THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA RIVERSIDE GIFT OF A. L D. Warner faw(s&)£^X&^^e+»»+^&*~l ft REVISED RECORD CONSTITUTIONAL CONTENTION STATE OF NEW YORK May 8, 1894, to September 29, 1894 REVISED BY HON. WILLIAM H. STEELE, VICE-PRESIDENT OF THE CONSTITUTIONAL CONVENTION OF 1894, Pursuant to Chap. 21, Laws of 1898. PUBLISHED UNDER DIRECTION OF HON. CHARLES E. FITCH, L. H. D., SECRETARY OF THE CONSTITUTIONAL CONVENTION OF 1894, Pursuant to Chap. 4.19, Laws of 1900. Vol. III. ALBANY: THE ARGUS COMPANY, PRINTERS. IQOO. i/. 3 REVISED RECORD CONSTITUTIONAL CONVENTION STATE OF NEW YORK. MAY 8, 1894, TO SEPTEMBER 29, 1894. AFTERNOON SESSION. Thursday Afternoon, August 23, 1894. The Constitutional Convention of the State of New York met, pursuant to recess, in the Assembly Chamber, in the Capitol, at Albany, N. Y., Thursday, August 23, 1894, at three o'clock P. M. Vice-President Alvord called the Convention to order. Mr. Wiggins — Mr. President, I desire to be excused from attendance on Saturday next. The President pro tempore put the question on the request of Mr Wiggins to be excused from attendance, and he was so excused. Mr. McClure — I find that since the matter of the forest preser- vation report was set down for Saturday morning that several gen- tlemen, including two or three members of the committee, will be absent on that day. I, therefore, desire to have the time changed, and Monday evening fixed for that report as a special order. The request of Mr. McClure was concurred in. Mr. Kinkel — Mr. Kurth has been called away suddenly, and desires me to ask the Convention to excuse him from attendance the balance of the day and to-morrow morning. The Presi'dent pro tempore put the question on the request of Mr. Kurth to be excused from attendance, and he was so excused. Mr. M. E. Lewis — I desire to be excused for Saturday. The President pro tempore put the question on the request of Mr. Lewis to be excused from attendance, and he was so excused. 4 REVISED RECORD. [Thursday, Mr. Kellogg — I ask to be excused for Friday and Saturday of this week, in consequence of sickness in my family. The President pro tempore put the question on the request of Mr. Kellogg to be excused from attendance, and he was so excused. Mr. Barrow — I ask an excuse for Mr. Hawley, who is absent from the Convention by reason of illness, until he recovers. The President pro tempore put the question on the request of Mr. Hawley to be excused from attendance, and he was so excused. Mr. Rolls — I wish to offer a report from the Committee on Education. It is quite lengthy, and I move that it be not read, but that it be printed and placed upon the files of members. It was so ordered. Mr. Bush — I ask leave of absence for Saturday, on account of other engagements as member of a committee. The President pro tempore put the question on the request of Mr. Bush to be excused from attendance, and he was so excused. Mr. Root — I move that one thousand extra copies of the report of the Committee on Education be printed for use and distribution by members of the Convention. The President pro tempore put the question on the motion of Mr. Root, and it was determined in the affirmative. Mr. Veeder — I ask to be excused for the Saturday afternoon session. The President pro tempore put the question on the request of Mr. Veeder to be excused from attendance, and he was so excused. Mr. Carter — I ask to be excused from attendance at the session of Saturday next. The President pro tempore put the question of Mr. Carter to be excused, and he was so excused. Mr. Putnam — I ask to be excused from attendance at this even- ing's session. The President pro tempore put the question on the request of Mr. Putnam to be excused from attendance, and he was so excused. Mr. Chipp — I ask to be excused from attendance on Saturday afternoon. The President pro tempore put the question on the request of Mr. Chipp to be excused from attendance, and the request was refused. The President pro tempore. — The chairman of the committee will please resume his seat. August 23.] CONSTITUTIONAL CONVENTION. 5 The Convention went into Committee of the Whole, with Mr. Acker in the chair. The Chairman — The Convention is still in Committee of the Whole on general order No. 45 (O., I. No. 383, P. No. 422), and is considering section 20. Mr. Spencer — Will amendments be in order at this time? The Chairman — Mr. Hirschberg has an amendment pending which will be voted on first. The Secretary will read the amendment. The Secretary — Mr. Hirschberg moves to amend by inserting in line 19 of page 14, after the words " one hundred," the words " and twenty," so that it will read, " in a county having a popula- tion exceeding one hundred and twenty thousand." Mr. Abbott — Mr. Chairman, I agree with the proposition of the gentleman from Orange, but upon different grounds from those stated by him. He figures that the county of St. Lawrence will have a population exceeding one hundred thousand within sixty years. I expect that our electric city of Waddington will have a large population, exceeding one hundred thousand, in two or three months. For that reason, I support the amendment. Mr. Root — Before the recess I had suggested another form of expression to accomplish the same result which the gentleman from Orange (Mr. Hirschberg) wished to accomplish. He has satisfied me that his form is the better, and I withdraw the sugges- tion which I made. The committee, in reporting this provision in the form in which they have, attempted to reconcile many different opinions, arguments and wishes, and they thought that they had reached the best and safest middle and conservative course. I have heard no suggestion which indicates that the figures which the gentleman from Orange mentions (that is, one hundred and twenty thousand) will not accomplish the desired result just as well as one hundred thousand, and if no gentleman from any of the counties of the State where they have county judges has any objec- tion to make to it, I am sure I have not, and I have not heard that any of the other members of the Judiciary Committee have, and I, therefore, see no reason why this amendment should not be adopted. The Chairman put the question on the amendment moved by Mr. Hirschberg, and it was determined in the affirmative. Mr. Spencer — Mr. Chairman, I propose to amend by adding to line 3, on the top of page 15, as follows: "That this provision shall not apply to the county judge and surrogate of the county 6 REVISED RECORD. [Thursday, of Hamilton." With your permission, I will make a statement why I propose thjis amendment. Mr. Veeder — Is a motion to strike out now in order? The Chairman — After this amendment is acted on it will be. Mr. Veeder — I move to strike out lines I, 2 and 3 of page 15. The Chairman — I think that has been voted upon once, and voted down. Mr. Veeder — Then I move to reconsider it. The Chairman — Wait until this amendment of Mr. Spencer's is disposed of. The Secretary will read Mr. Spencer's amendment. The Secretary — After the word, "court," in line 2, of page 15, insert the words " or except in the county of Hamilton, to the office of," so that it will read : " No one shall be eligible to the office of judge of the Court of Appeals, justice of the Supreme Court, or, except in the county of Hamilton, to the office of county judge or surrogate, who is not an attorney and counselor of this State." Mr. Spencer — I will say, Mr. Chairman, that, as I understand it, there is no admitted lawyer resident of the county of Hamilton. It is possible that some person there has been admitted, or was admitted a great many years ago, but is not in a position, or of such character, that the people of that county would elect him to any office of this character. I would state for the information of the House that there are but two counties in the State with a greater area of territory than the county of Hamilton. It contains 1,740 square, miles, separated by large tracts of wild forest land owned by the State; and scattered over that wide area of land there are only 5,216 people. The total valuation of the personal prop- erty of the county is $6,950. All the litigation as to all matters that would require the intervention of a court, as to real estate in that county is, by present provisions of the law, disposed of in the county of Fulton. So that this Convention can readily see that the law business of that county is very small indeed, and that there is no call for any lawyer to live in that county. I have heard that no man who is competent to pass an examination and be admitted to practice as a lawyer, under the rules as they now exist, could be hired or induced by any salary which is paid in that county to reside within that county or to become a citizen of it. I have examined the records of the criminal courts of that county, and I find that last year but one person was convicted, and that upon his own con- fession. The present county judge has never been a lawyer. He August 23.] CONSTITUTIONAL CONVENTION. 7 was county clerk for many years, and he fills the office of judge acceptably. I think that this amendment ought to be accepted by the committee. Mr. Dickey — I desire to speak upon this proposed amendment. I am constrained, Mr. Chairman, to oppose this amendment. If a layman is good enough judge or surrogate for Hamilton county, he is good enough for surrogate or county judge of another county. 1 object to this special legislation. If they have no lawyers up in Hamilton county, as soon as it goes out from this Convention that they have none, they will flock to it from other counties where they have an over abundance, and the woods will be full of them; so that they will have plenty of candidates. It looks bad to me to put into the Constitution a special provision excepting one county. I think, as I said before, when I moved to strike out these entire three lines, that the whole people ought to be eligible to those offices — everybody alike. But unless that is done as to all coun- ties of the State, I do not want one to be privileged above the oth- ers., and, therefore, I shall vote against the amendment. Mr. McClure — I hope that the suggestion made by the gentle- man from Orange will not be followed by an inroad into the woods of Hamilton by the lawyers of the State. I am interested in pre- serving the forests. The trouble has been that the forests have been gradually stolen from the people by people who went in there. I don't want this invitation to go broadcast to the lawyers. Mr. Veeder — Following up the line indicated by Mr. McClure's argument, I move to strike out the word " not," in line 3. The Chairman — The motion is not in order. There is a motion pending before the committee. Mr. Veeder — There is only one motion pending. The Chairman — There can be only one motion pending at a time. Mr. Veeder — Then I give notice that I desire an opportunity to make that motion when it is in order. The Chairman put the question on the amendment offered by Mr. Spencer, and by a standing vote of fifty-four ayes to thirty-nine noes, it was determined in the affirmative. Mr. Veeder — Mr. Chairman, I now move to strike out the word " not," in the third line. Is it possible, Mr. Chairman, that the lawyers of this Convention will not trust the people and the good sense of the people as to whom they will select for judges? Must we have a clinch in the Constitution — we lawyers — so as to get 8 REVISED RECORD. [Thursday, into the offices? Is it possible that such a provision as this is about to be incorporated into the organic law of the State? The great majority of the members of this Convention are lawyers. Are they going to send out broadcast to the people of this State the announcement that they will not trust them in the selection of their judicial officers? A greater absurdity I never heard of, and I declare that it would be decidedly better to adopt my amendment and declare that a lawyer is not eligible to any office. There is no provision in the Constitution at present, and I think there never was a provision in the Constitution declaring that lawyers only are eligible to certain offices. I submit that it is time that the lawyers called a halt on their endeavor to grasp everything. The Chairman put the question on the amendment offered by Mr. Veeder, and it was determined in the negative. The Chairman — Are there any further amendments to this section? Mr. Roche — I offer the following amendment : The Secretary — Mr. Roche offers this amendment: On line 3, page 15, after the word "surrogate," insert the words "District Court justice or judge or magistrate of any court provided for in section 18 of this article." Mr. Roche — The object of this amendment is to extend the courts to which this provision will be applicable. Now, as was stated this morning, some of the most important courts of the State are those which have been constituted under section 18 of this article, or whatever may be the corresponding section of the present Constitution. I mentioned this morning such courts as those of the recorder in Albany, and the recorder in Cohoes, and there are District Courts in New York city, there are justices of the Justices' Court in Troy, police magistrates of Troy, and there are other important courts that have very large jurisdiction, both in criminal and civil matters in the populous localities of this State. There is no good reason that I am aware of why, if we make this provision applicable to county judges and surrogates, it should not also be applied to the judges and magistrates of these import- ant courts. I believe that any man who has power to send a person to the penitentiary for a year, or to fine him two hundred and fifty dollars, should be a person somewhat learned in the law. He should know something about personal rights and personal lib- erties. He should know something about the science of government. Now, sir, I do not think we ought to leave this in such a posi- tion that a man can be graduated from a saloon or blacksmith August 23.] CONSTITUTIONAL CONVENTION. 9 shop or clerk's desk to the bench, there to pass upon the civil rights or the personal liberty of the citizen. Not that a man who may have kept a saloon, or a man who may have earned his liv- ing at a forge, or a man who may have got a salary at a clerk's desk may not be an intelligent citizen, and in every way a respectable citizen, but because of the fact that from his occupation, the work of his life, and, perhaps, his education, he is not fitted to pass upon these questions. Here is an opportunity to do something now for our profession, while at the same time we are doing it for the public. The people at large are interested in having for judicial officers men who know something about the law which they are put upon the bench to administer. I fully agree with what was said by the learned chairman of the Judiciary Committee this morning. I have seen in this judicial district, within a dozen years, a man in one of the most important countes of the district, elected to the office of surrogate, who was not an attorney and counselor of the court — a man called upon to pass upon most important questions relative to wills and their probate, trusts, dowers, and all the various important questions that come up in the Surrogate's Courts of this State, and particularly in the large and growing counties of the State. I believe thoroughly in the spirit of this amendment. I do not believe that it is at all undemocratic. There is no question here of not trusting the people. The trouble with some of these courts is that we have not trusted the people; that we have left it to the officers, to the mayors of cities, to name them, when they should be elected by the electors of the several localities. But however it may be, whether they be elected or appointed, let this Convention do something in the popular interest in the way of elevating the bench, and seeing that men are secured for these posi- tios who know something about the science of government and about the law which they are to administer. This provision can- not, of course, apply to justices of the peace, because they are governed by another section of the Constitution. Mr. Holcomb — Mr. Chairman, the civil justices of the city of New York are compelled by statute to be lawyers, and they are all elected by the people now. I make the point of order that this very matter was disposed of when section 18 was under considera- tion. Then the Convention resolved that the amendment applying to those local officers should not be passed. Mr. Schumaker, of Kings, informs me that the civil justices in Kings county are also elected by the people. It is impossible, as was stated by the chair- man of the Judiciary Committee this morning, to have any amend- ment placed here that will govern and control all the different 10 REVISED RECORD. [Thursday, localities of the State. They are too diverse in their interests. I sincerely hope that this amendment will be voted down. Air. T. A. Sullivan — What is true of the Civil and Police Courts of the city of Brooklyn is also true of the Civil Courts of the city of Buffalo. They are both local courts, and one of the qualifications of the justices to preside there is that they shall be attorneys of sev- eral years' standing — five years, I believe. I ask for the reading of this amendment so that we may all better understand it. The Secretary — The amendment offered is, in line 3, page 15^ after the word " surrogate," to insert the words " District Court justice or judge, or magistrate of any court provided for in section 1 8 of this article." Mr. Dean — I desire to offer a substitute for the proposed amendment. The Secretary — Mr. Dean offers as a substitute for the amend- ment : " That no man shall be eligible to any office in this State unless he shall be an attorney and counselor-at-law." The Chairman put the question on the amendment offered by Mr. Roche, and it was determined in the negative. The Chairman — The amendment offered .by Mr. Roche having been lost, there is no occasion for the substitute offered by Mr. Dean. Are there any further amendments to section 20? Mr. Veeder — For the purpose of having it explained, I move to strike out lines 24, 25 and 26 of page 14. That paragraph is as follows: " In counties where the county judge and surrogate shall be pro- hibited from practicing law, the Legislature may extend the term of office to not exceeding ten years." We have just adopted a provision that that prohibition extend to county judges and surrogates in counties having a population exceeding 120,000. How many counties are there in the State to which that will apply? Is this not a concealed method by which county judges and surrogates may have their terms of office extended to a period of ten years? In other words, you put in a prohibition against their practicing law; and here you make it a reason why they can go to the Legislature and have their term of office extended for a period of ten years. Why not put it in the Constitution and submit it to the people? Why disguise this? Why hide this? Why attempt to conceal the fact that you intend to allow the several county judges and surrogates to apply to the Legislature for an extension of their terms of office? There has August 23.] CONSTITUTIONAL CONVENTION. II been a great deal said here against the right of the people to apply to the Legislature to interfere with the salaries of judges, to deter- mine whether they shall be diminished or increased; yet you leave open the privilege to county judges and surrogates to apply to the Legislature for increased %terms of office. You go before the people as a candidate for office and are elected for a term of six years, and then you sneak into the Legislature and get an extension of four years more. Mr. Marshall — The purpose or the reason for the insertion of the words which have been criticised by the gentleman from Kings, was to provide for those cases where a county judge or surrogate was prohibited from practicing as an attorney and counselor-at-law. The idea of the committee was that an officer who is prohibited from practicing his profession would not be properly taken care of if he should be elected for a short term of only six years, and deprived of the right of practicing his profession during that period, and find himself at the expiration of six years for which he might be elected, out of office and out of practice. A ten years' term of office was, therefore, thought to be a fair equivalent for the right taken away from the officer of practicing his profession. Mr. Veeder — May I ask the gentleman a question? The Chairman — The gentleman from Onondaga has the floor. Mr. Veeder — Then I ask him if he will allow me to ask him a question? The Chairman — The gentleman from Onondaga has the floor. Mr. Marshall — It was, therefore, thought, for this reason, that it would be a proper equivalent to the attorney, who had been elected to the office of county judge or surrogate, if the right to practice as an attorney was taken away from him, to extend his term of office for ten years. The Constitution, however, does not extend his term. So that in every case where the Legislature should pro- vide, as it is authorized to provide by this section for the prohibition, it might, at the same time, take care of the officer against whom the prohibition is aimed. Mr. Veeder — I wish to submit this inquiry. Does not the gen- tleman, or the lawyer — because, as you have got it now, only law- yers can get the office — does not the lawyer, when he is making application to his constituents for nomination, know that the term of office is six years? And does he not know the population of his county? He ought to know that much if he is a lawyer. And, then, has he not all the facts before him when he accepts the nomi- nation? Does he not know that he cannot practice law if he is 12 REVISED RECORD. [Thursday, elected to office? Where, then, is he interfered with or disturbed, or any right of his infringed upon? He goes voluntarily to the convention and seeks the nomination for a term of six years, and then goes to the Legislature and says, " I want four years more, because I cannot practice law." < Mr. Marshall — That was not the intention. The Chairman — Mr. Veeder has the floor. Mr. Veeder — I am willing that Mr. Marshall should have the floor. The Chairman — I am not, while you are speaking. Mr. Veeder — It is unfortunate that the Chair will run the whole thing. I want to say that I cannot understand where a lawyer who gets this office is at all interfered with. He knows in the beginning that he can have but six years in the office, and he knows that he cannot practice law if he takes the office. I am sure that this is not only a ridiculous proposition, but decidedly an unfair one. Mr. Marshall — It was not the intention of the committee, as I understand it, to enable the Legislature to extend the term of office of one who had been elected for the term of six years, but the pur- pose was to enable the Legislature, in counties where it has pro- hibited the county judge or surrogate from practicing law, to extend the term of office of such county judge or surrogate for ten years, but it was not intended to have any relation to existing terms of office. That will be made more apparent when we read line 18, of section 20, which refers to any county judge or surrogate hereafter elected. The whole scope of the provision is prospective, and not retrospective; and the intention was not to enable the Legislature to extend the term of office of one who had been elected for a term of six years, but to make a provision which would regulate the term of office of the county judge in such counties as the Legislature may in the future enforce the prohibition against the county judge or surrogate practicing his profession. Mr. H. A. Clark — It seems to me, Mr. Chairman, that this para- graph, which is asked to be stricken out, is an invitation for the extension of the term of office. It calls the attention of every county judge and surrogate to the fact that he can have his term of office extended from six to ten years, provided he will give up his practice as a lawyer. It calls the attention of every attorney within his county to the fact that if he can combine with the county judge or surrogate to have his office extended to a term of ten years, it may be beneficial to him. I believe in a uniform Constitution, and one that will apply to every county in the State so far as possible. August 23.] CONSTITUTIONAL CONVENTION. 13 I do not think that the office of county judge and surrogate should be extended beyond the term of six years. I am in favor of the amendment. Mr. Crosby — Mr. Chairman, I understood from gentlemen who appeared before the Judiciary Committee that it was not the pur- pose or intention of that committee to in anywise interfere with the local control of the citizens of counties having a county judge dis- charging the duties of surrogate, but, on the contrary, to leave that entirely for those counties to regulate according to their own wishes. As the matter is now regulated by the statute, the separation of the office of county judge and surrogate is left with the board of supervisors of the county. This amendment seems to abrogate the statute in spirit, but there is a provision inserted providing that the Legislature may authorize the election of a separate officer for sur- rogate — a power which is given now to the board of supervisors. There is something peculiar about the language of this proposed amendment. Having reference to the portion of this section which restricts the practice, you will find that the language in line 18 is " county judge or surrogate." By referring to line 24, we find that, for some reason, it reads, " in counties where the county judge and surrogate shall be prohibited from practicing law." There the word " and " is used, uniting the two together, and making this provision refer to only eight counties of the State of New York having a popu- lation of over 40,000 inhabitants. There are only eight counties with a population of over 40,000 inhabitants without a separate sur- rogate. So this refers to the smaller counties of the State; and all the counties, except eight in number, having a population of over 40,000, are not included in, or affected by the proposition. Mr. Marshall — May I interrupt the gentleman? Mr. Crosby — I yield the floor to Mr. Marshall. Mr. Marshall — After conference, some members of the Judiciary Committee, who have had an opportunity to consult upon the ques- tion, have made up their minds that they would come down with- out any further hot shot from the gentleman from Delaware (Mr. Crosby), and they, therefore, consent to the adoption of the amend- ment offered by Mr. Veeder, striking out lines 24, 25 and 26 on page 14. (Applause.) Mr. Veeder — I do not know as it will do any harm now, but lines 22 and 23 are very clever. It says that " the Legislature may impose a similar prohibition upon county judges and surrogates in other counties." That is, in any county. I do not know that that I4 REVISED RECORD. [Thursday, should be left to the Legislature. We say that it shall apply to counties where the population exceeds 120,000; then why should we turn the whole subject over to the Legislature? Mr. Root — I rise to a point of order, that the matter before this committee now is the amendment offered by the gentleman from Kings, to strike out lines 24, 25 and 26. Mr. Veeder — I thought that was agreed to. Mr. Root — It has not been voted upon. The Chairman — The point of order is well taken. Mr. Veeder — I am going to enlarge it. Mr. Marshall — We do not consent to any enlargement. The Chairman put the question on the amendment offered by Mr. Veeder, and it was determined in the affirmative. Mr. Veeder — I think we ought to do the same with lines 22 and 23, and I make that motion. I would like to hear whether the chairman of the Judiciary Committee thinks they should be retained. Mr. Root — I do not know of any subject upon which there have been more conflicting opinions and wishes expressed to the Judi- ciary Committee than upon this subject prohibiting surrogates and county judges from practicing law. Gentlemen came before the committee and represented that great evils resulted from it. Other gentlemen represented that their counties were poor, and that they were not able to pay the county judge a sufficient salary to induce an attorney to give up the practice of law. We finally came to the conclusion that instead of adopting either extreme view, we would do what the Convention has approved — prohibit it in counties which were large and wealthy, but leave it to the Legislature to inquire into the conditions and wishes of people of other counties, and if those people want to pay an adequate salary for the purpose of having their county judge and surrogate give up the practice of the law they can do it, and if they do not want to, they can go with- out it. I think this provision is just and reasonable, that it will meet the wishes of the people, and that it ought to stay here. Mr. Veeder — The danger, to my mind, of leaving that power in the Legislature is great. The county judge or surrogate in a county not affected by the constitutional provision may, by some decision or other, offend some politician — and I am told that politicians have some influence with the Legislature — and he may induce the Legislature to prohibit that county judge from practicing law as a punishment for having done right. I submit it is a dangerous privi- lege to confer upon the Legislature. August 23.] CONSTITUTIONAL CONVENTION. 15 Mr. H. A. Clark — I do not wish to take up the time of the Con- vention, but merely to ask a question. If those two lines are stricken out will not the Legislature then have the right to impose the prohibition contained in them? Mr. Root — I will answer that by saying that it would be left in doubt. I think if we did not impose the prohibition ourselves, a limited prohibition, the Legislature would have that power. But, inasmuch as we do propose a limitation in certain counties, the question would be left in doubt as to whether we did not, by impli- cation, take that power away from the Legislature as to other coun- ties. We want it to be clear. The Chairman put the question on the motion of Mr. Veeder to strike out lines 22 and 23, page 14, and it was determined in the negative. The Chairman — Are there any other amendments to section 20? The Chair hears none. The Secretary will read section 21. The Secretary read section 21, as follows: "Sec. 21. The Legislature shall provide for the speedy publica- tion of all statutes, and shall regulate the reporting of the decisions of the courts; but all laws and judicial decisions shall be free for publication by any person." The Chairman — Are there any amendments to section 21? The Chair hears none. The Secretary will read section 22. The Secretary read section 22 as follows : " Sec. 22. Justices of peace and other local judicial officers, pro- vided for in sections 17 and 18, in office when this article takes effect, shall hold their respective offices until the expiration of their terms." The Chairman — Are there any amendments to section 22? The Chair hears none. The Secretary will read section 23. The Secretary read section 23, as follows: " Sec. 23. Courts of Special Sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law." The Chairman — Are there any amendments to section 23? Mr. Maybee — I move to amend section 23. The Secretary — Mr. Maybee offers the following as a substitute for section 23: " Courts of Special Sessions, except in the county of New York, are abolished, and their jurisdiction conferred on justices of the 16 REVISED RECORD. [Thursday, peace and such local courts or magistrates as may be designated by law, and such justices of the peace and local courts or magis- trates shall have such jurisdiction of offenses of the grade of mis- demeanors as may be prescribed by law, and the same rights of trial by jury as now exist in cases triable in the Court of Special Sessions shall continue in cases triable before justices of the peace and local courts and magistrates specified in this section." Mr. May bee — I simply desire to state that my object in offering this substitute is to make it uniform and consistent with the pro- vision that has already been adopted abolishing Courts of Sessions and conferring their jurisdiction upon county judges. It seems to me, in order to preserve uniformity in this entire article, that if the Court of Sessions is to be abolished, the Court of Special Sessions should also be abolished. The Chairman put the question on the motion to substitute for section 23 the amendment offered by Mr. Maybee, and announced that the motion was lost. Mr. Cookinham — I was about to remark that the gentlemen of the Judiciary Committee who sit near me agree to the amendment, and I was about to remark, also, that the amendment probably ren- ders the article a little more logical and symmetrical, and I think there should be no objection to it. I think it should be adopted. The Chairman — The Chair declared the motion lost. Mr. Maybee — Then I move to reconsider the motion. Mr. Root — I hope that the subject will be reconsidered, and that the gentlemen who are familiar with these courts (as I am not, for we do not have them, or at all events, I have very little knowl- edge of them in my own city) have really fully considered the question. If they have, and think that this alteration preserves all the necessary and important jurisdiction, I see no objection to it. Mr. Griswold — Just a word of inquiry to the chairman of the Judiciary Committee. I see that the language here is " Courts of Special Sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law." Now, when you say of any grade that they may have jurisdiction of it as they have of other offenses, you make it exactly of the grade of misde- meanors, and I ask whether it would not be better to say, " juris- diction of the grade less than felonies? " Mr. Marshall — This is exactly the language of the present Constitution. The Chairman put the question on the motion of Mr. Maybee August 23.] CONSTITUTIONAL CONVENTION. 17 to reconsider the vote last taken, and by a rising vote of sixty ayes to forty-seven noes, it was determined in the affirmative. The Chairman — The motion to reconsider is carried. The question now is upon the motion made by the gentleman from Sul- livan county, Mr. Maybee. Mr. Griswold — I ask to have that substitute read again. The Secretary read as follows: " Courts of Special Sessions, except in the county of New York, are abolished, and their jurisdiction conferred on justices of the peace and such local courts or magistrates as may be designated by law, and such justices of the peace and local courts or magis- trates shall have such jurisdiction of offenses of the grade of mis- demeanors as may be prescribed by law, and the same rights oi trial by jury as now exist in cases triable in the Courts of Special Sessions shall continue in cases triable before justices of the peace and local courts and magistrates specified in this section." Mr. Maybee — At the suggestion of members of the Judiciary Committee, I desire to add after the word "abolished," the words " from and after the last day of December, 1895." Mr. A. B. Steele — Mr. Chairman, as I understand this amend- ment, it clinches the suggestion that I made this forenoon, that the jurisdiction conferred upon justices of the peace should remain inviolate for all time to come. I understand that there is quite an element here in this Convention who believe that should not pre- vail; they believe, upon the other hand, that there should be some remedy in our inferior or Justices' Courts; they believe that we should in some manner have some relief, at least in the Legislature, whereby a man who sits as a trial court, who sits at the trial, per- haps, of some man who is charged with some offense, will know something about the law or at least something about the admission of evidence. Now, Mr. Chairman and gentlemen, I am not interested in this matter personally, because the time is past in which I have to try cases in these inferior courts — I hope it has passed — but I have been through the matter from the beginning to the end. For the first ten years of my practice I tried more cases by far in Justices' Courts r.nd in inferior courts than in any other place. In fact, my practice was substantially there, and for the last ten years I have occasionally been obliged to try cases in those courts. Will you pardon me just a moment, if I refer to a very few instances. First, and to start with, the practice in the country is usually for the justice who tries the case to have his 2 1 8 REVISED RECORD. [Thursday, office in the same office with a lawyer, and, therefore, he is that lawyer's justice. Almost invariably in the actions brought before that justice, or in the criminal proceedings taken before that jus- tice, the party is represented on one side or the other by that law- yer — and usually in starting the case. I ask you, gentlemen, what chance has a stranger, what opportunity has the client of a stranger for defense, if he is trying the case against the partner, you may say, of the justice; because the justice, having his office in the same office with the lawyer is, in one sense, a partner — at least a partner in the interest of getting as much business as he can. I know an instance that occurred very recently where that matter was tested. A young man was charged with larceny — with having taken ten dollars from a till or drawer. The complainant went to see a law- yer, and the lawyer advised him to have the man arrested and brought before a certain justice — the justice occupying the same office with him. The arrest was made. The only evidence in the case of the young man's guilt was that the proprietor of the store when counting his money thought that he was ten dollars short; he believed that he was; he was willing to take his oath that he believed so. He then called up one of the employes in his store, and inquired about the taking of money out of the till, and the employe said that he thought he heard the drawer-till move. The young man went on the stand in his own defense, and denied abso- lutely the charge. But the justice, being in the same office with the lawyer of the complainant, found the young man guilty, and thereby cast a stain upon his character that will go with him to the grave. I know of another instance, a civil case, brought in one of these inferior courts, where the justice of the peace wrote out his docket before the party appeared, supposing that the defendant would not appear, and when the time came and the appearance was made, it happened that only the plaintiff appeared, and he read to him his docket, and, with an oath, said: " There, swear to that, will you?" That is an actual occurrence. Many more of these occur- rences could be cited. I suppose it might be said, " Why not call a jury?" Yes; that is true. But when I was in practice I could go into a town and I might call a jury, but the lawyer for the com- plainant would get all his friends on the jury — he would select the jury and select the justice as well, and that is the way the cases were tried. If a stranger goes into a place and the friend of the justice is selected as counsel for the plaintiff, then the defendant or a person who lives out of the place, stands no chance whatever, except on appeal, and that is very expensive. Now, Mr. Chairman, it seems to me this Convention ought not to go so far as to deprive August 23.] CONSTITUTIONAL CONVENTION. 19 the Legislature of the opportunity to investigate these inferior courts, and if they conclude that there is abuse there which ought to be remedied, then they ought to have that right; and you ought not to adopt this amendment which forever reposes in justices of the peace the criminal jurisdiction that they now exercise. Mr. Becker — Mr. Chairman, it seems to me that this is a matter in which we should make haste slowly. Since 1847, tne Constitu- tion of this State has contained a clause which simply provides in the language embodied in the amendment proposed by the Judi- ciary Committee, that Courts of Special Sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law. Let us pause for one moment to consider the legal effect of that provision. Is it not clear that the Legislature itself has all the power in that matter that my friend Steele desires it should have? Would it not be possible for the Legislature, under existing provisions of the present Constitution to make such inquiry and investigation as may be deemed advisable, and to pass such la\vs limiting the jurisdiction of those courts as it sees fit? It says that " Courts of Special Sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law." Does not that open the door to prescribing, now or here- after, any jurisdiction; little or great, as the Legislature may see fit, subject, however, to other provisions of the Constitution? Now, if it is desired to change the law in that respect, if it is desired to create any other court which shall have jurisdiction of civil and criminal cases, that right has ever since 1847 been conferred by the provisions of section 19 of article 6, which section in substance and effect, as regards this matter, is embodied in the amendment to article 6, proposed by the Judiciary Committee. That section reads as follows: " Inferior local courts of civil and criminal jurisdiction may be established by the Legislature." Under this existing pro- vision which should, under the well-known canons of construction of statute and Constitutions, be considered and construed together, the full power and authority has been vested, and is now vested, and will be vested if the article proposed by the Judiciary Commit- tee is adopted, in the Legislature to do everything that is required in the way of reform or amendment in these particulars. On the other hand, into what unknown sea of difficulty, doubt and danger do we plunge if we undertake to make this absolute change at this time, and on this very slender and very brief consideration. In my city jurisdiction over offenses of the grade of misdemeanors is con- ferred upon a local magistrate known as a police justice, who is also, by that same statute described, when he holds the Police Court, 20 REVISED RECORD. [Thursday, as holding it as a Court of Special Sessions. In other cities similar jurisdictional powers prevail in inferior local magistrates. If by one stroke of the pen you undertake to abolish these courts — although the language may be drawn by my friend, Mr. Maybee, in whose accuracy in drafting and in whose ability as a lawyer I have the fullest confidence — although the amendment be so drawn as to apparently confer certain powers which are prescribed by law, a serious question may arise as to the status of cases now pending and which may be pending at the time this provision takes effect, in those courts. I think this is a very dangerous matter. I trust that on sober, second thought, the Convention will not undertake to wipe out hastily, and without full examination, provisions of law which have been known for nearly fifty years, which are understood by the lawyers and the people, and which have been so many times con- strued by all our courts; and especially where we have, as I think, under existing provisions of the Constitution, ample remedies still existing in the Legislature. I hope that this amendment will not prevail. Mr. H. A. Clark — Mr. Chairman, I think there is great danger of our- acting too hastily in reference to this section. The statute now provides for a justice of the peace doing certain things as a magistrate, for his transacting certain other business as a justice of the peace, for his transacting certain other business as a Court of Special Sessions. Now, this Convention has done away with the Court of Oyer and Terminer, and given the Supreme Court the jurisdiction formerly held by the Court of Oyer and Terminer. It has done away with the Court of General Sessions, and has con- ferred that jurisdiction upon the County Court. To be logical, if it makes those changes, it should do away with the Court of Special Sessions and confer its jurisdiction upon the court of the justice of the peace. But that is not the amendment. The propo- sition is to confer the jurisdiction upon the individual and not upon this court. It is proposed by this amendment to do away with the Court of Special Sessions, and to give to the individual, to the magistrate holding the office of justice of the peace, the power to try people for misdemeanors. This certainly is a mistake, and ought not to be done without due consideration. It would not be logical, it would not be in keeping with the rest of the Constitution, to confer criminal jurisdiction upon the individual. If it is changed at all, it should confer it upon his court. As a court, he has the power to summon a jury to sit, but he has no such power as a magistrate; he has no such power as an individual. If there is any change to be made in this, then this amendment certainly should August 23.] CONSTITUTIONAL CONVENTION. 21 be amended. I hope no amendment will be adopted. I have been in favor, so far as I could consistently, of agreeing in all respects with the Judiciary Committee, and of carrying out the ideas that they have expressed in their article; and I believe that we will make no mistake if we leave this section as it now stands. Mr. E. A. Brown — It seems to me, Mr. Chairman, that there is a misapprehension in relation to this proposed amendment as part of the scheme presented by the Judiciary Committee. The Court of Oyer and Terminer has been abolished simply because it was an empty name. The Supreme Court sitting at bench was the Court of Oyer and Terminer and was the Circuit Court. Also, in the county, Courts of Sessions have been abolished, as I understand the chairman of that committee. Under the system as it now is, the inferior court to the Court of Sessions is the Court of Special Sessions, and that is constituted simply of a justice of the peace. A justice of the peace has civil and criminal jurisdiction, and when he sits to try civil cases he is a justice of the peace, and if a criminal is brought before him he is a Court of Special Sessions. Now, as I understand, this proposed amendment, it is simply to perfect the symmetry in relation to this matter. I understood the chairman of the Judiciary Committee to say that he was unfamiliar with these inferior courts; but those of us who have had longer experience in them I think understand that matter entirely. A justice of the peace can empanel a jury to try a civil case or a criminal case. Now, what sense or reason is there in attaching a different name — for it is all in the name — to a justice of the peace sitting to try a civil case, and calling him a justice for that one case, and then when he tries a criminal case, calling him a Court of Special Sessions. It is just like striking off the head of the ticket and saying that you will abolish the office of President and retain the office of Vice- President. We propose to strike down the Court of Sessions and still maintain in this Constitution the Court of Special Sessions. That is all there is of it. It is a plain, simple proposition. We all agree with the wisdom of the Judiciary Committee in abolishing the Court of Oyer and Terminer between the County Court and the Court of Sessions; now, why not in all good conscience and good reasoning, abolish the difference between the court of the justice of the peace and the Court of Special Sessions? Mr. Cassidy — I think the distinction is more than a distinction in name between Justices' Court and the Court of Special Sessions. A jury in a Court of Special Sessions is drawn in an entirely differ- ent way from a jury in a Justices' Court. An appeal from an action in Special Sessions is taken in an entirely different way from an 22 REVISED RECORD. [Thursday, appeal from a Justices' Court. It will only produce confusion in the Code of Civil and Criminal Procedure, with reference to the manner of drawing juries, and with reference to appeals; and merely for the sake of euphony to tumble over a dozen statutes, and to change a dozen or a score of sections in the Criminal Code, seems to me the utmost folly. I cannot see any great harm coming to the people from preserving the Court of Special Sessions, as it has been preserved in this judiciary article. Mr. Maybee — I desire to ask the gentleman a question. He says that a jury in a criminal case before a justice of the peace is drawn in a different way than in a civil case. Does he not know that, as the law is, the jury in each case is drawn in the same way? Mr. Cassidy — I do not, nor does the gentleman from Herkirner. Mr. A. B. Steele — I think there is a little misunderstanding here, with reference to the provisions of this amendment. In my remarks before I did not intend to be understood as speaking against the provision reported by the Judiciary Committee, but against the pro- posed amendment of Mr. Maybee. The principle objection that I have to that is the fact that this proposed amendment, if incorpor- ated into the Constitution, perpetuates the jurisdiction that justices of the peace now have, or that the Special Sessions now have. It provides that that jurisdiction shall continue for all time to come. Therefore, if Mr. Maybee's proposed amendment is adopted, the Legislature cannot abolish the office of justice of the peace, but must continue it so long as this proposed constitutional amendment is in force. Mr. Spencer — It seems to me that there is some misapprehen- sion in regard to the matter that is now before the Convention. If I understand the proposition of the gentlemen who have been speaking, it is simply to bring the matter in harmony and nothing more nor less — so that the provision applicable to the Special Sessions shall correspond with the changes that have already been made by this committee, in respect to County Courts and Courts of General Sessions. When that has been said, all has been said that possibly can be said in favor of this amendment. In addition to what has been said by Mr. Cassidy, as to the danger of going too fast in this matter, I wish to say that in many cities, and, especially in the smaller cities, the adoption of this amendment would bring confusion to the Police Courts of those cities; and that, if we are to adopt this amendment, I see no other course but to send this matter back to the Judiciary Committee and have it fully August 23.] CONSTITUTIONAL CONVENTION. 23 and safely consider it. You cannot hastily adopt this amendment with safety. Mr. Root — I have been making inquiries from a number of gentlemen in the Convention and find that there are in various cities of the State Courts of Special Sessions presided over by police justices and other officers who are not justices of the peace. If you adopt this amendment, we would be wiping out courts without knowing anything about it, and would send their jurisdiction into the air, with nobody to exercise it. I think the only safe course is for us to hold by the provision in the Constitution, as we find it, and the committee has reported it. (Applause.) The Chairman put the question on the motion to substitute the amendment proposed by Mr. Maybee, and it was determined in the negative. The Chairman — Are there any further amendments to this sec- tion? If not, amendments to printed No. 422 generally are in order. Mr. Towns — I have a substitute which I wish to offer for the entire article. The Chairman — A substitute is not in order until amendments are offered. Mr. Towns — I offer it as an amendment to the article. Mr. Root — I ask that it be read. Mr. Towns — I move to strike out all after the enacting clause, and insert this amendment. The Chairman — The Chair holds that a substitute cannot be offered until amendments have been offered. Mr. Towns — I understood the Chair to say that amendments were in order, and I offer this as an amendment. The Chairman — The Chair does say so, but it holds that making a substitute in the form of an amendment cannot be done. Amend- ments are now in order. Mr. H. A. Clark — Mr. Chairman, I have an amendment to offer. Mr. Towns — I move to amend the first section — The Chairman — There is an amendment already pending. The gentleman from Tioga (Mr. Clark) has offered an amendment which the Secretary will read. The Secretary — Mr. H. A. Clark moves to amend section 19. page 14, line 7, after the words "Supreme Court," by adding the words " and County Courts." 