to adjourn takes precedence. The question is on the motion to adjourn. Lost, on a division vote of S6 ayes to 67 noes. Mr. ESTEE. I move that the Convention take a recess until seven o'clock this evening. Lost, on a division vote of 58 ayes to 61 noes. Mr. ESTEE. I move we adjourn. RKSOLDTIOJI. Mr. HILBORN. I desire to send up a resolution. Thi SECRETARY read: lUtohxd, That tlie aum of elghtj-three and elght7 on* bnndnditu dollsn b< appropriated out of the funds for cairyinK on tbta Conreotliin, to paj the bill of the Fadftc Ice Company for the month ending December flnt, eighteen hundred and •ereDtjr-elght, and that the varaant be dnwn In fkror of the Sergeant-at-Arma of tUa Oonrention. Mr. HILBORN. The ice has been delivered, and I hope the resolu- tion will be adopted without reference to a committee. I move the adoption of the resolution. Mr. BARNES. I would like to inquire of the President if there is any express provision in the Act calling this Convention together for ice. If not, I would suggest that it go to the Judiciary Committee, to find out whether we can pay it or not. [Laughter.] Mb. HILBORN. There are several nice provisions in the bill. Mr. REYNOLDS. I move that it be referred to the Judiciary Com- mittee. Mr. terry. It will have to go to a committee under the rules. Mr. HILBORN. It has not been before a committee. It was handed to me as Chairman of the committee, and I reported it. Mr. O'DONNELL. I have a resolution Mr. HOWARD. I move we do now adjourn. Mr. CROSS. I call for the ayes and noes. Mr. grace. I don't know what we are voting on. Mr. MURPHY. I move we go back into Committee of the Whole. Thb president pro tem. The question is on adjournment. Division was called, and tbe motion prevailed — ayes, 62; noes, 59. And, at four o'clock and thirtj minutes r. H., the Convention stood adjourned until to-morrow morning, at nine o'clock and thirty minutes a. M. SIXTY-EIGHTH DAY. Bacrahkmto, Wednesday, December 4th, 1878. The Convention met in regular session, at nine o'clock and thirty minntes a. m.. President pro tem. Belcher in tbe chair. The roll was called, and members found in attendance as follows: Andrews, Ayers, Barbout, Barnes, Barry, Barton, Beerstecher, Belcher, BeU, Bladuner, PRISBNT. 1 Boggs, Cross, Boucher, Crouch, Brown, Davis, Burt, Dean, Campbell, Dowling, Caples, Doyle, Chapman, Dudley, of San Joaquin, Charles, Dudley, of Solano, Condon, Dunlap, Cowden, Edgerton, Estee, Estey, Evey, Farrell, Fawcett, Filcher, Finney, Freeman, Freud, Gorman, Grace, Graves, Gregg, Hager, Hale, Hall. Harrison, Harvey, . Heiskell, Herold, Herrington, Hilbom, Hitchcock, Howard, Huestis, Hughey, Hunter, Inman, Johnson, Jones, Joyce, KeUey, Keyes, Kleine, Laine, Lampson, Larkin, Berry, Biggs, Casserly, Eagon, Larue, Shafler, Lavigue, Shoemaker, Lewis, Shurtleff, Lindow, Smith, of 4th District, Mansfield, Smith, of San Francisco, Martin, of Alameda, Soule, Martin, of Santa Crux , Stedman, McCallum, Steele, McComaa, Stevenson, McConnell, Stuart, McCoy, Sweasey, McFarland, Swenson, McNutt, Swing, Miller, Terry, Moffat, Thompson, Moreland, Tinnin, Morse, Townsend, Murphy, TuUy, Nason, Turner, Nelson, Tuttle, Neunaber, Vacquerel, Noel, Van Dyke, O'Donnell, Van Voorhies, Ohleyer, Walker, of Marin, O'Sullivan, Walker, of Tuolumne, Overton, Waters, Porter, Webster, Prouty, Weller, PuUiam, Wellin, Reddy, West, Reed, White, Reynolds, Wickes, Rhodes, Wilson, of Tehama, Ringgold, Rolfe, Wilson, of 1st District, Winans, Schell, Wyatt. Schomp, ABSENT. Garvey, . Mills, Glascock, Smith, of Santa Clara, Holmes, Mr. President. LEAVCOr ABSIKCB. Leave of absence for one day was granted Messrs. Mills and Holmes. "Fwo days' leave of absence was granted Mr. Glascock. THE JOCRXAL. Mb. tinnin. Mr. President: I move that tbe reading of the Jour- nal be dispensed with, and tbe same approved. Carried. FKTITIOM. Mr. winans presented a petition and memorial from citizens of Sod Francisco, relative to cooperative homesteads. Reading dispensed witn, and referred to the Committee on Legislative Department. SEFORTS — RAILROAD COUHISSION. Mr. ESTEE, from the Committee on Corporations other than Munici- pal, presented the following report : Sackahinto, December 4th, 1878. Ma. Pkssidkkt: Tour Committee on Corporation! other than Municipal bare had under conaldoration lectlon twenty of tbe article on corporations, heretofore pre- aented by the commltteo, together with the aeveral amendmenta to tbe section pro- posed in Committee of the whole, and your committee herewith respectfully aubmit a subatitute for section twenty, and recommend its adoption. H. U. XSTEE, V. K. HOWARD, CHARLES F. REED, J. V. WEBSTER, OBOROB STEELE, V. A. GREGG, H. G. BOGGS, CLITUS BAKBOUB, JOSEPH W. WINANS, JOHN P. WEST, WILLIAM r. WHITE, P. DUNLAP, GEORGE W. SCHELL, JAMES E. DEAN, PATRICK REDDY, JOHN H. RHODES. Sec. 20. Three Railroad Commissioners shall be elected hj the quali- fied voters of this State at the regular gubernatorial elections, whose »lary shall be fixed by law, and *ho3e term of office shall be four years. They shall be qualified electors of this State, and shall not be interested in any railroad corporation, or other tran^^wrtation company, as stockholder, creditor, agent, attorney, or employe, and the act of a majori^ of said Commissioners shall be deemed the act of said Commis- sion. Said Commissioners shall have the power, and it shall be their duty, to establish rates of charges for the transportation of passengara and freight by railroad or other transportation companies, and publish the same from time to time, with such changes as they may make; to examine the books, records, and papers of all railroad and other trans- portation companies, and for this purpose they shall have process of the Courts; to hear complaints against railroad and other transportation companies, to send for persons and papers, administer oaths, take testi- mony, and report cases of contempt to the Courts for their action, and enforce their decisions and correct abuses through the medium of tbe Courts, and perform such other duties as may be prescribed by Jaw; to report to the Governor, annually, their proceedings, and such other facts as may be deemed important. Nothing in this section shall prevent individuals from maintaining actions against any of such companies. It shall be' the duty of the Legislature to confer all such further powers on the Bint a person to hold the office until the election and qualification of a Commissioner, which election shall take place at the next sncceeding general elec- tion, and the person so elected shall hold the office for the remainder of the unex- pired term. The flrst elecUou of the Commissioners shall be at the flrst general election after the adoption and ratiflcatlon of this Constitution, Section — . The Legislature shall, by laws, provide for the working of convicts in State Prisons for the beni>fitof the State; provided, however, that the labor of convicts shall not be let out by contract to any person, copartnership, company, or corporation. Sac. — . The State Board of Prison Commissioners shall constitute a Board of Pardons, and the Governor of the State shall never pardon any person convicted of crime, except at the unanimous rvquest of the Board of State Prison Commis- sioners. Sac. — . The Legislature shall give effect to a Judicious system of credit for good behavior to convicts in SUte Prisons, to be carried out by the State Board of Prison Commlssionen. (Signed:) JOHN D. CONDON, P. M. WELLIJJ, C. J. BKElUsTECHER. Mb. CONDON. 1 move you, sir, that the usual number of copies be printed of that and of the report made by the majority of the com- mittee. Thb chair. If there be no objection the report will lie on the table and be printed with the majority report. It is so ordered. H0CB8 or labob. Mb. THOMPSON, (by request), introduce)! the following proposed amendment to the Constitution, relative to the hours of labor: Abticlk — . Sectioh 1. The hours of labor on all contracts performed for the State, county, and municipal governments shall not exceed eight hours a day. Sic. 2. The hours of labor on all work done for corporations doing business under charier from this State shall not exceed eight hours a day. Sbc. 3. All State offices, county, and municipal, shall remain open for the transaction of business eight hours each business day. Sic. 4. Eight hours shall constitute a legal day's work in each and every department of the State, county and municipal governments. Sec. i. This article shall be enforced by appropriate legislation. Beferred to the Committee on Labor and Capital. REPORT — THE WIKE IMTERIST. Mr. reed, from the Committee on Agriculture, Manufactures, and Commerce, presented the following report: Mr. Pbisidrnt: The Committee on Agriculture, Manufactures, and Commerce, having had under consideration resolutions numtiers thirty three and thirty-four, report the same bock, with a memorial to the President of the United States, and respectfully ask the adoption of said memorial. CHA8. F. REED, Chairman. To the President and to the Senate of the United States : The Constltatlonal Convention of the State of Califomia, duly aosembled by authority of law, at Sacramento, on the twenty-eight day of September, A. D. eighteen hundred and aeventy-elght, for the purpose of revising the Constitotioa of the State, respectfully memorallHS the President and the Senate of the United SUtes: WHsaZAS, A treaty or convention between the Government of the United States and that of the itepublic of France has been piopoeed, and is now under consider- ation at the City of Washington, by which convention it is proposed to so revise the exisUng schedule of tariff^ that a large reduction shall be made in Import duties upon French producta, pariicularly wines and spirits; and whereas, such redoctiOD would result most diaaatronsly to the targe and growing vinicultural interests c^ tbs State of California; therefore, this body, actfng on behalf of the ^>eople of Califuruia, does most earnestly protest against Uie proposed revision of sncb tariff, or an? revision thereof whereby the Import duties upon wines and spirits may be reduced. And in support of such protest your memorialists respectfully s^ow: That a large amount of capital, reaching, by intelligent and reliable eetimotea, the sum of fifty millions ol dollars, has been Invested in the vineyards of California, and the various structures and improvements connected therewith ; that all condltioDS of people have engaged in said industry, from the laborer and small lot owner to the wealthy capitalist, and that the business has ci me to be the only means of support to thousanosof citixensof the State; that said iiuliutry is not even now largely remu- nerative, but at best only yields a moderate retnm for the capital inreatwl and the labor employed; and tliat up to a very recent period the viueyordists of Caliibniia have hod a close and coiutont struggle to place the industry upon a paying basis; Uiat the proposed reduction of duUes will, if carried out, utterly crash this industry, leave thousands without adequate means of support, and aggravate the distrsa prevailing among the producing clasMS, without the gain of a fkithing to the gev- emnient, or to any person or persons in the United States, except the few eng^ed in the business of importing. Wherefore, said CuiivenUon has voted this protest, and caused the same to be authenticated by the signatures of the President and Secretary. Done at Sacramento on this third day of December, A D. eighteen hundred sad seventy-eight. Mb. RECD. Mr. President: lasktheadoptiouof that memorial, and with the permission of the Convention I will brieflv state a few of the reasons which give rise to that memorial. Early last Spring, at the international exhibition at Paris, the various Chambers of Commerce of France proposed to the delegates repDesentine the various Chambers of Commerce of the United States, that in view ottbe necessity of a revision of the American tariff and for a treaty of commerce as between the Vnited States and France, that a Franco-American Conference be held at the City of Paris to consider the propriety of increasing the commer- cial relations of the two countries hy reducine the import duties now exacted by the present tariff. Various Chambers of Commerce in the United States were visited by distinguished gentlemen for the purpose of securing delegates to this Franco-American Conference. Mr. Leon Chatteau visited the Chamber of Commerce of San Francisco, and addressed it upon the necessity of a modification of the tariff. And here permit me to say in justice to that Chamber, that it did not indorse the present proposed treaty, as has been stated by the press, for this was in May last, and the treaty was not prepared until August, consequently they knew nothing of its provisions, but it expressed a desire to second the movement already inaugurated to connect more closely the commer- cial relations between France and the United States, and cordially wel- comed Mr. Chatteau, and extended to him its earnest cooperation in the mission with which he was intrustod. Delegates were sent to Washington to a Convention which selected members to represent the United Stales in the Conference at Paris. The (Conference met in August, a prelimi- nary draft of a treaty was presented and referred to a committee of sixteen, which reported to the Conference August ninth a project of a pro|H>sed treaty. In article four of the basis of the treaty, is a request to the President of the United States to recommend to Congress a revision of the tariff of the United States bearing on the French products im- ported into the United States, tending to reduce import duties according to the following suggestions, viz., a reduction on still wines in casks, twenty cents pbr galWn; still wines in bottles, a reduction of fifty cents per dosen; brandy and spirits, a reduction to one dollar per gallon. This is a reduction of one half of the present tariff. There is already invested in California over fifty million dollars in viniculture, outside of incidental industries, as cooperage, machinery, etc Assessing this at one half, or twenty-five million dollars, the State tax at last year's rate was sixty-three cents, and the yield, therefore.one hundred and fifty-seven thousand five hundred dollars for the treasarr. In less than ten years it will be double that amount. This is a critical period in the era of wine growing, and for the first time in many yean the grape growers of the State have felt encouraged. The production in France has fallen offoverfifly per cent. In Califomia a far less penxnt- age of poor wines is made than in France. French brandy is distilled from beets, wine lees, and other worthless stuff, and made up of Ameri- can alcohol mixed with essences, etc., while that of California is made of grapes, and is pure and genuine brandy. The French have found this oat, and a short time ago a sale was made in Chicago of thirtv thou- sand barrels of alcohol, amounting to seven hundred thousand dollars, for French account, to be reshipped in shape of cordials and various liquors, at a profit of over five hundred per cent. They have also pur- chased all the brandy in Los Angeles, and propose to send it back to California at a reduced tariff. One year ago California brandy was one dollar and fifty cents per gallon, now it is two dollars and fifty cents per gallon to ship to France, under the operation of the present tariff. Our exports in eighteen hundred and seventy -seven were, by rail, six million pounds, or seven hundred and fifty thousand gallons; by sea, nine hundred thousand gallons. We sent to England five thousand gallons; to Hamburg, nine thousand gallons. The French pay twen^-five cents per day for labor; in Califomia two dollars is paid. They pay for bar- rels, one dollar and fifty cents ; we pay three dollars. The reductioB proposed will be fatal to American interests, and more particulariy to the wine growing interests in Califomia. While our heavy internal leT- enue tax remains it is impossibl.e to compete with France without th* present tariff as a protection. The revenueaofithe country will not pei^ Digitized by VjO Dec. 4, 1878. OF THE CONSTITUTIONAL CONVENTION. 561 oiit the loss of the internal revenue tax, neither will it be advisable to lose the custom duties at present derived from French wines and bran- dies. The grape growers of the Stale have no way of calling the attention of the President and Congress to the manifest injustice of this treaty, except through their representatives assemble- •veoiug Ihuy uiny designate fur tbnt purpiia*. Mb. ESTEG. I suppose that is out of order. Tbc CHAIB. It is out of order. TBI TEXT-BOOK QOESTIOM. Mb. O'SULLIVAK. I move to take from the table the resolution I offered a few days ago, culling on the Superintendent of State Printing for information The SECRETARY read: Bttolntd, That the Superintendent of State Printing be requeeted to fomtih to this t/'iinvrnilun an Mtininta of the cost of compueltiun, pa|H-r, and binding of a series uf Rettders, siicb iik llie Paciflc CoHat ReHden* und HcGiifTey'a Seriee ut Read- Cffv, the work tu he duno by Ihe State nttder Its predf nt ByBtcni. Thut he be ref|nMtMl Vt estimate the cuet uf Ihe fimt edltiuii uf one Ihoueaiid, and ntsu the cuet uf each snccveding thuusHiid. Mb. O'SULLIVAK. This resolution was laid on the table, I think, under a misapprehension as to the purport of it The purpose of the resolution is simply to obtain information as to the cost of printing the school Readers m'the State Printing Office. The proposition that the State shall print the school books will come up by and by for the decision of this body, and therefore it is that I desire this information laid before the Convention. I see no good reason why this simple inquiry for information should be suppressed, as it was on last Monday week. It Tvill cost nothing, and simply asking the information, commits nobody to the plan of the State printing the school books. It is notorious that one of the worst lobbies that has ever disgraced this State, is the school book lobby. I say so advisedly, because there are gentlemen on this floor who have been in the Legislature who told me so, and I have heard so from school teachers also. I trust that this Conveutionavill show itaelf above all outside influence, notwithstanding it is said that a cer- 71 tain book firm of San Francisco declare that they will have this book question settled in the new Constitution satisfactorily to them, so that they will not be compelled to come up here every session and use their corrupt influence in the Legislature; I therefore hope that the resolu- tion will be taken from the table, and that the mere courtesy which hat been given to all similar resolutions will be given to it. Mr. FREUD. Mr. President: I hope the resolution will pass. It it my intention to present a minority report from the Committee on Edu- cation relative to this matter ; and it will be absolutely necessary that ttie information aimed at by this resolution be at my disposal. It is my intention to submit a proposition relative to the compilation, distribu- tion, etc., of books by the State, to be printed at the State Printing Office. In order to make a report of that character, of course the infor- mation aimed at is necessary. Therefore, I hope the resolution will pass. Mb. WELLIN. Mr. President: When this question was brought up here a week or two ago, I was very much surprised to hear the gentle- man move to lay it on the table. This is one of the questions that interest the people. We all know that there has been an immense power at work on school books in the State of California. We have a State Printing Office here of our own that could print these books and give them to the people at first cost. The question here asked is simply to see whether it can be done or not Why any gentleman should propose to lay it on the table is more than I can see. No harm can voea\it\j come from getting the information before the Convention, and then if we see we can do the people any good let us do it Mb. CBOSS. Mr. President: In this State there is quite a feeling growing up in favor of having the books for public schools furnished by the State. As I understand it, there is also a feeling that the present cost of school books is about three times what the State could furnish the same books for, and a good many of the delegates to this Convention were elected on the proposition that if there was an opportunity they should favor the furnishing of books in the public schools at the State expense. Now, if any movement is to be made during the sitting of this Convention, and I understand that such an attempt will be made, this information will be invaluable to us, especially if it should appear that the State can furnish books at about one third of the cost that indi- viduals now furnish them at I am therefore in favor of the resolution. It will cost the State nothing, and we will have ihe information. Mb. ROLFE. Mr. President: If we attempt to investigate every evil, or supposed evil, that is claimed to have existed for the last twenty- five or thirty years, we will never get through with the business of this Convention in the next five years. The way these things accumulate, it seems that gentlemen in this (invention are determined to go into every minute affair of the State, whether it exclusively belonj^s to the legislative, judicial, or executive department, and with which this Constitutional Convention has nothing to do whatever. Now, I came here for the purpose of helping to make a Constitution, not to investi- gate any evils that have been supposed to exist heretofore, which not a half dozen members of this Convention will attempt to remedy. The remedy is with the Legislature, or some other department of the Government Nov, I say that if there has any abuse been perpetrated here in the matter of books for schools, the proper place to remedy it is in the Legislature. We cannot establish a system of books here. If the books have cost four times as much as they should have cost, then, sir, it seems to ma that the place for investigation and remedy is in the Legislature. Let us go on with our other business, and let the Legislature when they meet next Spring, or whenever they do meet, attend to. theirs. I nope that all such propositions as these will be voted down, and that we may get through with this Constitutional Convention by next May, if possible. Mb. O'SULLIVAN. The Legislature probably is the place to settle railroad fares and freights, too, and the tax question, but we know that the Legislature has been corrupted, and has never passed an Act in the interest of the people on this question. Therefore I want this school book question in the Constitution. Do ^ou want to stifle informa- tion? You probably all voted for the resolution presented for the pur- pose of easting ridicule upon the office of Adjutant-General oi the btate. Why not vote for this simple resolution asking information that I desire T It will cost nothing. Mr. ROLFE. Mr. President: So far as the members of the Legisla- ture are concerned I do not agree with the gentleman. I am not here prepared to say that the legislators of this State have been a set of oor- ruptionists, thieves, and pirates. I believe that the members of the Legislature of this State nave, on the average, been just as good and honest a set of individuals as the members of this Convention. I am not here to say that we are such immaculate individuals, superior to every body that has ever existed in this State heretofore; therefore, I am not willing to act upon that proposition. Mr. O'SuLLIVAN^. I know what I am speaking of. I call for the ayes and noes. Mb. LINDOW. Ayes and noes. The motion to take the resolution from the table prar&iled. Mr. FREUD. I move its adoption. The resolution was adopted. QUESTIOM or FBITILEOE. " Mb. CAPLES. Mr. President : I rise to a question of privilege. My facetious friend from San Francisco, Dr. O'Donnell, appears disposed to have a little fun at my ex^iense. I shall not make any objection, in view of the fact, that it seems to be his peculiar department to make fun in this Convention. But for the information of the gentlemen of the Con- vention, I will state that I know nothing at all of his resolution, and that when I discuss the question referred to in the resolution of the facetious gentleman, I expect to do so before this Convention at the proper time, in the proper manner, legitimately, regularly, and not otherwita- — I ^ 'T)gle 662 DEBATES AND PROCEEDINGS Wednesday, ' PBOPOSCO AHIHDMtNT. Mb. HERRINGTON. Mr. President : I desire to introduce a proposi- tion witli reference to the Constitution. I ask that it be printea imme- diately, out of its order, and referred to the Committee of^the Whole, to be considered with the report of the Committee on Corporations other than Municipal. M>. HERRIN6T0K sent ap the following proposition, relative to BAILROAD COimiSSIOXIIS. "Amend Article (Proposition No. 444), as reported by the Com- mittee on Corporations other than Municipal, by inserting therein, next after section twenty as reported, the following: "Sec. 21. Said Railroad Commission, in the execution of its powera, 'shall so fix, and from time to time regulato, the charges for freights and fares collectible by said railroad and other transportation companies, that the revenue derived therefrom, over running expenses and expenses for repairs by such companies, shall not, in the aggregate for any year after the adoption of this Constitution, exceed, but mav be less than, ten per centum of the true cash value of the works, machinery, and prop- erty invested and in actual use by such corporations in the business of traiisportation, as the same shall be assessed annually for State taxation." Mb. HERRINGTON. I move that it be printed out of order and referred to the Committee of the Whole, to be considered with the report of the Committee on Corporations other than MunicipaL Carried. OBDIBtD rUXTKD. Ma. CONDON. There was a memorial presented from the represent- atives of the trades and labor unions of this coast, praying of this Con- vention to have a clause inserted in the Constitution prohibiting the letting out of prison labor k> oontr^tors; also, embracing several other subjects of vast importance. The memorial was presented by the gen- tleman from San Francisco, Mr, Bell, and, sir, in order that all should understand thoroujj^hly the views which actuated these vast assemblages in imparting to this Convention the necessary information, I move you, sir, that four hundred and eighty copies of the same be printed. Carried. SnrBBMB COOBT WOBK. Mb. WILSON, of First District. Mr. President: The Clerk of the Supreme Court, at the request of myself, as Chairman of the Committee on Judiciary and Judicial Department, and of other members of the committee, has prepared a tabular statement showing the number of cases appealed to that Court, and the amount of business from the several counties in the State. I deem it quite important that this information should be possessed by this Convention before we act upon the judicial department. I therefore move that the communication oe received and ordered printed. Thb CHAIR. If there be no objectien it will be so ordered. The ' Chair hears none. Stati or CAfiroBHiA, Cmc's Omcc Scpbus CoraT,) SiCBAHENTO, CALiroaxiA, December 2d, 1878. / Hon. S. M. Wilson, Chslnnan Judiclarjr Committer, ConetltDtional ConventloD : Dkab 8ia; In obedience to the request of yonreelf and other mrmben of yoar committee. I hare the honor herewith to present compaimtlve tablee (in detail) of the baiineea of thU Court darlns the fuor jeara preceding the amendment to the Con- stitution increaaing tbe'namber of Juitlcefl, and during the four jw^an commencing January flrat, eighteen hundred and seventy-four, dnce which time all the preeent , Jnslices have been on the t)ench, ahowing the number of cases tliat have been filed from each county in the State, and writs of habeas corpue Issued, with a list ofdecis- ious rendered duriog both periods; alto, the number of casea remaining undisposed of at this date. All of which is respectfully submitted. D. B. WOOLr, Clerk of Supreme Court. EXHIBIT "A." Number of Cav»t» Filed in the Supreme Court from January \»t, 1800, to January 1st, 1864,/our years prior to the amendment to the Oonttitution, increanng the number ofJutticetfrom three to Jive. > Coirireiis IH WHICH Actions OaioiHAnD. Alameda ... . Alpine Amador ButU Calaveras _. Colusa Conua CusU Del Norte _, £1 Dorado Fresno Humboldt : Inyo Kern Lake Tiassnn liOS Angeles Marin Marip ipoea.. docint Mendocino ... Merced Modoc . 14 - " -I 18 -I ♦ 6 pl s f^ 1" ^ I'd ii ■I » J 1 Mono.. Monterey . Napa Nevada Amount canled forward 7 , 28 I 32 ' 1 ' 3 6 ' 4«3 Exhibit "A"— Continued. 346 63 8 120 46 8 2 18 ^ 3 4SS Placer PInmas Sacramento .- _. ... San Benito. 1 « 10 1 M San Bernardino 4 1 361 61 3 15 16 22 30 22 64 6» 9 6 22 6 ....... 61 2 8 San DIego San Francisco. . ati m Han T.nU fthlipn ' 3 San Mateo Sanu Barboia.. ... . .. .. ■ i j 1 i; Hanta Clara . . 3 ._* ... 2 4 4< Santa Crui. . .. .. M Shasta 1 1 a Sierra Siaklyon . .!. .. i 31 Solano Sonoma Stanislaus u « Sutter . i'''.7.'". i Tehama ■_ . a Trinity ; Tulare Tnnlitmne, 6 1- S3 Ventura. .. „ * Tolo _ Yuba 1 u 51 Habeas Corpus Writs , U Totals 1,378 , 127 ; 7 ... i,t3e Number of Qiiues FSIed in the Supreme Court from January \tt, 1874, lo January Isf, 1878, /our years, during which time all of the prttent Justice* have been on the Bench. CocMTiss n WHica Aciioics OaiQINATKD. Alameda . Alpine .. , Amador .. Butte Calaveras Colusa Contra Ooota Del Norte. S i a 1 ill El Dorado Fresno Humboldt Inyo Kem Klamath Lake Lassen Los Angeles Marin Mariposa .... Mendocino Merced Modoc Mono Monterey Napa . Nevada Placer Plumas Sacramento San Benito.. San Bamardlno San Diego San Francisco San Joaquin San Luis Obispo San Mateo Santa Barbara Santa Clara Santa Crus SbasU Sierra '. Siskiyou Solano Sonoma Stanislaus Sutter Tehama Trinity Tulare Tuolumne Ventura Tolo Tuba Habeas Corpus Writs.. I 60 1 3 1» 6 34 23 1 11 11 26 3 18 .. 13 1S4 17' 21 22 ' 6 ' 1 ' 7 6 23 2 131 » 22 14 681 66 ' *i 26 68 98 22 1 10 3| 19 26 11 8 9 1 13 3 II . 41 11 h 1 .J._ I » 2 1 14 I 1 ! 1 1 •I 1 3 B 1 3* it I 11 li 30 4 a I 3 13 IM IT t 1 1 1 --j- 1 1 ts 1 " 7 » ^« 3 1. • 3 1 — 3 8 2 6 7 — 1 147 11 1 u SS T1 12 •i ' •m 7e 4 "1 11 1 1 -H-'J -d N 71 IW u 6 ;.. Totals. 1,770 178 I I III :' 1 j r t 4 , 24 wi tfifi SimilABT. tfumber qf cauut filed from January 1, 1860, t» Januarf 1, 1864. avii vat Criminal W Mandamus . — .......... ..— 7 Certiorari • Habeas Corpus . . ... U Digitized by LjOOO IC Dec. 4, 1878. OF THE CONSTITUTIONAL CONVENTION. 563 Kuinher of cautetJUtd/rom Jiinuary 1, 1874, to January 1, 1(178. CtTil. Crimiiiftl Mandamofl PiDhlbltion CsrUonrl BabeM Corptu.. 1,770 178 24 18 15 62 Total _ 2,067 Komber of caiuM awaitiog iirganiant at commencement of the prea- ent term 300 'KMrnber o/decinom rmdend 6y Ou Cburt/rom January 1, 1860,(0 Jtrauary 1, 1864. From the Bench 266 With written opinions 1,183 Wlthont opinione 12S Total 1,664 tntmbtr of dteitiont rendertd by the Omrt/rom January 1, 1874, to January 1, 1878. From the Bench 697 With written opinion* 986 Wlthont opinions 669 Total.. 2,242 XoTB. — Dnring the last fonr yean the Goart has had a Phonographic Reporter, and a great number cf opinions have been deiWered from the Bench which were uken down at the time by the said reporter. Number of caosea argued and submitted prior to the present term, remaining undlapoeed of at this date, including tboee awaiting final Petitions for rehearing not acted on.: » IUctaiikkto, December 2, 1878. D. B. WOOU, Clerk Supreme Conrt. FKUPOSKD AUtKDMEKT. Mb. RIKGGOLD introduced the following proposed atnendnient to the Constitution, relative to the banks of navigable waters. Skction — . The banks oC the navigable waters within the limits of this State are hereby declared to be public highways for all purposes incident to the use of such waters for navigation, and subject to such general regulation as may be prescribed by law. Referred to the Committee of the Whole. ♦ TBI Rjkll.ROAD COMllIgSIOK. Mb. ESTEE. Mr. President : I move that the Convention re«olve itself into Committee of the Whole, the President pro tem. in the chair, for the purpose of considering the report of the Committee on Corpora- tions other than Municipal. Before the motion is put I wish to give notice, at the request of a great many members of this Convention, that before we adjourn to-night, we will close the debate upon the question, if it is the sense of the Convention to do so. Mr. HAGER. Mr. President: The Committee on Corporations have presented a new nport this morning which none of us has had an opportunity of examining. We do not know anything about it. After this debate has been continued here for a long time, and we pretty gen- erally understand what we have before us, the committee have pre- sented a new report this morning, and I think it will be hardly proper to discuss that matter to-day and jrote upon it to-day. I would like to cee it put in print and let it be the order of business for to-morrow. I think that such an important matter as this we ought to have printed and laid on our desks. I do not suppose there are any gentlemen in this Convention who could vote intelligently upon the propoeition for want of information, for want of opportunity of reading it deliberately. I hardly think it would be just. I suggest to the Chairman of the com- mittee, whether it is right that we should be compelled to vote upon an amendment of this importance which for the first time comes before us to-day. We could go on and discuss it, but I suggest that we had better take the vote to-morrow. This amendment only extends over ten or eleven lines, while, if I recollect right, the original extended over some twenty or thirty lines. Mr. ESTEE. This amendment will be printed in the daily Journal. I merely gave notice so that gentlemen might improve the opportunity to address the committee to-day. If we are not through when night cornea, I am sure that no member of the Committee on Corporations will try to press a vote. Mr. EDGERTON. I would inquire of the Chairman whether his motion contemplates merely the termination of the consideration of the report in Committee of the Whole. Mr. ESTEE. Of course, that is all. Mr. EDGERTON. Not final action by the Convention upon it. Mr. ESTEE. Only in Committee of the Whole. The motion to go into Committee of the Whole prevailed. IN COMMITTEE OF THE WHOLE. Mr. LARKIN. Mr. Chairman : In order to bring the discussion that may arise upon this question to the questions properly before this com- mittee, I move the previous question upon the amendments now pend- ing— 80 that the discussion to-day may be upon the amendment offered by the Committee on Corporations this morning — the amendments onered by Mr. Waters and Mr. Prouty. I desire this body to stick to the question and not have the latitude' they have had before. Mr. BROWN. Mr. Chairman: I do not see that we can ascertain whether we wish to vote upon these amendments that have been before the committee or not until the body learns what will be presented by the Committee on Corporations. We do not know what we will have to rote upon besides the amendments, and until we know something of those to be proposed I do not think we can vote intelligently upon the subject of the other amendments which have been introduced by Mr. Waters, Mr. Blackraer, and others. I think it is but fair that this body ■hoold learn what we have to vote for besides before we vote upon these. Mr. ROLFE. I second the motion for the previous question. Mr. ESTEE. There is no motion pending. Mr. UUESTIS. I second the motion. Mr. TINNIN. I second it, too. Mr. ESTEE. I wish to present a report of the committee relative Mr. LARKIN. I insist upon my motion for the previous question upon the two amendments pending. You can offer yours afterwards as much as you please. Mr. cross. I wish to ask a question. If we now order the previous question on these two amendments does that cut off debate upon stich other amendments aa may be offeredT Thr chairman. It does not. Mr. REYNOLDS. Mr. Chairman : It seems to me quite unnecessary to move the previous question, or to vote upon these amendments. It seems to me that the Convention is in a temper to Mr. NOEL. I rise to a point of order, that the previous question is not debatable. Thr CHAIRMAN. The point of order is well taken. Mr. REYNOLDS. I wish merely to state Tbr chairman. The gentleman will come to order. On a division, the main question was ordered by 84 affirmative votes. Thk chairman. The Secretary will read section twenty. Thi secretary read section twenty, as originally reported by the committee, as follows : Src. 20. Three Railroad Commissionersahallbe elected by thequalified voters of this State, at the regular gubernatorial elections, and whose salary shall be fixed by law, and whose term of office shall be four ^ears. They shall be qualified electors of this State, and shall not be interested in any railroad corporation, or other transportation company, as stockholder, creditor, agent, attorney, or employe, and the act of a majority of said Commissioners shall be deemed the act of said Com- mission. Said Commissioners shall have the sole power, and it shall be their duty, to correct abuses by railroad corporations, or other transpor- tation companies; eetabllsh rates of charges for the transportation of passengers and freight by railroad or other transportation companies, and pul)li8h the same from time to time, with such chanf^ as they may make; report to the Governor annually their proceedings, and such other facts as may be deemed important; hearand determine complaints against railroad or other transportation companies; affix penalties and enforce them through the medium of the Courts; and perform such other duties as mav oe prescribed bjr law. Nothing in this section shall prevent individuals from maintainmg actions against any of such com- panies. It shall be the duty of the legislature to confer all such farther powers on the Board of Railroad Commissioners as shall be necessary to enable them to perform the duties enjoined on them in the foregoing sections. The chairman. The first question will be on the amendment offered by Mr. Prouty. The Secretary will read it Thr SECRETARY read : "Add to section twenty : * Provided that nothing in the foregoing sec- tion shall be so construed as to prevent the Legislature, by a three- fourths vote of all the members of both branches thereof, from changing or annulling the action of said Commission, as in their opinion the pub- lic good may demand.' " The amendment was rejected. Thr chairman. The question now recurs on the substitute offered by Mr. Waters. The Secretary will read. The SECRETARY read: " Every railway company or corporation, and every other common carrier by railroad, now or hereafter doing business in this State, shall be entitled to a reasonable compensation for its services, and no more. Three Railroad Comraiaeioners shall be elected by the qualified electora of this State, at each gubernatorial election, whose salary shall be fixed by law, and whose term of office shall be four yeare from the first Monday in January succeeding their election. .Each of them shall be a qualified elector of this State, and shall not be interested aa owner, partner, stockholder, creditor, agent, attorney, or employ^, in the business of transportation. Said Commissioners, or a m^ority of them, shall make a schedule of reasonable char^ for the transportation of passen- gers, freight, and cars over each railroad now or hereafter operated in this State, as well as reasonable rates for receiving, handling, and delivering freight and cars on such roads. In an^ action, prosecution, or proceeding By or against any person or corporation, such schedule, or a certified copy thereof, shall be deemed, received, and taken as prima facie evidence that the rates therein fixed are reasonable rates of charges over the road or roads for which such schedule was prepared. They shall alter, revise, and amend such schedules as they shall, from time to time, deem just, and shall perform such other duties and possess such further powers, not inconsistent with this section, as may hereafter be prescribed or conferred by law. No charge by any railroad company, or other common carrier, shall be deenjed reasonaole if in excess of the sum which it is now entitled by law to exact for a like service." The substitute was rejected. Mb. ESTEE. Mr. Chairman : I now offer the amendment as recom- mended by the Committee on Corporations other than Municipal, and ask to withdraw the other section and insert this in its place. The SECRETARY read : "Sec. 20. Three Railroad Commissioners shall be elected by the qualified voters of this State, at the regular gubernatorial elections, whose salary shall be fixed by law, and whose term of office shall be four yeara. They shall be qualified electors of this State, and shall not be interested in any railroad corporation, or other transportation com- pany, OS stockholder, creditor, agent, attorney, or employ^, and the act of a majority of said Commissioners shall be deemed the act of said Commission. Said Commissioners shall have the power, and it shall l>e their duty, to establish rates of charges for the transportation of passen- ^ Digitized . 564 DEBATES AND PROCEEDINGS Wednesday, gen and freight by railroad, or other transportation companies, and publish the same, nom time to time, with such changes as they may make.: to examine the books, records, and papers of all railroad and other transportation companies, and for this purpose they shall hare process of the Courts; to hear complaints against railroad and other transportation companies; to send for persons and papers, administer oaths, take testimony, and report cases of contempt to the Courts for their action, and enforce their decisions and correct abuses through the medium of the Courts, and perform such other duties as may be pre- scribed by law; to report to the Goyemor, annually, their proceedings and such other facts as may be deemed important. Nothing in this section shall prevent individuals from maintaining actions against any of such companies. It shall be the dutv of the Legislature to confer all such further powers on the Board of ftailroad Coinmieeioners as shall be necessary to enable them to perform the duties enjoined on them in this and the foregoing sections. Mb. HALE. Mr. Chairman: I send up an amendment. ' The SECRETARY read: ' "Amend section twenty by adding thereto: 'Provided the Legislature shall have power to remove anyone or moreof said Commissioners from office for dereliction of duty, or corruption, or incompetency therein; and whenever, from any cause, a vacancy in office shall occur in said Commission, the Governor shall fill the same by the ap|x>intment of a qualified person thereto, who shall bold office for the residue of the unexpired term, and until his successor shall have been elected and qualified.'" M«. WILSON', of First District I have an amendment I desire to offer. Mr. LARKIN. There was an amendment offered by Mr. Estec, and on amendment to that amendment was offered by Mr. Hale. Tdi CHAIRMAN. The proposition offered by the committee takes the place of the one that was in the report. Mb. LARKIN. I simply desired to learn the ruling of the Chair. Tbb SECRETARY read Mr. Wilson's amendment, as follows: " Strike out lines one, two, and three, and insert in their place as fol- lows, viz: 'Section twenty. There shall be ap|winted by the Governor, by and with the advice and consent of the Senate, three Transportation Commissioners, who shall hold their office for the perioti of four years from and after their appointment, and until their successors are appointed and qualified.'" Mb. BARNES. Mr. Chairman: I second |he amendment. Mr. CROSS. Mr. Chairman: I do not understand that this is offered by Mr. Wilson as an amendment to the amendment. It is an amend- ment to the proposition of the committee. Mr. Hale's amendment does not go to the first portion at all. Thi CHAIRMAN. It is an amendment to the proposition before the Convention. SPKICB OP HB. BARNES. Mb. BARNES. We have had this morning the best illustration of one of the propositions I propose to argue to the committee that could have been presented. The Committee on Corporations other than Municipal, more than three weeks ago, presented for our consideration an article on corporations, the main interest ol which centered in section twenty, now under discussion. It was, so far as I could understand the Chairman of the committee in his introduction, a novelty, not merely in legislation, but an experiment, so far as Constitution-making was concerned. I propose for a moment to comment merely upon the argu- ments ad vanced in support of it. If I understood the views expressed for the committee by its Chairman and by others, it was substantially that this elected Commission, with most extraordinary legislative and judicial powers, was necessary because of the universal popular distrust of the legislative department of the government. It stood upon the assumption, if I may use the phrase, that the representatives of the people, coming biennially fresh from the people, have ceased to have any partnership with the public interests, and recognize no constituents except these great corporate interests, whose cause they venally espouse nnd whose plunder they share; upon the idea that there is that in the very atmosphere of Legislatures which so coniipls and taints our public men that they are almost by the course of nature seduced by bribes, and become the mere venal partisans of plundering schemes and schemers, corporate and individual. What foundation there may be in individual experience, what justification there may be in the minds of those who have so expressed themselves, I know not, nor indeed do I care to know, except that it leads me to remark that this prejudice has been so far cherished and enlarged upon in the committee that there seems to be no possible restriction upon this popular branch of the government which does not meet with universal favor, and often, I fear, with unthinking support, simply because an Act sought to be incorporated in the Consti- tution is a restriction upon or a destruction of powers, which, if we arc to have any Ijegislature, properly and of right belong to it. I have sometimes feared that there was something more of temper and of pas- sion than of reason — more of what has been called the hoarse cry of^the demagogue than of the voice of true statesmanship. Now, sir, it seems to me that if all that has been asserted on this floor be true, republican government is a failure; and that concentrated power, a government of the few, and the fewer the better, is our only refuge from national shame and destruction. Certainly, sir, if these aspersions be correct, there should be not only reform, but an absolute change in the form of our Government itself. If our ballot box breeds nothing but corruption, if these halls contain biennially nothing but a seething mass of degradation, where public right and public justice lie prostrate, helpless, and discrowned, it is time that we abandon our form of government. It is time that we abandoned a ship poisoned with ]>estilence and rotten flrom bulwark to keel. It is time now that we should have a rebellion; not a rebellion armed against constituted authority, but a change, as universal, and siraultaneoug, and void of force as God's irresistible Spring, that blushes with flowers and clothes with more than kingly raiment the length and breadth of a barren continent. If these accusations are well founded, endurance should be no longer the bodge of our tribe, and that toleration should have an end.' But, sir, is there any gentleman who is prepared to abandon the principles of representative government? I think not Are there any here who are prepared to declare that this Govcraraent should be administered by a succession of elected Commissionen; that all the |xiwers of the State should be taken and vested in a horde of irres]K)nsibIe Commissions? I think not. We know, whatever w« may say, that as a whole our system of government is the best that human wisdom has as yet devised, and for one I am not willing to impeach or impair it by intrusting to any three men the powen tad prerogatives which belong to either branch of the Government- No man in his senses will pretend to deny that the power to restilate all corporations exists in the people ; that it may be maintained and exercised through their appointed agents to the extent, if it be neceaaaiy for the public good, of the condemnation or confiscation of property or privile^s enjoyed by any corporation which menaces public right, and the enjoyment of life, liberty, property, and the pursuit of happinesi. The only question that wc have here to discuss, is as to the manner and the mode in which that power shall be exercised. Now, the most care- ful consideration would be demanded of us, if we were assembled hen as a Legislature merely, to pass a law to go into effect and remain in force two years only ; which might be revised, amended, or repealed, as expe- rience demonstrated it was insufficient, or fruitless of the results sought to be oceoinplished by it. How much more essential is care and con- sideration necessary, how much more is prudence demanded of us in the work now intrusted to our hands. Hasty legislation may be repeated of and repealed. It is simply for a moment mischievous. Hasty ConsUta- tion-making is a vice that may rot and ruin the very fabric that we are attempting to uphold. No systems of law, no principles of goverament, are of value except they be the result of growth, the fruit of experience, the ripe and matured result of the wisdom that flows Crom it. The science of government itself, of that which shall bring the highest welfare to the body politic and to the individual citizen, is a progressive science. The principles, to be sure, are immutable, unchangeable; bat their application must vary and change with the growth and progress of States and peoples. They depend upon a thousand circumstances; tbej require to be modified and adjusted, and adapted to an infinite variety of conditions which we cannot control, which we cannot foresee, and for which no human wisdom has ever been or ever will be able to provide. Therefore, while the principles should be engrafted upon the Constitu- tion, their application ought not, philosophically speaking, to be restricted, and made incapable of adaptation to inevitable changes. This con- sideration becomes the more important when we consider the vast interests with which we are dealing. Corporations have grown to most enormous dimensions in the United States. The railroad system of this State, and which seems to cause so much anxiety, is like a single drop of rain that fnlls from the clouds in comparison with the deluge that aeacends from a Summer storm, when compared with that of other States. I find by the statements made by Simon Sterne, in his pamphlet on the railway system of the Uaitd States, so flatteringly referred to by the Chairman of the Committee on Corporations — a l»ok which I loaned him, and of which he did not make the best use that could have been made, for, certainly, the vien expressed by Mr. Sterne by no means support the conclusions embodied in his rejxirt and article — that in the year eighteen hundred and thirty there were only twenty-three miles of railway within the whole limiU of the United States. In eighteen hundred and forty they numbered two thousand two hundred and eighteen miles; in eighteen hundred and fifty they had increased to nine thousand and twenty-one miles; in eighteen hundred and sixty, to thirty thousand six hundred and thirty- five miles, and in eighteen hundred and seventy-six there were in actual operation in the Uniteetition, a practical nionopoly. Their mana^ment affects the people of this State not less seriously than that of other States. We have almost no other highways. We have ho great rivers, no great canals. We never had any internal improvements, except poorly Duilt roads, wandering over the mountains and through the plains, wherever convenience might seem to require. Everybody knows the railways were the pioneers of civilization in many parts of this State, and what- ever roads there were iu use before the era ^the railway have been almost entirely obliterated from disuse. Th^V is no such thing as a carrying trade but that performed by the railroad companies. We are entirely dependent upon them, iuat as they are dependent upon us. Now, sir, while in common with the mass of our citizens, I feel proud of the courage and enterprise which conceived and constructed these mag- nificent highways, I cannot but acknowledge that complaints are general and many against their management. I think I know, too, that very many of these complaints are founded in ignorance, in pr^udioe, antl that much of the hostility exhibited has been engendered, not by the system of management, but by the personal bearing of some of the man- agers. Things that are done by or charged against the railways might have been done by other men without a word of complaint It is a question of personal popularity, rather than anything else. But, not- withstanding all complaints, notwithstanding nil wrongs, real or fancied, dilated on here, we cannot live without the railroad any more than the railroad ci^n live without us. We cannot hurt it without hurting our- selves. It has accomplished a great work. It has invaded the wilder- ness and put to- flight its repose and peace by the music of successful labor. It nas ended the mission of the pioneer; it has left him no soli- tude to conquer. Fast and faster upon liis retiring footsteps tliese mas- sive columns of enterprise and capital have advanced, and made his most silent haunt their abiding place. The deserts no longer protect him; the mountains no longer give him shelter; plain and valley and mountain gorge are trembling with the hurrying commerce of Occident and Orient, and the white death that reposed on the brow of the Sierras has been transmuted into glowing life by the invisible touch of the gods of steam and electricity. Accessions of population, hitherto unknown sources of wealth, the great staples of agriculture, gold, silver, iron, and eoal ; cities, towns, seminaries, schools, the visible signs of progress and civilization, have sprung up in its path, and have fullowens for the feeling are I do not fully understand, or perhaps appre- ciate, but I know that there is a general and deep-seated dissatisfaction with their management. I think it grows out of small and petty things; but for all that it exists, and I know when my colleague from San Francisco, Mr. Barbour, one day referred to a defeated candidate for delegate at large on the Workingmeu's ticket, he turned and said, " He ran as well as you did." I know very well what was the matter in that election. It was not that the people had so much more confidence in the suc- ceasftil local delegates from San Francisco than they had in gentlemen who had been residents and citizens of that city for many years, and sonae of whom, at least, were identified with its best history, but it was beoMise there was a general impression among the people, created by the press, that this non-partisan movement was a scheme ^tten up and engineered by the railroad companies and other corporations, and that we were to be sent here with tne collar of the corporations about our necks, to do their bidding. And so the people looked about to see what they should do. They could not beat us with the Democratic ticket; they knew they could not beat us with the Republican ticket, because the combination was too strong ; so manv a good Democrat and many a good Republican down there, who wanted to see the so-called oarporation agents defeated, walked up to the polls and voted the Workingmeu's ticket. They didn't love the Workingmen as much as they feared us. That Was what was the matter. We propose to remove that objection before we run again. [Laughter.] The non-partisans are, and will be, right upon this record. We shall vote in favor of the legislative control ofall corporations, declaring in the Constitution that that power shall be guaranteed in this Constitution — if it be adopted — for all time to come. This was the platform uppn which we went to the people of San Fran- cisco, but somehow we could not make them believe it. But in securing this popular right, we should take heed of the experience of other Stales who nave dealt with this subject, and which have had a deeper interest in it than we can possibly have, for they have suffered more. If we have a particle of sense, and that of the commonest kind, we will not undertake to beget these elective, irresponsible, disqualified, political rail- road triplets, crowned for four years, bom together and predestined to die together. Give us a Commission to be appointed by the Governor, with such terms of oCBce that there shall be always one or more Com- missioners of experience in office with power in the Executive of removal; with powers ample to enable them to investigate the affairs of the corporations; to compel the disclosure of contracts and dealings with all persons and corporatums; to ascertain what delinquencies, discrimi- nations, and unjust exactions, if any, are made; to hear complaints, report the same to the Legislature with such remedial measures as they may deem proper, and bv all legal proceedings in Courts of law keep the corporations within the limits of their chartered rights, and the people will be satisfied. Make these experiments, and you will be apt to dis- cover that our people will rather bear the ills they have than fly to others that they know not of. SPISCH OP MR. WHITK. Ml. WHITE. Mr. Chairman : I am anxious to say a few words upon this question, simply as a farmer. It seems, sir, like an act of temerity on my part to attempt to speak upon the question after hearing the elo- quent address of the gentleman from San Francisco, Col. Barnes, who has just taken his seat. I cannot speak as be speaks, but I will try to make myself understood, while I give you the views of the farmers of my district, in my own plain way, on this subject. Now, sir, in the firet place let me say that it has been argued that it is only interesting to farmers; it has been so intimated on this floor; and one of the daily papers of this city takes up the absurd idea, and says : " The Working- men should not bother themselves about this railroad matter, it is inter- esting only to farmers, and they can take care of themselves ; the Work- ingmen should attend to the land matter, and to the great taxation question ; we say look out for youraelves, and let the farmers do the same." What an absurdity ! Mr. Chairman, people who talk in this way must think that they are addressing fools, and their language becomes insulting to the Workingmen. I would like to ask what class, what profession or calling in life would or could succeed if the farmers fail to meet with success ? Could the day laborer succeed T Could the plow makers succeed? Could the wagon maken succeed T Could the reaper and thrashing machine makers succeed? Could any mechanic succeed? Could the storekeeper succeed? I would ask, sir, what class or calling could succeed If the farmers are crushed down ? Not one, and you all here in this Convention know it. Then why such silly talk here on this floor, and in newspapers pretending to address words of sense to an intelligent community ? That my fellow delegates may understand that I have the right to talk for the farmers of my district, I will tell you, Mr. Chairman, that for twenty-five years I have lived and worked on the same fEirm, and have raised and educated a large family there, and have in all that time never made a dollar but what I made in the track of the plow and the reaper. The farmers are overcharged by the railroads; in fact, we are kept poor by these enormous charges, and that is the rAbon we ask of this Convention to place our relations with them in a more satisfactory position. To illustrate, I will give you what it costs to remove the crop of an acre of land of our principal productions from our valley to San Francisco, a distance of one hundred miles by railroad. One acre of wheat, three dollars and fifty cento; one acre of barley, seven dollars; one acre of potatoes, seventeen dollars and fifty cents ; one acre of beets, thirtv-five dollars; in all sixty-three dollars. Now, sir, this same freighting, for the same distance, is done in the State of New York for nine dollars. This certainly is a wonderful difference, and, in my opinion, the railroad company are robbing the farmers by exacting such enormous charges. Gentlemen on the other side say : " Ob I you have the right to correct all this, but you had better not exert that right. It will only kick up a fuss with the railroad people and do you no good." I admit the correctness of this under the present system ol'^dealing with railroads, but we want a change, and we must have it. The Supreme Court of the United States has said to the people of California, " You oum the right to say what these railroads shall charge and what they shall not charge; the railroad company owns the right to receive and pocket every dollar that is charged and paid for freights and fares." We do not dispute this right of the railroad people, why do they dispute our rights? — the right to say what they shall charge, and that is all we ask. Mr. Stanford wrote a letter intended for this Convention and laid on all our desks, that our attention might be drawn to it. In that letter he claims that it is confiscation to create this Commission to regulate fares and freights. Now, my friends, I will ask you to consider what I will draw your attention to to illustratetbeabsurdity of this claim of Mr. Stanford. Some sixteen years ago there was no way to get out of our valley of the Pajaro to go to San Francisco but by the way of San Juan, in Monterey County, which wi^s a circuit of twenty-five miles. To avoid this route, we got together at Watsonville and subscribed about eight thousand dollars, and with this money graded a road across the Santa Cruz Mountains which was to be kept open as a toll road. We received no aid from either Santa Cruz or Santa Clara Counties, the money that built it and purchased the right of way was our own pri- vate money, yet did we attempt to fix our own rate of tolls as we saw fit? No, sir; we did nothing of the sort, for the law of our State would not allow us to do so; when the road was finished we sent one of our party to the Board of Supervisors of our county and got from them our schedule of tolls ; and that was not all: we sent that schedule of tolls to the Board of Supervisors of Santa Clara County, as the road lay partly in both counties, and got their consent to the schedule allowed us by the Board "of Supervisors of Santa Cruz County. That done, we posted on the gate the rate of tolls we were allowed to charge, and col- lected in accordance therewith. When the road afterwards got into bad repair, the proper authorities forbid us to collect tolls until we had put it into good traveling condition. Was this confiscation, Mr. President? No, sir, it was nothing of the sort, and yet it is a much stron^r case than the one Mr. Stauford makes out in his letter on confiscation ) for the money that built our road was all our own, while the money that built his railroad almost ail came from grants and donations made by the State and National Government Now, the question before us is, will we do what we have a right to do — regulate the fares and freights to be charged by railroads? We cannot leave it to the railroad company itself. That would be absurd. Shall we leave it to the Legislature, or shall we establish this Commis- sion, to take charge of the whole matter? The gentleman who has just sat down aligned on both sides of the question in many respects. He spoke in favor of a Commission, but was undecided in his language, and wanted the Commissioners appointed by the Governor. What does that mean? It means just this: it gives the railroad people three chances to control the Commission instead of the one chance they would have if the Commissioners were elected by the people, as we propose. Under his plan, they would have their first chance in a party conven- tion to control the nomination of Governor; if they failed in that, they would fall back on their second chance, to control the State Senate — ^a body they have never failed to control in the last twelve years — and thus prevent the confirmation of any Commissioners, nominated by the Governor, objectionable to them; if they do fail in the Senate, which is not at all likely, judging from the past, they have their third chance with the Commissioners themselves. Now, on our side of the question, we propose a plan by which the railroad people will have out one chance to control the Commission, and that a very slim one. We pro- pose to elect the Commissioners by single districts. On the same day, we say to the people, " choose your men, and be sure who you choose, for it is your own property they will have charge of. As you hold your ballot in your hand, look your man in the eye, as it were, think of his record in all that is past of his life, and if you think the look he gives you back is frank and honest, and the record of bis life such as you approve, then drop your ballot in the box, and not otherwise. If you forget ^to do this, and elect a thief, it is your own fault, and you will have no one but yourselves to blame when you suffer for your blunder." 568 DEBATES AND PROCEEDINGS Wednesday, But even then we have the consolation of knowing that we are no worse off than we are now, and besides, we gain in one respect immensely. We have saved the Legislature, the fountain from which all our laws flow, from demoralization disgusting to contemplate. It is a fact, a fact to be deplored most bitterly, that the whole people of the State have become almost unanimous in the belief that the Legislature is hopelessly corrupt and vicious. Why is this? It is, Mr. Chairman, in my belief, because of this railroad question being brought under consideration at every session, either by honest men seeking relief for the people from the grasping cupidity of this great corporation, or b^ dishonest men seek- ing to levy blackmail on that corporation. In either case the effect is the same on the morality of the Legislature. As the session opens the railroad is here with a few devotM members in its interests in each house. The Vianagers of the railroad fight soon find out who have thieving schemes for the Legislature, and who have honest measures to put through. To the managers of the thieving scheme they snv, "If you help us, we will help you," and that bargain is soon made. 1*0 the managers of the unobjectionable measures they say, "If you do not help us we will see that your measure is defeated, let come what will," and by and by they too will fall into line on one excuse or another. Thus the pool is made and a whole shoal of thieving laws go through together, to swindle the people of the State in one way or other. In this way the railroad controls the Legislature without usiug much gold, but gold they will use when other means fail. Is not this a terrible thing to think of, my friends, that all uur laws spring from such a vicious, corrupt pool, yet these are facts that everybody is aware of. Gentlemen have atood up here and talked about our Legislature very mildly and politely. In fact they have avoided saying anything that was uncomplimentary. Our respected Chairman of the Committee on Corporations, Mr. Estee, disclaimed any wish to make charges against our Legislature, but car- ried us all the way to New York to comment on the Legislature of that State, and showed us its rottenness and corruption, caused by the rail- road question. Then he took us to Pennsylvania and other Stales, illustrating the same fact in ever^ instance, but, as I said, bo politely avoided speaking of our California Legislature. Now, Mr. Chairman, I do not see any good reason for this forbearance, and I shall not prac- tice it. I know there were many good men in the last Legislature of our State; men who could not be purchased or swerved from duty by any power on earth. But it so happened that there were focty-four men out of the eighty, here on this floor last Winter, who were always ready to jump on ooard the railroad car when the whistle blew, and in the Senate the majority was much larger who were pliant tools of the railroad. Now, this is a thing that every one knows; at least if it is not true, the papers of the State have been lying terribly about the character of the Legislature, for the press was nearly unanimous in its denunciation of its venality and corruption. I have collected several articles from difTereut newspapers in this State to show you how universal this belief was in all parts of the country, but not wish- ing to occupy the time of the committee too much, I will only read you one, which I take from the Daily Examiner of March first, eighteen hundred and seventy-eight. The last Legislature was, I believe, about two thirds Democratic in each house. No one will, therefore, dispute the authority of the Examiner when speaking of a Democratic Legis- lature, for it ia the acknowledged leading organ of that party : " In Mias Charlotte Bronte's admirable novel of Villette, she makes her heroine listen to some improper suggestions, oS'ered by a companion, for the purpose of giving the latter an opportunity of snowing herself in her true colors. The serpent once seen, the gifted authoress remarks, it was easy enough to avoid its slimy trail thereafter. Recent develop- ments in our State Legislature prompt a reference to this observation, made by Miss Bronte. "The railroad discussion in the Senate and Assemblv caused many a serpent to leave its concealment and wriggle forth into daylight. It was not a pleasant sight. It was as disgusting to the spectators as it must have been painful to the reptiles themselves. But there they were, shining in metallic-appearing scales, unfolding coll after coll, creeping on the ground, while the potent magician and snake-charmer, the great railroaa corporation, piped the music, to the measures of which their slimy bodies undulated in grewsorae harmony. It was a remarkable sight to see the fascination which compelled the creatures to crawl on their bellies, groveling in the dust and filth at the feet of their stem, pitiless master. It was astonishing to see the inexplicable power of the one, and the disgraceful, servile ol:«dienoe of the other. But the wonder grew, and was changed into horror and indignation, when the hard task-master forced the crawling things to raise their heads and hiss and strike with their venomous fangs at the very hands which had, through mistaken pity and trustfulness, reared, supported, and protecteil the very creatures who essayed to reward their benefactors with insult and the blackest and most perfidious treachery. Were not the occasions so momentous, the neeils of the public so pressing, it would almost be amusing to hear each reptile utter Its characteristic sibilatlon. One said this and another wanted that. One had this excuse and his fellow another. But the whole performance was for the same object, and was actuated by the same purpose, and that was to delay, defeat, and defraud the people of their rights, and to secure, and render still more onerous, the Durden imposed oy a monster monopoly, which Is as dangerous to the civil liberties as it is disastrous to the material Interests of the people. " Of course the men who do these things will put on airs and afiect the manner of virtuous indignation. They will say that 'we acted accord- ing to our best judgment.' That ' what we did wo believed for the interests of the people.' That 'it is not just to accuse them with being actuated with mercenary motives, without proof,' etc. There will be bushels and bushels voided of such stuff as this. But they can spare themselves the trouble, and not add insult to injury. The motives which actuate them and their purpose are well known. " It is a legal presumption that what a man actually does, that it is his intention to do. When the members of the present Legislature inflict* positive and enormous injury upon the interests of the people, whieli they have sworn to protect; when they desert their colors, and vlth traitorous purpose mjrch over to the enemy and array themselves beneath its banners, and do battle in its behalf, they will be held responsible for their acts to the fullest extent. They knew, well knew, what they were doing, its consequences and effects. They knew, and now know, that they deliberately betrayed their constituents ; that they refused to be governed by their oaths; that they attepipted to deliver over the people bound hand and foot tn a merciless and remorselesi cor- poration, which, in the fourteen or fifteen years of its existence, hal never performed one of the obligations it undertook; which has never obeyed any law which did not further its interests; which knows neither honesty ,,good faith, nor gratitude for the countless favore it bis received ; which, at this moment, before the present Legislature, it seek- ing to acquire .other people's properly without rendering a just, or any equivalent; in short, a corporation which has become a public enemy, the aggressions of which must be restrained, or else it will soon as com- pletely rule this coast as ever did the Czar control the Muscovites. " Yet how blind are the poor, wretched toolswho do the bidding of thil giant corporation in the Legislature. Their present acts in favor of their masters are really politicaT suicide. They will drop from sight and notice directly they have fulfilled their base purpose. Thoy appearand fret and fume their Utile hour upon the stage. After they have done their disgraceful spiriting they disappear like the noisome vapors that hover over malarial marshes when the soil is reclaimed and the wh<^ some light and air have done their health-giving work. They willncTt^ be remembered, save as when one reads of the servile jurymen who, awed by the threats or won by the cajolery of the infamous Jelfrevs, brought in venlicts whereby innocent men and women, even ehlldren, were slain. They are not known by name, but under the generic tiUe of the corrupt servitors of power,' who were as dead to the calls of humanity as they were to the dictates of honor and patriotism and the sanctity of their oaths. Such will be the fate of these railroad legislative attorneys. They will sink into — for them welcome— limbo, the gloom- ful, murky infamy of which will shelter their individualities. But ass body, they will, for all time, be h,>Id up to reproach as the legislators who forsook the cause of the people and espoused that of the common enemy. Why they did this — whether it was for money, for place, <» because of their ignorance, or their folly — it matters not In sny case they are equally criminal, and should, and will, meet with a like pun- ishment. 'They will be gibbeted for all time as the railroad hirelings who, under false pretenses, entered the Legislature for the purpose of betraying their constituents. How do they like that reputation? Do they think they have received a yuirf pro ^ao which will compensate them for bequeathing such a heritage to their children? May be they think so; but how pitiable is their mistakejond how terriUe will bt their punishment." Mr. Chairman, the serpent once seen, it is easy enongh to avoid its slimy trail, and I say let us bp sure to do so. The comments on the Act of the Legislature that I have just read are a fair specimen of thote of the press of the whole State, yet, sir, we are asked to trust this ques- tion of fares and freights to that body that has fooled us so often. I object to doing so for these reasons: The first is that it is practically impossible for the Legislature to fix a schedule of fares and freights that would be just even to the |>eople or the railroald company, if they were ever so honest in their endeavors to do so. Secondly, if it was practica- ble they would not do it ; and, lastly, because thrusting this question oB the Legislature demoralizes that body to a degree that makes it con- temptible in the view of the whole people, and makes respect for Its action on any question impossible. Gentlemen talk of the immense power wo propose to give the Commission ; this, in my mind, is all humbug. The power we give them is not half as much as we canter oo other departments of the government. Think of the power we give the Judges of the Supreme Court, and, I may say, the District Courts. Why, we place everything in their hands, life as well as property, and yet w» are not afraid to trust them, and our trust has never been abused, so br as any man in the State knows or believes. Colonel Barnes says we can- not trust the people to elect the Commissioners — that they must b* appointed by the Governor, yet he forgets to tell us that the Governor is to 00 elected by the people ; and that generally he plavs into the hands of the railroad people to secure his election, and after his election for the purpose of going to the United States Senate. I heard a railroad man, yesterday, say openly, at a dining table, that no man could be Governor of California without the consent of the rail- road cori>oration ; he boasted that it elected Haight and defeated Hsi^ht; that it elected Irwin and would be even with him if he went agsinrt their interests. Why then is it so safe to leave the appolnUiienls of Commissioners to the Governor? I will ask you to recollect, Mr. Chair- man, that there were three Commissioners ap|iointed by Governor Irwi» under the provisions of an Act passed three years ago, and I will say that the people of the State believe these men were honest, and that they did their very best to do their duty so far as the milk and water firovisions of that law would enable them to do. They came before the ast Legislature with three bills to regulate fares and freights of rail- roads, recommending their passage. What was the fate of those bills? Why, sir, every clause In each of the throe proposed laws that fsTorid in any way the railroad corporation, were formulated into one bill, and that bill was passed by the Legislature, and is well known as the Hart bill; and I say that this Hart bill is an insult to the people of Cali- fornia. Yes, sir, I say it is a downright insult to the intelligence of our people; an insult thrown in the face of every citizen of the Stale, yet we are asked by gentlemen on this floor, to trust the Legislature spin, with this, to us, vitally important question, notwithstanding the in&- mous job I have just referred to. That bill provided for the appoint- ment of one Commissioner instead of the thE(9r4t legislated out of offies. Digitized by VjO Dec. 4, 1878. OF TH5 CONSTITUTIONAL CONVENTION. 