24 REVISED RECORD. [Thursday, Mr. H. A. Clark — Mr. Chairman, this amendment relates merely to declaring the clerks of the several counties clerks both of the Supreme Courts and of the County Courts. It is a fact, I think, that in every county of the State the county clerk is the clerk of the Supreme Court and also clerk of the County Court. It seems to me that the Constitution should contain, after the words " Supreme Court," the words " and County Court." I examined the old Con- stitution, the one that we are now living under, and I do not find those words in it. I assume that the county clerk is the clerk of the County Court by virtue of some statute which I have not had the opportunity to examine. I have consulted one or two members •of the Judiciary Committee, and those whom I have had opportunity to consult seem to agree with me that those words should be con- tained in this section. The Chairman put the question on the amendment moved by Mr. Clark, and, by a rising vote, it was determined in the negative, j-eas, 38; nays, 55. Mr. McKinstry — I offer the following amendment : The Secretary — Mr. McKinstry moves to amend section 14, in line 20, page n, after the words "shall be established by," by adding the words " the board of supervisors," and in line 13, page 12, after the words " shall be established by," to insert instead of the word " law " the words " the board of supervisors." Mr. McKinstry — The purport of this amendment is to have the salaries of the county judge and surrogate fixed by the board of supervisors in the respective counties, instead of by the Legislature. We have heard a great deal about home rule here. Now, let us have some of it. This Convention has been appealed to by gentle- men and delegates from the cities to permit them to have home rule, and we would like to have it. I want to say that it is as obnoxious to have our matters interfered with in the counties as it is to gentlemen from the cities. We think that the people in the country know what is necessary there; they know also what their officers are doing, and what they are earning. As this matter now is, it is not left to the Legislature, but practically it is left to the member or to the Senator from the district, and very often he does not represent the people. The board of supervisors of the district to-day fixes the salaries of several of the county officers, of the county treasurer, the county clerk and also the superintendent of the poor. If they can fix those salaries, they can fix the salaries of the county judge and surrogate. We want now to see how many of you are in favor of home rule. Now, the county judge, surro- August 23.] CONSTITUTIONAL CONVENTION. 25 gate and county district attorney, all three, belong to the same learned profession. Mr. Hirschberg — Mr. Chairman, I think the amendment offered by Mr. McKinstry is very wise. There never has been any reason why the salaries of the county officers should be fixed by the Legis- lature at Albany instead of by the local legislatures in each county — except a feeling on the part of individuals that the local boards are narrow and niggardly in their treatment of the subject. That is not an adequate reason. They influence the matter now quite effi- ciently and as powerfully as they would, if the power were vested in them directly. A bill was passed last winter affecting the salaries of an official in one of the counties and it was vetoed by Governor Flower because it was opposed by the board of supervisors. The boards of supervisors regulate these salaries now, notwithstanding the fact that the formality of an act of the Legislature is necessary. In my own county the salary of the county judge was $3,000 a year many years ago, but the board of supervisors passed a resolution directing that it should be reduced to $1,500. The members of the Legislature were instructed to have such a bill introduced and passed, and it was passed. It would be impossible to have a bill reported and passed in the Legislature to-day without the affirma- tive assent of the board of supervisors. The proposed amendment is entirely proper, is logical, and no good reason can be assigned why each county should not regulate the pay of its county officials, and the fear that they would not give them enough is not a suffi- cient objection. If any good reason can be assigned, I would like to hear what it is. Mr. Xicoll — Do you understand that this amendment affects the city of New York? Mr. Hirschberg — No, sir. Mr. Nicoll— Why not? Mr. Hirschberg — If it does, it can easily be excepted. Mr. Nicoll — I quite agree with your proposition as to home rule. Mr. Hirschberg — I did not suppose there was a board of super- visors in the city of New York. Mr. Nicoll — For some purposes I believe the common council have the same powers. Mr. Hirschberg — I supposed that the salaries in New York were fixed by the charter. \ Mr. Dean — I dislike to stand up here in opposition to my dis- tinguished friend, but I am seriously opposed to allowing the farm- 26 REVISED RECORD. [Thursday, ers of Chautauqua county, or of Cattaraugus county, or of any other county, to fix and regulate the salaries of important officers. I do not believe in it. It seems to me more dignified to leave it just as the Judiciary Committee has left it — in the hands of the Legislature to establish salaries by law. Mr. Hirschberg — I should have added to what I have already said the additional reason that the fact that the committee has provided by the organic law that a salary shall not be increased or diminished during the term of office, is an additional reason why the power should be left to the board of supervisors. An official goes into office at the same time that the Legislature commences its session. The supervisors have their sessions intermediate the elec- tion and the commencement of the official terms. A provision such as has been inserted here, without this additional provision, is tanta- mount to saying that a change shall never be made in the salary of any county official. Mr. Bush — Mr. Chairman, I do not fully agree with the gentle- man from Orange, that it is a good thing to permit the board of supervisors, under the article as we have adopted it, to regulate the salaries of the county judges and surrogates. I think, upon reflection, the gentlemen from the country districts will agree with me. Now, if the salary is to be regulated by the board of super- visors, and after it is once fixed cannot be increased or diminished, we will bring the question right into the county where party lines are very strongly drawn, and there will be constant agitation upon this subject every time a county judge is elected. We will assume a case. We will assume that, at the coming election, a county judge is to be elected. He may be a Democrat, while the board of super- visors is Republican. There is nothing in the world to prohibit that Republican board of supervisors from cutting the salary down one- half. The county judge must take his seat, but that salary cannot be changed, increased or diminished while he holds his term of office. And so, in every case where the board of supervisors is of contrary political faith to the county judge, that question will be coming up, and wherever there is strong political bias, strong party feeling, if the man elected county judge has made enemies in the opposite party, you will find that question of salary brought up in the board of supervisors every time. It will be a great danger and scandal to the community, and should not be permitted in connection with an office of the standing and dignity of county judge or surrogate. For that reason I think it is more conducive to the peace of the community, and more consonant with the dignity of the position of judge or surrogate, to leave that August 23.] CONSTITUTIONAL CONVENTION. 27 matter to the Legislature — where the whole matter can be con- sidered, and local feeling separated entirely from the decision of the question. Mr. Hirschberg — Does not that same thing apply to district attorneys, county treasurers and all the rest of the county officials? Why except the county judge? Mr. I. S. Johnson — I hope, Mr. Chairman, that this amendment will pass. I believe distinctly in the doctrine of home rule as sug- gested by the gentleman from Chautauqua; and I believe tha{ the gentlemen from New York, and from other sections of the State who are constantly asking us to give them home rule, should be willing to concede to the country districts the right to fix the salaries of all of their county officers. There is no reason why the county judge should be excepted. In my own county, I well remember the time when a county judge was elected on a certain salary, and the board of supervisors met and immediately afterwards saw fit to raise his salary five hundred dollars. He was not satisfied with that, but went to the Legislature for an increase, and the Legisla- ture added seven hundred dollars more to the salary. Hence I do not agree with the gentlemen in the statement that the Legislature will always be governed by what the county needs. In that case, the board of supervisors fixed the salary; the Legislature was informed of what it had fixed it at, and in disregard of the wishes of the board of supervisors, which had increased the salary once, the Legislature added another increase to it. I hope this amend- ment will pass, and that each county will be given authority to fix the salaries of all of its county officers. Mr. Nichols — It seems to me, Mr. Chairman, that the officers known as judicial officers in the several counties in the interior of the State, outside of the cities, ought to be removed in the matter of their compensation as far as possible from the board of super- visors. My reason for that opinion is this: Not that the board of supervisors will deal unjustly with them, and not that they might not fairly be trusted with the important charge of fixing the com- pensation of these officers, but I believe that the judiciary should be removed as far as possible from the authority that fixes its compensation. I believe that the surrogate and the county judge ought not to be permitted, and ought not to have, the power to go before the board of supervisors at any time and ask the supervisors to raise their salaries. They are their clients; they are their friends ; and the result of a proposition of that sort would necessarily be embarrassing to the supervisors on the one hand, 28 REVISED RECORD. [Thursday, and would be prejudicial to the officers who sought the board of supervisors on the other. There is another objection to the propo- sition, and it is this: That if any county now desires to have con- ferred upon the board of supervisors the power to fix the salaries of these officers, it may go to the Legislature and procure the passage of an act, under the Constitution as it is to-day, author- izing the board of supervisors to exercise the authority of fixing the salaries of those officers. It seems to me that these are cogent reasons why this amendment should not prevail and that the Con- stitution should be left as it was when we convened here in this body. These are the reasons which suggest themselves to me. This question was carefully canvassed in the committee, while the Committee on County, Town and Village Government had the matter under consideration, and by a very considerable majority they concluded that the provision of the Constitution as it now is should prevail. I hope, therefore, that the report of the committee in this regard will be sustained. Mr. Abbott — I agree with the remarks of the gentleman from Ulster, with the single exception that I think there is a fallacy in his assumption that this year there will be any Democratic county judge elected. Aside from that, I agree with his argument. It seems to me that the proposition involved in this amendment is erroneous, for this reason — or at least is mischevious for this reason: that under the present practice the board of supervisors, meeting as they do immediately after the election, the man who is elected county judge of any county is very likely to think that he is insufficiently paid and to immediately solicit an increase in salary, and bring everything to bear upon this question that he can to influence the board of supervisors to increase his salary. Under the amendment proposed by the committee that element of per- sonal solicitation will be removed from the matter entirely, because action must be taken at least nine months before the election, and when nobody knows whether he is going to be elected judge or not, and when he has not the personal interest in the matter that he has immediately after the election. For that reason it seems to me that the provision of the committee is the wiser provision, and I am in favor of supporting it. Mr. J. Johnson — Mr. Chairman, I think I should fail in my duty to the citizens of Kings county if I were to vote for a proposition that would give to the board of supervisors of that city unlimited power as to salaries, and fix that in the Constitution. And I so express myself without at all, as I understand it, interfering with the proposition of home rule lo the extent that I have had the August 23.] CONSTITUTIONAL CONVENTION. 29 privilege of advocating it in this Convention. I should be alto- gether willing to support a proposition that the Legislature shall not change the salary of the county judge or of any officer of the county without the concurring action or consent of the legislative body representing the taxpayers who are to pay the charge. I think that such an amendment as that should be framed, and I hope that it will meet the wishes of the gentleman moving this resolu- tion, and will release the county, as it should be, from the pos- sibility in any way of having the State authorities saddle an addi- tional charge on the county for a service that is entirely local to that locality. Mr. O'Brien — I have but a word to say upon this question, Mr. Chairman and gentlemen. I come from one of the interior counties of the State, and I come from a county in which the board of super- visors is a board of exceptional intelligence and ability, and has been such for many years; but I agree thoroughly with the gentle- man from Steuben (Mr. Nichols), when I say that in my opinion it would be better for the county officials themselves not to be placed in the position of being applicants to the board of supervisors for additions to their salaries. It seems to me that it is entirely unneces- sary; and that the more dignified position for the judiciary of the State, whether general or local, is to leave their interests in that respect in the hands of the Legislature, where they now are. ~Mr. Bowers — This question in the Judiciary Committee was adjusted very largely by the delegates representing the districts which it is now claimed seek the benefit of the present amendment. The delegates from New York and Kings counties did not deem it their duty to interfere, and did not interfere, but accepted the judg- ment of others who were more conversant with these questions. Certainly we can have no objection as a principle to any county having home rule to the most unlimited extent. It is one of the things that we wish, and shall continue to ask at the hands of this Convention. At the same time this amendment ought to be cor- rected, if it is to be passed, and if it is really wanted by the dele- gates from the counties not having large cities within their borders, so as not to apply to the counties of New York and Kings. If those counties are excepted I presume that my associates on the Judi- ciary Committee will excuse me from voting on it, and it can be left to be settled, as it ought to be settled, by the delegates repre- senting the districts to be affected by it. Mr. Smith — I am glad that an opportunity to support this amendment is offered me. I am glad of the opportunity to 3o REVISED RECORD. [Thursday, support the amendment, because it is founded upon principle. I have repeated here, time and time again, what I believe should be the lines upon which we should make a Constitution — that it should be made of principles. This amendment involves the prin- ciple of the right of contract. These county officials are to be paid by the county. They are elected by the county. I might say that thev are employed by the county. The amount to be paid them for salaries is their rate of wages. It is wholly a local matter. It is entirely a matter that should be determined within county lines. "When nominations are made for these local offices, they are made to be approved by the electors of the county. They are made in view of the wages to be paid by the county for the services to be rendered. It is wholly a matter for the county to decide and dispose of. The State has nothing to do with it. There is no reason why the State should interfere to regulate the rate of wages paid in a county by the county, to its employes — none whatever. It is simply a matter of principle. Found it upon principle, and you relieve it of all embarrassment. I repeat that it is wholly a matter for the people of the counties. It is not creditable for repre- sentatives here to impugn the integrity of the people of their coun- ties. There is a principle which lies at the foundation of all govern- ment by the people, and that is, that the people are capable of governing themselves in every locality in respect to the affairs of that locality; that the people of the State are capable of governing themselves in respect to the affairs of the State; and so of the nation. This is wholly a matter of principle, and it should be left entirely to the counties ; and if you depart from this principle and resort to the practice of impugning the integrity of the people by casting reflec- tion upon their honesty, you depart from the great doctrines that should guide us in our action. I am in favor of this amendment. (Applause.) Mr. Doty — Mr. Chairman, it seems to me that there is a very much larger question involved in this proposition. It is not a local question, in my judgment, whether the most efficient ser- vice in the office of surrogate and county judge is obtained. It seems to me that it is, contrary to the statement of the last speaker, a matter in which the State has a very large interest. In addition to that, I desire to say that I have never heard of a county that desires to have committed to its board of supervisors, and taken away from the Legislature, the matter of fixing compensation. It seems to me that it would introduce into the board of super- visors a very vicious and a very unfortunate element, and would create continual contention, and that the inevitable effect of it will .August 23.] CONSTITUTIONAL CONVENTION. 31 be to secure a class of men as surrogates and county judges who will not be satisfactory. As a delegate from the country I say that we do not, in my judgment, ask that this matter be deferred to the action of the boards of supervisors. The Chairman put the question on the amendment moved by Mr. McKinstry, and it was determined in the negative. Mr. Choate — Mr. Chairman, I move that the committee now rise and report, recommending the passage of this article as already amended. The Chairman put the question on the motion of Mr. Choate, and it was determined in the affirmative. Whereupon the committee rose and the President resumed the chair. Mr. Acker — Mr. President, the Committee of the Whole has under consideration, proposed constitutianal amendment No. 422, entitled "To amend article six of the Constitution, relating to the judiciary," have gone through with the same, have made some amendments thereto, and instruct me, their chairman, to report the same to the Convention and recommend its passage. I therefore make such motion. The President — You have Heard the report of the chairman of the Committee of the Whole, recommending the passage of article 6 as it stands amended. The question is on agreeing to that report. Mr. Lincoln — Are amendments to the report of the Committee of the Whole in order? The President — Not in order. Mr. Lincoln — Is a motion to amend the report in order? The President — I think not. Mr. Lincoln — Then I move that the Convention recommit to the Committee of the Whole this judiciary article, with instructions to amend "section fourteen by striking out the first paragraph and inserting therein the amendment proposed by me this morning, and which the Secretary has; or, I move to recommit to the Judi- ciary Committee, with instructions to report, if that is the proper motion. Mr. Root — I am sure, Mr. President, no one can be more anxious than I am to have this judiciary article finally passed upon. But I am told by several gentlemen that they have amendments which they wish to offer to the article, and that they understood that there would be an opportunity to offer amendments generally, but that they were unexpectedly cut off by the motion to report xvith the recommendation for the passage of the article. I certainly 32 REVISED RECORD. [Thursday, do not wish that this article, in which every member of the Con- vention has an interest, should be submitted to final consideration and vote of the Convention without every delegate feeling that he has had a full opportunity to propose any changes that he wants made. (Applause.) And so, at the risk of whatever confusion or result may follow, I want this to go back to the Committee of the Whole, and if it is possible, that it shall be done now, in order that this amendment may be offered. I therefore move that the Con- vention disagree to the report of the committee, and recommit this proposed amendment to the Committee of the Whole, with instruc- tions to sit immediately. Mr. Cookinham — Mr. President and gentlemen, I suppose the parliamentary way of voting upon every amendment that has been offered in Committee of the Whole is for the mover to make a motion, here and now, that the bill be so amended as he may desire it. It is not necessary for the bill to go back to the Com- mittee of the Whole. Any amendment that was offered in Commit- tee of the Whole may be here and now offered, and a vote may be had upon that. The President — The Chair will rule that any amendment acted upon in Committee of the Whole may be offered now. Was this amendment offered in Committee of the Wrhole? Mr. Lincoln — It was; and I offer it again now. Mr. Root — The difficulty is that there are several gentlemen who had amendments to offer which they did not offer, and they say they were unexpectedly cut off. It is in order that they may have that opportunity that I made the motion. If they can be permitted to make their motions now and here, then that is all that I care for. All that I want is that they shall have full opportunity. Mr. E. R. Brown — I think that the suggestion made by the chairman of the Judiciary Committee is an eminently proper one; but I would like to suggest to this body that it would not be con- ducive to agreeable sentiments towards the judiciary article on the part of those whose amendments had not been carried, and it might not be beneficial to the article itself, to absolutely close the door at this time to the consideration of the main question which has been submitted here. It seems to me that if the matter should lie over for a day or two, so as to give opportunity for consultation among the gentlemen who are principally interested in these matters, and for consultation with the Judiciary Committee with the view of reaching a substantial agreement upon points of difference, it would be most desirable. I sincerely hope that the August 23-] CONSTITUTIONAL CONVENTION. 33 matters in controversy which cannot be considered under the rules, either in Committee of the Whole or before this Convention, will not be pressed to a too hasty conclusion. Mr. Alvord — It seems to me, Mr. President, that the way out of the difficulty is to move to disagree with the report of the Com- mittee, and after that shall have been passed (as I understand there is hardly any objection to it upon the floor of the Convention), then the gentleman from New York can move that we go again into Committee of the Whole on the bill. Mr. Root — Mr. President, my motion is that we disagree to the report of the Committee of the Whole, and recommit the bill to the Committee of the Whole, keeping its place as a special order. Mr. Alvord — I have no objection to that motion, but it would be more consistent with parliamentary rule to pass the first propo- sition, and then the next. The President put the question on the motion of Mr. Root, and it was determined in the affirmative. The Convention thereupon went into the Committee of the Whole with Mr. Acker in the chair. The Chairman — The Convention is now in Committee of the Whole on No. 422, and the Chair will hold that amendments are in order. Mr. Peck — I offer an amendment. The Secretary — Mr. Peck offers this amendment : " Insert in place of section 2 " Mr. Peck — Perhaps I had better state for the benefit of the Convention, and for the purpose of saving time, the effect of the amendment. It is intended in the first place to make the inter- mediate court, which is called the Appellate Division of the Supreme Court, a court. And, in the second place, to reduce the number of judges of the intermediate court so that the additional judges already provided for in the first section of this article shall pro- duce a sufficient number of judges for all the departments except the first. It is not a measure offered for the purpose of increasing the number of judges to be elected. I make this motion because on a study of the article for the purpose of discovering its strong and its weak points, I find this paradoxical state of things, that the strongest item of this scheme is the weakest. In other words, that the provision for an Appellate Court, with the limitation imposed upon the Appellate Division of the Supreme Court, and 3 34 REVISED RECORD. [Thursday, with its powers as a court of last resort, is a very strong and a very necessary provision in our system of courts. But when I come to the development of that idea, when I come to the study of the method in which that court is to be formed, I think we have in this provision the weakest part of the article. I think that if this measure fails anywhere, it will fail at what we choose to call the General Term. I think that no lawyer here will deny that General Terms have failed. I think that the mere fact that a desire is so generally expressed for a reorganization of that part of the court is proof of the fact they are unsatisfactory. In this article we have nothing but the old General Term increased by two judges. In other words, we have a court composed of judges elected from a foreign constituency, for a different purpose, sitting in courts to decide causes of parties who have nothing to do with the formation of the court. Now, in reviewing the necessity for fixing the num- ber of judges of the Court of Appeals, we have from many sources what were considered by the most eminent men in this Convention, the necessities for a perfect Court of Appeals; and the first of those was, that there should be judges elected for long terms — that is, that it should be a stable court; that we should have men sitting together long enough to understand each other's methods, to appre- ciate each other's qualities. Why was this element excluded from this Appellate Division? We have here a court of five judges as an Appellate Court; and we have offered to us an Appellate Court of last resort for some purposes. Another, and a very important reason was that these judges could be elected The President — Mr. Peck will continue his remarks after recess, which the Convention now takes until eight o'clock this evening. EVENING SESSION. Thursday Evening, August 23, 1894. The Constitutional Convention of the State of New York met in the Assembly Chamber, in the Capitol, at Albany, N. Y., August 23, 1894, at 8 P. M. Vice-President Alvord called the Convention to order, and called Mr. Acker to the chair, in Committee of the Whole. The Chairman — The Convention is still in Committee of the Whole on (O., 1. 383, P. 422) general order No. 45, considering the proposition as a whole, and the gentleman from Rensselaer (Mr. Peck) has the floor. August 23.] CONSTITUTIONAL CONVENTION. 35 Mr. Peck — Mr. Chairman and gentlemen of the Convention, I have proceeded so far in my statement of this amendment which 1 have prepared, and have developed it far enough to excite the interest of several members of the Convention, who have asked me to allow the entire amendment to be read, in order that it might be fully understood. I will, therefore, ask the secretary to read it. I ask the members of the Convention to notice how small a change is made in the section, and that the system pro- posed by the committee is not interfered with in any substan- tial way, except as to the election of judges of the Appellate Division. The secretary read the amendment as follows: Section 2. " The Legislature shall divide the State into four judicial departments. The first department shall consist of the county of New York. The others shall be bounded by county lines and be compact and equal in population as nearly as may be. There shall be an Appellate Division of the Supreme Court, consisting of three judges in each of the departments. In each department, two shall constitute a quorum, and the concurrence of two shall be necessary to a decision. There shall be chosen by the electors of the several judicial departments, justices for the Appellate Division of the Supreme Court in each department, and a presiding judge therefor, who shall be residents of the department respectively. From time to time, as the terms expire or* vacancies occur, successors shall be chosen by the electors of the several departments. The Governor may make temporary designation from time to time, in case of the absence or inability to act of any justice of the Appellate Division, from those elected as justices of the Supreme Court not of the Appellate Division in that judicial department. Whenever the Appellate Division in any department shall be unable to dispose of its business within a reasonable time, a majority of the presiding justices of the several departments, at a meeting called by the presiding justice of the department in arrears, may transfer any pending appeals from such department to any other department for hearing and determination. No justice of the Appellate Division shall exer- cise any of the powers of a justice of the Supreme Court, other than those of a justice out of court, and those pertaining to the Appellate Division, or the hearing and decisions of motions sub- mitted by consent of counsel. From and after the last day of December, 1895, the Appellate Division shall have the jurisdic- tion now exercised by the Supreme Court at its General Term, and bv the General Terms of the Court of Common Pleas for 36 REVISED RECORD. [Thursday, the city and county of New York, the Superior Court of Buffalo, and the City Court of Brooklyn, and such additional jurisdiction as may be conferred by the Legislature. It shall have power to remove and appoint a reporter. The justices of the Appellate Division in each department shall have power to fix the time and places for holding special and trial terms therein, and to assign justices in the departments to hold such terms, or to make rules therefor." Mr. Peck — I had proceeded so far with a discussion of this question as to have passed first the point that while this is an intel- ligent and philosophical anl lawyer-like scheme of judiciary, and the intermediate Appellate Division is a very strong and import- ant feature of such a system yet in its development, in my judg- ment and to my view, it is the weakest portion of this whole article. I would say in addition to what I said then, that I believe that the name which is proposed to be given to so important a court of last resort, in many particulars, is a very unfortunate one. As has already been stated by the chairman of the Judiciary Com- mittee, a name of a court is important; and yet we have here a name which holds out to the people of this State, not that they have an appellate tribunal, not that they have a court for the con- sideration of their appeals, but that they have a division of some other court, a part of some other system, not a court in itself. Now, that is not, it seems to me, a controlling idea, and therefore I have not included it in my proposed amendment, because I desire to follow the lines laid down by the committee in every respect possible, except in a change in the appointment of the judges for this hew department of the court. I had already said that this new Appellate Division was substantially an ampli- fication of the General Terms which have already failed, and the proof of which was, that the Judiciary Committee of this Con- vention had thought it was necessary to recognize that fact. Now, gentlemen, I believe that it is impossible to reorganize courts on that basis so as to make them satisfactory courts, or courts which will accomplish any limitation upon appeals to the Court of Appeals. I believe that these courts should be independent, and that they should be formed as courts, and I think that if any mem- ber of the Judiciary Committee had been asked to form a court, an intermediate court for the sifting out of appeals to the Court of Appeals, and given carte blanche to make just such a one as he would propose, that no single member of that committee would ever have thought of proposing any such scheme as this; in its development, I mean, in its personnel. I had also called atten- August 23.] CONSTITUTIONAL CONVENTION. 37 tion to the fact, that many of the members of this Convention, in the course of the discussion upon the number of the judges of the Court of Appeals, had dwelt upon the organization of that court, and pointed to it as in every respect a model organization, every word of which I am glad to indorse. I think that the suc- cess to a very large extent of the Court of Appeals has depended upon the method of its organization. I was proceeding to con- trast the ideas which have formulated the Court of Appeals with those which dominated in proposing this Appellate Division of the Supreme Court. I had pointed out that many of the speak- ers had said and argued that it was essential to a court of that character, that the terms should be long, that the judges of the courts should become accustomed to each other's methods and peculiarities; that it should, in other words, become a stable court, a court of last resort, which was known to the community; that instead of choosing judges for it as they were chosen for the Court of Appeals, they were drafted into the new court for a limited number of years, a very limited number of years; and after that time, a majority of the judges of these courts were to go back to their brethren whom they had been overruling and criticising and reversing for years; and that they had, too, in acting on their cases, to bear in mind that they must soon go back to that con- dition. That it was, therefore, not a court like the Court of Appeals, comparable in any degree, on account of the short time that the judges were drafted into that court. In the second place, it had been said that an important factor in the success of the Court of Appeals, had been that it was selected from the whole body of the people. Well, now, these gentlemen who are drafted into this court in the manner prescribed by this article, are to be drafted from men who were elected in much smaller districts than those over which they will be called to preside, and without having in view any such tribunal or any such position. They have not been elected for any such purpose, and when they get there they will have been elected five years, six years ago, in some one district of an immense department, and will be known to very few of the litigants who are to appear in their courts. Therefore, the source of power, the election of these justices, will have been in the hands of a very small part of the people whose courts they shall administer, and they have not been elected with reference to any such use. That is a very great distinction between the organization of these courts and the Court of Appeals, which has well merited all that has been said of it in this Convention. And, now, I proceed to another point which it seems to me is 38 REVISED RECORD. [Thursday, of great, if not overshadowing, importance, and that is this. It has been said that one of the foundations of the success of the Court of Appeals resides in its independence, in its freedom from politics. Now, gentlemen, these men have been elected from the whole body of the State, and elected on the nominations of polit- ical parties, of course. Having been elected for this purpose for so long a period of time, they become disassociated with party politics. But these proposed judges, every five years, have got to go around to the leaders of their party in their judicial dis- tricts, as well as in their departments, and get them to come to Albany and insist upon their being drawn from the body of the Supreme Court justices again and continued in that court. In other words, and we all know this is true, we have all seen judges themselves here in Albany on such occasions as that, instead of making a court independent of politics, we make a court into which politics periodically must enter and does enter. So that we have raised up here for our admiration not a court in any way comparable with the Court of Appeals in its organization, in its personnel or in its independence. We have seen the General Terms fail, and they failed miserably we all know, and these are the reasons why they failed. The people have not confidence in men whom they do not have an oppor- tunity to vote for or consider in an election campaign. It is as important for the judge as for any other officer of the public that at some time he shall feel the public pulse and that the public pulse shall help to animate him. Therefore, I say that these courts have neither the respectability nor the stability that they ought to have as courts. I propose, and I believe that in that proposition I am very far from standing alone in this Convention, that it is better to elect men for the same terms that we elect them in the other court of last resort, that we shall elect judges for an intermediate Appellate Court for that purpose, and in order to do it, without having it thrown up to me that I am a lawyer and that I am making places for lawyers, I reduce the number. I dislike to do it. I reduce the number of judges in these intermediate courts to three. I should like to have them four, but I reduce them to three, because in that way the additional judges provided for in the first section of this act furnish the material for three of these new department Appellate Courts. I take those men thus provided, and instead of electing them for judges of the Supreme Court at circuit, I would elect them as judges of the Appellate Division, and I would elect them in the departments over which they were to preside, and I would require August 23.] CONSTITUTIONAL CONVENTION. 39 that every man of them should reside in that department, so that as often as they came before the people, as often as their successors came before the people, they would be weighed by the people. I believe in that way we would get a most satisfactory court of gentlemen selected for their particular duty out of a large terri- tory. Perhaps the Convention has not realized what is meant by the suppression of one judicial department of this State under this article. It means that we are going to have certainly one depart- ment, a hundred and fifty miles in length out of the western por- tion of this State, and another department in the eastern portion of it, running north and south, almost as long. That means an immense territory out of which to select three appellate judges, and the conventions in the judicial departments, of which the counselors- at-law always have the ear, will select their best men, men in whom they have confidence for that purpose and in whose integrity for a term of fourteen years they are willing to stake their party's sagacity and professional wisdom. I think, therefore, that without changing the machinery of this article to any considerable extent, without at all infringing upon the plan where it is strong, that by electing these judges in these judicial departments, we will have a court modeled on our successful court and a court for the success of which we may well certify. I tell you, gentlemen, that if we go back to the bar and to the people who are influenced by the bar, with simply an amplified General Term, you will be met with great disappointment to say the least. You will be met with the question, why, how have you changed our system? It had failed. It was not doing its work, and how have you met it? Simply by amplifying a court so that it is very doubtful whether it gives it any increased efficiency, whether five judges are any more efficient than the three, and in every other respect, except in limita- tions, we have the same system. I think that it would be a very great mistake to report to the people a system without an improved intermediate Appellate Court. With the weight resting upon it in this system, as a means of limiting further appeals to the Court of Appeals, it would fail utterly. I have only a word more to say on that subject. If it does not recommend itself on statement, there is no argument which will recommend it to a lawyer. To lawyers, this thing either comes with a certainty at once or it probably will never come at all, and, therefore, I do not care to rest upon further argument. I wish to state the proposition. Now, I say that I have reduced the number of judges simply as a matter of economy. I do not believe in it. I myself believe that if we go to the people with a good court and say, now, gentlemen, the result of our 40 REVISED RECORD. [Thursday, deliberations is a court that is entitled and always will be entitled to the same respect that the Court of Appeals has received and that it is not a part of anything else, it is not a term of some other court, but it is a court of men selected for the particular purpose and given permanency, independence and stability. I believe the people will welcome it, notwithstanding it might increase to same extent the judicial force. And while I have limited my amend- ment to the twelve new judges for the last three departments, I believe that this Convention can go forward and make a satisfactory court of four judges in every one of these departments, and that we will have the people behind us, because we can say to them: " Here is something which has been tried." The people of this State know what a court organized in that way means, and we will see, I believe, the acceptance of our work on those conditions, when on other conditions, if we simply go to them with a General Term of five appointed judges, we never will get it. Mr. E. R. Brown — Mr. Chairman, just one word on this sub- ject. I should not say a word in relation to it, except with the view of its being considered by the Judiciary Committee. I have no idea that a proposition of this kind, brought in at this time, will carry against the report of that committee, but if the matter should receive the attention of that committee, and afterwards the attention of this body, I would like to add one suggestion to the remarks that the gentleman has made. So far as the service of judges in the rural districts is concerned, this scheme of seelcting judges from the bench of the Supreme Court disorganizes to a very great extent the business of the Supreme Court at circuit. Now, in most of the counties of this State, it is impossible, entirely out of the range of possibility, to have more than one judge selected from a given county. For instance, you take the county of Oneida; there is one judge elected from that county in our district. That judge is designated to sit at General Term. As a consequence, they have no judge resident in Oneida county; whereas, if an appellate judge were chosen for the district to sit in the General Term it would not disturb the order of business in the district. The same with the other judges in that district, and if this matter, \vhen it comes before the Judiciary Committee, if it shall so come for consideration, if the Judiciary Committee desire to look into that matter, I think they will find that it would give much greater satisfaction to the rural counties of the State to have these judges chosen immediately for the purpose of sitting in review than it would for the purpose of sitting in the Supreme Court, and then being taken away from the duties for which they were elected. August 23.] CONSTITUTIONAL CONVENTION. 41 Mr. Root — Mr. Chairman, I hope the Convention will appre- ciate the full force of this proposition. It means that the plan which is proposed by the Judiciary Committee shall be rejected; rejected in its length and breadth and thickness, and that this measure should go back to the Judiciary Committee under the instructions of the Convention to formulate a new plan. The subject was fully and at length discussed and considered in the' Judiciary Committee. They cannot discuss it and consider it any more fully than they have done. If you approve of the proposition made by the gentle- man from Rensselaer (Mr. Peck), you send it back to the com- mittee under your instructions, disapproving their plan, to form another. If that be your will, we bow to it, and we will do the best we can; but we will do it against the opinions and the wishes of three-fourths of the committee. • And it means, Mr. Chairman, this, that the entire Supreme Court of this State is to be degraded into the third rank, that the name of Supreme Court shall be a mis- nomer, that it will have two separate courts above it, each separ- ately elected and constituted by the people, and that all the judges of the Supreme Court shall be degraded into the position of circuit judges, and shall meet our proposed Constitution justly outraged, straining with every nerve to defeat a proposition which robs the Supreme Court of the State of the position is has so long held, of power and dignity; destroys it absolutely, and puts it into the posi- tion of a collection of ordinary circuit judges, from whom appeal is taken to a court above, and then to another court still further above it. We considered, sir, no matter what we might have thought it was wise to do if we were starting out in a new State to evolve out of our inner consciousness a judicial scheme, that it was wholly impracticable to apply this plan to the established condition of affairs in the State of New York. Therefore, we, by a very large majority of the committee, rejected this plan and reported the article as it is. I hope the Convention will not disapprove of our action. Mr. Peck — Mr. Chairman, I will only detain the Convention a moment by saying that there is not one person in this Convention who would hesitate longer to degrade a justice of the Supreme Court, or the Supreme Court itself, by any action of this Conven- tion, than I, myself. I do not believe that, by creating an inde- pendent Appellate Court, we affect the dignity, in the slightest degree, of a court of original jurisdiction co-extensive with the State of New York. I should despise myself if I were influenced in an action on fundamental law, by personsal considerations or the interests of friends or enemies. 42 REVISED RECORD. [Thursday, Mr. Gilbert — Mr. Chairman, I happened to be one of the minority of the Judiciary Committee, which believed that the plan reported was not the best. I believe, Mr. Chairman, that the election of judges for this intermediate tribunal by the people of the several departments for exclusive appellate duty is of vital import- ance to the success of our proposed judicial system. I believe that without the change, substantially like that proposed by the gentle- man from Rensselaer (Mr. Peck), our work is destined to prove unsatisfactory. The opinions of the chairman of the committee are entitled to receive, and do receive, great respect in this Convention and with the people at large, but I totally disagree with some propo- sitions which he has submitted. In the first place, he tells us that to change the plan as proposed is substantially to undo the work of the committee. I suppose his idea is that it breaks in on the scheme of the judiciary article in such a way as to impair both its unity and efficiency. I believe, Mr. Chairman, that it does neither. I call attention to the admirable explanatory statement prepared by the chairman of the committee and presented with the report from the Judiciary Committee. What does he claim with reference to this intermediate court? He says, we propose to make this appel- late tribunal a more efficient and satisfactory court of review than the old General Term. How? Among other things he says this is to be done " by giving it stability and independence through the establishment of fixed terms for its members." It is confessedly and undoubtedly of vital importance that this intermediate tribunal shall be stable and that it shall be independent. The plan proposed by the committee defeats both of those ends. The plan proposed by the gentleman from Rensselaer '(Mr. Peck) secures both. It cannot be a matter of opinion. I challenge the intelligence of this Con- vention to contradict the proposition that both of these two things, stability and independence, are not secured by the plan proposed by the majority of the committee, but are secured by a plan substan- tially like that proposed by the gentleman from Rensselaer (Mr. Peck). Let us look first at the matter of stability, which this explanatory statement properly puts in the forefront in respect of importance. What I believe, Mr. Chairman, should be done in order to secure a stable court is, that the people of the several judicial departments over which the appellate judges are to preside, should elect the judges of those several departments. Elect for how long? I answer: For the full term of fourteen years, and not, as is proposed by the committee, for a term of five years or less. The proposed amendment provides that the Governor shall appoint these appellate August 23.] CONSTITUTIONAL CONVENTION. 43 judges for five years, or the remainder of the term for which the judge appointed is to serve. That may be for four years, or three years, or two years or one. That is the kind of stability that is provided, but not the stability that is demanded and needed. I repeat, Mr. Chairman, what we want is that the judges elected to this appellate tribunal shall be elected to it for the full term of fourteen years, just as we do the Court of Appeals. We should not then have a court whose judges are in to-day and out to-morrow, but we shall have a stable court, one that will command the con- fidence, the intelligent confidence and respect of the people. Con- fidence is a thing of slow growth the world over. It grows like the splendid elm which we see in park and forest. It grows little by little. It takes time for the development of that majestic product in whose shadow we sit rejoicing when summer suns are hottest. So is it with the court. It must have time to grow in the intelligent confidence and respect of the people. How, for an example, does a college grow? I see before me the honored and distinguished representative of one of the foremost colleges in the land (Mr. Choate). How did Harvard college come to be what it is? It was not made any more than you can make an elm tree. It grew. It became great by the slow process of vital growth, and I tell you that confidence in a court must come in the same way — by the slow process of growth. It cannot come at its best where you have a kaleidoscopic court such as our General Term now is, a man in to-day and out to-morrow, and another one in his place. You must have a stable court so that the people of any given depart- ment, when they talk about their intermediate Appellate Court, will speak of Judge A and Judge C and Judge B; they are there; we sent them there; we have put them there for a period of four- teen years, and the time will come along a little in the future when they will say: There they have sat discharging their duty with con- scientious intelligence; they have commanded our respect, and we believe that when we submit a cause to that court it will receive honest, sufficient and intelligent consideration and a righteous con- clusion will be the result. We shall have increasing confidence in that court. It will not come in a day, we shall not have it in a year nor in three, but if you will give us an Appellate Court, elected by the people for that one purpose, for the full period of fourteen years, you are going to have a stable court, and year by year the confidence of the people in that court will grow, and in the great consciousness of that public confidence the court itself will become more and more efficient and worthv of such confidence. 44 REVISED RECORD. [Thursday, Now, then, the other element which is needed, according to the statement above referred to, is this, namely, independence. Yes, we want stability and we want independence. Are you likely to get it, when the Governor can name the judges who are to sit in this court and in that and the other courts, somewhat as they move the more or less distinguished personages on the chessboard? That is not independence. We do not want a court where the members of it are put there by the Governor's fiat. We want men who, when they are once elected to that court, will feel that they are there to stay? They are there to stay through their terms with- out any disturbing influences tending to bias their judgment and pervert their conclusions. Let them be there, stable and inde- pendent, and we will have a Court of Appeals, this lower Court of Appeals, in which the people will have confidence, one of the effects of which will be to relieve the court of last resort. The chairman of the committee tells us that the proposition now before us will involve a misnomer. Let us not be misled. The committee still propose, do they not, to call it the Supreme Court? If the name is wrong, give it the right name. If you do not want to call it the Supreme Court as you have done, call it something else. For my present purpose, I do not care what you call it. That is no part of my argument, but you can get a name that will fit the thing, can you not, or will you forego the thing because you can- not christen it? Nobody will claim that there is any sense in that. Give it a name that fits. The Supreme Court was always a mis- nomer in this State, because it was not supreme. There was another court above it. Now, let me refer to another point. They say that to elect these appellate judges as suggested would be to degrade the trial judges of the court. I can hardly speak of this with patience. Here is a man chosen to preside at trials where property and liberty and life are at stake. He is put there to hold the scales of justice evenly when contending parties strive for mastery. He sits there above prejudice, above passion, above everything that can sway his judg- ment from the true line; and do you tell me that you can degrade the man whose sole object is to find out what is true, and do what is right? Why, that has the stamp of essential and eternal dignity upon it. You might as well talk about degrading the sun in its radiant course through the heavens, as to degrade the upright and competent judge who discharges those high judicial functions. If he is degraded at all, he himself has done it, and he ought to get off from the bench and let another take his place who can rise to the dignity of the position. August 23.] CONSTITUTIONAL CONVENTION. 45 Now, gentlemen, do you ask me what plan I would propose? I should differ a little from the gentleman from Rensselaer (Mr. Peck). I would have the number five in this intermediate tribunal preserved; but I would have those five elected by the people of the respective departments in order that, as already stated, we may have a court that is both stable and independent, as the chairman cor- rectly says it ought to be. That is the kind of court we want, and I will venture to say, gentlemen, that if this proposition could come before this Convention as an original proposition, with nobody behind it ; let it be like John the Baptist, a voice in the Convention crying out for what is right and wise in this matter — simply a voice — and I venture to say that three-fourths of the members of this Convention would say that the plan proposed by the gentle- man from Rensselaer, with some modifications in the direction suggested, is the way to secure the independent and stable court which all desire. Let the people choose their own judges. Let them choose them expressly and exclusively for this Appellate Court for the full term of fourteen years. But it is said that there is some difficulty in working this plan out. Undoubtedly there is. But are we to stop because there is some difficulty about it? There is none which cannot easily be over- come. There was difficulty when you proposed to abolish the Superior Court of the city of Brooklyn, the Superior Court and the Court of Common Pleas of the city of New York and the Superior Court of Buffalo. There was some little embarrassment about it. But the Judiciary Committee was not terrified by it. Whatever difficulty there is in the way of providing five elective judges for this tribunal can as easily be met and overcome. Do you ask me how? For the purposes of my present argument I do not deem it necessary to go much into details, because I think the good sense of this Convention will bear me out in saying that all such matters can easily be taken care of when we get to them. We have only to follow the same general course adopted by the com- mittee when we abolished the Superior Courts and the Court of Common Pleas above referred to, and the course adopted in other similar cases where old courts are superseded by new ones. It is always necessary to resort to some temporary makeshift. For example, let those judges who are now in the General Terms stay there for the remainder of their terms. Then, if there is no surplus of trial judges, let the rest of the appellate judges be elected by the respective departments. If there is a surplus of trial judges, I would have the Governor appoint some of them for the appellate tribunal, but with this provision, that whenever the term of any 46 REVISED RECORD. [Thursday, of these appellate justices expires, his successor shall be elected for the term of fourteen years as an appellate judge. This plan will work itself out just as surely as the coming of a few years. It will work itself out as a brook in spring runs itself clear. All it wants is a little time. In conclusion, I have only to say: Let the people elect a stable, independent court, in which they shall come to have ever-increasing confidence, as the slow growth of years, giving to the judges the highest possible incentive to do their best possible work. They will understand that as the character of the court goes up, their character goes up. As the character of the court goes down, their character, their reputation will go down also. They become identified with the court. The excellence of the latter is the excellence of the judges who compose it. The people will point to it as they do to our present Court of Appeals, the mention of which calls to mind the names of the eminent men — few in number — who, for a generation, have interpreted the law of the State of New York. This has been and is a court, stable and independent, commanding the confidence of the people. There is no reason why the proposed intermediate tribunal, if elected for a similar term, should not likewise command the popular confidence. Mr. Becker — Mr. Chairman, this question of providing that the judges of the Appellate Division of the Supreme Court should be elected, is presented to this Convention by the arguments of two gentlemen whom I personally respect, and whom I believe to be, perhaps, two of the most conscientious, painstaking and thoughtful members of this body. Coming from such source, it demands care- ful and conscientious consideration at the hands of this Convention. It had that consideration in the Judiciary Committee. The propo- sition stated in its smallest terms and clearest terms is this, that in the four departments erected by this bill the judges of the appel- late jurisdiction should be elected for a full term of fourteen years, to serve as judges of that department, in each of the departments rather. The argument in favor of it, as far as I have heard in the committee or on this floor, is that that would tend to make them more independent and to give them more strength and power as judges of that division. There is undoubtedly some force in that argument ; but like any other question of policy, which is really the question presented here, you must weigh, in considering it, all the conditions and understand all the conditions under which this divi- sion is created, and under which it must act. You have provided, in the first place, by previous action of this Convention, that all of these judges, in and out of the Appellate Division, should hold office for fourteen years. The amendment proposed by these able August 23.] CONSTITUTIONAL CONVENTION. 47 and conscientious gentlemen is that they should sit in the Appellate Division for fourteen years. Under the terms of the amendment proposed by the committee, they sit in the Appellate Division only for a term of five years. So that at the outset you have to consider whether it is desirable in this particular branch of the Appellate Division, the so-called Appellate Division, that the term should be as long as fourteen years. Now, in considering that you have to consider what is the jurisdiction of that division. You have pro- vided that the appeal to the Court of Appeals should be only on questions of law. You have stricken out from the possibility of appeal the numerous questions of practice that arise. You have stricken out from the appeal any question of fact whatever by saying that where there was a decision or verdict based upon a question of fact, that no power of review should exist beyond this Appellate Division. So that the sole tribunal, gentlemen, where the review comes and is final, mark you, on the question of fact, is the General Term of the Supreme Court, as well as on questions of practice. Now, the proposition presents itself in a practical way. Having invested that appellate tribunal with those particular powers, and having excluded from the jurisdiction of the Court of Appeals the right to review those powers, is it wise to put up there in that court, dealing with these questions of tact, dealing with these ques- tions of practice, for a long term, in a separate place by themselves, without opportunity for change or exchange, a body of men called an Appellate Division? I believe that is not wise, and I understand it to be the belief of all but two or tnree of the Judiciary Committee. They thought, as said by one of the greatest judges in this State, that it would be a good thing, a wise thing and a proper thing for the judges of this appellate tribunal or any appellate tribunal having to do with questions of fact, that within reasonable periods of time they should come back and come in contact with the people in the Circuit Courts and in the Special Terms. Under the provisions of this amendment to the judiciary article proposed by the committee, these judges are excluded from Special Term duty; they are excluded from Circuit Court duty; and the crowning argument, the prevailing argument with the great majority of the committee was, I am sure, the thought that it was immensely desirable that these men should occasionally come back and be in touch with the people at the circuit and at the Special Term. They have to deal with these questions of fact. They have to deal with these questions of practice; and I believe that after a certain length of time, sitting solely in the daily review of printed books and printed cases and printed arguments, living by themselves, as they must do, working 48 . REVISED RECORD. [Thursday, together as they must do, that it is very desirable and very important that they should come back and be in touch with the people quite often. It was for that reason that when it was proposed in the com- mittee that, even under the existing method of creating this divi- sion, they should be assigned to duty there for a longer period than five years, even seven years, half the term, that it was voted down, and the fixed term of five years was placed in this article, as it has existed in substance heretofore. Now, these seem to me to be the controlling arguments on this question. In my judgment, and to my recollection, they were the controlling arguments before the committee ; and if you are to create this Appellate Court as you have created it, if you are to vest in them the sole power of review of questions of fact, as you have done; if you are to vest in them the sole power to review questions of practice, as you have done, then I sincerely hope that you will keep them in touch with the people. It is the only way that you can do it practically, because, if you elect them at all, you must elect them for a long term or disrupt your whole article, that they should sit for the term fixed by this article and then go off, if they have not worked well, and then come back in touch with the people, and permit somebody who has been in touch with the people at the Special Term, at the practice term, at the trial term of questions of fact, to take their place. I sincerely hope that this amendment will not prevail. Mr. Bowers — Mr. Chairman and gentlemen, I regard the present amendment as one of the most serious attacks that can be made upon the theory upon which the present proposed judiciary article is framed. I did regard the attack that was made upon the nine judges of the Court of Appeals as equally serious. I did regard the attack that was made in that respect by some of the members of the Judiciary Committee as most extraordinary. I cannot say that of the attack that has been made this evening by the gentle- man from Franklin (Mr. Gilbert), because he gave us fair notice that on this proposition he differed with the committee; but, not- withstanding that, I feel that the symmetry of the article has been affected by the striking out of the two additional judges proposed for the Court of Appeals, I shall believe that the article, as pro- posed, even with seven judges there, is calculated to work great benefits to the people of the State. The theory of the article was that we had created in the State four Appellate Divisions, whose judgment should be final in many cases, and thus relieve the Court of Appeals from the clogging of its work, which now exists. We felt, also, that the General Terms of the State of New York did August 23.] CONSTITUTIONAL CONVENTION. 49 not and could not do the work in a manner satisfactory to the bar. We had laid before us the complaints of many members of the bar as to the character of the General Terms, the way in which they hastened to finish their work, giving but scant consideration to the arguments that were made by counsel, and with the spectacle frequently presented of one of the judges stepping aside while his two associates decided an appeal from a judgment that had been rendered before him. The Judiciary Committee determined that it was essential to give that respect that should be given to the Appellate Division, that the judges who were to sit there should be of a sufficient number to prevent that spectacle hereafter, and should be so continuous in their terms that there should be no hastening of their work; so that throughout the entire year they will be engaged simply in the hearing and determination of appeals. It is a complete revolution in the present Appellate Courts, and is intended to, and almost beyond doubt will, give a totally different Appellate Court to the State, one in whose judgment the people will have far more confidence than they have now in the different General Terms. At the same time, Mr. Chairman, the Judiciary Committee appreciated that there was a great deal to be said in favor of the suggestion that it was better to have upon the appellate bench men who took part, or had recently taken part, in the trial of causes at circuit. And, therefore, it was provided that the asso- ciate justices should be appointed for only five years. This meets a criticism, frequently made against the court of last resort, that its judges have forgotten the tribulations and trials and surround- ings of the disposition of cases at circuit. These were serious mat- ters. The Judiciary Committee had before them serious complaints, and it dealt with them to meet, as best it could, the demands of the people. Now, as to the question as to the election of these appellate judges much may be said. If the Governor of the State has the privilege of selecting from all the justices of the entire State the twenty-two who are to form the Appellate Division, if he be a fair and honorable man, as we will assume any Governor of this State will be, he has very great opportunity to select the best possible men to fill these positions; if anything better than we would get if we trusted to their election by the selection of new and untried candidates, and more than that, it would be exceedingly difficult to arrange for the election of these new judges in four different departments, creating an entirely new arrangement for the depositing of votes on election day, destroying almost all the judiciary system of the State, for- 4 50 REVISED RECORD. [Thursday, bidding elections in the judicial districts and requiring elections in the four appellate departments not yet laid out. It was felt by the committee, and I have no doubt is the case, that we will get an Appellate Division of far better material if we leave it to the Gov- ernor to select than if we arranged for the election of these gentle- men in the four proposed departments. It is perfectly true that we should advocate the election of all important officials in the State, but we do elect these judges; they are elected in the different judicial departments, and it is only left to the Governor to select men who have been elected by the voters of the State and to point out what parts of terms they shall serve in the Appellate Division. It is not for a moment to be thought of that we should make those Appel- late Divisions to consist of only three judges. It is true that it might be urged that with a final appeal to a court with only seven judges, that here is some defect in making the Appellate Division next to it consist of five, but the Convention in that regard have ordered otherwise, and I believe, sir, that if we strike out this provision, reduce the number to three and provide for their election by the people of the different departments instead of permitting the Gov- ernor to select, we shall have struck a blow at the entire article, and we might as well give it up in its entirety. I hope, sir, that these amendments will fail. Mr. Cochran — Mr. Chairman, may I ask the gentleman from New York, Mr. Bowers, a question? Mr. Bowers — Certainly. Mr. Cochran — As I understand this proposed judiciary amend- ment, it is to the effect that the assignments to the Appellate Divi- sion shall be made by the Governor, and that the assignments to the Special Term and chambers and trial terms shall be made by the judges of the Appellate Divisions. Mr. Bowers — I so understand the article. Mr. Cochran — I also understand that in the city of New York the patronage which is at the disposal of the Special Term and chamber judges amounts to several millions of dollars annually. Mr. Bowers — I understand that statement to be entirely erro- neous and absolutely untrue. Mr. Cochran — I will assume it to be correct for the purpose of my argument. Mr. Bowers — You have asked me a question, and I have answered you. It is an absurd statement, that is all. Mr. Cochran — I'll ask you now if you do not think that such August 23.] CONSTITUTIONAL CONVENTION. 51 a system as is proposed here would be a dangerous concentration of judicial and political powers. Mr. Bowers — A dangerous concentration of judicial and politi- cal powers? Permit me to say to you that, as I understand it, it exists to-day in the General Terms of the Supreme Court of the State of New York. We have simply followed existing provisions of law in that regard. The power to make these assignments is a mere matter of convenience. These judges will do it in the Appel- late Division, or they will make rules for its being done by their associates, and I do not think the gentleman need be at all worried that any amount of patronage will be improperly disposed of. Mr. Cochran — Do I understand the gentleman to say Mr. Bowers — Does the gentleman practice in New York or Kings? Mr. Cochran — Both. Do I understand the gentleman to say that the same system of appointment and designation of judges exists to-day that is embodied in this article? Mr. Bowers — I understand that to-day the General Term makes the appointments. Mr. Cochran — The gentleman does not answer my question. Mr. Bowers — Well, it is as near as it can be. We propose that the Appellate Division shall make these designations, and to-day the existing Appellate Division, to which the General Term suc- ceeds, makes them. Mr. Cassidy — Mr. Chairman, I hope that what I shall have to say upon this subject will not have a tendency to defeat the object for which I am speaking. I was moved by what was said by my friend, Senator Gilbert, on this subject, but when I sought to follow his argument to its logical conclusion, I found myself in mid-air, at both ends of it. His reasoning, although good as far as it went, seemed to me to be truncated. It does not follow, Mr. Chairman, that the best lawyers make the best judges. How are we to deter- mine who are best fitted for judges of our appellate tribunals? Is there any man who has the gift to look into the heart and intellect of a man without giving him any trial, and to determine whether he is a proper man for the appellate tribunal? If this question is not determined by experience, Mr. Chairman, I know not how it can be determined, and I know not what better experience can be had to determine a man's fitness for a place upon the appellate bench than a term or a part of a term in Supreme Court work. We have, in the two districts outside of New York city, forty Supreme Court judges from which to select ten Appellate Court judges; and I 52 REVISED RECORD. [Thursday, believe, Mr. Chairman, that the Governor, I care not how much of a politician he may be, when he feels that the responsibility of select- ing ten appellate judges from forty Supreme Court judges centers in him, and that he will be held responsible for making a proper choice, will make a better choice than the entire body of electors of the department could possibly make from men of no experience upon the bench. I do not think, Mr. Chairman, that I need to do more than suggest these points. Members of this Convention do not require that they should be pursued to their logical conclusions. They are able to reason for themselves. More than that. It has been claimed here that the term of the Supreme Court judges ought to be shortened because we have often elected poor Supreme Court judges, and men become incompetent in that position. Now, if a Supreme Court judge is appointed to the appellate tribunal and is found to be unfitted for the place, he can be gradually sent back as a circuit judge, quietly, and some better man put in his place; whereas, if we were selected by the people, no matter how poor a judge he might be, and no matter how much the people might have erred in their choice, he must remain during the term of fourteen years. This, I think, would be a misfortune. The Chairman put the question on the adoption of Mr. Peck's amendment, and it was determined in the negative. Mr. Chipp — Mr. Chairman, I move to amend section 2, page 3, by striking out, after the word "determination," in line 15, the following clause, down to and including the word " counsel," in line 19. The lines which I have moved to strike out are these: " No justice of the Appellate Division shall exercise any of the powers of a justice of the Supreme Court other than those of a justice out of court and those pertaining to the Appellate Division, or to the hearing and decision of motions submitted by consent of counsel." In making this motion I wish it understood that I make no inti- mation or imputation upon the work of the Judiciary Committee. I am ready to acknowledge, sir, that the wisdom of this Conven- tion is as foolishness to the wisdom of the Judiciary Committee, but I do think, sir, that perhaps, in some particulars, it may be found that suggestions can be made here which will be of value and will not serve to mar the work of this committee. Under the present system, as I understand it, if I am correctly informed, the General Term in the city of New York disposes of all its business promptly. I understand that when an appeal is taken to that court it may be argued at the next ensuing term, and that the decision is promptly rendered, although that court consists now August 23.] CONSTITUTIONAL CONVENTION. 53 of only three members. I understand that the General Term of the Second Department, consisting of three members, sits about four or five weeks during the year and promptly disposes of all of its business. I know that the General Term in the Third Department, consisting of three members, gives ample hearing to counsel, gives due consideration to every appeal brought before it, and that an appeal may be argued at the very next term after it has been taken. And yet in all these departments consisting of three members, the judges making up the General Term, hold circuits, hold Special Terms, do ex parte business, and in short discharge the multifarious duties of justices of the Supreme Court, nisi prius, and at chambers. Now, I assume that the General Terms of the remainder of the State are conducted in a like manner; if this is so, all General Terms consisting of three members can dispose of all their appellate work and do nisi prius work and chambers work and Special Term work besides. It is difficult indeed to see how four General Terms of five judges, devoting all their attention to appellate work and devoting no attention whatever to Special Term work will find enough to do. Another weak point, it seems to me, in this system is this, that the increase of work to be done by these newly-constituted Appel- late Divisions does not depend upon the points of the system itself, but depends entirely on the character of the men who are to form them. If the judges now, as has been said, do not give sufficient consideration to cases, if they do not do their work well, how can it be said in advance that five judges would do their work better? If three judges are lazy, why may not five judges be lazy? If three men do not have business-like, proper ways of conducting the busi- ness of their court, how can you say in advance that five men will conduct the business of their courts in any better manner? But, aside from this, Mr. Chairman, there is another point of importance. It is very important, especially that a General Term, or an Appellate Division as it is called in the amendment, shall be composed of judges who are in touch with the profession and in touch with the business of the departments over which they preside. I think it is a positive weakness in an Appellate Court that the judges are not compelled to hold circuits at times. I have had the opinions of several distinguished judges to that effect. According to them a Court of Appeals which simply devotes itself to hearing appellate business becomes at last a court of theorists. They do not understand the actual practice any more. They become rusty. Some of them, perhaps most of them, have never been practitioners in court, and sitting by themselves, cheek by jowl, as the President 54 REVISED RECORD. [Thursday, expresses it, deciding cases on theory, on the law as it is written, they are apt to become mere theorists. They are apt to be out of touch with the profession and out of touch with the methods which prevail in courts. Now, Mr. Chairman, I have heard it expressed, even by members of the Court of Appeals, that it is a pity that the members of the Court of Appeals could not have an opportunity to hold a circuit at times. The judges of the Supreme Court of the United States hold circuits in addition to their appellate duties, and I believe it has always been considered that this circuit work was an aid to the judges of the Supreme Court in disposing of the business which comes before that court. I think, sir, that this provision in the proposed article is not only unnecessary but is extremely disadvantageous, and will be found disadvantageous to the judges of the Appellate Division themselves and to the interest of the people of the State. Mr. Bowers — Mr. Chairman, I supposed that the bar of the State were pretty generally satisfied that it was a great evil in the present administration of justice in the General Terms that a judge from whom an appeal was taken should slip out from the bench and leave his associates to hear a case, and that all the members of the bar would be glad to have that evil remedied. I invite the gentleman's attention to some of our departments in this State. He may go into the second, if he likes, and he will not only lose one judge who has heard the case below, but he is very lucky to have a single judge to hear his argument. We propose to get an Appellate Division that shall attend to its business and have only that business to attend to and nothing else to interest or amuse its members, and we propose to remedy the defect to which the gentleman has referred that they have no association with the trial of cases, by sending them back to try cases at the end of five years. This particular amendment that is offered seems to be the most extraordinary of any that has been proposed in the Convention, for if there is any one evil that ought to be remedied it is the evil of the appellate justices sitting on the same bench where their decisions are reviewed. Mr. Cookinham — Mr. Chairman, I desire to state one or two facts in answer to the gentleman, Mr. Chipp. He has complained that the General Terms would have nothing to do, or, at least, that they would not have enough to do to occupy their time. The number of cases appealed that it will be necessary for these courts to hear in one year is 2,555. The number that each General Term must hear on the average is 637. I ask the gentleman if a August 23.] CONSTITUTIONAL CONVENTION. 55 court decides two cases every day of the year, if they have not done all they ought to do. And, therefore, the Judiciary Committee has provided by this amendment that they need not be bothered with business when they are in their offices, that they need not hear motions or ex parte matters unless by consent, and consent of the opposing counsel. The Chairman put the question on the adoption of Mr. Chipp's amendment, and it was determined in the negative. Mr. I. S. Johnson — Mr. Chairman, thus far in the discussion there has seemed to be no way for us to vote in Convention except to vote for the entire number of twelve additional justices of the Supreme Court, or none. I, therefore, offer the following amend- ment, and will briefly explain it without reading of it. It amends section i, by striking out the word "twelve," and inserting the word "five;" and, also, on page 2, by striking out the words " three " where they occur as to the first and second districts, and adding the word " one " as to the third. So that the additional justices to be elected would be but two in the first, two in the second and one in the third. This matter of additional justices has been before the Legislature and has been before the public for several years. The result has been that the Legislature, at its last session, determined to submit to the people of the State a constitutional amendment providing for the election of four justices, two in the first district and two in the second. And it is for the purpose of having this matter in that con- dition, so that it may be properly considered when it comes before the Convention, that I now present this amendment; and I trust that the Judiciary Committee are not to continue to feel that every amendment that is offered here is an attack on the committee or on any of its members. While we have great respect for the Judi- ciary Committee, we must assume that the other lawyers in this body have some ideas upon the subject, and I apprehend that the committee will not feel at all hurt if this Convention or this com- mittee shall see fit to change, in some respects, its report. And if it is to be changed in any respect, I think it should be in reducing the number of justices of the Supreme Court that are to be placed upon the State at large. This committee has seen fit to say that eighteen judges shall be taken from the cities and placed upon the State at large, thus adding a large expense to the taxes of the people after they are elected. I feel a deep interest in that subject. I know that the gentleman from Erie states that there will be a largo saving on account of giving up the clerk's offices, but I wish to call attention to the fact that those clerk's offices are now all supported 56 REVISED RECORD. [Thursday, and sustained by the three cities which are to be benefited by this amendment, and that in addition to the judges that are to be dumped upon the people, if I may use that expression, there are also to be four other clerks' offices of these several departments that are to be supported by the people. I don't think that there is any necessity for the number of judges provided for in this article. In my own district, the Eighth Judicial District, I do not know of any demand for an additional justice in that district, and I hear it spoken by members from other districts that there is no demand in those districts for an additional number. Hence, Mr. Chairman, I am opposed to this increase at this time. Mr. Root — Mr. Chairman, it seems to me that if the Conven- tion were disposed to make a change in this matter, it would have been much better for them to have adopted the amendment offered by the gentleman from Jefferson (Mr. Brown), which left to the Legislature power to add the additional judges that the gentleman from Wyoming proposes to strike out, and that it would be unfor- tunate for the committee, after rejecting that, to take recourse in this plan. Let me say that this addition is for the purpose of enabling us to constitute these Appellate Divisions, which shall be composed of justices who are cut off from doing ordinary Circuit and Special Term work. That is the price the people will pay for getting these new courts competent to perform the work which the General Terms have not satisfactorily performed. The Chairman put the question on the adoption of Mr. Johnson's amendment, and it was determined in the negative. Mr. Davies — Mr. Chairman, I move to amend section 20, by inserting after the words "one hundred," in line 19, page 14 — I think it is " one hundred and twenty," as amended — " and fifty." The section, as it now stands, forbids a county judge or surrogate from practicing in counties having a population in excess of one hundred and twenty thousand. I was not here when the matter was voted upon to-day. Now, in the county of Oneida our popu- lation is one hundred and twenty-three thousand and some odd. Our county judge gets the meagre salary of $3,000, and our surro- gate gets $3,500. Up to the last session of the Legislature our county judge received, or had his salary lowered to $2,000. We had great trouble to get it raised to $3,000. Now, if this is allowed to stand as it is, the result in our county will be that we will get a very cheap class of judges. We cannot get a proper and suitable man, competent to fill the position, for the salary, and our people are very much opposed, in our county as well as in other rural districts, to the increasing of salaries. In addition to that fact there August 23.] CONSTITUTIONAL CONVENTION. 57 has already been an amendment passed here prohibiting the increase or salaries during the incumbent's term of office. I hope that the Convention will adopt the amendment which I have proposed. Mr. Roche — Mr. Chairman, I hope the amendment will be defeated. The Chairman put the question on the adoption of Mr. Davies's amendment, and it was determined in the negative. Mr. Griswold — Mr. Chairman, I offer the following amendment. The Secretary read the amendment as follows: In section 9, page 7, strike out all after the word "Appeals," in line 21, down to and including line 7, page 8, 2nd insert the words " shall have such jurisdiction and power as the present Court of Appeals." Also, add: "Whenever and as often as there shall be such an accumulation of causes on the calendar of the Court of Appeals that the public interests require a more speedy disposition thereof, said court may certify such fact to the Governor, who shall 'thereupon designate seven justices of the Supreme Court to act as associate judges for the time being of the Court of Appeals, and to form a second division of said court." Mr. Griswold — Mr. Chairman, that is as far as I wish to have the amendment read at present, if I may be permitted to interrupt the reading. The Chairman — Will the gentleman from Greene inform the Chair whether this is a proposition for a second division of the Court of Appeals? Mr. Griswold — It is, Mr. Chairman. The Chairman — The Chair will have to rule that that proposi- tion has been once before the committee and cannot be entertained. The rules expressly provide that equivalent propositions cannot be entertained. Mr. Griswold — Mr. Chairman, I am not controverting the Chair, but some gentleman of the Convention moved that the examina- tion of this proposed amendment should be postponed. That was after the gentleman from Onondaga had made the motion, and if had been carried, that we should take it up and proceed with it until through, and afterwards one gentleman proposed that there should be an intermission and that there would be time to examine, and one of the committee also suggested the same thing. However, I am not controverting the position of the Chair. 58 REVISED RECORD. [Thursday, The Chairman — Are there any other amendments to this propo- sition? Mr. Towns — Mr. Chairman, are substitutes in order? The Chairman — Not until we have determined whether there are any further propositions to amend. The Chair desires to state that he is informed that the ruling of the Chair, when we come into Convention, will be that upon motion to agree to the report of the committee; no amendments will be in order, so that any amendment that gentlemen desire to propose should be proposed while we. are in Committee of the Whole. Mr. Towns — Mr. Chairman, I have an amendment to section I of this article, and section 2 and section 7. I will offer them as amendments or as substitutes, according as the Chair rules. The Chairman — Are there any other amendments? The Chair hears none, and the substitutes of Mr. Towns will be received. Mr. Towns — Mr. Chairman, in order not to trespass upon the precious time of this Convention, if you will permit me, I will read these substitutes to save time, or I will hand them up to the Secretary. I wish to substitute for section i the following proposition: "The Supreme Court is continued with general jurisdiction in law and equity, subject to such appellate jurisdiction of the Court of Appeals as now is or may be prescribed by law not inconsistent with this article. " The existing judicial districts of the State are continued until changed as hereinafter provided. The Supreme Court shall consist of the Supreme Court justices now in office and such additional justices as the Legislature of the State may from time to time deem necessary to discharge the business of the judicial district, and the justices transferred thereto by the fourth section of this article, all of whom shall continue to be justices of the Supreme Court during their respective terms, and of their successors, but the Legislature shall not increase the number of judges in any judicial district of the State to a greater number than the ratio of one to every hundred thousand inhabitants in said judicial district." Mr. Chairman, you will perceive that I have here met the objections which have been advanced upon this floor as to the advisability of loading upon the people of this State eleven judicial magistrates, with salaries ranging from $17,500 to $8,000. In the amendment, as proposed by me, there is elasticity, because whenever the Legis- lature may deem that the population and the contiguousness of the district justifies it, they may add one judge in the ratio of one to August 23.] CONSTITUTIONAL CONVENTION. 59 every hundred thousand. I have amended the next section as fol- lows: I have divided the State into five judicial districts instead of eight, and I have made the first district the county of New York, and the second district the counties of Suffolk, Queens, Kings and Richmond. The others are to be divided as the Legislature may deem fit. By section 7 of this substitute, I have amended this pro- duction of the Judiciary Committee, which is no doubt destined to illumine the ages and to bless posterity, if we pass it as it at present exists, by the following provision: "The appellate jurisdiction now exercised by the General Term of the Supreme Court in the different judicial departments of this State is hereby abolished, and all appeals after the ist day of January, 1895, or the adoption of this Constitution, from any judg- ment, finding or decision of any judge, shall be to the Court of Appeals as hereinafter stated." I have thought, Mr. Chairman, that New York should range herself on the side of advancing thought in the judicial procedure of the universe ; and the advancing thought not only in America and in every State in America, but in every country, save those that are under the Code Napoleon, is to have but one appellate tribunal, and not to go limping to the fountains of final justice, halting midway at some inferior tribunal for the purpose of either having your hopes dashed to the earth or unduly stimulated. I have amended the proposed judiciary article of this committee by the insertion of the following provision: "The Court of Appeals is continued. It shall consist of a chief judge and associate judges now in office, who shall hold their offices until the expiration of their respective terms, and of eight addi- tional associate judges and their successors. Such additional judges shall be chosen by the electors of the State." In that way, Mr. Chairman, I meet the objections of these gentle- men who seem to be opposed to the appointment of judges by some political chief magistrate of the State, the Governor. " Such addi- tional judges shall be chosen by the electors of the State at the first general election after the adoption of this article, except that no more than three judges may be taken from any one of the five judicial districts of the State. At such election each elector may vote for only one judge. The official terms of the chief judge and the associate judges shall be fourteen years from and including the first day of January next after their election. The Court of Appeals may sit in departments in bane, and shall always be open for the transaction of business. There shall be three departments, denomi-* nated respectively department one, department two. and department three. The chief judge shall assign five of the associate judges to 60 REVISED RECORD. [Thursday, each department, and such assignment may be changed by him from time to time. The associate judges shall sit in either of the depart- ments, and may interchange with other by agreement among them- selves, or as ordered by the chief judge. Each of the departments shall have the power to hear and determine appeals on all questions raised therein, subject to the provisions hereinafter contained in relation to the court in bane. The presence of five judges shall be necessary to transact any business in either of the departments, and the concurrence of four judges shall be necessary to pronounce a judgment. The chief judge shall direct the business of the depart- ment, and may in his discretion order any case pending before the court to be heard by the court in bane. The order may be made before or after judgment pronounced by a department and where the case has been allotted to one of the departments and a judgment pronounced therein, the order must be made within thirty days after such judgment and concurred in by two associate judges." In that way, Mr. Chairman, we have that harmonious symmetry, I might say, that multiplicity, that divisibility, that subtractiveness which the Court of Appeals in England have, and which any court of final resort should have; because if an appeal has been taken to a division which has appellate jurisdiction, and that division has not been changed in its deliverance, there should be some way whereby the same tribunal, exercising the same high right of final determination, should sit in accord with its associates and determine the law as it should be. I go on with certain details as to procedure. I give these judges what I think every appellate tribunal should have, the right to issue writs of habeas corpus, or any other writs in favor and in keeping with their high office. I provide that the eight additional judges who shall be elected as Court of Appeals judges, shall by lot, as soon as they have been elected, determine which four of their number shall go out the first seven years, and which four shall remain for the entire term for which they are elected, and that such determination shall be recorded in the proper office. And, then, Mr. Chairman, I have provided something which I think the Judiciary Committee overlooked. I have seen nothing which pertained to it in their article, and it is something which I think is very necessary. It has been complained of here that the appellate tribunals are inefficient; some have hinted that they are lazy, some that they do not perform their duties, and others that ;hey go junketing around the country, even to Europe, to seek pleasure when they should be here perspiring over the knotty prob- lems of the law. I have provided against that emergency and that August 23.] CONSTITUTIONAL CONVENTION. 6l abuse in the following language : " The Legislature shall have no power to grant leave of absence to any judicial officer, and any such officer who shall absent himself from the State for more than sixty consecutive days shall be deemed to have forfeited his office, unless such absence occurs under circumstances over which such officer has no control." Now, section 10, and that is the last section of my article, and judging from the unanimity with which every other amendment that had any element of scintilla of rationality in it, has been voted down here by this chamber to-night, I have no hope that this article of mine will be accepted by this most wise and deliberate body; I have upon my side no Jeremy-Diddlers, but I have Jeremy Bent- hams, and I do appeal to posterity, and I tell you that when the next Constitutional Convention, which shall perchance meet, all political differences to the contrary notwithstanding, twenty years hence, and searching around as the Judiciary Committee of this Convention seem to have sought in the darkest recesses of every convenient place for some idea to deliver them from the dilemma that seemed to surround them, that this article will come twinkling like a sunbeam through the cracks and crevices of some prison of Chillon and illuminate their minds so that they may give the people of this State an article that they can appreciate, and can accept and adopt. " The judges of the Court of Appeals and the justices of the Supreme Court shall hold no other office." That is the usual con- stitutional provision, and there is no use in my reading it. But, Mr. Chairman, one of the most worthy teachers of the law who lived in the latter part of the fifteenth century and taught ambitious students who were pursuing the intricate paths of the law how to adjust their footsteps, held a lamp of judicial light, so to speak, to them ; I speak of the honorable and ever to be remembered Anestos Putter, of the Unitversity of Leyden, laid it down as a solemn principle in the administration of justice Mr. Root — Mr. Chairman, will the gentleman give way for a moment for a motion regarding the order of business. I move that we extend this session this evening for fifteen minutes. I think we can finish by that time. I think there are no more serious amend- ments to be proposed, and then we can start with a fresh order of business in the morning. I make that motion. The Chairman put the question on the motion of Mr. Root, and it was determined in the affirmative. Mr. Towns (resuming) — He laid it down, Mr. Chairman, as a solemn principle in the administration of justice that form should 62 REVISED RECORD. [Thursday, be observed; that judicial determinations were nothing but forms and that formality should surround the courts of justice, and I do not think that the Committee on Judiciary recognized that prin- ciple, because I have seen nothing in their article which adds to the solemnity of judicial procedure. For that reason I think the Con- stitution should recognize the principle to which I have referred, and in section ill have provided that the judges and justices shall be vvigged and robed ; that there shall be a court crier for the Court of Appeals and for the Supreme Court, who shall be at least six feet and two inches in height, and be costumed as the court or chief justice thereof shall determine. He shall be armed with a sword, a lamp and a Bible, and shall with solemn and stately mien open and close the sitting of the court from day to day in the following language : Hear ye, hear ye, lawyers and litigants, Hear ye, hear ye, civilians and militants, The Honorable Supreme Court of the State of New York, Is about to begin its most righteous work; Let every one rise, doff low hats and high hats, And harken in silence to its judgments and fiats. And in adjourning shall say: This solemn court in a solemn way, Has ground exceeding fine all day. The grist that came unto its mill Will now depart. Keep still; Let all here rise and show respect. Bow low, low, low to the people's elect. I think that is the way that the court should be opened and closed. I think that we should have solemnity in the dispensation of justice. One of my colleagues has insinuated here to a gentleman who had something to do with the framing of this article and the rules under which we are working, that in New York city there are two millions of patronage to be dispensed by justices sitting at Special Term. I am glad to know that is not the case. I am glad to know that there is no patronage to be dispensed in a court of justice, but, sir, there is this to be dispensed, the rights of the people. Every judge who goes upon the bench in the morning goes there to determine the rights of some person; to consign some one either to liberty, to fill him with joy, or to plunge him into despair. And he does that by means of sworn testimony, delivered in his presence. I say that we cannot surround our tribunals with too great solemnity. I think, Mr. Chairman, that the interests of the State and the interests August 23.] CONSTITUTIONAL CONVENTION. 63 of the people will be conserved in this simple article, so symmetrical in its entirety; not a product, like the one of this committee, of the infusoria kind, not injected here by any outside influence, not organized for the purpose of making the people fit the business of the courts, but organized for the purpose of making the courts fit the business of the people. Such an article will meet the approba- tion of the people of the State of New York, and would insure the success of the party which the majority of this Convention so devoutly worship, next November. Mr. Griswold — Mr. Chairman, is it in order to strike out the provision on page 8 restricting the right of appeal to the Court of Appeals? Mr. C. H. Truax — It has been once voted upon. Mr. Griswold — Mr. Chairman, I am told that that proposition has been passed upon. I have one other amendment; on page 8, line n, after the words "the Legislature may further," interline the word "enlarge;" so that it shall read "the Legislature may further enlarge and restrict the jurisdiction of the Court of Appeals and the right of appeal thereto," etc. President Choate here took the chair. The President — The gentleman from Greene will suspend for a moment. Mr. Root — Mr. President, I move that the session of the Con- vention be extended thirty minutes. Mr. Bowers — Mr. President, I hope that motion will not pre- vail. It would be a precedent for extending the sessions whenever an important matter shall come up. I do not see that any occasion has yet arisen for extending the time. The President — The question is on the motion of Mr. Root to extend the session for thirty minutes. Mr. Speer — Mr. Chairman, I rise to a point of order. The Committee of the Whole has not risen, and by the rules the com- mittee of the Whole was to sit until ten o'clock. The President — The Chair holds that the House is in Conven- tion, and that the motion is in order. The President put the question on the motion of Mr. Root, and it was determined in the affirmative. Mr. Acker resumed the chair in Committee of the Whole. The Chairman — The Convention is in Committee of the Whole, and is still considering general order No. 45. The Chair recog- nize? the gentleman from Greene (Mr. Griswold). 64 REVISED RECORD. [Thursday, Mr. Griswold — Mr. Chairman, I say that an iron-bound rule in a Constitution is very dangerous without any power in the Legis- lature to change it. Now, sir, here is a limitation of appeals to the Court of Appeals. We have no power in any Legislature, no power anywhere, but to call upon this Convention to revise the Constitu- tion in order that we may bring appeals. Here is an iron-bound* rule that such and such matters specified may go to the Court oi Appeals; and they do not know what they have limited, in tny humble judgment, with all respect to this committee, and whom I do sincerely respect, for their reputation and their ability are well known. Now, in reference to this provision, which is in this lan- guage: "The Legislature may further restrict the jurisdiction of the Court of Appeals and the right of appeal thereto," mark the further restriction, and there is no power in the Legislature if a case should arise in which they think it is absolutely necessary in the cause of justice that the jurisdiction of the Court of Appeals and the right of appeal thereto should be granted. In my judgment cases must arise that will be very embarrassing to lawyers, and they will occur all over the State. I remember when the provision of the code was substantially as this is, I remember, too, that I could not appeal from a decision on a demurrer to pleadings; and having been in that hole once myself, I don't know whether this Convention of lawyers will ever appreciate it until they get there themselves, and then they will. Here is the provision. You cannot appeal from an interlocutory judgment, and a demurrer is made to one of a man's defenses that he set up to a complaint and a decision against him on that demurrer. It involves perhaps a matter of great importance in that defense; a decision is made in favor of the demurrer as against the plaintiff, and then there is no way to get out of that decision to get to the Court of Appeals, which may involve the whole cause of action, no matter what amount. You cannot appeal from the interlocutory judgment to the Court of Appeals. And then the only other remedy is to go back to the trial court and try that case there with the man's defense barred out, his one defense barred out, and there is no way no matter what the expense is but to go back and try that case and then appeal to the General Term after he is beaten there, and then to appeal again from there to the Court of Appeals, claiming to review the intermediate judgment, and after the judgment is rendered in the Court of Appeals, to come back and try the case over again; thus never getting his pleading settled until he has tried his cause, appealed to the General Term and then to the Court of Appeals. August 23.] CONSTITUTIONAL CONVENTION. 