669 Who appointed that Comraissionor T The Governor appointed him. Did he select one of the three men who had proved themselves honest and faithful to the people? Oh, no! he did nothing of the sort. On the last day and night of the session of the Legislature there were some maneuvers in regara to that appointment; a sort of sleight of hand trick played about this building that resulted in all three of the honest and trira Commissionersbelngthrownoverboard,for no other reason that the people could see but that they were honest and true to the trust con- fided in them ; yet Col. Barnes insists that the appointment of the Commissioners Would be safe in the bands of the Governor. Yes, Mr. Chairman, he is the man to select the Commissioners, because if he makes a mistake, as Governor Irwin evidently did. and appoinU houest men, he can remove them and disregard them as Governor Irwin did in this ease. I do not wish to be understood as saying anything against the character of the gentleman the Governor appointed in this case ; he may be all that his friends claim him to be, and I suppose he is honest and honorable, but this is a fact of no conse<)^uence to the people, for under the Hart bill he has no power worth talkmg of. Pretty much all he has to do is to gather railroad statistics. Therei are seven or eight pages of this Act taken up with high sounding statistics; the Commis- sioner is required to gather all the veriest humbug that ever was written or strung together. To show you this I would read for you four or five pages of this Act, but it would only weary and disgust you. If these statistics were of any use, the Secretary of State could have got them and placed them on file in his oSice, without a dollar of cost to the people, if directed to do so by a resolution of the Legislature; but no, tbey must have a Commissioner at four thousand dollars per annum, a clerk at two thousand four hundred dollars per annum, and contin- gent expenses of about two thousand dollars more, all to gather statistics of absolutely no use whatever to the people of this State; yet this is the work of the immaculate Legislature wo are asked to trust. Now, Mr. Chairman, why should we not trust the people to elect these Comipissioners? Do we not trust them to elect every other officer ol the government, including all our Judges in this case? The people, as I havo said before, will realize the fact that they vote for their own pocketa when they vote for an honest man; thev will look to the past record of the man whom they vote lor, and if e veeted in the Governor. I believe the appointment should be vested in . the Governor, for the reason that the Governor, being on the head of the ticket, will be chosen with great care, and after the closest scrutiny, by the people. That the names of persons for that office are always can- vassed a long way in advance of the nominating conventions, and I believe by the tone and temper of this people to-day, it will be impossi- ble to nominate or elect a Governor who is in such close relationship with the railroad companies as would prevent him from doing his full duty in the selection of these Commissioners. In addition to the con- siderations presented by the gentleman from San Francisco, Cul. Barnes, upon this subject, I desire to add that the position in which we would be placed is this : when it come to the nomination of Railroad Com- missioners, it would be done in political conventions composed of gen- tlemen living three or four hundred miles apart in some insttnos, representing different counties and districts, widely separated geognph- icallv, and we should find a set of gentlemen gathered together fori single day, perfect strangers to one another; gentlemen would be pisced in nomination for this fwsition practically unknown to all but a few of his supporters; they would have no time to examine critically into the character of the nominees ; no time to deliberate over it, and consequesU; there cannot be that careful scrutiny that is desired. They cannot can- vass the merits of the different candidates in the manner in which tht Executive of the State can , for he can take all the time necessary to exam- ine into the merits of the men before he acts. In the nominating convention, as slated already, the nominee would probably be unknown to more than half of the men making the nomination. Now, this office is one which requires the highest faculties, and requires the utmost care and nicest judgment in the selection of men to fill it, and a conveution so assembled from remote parts of a district would be far more apt to make mistakes, assuming that all parlies act honestly, than the Governor of the State. That is one objection. If, how- ever, a majority of this Convention determine that Railroad Commis- sioners are to be elected by the people, then I think it is perfectly elesr that they should not all go out of office at the same time. We all know that it will take considerable time for a set of Commissioners, who maj be elected or appointed, to post themselves thoroughly upon the bosiDesa committed to their charge. They will, before they can act inteUigentlj, have to examine into the books and affairs of these coiporations. Thej will have to familiarize themselves with the business of railroads. Thej will have todo this in order to be in a position to intelligently frame abill of freights and fares. All this they will have to do. well, when that ii done it is proposed, as soon as they become reasonably familiar with the business, to have another election. Just when they have become most fit and best qualified to perform the duties of the office, another election is held and the whole of them turned out, and the whole thing again thrown into the filthy pool of politics, where, perhaps, by the dominaaee of this party or that party, a difl°erent Board of inexperienced men are elected and inducted into' office. Again, there is no mode provided for their removal in case of incom- petency, inefficiency, or corruption. It is said that the process of impeachment is open. Well, in that case, you will have to wait until the Legislature meets. Then they have to be examined before a com- mittee of the House. They are impeached. Then that impeachment has to go to the Senate to be tried there. I say, as far as that part of the section is concerned, it is open to serious objections. When you ooine to the power of these Commissiocen, I say there is no power given to them which can amount to inj- thing; it can be of no substantial value unless the Legislature breathes the breath of life into this section. As it stands it is not self-executing. The Legislature may fail to legislate, or to support it by sanctioning anj penalties whatever. Some gentlemen say they cannot trust the L^>- lature and others say they can. Well, we all know, as a matter of uet, by applying our own common sense to this question, that Legislatures of the past have been, and in all probability will be in the future, to a veir great extent, under tlie influence and control of these corporations. You will doubtless have, as you always have had, a great many honest, well meaning men in the Legislature; and you will also have (if the experi- ence of the past is worth anything as a criterion) men who can be influenced by selfish considerations. Experience has shown that itbss not heretofore been in the power of those who are disposed to carry out the wishes of the people, to prevail over those who may be disposed to throw stumbling bloclcs in their way. It is true that in a great measure the failures of tn^Legislature in dealing with this subJMt have beea the result of a want of information. The Legislature cannot frame s bill of freights and fares. It is out of the question for them to frame an intelligent bill of freights and fares. This Convention could not do it, and I presume it will stand fairly in comparison with the average Legis- lature in point of ability and intelligence. The Legislature has alreodj dealt with this question, or tried to. A set. of Commissioners was pro- vided for and the Commissioners were appointed. They did their autj fearlessly. They presented reooramenaations in their report.. They made suggestions. They were not clothed with power. The railroad com- panies refused to permit them to examine their hooka and afiiirs, and they were unable to ascertain the true condition of affairs. They pro- ceeded to obtain a remedy in the Courts, and did get a judgment m one of the Courts. The case was carried to the Supreme Court, and was pending there when the next Legislature met and repealed the Act under which they were created, and thus destroyed the Commission. Now, that has been the course of the Legislature heretofore. What eaa vou expect, then, judging the future by the past? Have we become any hettet or any more moral? Are our public servants more likely to do their duty in the future than they have been in the past? I think not. Now, sir, that being the case, it is absolutely necessary that if vou create a Commission, you impose and sanction some penalties. The objection is made that you cannot impose penalties in the Constitution. Why not? Why, they say, it would take up too much room. Well, all the penalties necessary to be imposed here without legislative action, will be comprised in twenty linps, and will an addition of twenty lines to the Constitution be such a sorry thing that we shall hesitate to secure a great popular benefit? Suppose it took ten, or twenty, or thirty pages. and yet secured the object which the people have in view, woold it not be right to put it in there? Now, the gentleman from San Francisco spoke sneeringly aboot the amendment I proposed the other day, and about my three weeks' rail- road experience in this Convention. Now, the gentleman, in one branch, has had more ei^perience upon this subject than I have had, but I have been seeking to be enlightened upoi^ this subject. He has, it it Digitized by v Dec. 4, 1878. OF THE CONSTITUTIONAL CONVENTION. 571 true, acted as the attorney for the railroad company, but that would not giTe him any great amount of information upon (he subject of freights and fares, no more than is possessed by any other attorney. This mat- ter has been before the people for a great many years. It is not new in this Convention. Tears and years ago, as Car back as eighteen hundred and seven ly-three, I was mvself actively engaged in attempting to arouse the people on this subject. It is true that within the last two or three weeks I have paid some considerable attention to this subject. Instead of showing wherein the proposition I presented was wrong, he simply criticiselaced here in this Convention to doa great work, and wesbouU act fairly and fearlessly. We should regulate these corporations, nnt by a Commission, but by the Legislature. Becaua^, sir, as wasjud iaEoly Digitized Be from which the people will reap no benefit for the large outlay demanded. These charges against the Legislature are, in my judgment, not well founded. It seems to me that a glance at the history of the State shows that we have been impatient. This institu- tion did not grow in a moment. Why, from the year eighteen hundred and forty-nine up to the year eighteen hundred and sixty-five, our whole people were wild upon the subject of the Pacific Railroad. It occupied our thoughts by day and our dreams by night. Why, no man's political reputation was worth anything who oppraed the granting of railroad subsidies. It was the all-important subject. From one end of the State to the other men were ready to contribute of their wealth towards the enterprise. We were isolated from the balance of the Union. We spoke of the other States as " home," and we felt a desire to be bound to them — as the set expression goes — by bands of steel. They were subsidized by Federal, State, county, and city authority. They went on and organized. There began their oppressions, after which began the awakening. And when did the awakening begin in this State? Why, not until eighteen hundred and sixty -nine. We had all been on their side. We had fattened these corporations, and fawned at their feet, gave them dinners and grand receptions, and there was no such thought as regulating freights and fares. Such a proposition would have been scorned out of existence. But in eighteen hundred and sixty- nine, as I said, they began to awaken. The-subject began to be meu- tioned in the party platforms — " stop subsidies." That is as far as the^ were expected to go. And you will remember, in eighteen hundred anff seventy, when the lamented Governor Ilaight vetoed the subsidy bills, there were still other counties that desired to vote subsidies in aid of railroads. Merced County, Fresno County, Tulare, Kern, and others, asked to be allowed to give of their means in aid of these roads. And we have here to-day from Merced, Fresno, Tulare, and Kern, not a sin- gle representative who is not pronounced in favor of regulating and controlling railroads. Thus you will see that it was only about ten years ago that the tide of public opinion began to set the other way. Xnd in eighteen hundred and seventy the tide was not yet strong, lor you will remember that the veto of Governor Haight was only sustained by one majority. This was the beginning of the awakening in this State. In that memorable veto message that distinguished statesman proclaimed that he was not afraid to abide by the results of his act, trusting to the future to vindicate the soundness of his views. And this distinguished man, who had stood by the people all through this con- test, was vindicated by an election to this body, and his seat is only made vacant by the hand of death. That veto was the beginning of a healthy, honest current of public opinion. Then, sir, the Legislature was acting in accord with what appeared to be the sentiment of the people. Governor Haight, peering into the future, took an advance step, and was sustained by the Senate. And while we are denouncing the Legislature as unfaithful and corrupt, the memory of that man who stood ou the side of popular rights, should at least cause us to hold our tongues. Though, sir, his feet are cold and wet in the icy waters of Jordan, though his faithful hand is moldering into dust, we should revere his memory, and remember that he it was who saved the State then. Shall we so soon forget the services of Senator Burnett, who was carried on his last bed into the Senate chamber to cast his vote on the side of the people. Then, sir, come slowly down the line of history, showing still the growth of public sentiment. In eighteen hundred and seventy-two the five per cent Acts, which had previously been passed, were repealed, except as to the Counties of San Francisco, Santa Cruz, Sonoma, San Diego, Santa Barbara, San Luis Obispo, San BemMdino, Marin, and Los Angeles. Still there was a large portion of the owte ready to give away five per cent to assist these corporations. Yet here we find ou the floor of this chamber, delegates from San Francisco, Santa Cruz, San Diego, Santa Barbara, San Luis Obispo, San Bemardiijo, Marin, and Los Angeles, denouncing the Legislature because it has not been more rabid than the history of public sentiment shows it to have been. And speaking of these counties that were left, we follow the tide of public opinion a little further, and in eighteen hundred and seventy-four an Act, we find, was passed, repealing and wiping out everything — every vestige of the five per cent Acts, and during that year there was not a Senator in the State who favored subsidies. Now, since then, we have had other Acts that compelled the railroad companies to yield the ground which they occupied. I remember some very talented men who fought upon the proposition that the State had no right or power to touch these sacred institutions. That private prop- erty could be taken for public use, but the moment it came into their clutches it ceased to be public, and became at once private property^ TLi^ 574 DEBATES AND PROCEEDINGS Wednesday, other words, that private property could be taken for a private uae. Since that, the whole theory has vaiiished, and no man who values his standing will stand up on this floor and assert any such doctrine now. The people having passed on that, there is no longer any room for argu- ment. I believe, sir, that this is a very simple matter — thiS thing of freights and fares. Go back to eighteen hundred and fifty, and the very first Act that was passed on this subject declared that the Legislature may advance freights and fares, but not to be so reduced, without the consent of the corporations, as to produce less than thirty per cent, per annum upon the capital paid in. That was the first law ever placed on the statute books of this State on the subject. The people of the State, who then dealt with the question of freights and fares, are not less wise to-day than they were then. They are the same people, and they have lost nothing since then. Are they any less sovereign than they were then? Are they any less able to grapple with these great questions? No, sir I but it was on account of this tide of public sentiment that set in so favorably for the corporation at that time, that no stronger action was had. But public opinon has changed, and the laws of that day are not sufficient to meet the exigencies of to-day, and the abuses which have grown up. We feel to-day that these corporations should be placed under stricter control, and that they shall be compelled to deal fairly and justly with the people who have done so much for them. Again, in eighteen hundred and fidy-one, the Legislature of this State repassed in suratanoe the Aclof eighteen hundred and fifty.except to allow thirty-fivepercenton the capital stock paid in. Why was that changed ? It raised it from what it had been. Because of this great and inordi- nate desire on the part of the people to have a transcontinental rail- road. Then we come down to eighteen hundred and fifty-three, because there never was but one freight and fare bill passed. They passed a freight and fare bill just in one section — as much as we will ever need, I believe, fixing the maximum for passengers at twenty cents 'per mile, aud freight at sixty cents per ton per mile. You will find the Act of eighteen hundred and fifty-three on pa^e one hundred and twelve. Let the Legislature to-morrow take that for a basis of freights and fares, reducing it for the difference in the amount of earnings, cost of labor, etc., and it would make a fair bill for this time. Again, in eighteen hundred and fifty-four. May fifteenth, the Legis- lature passed another freight and fare bill (Stats. 1864, p. 86), fixing the maximum fur passengers at ten cents per mile, and freight at fifteen cents per ton per mile. Mow, take that and bring it down to the changed conditions of the present day — the reduction in the cost of material and price of labor,and the maximum ought not to exceed three cents for passengers and two cents for freight. Now, we come to the statutes of eighteen hundred and sixty-one, fix- %ig the maximum of rates at ten and fifteen cents for passengers and freights. Now, in searching for precedents for this thing — this Com- mission— I would say, in my judgment, it would not be idolatry to wor- ship this thing, because I do not believe there is anything in the heavens above or in the earth beneath, or in the waters under the earth, that is like it.. There is nothing like it in any civilized government. I know there have been mistakes made, and the Legislature has not done all that it might have done. But because mistakes have been made, and errors made, is it any good reason why we should deiiart from our sys- tem of government? Why, sir, divide the responsibility and authority, and you carry us back five hundred years. Do we want to do it? No. sir I Let us stand by our institutions as we have them. As for me, while I am in favor of any rule, however rigid — because I do not believe it is possible that any injustice will be done to these corporations — I do not believe there is any man who wishes to destroy these means of transpor- tation; no man desires to cripple them; but every man desires to say to them, you shall be like every other institution in this State, subserv- ient to the laws of the country. In these matters, we know no favorite powers, no favorite individual, no favorite corporations; but all stand upon the same plane of equal rights. I cannot support this scheme foraCk>mmiBsion. I believe it will prove a sorry thing for the people of this State. I do not mean to impugn anybody's motives, for your judgments are as apt to be right as mine; but that is what my reason and my judgment tells me. If I shall have an opportunity, I shall oflTer a substitute for the whole matter, providing that the Legislature shall pass laws to correct abuses and prevent unjust discrimination and extortion, and shall from time to time pass laws fix- ing maximum rates for the transportation of passengers and freights, and enforce them by adequate penalties. Having done this, in my judgment, we will have done all that the people require us to do. •SPIECH OF MR. o'OONNKLL. Mb. O'DONNELL. Mr. Chairman: I am sorry to see my old friend, Laine, praising the Legislature. They have been praised long enough. We have tried them long enough. The last Legislature was the most corrupt that ever convened in this State. The idea of leaving this to the Legislature! The people have sent us here for the purpose of pro- viding for Commissioners to regulate freights and fares. I am satisfied, if I understand the temper among these railroad lawyers, when it comes to a vote they are going to vote solid against these Commissioners. Mr. President, this is a very good section. It reads well until you get to the eighth line, where it says: "The Commissioners shall have the sole power, and it shall be their dutv to correct abuses of railroad corpora- tions and transportation companies." Now, if you leave out those few lines, I am satisfied that this Convention will vote for it. It will then read thus : "Sec. 20. Three Kailroad Commissioners shall be elected by the qualified voters of this State, at the regular gubernatorial election, whose salary shall be fixed by law, and whose term of office shall be four years. They shall be qualified electors of this State, and shall not be interested in any railroad corporation, or other transportation com- pany, as stockholder, creditor, agent, attorney, or employ^, and the act of a mtgority of said Commissioners shall be deemed the act of said Commission. Said Commissioners shall have the power, and it shall bt their duty, to establish rates of charges for the transportation of passeneen and freight by railroad, or other transportation companies, and pnblish the same, from time to time, with such changes as they may make; to examine the books, records, aud papers of all railroad and other trans- portation companies, and for this purpose they shall have process of the Courts; to hear complaints against railroad and other transportation companies; to send for persons and papers, administer oaths, take testi- mony, and report cases of contempt to the Courts for their action, and enforce their decisions, and correct abuses through the medium of the Courts, and perform such other duties as may be prescribed by law; to report to the Governor, annually, their proceedings, and such other facts as may be deemed important Nothing in this seotion shall pre- vent individuals from maintaining actions against any of such compa- nies. It shall be the duty of the Legislature to confer alV such further powere on the Board of Kailroad Commiasionera as shall be necessair to enable them to perform the duties enjoined on them in this and the foregoing sections." If I am not mistaken, that is a good section. By that means we can regulate these thieving corporations. They have controlled this State long enough, and it is our duty to take this thing out of their bands. It is our duty to elect these Commissioners. It is the only way we can ever control them. It is a necessity. I am opposed to leaving the matter to the Legislature any longer. We never have had any reftnint placed upon these corporations by the Legislature. 8PEBCH or MB. MCCOSMKLI.. Me. McCONNELL. Mr. Chairman : The farmers have taken up bsl little of the valuable time of this Convention in the discussion of thesab- jert under consideration. I will now in their behalf ask the indulgence of this body for a few moments. A few days since I made some inqulria of the ^ntleman from Marin, Mr. Shatter, in relation to' matters now under discussion in this Convention. . In their solution on some fair and just basis, the people of California and Nevada are deeplv interested. A railroad has been ouilt from San Francisco to Ogden,a distance of about eight hundred miles, not with private funds, as manv claim, but by the money drawn from the pockets of a confiding and generous people. The private fortunes of those who have had the enterprise, on the whole have not been greatlv impaired. It is a well known fact that their combined means woufd not have been sufficient to build the road from Sacramento City across the American River to the point where the Ontral Pacific Railroad succeeded in establishing the foot-hills of the Sierra Nevada Mountains. The United States Avernment and the State of California, with the municipal aid rendered, was more than sufficient to build the entire road. ' This aid was not rendered in oider that a few men might become rich, but that a whole people might be served as the country developed. It is now pertinent to inquire how they have managed the great trust confided to them. With the vast funds thus intrusted to them they have sought to control, and do control and manage, every transportation and express company in this State, whether on land or water, and their dreams of power and univetad dominion upon this coast have led them into many follies, and caused them to make many grave mistakes. They refuse to pay their joat proportion of taxes, and have violated their charters by not disposing of the land, as was required. So powerful and arrogant have they become, that they even contest the right of the United States Government to make laws which they are bound to obey, requiring them to make provisions to pay their just obligations; and they are now in litigation with the national authority. They do not fail, in any instance, along the line of the road, by excessive freights and fares and discriuiination, to take every cent that can be got out of any business or enterprise that may be undertaken — and bareir let it live. The distance that freight is moved has but little to do witJi the amount charged. Freight at Winnemucca, three hundred and twenty-four miles from Sacramento, to go East, under their pecnliar financial management, must come to this city, and pay one and a half cents per pound, or three hundred dollara per car-load of twenty thon- sand pounds. It then must be returned over the same road, climbing an altitude of over six thousand feet, bock a^ain to Winneinu«a, three hundred and twenty-four miles more; and if an equal charge is made of one and a half cents per pound, or three hundred dollars per car-load, that, added to the return trip, will make six hundred dolUrs per car- load— and yet the freight is just where it started from. By this arrangement one half of a cent per pound or one hundied dollara per carload would be left to divide with the remaining roods east, the combined length of which would be at least twenty-five hun- dred miles. One of two things is apparent: either the roads east cany freight at a very low figure, or the Central Pacific Railroad at this end charges a very high rate. It but slightly changes the result if you examine it in the following manner : twenty thousand pounds of freight from Winnemucca to Sacramento City, three hundred and twenty-four miles, one and a half cents per pound, or three hundred dollars per ear- load. The same carload from Sacramento to Boston, according to estab- lished rates, four hundred dollara, a distance of nearly three thousand miles. Perhaps the Convention would understand it better by stating the facts in another way — thus: Carload ftom Winnemucca to Boston IToO 00 Carload from Sacramento to Boston MO M Dlffeience. — taODVI Or it would cost three hundred dollars more to send a carload bom Winnemucca, than it would from Sacramento, to Boston. And yet a legislator of niueteen yeara experience, with a practice of forty yeara at the bar, who is also a gentleman of railroad experience, being a stockholder and Vice-President of at-i^ast one road, besides, as Digitized by LjOOQU Dec. 4, 1878. OF THE CONSTITUTIONAL CONVENTION. 676 he told us the <^er day, he was one of the hard and homy-handed sons of toil ; still with all of this wisdom, be tells us upon the floor of this Convention that I made three hundred dollars at least by having mpr freight brought to Sacramento. I suppose if it had made one more trip of the same character, another three hundred dollars would have been made, and so on, without end, if the reasoning is good. I have bills of lading from the same place on which a charge is made at the rate of two hundred dollars per carload enlbred as advanced charges, when the freight did not come over to Sacramento or any other distance westward. Was an equal amount made on that? Will the gentleman from Marin inform the Convention ? I now inform the gentleman from the other side of the Green Mountains, where the Central Vermont Railroad and much crookedness prevails, and State Prisons are located, and near the place where his Puritan ancestors hung witches, that I do not need to have any one tell me when I make three hundred dollars. Many thousands of dollars have gone to the same side of the ledger account, and I find it of as little worth in my financial affairs as Ben- jamin Butler's^* money would be. Along the whole hne of the road, from Auburn eastward, freight can- not be had at any of the towns, Colfax, Truckee, Beuo, Wadsworth, or Battle Mountain, from the East, without paying the freight to San Fran- cisco and then back again. The farmers and merchants of these places have to pay nearly double the freight that the fanners and merchants do who are located in or near Sacramento and San Francisco. In other words, the railroad company charges more for a less service than they do for a greater, and this without restriction or limitation, except the sover- eign will of the company. I submit to the judgment of this Convention that such a policy is not liberal, is unjust and unfair, and instead of developing the country through which the road passes, it is retarding it in a marked degree. There is no fixed and fair rate of charges estab- lished even at terminal points like Sacramento, Marysville, Stockton, and San Francisco, but every large and extensive shipper and importer of merchandise from the East, in these large places, has a tpecial arntngement of his own, not made by Mr. J. C. Stubbs, freight agent of the Central Pacific Railroad, bnt by Mr. Vining, an imported man from the Union Pacific Railroad. These contracts^ are under the seal of •ecrecy, and no mercantile firm can know that his neighbor, engaged in the same business, is not getting his goods transported at a less rate, thus practically enabling the company to aid a friend, punish an enemy, or ruin a competitor in business. Inasmuch as my old friend from over the Green Mountains did not answer my questions in a satisfactory manner, I shall not feel under any obli^tions to aid him in any aspira- tions he may have in the future for high place and ;>ou7er. Notwith- standing he is now an honest Granger, and his bands are homy with toil, with such ideas as these he would not be admitted into the outer gate of the Granger's fold, and he could not be trusted to act for the people. I know of hut one wa^ to settle all of this trouble between the people and the railroad companies, and that is on that old and eternal principle of riebt, justice, and fair dealing. Let Leland Stanford and the Board of Directors of the Central Pacific Railroad order their hirelings, J. C. Stubbs, A. N. Towne, and Mr. Goodman, to rearrange their tariffs of freights and fares so that they will bear some little relation to the ser- vice rendered. Quit speculating with the people's money in town lots; let others run restaurants, peanut stands, and hotels, and they will have no difficulty with the people. If this policy is at pnce adopted, it will not be necessary to issue a proclamation of this Convention in the shape of an open Utter for our guidance and direction ; but to their burdensome, selfish, unjust exac- tions, let nlaves submit— freemen never will. These railroad companies have in the past largely elected our police o&cers, and practically they have been above the law. Their acts must be made to subserve the general good ; the fight will go on until right prevails. The public will aome time in the near future find a leader who will march at their head to victory. This victory must be bloodless, but it will put corporations under the law, leaving them with all their power for good, but shorn of power for evil. Great success now, as in the past, intoxicates the brain, undermines the judgment, and destroys the fine and humane feelings of ambitious men. A people who will not resist encroachments upon their rights and liberties, deserves the fate that always awaits a crouch- ing slave. As the best means suggested, and in view of the situation, I feel that it is my duty to vote for the Commission as proposed by the Committee on Corporations other than Municipal. Monopolies must be controlled, or they will control the people of this coast. By way of i^ply to the sentleman from Marin, who has been duly constituted, or constitutes himself the apologist for the known wrongs perpetrated by a greedy corporation, and before taking my seat I wish to remind my aged friencl that the old mathematical truths still remain, that " the whole of a thing is greater than any of its parts." He may, one of these days, mount some eminence on his little farm that overlooks and lies some leagues along the Pacific Ocean, and, in imitation of a ruler, also intoxi- cated with power, command the tides to recede ; but he can neither con- trol the waves of the ocean nor the great flood of public opinion on this subject of freights and fares, and monopolies generally. The only way to account for the tenacity with which he clings to his old interests is, that having for forty years devoted his best energies to the defense of criminals and wrong-doers, making the worst appear the better reason, be naturally gravitates in his declining years towards the same class, and even in this Convention he finds himself unable to divest himself of bis early modes of thought and take his stand among the defenders of the right. The Record-Union, the acknowledged railroad organ of this city, has recently said that "no complaints have been made by the people, and that no indictments have heen found ajjainst the company." I pre- sent the following as some of the complaints, made by the people, to go into Okt judgment roll : First — The managers of the Central Pacific Railroad have diverted large sums of money from the original objects as intended by its donors, ana have used said money for objects and puiposes entirely foreign to its original design ; and have, by a system of dealing with themselves, diverted large amounts of money, dedicated by the people to a public use, into their private coffers. 'They have bought up nearly all of the transportation companies of the State, aud they control and manage them to the injury of the people. Second — They charge more for a less distance than they do for a greater, in many cases, over the same road, in the same direction, and on the same kind of freight. Third — They refuse to pay their just proportion of the taxes. Fourth — They have not disposed of tne lands in accordance with the provisions of their charter. Fifth — They refus? to obey the laws of the United States requiring them to settle a long deferred account, and are now litigating with the National Government; and — if you will allow me to guess, I guess that Judf^e Stephen Field will be for the company, as usual, and that Chief Justice Waite and the majority of the Court will be on the other side. Sixth — The original stockholders complain — those who were not with- in the charmed circle of the Contract and Finance Committee — that they have been swindled out of their stock by misrepresentations and double- dealing. Sacramento, Placer, and San Joaquin Counties make this same cam plaint. Seventh — Samuel Brannan and 0. T>. Lambard complained — and they settled. Eighth— A. A. Cohen found much fault, and a Court of competent jurisdiction said his complaints were well founded, and dismissed said suits with costs, as to himself, wherein he was defendant. Ninth — The records of the Sixth Judicial District Court, when taken in connection with the suit first spoken of, in which A. A. Cohen figured as a defendant, are full of instructive and interesting information. The law student who carefully examines them will be deeply interested as well as astonished. Tenth — They use the power placed hi their hands by the people to control elections and secure such men for public officera as will be found pliable. Eleventh — They discriminate in the matters of fares and freights so as to cripple commerce, and, having control of our public thoroughfares, treat them as private property in which the public are not interested. Twelfth — The people of the State of Nevada complain that they are compelled to pay nearly double for all the merchandise, farming tools, and wagons required by the people for the proper development of the country. Thirteenth — That our halls of legislation are invaded by their paid serv^ts, and that, in many cases, the will of the people is defeated, and the public service debauched and corrupted to prevent legislation tend- ing to remedy the evils complained of. I take this occasion to say that I have nothing personal against the railroad managers. I have known the men for a long time who were instrumental in building the railroad. I gladly testify to the personal worth of each and every one of them. 'Tney were merchants in this city, of whom we, as Califomians and Sacramentans, justly felt proud. Their word was as good as their bond. Personally I would do them a favor, now, as I have done in the past. I oppose them only — as it would betray my trust to assist them to rivet their sliackles upon the commerce of this State — for I think they are wrong in the management of the (^at trusts now in their hands. There are very few men, or associations of men, who can be trusted with great and unlimited power without.their abusing it. It is an unpleasant thing to be compelled to oppose those with whom you are now and have been on friendly terms. I know, however, that they themselves prefer an honest opponent to a dishonest friend. I hope any regulation attempted will be well con- sidered, and that good results will follow, both to the people and the railroad companies. I shall support the report of the Committee on Corporations other than Municipal, as amended, believing that it is in the interest of railroad companies as well as the people. They may then get rid of the leeches and parasites that now fasten themselves upon the business of the corporation and feed upon the general pros- perity of the country. They may discharge their corps of lobby mem- bers of the Legislature. They can divert the money now spent in securing and preventing legislation to the payment of debts and taxes. They can, with a wise, beneficent, patriotic Commission to arbitrate between the people and the corporations, being in fact what they are now, only in name, public benefactors. Then the laws can be executed at once, leaving only real grievances to be settled in the Courts. My colleague, Judge McFarland, in his remarks before the commit- tee, December third, says : " The decision of the Supreme Court in the Elevator case was monstrous and subversive of every sentiment of right, justice, and liberty." It may be a great misfortune, and hard on the United States Supreme Court, that they differ from the learned Judge; still their decisions will have to remain the law of the land until they are reversed by some future'Court of competent jurisdiction, the Judge to the contrary notwithstanding. SFKRCH OP HR. SBAFTCB. Mr. SHAFTER. Mr. Chairman: I regret that these gentlemen should be constantly alluding to my personal experience. . I have made inquiries about the Winnemucca case, and I will give the result of my inquiries. You are undertaking to punish the Central Pacific Railroad Company for crimes it did not commit, and over which it has no con- trol. It has an arrangement with the eastern companies by which they carry through freight. The eastern roads originally would only take through freight to and from San Francisco, the through rates being regulat^ by competition by water. Finally, a contract was made, admitting Sacramento, Stock- ed 676 DEBATES AND PROCEEDINGS Wednesday, tOD, San Jos^,and Marysville as competitive point*, but beyond this the eastern roads hare since refused to go. To ship Mr. McConnell's wool from Winnemucca directly to the &st, it must go to the end of the Cen- tral Pacific Railroad, and pay the way freight ratej from there to Omaha the Union Pacific Railrnau will take it at way rates; from there another road will take it to Chicago, another to Buffalo, and another to the Atlantic Alt these way freights aggregate a sum far in excess of the through rates. 80 the goods are sent toacompetitive point to get a start in order to secure for them the benefit of through rates. Thus Mr. McConnell is actually benefited in his wool shipments by the contract. The contract was made for the benefit of the busmessand shippers of the Pacific Coast, and they all know it. It would have been fairer for McConnell, and in the interest of truth and justice, to hare st«ted the underlying facts relative to his wool shipments. The passion and pre- judice which animates many in their declarBtions aj^inst the railr(»ds. nas been fully exhibited by Mr. McConnell in his fiery speech. It was not in the spirit of a judge deciding impartially between man and man. It is not befitting s dignified Constitutional Convention. The gentlemen criticise the railroad companies because thev appealed to the Courts to settle their disputes bctwen them and the {National Govern- ment. In the name of God, are men to be trampled on by this Conven- tion because they appealed to the law and the Courts to settle their disputes — the very Courts which the people have established for the purpose? For appealing to the Courts they are denounced. I think' it Is a very strange state of affairs. SPKBCH OF HR. BSTKI. Mb. ESTEE. Mr. Chairman: This is the section proposed by the Committee on Corporations: "Sic. 20. Three Railroad Commissioners shall be elected by the qualified voters of this State, at the regular gubernatorial election, whose salary shall be fixed by law, and whose term of office shall be four years. They shall be qualified electors of this State, and shall not be interested in any railroad corporation, or other transportation com- pany, as stockholder, creditor, agent, attorney, or employe, and the act of a majority of said Coramissiuners shall be deemed the act of said Commission. Said Commissioners shall have the power, and it shall be their duty, to establish rates of charges for the transportation of passen- gers and freight by railroad, or otner transportation companies, and publish the same, from time to time, with such changes as ther may make; to examine the books, records, and papers of all railroad and other transportation companies, and for this purpose they shall have process of the Courtsi'to hear complaints against railroad and other transpor- tation companies; to send for persons and papers, administer oaths, take testimony, and report cases of contempt to the Courts for their action, and enforce their decisions and correct abuses through the medium of the Courts, and perform such other duties as may be prescribed by law; to report to the Governor, annually, their proceedings, and such other facts OS may be deemed important. Nothing In this section shall pre- vent individuals from maintaining actions against any of such compa- nies. It shall be the duty of the Legislature to confer all such further powers on the Board of Railroad Commissioners as shall be necessary to enable them to perform the duties enjoined on them in this and 'the foregoing sections." By the consent of the Convention, this has been substituted for the other section twenty. Now, sir, your committee met last evening, and a^in this morning, and after careful consideration, in the light of the discussion had here, they unanimously report that section to this Con- vention. I think it is the first time in the history of that committee that they voted unanimously upon any given proposition. I cannot be positive upon that point, but that is ray recollection. This section seemed to unite and combine the average judgment of the committee. It prescribes the duties and powers of the Commission, and it says they shall enforce their decisions through the medium of the Courts. My friend from Marin certainly cannot object to that, because it allows them to go into the Courts of the country and defend against any unreasonable act imposed upon them by these Commissioners. Now I wish to address a few words to the committee in answer to some of the arguments presented by gentlemen on this floor. I wish to say, sir, that so far as I am concerned, and so far as the Committee on Corporations are concerned, we do not claim to be anything but instru- ments in the hands of this Convention. That as far as we are con- cerned, we have endeavored thus far to discuss these questions with fairness, and, I hope, with candor; and I wish to say, also, that we have to Ihnnk the most of the members of this Convention who have spoken upon either side, for' the calm, deliberate, and statesmanlike manner in which they have discussed this subject. I think my friend from Marin is mistaken when he says this subject has not been discussed in the temper befitting a Constitutional Convention. If we have deviated from the proper course It has been an error of the head and not of the heart. 'We have in no instance, as far as I am able to recollect, appealed, or attempted to appeal to the passions of any of the members of this Convention. And let me any to this Convention, that whatever we may do to-day, or hereafter, upon this subject, we cannot go as far as the Courts of the country have gone. I appeal to the decisions of the Courts all over the Union to bear me out in that assertion. It is a very grave mistake to suppose, as far as I have been able to observe, that we are taking radical ground; that we are going in advance, in taking the action which we propose here. We are only attempting to mark out a line of policy by which to treat these great questions, and in doing so wo are following, or attempting to follow, as far as the matter is appli- cable to this case, the steps taken by others elsewhere. Now, Mr. Chairman, we find that in this Convention, as In all bodies of this character, almost every gentleman entertains a different view upon almost every question that arises. And that, sir, is right. It ■hows personality; it shows thoughtfulness ; it shows that he hos some mind of his own, and is not afraid to express it Asrtation companies; to send for persons and papers; administer oaths; take testimony, and report cases of contempt to the Courts for their action. Now, suppose their mandates are disobeyed, what action will the Courts take? Are they to pronounce judgment? If a man comes and refuses to take an oath, they have no power to enforce it, and report it to the Court. The Court says: fine this roan five dollars, and let him go back. I don't see that there is any substantial power "given to themliere. NoWjln my amendment, I have put in a provision that it shall be binding upon the corporations, and ii they do not ot>ey the Commissioners any party aggrieved may go into Court and see that these orders are enforced. That means something. I agree with the gentle- man from Santa Clara, that this provision, as it stands, amounts to noth- ing. I say it is a delusion and a snare. It is worse. It takes away from the Legislature all power over these corporations,and fails to confer that power upon any other body. You go to the liCgislature, and you find that the power has been taken away from that body by the Consti- tution. You go to the Commission, and you find that they have not the fwwer to remedy the evils complained of. We have been three weeks debating this proposition, and we should not rush it through at the lost. We had better make haste slowly. I do not desire to be forced to a vote upon this matter to-night, and I therefore move that the committee rise, report progress, and ask leave to sit again. Carried. IN CONVENTION. The PRESIDENT. Gentlemen : The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have made pro- gress, and nsk leave to sit again. Digitized by Google 578 DEBATES AND PROCEEDINGS Thdrsday, ADJOCBMMIKT. until Mr. STEDMAK. I move that the Convention take a recess seven o'clock this evening. Mb. grace. I move we now adjourn. Carried. And, at five o'clock and eight minutes p. u., the Convention stood adjourned until to-morrow morning, at nine o'clock and thirty minutes A. li. SIXTY-NINTH DAY. Sacbambicto, Thursday, December 5th, 1878. The Convention met in regular session at nine o'clock and thirty min- utes A.H., President Hoge in the chair. The roll was called, and members found in attendance as follows: Miller, Moffat, MoreUind, Morse, Kason, Nelson, Neunaber, Noel, O'Donnell, Ohieyer, O'Sullivan, Overton, Porter, Prouty, Pulliam, Reddy, Reynolds, Rhodes, Schell, Schomp, Shafter, Shoemaker, Shurtleff, Smith, of Santa Clara, Smith, of 4th District, Smith, of San Francisco, Soule, Stedman, Steele, Stevenson, Stuart, Sweasey, Swenson, Swing, , Terry, Thompson, Tinnin, Townsend, Tully, Turner, Andrews, Gorman, Ayeis, Grace, Barbour, Graves, Barnes, Gregg, Barry, Hager, Hale, Bartoii, Beerstacher, Hall. Belcher, Harrison, Bell, Harvey, Blackmer, Heiskell, Boggs, Herold, Boucher, * Herrington, Brown, Hilborn, Burt, Hitchcock, Campbell, Holmes, Caples, Howard, Casserly, Huestis, Chapman, Hughey, Charles, Hunter, Condon, Inman, Cowden, Johnson, Cross, Jones, Crouch, Joyce, Davis, Kelley, Dean, Keyes, Dowling, Kleine, Doyle, Laine, Dudley,of San Joaquin, Lampeon, Dudley, of Solano, Larkm, Dunlap, Larue, Edgerton, Lavigne, Estee, Lewis, Estey, Lindow, Evey, MansBeld, Farrell, Martin, of Alameda, Fawcett, Martin, of Santa Cruz, Filcher, McCallum, Finnev, McComas, Freeman, McConnell, Freud, McCoy, Garvey, McFarland, Glascock, McNutt, Tuttle, Waters, White, Vacquerel, Webster, Wilson, of Tehama, Van Dyke, Van Voorhies, Weller, Wilson, of 1st District, Wellin, Winans, Walker, of Marin, West, Wyatt, Walker, of Tuolumne, Wickes, Mr. President. ASSKKT. Berry, Biggs, Eagon, Mills, Murphy, TBC JODBHAL. Mb. tinnin. I move that the reading of the Journal be dispensed with, and the same approved. Carried. QDtSTIOK OF PBIVILEOE. Mr. martin, of Santa Cruz. I rise to a question of privilege. Last night my right as a member of this Convention was infringed upon. As a member of the Committ«e on Education, I was unable to reach the committee rooms without special permission from some parties who appeared to have charge of one of the passage ways leading to the com- mittee rooms. Another passage way was barricaded. On the adjourn- ment of the committee, wishing to retire, I was stopped on the stair- case by some one, and informed that I oould not go that way, that I must go some other way if I wished to retire. Some parties, other than proper authorities, seemed to have control of the building. I do not wish to be captious, but I do not wish to be ordered about like a dog, when I am attending to my legitimate business as a delegate of this Convention. I offer the following resolution : Raolved^ That the SergMnt-ttt-Arms be requested to tDform this Cooventioo I7 what authority portioni of thii building appropriated for the use of this bodj an used bjr other parties for illegal paipoaee. Mb. FREUD. I second the motion. The resolution was adopted. Mb. estee. I move that the Convention resolve itself into TBAK8PORTATI0N comnssioMBB'a bepobt. Thb president. The gentleman will please wait one moment. The Chair desires to present a communication from the Transportation Commissioner, in answer to a resolution adopted by this Convention. The secretary read: Orrici or tux Commissioner or TKAraroBTATtoK, \ SicRAMiMTo, California, December 3, IS78./ To the honorable the Hemben of the Constitutional Conrention: Gentlrmkn : lu purauance of a reaolution of your honorable body, passed OD the tweuty-Kcond of NuTcmber, ultimo, requesting the " Ooniniiaeioner of Transpona* tion to furoish to this CouTentioii, at a« early a date ai practicable, a compilatioo of all the general and special laws hitherto passed under wiUch ratlroad corpoiations have i,een formed, or franchisee granted, together with an abstract of sabsidies granted, and sul«rr1ptions made to cor{mrations by the State and the Beveral coud- tiea tltereof, provided the expenses of the printing thereof be not charged to the funds provided for the expenses of this Convention," I herewith traoamit a ccm- pilation, by title only, of all the AcU relating to railroads and railroad corpontioas (other tlian street railroads), from the your A. D. eighteen hundred and fifty down to the year A. D. eighteen hundred and seventy-eight, with marginal indices diow- Ing the year when enacted, date of passage, chapter, and page of statotea containing them. It was not deemed essential to the attainment of the oltjects of the CcniTCDtlon to compile more than the titles of the Acts, with an abstract of the Btate,.ooaDty, and municipal liability incurred and outstanding. I remain, very ree]>ectf\illy, your obedient servant, B. F. TUnXK, Commissioner of Trmnsportatloa. Following are the documents accompanying the report : CoHPiLATiox or Railroad Acts — Gemebal and Special. P An Act to authorize the Board of Trustees of the City of San Diego to convey to the President and Board of Directors of the San Diego and Gila Southern Pacific and Atlantic Kailroad Company, two leagues of the pueblo lands to aid in the con- struction thereof An Act to amend an Act entitled " An Act to provide for the incorporation of rail- road companies," passed April 22, 1853, and amended May 15, 1854, and amended April 10, 1855 .... [Supplemented by Act approved April II, 1857. Supplemented and amended by Act approved April 26, 1858. Amended by Act approved April 26, 1858. Repealed by Act approved May 20, 1861.] An Act supplemental^ to an Act entitled "An Act to provide for the incorporation of railroad companies," passed April 22, 1853, and to the several Acts amendatory thereto [Supplemented by Act approved April 26, 1858. Repealed by Act approved May 20, 1861.] An Act to authorize the Board of Supervisors of the County of Yuba to take and subscribe $200,000 to the capital stock of a railroad company, and to provide for the payment of the same, and other matters relating thereto [Amended by Act approved March 21, 1862.] An Act to authorize the Board of Supervisors in and for Butte County to issue the bonds of said county for an amount not to exceed $230,000, to be expended in con- structing a railroad and wagon roads in said county, and to provide for the payment of said bonds . An Act to confer upon the San Francisco and Marysville Railroad Company, incor- porated under the laws of this State, certain rights and privileges [Amended by Acts approved April 21, 1860; April 23, 1861, and April 25, 1862. Modified by Act approved April 8, 1863.] An Act supplementary and amendatory to an Act entitled "An Act to provide for the incorporation of railroad companies," passed April 22, 1853, and to the several Acts amendatory and supplementary thereto [Repealed by Act approved May 20, 1861.] An Act to amend an Act entitled "An Act to provide for the incorporation of rail- road companies," passed April 22, 1853, and an Act amendatory thereof, passed April 14, 1856 [Repealed by Act approved May 20, 1861.] An Act to authorize the Board of Supervisors of the County of Sutter to take and subscribe $50,000 to the capital stock of the " San Francisco and Marysville Rail- road Company," and to provide for the payment of the same and other matters relating thereto . An Act to authorize the "San Francisco and Marysville Railroad Company" to con- struct and maintain a railroad bridge across Feather River, and for other purposes. An Act to authorize the counties of the State of California to become stockholders in railroad companies [Amended by Act approved April 18, I860.] An Act to authorize the Board of Supervisors of the County of Solano to take and subscribe $200,000 to the capital stock of the San Francisco and Marysville Rail- road Company, and to provide for the payment of the same, and other matters relating there to [Amended by Act approved January 31, 1866. Amended and supplemented by Act approved March 26, 1868.] An Act to authorize the Board of Supervisors of the County of Yolo to take and subscribe $50,000 to the capital slock of the San Francisco and Marysville Railroad Company, and to provide for the payment of the same, and other matters relating thereto An Act for the payment of the current and necessary expenses of the Pacific Rail- road Convention An Act to authorize the County of Butte to purchase and hold $200,000 of the first mortgage bonds of the California Northern Railroad Company, and to issue the bonds of the county for the payment of the same, and for other purposes connected therewith i [Compare Acts approved April 8, 1863, and March 20, 1866, amended and supplemented by Act passed March 29, I860.] An Act amendatory or and supplementary to an Act entitled "An Act to authorize the County of Butte to purchase and hold $200,000 of the first mortgage bonds of the California Northern Railroad Company, and to issue the bonds of the county for the payment of the same, and for other purposes connected therewith." [Amenaatory and supplementary of Act approved March 14, I860.] An Act to amend "An Act to authorize the counties of the State of California to become stockholders in railroad companies," approved April 16, 1859 An Act to amend an Act entitled, "An Act to confer upon the San Francisco and Marysville Railroad Company, incorporated under the laws of this State, certain rights and privileges," approved April 24, 1858 An Act to authorize the Board of Supervisors of the County of San Mateo to subscribe to the capital stock of the San Francisco and San Jose Railroad Company An Act to authorize the Board of Supervisors of the City and County of San Fran- cisco to subscribe to the capital stock of the San Francisco and San Jos<$ Railroad Company . ' . An Act to authorize the Town of Auburn to take and subscribe $50,000 to the capital stock of the Sacramento, Placer, and Nevada Railroad Company, and to provide for the payment of the same i An Act to authorize the Board of Supervisors of the County of Santa Clara to sub- scribe to the capital stock of the San Francisco and San Jos(S Railroad Company An Act to provide for the construction of a railroad from a point on Petaluma Creek into the City of Petaluma, and for the right of way for the same [Amended by Act approved May 17, 1861.] April 10, 1855. April 25, 1855. April 30, 1855. April 14, 1856. April 11,1857.. April 28, 1857.. April 23, 1858.. April 24, 1858.. April 26, 1858.. April 26, 1858.. April 15, 1859.. April 15, 1859.. April 16, 1859_. April 16, 1859.. April 16,1859.. Feb. 15, 1880... March 14, 1860, March 29, 1860. April 18, I860.. From passage:.. From passage.. May 15,1855 From passage.. From passage— From passage.. From passage.. From passage.. From passage.. From passage.. From passage.. From passage.. From passage.. From passage.. From passage.. From passage .. From passage.. From passage.. From passage.. April 21, I860.. April 21, I860.. April 21, I860. April 23, I860.. April 21, 1860- April 25, I860.. From passage. From passage _ From passage. From passage. From passage. 100 144 206 89 197 296 242 265 317 326 247 255 263 266 270 33 90 133 208 218 230 233 254 261 265 680 DEBATES AND PROCEEDINGS Thuksday, OoMPiLATios OP Railroad Acts — Continued. 34 35 36 37 38 39 4« 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 5fi 57 STAirrra. 58 59 60 61 TiTLF. or Act. Date or Poaingc. Took EIToct. Yfar. Ch»p.' Pag». An Act to enable the Connty of Placer to subscribe for stock to the Sacramento, Placer, and Nevada Railroad Company, to the East«m Extension Railroad Com- pany, and to assist in constructing certain wazon roads therein mentioned An Act to authorize the Board of Supervisors of Ine County of Santa Clara to take and subscribe $200,000 to the capital stock of the San Francisco and San Jos^ Railroad Company, and to provide for the payment of the same, and other matters relating thereto . . . [Amended by Act approved May 6, 1862.] An Act to authorize the Board of Supervisors of the County of San Mateo to take and subscribe $100,000 to the capital stock of the San Francisco and San 3os6 Rail- road Company, and to provide for the payment of the same, and other matters relating thereto An Act to authorize the Board of Supervisors of the City and County of San Fran- cisco to take and subscribe $300,000 to the capital stock of the San Francisco and San Jos^ Railroad Company, and to provide for the payment of the same, and other matters relating thereto An Act to amend an Act entitled " An Act to confer upon the San Francisco and Marysville Railroad Company, incorporated under the laws of this State, certain riehtf and privileges," approved April 24, 1858 An Act granting to Wm. Fitzpatrick and his associates, the right to construct a rail- road in Contra Costa County [Supplemented by Act approved May 3, 1881. Modified by Act approved April 20, 1863.] An Act concerning the San Diego and Gila Southern Pacific and Atlantic Railroad Company, and to extend the time of jwrforming certain acts [Compare Act approved March 30, 1868.] An Act supplementary to an Act granting to Wm. Fitzpatrick and his associates, the right to construct a railroad in Contra Costa County, approved April 29, 1861 An Act granting the right of way over certain lands in this State in the Counties of Alameda and San Joaquin . An Act to authorize the Mayor and Common Council of the City of Los Angeles to take and subscribe $50,000 to the capital stock of a railroad in the County of Los Angeles, and to provide for the payment of the same, and other matters relating thereto An Act to authorize the Board of Supervisors of the County of Los Angeles to take and subscribe $100,000 for the construction of a railroad in said county, and to provide for the payment of the same, and other matters relating thereto An Act amendatory of " An Act to provide for the construction of a railroad from a point on Petaluma Creek into the City of Petaluma, and for a right of way for the same." [This Act amends Acta approved April 25, I860.] An Act to provide for the incorporation of railroad companies, and the management of the attairs thereof, and other matters relating thereto [Repeals Act approved April 22, 1853, and all Acts amendatory or supplementary thereto. Amended by Acts approved May 6, 1862, May 14, 1862, April 27, 1863, Mareh 20, 1866, March 30, 1868, and April 1, 1870.] An Act granting to certain persons the right to construct and maintain a railroad through certain street* in the City of Oakland An Act amendatory of an Act to authorize the Board of Supervisors of the County of Yuba to take and subscribe $200,000 to the capital stock of a railroad company, and to provide for the payment of the same, and other matters relating thereto, approved April 28, 1857 \n Act to provide for the construction of a railroad from Mokelumne City to Wood- bridge, in the County of San Joaquin [Amended by Act approved March 30, 1868.] An Act to authorize the construction of a wharf at a point designated upon the south bank of the San Joaquin River , An Act to authorize the County of Placer to loan its credit to the Sacramento, Placer, and Nevada Railroad Compiiny, to the amount of $100,000 [Amended by Act approved May 14, 1862.] An Act in relation to liens of mechanics and others [Amended and supplemented by Act approved April 4, 1864.] An Act to amend an Act entitled " An Act to confer upon the San Francisco and Marysville Railroad Company, incorporated under the laws of this State, certain rights and privileges," passed April 24, 1858 An Act to authorize the Board of Managers of the Industrial School Department of the City and County of San Francisco to grant and convey to the San Franeisco and San Jos^ Railroad Company the right of way for the construction of said road on and through the land belonging to the said Industrial School Department An Act to extend the time for the completion of the California Northern Railroad Company's road , An Act to amend an Act entitled "An Act to authorize the Board of Supervisors of the County of Santa Clara to take and subscribe $200,000 to the capital stock of the San Francisco and San Jos^ Railroad Company, and to provide for the payment of the same, and other matters relating thereto," approved April 9, 1861 An Act to amend an Act entitjed "An Act to provide for the incorporation of rail- road companies and the management of tne affairs thereof, and other matters relating thereto," approved May 20, 1861 An Act to authorize the Board of Supervisors of the County of Yuba to issue bonds of said county to the California Central Railroad Company, to the amount of $100,000 An Act to amend an Act entitled "An Act to provide for the incorporation of rail- road companies, and the management of the affairs thereof, and other matters relating thereto," approved May 20, 1861 An Act to amend an Act entitled "An Act to authorize the County of Placer to loan its credit to the Sacramento, Placer, and Nevada Riailroad Company, to the amount of $100,000," approved April 8, 1862 An Act to authorize the Board of Supervisors of the County of San Joaquin to take and subscribe $250,000 to the capital stock of the Western Pacific Railroad Com- pany, and to provide for the payment of the same, and other matters relating thereto April 30, I860—: From passage.. April 9, 1861... From passage. . April 9,1861... From passage.. i ; April 19,1861..' From passage.. April 23, 1861.. From passage. April 29, 1861. May 2, 1861.... May 3,1861.... July 1,1861.... May 3, 1861 . From passage. May 8, 1861....: July 7, 1861... May 17,1861...' July 16,1871.. May 17,1861... July 16,1861.. May 17,1861... July 16,1861.. May 20,1861.. From passage . May 20, 1861..; July 19,1861.. March 21, 1862.; From passage .. March 27, 1862., From passage ..I J I April 8, 1862.. June 7, 1862... April 8,1862.. From passage.. : I April 26, 1862..! June 25,1862.. April 25, 1862.. April 25, 1862.. April 26, 1862.. May 6, 1862 May 6, 1862.... May 12,1862... May 14,1862... From passage ..' From passage .. June 25, 1862...! July 5,1862....: I From passage..! From passage . From passage . May 14, 1862.. .1 July 13, 1862. i March 21, Isfi'i'feSS ^ 860 359 I 344 I I I 861 140 128 861 141 I 134 I S61 203 198 861 225 2:5 861 ' 260 264 i 861 268 I 270 861 ! 2S3 278 861 320 ; 309 1 ' 861 j 402 . 457 861 405 I 465 861 416 479 861 532 607 I 1 8C1 5.^6 65S 862 72 j 61 862 ; 107 97 882 I 131 lit 802 136 120 862 ! 297 : 3S4 862 304 421 I 862 ! 322 ; 438 ' I 862 329 I 446 862 374 862* 3S1 862 404 494 493 530 862 424 I i47 I 862 I 427 549 80 Dec. 5, 1878. OF THE CONSTITUTIONAL CONVENTION. 581 62 TiTiE OF Act. Compilation op Railroad Acts — Continued. DaU of Paasago. 64 73 74 75 77 78 79 80 81 82 83 84 85 86 87 88 65 66 67 68 69 An Act to authorize the Common Council of the City of Placerville to subscribe $100,000 to the capital stock of the Placerville and Sacramento Valley Bailroad Company, and to provide for the payment of the same, and other matters relating thereto -t An Act to authorize the Board of Supervisors of the County of San Joaquin to take and subscribe $100,000 to the capital stock of the Stockton and Copperopolis Railroad Company, and to provide for the payment of the same, and otner matters relating thereto An Act to authorize the Board of Supervisors of the County of El Dorado to sub- scribe $200,000_,to the capital stock of the Placerville and Sacramento Valley Rail- road Company', and to provide for the payment of the same, and other matters relat- ing thereto [Compare Act passed April 4, 1B64.] An Act to authorize the County of Placer to subscribe to the capital stock of the Cen- tral Pacific Railroad of California, and to provide for the payment of the same, and other matters relating thereto [Supplemented and amended by Act approved March 31, 1866.] An Act to protect certain parties in ana to a railroad survey t« connect Portland, Oregon, with Murysville, California An Act to authorize the California Central Railroad Company to hold an election An Act to authorize the County of Butte to purchase and hold $66,000 of the first mortgage bonds of the California Northern Railroad Company, and to issue the bonds of said county for the payment of the same, and for other purposes con- nected therewith [Compare Acts approved March 14, 1860, and March 20, 1866.] An Act to extend the time for the completion of the San Francisco aad Marysvillo Railroad [Modifies Act passed April 24, 1858.] An Act to authorize the Board of Supervisors of the County of Santa Clara to take and subscribe $150,000 to the capital stock of the Western Pacific Railroad Com- pany, and to provide for the payment of the same, and other matters relating thereto [Amended by Act approved February 21, 1872.] An Act granting certain rights to the Central Pacific Railroad of California, and for other purposes An Act to authorize the Board of Supervisors of the County of Stanislaus to take and subscribe $250,000 to the capital stock of the Stockton and Copperopolis Rail- road Company, and to provide for the payment of the same, and other' matters relating thereto [Amended by Act approved March 31, 1866.] An Act to authorize the relocation of the route of the railroad of the Central Pacific Railroad of California, and other matters relating thereto , An Act to extend the time for the completion of a railroad in Contra^Costa County [Modifies Act passed April 29, 1861.] -Vn Act to authorize the Board of Supervisors of the County of Alameda to take and subscribe $220,000 to the capital stock of the Alameda Valley Railroad Company, and to provide for the payment of the same, and other matters relating thereto An Act to authorize the Board of Supervisors of Butte County to loan certain money [Repealed by Act passed April 4, 1 864.] An Act to authorize the Board of Supervisors of the City and County of San Fran- cisco to lake and subscribe $1,000,000 to the capital stock of the Westom Pacific Rail- road Company and Central Pacific Railnjad Company of California, and to provide for the payment of the same and other matters relating thereto [Compare Act approved April 4, 1864.] An Act to authorize the City and County of Sacramento to subscribe to the capital stock of the Central Pacific Railroad of California, and providing for the pay- ment of the same, and other matters relating thereto An Act toaid the construction of the Central Pacific Railroad in the State of Califor- nia, and other matters relating thereto ; [Repealed by Act approved April 4, 1 864.] An Act to provide for the construction of a railroad from Wilmington to Los Angeles, in the County of Los Angeles An Act to authorize the San Francisco and Alameda Railroad Company to construct and maintain a wharf at the western end of the £ncinal of San Antonio, in Alameda County [Supplemented and amended by Act approved March 28, 1868.] An Act to amend an Act entitled "An A«t to provide for the incorporation of rail- road companies, and the management of the afiairs thereof, and other matters relating thereto," approved May 20, 1861 [Amended by Act approved March 30, 1868.] An Act to authorize the Board of Supervisors of the County of Calaveras to take and subscribe $50,000 to the capital stock of the Stockton and Copperopolis Rail- road Company, and to provide for the payment of the same, and other matters relating thereto ^_. An Act to authorize the Board of Supervisor!! of the County of Tuolumne to take and subscribe $50,000 to the capital stock of the Stockton and Copperopolis Rail- road Company, and to provide for the payment of the same, and other matters relating thereto An Act to grant the right to construct a wooden or iron railroad from the State Range Mountains, in the County of San Bernardino, to Kern River, in the County of Tulare - An Act to authorize the Sacramento, Placer, and Nevada Railroad Company to sell and convey their road, and other matters relating thereto An Act to authorize the Board of Supervisors of Placer County to levy a special poll tax for county purposes An Act to aid the construction of the Central Pacific Railroad, and to secure the use of the same to this State for military and other purposes, and ot|jf r matters relating thereto . , [Repeals Act approved April 25, 1863.] March 21, 1863. Mareh 26, 1863. Maroh 28, 1863. April 2, 1863.. April 6, 1863.. April 8, 1863.. April 8,1863. April 8, 1863. April 14, 1863. April 14, 1863- April 17, 1863. April 17, 1863. April 20, 1863. April 21, 1863. April 21, 1863. April 22, 1863. April 25, 1863. April 25, 1863. April 25, 1863. April 25, 1863.. April 27, 1863.. April 27, 1863.. April 27, 1863.. April 27, 1863-. April 27, 1863.. March 1, 1864.. April 4, 1864... Took Effect. Statutes. Year. Chap. Page. From passage .. 1863 78 86 From passage.. 1863 87 102 From passage.. 1863 IQAt 110 122 l/fCL From passage .. From passage .. From passage .. June 7, 1863 1863 : 155 j 186 1863 I 177 237 1863 1863 178 237 179 -340 207 From passage .. 1863 Frompa&age.. 1863 209 From passage .. 1863:237 310 From passage..' 1863 ' 244 From passage.. 1863 ' 279 From passage.. 1863 285 From passage..] 1863 287 From passage..! 1863 From passage. From passage. 1863 310 1863 S14 291 From passage..' 1863 From passage. From passage.. 332 1863 341 1863 From passage.. 1863 400 418 From passage-.l 1863 419 From passage. 1863 From passage.-' 1863 From passage.. ,1863-4 129 424 487 From passage. ..'1863 -4 320 O 276 288 320 360 365 373 380 447 465 494 499 610 673 679 696 749 116' 344 ■*-/■'. 582 DEBATES AND PROCEEDINGS Thursday, 89 90 91 92 93 94 95 98 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 OoMPtLATioN OP Railboao Act8 — Continued. TiTLi or Act. Date of Pa«c«. An Act regulating the anesament and taxation of railroads and other roads, for revenue purposes, and other matters relating thereto [Repealed by Act approved March 27, 1868.J An Act to authorize the Board of Supervisors of the County of El Dorado to subscribe $100,000 in addition to the amount heretofore subscribed by said county, to the capital stock of the Plaoerville and Sacramento Valley Railroad Company, and to firovide for the payment of the same, and other matters relating thereto Compare Act passed March 28, 1863.] An Act to authorize the Board of Supervisors of the County of Napa to take and sub- scribe to the capital stock of the Napa Valley Railroad Company, and to provide for the payment of the same, and other matters relating thereto [Amended by Act approved January 25, ] 866.] An Act to confer additional powen upon the Board of Supervisors of the City and County of San Francisco, and upon the Auditor and Treasurer thereof, and to authorize the appropriation of moneys by said Board [Compare Act approved April 22, 1863.] To confer certain powers on the Boards of Sufwrvisors of the Counties of Santa Clara and San Mateo, and the City and County of San Francisco, in. relation to the interest and stock held by said counties and city and county in the San Francisco and San Jos^ Railroad Company An Act amendatory and supplementary to an Act in relation to liens of mechanics and others, approved April 26, 1862 An Act to aid in carrying out the provisions of the Pacific Railroad and Telegraph Act of Congress, and other matters relating thereto An Act authorizing the Yuba Railroad Company to change its northern terminus ... An Act to authorize the Board of Supervisors of Butte County to loan certain money. [Repeals Act approved April 21, 1863.) An Act to amend an Act entitled "An Act to authorize the Board of Supervisors of the County of Napa to take and subscribe to the capital stock of the Kapa Valley Railroad Company, and to provide for the payment of the same, and other matters relating thereto," approved April 4, 1864 1 An Act to confirm a certain contract for sale of stock held by the County of San Mateo in the San Francisco and San Jos^ Railroad Company An Act to amend an Act entitled " An Act to authorize the Board of Supervisors of the County of Solano to take and subscribe $200,000 to the capital nUMsk of the San Francisco and Marysville Railroad Company, and to provide for the payment of the same and other matters relating thereto," approved April 16, 1859 [Repealed by Act approved March 26, 1868.] An Act to authorize the County of Yuba to donate $65,000 to the Yuba Railroad Co., and to provide for the payment of the same, and other matters relating thereto. [Supplemented and amended by Act approved March 24, 1866.] An Act to legalize and confirm a certain contract made between the County of Santa Clara and the Board of Supervisors thereof and the Western Pacific Railroad Company, bearing date March 28, 1865 An Act to authorize the California Northern Railroad Company to hold an election.. An Act granting to the Black Diamond Cwil Mining Company tne right to construct a tramroad or railroad from the mines of said company, at Monte Diablo, to the San Joaquin River '. An Act to amend an Act entitled "An Act to provide for the incorporation of rail- road companies and the management of the affairs thereof, and other matters relat- ing thereto," approved May 20, 1861 An Act to confirm a certain contract for the sale of stock held by the County of Santa Clara in the San Francisco and San Joe^ Railroad Company, and to give effect to the same An Act to authorize the Board of Supervisors of Butte County to sell certain bonds and to provide for the redemption of the bonds of the county, and for other pur- poses connected therewith ... [Compare Acts approved March 14, I860, and April 8, 1863.] An Act supplementary and amendatory to an Act entitled " An Act to authorize the County of Yuba to donate $65,000 to the Yuba Railroad Company, and to provide for the payment of the same, and other matters relating thereto," approved Feb- ruary 13, 1866... An Act to authorize H. B. Tichenor and R. G. Byxbee to construct a railroad and rail- road bridge in Mendocino County An Act to amend an Act entitled " An Act to authorize the Board of Supervisors of the County of Stanislaus to take and subscribe $25,000 to the capital stock of the Stockton and Copperopolis Railroad Company, and to provide for the payment of the same, and otoer matters relating thereto," approved April 17, 1863 [Repealed by Act approved P'ebruary 21, 1868.] An Act to authorize James Nelson to extend his present line of railroad An Act to authorize the construction of a tramroad, or railroad, in the County of Contra Costa [Compare Act approved March 30, 1868. Amended and supplemented by Act approved March 30, 1868.] An Act to allow the Western Pacific Railroad Compuoy and the San Francisco and San Jos^ Railroad Company, and other parties, the right to take gravel from the channel of Coyote Creek, in the County of Santa Clara ^' An Act supplementary and amendatory of an Act entitled "An Act to authorize the County of Placer to subscribe to the capital stock of the Central Pacific Railroad Company of California, and to provide for the payment of the same, and other matters relating thereto" [Supplementary and amendatory of Act approved April 2, 1863. Amended by Act approved April 4, 1870J Ah Act granting to F. K. Shattuck, Wm. Hillegas, 3. H. Haste, and C. Kirke, their associates or assigns, the right to construct and maintain a tramroad or railroad from the Central Coal Mine at Monte Diablo, in Contra Costa County, to the San Joaauin River .. . . An Act to authorize the Board of Supervisors of the County of Calaveras to take and subscribe $50,000 to the capital stock of the Stockton and Copperopolis Rail- road Company, and to provide for the payment of the tame, and other matters relating thereto April 4, 1864. April 4, 1864... April 4, 1864... April 4, 1864... April 4, 1864 April 4, 1864... April 4,1864... Took Effect. Stitctes. Year. Chiip. Psge. From passage.. From passage.. From passage -- From passage.. June 3, 1864... From passage.. From passage.. April 4,1864 | From passage. April 4, 1864...' From passage. Jan. 25, 1866... Jan. 29, 1866... From passage. From passage. Jan. 31, 1866... AprU 1, 1866.. Feb. 13, 1866... March 3, 1866 March 20, 1866. March 20, 1866 March 20, 1866. March 20, 1866 March 20, 1866 March 24, 1866 March 31, 1866. March 31, 1866 March 31, 1866 Match 31, 1866. March 31, 1866. March 31, 1866. April 2, 1866... From passage. From passage - From passage . From passage . From passage. From passage. From passage. From passage. May 30, 1866.. From passage. May 30, 1866.. May 30, 1866.. From passage.. From passage.. June 1, 1866... 