65 Now, it seems to me dangerous and even presumptuous on the part of gentlemen, who insist on these limitations, having this cast- iron rule, and who cannot trust to the Legislature. It seems to me that it is too much assumption on the part of this Convention to make that iron rule here and leave no discretion in the Legislature. Therefore, my motion is to insert the words to give the Legisla- ture the right to enlarge the jurisdiction of the right to appeal as well as the right to restrict. Mr. Peabody — Mr. Chairman, I move that the committee now rise, report progress and ask leave to sit again. The Chairman — I think the Chair should put the motion of the gentleman from Greene, Mr. Griswold. The Chairman put the question on the adoption of the amend- ment of Mr. Griswold, and it was determined in the negative. Mr. Root — Mr. Chairman, I move that the committee rise, report this bill and recommend its passage. The Chairman put the question on the motion of Mr. Root, and it was determined in the affirmative; whereupon the committee rose and the President resumed the chair. Mr. Acker — Mr. President, the Committee of the Whole have had under consideration the proposed constitutional amendment (printed No. 422), to amend article 6, of the Constitution, relating to the judiciary; have gone through with the same; have made some amendments thereto and have instructed the Chairman to report the same to the Convention and recommend its passage. Mr. Veeder — Mr. President, I call for the ayes and noes. Mr. Lincoln — Mr. President, I move to recommit the report to the Judiciary Committee, with instructions to amend section 14, by striking out the first paragraph and inserting in place thereof, the paragraph suggested by me in an amendment in the Committee of the Whole, which I will ask the Secretary to read ; and that the committee be instructed to report forthwith. The President — The Chair holds that Mr. Lincoln's motion is in order, superseding the report of the Committee of the Whole. The Secretary read the proposition of Mr. Lincoln, as follows: "The existing County Courts are continued, and the judges thereof, now in office, shall hold their offices until the expiration of their respective terms. In the county of Kings there shall be 5 66 REVISED RECORD. [Thursday, two county judges, and the additional county judge shall be chosen at the next general election held after the adoption of this article. The successors of the several county judges shall be chosen by the electors of the county for the term of six years. The County Courts shall have general original jurisdiction in law and equity in all cases where the defendant resides in the county, subject to such appellate jurisdiction of the Supreme Court or Court of Appeals as may be prescribed by law; such County Courts shall also have such appellate jurisdiction as may be provided by law, subject, however, to such provisions as shall be made by law for the removal of causes into the Supreme Court. They shall also have such original jurisdiction as shall from time to time be con- ferred upon them by the Legislature. Mr. Lincoln — Mr. President, I call for the ayes and noes. The call of Mr. Lincoln was sustained. The Secretary proceeded to call the roll upon the motion of Mr. Lincoln, and the motion was determined in the negative. (See Revised Journal, page 490.) The President — The question recurs on agreeing to the report of the Committee of the Whole. Mr. Alvord — Mr. President, upon that I move the previous question. The President put the question, shall the main question now be put, and it was determined in the affirmative. The President — The question is on agreeing to the report of the committee, recommending the passage of this amendment. Mr. Veeder called for the ayes and noes, which call was sus- tained. The Secretary proceeded with the call of the roll. (See Revised Journal, pages 490 and 491.) The report of the committee was agreed to. The President — The amendment goes to the Committee on Revision, and will be printed. The Convention adjourned until Friday morning at ten o'clock. August 23.] CONSTITUTIONAL CONVENTION. 67 Friday Morning, August 24, 1894. The Constitutional Convention of the State of New York met in the Assembly Chamber at the Capitol, Albany, N. Y., Friday morning, August 24, 1894. President Choate called the Convention to order at 10 A. M. The Rev. A. Kennedy Duff offered prayer. On motion, the reading of the Journal of yesterday was dis- pensed with. The President — Are there any memorials or petitions? Any notices, motions or resolutions? Mr. Vedder — Mr. President, I desire to be excused this after- noon and to-morrow upon business connected with the work of the Convention. The President put the question on granting leave of absence to Mr. Vedder, as requested, and it was determined in the affirmative. Mr. Jacobs moved that the preamble and resolution (No. 172) offered on page 493 of the Convention Journal (No. 48, August 15, 1894), relative to the delegates from the sixth district, be referred to the Committee on Privileges and Elections and Contingent Expenses. Mr. Veeder — Mr. President, I would like to have some little statement about what the point is. The President — The Secretary will read the resolution. Mr. Veeder — I would rather have Mr. Jacobs state the sub- stance and purpose of the resolution. Mr. Jacobs — It is in regard to the compensation of the dele- gates from the Sixth Senatorial District, and that takes in the Buffalo delegates. The President — The Secretary will read the resolution: The Secretary read the resolution as follows: Whereas, The delegates to this Convention from the Sixth Sena- torial District, were unjustly deprived of their seats and prevented from taking any part in the deliberations of this body during the period from May 8, 1894, to August 2, 1894, and Whereas, The said delegates have made demand upon the proper disbursing officer of this Convention for their mileage and per diem 68 REVISED RECORD. [Friday, allowance as provided by law for said period, which demand has been refused; now, therefore, be it Resolved, That the said delegates from the Sixth Senatorial Dis- trict are entitled to the mileage provided by law, and to the per diem allowance of ten dollars for every day during the period from May 8, 1894, to and including August 2, 1894, and that the President of this Convention be and hereby is requested to certify the amount thereof to the State Comptroller for payment. The President — Mr. Jacobs moves that this resolution be taken from the table and referred to the Committee on Privileges and Elections and the Committee on Contingent Expenses jointly. The President put the question and it was determined in the affirmative. Mr. Johnson — Mr. President, I move that general order No. 13, the cities article, be put at the head of the calendar for Monday and continued there until disposed of in the Committee of the Whole. Mr. Hotchkiss — There has already been a general order made a special order for Monday. It is the report of the Forestry Committee. Mr. Deady — That is for Monday night. Mr. Hotchkiss — If I am in error in that regard, it is certain that the second report of the Cities Committee has not been put upon our files, unless it is upon our files this morning. The President — I understand it has come in this morning. Mr. Hotchkiss — Now, there has been no opportunity upon the part of the members to critically inspect that article and there will scarcely be such an opportunity by Monday. There can be no prejudice to the article or to its ample consideration if it be made a special order for Tuesday, and I know it will be far more to the convenience of many gentlemen who desire to discuss it, if it is made a special order for Tuesday instead of Monday. I would, therefore, move to amend Mr. Johnson's resolution by substituting Tuesday for Monday. Mr. Jesse Johnson — Mr. President, it is very little to the Cities Committee, perhaps, whether it be made a special order for Mon- day or for Tuesday. The article is now where it can be reached to-day. The majority of the Cities Committee are ready to debate it when it is reached, and will be ready; but in deference to the minority, who have not as yet filed their report, if they wish a short postponement, it might be quite wise to grant their request. August 24.] CONSTITUTIONAL CONVENTION. 69 The President — Mr. Johnson, the forestry matter is a special order for Monday evening. If you want to get your cities article up, you had better do it before that. Mr. Johnson — If that would interfere with it, and it is deemed an undue postponement, I would not press it beyond that, if there is a special order for Monday. The President — Those in favor of Mr. Hotchkiss's amendment to Mr. Johnson's motion substituting Tuesday for Monday, will rise and stand until they are counted. Mr. Veeder — Mr. President, I think before the count is taken some reply should be made to Mr. Johnson. The information that the committee may have on the subject is not in possession gener- ally of the members. We have to educate ourselves. The President — Mr. Veeder, you are out of order. You are speaking while the vote is being taken. Mr. Veeder — I did not hear the Chair say that the vote should be taken. I ask that the vote be delayed. The President — Mr. Hotchkiss's amendment is lost. The President then put the question on the motion of Mr. John- son to make the cities article a special order for Monday morning, and it was determined in the affirmative. Mr. liotchkiss — Mr. President, I move that general orders Nos. 60 and 68, being the report of the Cities Committee on Franchises and on Debt Limitation, be made special orders to be taken up immediately after the cities article is finished. Mr. Johnson — Mr. President, I see no need of the Cities Com- mittee attempting to absorb all the time of this Convention for its work, considering the very generous and full leave that is granted us as to one of its articles just now. I oppose the motion. Mr. Bush — Mr. President, I object as a member of the Commit- tee on Legislative Organization, to taking all the balance of the time of this Convention by making special orders, before we can get the report of the apportionment article in this House. That is one of the most important questions that is to be debated by this Con- vention. If the Convention gives all of its time to the cities article and the franchise article, I don't see what time is to be left for the discussion of the apportionment article. I do not think that we should put ourselves in a position where we will have limited time for a full consideration of the apportionment question, by putting it at the verv end of our session. The President has stated that 70 REVISED RECORD. [Friday, it will require a week for the discussion of the apportionment ques- tion. I am, therefore, opposed to the motion. The President — The Convention has it in its hands, by taking up and discussing and disposing of the cities article, to give plenty of time to the apportionment article. Mr. Bush — Mr. President, I think there is great danger that our time will be very limited for the- discussion of this important question, if we continue to set down special orders in addition to the cities article. Mr. Veeder — Mr. President, my colleague from Ulster need not have any apprehension about the apportionment matter. It will not take very much time. One day will dispose of that. The President — If Mr. Veeder will undertake to dispose of that there will be no difficulty. Mr. Veeder — In my judgment, Mr. President, one day will be sufficient. The President — The question is on making the report of fhe Cities Committee on franchise a special order immediately after the cities article is disposed of. Mr. Spencer — Mr. President, I trust that the Convention will vote this motion down. The Cities Committee do not desire to take up that article, as they will have all they can do to dispose of the cities article without taking up any other matter immediately after- wards. I hope the Convention will vote this motion down. Mr. E. R. Brown — Mr. President, I think for the Convention to take up the time immediately following the cities article — Mr. Hotchkiss — Mr. President, I will withdraw the motion. I had supposed the majority of this Convention considered those two subjects of sufficient importance to give them dispatch. I withdraw the motion. The President — It may very well be that those articles will be reached before Monday. Mr. McKinstry — Mr. President, I offer the following resolution. The President — The Secretary will read the resolution. The Secretary read the resolution as follows: R. 182. — Resolved, That upon Saturday a session of three hours be held from o A. M. until noon and that the Convention then f < • adjourn until Monday morning. Mr. McKinstry — I ask to have it referred to the Committee on Rules. August 24.] CONSTITUTIONAL CONVENTION. 71 The President — It is referred to the Committee on Rules. Mr. Mereness — Mr. President, is an application to be excused in order now? The President — Yes, sir. Mr. Mereness — I regret that a business engagement made sev- eral weeks ago, and which cannot be deferred, requires my pres- ence at home to-morrow. Acting upon the suggestion of the Presi- dent, and to prevent my being in contempt and listed as an absentee, I ask to be excused from the sessions of the Convention to-morrow on condition that the compensation for that day be waived. The President — By whom is that signed? Mr. Mereness — Not signed, but it is my application. The President put the question on granting leave of absence to Mr. Mereness, and it was determined in the affirmative. Mr. M. E. Lewis — Mr. President, I desire leave of absence from the Convention this afternoon and evening, in order to attend to a business matter which demands attention. The President put the question on granting leave of absence to Mr. Lewis, and it was determined in the affirmative. Mr. Baker — Mr. President, I ask to be excused to-morrow and Monday. The President put the question on granting leave of absence to Mr. Baker and it was determined in the affirmative. Mr. Crosby — Mr. President, I believe that I have been present at every roll-call in this Convention. I now am compelled to be absent on Monday and possibly on Tuesday of next week. I ask to be excused. The President put the question on granting leave of absence to Mr. Crosby, and it was determined in the affirmative. Mr. Gibney — Imperative business calls me away on Saturday and Monday next, and requires my personal attention. I ask to be excused for those days. The President put the question on granting leave of absence to Mr. Gibney, and it was determined in the affirmative. The President — I hope that the Convention will bear in mind the condition in which they put themselves last Saturday in granting these applications for excuses. Mr. Davis — Mr. President, I ask to be excused for Saturday and Monday owing to a previous engagement. 72 REVISED RECORD. [Friday, The President — Mr. Davis asks to be excused for Saturday and Monday as he did last week. (Laughter.) The President put the question on granting leave of absence to Mr. Davis, and it was determined in the affirmative. Mr. Barhite — Mr. President, I ask that general order No. 63 be made a special order for next Tuesday evening. It is an important matter in which a number of gentlemen in the Convention are inter- ested, and I think we can finish it at that time. The President — Is that the Niagara matter? Mr. Barhite — It is. Mr. Cochran — I ask, Mr. President, that that be a rising vote, as it requires a two-thirds vote. One assignment of a special order has been made already without a two-thirds vote. Mr. Blake — Mr. President, I would like to know by what rule these matters are set down as a special order? The President — By a rule requiring a two-thirds vote. Mr. Blake — Mr. President, I do not wish to delay the discussion of any of these matters, but it seems to me that " sufficient for the day is the evil thereof." I think we should follow the regular cal- endar. I do not see any reason for departing from it. There are other special orders to be considered. It seems to me that the best way to do is to follow our rules in this Convention, unless by a two-thirds vote or unanimous consent we shall decide to the contrary. The President — Rule 24 expressly declares that any matter may be made a special order for any particular day by a two-thirds vote or by unanimous consent. Mr. Blake — I know that. I have the rule directly before me. I say that, unless we have a two-thirds vote we should not depart from the regular order of business. The President — That is unquestionably so. Those in favor of making the Niagara matter a special order for Tuesday evening will please rise and stand until they are counted. Mr. McMillan — One moment, Mr. President. I would ask the delegate in charge of this matter to fix a later day. It was only a short time since that this report was made. Several gentlemen from Niagara Falls have been here within the past twenty-four hours, and I would suggest to Mr. Barhite that he make it later in the week. Mr. Goeller — Mr. President, I ask unanimous consent that the August 24.] CONSTITUTIONAL CONVENTION. 73 resolution introduced by Mr. McKinstry in reference to Saturday's session be taken up now. The President — It cannot be taken up until the report of the Committee on Rules is made. It has been referred to the Com- mittee on Rules. Mr. Goeller — I understand that it can be done by unanimous consent. The President — By unanimous consent, yes, sir. Mr. Dean — I object, Mr. President. Mr. Goeller — I ask unanimous consent. The President — Unfortunately, Mr. Dean objects. Mr. Blake — Mr. President, has Mr. Barhite's motion been dis- posed of ? The President — No, sir; it has not. Mr. Barhite — Mr. President, at the suggestion of the gentleman from Erie (Mr. McMillan), Thursday will be satisfactory to me. The President — This will require a two-thirds vote. A rising vote was had, and the President declared the motion obviously carried. Mr. Blake — Mr. President, I rise to a question of information. Will the Chair please inform the Convention by what vote the Chair decided the cities article was made a special order for Monday morning? The President — By a two-thirds vote. Mr. Blake — I did not understand that to be the decision, that the question was decided by a two-thirds vote. The President — It was so decided. Mr. Blake — It was by a rising vote. There was no count. I raise that point. The President — That matter has been decided. Are there any reports of committees this morning? There is a special order for to-day, Mr. Barrow's amendment. There is a communication to be disposed of from the Comptroller's office. Mr. Gilbert — Mr. President, under the head of reports of com- mittees, I think it proper for me to say that I understood there was some doubt expressed on Monday as to whether the special com- mittee on civil service had completed its work. It is perhaps proper that I should say that the special committee on civil service has completed its work. 74 REVISED RECORD. [Friday, The President — The communication from the Comptroller will be read. The Secretary read the communication as follows (No. 25, in response to resolution No. 115): August 23, 1894. To the Constitutional Convention: In reply to the following resolution of your honorable body, adopted July 2oth last, " Resolved, That the Comptroller be and he is hereby requested to transmit to this Convention a statement of what land other than forest preserves, the canals, the salt springs, and the lands upon which public buildings are erected, are owned by the State of New York, the estimated value of said property, what income is derived from the same, and where situated, and what provision, if any, in his opinion, should be made for disposing of said property," I have the honor to transmit herewith the statement requested, which has been prepared under considerable difficulty, arising from want of information on some points, and from the pressure of busi- ness incident to this season of the year, but which has been made as full and accurate as the limited time given me would permit. The list of such lands, so far as the title thereto has been obtained through tax sales and the foreclosure of loan commissioners' mort- gages, records of which are on file in this office, is complete. The remainder of the list, which has necessarily been obtained from other departments and sources, has been compiled with care, and is believed to be complete. The value of most of these lands is unknown to me. The esti- mate given, where title has been derived through tax sales, is largely based on assessed values; where title has been obtained through mortgage foreclosures, on the appraisal made at the time of the foreclosure sale ; and in other cases from inquiry of residents of the town or county in which the lands are located. The estimates made, if not correct, are approximately so. The income derived from such of the properties as are leased, or used for any purpose, is in accordance with official reports to this department. The sale of such of said lands as are uncultivated, and within ten miles of Clinton prison, is prohibited by chapter 208, Laws of 1894, which law, in my opinion, confers ample and safe powers upon the Commissioners of the Land Office to dispose of these lands. A forced sale at any particular time, like the present, might be prejudicial to the best interests of the State. From such August 24.] CONSTITUTIONAL CONVENTION. 75 attention as I have given to the subject, I am convinced that no additional legislation authorizing the sale thereof is required. Respectfully submitted, WILLIAM J. MORGAN, Deputy Comptroller. The President — What disposition will the Convention make of this communication from the Comptroller? Mr. Roche — Mr. President, I move that the communication, together with the list accompanying it, be printed and laid upon the tables of the members. I wish to say that the Comptroller's office suggested that this should be done. The information has been obtained after considerable labor in that office, and from other departments, and they desire that they should have it in printed form. It relates to every county in the State. There are forty or fifty pages of it and I do not think it would involve an expense of more than forty or fifty dollars. The President put the question on the motion of Mr. Roche and it was determined in the affirmative. The President — The special order made was that Mr. Barrow's amendment should follow immediately upon the disposition of the judiciary article. Mr. Barrow — Mr. President The President — Do you move that now? Mr. Barrow — I do. The President — What is the number of it? Mr. Barrow — Eighty-one, I think. The Secretary — Introductory Xo. 81, printed Xo. 81. Mr. Barrow — Relating to two-thirds bills. Is that the one? The President — That is an adverse report of the committee. The Secretary will read the amendment which is the subject of the adverse report. The Secretary read the amendment. Mr. Alvord — Mr. President, I desire to say that I trust that Mr. Barrow will consent that this will be laid over until next week, as Mr. Goodelle, who is largely interested in this matter, is unavoid- ably absent and desires to be present upon the consideration of the proposed amendment. The President — What does Mr. Barrow say to this application? Mr. Barrow — I would say that I have postponed the considera- tion of this special order from week to week for the last six weeks, 76 REVISED RECORD. [Friday, and I am very desirous of having a hearing at this time. However, I am perfectly willing to have it postponed to accommodate Mr. Goodelle, because I would like to have him present when the matter is discussed. Mr. Alvord — I suggest that it be left to Mr. Barrow to name the time. Mr. Barrow — Can it be made a special order for Monday evening? The President — The cities article has the track on Monday until finished and the forestry report on Monday evening. It can be made a special order for next Wednesday evening. Mr. Barrow — With that understanding, that it be made a special order for next Wednesday evening, I consent to postponing it until that time. The President put the question on making Mr. Barrow's amend- ment a special order for Wednesday evening, and by a rising vote it was determined in the affirmative. The President — A communication has been received from the Attorney-General's office. The Secretary will read it. The Secretary read the communication as follows (No. 26, in response to resolution No. 153): STATE OF NEW YORK: ALBANY, August 22, 1894. To the Secretary of the Constitutional Convention: In reply to the resolution of your honorable body of August eighth, on motion of Mr. McLaughlin, I have the honor to trans- mit the following report. I am, your obedient servant, T. E. HANCOCK, Attorney-General. The President — Mr. McLaughlin, what do you wish to have done with this communication from the Attorney-General? Have it read now? Mr. C. B. McLaughlin — I would like to have it printed. The President put the question on the motion of Mr. McLanghlin to print the communication and statement accompanying it from the Attorney-General, in reference to claims against the State, and August 24.] CONSTITUTIONAL CONVENTION. 77 it was determined in the affirmative. (See Documents Nos. 44 and 45-) Mr. Mulqueen — Air. President, I ask that Mr. Peabody be excused until next Tuesday. The President — Mr. Peabody has been called home by a fire which has burned part of his premises. The President put the question on granting leave of absence to Mr. Peabody, and it was determined in the affirmative. Mr. Osborn — Mr. President, one week ago to-day permission was granted to the Committee on Legislative Organization to extend its time to report until to-day. That report is now due. It is not ready. I desire to inquire of the chairman of that commit- tee and obtain on this floor an authoritative statement of when that report will be ready, and have the Convention understand what steps are to be taken upon the subject of apportionment. I desire to say in connection with this request that it is understood that the districting of the city of New York is not yet ready. I desire to state further that the minority members upon that committee have not yet been granted the privilege of examining with care the dis- tricting of the city of Brooklyn and the county of Erie and the county of Monroe. The districting of Brooklyn, I" believe, appears in the New York Tribune this morning. It is to my mind only fair that the minority of that committee should be consulted before the districting of the great cities of this State should be given to the public, and if, Mr. President, that report is to go over until next week, as now seems inevitable, and if these other matters are to be given the right of way, in preference to the apportionment, I desire to hear some intelligent and some responsible statement upon this floor as to when the subject of apportionment is going to come before this Convention and what amount of time is going to be given the minority in this House for consideration.. The President — Have you asked the chairman before making this application? Mr. Osborn — Mr. President, I have asked the chairman to bring this matter up. I have stated to the chairman in committee that I was not satisfied with the position in which it now stands. The chairman has asked me not to take any position in the matter, and I find myself unable to reconcile my position as a minority member of that committee with the position that they are now tak- ing. I believe, Mr. President, that this matter will not receive any consideration by this Convention unless it is forced before this Convention immediately. 78 REVISED RECORD. [Friday, The President — Do you make any motion, Mr. Osborn? Mr. Osborn — I do not think, Mr. President, that any motion is necessary, for the reason that the chairman of that committee is now by the resolution of this Convention instructed to report to-day and no report has been presented, and the time for reporting has passed. The President — The Chair does not understand that the com- mittee will be in default in not presenting their report under the head of reports of committees, as under the order already made they can present their report any time to-day. Mr. Becker — Mr. President, and gentlemen of the Convention, much that Mr. Osborn says is true. We did expect to have the districts in New York city fully embodied in the report, so as to make the report to-day. All the other districts are ready and are in. The New York city matter has been delayed to a certain extent, because the New York member of this committee, who would be consulted chiefly about it, Mr. Root, has been engaged on the judiciary article and has been unable to prepare his districts and put them in. Mr. Bowers — May I ask the gentleman a question? The President — Does Mr. Becker give way? Mr. Becker — Yes, sir. Mr. Bowers — Is Mr. Root now engaged in that work, or is Mr. Reid? (Laughter.) Mr. Becker — His last work on the judiciary article was com- pleted I believe Mr. Bowers — That hardly answers my question. The President — The Chair happens to know that Mr. Root was at work on this matter until two o'clock this morning. Mr. Bowers — I am glad to hear it. But was he alone? Mr. Becker — Now, the matter stands in this way : the com- mittee has requested its chairman to ask the Convention for an extension of time until Monday evening. The work in reference to New York city and county has been placed in charge of a sub-committee of two members of the committee, with positive instructions, without regard to any New York member, or anybody else, that the sub-committee should be ready with their districts by two o'clock on Monday. There is not the slightest doubt in the world but that this report will be ready to be put in here on Monday; at the latest, by Monday evening. Mr. Osborn and the other minority members of that committee have been assured that there August 24.] CONSTITUTIONAL CONVENTION. 79 would be no cutting oft" of debate whatever. There is no intention on the part of anybody to limit debate, and as far as the Republi- can members of the committee are concerned, there will be plenty of opportunity afforded the minority members of the committee and no attempt will be made to curtail any reasonable amount of debate and consideration. There is nothing in the bill proposed and now being prepared that will not be, in the minds of the majority, immensely benefited by full and careful consideration. The President — Mr. Becker moves that the time for the Com- mittee on Legislative Organization to report on the apportionment article be extended until Monday evening. Mr. Bush — Mr. President, I am glad that the chairman of the Committee on Legislative Organization has made the statement that he did, and I want to call the attention of the Convention to the fact that the members of the minority will have absolutely no oppor- tunity to examine the apportionment of the city of Xew York in the committee, because it is to be done on Monday before two o'clock, and the report is to be made on Monday evening. So you will see how little time the members of the minority will have to examine it. He says that Brooklyn and Erie and Monroe counties are already in. I deny the fact, because I have never seen them anywhere except in a New York paper. The gentleman from Erie (Mr. Becker) no doubt has the apportionment in his pocket, but that apportionment has never been submitted to the committee. I would like to have an opportunity to see this apportionment before it goes into the Convention. However, I will waive this because I am anxious to see this report come into the Convention so that the debate on this matter will not be curtailed on account of want of time. I desire to have this report come into the Con- vention as speedily as possible so that we will have sufficient time to consider it, but I want here and now to make our protest so that when this matter comes up and we do not have sufficient time to debate the same, it will not be said that we had full opportunity to examine it. Mr. Becker — I will cheerfully join, so far as I am concerned, with Mr. Bush and the minority members of this committee in having this matter as soon as reported made a special order for any day, within a reasonable time, that they may desire. Mr. Osborn - — Will you permit me to say one thing more in this connection. The position of the minority members on this matter is based upon this reason: There are a number of new rules in this proposed apportionment which seriously affect the districting 80 REVISED RECORD. [Friday, of cities. It is in our view especially desirable that the propriety of those rules should be tested by the actual results of the metro- politan apportionment. It is for that reason that we are especially desirous of insisting that the city districting be put into this appor- tionment bill before it comes before the Convention for action. Now, if I understand the chairman of that committee to give an agreement upon his part, that this apportionment, including the city districting, shall be presented to the committee in its final form on Monday not later than two o'clock, and that it shall be reported to this Convention on Monday by the opening of the evening ses- sion, and that that is a responsible statement on his part, I am satis- fied for my part that the committee should have the additional time which it requests, because I think it is most important, and, in fact, absolutely necessary, that the members of this committee, and the members of this body should be able to consider simultaneously the districts which are made and the rules which apply. The President — The Committee on Apportionment being of one mind upon this matter, will the Convention give them until Mon- day evening to make their report? The President put the question on the motion of Mr. Becker extending the time of the Committee on Legislative Organization in which to report until Monday evening, and it was determined in the affirmative. Mr. E. R. Brown — Mr. President, at the time that the judiciary article was taken up, or just prior to that time, general order No. 17 was called. A motion was made and carried in the House that it should not lose its preference by reason of giving way to the judi- ciary article, and I think that general order No. 17 should now be called. The President — The Secretary states that after that it was called and not moved. Mr. E. R. Brown — That is an error. If I may be permitted, noth- ing has been called since the judiciary article was taken up. The President — The recollection of the Chair agrees with Mr. Brown. Mr. Cochran — Mr. President, may I inquire how this gets at the head of the calendar. I remember that this amendment was called in its regular order and Mr. Brown was not present. I sub- mit we should proceed with the calendar now. The President — Can Mr. Brown state when he moved this number? August 24.] CONSTITUTIONAL CONVENTION. 8l Mr. E. R. Brown — Why, it was the morning that the judiciary article was taken up; I think last Monday. The President — It still retains its place on the calendar, Mr. Brown. The Secretary states it never was at the head. The calendar will be called. The Secretary proceeded to call the calendar of the day. General order No. 2, introduced by Mr. Roche, entitled, " Pro- posed amendment to amend article 3 by the addition of a new section prohibiting the granting of pensions to any civil officers or employes," was called and not moved. General order No. 4, introduced by Mr. Hill, to amend section 5 of article 2, relating to the manner of elections, was called. Mr. Hill — Mr. President, I would like to inquire whether the proposed amendment to the rule, as was suggested two days ago, has been recommended by the Committee on Rules, or has been adopted, whereby a general order would lose its place in order, if it was not moved? The President — That has not been acted upon as yet. The Com- mittee on Rules will have a meeting on it. Mr. Hill — Well. Mr. President, I am personally ready to go on this morning. Mr. Goodelle, the chairman of the Committee on Suffrage, is necessarily absent to-day, but, as there is a special order for Monday and Tuesday, I think the Convention had better go into Committee of the Whole on this amendment, and I move that the Convention go into Committee of the Whole. The President put the question on the motion of Mr. Hill, and it was determined in the affirmative. The President — Mr. Veeder is in the chair on this amendment. Mr. Goeller — Mr. President, before we go into Committee of the Whole, I desire to ask leave to introduce the following resolution, a short resolution. The President — The Secretary will read the resolution. The Secretary read the resolution as follows: R. 183. — Resolved, That meetings, as now arranged, of this Con- vention upon Saturdays be changed and that but one session be held, same to endure five hours, from 9 A. M. until 2 P. M., and that the rule obtain that thereupon the Convention adjourn until ten o'clock the following Monday morning. This to apply to Satur- day sessions only. 6 $2 REVISED RECORD. [Friday, The President — Referred to the Committee on Rules, and the Committee on Rules will meet at once in the President's room. Mr. Veeder took the chair and announced that the Convention was in Committee of the Whole on general order No. 4 (introductory No. 183), introduced by Mr. Hill, to amend section 5 of article 2, relating to the manner of elections. The Secretary will read the amendment. The Secretary read the amendment. Mr. Hill — Mr. Chairman, in the absence of the chairman of the Committee on Suffrage, I will state that this amendment now comes back to the Committee of the Whole in the form that it was originally reported by the Committee on Suffrage. I move that the committee do now rise, report this proposed amendment to the Convention and recommend its passage. Mr. McKinstry — Mr. Chairman, I rise to a point of order. Should not the first question be, are there any amendments to the proposed amendment? The Chairman — That inquiry has been made. Does Mr. Hill withdraw his motion? Mr. Hill — I will withdraw the motion, Mr. Chairman. Mr. McKinstry offered the following amendment: At the end of the section add these words, " also provided that every voter shall be guaranteed the right to bring to the polls a ballot prepared by himself, and to vote the same when said ballot is prepared in proper form to be prescribed by law." Mr. McKinstry — Mr. Chairman, we have had such a sad experi- ence with so-called ballot reform that the voters of the district where I reside are very suspicious of any further experiments in that direction. I challenge any delegate to name any other five years in the history of the State marked by so many scandals and outrages upon the rights of voters as we have witnessed during the past five years of so-called ballot reform. Thousands of voters have been disfranchised; the will of the majority has been repeat- edly defeated; high public officials have been disgraced; corruption unprecedented has been revealed by investigating committees, and all of it the result of so-called ballot reform. We feel that in adopt- ing that scheme we were sadly deluded, if not swindled, and we are very suspicious of any new scheme presented, purporting to provide more reform. But with all its defects, the present reform law does preserve to the voter the right described in my amendment, and, although it may be called party heresy in some quarters, ardent August 24.] CONSTITUTIONAL CONVENTION. 83 Republican as I am, I here publicly thank Governor David B. Hill and Governor R. P. Flower for insisting upon retaining this much of freedom and right for the voter, that he may prepare his own ballot, at his own home, to suit himself, and bring it to the polls and vote it by attaching it to the inside of the regular official ballot. We had nine of the Myers ballot machines on trial last spring in Chautauqua county, and every town rejected them. I could give you a very interesting history of our experience with ballot machines, but refrain from using the time of the Convention. I consider the liability of such machines to get out of order as fatal to their usefulness. There is another machine invented by Rev. Mr. Olmstead, of Delevan, Cattaraugus county, which is much cheaper and I consider it far better. The Olmstead machine pro- vides for voting with a ballot, and hence can be used under our present Constitution. Of course, we cannot tell what machines may be invented in the future, and hence I may vote for the propo- sition, but, if I do, it will be with many misgivings. At all events, I do not wish to block the wheels of Brother Hill's car of progress, nor weigh down Col. Dickey's balloon, and I will, therefore, with- draw my amendment. Mr. Dean — Mr. Chairman, I hope that this Convention will not commit itself to this mechanical reform. The Chairman — There is no motion before the Convention. Mr. Dean — Mr. Chairman, I move to strike out the first section. I am entirely opposed to this system of mechanical reform. I am opposed to letting down the bars of the Legislature to make another experiment in ballot reform, either by machine or otherwise. Every time attempts have been made to reform the election laws, elections have been complicated and it has resulted in driving away from the polls the intelligent, high-minded and patriotic citizens of the State, and has thrown it into the hands of the political machines in our large cities to control our elections and debauch the politics of our State. The entire system of ballot reform has been a failure from the beginning. We never had so manly, and honest, and courageous a ballot as the ballot of the olden times, when men went to the polling places and picked out their candidates. Every new- fangled fad that has been introduced into the colonies of England and everywhere else has been tried to compel our people, by com- pulsion and otherwise, to vote, and now they come down here and introduce a pure piece of mechanism in the politics of our State. Any man who can invent a machine or knows anything about the mechanism of machinery can go into one of these machines or con- 84 REVISED RECORD. [Friday, trivances for voting and render it useless in a very few minutes. I am absolutely certain that any machine that has been contrived or that will be contrived can, in the hands of a corrupt man, be made inoperative in less than fifteen minutes. I hope that this Con- vention will not commit itself to any such policy. Mr. Spencer — Mr. Chairman, I am not opposed to any reason- able measure of ballot reform, but, in my judgment, this Convention will make a great blunder, if it makes this important change in the provisions of the Constitution upon the single idea of permitting a machine to be used in elections. My objection to the use of machines in elections is based upon a single proposition, and that is that I do not want any machine between the human mind that counts my ballot and the result. I do not want, if there be any fraud or wrong, or mistake, to have that fraud, or wrong, or mis- take charged upon any machine as an excuse. I want the human mind to act in regard to this matter, and anything that comes in between the human mind, in its action, in its counting, in its regis- try, is, in my judgment, a mistake. I think, sir, that in this habit of registering and counting votes, we should hold men responsible and should not put anything between a man, as an officer, and the result of the election. The only change proposed in this amend- ment is that the Legislature may permit the use of the election machines. I understand that a law was passed last winter per- mitting their use. It is, therefore, doubtful whether any change is necessary to authorize the Legislature to make use of those machines. I think this Convention should go slowly when it attempts to tamper with the constitutional provisions, with regard to the elections by ballot. Mr. Schumaker — It is no desire of mine to say anything upon this subject, but I have had quite an extensive experience as a prosecuting officer of criminals charged with the crime of breaking locks and picking locks, and I could name many of those persons to this Convention, but the poor unfortunates would not thank me for it. Some of them are dead and some of them are now in prison. Any of them with an ordinary ice pick, or an old common Barlow knife that we used to have in times gone by, could disarrange any machinery that ever was invented for taking numbers or registering a count or lock for safes. There is a man now in the Albany county jail, Chauncey Johnson, an all-around thief. I saw him the other day. I went in to see the poor unfortunate out of charity. He is an old man over seventy years of age, and he could go into one of those machines and make it sick in fifteen minutes. You could not go on with your election. You would have a halt right there. August 24.] CONSTITUTIONAL CONVENTION. 85 There are men with their hand-screws in their hand that can break into any iron window. They can put powder into a safe and they can have an explosion that you cannot hear, and they can manipu- late any kind of locks that you can put on a safe and break them all to pieces and make them entirely useless. I remember once I saw a celebrated burglar. He says to me: " You have a farm up the North river?" I said: "Yes." "You have a barn on the place?" I says: "Yes." "Well," he says, "you had better take that lock off the barn " (the lock cost me fifteen dollars). He says: " Take it off. I can go there with an ice pick and with two or three raps I can knock it all to pieces." There was another man on the railroad that could stop the bell on the fare register so that it would not punch. Now, men not only have to ring a bell, but to click something in their pockets. Sometimes they don't click. The registers in the saloons and in the taverns all over the country are beaten by the barkeepers. I remember in Washington when they put in a machine at Schumaker & Hertzog's place (a namesake of mine), the head liquor mixer resigned. He would not stay. But finally, after a while, he came back and said he was going to try it. After a while he was discharged for dishonesty. He found out the machine and the employers found out him and they discharged him. Mr. Jacobs — Was he ahead or behind? Mr. Schumaker — He was ahead. It is the common laughing stock among burglars — the attempts to save the liquor dealers from losses and the railroad companies from losses by the use of machines — and in the matter of machinery for election booths, why, they could stop the election in two minutes and a half, almost before the sun rose on election morning. That is my experience. I did not intend to say anything about it, but some people behind me coaxed me to say it. Mr. Hamlin — Mr. Chairman, in regard to this voting matter, I believe that an intelligent vote should be cast and counted in an intelligent manner, so that every man can see how it is received and recorded and counted in the end. Now, the object of this amendment is, of course, to cover this Myers machine. However, it is broader than that. The objection to all these machines is, as I have before stated when this amendment wras under consideration. Beyond that they are all patented machines. They are and will be practically monopolies, and the question is whether this Con- vention wishes to put into this Constitution something that will be practically for the benefit of machines of that character. And then, these machines must work with unerring precision. If they 86 REVISED RECORD. [Friday, ever fail, they will be useless. Now, machines will work at ordinary times and be successful machines, but I wish to say, with regard to this particular machine, that in my own county, in two towns, within a radius of two miles from where I reside, it has failed twice. In one year it defeated a candidate for assessor, and in the other case the doors had to be opened, so that it was known how many voters had voted up to the time the machine failed to record. Now, I am opposed to any plan by which any machine in the future shall be used. If the time shall ever come when there is some device that has been demonstrated after repeated experiments to be successful, it will be ample time for the people of this State to put it in their Constitution. Mr. Rolls — I regret exceedingly to differ from my friend from Ontario (Mr. Hamlin), and my friend from Fulton (Mr. Spencer), but it seems to me that just the reverse is true, with regard to the proper nature of the act which should apply to the counting of ballots, from what they have said. My friend, Mr. Spencer, says that he wants the ballots counted by a human being — by one having intelligence. My answer to that is, that while the voting should be as intelligent as possible, the process of counting is a purely mechanical process. There have been any number of machines invented, calculating, adding, subtracting, mul- tiplying and dividing, very much better than the human brain can do them ; and there is no reflection at all upon the fact that the human mind is superseded by a machine for that purpose. It seems to me that what we should strive for is to get rid of every possible tempta- tion or chance for fraud, in connection with elections. Now, I do not know that a machine can be invented, or has been invented, which applies the mechanical principles of the adding machine, or of Babbage's calculating machine, or of others that are well known, to the method of voting. If such a machine could be devised, there would then be no chance for destroying the ballots, no chance for a miscount, either by intention or by negligence; and one great ele- ment of uncertainty and fraud in elections would be entirely elimin- ated. Now, if a machine did nothing else than that, it would be wise for this Convention not to make it impossible to use it. I wish to call the attention of members of the committee to the fact that this amendment is purely permissive; that to defeat it is equivalent to saying that in the next twenty years no advance shall be made in the invention of a machine which may make voting more com- fortable and more certain, so far as the count is concerned. That, in my opinion, would be just as absurd as it would have been, if Fulton had been prevented by constitutional prohibition or law August 24.] CONSTITUTIONAL CONVENTION. 87 from improving on the first model of the Clermont, when she went up the Hudson river. I have nothing whatever to say, with regard to the failure of some of these machines where they have been tried. I do not believe that any perfect machine has yet been invented. I have nothing to say, with reference to what my friend from Kings (Mr. Schumaker) might be able to do with this machine, if he got a chance. But it does seem to me, too, that the danger of criminal interference is very largely exaggerated. It is not like a bell-punch, or one of those machines that I am told exists behind bars, where liquor is sold; but this is a machine which is to be used but one day in a year, and under the supervision of sworn public officers; and it seems to me that the danger of burglarious criminal- ity (to use his expression) is very small. At present, there is danger of every kind of fraud in elections. I agree with everything that has been said, with reference to the unsatisfactory character of the present ballot law. I believe it is an advance over the old methods, but a very small advance, indeed. Now, it seems to me it would be a step backward for this committee to prohibit the Legislature from permitting any improvement in mechanical science being used in elections. It seems to me that when gentlemen remember what advances have been made in every line of human life in the last twenty years of invention by the use of electricity alone, they would be very slow to put into the Constitution, or per- mit to remain there, a prohibition against further advance in the making or in the use of devices having reference to such an import- ant matter as elections. I sincerely hope that these amendments will prevail. Mr. J. I. Green — I move to amend by striking out lines 5 and 6. I heartily agree with the gentleman from Ontario. I believe that anything that is invented by man can be controlled by the same agency. And I do hot believe that the people of this State have arrived at that point where they will care to trust their franchises to the regulation of a machine. I believe if the machine were intro- duced and in operation, the man who invented the machine could, if he saw fit, control the operation and the working of the machine. We have all seen and read of the time-locks, which are used by a great many banks and other institutions throughout the United States; and we know the degree of protection to which that lock has been carried; and yet we know that those locks are locked and unlocked, and I say to you, Mr. Chairman, and delegates assem- bled, that I see no reason why, if a machine of this kind be in operation, or be used by the people of a city, the same invention and ingenuity which is used to control these time-locks might not 88 REVISED RECORD. [Friday, be used to control the machines which we shall have to use to record our franchises. Therefore, I hope these amendments will prevail. Mr. Hill — Mr. Chairman, I apprehend that the delegates who have spoken on this matter misapprehend the intention and scope of this proposed amendment. I wish to have it understood, Mr. Chairman, here and now that this amendment is not designed to favor or secure the adoption of any particular machine. The language of the amendment is that the election " shall be by ballot, or by such other method as may be prescribed by law, provided that secrecy in voting be preserved." It is not my intention, nor the intention of the Committee on Suffrage, to pave the .way for the adoption of any particular machine. But, Mr. Chairman, are we ready at this stage, in the nineteenth century, to say that it is impos- sible, within the next five or ten years, that any machine may be •devised for voting, or any other method may be devised than voting "" by ballot? " Is it impossible that any other method may come into use which may be approved by the people of this State? Are we as delegates, prepared to say that we want to shut our eyes to progress, and close the door to all electoral improvements, and to abide by what has been in use during the last 2,000 years, simply because it is old? It seems the height of folly for us to say that •we are unwilling that the inventions or devices that may be made or suggested in the next four or five years shall not be adopted. I am surprised at my friend from Chautauqua (Mr. Dean) — that county which is known to be the nursery of great and fully-developed ideas, that county whose praises have been rung in this chamber since we first went into session, should be opposed to a measure which looks towards, improvement. And, as to my friend from Kings (Mr. Schumaker), I wish to say that if it be true that machines can be tampered with, how much truer is it that ballot- boxes can be tampered with, as is now done, as has been repeatedly proven during the sessions of this Convention. The object of this amendment, Mr. Chairman, is to empower the Legislature to provide for elections by some other method than " by ballot," in case such other method be sufficiently approved to war- rant its introduction, and that only. I may say that there are at least half a dozen different voting devices in process of construction and perfection. The Myers machine has not yet been sufficiently developed, I imagine, to warrant its use. I want to say, in reply to my friend from Ontario (Mr. Hamlin) that the Myers people are not in favor of this amendment and have not been. This amend- ment opens the door to all improvements, and there are at least half a dozen different devices that are now being perfected, any one of August 24.] CONSTITUTIONAL CONVENTION. 