1864 863-4 863-4 863-4 325 341 342 344 863-1 386 863-4 411 863-4 863-4 863-4 475 865-6| 41 865-6 53 417 460 865-6 865-6 63 95 I 865-6 865-6 365-6 275 865-6 865-6 176 270 278 298 865-6 305 April 2, 1866... From passage.. 865-6 865-6 865-6 865-6 865-6 865-6 865-6 864-« 1865-6 326 401 434 446 447 452 488 525 M7 J 7S» Dec. 5, 1878. OF THE CONSTITUTIONAL CONVENTION. 583. CouriLATiON OF Kailkoad Acts — Continued. TiTLK or Act. Date of Paasage. Took Effect. Statutes. Yaar. jchap. Page. An Act concerning the Kapa Valley Railroad Company, authorixing an election, and other matters relating thereto April 2, 1866 An Act to authorize all the counties south of Banta Clara County to aid in the con- struction of the Southern Pacific Railroad April 2, 1866 An Act to legalize the location of the San Francisco and Alameda Railroad, from Hayward's to Washington Comers, in the County of Alameda., Jan. 15, 1868.. Ad Act to authorize the Board of Supervisors of the County of Los Angeles to take and subscribe the sum of $150,000 to the capital stock of the Los Angeles and San Pedro Bailroad Company, in the County of Los Angeles, and to provide for the payment of the same, and other matters relating thereto Feb. 1, 1868 [Amended and supplemented by Act approved March 25, 1868.] An Act to authorize 'the Mayor and Common Council of the City of Los Angeles to take and subscribe $76,000 to the capital stock of the Los Angeles and San Pedro Railroad Company, in the County of Los Angeles, and to provide for the payment of the same, and other matters relating thereto | Feb. 1, 1868 [Amended and supplemented by Act approved March 25, 1 868.] An Act to repeal an Act entitled " An Act to amend an Act entitled ' An Act to authorize the Board of Supervisors of the County of Stanislaus to take and subscribe $25,000 to the capital stock of the Stockton and Copperopolis Railroad Company, and to provide for the payment of the same, and other matters relating thereto,' approved April 17th, 1863," approved March 31st, 1866 Feb. 21, 1868... An Act authorizing the construction of a wharf in the County of Yolo, and to build a railroad in connection therewith , March 10, 1868. An Act to authorize H. B. Tichener and R. G. Byzbee to construct a railroad, rail road wharf, and toll bridge in Mendocino County March 11, 1868. An Act to authorize Titus Hale, Austin Walrath, Wm. McCall, and Richard P. Tenny, their associates and assigns, to construct a railroad from the City of Monte- rey to the Rancho Natividad, and to construct a wharf at the City of Monterey „ March 11, 1868. An Act to authorize the County of Sutter to give its bonds to the California Pacific Railroad Company, a corporation organized and working by and under the gen- eral railroad laws of this State, and to provide for the payment of said bonds March 13, 1868. An Act to authorize the County of Sonoma to donate bonds to a railroad company, and to provide for the payment of the same March 18, 1868. An Act concerning railroad companies in the City and County of San Francisco March 21, 1868. An Act to authorize the construction of a railroad from San Jos^ to Santa Clara, in the County of Santa Clara March 24, 1868. An Act to authorize the County of Yolo to give its bonds to the California Pacific Railroad Company, a corporation organized and working by and under the gen- eral railroad laws of this State, and to provide for the payment of said bonds March 24, 1868 An Act amendatory of and supplemental to an Act to authorize the Mayor and Common Council of Los Angeles to take and subscribe $75,000 to the capital stock of the Los Angeles and San Pedro Railroad Company, in the County of Los An- geles, and to provide for the payment of the same, and other matters relating thereto, approved February 1, 1868 March 25, 1868. An Act amendatory of and supplementary to an Act to authorize the Board of Super- visors of the County of Los Angeles to take and subscribe the sum of $150,000 to the capital stock of the Los Angeles' and San Pedro Railroad Company, in the County of Los Angeles, and to provide for the payment of the same, aiid other matters relating thereto, approved February 1, 1868 March 25, 1868- An Act amendatory of and supplementary to an Act entitled " An Act to authorize the Board of Supervisors of the County of Solano to take and subscribe $200,000 to the capital stock of the San Francisco and Marysville Railroad Company, and to provide for the payment of the same, and other matters relating thereto," approved .\pril 16, 1859, and to fund a part of the debt of said County of Solano, and other matters relating to said railroad company March 26, 1868 [Repeals Act approved January 1, 1866.1 An Act granting William W. Waddell and hie assigns the right to maintain a wharf and railroad in Santa Cruz County March 26, 1868. An Act to repeal an Act entitled "An Aot regulating the assessment and taxation of railroads, and other roads, for revenue purposes, and other matters relating thereto," approved April 4, 1864 March ,27, 1868. An Act to authorize the Township Assessors of the Townships of White Oak and Mud Springs, in the County of El Dorado, to assess the property belonging to the Placerville and Sacramento Valley Railroad Co. in said townships, in the year A. D. 1866, and to provide for the collection of the unpaid taxes thereon for said year March 27, 1868. An Act supplementary to and amendatory of an Act entitled " An Act to authorize the San Francisco and Alameda Railroad Company to construct and maintain a wharf at the western end of the Encinal of San Ajitonio, in Alameda County," approved April 25, 1863 March 28, 1868. An Act to authorize the California Pacific Railroad Company to extend its road to Suacol,in Napa County, and receive subscriptions to its capital stock, and other mat- ters relating thereto March 28, 1868. An Act to provide terminal depot grounds for the Terminal Central Pacific Railroad Company .' March 28, 1868. [Supplemented and amended by Act approved March 31, 1870.] An Act to provide for the transfer of certain funds in the County of Placer March 28, 1868. [Amended by Act approved April 4, 1870.] An Act to authorize the County of Contra Costa to donate bonds to the Martinez and Dansville Railroad Company, and to provide for the payment of the same March 30, 1868. [Compare Act approved March 31, 1866.] An Act to make certain Acta take effect immediately March 30, 1868. An Act to confirm and legalize certain contracts entered into by Peter Donahue and others, with the County of Santa Clara March 30, 1868. An Act concerning the foreign miners' license tax in the County of Placer March 30, 1888 An Act concerning the San Diego and Gila, Southern Pacific and Atlantic Railroad Company, and to extend the time of performing certain acts March 30, 1868 [Compare Act approved May 2, 1868.] An Act amendatory of and supplementary to an Act to authorize the construction of a tramroad or railroad, in the County of Contra Costa. Passed March 31, 1866 March 30, 1868 From passage. From passage - From passage - 1865-6 1865-6 1867-8 From passage.. 1867-8 From passage - 1867-8 From passage.. 1867-8 From passage.. 1 186 7-8 From passage.. 1867-8 From passage.. 1867-8 584 591 7 24 25 74.. 157. 158- From passage.. il867-8| 176. From passage. From passage. From passage. May 23 '1867-8 197. 11867-8; 213. 1867-8 •From passage.. •From passage .. From From From 246. 1867-8] 248. 263 1867-8 276 I 1867-8 1867-8 1807-8 283 298 301 .1867-8, 335 From passage —'1867-8 From passage-. May 27, 1868 - From passage .. From passage .. From passage .. May 29, 1868 .. May 29, 1868 .. From passage -. From passage — From passage .. 1867-8 1867-8 1867-8 1867-8 1867-8 1867-8 1867-8 1867-8 1867-8 336 355 357 386 389 417 423 437 439 462 1867-81 463 617 810 816 5 14 20 66 134 135 159. I3T 155 189 204 259 294 299 331 342 404 404 427 428 473 477 531 538 559 563 616 * See Act approved March 30, 18G8. t^ !^> £84 DEBATES AND PROCEEDINGS Thursday, CoMHLATioN or Railboad Acts — Continued. Title or Act. 147 148 149 150 ISl 162 1S3 164 155 15« 167 158 159 160 161 162 163 164 165 167 168 169 170 171 172 173 174 175 176 177 An Act authorizing the Board of Supervison of Plumas County to take and subecribe to the capital stock of the OroviUe and Virginia City Railroad Company, and to provide for the payment thereof — [Repealed by Act approved February 26, 1870.] An Act to aid in eiving effect to an Act of Congress, relating to the California and Oregon Railroad Company An Act to authorize the construction of a tramroad or railroad in the County of Banta Clara '■ An Act to amend an Act entitled "An Act to provide for the construction of a rail- road from Mokelumne City to Woodbridge, in the County of San Joaquin," approved March 27, 1862 - An Act to authorize the construction of a railroad bridge across Napa Creek, at or near Suaeol, in the County of Napa An Act to confer upon the California Pacific Railroad Company, duly incorporated and working under the general railroad laws of this State, certain rights and privileges An Act to aid in carrying out the provisions of an Act of Congress, relating to the Stockton and Copperopolis Railroad Company . An Act to amend an Act entitled " An Act to amend an Act to provide for incorpora- tion of railroad companies and the management of the affairs thereof, and other matters relating thereto, approved May 20, 1861," approved April 27, 1863 An Act to confer power upon the Board of Supervisors of the City and County of San Francisco An Act to survey and dispose of certain salt marsh and tide lands belonging to the State of California [Compare Acts approved April 2, 1870, and March 6, 1872.] An Act to repeal an Act entitled "An Act authorizing the Board of Supervisors of Plumas County to take and subscribe to the capital stock of the Oroville and Vir- ginia City Railroad Company, and to provide for the payment thereof" .. [Repeals Act approved March 30, 1868.] An Act to transfer money from one fund to another in the County of Solano An Act amendatory of and supplementary to an Act entitled " An Act to provide terminal depot grounds for the Termmal Central Pacific Railway Company," approved March 20, 1868 An Act to empower the County of San Joaquin to aid in the construction of the Stockton and Visalia Railroad An Act to empower the City of Stockton to aid in the construction of the Stockton and Visalia Railroad .\n Act to amend an Act entitled " An Act to provide for the incorporation of rail- road companies, and the management of tne affairs thereof, and other matters relating thereto," approved May 20,1861 An Act to extend the time allowed to the Southern Pacific Railroad Company and the Western Pacific Railroad Company, in which to make the terminus of their roads upon certain lands donated to them by the State for that purpose in the City and County of San Francisco [Compare Act approved March 30, 1868, and March 6, 1872.] An Act to authorize and empower the President and Trustees of the City of San Diego to donate lands to the San Diego and Los Angeles Railroad Company, to aid in the construction of said railroad . An Act to empower the City and County of San Francisco to aid in the construction of the Southern Pacific Railroad, and other purposes An Act to empower the Boards of Supervisors of the several counties of the State to aid in the construction of a railroad in their respective counties [Supplemented by Act approved April 4, 1870. Partially repealed by Act ap- proved March 21, 1872. Wholly repealed by Act approved January 14, 1874.] An Act supplementary to an Act to empower the Boards of Supervisors of the sev- eral counties of the State to aid in the construction of a railroeul in their respective counties, approved April 4, 1870 [Partially repealed by Act approved March 21, 1872. Wholly repealed by Act approved January 14, 1874.] An Act to confer additional power upon the Board of Supervisors of Yuba County.. An Act to authorize the Board of State Harbor Commissioners to lease a portion of the water front in the City and County of San Francisco An Act to amend an Act entitled "An Act to provide for the transfer of certain funds in the County of Placer," approved March 28, 1868 An Act amendatory of an Act entitled " An Act supplementary and amendatory of an Act entitled ' An Act to authorize the County of^ Placer to subscribe to the cap- ital stick of the Central Pacific Railroad Company of California, and to provide for the pavment of the same, and other matters relating thereto,'" approved March 31, '1866 An Act to aid in giving effect to an Act of Congress relating to the Southern Pacific Railroad Company An Act authorizmg a telegraph between Los Angeles and Wilmington, in Los An- geles County ,. An Act to confirm a certain contract for the sale of stock held by the County of Santa Clara in the Western Pacific Railroad Company, and to give effect to the same, and amendatory of an Act entitled " An Act to authorize the Board of Supervisors of the County of Santa Clara to take and subscribe $150,000 to the capital stock of the Western Pacific Railroad Company, and to provide for the payment of the same, and other matters relating thereto," approved April 14, 1863 An Act to extend the time allows to the Southern Pacific Railroad Company, and the Western Pacific Railroad Company, in which to make the terminus of their roads, upon certain lands donated to them by the State for that purpose, in the City and County of San Francisco [Compare Acts approved March 30, 1868, and April 2, 1870.] An Act for the relief of the Central Pocific Railroad Company An Act to repeal an Act entitled " An Act to empower the Board of Supervisors of the several counties of the State to aid in the construction of a railroad in their respective counties," approved April 4, 1870, and an Act entitled "An Act supple- mentary to an Act to empower the Board of Supervisors of the several counties of the State to aid in the construction of a railroad in their respective counties, Dat* of Pasasfe. Took EITect. Statttes. March SO, 1868. March 30, 1868. March 30, 1868. March 30, 1868. March 30, 1868. March 30, 1868. March 30, 1868. March 30, 1868. March 30, 1868. March 30, 1868. Feb. 26, 1870... Mareh 28, 1870. March 31, 1870. March 31, 1870. April 1, 1870.. April 1,1870... April 2, 1870... April 2, 1870.. April 2,1870.. April 4, 1870... April 4, 1870... April 4, 1870... April 4,1870... April 4, 1870.. April 4, 1870— April 4, 1870.. Feb. 13, 1872.. Feb. 21, 1872... March 6, 1872.. March 20, 1872. Tear. I Chap. | Pag«. From passage.. 1867-81 471 May 29, 1868.. From passage- From passage. From passage. .11867-8. 483 630 655 1867-8 484 j 656 I867-8J 485 j 657 1867-8! 493 j 663 From passage.. 1867-8 499 671 1 I May 29, 1868 ...'1867-8 From passage From passage May 29, 1868 From passage ._ From passage .. From passage.. From passage.. From passage .. May 31,1870... From passage.. From passage .. From passage .. From passage .. From passage . . From passage .. From passage .. From 502 '1867-8 631 1867-8 542 From passage. From passage .. From passage From passage.. From passage From passage.. 1871-2,' 318 870 870 870 1 461 870 870 870 473 484 507 870 < 505 870 870 870 870 524 535 542 870 570 679 1871-2, 90 1871-2 1871-2 217 Digitized by ' 673 705 716 .. 1867-8 543 716 870 107 i 102 313 414 381 : 525 I 870 j 387 ; 632 870 ' 396 551 i 870 413 577 669 696 707 746 744 782 799 807 S6« 883 87 132 139 28S 433 Google, Dec. 5, 1878. OF THE CONSTITUTIONAL CONVENTION. 585 Compilation of Railroad Acts — Continued. TiTi» or Act. approved April 4, 1870," approved April i, 1870, except as to certain counties therein named [Repealed by Act approved January 14, 1874.] An Act to add additional sections to the Political Code [Sections 3663 and 3830.] An Act to repeal certain Acts herein mentioned, known as " The five per cent sub- sidy Acts." , I [Repeals AcU approved April 4, 1870, and March 21, 1872.] An Act granting to the Sierra Iron Company the right to construct a road in Sierra | and Plumas Counties i Date of Paaugb. An Act to legalize, ratify, and confirm Ordinance No. 38, entitled Charter Ordinance No. 38, granting right of way to the Texas and Pacific Railroad Company, and repealing Ordinance No. 35, passed and approved by the Board of Trustees of the City of San Diego, on the 20th day of June, 1873 An Act to provide for the construction of a railroad from Colfax, in the County of Placer, to Nevada City, in the County of Nevada, and to regulate freiglits and fares thereon An Act to provide for the construction of a railroad from the Bivy of San Luis Obispo, in the Couny of San Luis Obispo, to Santa Maria, in the County of Santa Bartuira [Supplemented by Act approved February 28, 1878.] An Act to authorize the City of Los Angeles to issue bonds in payment of certain indebtedness An Act to provide for the construction of a railroad from Independence, in the County of Inyo, to the City of Los Angeles, Los Angeles County^ and to regulate the fares and freights thereon An Act to provide for the construction of a railroad from the City of Marysville, in the County of Yuba, to Knights Landing, in the County of Yolo, and to regulate fares and freights thereon An Act to grant land for the right of way to the Areata Transportation Company... An Act to provide for the redemption of the outstanding railroad bonds of Butte County An Act concerning certain taxes in the Counties of Placer and Nevada An Act to authorize the Board of Supervisors of the County of Santa Crux to arrange with the Santa Cruz Railroad Company to change its railroad so at to pass through the Town of Watsonville An Act to provide for the appointment of Commissioners of Transportation, to fix the maximum charges for freights and fares, and to prevent extortion and discrimi- nation on railroads in this State [Repealed by Act approved April 1, 1878.] An Act to provide for the payment «f certain coupons , An Act supplementary to an Act entitled " An Act to provide for the construction of a railroad from the Bay of San Luis Obispo, in the County of San Luis Obispo, to Santa Maria, in the County of Santa Barbaira [Supplementary to Act approved March 27, 1874.] An Act to provide for the payment of certain coupons upon bonds issued to the Central Pacific Railroad Company, and known as State Aid Bonds An Act to provide for the construction of a railroad from the Town of Truckee, Nevada County, to Tahoe City, Lake Bigler, in Placer County, and to regulate fares and freights thereon An Act to provide for the construction of a railroad from lone, in the County of Amador, to a point in or near the Towns of Sutter Creek, or Jackson, in said county, and to regulates fares and freights thereon An Act to enable railroad companies to complete their railroads An Act imposing a tax on the issue of certificates of stock companies An Act to create the ofiBce of Commissioner of Transportation, and to define its powers and duties; to fix the maximum charges for transporting passengers and freight on certain railroads, and to prevent extortion and unjust discrimination thereon [Repeals Act approved April 3, 1876.] EXTBACTS FROM THK CODKS. The Civil Code — Sections 283 to 403 : General provisions applicable to all corporations. Sections 454 to 491 : Railroad corporations. The Code of Civil Procedure— Sections 1227 to 1233 : Of the voluntary dissolution of , corporations. Sections 1237 to 1263 : Of eminent domain. __ Maroh 21, 1872. Mareh 27, 1872. Jan. 14, 1874... March 11, 1874. Mareh 16, 1874. March 20, 1874. March 27, 1874. March 27, 1874. March 28, 1874. March 28, 1874. March 25, 1876. March 27, 1876. March 31, 1876. April 1, 1876... April 3,1876... April 3, 1876... Feb. 28, 1878... Mareh 19, 1878. March 29, 1878. March SO, 1878. April 1, 1878... April 1, 1878... April 1, 1878... Statutes. Took Effrat. From passage.^ From passage.. From passage.. Year. 1871-2 Ohap. 335 1871-2 417 1873-4 From passage.. 11873-4 From passage.. From passage.. From passage.. From passage. - From passage.. From passage.. From passage .. From passage .. From passage .. From passage .. From passage .. From passage .. From passage .. From passage . From passage . From passage . From passage .. April 1, 1878... From passage.. Paga. 444 586 26 I 26 I 239 1873-4 271 1873-4 1873-4 336 464 1873-4 497 1873-4 1873-4 1875-6 1875-6 1875-6 1875-6 1875-6 1875-6 1877-8 1877-8 1877-8 1877-8 1877-8 1877-8 1877-8 Digitized by 535 545 346 360 436 480 515 586 274 456 539 597 613 641 341 370 492 695 724 772 780 486 501 621 725 783 881 105 114 335 698 841 944 955 969 Gqo$I( 686 DEBATES AND PROCEEDINGS Thdbsday, 8TATI1IEXT or BONDKD IHDEBTIDKESS Of the Cbuniies of the State of Oalifomia, ineumd tn aid of Sailroad Companiet. NaMI or COCMTT. Butte J El Domdu PUcenrillc Mam« of Bailrond Compui^, Date of Act Antboilitng lame. AmoQDt of Bonds If •Ded by CountT. Bat* of In- tenet California Northern I'tacerrille and Sacramento Valley. March U, IMO.. March 28, 1863.. tSUO.OOO* 10 per cent 20U,a00t i 10 per cent. Amount of Sonde Re- deemed. tteall.ed *»»"*•' from Sale "•»*««'• Slock. I J2.»«3«», 1878. •67,000 I U,500 Loa Angotes Loe Angelca (City) Marin Napa. - [ Placer - Sacnunento (City and Cu ) San rninriKo(Cltyar.d j County) 1 San Joaquin City of Stockton . San Mateo Santa Clara . Sanu Cmi.. Solano ■--{ I^os Angeles and San Pedro Southern Paciflc . Los Angelrsand Sao Pedro Southern Psciflc North I'aciflc Coast Napa Valley and California Pscillc | Central PaclAc Central Paciflc Railroad of Olifornia San Francisco and San Jos6 Central Paciflc j Wratern Pndflc 1 Western Paciflc Stockton and Vlsalia Stockton and Visalia San Francisco and San Joe6 Western Paciflc : San Fimndsco and San Jos^ \ Sonoma . Tnha— . Santa Cmi San Frsncisco and Marjsville . / ' Arterwsrds to California Paciflc ( , , Sonoma County, Callfoniia Paciflc, San Fran- 1 Cisco, and North Paciflc / San Francisco and Maiysville I Yuba ' 10 per cent. 7 per cent. 10 per cent. 7 per cent. 7 per cent. 10 per cent 8 per cent 8 per cent 7 percent 7 percent 7 per cent 8 per cent 7 per cent. 7 per cent 7 per cent 7 per cent 7 per cent 7 per cent 7 per cent 8 per cent 10 per cent 8 per ceut 14,000 None. None. None. None. 22,000 260,000 222,800 2«g,»00 «S,000 None. None. None, None. None. None. None. None. None. 67,fi00 CS,UOO None. None. None. None. None. None. None. None. 250,000 210,000 1,000 None. None. None. None. None. None. 100,000 100,000 Nona. None. None. None. None. $131000 IMiSOC iSiooo 3n,o» 74,000 13^ 160JIII10 2!8/Xn None. T7JO0 1,MI> 3r7jHI0 2U/IW Noes. 80^ 120,000 None. isojmo Noea 114,900 200,000 207,000 (e) 32,300 Moae. $4,871,000 I $1,283,000 I ' $661,000 $2,938^000 The SUte of California guarantees the interest upon $1,500,000 of seren per cent, hands of the Central Paciflc Railroad Company for twenty years. (a) San Joaquin County issued $i.'>0,000 of county bonds to curer her suberription to the Weetem Paciflc Railroad Company Mock. The railroad company rehsinf to dolivrr the stock, the county sued the company, and the matter is still in litigation, the c«mpany wishing to compromise for $100,000 worth of bunds, bat the cooaty refuses to accept, still claiming the stock. (b) The principal and interest of these San Mateo County bonds haye been paid by the Southern Paciflc and San Joai Bailnad Company. (c) Funded July, 18CH, into eight per cent county bonds. * in exchange for railroad county bonds. f Subscription to railroad company's stock. t Subsidy. Thb president. The communication and accompanying docu- ments will lie on the tabic. OEDEBKD PBIXTED. Me. THOMPSON. Mr. President, I move that four hundred and eighty copies of the proposition introduced by me yesterday, relative to the hours of labor, be printed. The president. The Secretary will read the proposed amend- ment. The SECRETARY read : Abticle — . Section 1. The hours of labor on all contracts performed for the State, county, and municipal governments shall not exceed eight hours a day. Sec. 2. The hours of labor on all work done for corporations doing business under charter from this State shall not exceed eight hours a day. Sec. 3. All Slate offices, oountv and municipal, shall remain open for the transaction of business eight nours each business day. Sec. 4. Eight hours shall constituls a legal day's work in each and every department of the State, county, and municipal governments. Sec. i. This article shall be enforced by appropriate legislation. The motion prevailed, on a division, by a vote of 46 ayes to 39 noes. The PRESIDENT. The article will be printed and referred to the Committee on Miscellaneous Subjects. Ql'E3TI0M or INrOBKATIOK. Mb. 8TEDMAN. . Mr. President: I rise for a question of informa- tion. I have been in the habit, as a great many members of this Con- vention have, of coining to this chamber in the evening and doing writing, and studying, and reading books, pamphlets, papers, etc. Now, Mr. President, I have my room and can read there just as well as in this chamber, but I understood that this chamber was for the use of this Convention in the evening as well as during the da^. Last night I came here, as several other genllemen did ; we found that the hall was not lighted, and, on looting around the chamber, we found a great many members with lighted candles on their desks. The information I wish is, how this comes? I was absent, and the Convention may have taken some action, but I understand that the lights were put out by the order of Hon. S. G. Hilbom. I desire to know by what authority that gentleman gave this order; whether it was by the authority of this Convention, or by the assumed authority of the Chairman of the Com- mittee on Contingent Expenses, and whether this chamber is to be lighted in future, or not? Me. HILBORN. Mr. President : I am very happy to give the gen- tleman the information he wants. In the first place, no corrupt Legis- lature was ever so wasteful of the people's money as to light up the Assembly chamber at night when the Assembly was not in session. It is left for this body to establish a different precedent. There never was any right on the part of the Sergeant-at-Arms to spend thirty dollars a night in lighting up this large chamber for a half-dozen stragglers to come here and read at the expense of the State. It has never been the practice in any Legislature to light up these chambers for the benefit of naif a dozen men who might come in here to read. It has been the practice among corrupt legislators, when they wanted to come here to read, to have the gas lighted in some of these side brackets and leave their own desks and ro there to read. They never asked that this great hall should be lighted at the expense of the State for their individual convenience. I say that this has never been asked by any one before until these reformers — these people who come up here to stand by the rights of the people — come here and demand a different practice. I certainlv was not aware until a few days ago that this thing was going on; and yesterday morning I went around among as many of these people as I could see, and asked if there was any necessity of continuing this improper expenditure. Now, of course, I have no right to order the 8crgeant-at-Arms — and I merely asked him why he was doing it He said he had done it at the request of some of the members ; and 1 merely told him that it was not the practice when the Legislature was in session, and that if I was him I would not do it. I did not order him. I merely told him that if I was him I would shut it off, and then if the Convention ordered it, he could turn it on again. I have been trying to beat some economical sense into this senseless body. [Laughter.] Mb. PILCIIER. Will the gentleman inform the Convention by what authority the hall has been lighted all this time? Me. HILBORN. I suppose at the suggestion of some of these re- formers. Mb. REYNOLDS. I would like to inquire of the Chairman why be did not cut off this expense sixty-five days ago, and save the Conven- tion Fund some one thousand nine hundi>ed and fifty or two thousand dollars? Why wait until this late day? Me. HILBORN. It was only two or three days ago that I heard this thing was going on. I do not come here evenings. I buy coal oil for my own hotel. Me. WATERS. I have met the Senator here myself when the light was burning. Me. REYNOLDS. So have I. Mb. STEDMAN. I desire to inform the Convention that the gentle- man from Solano voted for an appropriation of two dollars a day for the purpose of lighting this room and other rooms, consequently I am satis- fied that he did know it was lit, and I have seen him here, too. The president. There is no question before the Convention. Mb. REYNOLDS. Since economy is the order of the day, I would like to be informed where he has started the skating rink. Mb. HILBORN. I do not understand Mb. REYNOLDS. With the three hundred pounds of ice. THE BAILBOAD (iOUIlISSION. Mb. ESTEE. Mr. President: I move that the Convention now resolve itself into Committee of the Whole, the President in the chab, for the purpose of further considering the report of the Committee on Corporations other than Municipal. Digitized by Google Dec. 5, 1878. OF THE CONSTITUTIONAL CONVENTION. 687 Cftrrifid m COMMITTEE OP THE WHOLE. Tbe CHAIBMAK. Section twenty and pending amendments are before the committee. BPKICB OP MB. JOHKSOS. Mr. JOHKSOK. Mr. Chairman: Nothing can exceed the patience and toleration of this committee, in hearing the discussion of the report of the Committee on Corporations. I do not propose to inflict upon it any prolix speech. We are at length drifting from the open sea to the shore, slowly if not surely. Now, I wish, for the purpose of voting advisedly, ((> pass hurriedly over the substitute reported by the commit- tee, and the amendments that have been suggested, and in doing so, I shall not read from this substitute, or from the proposed amendments, anything that relates to the qualifications of these officers, or to the mode of their selection, but simply as to the powers of this Railroad Commis sion. I do this for the reason that the gentleman from Alameda, Mr. Campbell, has left out everjrthing in respect to the qualifications of the officers, or the manner in which they shall be chosen, whether elected by the people or appointed. The substitute reported by the committee is as follows: " Baid Commissioners shall have the power, and it shall be their duty, to establish rates of charges for the transportation of passengers and freight by railroad or other transportation companies, and publish the same from time to time, with such changes as they may make; to exam- ine the books, records, and papers of all railroad and other transportation companies, and for this purpose they shall hare process of the Courts; to hear complaints against.railroad and other transportation companies, to send for persons and papers, administer oaths, take testimony, and report cases of contempt to tne Courts for their action, and enforce their decisions and correct abuses through the medium of the Courts, and per- form such other duties as may be prescribed by law; to report to the Governor, annually, their proceedings, and such other facts as may be deemed important. Nothing in this section shall prevent individuals from maintaining actions against any of such companies. It shall be the d uty of the Legislature to confer all such further powers on the Board of Railroad Commissioners as shall be necessary to enable them to per- form the duties eujoined on them in this and the foregoing sections." • In the first place, I will premise that if nothing better is obtained than this substitute, I shall vote for it, but at the same time I think that something else better and clearer and less ambiguous can be adopted by this committee. But I do not base my qualified opposition upon the same grounds as the gentleman from San Francisco does. He says that there is nothing binding in it; that the rates to be established by this Commission are not binding, or at least that there are no words tn this substitute which say that they shall be binding. That is entirely unnecessary. If the word " shall " is used, it necessarily impli^ some- thing like permanence. The received meaning is that it does not mean simply to point out or to designate, but the idea of permanence is asso- ciated with the word "shall;" therefore, when the committee say that "they shall' have power and it shall be their duty to establish rates of charges," the idea of permanence is associated more or less with that expression, and it is not necessary to add that their rates shall be bind- ing. Just as in the Constitution of the United States we have the words that Congress shall have the power to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies; and the words themselves, ex vi termini, imply permanence. I do not stand, therefore, on the same ground of opposition to this substitute as the gen- tleman from San Francisco. The substitute says they shall have power "to examine the books, records, and papers of all railroads and other transportation companies, and for this purpose they shall have the pro- cess of the Courts, to hear complaints against railroad and other trans- portation companies, to send for persons and papers, administer oaths, take testimony, and report cases of contempt to the Courts for their action, and enforce their decisions, and correct abuses through the medium of the Courts, and perform such other duties as may be pre- scribed by law; to report to the Governor annually their proceedings, and such other facts as may be deemed important." Now, the query suggests itself, what kind of complaints? The word complaint is uncferstood by all lawyers. It covers a bill in equity or a suit at common law. What is the meaning of this word complaint, and why is it that afterwards it is added : "Nothing in this section shall prevent individuals from maintaining actions against any such companies?" In other words, yoa can go into the Supreme Court and institute your suit. Butwhatdoes this word " complaint " mean 7 Does it mean that this Board of Commis- sioners is to be a forum, and when we come into that forum we have a right to litigate any kind of a complaint. Or does it leave to some future Leg- islature to define this clause and the meaning of this word "com- plaint?" I say that it is ambiguous. This language would have to be construed hereafter. We know not what construction will be placed upon it, and it will be a poor subterfuge for us to say hcrcafler that we did not vote underatandingly upon the substitute ; that we did not know the precise meaning of the word "complaint;" that we did not know what meaning would be attached to that phraseology ; that we supposed a different meaning would be attached to it than what the Courts will attach to it. That will be a poor and lame excuse. It is for us to feel our way, and be sure of the phraseology in framing fun- damental laws. "To hear complaints." Complaints of what kind? Complaints of undue or unjust discrimination? Complaints of extor- tion? It does not say so. It says complaints, and therefore we will have to depend upon some future Legislature to define that word. Now, sir, there has been a great deal said about our Legislatures. They have been attacked mercilessly, and I think often without cause, and yet it is proposed to relegate to some future Legislature to this divided body tne definition of the word "complaint," and to enact laws that will carry out the supposed meaning of the framers of this Con- stitution. "To hear complaints against railroad and other transporta- tion companies, to send for persons and papers, administer oaths, take testimony, and report cases of contempt to the Courts for their action, and enforce their decisions and correct abuses through the medium of the Courts." ' In the original section the word "penalties" was used. This leaves it out. The word "decisions" is used now, and seems to take the place of the word " penalties." What, theif, is the nature of this forum? How will an attorney draw up a complaint in it? And after he has gone through its routine, what is the necessary process for us to get into the Superior Court? I say this language is shrouded in ambiguity. If this provision was borrowed from some other Constitution, if it had the light of judicial construction shed upon it, then we could also incorpo- rate with it the judicial construction which has been given to it in the Courts of that State or county from which we borrow it. The parentage of this section is not shown us, but we do know that this whole language is shrouded in mystery. I read further, "and perform such other duties as may be prescribed by law ; to report to the Governor, annually, their proceedings, and such other facts as may be deemed important." Now, if it is proposed to combine the legislative, executive, ana judicial departments in this tribunal, if it is proposed to make it a coordinate department of the grand departments of this State, in the distribution of powers, then it would be subject to the criticism which has been expressed against it ; subject in a great degree to the criticisms of the fentleman from Alameda. It would be a kind of composite tribunal, ts jurisdiction would not be well defined. It would have legislative power, executive power, and judicial power. Now, sir, I have gone hurriedly over this substitute. At the same time, I admit that the learned committee who have gotten it up have been actuated by the best of motives, and that their object is to accom- plish a good end; but, before I vote for a proposition, fat least want to be informed of what it means. If it does not come to us from any other State or country, then we should be a little more particular as to the language, unless the language is so clear that any one can understand it at first blush. The gentleman from San Francisco, Judge Hager, proposed an amend- ment. I will leave out of his amendment so much as relates to the qualifications of this Board of Commissioners, and how they shall be cliosen, and simply read so much as refers to their powers: " The Commissioners, or a majority of them, shall have power, and it shall be their duty, to establish reasonable and just tariffs and rates of charges for the transportation of passengers and freights by all railroad corporations; and for this purpose they shall have power to administer oatua, to examine the books and papers of such corporations, to summon and examine the officers and stockholders thereof, and other witnesses, to hear complaints, inquire into and correct abuses, prevent partial and unjust discriminations and extortion in the rates of charges and the tariffs for the transportation of freights and passengers. They shall publish, semi-annually, full statements of the tariffs and rates of charges established and authorized by them, and of all abuses, discriminations, and extortion, and report the same to the Governor. Whenever such tariffs and rates shall be established and published, they shall be bind- ing upon, and must be observed by, all such corporations doing business in this State, and may be enforced by the Commissioners, or by any party in interest, through the Courts; but nothing herein shall prevent any person from mainteining an action for injury or damage against such corporations. The Legislature shall confer on the Commissioners such further powers as shall be necessary to enable them more fully to perform their duties; and it shall pass laws, with adequate penalties — to the extent, if necessary, of forfeiture of the franchises of such corpora- tions— to enforce the action of the Commissioners. The Commissioners, and each of them, may be removed from office by the Legislature, by a majority vote of all the members elected to each house, and shall also be liable, personally and on their official bonds, to any party aggrieved, for neglect of duty, or any malfeasance or corruption in office." The word " reasonable" is used in this amendment, and also in Judge Campbell's. "To hear complaints" — this same objectionable phrase- ology occurs in this amendment. " Prevent partial and unjust discrim- inations." I undertake to say that these words — ^"to prevent partial and unjust discriminations" — are not in harmony witn the previous section, which we have already adopted. This .committee has adopted a section that there shall be no discrimination. Why, therefore, add any words of this character : " to prevent gartial and unj ust discrimina- tions?" Why, that would imply that there could be discrimination. It says that tbe discrimination shall not be unjust, but it implies that there may be discrimination, and that is not in harmony with the section which we have already adopted, that there shall be no discrim- ination. It is upon that familiar principle of law, as old as the days of Lord Bacon, "that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated." Therefore, it would seem to be implied from Judge Hager's amendment, that there may be discrimination, and I say that that is not in unison with the section we have already adopted. I read further: "Prevent partial and unjust discriminations and extortion in the rates of charges and the tariffs for the transportation of freights and passengers. They shall publish, semi-annually, full statehnents of the tariffs and rates of charges established and authorliied by them, and of all abuses, discriminations, and extortion, and report the same to the Governor. Whenever such tariffs and rates shall be established and published, they shall be bind- ing upon, and must be observed by all such corporations doing business in this State, and may be enforced by the Commissioners, or by any party in interest, through the Courts." Now, the distinguished gentleman from San Francisco says : "What sanctions are there in this substitute report of the committee?" I inquire of him what sanctions are there in his amendment? He says that something may be enforced through the medium of tbe Courts, but I find none of these sanctions which he speaks about. Therefore, it seems Digitized by V^-' 588 DEBATES AND PROCEEDINGS Thursday, to me that his amendment it equally objectionable. Now, we are all endeavoring to arrive at the same result. We should abandon this C°'e of opinion, this disposition simply to carry a proposition use it comes from a certain source. It is for us to be sure of the phraseology ; put upon it the proper construction, and see that it accom- plishes the end for \§liich we design it. It is not to be supposed that our work will be entirely perfect; that it will rise like some Doric column, the base corresponding to the die, the die to the shaft, and the shaft to the capital ; but, at feast, we should know something of the materials which enter into the structure, and of the order of architec- ture which it attempts to illustrate. Now, I will proceed to consider the amendment offered by the gentle- man from Alameda, Mr. Campbell. He leaves for a subsequent section the definition of the qualifications of these officers and how they shall be chosen, but he says this: " Said Commissioners shall have power, and it shall be their duty to examine the books, papers, records, and documents of all railroad corpo- rations organized or hereafter to be organized under the laws of this State, or any portion of whose road shall be in the limits of this State, to investi- gate their afi°air8, ascertain their receipts and disbursements, and by a majority vote to establish reasonable rates of fares and freights upon all or any of such roads, or upon any portions thereof, whenever and as often as they may deem necessary, and alter tlie same when in their judgment it shall be proper, and to make and publish schedules of such rates. Said Commissioners, and each of them, shall have access to the books, records, papers, and documentsof all such corporations, and any officer of any such corporation, or any person having the care, custody, or control of any such books, records, papers, or documents, who shall, at any reasonable time, refuse to any Commissioner access thereto, shall be deemed guilty of a misdemeanor, and fined not more than five thousand dollars, or im- prisoned in the county jail not more than one year. Said Commis- sioners, and each of them, shall have power in the discharge of their duties to administer oaths and affirmations, issue subpenas for and examine witnesses under oath or affirmation ; and any witness who shall willfully swear or affirm falsely to any material matter before said Com- missioners, or either of them, shall be liable to all the pains and penalties affixed by law to the crime of perjury ; and any witness who shall fail to attend or shall refuse to testify in any material matter before said Commis- sioners, or either of them, shall be punished for contempt by the Superior Court, as in other cases of contempt. Such Commissioners shall annu- ally, and whenever requested by him, report their proceedings and such information as may be proper, to the Governor. Any such corporation refusing to conform to such reasonable rates as shall be established by said Commissioners, shall be deemed guilty of a misdemeanor, and shall be punished by a fine not exceeding twenty thousand dollars, and shall be liable to the party injured fur all damages sustained by him, and, in the discretion of the Judge or jury trying the case, for exemplary dam- ages; and every officer, servant, or employ^ thereof, who shall willfully refuse to conform to such rates, or who shall demand or receive rates in excess thereof, shall be fined not exceeding five thousand dollars, or be imprisoned in the county jail not exceeding one year. These provisions shall be deemed self-executing, but the Legislature may enforce them by additional legislation, and may confer additional powers and duties upon said Commissioners. The rates of freights and fares established by said Commissioners shall in all controversies and proceedings, whether civil or criminal, be deemed prima facie just and reasonable. Said Com- missioners shall prescribe a uniform system of accounts to be kept by all such corporations, and returns thereof shall be made to said Commis- sioners whenever required by them, or either of. them, and any railroad corporation failing to keep such accounts, or to make such returns when 80 requested, shall forfeit its road and franchise." He says they shall have power to " establish reasonable rates of fares and freights upon all or any of such roads, or upon any portions thereof, whenever and as often as they may deem necessary, and alter the same when, in their judgment, it shall lie proper." Now, here Is no unneces- sary phraseology, and yet the power is reserved expressly, in words that are clear and unambigtious, that this Commission may at any time alter their rates. Suppose that the Courts should consider these rates as unreasonable. As soon as that decision is had the Commissioners can revise the rates. The language is clear and expressive, and is not sub- i'eet to two constructions. " Said Commissioners and each of them shall lave access to the books, records, papers, and documents of all such cor- porations, and any officer of any sucn corporation, or any person having the care, custody, or control of any such books, records, papers, or docu- ments, who shall, at any reasonable time, refuse to any Commissioner access thereto, shall be deemed guilty of a misdemeanor, and fined not more than five thousand dollars, or imprisoned in the County Jail not more than one year." There is a sanction. We do not have to go to the gentleman irom Alameda to ask him where his sanctions are, but we realize as we read his amendment that there is a sanction, a sanction founded upon an iron constitutional provision. It is not subject to the whims or caprices of a subsequent Legislature, but it is defined, and it is self-executing. "Said Commissioners and each of them shall have power in the discharge of their duties to administer oaths and affirma- tions, issue subpoenas for and examine witnesses under oath or affirmation, ond any witness who shall willfully swear or affirm falsely to any material matter before said Commissioners, or either of them, shall be liable to all the pains and penalties affixed by law to the crime of per- jury." That looks like a sanction. "And any witness who shall fail to attend, or shall refuse to testify in any material matter before said Com- missioners, or either of them, shall bo punished for contempt by the Superior Court, as in other cases of contempt." That looks like a sanc- tion. " The rates of freights and fares established by said Commissioners shall in all controversies and proceedings, whether civil or criminal, be deemed prima facie just and reasonable." That is a good provision. In other words we start with the prima facie case, that these rates are hi reasonable, and the burden is upon the contestant or complainsnt to show that the rates are unreasonable. His counsel may attempt to show, and may succeed in showing, that these rates are not reasonable, but it is for him to overcome the presumption, that the rates ore reasonable, and that the Commissioners have done their duty. "Said Commissioners shall prescribea uniform system of accounts to be kept by all such corporations, and returns thereof shall be made to said Commissioners whenever required by them, and anv railroad corpora- tion falling to keep such accounts or to .make suet returns when so requested, shall forfeit its road and franchise." That looks like a unc- tion. Now, sir, I can understand the language of the gentleman from Alameda. It does not need any interpretation. It interprets itself. It is not dependent upon the construction which may be given to it by the Supreme Court or by the various Superior Courts of this State as hereto- fore established. We all understand it, and it stands there In the lue of these railroad corporatious and monopolies, so that while ninmn; their roads they may read it. They know exactly what they must con- front, and knowing the range of these punishments, from one dollar np to twenty thousand dollars, and from one dollar up to five thousand dol- lars, they will undentand its full significance. It seems to me that this amendment commends itself .to our approval. I do not stand here in the attitude of doing any injustice to these nil- roads. I fully recognize their advantages. I know that they have largely contributed to the development of this State. I know that they arc doing a great deal in civilizing this State, and all the cities in this State, and I want to see more of Uiem. I hope to see the day when the innovatiou upon the old ruts of the past by that taciturn man. George Stephenson, who in Kngland essayed for the' first time to build his road on the quaking morass between Liverpool and Manchester, thus layine the foundation of the great system of railways between the Tyoe and the Arundel ; I say, I hope to see this same innovation speeding its way over the bills and through the volleys of this great State, extend- ing, as it does, seven hundred miles in length by two or three handled in width, from the Sierras to the sea, rich in its mineral products and richer still in its agricultural wealth. I hope we will all live to see the day. Then, it will be asked, " Why do you take this position?" To such interlocutor I respond, " Why do you concede to us the power to establish rates of freights and faresT" You say that we have the power. In whose interests should that power be exercised? Is there onlv one party to be benefited — the party that has gotten the franchise — orsLould the benefit accrue equally in favor of the people of this State? If we have the power to regulate it, in whose interests should it be regulated? Most certainly not solely in the interests of the corporations, but in ihc interest of all. The distinguished gentleman from San Francisco, Ur. Wilson, says that he admits the power, and I will just say here, he is always clear in his announcement of the law. He admits the power— whethA by virtue of the reservation —in our present Constitution, which reserves the right to the Ijegislature to alter or abolish the charter, or whether it be derived from the police power of the State, he admits that the power does exist. It may be argued either from the police power or from the reserved power in our present Constitution, in respect to cor- porations. This power, then, existing, should it not b« exercised in the interests of the people? Surely I think >o. As I said before, if nothing better can be adopted than the substitute reported by the committee, I shall give it my support, but I see the dif- ficulties attendant upon it, and I think that by the adoption of the amendment of the gentleman from Alameda, we will have clear sailing. No amendment has been offered in respect to the time and mode in which these Railroad Commissioners shall be chosen, but that has nothing to do with the power. We have simply been discussing the powers, and the legitimacy of their exercise as proposed by this substi- tute, and by these amendments. Therefore, I hope that tbe amend- ment of the gentleman from Alameda will prevail. Mb. ESTE^. Mr. Chairman: Is there any such amendment before the house? The CHAIRMAN. Tbe Chair is not aware of any such amendment. SPIECH OP MB. HAGIR. Mb. HAGER. Mr. Chairman : After this prolonged debate, I feel reluctance in further occupying the attention of the committee on tils subject, but the substitute for section twenty, reported yesterday by the Committee on Corporations, has, to some extent, revolutionized the'sab- ject and this debate, by the recommendation of a new proposition upon which we are suddenly called upon to act. As I said last evening, I do not think that this new report is an improvement on the one first presented. I believe if this substitute should be adopted, it will prove to be inope- rative, and will not effect the purpose intended to be accomplished by the committee. In my opinion the powers to be conferred upon these Cam- missionera should be ministerial — entirely ministerial. Tne enforeemeDt of action should be through the judicial and legislative-deportments of the government. I am not in fovor of clothing them with exclusive judi- cial powers, or semi-judicial powers, or with legislative powers, any further than may be necessary to the full performance of their minis- terial duties. I must confess, this substitute to me is incomprehensible. I could not very well interpret its meaning. Perhaps my powers are inadequate, but if I were called upon as a Judge, to explain and enforce its provisions, I could not do it. I may be compelled to vole for it, as it is, if it cannot be improved, but if I do, I may live per- haps to see the day when I will regret that I ever favored a propo- sition of such questionable powers and doubtful phraseology. As it reads, the Commissioners shall have the power "to establish rates of charges for the transportation of passengers and freights." Tiat is all well enough. " To examine tbe books, records, and papers of all railroad and other transportation companies, and for this pnr- pose they shall have the process of the Courts." I presume the pro- cess of the Couru is liniitea to the books aiSct>reconls. I presume it U Digitized by VjOO^ Dec. 5, 1878. OF THE CONSTITUTIONAL CONVENTION. 589 «o intended. They are given the proceas of the Courts for the pur- pose of examining the books, records, and papers of the railroad com- pany. Next, " to hear complaints against railroad and other trans- portation companies." To hear complaints. For what purpose and in what form? Whether it is a legal investigation on complaint, where parties are summoned to appear and answer, nobody can tell. How are they to hear and inquire into these complaints? As a Court, or as a jury, or both? And how are they to pronounce judgment, etc. 7 "To send for persons and papers, administer oaths, take testimony, and report cases of contempt to the Courts for their action." Does this mean that complaints shall be filed with the Commissioners against railroad com- panies, anil thereupon a regular trial, with or without a jury, is to be had and a judgment is to be pronounced ? I{ow is all this to be accomplished, and by what machinery? Is it a Court of record with a seal, and with Clerks, Sheriffs, etc 7 " Report cases of contempt to the Courts for their action." What constitutes a contempt within the meaning of this sec- tion? What action are the Courts to take? The section does not inform us. In this respect it is indefinite, and would probably puzzle Phila- delphia lawyers, who have the reputation of being experts in such mat- ters, to determine the mode of proceeding. Mr. ESTEE. Mr. Chairman: I will ask what our statute prescribes for the punishment of contempts, if it regulates, except to limit the penalty, and in what class of cases 7 Mb. HAGER. Mr. Chairman : Our Courts of justice have powers for punishing contempts, and these are regulated by statutory laws; but this Commission is not a Court, era part of the judicial department, as established by the old, or even this proposed new Constitution, and our statutes regulating contempts and their punishment will have no appli- cation to this proposed tribunal, unless made so by express words. It has not the ordinary powers of a Court to enforce its judgments and orders, or even to preserve order in its presence. The section further reads, "and enforce their decisions and correct abuses through the medium of the Courts, and perform such other duties as may be pre- scribed by law." Now, what decisions are they to enforce through the Courts, and in whose name, and by what manner of proceeding is it to be done? I would like to have the Chairman of the Committee on Cor- porations explain these matters, and inform us as to what is intended, and the manner in which it is to be done by the authority of the section as reported. How are the Commissioners to enforce their decisions and correct abuses through the medium of the Courts? Is there to be a trial before the Commissioners only, or is there also to be a trial before the Courts? Mr. ESTEE. I will state what the committee means. First, their decision establishing rates of charges for the transportation of passeiigei-s and freight; second, any action that the^ may take as to the examina- tion of the books, papers, and records of railroad and other transporta- tion companies; any action they may take as to the subpenaing of witnesses and hearing testimony. Mr. HAGER. But that is not contempt of Court. Mb. ESTEE. They report that to the Court if they fail to obey. I suppose that the intention of that sentence relative to contempt was this: If tney issued a subpoBiia, and the witness failed to appear, they could report that fact to a competent Court having jurisdiction of the subject matter, and of course that Court, under statute regulation, would enforce their orders and compel the attendance of witnesses, or compel the com- panies to pro<1aee their books, papers, and records. Mb. HAGER. If it had been sufficiently comprehensive for such purposes we would understand it ; but it does not say so. It reads they shall have power to " examine the books, records, and papers of all rail- road and other transportation companies, and for this purpose they shall have the process of the Courts," and then goes on to say, " to hear com- plaints against railroad and other transportation compaaios, to send for persons and papers, administer oaths, take testimony, and report cases of contempt to the Courts for their action." For what? Mb. ESTEE. It was not intended to make this a code of laws. This section merely declares the powers and principles, and of course, the Legislature would have to come in and attend to the details. We admit that this section is not intended as a code. Mb. HAGER. There is the difficulty. It is inoperative of itself. It must be construed by the Courts before you can make it operative at all ; and in the absence of legislation what construction will they put apon it? As I have said, I am unable to determine. Mb. ESTEE. Will the amendment proposed by the gentleman him- self be self operating? Mb. HAGER. It will. Mb. ESTEE. Without any action of the Legislature? Mr. HAGER. I think so. Mb. ESTEE. Then I cannot read English. Mr. HAGER. They here have the power to establish rates of fares and freights. There is no doubt about that But as I said last night, after they are established there is no provision that makes them bind- ing on the companies or that requires a company to obey. Mb. ESTEE. Will the gentleman allow another question. Under the Constitution there are certain Courts organized in the State — the Supreme Court, the District Courts, and County Courts. I want to ask the gentleman, if the Legislature had given no powers or provided no means for the carrying out of their jurisdiction, if they could perform their duties at all, under the present Constitution. Take the jurisdic- tion of District Courts. Could District Courts operate or perform their duties, establish rights and try cases, without the enabling Acts of the liegislature prescribing the means? Mb. HAGER. They might, to some extent, exercise certain inherent powers pertaining to all Courts, and in other respects they might have none. If the Constitution of itself clothed them with express jurisdic- tion and authority, I presume they could exercise such without the aid of legislation. An enabling Act might confer additional powers, and regulate the procedure. But, as I said, this is not a Court; it is not a Legislature. It is a Commission, with no inherent or implied powers, and ought only to exercise ministerial functions. If the intent be to invest them with full judicial powers, then the language of the section is not sufficiently comprehensive or susceptible of easy and definite interpretation. Constitutional provisions ought to be so dear and defi- nite that any ordinary mind can understand their meaning. Now, in regard to the amendment that I gave notice of some time ago, it was as follows: "There shall be elected at the next general election, and every four years thereafter, bjr'the qualified electors of this State, a Board of three llailroad Commissioners, whose term of office shall be four years, with such salary as may be fixed by law, not to exceed thousand dollars a year. Such Commissioners shall be qualified electors, and for five years citizens of this State, and shall not be interested pecuniarily, or by employment, or in any other capacity, in any railroad or transpor- tation coinpany, or in the business of common carrier of passengers or freight. They shall each lake the constitutional oath of office, and before entering upon, and for the faithful performance of the duties of their office, they snail each give a bond, with two sureties, in the sum of twenty thousand dollars, to be approved by the Governor. The Com- missioners, or a majority of them, shall have power, and it shall be their duty, to establish reasonable and just tariffs and rates of charges for the transportation of passengers and freights by all railroad corporations, and for this purpose they shall have power to administer oaths, to exam- ine the books and papers of such corporations, to summon and examine the officers and stockholders thereof, and other witnesses, to hear com- plaints, inquire into and correct abuses, prevent partial and umust dis- criminations and extortion in the rates ot charges and the tariff for the transportation of freights and passengers. They shall publish, semi- annually, full statements of the tariffs and rates of charges established and authorized by them, and of all abuses, discriminations, and extor- tion, and report the same to the Governor. Whenever such tariffs and rates shall be established and published, they shall be binding upon, and must be observed by all such corporations doing business in this State, and may be enforced by the Commissioners, or by any party in interest througn the Courts; but nothing herein shall prevent any per- son from maintaining an action for injury or damage against such cor- porations. The Legislature shall confer on the Commissioners such further powers as shall be necessary to enable them more fully to per- form their duties; and it shall pass laws with adequate penalties, to the exiient, if necessary, of forfeiture of the franchises of such corporations, to enforce the action of the Commissioners. The Commissioners, and each of them, may he removed from office by the Legislature by a majority vote of all the members elected to each bouse, and shall also be liable personally, and on their official bonds, to any party aggrieved for neglect of duty, or any malfeasance or corruption m office." This I have redrafted and changed as I will now explain, and I pro- pose, if the opportunity is given, to offer it as redrafted. This amend- ment provides for a Commission similar to that of the substitute, but with a limited salary. By the recommendation of the committee the salary is unlimited. Mr. ESTEE. The salary Is to be fixed by law. Mb. HAGER. Yes, but I propose to limit that salary by fixing the maximum. I require the Commissioners to give a bond of twenty thou- sand dollars, take the oath of office, and so on. Then their powers are defined, and I propose to limit these to transportation by and upon railroads. Why should we extend their powers to transportation com- panies doing business on the navigable waters of this State? Now, any individual may run a vessel to carry produce, etc., or a farmer, or a company of farmers, may own a boat and transport their own or their neighbors' produce by water to market, and why should we interfere in such cases? Mb. ESTEE. The reason is this: to meet the question of transpor- tation companies like the Star Line, the Red Line, the White Line, Wells, Fargo t Co., and others, which are not railroad companies, as well as transportation companies by water. Mr. HAGKR. Why dicl not the committee say so, and make it appli- cable to all railroad and other corporations engaged in transportation by railroad? I think it is better to apply it to railroad transportation only. Our people do not complain of the transportation companies on the high seas, or on the bays, or navigable waters of this State. The Act of Congress under which'we became a component part of the Union — when we were admitted as a State — contains a condition that the navi- mblc waters should be free and open to the- commerce of the world. There can be no monopoly here, and I would prefer to leave them open to all, as they are free to all, and let unshackled competition regulate fares and freights on these waters. A railroad is a different thing. That Is a highway over the lands of the State, conceded by authority of the Legislature, which, by our State Constitution we have the power, and ought to have the power to regulate. It is not the enjoyment of a right, but a special concession, dependent on the legislative will. Such is not the case with the navigable waters of the State. In my proposed amendment I include all railroad corporations, and all people doing business thereon. That includes all lines and companies referred to by the Chairman of the Committee on Corporations, and which he pro- poses to include in the provision. "And for this purpose," as I provide, " they shall have power to administer oaths; to examine the books and papers of such corpo- rations; to summon and examine the officers and stockholders thereof, and other witnesses." I have also provided that the Commissioners shall have the direction and control of the books and account keeping of these corporations. Competent and well informed persons tell me it is essential that the manner of keeping their accounts should be directed and controlled by the Commission, otherwise they will know nothing about-t^eir businesL Digitized by VjOOQ IC 590 DEBATES AND PROCEEDINGS Thursday, Then my amendment proceeds : " Inquire into and correct abuses ; pre- vent partial and vinjust discriininatlons and extortion in the rates of charges, and the taritfs for the transportation of freights and passengers. They shall publ ish, semi-annually, full statements of the tarins and rates established and authorized by them, and of all abuses, discriminations, and extortion, and report the same to the Governor." Now, here follows an essential provision : " Whenever such tariffs and rates shall be estab- lished and published, they shall be binding upon and must be observed by all such corporations doing business in this State, and may be enforced by the Commissioners, or by any party in interest, through the medium of the Courts." Corporations shall not charge in excess of the rates established by the Commissioners. It will be binding upon all such corporations doing business in this State, and may bo enforced through the medium of the Courts. The Commissioners perform their ministerial act by establishing and publishing the tariffs and rates, and the railroad companies and those doing business thereon cannot charge in excess of these rates; and then it is left for the Commissioners or any party in interest to enforce these rates of tariffs through the medium of the Courts. The Commissioners may doit; any party aggrieved may do it. Then follows the clause: "Nothing herein shall prevent any person from maintaining an action for injury or damage a^inst such corporations. The Legislature shall confer on the Commissioners such further powers as shall be necessary to enable them more fully to per- form their duties." If the powers of the Commissioners should prove to be inadequate, then the Legislature shall confer on them such further powers as may be necessary to enable them more fully to perform their duties. And the Legislature "shall pass laws, with adequate penalties, to the extent, if necessary, of the forfeiture of the franchises of such cor- porations, to enforce the action of the Commissioners." Now, it seems to me that this would aflbrd a complete remedy. The Commissioners per- form the ministerial act of fixing the rates of fares and freights, such as in their judgment may be reasonable and right. They nave all the power to examine books, direct the mode in which they shall by kept, subpoena witnesses, hear complaints of abuses, discrimination, and extortion, and make reports in regard to these matters to the Governor, who of course will lay them before the Legislature. Then I provide, in the event of their being unfaithful to the trust imposed upon them : " The Commissioners, and each of them, may be removed from office bv the Legislature, by a majority vote of all the members 'elected to each bouse, and shall also be liable personally and on their official bonds, to any party aggrieved, for neglect of duty or any malfeasance or cor- ruption in office." Mb. ESTEE. I hold in my hand the amendment proposed by the gentleman a few days ago, and it is not the same as he is reading. Mr. IIAGER. I have changed the pbraseolo^ and provisions, as I have stated, in some particulars, upon the suggestion of a number of gen- tlemen, and I am reading it as now amended, and which I propose to offer as a substitute for the whole section. I am not tenacious about having my name connected with this amendment. I am perfectly will- ing, so far as I understand it, to support the one offered by Judge Camp- boll, except that I prefer to have the Commission elected by the people. I do not care whicn may be adopted, provided we get something that will answer the purpose that we are desirous of efTecting. Mb. cross. This will always leave it open to the Courts to deter- mine whether the rates fixed by the Commissioners are just and reason- able. Mb. IIAGER. My original draft did not contain the words, "just and reasonable," but they have been interlined at the suggestion of some gentlemen who thought they should be there. In almost all of the rail- road Acts, the same clause will be found. I thought it proper and right that the Constitution should require that they be reasonable and just. That is all we ought to ask. But it is clearly provided that when tlie rates arc once established, the railroads throughout the State will be bound by them. It is not a question for their determination, whether or no they are just and reasonable, but the action of the Commissioners might become a subject of inquiry before the Legislature in a proceed- ing for their removal from office. But there is no power to fix or con- trol freights and fares, except by the Commissioners themselves. Mb. ESTEB. I find in the gentleman's amendment that he provides, among other powers, that they shall have power " to hear complaints; inquire into and correct abuses," etc I want to know if that duty is not the same that is imposed on the Commissioners ia the section as reported by the committee, and if that is not a judicial duty? Mr. HAGER. If I am led into an error by these words I have my friend's precedent as a justification. I do not say that they shall punish for contempt, and enforce their decisions through the Courts ; but I say that they shall report these abuses or complaints, that the Legislature may be informed in regard thereto. There is a difference between the two propositions. One is to hear complaints, with a view to a trial and judgment by the Commissioners; the other is to hear complaints for the purposes of fixing fares and freights, and reporting to the Governor, etc., without undertaking to enforce obedience as a matter of contempt of the Commission, but it gives them, or any party in interest, the power to applpr to the Courts to enforce their action ; and in that respect I think it is right. Now, as I said, I feel reluctant in addressing this Convention at this lateday In thedebate; but we are now ou the battle-ground of this Consti- tution, in acti ng on this portion of the report of the Committee on Corpora- tions. We stand here on the watch towers, overlooking this wide plain, with the people on the one side and the railroad corporations on the other ; and it remains to be seen whether the organic law that we may present to the people will proclaim for their future emancipation or servitude. No one denies to this Convention the power of i^ulating fares and freights, either by putting a provision in the Constitution, which of itself will accomplish it, or by constituting a Commission for such purpose. The question which has been debated is one rather of expediency than of power. It .has been said by some who biTc addressed the Convention that no complaints have been made agalnit these corporations. That no petitions have been presented here; that no issue has been raised before the people In regard to fares and freights, or in regard to the charges made by railroads. I have a copy of the platform under which you, Mr. President, and I, and some of my friends around me here were elected, and to which we have given our adhesion. In that platform I read : " That the State shall ever retain and maintain the perfect control over all its corporations and their franchises, to the end that the people may forever have full pro- tection against all extortionate charges, unjust discriminations, or unfair exactions, of any description, by such corporations." This issue was, therefore, distinctly made at the time of our election as delegates Ui this Convention. Mb. BEERSTECHER. I would ask what platform thai isT Mb. HAGER. That is the Non-Partisan platform. Mr. BEERSTECHER. Never seen it before. Mb. HAGER. It says " that the people may forever have full pro- tection against all extortionate charges, unjust discriminations, or nn- fair exactions of any description whatever, by such corporations." If we give this power to the people do we not strictly, and to the very let- ter, perform our duty in regard to the injunction of this platform? Mr. BEERSTECI'IER. I would ask the gentlemen whether that platform was ever published. Mr. BARNES. Yes. It was read to the great meeting at Platl's Hall, where the candidates met, and where, I understood, some of the gentleman's friends had determined to attack me because I had stood up for my coachman. It was also printed and sent to every voter in the City and County of San Francisco. Myself and my colleague, Mr. Ca»- serly, prepared that platform, and, so far as I am aware, notwithstaod- ing the intimation or our friend from San Francisco, I know of no rea- son why we are not standing up to it. Mr. BEERSTECHER. f am under obligations to ascertain who was the creator and originator of it. Mb. ESTEE. It was indorsed by the entire delegation. I do not think there is any doubt about that. Mr. BARNES. I think it was indorsed by the entire delation. That was the platform, Mr. Chairman, that I alluded to yesterday, which, I said, was a very good platform, but the people did not believe it — did not think we meant it. [Laughter.] Mr. HAGER. Mr. Chairman: I believe I have the floor. I allude to this matter, not for the purpose of intimating that any gentleman on this floor who indorsed the platform has not conformed to it in his action here, but I refer to it as a matter of history, and in reply to the poeltioo taken by the gentleman from Sacramento, Mr. McFarland, who told ns that in regard to these matters no issue had been made before the people; that no petitions had been presented here, and therefore we were not called upon to engraft into this Constitution any provision In regard to fares and freights. My purpose in reading it was to show that it was an issue before the people at the election of delegates, and I think in one section the platform of all parties contained some provision in regard to railroad monopoly, so also every platform that has been adopted by any political Convention in the last five, six — ^yes, ten years — has conlainsd some similar provision. I alluded to this platform in reply to the gen- tleman from Sacramento, Judge McFarland, not for the purpose of call- ing on any member of the Convention to perform his duty, nor for the purpose of charging any one as with having violated it. But, I do t»T for myself, that I intend to observe this platform on which I waseleded, and I believe I am doing so in endeavoring to estAblisb this Commission. The history of legislation in this State, in regard to railroad lares and freights charges, has been referred to. The first Act was in eighteen hundred and fifty, before we had a railroad, which fixed maximum charges. The next was in eighteen hundred and fifty-one. The next was in the session of eighteen hundred and fifty-three and eighteen hundred and fifty-four. 1 happened to be a member of the State senate in that early day. A railroad bill was acted upon; but it created w little excitement that I had forgotten such a bill was before the L^'s- lature, but I find it among the laws of that session. In eighteen hundred and sixty-one there were railroad bills. In eighteen hundred and sixty -five, when I was a member of the Slate Senate, another railroad bill was introduced which has not been alluded to here, but it passed both branches of the Legislature. There is another gentleman upon this floor who was a member of the Senate at the same time. I Delieve I was the only person that rose in his place in the Senate to resist the passage of that measure. Notwithstanding the opposition that I made, it pa^ed the Senate and Assembly, went to the Governor, and was vetoed. That veto message may throw more light upon what was intended to be accomplished by the legislation of that day, and al» subsequent legislation in this State. I will readonly part of this message. It is found in the Journals of the Senate of the sixteenth session: " I herewith return, without my approval, substitute for Senate bill number one hundred and three, an Act establishing the rates of fare on railroads, and other matters relating thereto. " The first section of the bill provides that every railroad company accepting its provisions shall do what every company is now required to do by law, and what would be done naturally, without any 1»*— transport passengers and freight at such times and in such convenient manner as the corporation may, by regulation, prescribe, on the dot payment of the fares and tolls thereon. " They shall also, during any war, insurrection, or invasion, give the troops and munitions belonging to this State preference of transportatioa over other freight, except that of the United Slates. "The second section provides that all companies accepting the pro- visions of the bill shall nave and enjoy the right and privilege of col- lecting certain rates, according to the elevation above the level of the sea, as follows : At an elevation of less than one thousand feet, seven Dec. 5, 1878. OP THE CONSTITUTIONAL CONVENTION. 591 le cents per mile for each passenger and ten cents per mile for each ton of 'freight; over one thousand ana lesr than two thousand feet elevation, nine cents per mile for passengers and twelve and one half cents for freight; over two thousand and less than three thousand feet elevation, twelve and one half cents per mile for passengers and fifteen cents for freight; over three thousand feet elevation, fifteen cents per mile for passengers and twenty-five cents for freight. " These were considered by the railroMl company as reasonable fares and freights in that day — eighteen hundred and sixty-six. " Section three provides that in case a company collects^ more than the prescribed rates it shall be liable to pay to the injured ]»rty treble the amount collected, and this is virtually the only penalty for overcharg- ing for freight or passengers. "Section four provides, that any company desiring to enjoy the bene- fits of the Act shall file in the office of the Secretary of State a profile of the road, and an agreement and acceptance, duly signed and sealed, agreeing therein, in consideration of the rates and compensation pro- vided for in this Act, to abide and perform its requirements. " This bill, were it to become a law, would clearly create a contract between the State and every company accepting its provisions — a con- tract that no subsequent Legislature could repeal or repair. The rate of fare for every passenger, and price for every ton of freight passing over any road, is fixed beyond legislative control during the life of the charter of the corporation. The only consideration for this contract is that the accepting company shall, in time of war, give State troops and muni- tions of war preference of transportation. For such a consideration I cannot consent to give my approval to a law that will establish the fare and freight for half a century on every railroad accepting the contract iroposed, and placing it beyond the power of any future Legislature to issen the burden, if it proves so to be. "The proposition is monstrous; and I am persuaded that the bill could not have received that scrutiny at the hands of the Legislature which its importance merited. The history of legislation in some of the Atlantic States furnishes us with examples where States have improvidently, and without due consideration, bound themselves by sucli contracts, which have weighed heavily upon the energies of the people. "Travel and traffic should not by law be hampered by unbending rates and rules for long terms of years; and il is unjust to those who are to come after us, if not to ourselves, thus to tax the traveling and trading public by the enactment of laws, similar to the one under consideration, which cannot be modified or repealed." By that veto the Governor shielded the State from a contract intended to be binding during the life of every existing corporation of this State, fixing fares and freights by a scale of charges, the maxima being, for passengers, fifteen cents per mile, and for freieht, twenty-five cents per mile, and which, if a binding contract, would have been in> full force at this day. The passage of that bill was pressed at the time by the railroad corporation, and that was the first time I saw them active in the halls of legislation struggling to obtain special legislation for their company. The veto message of the Governor came up for considera- tion on the question of the passage of the bill over the veto. I am happy to report the result of that vote — ayes, 0 ; noes, 33. This was in eighteen hundred and sixty-five. At a subsequent session substantially the same bill was offered, and was defeated. Then came the " Freeman bill," regulating fares and freights, which passed the Assembly and was smothei«d in the Senate. Then came the "Archer bill," which also passed the Assembly, but failed in the Senate. Then was passed the Act constituting a Kailroad Commission, under which were appointed General Stonemau and Messrs. Doyle and Smith. Examine this Act and I think it will be found that it substantially gives to the Commission all the power necessary to control the subject. I would be satisfied to have that Commission restored and proceed in the performance of its work. But when that Commission got into operation and was actively engaged in the performance of its duties, by some pressure we have heard about, but care not to speak of, because, personally, we know nothing about it, the Act constituting the Commission was repealed, and the Commission was abolished while they were in the very act of enforcing their authority in our Courts, dommissioner Doyle says, in his report : " You are aware that several actions of mandamus were brought to compel railroad companies to afford statistical information demanded by the present Commissioners, and which they had refused to furnish. These actions are pending in the Supreme Court on appeal from judg- ments rendered below in favor of the State. They were set for argu- ment for December third last, but postponed, and finally, by consent, were set for hearing on March fourth. On that day they were pressed by the counsel for the Commissioners, but postponed a week at the instance of the railroad companies. On Monday, the eleventh instant, when they again came up, the same counsel applied to continue them for the term, on the ground that one branch of the Legislature had passed an Act abolishing the Commission, and the other would probably concur. The Court, thus called upon to discount the action of the Beuate, did not hesitate to do so, and postponed the eases for the term." The railroad company spurned and defied the action of the Commis- ■ioners under the law, and they had no fear of the Legislature. I do not think that either legislation or the judgment of our Courts has any terrors for them. This Commission Act was passed at the time the "Archer bill " was pending, in order, as it was said, to get rid of that effort to regulate fai'es and freights. The railroad company passed it, then defied it, and then had it repealed. The District Court decided in favor of the law and the powers conferred on the Commission, but the railroad company appealed to the Supreme Court, where the case remains undetermined at this day, in consequence of the repeal of the law. The Legislature giveth ; the Legislature taketh away. Blessed be the name of the Legislature I So far as laws are concerned, they pay about as much respect to them as they would to the decrees of Emperor Karton. Me. ESTEE. If they have no regard for the Courts, or for the Legis- lature, wouldn't it be wise to have a Commission? Mr. HAGER. I am in favor of a Commission. I do not intend to say our Courts cannot be relied upon. The Courts decided against them, they took an appeal, and before the Supreme Court acted upon the mat- ter, the law was repealed. Therefore, the action of the Courts had no ter- ror for them. I do not mean to assert that they have no respect, but no fears for our Courts. Mk. ESTEE. I see in my friend's amendment, that he proposes to offer, that "the Legislature shall confer on the Commissioners such fur- ther powers as shall be necessary to enable them more fully to perform their duties, and it shall pass laws, with adequate penalties, to the extent, if necessary, of forfeiture of the franchises of such corporations." Now, if the Legislature cannot be trusted, will the Legislature provide these penalties? Mr. HAGER. I hope my friend will read the preceding portions of the amendment, in regard to establishing lares and freights. I take good care of that, but if all things prove inefficient, I then call upon the Leg- islature for such additional powers as may be necessary. If my friend and colleague will read the preceding part of the proposition I ofier, be will find that the ministerial duties of^ the Commission are complete, to fix fares and freights, and to enforce their tarifis through the Courts themselves, and also any party that has any interest therein, may do so. Now if all that fails, I provide that the legislative power may be invoked". The authority of a future Legislature, elected by the people, may be invoked to give any additional powers to enforce the acts of the Commission, if such as are conferred should prove to be inefficient. It may dismiss these Commissioners from office, if they prove unfaithful. It may provide penalties and forfeitures for disobedience on the part of the railroad companies. But it is this tendency to disregard the law, which is daily manifesting itself, and rendering the law powerless, that we should, as far as possible, guard against. It is related of Frederick the Great, of Prussia, that when at the zenith of his power, he was desirous of improving his palace grounds, at Potsdam, by adding thereto some adjoining property, owned by a miller, and upon which stood a windmill, usea for grinding com, he sent word to the miller that he wished to buy the jiroperty. The miller said he did not wish to sell. After sending several times, and with the same result, Frederick himself then went to the miller, who again declined to sell. Frederick told him if he did not sell the ground he would take it; that he wanted it, and if he would not allow him to purchase it, he would take it. The miller replied, "No, sire, you will not take it; we have laws in Prussia." The King bowed his h^d in acknowledgment of the supremacy of the laws of Prussia, and retired. In after years the King obtained the property by purchase. It was added to the palace grounds with the windmill standing; and by the royal order it is kept and preserved at this day in complete repair, as a monument dedicated to justice and the supremacy of the laws of Prussia. It affords an example for us. In that great nation, with its monarchical institutions, the laws are supreme, and even the King himself must yield them obedience. So they should be with us — supreme over all — the people and the corporations. But, sir, as I have said, the Legislature has failed to give to the peo- ple the relief they demand. The Courts have failed, I do not mean because they are unwilling to do so, but perhaps on account of the intricacies or the uncertainty of the law. After this long experiment and failure I object to further trusting the Legislature with the sole power to regulate fares and freights, as nas been done heretofore. It is no secret, sir, that the railroad company does exercise an influ- ence on legislation in this State. I presume, without any impropriety, we can say this much. During the time I was a member of the Senate of this State, they did influence legislation in all matters affecting their interest. Situated as they are, with their vast interests, perhaps they did what many others would have done under like circumstances. If their intent was merely to protect themselves from hostile legislation, introduced for purposes of extortion or blackmail, we might justify their action; but the fact exists they have obstructed and influenced legisla- tion in regard to all matters relating to railroad corporations. They also have a controlling influence over the press — the great palladium of our liberties. I presume all who are familiar with history are willing to admit this fact. To some extent they also exercise an influence upon political conventions — not of one party only, but of both political par- ties— and shape nominations to subserve their own private purposes, in total disregard of the interests of the public. Some gentlemen remarked that nowadays there was but one political party — nominally a Demo- cratic party and nominally a Republican party— but for all that, really there was but one party, and that was the railroad party. That the railroad company is a power in the land, and that they exercise a great influence over all branches of the government, and over all political organizations, no one will dispute. It remains to be seen if they will also control the people — the only lodgment of political power remaining which has not been subordinated to the interests of tneir corporation. Now, sir, with these facts before us — and I suppose I have alluded to nothing more than every one knows — it is proposed that we incorporate a provision in the Constitution establishing a Board of Railroad Com- missioners, who shall have charge of this matter of fares and freights. A Railroad Commission is no new thing, as we all know. We have had them in this State, and we have one now composed of one Commis- sioner. Many of the other States have what is called a Railroad Com- mission. We have also other Commissioners in this State — the Bank Commissioners, the Insurance Commissioner, the Harbor Commissioners, and others. Wb^ should any one object to a Railroad Commission? But this question of railroad control involves a problem which has occupied the attention of statesmen and governments in the old world and m the new, and it has become one of great imporUqce and roagm- Digitized by Google 592 DEBATES AND PROCEEDINGS Thursday, tude. I will read, in this connection, though perhaps it may be a little tedious, some few observations of others which may give us some light I have here an article from the International Review, entitled " The Domestic Commerce of the Cnited States." It was published by the Cheap Transportation Company, of the City of Kew York, composed of Benjamin B. Baiter, President ; Henry B. claflin, and others. Vice Presi- dents, and a list of Directors. It was written by Hon. S. Shcllabarger, of Ohio. There are some things in it so eloquently appropriate to the condition of things in our young State, that I would ask the indulgeaoe of the Convention to read a portion of it : " Here, then, we start with our mighty subject upon us. Seen at large, its Qeid is a continent. It is a new continent. It is a continent of capabilities and of natural wealth absolutely and literally inconceivable. It is a continent untouched and virgin as to nine tenths of these natural resources — virgin as to, perhaps, three-fourths of its surface also. And then it is, as a refuge and home for our own and other civilized peoples, the last of the continents. Beyond our' Pillars of Hercules' there is nothing. Ours is the veritable Ultima ThuU. In disposing of it we dispose of ' the- last of earth.' " Such then is the dignity of this subject, seen with the telescope, and in larger aspects, as it is explored by the legislator in bis search after the answer to the amazing question : Has the Republic, as such, any duty upon it touching this commerce of the people, the wealth, the pro- ductions of this continent, or has it not? Is the commerce of these States among these States, confided b^ the organic law trices of fares and freights, competition, consolidation, etc, which made ong and searching reports, three in number, and resulted in the Act of T and 8 Vic. (1844), regulating the rates of profit and charges allowed to railroad companies, and providing for government purchase of these roads on certain terms. In eighteen hundred and forty-five. Lord Dsl- housie's Railway Board was constituted, under and with the Board of Trade, charged with the duty of reporting on all new railroad scheme*. etc., and which made elaborate series of reports on these subjects to Parliament Other series of reports were made by the Board of "Trade each year, upon every possible view ot all these subjects of freights, fares, leases, amalgamations, consolidation, competition, government regulation, government ownership, etc. In 8 and 9 Vic an Ac* was passed allowing canals to vary their rates of tolls to enable them to ' compete ' with and restrain railroad freights ; and another to ^■■'P'* canals to lease other canals, and to thus form ' competing lines * with railroads, and to secure ' greater competition for the public advantage. Digit,. t^ Bee. 5, 1878. SF THE CONSTITUTIONAL CONVENTION. 593 Since eif;hteen hundred and forty-fire the following clause has been introduced in all railway Acts : "Nothing herein contained shall be deemed or construed to exempt the railways, by this Act avithorized to be made, frotn the provisions of any general Act relating to railways, or the better and more impartial audit of the accounts of railway companies now in force, or whicn may hereafter pass during this or any future session of Parliament; or from any further revision or alteration under the authority of Parliament of the maximum rates of fares and charges, or of the rates of small parcels authorized by this Act. " As already remarked, these samples are given as mere indicia of that thorough, systematic, eteriAl vigilance which England is wont to apply to every great material interest of her people, and which for a full third of a century she has already applied to tliis single matter of ' cheap transportation' upon the railways and water lines of the Kingdom. A mere catalogue of all the Acts of Parliament and reports of parliamen- tary committees and boards of trade, and the like, which her govern- ment has produced in the struggle to accomplish this single end, 'cheap transportation ' for her people, would occupy more space than is allowed for this entire article. It must suffice, therefore, to add to the specimens above given, showing how early and earnestly this work was oegun in England, the statement that as in the case of her foreign commerce, so in that of her domestic, there has not been an hour, day or night, in the last thirty-five years, when her government has ceased to be at work investigating, debating, reporting, experimenting, legislating, adjudi- cating, and solving the single problem. How shall England secure to her internal commerce the lowest rate of char^ for transportation which is consistent with the just claims of the capital embarked in these chan- nels of commerce ? " Now, what have we done as a State in regard to our internal com- merce to obtain the lowest rate of charges for the transportation of pas- sengers and freight? Nothing. It is left entirely to the railroad to charge just what they see fit, and there is no law that controls them in regard to these charges. Whilst I was a member of the Senate of the United States, a commit- tee made a report — the Select Committee on Transportation Routes to the Seaboard — of which Mr. Windom was Chairman. I will read just a few paragraphs, so far as relates to the proposition which we have here before us. Mr. Windora says : " In several of our States, and nearly all the countries of Europe, legislative regulation of rates and fares has been tried in almost every form, but I have yet to learn that such experi- ments have resulted in a material reduction of charges." That commit- tee make many recommendations, which I commend to those who take an interest in this subject, and who think this whole matter should be left to legislation. Now, I have but one more paragraph to read, and that is from one of the Commissioners under the Act of this State, which I have referred to as being repealed. He has favored me with a long communication, con- taining a great deal of information on this subject, and especially in regard to the regulation of fares and freights, and which would be useful to the Convention if printed so as to be easily read. It argues the ques- tion of the difficulty of attempting to regulate fares and freights by leg- islative enactment-. It says it is impossible. It is from Mr. Doyle, who has made this subject, in all its bearings — the different classification of freights, etc. — one of personal inquiry and investigation. After review- ing the question fully, in all its bearings, Mr. Doyle concludes as fol- lows : " The foregoing is an outline of the considerations which lead me to suggest the following propositions for railroad reform." Of these recommendations I only read the following: _ " A Board of Railroad Commissioners, to be created by the Constitu- tion, consisting of three or five members, with ample powers of visitation over all railroad corporations. They should have the right of investiga- tion by written requisition or subpcsna, and oral examination of wit- nessea or parties; their powers in this respect to be full and ample. They should also have authority to establish full or partial classifications of freights moved by rail, and the rates of transportation to be the same on all goods of the same class." Now, Mr. Chairman, all other modes hitherto attempted by legisla- tion, of regulating fares and freights, having failed, the inquiry is still presented: What is to be done? What is left for us to do? In my opinion, expediency, policy, and past experience point to a Railroad Commission to be createmmittee on Corporations bad taken from these Constitutions, or any of them, their provisions on corporations and railroads, they miglit have been received by our people witb satialaction. Kotwithstanding all that has been said in regard to the dimensions to which this article on corporations is expanding, it does not contain as much matter as is contained in the same article of either of the Constitu- tions to which I have just referred. Now, sir, this proposition to create a Railroad Commission is not, as has been asserted, intended to confiscate the property of railroad com- panies; but it is intended to regulate their charges and put a check upon their powers. It may have the effect to take them out of local politics. I trust it will. We may then hope to see free and independent men elected as our Governors, our legislators, and Judges— men who will be under no obligation to them for place, and will be beyond their con- trol— for the best of reasons: they will have no purpose in seeking to control them, in order, as they say, to protect themselves from hostile action in regard to fares and freights. This will be left to the Commis- sion, composed of three men, selected and elected by the people, from different parts of the State. But it has been said we cannot trust the people to elect these men. Does any one here fear the people? Dare you tell them so? Go home and tell your constituents you were in favor of a Railroad Commission, but you voted against it because you dared not trust the people with their election ; that you could not even trust the constituents who sent you hei%, with the election of these men. Bay to the farmers, the merchants, the manufacturers, and miners of this great State, "Toil on, and pay tribute to the powers that be — to the railroad company — whatever they may demand; you are not capable of regulating fares and freights; the railroad company will do that for you ; you are not qualified to select men who will do justice between the people and the railroad company." Tell them the railroad com- pany will continue to transport their grain, produce, etc., when the market is good, at the highest price it will bear, and when the market is depressed, at the highest price it will bear — so that the people have the accommodation and the railroad the profits; and if it will not bear transportation with any profit, leave them in the warehouses. Tell them to submit, and toil on, and with bowed and obsequious heads to thank God that they have a railroad company and a transportation com- pany, one and inseparable. But, sir, the power of this gigantic corporation will be broken. It will fall by reason of its own stupendous magnitude. It has expended itself in taking within its grasp the commerce of our entire State, and it will fall before the storm-breath of public opinion. In this enlightened age no despot is so shrouded in the panoply of power but that public opinion will make itself heard ; and no corporation is so surrounded by its stipendiaries but that public opinion will make iftelf obeyed. It may not come to-day ; it may not come through this Constitution ; but it will come— railro&ds will be regulated by law and by properly con- stituted authority. I have not yet lost confidence in popular government. I am willing to trust the people with the election ol this Commission, as I am willing to trust them with the election of the Governor, and other officers. I should like, however, to see some renovation of governmental adminis- tration, and some purification of the political atmosphere. Let us go back to the principles of the founders of the republic, when economy, and honesty, and purity, prevailed in the administration of public affairs. State and Federal. Let us get rid of the corrupting influence that surrounds State and Federal legislation, and let us ask the people to assist. Do this, and our country may yet live in prosperity and grandeur, to bless us and future generations, " as ages on ages its splen- dors unfold." With its popular government, its free institutions, and its liberal laws, our country is worthy of our love and our devotion. Compare it with any and all the nations of the earth. How great, how ^rand, how beauti- ful it is I Great in its natural advantages, and magnificent proportions; great in all that a progressive civilization has accomplished; great in its mechanical and engineering triumphs; great in its agricultural pro- gress; great in the better and higher development of the human family, and human happiness; and above all, great in its system of common schools, its educational institutions, and its liberal laws, by which our people are not only made equal before the law, but placed on equality in that ever enduring contest for social and political advancement. Whatever there is woHh struggling for in life, in the mechanic arts, in the fields of labor and science — whatever there may be in the triumphs of eloquence and of song — is before the American citizen. The soil on which he treads is his, and wealth ample to his utmost wish may be his if he has the greed or the ambition to seize it. Every avenue that inven- tive genius, industry, or perseverance, may unfold, is open to him and his exploration ; and the fruit of success, and all that his own brave heart and hand may accomplish, is of right his reward and his enjoy- ment. Yet with all these advantages, great as they are, we must admit, humiliating as may be the confession, for years in the past, corruption and demoralization in the administration of Federal ana Stale employ- ments, have been fast overspreading the land, and pervading all depart- ments of government. If Legislatures, and Congresses, and Executives have failed us, where can we turn but to the power which is sovereign over all — to the people. If we hesitate to perform our duty in exercising the public trust we have accepted — if we fail to set the seal of our condemnation upon cor- ruption in the past — we must expect greater corruption in the future, snd before another century rolls around, our republic, now so grand and beautiful, like those which have preceded it, may be remembered s> s delusive meteor, which rose full of promise, dazzled with momentaiy ' splendor, and left the world in greater darkness than before. SmCH or MB. HOWARD. Mr. HOWARD. Mr. Chairman: I propose to address myself fors few moments to the amendments now pending before the committet. The Chairman of the Committee on Corporations has said, and he bu said re])catedly here to gentlemen who oppose this report, that we are not stickling for any formulation of words. We are not committed to any set phrases. If you who object to this report have anrthin; in your heads or your hands that can address itself to the judgmeat of this committee, show it to us and we are ready to adopt it. Xov, air, what has been the course here by the opponents of this report! It is carping at words; simple criticisms, unworthy the dignity of this sub- ject. That has been the course here, sir. I acknowledge, however, in answer to the eloquent and forcible remarks of the gentleman from 8u Francisco, who has just taken his seat, and also to the observations of the distinguished gentleman from Alameda, that they have prodnoed some just criticisms. Now, I propose to consider their ameDdmenti very briefiy. In the first place, sir, let me say that I will not consenl to abate one jot or tittle from the report as made by the committee; ind I say to the friends of reform here, so far hs the report of the committee goes, stand to your guns! and do not allow your votes to be frittered away by the carping observations of the enemy of all reform. But, sr, certain suggestions have been made by the distinguished gentlemu who has just taken his seat, and others by the gentleman from Ala- meda, which are worthy of consideration, and which I propose to oos- sider. Kow then, as to the amendment proposed by the gentlemu from San Francisco, who has just taken his seat, and the one proposed by the gentleman from Alameda— they are substantially, or n^arly the same. And particularly, as the gentleman from Alameda has reformed and amended his, it commends itself to me. I will ask him now lo have his present amendment, as he now proposes it, read. Thk SECRETARY read the amendment suggested by Mr. Campbell, as follows: " Add to the section : ' Said Commissioners shall prescribe a nnifonn system of accounts to be kept by all such corporations or companies, tod they shall keep their accounts according to such system. Any railmd corporation or transportation company which shall fail or refuse to con- form to such reasonable rates as sbajl be established by said Commis- sioners, or shall charge rates in excess thereof, or shall fail to keep their accounts in accordance with the system prescribed by the Commimoneis, shall be fined not exceeding twenty thousand dolUra for each offense; and every ofiBcer, agent, or employ^ of any such corporation or compsny who shall demand or receive rates in excess thereof, or who shall in my manner violate the provisions of this section, shall be fined not exceed- ing five thousand dollara, or imprisoned in the county jail not exceed- ing one year. In all controversies, civil, or criminal, the rates of tues and freights established by said Commissioners shall be deemed prims facie just and reasonable, and in any action against such corporation oc company for damages sustained by charging excessiverat«8, tbeplsiDtiff, in addition to the actual damage, may, in the discretion of the Judge or jury, recover exemplary damages. The Legislature may, in addition to any penalties herein prescrit^, enforce this article by forfeiture or otherwise." Now, Mr. Chsirman, it will be seen that this is in aid of the repoit of the committee and in opposition to its provisions in no respect Bat it does give the legal sanction which even the opponents of all action here have demanded. And above all does it give the sanction whid the eloquent gentleman who addressed us yesterday demanded, for be aid his objection to the report of the committee wos thai it did not go &r enough, that it did not give the provisions which were given in the Enj- lish statute and in other laws. With that I agree. If there is any objection to this report, it is that it locks the le^ sanction which Uw amendment of the gentleman from Alameda supplies, and for that amend- ment I shall vote, sir. But I regretted to see, on vesterday, theamead- ment offered by the gentleman from Placer, I tliink it was, adopted, because if it is persisted in, it will inaugurate here the old system of lobby ism, and 1 need not say will make the Legislature the scenes of transactions which ought to be avoided. Now, sir, the gentleman from San Francisco who spoke yesterdar, Colonel Barnes, was eloquent when he told us that this report lacked legal sanctions and legal force, and I propose to accomm^oste him so far as my votes go on these amendments. I congratulate nim upon his speech of yesterday. I always listen to him wtth pleasure, for wnat he says he says so well that it is always agreeable to hear him. And I congratulate him uimn the address with which he managed it: with which, in certain language, he abused the railroail, and in other language he praised the railroad ; with which in one sentence he (iivored the Commission, and in another he opposed the only practical method of carrying it out. Mr. BARNES. Will the gentleman allow me to ask him in what part of my feeble remarks 1 approved of a Commission, and in what part I went against it; where I condemned the railroad, and where I praised it? I am not aware of any such thing. And let me say here, and now, that I am in favor of a dommission. I believe that it should have the powers necessary to carry out the work for which it is estab- lished, but that these powers should be vested in competent men, and my idea was that the Governor should appoint them. Mr. HOWARD. So I understood the gentleman, and my impresBoa is that to give it to the Governor is to defet^ it aUomthei^ 1 But I ce^ Digitized by Dec. 5, 1878. OP THE CONSflTUTlOl^AL CONVENTION. 595 tdinlj cannot be mistaken about having heard him spealc highly, and I agree with him, about what the railroad has done; and it seemed to me that he managed the subject as a very fond mother manages her child. Firat she whips him, and then if he cries she gives him a sugar plum to dry up and hush. [Laughter.] Now, Mr. Chairman, I say that the criticisms upon this report have failed, and failed utterly, except so far as they go to show that we have not gone quite so far as we ought to have gone. It has been said that there is no instance of a Commission being invested with these powers. Kow, sir, let me read a solitary instance in regard to the law of Illinois, from the report of the Chief of the Bureau of Statistics : " In May, eighteen hundred and seventy-three, another law was passed Srescribing what should be prima facie evidence of extortion and unjust iscrimination, the burden of proof being thrown upon the railroad company. Under this law the Railroad Commissioners are required to prepare certain schedules of rates which shall be deemed reasonable until overruled in specific cases by a jury." This report does no more. This report don't go an inch beyond it — not an iota. And yet the gentlemen tell us that there is no example of such a law. I commend them to the history of their country. I hold in my hand the Acts of the British Parliament. In an Act regulating railway and canal traffic, passed in eighteen hundred and seven ty-tnree, I find this: "SicTioN 12. Subject to the provisions in the last preceding section contained, the Commissioners shall have full power to decide that any proposed through rate is due and reasonable, notwithstanding that a less amount may be allotted to any forwarding company out of such through rate than ttie maximum rate such company is entitled to charge, and to allow and apportion such through rate accordingly." The fifteenlh section read l^us : "The Commissioners shall have power to hear and determine any question or dispute which may arise with respect to the terminal charges of any railway company, when such charges have not been fixed by any Act of Parliament, and to decide what is a reasonable sum to be paid to any company for loading and unloading, covering, collection, delivery, and other services of a like nature. Any decision of the Commissioners under this section shall be binding on all Courts in all legal pleadings whatever." And now gentlemen come here and say there is no example for the report of the committee. The statement, to say the least, is unsupported by evidence, and without foundation. Now it does appear extraordinary that this course of comment has been pursued here. It is unwarranted; it is undeserved. I had almost said it is misrepresentation. It is un- parliamentary. There is another objection urged to this section, which I shall very briefly notic«, and that is the objection which seems to alarm some gen- tlemen— that we have given to this Commission legislative, judicial, and executive powers. They say that it is contrary to the framework of American government. That there is no instance of any such power having been given to a Commission, and in that gentlemen are equally as nniortunate as when they say no law exists which confers upon Com- missioners the power to regulate freights and fares. The gentleman from Alameda, Mr. Van Dyke, the learned Chairman of the Committee on Preamble and Bill of Rights, the patent right author of the " palladium," referred to the Federalist the otiier day. A more unfortunate allusion could not have been made; a more unfor- tunate reference could not have been found ; for in the forty-sixth and forty-seventh articles of the Federalist, Mr. Hamilton examines this subject with the power of illustration and force of logic for which he has always been celeorated. He says that the truth is, that while that is the general principle, that these departments are constantly bein^ blended, and running the one into the other. He sums up the Constitutions of the States adopted up to that time, and shows conclusively that these powers run the one into the other. He says, for instance, the President IS a part of the legislative power, because he is required to approve laws unless he vetoes them. He says that the treaty-making power is con- ferred upon the President and the Senate by the Constitution of the United States. He says that the appointment to office as an executive power is given to the President and to the Senate — that is, to both the legislative and executive departments. He says that the power of impeachment is a judicial power, but that the power of impeachment is given to the Senate upon the presentation or preferment of articles by the House of Representatives ; and he goes through the whole thing. And every writer on constitutional law in the United States, and every Judge who has spoken upon the subject, has admitted the same thing. I shall now only refer to the learned work of Mr. Poineroy, In which he says that while the general plan of the Government assumes three coordinate, independent departments, and while these several depart- ments are, in the main, free from each other's control, they are very closely linked together, and one does, at times, perform some of the particular duties of the other. That, sir, is the law. I refer to a late case which has been commented upon and indorsed by the Supreme Court of this State — a caste in the 1st Oilman — which holds that, although the Legislature ma^ not divest itself of its proper functions by delegating its general legislative authority, it may authorize others to do those things which it might properly do, yet cannot understandingly or justly do itself. That is the precise case here. This provision authorizes the Commission to do what the Legislature cannot do understandingly; what the Legislature, an^ more than we, do not fully understand , and which only a separate tribunal, constituted for the purpose, can, after a full investigation, come to understand. Now, sir, I desire to refer, upou this subject, to a declaration of the Chief Justice of England, Iiord Campbell. In England, sir, they have felt the malign influence of corporations. T^e railroad corporations in England had, for years, been strong enough to override public senti- ment, oecause the power to adjust had been delegated to the Courts of law, instead of some tribunal possessing a practical acquaintance with the subject Upon this point, the following is the view of Lord Camp- bell, expressed during a debate in the House of Lords on the Canal and Railway TariCT Act of eighteen hundred and fifty-four: " They were to form a just judgment on all matters of complaint relating to railway management that might come before them, ana they were to lay down a code of regulations for the government of railways. The Judges, and himself among them, felt themselves incompetent to decide on these matters." That, sir, is the strongest reason in favor of this Commission, that no Legislature, of any character, is competent to discharge this duty. The provision, which the committee has reported, of regulation by the Com- misaion, with the Courts in the background, is, in my opinion, the acme of reason and the best possible disposition that can oe made of the subject. Now, sir, I submit that all of the criticisms of this measure, except the one that the report does not go far enough, are utterly futile ; futile to the degree that they amount to imbecility. The objection urged, and that seems to be the only one, is that raised by Governor Stanford in his letter. It has been amplified here, and nothing more. It was, that if there was a Commission elected by the people, it might be hostile to the railroad; that it might confiscate the property of the railroad. But if it has been guilty of the corruption, of the extortion, and of all the acts, or any of them, which have been charged, it ought to go down in shame and be punished for its crimes. But, if honest, it need not fear. As to the method of election, I have but one word to say, and I do not intend to repeat to-day what I said upon a former occasion. It has been urged in the course of this debate, that the election would fall into party management, and that the Commissionera would be elected by party. I think the gentleman from San Francisco, who just took his seat, returned a sufficient answer to that, but if it were so, it is no objec- tion. The Judges even in England are by appointment. They are the friends and supporters of the administration, and the Minister in power at the time of tne appointment. And in this country, as the gentlemen know, Judges have been elected by parties and by PM'ty machinery ; and they have been appointed by party machinery. Chief Justice Mar- shall, perhaps as great a man as ever sat on any bench — and certainly not Inferior to any — was appointed by John Adams, a party man cer- tainly, because he would so mold the Constitution as to put'some iron ribs into it. Judge Story's was a party appointment, made by Mr. Mad- ison, because he was then a Democrat, supporting the administration of Mr. Madison, and l>ecause, also, that he was eminently qualified, and a man whose worldwide reputation in the realm of jurisprudence admits of no attack. And Chief Justice Taney ; his was a party appointment — appointed by General Jackson — a man whose extended and exact knowledge of the common law is without rivalship in this country, or any other. Now, then, suppose they are nominated and elected by party. Is it in any worse condition than if they are to be appointed by the Governor? Will not the Governor be eompelled to appoint his own partisan if the appointment is given to him ? And worse than all that, he will have in addition to party considerations, that of his own ambi- ' tion and that of nepotism. It does not become gentlemen here, with the examples fresh before us of executive appointments, to commend that to us as a perfectly safe course of action. Why, what was done by one of the late Presidents of the United States? He did not, as it has been said of some man, send all his wife's relations to war, but he appointed them all to office. Look at the Supreme Court of the United States. Who does not know that that Court was packed by the Execu- tive for the greenback decision. Mr. Chairman, I am opposed, above all other things, to the appointment of those Commissioners by the Execu- tive. I have bad some observation in that matter. I became a resident of Mississippi many years ago, and the judiciary was so organized that the Judges were elected by the people. I lived under the system for several years. I thought I had seen some abuses under that system. I went to Texas, and in the Constitutional Conven- tion of Texas I joined with those who favored the appointment by the Governor and confirmation by the Senate, but the action of the Gov- ernor was so unfortunate that the Constitution was amended and the election given -to the people. If you cannot trust the people you cannot trust anybody. All other departments of this government — at least the legislative and executive departments — have been weighed and found wanting, and if we cannot confide this election to the people, we might as well abandon the whole system of government at once. If the people cannot be trusted, who can? I wish that answered — who can be trusted if the people cannot? If the people cannot be trusted, then, I repeat, our government is an ignominious failure. But, Mr. Chairman, I trust the people. I do not say so to flatter the people, for all who know my humble course know that I have in no instance hesitated to put myself in opposition to the views of the people when my judgment told me that they were wrohg. Mr. Chairman, some years ago, in eighteen hundred and fifty, just before his great spirit took its flight from this earth, I heard Mr. Calhoun declare that, unless the corruptions of this Government could be ar- rested, it would end either in dissolution of the Union or monarchy. I have thought of it oflen during the last few years. The purpose of dissolution has passed by, I trust forever, but monarchy is directly in front, staring us In the face, and unless we can arrest the course of cor- ruption, of tyranny, of corporation corruption and corporation plunder in the United States, this Government will end inevitably in monarchy. And I do not hesitate to say, that when it comes to the question, of being ruled by a moneyed aristocracy, concentrated in corporations, give me one ^ntleman, above ftmptation, with a sword by uis side and spura on his heels. I prefer him to Vanderbilt, and I prefer him to Jay Gould and his trunk lines and India rubber accounts. If this Govern- ment cannot be rescued from its downward tendency by the people, it is gone, and gone forever: and I agree with what the gentleman from San 596 DEBATES AND PROCEEDINGS Thursday, Francisco has so eloquently said upon that subject. But, sir, it will be rescued I I have seen the people of this country tried. It will be res- cued! They will stop its downward t«ndency. They will build up this republic again on its ancient foundations. They carried it through the war of the revolution. It was the people in the last conflict ttiat maintained the Government, and not the politicians or army. It was the great, stout-hearted, and stout-handed American people. For when the history of that transaction comes to be written, it will be proved incontestably , by the evidence of Cabinet officers, that the then President and his Cabinet were willing, in the language of one, to let the way- ward sisters slide ; and it was only after the firine on Fort Bunipter, when they heard the roar of the multitude on the outside, that the administration wheeled into line and took sides in favor of the Union. The people of this country will preserve this Government! They will preserve its honor and rebuke the corruption with which it is now sur- rounded. I have no fear of the people. I prefer them to all other sources of power. In fact, there are none except the people, for take it and put it into as few bands as you may, it comes bacK to the people at last. And now, Mr. Chairman, I sa^ in conclusion, I hope we shall take time to do this thing well, for it is a momentous thing, and we ihould not hurry it, so as to make it imperfect and unworthy of the indorse- •ment of the people. Mr. ESTEE. Mr. Chairman : I move that the committee rise, report progress, and ask leave to sit again. IN CONVENTION. Thi PRESIDENT. Gentlemen : The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have made progress, and ask leave to sit again. The Convention then, at twelve o'clock and forty-eight minutes p. u., took a recess until two o'clock p. h. AFTERNOON SESSION. The Convention reassembled at two o'clock p. u., President Hoge in the chair. Roll called and quorum present. THK BAILKOAD COlllilSSlOMEBS. Mb. SHAFTER. Mr. President : I move that the Convention now resolve itself into Committee of the Whole, the President in the chair, for the purpose of further considering the report of the Committee on Coiporations other than Municipal. Carried. IN COMMITTEE OF THE WHOLE. Thi CHAIRMAN. Section twenty and pending amendments are before the committee. SPEKCII or MB. SHAPTKB. Mb. SHAFTER. Mr. Chairman : I do not desire to trouble the com- mittee at any length. There has been some fault found with those who oppose this report, because they have not offered amendments, which seems to convince them that the section ought to be adopted. It must be remembered that the committee have had this report under discus- sion and consideration about sixty days. We have been in session sixty- eight days, and this subject has been considered by the Committee on Corporations for nearly the whole of that time. They had plenty of time to examine the subject and make a report. They made a report, and then called upon this Convention to stand by their guns and support the committee, and carry the doctrine through, because it was all right. They would tolerate no amendments, because the report needed none. The report was all right. " Stand by your guns," shout«d therChairman; "the report is right, and let us adopt it." I and others upon this floor were endeavoring to point out the weak places in the report, but our counsels were not heeded. I do not think it comes with very good grace from the Chairman of that committee to talk about our not offering amendments, when those we did ofler were voted down and brushed aside, utterly regardless of the arguments with which we supported them. It seems to me the Committee on Corporations ought to have been able to decide upon something definite in this matter in sixty days. Instead of that we find them bringing in a report entirely difierent from the first one. They have at last come to see that the first report was not right, and the committee themselves have been the first to alundon thei r funs. Mr. Hale and Mr. Campbell have presented amendments which ave been taken by the committee and engrafted in their last report. Why, sir, the other day I had occasion to comment upon this twentieth section. I said that it would shake the whole basis of republican insti- tutions; that there would be a conflict between these Commissions and the other great departments of government; that nobody would have any control over them; that the Courts would have nothing to do with them except to enforce their mandates; that they constitute a fourth departmentof government, superior and above all the others. Ideclared then, that this thing, if adopted, would sap the verj- foundation of our system of government. That idea has been indorsed by the gentleman from Sacramento, the gentleman from Santa Clara, aqd other eminent gentlemen on this floor. The gentleman from San Francisco, Mr. Vac- querel, struck the key-note the other day when he said that there was no necessity for any such thing in a republican form of government Now, I do not propose to go over this ground again. There has been no answer made to such arguments as these, and there can be none. "Tbere has been no attempt to answer them, on th« part of any eentleman on this floor. Gentlemen have asserted here that we ought to nave these Commission- ers, because the people have sent us here to provide for it, and all that sort of thing. How do they know what the people want? This Com- mission was invented on this floor, and was not an issue in any political canvass that I ever heard of. So far as this matter is concerned, as well as in all other matters, I shall act as my best judgment and my coa- science tell me to act; and, unless a proposition can be supported by reason and argument, I shall not give my absent to it. The bare unsap- portcd statement of gentlemen that the people want this thing, or that thing, or the other thing, is not entitled to any consideration. Now, in regard to the question of the appointment of these Commli- sioners. It seems to me it is time we should stop in our craiy career and reflect a little. I think there is abundant room for reflection. We were called upon to come forward and support the report of the com- mittee. Our own sense of right and justice prevented us from doing it, and now, after all this discussion, the committee themselves come for- ward and acknowledge that it was wrong, and they have called them- selves together, and have drawn up and presented another section, tad bring it in here this morning, and have sprung it upon us without thought or time for reflection, and they expect us to adopt it, without even knowing what it contains. It has been read to us for infomittioD, but if we are forced to a vote upon it to-night, it will certainly not be an intelligent vote. I most respectfully submit that we can accomplish nothing. Now, the origiiTal section reads; " Three Railroad Commissioners shall be elected by the qualified voten of this State at the regular gubernatorial elections, ana whose isluy shall be fixed by law, and whose term of office shall be four yean. They shall be qualified electors of this State, and shall not be intended in any railroad corporation, or other transportation company, as stock- holder, creditor, agent, attorney, or employ^, and tlie act of a majority of said Commissioners shall be deemed the act of said CommissioD. Said Commissioners shall have the sole power, and it shall be. their duty, to correct abuses by railroad corporations or other transportation com- panies; establish rates of charges for thejransportation of paeeeapn and freight." The committee now report the following section : Sbc. 20. Three Railroad Commissioners shall be elected by the quali- fied voters of this State at the regular gubernatorial elections, whose salar)' shall be fixed by law, and whose term of office shall be four yean. They shall be qualified electors of this State, and shall not be interested in any railroad corporation, or other transportation company, as stock- holder, creditor, agent, attorney, or employ^, and the act of a majoritr of said Ccmimissioners shall be deemed the act of said Commis^n. Said Commissioners shall have the power, and it shall be their duty, to establish rates of charges for the transportation of passengers and freight by railroad or other transportation companies, and publish the aaine from time to time, with such changes as they may make; to examine the hooks, records, and papers of all railroad and other transportatioa companies, and fur this purpose they shall have process of the Courts; to hear complaints against railroad and other transportation companies, to send for persons and papers, administer oaths, take te^mony,snd report cases of contempt to the Courts for their action, and enforce their decisions and correct anuses through the medium of the Courts, and per- form such other duties as may M prescribed by law ; to report to the Governor, annually, their proceedings and such other fiicts as maybe deemed important. Nothing in this section shall prevent indrvidualt from maintaining actions against any of such companies. It shall be the duty of "the Legislature to confer all such further powers on the Board of Railroad Commissioners as shall be necessary to enable thoa to perform the duties enjoined on them in this and the foregoing sections. They have struck out the word " sole." Now, as I have so often said, I am opposed to a Commission, upon principle. But I recognise the objects sought to be attained, and I say you cannot adopt a section that will more eflectually defeat those objects than this will. It leaves great questions to be determined— questions of interpretation — and when you get to work under it, and it coinea into the Courts, you will have to send your lawyers there, unless you shall conclude to send farmers and brick- layers; you will probably have to elect lawyers to the Supreme Court, and they will have to pass upon these matters. The committee have taken away the word " sole," and deprived the section of its vitality. If they are given the sote power to do these things, that would exclude the Courts and the Legislature. The striking out of this word may be de- cided to leave this power jointly in the hands of the Commission and the Ijegislature, and it certainly will be a question that will have to be decided by the Courts as to where this power belongs. Now, if that makes any change at all, what do you dot Why, you leave the power in the Board of Commissioners and in the Legislature equally. 'That is the legal result of it. The Legislature, undoubtedly, have the power to regulate freights and fares, ifow shall both of these bodies exercise that power? Suppose the Legislature does pass a statute fixing freights and fares, and the Commissioners pass another rule or order — one stands to one thing and one to another. Which is going to prevail ? How are they going to enforoe their decrees? The railroad cannot obey both. They will take the middle ground, and steer between them, because there is a conflict of authority. What is the result? Nobody but God can tell. No human being can tell what the result will be. 'Thatisthe condition of things that will result from having the word sole stricken out. Now comes the otherpoint made by the gentleman from San Fran- cisco, Judge Hager : " 'They shall examine the books, papers, etc, and for this shall have process of the Courts." Now, we have already passed some portions of the Constitution, which I do not suppose we shall change at all. I hope my friends, right and lefl, won't forget what I say, or recollect anything which I dontsaj. Section nineteen of the Bill of Rights, as adopted, reads as follows: " Sbc. 1 9. The right of the people to be secure in their persons, hooses, papers, and effects, against unreasonable seiiures and searches, shall IK< be violated ; and no warrant shall issue but on probable cause, supported by oath or affirmation, Jfcrticularly dcscribing^he place to be aearebtd and the persons and things to be seiised." by Google Dec. 6, 1878. OF THE CONSTITUTIONAL CONVENTION. 697 KTow, these conflicting statements and provieions will give riae to never-ending litigation. The question will have to be determined in the Courts, as to what constitutes an unreasonable seizure and search, and all that sort of thing. This section goes on to say that they may examine the books and papers of all railroad and other transportation companies, and for that purpose they shall have process of the Courts. There is absolutely no limit to their power in that regard; no limit as to time or place; no limit as U> the subject-matter to which it applies. AU books, all papers, and all records must be exhibited, without reserva- tion, no matter whether they are applicable or not. Why, sir, is such a thing as this to be tolerated for a moment? Look at it. What do you mean by " process of Court?" Will it be held that these Commissioners, under this section, can order the companies to produce their books, S»pers, and documents, and if they refuse, the Courts must enforce the emand? I think not. It would be a pretty state of affairs that the • railroad company could not be allowed to come before the Courts and present their side of the case. They would be. The Court would exer- cise a discretionary power in the matter. Is the whole course of justice to be disturbed by these men thus exercising absolute and arbitrary power? If the process of Court is resorted to, it must be upon applica- tion by them, showing what the purpose is, supported by affidavits, upon notice to the parties, charging the facts; and then the Court will make the order. It would be a singular state of things if they should be condemned without notice or an opportunity of being heard. It will be an unending source of litigation. All these things must be decided in the Courts. Then, again, they are tohear complaints against the railroad and other transportation companies. One gentleman proposes to make the fine for a violation of the commands of the section twenty thousand dollars. Now, is that a legitimate, proper expression of the public desire to vin- dicate the law against a man who violates the letter of the law openly and under a claim of right? I think not, sir. My sense of justice revolts at the idea. To what madness are we coming to? Now, these Commissioners have no power of their own to enforce any of their decrees. They sit there like a bump on a log and make orders. They go to the Court. They have subpoenaed one of the officers, and he refuses to answer their questions. They go to the Court and say, this man refuses to obey us. We want you to punish him for contempt. The Court says, I will not send him to jail until I find out whether ne is guilty or not. The Court has to make an inquiry. Notice must be given — for the Court will not punish this man for olleged contempt without giving him notice, and then the case is brought up and regu- larly tried. If he is guilty, the Court says, you must go back and answer the question, or you will be punished for contemjjt. Well, he goes back ; the question is asked again, and he answers it. The next ume the Commissioners come along they put the question to him again, and he says, I won't answer it. Then they go to Court again, ana the same thing is repeated. Where will the thing end, and how will they accomplish anything? Now, they are to enforce their decisions through the medium of the Courts, correct abuses, and to on. What decisions; what abuses 7 What is an abuse? I suppose when a man enters a car and fills my face full of foul smoke from a bad cigar, that might be termed an abuse. I think, perhaps it is, and if I thought this Commission could prevent it, I don't know but I might be induced to vote for it. But how are they going to oorrecf that or any other abuse. It has no power, under this section, to enforce its decrees. They can do nothing without going into the Courts, and any private citizen has that right now. Now, sir, if this Convention is going to have a Commission, for the sake of the credit of this body I hope we will make it of some practical benefit. If we are to have such a scheme, let us have an intelligent one, With proper sanctions and penalties. I do not believe these railroad companies have been guilty of half the things they are charged with. But there is one thing that we all know, and that is, that they have an immense power, and if they choose to do so, they can use it to the detri- ment of the country. This they ought not to be pcnnitted to do. Mr. MoCALLUM. Mr. Chairman : I desire to offer a corrected amendment in place of the one I presented last evening, which I think will be acceptable to the amendment offered by the gentleman from Sac- ramento. 1 ask that it be read. Thk SECRETARY read : " Amend section twenty as follows : In line two, strike out ' Ouber- natorial,' and insert ' General ;' in line three, strike out ' four,' and insert ' six,' and at the end of line three, add ' provided, that the three Commissioners elected at the first election shall so classify themselves by lot that one of them shall go out of office at the end of two years, one at the end of four years, and one at the end of six ^ars, so that after the first election one Commissioner shall be elected at the general election every two years, and shall hold the office for the term of six years." Mr. McCALLUM. Mr. Chairman : My proposition last night was to elect two Commissioners for two years, and one for four years. In pre- senting this amendment I have tried to consult the wishes of the mem- bers upon this floor. Mb. CAMPBELL. Mr. Chairman : I desire to offer another amend- ment to this section. The SECRETARY read: "Said Commissioners shall prescribe a uniform system of accounts to be kept by all such corporations and companies, and they shall keep their accounts according to -such system. Any railroad corporation or transportation company which shall fail or refuse to conform to such rates as siiall be established by said Commissioners, or shall charge rates in excess thereof, or shall fall to keep their accounts In accordance with the system prescribed by said Commissioners, shall be fined not exceed- ing twenty thousand dollars for each offense ; and every officer, agent, or employ^, of any such corporation or company, who shall demand or receive rates in excess thereof, or who shall in any manner violate the provisions of this section, shall be fined not exceeding five thousand dollars, or be imprisoned in the County Jail not exce«ding one year. In all controversies, civil or criminal, the rates of freights and fares established by sold Commissioners shall be deemed prima facie just and reasonable; and in any action against such corporation or company for damages sustained by charging excessive rates, the plaintiff, in addition to actual damages, may, in the discretion of the Judge or jury, recover exemplary damages. The Legislature may, in addition to any penalties herein prescribed, ehforce this article by forfeiture, or otherwise, and may confer such further powers on the Commissioners as shall be neces- sary to enable them to porfonu the duties enjoined upon them in this and the foregoing section." 8PIECB OP MB. CAMPBRLI.. Mr. CAMPBELL. Mr. Chairman: I have but a few words to say in explanation of this amendment. Some time ago I prepared an amend- ment to section twenty, as reported by the Committee on Corporations other than Munici))al, with a view to offering it at the proper time. But after a lengthy discussion on the provisions of the section, the com- mittee introduced a substitute for it, and that substitute in its main features seems to meet the approval of a large portion of this body ; and so many gentlemen seem to oe in favor of preserving the features of the amendment as offered, that I deem it unwise to offer the amendment which I prepared originally ; but I have introduced in place of it this addition to tne section, or substitute, reported by the committee. This addition embraces most of what was contained in the amendment which I had originally intended to offer. Now, there have been some strictures made by the gentleman from Marin, Judge Shatter, upon at least a portion of this amendment. Now let us see If that amendment is prejudiced in favor of or against the cor- porations ; or if it is not right and fair and just. That amendment pro- vides, it Is true, for tlie Imposition of a fine of twenty thousand dollars. Some gentlemen have said that I ought to have put in a minimum also, and suggest the words, " not less than five thousand dollars." I prefer- red to leave that matter to the discretion of the Court, so that if the Court sees a disposition manifested on the part of the corporations to override the law and to disobey its mandates, and the case is one of such an aggravated character as to affect the interests of the community, that the Court should have the power to Impose a fine to the amount of twenty thousand dollars if it thinks fit. Now, the gentleman thinks twenty thousand dollars an outrageous fine. » If he will refer to the Penal Code of this State be will find that precisely such an act as that is punishable by imprisonment for not less than one year, and such imprisonment may extend to the lifetime of the person. If I steal half a dollar from the person of another, I am liable to imprisonment in the State Prison, under the same Code, for a period not less than one nor more than ten years. So that before the gentleman talks about the pen- alties being excessive and severe, he had better first consult the statutes of the SUte, which are universally recognized and enforced by the Courts of the State in dealing with crime. Another one of his criticisms was that the provision giving the Com- missioners power to examine the books and papers of these corporations is in conflict with, and inconsistent with the provisions of the Bill of Rights, because, by the latter article, the people are to be secure against unreasonable seizures and searches. Well, is it unreasonable that these Commissioners, invested with the power of fixing freights and fares, acting for the public, in regard to public corporations, which has a pub- lic duty to perform, should be authorized to examine these books and papers, for the purpose of enabling it to act intelligently? Are the books of these corporations to be concealed from their scrutiny, when it is absolutely necessary for the Commissioners to have access to them in order to make an intelligent bill of freights and fares? Is it unreason- able for them to have access to these books in order to obtain the requi- site information to enable them to carry out the mandates of the Consti- tution? Is it in any way inconsistent with this provision of the Bill of Rights which secures persons against unreasonabiS searches and seiz- ures? Are these powers unreasonable and without precedent, as the gentle- man says? Let us look at the powers which are now vested by law in the Bank Commissioners of this State — powers which are being exer- cised confessedly to the very great advantage of the public; powers, through the exergise of which, the greatest abuses are to-day being cor- rected. Let us look at those powers : " Sec. 4. It shall be the duty of one or more of the Bank Commission- ers, as designated by the Commissioners, once in six months, and as often as in their judgment may be deemed necessary, without previous notice, to visit and to make personally a full examination of each bank, saving bank, saving and loan society, or other society, association, com- pany, or institution incorporated under the laws of this State, or any other State or country, and doing business in this State for the accumu- lation and investment of funds and savings, or any trust company receiving any valuable thing in trust, or money on special deposit, or any person publicly receiving money on deposit for safe keeping; to inspect all books, papers, notes, bonds, or eviaencea of debt of such cor- porations, and all securities; to ascertain the condition of every such corporation, its solvency, its ability to fulfill all its obligations, and rejmrt its condition to the Attorney -General as soon as may be after such examination." Who in this State, the gentleman from Marin included, has com- plained of that power in the Bank Commissioners to examine papers, t)ooks, ete., of the institution? But, says one gentleman, it will inter- fere with the private books of the Directors. It does nothing of the kind. "The books of a corporation are the books of a public corporation, organized under the laws of the State, and having certain obligations and duties towards the people, deriving ito life from th«.9tate, and con- Digitized by VjOOQ IC 598 DEBATES AND PROCEEDINGS Thcbsday, ducting and carrying on ita busineaa under the sanction of our laws; and to sajr that any such institution may refuse to the proper public authority the right to investigate, the right to examine the books of the institution, is to say that swindliug, whether through railroad, banking, or other corporations, is not an ofiense nnder the laws of the land. That it is to be permitted and encouraged by a sort of constitutional guaranty and sanction which gentlemen seek to spread over all the frauds that may be proposed under corporate mismanagement. Why, sir, it requires but little aiigumcnt to answer such a propoeition. Their own statements are a sufficient refutation of them. Another thing: the gentleman does not like it that the word tole has been stricken out. He claims that under the section the power to fix freights and fares is a concurrent power; that we have not taken it away from the Legislature, but that it remains there, and that the Legislature may at any time set aside the action of the Commission, and may sub- stitute forany tariff of freights and fares established by the Commis- sioners something of its own creation. I deny that this is a correct proposition of law. The nile is, that the expression of one thing is the exclusion of the other. If this Constitution resU in a Board of (Commis- sioners the power to do these things, to fix freighta and fares, it is exclu- sive in its nature. You cannot ^ave two bodies exercising the same power at the same time; and in attempting to regulate freights and_ fares the Legislature would in effect be repealing this section of the Constitu- tion. The criticisms which this gentleman has presented, are all equally defective. There may be questions that will be raised by the corpora- tions as to the construction of the language; no doubt there will be. But I would like to know where the statesman is who can draft a code of laws under which a question of construction cannot be raised. If the gentleman supposes that either he or any other member of this Conven- tion, or any committee of this body, is wise enough to construct a provis- ion, either constitutional or legislative, that will not be susceptible to different interpretations, he will find himself very widely mistaken. I admit that some parts of this section will necessarily be open to judicial construction. So will the language of every section which we adopt here. It is comparatively a new subject in this State, and whatever language may be adopted, either by tne Convention or by the Legisla- ture, necessarily must become a subject for judicial inquiry and judicial construction. Now, sir, as far as this provision goes, with the amendment attached to it, I believe it is the best that can T>e adopted under the circumstances. I would myself, in some respects, have it go farther, and in others, per- haps, not so far; but I do believe this provision as it now stands repre- sents the average judgment of the Convention, and I think, of the people. srucH or ur. kstrk. Mb. E8TEE. Mr. Chairman: I shall not detain the committee but a few moments, as I suppose they are ready to come to a vote. I wish to say that it strikes me as a little strange that my distinguished friend from Marin, who haa just addressed this Convention, should say that it is time for us to reflect, and warning us about getting excited; that we must treat the subject with the utmost gravity ; that these are ques- tions of the greatest concern ; that we must approach them by slow degrees; that reason must prevail. For one, he said he intended to address himself entirely to the question; that he was not going to wan- der from the question at issue, and would address himself to section twenty, and the amendments then pending. And then my distinguished fHend proceeded to talk about everything else but section twenty and the amendments, and then closed his remarks by saying how terribly wicked it would be to punish a man for robbing his neighbor. For one, I confess I do not comprehend the logic of the distinguished gentleman, when be undertook to convince this Convention that the section did not mean anything, and in half an hour after he attempted to show yon that, if it was adopted, it would be the greatest outrage ever perpetrated upon an enlightened community. That is the logic of the gentleman, 'niat, in effect, is the logic and the argument of all the opponents of this measure. The question for us to consider, calmly and deliberately, here is, whether this amendment is right. If it is right, let the friends of the measure stand squarely up to it, and defend it against every assault. If it is wrong, tnen it should be defeated. There is no mem- ber of this Convention, there is no friend of regulation on this floor, who desires anything placed in the Constitution of this State that will imperil or endanger any of the great interests of the State. There is no member of this Convention who desires a word or j sentence placed in that section, or in the Constitution, which will imperil the rights of any corporation in this State, however much these corporations may have infringed upon the rights of individuals. The question, sir, is not whether the language pleases the gentleman ; not whether he is afraid the corporations will be pleased with the-adoption or rejection of this Constitution; not whether that section will be of advantage to this or that particular interest, but rather whether it will be a permanent good to the whole people of this great State. If it will, then it ought to be adopted. If it will not, it ought not to be adopted, and the people, when it is passed, will sustain it. Now, I have failed to hear any argument to-day to show that this sec- tion, with all its provisions, would imperil any of the material interesta of this State. I have faned to hear any argument showing that the establishment of rates of charges for freight and fares by Commissioners elected by the qualified electors of this State, would be a wrong upon any of the material interests of the corporations even. It is admitted by gentlemen all around us that the Legislature has that power. It is admitted that the Legislature has power to regulate freights and fares. Then they tell us that the Legislature cannot do it, because they have not the time to devote to the subject. Now, in reply, we admit that the Legislature, under the power which they have, could do it if they would — they possibly might do it honestly if they knew how — but they have not the time, opportunity, experience, or learning, to qualify them to go on and deal with this important question. But we do say that if you elect three citizens of this State for that specific purpose, that ther will soon become capable of handling the subject, and that they viU handle it so as not to destroy any of the interests of the State. Where is the State officer that ever has? Why, sir, your Governor, year after year, has stood between the Legislature and the people and vetoed bill after bill in defense of the people's interests. When some great corpo- ration has succeeded in passing measures through that were detrimental, the Governor has come to the rescue and exercised the veto power in their behalf; and whyT because the Governor, as the Chief Executive of the State, occupies a position towards the people whereby he is held strictly accountable for what he does. He knows the whole people of the State will look upon him as their protector; that it is his constitu- tional duty to defend their rights; and, occupying that sacred and exalted position, he exercises that power in the interest of the people, and not in the interest of the corporations. I remember when a bill , was passed here giving to one corporation nearly all the tide land around San Francisco, and your Governor vetoed it, and his veto was sustained only by a small majority. I do not see why the Commissioners, elected by the same people, under the same circumstances, will not stand between the people and the corporations, and do justice to both. I believe they will. I believe the powers, if they were absolute — if they had absolute and unrestricted powers — these three men, elected by the people of this State, would endeavor to do justice alike to the people and to the corporations, when elected for that specific purpose. Now, sir, ridicule is said to be the strongest argument that can be made by the enemies ft any just cause. Ridicule is always resorted to when the enemies have no other kind of argument to advance. It i> sometimes easy to get up a laugh and laugh a thing down, but when a distinguished gentleman, like the gentleman from Marin, gets up and makes an illustration that will make somebody laugh, he need not think it takes the place of argument. It does not. Some of his illus- trations are exceedingly illogical. He went on to say that this provision would amount to nothing; that it was absolute folly — the idea that one hundred and fifty men elected and sent here to make a Constitution, should be carrien8titution. [Laughter.] The chairman. Division has been called for. The amendment was rejected, by a vote of 55 ayes to 81 noes. Mb. JONES. I move the committee rise, report progress, and itk leave to sit again. Lost on division — ^es, 38. Mb. TULLY. I offer a substitute for section twenty. The SECRETARY read : "Sec. 20. The Legislature, at its first^ession after the adoptionofthii Constitution, shall establish and provide a system for the enforcemeat of an equitable tariff of rates, fixing the maximum that can be char^ for the transportation of passengers and freight by the railroad and trans- portation, companies of this State, which may be altered or amended from time to time; and by all proper legislation prevent undue and unreasonable discrimination in such charges, or in the facilities for tbe transportation of the same classes of freight and passengers, by such com- panies, between persona or places, and shall compel the observance of the provisions of this section by fines and forfeitures upon such railroad or transportation companies, or by the imprisonment of the officers and employes, at its discretion." BEMAEKS or HB. O'doKKKLU Me. O'DONNELL. X hope there will be no more tampering Tilb the section. The majority of this Convention are tired' of these amend- ments. They are offered for no other purpose than to get up a discut- sion. We have been here sixty-five days, and have not got a single section of the Constitution. We have spent about twenty-five thousand dollars to get in this one section. Now the idea of gentlemen offering such amendmenU as that to go in the Constitution is ridicnioiu. [Laughter.] Who has any confidence in the Legislatures that have been in this State for the last fifteen or twenty yearsr Look at the last one. It was one of the most corrupt and venal legislatures that ever convened in this State. Most of us ipembers were sent here for the purpose of regulatingfreightsand fares. This thing has been settli 1 in San Frandsoo. They came up and wanted fifteen millions for the waterworks, and if it had not been for the Workingmen'a party getting up a big indignation meeting, it would have passed both houses. You all know that to be » fact [Laughter.] Now don't you leave this thing to the Legislature. W« are sent here for the purpose of electing these Commissioners to regulate freights and fares. Most of the corporation lawyers say it ia confiset- tion. If it means that, I say it is just and right. Let the people get back some of the land they have been robbed of. I hope there will be no more tampering with this section. The majority of the members on this floor honestly intend to vote for the section, and nothing else. I hope we will not leave here to-day without passing the section. [Cries of " Question," "Question."] Mb. O'DONNELL. What do you want oUi^e question? Too have Digitized by oogle Dec. 6, 1878. OF THE CONSTITUTIONAL CONVENTION. 