89 which may supersede entirely the so-called Myers machine. There are cabinets, there are methods of voting by envelope, and there are other devices. Some improved methods may -be devised which will obviate all the difficulties which have been suggested as inci- dent to the Myers machine, and will supersede the cumbersome and expensive method of voting under the present electoral law. Let me say, Mr. Chairman, that the gentlemen who come from the rural districts and not from cities can hardly appreciate or realize the difficulties attending elections of municipal officers. The counting of ballots, for instance, where a candidate for mayor is running, will sometimes consume four or five hours, and it not infrequently happens that it takes all night to make a canvass of the ballots cast at a general election in the cities of the State. It is possible, as has been said by the gentleman from Westchester (Mr. Holls), that this work may be done properly, correctly and satisfactorily by some method other than that now in operation. This amendment comes back from the Committee on Suffrage after a full and fair consideration of all the amendments that were originally proposed to it. It simply preserves the secrecy of the ballot, nothing more than is now observed in elections. It does not add to that secrecy an iota; it does not detract from it an iota. If, under the present law, as is the case, a voter may be permitted to take into the booth with him an assistant in case of disability, he still would be permitted to do so under the phraseology of this proposed amendment. We have left the law as it now is, except to provide that in case the Legislature shall deem it advisable in the future, in view of improvements which may be made, to adopt any one of them, the Legislature will be authorized so to do. No party, nor would the State of New York, be willing to jeopardize an election of any State officer by the intervention or use of a machine under the present constitutional provision. As was said wKen this matter was before us originally, a voting machine does not fall within the definition of the words " all the elections by the citizens shall be by ballot," and, as it seems to me, the Legislature has gone quite as far as it is justified under the present constitutional provision in going, by enacting the cumbersome and expensive method of voting which now obtains in this State. Secrecy must be preserved. I want to call the attention of delegates to a recent adjudication on this subject in the case of the People ex rel. Nichols v. Board of Canvassers (129 N. Y., 395), in which Judge O'Brien says: " We know that the principal mischief which the statute was intended to suppress was the bribery of voters at elections, which 90 REVISED RECORD. [Friday, had become an intolerable evil, and this was to be accomplished by so framing the law as to enable, if not compel, the voter to exercise privilege in absolute secrecy. The primary aim and object was to enable the voter to cast a ballot for the candidates of his choice, without the possibility of revealing, by the act of voting, the identity or political complexion of the candidate voted for. When it was made impossible for the briber to know how his needy neighbor voted, the law-makers reasoned that bribery would cease." There is one other thing which has been alluded to, and that is the question of expense. You will find in Document No. 50, which has been prepared with diligence and care by Mr. Rowley, an itemized statement of the cost of printing official ballots for the year 1893. It appears that the cost runs into the thousands, and amounts to over a $100,000 per year. It appears that in 1893 it cost the State of New York $107,360.25 to do the printing of the official ballots for that year. That is a large amount of money to expend for ballots, which are destroyed immediately after election. If there should be devised a better method than voting " by ballot," such method, if it be by machinery, would not be, in the course of four or five years, any more expensive than the present method, and, perhaps, not as much so. And, more than that, Mr. Chairman, by means of a new method, it is possible that the large number of election officers constituting the boards of inspectors, poll clerks and ballot clerks, might be reduced, and thereby save the State of New York thousands of dollars. There are now upwards of 5,000 election districts in this State, and it is possible that much expense might be saved to these districts, if some such method as has been suggested were to be adopted. In any event, it seems to me highly proper that we should permit the Legislature to adopt such improved method, if such be found war- rantable, rather than close the door to all improvements by allowing the Constitution to remain as it now is. There was something said at the last discussion of this subject in regard to federal elections. The State of New York did not hesitate to change the Code of Practice or the method of procedure in this State in 1848-9. It did not hesitate to make improvements in the method of legal practice. How singular, then, that any such objection should now be raised on the ground that it might be necessary, under the act of Congress, to have separate federal elections. Congress can provide, by an assimilation act (as has been done in reference to practice in the courts), for the adoption of any method decided upon the State. It seems to me there is no reason whatever for that objection. August 24.] CONSTITUTIONAL CONVENTION. 91 In any event, New York should take a stand in advance, and, if possible, be in the foreground in this matter, as it has been in other matters; and I am satisfied that the people of the State of New York will approve the action of this Convention, if it so decide. The press and all the political organizations, so far as I know, in our city that have expressed any opinion, with regard to this amendment, are in favor of it. It has been urged that in the great cities of the State, where there are from 100 to 600 election districts, there should be some relief afforded. It is a difficult matter to get six or eight competent men in each district who are willing to serve on election boards, and who are capable of properly performing the duties incident thereto. We ask that this be given us, in order that we may obviate many difficulties which now obtain in city elections. We would not have the rural districts unduly burdened. They, of their own choice, have already secured the passage of a law which permits them to use voting machines in their town elections. We do not ask them to assume any additional burdens. They have done that of their own accord, and they, are now using machines in many parts of the State, but they cannot use them in general State elections under the present constitutional provision. As was said a few moments ago, no party in the State would be willing to jeopardize an election by their introduction under the present constitutional provision. I think the amendments which have been proposed by Mr. Green and Mr. Dean to the amendment, as proposed by the committee, ought not to prevail, and that the proposed amendment, as it comes back from the committee, should be adopted. It meets with the favor of all the gentlemen who originally introduced amendments on this subject. It has been considered and reconsidered, and it seems to me that if we are to make any improvement in any line, this is one of the lines on which we are justified in urging your favorable action. Mr. Meyenborg — Mr. Chairman, it seems to me the principle of this proposed amendment is a special plea for a machine that is already in existence. If the machine to be used has not been invented as yet, then it will be well to leave the Constitution as it now is, that all elections shall be by ballot; and when a machine is perfected to such an extent as to recommend itself, then it will be time enough for the Legislature to propose an amendment, and for the people to adopt it. With all respect, Mr. Chairman, I think that we have already spent too much time upon the subject, and I 92 REVISED RECORD. [Friday, now move that the committee rise, report progress, and ask leave to sit again. The Chairman put the question on the motion of Mr. Meyenborg, and it was determined in the negative. Mr. Moore — Mr. Chairman, I want to say a few words upon this question. I think gentlemen have mistaken the trend of this amendment. The amendment proposed by Mr. Green goes to the very heart of this proposition. If you adopt that, you kill the amendment. I am in favor of the amendment, as reported by the committee. It is not a question as to whether the people shall be permitted to vote by a machine or by method other than that now prescribed by law, but it -is a question whether or not this Conven- tion is willing to give to the Legislature a permission to act on its own judgment as to the method of voting to be pursued by the people. I consider, Mr. Chairman, that this Convention should begin to look forward, not backward. There has been a great deal of conservatism in this Convention, and this is an opportunity for this body to put itself on record as walking side by side with those things which make for progress, for better government, better elec- tions and better laws. I consider this amendment in the line of progress, and, therefore, Mr. Chairman, I am heartily in favor of it as brought in by this committee. There is another thing to be considered, if you go into the con- sideration of the matter itself, and, as to the method which the Legislature may propose, and that is that these counting machines will save great expense to the State when the vote comes to be counted. How many of us who have been on election boards remember the time and the expense which it costs to count and canvass votes? Therefore, it seems to me that when you get machines, if they do their work correctly, and the people are willing to vote with them and to buy them, that will surely be an argument in their favor. But that question is not now before us. The whole question on this amendment — and I ask my friends on this side to consider it, and I ask my friends on the other side to consider it equally — is not whether, according to my friend, Mr. Schumaker, of Kings, somebody can take a pick-axe and break the lock or some one, else with burglarious intent, down in Kings county, or in New York county, can pick the lock; but it is whether the Convention will trust the Legislature of the State of New York to pass such legislation, as, in its judgment, may seem best adapted to secure a fair ballot and a fair and honest count. Therefore, Mr. Chairman, I beg that the question may not be clouded by the consideration of this machine, that machine, the other machine, or no machine August 24.] CONSTITUTIONAL CONVENTION. 93 at all. The simple question is whether you will give the Legisla- ture permission to act as its best judgment dictates in the interest of honest elections. I shall vote for the amendment as it stands. Mr. Foote — It seems to me, Mr. Chairman, that the question involved in this proposition may be stated in a few words. At present, the Constitution permits but one method of voting — that which is known as voting by ballot, and which, through long use, has come to be voting by the deposit of pieces of white paper in the ballot-box. Under that system frauds have been perpetrated upon the elective franchise, notably in connection with what is com- monly known as " stuffing " the ballot-box, and usually in the room where the ballots are counted and the result ascertained. The system has also been open to objection in that it has required many hours of hard labor at the close of an election to ascertain the result. Now, the inventive genius of some of the citizens of this State has been at work for many years to devise an improved sys- tem of voting, which would put up the bar against frauds com- mitted by the stuffing of the ballot-box or committed in ascertaining the results, and at the same time to do away, if possible, with the labor and delay incident to counting the votes after they have been cast. We have in the city of Rochester the inventors of two of these machines, one of which has been in use, and the other of which is claimed to be an improvement and is about to be put upon the market. So that in that locality we have some interest in the ques- tion, as well as knowledge of the progress of invention in this line, which may, perhaps, not be possessed by residents of other localities. This proposed amendment simply permits the Legislature to adopt improved methods of voting, when it is satisfied that they are, in fact, improved methods. It seeks the adoption of no special machine; it calls for the payment by the State of no royalties for the use of patents; it simply frees the hand of the Legislature to adopt an improved method of voting, when it is satisfied that the proposed method is an improvement. It has been suggested here that when these inventions shall have been developed to a degree that they are an assured success, an amendment may then be made to the Constitution, through the instrumentality of the Legislature. But I believe, Mr. Chairman, that no amendments to the Constitu- tion are likely to be made through the instrumentality of the Legis- lature, if the measure pending in this body, in reference to future amendments, shall be adopted. But, at all events, we should free the hand of the Legislature on this matter, so long as it is still required to preserve what the Court of Appeals has declared to be the essential feature of voting by ballot — secrecy in voting. 94 REVISED RECORD. [Friday, Mr. Titus — In the early part of this discussion the desk was flooded every day with amendments tending to require the elector to have more intelligence than what the law has heretofore required. Many of those amendment favored this machine, and many of those who have spoken in favor of it fathered those amendments. Now, you are seeking to authorize the use of a machine which makes the elector simply an automaton, a machine with many cranks and springs. The machines that we have to work under now have too many " cranks " already. You may take any machine that depends for its action upon little springs and cranks and by injecting one gill of the extract of sal-ammoniac in there, you can in four hours destroy every crank and every spring. But the great objection is not in the fact that the machine might be destroyed, but in the fact that if such a thing did happen on election morning, we would find the electors disfranchised. I hope this amendment will not prevail. Mr. Forbes — Mr. Chairman, this constitutional amendment, as it seems to me, is simply permissive, and, as has been said, the objections which are now raised to some sort of a machine are only proper to be made before the Legislature, if the Legislature shall be given permission to adopt some other method of balloting than that now in use. In regard to electricity (if that is the one thing aimed at by the amendment), I desire to say, and to put myself upon record as say- ing, that this is the one accurate means now in use for determining, not only votes, but any fact which requires precision. For example, we all know that time is now distributed by the United States gov- ernment by electricity and that it is done accurately every day. We have improvements coming into use from day to day. We have writing machines, we have machines for transferring our own hand- writing, we have printing machines, we have all sorts of domestic arrangements, and through these the people at large are becoming used to electricity. Something else may arise which will be more desirable than electricity, but it seems to me that it would be well to leave the Legislature the arrangement of a method of voting which shall insure ballots being taken secretly and cheaply, because cheapness of elections is an element nearly as important as that of secrecy. Mr. Dean — One of the fundamental principles in our system of government is the elector. He is absolutely fundamental, and, unless he is honest, our system of government must fail. Objec- tion has been made in opposition to this measure that it is simply permissive. In my judgment that is the fatal defect in this propo- sition. If there is something which is a good thing, something August 24.] CONSTITUTIONAL CONVENTION. 95 which can be demonstrated to be a good thing, something which can be brought before us and shown to be practicable, then it is a proper thing to be introduced into the Constitution of this State. I do object to allowing the Legislature to tamper with the system of elections which may obtain in this State for the next twenty years. It has been doing it for the past ten years under various pretexts and it has been an absolute failure. The system is not as good to-day as it was ten years ago — nowhere near. In the event of the adoption of these balloting machines, crimes against the person would no longer be necessary in the commission of ballot frauds. All that would be necessary would be to go into the several election districts where the majority was against the corrupt element in politics and destroy the machines — which could be done in a very simple manner at any time during the early hours of election day — and in that way completely disfranchise the people of that section. In the little town of Bergen, in the northwestern part of this State, the Myers balloting machine was put on trial last year in the election of supervisors. The result of that election was that the Myers ballot machines registered 100 votes more than the registry of the polling list of that town. And yet we are asked to open the way to all kinds of experiments in that direction. I deny the theory that a ballot must be secret. I believe that an open ballot is conducive to the development of the highest standard of American citizenship, and I am opposed to any system which com- pels a man to go into the polling place and cast a secret ballot. It is wrong and vicious in theory and pernicious in practice, and I am against it. I have been told that the Buffalo newspapers have supported • this proposition. I am not surprised at that. If there is anything under the domain of the blue heaven that the Buffalo papers have not advocated as a fad, then I would like to know what it is. (Laughter.) They have persistently advocated everything that was mugwumpian; everything that has been tried and discarded by the intelligent people of the State of New York has been advocated by the newpapers of the city of Buffalo — compulsory voting and all. They have advocated ballot reform; they have advocated compul- sory voting; they have advocated cumulative voting; they have advocated the referendum — and all the other fads of this era. And, more than that, the Buffalo daily papers are in conspiracy against every man who has the courage of his convictions, unless he belong to a particular little crowd in that city. I say tms, not alone of the Republican papers, but of the Democratic papers as well. They are absolutely beneath the contempt of an intelligent 96 REVISED RECORD. [Friday, constituency. (Laughter.) I am referring now to the Bufalo newspapers exclusively. Now, if this Convention wants to resolve itself into an agency for ballot machines, if it wants to go into the patent-right business, then, by all means, let this proposition be adopted by this Con- vention. Otherwise, if the dignity of this Convention is up to the proper standard of decorum, it should be repudiated right here and now. Mr. Marshall — If this amendment made it obligatory upon the Legislature to adopt any particular voting machine as the method of registering the will of the people, I would be very strongly against it. I do not believe in requiring the Legislature to adopt any particular method of voting, but I do believe that it is a proper thing for this Convention to enable the Legislature to provide for other methods of voting besides that by ballot, which has been in use for the last half century. Other methods may be devised which will more nearly and more accurately register the wishes of the peo- ple than those now in use. I have seen some of these voting machines. They appear to me to be a great improvement upon the present system. I do not, however, advocate that any particular machine which I have seen be adopted, because it may be possible that there are difficulties in the way of its practical use. But this proposed amendment does not advocate any particular method of voting. It merely enables the Legislature to say that the choice shall be expressed by ballot " or by such other method as may be prescribed by law," and the only proviso is that " secrecy in voting shall be preserved." This does away with viva vocc voting, which certainly should not be adopted as the method of voting. It, how- ever, requires that secrecy shall be preserved. I think, therefore, that ' all citizens should agree in the adoption of the principle, because it is a protection to the laboring man, it is a protection to the man who is employed by a large manufacturer, it is a protection to every citi- zen against being improperly questioned as to how he voted, or why he voted in a particular manner. This, therefore, secures independ- ence in voting. And, more than that, I claim that it secures purity of the ballot. It is a protection against those who would corrupt voters more efficacious than any law which punishes bribery at elections. The suggestion is made that if this provision were adopted, the Legislature might then adopt one of these machines which has been spoken of, and that such machine might be manipu- lated, acid might be used, sal-ammoniac might be put into the machine, the machine might be tampered with by a burglar or by some wrongdoer, or other malefactor, and thus the wishes of the August 24.] CONSTITUTIONAL CONVENTION. 97 people might be frustrated. The same argument may be used, with respect to the ballot-box. We all know that ballots have been taken out of the ballot-box by the handsful and destroyed, torn up or burned. We have known of ballot-boxes being stolen and run away with by people at the polls. The case of The People ex rel. Henderson (55 X. Y.) is an example of such an abuse, and it occurred right in the city of Albany, under the eaves of the capitol. Under the present ballot-reform law there have been many frauds perpetrated, and the wishes of the people have, as it is claimed, been frustrated. In the case of The People ex rel. Nichols v. The Board of Canvassers (129 N. Y.), the Court of Appeals decided that 1,200 votes should be thrown out, because they were not properly indorsed; and in other cases the ballots have been thrown out because they were marked. The present system, therefore, is not a satisfactory system, and, therefore, it is not an argument against the use of another method to state that there may be frauds com- mitted, or that some wrong-doer may, in some way or other, frus- trate the wishes of those who cast their ballots. I do not care to say any more upon the subject than that by this proposed amend- ment we merely enable the Legislature to get out of the strait- jacket which is created by the present Constitution, and enable it to adopt new ideas, if, after experiment, they are found to be worthy of trial. Mr. Barhite — My friend from Chautauqua (Mr. Dean) says that all the newspapers of Buffalo are in favor of this method of voting. If that is so, I will withdraw all that I have ever said against the city of Buffalo and humbly apologize, because I firmly believe that this amendment should pass. It is a step in the right direction. This is an age of improvement and of progress. The inventive genius of man, dissatisfied with the old way of voting, has begun to devise ways and means by which frauds and incorrect methods of voting can be done away with. One of the gentlemen who had the floor a few moments ago referred to the fact that if a gill of a certain liquid substance should enter the mechanism of the machine under discussion, it would be destroyed. I say to him, and I say to the members of this Convention, that there is far less danger of anything of that kind than there is that somebody will inject 500 or 1,000 false ballots into the ballot-box. The advantage of any- thing of that kind over the ballot-box is that even, if any person is disposed to commit fraud and thwart the will of the people, it must be done before the voting begins, and there is no reason why this machine cannot be tested before the polls are open, and, if the 98 REVISED RECORD. [Friday, machine is then found to be out of order or does not work properly, it can be thrown away, while the difficulty in voting by ballot is that the fraud is perpetrated during the hours in which the voting actu- ally takes place. There has been a tendency on the part of some of the gentlemen who have spoken upon this question to imply that this is a bill in favor of one particular machine. This is not the fact. This is simply a bill to enable the Legislature, in their discretion, to allow other methods of voting than that which has been practiced in the years that are past. They seek to weave this proposed amendment around what is commonly known as the Myers ballot machine. That, perhaps, has arisen from the fact that up to the present time that is the only method which has been devised, or which seems to be practical, other than the old method of using paper ballots. But I understand that there are other machines already in process of manufacture, so that there may be other ways of voting than by the use of this particular machine. If this were an amendment which would require the people of the State of New York to use any certain machine or any certain method of voting, I would be opposed to it, but it does nothing of the kind. It simply opens the door so that the Legislature may take advantage of the results of inventive genius or the results of any advanced thought of the age. There is another thing which strongly appeals to me in favor of this proposed method of voting, and that is that it will be a measure in the direction of economy. It now costs the people of the State about $100,000 a year to print the ballots at every general election. All that expense will be saved. Another advantage in anything of the kind that is proposed by this measure is that it is an enormous saving of time. I have myself known of instances where 400 ballots were cast by this machine, the vote counted, the inspectors of election made their report and left for their homes within seven minutes after the polls closed. I have not a particle of interest in this machine, and no personal interest, either one way or the other, but I do earnestly hope that this proposed amendment will be adopted by the Convention. I sincerely believe that it is a step in the way of progress and reform, and that it will open the way for the Legislature to do away with many of the frauds that have been connected with out elections in the past. Mr. Dickey — Mr. Chairman, it is not right that this debate should be left with the record made by my friend, Mr. Schumaker, August 24.] CONSTITUTIONAL CONVENTION. 99 from Brooklyn, leaving the inference that he has been in the habit of consorting with burglars, and has frequented liquor saloons in his city and in other places. I want the record distinctly to show that when he said that he did not mean to be taken literally at all. His association is not with that kind of people, and I rise in order to correct the record in that sense and to have it under- stood that when he was thus talking it was not from any personal knowledge, but entirely in a Pickwickian sense. After having heard all these arguments again, I must still adhere to the notion that this amendment is a proper one, and should be adopted by this Convention. As to the suggestion made by Mr. Titus that some burglar, by the use of some acid, might destroy the workings of any possible machine, let me ask might not the same bold burglar take the ballot-box away under his arm and carry it off entirely, so that there might be no count of votes? Or, might he not apply a match to the paper ballots and burn them all up? If there is to be rascality, theft and dishonesty, why may it not as well apply to one case as to the other? But I am told that the present provision of the law is that where the machine, by any possibility gets out of order, there is a provision that that will not defeat the election; it may possibly postpone it and retard it. If the machine now in use in some localities gets out of order so that the election cannot go on, there is a provision for postponement of the election so that the will of the voters is not interfered with, but they are given a chance to the full to register their decrees. The Chairman — The committee will understand that the motion now before the committee is the motion by Mr. Green, of New York, to strike out the two last lines, which will, in effect, restore the provision as it now is in the Constitution. Mr. Schumaker — The gentleman from Orange (Mr. Dickey) cer- tainly did not misunderstand me when he said that I had been asso- ciated with burglars and with saloon-keepers. I very clearly stated that fact. But I was obliged to do so from having been selected to an office to prosecute them. I have had a great deal of experience with those gentlemen — particularly with saloon-keepers — in a business way, and also with burglars, murderers and all sorts of all- around thieves and rascals, and he must not misunderstand me when I say so. It is no disgrace. Some, indeed, are very anxious for the position. I found it so when I was a candidate for the place, and I have no doubt the gentleman has had a like experience in Orange county. I did not intend to say anything about putting this peculiar provision in the Constitution. I thought that when we had acquired I0o REVISED RECORD. [Friday, a good method of voting, otherwise than by ballot, two succeeding Legislatures indorsing it, they could establish it. They need not put it in the Constitution. It might run for twenty years by ballot or otherwise, or it might bring up a viva vocc vote, as they used to have in old Virginia and various other places. Mr. Dean — And in this State. Mr. Schumaker — And in this State, as my colleague says. My friend from Kings (Mr. Meyenborg) struck the nail upon the head when he said that two years were required, and two years only, if a perfect machine could be invented, that then it could be adopted by the people of this State, instead of putting it in the Constitution, to run for — the Lord knows how long. I had the honor of being in the Constitutional Convention of 1867, and it is twenty-seven years since then. Most of my confreres and com- panions have passed away, but I am here, in the providence of God, to object to any such thing as putting in again, to run for twenty-seven years, a clause to vote by ballot or otherwise. It is said that there are certain people who will cheat in voting. Now, my good friend, the great commoner, knows that people of all kinds, of all nations and everywhere will cheat; they will cheat at anything. Mr. Alvord — They may in your case. Mr. Schumaker — Well, your case is like mine, and my case is like yours. There is no doubt of that. There is roguery and dis- honesty in all the walks of life. And, as a man said about racing, he would be willing to bet upon the horses, if they had no riders, but he had no confidence in horses run with men upon their backs. There are thousands of ballots put into the ballot-boxes in various ways. They are put in before voting, and they are put in after voting. There is no doubt about that. And putting this clause in the Constitution " vote by ballot or otherwise " will not stop it, will not alter it. Education is the only thing that will make a dis- honest man an honest man, or else putting the nippers on him and turning him into a prison or penitentiary for the evils that he has caused. I protest, and protest in earnest, that there should be no machine put into a ballot-booth for the purpose of registering votes where a wrought nail, an old jack-knife or a thump from a club — a police- man's club, if I may say so — may destroy the machine or drunken- ness may destroy it. Why, in some places in the country — and now I am talking about the country where they allow the ballots to be counted in a rum shop — I beg pardon, a tavern — they throw them August 24.] CONSTITUTIONAL CONVENTION. IOI out of the second-story window, so they are broken and lying upon the pavement before the polls have been opened for two hours. I do not say that they would do it in our city, but I mentioned the fact to my Republican friend on my right, and he said that they would be on the sidewalk and all broken to pieces before the polls opened in the morning, and that is my belief also. Let people vote by ballot, as they have done since they stopped voting by the z-iva roce system ; let them vote as they did in the old- fashioned times, and, if they cheat, arrest them and punish them for it. But to put this new-fangled doctrine into the Constitution is altogether wrong; and, if this Republican Convention, with its big majority, does it, I will say this — and I wish to be remembered as saying it — we will beat them at the polls next fall for doing it by 100,000 votes. Mr. Jacobs — Honestly? Mr. Schumaker — Honestly, and count the votes, too, and with- out the aid of any machine. And more than that, I tell you that Mr. Rjswell Pettibone Flower would carry this State and you can- not stop it. Now, put it in the Constitution if you dare. (Aoplause.) Mr. Hill — I am not here to answer the indictment which the gentleman who has just sat down has made against the people of the State of Xew York; but I think that this debate has proceeded far enough, and that we are ready to trust the people of the State of Xew York in Legislature assembled to dispose of this matter as they think proper, and as they ought upon the merits dispose of it. I, therefore, move that this committee now rise and report this bill favorably and recommend its passage. The President — The motion is not in order, because there are two motions pending, although, in fact, united in Mr. Green's propo- sition to strike out the last two lines. Mr. Hill — Then I will withdraw the motion. The Chairman put the question on the motion of Mr. Green to strike out the last two lines of the proposed amendment, and it was determined in the negative. Mr. Dean — I now renew my motion that the committee rise and recommend to the Convention the rejection of this proposed amendment. The Chairman put the question on the motion of Mr. Dean, and it was determined in the negative. 102 REVISED RECORD. [Friday, Mr. Hill — Mr. Chairman, I now renew my motion that the com- mittee rise, report the bill favorably and recommend its passage. Mr. Goeller — Mr. Chairman, recent session law books, long enactments every year, contain experimental laws affecting the bal- lot. We have now in experiment manifold improvements recently made by law, and have finished, having radically upset the former system of performing political work, electing to public office, and so forth. The Session Laws teem with recent enactments upon the subject. I believe in thoroughly applying ourselves for the next twenty years to get the good out of present ballot-reform laws — in other words, to stand by our present law and give the present law a chance. This amendment, I believe, is an over refinement and a new experiment which the people and voters do not require. Mr. J. I. Green — A count is called for on the amendment which I offered. Mr. Cochran — I must say that I did not hear whether that amendment was carried or lost. The Chairman — The motion was lost. The question now is on Mr. Hill's motion that the committee rise, report the bill favorably and recommend its passage. The Chairman put the question on the motion of Mr. Hill, and, by a standing vote, it was determined in the affirmative — ayes, 70; noes, 48. The Committee of the Whole then rose, and the President resumed the chair. Mr. Vedder — Mr. President, the Committee of the Whole have had under consideration proposed constitutional amendment No. 381, entitled, " To amend section 5 of article 2 of the Constitution, relat- ing to the manner of elections," and have gone through the same, but made no amendments thereto, and instruct the chairman to report the same to the Convention and recommend its passage. The President — The Convention has heard the report of the Committee of the Whole recommending the passage of general order No. 4, a proposed constitutional amendment in respect to voting otherwise than by ballot. The question is on agreeing to that report. Mr. Blake — And on that I call for the ayes and noes. The call for the ayes and noes was sustained, and the Secretary proceeded to call the roll. Mr. Abbott — I am in favor of this proposition for the reason that it recognizes that we live in an age of progress; that it is safe August 24.] CONSTITUTIONAL CONVENTION. 103 to trust the people, through their representatives, when the occasion comes — to trust them to offer facilities for voting which may be in advance of present existing conditions. For that reason I vote aye. Mr. Cassidy — I am opposed to this amendment, because I believe that it will be the means of all kinds of jobbery in legislation. Every winter you will find the halls of this Assembly filled with lobbyists in the interests of voting machines. No sooner will one voting machine be purchased by the voters of this State and put. into operation than some other man will get up another voting machine, perhaps, somewhat improved, and then all the voting machines that were adopted the year before will be thrown into the fence corners and new machines will be adopted, and this thing will go on as different machines are invented from time to time. The men who are interested in selling these machines will come here to the Legislature and give stock to the members or induce them in some other way to vote for the adoption of such other machines. I believe it. I do not think we ought to go to the people this fall with so vital a thing as this. The people are not ready for it. Why do we want to hang a mill-stone around the neck of our work? We will do that if we adopt any such amend- ment as this. I hope it will not be adopted. I vote no. Mr. C. A. Fuller — I ask to be excused from voting, and will briefly state my reasons. I endeavored to make some remarks upon this matter in Committee of the Whole, but was unable to get the ear of the Chairman. I am in favor of this proposition, with the last clause stricken out — " provided that secrecy in voting be preserved." I think that the Legislature ought to have the right and the power to prescribe the manner and method of voting. Just now the secret ballot is very much the rage. I sometimes think it would be a good thing if every voter were compelled to march up to the ballot-box with his ticket right open to the public gaze, or, perhaps, it would be better still to have him go up and orally declare for whom he was about to vote. I think that the Constitu- tion ought to empower the Legislature to say whether voting shall be by ballot or by machine, and also whether the voting shall be done openly or secretly. I think that the representatives of the people, as they are assembled in the Legislature, ought to have the privilege and power of saying in what method the voters of the State shall come up and register their will. I withdraw my request to be excused, and vote aye. Mr. J. I. Green — The argument of the supporters of this amend- ment have convinced me that it ought not to pass. The gentleman 104 REVISED RECORD. [Friday, from Orange stated upon the floor of this House that in case one of these voting machines got out of order the election would thereby be postponed. I do not see why the present method of balloting is not the most efficient method — by human agency ; and by human agency I mean the person voting being the agent. I, therefore, vote no. Mr. McKinstry — Mr. President, I feel constrained to vote against this measure by reason of my own experience with counting machines. I have tried them; I have had very expensive ones, and they have always gotten out of order sooner or later and skipped ten or duplicated ten, and that fact will always tend to discredit the result of a count given by a machine. We used this Meyers machine in Pomfret at the last town meeting, and there are candidates to this day, who were beaten by small majorities, that will tell you that they were beaten by that machine. I will not use the adjective they expressed, Mr. President. Our town had gone for prohibition for years, and the result of that machine showed only twenty-two majority for that law. You ask a Prohibitionist there what was the matter and he will tell you it was that pesky machine. He does not use the same adjective that the other gentle- man does. That difficulty, I think, is very serious. Now, a noted safe-maker told me once that it was the constant study of the safe- makers, they spending thousands of dollars, to devise new locks that some safe-breaker could not break, and it was a constant race, and that thus far the safe-breaker had always devised a scheme to beat the safe-maker. Now, if that is true, what an easy matter it will be for some — I will say corrupt Republican, in New York city, to defeat the election machines. Mr. Moore — I desire to say that the Legislature can provide an antidote for any amount of sal-ammoniac that will be injected into one of these ballot machines, if adopted. Mr. Tekulsky — Mr. Persident, I am opposed to any method of voting except by ballot, and my reason for that is that by adopting these different devices for the next twenty years for voting we will never know where we stand. One of these is the machine, and I had the opportunity of testing one of these machines one day, and it worked charmingly. The next day I attempted to vote on the machine and one of the springs was broken. Now, what would happen to an important election if the machine got out of order? I think that the old-fashioned way of voting, the elector being allowed to fix up his ballot in his own house and going then to the polls and voting as he chooses, is the best, and not, as under the new method which they got up here a few years ago, by the use of August 24.] CONSTITUTIONAL CONVENTION. 105 a great big ballot with a paster and one thing and another, which has proven a farce; and it is difficult to get a good, honest election under the new laws, and now they are trying to get something else which will make it worse. I, therefore, Mr. President, am opposed to any new method, and would certainly be in favor of going back to the old style of voting. I vote no. Mr. Veeder — Mr. President, may I explain my vote? It seems to me that if this proposition is adopted the Legislature may, so long as they preserve secrecy, adopt several methods by which bal- lots may be taken. You may send your ballot by mail; you may vote by proxy, or you may deliver your ballot to your neighbor to deliver for you, and he may change it on the way. In other words, it opens, certainly, a wide door to endless frauds. As long as secrecy is preserved, any method that the Legislature may devise is permissible under this amendment, such as voting by mail, by proxy, or by delivering the ballot to another, to be by him cast at the election booth or delivered to the election officers. The report of the Committee of the Whole was then agreed to by the following vote: Ayes — Messrs/ Abbott, Ackerly, Allaben, Alvord, Arnold, Baker, Barhite, Barnum, Becker, Cady, Carter, Chipp, Jr., G. W. Clark, H. A. Clark, Cochran, Coleman, Cookinham, G. A. Davis, Deterling, Dickey, Doty, Durfee, Faber, Floyd, Foote, Forbes, Augustus Frank, Fraser, C. A. Fuller, O. A. Fuller, Galinger, Gib- ney, Giegerich, Gilbert, A. H. Green, Hecker, Hedges, Hill, Holls, Hottenroth, Jenks, I. Sam Johnson, J. Johnson, Johnston, Lauter- bach, Lester, M. E. Lewis, Manley, Mantanye, Marshall, Maybee, McDonough, C. B. McLaughlin, McMillan, Moore, Nichols, Nicoll, Xostrand, O'Brien, Osborn, Parkhurst, Pashley, Phipps, Platzek, Porter, Powell, Pratt, Putnam, Redman, Roche, Root, Springweiler, A. B. Steele, W. H. Steele, Storm, T. A. Sullivan, Tibbetts, Towns, Turner, Veeder, Vogt, Wellington, Wiggins — 84. Xoes — Messrs. Acker, Banks, Bigelow, Blake. Bowers, E. R. Brown, Campbell, Cassidy, Church, Crosby, Danforth, Deady, Dean. Deyo, Durnin, Emmet, Farrell, Fields, Andrew Frank, Gilleran. Goeller. J. I. Green, Griswold, Hamlin, Hirschberg, Holcomb, Jacobs, Kimmey, Kinkel, C. H. Lewis, Lincoln, Lyon, Marks, McCurdy, McKinstry, J. W. McLaughlin, Mereness, Meyenborg, Morton, Mulqueen, Ohmeis, Parmenter, Peck, Rogers, Scluimaker, Smith, Speer, Spencer, W. Sullivan. Tektilsky, Titus, C. S. Truax, Tucker. Yedder, Whitmyer, Williams, Woodward, President — 58. 106 REVISED RECORD. [Friday, The Secretary called general order No. 5 (printed No. 421), intro- duced by special committee, relative to the transfer of land titles. Not moved. The Secretary called general order No. 7 (printed No. 316), by Mr. Holls. Not moved. The Secretary called general order No. 28 (printed No. 396), introduced by Mr. McDonough, relating to the passage of laws. Mr. McDonough — That is moved, Mr. President. The President put the question on going into Committee of the Whole on this general order, and it was determined in the affirmative. Mr. E. R. Brown in the chair. The Chairman — The House is in Committee of the Whole on general order No. 28. The Secretary will read the proposed amendment. The Secretary read the proposed amendment. Mr. McDonough — Mr. Chairman, I desire to offer an amend- ment. It seems that this section which it is proposed to amend has been amended by another committee, and the proposed amendment which is before us can better be added to another section of the Constitution. It really belongs in section i of article 3 instead of section 15, and so I move to amend by striking out section 15 and inserting section I, and by striking out lines 3, 4, 5, 6 and 7 down to the word " the." That would leave the proposed amendment just as it is except that it will be added to section i of article 3, which reads as follows: "The legislative powers of the State shall be vested in a Senate and Assembly." Now, I add to that this proposed amendment, that the Legislature may submit to a vote of the people, etc. The Secretary read the amendment as proposed by Mr. McDonough, in the language following: " Section i of article 3 of the Constitution is hereby amended so as to read as follows: ' Sec. i. The legislative power of this State shall be vested in the Assembly and Senate. The Legislature may submit to a vote of the electors/ " etc. Mr. McDonough — This question was discussed very fully last Saturday, and I said then all I had to say upon it, and would now be pleased to hear any one else speak on the subject that desires. The Chairman put the question on the adoption of the amend- August 24.] CONSTITUTIONAL CONVENTION. 107 ment offered by Mr. McDonough, and it was determined in the negative. Mr. C. B. McLaughlin — Mr. Chairman, I move that the com- mittee rise and report this matter adversely. The Chairman put the question on the motion of Mr. McLaugh- lin, and it was determined in the affirmative; whereupon the com- mittee rose, and President Choate resumed the chair. Mr. E. R. Brown — Mr. President, the Committee of the Whole have had under consideration the proposed constitutional amend- ment No. 396, entitled " To amend article 3, relating to the passage of laws," have made some progress in the same and have instructed the chairman to report adversely thereto. The President — The question is on agreeing to the report of the Committee of the Whole. Mr. McDonough called for the ayes and noes, and the call was sustained. The Secretary proceeded to call the roll. Mr. McKinstry — Mr. President, we have imported our ballot reform from Australia, our civil service reform from China, and now propose to have our legislative reform come from Switzerland. I think the next step should be to import our executive department from South Africa and our judicial department from Patagonia. I will simply say that the people of my district are weary of these imported plans of government, and think it is time the American people should run our government upon American ideas. I vote aye. Mr. Powell — Mr. President, as one of the exceedingly small minority, I hoped that some step of the kind proposed in this amendment might be adopted in our Constitution. I hav. taken no part in the debate upon this proposed amendment, because I was confident that the ultra-conservative character of this Convention, revealed on numerous occasions, would vote it down. What I expected is about to be realized. This proposed change in our con- stitutional law has been asked for by two classes of people; first, by the laboring classes, with wonderful unanimity; and secondly, by that class of people who are in favor of reform methods of gov- ernment, whether they be obtained from China or from Australia, from Japan or from Kamschatka, or anywhere else. We care not where the improved method comes from as long as it can be an improvement, and particularly has it been desired by that class of people who are anxious that we should have in some form what is 108 REVISED RECORD. [Friday, known as home rule. This merely provides for a phase of home rule. These classes have come here asking for something, and in this proposed amendment it is proposed to give them that which they ask for in an exceedingly homeopathic dose. I think we might have given it to them without any danger. There have been only two arguments against this amendment on the floor of the Convention. One is that corrupt legislators will use it as a means to dodge their duty, and the second is that we should only be governed by American ideas. I have been startled by the proposition that we must take only American ideas in this country, and if we are to follow that suggestion we must go back to the aboriginal savages for our ideas, and base the government of our country upon those ideas relative to government which are found among the remnants of the North American Indians; for all of our other governmental ideas in substance have been imported from other lands, either directly or indirectly. I vote no. Mr. Smith — Mr. President, I desire to explain my vote. The President — Does the gentleman desire to be excused? Mr. Smith — I understand I can do it without asking to be excused. I am in favor of this amendment. I favor it because I believe it to be in exact accordance with the spirit of our institu- tions. This is a people's government. This amendment is designed to submit to the voice of the people the making of a law affecting them in their subdivision of the State. It is precisely upon the principle of this Constitutional Convention which will submit its proposals to the people for their enactment of them into law, or their rejection of them. It is feeling, so to speak, the pulse of the people of this State. It is the exact principle upon which all gov- ernments by the people have been conducted; even in a state of nature among the Indian tribes; every chief and every buck and every Indian of any importance are consulted. The amendment is inspired with the principle of pure democracy. I vote no. Mr. Hottenroth — Mr. President, this provision, as I understand it, provides that when a question is submitted to the people, which the Legislature has the right to do now, for a determination of the question by the people, it becomes final and is enacted into a statute. Now, the difference as I believe between the proposition and the existing state of affairs is this ; that under the existing law, while the Legislature might submit a proposition if the people sup- port it, the Legislature subsequently can indorse or reject it, and thereby subvert the will of the people. Now, it seems to me, that if the Legislature considers a proposition worthy of submission that August 24.] CONSTITUTIONAL CONVENTION. 