601 ?ient thirty-Biz hours yourself on this floor for nothing. [Ijanghter.] don't want to detain this committee any longer. ["Go onj go on." Laughter.] We are ready now to vote on this section. We want no more tampering. It has been said that they intend to get up amend- ment after amendment, and discuss them, until we get disgusted and leave here. I want them to distinctly understand that I am the last man to leave this hall until this Constitution is framed. I will now give way to my friend from Santa Clara, Mr. Herrington. Mr. herrington. Mr. Chairman: I wish to raise a point of order. My point of order is, that the gentleman from Santa Clara, Mr. Laine, offered a substitute to section twenty, embracing precisely the same matter which is embraced in this substitute. I maintain that the substitute having been voted down, it is not competent to entertain the same matter ^;ain. The chairman. It is not the game matter. The question is on the substitute. Lost. Mb. HUESTIS. I move the committee rise, report progress, and ask leave to sit again. Lost. The chairman. If there are no fiirther amendments, the Secre- tary will read section twenty-one. Mb. McCALLUM. I desire to insert a single word in this section, in order to express the idea intended. Insert, between the words "trans- portation" and "company," in line five, as printed in the report of the committee, the word " railroad." Tbb chairman. That is the wa^ it reads now. [Laughter.] Mb. hale. Mr. Chairman : I desire to make an amendment by way of a new section, to be known as section twenty-one. I desire to have the ruling of the Chair upon it. I understood from the ruling of the Chair, the other day, that it could not be done until the report bad been gone through with. If that is the rule, of course this section would be out of order at this time. I deaire to understand the ruling on that point. Tbr chairman. The gentleman 'can ofler it as an independent section after we get through with the report, but not now. The Secre- tary will read section twenty-one. Thk SECRETARY read: Skc. 21. The State shall be divided into three railroad districts, as nearly ecjual in population as practicable, from each of which one of the three Railroad Commissioners shall be elected. Mb. herrington. Mr. Chairman : There was a section referred to this Committee of the Whole, by the Convention, on the fourth of December, the one which I read a few moments ago. I call for it now. Tbi CHAIRM.\N. Are there any amendments to section twenty -one. Mb. herrington. That is an amendment to section twenty-one, which I offer. Mb. ROLFE. I don't know as I understand this Mb. HERRINGTON. I have the floor. I am offering this section as section twenty-one. Tbb SECRETARY read: "Sic. 21. Said Railroad Commission, in the execution of its powere, shall BO fix, and from time to time regulate, the charges for freignts and fiures collectible bv said railroad and other transportation companies, that the revenue aerived therefrom, over running expenses and expenses for repairs by such companies, shall not" in the aggregate for any year after the adoption of this Constitution, exceed, but may be less than, ten per centum of the true cash value of the works, machinery, and property invested and in actual use by such corporations in the business of trans- portation, as the same shall be assessed annually for State taxation." Mb. ROLPE. I rise to a point of order The CHAIRMAN. That is not an amendment to section twenty-one. Mb. HERRINGTON. Then I will offer it aa an jndependent section. Tbk chairman. Not at present. Mb. ROLFE. Mr. Chairman: I move that section twenty-one be stricken out. It is unnecessary, and it is in conflict with the previous section already adopted. It commences by saying that three Railroad Commissioners shall be elected by the q^ualined voters of this State. Now, this section says the State shall be divided into three railroad dis- tricts, as nearly equal in population as practicable, fj;om each of which one of these Commissioners shall be elected. Now, the only fair con- struction is, that each railroad district shall elect one Commissioner. The other provision is, that they shall be elected by the qualified voters of the State. I think the two sections are in direct conflict. If it is passed, it will put us in the condition so forcibly described by the gentleman from Hann, Judge Shafter, when he said that the Courts would be constantly called on to construe the language. Mb. hale. We certainly should have time.to consider this matter, and I move that the committee rise, report progress, and ask leave to sit again. Carried. IN CONVENTION. Tbi PRESIDENT. Gentlemen : The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have made pro- gress, and ask leave to sit again. BXaOLCTIOK. Mb. HUESTIS. Mr. President : I ask leave to offer a resolution. Tbi SECRETARY read : Raolvtd, That the debate in the Committee of the Whole on the report of the Committee on Corporations other than Municipal shall be closed at twelve o'clock M., on Friday, December sixth, eighteen hun- dred and seventy eight. Thb PRESIDENT. The question is on the adoption of the resolution. Division was called for, and the resolution was lost — ayes, 56 ; noes, 60. 76 ADJOUBNHENT. Mb. WHITE, Mr. President: I move the Convention now take a recess until seven o'clock. Lost on division — ayes, 58; noes, 63. Mb. walker, of Tuolumne. I move that the Convention do now adjourn. < Carried. And at four o'clock and fifty minutes p. m., the Convention stood adjourned until to-morrow, at nine o'clock and thirty minutes a. k. SEVENTIETH DAY. Sacrabbnto, Friday, December 6th, 1878. The Convention met in regular session at nine o'clock and thirty min- utes A.H., President Hoge in the chair. The roll was called, and members found in attendance as follows: PBKSENT. Andrews, Harvey, Porter, Ayers, Heiskell, Prouty, Barbour, Herold, Reddy, Barnes, Herrington, Reed, Barry, Hilbom, Reynolds, Barton, Hitchcock, Rhodes, Beeretecher, Holmes, Ringgold, Bolfe, Belcher, Howard, Bell, Huestis, Schell, Blackmer, Hughey, Schomp, Boggs, Hunter, Shafter, Boucher, Inman, Shurtleff, Brown, Johnson, Smith, of Santa Clara, BuH, Jones, Smith, of 4th District, Campbell, Joyce, Smith, of Ban Francisct Caples, Kelley, Soule, Caaserly, Keyes, Stedman, Chapman, Kleine, Steele, Charles, Laine, Stevenson, Cowden, Lampson, Stuart, Cross, Larkin, Sweasey, Crouch, Larue, Swenson, Davis, Lavigne, Swing, Dean, Lewis, Terry, Dowling, Lindow, Thompson, Doyle, Mansfield, Tinnin, Dudley, of Solano, Martin, of Alameda, Townsend, Dunlap, Martin, of Santa Cruz , Tully, Edgerton, McCallum, Turner, Estee, MeComas, Tuttle, Eetey, McConnell, Vacquerel, VanT)yke, Evey, McCoy, Farrell, McFarland, '\%n Voorhies, Filcher, McNutt, Walker, of Marin, Finney, Miller, Walker, of Tuolumne, Freeman, Mills, Waters, Freud, Moffat, Webster, Garvey, Moreland, Weller, Glascock, Morse, Wellin, Gorman, Nason, West, Grace, Nelson, Wickes, Graves, Neunaber, White, Gregg, Noel, Wilson, of Tehama, Hager, Hale, O'Donnell, Winans, Ohleyer, O'Sullivan, Wyatt, , Hall. Mr. President. Harrison, Overton, ABSINT. Berry, Eagon, Pulliam, Biggs, Fawcett, Shoemaker, Condon, Murphy, Wilson, of 1st District. Dudley, of San Joaquin, LIATB or AB8EHCB. Leave of absence for two days Was granted Mr. Wilson, of First Dis- trict. TBI JOUBNAL. Mb. BROWN. Mr. President : I move that the reading of the Journal be dispensed with and the same approved. Carried. ADDITIOKAL COPIES. Mb. MANSFIELD. Mr. President; I move that four hundred and eighty additional copies of the memorial presented by the Committee on Agriculture, Manufactures, and Commerce, on the fourth instant, be ordered printed. Carried. TBXT-BO0K3. Tbi PRESIDENT. X have a communication from the Superintendent of State Printing in reply to a resolution adopted by this Convention. The Secretary will read it. Tbi SECRETARY read : M>. Prbidint: In compliance with certifled r«solatlon riom the CoDTentioD. datMl December fourth, I hare the honor to submit the following estimates. These flffuree are made upon the boeis that the State poseeaeed the text and copyright, and all the appliancM oeceasary for doing nich work. For the tint one thousand, com- 602 DEBATES AND PROCEEDINGS Friday, plat* mHm, of • book ia mrr reapect w|Dal to the Padflc OoMt Rcadan, It voald coat the SUta: For eumpoeitioii Tor paper For proas-work For bindlDg For engraviog cut*.. For elacttvtyping... •449 06 3AS 90 160 SO W5 00 3,760 00 &en m Total Each additional thooaand $5,936 26 1,168 40 The cost of publishing a series, equal in all respects to the McGuffey Readers, would be for the first thousand : Cominaitloii _ — $4*9 61 Paper _ iel 60 Preas-work _ 161 75 Binding 666 (10 Engraring ifiW 00 Electrotyping 534 00 Total _ •5,«»7 86 Each addlUonal thouaand »l,084 25 BeipectfnllT submitted. F. P. THOMPSOX, Superintendent State Printing. The president. It will lie on the table. Mb. O'SULLIVAN. Mr. President: I more that the usual number of copies be printed. C8E OF CAFITOL ROOMS. Thk president. It will be printed in the Journal. The Chair also has a communication from the Sergeant-at-Arms, in answer to a resolution passed by this CouTention, which the Secretary will read. Thb secretary read: To the honorable Preddent and Members of the Conttitotlonal ConTention . GBMTLcifKif : In reply to a reaolutlon of Inquiry, passed by yonr honorable body on yesterday, asking nie for informatfun as to the authority by which others than membere of tbe Convention occupy committee-rooms and other parts of this build- ing to Ibo InconTenience of nieotbers uf the ConTention, I will say that the rooms now used by the Conventiun for committees and other purposes were obtained from the Secretary of State, on request, by resolution passed for that purpose. I gare no one authority to occupy tho rooms, and I retained the keys in my poa> seaaion; yet some of them were occupied Wednesday and Thursday eTenlngs by others than members of the Convention. On inquiry, 1 waa informed that permiasloD was obtained from the Secretary of State. Reapactfuify rabmltted. T. J. SHERWOOD, Sei^eanl-at-Aniis. Thi president. The communication will lie on the table. LAKD HOKOrOLIES. Mb. BEERSTECHEB presented tbe following memorial, signed by several hundred citizens of San Francisco, in regard to land monopoly and equal taxation: To the Conatltntlonal ConTention : Your memoralists, believing that the monopoly of land la a denial of natural right which should not be tolerated in a republican State; believing that it Inerltably produces an unduo conccvtriLtiori of wealth on the one side, and distress and pau- perism on the other; that it Is mainly responsible for tlie hard times, low wages, and business depressiun, that now prevail in CalifomlA; that its abolition would give new life and Tigor to every branch of trade and Industry, and would caiue an unprecedented increase in population, In wealtli, and in eTerything which consti- tutes real prosperity, rcapectrully recommend to and urge upon your hononible body that In framing a new Constitution to be submitted to the people no provision shall be included which sha'l in any way forbid or hamper the alx>lition of this monstrous injustice. Oonscioos of the differences of opinion that exist, your memorialists do not ask that your honorable body shall paas upon the lieat method of getting rid of the eTlls of land monopoly, nur even that any elTort to that end shall lie enjoined, but simply that no obstacle shall be interposed between tbe will of the people and the carrying out of any plan of taxation which for this purpose tbe people may hereafter decide to adopt. They therefore ask that instead of prohibiting discrimination by requir- ing the equal taxation of all property, the new Constitution shall leave the matter of taxation to tlte discretion of the law-making power, simply proTlding that all laws imposing taxation shall haTe uniform operation, and that whatever exemptions may be made, or whatever cumulative rates or increasing probate duties may be impoaed,sliali apply equally to all Individuals under the samo conditions. Referred to Committee on Land and Homestead Exemptions. BAILBOAD 8CB8IDY. Mb. DOWLING offered the following resolution : Wherxas, The Honorable Alexander H. Stephens has introduced a bill in the House of Representatives of the United States, providing government aid in build- ing tlie Texas and Pacific Hailroad, and as the government is fully secured in said bill by a first mortgage on the road, and on all the land granted said railroad com pany by the United ^itatee and the State of Texas ; and, whereas, liy the provisions of said bill, the said Texas and Pacific Railroad Is to remain forever an independent and competltiva tnnseontineotal line, to b* constructed solely by white labor; therefore, be it Raolvid by Ou Qmititulional Cbnvend'on uf the State of Otli/mmia, That our Senators and Representatives In Congress Ix^ requested to support the said bill, and use all reasonable and lionomble means to secure its enactment Into a law. Jietotved^ That the Secretary be requested to forward to each of our Senators and Bapreaentativas in Congresa a copy of these resolutions. Mb. AYERS. I second the resolution. Mr. DOWLING. Mr. President and gentlemen of the Convention : I offer that resolution in consequence and in haryiony with the spirit of the speech delivered on this floor, by Colonel Barnes', of San Francisco. His argument was beyond criticism, as solid as a cannon bail, and as true as fate. We are, to-day, at the mercy of one great monopoly, having charge and sole control of all the avenues of transportation, from Mount Shasta, where it kisses the sky, to San Diego, and from the Sierras to the sea, sir. Every imaginable place of egress or ingress is controlled by the Central Pacific Railroad Company. Now, sir, in this dilemma, it is absolutely necessary that we should turn our attantion to some other means of egress and ingress to the State of California. The only place we have to look at is the Texas Pacific Railroad. It is to be main- tained as an independent onmpau v, and consequently, if we have it, we shall be no longer at the mercy of this great monopoly. Now, in the course of Mr. Barnes' speech, he says, referring to tlie railroad : " It has invaded the wilderness, and put to flight its lepne and peace by the inusic of successful labor. It has ended the missioii of the pioneer; it has left him no solitude to conquer." It wis the same way when Rome was in her grandeur. Her sons were dying ob her battle fields when they were suMtituted at home by hordes of alsTca In California we have no pioneers to-day. The music which summoiu tbe railroad pioneer is no more to be heara. He has gone ; and where hu he gone toT He has gone to destruction, to crime, to despair, to death, and on his prostrate form stands the noble Chinaman. He has no alter- nate section of railroad land. He has no home to go to. He hs! no pillow to repose his head on. And, sir, I looked at the twentieth section nf the report of the Committee on Corporations, as the Magna CbartaoT California, as the second Declaration of Independence, to raise up this Stata from the iron heel of oorporata power ; but I do not look at it is that light now, for in the condition it is now in, it is worse than tlw non-partisan platform, which is nothing at all. It is forsaken bj its mother, and disowned by ita father. It » like a shorn sheep, sir. It ii a nullity. It is like a lamb without a tail. Now, sir, it will be remembered that last Winter we had thotmndi and thousands of idle men parading the streets of San Francisco. It will be remembered that they went up in thousands to the Major of tbe city, to try to get a day's work. He had no work to give them. They were there. They were almost goaded by hunger to desperation or despair. I am not a champion of any class, nor a political aspirant, but I tall you that the handwriting is on the wall, and we have got to get some avenue in which to place these men to earn their daily bread, and this is the only imiuediata avenue that I tee, theopeningup of this great continental line. It will be a ray of joy penetrating the gloom that hang* over our Stata to-day, and it will let one beautiful ray strike Xn the form of our golden State. I hope this resolution will Ik pted, gentlemen; aud, if it is, we will have something to compete with the great Cenlral Pacific Railroad Company. For the information of the Convention, I will read from the evidence taken before the Chinese Commission that assembled in San Fnnci»> nine months ago. F. F. Low testified under oath : "A. — That is my belief; I do not know. These people deny that such are tbe facta; practically, the Chinese come nere through means advanced by these companies or individuals, or by people here throogh these companies. I think it is by no means sure that the Southern Pacific Railroad Company is not importing Chinese to-day through these coinpanies. I know" the Central Pacific Railroad Company did it. " Mb. £\'ANS. Oftentimes friends and relatives here send for their friends and relatives there, don't they T "A. — There may be individual cases, but not many. I know the Central Pacific Railroad Company imported thousands and thousgndsof coolies through Chinese agents, and that they advanced money for pas- sage, and took it out in work, with a bonus." Now, sir, if that is not true, ex-Governor Low is a libeler; ind if it is not true the Central Pacific Railroad Company should stand up and deny it. But on this great railroad there are no serfs or slaves to be employed. There are thousands of white laborers to-day wandering over the State that would be only too glad to get work. Mr. WELLIN. Mr. President: I am very much surprised at the position assumed by my friend from San Francisco. It seems tome that the voice of the people from one end of the country to the other has been expressed long and loud, that the Government should do no more towards building railroads and enriching a few privileged dli- zens. I for one object to it, and shall never vote for the reselution. I think our good old friend. Uncle Sam, has had business enough with railroads, and somehow they get tbe best of him. I think that U> start in and build tbe railroad that the gentleman has referred to, would only result in some millions of dollars for the people to pay, and more cor- ruption. I hope that the resolution will not be acted upon by thiabodjr- I hope that it will meet that fate which it deserves, and I niovo that it be laid upon the table. Mb. O'SULLIVAN. Mr. President: I second the motion. I concnr with my friend from San Francisco, who has just spoken. The PRESIDENT. The motion is not debatable. The motion is Ui lay the resolution on tbe table. The motion prevailed. LAND AND HOMISTBAD KXRHPTION. Mr. WYATT. I ask leave to introduce a resolution. Thk SECRETARY read : Xetolred, That the Committee on Land and Homestead Exemption be rrqaested to lake a report to this Convention at as early a day as practicable, and If unable to report soon, Uiat the committee make a statement of the reasons for its delay. Mr. SMITH, of Santa Clara. Mr. 'President: I will state that the committee will make a report to-morrow or next day, or on Monday. Mb. WYATT. That is satisfactory. OOD IN THB CONSTITOTIOK. Mb. AYERS presented the followinj^ memorial, si^ed by a number of citizens of Los Angeles County, against any mention of God in (he Constitution : Los AxoiLss, California, September 10, 1878- To the Constitutional ConTention : WniRiAa, We have heard that an effort wilt be made to have the new Omstitii- tion recognise God, the Bible, and the Christian religion. We therefore rMpe<^ fully but earnestly protest against such partiality against many religions to ttnir one religion. Our State is not a church State, and should be entirely "f"^ from all church matteis of gods, creeds, iklths, ofdinancea, and flnooees, and riionla Digitized by Google Dec. 6, 1878. OF THE CONSTITUTIONAL CONVENTION. 603 alik« protect th« wonhippen of Joas, JehoTKh, Japlt«r, Allab, Binnub, Mid MieTera In no God and other^goda. We alio proteat against tb« LeeUlatan baring a right to grant charters, except general onea, or malce donations of moneT or land, or any special pririleges to any cnnrch, corporation, or society, nor to make special laws fur chiirchee, MMzieties, cunijianiefl, or indiTidnals. We Itelleve that all laws sboold be general, except that soma Ifws, wall dellned and carefnily limited, should Iw optional liy a rote of the people, hot not for the Iwneftt of companies, churches, or individuals. Referred to tbe'Committee on Preamble and Bill of Rights. TRl RAILaOAD COHMISSIOll. Ma. VACQUEREL offered the following new proposition, which was read, to be supplementary to the report of the Committee on Corpora- tions other than Municipal : Retolrtd, That after said Ciommlssion sliali be duly constltntad, each imilway or transportation company doing biitineas in this State shall issue to said Commissioners a free pass over their line, sat i fTee pass not transmissible to any other person, and to be available only when on otBcial duties. After the Commission shall hare estab- lished a just rate of freights and fares, the charge in no case shall exceed three cants per mile fur passengers, and three cents per mile per ton for freight. Any railway or transportation company doing business in this State shall be obliged by law to run at least a train daily on each Hue, or branch, or section now running, and any Infraction of said section shall forfeit the Iranchise and legal rights of said company or corporation. After the report of the schedule establtsliing, the value of tba property of the railway companiea in this State, and after a mutual understand- ing between the Legislature and the managers of the companies for the acquisition of such property of the railways, it shall be submitted to a vote of the people at the next general election, asldug them for their consent for such acquisition of property by the State. •■ i~ < Ma. VACQUEREL. 1 move it be printed. Ma. GRACE. I move that the resolution be allowed to lie on the table, and that it be not printed. The motion prevailed. Mb. O'DONNELL. Mr. President: I offered a minority report the other day, which was laid on the table. I wish it taken up and ordered printed. Tbk president. It was printed in the Journal. Ma. E8TEE. ' 1 move that the Convention resolve itself into Com- mittee of the Whole for POWKRS OP THB COKVBSTIOS. Ma. BELCHER. Mr. President : I have a reportfrom the Committee on Judiciary and Judicial Department which I am requested to present: Th« SECRETARY read: Ma. Prksideut: Your committee to whom was referred the communication of the Hon. W. B. C. Brown, dated December second, eighteen hundred and serenty- elght, concerning the pay cf the members of this Convention during its late recess, ttom Kovember twenty-seTenIb to December second, and concerning the fnaetai expenses and per diem of the late Hon. J. U. Strong, beg leare to report that they have duly considered the same. In view of the doubts which exist as to the true construction of the statutes and tba rights of this Convention, we recommend the passage, by the Convention, of the Ibllowing resolution : Jiesolrtdf That the President appoint a committee of three members to confer with the Attorney General of this State, snd present, with him, an agreed case, so as to obtain from the Supreme Court, at ss early a day as poaeible, a decision involving the trne construction of the Act of the legislature of this Slate, entitled " An Act to provide fur a Convention to frame a new Conttltntion fur the State of California," approved Match thirtieth, eighteen hundred and seventy-eight, and a detorrainatioii of the various questions pending regarding the power of this Convention over the fund referred to in said .\ct, and whether the stationery and like things furnished the members, and the printing, are payable out of said fund ; and also, a determina- tion of tlie other matten in which the views of the State O)ntrollar are in conflict with the views of this Convention. 8. M. WILSON, Pacember 6th, 1878. Chairman Judiciary and Judicial Department The report was received, and the resolution accompanying the same unanimously adopted. The President appointed as the committee under the foregoing reso- lution, Messrs. Laiue, Shafler, and Terry. griCIAL OeDKRif. Me. EDGERTOX. Mr. President : I move that the report of the Committee on Revenue and Taxation be made the special order imme- diately after the disposition of the report of the Committee on Legisla- tive Department. I suppose it is a matter which involves a considerable discussion, and it seems to me that in view of the great amount of time we have expended that we should get to the consideration of that sub- ject at an early da^. I therefore make that motion. Carried. Ma. TERRY. Mr. President : Task that the report of the Committee on Legislative Department be made the special order immediately after the report of the Committee on Corporations other than Municipal. Ma. MILLER. Mr. President: The report of the Committee on Chinese was made the special order immediately arter the disposition of the report of the Committee on Corporations other than Municipal. The PRESIDENT. The report of the Committee on Chinese is the special order after the report of the Committee on Corporations other than Municipal is disposed of, but it can be superseded by a vote. Mb. MILLER. Then the motion is to suDstitute the report of the Committee on Legislative Department. Tbe PRESIDENT. If the motion should prevail it will supersede the other order. ;r;r; Mr. MILLER. Great interest islelt on this proposition in regard to the Chinese. If the Convention sees proper to malce tbe substitution, of course I shall not complain, but I desire members to understand how they are voting upon this motion and what would bo the effect of it. The Convention made the report on Chinese the special order, and I doubt whether this motion now is in order. Mb. ESTEE. Mr. President: I move that the Convention resolve itself into Committee' of the Whole. The PRESIDENT. There is a motion pending. Mr. AYERS. Mr. President: I hope the motion will not prevail. The consideration of the report of the Committee on Chinese has been made the special order immediately following the report of the Com- mittee on Corporations other than Municipal. A great many gentlemen in this Convention are anxious that that matter should come up and be disposed of. I do not think it well that it should be postponed indefinitely. Mr. BLACKMER. Mr. President: If I am not wrong in ray remem- brance, this report of the Committee on Chinese was made the special order to follow the report of the Committee on Corporations, and I sub- mit that we cannot change that order unless we reconsider that vote. I think I am correct. The Con\)entiou voted to make that tbe special order. Mr. TERRY. Mr. President: I withdraw the motion. RAILROAD COMMISSION. Mr. ESTEE. Mr. President: I move that the Convention now resolve Itself into Committee of the Whole, the President in the chair, for the purpose of further considering the report of the Committee on Corporations other than Municipal. Carried. IN COMMITTEE OF THE WHOLE. Trs chairman. The pending question is the motion of the gen- tleman from San Bernardino, Mr.llolfe, to strike out section twenty- one. The Secretary will read the section. The SECRETARY read : Skc. 21. The State shall be divided into three railroad districts, as nearly e ihe amendment of the member from Alameda was adopted, vcsterday, cbanging'the term of office, so that one Commissioner shall be elocted every two years. As I understand it now, there are three Commissioners, whose term of office shall be six years, and they shall be elected every two years; and it is proposed that they shall bo elected by districu. As reported by the committee, they would be elected nil at the same time, in three districts, throughout the State. Nr ,, sir' I think there is safety in that mode of election. They «*''"'a oe elect/-d at the same time in three distinct dis- tricts of th-' ., and then taere could be no colonization from one dist'' . kv, a.<>>iDer, by the railroads transporting their workmen from je district to another. If they are clocteil throughout the State one at a time, it will perhaps give ^oem the control ; but if they are elected at the same time in three different districts, according to my opinion it will be under the control of the people; and I would prefer that this section should stand as it was originally drafted by the committee, so far as these Commissioners are concerned; that Is, that they should bo elected at the same time in three distinct districts throughout the State; that the people in each district may select their own man and elect him. Thev can reelect him if he turns out to be a good man. Let them be elected at the same time. It is stated they will acquire experience. They will be continued in office if they are good men. If the people understand them to be good men, they will be continued in office; and if they are not good men, let them not be continued In office— let them be changed every four years, if necessary. I would suggest to the Chairman of the Committee on Corporations, if I could get his ear— I would suggest to the Convention, that this section twenty be recom- mitted to the Committee on Corporations, with instmctlons to restore that provision as it was originally reported ; that is, to amend section twen^ so that it will provide for the election of the Commissioners every four years. Now, we can get that back, and then elect them by dis- tricts, as proposed originally; and we will accomplish a purpose that would be for the safety of the State. I think we had better adopt that course recommit section twenty to the Committee on Corporations, with instructions to amend it so that these Commissioners shall be elected at the same time, one in the north, one in the middle, and one in the south, so that there can be no colonization from one district to another. If the Chairman of the Committee on Corporations will accept that pro- posal, I will move it, or leave it for him to move that it be recommitted, with instructions to change it back. I will make the motion. I move that section twenty be recommitted to the Committee on Corporations other than Municipal, with instructions to amend so that it sball pro- vide for the election of three Railroad Commissionera, by diitrieli, tt the same time, and make their term of office four years. Thb CHAIRMAN. The gentleman's motion is not in order. The Committee of the Whole cannot recommit. BBaABKB or MB. MCCALLCH. Mb. McCALLCM. Mr. Chairman: I understand that the motion of the ^ntlemau from San Francisco is not entertained. A question is pending, first, to strike out section twenty -one, and next to amend itn that the Commissioners shall be elected by districts, or so that the Com- missioners shall be residents pf the different districts, but elected by the State at large. Now, Mr. Chairman, I desire to say that while Itwu no part of my object to effect the election of these Commissioners by the State at large by offering the amendment, and the reasons were stated at the time, I believe it has accomplished a good thing if it has had s tendency to secure the election by the State at lai^. And I must sty that the views of the gentleman from San Francisco are about as crade on this question as they were on his proposition, in arguing it the other day in his general speech, that if it was by districts then we would not have any party connected with it. Who ever heard of a District Con- vention being made up except by Psrties, and the State Convention being divided by its delegates mto different districts? Mb. HAGER. I am still in favor of electing by districts, and thtt will take it out of party. Ma. McCALLUM. Mr. Chairman: District Conventions are simply the State C4invention divided up into districts, and the parties nominste just as in the State at large. The fact is, that these different delegitei make their arrangements beforehand as to who thev will vote for in the different districts when in the State Convention. Kow, Mr. Chsinntn, in my humble judgment, we have done remarkably well so far as «e have gone on section twenty, but we would lose mudi if we adopted the Idea of electing by districts. I prefer to have the whole people of the State vote for the Commissioners. ■ Make the field wider, the voten more numerous, then there is less opportunity for that oonoentrating of the power of one great element in our politics. The more you narrow that element — the fewer the voters, the better the opportunity for con- trol. The argument used the other day by the gentleman from Ssov mento, Mr. Edgerton, has not been answered as to the probable ability, in a particular district, to colonize voters, by which means the grot corporations may secure the election of a delegate from that particolar district. No, sir, in this mighty conflict, now fully inaugurated, culmi- nating in these last few days in the State of California as nowhere else in the nation, and as we are told nowhere else in the world, I am glad that we have to make the conflict first, here, on the great and main question of absolute control. In that conflict I want to see the whole people of the State of California have an opportunity to stand up on one side or the other on the election of every Commissioner. As to the amendment of my colleague, that these Commissioners shall be elected by the State at large, but one shall be chosen from each district, I can very little; but I think the best amendment is simply to strike out aee- tion twenty -one. Section twenty Implies that they are to be elected hj the State at larp;e, but to come from districts. I am in favor of striking it out, because it ought to be stricken out Then, as to selecting them— they would undoubtedly be. selected from different parts of the State. Districts to be formed for what purpose? Simply for the purpose of selecting the locality In which these three gentlemen may reside. Then is no such thing as a railroad district in the State. There would be, it it true, if section twenty-two was adopted; but in my judgment section twenty-two should also be struck out, when we come to it. In case that section was adopted, it would only be to say, "you shall select one of these Commissioners from this list of counties, and another from that list, and another from this other list of counties." Even then two Com- missioners out of the three irould be elected almost in San Frandaoo, because I notice Alameda In one of those districts and San Francisco In another. I understand that gentlemen have anticipated, or feared, that the City of San Francisco would get all or most of these Commissionets. I do not apprehend it, sir, for one moment There will be at least two parties, pernaps three. I believe it is understood that there are three, and we might as well look at the facts. A party that would select all the delegates from one part of the State would furnish an argument against itself; and the mana^rs of each party would be anxious enough to distribute these Commissioners throughout the State, without any constitutional provision to say that they shall be so and so distributed. It Is unbecoming the dignitv of a Constitutional Convention to ssy that these Commissioners shall be elected one from each of three particnlar parts of the State. I have no doubt it would likely result in that now, without a constitutional provision to that effect I care little; bat it seems to me that the better way is simply to strike out section twenty- one, and then strike out section twenty-two. I must say, that in taking this position, in defending as I try to, and voting as I try to continually to give the most absolute control consist- ent with justice, I am governed by no such prejudice as seems to be implied in the resolution here this morning; no prejudice against any corporation, but a desire to assert the authority of the government to control the corporations. If the resolution which was offered here and laid on the table, had not taken up more than enough time, I woald like to have urged an amendment expressing the' very opposite of that resolution — that is, requesting, as the Constitutional Convention, our Senators and members in Congress to vote against the proposed, subsidy to the Texas Pacific and all other roads. The idea of inviting competi- tion to regulate this question I We want control. Competition results in nothing but an agreement not to compete. Absolute control is what w4 want. I care not if the Central Pacific Railroad Company owns every road now, or shouldown every road in the State hereafter. Digitized by Google Dec. 6, 1878. OF THE CONSTITUTIONAL CONVENTION. 605 REMARKS OP UB. BABBOUB. Mb. BARBOTJB. Mr. Chairman : This illustrates the mischief of interfering with the report of the committee. The system of rotating, which struck the fancy of the gentleman as a good thin^, is dapendent entirely upon what shall he done in other articles. For instance, there may be no more biennial elections in this State. I understand that the Legislative Committee will report a section abolishing biennial elections, and providing for four years terms for county oiiicers, as well as State officers. I do not know whether it will actually Mb. McCALLUM. The Legislative Committee have done no such thing. Mr. BARBOUR. Mr. Chairman : That makes no difference. The proposition will be considered. We had this matter discussed in the Committee on Corporations, and we determined, in the first place, that the Commissioners should be elected, not by the State at lai^, but by districts. Now, it is said that there is a difficulty or confusion with regard to the construction placed upon the language of sections twenty and twenty-one. The twentieth section seems to provide that it shall be by the State at large, although the words "at large" are not used, and in section twenty-one that the election is by districts. Now, it ought to have remained as reptjrted by the committee. The proposition of the gentleman from Alameda, Mr. Webster, is that whilst the candi- dates shall be residents of the districts,' the election shall be by the State at large, and the Chairman of our Committee on Corporations imme- diately gives up the only vital thing there was in the whole proposition, and says he has no objection to that amendment. Mr. ESTEE. Mr. Chairman : I stated that if the amendment pre- sented by the gentleman from Alameda, Mr. McCallum, remained in section twenty, then 1 think that we ought to have some such provision. I am still in favor of the original report, and it ought to be adopted. Mr. BARBOUR. Mr. Chairman: It makes no difference, it seems to ine, whether the rotating principle of the gentleman from Alameda be incorporated or not, but the gentleman to be elected from a district should be voted for only by the residents of that district. Now, that is all there was in the idea of districts, because there was a presumption that the voter would have some acquaintance with a candidate pre- sented where he lived in the district, and the vote was confined to the district, and he would have no acquaintance with him if he was voted for by the whole State. In other words, that a voter in Siskiyou County, voting for a candidate in the southern district, would not be presumed to have acquaintance with him. I insist, sir, that the only way for the Convention now to get out of the confusion into which this whole sub- ject has drifted, is to retrace their steps and recommit it to the Com- mittee on Corporations to provide for the election of these Oommiseioners at the same time, at the gubernatorial election. That is the only way by which these difficulties can be avoided, such as the colonization of voters. I therefore hope that it will be recommitted, and I move that the committee rise, report progress, and roccomraend that ' sections twenty -one and twenty-two be rereferred to the Committee on Corpora- tions other than Municipal, to correct only the matter in reference to the election df these Commissioners. Mr. ESTEB. Mr. Chairman: I second the motion. Mb. ROLPE. Mr. Chairman Thi chairman. It is not debatable. The motion prevailed on a division, by a vote of sixty-seven ayes to thirty-eight noes. IN CONVENTION. Thr PRESIDENT. Gentlemen : The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, and report it back with the recommendation that sections twenty and twenty- one be recommitted to the Committee on Corporations other than Munic- i)>al, with instructions to reconstruct the same so as to harmonize section twenty-one with the action of the Committee of the Whole on section twenty. Mb. ESTEE. I move that the recommendation of the Committee of the Whole be adopted, and that it be so referred. Mr. McCALLUM. Mr. President: I understand a resolution was adopted h^ upon yesterday that the discussion on the report of the Committee on Corporations l^e closed to-day at twelve o'clock. Th» president. That motion was lost. Mb. McCALLUM. I am very sorry that it was lost, or that at any rate some motion was not adopted for the conclusion of the discussion and action upon the report of the Committee on Corporations. I believe we have been in session upon that refiort about four weeks, and I fully concur in the sentiment expressed by General Howard, that this rejwrt ought not to be referred back to the Committee on Corporations for any more tinkering. If it is proposed to amend section twenty, or any other section after the consideration it has received in Committee of the Whole, it can be amended in Convention. Mb. ESTEE. I rise to a point of order. There is no question before Convention. Tbr PRESIDENT. The question is on the motion to recommit. Mr. ESTEE. I thought that had prevailed. , Mb. McCALLUM. Mr. President: I am a little surprised that such a parliamentary gentleqian as the gentleman from San Francisco is con- tinually making these mistakes. If the gentlemen should agree with the idea of the gentleman from San Francisco, Mr. Barbour, that amend- ment can be adopted in Convention. All of these questions, or the most important ones, will come up in Convention. Then, why have another two weeks of discussion in Committee of the Whole by referring them back at this time. Now, when the discussion is fresh in the minds of all, and when we have reached the last two sections, why not take it up and dispose of it. I think that a large majority are opposed to electing by districts, and for reasons that it is not necessary to reiterate. And it is that sole idea, and the idea that there is something adopted yesterday which prevents it. We can take a vote on that. The judgment of the Committee of the Whole can be obtained on the pending amendments. I cannot see any necessity for a further delay. I have listened to the set speeches of many hours, occupying the tmie about one month, and the idea of referring it back now and not finishing up the business, it seems to me is wholly unfounded on any good reason. Mb. ANDREWS. Mr. President: I hope that the rejwrt of the Com- mittee of the Whole will be adopted. I djffer with the gentleman from Alameda. I believe that a majoritv of this Convention are in favor of electing the Commissioners from districts, by the people of the districts from which they are elected. I am in hopes that the report of the com- mittee will be adopted. Mr. BARBOUR. Mr. President: I hope my friend from Alameda will not urge his objection. I have no disposition to take anything away from the section, but section twenty is passed, and we can do nothing with it in Committee of the Whole. I took this course so as to get it into a place where we can harmonize sections twenty and twenty- one. Mb. WATERS. Mr. President : I rise for information. I do not know that I understand the scope of the report of the Committee of the Whole. Is it to be the understanding that these sections, twenty and twenty-one, are to be referred back to the Committee on Corporations, with full power to do as they please with them? Mb. BARBOUR. It is only in reference to the subject of the election of the Commissioners. Mr. WATERS. With that understanding I shall support the report. Mr. SCHELL. Mr. President : I hope it will not be referred back to the Committee on Corporations. I think the past history shows that it is entirely out of the power of the Committee on Corporations, or any other Committee, to harmonize anything in this Convention, and I do not consider that it stands any better show to be reported back to this Convention in a way that will be satisfactory to the Convention, than it did before, and it seems to me that it is taking an unnecessary time for the disposition of this section. I hope the Convention will not refer it back to the committee. Mr. HALE. Mr. President: I do hope that this will not be done. What necessity is there for this action? What the Committee of the Whole has alreody accomplished, after nearly four weeks work, is that three Railroad Commissioners shall be electea by the State. That is one of the propositions. That is in section twenty. Another proposition adopted is that these Commissioners shall hold office for a tieirm of six years, except that those elected shall determine among themselves by lot, the terms that they shall hold, two, four, or six years; and that at each general election, fiher the first election, one Commissioner shall be elected by the electors of the State. That is the next proposition adopted. Then follow the powers of the Commission, and the pen- alties inflicted under the supervision and direction of the Commission for violation of the rules they may prescribe. Another provision is adopted, placing tlie Commission itself under the restraint of the Legis- lature; giving the Legislature the power to pass all needed legislation to carry the powers of this Commission into effect. Now, sir, there is a compact, unified, harmonious whole, consistent in all its parts, amount- ing to a systam both in the personnel of the Commissioner, the powers to be exercised, and the restraint under which they are to be placed. Now, what difficulty re<^uires this to ^o back to the committee. The motion here made is to give the committee power to remodel according to their ideas. I think we have had enough of their work. The Con- vention has passed upon their work and wiopted this language in lien of theirs, adopting as much of theirs as was applicable, and modifying it where, in tne sense of the Convention, they deemed it wise to do so. Why not complete the work of this article and have done with it, and pass to something else? It is suggested that section twenty-one does not seem to be in harmony with section twenty. One single, simple amenda- tory clause will bring them into perfect harmony. Bear in mind that we have already enacted in section twenty that the electors of the State at large shall elect the Commissioners. We have decided in the same way in Committee of the Whole, that they shall be elected at each gen- eral election, two years apart after the firet election. Now, what further requires to be done? Section twenty -one reads now : "The State shall be divided into three Railroad Districts, as nearly equal in population as practicable, from each one of which one of the three Railroad Com- missioners shall be elected." Now, sir, section twenty says that the electors of the State shall elect. Then this one prescribes in addition to that, that the electors of the State shall elect from each one of these dis- tricts one of these Commissioners. Now, sir, if there is any doubt about the interpretation of the two sections, then add after the word "elected" in section twentv-one, these words only : " by the electors of the State at large." But it is not necessary, because section twenty already enacts the same thing. Then, sir, section twentv-two proposes to divide the State into these three districts, as provided in section twenty-one. We do not need to go back unless we are dissatisfied with the work of the Committee of the Whole; and I submit that aller we have spent as much time as we have upon this subject, and in view of the lapse of time, we cannot afford to go back and fight the battle all over again. We can adopt that single amendment, and I believe we shall give satis- faction to the body of the Convention, and to the people that sent us here. I hope that we shall not send it back, but that we will com- plete our work upon this article and go on with the other work. Mr. west. Mr. President : I wish lo address the Convention for a few minutes, with regard to the plan proposed to divide the State into three districts and elect simultaneously the three Commissioners. Soma of the reasons urged in the committee for a course of that kind were: first, that the election simultaneously in the several districts would pre- vent the colonization of votera in the localities to be affected. In the second place, that in conformity with the growing sentiment in the State Digitized t^ 606 DEBATES AND PROCEEDINGS Friday, we should adopt the eyotem of local self goTemment. That we should bring the election of the officers and servants of the people right directly under the control of those whose interests would be immeed, That the Committee on Corporations other than Municipal— — [Cries of "louder."] Mb. HERRINGTON. I will send it up. Thb SECRETARY read: Bttolved^ That the Committee on Corporations other than Municipal so report this action upon sections twenty and twonty-one as to have the Commiasionors elected by the State at large, but selected from districts. RRUABKS OK UR. HKRRIMGTON. Mr? HERRINGTON. Mr. President: I desire, if it is possible, to be heard upon this question, and the only possible way to be heard is to keep the newspapers quiet, and to cease whispering and talking. The question is a very interesting one, and requires a very little argument on either side. In the first place, by the election at Urge — as the Com- mittee of the Whole have determined that the Commissioners shall be elected for six years, one member of the Commission every two years^ it places the advantage of the election in the hands of the peojile of the State at large. It compels the expenditure of labor and money on the part of the railroad coinpan;^ at the election of each Commissioner that it would require to ex})end in the election of two Commissioners upon any other basis. By an election in districts, it is but a little trouble for the railroad companies to colonize for the election of any member of that Commission. I care not whether ^ou have the election in two dis- tricts at the same time or one district, it only amounts to a question of numbers with the railroad company as between one district and two. When the election is at large, the whole body of the people are called upon to pass in Judgment i^pon the question. Each time we have a jury of the whole people, and we are not compelled to abide the results of the action of the railroad company in shipping a portion of their employes from one district to carry by the weight of numbers in another. That is an advantage which we cannot well do without. This is a proposition which we cannot put aside and permit to be engrafted upon the Constitution in any other form. Any other action on the part of this Convention places us as completely in the power of the railroad corporations as we could possibly be, either in organizing a Commission or giving to the Legislature the power which they already have to con- trol railroads. I am not particular as to the mode of the election of these Commissioners, whether two for two years, or one for four years, or whether, as the Committee of the Whole have established it, by elect- ing one every two years to serve six years. I say I am not ve»y par- ticular about that; but that the Commission should be elected by the whole people of the State, we cannot dispense with. It is an indispensa- ble method to the election of this Commission. Now, I say that this committee ought to be instructed to so arrange sections twenty and twenty-one that one Commissioner should be selected from each district, but elected by the State at large. RBMABKS OF MR. TINMIK. Mb. TINNIN. Mr. President: I am unalterably opposed to the ame^ment offered by the gentleman from Santa Clara, Mr. Herring- ton, for the reason that I do not want the agents of tbe San Francisco Gas Companv, and the San Francis* Water Company, of the San Fran- cisco railroad delegates who happen to gel into the political conventions, to say to me who shall be nominated in the northern district of this State. We have but little of that element among^is, and the people of that portion of the State are fully competent to say who shall represent them as Railroad Commissioners. If this idea is proceeded upon, the people who live in the districts of the State outside of San Francisco can say nothing about who shall be the nominee from those districts. We all know that these corporations control, to a great extent, the political conventions of this State, I care not what that convention is, whether Democratic, Republican, or Workingmen. The power of these corpora- tions will be felt in these bodies, and they have the whole control of nominations; and this has invariably been through the San Francisco delegations that come into the several conventions of this State. For that reason I hope the gentleman's amendment will be voted down. BKMABKS or HB. BOWARD. Mb. HOWARD. Mr. President: I am in favor of the resolution offered by the gentleman from Trinity, Mr. Tinnin. I am in favor of stopping there. I think the Committee on Corporations are pretty well instructed out of their boots already. I am opposed to destroying the Commission by indirection, and therefore I am opposed to the Trojan horse of the gentleman from Placer. BEMABKS or MB. HALS. Mb. HALE. Mr. President : It seems to me we occupy a very peculiar position this morning. We have been in Convention and in Committee of the Whole discussing very largely section twenty of the report of the Committee ou Corporations other than Municipal. We thougnt yester- day we could see tne end of this discussion and labor; at least so far as the action of the Committee of the Whole is concerned. This morning, however, we liave a new style of attack — new to me at least— in parlia- mentary usage. I do not rise for the purpose of raising any point of order. Of course I understand that what is done in Committee of the Whole only becomes the action of the Convention when the Convention adopts the action of the Committee of the Whole, and therefore the Convention, at the proper time, would proceed to the adoption or rejec- tion of the work of the Committee of the Whole. But we have got a new style of getting at it now. We have got the committee to rise and ' recommend tne Convention to refer back the matter to the Committee on Corporations, with instructions to harmonize the two sections, and then comes the gentleman from Trinity, with his new dodge, and asks the Convention to instruct the committee to review, in substance, all we have been doing in the Committee of the Whole for the last two weeks. That is the motion. Now, of course, if this question is to come up in this manner for determination, I suppose those who have favored these various propositions which have been adopted in the Committee of the Whole will be called upon to defend them now in Convention, under this modified form of attack, and also to argue and defend all the ques- tions so that the Convention may pass upon each of these questions seriatim, just, in substance, as the Convention would do on a motion to adopt the action of the Committee of the Whole. In the first place, the gentleman says he wants the committee to report back section twenty-five, so as to eliminate the amendment which is called the Ilale amendment. Now what is that amendment? I propose to speak of that first, because it appears to be the most prominent in the mind of the gentleman. He says the Convention never should adopt section twenty with that amendment in. Now sir, that amendment is in these words, at the end of section twenty, and asqualifying the preceding clause; DEBATES AND PROCEEDINGS Friday, "Provided, the Legislature shall have power to remove any one or more of nid Comraiseioners from office for aereliction of duty, oomiption, or incompeteDcy therein. And whenever, from any cause, a vacancy in office soall occur in said Coinmiasion, the Governor shall fill the same by the appointment of a qualified person thereto, who shall hold office for the residue of the unexpired term, and until his suooessor shall have been elected and qualified." Of course I expected that when we came into Convention there would be a resistance to the adoption there of the action of the Committee of the Whole on this ameodmeDt. But by this modification of attack it comes up here for trial again. Now, sir, I offered this amendment, and it was adopted in Committee of the Whole. On account of the previous question being called, I did not have the opportunity of which I intended to have availed myself of discussing this question a little in detail, and, perhaps now, that this attack is made upon it, it is proper that I should do it. Mr. President, I find it very difficult to even hear myself speak on account of the confusion and noise in this hall. The PRESIDENT. Order! Order! Gentlemen will Uke their seaU and preserve order. Me. hale. Mr. President: In support of the propoeition in this amendment which is under discussion and examination, to allow the Legislature, by a majority vote of all the members of each house, to remove a Commissioner, I wish to say a word. It is objected, first, that the proper way to reach this, if by the Legislature at all, should be bv the power of impeachment. To that, I answer that this remedy is cumulative. In other words, this proposition does not cut off the right of impeachment. It is merely an additional remedy. Then it is objected that it ought not to be done by a simple majority of each bouse of the Legislature. Now, that, of course, is the priucipef point of objec- tion. U|>on that point I wish to say a word. Let us take the converse of this proposition. For instance, it is suggested that it should require a two-third vote of all the members. Let us take that proposition and see where we are left. Two thirds of each bouse is required to remove a Commissioner, an4 I may say before entering upon that branch that the grounds upon which they may be removed, are dereliction of duty, corruption in office, or incompetency in office. Mb. REYNOLDS. Mr. iYesident: I nm compelled to rise tio a question of order. As I understand it the resolutions before the house touch the election, and not the ipspeachment or removal of theae Commissioners. M«. HALE. Mr. President: lam speaking to the pending motion to instruct this committee, and for the purpose of showing that I am within the rule, I asf the Secretary to read the pending resolutions. Tbe SECRETARY read: " By Mr. Tinnin : * " XtMotved, That farther Inttmctions to tb* ComnittM on CorporatioM other than Municipal: ** That KctloD twenty be amended so as to provide for the election of three Ball* road CommMonen b; dbtricia, at tke same time, and making their term of oBce four years. "Also, that the LegislatDre may remove a Commlfeloner by a two-Uiirda vote of all tbe memben elected to each bonse. " By Mr. Herrington : ** Re$olvtdt That tbe Committee on Corporations so report tbMr action on sections twenty and twentyMine •• to have tbe CommMonen elected by (be State at larc*, but selected front districts.'* Tai PRESIDENT. The gentleman is in order, and will proceed. Mr. hale. Mr. President, and gentlemen of the Convention: The precise proposition presented by the |iending instruction, then, is to amend the amendment which was offered by myself so that the Legis- lature only could remove for dereliction of duty, for corruption in office, or for incompetency in office, by a two-thirds vote of each house. Now, Mr. President, what are the probabilities? — and here no rule of law can be invoked — it is simply that common sense which every member on tbe floor possesses, founded upon the common experience pertaining to matters in the community in which he lives. What is the probable danger which will invoke the power of the Legislature to remove one of these Commissioners at all. Why, I answer, in the sentiment, if not in the language — for I am unable to quote— of the gentlemen who have addressed tbe committee upon this whole subject during the last three weeks — that the State by this plan of a Commission proposes in general terms to invest this Commission with its powers of regulation, and its discretionary powers over railroads in the management of their prop- erty as involving the rates of freights and fares. It has been objected by many members on the floor, and with large reason, that while they concede that the Stale had the power to regulate, and the exigencies of the case are such that it is expedient for the State to exercise that power, yet that it is dangerous to put this power in the hands of a Commission of three men, who, as they say, will be in the power of the railroad com- pany, who will always be interested in regulating their own fares and freights without the dictation of the public, or the control of these Com- missioners ; that they would, if possible, get control of this Commission, so that through the Commission they will have the power of making their own rates. Now it cannot be denied that this consideration is entitled to veir serious consideration. When you have placed all the power of the State in the hands of three men, and in so important a matter as this, obviously there will be strong temptation, strong induce- ments, for these transportation companies to exercise all possible influ- ence to get the control of that Board, and through such control to dictate the action of this Commission. And it is obvious that if they should accomplish this result, that this Commission, so far from being a means of security to the people against oppression, would become an engine of oppression beyond all precedent ; because, as the power will have been placed in the hands of the Commission, and taken away from the Legislature, if, then, the railroatl Company can obtain such control, they would in fact control the whole question, though every cititen in the State be aggrieved at the manner in which they bad done it. There, I suspeot, is the real point of danger. That is the strongest objection tliat has been' urged against the system of the Commissioners. Of course on the other side it has been said, and I think with onnclusively good reason, that because tbe Legis- lature will not have the practical ability, will not be soificieDtly informed upon the matters involved in the regulation of fares and freights, for that reason the Legislature in the future will not, as in the past it has not, make any beneficial regulation. Moreover, that by reason of the flexible, changeable condition of circumstance under which the rates of fares and freight* must be established, that what might be proper on the first day of January, might be improper on the first day or July. What might be proper on one route might be improper upon another. It is, therefore, one of those matters that must be exer- cised by a Board or body having discretionary power to deal with any subject so as to have more flexibility in the application of the rule to diflerent localities. Hence the necessity of giving this power of regu- lation to a Board who may be fully informed. That is a good iifta. Then assuming that the State will regulate, and that it will do it by a Commission — I think, sir, that the other conclusion is also ineri- table, that you mast place your Commission under some renwnsibiUty. You must not put this Commission above the law, above the Legisla- ture, and above the Government, lind place ourselves unreservedly ia the handi of these men. This might be a means of oppression. It wuuld be a worse despotism than anything that has occurrctilute* itself a Court. A Commnsioner can only be impeached by a two-third vote there. That is no efficient remedy. Unless you give this power of removal to the LMislature, u proposed by the amendment now sought to be modified, you have lost til practical control over the Commission. Although they, or any one or more of its members, shall become derelict, so as to destroy its usefulness, tbe people will be practically remediless. In favor of the proposition « it stands, I suggest that to have the control of this Commission wisely ud discreetly applied, it should be under the control of the 'people in the mo8t direct and efficient manner in which it can be brought to bear. How can that bo dune? A man who is about to be removed has hit case before the Legislature, all of one house and half of the other of which have just come from the people. If a man is known to be dere- lict in his office of Commissioner, the people will know it. They will elect Senators and Assemblymen with a view to that fact. I think there is no danger of the people sending their representatives here in fiivor of removing an officer from this Commission who has performed hisdnty to the people under the Constitution. I hope, therafore, that this por- tion of^ the resolution of the gentleman from Trinity will not be adopted. I leave to other gentlemen whose propositions are attacked to defeml themselves, as I find myself unable to talk longer. Mr. HOWARD. I call for the previous question. Mb. II ale. I call for a division of the question. Mr. CAMPBELL. Mr. President: I hope the call for the previoos question will not be made. I desire to make some remarks in answerto tbe gentleman from Nevada. Mr. HOWARD. I will withdraw it. Mb. CAMPBELL. Mr. President: I did not hear the remarks of the gentleman from Nevada, Mr. Cross, but, as they Have been reported to me, I understand that they were to this eflect: that the amendment introduced by me vesterday was an inspiration from Leland Sunford; that it was gut up by him, or in his interest, and that it was introduced here in the interest of the railroad by a gentleman pretending to be in favor of curbing the power of the corporations. • Mr. CROSS. You have not been correctly informed. I am sorry that you did not hear what I said. I said that the result of the word prims facie in that amendment waa, with the rest of the amendment, to place Digitized by Google Dec. 6, 1878. OF THE CONSTITUTIONAL CONVENTION. 609 this matter where the Legislature could not regulate freighU and farea, and it placed it where, whenever a case came in Court, the oath of Leland Stanford would be more in law than the rates of freights and fares, as established by the Commission, upon this one point, whether the rates should control the price allowed to be charged. Me. CAMPBELL. Of course, if that is the remark of the gentle- man, I have been misinformed in regard to it, and have nothing further to say. But I doubt Very much whether the vote of Leland Stanford, a party interested, would be preferred to the prima facie pre- sumption of the law that the rates established are reasonable and preferred, also to the testimony of the Commissioners who would give evidence of the cause of establishing the rate, as to the basis on which it was bstablished, and as to its reasonable character. Me. HOWARD. Mr. President: I renew my call for the previous question. Messrs. Wyatt, O'Donnell, McComas, Tally, and Evey seconded the call. The motion prevailed. The PRESIDENTT The main question has been ordered. The firat question is on the amendment offered by the gentleman from Santa Clara, Mr. Herrington, to the resolution offered By the gentleman from Trinity, Mr. Tinnm. The Secretary will read. Thi SECRETARY read : Raolvtd, That the ComniittM on Corporations m rsport their action on sectiona twentjr and twenty-one u to have the CommiasloDen elected by the State at large, but selected from districts. The amendment was lost. The PRESIDENT. The question is on the resolution offered by the gentleman from Trinity. Mr. CROSS. I wish to ask a question with regard to the resolution, if it be in order. The president. The Secretary will read it first. The SECRETARY read: Xetolvtd, That Airtber inatructloni to Committee on Corporations other than Mnnldiial : That section twenty be4hiended so u to proride for the election of three Ballroad Conunlasionera by districts, at the same time, and making their terms or office four yean. Also, that the Legislature Buy remove a Commissioner by a two-third vote of all the members elected to each bouse. Mr. cross. Mr. President : I wish to ask if it be in order to offer an amendment to the resolution. The PRESIDENT. No amendment will be in order. Mb. BARBOUR. I call for the ayes and noes. Messrs. Stedman, Brown, O'Sullivan, and Gorman seconded the call for the ayes and noes. Ma. STEDMAN. I call for a division of the question. Mr. HALE. XJr. President: Is it in order to call for a division of the question? There are two distinct propositions in the resolution. Mb. TINNIN. The house has just vot«d down one of the proposi- tions, as offered by the gentleman from Santa Clara. The PRESIDENT. The resolution is divisible. Does the gentleman ask a division of the question ? Mb. hale. Yes. Mb. SIIAFTER. How is it possible, when the house has already ordered the main question to be put? The president. The main question is the resolution, and a divis- ion is called for, which is in order. Mb. SHAFTER. That would bo putting two separate questions to the body. Me. JONES. I ask for a further division of the question. There are two distinct propositions in the first part — one in regard to the election of Railroad Commissioners from districts, and the other in regard to their term of ofiice. The president. The Chair thinks the resolution not capable of any further division. Call the roll. The roll wbs called on that portion of the resolution relating to electing the Commissioners, and it was adopted by the following vote: Andrews, Ayers, Barbour, Barnes, Barry, Barton, Beerstecher, Bell, Boucher, Brown, Burt, Caples, Caaaerly, Charles, Cross, Davis, Dean, Doyle, Edgerton, Estee, Evey, Farrell, Filcher, Freud, Garvey, Glascock, 77 Gorman, Grace, Gregg, Hager, Hall, Harrison, Heiakcll, Hilborn, Holmes, Howard, Huestis, Hunter, Johnson, Joyce, Kelley, Keyes, Lampson, Larkm, Lavigne, Mansfield, McComas, McConnell, McCoy, McFarland, Miller, Moreland, Nason, Nelson, Neunaber, O'Dounell, O'Sullivan, Reddy; Reed, Reynolds, Rhodes, Ringgold, Schell, Smith, of 4th District, Smith, of San Francisco, Stedman, Stevenson, Stuart, Sweuaon, Swing, Thompson, Tinnin, Townsend, Turner, Tuttle, Vacquerel, Walker, of Marin, Waters, Wellin, Wickes, White— 82. West, NOES. Blacknier, Jones, Steele, Boggs, Kleine, Sweasey, Campbell, Laine, Teny, Crouch, Larue, Tully, Dudley, of Solano, Lewis, Van Dyke, Estey, Martin, of 2d District, Van Voorhies, Finney, McCallum, Walker, of Tuolumne, Graves, Mills, Webster, Hale, Noel, Weller, Harvey, Herold, Ohieyer, Wilson, of Tehama, Overton, Winana, Herrington, Porter, Wyatt, Hitchcock, Prouty, Mr. President— 41. Inmao, Rolfe, On that portion of the resolution relating to the removal of the Com- missioners the roll was called, and it was adopted by the following vote . AYES. Andrews, Gregg, Ohieyer, O'Sullivan, Ayers, Hager, Hall, Barbour, Overton, Barnes, Harrison, Porter, Barry, Harvey, Prouty, Barton, Heiskell, Reddy, Beersteicher, Herold, Reed, Bell, Herrington, Reynolds, Blackmer, Holmes, Ringgold, Boucher, Howard, Rolfe. Brown, Huestis, Schell, Burt, Hunter, Smith, of 4th District, Campbell, Inman, Smith, of San Francisco Caples, Johnson, Steele, Casserly, Jones, Stuart, Charles, Joyce, Sweasey, Cross, Keyes, Swenson, Crouch, Kleine, Th6mpson, Davis, Larkin, Tinnin, Dean, Larue, Townsend, Doyle, Lavigpe, Tully, Tuttle, Edgerton, Mansfield, Estee, Martin, of Alameda, Van Voorhies, Evey, McComas, Walker, of Marin, Farrell, McConnell, Webster, Filcher, McCoy, Weller, Finney, McNutt, Wellin, Freud, MiUer, West, Garvey, Moreland, Wickes, Glascock, Nason, White, Gorman, Nelson, Wilson, of Tehama, Grace, Neunaber, Wyatt, Graves, O'Donnell, NOES. Mr. President— »». Boges, Dudley, of Solano, I^mpson, Lewis, Stevenson, Terry, Estey, McCallum, Turner, Hale, McFarland, Van Dyke, Hitchcock, Mills, Walker, of Tuolumne, Kelley, Noel, Winans— 20. Laine, Rhodes, Mb. TERRY. Mr. President: I move that the Committee on Cor- porations be instructed to further amend section twenty, so as to give the Commissioners power to punish for contempt of their orders and process in the same manner, and to the same extent, as Courts of record. As the section now stands, there is no power to punish any person for contempt of that Commission. They mav summon a person. He may refuse to answer questions; he may refuse to produce papers. The Courts may say they have no power ; that the Court has no power to punish, except for contempt of its own process. It is a separate, inde- pendent tribunal of its own ; and it ought to be independent. I think this is absolutely necessary to the efficiency of the Commission. The secretary read : Resolved, That the Committee on (^rporatlona be inetructed to farther amend section twenty, so u to gire the CommlBeloners power to punish for contempt of their ordere and pivceas, in the same manner and to the same extent as Courts of record. Mr. SHAFTER. Mr. President: I hope that the committee will fol- low out its original views now. This was proposed and pointed out by three or four gentlemen, and it was declared by the Chairman of the Committee on Corporations and others that the provision was all perfect in the form in which it stood, and the committee so voted by a large majority. I trust that they will show their consistency by voting down these things. We have bad several weeks' work on it, and the Com- mittee of the Whple has got right, and there can be no mistake; and I hope that they' will not stultify themselves by voting to-day contrary to what they voted yesterday. Mr. REYNOLDS. Air. President: This is another exhibition of obstruction over again — always from the same side of the house — to any action of the friends of this measure. Whenever they undertake to per- fect it, or to make it acceptable, or to suit themselves, they are eternally met with some obstruction, proposed from the same side of the house. I hope the resolution will be adopted. ~ Digitized by' SIUC VI tut] UUUDCe Google 610 DEBATES AND PROCEEDINGS Friday, Mb. SH after. Mr. President: I want U> my % single word in regard to this obstruction. I pointed this difficulty out in a speech yes- terday, and dilated upon it So did two other gentlemen. We put the Convention and the gentleman from San Francisco in full possession of the argument, and he was too stupid to see the force and effect of it. And, now, I wish that the other side of the house would relieve itself of a little of this prejudice which refuses to listen to the voice of reason, simply because it comes from the other side of the house. Thk president. The Question is on the adoption of the resolution. The resolution was adopted. Mr. McCALLUM. I wish to offer a resolution. Thk SECRETARY read: Saoltud, That tb« CommlttM on Corporatians b* tarthtr lostnieted to so ansnd ssction twanty as to strike oat so much thrrsof >a provMas tbat tli* cbargas flxed bv the CommiMlonen iball be only prima fuels STidsues of tha oorrsctniss ot sucb charges. Mb. cross. Would the gentleman not consent to amend his resolu- tion so OS to have the words "prima facie" stricken out and the word "conclusive" inserted T Mb. McCALLUM. I think it would be better, and would have no objection to it; but I propose to submit the sole idea to the Convention that to make their fixing of rates only prims facie destroys the whole object. There is no more reason that it should be prima facie in the case of the railroad company than on a toll road by tlie Board of Super- visors. If you make it a case of prima facie evidence you end the whole matter. Nothing can be done. The point made by. the gentleman from Nevada this morning occurred to me yesterday, and I think it is conclusive. There could be no conviction under the section as it reads. Thk PRESIDENT. The hour having arrived, the committee will take a recess until 2 o'clock r. u. AFTERNOON SESSION. The Convention reassembled at two o'clock p. h.. President Hoge in the chair. Boll called, and quorum present. IN RKFKBKXCB TO BAILBOIDS. The PRESIDENT. The question is on the reaolution of the gentle- man from Alameda, Mr. McCallum. Mb. FILCHER. Mr. President: I desire to offer an amendment to the resolution of the gentleman from Alameda, Mr. McCallum. Thb secretary rea4: lUtolved, That tba Oommittaa on CorponkUona other than Manlclpal be iostractad to further amend icctlon twenty, as adoptad by the l^moilttaa of tba Wbola, by striking nut the wordi " prima facie.V as tbey occur naar tba Uat of tba section, and Injartlog instead thareuf the word " conclasiTely." Tbb PRESIDENT. The question is on the amendment. BKVABES or mi WATBB8. Mb. waters. Mr. President: It does seem to me that this is a veTy queer manner of defeating all we have done in the last month. I certainly cannot regard it as a fair way of reconsidering the action of this Convention. When you consider and view this matter in all its various motions — all these various instructions; when you consider the vote by which these motions were carried, I think you will find it a dangerous course to pursue. Now, a certain gentleman moves to instruct the com- mittee to amend this section in certain particulars. Now, wheu that motion comes up, all the opposing elements combine to carry that motion. In the first place, say there are thirty upon the floor who are opposed to regulation. They will all vote for it. Why? Because it tends to demoralize and destroy the combination made here yesterday of all the different elements who are in favor, in different ways, of regulat- ing corporations. In other words, it combines the strength of those who are opposed to that particular part of the provision. Those, together with the thirty votes against regulation, can carry it. Then other gen- tlemen who voted against this particular clause, or that clause, will move to scratch out this tning, and put in that thing, and the motions will be carried by the same combination. Consequently, the wheel takes one more revolution backward. Then another gentleman gets up and moves that the committee be further instructor to put in another thing, and these same elements will combine and defeat the action. Now, the only way to avoid a disastrous result is for each one to give up his own individual ideas. We cannot expect to carry out all our own individual ideas. We must compromise on something. We must give way at this point and that point m order to accomplish anything at all. But by this going backwards, as we have been going since ten o'clock this morning, we will by night have accomplished nothing, and the enemies will gain a complete victory over us. The minority will, by these tactics, be able to defeat the will of the majority. Now, I cannot say that I think the section is good in every particular as it stood last night — it is not alto- gether perfect — but taken in the main, it is far better than nothing, and nothing is what you are fast drifting towards. I think we had better let this thing stand. If we do anything at all, let it go to the Com- mittee on Revision, and if they cannot harmonise these different things, then let us take it up when we have thought about it more deliberately. Just think of it. Yesterday, we carried this section by a vote of eighty, and to-day, by combining these different elements against it, we are fast undoing all that we have done. I think we should rest here awhile. After we have worked a month, and finally agreed upon a plan that the majority of the Convention can indorse, we go to work the next day and refer it back to the committee to tear out this clause and the other, to put in this thing and that thing, and when we get through it will amount to nothing. Now, I think there ought to be some mutual con- cessions made here, We have already made a great many concessions, but the work must not be overturned now. BBMABKS or MB. riLCHKK. Mb. FILCHER. Mr. President: I must say that I do not agree with the gentleman who has preceded me. It does seem to me tbat this Convention should have the right and the privilege of correcting what may seem to be an error in its judgment ; if it has not, it ought to hare. We acted in somewhat of a hurry yesterday in reference to some of these amendments that were adopted to the section submitted as a lub- stitute by the Committee on Corporations. But in reading the section and amendments as an entirety, we find it more or lees unsatisfactory In certain particulars, and I want to know, sir, whether it is not right, whenever we find that we have made a mistake, to stop and correct it. Wo are not stultifying ourselves in any manner when we do it. Now, in reference to the amendment or resolution sent up bv the gen- tleman from Alameda, I wish to sa^ this : I am opposed to the section containing the words "prima facie." The argument, as far as the Commissioners were concerned, was in favor of leaving the matter to the Commissioners. When it was suggested here that even the Legii. lature should have revisory power over them, it was voted down. 