109 it ought to have some effect, and that if it is finally submitted to the people, the result should be regarded as the law of the land. Their will is the highest will. I, therefore, vote no. The report of the Committee of the Whole was agreed to — ayes, 83; noes, 33. Mr. Foote — Mr. President, my colleague, Mr. M. E. Lewis, received a telegram announcing the death of a relative and he was obliged to leave on the one o'clock train to attend the funeral to-morrow. The President put the question on excusing Mr. Lewis from attendance this afternoon and evening, and to-morrow, and he was so excused. Mr. Hamlin — Mr. President, if it is in order, I would like to move to reconsider the proposition to print the report of the Comp- troller, which was voted upon this morning. I have it here in my hand. It consists of a list of real estate belonging to the State, exclusive of the salt works, etc. It is practically a list of the lands bid in by the State for taxes, with the amount of the taxes and a description of the land. I cannot see that it will be of any par- ticular information to the members of this Convention, and it will at least cost a very large sum of money, probably from two to four hundred dollars. I move to appeal from this Convention, ill-in- formed as to what they were doing, to the Convention better informed, to reconsider this motion, and vote down the proposition to print this mass of writing. The President put the question on the motion of Mr. Hamlin, that the vote be reconsidered, and it was determined in the affirmative. Then the President put the question as to whether the report shall be printed, and it was determined in the negative. The Convention thereupon took a recess until three o'clock. AFTERNOON SESSION. Friday Afternoon, August 24, 1894. The Constitutional Convention of the State of New York met in the Assembly Chamber, at the Capitol, Albany. N. Y., August 24, 1894. at 3 P. M. President Choate called the Convention to order. The President : — The Secretary will proceed to call the general calendar. HO REVISED RECORD. [Friday, Mr. Marks — Mr. President, Mr. J. I. Green received a telegram calling him to New York on important business, ana asks to be excused for to-morrow and Monday. The President put the question on the request to excuse Mr. J. I. Green from attendance, and he was so excused. Mr. Banks — Mr. President, I desire to be excused for to-morrow. The President put the question on Mr. Banks's request to be excused from attendance, and he was so excused. Mr. Kimmey — Mr. President, I desire to be excused from this evening's session. The President put the question on Mr. Kimmey's request to be excused from attendance, and he was so excused. The Secretary called general order No. 8. Mr. Lauterbach — Mr. President, I move that general order The President put the question on going into Committee of the Whole on general order No. 8, and it was determined in the affirmative. The Convention resolved itself into Committee of the Whole, and Mr. C. H. Truax took the chair. The Chairman — The Convention now is in Committee of the Whole on general order No. 8, introduced by Mr. Lauterbach, to amend article 2 of the Constitution, relative to suffrage. The Sec- retary will read. The Secretary read the proposed amendment as follows: Article 2 of the Constitution is hereby amended by adding thereto a new section, to read as follows: " Sec. — . Boards of election officers shall be elected or appointed as the Legislature by law may direct, provided that each class of such officers shall consist of an even number, one-half of which shall belong to and represent the political party which at the last preceding gubernatorial election cast the greatest number of votes for Governor in the State, and one-half shall belong to and repre- sent the political party which, at such election, cast the next great- est number of votes for Governor of the State." Mr. Lauterbach — Mr. Chairman, it seems to be generally con- ceded that to secure purity of elections, which is, of course, the desire of both political parties, bi-partisan boards of election should be provided for, and the four officers connected with the arrange- ment of the machinery of elections should represent the parties that August 24.] CONSTITUTIONAL CONVENTION. Ill control the majority, and next to the majority of the votes of the State. In obedience to that sentiment, the amendment which was unanimously favorably reported by the Committee on Suffrage, is now before you for consideration. You will have observed that the consideration of the proposed amendment might have been made for three or four weeks past, the amendment having been on the order of general orders for some time. The occasion of the delay in its consideration arose from the fact that the Committee on Cities were preparing an amendment which should make a similar provision in respect to the conduct of elections in cities, and it was thought wise by the Committee on Suffrage to await the result of the deliberations of the Committee on Cities before pressing the amendment for consideration, because in some respects the two schemes might have clashed. The original report of the Committee on Cities has been referred back to the committee provided for the scheme which is set forth in this amendment. The Committee on Cities has conceded that it would be wiser to leave to the Legis- lature the regulation of the necessary methods of carrying out the principle which is sought to be embodied in the Constitution. Hence, their proposed amendment, if it were now submitted, would be of a more simple character, and very much in the line of that which is intended to affect the whole State, which is now to be con- sidered. By an understanding with the chairman of the Cities Committee the matter was held back until this juncture, and now a substituted amendment for that which is in print has been by a sort of general consensus agreed upon, and I will read it and ask that it be substituted for the pending proposition. I will defer its reading for a moment until I have made a further statement. As the law now stands, there is no absolute occasion for the adoption of an amendment of this character. It has taken many years to arrive at the result, but the result has at last been arrived at, when the whole of the Empire State, without distinction as to any civil division, is controlled by a code of election laws satisfactory to the members of every political party in the Stale, which insures abso- lute partiality as far as it can be insured in the regulation of regis- tration, of the receipt of votes and of the counting of votes, and of all the other details incident upon election. If the law of 1894 could be secured in perpetuity to the people of the State without a con- stitutional amendment, no such amendment would be necessary, and the practical effect of the adoption of the amendment in ques- tion would be simply to say that the law which finally matured in the enactment of the act of 1894, which provided that in town and city elections such machinery should be adopted as would give to 112 REVISED RECORD. [Friday, both political parties equal representation in the management of elections, is more than would be necessary to adopt, and this pro- posed amendment provides in the first instance that all such exist- ing laws shall remain upon the statute book until repealed or modified, but that any repeal or modification shall not go to the extent of depriving, for the benefit of all the voters of the Empire State, the security which the present act of 1894 affords. Mr. Veeder — Mr. Chairman, will the gentleman allow me to ask a question? I came in late, and would like to know if there is any amendment offered. Mr. Lauterbach — I shall offer it directly. It does not change it in substance at all; it is just in phraseology to conform to the suggestions of the Cities Committee. It is intended, if the present existing law is repealed in any manner, that the principle which is embodied in that law shall always prevail, that both parties shall have equal representation in the officers who supervise the election machinery. The law, as it now stands, affects generally the towns throughout the State, the city of New York, and acts passed prior to 1894 cover the city of Buffalo and the city of Brooklyn in a manner satisfactory to the citizens of both sides, irrespective of party; and it is that status which we have been so many years endeavoring to arrive at, which is sought to be maintained. I will now read the amendment and send it up to the desk. This is a sub- stitute, and I think I am justified in saying that it in no respect changes the principle of the printed amendment: " All laws creat- ing, regulating or affecting boards or officers charged with the duty of registering voters, or of distributing ballots, or of receiving, recording or counting votes, at elections, shall secure equal repre- sentation of the two political parties, which at the general election preceding that for which such boards or officers are to serve, cast the highest and next highest number of votes. All such boards and officers shall be appointed or elected in such manner and upon the nomination of such representatives of said parties respectively as the Legislature may direct. The existing laws on this subject shall continue until the Legislature shall otherwise provide." Mr. Veeder — Will the gentleman allow me to suggest, " except as permitted by this provision." Otherwise the Legislature might disregard this entirely. Or, " subject to the terms of this provision, the Legislature may provide." Mr. Lauterbach — I think the phraseology covers that idea. Tt says that all laws to be enacted shall contain that principle. Exist- August 24.] CONSTITUTIONAL CONVENTION. 1 13 ing laws shall remain and all laws that may at any time be enacted thereafter shall contain the principle of bi-partisan representation. Mr. Dickey — I should like to ask the permission of the gentle- man from New York to ask him a question. Mr. Lauterbach — With great pleasure. Mr. Dickey — May I ask whether the principle of this amend- ment may not be broad enough to include town meetings, in which the justices of the peace are the electing board, who are made up sometimes of one party. Mr. Lauterbach — It is intended to cover only the officers who are connected with the elections themselves. Mr. Dickey — Mr. Chairman, they are the election officers at the spring town meetings. Mr. Lauterbach — Then it would cover that case. Mr. Dickey — I would like to ask the gentleman, then, Mr. Chairman, the following question: How can it, when the officers who are designated already by law to perform that duty are made up of the election justices of the peace of the town, respectively four in number? Mr. Lauterbach — This is the general election, Mr. Dickey. I do not think it is calculated to affect town meetings. Mr. Dickey — Mr. Chairman, I did not note the language, but I think it ought to clearly exclude town meetings. Mr. Lauterbach — I will read it again and you can see if it applies to the case you speak of: " All laws creating, regulating or affecting boards or officers charged with the duty of registering voters or of distributing ballots, recording or counting votes at election." I do not know what laws, if any, exist in respect to town elections you refer to. Whatever they are they shall remain unal- tered if the subject of bi-partisan election inspectors is in any way involved. If there is any alteration in the existing law, and there is any application of the law to officers who are covered by town elections, then this act applies; if not, it would not affect it, as I understand it. " All laws creating, regulating or affecting boards or officers charged with the duty of registering voters." Do they do that? Mr. Dickey — Yes. Mr. Lauterbach — " Or of distributing ballots or of receiving, recording or counting votes at an election, shall secure equal repre- 8 114 REVISED RECORD. [Friday, sentation of the two political parties which at the general election preceding that," etc. I do not think that that has application to a town meeting. Mr. E. R. Brown — It does. Mr. Lauterbach — Well, is there any objection to its so doing? Mr. Cochran — Will the gentleman from New York allow me to ask him a question? The radical change which I notice in this substitute is not merely that those election officers shall be chosen from the two parties casting the highest number of votes, but that they shall be nominated by certain officials to be designated by the Legislature. May I ask what the intention is? With reference to this nomination of election officials, that is a new provision, and something not considered by the Suffrage Committee, and comes up in this substitute for the first time. You provide not merely that the election officials shall be chosen from the parties casting the highest number of votes, but that the Legislature shall provide how they shall be nominated. Not only shall they be elected or appointed, but it must be on the nomination of some representative of the party. It is something new in the proposed law. Mr. Lauterbach — Mr. Cochran, I think it would carry with it the idea that the Legislature should provide, not that to-partisan election boards should be appointed by any officer of either party, but that either party should have its own right of nominating and electing the officers who are to control the election. It changes the policy from that which has sometimes prevailed, of permitting an incumbent of an office, a mayor or a Governor of an adverse party, and is intended to provide that the parties themselves shall designate those who shall represent them as election officers. Mr. Cochran — Then, as I understand it, that practically allows the party to select their own election officials. Is that not so, Mr. Lauterbach? The Chairman — Mr. Lauterbach has the floor and must proceed. Mr. Lauterbach — I think it proper, in view of the questions that have been asked, and especially the questions asked by Mr. Dickey, with which I confess I am rather unfamiliar, that the proposed amendment should be printed, and that the discussion of the subject should go over until the members of the Convention have had an opportunity of examining it. The Chairman — Do you move that the committee now rise? Mr. J. Johnson — Mr. Chairman, I want to say on behalf of myself, and I believe the entire committee — August 24.] CONSTITUTIONAL CONVENTION. 115 Mr. Veeder — I rise to a point of order. Mr. Lauterbach has the floor, and has moved that the committee rise and report progress. The Chairman — He has not yet so moved. Mr. Veeder — I understood he was about to make that motion when he was interrupted by others. Mr. J. Johnson — Mr. Chairman, am I in order? Mr. Lauterbach — I yield the floor. Mr. Alvord — Mr. Chairman, it is evident that it is desirable that this matter should be spread before the committee so that they understand it, and for the purpose of having the necessary motion made to have it come into the House, I move that the committee now rise, report progress and ask leave to sit again. The Chairman — The gentleman from Kings (Mr. J. Johnson) has the floor. Mr. J. Johnson — Mr. Chairman, I wish to say on behalf of myself, and I believe the entire Committee on Cities, with whom I have been able to confer Mr. Alvord — Mr. Chairman, I rise to a point of order. Mr. J. Johnson — I had the floor and was recognized when you made the motion. Mr. Alvord — I ask the Chair whether or not he did not recog- nize my motion. The Chairman — I had recognized Mr. Johnson first. Mr. Alvord — My motion is in order at any time. Mr. J. Johnson — I submit, Mr. Chairman, that while I had the floor that no motion was in order. The Chairman — The motion is out of order while Mr. Johnson is addressing the Chair. Mr. J. Johnson — I will now commence for a third time. I desire to say, sir, that it is with the utmost pleasure in behalf of myself and the entire Committee on Cities, so far as I have been able to confer with them, that the principle of equality in represen- tation is to be extended throughout the State. It is a movement whereon, I believe, this Convention can be congratulated in acting harmoniously for the higher good of the State and a better dignity of citizenship. I think, however, that the motion made by the gentleman from Onondaga (Mr. Alvord) is entirely in the line of progress in this matter. It is not altogether a simple matter, although the ends that we strive to attain are simple, clear and well defined. Therefore, sir, I hope this resolution may be renewed. Il6 REVISED RECORD. [Friday, The Chairman — Does the gentleman from Onondaga (Mr. Alvord) renew the motion? Mr. Veeder — Mr. Chairman, I make the motion that the com- mittee now rise, report progress and ask leave to sit again, in order that we may get it in the Convention and have it printed and the matter retain its place on general orders. The Chairman — The gentleman from Kings (Mr. Veeder) moves that the Committee of the Whole now rise, report progress and ask leave to sit again, and that the general order retain its place. The Chairman put the question on Mr. Veeder's motion, and it was determined in the affirmative. Whereupon the committee rose, and President Choate resumed the chair. Chairman Truax — Mr. President, the Committee of the Whole have had under consideration proposed constitutional amendment (printed No. 317), entitled " Proposed constitutional amendment, to amend article 2 of the Constitution, relative to suffrage," have made some progress in the same, but not having gone through therewith, have instructed the chairman to report that fact to the Convention and ask leave to sit again. The President put the question on agreeing with the report of the Committee of the Whole, and it was determined in the affirmative. Mr. Bowers — Mr. President, I move that this matter be made a special order for to-morrow morning. It ought to be considered and disposed of before the Cities Committee's report, which is to be made on Monday, and I hope that members will consent to con- sidering this in the morning; and we can then have the amendment printed and disposed of. Mr. Lauterbach — Will the gentleman add to that motion that it be printed? Mr. Bowers — I accept the amendment, that the substitute be printed. Mr. Jesse Johnson — I have nothing to say on that motion except this, that so far as the Cities Committee is concerned, if their matter comes up on Monday, their cognate provision will not be pressed, but will be allowed to remain, with the assurance that the whole matter will be solved by this amendment, as to that amend- ment of the cities article. The President put the question on the motion of Mr. Bowers, and it was determined in the affirmative by a two-thirds vote. August 24.] CONSTITUTIONAL CONVENTION. 117 The President — The Secretary will proceed with the call of the general orders. The Secretary called general order No. 12 (printed No. 436), introduced by the Committee on Future Amendments, to amend article 13, relating to future amendments. Mr. Marshall — Mr. President, this general order, as amended, has only appeared upon the files since this morning, and various members of the Convention have not had an opportunity to read it carefully. I ask that it be passed for the present, but that it retain its place on general orders. The Secretary called general order No. 17 (printed No. 384), introduced by Mr. E. R. Brown, to amend article I, against public officers riding on passes. Mr. E. R. Brown — Mr. President, I move that. The President put the question on going into Committee of the Whole on general order No. 17, and it was determined in the affirmative. The President — Will Mr. Williams please take the chair? Mr. Tekulsky — Mr. President, Mr. Williams is engaged in the Canal Committee. The President — Will Mr. Bowers please take the chair on this amendment? Mr. Bowers took the chair. The Chairman — The Convention is in Committee of the Whole on general order No. 17. The Secretary will read the proposed amendment. The Secretary read the proposed amendment. Mr. E. R. Brown — Mr. Chairman, this amendment reported by the committee is directed at an evil which has not heretofore been reached by any constitutional or statutory provision. It is directed toward a custom which has arisen within the last thirty or forty years, growing during that period from inconsiderable to very con- siderable proportions; and the custom is now, as is a matter of common report, and, I think, of common information, for the mem- bers of the Legislature not only to receive passes for their own transportation to and from the Legislature, but also to receive on an average from $500 to $5,000 worth of passes annually for dis- tribution in the places where they will do the most good. I believe, Mr. Chairman, that this is a great evil; that it tends to destroy the confidence of the constituents in the representatives whom they have here in Albany, and that it also tends directly to lower the Il8 REVISED RECORD. [Friday, moral standard and action of the members themselves. Break down the first barrier and you have no other barriers left against moral degradation. Such is the tendency, if not the fact, in every case. There is no doubt, Mr. Chairman, that members of the Legislature receiving from $500 to $5,000 worth of free transportation from corporations are at least silenced when the interests of those corpo- rations are at stake. They cannot raise their voices against their benefactors, as they could if they were independent. I know, Mr. Chairman, that not all of those who have given passes, nor by any means all of those who have received passes for their own free transportation, have been guilty of a moral offense. It has come to be the custom, and I have no doubt that in accordance with the custom hundreds of members of the Legislature have received the passes and have not given any return therefor in direct service. But many have given something in return therefor; and as to those who have not given anything in return, there has been distrust on the part of the people concerning their fairness and impartiality in the performance of their duty. This is an unhealthy state of public senti- ment. Not only have Legislatures been in the habit of indulging in this pernicious habit, but the judges of the highest courts in the land. The judges of the Supreme Court of the United States, against whom this is not directed, as appears by the letter on file here as a document, received from the vice-president of the Pennsylvania railroad, are in the habit of indulging in it; and if there is any one thing that is essential to the integrity and the maintenance of our judicial system, it is that the people should have confidence in it. When a man goes into court and tries a case before a judge against a corporation, and finds out afterwards, when the decision is rendered against him, that the judge is in the habit of riding on passes of that railroad, it tends to destroy the confidence of the liti- gant, and the confidence of the public is impaired in the judiciary. Not only that, but this practice has gone so far that the assessors in many sections of the State uniformly have passes and the rate of assessment is controlled by this means. Municipal officers in the section of the country from which I come, without exception, mem- bers of the common council, the mayor, the city attorney, and every officer having any power which might bring him into conflict with the railroads, ride on passes. Now, Mr. Chairman, I under- stand, too, that this custom is often made use of by designing men, who happen to be in positions where they have to do with the interest of corporations, to demand and to receive large gratuities of this kind on the " stand and deliver " policy. In this way a great wrong is done to the corporations; and this provision, if enacted August 24.] CONSTITUTIONAL CONVENTION. 119 into law, will tend to protect them from such robbery. I do not desire to do more than give the House a succinct statement of what I understand to be the chief reasons for the incorporation of this provision in the Constitution. Mr. Veeder — Mr. Chairman, will the gentleman allow me to ask him a question? The Chairman — Will Mr. Brown allow Mr. Veeder to ask him a question? Mr. Brown — Certainly. Mr. Yeeder — I want to ask the gentleman if he knows what the theory of the New York Central' railroad is on this subject? Mr. Brown — I have not inquired of any railroad or of any corporation Mr. Yeeder — I am informed that they desire this legislation. Mr. Brown — That could not affect my position on the subject. This question has not now received attention for the first time on the part of the Legislature or of the country. Mr. Moore — May I ask the gentleman a question? The Chairman — Will the gentleman allow Mr. Moore to ask a question? Mr. Moore — Does the gentleman know what the position of the Delaware and Hudson Canal Company is on this subject? Mr. Brown — I will make the same reply to the gentleman from Clinton Mr. Moore — I know; they want and ask for this legislation. The Chairman — The Chair will state to the gentleman from Clinton that permission to ask a question does not justify the mak- ing of a speech on the part of the person to whom the privilege is granted. Mr. Brown — If that is so, I have no doubt that the gentleman who has just spoken, as the representative of that corporation, will favor this measure. (Laughter.) Xow, Mr. Chairman, like provisions have been enacted into the fundamental law of Alabama, of Arkansas, of California, of Florida, of Kentucky, of Mississippi, of Missouri, of Pennsylvania and of the State of Washington, so that it it is by no means an unprece- dented measure. But, aside from the mere fact that it has been adopted as a part of the -fundamental law of any State, as a matter of saving virtue, this Convention ought to adopt this provision. We are accustomed 120 REVISED RECORD. [Friday, to boast of the advance of our civilization, but there are many things, Mr. Chairman, in which the older countries have surpassed us in the refinements and the proprieties of life; and one of these matters is the subject of the free transportation of public officers, notably in the countries of Europe. I have taken pains to inquire upon this subject of the United States representatives abroad, as to the cus- tom in those countries, and desire to call the attention of the Con- vention, very briefly, to some of the communications which I have received in reply. The reply from a consul in England is that he finds upon inquiry from railroad officials that no passes are issued to any officials, of any grade. The Queen pays her way, as do members of Parliament and officers of cities and towns, and the members of all other public bodies. There is no specific law forbidding it. The whole matter is effected by common sentiment, which would not countenance the policy pursued in the United States, and by the railway companies, whose managers do not combine such a practice with their traffic. In the letter from Italy I find that the deputies of Italy, elected by the people to represent them in Parliament are accustomed to ride on the railroads on passes procured by the government and paid for by government at semi-annual settlements; and the officer of the United States in that country whom I addressed adds: " But one class of passes is occasionally in use. That is when tramps, vagabonds and paupers are to be shipped to the place they call their respective domiciles. In that case the police take the happy possessor of a pass to the depot. On the train he is carefully locked up in a not too comfortable compartment until he reaches his desti- nation, where again the police release him." As to Germany, the reply is that no one rides on passes in that country except Prince Bismarck, and he by special act. Now, Mr. Chairman, not only has this matter received indorse- ment and action in States of the Union, not only is it maintained by the best opinion of the older countries of the world, but in addi- tion to that, our own constitutional commission sitting in 1890 in the State of New York enacted it into the proposed reorganization of the judiciary that no judge should receive or accept a pass; and upon that point I am very heartily in accord with the recommenda- tion of that commission. It may be suggested that this is legislation and not fundamental law; but I feel that we have so far discussed the question of what is proper to be put into the Constitution that we have now arrived at the conclusion that we must not only put the fundamental law into the Constitution, but we must also embody in the Constitution those matters partaking of the quality of legis- August 24.] CONSTITUTIONAL CONVENTION. 121 lation which touch so near the foundations of the State that without them the State cannot well and successfully proceed in its career, and which experience has shown we cannot get from the Legisla- ture. And upon this point the reason why we cannot get it has always existed, and I believe always will exist, unless relief is granted by a Constitutional Convention. Mr. Floyd — Mr. Chairman, there are several views which may be taken of this subject. One certainly is the view which the State itself shall take, on whether or not as a matter of public policy any corporation shall be allowed to distribute its largesses at its own will among those to whom is confided the protection of the inter- ests of the State against, among others, these very corporations. I ask the indulgence of the Convention for a few minutes, not to exceed ten, that I may state what seems to me to be a cogent and not very occult reason why this practice may properly be termed a pernicious practice. It would seem that in the acceptance of rail- road free passes by gentlemen in official life the minor present advantage overshadows, shuts out from sight, the larger evil that follows it, like a shadow. If by the grace of the N. Y. C. & H. R. R. I receive a pass that entitles me to travel from Albany to New York, which is my line of travel, once a week, I receive $6.20. If I travel semi- weekly, I get $12.40. If, besides, I thriftly hire out my pass to some friend, at, say, half-rates, I get $3.10 more, and so on. It makes no difference to me that it is a pass. It is equivalent to money in hand; it is, in fact, spot cash. Nor does it make any difference that I receive it as a pass from a railroad corporation. It might just as well be Mr. Depew's personal check; it might just as well be an order from the Standard Oil Company for so many barrels of oil, or Mr. Rockefeller's check, or any other thing from any other official, so long as it was equal in amount, equally good and as easily converted into cash. Nor does it make any difference in estimating the quality of this transaction, that what I get, I get by the week; $6.20 a week, or $62 for ten weeks; or $12.40 a week, or $124 for ten weeks. It makes no differece, not an atom, in the amount that I receive. It is the same. And so it happens; perhaps I should say it has happened — it is pleasanter to speak of these things as past — it has no doubt happened that many a worthy legislator, whose righteous soul would have turned itself inside out with indignation if he had received from a corporation a $200 check, with a note ask- ing his services so far as they could be consistently given in the next Legislature, has nevertheless received a pass from the corporation, with all that it implies, and traveled on it $200 worth without the slightest quiver. I do not know how this happens. It may be 122 REVISED RECORD. [Friday, that a man when brought face to face with an unexpected opportu- nity of replenishing the exchequer, about which there may be some slight tinge of doubt as to its propriety, and casting about for some reason why he should secure this benefit, which would otherwise not fall to his lot, may find one in the contemplation of the natural good- ness or greatness which perhaps every man is dimly conscious of, and which has never before been revealed; and he may find support for that opinion in the fact that at one time it was the custom to accord passes to clergymen — a custom, I would say in passing, that per- haps found its origin in the practice of the late lamented Captain Kidd, who devoted a certain portion of his yearly business to the church. But, if a man is fair-minded, if he does not close his eyes voluntarily, he will be compelled to see, first, that it is not the method of corporations to spend their time in searching for the good and the great, or their money in rewarding them after they are found. In the next place, he will be compelled to see that the great- ness which he has attained did not antedate his official life, and will not exist after his official life closes; and finally he will be compelled to the conclusion that if he does get a pass he will do with it as the other gentlemen do; he will not wear it on his hat, nor on the lapel of his coat, but in his inside pocket, and will not make it a subject of conversation to any very great extent, which would not be the case if it were the Victoria cross, or the Grand Army button, or the cross of the Legion of Honor, or any other honorable distinction. This pass comes to him with his official life, and it closes with his official life. It is unmistakably connected with it. It is the office which brings to its tenant this substantial, tangible, material recog- nition, which in all other transactions of life is the equivalent for value received or the equivalent for value promised. In the first place, it is an office always in which the interests of the corporations that so rapidly supply the pass, will surely be called in question. But is that all? If public office is a trust committed to him by his friends and neighbors, under the implied obligation that he will honorably fulfill it, it is a trust, among other things, to protect their interests against all assailants. Now, by common understanding, the interests of his constituency and the interests of the public and the interests of the corporation which supply him with the pass are not identical, but in almost all instances diametrically opposed. Having then received from his constituency a trust, and from his friend, the corporation, the money, when the time comes for him to act on a question in which these interests conflict, how does he find himself equipped to meet the situation? Simply thus. He has accepted for and from one side a trust which the other side has paid August 24.] CONSTITUTIONAL CONVENTION. 123 him not to fulfill. Upon such a situation as this no words need be wasted. Xo, gentlemen, in the eyes of the plain people of our coun- try this practice of the giving to and accepting by public officials of free passes is thoroughly odious. I do not state it too strongly when I say it is an offense to their moral sense. They do not believe that any one placed where, as judge, or arbitrator, or referee, or legisla- tor, he is called upon to decide between conflicting interests can, or does, maintain the absolute impartiality which they rightfully demand, if at the same time he has the money of one side in his pocket; and they do not recognize railroad passes as compliments, as gratuitous favors, as tributes to goodness or greatness, or as any- thing but money. Xow, the extinction, the annihilation of this practice is assured if gentlemen will but apply to this case those intuitions of propriety and impropriety, of honor and dishonor, of right and wrong, which every man applies without difficulty to the case of every man but himself. Meantime, to strengthen the feeble knees and to place the standard of official conduct where it ought to be, I hope this Convention will stamp its hearty approval upon this proposed amendment. Mr. C. A. Fuller — Mr. Chairman, I am most heartily in favor of this proposed amendment. There is only one thing that prevented me from introducing it, and that is that Mr. Brown anticipated my movements. For myself, I have for a great many years regarded it as exceedingly bad for the State that this practice should prevail : that it should be understood that the members of the Legislature, as soon as they were elected to their office, should be the recipients of this kind of favor from the great transportation companies of the State. Of course, it may be asserted that no one takes a pass with any corrupt intentions. Members of the Legislature may say that it will not in any way influence their action when it comes to deal- ing with matters connected with railroad interests: and, perhaps, the railroad corporations themselves might say that they never gave a pass to a legislative officer or a judicial officer with anv intent, in any respect, to influence his action. But, sir, to paraphrase what a New York newspaper has been asking of a certain great city statesman for weeks, I will say, "Why do you give them?" Is it because these individuals, as soon as they are elected to office, are more precious, or more handsome, have any quality that would make it more proper for them to receive these gratuities than before? These gratuities cease when the office ceases. Xow, not only do members of the Legislature receive these passes, but also, if not every judge in the State, the great mass of the judges receive them; and. I think, that a suitor, a defendant or a plaintiff in a litigation in 124 REVISED RECORD. [Friday, which a railroad company is interested, may feel not entirely comfort- able when he knows for a fact that the judge upon the bench has in his pocket a pass from the railroad company that is defending or prosecuting the suit. I am entirely certain that this vicious system has gone to the extent that at least some judges take these passes, not because they believe in them, not because they want them, but because if they should decline the pass they would seemingly sit in condemnation on their judicial brethren who have the passes in their pockets. Any one who has had any experience as Assembyman or Senator in the Legislature of this State knows what the practice is. Not only does he have a pass for himself to travel upon, but when his family want to go to New York, or to Buffalo, or to any city, to see the sights, a pass is granted to every member of the family. Not only that, but this Assemblyman, this Senator, who is looking out for his future interests, who is putting up his fences for the next campaign, sends out or communicates with the heelers all over his county, wanting to know whether they do not want to go down and see the show; and so anywhere from two to four, from eight to ten passes a week are issued broadcast over the member's county, and the heelers and retainers go down upon this present that he has pro- cured; and then is an excellent time to caucus for the next campaign. As Mr. Brown suggested in his reply to the objection that this is legislation and not a proper constitutional revision measure, I would say that if this relief is to be granted to the people of the State, if politics are to be purified to this extent, it must be done by this Constitutional Convention. I have no manner of doubt that it is utterly idle to say, " Go to the Legislature and ask that this be done." Why, pretty nearly every member in the Senate and the Assembly has his pocket-book full of passes. No, sir; if this scandal is to be blotted out, it must be done by this Convention; and, sir, some provisions have been introduced into this body to correct this evil of having gratuities presented to office holders by these trans- portation companies, by enacting that they shall be compelled to give these passes. Well, I would prefer that very greatly to the present situation. I think that if passes are to be granted they should be granted upon compulsion, and not as gratuity and as a present. But I am opposed to that. I believe in corporations and in railroads. I think our country could now ill-afford to get along without them. They buy their land; they buy their rolling stock; they pay their help, and why should they be compelled to give away transportation to State officers? It seems to me that it is exceed- ingly impudent and cheeky to prefer any such proposition as that; August 24.] CONSTITUTIONAL CONVENTION. 125 and I hope that the better relief, the more thorough and manly relief, may be granted by this Convention, and that in its supreme dignity it will say that these corporations not only may not, but must not, give these inducements, these bribes, these means of corruption, to the officers of this State. I shall myself feel exceedingly sorry if this most wholesome proposition does not meet with the most hearty accord on the part of the members of this body. Mr. Spencer — Mr. Chairman, I have an amendment to propose. The Secretary read the amendment offered by Mr. Spencer, in the language following: " In line 6, strike out the word ' company,' and insert the word, ' person.' " Mr. Spencer — Mr. Chairman, I do not believe that it is necessary for any one to make any extended remarks in regard to this amend- ment proposed by Mr. Brown, as I think every member of the Con- vention is fully posted upon the matter, and will act according as he sees fit; but I propose this amendment to the amendment for the purpose of making the section thorough. If we are to deal with this subject at all, it seems to me that we should word the section in such a way that it will not be readily evaded; and, to my mind, the word " company," in this section, has no particular meaning. I, therefore, move to substitute the word "person" in place thereof; because any one can see that a railroad corporation might sell passes to an individual, to a person, and he might dispose of them to the public officers. Mr. Nicoll — Mr. Chairman, I have an amendment to propose. The Secretary read the amendment offered by Mr. Nicoll, in the language following: " No person elected or appointed to a public office under the laws of this State shall directly or indirectly ask, demand, accept, receive, or consent to receive, for his own use and benefit, or for the use and benefit of another, any free pass, free transportation, franking privi- lege or discrimination in passenger, telegraph or telephone rates from any company or corporation, or shall make use of the same by himself or in conjunction with another. Any person who vio- lates any provision of this section shall be deemed guilty of a misde- meanor, and shall forfeit his office at the suit of the Attorney- General. Mr. Nicoll — Mr. Chairman, I desire to say a word in favor of the principle contained in Mr. Brown's proposition, and which I have expressed in more drastic language in the amendment just read. As a general rule, Mr. Chairman, I am opposed to incorpo- rating in the Constitution of this State legislative provisions, furnish- 126 REVISED RECORD. [Friday, ing a rule of conduct for public officers. My conception of the Constitution is that it should contain only succinct and elastic prop- ositions under which the legislative direction may be exercised for the guidance of public officers and for the welfare of the public. But, while that is true as a general proposition, there are some offenses against public morals, some abuses so notorious, so flagrant, so hopeless of correction by the Legislature of this State, that it becomes the duty of this sovereign Convention to provide a remedy for them and to put upon them the seal of its disapproval. Such an abuse, such an offense against public morals, is the one which we are now considering. I will not trespass upon the time of this Con- vention by rehearsing the present condition of public affairs in rela- tion to the quasi partnership between corporations and public offi- cers now going on in this State. I know no more upon this subject than any man who sits within the sound of my voice. We have all an equal knowledge that it is and has been for the past twenty years a disgrace to the State of New York, and that it ought to be now and forever irremediably stamped out by this Convention. And, for the purpose of stamping it out, I have proposed the amendment just read by the Secretary. I am not one of those, Mr. Chairman, who believes that because a man rides on a pass, even a man in public office, that he lacks public virtue, of necessity. The practice has become so general and universal that a man who does not ride on a pass affords an exception to the general rule; and I know many good and virtuous men, in public office, who have accepted these gratu- ities from corporations. But, whether that be true or not, the fact is obnoxious to public morals, is an offense upon public decency, and ought to be suppressed. The proposition which I have sub- mitted undertakes to repress it by providing for every possible aspect of the case. Every public officer, either elected or appointed, is forbidden to accept, to either ask, demand, accept, receive or con- sent to receive, any free pass, free transportation or discrimination from a corporation. He is forbidden to accept it for himself, to ask or accept it for himself or another. He is forbidden to use it by himself or in conjunction with another. In addition to that I have provided that a consequence of a violation of the statute shall be a forfeiture of the office and a misdemeanor. It is idle, Mr. Chairman, to fill this Constitution full of high-sounding phrases, unless in addition to those we add appropriate remedies. There is no purpose here in putting in a general prohibition, which hereafter will be more honored in the breach than in the observance. There is no reason why the State of New York should repeat the experi- ence of the State of Pennsylvania, where they have a similar pro- August 24.] CONSTITUTIONAL CONVENTION. 127 vision, and where every public officer rides on passes, notwith- standing. If we are going to do anything on the subject, let us do it so that it shall be forever effective. Nor should we be diverted from our purpose, Mr. Chairman, by the suggestion of members of this Convention, who undertake to insinuate that this is a measure proposed for the benefit of corporations. This is not to be turned aside by any suggestion that it is in corporate interest. So far as corporations are concerned, who receive their charities from the State and pay their taxes to the State, they are entitled to be paid out of the pockets of public officers for riding upon their railways or enjoying their privileges. Mr. Holcomb — Mr. Chairman, may I ask the gentleman a ques- tion? I would like to ask you, Mr. Xicoll, why you did not include an inhibition against discrimination in freight rates as well as dis- crimination in passenger rates? Mr. Nicoll — I withdrew that at the suggestion of the chairman and Mr. Hotchkiss, who are mainly responsible for the amendment. I had it originally in mind, but they thought it not necessary to put it in. Mr. Holcomb — Do you consider that this absolutely does not leave open the possibility that there may be a discrimination in that respect? Mr. Nicoll — I think there is hiatus in it, but I do not think the evil really is an evil in making a discrimination through freight rates ; I think the evil is an evil that is addressed mostly to discrimi- nation in passenger and other rates; but, of course, if the Conven- tion should desire, I, myself, am in favor of making it as broad as" possible. Now, that is all I have to say upon the subject, Mr. Chairman. I sincerely hope that this proposition in the form which we have finally agreed upon, because I have submitted my amendment to the gentlemen who have this proposition most at heart, will be accepted and adopted by the Convention. Mr. Griswold — Mr. Chairman, I offer a substitute for the proposition. The Chairman — A substitute is not now in order, there being one amendment and one substitute before the Committee of the Whole. Mr. Holls — I ask that the substitute be read. Mr. Nicoll — I wish to accept in my amendment that of Mr. Spencer's. Mr. Spencer — I withdraw my amendment. 128 REVISED RECORD. [Friday, Mr. Nicoll — Then you withdraw yours, and I will incorporate the word in my amendment. The Chairman — The gentleman from New York (Mr. Nicoll) will address the Chair. Mr. Nicoll — The Chair will accept my apology. The Chairman — If it does not happen again, I will. Mr. Hotchkiss — Mr. Chairman, the inquiry has been made as to why there has not been a prohibition incorporated into this proposed amendment against any discrimination in freight rates. I am sur- prised that the inquiry should have come from the source it did, because the gentleman who made it was present when the subject was discussed before the Railroad Committee, from which this amendment emanated. The answer to his inquiry is this: Very many men Mr. Holcomb — May I ask the gentleman a question? Do I understand that this substitute of Mr. Nicoll's originated with Mr. Hotchkiss? Do I understand Mr. Hotchkiss is responsible for it? Mr. Nicoll — No ; I am responsible for it, and prepared it, but I submitted it to Mr. Hotchkiss and to Mr. Brown, of the committee. The Chairman — The gentleman from New York (Mr. Nicoll) will recollect that he once apologized to the Chair. Mr. Nicoll — Accept my second apology. Mr. Hotchkiss — I have said nothing, Mr. Chairman, which could lead any reasonable-minded man to suppose that I claimed a right of authorship, either in the proposed amendment or the substitute. I simply said that the amendment, as it was introduced, came from the Railroad Committee, and at the last meeting, when the amend- ment was reported, the distinction between discrimination in freight rates and discrimination in passenger rates was discussed, and the discrimination in freight rates was omitted, and omitted for this reason: The evil which this amendment strikes at is the evil of pas- senger service, the acceptance of free transportation by individuals. That is an evil which is of immense proportions. It is undoubtedly true that some persons in the service of the State are also shippers of merchandise over the lines of the public carriers of the State, but their number is infinitesimal beside those who have occasion to ride upon the railroads and accept for themselves the personal accom- modations of common carriers. If a man is a public officer, if he be at the same time a manufacturer and a shipper, perhaps, of hun- dreds of thousands of tons of merchandise per year, there is no good reason to my mind why he should not be permitted to accept from a common carrier the same discrimination in freight rates which August 24.] CONSTITUTIONAL CONVENTION. 