'Hili maiming the proposition to allow the Legislature to behead the Com- missioners by a two-thirds vole was adopted. Now, it seems to me, st the section reads, allowing these rates to appear as prima facie correct, tbat iustead of leaving this matter entirely to the Commissioners, we are merely giving them inquisitorial powers, and they can do notbiag without appealing to the Courts. Now, it becomes a ouestion whether you will give the Commissioners this power or not Will you give them conclusive power, as the Legislature has, or will you give them merely inqulsitorlai power, that is the question? As it stands here, the Com- missioners are to establish rates. These rates are.taken into Court and declared prima facie just and reasonable. The railroad and other cor- porations are presumed to own two thirds of the Courts of this State. Through their influence the Judges are elected to place, who favor their cause. The case comes into Court, and they have to show to the Court that these rates are not just and reasonable. The judgment of the Commissioners, whose power we have established for tbat particular purpose — to establish these rates — must go to the wall, and the judgment of the Court takes precedence^ Now, sir, it appears to me that diis is the situation. If I am wrong, I am open to oonrlc- tion. It is with a viewof reaching the conclusion we desire to reach, and of giving to these Commissioners the power we desire and intend to give them, tbat of regulating freights and fares, tbat I make these suggestions. It is said tbat if these railroad corporations can secure the election of these Judges, they can also secure the election of Commissioners. I will admit it; out, sir, on that de{)ends the whole weight of this previeian. If the corporations can control the politics of Califomia, then we are gone. If the people cannot elect competent and honest men for these places, then we are gone. If the people are in favor of regulating these corporations, let them combine and vote for Commissioners whom they know they can trust to deal fairly by all parties. There is a higher motive than any mere political consideration. But, sir, when we do elect competent and faithful Commissioners, we do not want to find that we have made a fatal mistake, one which will render them powerless te accomplish any good. I claim that these words Will cripple the section. They ought to be stricken out, and the word "conclusively " inserted. SrBBCB or MB. CAVrBBLL. Mb. CAMPBELL. Mr. President: I had supposed tbat soifle of these ^ntlemen who are so much shocked at the words "prima fade," would in the course of the discussion in the Committee of the Whole, have pn- sented their objections, and done something towards sustaining them by argument, not by mere declamation. Now, these words were put in that amendment advisedly and cor- rectly. I think I stated pretty freely on a former occasion, perhsps on more than one occasion, that the object of these words was to proTide that in all controversies of any kind whatsoever, there should be s pre- sumption in favor of the Commissioners, which presumption would hsys to be overthrown; tbat, for instance, when the question comes up ia regard to theae rates, if it should come up in Court, the presumption ought to be on the side of the people as against the corporations. Kow, let us look at what the course of proceeding would be in a law suit under that provision as it stands now. The party injured by any oppression on the part of the corporations, by charging bim rates In excess of those fixed by the Commissioners, brings a suit against the railroad corpon- tion, setting forth in his complaint tbat on a certain day he traffsported by railroad from one point to another certain goods, and tbat the charge per ton fixed by the Commissioners was, say, $10; that the nllroM company charged bim in excess of that and received from bim the som of $&, making $li in all; that would be his complaint Now, wbst would be the answer of the corporation? It could not deny that the rates had been fixed by the Commissioners, because that would be a matter of record which no man would underUke to deny, or if he did, it would avail nothing. But the corporation would set up in its answer that the rates fixed by the Commissioners were unreasonable rates, that they were below living rates, and that it was impossible for the corpors- tion to carry on business because of the unjust rates. It would have to make such an answer. Then upon the trial the plaintiff would not have to introduce any evidence whatever. It would stand admitted that these were the rates fixed by the Commissioners, and the law declares them just and reasonable; and it would then devolve upon the corporation to show affirmatively, by evidence, that the rates were unreasonable; and then the plaintiff would have the privilege of reply- ing to that evidence by introducing testimony to show that .the rates were just and reasonable; in other words he would be entitled to intro- duce testimony in support of the legal presumption. I presume there is no lawyer who will deny the fairness of that proposition. That being the case, the question simply comes to this; whftber the Commiasioneis Digitized by Google Dec. 6, 1878. OF THE CONSTITUTIONAL CONVENTION. 611 are to have absolute power, against which there is no restraint anywhere; whether they are to De regarded as absolutely infallible, and whatever they do, wliether just or unjust, is to be final and absolute, without remedy before any tribunal upon earth. That is now the question. Or whether, when they act unjustly towards the corporations, the latter shall be at liberty to show before a Court or a jury that the act of the Commissioners was unjust. The Commissioners can be there as competent witnesses to testify in relation to the cause of their action, and their reasons for it. They could show, having access — as is provided for here — having access to the books of receipts and expenditures of the corporations, couclnsivelv from those very books that tbeir action was right and reasonable, anil that the rates established were not unjust rates. Then the question would be brought before the j ury. Now, I am not going to assume, as the gentleman who last addressed the Convention seemed to assume, that all the Courts are going to be corrupt; that the railroad corporations are going to own them abso- lutely, in fee^simple; or that they are going to own even two thirds of them, as the gentleman says. Wheneverthe time comes that two thirds of the Courts of the country are owned by any set of corporations on earth, it is time then to abandon republican institutions. I go upon no guch violent assumption as that. Then, too, yon must assume that juries will be equally corrupt, for you can always have these cases tried before a jury. The right or trial by jury is secured in the bill of rights, not cut out as one gentleman seems to infer. It is secured, and under the present condition of things they would have to corrupt three mem- bers of the jury in order to prevent a veniict, so that the opportunities for corruption are infinitely reduced. There is another provision, also, which would tend to prevent the railroad companies from disputing the rates fixed by the Commissioners, except in very clear cases, and that is this: that in all cases where com- Slaint is made upon that ground, the party, if successful, may, in the iscretion of the jury, recover exemplary damages. If he is damaged to the amount of five dollars, he may recover five or ten thousand dollars. There is no limit fixed to the discretion of the jury. The jurors come direct Trom the people, and surely there is no danger of tbeir being in the interest of the corporations. Now, while I am ready and willing to put any reasonable check upon the corpo- rations, I am not willing to go to the length of creatmg a tribunal of three men, a majority of whom, by tbeir action, can absolutely and without possible appeal to any human tribunal, in effect confiscate property to the amount of one hundred and fifty or two hundred millions; where, if at any time two of these Commissioners shall perpetrate an act that is absolutely unjust, there shall be no check, no appeal to any Court or tribunal on earth, and the only check which there will be upon their proceedings will be simply that the Legislature, when it meets, may, by a two-thirds vote, remove the Commissioners; that is the only thing in the nature of a check sug- gested here. On the other hand, we have the fact that when these rates are fixed by the Commissioners, the legal presumption is in favor of their correctness, and the plaintiff does not have to present any evidence, the burden of showing that the rates so fixed are not just and reason- able is thrown on the other side, and the plaintiff then has the privi- lege of rebutting, and, in addition to actual damages, the jury may •ward exemplary damages. Now, what rational man, what roan not absolutely blinded by passion and prejudice, can wish for any stronger guarantees thau these? I do submit to this Convention, that, while it IS our duty here to take every proper method, and to go as far as we can, within the bounds of reason, to restrain the overshadowing power of th&ie corporations, and the influence which they have exercised, at the same time, in so doing we must not lose sight of all principles of right and justice. While we are strict we must be just in our legislation; and whatever the feeling may be to-day towards corporations, I under- take to say that the State will not sanction any measure the result of which is to establish a tribunal in our midst with absolute, arbitrary, and unchecked powers. It has been likened to the case of the Board of Supervisors establishing rates of toll. There is a difference ; in the first place, there is a body regularly organized by law, and constantly chang- ing from time to time, and the power which it wields is a mere trine compared with those it is proposed to confer upon these Railroad Commiasioners. Fixing the rate of toll on ferries and toll roads is a mat- ter of some importance to the individnal, it is true; but it is a mere trifling matter as compared with the power of these three men, who have power over every railroad, every transportation company in the State ; who can declare what the income of every railroad or transportation company shall be which are organized or doing business under the laws of this State. I trust, Mr. President, that these instructions will not be given to the committee. I know and feel that they are vital in their effects, and that they will accomplish no good results. It would tend. In my opinion, to defeat the very object which we have in view, to control these corporations; and I do hope this Convention will give no such instructions to the committee. SPEECH or HB. TRBBT. Mb. terry. Mr. President : I was not in favor of a Constitutional Commission, for the reason that I believed it was placing too much power in the hands of three men ; but inasmuch as this Convention has decided that this Commission shall be formed for the purpose of regulating freights and fares, I submit to the will of the majority, and I aow desire that the means to secure the end shall be made effectual ; and I do think that with the amendment offered by the gentleman from Alameda, Mr. Campbell, the Commission will amount to nothing at all, and that we might just as well blot out the whole section as to retain the words " prima facie." The gentleman says that the onus will be upon the railroad com- panies to establish the fact that the charges are unreasonable. That is true; but what does that moan? It only means that in the first instance the plaintiff need not introduce anv testimony to show that the rates are reasonable and just. The plalntifr needs only to prove in the first instance that the charges fixed by the Railroad Commissioners were ten dollars, and those exacted by the company were fifteen dollars. But when evidence is introduced upon the part of the railroad companies to show the unreasonableness and injustice of the charges, then the plaintiff will be called upon to introduce evidence in rebuttal. The case will then depend, as usual, upon the weight of the testimony upon the one sid# or the other. " Prima facie" does not then weigh against the sworn testimony, but the Court will be guided by the sworn testi- mony upon the one side or the other as to whether the rates established by the Commissioners are just and reasonable. The case will, after all, be determined by the evidence. So that the effect of this section, as it now stands, is not to make the rates of freights and fares fixed by these Commissioners the legal and lawful rates, but-the effect will be to make the Court or the jury in every case the arbiters — make them fix the rates of freights and fares in every instance. I say that the words are of no use in this section. You might as well say that the railroad and transportation companies shall charge reasonable rates for freights and fares, and shall be subject to jieualties for charging unreasonable rates; and then a man who had been charged fifteen dollars for what he sup- posed could be done for ten dollars, could bring an action and allege that the charge was an unreasonable one, and then the jury would determine it. It would do just as much good. The whole benefit sought to be derived from this Commission would be destroyed or rendered nugatory by the retention of these words. The fact of the business is it would amount to just this: The Commissioners would recommend a scale of charges, and the railroad companies would adopt just what suits them. The question would not be determined by one tribunal, for there is no one tribunal who could determine these questions. In every single case the Court or the jury summoned to try the case would determine whether that particular charge, for a particu- lar distance, was reasonable or not. We would have no precedent estab- lished, no system established, for if the Commissioners established a rate it maybe overcome by the verdict of a jury, or the judgment of a Court. Now, it is proposed, as far as this Commission is concerned, to delegate to them a portion of the powers of the Legislature. It is proposed to say that, as far as fixing the charges for the transportation of passengers and freight is concerned, the legislative power is vested in these Commis- sioners. The question here is whether it should be left to the Commis- sioners to determine whether they are reasonable or not. Shall the edicts of this Commission have the same force and effect as a statute enacted by the Legislature? Now, the gentleman says the duties performed by the Boards of Supervisors in fixing rates of toll on ferries and bridges are not so great OS the duties of these Commissioners; that the amount of property is not so great. Tliat is true, but the principle is the same; exactly the same. Here is a Board, constituted by law, and the members elected by the people, who are required periodically to say how much toll shall be col- lected upon a certain roaa, or upon a certain bridge or ferry. Who ever heard of an action being broueht against them on the ground that these rates are unjust or unreasonable? Just ss well might a criminal, when called up for sentence, after having been convicted, say the punishment was unreasonable, and ask to have the question left to the jury. If you desire — and it does seem to be the desire of the majority — to limit the power of these Commissioners in fixing rates to be charged, then the same force and effect must be given to their action as are given to the Acts of the Legislature of the State, passed in accordance with the Con- stitution. Unless that is done, you might as well have no Commis- sioners. Now, gentlemen, I hope that these words, "prima facie," will be stricken'out, and that the rates of freights and fares fixed by these Com- missioners shall be conclusively just and reasonable; that the rates fixed by them shall be the rates which the companies shall charge, and no more. If there is any unreasonableness in the charge, then the objec- tions must be made to the Commissioners themselves, who are presumed to be honest men, and just to the corporations as well as to the people; and they are the ones to be convlncea that these charges are not reason- able. If they are so convinced they can alter them, just as the Legisla- ture can repeal thestatute. But it will never do to leave these word^ in there unless you wish this whole scheme to amount to nothing. It will be just so much money thrown away, from which the people will reap no good. It will not do to put the power in the hands of a Justice of the Peace to say whether It shall have any force and effect. I hope, therefore, that the motion to instruct the committee to strike out these words will prevail. SPEECH or MR. CBOSS. Me. cross. Mr. President: I would not trouble the Convention again were it not that I see that there is a misunderstanding regarding the matters presented by the gentleman from Alameda, Mr. Campbell. It may not be out of place to review the action of this Convention in relation to this most important subject. The men who in this Conven- tion favored the regulation of freights and fares early in the session came torward with the proposition that the State has the right to regulate the rates of freights and fares to be charged by the common carriers. That proposition was opposed, and eminent lawyers on the floor of this Con- vention said the State had nothing to do with the matter, and the eminent gentlemen who opposed us used the same terms which the gen- tleman from Alameda, Mr. Campbell, used towards us in his last speech; that when the State undertakes to exercise that right, it under- takes to control, and undertakes to exercise the right to confiscate one hundred and fifty millions of property. But I notice, sir, that these same lawyers have uniformly opposed the remedies which we are try- ing to establish; or, if (hey have not opposed themr4''i^ ^ destroy their efficiency by baekbitin,. ^^^.^^^^^ ^^ GOOglC 612 DEBATES AND PROCEEDINGS Friday, Now, the proposition was that the State had the right to regulate the freights and fares. The next proposition that was presented for our con- sideration was, in what manner can this best be accomplished, and the answer of some was, by establishing maximum rates to be charged by common carriers. We'came to an understanding on that Thenextques- tioD was, what arm of the government shall we authorize to grapple with this subject of freights and fares; and the gentlemen who talk about the danger of confiscating one hundred and fifty millions of property, said the Legislature must exercise this power. Other gentlemen, among them the Committee on Corporations, said that power should be ^ercised by a Commission, to be elected for that special purpose. That this Com- mission should exercise that power. What power? Why, the power of establishing maximum rates of freights and fares to be charged by com- mon carriers. We have fought over this for the past six weeks, and finally we have arrived at this conclusion, by a large majority of this Convention. The conclusion is that this matter could not be safely trusted to the Legislature, and why ? Because the Legislature, during the short period allotted for its sessions, cannot gather the information necessary to enable them to act intelligently upon the question as to what should be the maximum rate of freights and fares. And when we had decided that it was no^poesible for the Legislature to gather that information, it became necessary to establish some "branch of gov- ernment, some authority, some body of men, who could pither that information and act upon it. We then agreed, by a strong majority of this Convention, that the matter must be submitted to the Commis- sioners, and that the Commisdioners should establish the rates of freights end fares. Now, having an understanding on that proposition, we have got the matter down to this point, that the Commission, having in its hands the power to gain the infornyttion necessary, and having in its hands the power neceJsary to enable it to fix the rates of freights and fares, the next question was how the Commission should be constituted; and then came forward the gentlemen who were so afraid of confiscating this one hundred and fMy millions of property, and said: "Let the Governor appoint them ; it would not do to have them elected by the people." And we voted upon that proposition ; and again we won a victory for the people. ■ -Let me say to these men who are so afraid of the Railroad Commis- sioners, that railroad and other transportation companies need not fear the people; but they must come and rest their heads where you and I rest our beads — upon the bosom of public justice. And we cannot rest there; when we cannot feel safe there, then, sir, we have no business in a republic I have no fears about these Railroad Commissioners acting unjustly. Past experience has shown that all such ofljcers are inclined to be too liberal to the railroad companies. And whatever is said about the Courts, let me say that the Courts have protected the rights of the people ; they have rendered verdicts in favor of the people against these strong corporations; they have stood up manfully, but they cannot stand alone ; they must have the law to help them. Now, having reached a point where we agreed to confer upon these Commissioners legislative powers to fix the rates of freights and fares, then what more do we ask? We ask that when those rates have been established by this tribunal, that they shall have the same force and effect as a legislative enactment. If the Legislature passes a law that the rate of freight between certain points shall be three cents per ton per mile, would the railroad company be allowed to come into Court and set up that the law was unreasonable? That the rates eslab- blished were too low ? Not a *it of it. There is the law which a republican government, actini^ as a republican government always will act, in the interest of public justice, has passed, establishing these rates, and having been so established, if they are not binding they are nothing. They would amount to absolutely nothing. Now, you leave in these words " prima facie," and the men who Tiave been talking about the danger of confiscating one hundred and filly millions of property will vote for it. Strike out these words, and you give to the decisions of this Commission the same force and effect as any other legislative enactment; and these same gentlemen will fall down on the proposition. Let us act in this matter intelligently. Let no man in this Convention say that he will vote in favor of retaining these words without understanding what he is doing, I shall come out plainly as to what the effect of these words will be, and if I misinterpret, let any lawyer on the floor correct me. To-day, if the railroad company charges unreasonable rates, you are without a remedy in the Courts, and for this reason, that all the infor- mation necessary to prove that these rates are unreasonable is in the hands of one party— in the hands of the railroad company; and although we know to a moral certainty that the rates are grossly unjust and unreasonable, yet we have no way of proving it in the Courts, because we cannot get at the information. When a case comes into Court, two thousand, or three thousand, or six thousand, or twelve thou- sand employes of the railroad company can be called in to testify as to whether they believe these rates to be reasonable or not. Now, the case under this section comes into Court; here are three men, who have received the confidence of the people of the State, and they have spoken and said that these rates established by them are just and reasonable. They have spoken, and it is the voice of the people; they have been elected by the people, and they have spoken and said what the rates shall be. The case comes into Court, and the question of law is submit- ted— and that question of law is so nearly a question of fact that it must go to a jury to determine as to whether the rates so established are rea- sonable or not. In ever^ given case we must take the judgment of twelve men who ordinarily know nothing about these matters, instead of the judgment of the Commissioners, who have investigated the whole subject, snn whose decisions are based upon actual information. Now, the other day the gentleman from Sacramento, Mr. Edgerton, in speaking upon this question, made an argument which has influenred to some extent the minds of many men, with regard to a decision in the State of Illinois. Let roe refer to that, and let the matter be under- stood, because members ma^ be influenced by that decision. I know something about it, being indirectly connected with the case at one time. Mr. Edgerton gave us the impression that the rates of freights and fares must be merely prima facie Mb. EDGERTON. I gave no impression about it — I read the case. I placed no construction upon it; I read the case itself. Mr. cross. The case left a false impression upon the minds of many in this Convention. Now, let us see what that oase really is. The Cou8titutioration8 and companies, and they shall keep their accounts according to that system. Any railroad corporationi or transportation company which shall fail or refuse to conform to such rates as shall be established b^ said Commissioners, or shall charge rates in excess thereof, or shall fail to make their accounts correspond with the system prescribed by the Commission, shall be fined not exceeding twenty thousand dollars for each offense ; and any officer, agent, or employ^ of any such corporation or company, who shall demand or receive rates in excess thereof,or who sliall in any manner violate the provisions of this section, shall be fined not exceeding five thousand dollars, or imprisoned in the County Jail not exceeding one year. In all controversies, civil or criminal, the rates of fares and freights established by said Commissioners shall be deemed prima facie just and reasonable. In any action against any such corporation or company, for damages sustained by charging exces- sive rates, the plaintiff, in addition to the actual damage, may, in the discretion of the Judge or jury, recover exemplary damages. The Legis- lature may, in addition to any penalties herein prescribed, enforce this article, by forfeiture or otherwise, and may confer such further powers on the Commissioners as shall be necessary to enable them to perform the duties enjoined upon them in this and the foregoing sections. Mr. President, I now ask the Clerk to read the amendment which I offer, and then the amendment offered by the gentleman from Placer. Th« SECRETARY read : " By Mr. McCallum : " Jictolvtd, That the Committet od Corpontioni b« further inatructed to so amend section twenty u to etrike oat . LINDOW. Mr. President: I am really very glad that it turned out this way. I have watched this thing from the very beginning, expecting that it would turn out just this way. The only thing that makes me glad that this thing has turned out this way, is because these gentlemen think thoy know everything. They have robbed the pe(mle of the State of a great deal of time ; they have robbed the Slate of Cal- ifomia out of all this money, and, now they have got it completed, it amounts to nothing. They got up here and offered amendments, and more amendments, which were maae to hurt the people, and at the same time the Workingmen stood imd laughed at them. Kow,about this sec- tion for Commissioners, I ne^^r vote in favor of that, because I have got no faith in Commissioners. I think it is better to leave it to the Legis- lature. If they don't want to leave it to two thirds of the Legislature, then leave it to these three Commissioners. It is a nice fat job for any man. Mr. Compbell's amendment I vote for, and other amendments thrown in. But I see it would not fit. It won't make nothing at all. I am glad it turned out for the people that way. It shows that it was the Workingmen's party that has all the best men on this floor. But I am glad it has turned out this way. Now, let them fix it up again. SPKKCB or MK. HOWARD. Mr. HOWARD, of Ik)s Angeles. Mr. President: I think my friend from Sacramento has not taken the trouble to analyze this provision. Suppose he should occupy the position of Judge of the Supreme Court, and we should pass a law here saying that his decrees should be prima facie evidence of the correctness of the decision. I think he would cry out against it as he has against this provision here. Now, sir, I am in favor of strikitig out the words " prima facie." They are not necessary, "and ought not to be there. Because, if the Commissioners can decide, for instance, that five cents per ton per mile is the rate to be charged, then that decision is conclusive, unless we take the breath all out of it by saying that it shall be only prima facie. It is just as conclusive as a decision of the Supremo Court of the State, or any other Court; and the gentleman is mistaken when he soys that no such Commission, armed with such powers, can be found in the world. The Act of the British Parliament, to which I have before referred, contains precisely this pro- vision, omitting the words prima facie. It gives the whole power to the Commissioner8,and whatever they decide is conclusive — just as conclusive as the decision of the Supreme Court of the United States. What would be the sense in saying that the decisions of our Courts should be prima facie just and right? There would be no sense in it at all. What would be the character of such a Court? What use would it be? What good would it do? "The argument of the gentleman amounts to nothing at all. The idea Is simply ridiculous. If you are going to give jurisdic- tion to the Commissioners, give them some authority; let their decisions be conclusive. But if you make their decisions only prima facie, then they will amount to nothing, and every time there is a violation of their orders, the question will hare to be tried in the Courts, in oider to deter- mine whether the rates established are really just and reasonable. Y^ou might just as well strike out the entire section. You might just as well abandon the idea as to leave these words in there, for no (^>od will be accomplished by it. Mr. waters. Mr. President: Is an amendment in order at this time? Tbe president. No, sir, there is an amendment to an amendment pending. BFKCH OF MR. WATRRS. Mr. waters. Mr. President: Before this matter is voted apon, I wish to bring it down to what I consider the true merit of the propo- sition. The object seems to be here to give these Commissioners al^lute power. Now, I wish to impress upon the minds of the members here that we are giving tbem absolute power over the people, as well as abso- lute power over the corporations. I wish you to consider that point What are you doing? You are turning over the people of this State to this Board of three men. Don't flatter yourselves that you are merely turning the corporations over to tbe Commissioners — you are turning the entire State over to these three men — to their unlimited eontroL Now, if I could get an opportunity I would present the question fairly and squarely, by an amendment to the eflect that tbe action of these Commissioners shall be only prima facie as against the people, and upon that I want to call tbe ayes and noes. I want to find out how many men will vote to make tbe action of this Board conclusive as ag&inatthe people. I want to find out bow many delegates will vote to do it. I don't think there will be many. You are carried away with this idea that this Commission is going to control the corporations alone. How will it be if the Commission establishes high and exorbitant rates of freights and fares? Will it not be conclusive as against the people? It will be binding upon the people as well as upon the corporations. Now, will you do this? Are you prepared to vote them unlimited power? I don't believe you will do it, if vou are called upon to vote squarely upon that amendment After the first amendment is disposed of, I shall offer the following: Ketolred, lastnict Committee on Corpomtlnns to prnvida that the rates flxcd ibtn not t>« conctoftlvs against the people, hat prima (kcle only at sgrninat the people. Now, that brings the question (airlv before tbe ConTention. I want to see how many members are prepareeoplc to be the judge. I am not prepared to say that everytbin; the Committee on Corporations does is right; I do not say that ev«y- thing I do is right ; but gentlemen should stand up and vote, not upon the character of the committee recommending it, but upon the mentor demerit of the measure itself. The provision itself is not rendered worthless because I am not worthy of his consideration. Mr. CAMPBELL. I haven't said anything of the kind. I alwsys entertained a high respect for the gentleman. I said I understood too to say you were not opposed to my amendment; I understood joa to say that it embodied what you thought good; that is, the previous amendment which I had prepared, and which has not been introduced. As far as the other amendment is concerned, I understood the gentle- man not to dissent from it, but rather as being favorable to it. I may have misunderstood him, but that was my understanding. Mb. ESTEE. As far as I am concerned, while I have a great desire to maintain the confidence and respect of every gentleman on this floor, and of every good citizen in this State, and of the people generally, yet I propose to act as my judgment dictates upon all matters brought before me, and if it does not meet the views of other gentlemen, I am sorry for it. If other gentlemen present amendmenta and propositions which have merit, they should be adopted. As far as talking upon the one side and then upon the other, blowing hot and blowing cold, I challenge the history of the debates upon thi» floor, and the records of the cSmmittee on Corporations, if the com- mittee have not uniformly stood by its report, until it was shown br overwhelming argument that something better had been presented. Now, Mr. Chairman, let these motions be passed or rejected, according to their merits. I confess, sir, that the report of the committee has neces- sarily taken up much time. Of course, our committee has been sub- jected to criticism, both here and elsewhere over the State. I eonfesi that some of these criticisms are probably merited. We are only homan. But so far as the action of the committee and its members are concerned, 1 challenge the truth of history that we tried to do right ; but we may have been wrong. But that does not destroy the merits of our repM* as an entirety. If there is anything of good in the report, vote for it If there is anything wrong in it, cut it out I have heard a great deal about the report of the Committee on Corporations. I do not challengt the right of gentlemen on this floor to oppose it if they deem it wna* I have not impugned the motives of the genUeiqan from Aliuueda. I Digitized by Coogle .Ab^ Dec. 6, 1878. OF THE CONSTITUTIONAL CONVENTION. 617 have no doubt he has acted honestly and conacienliously in the matter. I have no reason to impugn the motives of any of the gentlemen who have argued upon the other side. But the committee, and its Chairman, have, day after day, and hour after hour, been the subject of criticism. The report haa been attacked on all sides. Kow, I say, if there are good pnnciples embodied in that report, they deserve candid consider- ation. If tnere is anything wrong, it ought to be eliminated, and the obmmittee has stood willing and ready at all times to modify the report when it was shown that the provisions were not right. Now, sir, I would not have said this much; I would not have spoken thus earn- estly upon thi^ subject, had it not been thrown up to us day after day, and week after week, that the Committee on Corporations was doing this thing and that thing; that we had taken up the time of this Con- vention uselessly; that we were proposing to take up still more time, and all that sort of thing. Gentlemen of the Convention, if this subject is not worthy of the time given to it, then it ought to be followed to ite fnve. This is a grave and important question. It is of such grave importance as to demand all the time that is necessary for its careful consideration, and I consider the time well spent. THK FBEVIODS QCESTIOR. Mr. SMITH, of Santa Clara. Mr. Chairman : I now move the previous question. The previous question was seconded by Messrs. White, Stedroan, Wyatt, and Evey. THE PRESIDEKT. The question is. Shall the main question be now put? The motion prevailed. The PRESfDENT. The first question is on the resolution of the gentlemen from Placer, Mr. Filcher, as an amendment to the resolution offered by the gentleman from Alameda, Mr. McCallum. The Secretary will read. The SECRETARY read : Resolved^ That the Committee on Corporations other than Mnalcipal be Instructed to further amend section twenty, adopted by the Commiltee of the Whole, by itrlklng out the words "prima facie," as they occur near the last of the section, and Inserting instead thereof the word "concluslTely." Ml. McOALLUM.- I ask that the other resolution be read. The PRESIDENT. The Secretary will read the resolution. The SECRETARY read : J2eso(M(2, That the Committee on Corporaiions be further instructed to so amend section twenty as to strilie out so much thereof as provides that thecliargee fixed by the OommiasioDers shall be only prima facie eridence of the correctoeei of such charges. The PRESIDENT. The question is on the adoption of the resolution offered by the gentleman from Placer, Mr. Filcher. It was adopted. Mb. WATERS. Mr. President : I wish to offer a resolution. The PRESIDENT. It is not in order under the previous question. The question is on the resolution of the gentleman from Alameda, Mr. McCallum, as amended. Adopted. Mb. WATERS. I now offer my resolution. The SECRETARY read: Baotetd, Instmct Committee on Corporations to provide that the rates fixed shall not b« oonclusivo against the people, but prima facie only as agaiust the people. The PRESIDENT. The question is on the adoption of the resolution. Mb. waters. Mr. President: I want to know whether this Con- vention intends to turn over the people of this State, with their hands boutid, to this Board of three Railroad Commissioners. On that resolu- tion I demand the ayes and noes, if I can get a second. SPEECH or KB. HIOEB.' Mb. HAGER. Mr. President: This thing is in that condition now where the Committee on Corporations should have unlimited power. We cannot undertake to instruct them by piecemeal. Why not give them power to further revise it, and make an additional report? We are »11 satisfied that in the heat and hurry of debate, mistakes have been made. I voted for the Campbell amendment, but I am satisfied now that the committee erred. The section, as it now stands, says, in other words, that in every controversy that arises, every dispute, they may find thus and so. But in any action, civil orcriminal,the rate of freights and fares established by the Commissioners shall be considered prima facie reasonable and just. That is, the presumption is that they are reasonable and just. But that presumption may he controverted at any time before a jury,^and the question as to whether the corporations are to obey the mandntes of the Commissioners must be adjudicated. I believe, sir, that it is the sentiment of this Convention that there shall be a Railroad Commission. That has been decided. That a Rail- road Commission should be elected by the people; that is decided. Now, what powers shall they have, and how shall they be enforced? are the questions that remain. I had a proposition which I thought would cover the case, but I did not offer it to the Convention because there were so many that had propositions. I accepted the amendment of the gentleman from Alameda, upon the recommendation of General How- ard, without criticising them as I ought to have done. But, as I stated before, it is impossible to frame a Constitution in a Committee of the Whole. We cannot always know what we are voting for. It is impos- sible. Things which we voted for one day we may regret the next, I am satisfied that this provision is wrong, and that it would destroy the usefulness of the Commission. It would defeat the very purpose we have had in view in creating this Commission. If that is to be tue pur- rse, let it be understood ; if not, let it be proclaimed by the vote here, hope we shall arrive at some point where the precise will of the majority can be aaoertained. And when we have once ascertained it, 78 let us stick to it. I offer the following amendment, to be added to the instructions already given : " For general revision and further report." Mb. ANDREWS, '^r. President: I think the amendment of the gentleman from San Francisco entirely uncalled for. The first instruc- tion given to the committee says that it shall generally harmonize sec- tion twenty, in accordance with the views of the Committee of the Whole, and that it is substantially what is contained in the amend- ment of the gentleman from San Francisco. Mb. HOWARD, of Ixh Angeles. I am opposed to the amendment offered by my friend from San Francisco, Mcause I do not want the whole subject brought back for another three weeks debate. I would like to see this thing closed at some time during the present century. Mr. UAGER. My proposition is to stop these special instructions by giving the committee ^neral powers. Mb. HOWARD, of Los Angeles. I do not want the committee to have general powers. As to the fact that the gentleman voted for Judge Campbell's amendment on my recommendation, I shall certainly demurtothat. I think he informed us here that he had been seven years on the bench, and he ought to be able to judge for himself. Mb. HAGER. I do not wish to misrepresent the gentleman. I understood him to say that he thought the aodition of a portion of Judge Campbell's amendment would he satisfactory. Ma. HOWARD, of Loa Angeles. So I did think. What I object to, is for a judicial officer in this Convention to throw the responsibility of his mistakes on me. I do not cast any censure upon the gentleman from Alameda. If I did not notice the objectionable clause, that was my fault and not his. Now, while I am in favor of holding to the pen- alties of the gentleman from Alameda, I am in favor of striking out the words prima facie. As to the amendment offered by the gentleman from San Bernardino, Mr. Waters, I am utterly opposed to it, because it would be a burning disgrace if we would not extend the same justice to the railroad companies that we extend to anybody else. In my opinion, it would be simply monstrous. Let us do justice to both sides. That is what lam trying to do. I do not want to say to the railroad companies, when they come into Court, you shall not have equal justice with the people. Let both parties stand equal before the law, and let them be dealt with impartially. srsECH or us. smith. Mb. smith, of Fourth District. Mr. President: My position to-day seems to be in conflict with my position yesterday, and I think I have a right to explain my position. I was in favor of the Campbell amend- ment, with a mental reservation in one particular, and that particular is in regard to the words prima facie, which has already been discussed here to-day. It appeared to me though, when I first saw that provis- ion, that it would be a good thing to place that matter in the Courts ; but after more mature consideration it seems to me better to leave it as the committee has left it. Now, there was one objection to that, it seems to me. The Commissioners had power to fix and establish rates of freights and fares. The schedule they should prepare and establish would be the law of the land — the highest law of the land. No one could dispute it — no one ought to dispute it Now, there has been a great deal said about what would be reasonable. Their power, great as it is, would be restricted to what would be reasonable. 1 do not oelieve there is a lawyer on this floor, however distinguished in his profession, who will say that the railroad company, or any other company, have any right to charge anything more than reasonable rates. Then again, the people would not have the right to exact anything more than reasonable rates; aud if this constitutional provision be to allow these Commissioners to establish rates that will be unreasonable rates— I mean by that, taking away any reasonable and just profits, it would be in conflict with the constitutional provision that private property shall not be taken without just compensation. Now, suppose the Railroad Commissioners establish rales that would be an extortion upon the railroad companies — take their private property without just compensation — that is, take their reasonable earnings, personal earn- ings, then the law will step in — the higher law of compensation — and say that the schedule has no efl'ect whatever. In that respect the railroad company would have a protection. They could go into the Courts and say, it is taking our private properly, and the schedule would be declared null and void, and there would be no schedule. But where are the people to be protected? Suppose the Commissioners should fix the rates too high. Then the principle provided for in the amendment of Mr. Waters, or something like it, would be necessary; and that is all the objections I have to the report of the committee — that there is no prfitection on the side of the people in case these Com- missioners, belonging to the railroad company, should establish the rata of freights and fares too high. Now, there may be objections to both these matters— that there is supposed to be too much latitude. I think this prima facie will (^ive still more latitude. But I want it brought down strictly to the point, that while these Commissioners should have full power, yet, having that full power, let the people be protected as well as the railroad companies. Therefore, I shall favor the report of the committee, with some such reservation as that introduced by Mr. Waters. Now, I have no sympathy with these alarmists. The tendency of all these things is to divide the friends of anti-railroad measures. I am inclined to point to the gentleman from Nevada, Mr. Cross, as an alarmist here. This is the second time he has done it. Mb. CROSS. I won't do it any more. [Laughter.] Mb. smith. The gentleman from San Francisco, Mr. Estee, Chair- man of the Committee on Corporations, I think has shown by his endeavors here that he is a friend to anti-railroad measures. Mr. TINNIN. Mr. President : 1 rise to a point of order. The PRESIDENT. The gentleman will state his point of order. '3'e 618 DEBATES AND PROCEEDINGS Satuedat, Mb. TINKIN. The gentleman has no right to discuM the character! of the members of this body. Tbk president. The point is well Ukea. Mb. smith. I was merely calling attention to these matters, to show that it has a tendency to delay business. I think it is a matter that has been noticed in this Contention, and if we were to call attention to it oflener we would get along with our business much better. Mow, I Toted yesterday for the Cam]>bell amendment, because I thought there was a great deal cf good in it. I voted in favor of taking out these words, because I think they ought not to be in there. BKMABKS or MB. LIBKIR. Ms. LARKIK. I am certainly opposed to the very remarkable propo- sition offered by Senator Hager, to give this committee full power to revise the work submitted to them oy these resolutions. I would be willing to give them power to so revise sections twenty and twenty-one as to correspond with the ideas of this Convention. No general power should be conferred upon the committee in any manner to alter or change the substance of the section. I hope this Convention will vote down the proposition to give them any further power. TBI FBIVIOUS QDBSnOX. Mb. AYERS. Mr. President: I move the previous question. Seconded by Messrs. Howard, West, Evey, and White. Thi president. The question is. Shall the main question be now put? Carried. Tbi president. The first question is upon the amendment of the gentleman from San Francisco, Jud^ Hager, to the resolution offered y the gentleman from San Bernardino, Mr. Waters. Lost Tbb PRESIDENT. The next queation is upon the resolution offered by the gentleman from San Bernardino, Mr. Waters. Lost. ADJODBKmtKT. Mb. NOEL. I move we now adjourn. Carried. And at four o'clock and forty-five minutes p. u. the Convention stood adjourned until to-morrow morning at nine o'clock and thirty min- utes A. u. SEVENTY-FIRST DAY. SicBiUKNTO, Saturflay, December 7th, 1B78. The Convention met in regular session at nine o'clock and thirty minutes i. m., President Hoge m the chair. The roll was called, and members found in attendance as follows : O'Sullivan, Overton, Prouty, Reddy, Reed, Reynolds, Rhodes, Ringgold, Rolle, Schomp, Shafter, Shoemaker, Shurtleil", Smith, of Santa Clara, Smith, of 4th District, Smith, of San Francisco, Soule, Stedman, Steele, Stevenson, Stuart, Sweasey, Swenson, Swing, Terry, Thompson, Tinnin, Tully, Turner, Tuttle, Vacquerel, Van Voorhies, Walker, of Marin, Walker, of Tuolumne, Waters, Webster, Weller, Wellin, West, Wiokes, White, Wilson, of Tehama, Wyatt, Mr. President. Andrews, Harrison, Ayers, Harvey, Barbour, lleiskell. Barnes, Herold, Barry, Herrington, Barton, Hilbom, Beerstecher, Hitchcock, Belcher, Holmes, Bell, Howard, Blackmer, Huestis, Boggs, Hughey, Boucher, Hunter, Brown, Inman, Burt, Johnson, Campbell, Jones, Cai)les, Joyce, Casserly, Kelley, Chapman, Keyes, Charles, Kleine, Condon, Iiaine, Cross, Lampson, Crouch, Larkm, Davis, Larue, Dean, Lavigne, Doyle, Lewis, Dudley, of San Joaquin, Lindow, Dudley, of Solano, Mansfield, Dunlap, McCallum, Eagon, McComas, Edgerton, McConnell, Estee, McCoy, Estey, McFarland, Evey, McNutt, Farrell, Miller, Filcher, Mills, Finney, Moffat. Freud, Moreland, Garvey, Morse, Glascock, Murphy, Gorman, Nason, Gregg, Nelson, Hager, Hale, Neunaber, Noel, Hall, Ohleyer, ABSBIIT. Berry, Grace, PulUam, Biggs, Graves, ScheU, Cowden, Martin, of Alameda, Townsend, Dowling, Martin, of Santa Cruz, Van Dyke, Fawcett, O'Donnell, Wilson, of 1st District, Freeman, Porter, Winans. LBIVB or lISBBCK. Leave of absence was granted to Mr. Graves for one day, and to Mr. Winans for four days. TBE JODBXAU Mb. brown. Mr. President: I move that the reading of the Jour- nal be dispensed with, and the same approved. Carried. BIPOBT riOH TBI COMIiimi OR COIPOBATIORS OTBIX TBIX MCnCIPAI. Mb. ESTEE. Mr. President: I wish to make a report from the Com- mittee on Corporations other than Municipal. TBI SECRETARY read: 8acbiiiE!Ito, DKonbw 7th, 187S. Ma. PaniDEUr: Tour CommlttM on OonxoiUioiu other than Munidpil, napecl- fully report b«ck to th« CoiiTentJon H«tlon twentj of thoir report, unendAd in acconUnce with lh« inatmcliont of th« Conrentioo. And alio reoonuneiid that sectloa twenty-one be stricken oat. M. M. ESTBI, V. K. HOWAKD, CLITUS BA8B0OK, WJI. r. WHITE, JOHN P. WBST, J. Y. WEBSTEB, GBO. 8TEBLB, JNO. M. BnuDD, JA8. A. DEAM. SxcTioN 20. The State shall be divided into three districts, as nearly eq^ual in population as practicable, in each of which one Railroad Com- miseioner shall t>e elected, by the qualified elector* of their respective districts, at the regular gubernatorial elections, whose salary shall be fixed by law, and whose term of ofiice shall be four years. Said Com- missioners shall be qualified electors of this State, and of the district from which they are elected, and shall not be interested in any railroad corporation or other transportation company, as stockholder, creditor, a^ent, attorney, or employe, and the act of a majority of said Commis- sioners shall be deemed the act of said Commission. Bald Commission- ers shall have the power, and it shall be their duty, to establish rates of charges for the transportation of passengers and freight by railroad or other transportation companies, and publish the same, from time to time, with such changes as they may make; to examine the books, records, and papers of all railroad and other transportation compa- nies, and for this purpose they shall have process of the Courts; to hear and determine complaints against railroad and other tranaxir- tation companies, to send for persons and papers, to administer oaths, take testimony, and punish for contempt of their orders and processes in the same manner, and to the same extent, as Courts of record, and enforce their decisions, and correct abuses through the medium of the Courts. Said Commissioners shall prescribe a unifons system of accounts to be kept by all such corporations and companies, and they shall keep their accounts according to such system. Any railroad corporation or transportation company which shall fiiil or refoss to conform to such rates as shall be established by such Commiesionen, or shall charge rates in excess thereof, or shall hil to keep their aocouats in accordance with the system prescribed by the Commission, shall be fined not exceeding twenty thousand dollars for each offense, and every officer, agent, or employ^ of any such corporation or company whosfaall demand or receive rotes in excess thereof, or who shall in any manner violate the provisions of this section, shall be fined not exceeding fire thousand dollars, or imprisoned in the County Jail not exceeding one year. In all controversies, civil or criminal, the rates of fares and freights established by said Commission shall be deemed conclusively just and reasonable ; and in any action against such oorporatiou or com- pany, for damage sustained by charging excessive rates, the plaintiff, in addition to the actual damage, may, in the discretion of the Judge or jury, recover exemplary damages. Said Commissioners shall report to the Governor, annually, their proceedings and such oth6r facts as may be deemed important. Nothing in this section shall prevent individnaU from maintaining actions against any of such companies. The Legisla- ture may, in addition to the penalties herein prescribed, enforce this article by forfeiture of charters, or otherwise, and may confer such further powers on the Commissioners as shall be necessary to enable them to perform the duties enjoined on them in this and the following sectiona The Legislature shall have power, by a two-thirds vote of all the mem- bers elected to each house, to remove any one or more of said Commis- sioners from office for dereliction of duty, or corruption, or incompe- tency ; and Whenever, from any cause, a vacancy in office shall occur in said Commission, the Governor shall fill the same by the appointment of a qualified person thereto, who shall hold office for the residue of die unexpired term, and until his successor shall have been elected and qualified. Mb. ESTEE. Mr. President: I move that the report be referred to the Committee of the Whole. Tbk PRESIDENT. If there is no objection it will be so refened. Die Chair hears no objection. Mb. O'SULLIVAN. If I understood the amendment yesterday the Commissioners were to be nominated by districts but voted for by the whole electors of the State at large. I certainly shall not vote to have them elected by districts, and I did not intend to do so. Mb. ESTEE. I ask to have the instructions on that part read over. Tbi SECRETARY read : Digitized by Google Dec. 7, 1878. OF THE CONSTITUTIONAL CONVENTION. 619 " By Mr. Tinniu : ** Sttobxd, That further instmctfons to Committee on Corpontious other than Municipal, M MIowb : That eection twenty be amended so as to provide for the election of three railroad Ckimmiialonen by districts, at the same time, and making their term of office four yeaiv." Mk. ESTEE. Thoie are the instructions under which we acted. Me. SHAFTER. I would inquire whether there is any part of the report that goes beyond the instructions given the committee by the CoD- Tention. I understand there is Bomethmz done in the report that was not included in the instructions. I would inquire of the Chairman of the committee whether that is the fact. "^ Th« PBESIDENT. The report has been referred to the Committee of the Whole. Me. ESTEE. When we go into Committee of the Whole I will answer the gentleman. Mb. SHAFTER. My inquiry is as to whether they have exceeded their instructions. Thb president. The report is not now before the Convention. Mr. SHAFTER. I understood it had been read. Thi president. Yes, sir, and referred to the Committee of the Whole. Ma. SHAFTER. I move to recall it. BEMASKS OF MR. RSTIB. Mr. ESTEE. Mr. President : There are words in that section which are not contained in the instructions to the committee, but the committee have endeavored to carry out the idea of the Convention according to the b«9t of our ability. EEMAEKS OF UR. XDaESTOK. Mr. EDGERTON. I wish to call attention of the Chairman of the committee to two matters that they have introduced which are not ger- mane— which have no relation whatever to the instructions given to the committee. The instruction was to strike out a certain phrase and insert a certain word. Now, the committee have modified the report very materially in these two particulars. They have added thewonl "deter- mine," and have added a clause which gives the Legislature power to provide for a forfeiture of charter. RRHARKS or MB. ISTIB. Mb. ESTEE. Mr. President: I will state to the gentleman that we did not add that clause, it was in the original. As lar as hearing and determining complaints is concerned, the resolution introduced by the gentleman from San Joaquin, Judge Terry, prescribed that these Com- missioners should have the power to punish for contempt. Now, a majority of the committee held that if they punished for contempt, they haid to punish for cnulempt of something, and unless the Commis- sioners could determine something of course there would be no con- tempt of its orders. So the committee reported back the words, "hear and determine." That was not in the original section. It was merely to hear complaints. I have not the section here now, but I will ask the Secretary to read it as it stood before being referred. The SECRETARY read: Section 20. Three Railroad Commissioners shall be elected by the qualified voters of this State at the general election, whose salary shall be fixed by law, and whose term of office shall be six years; provided, that the three Commissioners elected at the first election of all so classify themselves, by lot, that one of them shall go out of oflice at the end of two years, one at the end of four years, ana oue at the end of six years ; so that after the first election one Commissioner shall be elected at the general election every two years, and shall hold office for the terra of six years. They shall be qualified electors of this State, and shall not be interested in any railroad corporation, or other transportation com- pany, as stockholder, creditor, agent, attorney, or employe, and the act of a majority of said Commissioners shall be deemed the act of said Commission. Said Commissioners shall have the power, and it shall be their duty, to establish rates of charges for the transportation of passen- gers and freight by railroad or other transportation compauies, and pub- lish the same from time to time, with such changes as they may make; to examine the books, records, and papers of all railroad and other transportation companies; and for this purpose they shall have process of the Courts; to hear complaints against railroads and other transporta- tion companies; to send for persons and papers, administer oaths, take testimony, and report cases of contempt to the Courts for their action, and enforce their decisions, and correct abuses through the medium of the Courts, and perform such other duties as may bo prescribed by law ; to report to the Governor, annually, their proceedings, and such other facts as may be deemed important. Nothing in this section shall prevent individuals from maintaining actions against any of such companies; pro- vided, the Legislature shall have power to remove any one or more of said Commissioners from office for dereliction of duty, corruption, or incompe- tency therein ; and whenever, from any cause, a vacancy of office shall occur in said Commission, the Governor shall fill the Bame*by appoint- ing a qualified person thereto, who shall hold office for the residue of the unexpired term, and until his successor shall have been elected and qualified. Said Commissioners shall prescribe a uniform system of accounts t« be kept by all of such corporations and companies, and they shall keep their accounts according to that system. Any railroad cor- poration or transportation company which shall fail or refuse to conform to such rates as shall be established by said Commissioners, or shall charge rates In excess thereof, or shall fall to make their accounts corre- spond with the system prescribed by the Commission, shall be fined not exceeding twenty thousand dollars for each ofiTense, and any officer, agent, or employ^ of any such corporation or company who shall demand or receive rates in excess thereof, or who shall in any man- ner violate the provisions of this section, shall be fined not exceeding five thousand dollars, or imprisoned in the County Jail not exceed- ing one year. In all controversies, civil or criminal, the rates of fares and freights established by said Commissioners shall be deemed prima facie just and reasonable. In any action against any such cor- poration or company, for damages sustained by chargiiis! excessive rates, the plaintifiT, in addition to actual damage, may, in the dis- cretion of the Judge or jury, recover exemplary damages. The Legis- lature may, in addition to any penalties herein prescribed, enforce this article by forfeiture or otherwise, and may confer such further pow- ers on the Commissioners as shall bo necessary to enable them to perform the duties enjoined upon them in this and the foregoing sections. Mb. BARBOUR. Mr. President: I rise to a point of order. The PRESIDENT. State your point of order. Mb. BARBOUR. My point of order is that the subject-matter is not before the Convention. The PRESIDENT. The Chair has already so decided, but I supposed the gentleman contemplated making a motion. Mb. SHAFTER. I thought I had made a, motion. I move that the vote by which the report was referred to the Committee of the Whole be reconsidered, so as to enable us to find out whether the Committee on Corporations, when it is instructed to do a specific thing by the Conven- tion, has a right to disregard the mandate. Mr. ESTEE. Mr. President: I move the Convention do now resolve itself into Committee of the Whole, for the purpose of considering this question. The president. There is a motion pending to reconsider the vote by which this report was referred to the Committee of the Whole. Mb. TINNIN. I move to lay that motion on the table, Mr. President. The president. The question is on the motion of the gentleman from Trinity to lay the motion to reconsider on the table. Carried. Mb. SHAFTER. Mr. President: I call for the ayes and noes on the motion to table. Mr. STED.M AN. I rise to a point of order. The PRESIDENT. State your point of order. Mr. STEDMAN. It is that a motion to reconsider requires one day's notice to he given, and therefore this motion of the gentleman from Marin is out of order. The PRESIDENT. That is so; the point of order is sustained. Mr. SHAFTER. I move to take the report from the Committee of the Whole. Me. HOWARD, of Los Angeles. Mr. President : Is that motion debat- able? If it is, I have a word to say. Mr. TINNIN. I move to lay that motion on the table. The PRESIDENT. It is not in order. The gentleman from IjOS Angeles has the floor. 8FEXCH or MB. HOWARD. Mb. HOWARD, of Los Angles. Mr. President: The statement that the Committee on Corporations has exceeded its powers is a false clamor, without any foundation In fact The amendment of the gentle- man from San Joaquin, Judge Terry, jfrovides that if the railroad com- panies disobey the orders of the Commissioners, they shall be punished for contempt, the same as they would be punished by a Court of record. Now, sir, I submit to this Convention, and to the common sense of any- body, that you cannot punish for contempt in any Court unless that Court has made some decision, or some order. To say that you can is absurd. I supposed that this thing was settled long ago. It has power to hear and determine, and unless it can hear and determine it has no jurisdiction. It has already been decided by the Supreme Court. How are you to punish for contempt, unless there is some order, some decision of the Commission is made and violated. Therefore, I say that putting in the word " determine" is in strict compliance with the instructions of this Convention, and not to have done so would have been to disobey the orders of this Convention. Again, it is true that the decisions of this Commission, unless some power is reserved, are final. That can not be disputed. Their decision is not subject to review by any Court. It is as conclusive and final as the decision of any Court in the country. Mr. EDGERTON. Mr. President : I rise to a point of order. I understood the motion of the gentleman from Marin to be to rescind the vote by which it was sent to the Committee of the Whole. Mb. HOWARD. So it was, and I am giving reasons why the motion should not prevail. The PRESIDENT. The motion was to recall the report from the Committee of the Whole, and bring it before the Convention for consideration. Mb. REYNOLDS. I rise to a point of order. The president. The gentleman will state his point of order. Mb. REYNOLDS. This Convention has already sent that report to the Committee of the Whole. It cannot be recalled without rescinding the vote, and that cannot be done without reconsidering the vote b^ which it was sent there. Now, it has been ruled by the Chair, that it requires one day's notice, under the rule; therefore, it is impossible to reach the subject at all until the vote is reconsidered in due form. The president. The point of order is not well taken. The Con- vention can, at any time, recall a report from the Committee of the Whole. The gentleman from Los Angeles will proceed. Mb.*HOWARD. I simply wish to say that there are three or four gentlemen in this Convention who I hope will never die, because parlia- mentary law will die with them. [Laughter.] I hope, therefore, they will do us the personal kindness at least to postpone their taking off until the final adjournment of this Convention. [Laughter.] Now, accord- ing to the decision of the Supreme Court of California, the decisions arrived at by these Commissioners are final and conclusive, unless some method of review is provided for. This Convention believed that this power of review should not be given; hence it was wisely decided that these words, " prima facie," should go out. I think some power should be left to the Commissioners. Now, sir, this is no nonentity; it isa^ Digitized u wer saouia it is a red 620 DEBATES AND PROCEEDINGS Saturday, thing; it » to be a tribtinal of some power. Tfae Parliament of Eng- land onderatood it when they created their Commission on Highways and Canals, in eighteen hundred and seventy-three. The fifteenth sec- tion of that Act says: "The Commission shall have power to hear and determine." They know law enough to see that the power to hear without the power to determine, is a mere delusion. It amounts to nothing. Now, I say we have simply obeyed the instructions of this Convention when we added the word "determine," and if we had not added the words, no sensible man can doubt that when the section came to be con- strued, it would be construed that the Commission has no jurisdiction. It is the friends of the railroadir, the enemies of reform, who are raising these objections. • As to the grammar of the section, we have taken the suggestions of the gentleman from Sacramento, who, I understand, was once a teacher of boys back in Vermont. We have taken a lesson by his criticism, and corrected the grammar. As to the want of power and legal sanctions, the committee have adopted the suggestion of the gentleman from Marin. He said the Commissioners had no power, and if they made a request of the companies they would refuse to comply. We concluded that his criticism was good, and we corrected it to meet his ideas. We put in penalties, in connection with the power to punish for contempt, which will enable the Commission to fine and imprison if they are set at defiance by the officers of the railroad companies. Whenever it has been found faulty, and we thought the suggestions and criticisms of these gentlemen were well founded, we adopted them and corrected the section; and it does not become these gentlemen, after their suggestions have been adopted, to go back and say it is all wrong. It does not lay in their mouths. The gentleman from Marin ought not to go back on himself so soon. Again, sir, we have adopted all the amendments (and they were able) of the gentleman from Alameda, Judge Campbell, except that we have stricken out the words " prima facie," because we thought that the reten- tion of these words would destroy the force of the section, and render the Commission useless. Now, if they are to be in, let them go a little farther, and determine, so as to make this thing effective. The gentle- man from Marin said we had been discussing this matter for tliree or four weeks; that we do one thing one day ana undo it the next, and so on. That we do not stand up to what we have done. Well, haven't wo been listening to him for the last three weeks, pointing out objectionable things, and suggesting how they should be corrected? And havinz cor- rected what be considered mistakes, I do not think he is in a condition to refuse us his support. , I submit to the Convention that the Committee on Corporations have not gone one iota beyond the instructions. If they had failed to insert the word "determine," they would have failed to comply with the ■pirit of the instructions of this body. I believe, if I understood him correctly, the gentleman from Sacra- mento raised another objection: that the report contains a provision for the forfeiture of charters. But the amended section oontainM that The word " charter " was not mentioned, but it is immaterial whether you call it a charter or franchise, so far as the purpose of this section is con- cerned, it is the same thing. Now, I do not care how long this thing is discussed. I like to hear the distinguished gentleman from Marin, though he talks to us about every other day ; I do not begrudge the time, as time is not an element in the contract here. The thing is to get right, and having taken counsel from both the friends and the enemies of this rejwrt, having made this report, I hope the Convention will stand by it unanimously, at least so far as the friends of reform are concerned. SPKECH OF MB. SRArTIK. Mb. 6HAFTER. Mr. President: I do not suppose I was the one alluded to as the Vermont grammarian, but I have taught school in Vermont, and I must say that I never had as dull a class as this Com- mittee on Corporations. [Laughter.] I used to take a long ferule and make an application, and that might have a salutary effect upon this committee. 1 think they would have come out nearer right at the end of sixty days. I think the gentleman from Los Angeles has no room to complain of long and numerous speeches, for he has been once or twice a day, for the past forty days, trying to beat some sense into this com- mittee. Mb. LARUE. Is the gentleman in favdl- of corporeal punishment being put into the Constitution? Mr. 8H AFTER. Yes, sir, lam. [Laughter.] Ma. CROSS. We object to having ideaa beaten in at that end. [Ijaugbter.] Mr. SUAFTER. God forbid that I should be guilty of such inhu- manity, for in the case of the Committee on Corporations it might cause a concussion of the brain. [Laughter and applause.] Now, the Chair- man of the committee has admitted that he has inserted matter into this rejiort that was not called for in the resolution of instructions. My point is, that the committee has no right to put anything in that report which was not called for by the Convention, right or wrong. The com- . mittee had no right to thrust that word "determine" in there,^and I shall not vote for it. The gentleman from Los Angeles has entirely perverted the doctrine of the case. I want the Convention to pass upon It here, and say whether the committee have a right to thrust it upon us contrary to the expressed wishes of the Convention. I wish to teach this committee to obey the orders of their superiors. Mb. LINDOW. I rise to move the previous question. Mr. LARKIN. I second the motion. Thb president. The question is on the motion to bring the report back from the committee. Lost. Mb. ESTEE. Mr. President : I move that the Convention now resolv* itself into Committee of the Whole, the President in the chair, for tbe purpoae of further considering the report of the Committee on Corpora- tions other than Municipal. Carried. IN COMMITTEE OF THE WHOLE. Thi chairman. The question is on the supplemental report of the Committee on Corporations other than Municipal. TBE PBBVIOCS QCBSTIOS. Mb. LAREIN. I move the previous question on section twenty inil section twenty-one. Seconded by Messrs. Stedman, Evey, and Caples. Thb chairman. The question is. Shall the main question be now putt The committee divided, and the motion for the previous question pie- Tailed, by a vote of 6& ayes to 3i noes. Thb chairman. The first question is on the adoption of the sub- stitute for sections twenty and twenty-one, reported by the Committet on Corporations other than Municipal. The Secretary will read. Thb SECRETARY read: Section 20. The State shall be divided into three districts, as ne qualified electore of this State, and of the district from which they are elected, and shall not be interested in any railraad corporation or other transportation company, as stockholder, creditor, agent, attorney, or employe, and the act of a majority of said Commis- sioners shall M deemed tLe act of said Commission. Said CominiadoD- ers shall li»ve the power, and it shall be their duty, to establish rates of charges for the transportation of pesseneera and freight by railroad or other transportation companies, and publish the same from lime to lime, with such changes as tbey may make; to examine the books, records, and papers of all railroad and other transportation companies, and for this purpose they shall have process of the Courts; to bear and deter- mine complaints against railroad and other transportation compsoiei, to send for persons and papers, to administer oaths, take testimony, ud punish for contempt of their orders and processes in the same manaa, and to the same extent, as Courts of record, and enforce their decisioas, and correct abuses through the medium of the Courts. Said Conunit- sioners shall prescribe a uniform system of accounts to bekeptbytll such corporations and companies, and they shall keep their aocomiu according to such system. Any railroad corporation or tranipartatioii company which shall fail or refuse to conform to such rates as shall be established by such Commissioners, or shall charge rates in exces thereof, or shall fail to keep their accounts in accordance with theers- lem prescribed by the Commission, shall be fined not exceeding twentr thousand dollare for each offense, and every officer, aeent, or employe of any such corporation or company who shall demand or receive iilei in excess thereof, or who shall in any manner violate the provisioiu of this section, shall be fined not exoeeJing five thousand dollars, or impris- onment in the County Jail not exceeding one year. In all eontrover- sies, civil or criminal, the rates of fares and freights established by aid Commission shall be deemed conclusively just and reasonable; and in any action against such corporation or company, for damage sasutned by charging exces-sive rates, the plaintiff, in addition to the actual dta- age, may, in the discretion of the Judge or jury, recover exemplsir damages. Said Commissionere shall report to the Governor, aDnmllr, their proceedings, and such other facts as may be deemed important Nothing in this section shall prevent individuals from maintaiiiiiif actions against any of such companies. The Legislature may, in addi- tion to the penalties herein prescribed, enforce this article by forfeHare of charters or otherwise, and may confer such further powers ©a U» Commissioners as shall be necessary to enable tbcra to perform the duties enjoined on them in this and the following sections. The Lep«- lature shall have power, by a two-thirds vote of all tlie members elected to each house, to remove any one or more of aaid Commissionere from office for dereliction of duty, or corruption, or incompetency; sad whenever, from any cause, a vacancy in office shall occur in said Com- mission, the Governor shall fill the same by the appointment of a quali- fied person thereto, who shall hold office for the residue of the aoei- pireu term, and until his successor shall have been elected and qualified. The section was adopted. KOTtCE OP BBCOHSIDBBATION. Mb. REYNOLDS. Igivenotieethat Iwill, on Monday, movesrecon- sideration of the vote by which the substitute was adopted. DISTBICriNO THE STIT^. The SECRETARY read: Sbc. 22. .Until the Legislature shall district the Sute, the following shall be the' railroad districts : The First District shall be compowdM the Counties of Alpine, Amador, Butte, Calaveras, Colusa, Del Xorte, El Dorado, Humboldt, Lake, Lassen, Mendocino, Modoc, Napa, XeTsds, Placer, Plumas, Sacramento, Shasta, Sierra, Siskiyou, Solano, Sonoma, Sutter, Tehama, Trinity, Yolo, and Yuba, from which one Railroad Commissioner shall be elected. The Second District shall be composed of the Counties of Marin, San Francisco, and San Mateo, from which one Railroad Commissioner shall be elected. The Third District shall be composed of the Counties of Alameda, Contra Costa, Fresno, la.vo, Kern, Los Angeles, Mariposa, Merced, Mono, Monterey, San Benito, San Bernardino, San Diego, San Joaquin, San Luis Obispo, Santa B*^ bara, Santa Clare, Santa Crus, Stanislaus, Tulare, Tuolumne, and Ven- tura, from which one Railroad Commissioner shall be elected. The CHAIRMAN. If there are no amendmente, the Secretaiy »ill read section twenty-four. Digitized by Google Dec. 7, 1878. OP THE CONSTITUTIONAL CONVENTION. 621 TBI SECRETARY read: Sec. 24. The Legislature shall pass all laws neoessaiy for the enforce- ment of the provisions of this article. If there are no amendments, the Secretary will read section twelve, temporarily passed. Mb. FILCUER. Mr. Chairman: I gave notice some time ago that, after we had completed this article, I would propose a new section. Thk chairman. Sections twelve and thirteen are before the Com- mittee. The Secretary will read. Thk secretary read : Skc. 12, The Legislature shall provide by law that in all elections for Directors or managers of incorporated companies, every stockholder shall have the right to vote, in person oi* by proxy, for the number of shares of stock owned by him, for as many persons as there are Directors or managers to he elected, or to cumulate said shares and give one can- didate as many votes as the number of Directors multiplied by the num- ber of his shares of stock shall equal, or to distribute them, on the same principle, among aa many candidates as he shall think fit; and such Directors or managers shall not be elected in any other manner. Mr. ESTEE. Mr. Chairman: The committee, on November nine- teenth, reported the following amendment to section twelve: Add to the section, "Except that members of cooperative societies, formed for agricultural, mercantile, and manufacturing purposes, may vote on all questions affecting such societies in the manner prescribed by law." KIHIRKS OF UB. ROLFK. Mb. ROLFE. Mr. Chairman ; As far as the section now before the Committee of the Whole and the amendment are concerned, I will merely express the opinion which suggests itself to me, that the whole thing IS unnecessary, because it is improper, to say the least. It says the Legislature shall provide by law so and so, and then goes on to stale what kind of a low the Legislature shall pass. Wliy make it their duty to pass that law, when the law itself is inserted here in the Constitution. I do not consider it necessary to have it in the Constitution. Iiet the Legislature do it. The Legislature, in my opinion, will have the power if we strike out this section. If we are going to put tho law in the Con- stitution, why say anything to the Ijegislature. If we are going to have the Legislature do it, let us leave it to legislative discretion. If we are going to direct right here what shall be done, why say that the Legisla- ture shall do it. Now, I am opposed to this section because it is code legislation. I started in at the beginning, and I am going to carry it through to the end, to oppose everything in the shape of code legisla- tion in the Constitution. And I may as well say right here, that! am opposed to all such things as imposing ^ins and penalties in the Con- stitution, or fines in the Constitution. We may find that a uniform rule will not work, and consequently these constitutional pains and penal- ties will not work. Ths CHAIRMAN. The question is on the adoption of the amend- ment. BRHABKS or MR. SCBRLL. Mb. SCHELL. Mr. Chairman: I believe I have the honor of belonging to the Committee on Corporations other than Municipal, but I did not have the pleasure of being present when the committee passed upon that amendment and agreed to it. For one, I do not understand the meaning of the word "cooperative societies," and I would like to have the Chairman of the committee explain it, or I shall be compelled to vote agai nst it. If the word " cooperative " has any special meaning, I would like to know what it is. I do not wish to vote m the dark. BKIIARKS or UR. TKBSTIB. Mb. WEBSTER. Mr. Chairman : The object of that amendment added to the report was to exclude from its provisions all cooperative societies which nave been formed in the State, and which, under the Constitution as it now stands, supported by the decisions of the Supreme Court, that they are compelled to follow, as it is the law as laid dowu, that each share of stock shall be entitled to one vote. The object of this is to follow the plan, as adopted in England, governing cooperative societies, where each member of a society, without regard to the num- ber of shares he shall hold, is simply entitled to one vote. The idea is here, that although there may be different amounts placed in the society of that kind by difTerent stockholders, that each shall be equal in the matter of voting and in the regulation of these cooperative societies. We have a number of these societies in this State and they have oper- ated well. The design is that individuals who have limited means may associate themselves together for the purpose of conducting business on the cooperative plan, by which each member receives a portion of the profits, according to the amount of capital he has invested, but in its government and control each is entitled to one vote, without regard to the number of shares he may hold. I don't suppose it is necessary to enter into the details of this matter. But it is necessary that wo should give some encouragement to these societies, which have been of so much benefit to the laboring classes of this State. They have been a wonder- ful tbin^ in England, and I think we ought to encouraj^ them here. I don't think there can be any one serious objection to it on the part of any one, as it can work no barm, and we think will do a good deal of good. RKMABKS OF VB. BLACKUKB. Mb. BLACKMER. Mr. Chairman : I think this amendment offered by the committee certainly should pass. It has been found by experi- ence throughout the State, heretofore, that these cooperative societies have worked a great deal of good. But under the Constitution as it now exists, without legislative enactment, it will be impracticable, because it will be possible for certain parties to gather up large amounts of the stock and secure control of the institutions. The Legislature, last Winter, provided for this very thing, because the Constitution did not do it. They provided that the by-laws might be made so that only one vote should be cast by one stockholder. I read from the statutes of eighteen hundred and seventy-seven, page eight hundred and eighty- three, an Act defining the business of cooperative societies : "A cooperative business corporation is a corporation formed for the purpose of couducting any lawful business, and of dividing a portion of Its profits among persons other than its stockholders. Coiiperative busi- ness corporations shall be formed under and governed by division one, part four, title one, of the Civil Code of this State, and when to formed may, in their by-laws, in addition to the matters enumerated in section three hundred and three of said Code, provide: " First^FoT the number of votes to which each stockholder shall bo entitled; and, "Second — The amount of profits which shall be divided among per- sons other than the stockholders, and the manner in which, and the persons among whom, such division shall be made." Me. SCHELL. It says, for tho purpose of conducting anjr lawful business: is not a banking corporation a codperative society? Mb. BLACKMER. The amendment here says, "formed for agri- cultural, manufacturing, and mercantile purposes." It reads: "Sec. 12. The Legislature shall provide by law that in all elections for directors or managers of incorporated companies, every stockholder shall have the right to vote, in person or by proxy, for the number of shares of stock owned by him, for as many persons as there are Directors, or managers to be elected, or to cumulate said shares and give one can- didate aa many votes as the number of Directors multiplied by the num- ber of his shares of stock shall equal, or to distribute them, on the same principle, among as many candidates as he shall think fit; and such directors or managers shall not be elected in any other manner." Then the ameudincnt of the Committee on Ciorporationscomes in. It reads thus — and the gentleman will see that there is no foundation for his criticism: Add to section twelve : " Except that members of ooCperativo socie- ties formed for agricultural, mercantile, and manufacturing purposes, may vote on all questions affecting such societies, in manner prescribed by law." Now, this is merely an effort to incorporate this same principle into the Constitution, to.give these associations an opportunity of organizing for agricultural, manufacturing, and mercantile purjmses. It is to pro- vide against the possibility of any man or set of men securing control of the majority of the stock, and by that means the control of the corpora- tion. There is no barm in it, while there is a great deal of good. RBMABKS or MR. SMITH. Mb. SMITH, of Kern. Mr. Chairman: I hope this amendment will be passed. It seems to me a very important matter that we should have codperative capital. Now, then, the combinations of capital, under the influence of a few persons-^nd such is the case where each stockholder is limited and can nave but one vote — are a very good thing. This has worked well in England; and there, too, each member is limited to one vote. Each member is permitted to vote under all circumstances, and is only limited as to the number of shares. Now, under the last clause this will be impossible, unless we put in this amendment. There would be no power to organize these societies unless we adopt this amendment. I hope, therefore, that the committee will pass it. REMARKS or MB. BARBOCR. Mr. BARBOUR. In the Committee on Corporations, there was a proposition presented by myself, which will be found in the minority report, providing for these societies. That proposition was made so that corporations could adopt this cooperative principle. I do not remember whether the gentleman from Stanislaus was present or not, but it was understood that it should only apply to agricultural, manufacturing, and mercantile societies. I hope this amendment will be adopted. The CHAIRMAN. The question is on the adoption of the amend- ment. The amendment was adopted. Mb. ROLFE. I offer an amendment to section twelve. The SECRETARY read: "Strikeout in the first line these words: ' The Legislature shall pre- scribe by law that.' " The CHAIRMAN. The question is on the amendment. REMARKS or MR.. ROLFE. Mr. ROLFE. Mr. Chairman : My object in offering this amendment is to prevent unnecessary legislation. Now, as I stated in the first place, I am opposed to putting such provisions as tJiis in the Constitution. But I hope the fact of my being opposed to incorporating it in the Constitu- tion will not prejudice gentlemen against any motion or amendment which I may offer, or reason that the amentlment is not offered from the best of motives. I have no desire to thwart the will of the Conven- tion, or to attempt to clog the provision in any way. I am disposed now to. treat this section as a part of the Constitution, and ray object is to put it in a better form than it now is. It is self-executing, and the super- fluity of these words consists in this: that it requires the Ijegislature to do what we have done in the Constitution. It goes on and slates that the Legislature shall provide by law just what is already provided in the section itself. If any gentleman can explain and convince me that all this is not fully provided for in this section, I will willingly with- draw the amendment. But until I am convinced that it is not a self- executing section; so long as I am not convinced that it is not full and complete, then I say I shall insist upon my amendment, because the requirement of this section merely is that the Legislature shall enact a law repeating the very words of this section. Would not that be a com- plete compliance with this section by the Legislature? But gentlemen may say tliere are further details necessary for the purpose of carrying out this section. I am not prepared to say whether any further legisla- tion is or is not necessary. But if it should be asoertai^ed^that it will| digitized by Ginai u wiii| oogle 622 DEBATES AND PROCEEDINGS Saturday, be necessaiT to have further leeiBlation in order to enforce this section and put it into full execution, then the Legislature can pass such necea- eary enactment aside from this section. It vould look inconsistent to me for this Convention to say what the rights of a stockholder in a cor- poration shall be by simply saying that the I^egislature shall pass the following provision, and then go on and give the provision thev are to pass. It is already provided for here, and what is the use of saying that the Legislature shall do it. It looks very plain to me, and I hope these words will be stricken out, unless some gentleman can show me wherein 1 am wrong. Th» chairman. The question is on the amendment of the gentle- man from San Bernardino, Mr. Rolfe. The committee divided, and the vote stood : ayes, 37 ; noes, 31. Tng chairman. There is not a quorum voting, try it again. The vote stood : ayes, 45; noes, 33, and the amendment was adopted. Tat CHAIRMAN. The Secretary will read section thirteen. Thk secretary read : Sec. 13. The State shall not subscribe to or be interested in the stock of, or in any manner loan its credit to, any person, company, asso- ciation, or corporation. No amendments. Mb. ESTEE. As there is no amendment to section thirteen, I move that this article, as amended, be printed and referred to the Convention. The CHAIRMAN. That motion will have to be made in the Con- vention. Mb. HALE. Mr. Chairman: I desire to offer a new section, to be numbered section twenty -one ; because it is germane to the subject-mat- ter of section twenty, Thb CHAIRMAN. Send it up. Thk secretary read : Skc. 21. No railroad company or corporation shall establish or con- struct any line of railroad in this State, for the transportation of pas- sengers or freights, except street railroads in incorporated cities and villages, nor establish any terminal point thereof, nor establish nor main- tain any depot, station, or other business place for receiving or discharg- ing passengers or freights, except with the approval, to be duly certified, of said Railroad Commissioners, or a majority of them ; and said Com- missioners shall have (lOwer, and it shall be their duty in said matters, to exercise ^neral supervisory control over all railroads to be operated as public highways in this State, other than said street railroads, ond the Legislature shall enact laws to render such control effective. The CHAIRMAN. The question is on the amendment. BPKICH or MB. HALE. Mb. hale. Mr. Chairman : I desire to occupy about five minutes of the time of the committee to explain the objects of this amendment, or new section. This principle is new to our laws — I mean the laws of the State of California. It is not new in principle, however, as a law by which railroads are regulated. It is made for a purpose. It may be necessary, sir, to refer to matters of history. This proposition will be found in the printed bill of propositions. No. 4&1, and most of the mem- bers, I believe, have printed files on their desks. If you go back to the history of the construction of railroads in Great Britain, you will find this principle, and also in the United States, with the exception of the State of Iowa and the State of California. I believe there is no other exception. The principle upon which locations have been made for lines of railroad, nas been by legislative discretion. In England there was an Act of Parliament passed, and in other European oountries, by governmental edict or decree, the construction of lines of railroad was authorized and provided for. These prescribed the terminal points and the various places of business to be established and maintained by the railroad companies. In the United States it is also true that probably nineteen twentieths of all the railroads that have been constructed within the United States — now amounting to eighty thousand miles — have been constructed under special Acts of the Legislature, and charters and grants conferring upon the companies designated in the law, the right to construct and maintain a road at points designated. And this is all in pursuance of that general theory and policy of treating railroads practically as highways, as public institutions, and therefore subject to public control — the precise principle upon which section twenty has been established here. The Legislature by these means prescribes the route, the countv to be gone through, fixes their terminal points, and establish generally, or hold the tight to establish the places of business of these companies. This was in entire accord and harmony with the general system, the general policy pursued for the government of high- ways. As highways are for the public, to be established and maintained by public authority, and in their behalf, private property, for the public interest, may be taken for public use upon the payment of an adequate sum, it follows as a logical conclusion toat the government has control of the whole proceeding in accordance with the system which prevails in reference to ordinary highways throughout the country. What is done then? The circumstances perhaps of others require that there shall be a highway between certain pomts. The needs of the commu- nity require it. They may present to the proper Board — under our laws the Board of Supervisors oi the county — whose duty it is to pass upon thequestion whether a highway is needed between the points designated as terminal points, and also whether the petition rightly describes the alignment of the road. That being passed upon affirmatively — and, of course, it rests with the discretion of the Board as to whether a highway is there needed — then comes the question of proceeding to condemn and take private property for the public use. It all proceeds upon the basis, upon the principle, that the public need it, and that it is for a public use. And as I have remarked, the general policy of European governments, and of a majority of the States, is the equivalent of this course in respect to the railroads and their construction. The governments of Europe have treated them as highways. The Slates of this Union have treated them as highways. The State of California has treated them as high- ways. Our Courts have held them to be public highways; and becaan they are public highways, for the public use, private property msy be taken for the purpoM or oonatructing. The right of eminent domain is invoked for this purpose. Now, the purpose of this new section is to bring our laws into genertl harmony with this theory of right. Under our law, it is provided that a given number of persons, originally nine, now five, may aiaociate themselves together, subscribe. to certain articles, make their acknowl- edgment to their terms before the proper officer, and declare their pur- pose to be to construct end maintain a railroad, which are privilegsi without restraint from any authority of the Stsite. These five peraom are privileged in their articles of incorporation, to fix the ahgniaentof the road, designate the terminal points between which it istobecon- Btructed, to survey aiid fix the line, and having done it, to file a ms^ in the office of the Secretary of State, and in the county in which it u forro^, and that becomes the established line of the road. Now, they are privileged to establish all places of business upon the line of tlu rootf. We all know practically that a railroad, to be operated for (he transaction of the business of the country, must have a large number of places of business— usually called stations — where freights are received and discharged, and where passengers are received and dischonted; where, in fsct, the main business of the corporation is to be done. Nov, in accordance with the policy of the law elsewhere — both in Europe tad America — unless, perhaps, ycu may except the State of Iowa, ana Ism not at all certain about thai— but in the other SUtes it is true— that this question of determining the alignments of the road, fixing its terminal points, its places of business, etc., have been regularly prescribed by governmental authority. That is, sir, it is left alone to the discretion ef the company, unrestrained by any officer or any authority of govere- meut. Now, the object of this aection which I propose is to set railroad cor- porations in this State in harmony with this general rule, and iou- much as they are highways, and as they invoke the power of Stale to take private property, it is a public use, and the public should bsve s voice in determining where these roods should be constructed, ud where their places of business shall be maintained. Hence, sir, tbe terms of this article should be : "No railroad company or oorporstiou shall establish or construct any line of railroad in this State for the transportation of passengers or freights, except street railroads in incor- porated cities and villages, nor establish any terminal point thereof, nor establish nor maintain any depot, station, or other business place bx receiving or discharging passengers or freights, except viththe approTtl, to be duly certified, of said Railroad Commissioners, or a majority of them; and said Commissioners shall have power, and it shall be their duty in said matters, to exercise genei&l supervisory oonto)l over ill railroads to be operated as public highways in this State, other thu said street railroads, and the Legislature shall enact laws to render neh control effective." Mr. LARKIK. I would like to ask the gentleman fiom Placer • question, if he will allow me. Me. HALE. Certainly. Me. LARKIN. Suppose the railroad interest of this State dHmld secure control of this Commission; what then? Me. HAL& They would only do exactly what they are doing now, and what they always have done — as they please. But I would say to the gentleman that the theory upon which we have approved and paoed section twenty is, that the State exercises this control through this Cm- mission. The Commissioners are elected by the people of this State, in the interest of the people of the State, as agents acting both for the peo- ple and for the railroad companies, to deal justly and to act foiriy, and to adjudicate in all respects impartially between them. I apprehend that upon no other theory, or for no other purpose, could this eommittei have adopted section twenty; and it is upon that theory, and upon the doctrine enunciated in section twenty, that I engrail this proposition u section twenty-one, for the purpose of expressly adding to the powen already conferred upon these Commissioners. For the want of such control as is here proposed, complaints ban come up from all parts of the State. I have heanl them fiom the North, and I have heard them from the South, and I have heard them from the center of tbe State. I cannot certify to tbe truth and to the justice of many of these complaints. I only know they are believed to be well founded. These railroads, which are highways — have been s) declared by the Courts — have laid out their lines of road, fixed their terminal points, established their place* of business, in numenxu instances not only in disregard to the public interest, and to the interest of communities who support the road, but for the purpose often of establishing special and adverse interests. For instance, referring to a matter of history, the railroads here in this State — or the one great railroad corporation which has control of nearly all the rtilnsdi in the State — owns immense tract* of land, lying along and nvention, the section now proposed is equally as worthy of their eoo- sideration and their candid deliberation. I do not propose to veaiy you, but this is an important provision, and I do not want it to ro bj default I ask your earnest attention to it, believing it to be absolutely necessary, in order to avoid future difficulties which may arise sad conflicts which may occur before the Courts, particularly with reference to the present Constitution which we propoee to submit to the people. Now, it is necessarj", particularly with foreign corporations, before dbev receive any benefit from future legislation, that they should, in good faith, accept the provisions of this instrument. Where there are acquired rights, there may be serious difficulties which will arise, and oomplict- tious which it wilt be exceedingly hard to adjust. The same conflicts are liable to arise between home corporations and the government I think it does not require any extended argument to convince iotelhgent men of the necessity of a provision of this kind. THE PREVI0C8 QDESTIOK. Mr. REDDY. I move the previous question. Seconded by Messrs. Murphy, Swing, Dunlap, and Cross. Mr. HOWARD, of Los Angeles. Mr. Chairman : Would it be in order for me to say, after the previous question has been moved, that this a a very good provision, and ought to be adopted? The CHAIRMAN. No, sir. Mr. HOWARD. Then I won't say it [Laughter.] The CHAIRMAN. The question is. Shall the main question be now put? Carried. The CHAIRMAN. The question is on the proposed new section pro- posed by the gentleman from Santa Clara. It was adopted on a standing vote— ayes, 70 ; noes, 34. Me. ESTEE. I move that the committee rise, report this article back to the Convention, with the recommendation that it be printed and placed upon the calendar, to be heard before the Convention. Mr. FILCHER. Will the gentleman suqiend his motion for t moment? Mr. ESTEE. No, sir. The chairman. The question is on the motion of the gentlemaa from San Francisco, Mr. Estee. Carried. IK CONVRVnoX. The PRESIDENT. Gentlemen: The Committee of the Whole bare had under consideration the report of the Committee on Corporstioiis other than Municipal, have completed the same, and report the same back to the Convention, with the recommendation that the article, as amended, be printed and placed on the calendar. Mr. SSTEE. Mr. President: I move that nine hundred and sixty copies be printed. So ordered. REPORT OP TRECUUHITTEEOM CITY, CODITTT, AMD TOWNSHIP OROlNIUTIOn. Mr. HAGER. Mr. President: I ask leave to make a report Thr president. If there is no objection the gentleman will hsre leave to send up hii report. The secretary read: The CommlllM on City, Count;, and Township Oigaalsatioos have had oDdet «*• sidermtion the aiit^ect-matter mna the viuioas propositions referred to tllea^ aad herewith report a number of propositions, with the rvcommendatlon that tfaey be adopted by the (Jonrention and incorporated in tlie propoeed Gonstftatioo, ondera separate article and heading, u follows: "Article No. — . CooBtjes, Tovnabija, Citica, and Towns.'* The propoeiUona relating to dtiea baring more than one hundred thousand iakals* tants, being only applicable to the City and County of San Francisco, are reported by the committee {or the consideration of the Conrentlon, with the nnderstaodiBg tint each nemt>er of the committer Is free to vote for or against the same. The committee rvport hack the propositions referred to them, numbered as foBowt Numbers seven, eight, one hundred and sixty, two hundred and sixteen, three kas- dred and thirteen, three hundred and fifteen, three hundred and forty-nin^ three hundred and seTenty-slx, four hundred and eleven, four hundred and twent/4«ej fonr hundred and twenty-nine, four hundred and thirty-four, four hundred aM thlrty.«tght, four hundred ard flfly.three, four hundred and eixty.«eTen, fiwr baa. dred and serenty-two, four hundred and seventy-nine, fonr hundred and eighty-s^ lour hundred and eighty-seven, four hundred and ninety-five, four hundred *M ninety-seven, and five hundred and five, with the recommendation that they be hie on the table. Respectfully submitted. JNO. S. HAGKB, Chahnai. December 7, 1878. Article — . cities, countirs, and towiis. Section 1. The several counties, as they now exist, are hereby rteof- nized as legal subdivisions of this State. ^^ Skc. 2. County seats shall not be removed by special law, but nA removals shall be provided for by general law. No county seat shall be removed unless two thirds of the qualified ejet^^rs of the county, votisK Digitized by Google Dec. 7, 1878. OF THE CONSTITUTIONAL CONVENTION. 625 on the proposition at a general election, shall vote in favor of such removal. A proposition of removal shall not be submitted in the same county more than once in four years. Skc. 3. No new county shall be established which shall reduce any county to a population of less than eight thousand j nor shall a new county be formed containing a less population than five thousand ; nor shall any line thereof pass within five miles of the county seat of any county proposed to be divided; nor shall a county be divided, or have any portion taken therefrom, unless a majority of all the qualified electors of the county or counties aflected, voting at a general election, shall vote therefor. New counties, when created, or portions of a county, when added to another county, shall be liable for their just pro- portion of all debts and liabilities, then existing, of the county or counties out of which they are respectfully formed or taken. 8(0. 4. The Legislature shall establish a system of county govern- ments which shall be uniform throughout the State; and, by general laws, shall provide for towi^ship organization, under which any county may organize whenever a majority of the qualified electors of such county, voting at a general election, shall so determine; and, whenever a county shall adopt township' organization,.the assessment and collec- tion of the revenue shall be made, and the business of such county and the local affairs of the several townships therein shall be managed and transacted in the manner pre3(;ribed by such general laws. Skc. i. The Legislature, by general and uniform law's, shall provide for the election or ap]x>intment, in the several counties, of Boards of Supervisors, Sheriffs, County Clerks, District Attorneys, and such other county, township, and municipal officers as public convenience may require, and shall prescribe their duties and fix their compensation. It shall regulate the salaries and fees of all county oflicers, in proportion to duties, and for this purpose may classify the counties by population ; and it shall provide for the strict accountability of county and township officers for all fees which may be collectcinicipal or other proper local authorities having the control of such street or highway proposed to be occupied by such railroad. Sec. 23. Inuiny city where there are no public works owned and controlled by the municipality for supplying the same with artificial light and water, any company duly incorporated by the laws' of this State shall, under the direction of the Superintendent of Streets of said city, have the privilege of disturbing and using the public streets and thoroughfares thereof, and of laying down pipes aud conduits therein, and of making conhections therewith, so far as may be necessary for introducing into and supplying; such city and its inhabitants either with gaslight or other illuminating light, or with fresh water for domestic and all other purposes, for which the same or either may be used, upon the conditions following : Such company shall make good all damages to such streets and thoroughfares, except necessarily occa- sioned by the reasonable use thereof, and be liable to such city and ita inhabitants therefor. Such company introducing astKsupplying gas- Digitized by VjC 626 DEBATES AND PROCEEDINGS Monday, light or other light, and fresh water, or either, shall furnish the same, so far as necessary and required, free and without charge, to all public buildings, institutions, and school houses belonging t« such city, and used for municipal purposes; and such company introe same time, be a State otficer and a city or county officer, nor hold- two city or county offices. Sic. 25. No public work or improvement of any description whatso ever shall be made or done, in any city, in, upon, or about the streets thereof, or otherwise, the cost and expense of which is made chargeable or may be assessed upon private projierty by special assessment, unless an estimate of such cost and expense shall be made, and an assessment in proportion to benefits, on the property to be affected or benefited, and shall be collected and paid infc) the city treasury before such work or improvement shall be commenced, or any contract for letting or doing the same authorized or performed. Sec. 26. Tlie Legislature shall not pass any local or special law in the cases following: Regulating the affairs of counties, cities, towns, townships, wards. City or County Boards of Education, school districts, or other political or municipal corporation or subdivision of the State; Authorizing the laying out,opening, altering, maintaining, or vacating roads, highways, streets, alleys, town plats, or parks; Relating to cemeteries, graveyards, or public grounds not of the State; Locating or chan^ng county seats; Incorporating cities, towns, or villages, or changing their charters; Creating offices, or prescribing the powers and duties of officers in counties, cities, towns, townships, or school districts; Regulating the fees or extending the powers and duties of county or municipal officers; Regulating the management and maintenitnce of public schools, the building or repairing of School or Court Hou8es,and raising of mousy for such purposes; Extending the time for the assessment or collection of county, city, or other municipal taxes, or otherwise relieving any Assessor or (Collector of county or city taxes from the due performance of the official duties,.or their securities from liability ; Legalizing the unauthorized or invalid acts of any officer or agent of any county or municipality thereof; Directing the payment of money out of the trcasury.or by any officer, of any county, city, or town, without the consent of such county, city, and town; Directing the payment of money from out of the treasury, or by any officer of, or creating any liability against, a county, city, town, or any public or municipal corporation, without its consent. Mk. HAGER. I ask that the usual number be printed. The president. It requires a motion to print. Mb. HAGER. I move that the usual number, four hundred and eighty copies, be printed. Ho ordered. SCFPLKMKNTAL RKFORT. Mb. HAGER. I have another report from the committee, which is very short. Thk SECRETARY read: The Committee on City, County, and Township Orgaoiittiona bare had ondrr considoration a iianil;«r of petiUuni and meiaoriala,.uking tlut the following proposition Iw inserted in the new Constitutiun, to wit: ** Srction — . Tlie Legislature sliall, At its first seseion, ennct a law wlierebjr the qualifled voters of unj county, Totintc precinct, town, or city, by a majority vote, iVuni time to timp, mny determine whetlier the sale of intoxicating liqaon shall be prohlliitied witliin the prescribed limits." And the committee being equally divided in opinion at the time it was considered in the presence of eight membere thereof, instruct me to report the petitions and memorials back, with the recommendation that the aliove proposition be committed to the Committee of the Whole for further consideration and action. Reepoctfully subiuitted. December 7, 1878. JNO. S. HAGER, Chairman. Me. HAGER. I move that the report be received and referred to the Committee of the Whole. RESOLUTION. Mr. BARNES. Mr. President: I wish to offer a resolution. The PRESIDENT. If there is no objection, the gentleman will send up his resolution. No objection. Thb SECRETARY read: Whereas, The appropriation for thS expenses of this Convention Is now nearly exhausted, and the session is likely to be prolonged to the limit expressed in the Act of the Legislature co,nvening this body, and perhaps beyond it; Hetotved, Timt when payments from said appropriation shall reduce the lialance in the State treasury to the sum of seven thous^ind dollars, the President l)o and he Is hereby directed not to certify any payntii for the per diem of n^iifber*, and that said unexpended balance l>e reserved exclusively to the expenses of the Convention, other than per diem of members, and to the payment of salarise and wages of employes. Mr. BARNES. Mr. President: That resolution sufficiently explains itself. Now, aslar as we are concerned, we are bound to stay here, pay or no pay, until the work shall have been accomplished. As far as the employes are concerned, there is no such contract, or obligation on their part, expressed or implied, and I think we ought to reserve a cer- tain amount of the appropnation for their benefit. I think " the laborer is worthy of his hire." Me. white. I trust the resolution will not pass. If the employes are not willing to continue their work, I think wecan get along very well without them, and by so doing we will set an example to the State, and show them that this host of attach^ are entirely unnecessary. We can get along without them. If they do not want to stay on the same terms that we do, let them go. I intend to stay, and it is as hard for me to do it as it is for them. If the employ^ don't want to stay and run their chances of getting their mone^, the same as the balance of us do, let them go, and the sooner the quicker. Mr. brown. I move to lay the resolution on the table. Mb. BARNES. Ayes and noes. Mb. BARNES. I desire to say now The president. The motion is not debatable. The ayes and noes were demanded by MeSrs. Barnes, Caseerly, Frcod, Edgerton, and Walker, of Tuolumne. The roll was called, and the resolution was laid on the table by the following vote : ATIS. Nelson, • . Nennaber, Noel, Ohleyer, Prouty, Rolfe, Scbomp, *' Shoemaker, Smith, of SanFiandsco, Siedman, Steele, Sweasey, Thorn paoo, THUle, Vacquerel, Waters, Webster, Weller, Wellin, West, Wickes, White, Wyatt^TI. Rhodes, Schell, Bhafter, Shurtleff, Smith, of 4th District, Soule, Stevenson, Swing, Tinnin, Townsend, Turner, Van Voorhies, Walker, of Tuolimme, Wilson, of Tehama, Mr. President— (7. ADJODRXHENT. Mr. murphy. I move we adjourn. Mr. HOWARD, of Ijos Angeles. I move we adjourn until Monday, at two o'clock. The president. The question is on the motion to adjourn. Lost, on a division vote — ayes, 47; noes, $3. Mb. HOWARD, of Los Angeles. I move we now adjourn until Mon- day, at two o'clock. The ayes and noes were demanded by Messrs. Stedman, Hunter, Larkin, Murphy, and Barbour. The roll was called, and the motion lost by the following vote: Mills, Murphy, Porter, Reddy, Schell, Shatter, Sweasey, Townsend, Turner, Van Voorhies, Walker, of Tuolu'i Heiskell, Herold, Herrington, Holmes, Huestis, Hunter, Inman, Johnson, Jones, Joyce, Kelley, Eleine, Andrews, Heiskell, Ayers, Herold, Barbour, Herrington, Barry, Holmes, Barton, Hughey, Boucher, Hunter, Brown, Inman, Burt, Jones, Campbell, Condon, Joyce, Kelley, Cross, Keyes, Crouch, Kleine, Davis, Larkin, Dean, Larue, Doyle, Lavigne, E.stee, Lindow, Estey, McCallum, Evey, MeComas, Farrell, Me{>)nnell, Filcher, MeCoy, Glascock, Mills, Gorman, Moffat, Gregg, Moreland, Harrison, Mpree, HOES Barnes, Harvey, Beerstecher, Hilbom, Belcher, Howard, Blackmer, Huestis, Boggs, Johnson, Caples, Lampson, Casserly, Lewis, Chapman, Dudley, of Solano, McFarland, McNutt, Dunlap, Miller, E ground for removal from office; and no person shall ue eligible to any office in this State who, at the time of election and for three months before, employed Chinese. Skc. 9. The exercise of the right of suffrage shall be denied to any person employing Chinese in this State, and it shall be a sufficient chal- lenge that the person offering to vote is employing Chinese, or has employed them within three months next preceding the election. Mb. TINNIN. Mr. President: I move that the Convention now resolve itself into Committee of the Whole, the President in the chair, for the purpose of considering the report of the Committee on Chinese. Carried. IN COMMITTEE OF THE WHOLE. Thb CHAIRMAN. The report of the Committee on Chinese is now before the committee. The Secretary will read the first section. Thk SECRETARY read section one, as follows: SiCTioH 1. The Legislature shall have and shall exercise the power to enact all needful laws, and prescribe necessary regulations for the protectiim of the State and the counties, cities, and towns thereof, from the burdens and evils arising from the presence of aliens who are or irho may become vagrants, paupers, mendicants, criminals, or invalids afflicted with contagious or infectious diseases, and aliens otherwise dan- gerous or detrimental to the well-beiug or peace of the State, and to impose conditions upon which such persons may reside in the State, and to provide the means and mode of their removal from the State upon failure or refusal to comply with such conditions; provided, that nothing contained in the foregoing shall be construed to impair or limit the power of the Legislature to pass such other police laws or regula- tions as it may deem necessary. Mb. LARKIN. I would like to have a decision as to how this dis- cussion is to be carried on. Will the debate be confined to the section under consideration, or will it range over the whole thing? I would like a decision on that point before we proceed. The CHAIRMAN. The debate will extend over the entire report. Mk. LARKIN. Would a resolution be in order? The CHAIRMAN. The first section is now undar consideration. Under the rule each section has to be read. Mb. AYERS. The Chairman of the committee is not in the hall, I have understood. Tb( chairman. The first section is under consideration. The Secretary will read it again. Tbk SECRETARY read: Skction 1. The Legislature shall have and shall exercise the power to enact all needful laws, and prescribe necessary regulations for the protection of the State, and the counties, cities, and towns thereof, from the burdens and evils arising from the presence of aliens, who are or who may become vagrants, paupers, mendicants, criminals, or invalids afflicted with contagious or infectious diuasae, and aliens otherwise dangerous or detrimental to the well-being^r peace of the State, and to impose conditions upon which such persons may reside in the State, and to provide the means and mode of their removal from the State upon failure or refusal to comply with such conditions; provided, tbnt nothing contained in the foregoing shall be construed to impair or limit the power of the Legislature to pass such other police laws or regula- tions as it may deem necessary. SPEECH OF UK. MILLIR. Mb. miller. Mr. Chairman : It is expected by a great majority of the people of California, that this Convention will take some decisive action in respect to what is regarded by the people of this State as a great increasing and expanding evil in this country — the introduction and prescuce of large numbers of Chinese. I am sorry, Mr. Chairman, to be compelled to state that the committee to whom was referred this Suestion, was not able to agree upon any definite plan to be adopted by >e State for the extirpation of this evil. The committee found, directly after the discussion began, that its members were divided in opinion in respect to the measures that should be adopted. There was no division of opinion in respect to the character of this immigration, or upon its effects upon the country. All agreed that Chinese immigration was an evil, ana that if possible the further influx of Chinese to this country should be stopped. But we differed in the measures which were to tie adopted for remedying this evil. A report was made by a majority of the committee, but instead of devising or presenting a concise plan for adoption by the State, we presented three distinct plans. Now, while a majority of the committee were in favor of one or the other of these plans, it cannot be said that all the members of that majority were in favor of any of the plans, except the one embraced in the first section of the article. That section was agreed upon unanimously. But it was reserved to every member of the committee in Convention to support or oppose any part of this report. It was upon this consideration we all agreed and consented to make the report from the majority of the com- mittee. My action in this respect has been misunderstood. I consented because I thought it was better that all these plans, all these |Srovisioiu touching the Chinese question, should come in together and be ma- sidered at once in this Convention. And as it is a question not suscepti- ble of division, I shall, in the brief remarks I have to make, consider the whole of this report togetlier. The first plan proceeds upon the theory that the State has not vithia itself the power to prohibit Chinese immigration. It proposes to deal with these people as a part of the population of the State, after the/ have once mingled with our people and become a part of the people. The Government of the United states, under the Constitution, has the power to regulate commerce, both foreign and inter-State, and the Supreme Court of the United Stales has decided that the power is Vested exclusively in the (Jencral Government. The States, while they have the jiower to regulate internal affairs of the State, to prescribe rules snd laws for the government of the people of the State— in short, while the State exercises home rule, still there is above and beyond the State a national sovereignty which deals with all these subjects, treaties between nations, intercourse with foreign nations, foreign commerce,aiid navigation. Whatever may be done under the first section, most be done under the police power of the State — that power of local res|ula- tion, or government ol^ the people of a State which has not been dele- gKted to the Government of the United States, and which kas'been reserved to the State, or the people of the State. It is believed by the committee that the State has the power to pro- tect itself against foreign and well known dangerous classes — cissaesthat are admitted by all people to be dangerous and detrimental to the veil being of the Slate, such as paupers, vagrants, criminals, persons suffer ing from contagious or infectious diseases, ailVl we hold that the Slate bu power to exclude these under the law of self-preservation, which iithe first law of the State. That it does not interfere with foreign commeree to exercise this power. We propose, under this section, that the Legis- lature shall have power to> enforce the details for executing this pUn. We pro|>ose that tribunals shall be established, such as the established Courts, before whom nen>ons alleged to be paupers or criminals maj be brought for trial. Il it shall be found upon examination that Ibej belong to any one of these classes, we propose that a place shall be estab- lished in San Francisco for the safe keeping of thoee penons until thej can be removed from the State. We propose, as to the criminal classes of Chinese, that, instead of being incarcerated in prison at the expense of the State, upon conviction, the Legislature shall empower the Courts to remand them to this place, to be afterwards removed from the Sttte. In some sense it is a system of banishment of these people, as a punish- ment for*crime. It was proposed that the State might impose conditions upon their residence; that is, a bond might be required that a paitr, under examination, will not become a charge upon the State, tbit he will not be a pau|)er, criminal, vagrant, or an inmate of any charitable institution maintained by the State. This is a condition of his residence in the State. Now, the Slate has attempted, on several occasions, to legislate upon this subject of Chinese immigration. It has exercised the power of taxation to discourage Chinese residence, and our Supreme Court has decided that those acts imposing a capitation tax were nncon- stitutional. It has also passed laws authorizing the Coramissionen of Immigration to go on board of vessels and make examinations of the Chinese passengers for the purpose of excluding the dangerous classes, and more particularly as applied to lewd women. The Supreme Court of the United States has decided that these acts are unconstitutional In eveiy effort which the State has made to prevent and restrict this immi- gration it has been met by a constitutional objection, and these acts have been declared unconstitutional. The first section proceeds upon a different plan. We do not in thit section attempt to interfere with commerce. We do not go on board of vessels. We take these people after they have once become a part of our population, and subject to the laws of the State. Now, as to the power of the State to protect itself against the danger- ous classes of persons, I shall submit some authorities. I shall first read a decision in what is known as the Passenger Cases, page 125, 7th Ho*- ard, U. S. Sup. Court Reports: , " The States have also reserved the police right to turn off from their territories paupers, vagabonds, and fugitives from justice. But they have not reserved the use of taxation universally to accomplish that object, OS they had it before they became the United States. Having surrendered to the United States the sovereign police power over «m- merce. to be exercised by Congress, or the treaty-making power, it is necessarily a part of the power of the United States to determine who shall come to and reside in the United States for the purpose of trade, inde[>endently of every other condition of admittance which the Stale may attempt to impose upon such persons. When it is done in either way, the United States, of course, subject the foreigners to the laws of the United States, and cannot exempt him from tho internal power of police of the States in any particular in which it is not coDstitutionall,' in conflict with the laws of the United States. And in this sense it is that, in treaties providing for such mutual admission of foreignen between nations, it is universally said, 'But subject always to the laws and statutes of the two countries respectively; but certainly not tosoeh of the laws of a State as would exclude the foreigner, or would add another consideration to his admission into the Unit^ States.' "And. further, I may here remark that this right of taxation claimed for the States upon foreign passengers is inconsistent with the natural- ization clause in the Constitution, and the laws of Congress relating it. If a State can, b^ taxation, or otherwise, direct upon what terms foreigners may come into it, it may defeat the whole and long cherished policy of this country, and of the Constitution, in respect to immignnt^ coming to the United States. Digitized by Google Dec. 9, 1878. OF THE CONSTITUTIONAL CONVENTION. 629 " But I have said the States have the right to turn ofiF paupers, vaga- bonds, and fugitives from justice, and the States where slaves are, have a constitutional right to exclude all such as are, from a common ancestry or couutry, of the same class of men. And when Congress shall legis- late— if it be not disrespectful for one who is a member of the judiciary to suppose so absurd a thing of another department of government: — to make paupers, vagabonds, suspeoled persons, and fugitives from justice subjects of admission into the Uniteil States, I do not doubt it will be found and declared that such persons are not within the regulating power which the United States has over commerce. Paupers, vaga- bonds, and fugitives never have been subjects of rightful national inter- course, or of commercial regulations, except in the transportation of them to distant colonies to get rid of them, or for punishment as con- vi6ts. They have no rights of national intercourse ; no one has the right to transport them without the authority of the law, from where they are to any other place, and their only rights where they may be, are such as the law gives to itU men who have not altogether forfeited its protection. "The States may meet such persons upon their arrival in port, and may put them under all proper restraints. They may prevent them from entering their territories, may carry them out or drive them off. But can such a police p»wer be rightfully exercised over those who are not paupers, vagabonds, or fugitives from justice? The international right of visitation forbids it. The freedom of liberty of commerce allowed by all European nations to the inhabitants of other nations does not permit it; and the constitutional obligations of the States of this Union to the United States, in regard to commerce and navigation and naturalization, have qualified the original discretion of the States as to who shall come and live in the United States." I will now read a brief extract to the same effect, from the opinion of Mr. Justice Grier, in the same ease, 7th Howard, 450 : " It must be borne in mind (what has sometimes been forgotten) that the controversy in this case, is not with regard to the right claimed by the Stete of Massa- chusetts, in the second section of this Act, to repel from her shores lunatics, idiots, criminals, or paupers, which any foreign country, or even one of her sister States might endeavor to thrust upon her; nor the right of any State, whose domestic security might be endangered by the admission of free negroes, to exclude them from her borders. The right of the State has its foundation in the sacred law of self-defense, which no power granted to Congresscan restrict or annul. It isadmitted by all, that those powers which relate merely to municipal legislation, or what may be more^ properly called internal police, are not surren- dered or restrained; and that it is as competent and necessary for a Slate to provide precautionary measures agamst the physical pestilence which may arise from unusual and infectious articles imported." Now, these were cases in which the State of New York and the State of Massachusetts attempted to impose a tax upon passengers arriving from foreign countries; that is, they first attempted to require a bond from the master of the vessel that such parlies should not become a charge upon the State. The Act provides that they might go on board the ship, take a list of passengers, see who they were and where they came from, exact a bond from tbs master of the vessel in the sum of five hundred dollars that these people should not become a government charge. In lieu of a bond it provided that they might accept a tax of one dollar and fifty cents from each passenger. The Court decided that this was a restriction of commerce, and therefore contrary to the Con- stitution of the United States and void. The opinions I have just read go to the extent of giving the Slate power to protect itself against pau- pers, vagrants, and criminals. The second plan presented here in this report goes to the extent of compelling prohibition of Chinese immi- gration. The section which embraces it is as follows : "All further immigration to this State of Chinese, and all other persons ineligible to become citizens of the United States under the naturalization laws thereof, is hereby prohibited. The Legislature shall provide for the enforcement of this section by appropriate legislation." That is a separate and distinct plan from the other. And if we could — if the State had the power to enforce such a prohibition, it would certainly end the Chinese question at once. But I take the ground that the State has no such power. I think it is impolitic and unwise for us, at this time, to teke any such position. The United Slates is a nation, and California is not a nation. It is not in the power of California to seal up the Golden Gate, and declare, virtually, there shall be no intercourse with foreign nations. Commercial intercourse, of every species and character, is a matter in which all the people of all the States are interested, and it is not in the power of any State to pass laws nullifying the Acts of Congress, or the treaties made in pursuance of the Constitution, regulating commerce or intercourse with foreign nations; and I may say here, that I consider this too plain for argument, and I would ifot argue it were it pot that some distinguished gentlemen on this floor have taken the position that the State hasHhis power, and they appeared before the committee and made arguments which con- vinced a majority of tlio committee that the State of California had the power to seal up the Golden Gate, and stop the Chinese. If this State has the power li) interfere with commerce to the extent of prohibiting the subjects of China from entering the ports of the United States, within the State of California, then the Stete of New York has the power to close the ports of the United States, within that State, against the citizens of France or England. Neither the Constitution of the United States nor the treaties with foreign powers make distinction Ijetwcen the citizens or subjects of nations, with whom the United Steles are at peace, and with whom there are treaty obligations in respect tocommerce, navi- gation, and the right of residence in the respective countries. I will jiow read brief extracts from the opinion of the Court in the case of Hender- son vs. Mayor of New Yorketal., 2d Otto, 269, delivered by Mr. Justice Miller, United States Supreme Court. The Court says: "As already indicated, the provisions of the Constitution of the United States, on which the principal reliance is placed to make void the statute of New York, is that which gives to Congress the power 'to regulate commerce with foreign nation!.' As we said in United States vs. Halliday, 3 Wall. 417: 'Commerce with foreign nations means commerce between citizens of the United States and citizens and sub- jects of foreign governments.' It means trade, and it means inter- course. It means commercial intercourse between nations, and parts of nations, in all its branches. It includes navigation as the principal means by which foreign intercourse is effected. To regulate this trade and intercourse is to prescribe the rules by which it shall be conducted. ' The mind,' says the great Chief Justice, 'can scarcely conceive a sys- tem for regulating commerce between nations which shall be silent on the admission of the vessels of one nation into the ports of another;' and he might have added, with equal force, which prescribed no terms fur the admission of their cargo or their passengers." (Gibbons vs. Ogden, 9 Wheat. 190.) Further on Mr. Justice Miller says: "A law or rule emanating from i any lawful authority, which prescribes terms or conditions on which j alone the vessel can discharge ita passengers, isaregulation of commerce; j and, in case of vessels and passengers coming from foreign porte, is a reg- ' ulation of commerce with foreign nations." He further says: " The accuracy of these definitions is scarcely denied by the advocates of the State statutes. But assuming that in the formation of our gov- ernment certain power necessary to the administration of their internal affairs are reserved to the States, and that among these powers are those for the preservation of good order, of the health and comfort of the citi- zens, and their protection against pauperism and contagious and infec- tious diseases, and other matters of legislation of like character, they insist that the power here exercised falls within this class, and belongs rightfully to the State. " This power, frequently referred to in the decisions of this Court, has been, in general terms, somewhat loosely called the police power. It is not necessary for the course of this discussion to attempt to define it more accurately than it has been defined already. It is not necessary, because whatever may be the nature and extent of that power, where not otherwise restricted, no definition of it and no urgency for its use can authorize a State to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Con- stitution." Chief Justice Marshall, in a case reported, 9 Wheat 210, says "that it has been contended that if a law passed by a Stete, in the exercise of ite acknowledged sovereignty, comes into conflict with a law passed by Con- gress in pursuance of the Constitution, they affect the suoject and each other like et|ual opposing powers. But the framers of the Constitution foresaw this state of things, and provided for it by declaring the suprem- acy not only of itself but of the laws made in pursuance thereof. The nullity of any act inconsistent with the Constitution is produced by the declaration that the Constitution is supreme. When the Federal Gov- ernment has acted, he says: ' In evenr such case the Act of Congress or the treaty is supreme, and the laws of the State, though enacted in the exercise of power not controverted, must yield to it.'" A^in, in the case of Chi Lung vs. Freeman et al., 2 Otto, 279, the Court held the same doctrine. This was a case sent up from San Francisco, where the person had been arrested on board the vessel, under the statute against the landing of lewd women. Says the Court: " We are not called upon to decide for or against the right of a Stale, in the absence of legislation by Congress, to protect herself by necessary and proper laws against paupers and convicted criminals from abroad, nor to lay down the definite limit of such right if it exists. Such a right can only arise from a vital necessity for its exercise, and cannot be carried beyond the scope of that necessity. When a State statute, limited to provisions necessary and appropriate to that object alone, shall, in a proper controversy, come before us, it will be time enough to decide that question. The statute of California goes so far beyond what is necessary, or even appropriate for this purpose, as to be wholly without any sound definition of the right under which it is supposed to be justified." There is one more decision I desire to read, which illustrates the views of the Supreme Court of the United States upon this subject of the State protecting herself . against paupers, vagrants, and others. In the case of " Railroad Company vs. Ilusen," the Court said : " We are thus brought to the question whether the Missouri statute is a lawful exercise of the police power of the State. We aidmit that the deposit in Congress of the power to regulate foreign commerce and com- merce among the States was not a surrender of that which may be prop- erly denominated police power. What that power is, it is difficult to define with sharp precision. It is generally said to extend to making regulations promotive of domestic order, morals, health, and safety. As was said in Thorpe vs. The Butland and Burlington Kailroad Company, 27 Vermont, 149, 'it extends -to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all prop- erty within the State.' It was further said, that, by the general police power of the State, 'persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State — of the perfect right of the Legislature to do wbicn, no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.' It may also be admitted that the police powers of a State justifies the adoption of firecautionary measures against social evils. Under it a Stete may legis- ate to prevent the spread of crime, or pauperism, or disturbance of the peace. It may exclude from its limits convicts, paupers, idiots, and lunatics, and jwrsons likely to become a public charge, as well as per- sons afllicted by contagious or infectious diseases — a right founded, as intimated, in the passenger case, by Mr. Justice Greer, in the sacred law of self-defense. (Vide 3 Sawyer, 283.) The same principle, it may also. t^ 630 DEBATES AND PROCEEDINGS Monday, be conceded, would justify the exclusion of property dangerous to the property of citiwns of the State; forexample, animals having contaeioiin or infectious diseases. All these exertions of power are in the immediate connection wilh the protection df persons and property a^inst noxious acts of other persons, or such a use of property as is injurious to the property of others. They are self-defensive. • • • Keither the unlimited powers of a State to tax, nor any of its large political pow- ers, can be exercised to such an extent as to work a practical assumption of the powers properly conferred upon Congress by the Constitution. Many acts of a State may, indeed, anect commerce, without amounting to a regulation of it in the constitutional sense of the tenn ; and it is sometimes difficult to define the distinction between that wlilch merely affects.or influences, and that which regulates or furnishes a rule of conduct. There is no such difficulty in the present ease. While we unhesitatingly admit that a State may pass sanitary laws, and laws for the protection of life, liberty, health, or property within its borders; while it may prevent persons and animals Buffering under contagious or infectious diseases, or convicts, etc., from entering the State; while, for the purpose of self-protection, it may establish quarantine and reasonabfk inspection laws: it may not interfere with transportation into or through the State beyond what is absolutely necessary for its self-protection. It may not, under the cover of exerting its police power, substantially prohibit or burden either foreign or inter-State commerce." I think these cases sufficiently Illustrate the law upon this subject: so that while the State may have the power to protect itself against these /admitted dangerous classes, and to protect the life and health of its ,' people, i( has not the power to make any regulation which will interfere I with commerce with foreign nations. Now, I do not pretend that this ■ first section of the report is a complete system by which we can rid ourselves of Chinese immigration. I know it is not. But I am quite satisfied that it is not within the power of the State to establish any regulations which will prohibit Chinese immigration. 1 hold that to be a power which belongs to the General Government and not to the State. The people of this State cannot lawfully interfere with foreign commerce, which includes navi^tion and the carrying of passengers, except as indicated In the decisions I have read. But the people may memorialize the Congress or the Executive of the nation, including the treaty-making power, u>r relief from the Chinese evil. I propose, as soon as this dis- cussion is over, that the Committee on Chinese snail prepare and present for the adoption of this Convention a memorial to Congress, In res|>ectrul terms, and giving briefly our reasons for asking ConRress to legislate upon this subject, or the treaty-making power, to modify what is known as the Burlingame treaty, so that those persons known as Chinese coolies or laborers may be prohibited from coming Into the United States. I desire in this matter that the State of California shall occupy a high and dignified position. We want no hysterical, unstatesmanllke effort towards legislation upon this subject. If we should declare here that the State of California intended to prohibit Chinese immigration, that no vessel should bring any Chinese to this State, we should simply incite indignation all over the Eastern States, and we would be said to bo in rebellion against the United States, and that is a dangerous step for any State to take, to place itself in antagonism to the Government of the United States. , We have seen the evil of this in farmer times, and when a proud State like the Stale of California takes such a step, it is difficult to retrace it. Should we once declare that we intended to check immigration ourselves, ' without regard to the Federal Government, and against its power, we would be asserting the supremacy of the State over the National Gov- ernment. It would be attempting to nullify the Acts of Congress and the treaties of the General Government. I say it is dan{;erous to take such a step. The State of South Carolina began in this way — began by attempting to nullify the Acts of Congress. It began by asserting the doctrine of State supremacy, and went on, step by step, until it found itself in actual open rebellion and war against the government. I cannot give my assent to any measure which would place California in rebellion against the authority of the United States. It has been said we must do something in order to convince the people that we are in earnest; that we must assert some principle, must pass some laws, to show that California is determined to extir{>ate this evil. It is thought by some that by such a course we would awaken interest in the subject in the Eastern States. But this style of argument is delu- sive. The people of the Eastern States will awaken to this subject in due time. We must convince them by argument. Assertion will not eflect anything; declamation will not effect anvthing. A wild, spas- modic assertion of State supremacy will make Cuiifomia ridiculous. We must give the Eastern people facts and arguments to show that Chinese immigration is a. great and threatening evil, not alone to the State of California, but to the whole Union. Now, there is a third plan contained in the report, which is embraced in sections six, seven, eight, and nine, as follows: "Sec. 6. Foreigners ineligible to become citizens of the United States shall not have the right to sue or be sued in any of the Courts of this State, and any lawyer appearing for or against them, or any of them, in a civil proceeding, shall forfeit bis license to practice law. No such foreigner shall be granted license to carry on any business, trade, or occupation in this State, nor shall such license be granted to any person or corporation employing them. No such foreigner shall have the right to catch fish in any of the waters under the jurisdiction of the State; nor to purchase, own, or lease real property in this State, ond all contracts of conveyance or lease of real estate to any such foreigner shall be void. " Skc. 7. The presence of foreigners ineligible to become citizens of the United Slates is declared herein to be dangerous to the well-being of the State, and the Legislature shall discourage their immigration by all the means within its power. It shall provide for their exclusion from residence or settlement in any portion of the State it may see fit. or from the State, and provide suitable methods, by their taxation or otherwise, for the expense of such exclusion. It shall prescribe suitable penalties for the ptinishment of persons convicted of introducing tbem within forbidden limits. Shall delegate all necessary power to the incorporated cities and towns of this State for their removal without the limits of such cities and towns. " Skc. B. Public officers within this State are forbidden to employ Chinese in any capacity whatever. Violation of this provision shall be ground for removal from office; and no person shall be eligible to any office in thi^ State who, at the time of election and for three monDa before, employed Chinese. " Skc. 9. The exeroise of the right of suflVage shall be denied to any person employing Chinese in this State, and it shall be a sufficient chal- lenge that the person oflering to vote is employing Chinese, or liu employed them within three months next preceding the election." These sections proceed upon the same theory, and form together a plia for dealing with the Chinese evil. This plan k directed to the employ- ment of Chinese, to the denial of their right to the protection of the law. I do not propose to discuss it, but I characterize it as a plan of starvatioa by constitutional provision. If the Chinese are not to be employed bj anybody, are not permitted to labor, they cannot live. Because by \abot « all must live, and if you deprive them of the right to labor, they most starve. That Is the logical sequence of the position assumed by the advo- cates of this prohibition against the labor of these people. It is indefen- sible, for it deprives the prohibited peopleof the right of life. IhoMthat the right to labor is as high and sacred a right as the right to live. That vou cannot deprive these people of this right under the treaty with China. That it is against the spirit of the age, against all laws of civilized com- munities. But this third plan goes still further, it strikes at the liberty of the citizens of the United States, who, as citizens, have the right to employ whoever they choose. I hold that you cannot abridge that right. It is one of the inalienable rights of American citizens. 1 do not care to discuss these four sections, but shall content myself by saving that I opposed them in the committee, and shall vote against them here. Now, as to the effect of this first section, it was said that the proposed measure does not go far enough. My answer is, it goes just as far as the Stale can go. It goes to the very verge of oonstitutional power, and the State cannot go any further. It is said that it will have no effect. I think that it will have a very marked effect. As I said in the beginning, the power to prohibit Chinese immigration rests entirely with the Gen- eral Government, and this section is only in aid of such restrictive laws as the General Government may see fit to pass. Its eSect will be to rid ourselves of the Chinese already here, to some extent, if not to the full extent, because it only relieves us of a certain class of the Chinese. Let us look for a moment at the benefits which will flow from laws passed in pursuance of this section. It is said, and we all know it to be a fact, that the great body of the Chinese immigrants to this State come from the southern and eastern provinces of China, along the seasbore. That they are recruited largely from the criminal classes. Men who hang about the sea and rivers, living in boats. A sort of pirates, many of them, and all of them, or nearly all of them, thieves and bad men gen- erally. Now, a very large proportion of the Chinese who came to Cal- ifornia under labor oontracts are of the criminal classes — a fact which we find illustrated in the criminal Courts of the State. I have here a letter from the County Clerk of San Francisco, dated November seventh, in reply to a letter of inquiry which I addressed to him. He says: " For the twelve months ending pctober thirty-fit»t, eighteen hon- dred and seventy-eight, two thousand four hundred and eighty-eiglit Chinese have been arrested, tried, and convicted in the various' Courts of this city and county, of different crimes. Numberof Chinese confined in the City Prison yesterday, November sixth, one hundred and four- teen ; number of Chinese confined in County Jail yesterday, November sixth, one hundred and fifty-four." My proposition is to regard those who are convicted of crimes in our Courts as belonging to the criminal class; that conviction of crime in our Courts shall 1» conclusive evidence that they did belong to the criminal classes In China, and we propose, under this section, to remove them from the State. I hold that It will be cheaper to remove them from the State than to confiue them in our prisons. Tbey can be sent back to China for fifteen or twenty dollars each, by the State. I do not propose in all cases Ihatthey must necessarily be sent back to China. My proposition goes only to this, that they shall be removed from the Slate. If the people over on the Eastern side will not hear our complaints; if they say this is not an evil, and that the Chinese are as good as any other class of immigrants — that we are making a great noise and confusion about nothing — let us send over four, or five, or ten thousand of these people — those who are dangerous to the well-being of the State — belonging to the criminal and diseased classes; let ussena them a brigade or two of these Chinamen, and see bow they like them. There would be no surer way of changing their views upon the Chinese question. Thei% are two hundred and thirty-four Chinese now in the Stale Penitentiary — thirteen are for life. Thirty -eight of these are for thesecond, third, fourth, and fifth times. I have here a statement from Governor Johnson, in reply to a letter of inquiry addressed to him. He gives: "Arson, first degree, one; assault, with deadly weapon, t*o; attempt at burglary, thirteen ; burglary, forty ; burglary, fii»t degree, forty-two; burglary, second degree, thirty-nme: felony, nine; grand larceny, IVirty-one; kidnaping, one; munier, three; murder, first de- gree, eight; murder, second degree, eleven ; manslaughter, five; rape, one; robbery, four; petit larceny, second offense, three." I have made an estimate from the best sources of information I could get, and I find that we could at least send out of the State, of these dan- gerous and burdensome classes, not les." than five thousand Chinese every year. And I hold that we can do it at less expense than we could keep them here in prison and hospitals. I hold also, that the State hat the power to do it. Certainly it would be richt an4 jOB^t »>d it would Digitized by VjO Dec. 9, 1878. OP THE CONSTITUTIONAL CONVENTION. 