129 that common carrier makes to other shippers of like character. That is not the evil that the amendment is directed against. It is no evil of any considerable proportions, if it be an evil at all. On the con- trary, I think that a man has a right to accept a discrimination in freight rates based upon the extent to which he makes use of the railroad or the carrier. Mr. Osborn — Mr. Chairman, there are two matters bearing upon this topic which I might mention. There seems to be a certain inquiry among a class of men for fear this should be desired by the corporations. I will say to gentlemen of that' class that there is an amendment coming into this body from the Committee on Indus- trial Interests, prepared by Mr. Springweiler, and for which I pro- pose to vote, which will enable such men to gratify any such feeling of opposition that they may have towards railroad corporations. On the other hand, and in addition, there is a certain feeling that it is unfair to deprive the legislators and other officials of the State of the transportation to which they are now accustomed. To those gentlemen I would say, by permission of the chairman of the Com- mittee on Legislative Organization, that that committee has intro- duced and agreed upon an amendment providing for the expenses of legislators in their necessary transportation. It seems to me that with a clear understanding of the fact that those two amendments are to come before this body, there is no reason why the amend- ment proposed by Mr. Nicoll should not prevail. Mr. O'Brien — Mr. Chairman and gentlemen, I have only a single suggestion to make. As I have urged this measure among the dele- gates from time to time, I have been met with the suggestion that a pass was in no sense a bribe, that any public officer might take a pass if he chose, and that he might still perform his duties with the same conscientious fidelity as if he had not received it. While that may be true with some men, we all know as to other men, and as to a very large class of men, it is not true. I was talking recently with an official in one of the cities of this State. He told me he had had for some time pending proceedings against a great railroad of this State, and that in order to further those proceedings it was neces- sary that action be taken in the common council. From time to time some member of the common council would bring that matter up, but for some reason unknown to the official, he would find that it was dropped. It had not proceeded very long before a repre- sentative of the company came to him and offered him a pass. He then began to inquire into it, and it took but little inquiry to find out that every one of these council men had, as he had raised this ques- 9 130 REVISED RECORD. [Friday, tion, received a pass from that railroad company. Now, in those cases, and in every one of those cases, the offer of the pass was sufficient. It did not require anything more. The pass was all that was necessary to stop those officers in the performance of their duties. Now, if we say that legislators or other people will not take these as bribes, will still perform their duties, notwithstanding the fact that they received them, I deny that as matter of experience, of a common, ordinary experience of life. If some gentlemen are able to rise to the exalted plane whe.re they may take a pass and still perform their public duties, there are others, hundreds of others, to whom free transportation at will over a great railroad is a bribe which their virtue is not proof against. Mr. Maybee — I desire to ask the gentleman one question. Does it prevent a public officer from purchasing a thousand mile ticket at reduced rates? Mr. E. R. Brown — I do not understand it to prevent that. I think that will be a very unreasonable construction. Mr. Holcomb — I would like to ask Mr. Brown whether the pending proposition has been accepted so that it is a substitute to his proposition? Mr. E. R. Brown — I regard the substitute offered by Mr. Nicoll as an improvement upon the amendment. Mr. Holcomb — That is not an answer to my question. Mr. E. R. Brown — I do accept it. Mr. Holcomb — Then it becomes a substitute; not an amendment, but a substitute. The Chairman — The gentleman from New York will address the Chair. Mr. Holcomb — I thought I did. I would like to ask whether the pending proposition before the House is a substitute? The Chairman — The Chair treats it as a substitute. Mr. Holcomb — I do not know what led the gentleman from New York (Mr. Hotchkiss), who is substantially a colleague of mine, to make the uncalled-for, and, as I consider it, very ungentlemanly remark, when he began his speech and brought my name into it. What took place in the committee is something that belongs to the committee, and has no reference at all to any proceedings upon this floor. So far as the principle involved in this matter is concerned, we are all of one mind, I think. But whether the proposition should go so far as to cover the whole evil, or whether, in accordance with a suggestion made by the gentleman from New York, an evil be an August 24.] CONSTITUTIONAL CONVENTION. 131 evil if it be great, and not an evil if it be small, is something I think that might have consideration, but perhaps not. In reference to the substitute offered by Mr. Nicoll, it meets my entire approval, and I do not use the word " my " in quite so absolute a manner as my colleague from New York is accustomed to use it. I do not think that a proposition of this sort, involving, it may be, the morals, the moral conduct of men charged with, in part, the government of the State of New York, is to be treated from any point of personal van- ity whatever, however overweaning that vanity may be, or whether one individual in this Convention may consider when he turned the great light of his intellect upon one proposition, that thereby the best thought of this Convention should have been turned upon it, is a matter of very slight consequence to me, very slight, indeed. I am quite content with the proposition offered by Mr. Nicoll, because I do believe, while I do not concur in the suggestion that any gentleman who is fit to be honored by the people of the State with any position under the State government, whether as a mem- ber of the Legislature, or a member of one of our boards of alder- men, or a Senator of the State, or to be placed upon the bench of one of our courts, is open to a suggestion even of bribery growing out of such a courtesy as this, if you call it a courtesy, or call it by any name you like, ugly or pleasant, or whatever name you please to put upon it. I do not consider that there is any such thing as that the public servants of the State of New York — and I, for one, standing here as a representative of the people, will resent the sug- gestion, that they are open to bribery or that these things are bribes. I am content that we should put this intp the Constitution or into any statute, and I shall give my voice for the substitute offered by the gentleman from New York (Mr. Nicoll). Mr. Griswold — Mr. Chairman, I wish to offer an amendment, which is designed to accomplish the same thing as the other propo- sitions that have been made. I should like to have the Convention understand what it is. The Chairman — Will the gentleman send his amendment to the desk that it may be read? Mr. Mantanye — Is an amendment in order? The Chairman — An amendment to the substitute would be in order; nothing else. Mr. Mantanye — I cannot make an amendment to the substitute without knowing what it is. Mr. Griswold — The amendment which I propose is one to accomplish the same thing, and I believe, if the Convention under- 132 REVISED RECORD. [Friday, stand it, it will be entirely effectual, while the main proposition here will not be, and can be evaded. The proposition is this : " Strike out all after line I, and insert as follows: 'each corporation or com- pany running or operating a railroad within this State for the carry- ing of persons and passengers, shall carry and transport upon the line of its road, upon any of its regular trains, without compensa- tion, and free of charge, each of the judges of the Court of Appeals and of the Supreme Court, and each member of the Legislature of the State, when traveling upon or over the line of its road from his residence to his place of destination, in or for the purpose of the performance of the duties of his office as such, and in returning therefrom to his place of residence.' " The Chairman — The Chair is obliged to inform the gentleman from Greene (Mr. Griswold), that there is a substitute already before the House, which must be disposed of before another substitute can be received. Therefore, at the present moment, the substitute is out of order, but it will be received as soon as the other substitute is adopted or rejected. The question is upon the original substitute offered by the gentleman from New York (Mr. Nicoll). Mr. Choate — Mr. Chairman, I do not entirely approve either of the amendments offered, or the amendment to it, which Mr. Nicoll has proposed, upon the ground that, in my judgment, they do not go quite far enough. I never enjoyed, myself, the privilege of a pass, and do not know the sensation of traveling on one; and from the general outburst of public indignation which has been manifested here, I am satisfied that that is true of all the members of the Con- vention. (Laughter.) But it seems to me that there are two sides to this picture, and that the public officers are not the only parties at fault, or the only ones who ought to be restrained. If it is to be a misdemeanor for a public officer to receive a pass, it appears to me that it should also be a misdemeanor for the officer of the company who signs a pass with intent to violate this article, and that he should also be subject to the same restrictions and liable to the same pen- alty. I do not think that you reach the whole evil when you pro- hibit one side to the transaction, but that the other also must be reached. I confess that the letter, that was written to use here by the vice-president of the Pennsylvania Railroad Company, opened my eyes to the magnitude of this evil which has been so justly denounced by many of my fellow-delegates. I shall not add to their withering words in that respect. I have made some inquiries since the receipt of that letter, and have reason to believe that a similar state of things exists in the State of New York as was depicted as existing in the State of Pennsylvania, and that there are rail- August 24.] CONSTITUTIONAL CONVENTION. 133 road companies in this State which do not even wait to be asked for passes by public officials, but that when a court has been consti- tuted or a Constitutional Convention made up, or a Legislature is about to convene, I am told that it is not unusual for these com- panies to prepare in advance of being asked packages of passes for the members of those public bodies. It is said, Mr. Chairman, that the Lord loveth a cheerful giver. (Laughter.) If so, these rail- road companies must be very dear to Him (laughter), as they are manifestly to the Legislature and the people of this State. (Laugh- ter.) Now, I would like to see an amendment; I have not that skill in framing these penal statutes and provisions that my associate and fellow-delegate (Mr. Nicoll) has. He cannot only draw them, but enforce them, and, therefore, I would like if he could apply his skill to the drawing of an addition which would make the officer who signs the pass, intending it to be issued in violation of this article, also guilty of a misdemeanor. (Applause.) The Chairman — The question is on the adoption of the substi- tute offered by the gentleman from New York, Mr. Nicoll. Mr. Towns — Mr. Chairman, I have an amendment which I think would meet the suggestion of the President. I ask the Secretary to read it. Mr. Towns's amendment was read by the Secretary, as follows: Or of any citizen of this State, and the person who is successful in such suit shall succeed to the office forfeited in consequence of such suit." (Laughter.) Mr. Towns — Now, Mr. Chairman, I generally have but to hear the voice of our President to be convinced of the truth of his asser- tions, but I cannot agree with him in the position that he takes, namely, of suggesting punishment to the giver as well as the receiver. To my mind that would nullify the virtue of this entire proposition, because if the giver was to be punished, he would assist the receiver in concealing the gift. I think that this meets the ques- ton fairly and squarely, and that it will inspire our citizens with that spirit of virtue and that feeling of animosity against the receivers of passes to such an extent that the court will be full of those virtuous prosecutions. Now, if we wish to enforce this law, we ought to pro- vide such measures as will guarantee its enforcement, and if we put in the hand of every informer and every spy the power to enforce these provisions, there will not be a man in the State who will dare to take this bribe from the corporations. If every gentleman in this Convention votes for this measure who to-day has a pass of the railroad company in his pocket, I have no doubt it will be passed 134 REVISED RECORD. [Friday, with an unanimity that has not signalized any measure that has come before this Convention. I am against any legislation which intends or suggests the infusion of morals into individuals which they naturally do not possess whether it be by legislation by Con- stitutional Convention or whether it be by legislation by the Legis- lature of the State. But if we are going to experiment in the injec- tion and infusion of morals and morality into the people of the State of New York, let us begin our experiment by efficient means, and let us create in this State a corps of spies and informers that will protect the railroads from the raids that have been made upon them by the Assemblymen and public officers, and in that way, perhaps, we may be successful; and I think that will meet with the sugges- tions of the President, and be more effectual in the successful prose- cution than if we punish the bribe-giver as well as the bribe-taker. Mr. Mantanye — Mr. Chairman, I wish to offer an amendment to the substitute. The Secretary read Mr. Mantanye's amendment, as follows: Mr. Mantanye offers the following amendment to general order No. 17, and to the substitute therefor: After the word, "corpora- tion," insert the following words, " except that the incorporated common carriers of the State, as one of the burdens incident to their franchises, shall issue to every State officer, including judges of the Court of Appeals and justices of the Supreme Court, and members of the Legislature, free transportation between the place of residence of such officer and the place where his official duties are to be per- formed, by the usual traveled routes, for the personal use of such officer only; such transportation to be furnished on the certificate of the Secretary of State." The Chairman — This amendment being to the original proposi- tion, the original proposed amendment, cannot now be entertained. Mr. Mantanye — It is an amendment to the substitute. The Chairman — Then it may be received and considered. Mr. Tekulsky — Mr. Chairman, I am very glad to see that a spasm of virtue has struck this Convention at last. Since Ollie Teall has become a resident of the second district in New York to reform the people down there, and he is one of my constituents, I would, therefore, suggest that an amendment to this proposition will be right and proper at this time. The Chairman — The Chair informs the gentleman from New York (Mr. Tekulsky) that no further amendments can be received for this substitute at this time. August 24.] CONSTITUTIONAL CONVENTION. 135 Mr. Tekulsky — I'm not offering- an amendment; I'm just offer- ing a suggestion that it might be right and proper at this time to inject into this proposition the anti-treating clause. (Applause and laughter.) Our friend, Mr. Teall, was a former resident of Syracuse, and that happens to be the place where I came from, and it strikes me forcibly as being a very good amendment to this proposition, because I really believe that they are both of them farces. You cannot stop good fellowship amongst men, neither can you stop good fellowship among railroad corporations, especially when it is going to benefit the corporation. Now, Mr. Chairman", I cannot see why there is so much time wasted upon a subject of this kind, unless it is in the interest of lawyers. It says here, " any person who violates the provision of this section shall forfeit his office at the suit of the Attorney-General." I suppose we have now one Attorney-General and quite a few deputies, but we would want just about five hundred more of them to prosecute, and all that would be in the interests of the lawyers. I, not being a lawyer, am posi- tively opposed to this proposition, as I cannot have any opportunity to defend these cases. I consider this whole matter as a farce. Mr. E. R. Brown — Mr. Chairman, where such a material contri- bution is made to the subject as that just furnished by the President of the Convention, I regret very much not to be able to accept his suggestion in its full length and breadth, but, it seems to me, that when the State has provided that its public officers shall not violate this proper sense of propriety, we have gone far enough, and that when we take the other step and provide that those who give the passes are likewise guilty of a misdemeanor, we have put ourselves in the same situation in reference to this offense that the people of the State have found themselves in regard to bribery at elections. There is a crime at one end met by a crime at the other end, and it results in a copartnership in crime, and neither of the parties is brought to book. I am aware that the President of this Convention is not given to criminal practice, otherwise I would not dare to differ with him on this point, for I have already experienced the force of his opposition, and I should be unwilling to antagonize him, although I should be very happy to persuade him. Mr. Choate — After conferring with Mr. Nicoll, I am satisfied that half a loaf is better than no bread, and will vote for his amendment. Mr. Towns — Mr. Nicoll, will you not accept my amendment? I ask the Chair if he will not accept my amendment; if he does not- think it will be more conducive to the end desired? 136 REVISED RECORD. [Friday, Mr. Nicoll — I am sorry not to agree with the gentleman from Kings, but I think the amendment is effective without the addition proposed. Mr. Towns — Do you think the Attorney-General, without having the matter drawn to his attention, will have time to find out who has violated these provisions? Mr. Nicoll — I think the attorney will. Mr. Lauterbach — As I put my hand in my pocket before voting, 1 would like to ask whether this amendment can have any retro- active or ex post facto action? (Laughter.) The Chairman — The question is on the amendment offered by Mr. Mantanye. Mr. Veeder — Mr. Chairman, is it in order at this time to offer a substitute to the whole matter? The Chairman — It is not ; not until this amendment is disposed of. The question is on the amendment of Mr. Mantanye. Mr. Forbes — Mr. Chairman, I will state to the committee that I have not a pass, and have not used a pass during this Convention, and I think that having made that statement, I can with propriety say that this whole matter is beneath not only the dignity, but also beneath the privilege of this Convention to consider, for the reason that we are either going to impose upon corporations some new duty which was not imposed in their charter, or else we are going to consider an evil which should be considered by those who are elected for that purpose, that is, the Legislatures of the State. If we are going to take up all of the evils that are pressing us on every side of the State, our Constitution, when made, will be a vol- ume of criminal statutes, and not a Constitution of the usual and necessary form. For those reasons, I think, Mr. Chairman, that both of these propositions, not only the original amendment, but the substitute, should be voted down. The Chairman put the question on the adoption of the amendment offered by Mr. Mantanye, and it was determined in the negative. Mr. H. A. Clark — May I ask the gentleman from New York (Mr. Nicoll) a question? I am entirely in sympathy with this amendment, but wish it to be as perfect as can be when it is passed. I wish to ask him if it is wise to insert in our Constitution anythng referring to a misdemeanor, so long as a misdemeanor is not defined by the Constitution? Mr. Nicoll — We have already in the Constitution the word " fel- ony," in the fifteenth article, relating to bribery. I had originally August 24.] CONSTITUTIONAL CONVENTION. 137 intended to use the word " felony " here. I thought that, perhaps, was a little too severe. The word " misdemeanor " is in the judi- cial article. Mr. H. A. Clark — As I have said, I am entirely in sympathy with the provisions of this article. I think the article should be passed, as offered by Mr. Nicoll. There are many officers in the State who would not accept a money bribe, who would feel indignant if such a thing were offered to them. There are very few officers in the State of New York who will not accept a pass over a railroad and feel they have a right to accept it. They receive it as a matter of privilege, and feel that there is no harm done to them or to the State by receiving it. At the same time, after receiving this pass, many of them will feel under obligations to the company or to the person who delivered it to them. The question has been asked here whether or not the railroads desired this amendment. I feel that it makes no difference whether the railroads or other corporations desire it or not, or whether the public officers of the State desire it or not. It is a protection alike to both. It is a protection to the railroad companies against evil, and it is a protection to the officers of the State against scandal. The Chairman put the question on the adoption of Mr. Towns's amendment, and it was determined in the negative. The Chairman put the question on the adoption of the substitute offered by Mr. Nicoll, and it was determined in the affirmative. The Chairman — The substitute offered by the gentleman from Greene (Mr. Griswold) will now be considered. Mr. Griswold — I thank you, Mr. Chairman, that I have suc- ceeded, after all the difficulties, in getting a hearing. The Chairman — The gentleman is informed that he has been heard as quickly as it was possible to hear him. Mr. Griswold — I have no doubt of it, Mr. Chairman. Now, I have a suggestion to make to the Convention in reference to this substitute. Mr. Dean — I rise to a point of order, that the substitute offered by Mr. Nicoll having been passed upon by this Convention, that a substitute is no longer in order. The Chairman — The Chair rules the point of order not well taken. Mr. Griswold — I can tell the Convention in a very few words what this substitute is that I propose. When you attempt to get a measure through here it ought to be one that will be effectual and 138 REVISED RECORD. [Friday, that will accomplish what you design. The Convention seems to be almost unanimous upon the subject of this grievance and scandal. I do not believe that officers, judges of the court, are bribed. It does not make one particle of difference, but I wish to do what I can to remove that scandal. That is what other gentlemen of the Conven- tion desire. How do we propose to do it? I propose that instead of the proposition as offered, that this proposition be made in the place of it. It is to the effect that each railroad corporation of this State shall furnish free passes to each of the judges of the Court of Appeals, of the Supreme Court and to the members of the Legisla- ture. Those are the only officers in reference to whom there is any suspicion. Mr. O'Brien — I rise to a point of order, that this is an equivalent proposition to that of Mr. Mantanye, which has been voted down. The Secretary read Mr. Griswold's amendment as follows: Strike out all after line I, and insert as follows: " Each corpora- tion or company running or operating a railroad within this State, for the carrying of persons and passengers, shall carry and transport upon the line of its road, upon any of its regular trains, without compensation and free of charge, each of the judges of the Court of Appeals and of the Supreme Court, and each member of the Legis- lature of the State, when traveling upon or over the line of its road, from his residence to his place of destination, in or for the purpose of the performance of the duties of his office as such, and in return- ing therefrom to his place of residence." The Chairman — The Chair rules the propositions are equivalent, and the amendment is not in order. Mr. Cochran — If I may be allowed, I will say the Chair does not The Chairman — If the gentleman from Kings (Mr. Cochran) wishes to appeal from the decision of the Chair he may do so.- The Chair desires no assistance. Mr. Doty — Mr. Chairman, I move the committee now rise, report this proposed amendment to the Convention, and recom- mend its adoption. The Chairman put the question on Mr. Doty's motion, and it was determined in the affirmative. The committee thereupon rose, and President Choate resumed the chair. Mr. Bowers — Mr. President, the Convention has been in Com- mittee of the Whole on proposed amendment No. 384, entitled, August 24.] CONSTITUTIONAL CONVENTION. 139 " To amend article I of the Constitution against public officers rid- ing on passes," has gone through with the same, has made some amendments thereto, and instructed the chairman to report the same to the Convention, and recommend its passage. The President put the question on agreeing with the report of the Committee of the Whole, and it was determined in the affirmative. The President — The amendment goes to the Committee on Revision to be printed and go on the order of third reading. The hour of five o'clock having arrived, the Convention takes a recess until eight o'clock this evening. EVENING SESSION. Friday Evening, August 24, 1894. The Convention resumed its session at eight o'clock. President Choate in the chair. Mr. Acker — Mr. President, I desire to be excused from attend- ing the sessions of the Convention to-morrow. The President — Mr. Acker asks to be excused for to-morrow, and the Chair is well advised that his absence is necessary. The President put the question on granting leave of absence to Mr. Acker, and it was determined in the affirmative. Mr. Pratt — (R. 184.) Mr. President, I move that the Committee on Rules be instructed to frame and report to this Convention a rule providing for one session of this Convention on Saturday, beginning at nine o'clock and ending at twelve, and that, at five minutes to twelve on each Saturday, all other business be suspended and the roll of the Convention be called; that every member of the Convention not answering to his name on that call, and not excused from attend- ance by the Convention, be fined the sum of twenty dollars, to be deducted from his next week's pay. Now, Mr. President, I quite agree with the President of this Convention, that if any member absents himself therefrom for the purpose of attending to his private business, taking the time which the State has paid for, he should sacrifice a portion of the compensa- tion which the State proposes to give him. But, Mr. President, many, if not most, of the members of this Convention have " given hostages to fortune," and have families that require at least a por- tion of their time and attention, and I call the attention of the Con- vention to the fact that the verv Legislature which enacted the law 140 REVISED RECORD. [Friday, under which this Convention has convened, established Saturday as a half-holiday, and, therefore, all servants of the State can consider themselves as exempt from duty to the State on that day. Mr. Powell — Mr. President, I ask unanimous consent to intro- duce a resolution, and think that after it is read the Convention will accept the proposition contained therein. Mr. Cookinham — I object, Mr. President. The President — Mr. Pratt's resolution is referred to the Commit- tee on Rules. Mr. Towns — Has Mr. Pratt's resolution been read? The President — It has been stated by him. Mr. Towns — I would like to have it read, Mr. President. The President — Mr. Pratt will put his resolution in writing, and it will be sent to the Committee on Rules. Mr. Powell presents a resolution, and it will be read. Mr. Cookinham — I object, Mr. President. The President — Is there any objection to the reading? Mr. Cookinham — I object, Mr. President. The President — It can be read for the information of the Convention. The Secretary read the resolution, as follows: R. 185. — Resolved, That any member of this Convention who shall hereafter ride upon or use a free pass or ticket from any rail- road, steamboat or street car line, shall not receive his per diem allowance during the remainder of this session. The President — Does any gentleman wish to debate this resolution? Mr. Cookinham — I move that it lie on the table, Mr. President. The President put the question on the motion of Mr. Cookinham, to lay Mr. Powell's resolution on the table, and it was determined in the affirmative. Mr. Deterling — Mr. President, I ask to be excused for to-morrow. The President — Mr. Deterling, after ten days' service in the Convention, asks to be excused. The question is on excusing Mr. Deterling after his brief term of service. The President put the question on granting leave of absence to Mr. Deterling, and it was determined in the negative. August 24.] CONSTITUTIONAL CONVENTION. I4I Air. Cochran — Mr. President, may I ask the chairman of the Judiciary Committee for information? The President — He is not here. Mr. Cochran — I would like to have it appear on the record, so that it can be referred to. What I would like to ask is, what was done with the resolution offered by Mr. Bigelow and referred to the Judiciary Committee, as to the latest day to which this Convention could be prolonged, consistent with the submission of the results of our labors to the people? Mr. Cookinham — Mr. President, I think I can answer the gentleman. It has not been taken up in the committee for the rea- son that the committee was engaged in other matters, and we had no time. Mr. Cassidy — Mr President, I ask to be excused for to-morrow and Monday. The President put the question on granting leave of absence to Mr. Cassidy, and it was determined in the affirmative. Mr. Deterling — Mr. President, I desire to renew my request to be excused. It is very important that I be excused for to-morrow. The President — You cannot renew the motion, unless you move to reconsider the vote by which leave was refused. Mr. Deterling — Well, then, Mr. President, I move to reconsider the vote. The President put the question on reconsidering the vote by which leave of absence was refused to Mr. Deterling, and it was determined in the affirmative. The President then put the question on granting leave of absence to Mr. Deterling, and it was determined in the affirmative. The President — The Secretary will proceed with the call of the general orders. General order No. 19 (introductory No. 116, printed No. 386), introduced by Mr. Roche, to amend section 18 of article 3, relating to special or local laws, was called, but not moved. General order No. 21 (introductory No. 212, printed No. 388), introduced by Mr. J. Johnson, relating to the title of bills, was called. Mr. J. Johnson — Mr. President, I can explain the bill, and, with the consent of the Convention, I will be glad to have it brought up. 142 REVISED RECORD. [Friday, The President — Do you move to go into Committee of the Whole on that amendment? Mr. Johnson — I do, sir. The President put the question on the motion of Mr. Johnson, and it was determined, in the affirmative. The Convention resolved itself into Committee of the Whole. Mr. Cookinham in the chair. The Chairman — The Convention is now in Committee of the Whole on general order No. 21, introduced by Mr. Johnson, relating to the title of bills. The Secretary will read the amendment. The Secretary read the amendment. Mr. J. Johnson — Mr. Chairman, with the consent of the com- mittee, I will state briefly the purposes of this bill. As is familiar, I suppose, to you all, the present Constitution requires that the subject of all local bills shall be expressed in their titles, in addi- tion to requiring that there shall be but one subject. The point is that the subject of which local bills treat must be expressed in their title. Now, there is no such provision whatever as to general bills; no provision that the subject must be expressed in their titles. This amendment does not propose to put any such amendment into the Constitution. It does not propose that as to general bills the subject must be stated in the title. In other words, the amendment would leave it so that a bill might be entitled: " An amendment to the Revised Statutes," which would leave, I presume, all possible subjects of legislation open. This amendment, I apprehend, would leave it that a bill might be entitled : " An act for the benefit of the people of the State of New York," and this would not interfere with that. But what this does do is this, and on this I ask the attention of the committee, that if a general bill undertakes to state its subject in the title, if it undertakes to set out in the title that of which it treats, having so undertaken, it cannot go beyond what has been put upon its forefront as the subject of the bill. The reason that suggested this amendment to me may be found in the case of Ferguson against Ross, reported about two years ago in the Court of Appeals, which I should have had here and would have had here, had I supposed this matter would be up to-night, wherein the title of a bill limited it to a particular subject — to a particular line of operation. It was conceded, in discussing the validity of that bill, that it treated matters outside of the title. It was a bill in relation to the harbor of New York. The Court of Appeals said that you would be right, were this a local bill, while August 24.] CONSTITUTIONAL CONVENTION. 143 your claim that this is not within the title is correct, nevertheless, this is a general bill, and, therefore, there is no limitation but what the subject-matter may go far beyond the title. They said, in effect, that the title of a general bill was not a part of the bill and there was no necessity for a title. Therefore, Mr. Chairman and gentlemen of the committee, this amendment is suggested, not at all providing but that there may be many subjects in the same bill, if they are general. The same bill may relate to railroads, to electric-light companies, to insurance, to any number of subjects, as now, if they say it relates to those subjects and has no subject at all, or simply say it is a bill for the welfare of the people of the State of New York. If the bill says it is a bill in relation to rail- roads, under this amendment it cannot touch insurance or banking, and, if it is an act in relation to banking, it cannot touch insurance or railroads. I think, sir, the bill, as reported by the committee, is very carefully drawn, and the letter expressed in the italics is the voucher and recommendation for the measure. Mr. Cassidy — Mr. Chairman, I move to amend by striking out of this amendment the words "private and local" in line i, and striking out all that portion in italics commencing in line 5 and including line 6. That merely strikes out the words in the present Constitution, "private and local," and then it will read: "No bill which shall be passed by the Legislature shall embrace more than one subject and that shall be expressed in the title." If we are to make this amendment at all, it seems to me that my amendment would make it much simpler. Mr. Johnson — The effect of that would be that no bill could embrace more than one subject. Mr. Jacobs — Mr. Chairman, may I ask the mover of this amend- ment one or two questions through you? Suppose a bill should be passed, entitled "An act to amend the act entitled an act to con- solidate the laws affecting the city of New York (or Brooklyn)," and stop right there, and should proceed then to reorganize the police, fire and water departments of New York city or Brooklyn — would you consider them three subjects or one subject? Mr. Johnson — I will answer the gentleman. In the first place, that is a local bill, and is affected by the portion now in the Con- stitution and is not affected by the amendment. The next answer would be that under the well-recognized decisions it is but a single subject. The government of the city of New York or the city of Brooklyn is but a single subject. And, were it a general subject, they could put in as many matters as they choose. Though there 144 REVISED RECORD. [Friday, were 100 subjects, if they did not indicate that the bill was confined to one, and so set up a false beacon, so that a man glancing at the title would be mislead. Mr. Jacobs — Mr. Chairman, I did not ask the question for the purpose of antagonizing the bill, but to get some information upon the subject. After hearing the answer of the gentleman I am satis- fied that the doubt is cleared away, but, if he should be mistaken, it would be a very embarrassing situation, because, if such a bill should be passed, entitled the way I said, and should treat of these varied topics, whether they be called subjects or not, and the courts should hold that they were three different subjects, we might be very much embarrassed, and I think before the Convention passes upon this subject it ought to give Mr. Johnson an opportunity to inform himself and this Convention upon the subject more fully. Mr. Johnson — The amendment is only in italics. The other portion is in the Constitution. Mr. Alvord — Mr. Chairman, we have on our hands about 135 lawyers in this Convention. I believe honestly and without any doubt that 134 out of the 135 cannot understand this proposition. Only one man knows anything about it. I propose an amendment to the proposition that the gentleman from Kings (Mr. Johnson) be instructed to call in a Philadelphia lawyer and make him a part of this Convention so that we can get through with it. (Laughter.) Mr. Chairman, I move to strike out the enacting clause of this amendment. Mr. C. B. McLaughlin — Mr. Chairman, I hope this motion will not prevail. It seems to me that there should not be any great cause for disagreement over this amendment. The provision provides in the first place, that no private or local bill that may be passed by the Legislature shall embrace more than one subject and that shall be expressed in the title. That is the present Constitution, and that is followed by the amendment. If any one thinks that is not plain, I would like to have him get up on the floor and say so. Mr. Schumaker — May I ask the gentleman a question? The word " subjects " is what I object to in the amendment. The word " subject " is in the original Constitution, but this says " subjects." Now there is no decision of the Court of Appeals that takes that in. Mr. McLaughlin — I was about to explain that it seems to me very clear what this means. The present Constitution provides as to private or local bills. Now that is clear. It is followed by Mr. Johnson's provision, which takes in every bill. Mr. Veeder — Mr. Chairman, will the gentleman allow me to ask August 24.] CONSTITUTIONAL CONVENTION. 145 him a question? My point is that this proposition here speaks of " no other bill." It doesn't say " all other bills." What kind of a bill is "no other bill?" I would like to know if this is the bill it ought to be. (Laughter.) Mr. McLaughlin — This proposition cannot be laughed out of this body. I started a moment ago, when I was interrupted, to say that the present Constitution provides as to private and local bills. Now it would seem to be pretty clear, even to the gentleman from Kings (Mr. Veeder), that when it provides " no other bill," it means all other bills that are passed by the Legislature. Now, this is a proposition which has in it some merit, and it seems to me ought to receive at the hands of this Convention serious consideration. It is a good measure. It prevents the kind of legislation which this State has been subject to in years past. It is an effort to prevent if. If not, I would like to have some one in this Convention get up here and tell us where the trouble is. Mr. Towns — Mr. Chairman, this most intricate subject which seems to trouble all of the legal talent in this chamber, it seems to me, came up for discussion in a most unpropitious moment. The mind of the introducer of this measure is so pregnant with the cities article that he is unable to do justice to this subject, and when Mr. Alvord, the patriarch of the House and a veteran legislator, cannot explain it, we certainly cannot. I move that the consideration of this proposition be postponed until after the cities article is disposed of. Mr. Barhite — Mr. Chairman, I believe that this proposed amend- ment is a good one and seeks to avoid something which has been a serious evil in legislation before this time. Now there seems to be some difficulty in some of the delegates understanding what this bill is intended to do. As I understand it, bills may be properly divided into two classes: private and local bills, and those which are not private and local, and, I think, that answers the question of the gentleman from Brooklyn (Mr. Veeder), when he asks what is meant by " no other bill." Now, nothing except that portion of the proposed amendment which is in italics is an amendment to the Constitution as it stands. The present Constitution reads: " No private or local bill which may be passed by the Legislature shall embrace more than one subject, and that shall be expressed in the title." That is the present Constitution of the State of New York, and is noi: interfered with by this proposed amendment. The amendment is in these words: "And no other bill, the title of 10 146 REVISED RECORD. [Friday, which indicates its subject or subjects, shall embrace any other subject." Mr. Veeder — Will the gentleman allow me to ask him a question? Mr. Barhite — With pleasure. The Chairman — The Chair will hold that the gentleman cannot be interrupted until he has completed what he has to say. When he has, I will recognize the gentleman. Mr. Veeder — I understood the gentleman to say that he was willing. Will the Chair hold that he is unwilling? The Chairman — The Chair will hold that he is not willing. Mr. Barhite — We know it is a common thing in what are com- monly called general bills, at times to include one or more different subjects. Under the Constitution, as it stands at the present time, we can have a bill, the title of which indicates that it relates exclu- sively to banking, but it is within the power of the Legislature not only to enact laws with regard to banking, but under the same title it can enact laws with regard to insurance, and a man who might be interested in the insurance law would go to this statute, and seeing from its title that it referred to banking, would pass it over and thereby possibly miss the very thing he was looking for. Now, my attention has been called to an instance which illus- trates the point I have in mind, and I think that my distinguished friend, the gentleman from Onondaga (Mr. Alvord), will tell me whether the facts are as I state them. I understand that a number of years ago there was a certain enactment made with regard to the city of Syracuse. It was supposed that that enactment had been made, or some time after it was passed it was found out that there was such a statute somewhere, and it took them four or five years to find out where in the statutes it was, and when some man did find it, it was in the annual appropriation or supply bill. Now, it is that kind of legislation that this proposed amendment seeks to avoid. If there is anything that is obscure in its language it ought to be changed. I don't think there is, but, perhaps, as it came from the committee, of which I am a member, and I heard the expressions there pro and con, my mind may be more clear on the subject, but it seems to me, in its present form, it intends to express what the author means to provide against. Mr. Veeder — Mr. Chairman, I was going to inquire of the gentle- man, if he will explain to me, ia the event there was a bill in the Legislature to amend the Code of Civil Procedure or the Penal Code, how would you manage to express the subject in the title? August 24.] CONSTITUTIONAL CONVENTION. 147 The Chairman — The Chair is now willing that the gentleman should answer the question. Mr. Barhite — My opinion is that it would be to amend section so and so of the Penal Code, and then any man would know or could find out what that section was, and he would not be in anywise misled by the proposed amendment. Mr. Hawley — Mr. Chairman, I move to amend by striking out the word "indicates" in the last line of the amendment and insert the word '' expresses," so that the phraseology of the amendment shall correspond with the preceding part of the section as it now stands in the present Constitution. That being done, it seems to me that this provision is an entirely proper, intelligent and desir- able provision to be inserted in the Constitution; that it does give to the public in the title of a bill some information as to the sub- jects that may be treated of in the bill. The provision as to private or local bills is already taken care of, and has received abundant construction, and I believe it has been entirely well settled now that a bill to amend the charter of the city of New York, under whatever charter that may now exist, will authorize an amendment of any part of it; that the whole charter is but one section. But as has been well illustrated in the discussion already, it is quite possible now to entitle a bill an act in relation to banks and to incorporate in that bill provisions in relation to railroads. Now this amendment authorizes the leaving out of any words expressive of the particular subject which is embraced in the bill, and in that event the public is put upon its guard and may look at the bill, but if any subject is mentioned in its title, then the amendment requires that all the subjects which are treated of in the bill shall be men- tioned in its title. So that if a bill in regard to banking and insur- ance should be passed under the title of an act relating to banks, it would be invalid. It involves the necessity of saying in the title of the bill that it is an act in relation to- banks and insurance, and that I understand to be the whole force and purport of this amend- ment. .It seems to me that it is quite clear in expression, conveys exactly the proper idea and that it would be wise to adopt it. Mr. Veeder — Just a moment, Air. Chairman. This is confined as I understand its language, only to bills where you want to express in the title the contents of the bill. But if you don't want to make any expression in the title, you can put anything in the bill you please. Where a bill indicates certain subjects in its title, no other subjects shall be in the bill. If you don't indicate it in the title there is no restriction. That is the language as it stands there. 148 REVISED RECORD. [Friday, Mr. Johnson — This amendment does not cause that. It simply leaves it where it is in regard to that. Mr. Doty — Mr. Chairman, I offer the following amendment. The Chairman — There are two amendments pending already, and another one cannot be entertained at present. Mr. Doty — I offer it as a substitute. The Chairman — For the whole amendment? Mr. Doty — For the matter in italics. The Chairman — The Secretary will read the proposed substitute. The Secretary read the proposed substitute as follows: Instead of the part in italics, insert "and no other bill shall embrace any subject not expressed in its title." Mr. Spencer — Mr. Chairman — The Chairman — The Chair holds that the proposed substitute is an amendment and cannot be entertained until the other amend- ments are disposed of. Mr. Spencer — Mr. Chairman, as I understand it, the purport of this measure was clearly stated by the gentleman from Kings (Mr. Veeder), and it was not the intention of the author of this pro- posed amendment to go so far as proposed by the amendment which has just been read by the clerk. I will give an illustration that I came upon a few weeks since. It was a general bill in relation to highways. It did not have anything in its title indicating that it contained any other subject, but in a part of the bill there was a provision in relation to the incorporation of medical societies. Now, I ask what lawyer would ever expect to examine a law, the title of which expressed a subject as relating to highways, to find out whether it applied to medical societies or not. It is an evil of that character and that only, that this bill is intended to remedy. Mr. Schumaker — Mr. Chairman, I supposed that Mr. Johnson's amendment was for a single-headed bill; that you could state in the heading of the bill what the bill contained in relation to one subject. The word " subjects " is what I complain of. A bill which can be passed, containing, as a gentleman on my right says, refer- ence to highways and medical societies and corporate institutions and a lot of other things, I do not think this Convention ought to be bothered with. I do not think this Convention ought to put into the Constitution any such provision, that there can be a bill passed with a dozen headings relating to a dozen different subjects. That is my objection. I object to the word " subjects." It contains a sort of omnibus into which you can chuck everything at the end August 24.] CONSTITUTIONAL CONVENTION. 149 of the session. It is a great evil. I am in favor of a bill that con- tains only a single subject and relates only to that subject. I object to any amendment that permits an omnibus bill at the close of the session of the Legislature. It is a dangerous proposition. Mr. Griswold — Mr. Chairman, I don't see but one objection to the proposed amendment. Now, as I understand it, if it is a general bill then you must state, if you state any subject at all, you must state them all. That is the effect of it. Now it is not requisite that in a general bill the subject should be stated at all. I suppose the reason of that is that if it is a general bill it might require so exten- sive a statement, that it is not requisite. So that you must either in the title of the bill state all the subjects, or there is none at all, for safety to make it correct. Now, if you don't want to state all the subjects, if you are fearful of doing that, why then you would leave your bill without any heading at all. You don't know what your bill is. That is the only objection that I can see to it. I don't want to antagonize the measure, but it seems to me that is the objection: that the bill will have no heading. Mr. H. A. Clark — Mr. Chairman, I have not spent a great deal of time in examining this proposed amendment of Mr. Johnson but I am in favor of the amendment. As has been said, the first part of this amendment in relation to private and local bills is in the Constitution at the present time. The amendment relates only to general bills; that if a general bill attempts to express its subject or subjects in the title, then the bill shall contain no legislation except on the subjects expressed in the heading. Now, Mr. Chair- man, as I understand the Constitution, in a general bill there is no need of a heading now. In general legislation a bill may com- mence with the enacting clause and then with section one without giving any subject at the head of it. In that I think I am right. This amendment does not interfere with that being done. You may pass any general legislation without any heading to it at all except- ing the enacting clause; but if the Legislature does put a subject at the head and say that that bill is in relation to water rates or in relation to insurance or in relation to banking, then you shall not smuggle something into the act in relation to a railroad com- pany. With this amendment in the Constitution, I do not see why you cannot include in one act just as many subjects as a person sees fit. or as the Legislature sees fit, but you must not. if this becomes a part of the Constitution, put in the heading of a bill one subject and then include in the bill two or three other subjects. The amendment does not say that every subject must be at the head of a bill, but if the bill indicates its subject or subjects, then 150 REVISED RECORD. [Friday, it shall embrace no other subject or subjects. It seems to me on examining it carefully and studying it that its language is perfectly clear. Mr. Moore — Mr. Chairman, there are some dangerous features in this bill, for all it looks so innocent, and it seems as if it would do a certain amount of good. The main good that it will do, Mr. Chairman, is that if this Convention adopts it and the people adopt it, it will make those who draw bills more careful to study what is contained in those bills. Every lawyer knows in hunting laws upon subjects which he is obliged to hunt for, the difficulty often- times of finding the exact statute to which he wishes to refer and although I did not feel extremely friendly in the committee in which this amendment was considered, and of which I am a mem- ber, I voted for it on the ground that of two evils this was the least, and, therefore, I will vote for it here as reported by the committee. Mr. Cochran — May I ask the gentleman from Kings (Mr. John- son) a question as to this bill. The proposed amendment now reads, "the title of which indicates its subjects." Well, if it indi- cates the subjects there will be no trouble. Would it not be well to insert " pretends to indicate the subject." Mr. Johnson — Mr. Chairman, it seems to me that this is hyper- critical. Here are railroads, banks and insurance. You get passed an act in relation to them or saying an act in relation to railroad companies and insurance. You get passed an act in rela- tion to corporations and have all three in. You could have an act for the better government of the city of New York and have them all in, because it is all within the title. But if you say banks and leave it there, don't say corporations. If you use specific words then your bill must follow. The word " subjects " is a word that has had prodigious amplification and is known to be a word of large meaning as construed in the preceding phrase. Mr. Bigelow — Mr. Chairman, the first question that we should ask ourselves in considering this measure is what is the object of placing this restriction upon the Legislature? If I understand what that object is, and I think I am not mistaken, it is that all per- sons interested in the bill that is to be introduced shall know what it is and that it is to be introduced. If we can give the parties interested notice that a bill is to be introduced of a particular char- acter in any way, I care not how, it is a matter of no importance how it is described in the title or whether it has any title at all. Now, it strikes me that this is rather better suited for a rule of the Legis- lature than for a constitutional provision. It is not in the power of August 24.] CONSTITUTIONAL CONVENTION. 