631 not be a violation of the right of anybody, to send these dangerous nlitsses back to China whence they came. There are aiso a number of these people, at present, in the asylums of the State. There are now, in the Stockton Insane Asylum, according to a report made by Dr. Shurtlelf, forty-four insane Chinamen ; and m the Napa Insane Asylum, which has only been in existence a short time, twelve Chinamen. There are in the various county hospitals quite a number of them also. There are more or less of these persons who come within what we denominate the dangerous classes, in every county and town in the State, and with whom the State has a right to deal. I say this section does not prohibit Chinese immigration ; it does not settle the Chinese question, out it is the best thing we can du, and I believe the only thing which the State can do. Whether it is wise and politic to do this thing is a question for this Convention and for the Legislature hereafter to settle. The Legis- lature of California has never done anything upon this question, except to pass laws which, as I have shown you, were an interference with foreign commerce. One of those laws provided that the Commissioners oould go on board a vessel, while the passengers were still upon the ship, and there arrest them and hold them for the payment of a tax. And it is astonishing to me that the Legislature has not seen fit to take some ^ other action, so as to avoid interference with foreign commerce. The ' next section which I shall consider, is section three. It reads as follows : " No alien, ineligible to become a citizen of the United States, shall ever be employed on any State, county, municipal, or other public work in this State, after the adoption of this Constitution." That is a provision which it is perfectly competent for the State to adopt. That is a power which the State may reasonably exercise. It goes merely to the employment of Chinese on public works, and does not, in any regard, ailect the rights of citizens. In dealing with this question I think it is important that, while we recognize the sovereign power of the General Government over the subject of intercourse with foreign nations, and while we petition the government to relieve us of this great evil, we should do all we can do ourselves. First, that we show by our acts that we have exhausted every power to find a remedy which the State has any right to apply; .that we do everything which a State may lawfully and constitutionally do to rid ourselves of this great mischief, and then appeal to the justice and judgment of Congress, or of the treaty -making power of the United States. I do not understand that this treaty with Chma controls this question. I believe that the remedy will be found to be by an Act of Congress in modification of tlie treaty. A treaty could be negotiated by the consent of both countries which would settle the question, but it is not likely that such a treaty will be negotiateil. The Chinese are cunning diplomatists. They now seek delay. There seems to be a settled purpose up>5n the part of the Gov- ernment of China to find some outlet for their redundant population. There are evidences which indicate very strongly that they are fostering and encouraging emigration from China to the United States. Conse- quently they are adverse to changing or modifying the treaty, but Con- gress, under the decisions of the Supreme Court of the United States,- has the power to modify a treaty. There is probably no question better settled than that the supreme legislative power of the nation has the authority to set aside a treaty. Of course it might be considered, in some instances, as an act of war, but the government has the power, and it may exercise it and take the responsibility, and I trust that Con- fess, in the present session, will pass an Act which will limit the further immigration of the Chinese to this country. I believe it will do it. I believe that the adjustment of political parties to-day in this country is favorable to such action. I doubt whether the treaty-making power will be able to make any impression whatever upon the Chinese Gov- ernment. It is well settled that a treaty has no greater force and efiect than an Act of Congress. It derives its authority and force from the same instrument — the Constitution of the United States. Upon this foint I will submit the opinion of the Supreme Court of the United tates, in 5 Howard, 613. " Every power delegated to the Federal Government must be ex- pounded in coincidence with a perfect right in the States to all they nave not delegated ; in coincidence, too, with the possession of every power and right necessary for their existence and preservation; for it is impossible to nelieve that these were ever, in intention or in fact, ceded to the General Government. Laws of the United States, in order to be binding, must be within the legitimate powers vested by the Constitu- tion. Treaties, in order to be valid, must be made within the scope of the same powers; for there can be no authority of the United States, save what is derived mediately or immediately, and regularly and legit- imately from the Constitution. A treaty, no more than an ordinary statute, can arbitrarily cede away any one right of a State, or of any citizen of a State." It has been contended that no modification of the right of immigra- tion to the United States should be attempted by Congress until'diplo- mncy has exhausted its skill in negotiations with the Government of China. How long shall the people oT California wait? This is a (ques- tion which we cannot answer. The Orientals are slow in negotiations. In the end Congress must act upon the subject. Why not act now? Having shown what it is proposed the State of California shall do toward the abatement of the Chinese evil, and what may be done by the National Government, it is proper to give some reasons for the limi- tation we ask upon Chinese immigration. But it has not been my intention to occupy the time of the Conven- tion now, upon this branch of the subject. ["Go on, go on," from many members.] I know that it is unnecessary to enlarge upon this subject in this presence, for the members of this Convention are well informed of the reasons for the prevalent discontent among the people of this Stato, arising from the presence of so large a number of these aliens. But in proposing measures for the restriction of the immigration to our shores of any class of foreigners hitherto and now admitted under treaty stipulations, it is proper that the rea-wns for action which may seem extraordinary to the people of other States, should be publicly and freely given, especially so when we are asking the cooperation of the whole people of the Union in the measures we propose. We are met in the outset by the objection that the exi'usion of the Chinese is a departure from the uniform and general policy of the National Government in respect to the immigration of foreigners, that from time immemorial — from the colonial times, before the adoption of the Constitution, down through the whole life of the Republic — immi- gration has been encouraged by the most liberal naturalization laws, and by the action of the several States, in granting to foreigners politi- cal domicile without restraint or condition, almost immc(liately after the arrival of the immigrant; that the United States has been the asylum of the oppressed of all lands, and our laws have welcomed and protected all who have came beneath the segis of our Constitution. It is said that to adopt a policy of exclusion now, as against any people, under any circumstances, is not only violative of a time-honored policy, but contrary to the spirit of the age. It must l>e confessed that there seems to be much force in these reflec- tions. We know that the freedom of immigration was declared in the great charter of liberty, our Declaration of Independence, wherein the King of England is arraigned for having "endeavored to prevent the population of the States by obstructing the laws for the naturalization of foreigners, and by refusing to pass others to encourage their immigration thither." We know that immigration has been invited by the nation, and that the naturalization laws have admitted those who have come to America to citizenship upon terms the most liberal. The naturaliza- tion laws of a nation illustrate itspoHcy upon the subject of immigration; when these are liberal, immigration is desired and encouraged; when thev are stringent and full of hard conditions, immigration is discouraged and held undesirable. In the prosperous days of the Athenian Repub- lic no foreigner could become a citizen of Athens, except by a vote of the people twice had, and then only in case the applicant received over six thousand affirmative votes at the second election. In the days of Rome's greatest power none but those foreigners who had ren- dered eminent service to the Roman State could become naturalized, and they only by a vote of the Senate. After wars had decimated the Athenian armies, immigration was encouraged by a relaxation of the rigor of the naturalization laws; and so in Rome. So, in all countries, the encour- agement given to immigration is measured by the state of the natural- zatioii laws. Is Chinese exclusion really a departure from the policy of the nation ? Immigration has been encouraged, but what kind of immigration? Has there been no distinction in the varieties of men who have oeen encour- aged to come? The truth is that the invitation hos been limited to white men, men of our own race and color, men of similar aspirations, hopes, desires, and aims in life. Men who assimilate with our people, and who are fit to assimilate, who build their homes among us, respect our laws, love liberty and representative government. Men who become part and parcel of our people, who follow our fortunes and brave our disasters, who stand shoulder to shoulder with us in battle, and fight for the republic, and are ready to die in her defense. These are the sort of immigrants who have been invited by our laws. The non-assimilative colored races have never been considered as desirable immigrants, nor hovethey ever been encouraged either by law or public sentiment. The introduction of blacks was prohibited after eighteen hundred and eight. None but white men from foreign lands have been admitted to citizen- shin. The negro was not an immigrant. He came by compulsion and was enslaved. The Chinese are excluded from citizenship by the naturaliza- tion laws of the United States. Why? Why that extraordinary pro- viso in the treaty with China, which declares that nothing in the treaty shall be construed to confer naturalization of Chinese in the United States? There is no such provision in any treaty between the United States and any other nation. Why may not the Chinaman become a citizen ? Is the prohiliition without reason? Is it solely because he is not white? That may have been the reason, for our Democratic friends have always insisted that this is "a white man's government." A government of white men, by white men, for white men. But lately the white man's government naturalized, en masse, four millions of colored people — clothed them with the panoply of American citizenship, though not foreigners. Why? To enaole them to preserve their liberty and enjoy the fruits of their own labor. Why is this great privilege denied the Chinese? Perhaps an answer to this question would be our justi- fication for Chinese exclusion. If the Chinese are unfit for American citizenship, are they fit for domicile in the country? If they are unfit, for what reason? Are they so low in the scale of humanity, so degraded in character, so imbecile in mind, so corrupt in their lives, so scornful of republican institutions, so at enmity with law and justice, that it is dangerous to admit them to citizenship? then I answer, they are unfit for contact or intercourse with a free people. If they would be danger- ous as citizens, are they not dangerous as denizens? Is Chinese exclusicm so unreasonable? Is the departure which we propose a great departure from the policy of the National Government? The reason that none but white men have been admitted to citizenship under our naturalization laws is founded on the great fact that the mix- ture of two distinct races is a calamity tp both, and to the product of both. The wisdom of excluding the negro was applauded, and had the policy of exclusion been adopted earlier in the nation's history, what woe and anguish, what evils and horrors would have been avoided. The importation of the African, though not a bad man himself, was the great, supreme mistake of this nation. His enslavement was the nation's greatest crime, and through the expiation of this folly, and its consequent crime, we should learn wisdom. The sentimentalist and the theological humanitarians tell us that the Chinese coolie is here in pursuance of a §reat remedial plan of Almighty God, by which a nation of four hun- red and fifty millions of people is to be Christianized'^ve, and includes all these and more; it comes within the domain of philosophy. To appreciate this it is necessary to contemplate the true situation on this coast, and take lessons from the experience of our people. Already two fifths of the adult male population of California is Chinese, and despite the asser- tions of optimists, the number is constantly, steadily increasing. It is an unassiniilative population, and unfit for assimilation with people of our race. That it does not assimilate is to the advantage of our white .' people. Were the Chinese to amalgamate at all with our people it ; would be the lowest, most vile and degraded of our race, and the result of the amalgamation would be a hybrid of the most despicable, a mon- ■ grel of the most detestable that has ever afflicted the earth. It is fortu- nate that the Chinese are non-assimilative with our people We ar* confronted on the other side of the Pacific with four hundred and fifty millions of the same type and variety of men as those already here, and these have disorganized our labor system, brought thousands of our peo- ple to wretchedness and want, degraded labor to the standard of brute energy, poisoned the blood of our youth, and filled our streets with the rot of their decaying civilization. There are millions yet ready to come, and millions more determined to come. Will they come, that is the question ? If unrestricted, why will they not come? How and why have those come who are here? It is said that they have come merely on a visita- tion, to stay but a little while, and then return. By this description they come from the great Asian hive, swarming through the Golden Gate like empty bees, to gorge themselves upon the sweets of California flowers, and then return to the hive beyond the sea, laden with the treasures they have sipped from this hospitable land. If this were the true description, the application of economic principles would have only to be made to demonstrate the soft folly of a nation who would permit such a robbery of its resources. Many of the advocates of Chinese exclusion have insisted and endeavored to prove that the Chinese do not intend to remain. Let us not be deceived by the phenomena of this advancing and retreating tide of humanity. Many go back, but many more come, and must of those who go, return, bringing their "cousins" with them. This practice of visiting home is common to all classes of immigrants. It was so with our own Argonauts, who came hither in search of the golden fleece in forty-nine and the Spring of fifty. All expected to go home and stay at home, as soon as their fortunes were made, but here they are. When we insist upon it that the Chinese do not mean to stay, as an argument against him, we mistake the fact, and the economist makes argument against us by saying: " The Chinaman is industrious, labors for low wages, and his energy promotes the growth of your industries. He takes away nothing but the small pittance, the little wages you have paid him, and leaves with you the fruit of the labor — the development of your country — the accumulations you have made by the labor of his hands. How' has he injured you? He has enriched you, and you complain. He has performeil Herculean labors, and wrested from the earth great treasures. Where is the evil?" We can never convince the thrifty Yankee that Chinese immigration is an evil by the statement that he merely comes to sell his cheap labor. But leaving this to those who make the contention, I return to the question. Will the Chinese come, if not prevented by the power of the Government? The history of the human race, so far back as that history extends, shows that the movements of men, like all human actions, are governed by certain laws. . Mr. Buckle says that there is no generalization of the science of political economy so valuable as the law of population dis- covered by Voltaire, and afterwards appn^priated by Malthus, and elaborated in his great work. It has stood the test of the severest criti- cism, and has. emerged from the slate of theory into that of an accepted canon. It is, as stated by Malthus himself, "that there is a constant tendency in all animated life to increase beyond the nourishment pro- vided for it — and that, as applied to man particularly, the ratio of increase under ordinary conditions is greater than the increase of subsist- ence." If, then, a given number of the human race are placed within a certain environment, the tendency is to increase faster than the means of subsistence are capable of being increased — and unless the increase is limited by prudence, or by war or pestilence, it is only a question of time when the colony will come to that state called over-population. It is immaterial whether we accept the Mosaic account of the creation of man, or the evolution theory of Darwin with respect to the origin of the species. It is enough for our purpose to know that man exists in diflTer- ent types and varieties, divided into many nationalities and several races. Most writers on the subject agree that the beginning of the human race was in Central Asia, and that for all historic time the country now called China has been the most densely populated portion of the globe. The history of the race is descriptive of a westward march of mankind from the plains of Asia, through India and Conti- nental Europe. It tells how one type of man has succeeded another, and one nation supplanted another until the first great ocean barrier was reached ; how individual men of the most intelligent and enter- prising cast crossed the great unknown deep and planted themselves upon this continent, to find a new or lost and forgotten race, which they have supplanted, and now, on the California shore of the Pacific, stand looking out over the broad ocean toward the land from which nun started. " He has now made the circuit of the globe, and there are no more lands to conquer." It has been well said, that through climatic causes, the developing influences of travel and scenery, the eflect of varieties of food, and other causes, the man who stands upon the shores of the Pacific is no more like the man who has remained on the other side than two beings of different origin. What has caused the migrations of the human race? Why did man first move westward from the plain!> of Asia? Underlhe operation of the Malthusian law he went west for room. Westward, because to the west was land and subsistence. A learned scientist declares that it may be accepted as a law that all great migrations have one inducing cause — hunger. It is hunger, or the fear of hunger, that causes men to brave the danger and trial of migration. It is a &ot of historv that all great migrations have been in search of subsistence, or land from which to wrest the needs of animal life. Will the Chinese come? Yes, because thev are hungry. The great fact is attested, its horrible details are described, its awful proportions are measured, thtt, as eHtimated and stated by the London Tima, seventy millions of the people of the northern provinces of China are in a state of starvation. Seven or eight millions nave already perished, and millions more most die. Can you conceive of so vast a numl>er of human creatures starving? Imagine the greatest army ever marshaled by military chieftain; then double it, then quadruple it, then double its number again, then imag- ine it five times multiplied, and you begin to cni of this myriad throng of suffering people. Will the survivors of this horror remain in China? No. Where will they go-— westward? There is no room. Northward? The frozen steppes "of Siberia ofler nothing, and they are guarded by Russia. Where do they turn their eyes? lo the far-oflT, mysterious land of plenty, where many of their race have gone, to the East, over the great sea, to America, to the land of plenty— California. Mr. BARBOnR. Africa is open to them. Ma. MILLER. But the Chinese do not go to Africa. It is aa unknown, unexplored land, and they are not explorers. Since we have tauKlit them to cross the ocean, America is nearer and easier of access, and in .\merica they know there is subsistence. Judged by all historic examples, the famine in China will result in a migration, and most likely through theiiolden Gate. The Chinese have come to the condition of starvation in the northern provinces by over- population, by increasing beyond the power of procuring subsistenee. In the destitute provinces they are passing through an experience which the survivors will dare anything to avoid the future. The Chinese mltr will no doubt aid in the peaceful migration to America of the redundant population. The nation has come to that condition that she must resort to war for tbe reduction of her population, or stimulate migration. Which course will be taken ? Emigration is the cheapest, easiest, and the most rational. As stated by a late writer of the London TSmc*: " It is probable that California is destined to witness the peaceful invasion of vast numbers of those strange aliens, unless preventive measures are at once adopted. If an armed invasion of Russia is meditated, as many suppose, and perhaps now in preparation by China, that would relieve this country of all apprehension of a very laree migration, for the great wars which would then follow would relieve China of all her redundant population. If the military pre)iaretion in China, to which attention was called at the Berlin Conference by Count Shouvaloff, means war in any direction by China, it is not in this direction. It is not, however, to be taken for granted that China is destitute of military power. I think that there mav be men now within this hall who will live to see Chins the most formidable military and naval power on the globe. In notbin; do they so readily adopt modern invention and modem ideas as in mili- tary art and science. The Russians are just beginning to discover that China has vast armies well armed, drilled, and equipped. Let Chins once set about it and you will behold such armies and navies as the world has never seen. It has often been said that the Chinese will continue to come becanas hunger is the inducing cause of migration, and the Chinese are hungrr, and there is no e8ca|)e for them in any direction but to the east. The situation has been shown by a recent essayist to bear a close analogy to the Irish famine of eighteen hundred and forty-six-seven. Ireland, in eighteen hundred and forty-sixl^ contained eight millioD people. In the next eight years there migrated to the United States over one million two hundred and fifty thousand. Why? why did the Irish come to America? They had a beautiful country, a rich, fertile land ; the most beautiful country on the face of the globe. They vers attached to it. Why did they come here? Because of the famine of eighteen hundred and forty-six and eighteen hundred and forty-seven. The migration had been from twenty thousand to fifty thousand s year, and increased in the next eight years as follows, according to Appleton's Encyclopedia: Eighteen hundred and forty-seven, one hon- dred and five thousand; eighteen hundred and forty-eight, one hundred and thirteen thousand; eighteen hundred and f<>rty-nine, one hundred and sixty thousand; eighteen hundred and fifty, one hundred aod sixty-four thousand; eighteen hundred and fifty-one, two hundred and twenty -one thousand : eighteen hundred and fifty-two, one hundred and sixty thousand; eighteen hundred and fifty-three, one hundred and sixty-two thousand; eighteen hundred and fifty-four, "one hundred and five thousand. These were the years when food was scarce in Ireland. The potato had been the chief resort of the people for food, but for some reason it ceased to grow. The potato rot destroyed or diminished the crop. In these years, when food was scarce, the raign^iou ouadnipled over pit- Digitized by VjC^ Dec. 9, 1878. OF THE CONSTITUTIONAL CONVENTION. 633 Tiona years, so that the population of Ireland became reduced down to about four millions. The Chinese may not follow this notable example, but it is probable that they will go to the east from the same causes which drove llie Irish to the west. If you ask me how tlicy will come, I will answer by asking you how have those come who are here? They have been brought here as a speculation in labor. But a few days ago parties iu this business of trading in the labor of Chinese proposed to furnish Cuba with ten thousand Chinamen per annum, if guaranteed twenty-four cents per da^ for labor, for five years. What is to hinder themf What barrier is m the way T The Pacific Ocean. That means forty or fifty days' time, and fifteen to twenty dollars in money. The time is no matter to the Chinaman. He would not care if the voyage lasted a ^ear, so long as he had something to eat. The money he will gel by giving a mortgage on his labor. But suppose he comes. We are asked, where is the harm? He will labor, says the advocate of Chinese immigration; he will work well and cheap; he is quiet, peaceable, industrious. Will not his labor quicken your industries, promote the development of your country, produce wealth? These are the questions which the political econo- mists ask us to answer. Is cheap labor desirable? I answer, cheap labor may, under certain conditions, be, in an eco- nomic sense, an advantage, but not so to us. Immigration has been a blessing to the United States, not because it cheapened labor, but because it brought within our borders, in aid of the great work of development, men who established homes, whose accumulations swelled the aggregate of the wealth of the nation; men who have become a part of the nation and 'contributors to Anglo-Saxon civilization ; but the United States is in no need of immigration now. The country is stocked by a vigorous, intelligent, enterprising, brave, and civilized people, who now number over forty millions. It is well ascertained that such a people, uniler'such conditions of environment, will, by natural increase alone, double their number every twenty-five years. Making ell proper allowance for loss by war or pestilence, the nation, without further conquest of territory, will number within a century more than two hundred millions of people. stops white immigration. Increase of white population is thereby stopped, for the prudent, intelligent, sympathetic white man will not bring innocent beings into the world to see them suffer and starve before his eyes. He would rather die without the hope of posterity than to do that. He will not marry unless be can see a reasonable chance of main- taining wife as well as children. I repeat, therefore, that to permit unrestricted Chinese immigration supplants white population, and this cannot be too often repeated. It must result so, as faras it goes. It has so resulted, so far as it has gone. Is this wise? Is there any good sense in such a course? We have driven one liation, a regal race, from this lanti. Naught remains of that race but a weak, hounded, and troubled remnant, standing on the shores of the Pacific, pensively, sadly looking upon the broad expanse toward the setting sun. We have left the Indian nothing, and nothing of him scarcely remains but his sad, dole- ful history — a history of outrage and wrong. No mark is written upon the grave of his race but that awful and cruel word " Fate." He has gone down under this same relentless law,the survival of the fittest,and now there are those who would supinely yield to the bland, cunning, selfish Chinaman all that we have wrested from the Indian, and write over the tomb of Anglo-Saxon civilization and the sepulchre of repub- lican liberty, the same fearful word, "Fate!" And all this for the sake of Christianizing the heathen ; all this because of the brotherhood of man. They would Mongolize this land in a vain missionary effort to bring the Chinaman to a knowledge of the true God. He has his gods whom he will not destroy. He cares for neither the missionary, nor the missionary's God. They,<«II us that the earth is the inheritauce of all men; for all men are brothers, and each man has a right to any part of the inheritance he may choose. They quote St. Paul as authority for the fact that of one blood all the nations of the earth were made. St. Paul says that " God hath made of one blood all nations of men for to dwell on the face of the earth, and hath determined the times before appointed and the bounds of their habita- tion." God made men into nations, and determined the bounds of their habitations. We take the world of men as we find it They are divided Accepting the Malthusian theory, it is only a question of two or three' into varieties and highly differentiated types, each with the bounds of centuries when the population of the United States, unless limited by ....... . _ individual prudence, or by war, or by pestilence, will have increased by natural increase of the present stock alone beyond the capacity of the soil to furnish subsistence; that within two hundred years this nation will be, under this process, over populated and underfed. There is no truth better understood than this so often stated, that immigration now to the Uuited States is not an addition to population, but a substitution of the forei^ element for the native. And tnis is especially the case as regards Chinese immigration. Even here in California, which is a sparsely settled country, capable of sustaining a population five times as large as that already here, we know that the effect of Chinese immigra- tion is to deter white immigration from coming. The Chinaman is the result of a training in the art of low life. For thousands of years China has been filled to the verge with a redundant population. The life of the average Chinaman has been a mere struggle for animal existence. He bears with him the heredity of poverty and unrelenting toil for food through thousands of years. His physical organs have become adajited to insufficient food. There has been a process of selection going on in China under which the heavy feeders have fallen out, and under the law of the " survival of the fittest " none but those who can practice the most rigid self-denial as to food remain. They have also been trained by centuries of incessant toil to procure the maximum of subsistence from the soil. The result of this life is a sinewy, shriveled human creature, whose muscles are as iron, whose sinews are like thongs, whose nerves are like steel wires, with a stomach case lined with brass ; a creature who can toil sixteen hours of the twenty-four; who can live and grow fat on the refuse of any American laborer's table. Capable, as a late writer aays, "of driving the vulture from its prey, which he consumes, and then devours the unclean bird itself." He is a human creature without sympathy; supremely selfish, for bis struggle with nature has kept him busy with himself. Without aspirations, lor hope of better things fled from his race centuries ago. The white man cannot compete in the field of labor with such a being as that — he cannot until he becomes such as the Chinaman is. To compete with the Chinese our people must give up their homes, abandon the family altar, tear down their school ouses, blot out their civilization, and at^opt the Chinese mode of life. If the white man is to compete with the Chinaman he must adopt a cheaper stylo of dress, he must inure himself to the cold, he must labor in the night; sleep shall not come to his pillow until the midnight bell tolls the solemn hour. He must arise at the first gray streaks of dawn and at his work. Then what shall be his food? No longer the savory meats, the pure, white bread made by willing hands. No 1 He must live as the Chinaman lives; work as the beast works ; there can be no recreation, no rest, nothing but toil. But the economist says: "What becomes of the philosophic theory of the survival of the fittest." His- tory does not record that the types and varieties of men who have suc- ceeded in supplanting others of different type were the fittest, morally or intellectually. The fittest is he who can survive, that is all there is of the doctrine; not he that is the highest type of man. Turn out your finest thoroughbred horses to roam the plain with mustangs, or your best or purest strain of Durhams to graze with the broad-horned beast of Mexico, and see the operation of the law of the survival of the fittest. The question here is not merely as to the economies of labor, but what is the effect of this immigration upon the life, civilization, and govern- ment of this country and its people? Our civilization has bred our peo- file to a certain style of life, which to give up is to surrender all that makes ife worth living. The American could not if he would in centuries become such a man as the Chinaman, and heaven forbid that he should. If the Chinaman comes and occupies the fields of labor now open to the white man, it operates in restraint of marriage among the whites, and 80 his habitation fixed. It is in the eoouoniy of Providence that man shall exist in nationalities, and that they shall be divided by the antipathies of race. Why this should be so is not for us to inquire; that it is so, is enough for us to know; and the history of man shows that, in whatever age or clime an attempt has been made to amalgamate two or more dis- tinct races or types of men, the result has been calamitous to both, but more particularly disastrous to the superior race. I need not dwell upon this theme — all know the great fact. In this country there cannot exist with safety to the republic, within the jurisdiction of the government, any considerable population who are not citizens. They become, for one cause or another, a disturbing element, and sooner or later must be incorporated into the nation in order to prevent collisions, or a total deprivation to such people of ail human rights. The Chinese must, if they remain, become citizens or slaves. It isa result inevitable. If we must have immigration, let us choose it from the Anglo-Saxon race, or kindred varieties of men — men who will build homes and love liberty ; who appreciate republicau institutions and the grandeur of western civilization, and whose intelli- gence and loyalty to the principles of our government render them worthy of the great privilege of American citizenship. Ma. FREUD took the floor, but the hour of recess having arrived, be gave way, with the understanding that he should have the floor imme- diately after recess. Mr. SMITH, of Santa Clara. Mr. Chairman : I move that the com- mittee rise, report progress, and ask leave to sit again. Carried. IN CONVENTION. The president. Gentlemen: The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Chinese, have made progress, and ask leave to sit again. At twelve o'clock and thirty minutes r. v. the Convention took a recess until two o'clock p. u. AFTERNOON SESSION. The Convention reassembled at two o'clock p. m.. President Hoge in the chair. Roll called, and a quorum present. Mb. AYER8. Mr. President: I move that the Convention now resolve itself into a Committee of the Whole, the President iu the chair, for the purpose of further considering the report of the Committee on Cliinese. Carried. IN COMMITTEE OF THE WHOLE. The report of the Committee on The CHAIRMAN. Gentlemen : Chinese is before the committee. gPBKCB OP MR. PRKDD. Mr. FREUD. Mr. Chairman, and gentlemen of the committee : I wish very briefly to speak of the general nature of the Chinese problem, and in order to confine myself more particularly to the subject at band, I will read the notes I have prepared on this part of the question. How can we solve this Chinese problem? That is to-day the great and vital question of the American Republic. If it is not so to-day, it will be in less than twenty years. It is my firm conviction, in the first place, that the Congress of the United States could completely solve this dangerous question inside of twenty-four hours, if it so desired. It therefore remains for the State of California, and for this Convention, to attempt it. I maintain that California, as a loyal state of the American Union, has the moral right, and possesses the legal power, not alone to restrict and prohibit Chinese immigration, but even, if necessary, to remove the 634 DEBATES AND PROCEEDINGS Monday, Chinese already upon our soil. I proposie to clearly itcinonstrate to you the reason, justice, and truth of this profiosition. Ab a premlae of niv argument, I accept the doctrine laid down by Chief Justice Marshall, and sanctioned by the ablest jurists of our country. "The powers of sovereignty are divided between the Federal Unvemnient and the governments of the States. They are each sov- ereign with respect to the objects committed to it, and ^either sovereign with respect to the objects committed to the other." Each of the thir- teen original States contributed a portion of its sovereignty to the Fed- eral Government, It reserved all the rest for itself and for its citizens. Sovereign rights were reserved to the States. Inalienable rights were reserved to the people. Tlie Constitution of the United States confirms this fact when it says : '• The powers not delegated to the United States are reserved to the States respectively, or to the people." Chief among these reserved rights is the universal right of every State to regulate and control its own internal aflairs, such as corpora- tions aod public works within its borders. Under this reserved right the new Constitution of California prohibits the employment of Chinese by such corporations, orupon such public works. Again, every State has the avowed power to protect itself against foreign and well known dangerous classes, such as paupers, vagrants, criminals, and jjersons afflieled with contagious and mfectious diseases. This power is a part of the jwiice power of the State. Under this con- stitutional power of a Stale, New York and Massachusetts have been upheld by the Courts in turning ba<;k criminals from Europe. There is the same authority in California for preventing this Stale from being deluged with criminal elements from ('anton and Hongkong. Upon this power of the State, section one of the article on Chinese is baseu. Again, upon this same power of the Slate to protect itself, section four of the Chinese article is based. This general police power is an inherent part of every sovereignty. It has always existeeiug 'An Act concerning aliens,' passed June fifteenth, seventeen hun- dred and ninety-eight (I Statutes at Large, 571), power was assumed by the (ieneral Government in the time of peace to remove or expel theui from the country ; and that Act, no less than the latter, passed about a month after (ibid. 596), was generally denounced as unconstitutional, and sutTered to expire without renewal, on the ground, among others assigned for it, that if such a power existed at all, it was in the States and not in the General Government, unless under the war power, and then against alien enemies alone." The same Justice says: " Considering the power to forbid as existing absolutely in a State, it is for the State, where the power resides, to decide on what is sufficient cause for it — whether municipal or economical, sickness or crime, as for example, danger of pauperism, danger to health, danger to morals, danger to property, danger to public principles by revolutions and change of government, or danger to religion. This power over the per- Skin is much less than that exercised over ships and merchandise under Statequarantine laws, though the General Government regulates for duties and commerce the ships and their cargoes. If the power be clear, how- ever, others may differ as to the expediency of the exercise of it, as to particular classes, or in a particular form ; this cannot impair the power." Again be says : " 'The power of the State in prohibiting rests on a sovereign right to regulate who shall be her inhabitants— a right more vital than that to regulate commerce by the General Government, and which, as inde- pendent or concurrent, the latter has not disturbed, and should not disturb." I think that these authorities are clear enough. If they are sound constitutional interpretations, the proposition to exclude the Chinese, as I have undertaken to do it in my amendment, is based on an unmis- takable power, not only existing in the Sta'.c, but on a right which the Federal Government could not contravene without committing an act of usurpation, overriding the Constitution itself. The doctrine set forth is founded in reason. If the power of exclusion exist, it should exist in the State rather than the Federal Government. (17 Curtis, 196.) It is a discretionary power to be exercised according to the judgment of the party possessing it. The State could alone exercise this power with dis- cretion, for it would feel and know whether any particular class or description of persons is likely to produce discontent or taint the morals of its citizens, or increase their burdens, or (as in the case of the Chinese evil) wipe out American labor and reduce the State to the condition of a Chinese province. Before leaving this branch of the subject, I desire to refer you to another opinion of Justice McLean, in which he seems to have gone even further than Chief Justice Taney in asserting for tlie States the right to protect themselves from the introduction of objectionable persons from abroad. I refer to the case of Groves vs. Slaughter, 15 Peters, 508, in which Justice McLean says: " Each State has a right to protect itself against the avarice and intru- sion of the slave-dealer; to guard its citizens against the inconveniences and dangers of a slave population. The right to exercise this power by a State is higher and deeper than the Oonatitution. The evil involves the pio.-perity, and may endanger the existence of a State. Its power to giianl against or to remedy the evil rests upon the law of self-preserva- tion—a law vital to every community, and especially to a sovereign State." It is conceded that the great bulk of the Chinese in this State come here under contracts for service for a term of years, and that they are virtually in a state of peonage, one of the most odious forms of slavery. This fact gives great appositeness to the above citation, and the doctrine which Justice McLean there judicially affirms is wide enough to give my proposition free and full admittance into the holy of holies of the sacred constitutional circle. The United States Supreme Court, in the cases of Gibbons vs. Ogden, and Brown vs. The State of Maryland, had laid down the rule that a State might do whatever was necessary to protect itself internally, its quarantine, police, pilot laws, etc., all relating to and connected with navigation and commerce. But in the case of New York vs. Miln, this principle was more broadly and fully enunciated. After declaring that the authority of a. State is " complete, unqualified, and exclnsive," in relation to those powers which refer to municipal legislation, the Court says, II Peters, 138: " Evenr law came within this description which concerned the wel- fare of the whole people of a State, or any individual within; whether it related to their rignts or their duties; whether it respected them as men or as citizens of the State; whether in their public or private rela- tions; whether it related to their rights of pirsons or of property ; or of the whole people of a State, or of any individual within ft." Again, in tne same case (New York vs. Miln, 11 Peters, 148), the Court says: " Can anything fall moredireetly within the police power and internal regulation of a state than that which concerns the care and manage- ment of paupers or convicts, or any other class or description of persons that may be thrown into the country, and likely to endanger its safety, or become chargeable for their maintenance T" The principle is maintained through all the decisions, that even the ])aramount authority of Congress over commerce must not be permitted to interfere with the rights of an organized community of a State to protect itself from evils arising out of a traffic which may be admittedly commercial in its nature. In New York vs. Miln, the Courts deny tU persons are commerce. The contrary ground is taken in the Passenger cases as to pasengers; but it is arrived at by a curious and arbitrary mode of substitution. The term " commerce," say som* of the Justiou, means " intercourse." The Constitution uses the word " commerce," and it requires a considerable stretch of license to strike out that word and substitute for it, or enlarge it by the addition of one which is by no means an equivalent, and which possesses an ampler and more compre- hensive scope. I quote on this (mint from the opinion of Chief Justice Taney in tlie Passenger cases, 17 Curtis, 222: "The introduction of the won! intcnoune comes to this: if it means nothing more than the word eommerce. it is merely the addition of a word without changing the argument; but if it is a word of larger meaning, it is sufficient to say that then this Court cannot substitute it for the word of more limited meaning contained in the (Constitution. In either view, therefore, of the meaning to be attached to this word intercourse, it can form no founda- tion for an argument to support the power now claimed for the Genets! Government." It is hanlly necessary to say that if the position is maintained that a State has the right to exclude from her territory any class or descriptioa J of i>erson8 who are injurious to the well-being of her people, the treaty ! ' power could not invade that right. The treaty power cannot take away \ any of the powers belonging to the States which have not been delegated to the Federal Government, and which have been reserved to the States respectively, or to the people. By the general power to make tmties, the Constitution manifestly intended only to comprehend those subjects which are usually regulated by treaty, and cannot otherwise be r%- ulated. It must have meant to except out of these the rights reserved to States, for it would be absurd to suppose that the President and the Sen- ate cOuld do by treaty what the whole government is interdicted from doing in any way. The United States Supreme Court, in the case of Holmes vs. Jennison, 14 Peters, 369, says: "The power to make treaties is given by the Constitution in general terms, without any description of the objects intended to be embraced by it; and, consequently, it was designed to include all those subjects, which, in the ordinary intercourse of nations, bad usually been made subjects of ne^tiation and treaty, and which are consistent with the nature of our institutions, and the distribution of powers between the General and State Governments." This is a sufficiently clear interpretation of the extent and limitation of the treaty power, and it emphasizes the proposition that a treaty is void and inoperative as soon as it invades the domain of the rights reserved by the States. I claim that under the interpretations of the Supreme Court of the United States, both when it was disposed to exalt the powers of the Fed- eral Government over questions of this character, and when it ran to the other extreme, it has never attempted to deny the power of a State to pro- tect itself from an evil, whether it had its origin from within, or was forced upon it from without. It only remains for us to show that in this instance we are dealing with an evil. I shall consider it in its political' phase. The ^raud object of the founders of our government was to institute in this country a political system which would derive its force, power, and pen>etuity from the people. The very essence of our system IS luminously and strikingly defined in the memorable words of Abraham Lincoln: "A government of the people, for (he people, and by the peo- ple." In order to cafry out this grand definition, it is necessary that our people should continue to be homogeneous — that the race which founded this empire should be the permanent occupants of its (erritory, protected by the nigher law of self-preservation from any invasion, peace- ful or warlike, which might threaten its integrity, or its power to main- tain itself on American soil. To solemnly proclaim that we hare established a "government of the people, for the people,and bythepeo- ple,"and then to permitaracewbich possesses no political faculty in com- mon with ourselves to seize the avenues of industry and compcteourowa people out of existence, is to reduce that aphorism to a horrible ahsnrditv. Carried to its logical limit, and one which it will surely reach if we fail to interpose an effectual obstruction to the Chinese invasion, the time will come, when at least in this State, there will be no people out of whom the government is to come, or for or by whom it is to be admin- istered. The fundamental law and its interpretations place upon the Chinese the badge of political proscription, and when they shall have overrun ourcountry and comiieted out of exisleiiceourown people, what shall have become of our own system 7 Where will be its root and proj) — its essence and actuality? Where shall we look for its citizens in time of peace, and for its soldiers in time of war?/ Tt yyiJjpjB'i » toUow Digitfeed by VjOOQIC Dec. 9, 1878. OF THE CONSTITUTIONAL CONVENTION. 637 shell of ite former eelf— o ghastly mockery of its former greatness — a body without a soul — the gibbering skeleton of a lost republic! What greater evil could threaten this State than the one which is now in process of realization from the uncontrolled invasion of our territory by the Chinese? An incessant wail of agony is coming up from the people. The political complexion of this Convention is a deep and significant protest against the Asiatic curse. The long suffering of our (leople has had form and direct expression in the election of one third of the delegates on this floor, and I assume it is a fact not susceptible of contradiction tkat not a single member of this Convention could have been elected on the openly avowed declaration that be favored the Mon- golian influx. Let us not close our eyes to the magnitude of this question. Let us not, like the optimist ostrich, imagine there is no sirocco sweeping the desert because we have drawn our mantles arpund our faces and shut our eyes to a self-evident fact. Ah, no I The storm is brooding, and its terrible mutterings have been beard. The bubbles on the surface of the lake do not denote more surely the agitation at the bottom. Already gaunt want has strutted out its skeleton form in our cities. The high- ways of the country are alive with wanderers, houseless and homeless. The fields and the workshops are crowded with an alien and servile race, while our own people — bone of our bone, flesh of our flesh — are idle and famishing. The Chinese iron is burning into the soul of the toiling masses, who find themselves outcasts at home to make room for the conquering strangers. The evil has already passed its first stage of encroachment. It has supplanted white labor in all the humblest fields of industry. It commenced at the menial employments and has already reached the mechanical. In its insidious progress it will invade every trade and every business, and even American commerce itself may fall into the all-reaching grasp of John Comprador. American civilisation cannot flourish by its side, for it will absorb. and monopolize the means by which American civilization subsists. It is as impossible for our own }>eople and the Chinese to exist together, as it is for fire to burn in the midst of water. The law of economic forces, as applied to the social system, forbids it. If the Mongolians are to have the unlimited hospi- tality of our territory, then, in the conflict which must ensue for exist- ence, they will survive and our own people perish. In this conflict they are the fittest, because the cheapest. Is not a result so sweepingly destructive an evil which calls loudly for a remedy T Why, sir, the unrestricted immigration of the Chinese is the sum of all evils, for to us they are annihilation. By their vices they corrupt the morals and taint the blood of our youth ; and by their virtues they turn our men and women into wanderers, paupers, and criminals. If there ever were a time and an occasion when the great right of self-preservation should be invoked and exercised, it surely is when a people are threatened with inevitable destruction — and this is such a time and such an occasion. Will you, gentlemen, who are deeply versed in constitutional law, tell me that this great power can be legally invoked to shut out a pauper, a convict, or a leper, but that it must lie dormant in the face of an evil to which the admission of these would be a blessing? Do you mean to tell me we can guard the State from disease but not from death ? Do you tell me that we can deny one pauper the hospitalities of our soil, but that we cannot shut out an alien irruption which will create paupers by the thousand in our midst? Is it possible that we can close the Golden (•ate to a single foreign convict, but that we must keep it open to a human stream which is demoralizing the very fountain or society? You cannot, you dare not answer that in the affirmative? If you were to do so, you would belie your own sense of candor. You wo'uld falsify the plain letter of the Constitution of the United States, which w>lemnly avers that this government was established to promote the welfare of the people. You would challenge the veracity and the under- standing of every Judge who has from the Supreme Bench solemnly declared that the power rests in every organized community, in every sovereign State, to protect itself from anything that is likely "to produce a physical or a moral evil among its citizens. It has been our boast, Mr. Chairman, that California is unsur- passed in the grandeur and beanty of her scenery, in the fruitfulness of ner soil, in the salubrity of her climate, and in the natural resources which she possesses to sustain a vast and prosperous population. Here, if anywhere on this broad earth, has nature invited the hand of indus- try to achieve that best of all rewards, a home in which neither poverty nor riches shall come to mar the even happiness of its possessor. Here, if blind avarice for inordinate wealth do not give over our fair fields and rich volleys to a servile race, we shall build up a State whose pros- perity will be founded upon the even distribution of its soil among a contented and a homogeneous people. If we preserve this fair land and its industries to our own race, the future of California, measured by the I>rogress she has made in the past, will be splendid beyond the concep- tion of the most sanguine. Young as I am, oomt»ratively, I have seen this Slate as a wilderness, and almost without a solitary American home. I have seen the turbid waters of the Sacramento when they were as clear and pellucid as those of our mountain lakes. I have crossed the site of this fair city when its bouses were tents and its streets an open plain. I have seen our great commercial metropolis when canvass frames marked the places where now rise stately piles of granite, brick, and marble. Having been with the State at its American birth, grown with it from its auspicious infancy to its majestic majority, I love it with an affection as ardent and profound as the love which springs from maternal joys, or that which is inspired by the sublime sentiment of filial devotion. During all these years I have seen the insidious approaches of a blight which has gradually spread, until now it threatens to envelop and crush the industries of the whole State. By voice and jwn I gave the note of warning when the danger seemed remote. By voice and l>en I labored to awaken our people to a sense of the peril as it grew in proportions. By voice and pen I have continued to appeal to the i>atriotism of our people to throw off this insidious monster, which is folding itself around the heart of our State, to shake it off, "as shakes the sturdy forest oak its poison vine apart." The time has at last come when the people are aroused to the magnitude of the danger; and the time and tne opportunity are now here when we can deal with it effect- ively. It is for you, gentlemen, to say whether this fair State shall be reserved as the splendid heritage of your own race — as the home of the men who are flesh of your flesn and blood of your blood ; or whether it shall be given over to the unarmed but irresistible conquest of a people who are as strange to our manners and our civilization — to our progressive possibilities and our lofty aspirations — as though they had suddenly dropped upon us from anoliher planet. On the one hand, you can make it a splendid American commonwealth, with a destiny bright and glorious beyond parallel ; on the other, you can make it the merce- nary Mecca of the scum of Asia — a loathsome Chinese province. You can dot our plains and valleys and mountain sides with the happy homes ' of our own people ; or you can desecrate them by turning them' over to the occupation of a servile and a despised race. May it not, Mr. Chairman, be the tristful task of some future Childe Harofd, when wandering among the ruins of our young State, to point out the remnants of our fallen temples and crumbled hearths, and truth- fully exclaim that " Tims liitta not rebuilt them ; but nprear'd Barlmrjc dwellingi on their shattered ilte. Which only make more mouru'd and more endeared The few laat r»y» of their fur-»cuttorcd light, And the cnuh'd relics of tbelr vaniahod might." The CHAIRMAN. Are there any amendments to section one ? SPEKCB OF HB. o'dONNELL. Ms. O'DONNELL. Mr. President and gentlemen of the Convention : We have come at last to the consideration of the question for which this Convention was mainly called into existence. Only a few days are left to us to prepare and complete a work which, I believe, is vitally con- nected with our existence as a nation. When wo consider the w^ars of races which have been waged ever since the creation with more or less bitterness, we perceive that the idea of a universal brotherhood is but the dream of a fanatic. Nature and Nature's God divides mankind into distinctive races. They are made up of antagonistic elements which will no more commingle than fire and water. Nor can they be ever educated up to the point of fraternity. The Mongol will never kneel at your altars nor worship the living God. If he does it will be with a smile of contempt for that which he regards as a weakness. AH our symbols of religion, all our hopes of inmiortality, are a delusion and a snare. To him our civilization is a fraud. In his estimation our virtues are vices, and our charities are false pretenses. All the triumphs of Saxon and Christian religion are to him mockeries. Indeed, sir, there is nothing in which Nature permits any affinity nor any sympathy between the Christian and the Pagan, the Mongol and the Caucasian. In vain, Mr. President, have your Christian churches expended millions of money to plant the cross in heathen soil. In vain have you sent missionaries to find martyrs' graves in the soil of Asia. In vain have your poets sung and your preachers appealed. Paganism, like a black pall, still shrouds the heathen in impenetrable night, where the sun of Christianity can never penetrate. Sir, I have a section that I want to go into this Constitution. I will read it: ' ^ The right is hereby reserved to the State to protect its citizens from | y pestilence and plague, and, as a police regulation, to prohibit the entry , ^ of dangerous or criminal classes." Sir, this proposed amendment involves the consideration of that pro- >, vision of the Federal Constitution which declares that •' the powers not . delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." That, sir, is the language of the Federal Constitution; it is our great compact of union, and we are justly entitled to have it administered in its letter and in its spirit. The section I have ofi'ered declares that cer- tain rights are reserved to the State — rights which are vitally essential to her existence as a member of the Ferts of entry are the doors through which the dangerous and criminal classes of Asia are entering Into our very midst. She is, in fact, by her geographical position, tlie receiving reservoir of the scum of Asia. Sup- pose, as in the early history of California, she was this day deprived of communication, except at long intervals of time, with the Central Gov- ernment. In those days, no man questioned the right of the State and the ]ieople to expel the dangerous classes who immigrated here from Sydney, and made California an English penal colony. There were then no questions about commercial regulation in these States; there was no question about that; but the people were under the law of" self- preservation ; they acted under the law of self-preservation in early days; and I tell you they have got to act under the same laws to-day. It was then the higher law that Congress recognized; and if the peofile or the State should again put it into execution, we need have no fear that the United States will resist our action. Mr. Chairman, the judicial power of the United States extends to all cases affecting treaties with foreign nations. In respect to the treaty with China, now universally conceded to be infamous, which authorized Chinese immigration to the United States, I regard it as invalid because it was negotiated upon the hy)H>thcsis that Chinese subjects are eligible to American citizenship. That is the essential feature of the treaty. But the error has been exposed by the judicial power of the United States, which has decided that Mongolians are not eligible to citizenship. I ask if this decision is not conclusive of the invalidity of all that ixir- tion of the treaty which concedes the eligibility of Chinese to American citizenship; and I submit it to the consideration of the Convention, because it may suggest a remedy for the destruction of the treaty through the agency of the Federal Courts and without the intervention of Con- gress. History informs us that the hideous Mongol has, at intervals, migrated from his native waters into Christendom. Whenever and wherever he has appeared, our civilization has shrunk before him as before a plague. An able author and statesman asserts that: "It is believed in EuHope that one of these great historic movements of the Mongolian race, that in the remote )>a8t have dispersed their peoples into less densely populated countries than their own, is now preparing. For Instance, tlie Busslans, in pressing recently upon the Asiatic Dorders of their empire, developed by actual reconnolssance a Chinese army, of which they were totally ignorant, two hundred and fifty thousand strong, and armed, too, with all the effective enginery of modern war, including the Krupp guns. These guns had been made by their own skilled work- men, who h«l been sent to Europe and secretly taught the art, and Prussian officers had drilled their armies in the use of them." Mb. TULLY. It is evident that there is no quorum present. I wonid move that there be a call of the House. Thk PRESI DENT. The gentleman from San Franeiaco is on the floor. Mb. O'SONNELL. Well, I am going to speak on this question if there is only one man here [laughter], and I am going to take my time to it, too. [Renewed laughter and applause.] Mb. KLEINE. I hope he will not be disturbed by the delegates in this Convention. Mb. O'DONNELL. No man knows to-day the strength of the Chinese military establishment. All we see or know oC what is going on in China is on the shore edges. It is believed that the skeleton for an army of twenty million already exists. It is believed, further, that the idea of conquest has once again taken possession of the Chinese mind, and that the great Buddhistic family of Asiatic races can be leagued for not only a wholesale raid upon Europe, but also for a descent upon the Pacific Coajst of the United States. Such a movement raeana a possible wiping out of Caucasian civilization. Modem war is now a matter of effective arms, and of a simple and reliable coramiaaariat system. The Mongolian race is capable of great personal prowess. Being fatalists, they dare everything for the end they have in view. Their food is simple, easily supplied, and easily transported. Their endurance of fiitigae is proverbial. Once organized and in motion they could swarm into Russia as irresistibly as the locusts of Egypt, and upon the Pacific Coast of this continent as numerous and destructive as gram- hoppers. Once started, where would they stop? Civilization would retire before them as from a plague. Look at the plague spots In Ban Francisco to-day. Nobody lives in them but Chinese. Nobody else can live in them. Mr. Chairman, for these and many other reasons, I am opposed to the I adoption of the report of the majority of the Committee on Chinese. I I shall resist any measure which permits the emigration of Asiatics to the ' soil of America. During our last war with Great Britain, our govern- > ment found it expedient to pass a law called the Embargo Act, which fiut an embargo upon all commerce between the United States and Eng- and. I am in favor of the same policy of non-intercourse with China. Give us absolute nun-intercourae, for in no other way can we hope for safety. Non-intercourse has for ages been the policy of China ; and to enforce it literally she built a wall around her vast empire. Referring to Europeans and Americans, the Chinese stignmtiied them as outside barbarians. The same measure which China meted out to us we should mete out lo her. Give her back her policy of non-intercourse. Let her have no rank or recognition among tne list of nations. Let us declare, sir, in the words of lloly Writ, " The heathen is joined to his idols; let him alone." ' This is a question with which it is not safe for us to temporize. You cannot make treaties with savages or lepers. Charity begins at home. The first duty we owe is to our own separate humanity, as contradistin- guished from the Tartar and coolie. Our own brethren have, by the higher law of nature, the first demand upon our protection. Let us legislate for them and for their widows and orphans. And if it should ever be the will of heaven to find a path for the heathen out of his gloomy jungles into the sunlight of civilization, that power will in its own good time find a Moses tolead them forth. Mr. Chairman, I did not intend to occupy on this question but a Tei7 few moments in the first place. I know that there are very few mem- bers or delegates to this Convention but who are just as much opposed to these cAulies as I am. That is my opinion ; and my opinion is that they will put provisions in that Constitution that will check this immi- gration. We know that Christianity and Paganism cannot exist side by side. One or the other must go to the wall. I believe that every dele- gate in this Convention is convinced of that fact, that Christianity and Paganism cannot exist side by side. Experience has taught us that fact, and it is the duty of this Convention to put a clause in that Constitution to forbid their ever landing on these shores. I say, Mr, Chairman, it is their duty to do it. Uumanity demands it. I say humanity demands it. They say if we put a clause in that Constitution saying that thev cannot or shall not be allowed to land here it will be unconstitutional. How do they know it will ? We must be cruel, in this case, to be kind. Look at the condition of this country to-day. Over ten thousand peo- ple in this land to-day are starving and beting their food. " Let them come," you say, " they can get work anywhere." I say it is a lie. You see them starting out every day trying to seek food for their children, and what is the result'if Let them come to a farm-house and they will see a coolie there ahead of them, and the farmer will say, " We don't want you." You will find all the manufactories throughout the Stale carried on by the Chinese leper. They have monopolised every trade in the State. You know that to be a fact. You also know that there are over four hundred and fifty million of these human dogs nearer to us than New York. Consider that fact. Also consider this, that they are building to-day one of the most powerful navies that ever existed in the world. They have got guns oi the veir largest caliber. It is a faot. and you must consider that there are four hundred million of these human dogs nearer to us than New Y^ork. But what do they lire on ? A white man cannot live as those lepers live. Ifa white man works for two dollars a day they will work for one dollar a day, and make money at that. If a white man works for one dollar per day they will work for four bits per day, and make money. Ifa white man works at four bits a day they will work for two bits, and keep a dozen of their country cousins on that. So it is impossible for white labor to compete with those moon-eyed lepers. Mr. Chairman, taking all these things ipto consideration, we have | come to the conclusion, no matter what fanatics say, that a majority ys driven to hoodlumism and our girls driven into the streets. We have seen diseases of the worstkind spread among us, and still we see these lepers Hocking in by thousands and tens of thousands. I tell you it is in the interest of capital that they come here. It is the interest of capital who want to employ work to bring them here until they reduce you, my fellow men of the white race, to the same sphere with this leprous race, this black and tan race. I can't conceive the i4ea why these fanatics prefer this black and tan race to their own race. I don't understand it myself. You will find everywhere they go that they employ this black and tan race in preference to their own race. Not long since, I bad occasion to visit a family where I discovered a small child, which was covered all overwitha perfect mass of corruption. I went in ond looked at the child, and I told the mother, "The sooner that child dies the better." She looked at me. Says I: "Madam,that child has got the leprosy; it cannot live; it must die." "What!" says she. Says I, " Yes." Says she, " Is that leprosy ?" Says I, "Yes; and you have got to be very careful or you will get it." She had never dreamed what was the matter with the child. The father was a seafaring man. He came up and visited mo" some days afterwards. He was runnine up the coast, and he had his foot bundled up; and parts of it, when I undid it, dropped oflf from leprosy. This was the father of the child. I took him in my office, and I immele of California. I thank you kindly, Mr. Chairman and fellow delegates. Mn. AY£RS. Mr. Chairman': I move that the committee rise, report progress, and ask leave to sit again. Ofl 1*1*1 fHl IN CONVENTION. Th« PRESIDENT. Gentlemen: The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Chinese, have made progress, and ask leave to sit again. BRCKSS. Mr. SCIIELL. Mr. President: I move that the Convention now take a recess until seven o'clock. Mr. IIILBORN. I move we adjourn. The motion to adjourn was lost, on a division, by a vote of 47 ayes to 6.S noes. Thk president. The question recurs on the motion that the Con- vention take a recess until seven o'clock p. u. The motion prevailed. EVENING SESSION. The Convention reassembled at seven o'clock P. u. The SECRETARY. The Convention will please come to oilier and elect a tcinporarv Chairman. Mr. HUESTIS. I nominate Mr. Howard, of Los Angeles. Mr. HOWARD. I will have nothing to do with it. I nominate Mr. Larkin. Tub secretary put the question, and Mr. Larkin was elected temporary Chairman, and called the Convention to order. Roll called and a quorum present. m'ESTIONS OF PRIVILKOR — ME. BABBOCR. Mr. BARBOUR. Mr. President: I rise to a question of privilege. I hold in my hnnd a publication entitled the Daily Evening Post, a newspaper jiublished in San Francisco on Saturday, Decemlwr seventh, wherein is an article purporting to be correspondence from Sacramento, touching the proceedings of this Convention. I send up the article,and I ask to have it read, that which I have marked. Thk chair. The Secretary will read it. Thk secretary read: " But my alarm, as I now see, was wholly groundless. The proposition to regulate by a Commiasion, was not, as I then supposed, originated by the enemies of the railroad, but by the Central Pacific Railroad directory itself. And I now assert my confident belief that ihe railroad magnates originated the scheme. Stanford is the Tallyrand of this coast, and he knows how to circumvent even honest men and make them do his bid- ding, even without expenditure of a single dollar. He wants a Com- mission, and he is perfectly willing that it shall have absolute power, even to confiscate." Mr. BARBOUR. I would not have troubled this Convention with this question of privilege, but for the extraordinary nature of the attack on myself and some of my associates on the Committee on Corporations, which appears to require some notice from some member of the Com- mittee on Corporations. I profess to believe in the unfettered freedom of the press, and I profess to be a friend of reform, but when I se« a masked battery being uncovered to rake my friends and those associated with me, I will spike the guns, if I can. What I take exceptions to is, the statement that the scheme of a Commission originated with the directory of the Central Pacific Railroad Company. I take it that this Convention will hardly believe that Messrs. Estee and Howard, and others, are the unwitting tools of the railroad company. Besides, a lar^e majority of the Convention voted for the scheme, and yet the article makes them but a lot of hypocritical pretenders. It says again : " They have made no real fight." What an infamous lot we must be I Let me state the history of this Commission scheme in the Committee on Corporations other than Municipal, as I remember it, so that this brazen lie may be seen and known of men. When our Com- mittee on Corporations reached the subject-matter of railroad regulation, there were two propositions for a Commission before us— one by Mr. Campbell, of Alameda, and one by Mr. White, of Santa Cruz. We made no use of Mr. Campbell's proposition, so that is aside from this question. Mr. White is here and can speak for himself, but I vouch it to be a bare- faced lie that he was used, directly or indirectly, by the railroad. Then an expressiou of opinion was taken, and there was not a disscutinr voice from the proposition that fares and freights can be established and regu- lated by a general law. Then we had in Mr. Commissioner Tutlle, and his idea was to let the railroads alone. And then we discussed the sub- ject of a Constitutional Commission, and our Chairman brought in the raw draft of a section, and I also brought in one. After discussing these a sub-committee, consisting of Messrs. White, Gregg, West, and myself, were appointed to bring in a draft of a section. We did so; and from that, ana with Mr. White's plan and my plan, and from the Chairman's plan, and from suggestions by members of the committee, the section as reported was gotten up. Two of us dissented from two or three features of it, but all were in favor of a Commission. That is the plain history of the section in committee. If the Central Pacific Railroad directory ever had -anything to do with getting it up I never heard of it, and I think I may safely say the same thing of eveiy member of the committee. If the railroads were for or against it, my judgment approved it, and that was enough for me, and I think I may say the same for every other member of the committee. I do know this, that the Central Pacific Railroad Com- pany fought the only Commission we have had in this State, and had them legislated out of office before they ever got sight of the books. One word as to the animus. I look beyond the writer of this article, to the |X)wer which controls and directs the newspapers of this coast. This is for the world outside, and the world is to be made to believe that the railroad company has played a huge practical joke on the Convention to make it take their medicine; just as my grandfather used to cheat his cattle to make them eat straw, llis grain and his hay had given out and the Winter was «tlll on, and he had nothing but a stack of straw. The cattle were too high-toned to eat straw. The old gentleman then drove the cattle away from the stack, and set his dogs on them whenever they came up to it for awhile, and then they were determined to eat the straw. So this Convention seems to have been managed. By such humbugging dodges as these, sir, it is sought to bring th^ Commission scheme into dis- repute. The railroad company never have been and never will be in favor of a Commission. The strategy, my boy, is too transparent And then anallusion is thrown in for the Workingmen'e party, to which I belong. We are told that we will capture the next Legislature, and that the railroad company cannot control it. That is true, sir, but we will also elect the Commissioners, and our Legislature will be there to brace them and fortify them with power, if honest, and throw them out neck and heels, if dishonest; and our Governor will be there to ap|K>int honest men in their places. Let no man be deceived by these subterfuges. It will be time enough to believe that the railroad company are in favor of the Commission when they shall use their influence to secure the rati- fication of the Constitution containing the provision, and not till then. rruarks of MB. waiTK. Mr. WHITE. Mr. President: I wish to say a word in regard to my connection with this Commission idea. As soon as I was elected to the Convention, I undertook to read everything that was written with regard to the railroads. I spent a great deal of my time at it. I corresponded with the Secretaries of every State in the Union. Some twenty-seven of them answered. From the ideas I got, I came to the conclusion that there was only two remedies. One was to buy all the railroads out, and the other was to appoint a Commission to direct and control them, and say what the fares and freights should be. There should be nothing but absolute power. I drew a draft of a Constitution, in which I adopted the idea, before coming here at all. I will say here that I never spoke to one of the Directors, and I do not know them now. This Constitu- tion, which I drafted and published before I left my farm in Santa Cruz, contains this section pretty much as it now stands as finally ado|>ted, with about the same powers. I will ask the Secretary to read three sec- tions from my proposed Constitution. Thb SECRETARY read: "Bkc. 12. The Railroad Commissioners provided for in this Consti- tution shall have absolute power to fix the rates of fares and freights of all railroads in this State, and shall regulate and establish them as in their judgment shall seem just and fair to the railroad owners and to the public generally. "Skc. 13. Once' in each year the Railroad Commissioners shall readjust the rates of fares and freights of all railroads in the State, and c. - ,i Digitizlfed by Google Digitized by Google i LtTTAUER LIBRARY. SSP HARVARD UNIVERSITY Digitized by Google •rniB DOOK BQouia oe returnea lo the Library on or before the last date stamped below. A fine of five cents a day is incurred by retaining it beyond the specifled time. Please return promptly. EB 1 0 2004 LITTAUER LidhARY, SSP HARVARD UNIVERSITY Digitized by Google