151 this Convention to prescribe a rule in regard to the definition of the contents of a bill sufficiently to prevent litigation, and I will go further and say that it is not practicable to describe it sufficiently not to provoke litigation. Every bill when that clause has been adopted, should it be adopted, and I certainly hope it will not, will as long as this Constitution lasts be subject to attack on the ground that it was not sufficiently defined. You never can fix a time when any man can consider that a bill passed under that act will not be open to assault by litigants. As the object, and the only object of this provision is, to give notice to the parties, I marvel that the committee did not follow the example of all other parliamentary gov- ernments in the world that I know anything about, and provide so far as private and local bills are particularly concerned, that they should be published, that they should be advertised a certain period of time before they are introduced, in order that all parties interested might know what their contents were, and that if then occasion for amendments should arise, they could give notice to the parties, and that amendment, if accepted, should also be advertised. Then when it comes into the Legislature the parties interested have an oppor- tunity of being heard. But this is not enough. I would like to ask the gentleman who introduced it, in case a bill should pass, by whom, how and when is the constitutionality of that bill to be tested? Mr. Johnson — In answering the gentleman from New York, I will say that it is to be tested by the court at any time that it is desired, precisely as are private or local bills which are under the limitation of the earlier section, the section already in the Constitu- tion, and in the same way. Mr. Bigelow — Mr. Chairman, there is nothing in this provision that provides for any forfeiture or penalty in case the bill is not in conformity to it, and, therefore, it is liable, as I said before, to be attacked at all times while this Constitution is in force, and long after parties supposed their titles quiet and the thing as settled, they will be liable to have this thing assailed. Now, in the oldest parliamentary government in the world — the English gov- ernment— no private or local bill is ever permitted to come into the parliament house until it has not only been advertised repeatedly, but reported on by an official examiner, whose duty it is to examine and certify that it has been advertised, and that the rules of parlia- ment have been complied with in all respects, so that when it does come into the house, the house is prepared to act upon it. That notice is what we ought to have. I introduced into the Conven- tion an amendment looking to such a result. The committee did not see fit to entertan it, to my regret, and though it might not have been 152 REVISED RECORD. [Friday, the wisest course, we would have secured a notice to parties inter- ested, which is precisely what I suppose the gentleman from Kings desires to procure, but which he does not accomplish by his present provision. Mr. Choate — Mr. Chairman, I fully agree with what Mr. Bige- low says about this amendment, and I hope that unless some very radical change can be made in its structure that it will be voted down. My first objection to it is that it il utterly unintelligible, and every citizen would have to be provided, at the public expense, with Johnson's dictionary in order to realize what it does. (Laughter.) If the mover of this intends to put general bills on the same footing with private and local bills, why doesn't he say so? The amendment proposed by Mr. Cas- sidy meets that objection. It puts public bills on the same footing as private and local bills; that they shall embrace but one subject, and that that subject shall be expressed in the title. Now, I sub- mit that that would be a very dangerous innovation to introduce in regard to public and general bills. To require that public and gen- eral bills shall express in the title every specific subject contained in them is a new departure in legislation, and one that, it seems to me, ought not to find a place in our fundamental law. It would be extremely dangerous on the ground that Mr. Bigelow has set forth ; that if upon careful scrutiny it was found to express something that was not in the title, the law would be declared void, and, further, ought to be declared void. If, on the other hand, as it seems to me to be intimated by this very peculiarly drawn amendment, that a bill may be enacted without a title, I protest against it. A title is an absolute necessity, and it ought not to be applied to general bills that they shall be void, because it is that he means, it anything, unless everything expressed in the bill is expressed in the title. I hope this amendment, unless it is very radically changed, will be voted down. Mr. Doty — Mr. Chairman, I move that the committee rise, report progress and ask leave to sit again. The Chairman put the question on the motion of Mr. Doty, and it was determined in the negative. Mr. Johnson — Mr. Chairman, I very much regret that this sub- ject is not understood. There is no suggestion here that a general bill may not embrace a hundred subjects. There is no suggestion here that the subjects must be indicated in the title. That is not the law to-day, and not the Constitution. The single and only suggestion is this, that if the bill undertakes to tell in its title what August 24.] CONSTITUTIONAL CONVENTION. 153 it is about, it shall not go outside and include any other subject. Now, the statement is made that, if a bill has anything outside its title, it is utterly void. It is not so, Mr. Chairman, because a gen- eral bill that exceeds its title is in precisely the same predicament, if it have a subject as a local bill, and it has been decided a hundred, a thousand times that a local bill that goes beyond its title is valid, except so far as it goes beyond its title. Now, the reason that the words were used here that are used, is because they are words that have been construed very often. The word " subject " has been construed, amply construed. I think, sir, however, that if an amendment were made of this kind, " the title purports to indicate the subject or subjects," it would meet the objection that seems to be made. Now, let us start off with this : There is no require- ment now that a general bill shall state its subject. This does not intend to make any such requirement. There is no requirement now that a bill may not have a hundred subjects. This bill does not intend to say so. It only says that if it does make a subject of specific import, then it shall not go outside, and leaves the conse- quences to the well-settled rule of law, that in so far as it contra- venes the Constitution it is void. Mr. Jacobs — Mr. Chairman, then practically, in order to save and avoid any question and to preserve great interests the only thing that could be done when the Legislature passes a general law is, that it shall pass it without any title whatever, and that is the practical end to which we will be drifting if we adopt the present language, and that will be a very fine exhibition for the Legislature of this State to make, that it cannot express the subject in the title. I hope that we will not make any such exhibition of ourselves to the people of this State. Mr. Woodward — Mr. Chairman, it seems to me that a bill that expresses general subjects, a general bill, should at least have some title to it, and I would ask that this proposition that a general bill should state the topics treated of in the bill, so that we may have something when we read the title of the bill of what is embraced in the bill. It should mention the topics. It need not describe the subjects, but if it embraces a number of different subjects, it should state the topics in a very few words, and that will give whoever looks at the bill some idea of what is embraced in the bill. Now, no general bill should be passed without a heading of what is expressed in the bill. The lawyers will all make mistakes in running through the session laws, if they find no headings to show what is embraced in the bill. There may be a hundred things embraced in I54 REVISED RECORD. [Friday, the bill, but if there is no mention of the topics whatever that are embraced in the bill there will be no telling what is in the bill. Mr. Veeder — Mr. Chairman, I move that the committee do now rise, report this proposition to the Convention, and recommend that it be rejected. The Chairman — The Chair holds the motion out of order, as there are two amendments pending. The first question will be on Mr. Hawley's amendment. Mr. Hawley moves to strike out the word " indicates " in the last line, and insert in place of it the word " expresses." The amendment of Mr. Hawley was lost. The Chairman — The question now is on the amendment of Mr. Cassidy. Mr. Cassidy — I withdraw my amendment. Mr. Veeder — I move that the committee now rise and report this proposition to the Convention and recommend that it be rejected. Mr. Mantanye — Mr. Chairman, it seems to me that this proposed amendment ought to pass and that the objections that have been urged here against it are entirely groundless. Now, if it had been put into this proposition that every general law must state its object in the title, it would have been objected to upon the ground that it was a radical change in the Constitution. General laws in all States, and always in this State, have been permitted without stating all of their objects in the title. When they did not state it in the title, the object of them, that is a notice to everybody that they should look at the bill that is proposed, but when an act states in its caption and in its title that it is for a certain purpose, as they very often are and may be, that is a notice to whoever sees the bill proposed to become a law. It is for that purpose, and the object of this amendment is to prevent bills being made in that way, having at their head a title stating that it is for a certain object, and then have something else carried through under that false banner. The words here are very clear. First, that no private or local bill which may be passed shall embrace more than one subject, and then this other provision in regard to other laws which do indicate or express the subject, shall not embrace in them any other subject. Now, there is nothing about that that any one can take an exception to, and is a very proper thing to provide against. There have been abuses that have been carried through under just that kind of titles which this provision is intended to meet. I am surprised that when a proposition for an amendment contains such August 24.] CONSTITUTIONAL CONVENTION. 155 plain words as this does, that somebody should imagine there was something hidden in it that was wrong. If .the proposition had been to provide fifteen or twenty justices to the Supreme Court that had never been elected to that office, or add to the number of judges in the Court of Appeals of this State, it would have been voted for without question; but because it has a plain meaning, there is a supposition that there must be something wrong about it by every- body who has not been taken into the confidence of the mover of the proposition. Now this proposition was fully considered in the committee, and we reported it unanimously, believing that it was a good proposition, and I hope it will not be adversely reported to the Conventon by the Committee of the Whole. Mr. Abbott — Mr. Chairman, I desire to offer a substitute for the amendment proposed by Mr. Johnson, and if it is in order I will send it to the Secretary's desk. If it is not, I hope Mr. Veeder's motion will be voted down in order to enable me to offer a substitute. The Chairman — The Chair holds that the pending question is on the motion that the committee rise and report against the amendment. Mr. Abbott — Mr. Chairman, I hope that motion will be voted down to enable me to offer the substitute which I will read: "To strike out the italics and insert, ' and every bill shall indicate in its title every subject embraced in said bill.'" The Chairman put the question on the motion of Mr. Yeeder, that the committee now rise and report the amendment adversely, and it was determined in the affirmative, whereupon the Committee of the Whole rose, and President Choate resumed the chair. Mr. Cookinham — Mr. President, the Committee of the Whole has had under consideration proposed constitutional amendment, printed No. 388, entitled "To amend the Constitution in relation to the title of bills," have made some progress in the same, and have instructed the chairman to report adversely thereto. Mr. J. Johnson — Mr. President, I move that that lie on the table. The President put the question on the motion of Mr. Johnson, and it was determined in the affirmative by a rising vote. The Secretary called general order No. 22 (printed No. 389, intro- ductory No. 120), introduced by Mr. Barhite, to amend section 6, article i, of the Constitution, giving the Legislature power to pass certain laws. Mr. Barhite — Mr. President, I move you. sir. that the Com- mittee of the Whole be discharged from further consideration of 156 REVISED RECORD. [Friday, general order No. 22, and that the proposed amendmem be rejected. I desire to briefly explain my reasons for that motion. This was a proposed amendment introduced by myself, providing that the Legislature shall have power to pass laws authorizing either party to a criminal action or proceeding, except in capital cases, to have process for obtaining evidence without the State. When I intro- duced that measure I had assumed, and several lawyers with whom I had talked about the matter had assumed, that that provision in the United States Constitution and in the statutory bill of rights of the State, which provides that every defendant in a criminal action shall be confronted by the witnesses against him, meant that he should be confronted by such witnesses upon the trial of his case. An examination of the matter shows that not only the General Term of the First Department, but the Court of Appeals have dis- tinctly held that that provision simply means that once during the course of the judicial proceedings the defendants shall have an opportunity of being confronted by the witnesses against him, and to have the opportunity to cross-examine them. Now I certainly never intended to prevent the defendant in any criminal action from having the opportunity, at least once in the proceeding, of exam- ining the witnesses who might appear against him, and, therefore, in my mind, there is no doubt that the Legislature has full power at the present time to pass just the laws which I intended to assist them in passing by this amendment, and I do not desire to take up two or three or four hours of the time of this Convention in dis- cussing a matter which is not necessary. The President put the question on the motion of Mr. Barhite, and it was determined in the affirmative. The President — Is the acting chairman of the Committee on Rules ready to report upon the matters referred to it? Mr. Root — Mr. President, the Committee on Rules have instructed me to report upon the resolution introduced by Mr. I. Sam Johnson (R. No. 179), "Resolved, That the Committee on Rules be requested to report an amendment to rule 21, by adding after the word 'day,' in the sixth line, the following words: 'And if not so moved on a second call, it shall go to the foot of the calendar of general orders;' the following amendment: 'In rule 21, in line 6, strike out the words 'lose its precedence for the day,' and insert instead ' go to the foot of the calendar of general orders.' " The President — What action will the Convention take upon this amendment, offered by the Committee on Rules, to rule 21 ? August 24.] CONSTITUTIONAL CONVENTION. 157 Mr. Veeder — Mr. President, that will not apply to what has occurred in reference to the call of the general orders, will it? The President — No. As I understand it, the Committee on Rules proposes that when the calendar of general orders is called and any general order is not moved, it shall go to the foot of the calendar. Mr. Veeder — That is, hereafter? The President — After some day to be fixed by the Convention. Mr. Bowers — Mr. President, I move that that rule do not go into effect until Tuesday morning. Mr. Root — Mr. President, I should think that that would be fair. There are a number of gentlemen who have been excused from attendance on Monday, and a number on Saturday, and some of them, doubtless, for sufficient cause. It would be rather hard that any one should go away, relying upon the rules as they exist, and find upon his return that although he had been excused by the Convention, the rule had been so changed that a measure in which he was interested had gone to the foot of the calendar. Mr. Marks — Mr. President, I think that Saturday ought to be excluded from that rule. We have a very light attendance upon Saturday. The President — Has the gentleman ever been here on Saturday? Mr. Marks — Yes, sir; I have been here every Saturday that the Convention has been in session, and I think the attendance has been so slight that a general order should not be moved upon that day. Mr. E. R. Brown — Mr. President, it seems to me that to post- pone the effect of this rule until next Tuesday would put a premium on absence from this Convention. The gentlemen who remain here on Saturday have a right to have the business of the Convention proceed the same as on any other day in the week. If this Conven- tion is to hold sessions on Saturday, let the members attend on that day. I am not willing to have this postponed, as is suggested. It seems to me it ought to take effect at once. The President — This does not prevent the call of general orders on Saturday. Mr. Brown — No, Mr. President, but it is a notice to any gentle- man who neglects to be here and attend at that time that he will not suffer thereby. Mr. Bowers — Mr. President, the difficulty with the situation is this: We have excused a great many gentlemen who have gone 158 REVISED RECORD. [Friday, away knowing that the rules were in a certain condition. If this is adopted they might come back here and find matters in which they are interested at the foot of the calendar. It seems to me that the position taken by the gentleman from Watertown (Mr. Brown) would be in effect to say that on a moment's notice we deprive you of a privilege which you supposed you had when you went away, and we would be justly charged with some measure of unfair- ness. I cannot see that there is the slightest justification for our proceeding without giving all an opportunity of being heard on the roll-call. If Tuesday is not long enough I am quite willing to make it Wednesday, but I supposed we would be here on some general orders on Monday. The President — Monday has been assigned for a special order, the report of the Committee on Cities, which will undoubtedly take all that day. To-morrow, when general orders are moved, any order not moved will lose its precedence for the day. Mr. Alvord — Mr. President, I desire to say that we have passed by the time of fairness or unfairness. It is our duty, as the fifteenth of September is approaching and near at hand, to do our work. I trust this will go into effect to-morrow morning, as it ought to do. Gentlemen who have absented themselves here for various reasons have absented themselves for their own pleasure and convenience. They have left us here working each and every day, to act in regard to these matters according to our ideas and our pleasure. I trust the amendment to the rule will prevail, and will prevail so as to take effect to-morrow morning. Mr. Bowers — Mr. President, in view of the declaration of one of the oldest members of this Convention that the days of fairness have passed and those of unfairness have commenced, which we are quite willing to accept as a declaration in reference to things that are soon to take place, I will leave it with the majority to say what course they will pursue, and withdraw my motion. Mr. Alvord — That is right. Mr. C. B. McLaughlin — Mr. President, referring to the discussion which has occurred here as to fairness and unfairness, I will say that it hardly seems fair to some of us who have to remain here over Sunday that we should have to reserve these different bills simply at the mere whim or convenience of delegates who happen to be absent. It does not seem as if it was treating those who remain here with fairness. As I understand it, we have already a rule by which any member of this Convention can move any proposed amendment whether the mover moves it or not, and, therefore, it is August 24.] CONSTITUTIONAL CONVENTION. 159 not an element of unfairness that the mover of a proposition is not present or does not know of this rule, because when he absents him- self he does so with the full knowledge of the fact that any member of the Convention may move the bill in which he in interested whenever it is reached. I hope this amendment will take effect to-morrow morning, and upon that, Mr. President, I move the pre- vious question. Mr. Dickey — Mr. President, I move the amendment that was proposed by Mr. Bowers that it take effect on Tuesday. Mr. I. S. Johnson — Mr. President, this resolution was offered the forepart of the week, and as I understand it, it was the duty of the committee to report within three days. Every one knew that the resolution had been offered — The President — Did I understand Mr. McLaughlin to move the previous question? Mr. McLaughlin — I did, Mr. President. The President — Then the gentleman from Wyoming is out of order. The President put the question on whether the main question shall now be put, and it was determined in the affirmative. The President — The question is on the adoption of the amend- ment to rule 21, offered by the Committee on Rules. Mr. Dickey moves an amendment. The Chair is of the opinion that the amend- ment comes too late, after the previous question had been moved. Mr. Dickey — Then the only way I can be heard, Mr. President, is by voting down this resolution. The President — Did Mr. Dickey offer his amendment before the previous question was moved? Mr. Dickey — I did, Mr. President; or I intended to. The President put the question on the adoption of the amendment offered by Mr. Dickey, and it was determined in the affirmative. The President — The question is now on the adoption of the amendment as amended, the effect of which will be that on and after Tuesday next a number called and not moved shall go to the foot of the calendar. The President put the question as stated, and it was determined" in the affirmative. The President — Have the Committee on Rules anything further to report? Mr. Root — Mr. President, several resolutions relating to a 160 REVISED RECORD. [Friday, change of the rule as to Saturday sessions were referred to the com- mittee to be considered by them, and the committee reports adversely upon them. The President — That seems to require no action. The Secretary will proceed with the call of general orders. Mr. Holls — Mr. President, I move to make general order No. 61, which is the article in regard to education, a special order for Monday next and succeeding days, after the disposal of the report of the Committee on Cities, if it should be possible. Mr. E. R. Brown — Mr. President, I regard the setting down of these matters reported to the Convention so far in advance, particu- larly where they are of a nature that they will take up so much of the time of the Convention, as a very pernicious practice just at this time. The Committee on Legislative Organization is about to report a plan for the reapportionment of the State. Much criticism has been made upon the course of that committee by the minority of this Convention, because the report has been delayed until this time, and the more recent criticisms have been that other important matters are likely to crowd this important matter out from its due consideration before the Convention. I hope that if any resolu- tion in relation to special orders is to be adopted by this Conven- tion it will be with an amendment attached thereto that it shall not prevent the prior consideration of the subject of apportionment, if the Convention is ready to consider it. I, therefore, move to amend the resolution so as to provide that it shall not interfere with the consideration of the report of the Committee on Legislative Organ- ization, if the Convention shall be ready to consider it. The President — The Chair holds that the motion is not ger- mane to Mr. Holls's motion, which is to set down for a particular day. The Convention will do it or not, as it pleases. Mr. Root — Mr. President, . I hope the Convention will do it. The question of considering and acting upon the report of the Com- mittee on Education is one that we must dispose of. There are many things before the Convention which may be very good meas- ures or very bad ones, but it is not necessary that we should pass upon them. This is a thing that we cannot go back to the people without acting upon. It is here ready for us to act upon, and I hope we will arrange to act upon it as soon as possible. Let us attend to matters that we must pass upon, which are before us, at the earliest possible day, and do our duty in regard to them. I hope the Convention will comply with the request of the chairman. Mr. Hottenroth — Mr. President, if I recollect rightly, the August 24.] CONSTITUTIONAL CONVENTION. 161 Foresty Committee report is made a special order for Monday even- ing. I would like to know whether that is the fact or not? The President — That is the fact. The question is on Mr. Holls's motion, that the report of the Committee on Education be made a special order for Monday and succeeding days, after the report of the Cities Committee has been disposed of, and this requires a two- thirds vote. The President put the question as stated, and it was determined, by a rising vote, in the affirmative. The President — The Chair is overruled by the Secretary and his assistants, who say that the report of the Committee on Rules, which has been referred to, adverse to these various resolutions, must be agreed to by the House, or disagreed to. The question is now on agreeing to the report of the Committee on Rules, adverse to Mr. Pratt's resolution in respect to Saturday sessions. Mr. McKinstry — Mr. Chairman, I do not propose to antagonize the report of the Committee on Rules, but I would like to make some little statement that, perhaps, has not been thought of by the delegates or the committee. The first train that leaves in the after- noon for the west is at one o'clock. By that train I can reach my home, three hundred and fifty miles away, a little before ten o'clock. It accommodates not only me but all the members in western New York. The next train, at two o'clock goes east and south, and is very convenient for members going in that direction. At three o'clock there is a train on the Delaware and Hudson road, which takes members in that direction ; and it does seem a little hard that we should be kept here simply long enough to miss all those trains. We would have been glad to meet earlier Saturday morning, or to sit more hours on Friday. We want to do our duty to the State as much as any other members here; but we live a great distance away, and we do feel that we ought to be allowed to go home occa- sionally. We are not able to keep our families here, and we ought to give our business some little attention. It seems to me that an arrangement of this kind might be made that would accommodate us, and still take care of the work of the State. I have supported the President and the committee in all their reports and resolutions. I sat here Saturday afternoon and witnessed the most unseemly, I would almost say disgraceful, scene that has occurred in this Con- vention since it began. I shall be here to-morrow at my post of duty, and I hope those scenes will not be repeated: but T anticipate that the attendance will not be large. Supposing we barely have a 11 162 REVISED RECORD. [Friday, quorum. There is no man here with a good measure who wants to move it before a bare quorum, and to give a carefully prepared address before a lot of empty benches. It seems to me that the amount really to be gained by this Saturday afternoon session is more imaginary than real. My idea would be to refuse excuses for Saturday morning, and have a good, strong business session of three hours, from nine to twelve, letting those who desire to leave go at that time. I simply say it would be an immense accommo- dation to a great many of us who live at a distance, and I hope the Committee on Rules will find it in their hearts to accommodate us. The President — The business of the Convention cannot be done in Chautauqua county. Mr. Pratt — Mr. President, I think the experience of the last two weeks has shown conclusively that we cannot do any business here on Saturday afternoon. The only excuse for attempting to have sessions in the afternion is to secure an effective session in the morn- ing, and it is my opinion that the amendment that I propose to the rule will secure a full working session in the morning; and, as I say, that is all that can be accomplished by attempting to have sessions in the afternoon of Saturday. The President — If the gentlemen stay here there is no difficulty in conducting the business of the Convention. Mr. Dean — Mr. President, I think I shall have the sympathy of the Convention in moving the previous question. The President put the question on whether the main question shall now be put, and it was determined in the affirmative. The President put the question on agreeing to the report of the Committee on Rules, reporting adversely upon the resolution offered by Mr. Pratt, and it was determined, by a rising vote, in the affirmative. Mr. Marks — Mr. President, I should like to inquire what became of the resolution introduced by Mr. Goeller this morning, which was referred to the Committee on Rules, providing for one session? The President — They have not yet reported upon that. The Secretary called general order No. 23 (introductory No. 146, printed No. 390), introduced by Mr. Roche, to amend section 13 of article 3, as to" the passage of bills by the Legislature. Ceneral order No. 23 was not moved. The Secretary called general order No. 24 (introductory No. 215, printed No. 391), introduced by Mr. Becker, relating to grants. August 24.] CONSTITUTIONAL CONVENTION. 163 General order No. 24 was not moved. Mr. Dean — Mr. President, I believe it is very evident that no one will move anything to-night. I, therefore, move that the Conven- tion adjourn until to-morrow morning. Mr. Davies — Mr. President, I ask the gentleman to withdraw his motion for a moment. The motion of Mr. Dean was withdrawn. Mr. Davies — Mr. President, there is a convention in my Assembly district to-morrow, in which I am interested. A friend of mine is a candidate, and I want to go home and help nominate him. I desire to be excused for that reason. The President put the question on the request of Mr. Davies to be excused from attendance, and he was so excused. Mr. McDonough — Mr. President, I move general order No. 25, introduced by myself, to amend article 3, relating to the employment of prisoners. The President put the question on the motion of Mr. McDonough, and it was determined in the affirmative. The Convention thereupon resolved itself into Committee of the Whole, and Mr. Dean took the chair. The Chairman — The Convention is in Committee of the Whole on general order No. 25 (printed No. 392), introduced by Mr. McDonough, " To amend article 3, relating to the employment of prisoners." The Secretary will read the amendment. The Secretary read the amendment as follows: Proposed constitutional amendment to amend article three of the Constitution by adding a section to provide for the occupation and employment of prisoners in the State prisons, penitentiaries, jails and reformatories in the State. The Delegates of the People of the State of New York, in Convention assembled, do propose as follows: Article three of the Constitution is hereby amended by adding another section, as follows: " Sec. 26. The Legislature shall by law provide 'for the occupation and employment of prisoners sentenced to the several State prisons, penitentiaries, jails and reformatories in the State; but no person in such prisons, penitentiaries, jails or reformatories shall be required 1 64 REVISED RECORD. [Friday, or allowed to work while under sentence thereto, at any trade, industry or occupation, wherein or whereby his work or the product or profit of his work shall be farmed out, contracted, given, or sold to any person or persons whomsoever." Mr. McDonough — Mr. Chairman, the question of prison labor has been a very serious one in this State for many years. It is a question that has caused a great deal of trouble and a great deal of agitation, and has prompted the Legislature to pass many laws regarding it. The object of this amendment is to try to settle those very troublesome questions and settle them for good. The first sentence provides that the prisoners shall work; that they shall be occupied and employed as they ought to be. The second clause provides that after January i, 1897, the products of their labor and their labor itself shall not be farmed out or sold to out- side parties. The object is to prevent the selling of the goods manufactured by these prisoners or to sell their labor. The next provision is that they shall work for the benefit of the State or any political division in the State; in other words, it provides that they may do any kind of work that is necessary for the State or for any of the institutions in the State that are owned and controlled by the State, or any public division of the State. The evil complained of by many people, by manufacturers, by storekeepers, by tradesmen and by workingmen, is that this competition of prison labor is most injurious to them. The State of New York has gone into the busi- ness of manufacturing. The State of New York has gone into the business of manufacturing in competition with its own citizens and not without great injury to those citizens. There are nearly thirty- five hundred prisoners in our State prisons. There are probably seven thousand prisoners in the penitentiaries. They have all gone into the business of manufacturing and selling goods. Now, it is claimed by honest people, by industrious people, by free people, that it is unfair to put them into competition with felons. In 1882, one of the great parties of this State pledged itself in its platform, to do away with contract labor in the prisons of this State. That party carried this State by over one hundred and ninety thousand majority, and when it came to the Legislature, it had not the courage to keep its promise. It tried to adopt the referendum. It sent back to the people for an expression of their views upon that question as to whether they wanted the contract system of prison labor abolished or not, and the answer came by an overwhelming vote in favor of abolishing the contract system. There were 405,882 votes in favor of abolishing and only 266,966 against it. So, that it was carried by a majority of 138,916. August 24.] CONSTITUTIONAL CONVENTION. 165 But the people that voted to abolish the contract system did not seed the party back who failed to do its duty in 1893. They sent another party to the Legislature, and that party did abolish the con- tract system in words but not in fact. They said that the State and the penitentiaries of the State should not '-^ntract for the prisoners. They should not let them out for so much a day, and they adopted, in its place, two systems, one called the public account system and the other called the piece-price system. Now, the public account system was the contract system in another manner. Instead of letting the prisoners out at twenty-five or thirty cents a day to work on shoes, they can now make shoes at so much a pair. Under the public account system, the State buys the material, manu- factures it, and sells the manufactured goods. Under the piece- price system, the prisoners are let out to work at so much per piece. They may cut granite as they are cutting it, at so much a foot, if you please, for the stone. They may manufacture shirts at so much a dozen, and that is the piece-price plan. Now, when the people of this State voted against this contract system, they did not vote to bring into use something worse, but that was the effect of the change. The contract system is not nearly as injurious as the State account plans or the piece-price plan, and for this reason, that, under the contract system, the contractor took all the risks of the employment. If property was injured, he bore the loss. If there were no profits in the business, he lost. The State takes all the risk now. If no money is made by the sale of the manufactured article, the State suffers the loss. The State suffers the loss of all the wear and tear. . Under the old system the con- tractor suffered the loss. Nay, more, under the old system the contractor tried to get the largest price he could get in the market. It was for his interest to make as much money as he could out of the business, and hence he sought the largest price. To-day it does not make any difference whether the State makes any money or not. You are all behind it; the taxpayers of the State are behind it, and the loss may be made up by them. So, that the competition in price is greater than it ever was, and I tell you, gentlemen, that the prison price fixes the market price. I heard an old gentleman from one of the broom factories in the Mohaw7k valley say to the committee here that the price of brooms fixed at Auburn prison is the market price, and that if they sold in Auburn brooms at two shillings a dozen less than the manufacturers at Amsterdam sold them, that was the market price and they had to come down. We had petitions from all over the State in favor of this proposi- tion. One hundred labor organizations, with a membership of forty 166 REVISED RECORD. [Saturday, thousand petitioned for this proposed amendment. Not only that, Mr. President, but I have bundles of letters from manufacturers all through the State. The Convention here adjourned until Saturday morning at ten o'clock. Saturday Morning, August 25, 1894. The Constitutional Convention of the State of New York met at the Assembly Chamber, at the Capitol, Albany, N. Y., August 25, 1894. President Choate called the Convention to order at 10 A. M. The Rev. A. Kennedy Duff offered prayer. On motion, the reading of the Journal was dispensed with. Mr. Goeller — Mr. President, I received a telegram this morning informing me that my wife is ill, and for the purpose of putting myself above suspicion, in view of the fact that I yesterday made a motion for adjournment, I would like to state to the Convention that I had my family living here at Albany, and my wife became unwell. I removed her to Orange county, and she has been quite unwell since. I received a telegram this morning, also, asking me to wire by which train I would reach there. If I could leave an hour before adjournment, or an hour and a half, I could very well make it. The President — At what hour? Mr. Goeller — If I could leave on the 2.40 train it would enable me to connect. The President then put the question on excusing Mr. Goeller, as requested, and he was so excused. Mr. McKinstry — Mr. President, it is quite necessary that I should go home to-night, and owing to the long distance it is almost impossible to get back here by Monday. I can say that practically it is impossible. I have been here at every session continuously for two weeks, and I shall be here this afternoon. I simply ask to be excused for next Monday. The President put the question on excusing Mr. McKinstry, as requested, and he was so excused. Mr. Giegerich — Mr. President, I desire to be excused from attendance at this afternoon's session. The President put the question on excusing Mr. Giegerich, as requested, and he was so excused. August 25.] CONSTITUTIONAL CONVENTION. ^7 Mr. G. W. Clark — Mr. President, I ask to be excused for Monday. The President put the question on excusing Mr. Clark, as requested, and he was so excused. Mr. Forbes — Mr. President, I desire to be excused for this afternoon's session. My reason is this. I waived my excuse last Monday and remained here. I have three children who are ill. I want to see them. I can only see them by leaving at two o'clock. The President put the question on excusing Mr. Forbes, as requested, and he was so excused. Mr. Galinger — Mr. President, I have been unwell during the whole of this week. I went away last Saturday afternoon and asked my colleague, Mr. Johnson, to present my excuse to the Conven- tion, but I understand that he was not permitted to do so. I would like to be excused this afternoon. The President put the question on excusing Mr. Galinger, as requested, and he was so excused. Mr. Foote — Mr. President on account of business which I am obliged to attend to, I ask to be excused on Monday. The President put the question on excusing Mr. Foote, as requested, and he was so excused. Mr. E. R. Brown — Mr. President, Mr. Nicoll informed me late last evening that he had received a very urgent telegram, calling him to New York, and asked to be excused this morning. The President put the question on excusing Mr. Xicoll for the day, and he was so excused. Mr. Cochran — Mr. President, was there not a special order for this morning? The President — I suppose this is a morning on which regular business can be disposed of. If there are any memorials, petitions, resolutions or motions, they are in order. If not, Mr. Dean will please resume the chair. Mr. Dean in the chair. Mr. Dean — The Convention is in Committee of the Whole on general order No. 25. Mr. McDonough has the floor. Mr. McDonough — Mr. Chairman, when we adjourned last even- ing, I had just concluded explaining the different modes of employment of the prisoners in this State. I tried to draw the dis- tinction between the contract system, the public accounts system and the piece-price system, and endeavored to show the various 168 REVISED RECORD. [Saturday, interests and industries that are being carried on in the prisons now. I read from the report of the Superintendent of Prisons for 1894, so that you may see how numerous and how varied are these industries : In Sing" Sing prison there are 100 men employed in the shoe industry, 152 in the rag industry. In making overalls and clothing there are 313 employed; in the stone industry, that is, cutting granite by the piece-price, there are 84. In the brush fibre industry, 98, and in miscellaneous industries, 275. That is a total of 1,022. In the Auburn prison, according to the last report, which was made a month ago, there were engaged in the broom industry, 10; in the collar industry, 60; woodworking industry, 12; marble industry, 35; furniture and cabinet industry, 134; hollow-ware industry, 100; iron casting industry, 100; machinery and tools industry, 23; brass industry, 94; stone shed, 50; canning industry, 29; horn industry, 28; pearl industry, 60, making a total of 735. In road building, there were 41 engaged, and in constructing buildings, 102. At the Clinton prison in the industry of making boys' waists and ladies' waists, 55 persons were employed; in making wrappers and skirts, 117; in the scoop shop, 5; in the chair industry, 93; in the pressing- department, 41; in the tin toy industry, 151; making public roads, 85, a total of 457. This makes the total number employed 2,214. I have not the number employed in the penitentiaries in the various industries carried on there, but it may safely be estimated at several thousand more in somewhat similar industries. Mr. Osborn — Mr. Chairman, will the gentleman permit a question? The Chairman — The Chair will hold that no questions are in order until the gentleman has finished speaking. Mr. Osborn — The gentleman from Albany is giving some sta- tistics, and I desire to ask a question in connection with those par- ticular statistics. It will be forgotten, perhaps, later. The Chairman — Will the gentleman give way for a question? Mr. Osborn — I desire to ask whether you have any figures show- ing the number of men employed in those industries in free labor throughout the State? Mr. McDonough — I have not. Mr. Osborn — So that you are not able to say what percentage of the labor of the State is represented by the people that you name as being employed in those capacities? Mr. McDonough — No; I only know that the labor bureau has recently investigated that subject, and has reported to the Governor August 25.] CONSTITUTIONAL CONVENTION. 169 that more than the percentage allowed by law is employed in the prisons in certain industries, for instance, the broom industry. The Governor, in his goodness of heart, he having direction of this, has ordered them to discontinue to a certain extent, and he has also directed that marble cutting be done away with as soon as possible. And this brings me to another proposition, which is this: This question was not settled when the anti-contract law of 1894 was passed. The agitation went on. It was found that the doing away with the contract system, as I stated last night, was of no benefit at all, practically speaking; and accordingly a commission was appointed in 1885 to investigate. That commission went through the State and came in with a report. That report was not satisfactory, or at least it was not adopted. The agitation went on and the dissatisfaction went on until finally, in the year 1888, the subject was considered of so great importance that the Governor of this State called a special session of the Legislature, in August of that year, for the purpose of settling it. Our political party had the executive, and the other party had the Legislature. When they got here they found that it was an important political year, and that had its effect on both parties. They were determined to settle the question, and to settle it to the satisfaction of the people of the State. So they passed an act at that special session, which I will read to you, and upon which my proposition is based. The first section of that act is this (chapter 586 of the Laws of 1888): " No motive power machinery for manufacturing purposes shall be placed or used in any of the penal institutions of the State." I do not go as far as that. If these prisoners are to be engaged in industries, if they are to make roads and make shoes for the inmates of the institutions of the State, and make clothing for the institutions of the State, they ought to be allowed to use machinery to do it with. But this went further; this provided that no motive-power machinery should be used in any of the penal institutions of the State. It went further, viz.: "And no person in such institutions shall be required or allowed to work, while under sentence thereto, at any trade or industry where his labor, or the production or profit of his labor, is farmed out, contracted, given or sold to any person or persons whomso- ever." That is my amendment substantially, except that instead of using the words " penal institutions of the State " I use the words that are found in all the statutes, " prisons, penitentiaries, reforma- tories," and so forth, and I purposely avoided using the words " penal institutions of the State " because a judge of the Supreme Court of this district took out the good that was in it by construe- 1?0 REVISED RECORD. [Saturday, tion, and that is the usual result with about every labor measure that is passed by the Legislature. Some judge construes it to mean nothing. Let me tell you how he construed it. He said "penal institutions of the State" meant penal institutions owned by the State, the property of the State, and the penitentiaries are not owned by the State — they are the property of the counties. Think of this interpretation of a remedial statute, intended to do away with the mischief of prison competition, receiving so narrow a construction. Think of the mischief in every prison, the mischief in every peniten- tiary of the State, and the mischief that would be done away with by that statute throughout all these institutions, for there are three times as many prisoners in the penitentiaries as in the State prisons; but this learned judge said that it did not apply to the penitentiaries of the State at all. Now, that law if it had been properly con- strued and carried out, would not have settled the question for the State. I objected to that law. I met the leader of one of the partes on the stairs here and said: "What are your prisoners going to do? " He said: " Let them pull grass." I said: " That is no answer, sir. The working people of this State do not want these prisoners to remain idle." We had hearing after hearing before our Prison Committee on this proposed amendment. We filled this room. We had the representatives of about every labor organization in the State here. The State Trades Assembly held a special session in this city, and this was one of the most important matters they considered, and they voted unanimously against main- taining the prisoners in idleness. Some gentleman asked, " Will you be satisfied, no matter what other employment they may be put at? " "Anything, but do not sell the products of their labor." Why, these gentlemen, I am told, would be satisfied if you put them at improv- ing the Champlain canal, which has never been finished. Now, they have gone as far as that; they simply say, "Do not sell the goods outside." The act of 1888 was a mere political makeshift. I am sorry to say that the party that gained the most by it, and the party that carried the State in 1888 forgot their pledges in 1889. In 1889, we had enacted what is called the Fassett act, a revision of the prison laws of this State, and it went right back to the State account system and to the piece-price system, with some little flourishes thrown in about corrigibles and incorrigibles that amounted to nothing and that unsettled the matter again. The outside people were not satisfied. Hence the people engaged in the manufacture of fur hats and wool hats came to the Legislature, and because they had votes behind them, the Legislature passed an act providing that there should be no more hats manufactured in the prisons, and August 25.] CONSTITUTIONAL CONVENTION. i?I that cut off that industry, and it is cut off to-day. Pretty soon the molders found that in Sing Sing Prison the prisoners were making sixty thousand stoves a year, and the molders came here. They were organized throughout the State; they had votes, and the Legislature passed an act providing that there should not be to exceed one hundred men engaged in molding in all the prisons and the penitentiaries of the State, and in all the reformatories of the State. They did not say this time, " penal institutions of the State; " and so that industry was cut off. A little while afterwards the shoe- makers found that there were being manufactured in the prisons one-eighth of all the shoes made in the State of New York; and while they were making these shoes they did not make the shoes used in supplying the prisoners themselves. In the Albany Peniten- tiary, at a time when they were making twenty-five hundred pairs of shoes a day for the market, they did not make the shoes for their own use. They bought them from other parties. When they were making fine shoes here, the New York Shoe Company had a con- tract under which they employed these men at about thirty cents a day making the finest shoes, using the most improved machinery, working every minute of the day. Do you think that a manufac- turer here in Albany, paying $1.50 or $1.75 a day to his workmen, could compete with these goods that were made here in prison when they were paying thirty cents a day to their men? It was ruinous to the Albany manufacturer and every other manufacturer, because, as I say, the prisons put one-eighth of the product of the State of New York upon the market, and that made the market price; and that is the mischief about this. And so the shoemakers and the shoe manufacturers organized throughout the State, and they came up here and secured legislation so that to-day only one hundred men are permitted to work in the shoe industry in all the prisons and all the penitentiaries and all the reformatories of the State. A little while ago our friends down at Sing Sing made a contract for printing. They put in a printer's plant. This time it was not the working people alone that were concerned. The great firm of Weed, Parsons & Company, which had fought the unions all through, joined hands with them, and other employing printers joined hands with them and came here and said: "No printing in the prisons." And there were votes behind them, and so the Legis- lature did away with the printing plant. Now, I see they have struck something that there are no votes behind, and now I appeal to you men who are so gallant that you say you will take care of the women when they have no votes, to the men of this Convention who have pledged yourselves always to take care of them. I find from 172 REVISED RECORD. [Saturday, this report that there are six hundred convicts at work in the State prisons alone making women's wrappers and skirts, making boys' waists and making overalls. They have attacked the women now, and there are no votes. None at all. Well, it may be, and I believe it is, a fact that the men who spoke here on the suffrage question and said they would take care of the women, will do it; and now is your opportunity. So, one industry after another has been driven out; and now come the prison superintendents, who say: "We cannot make any money now." Well, when we cannot make any money by manufacturing in the prisons, it is about time to stop and see what we can do with these men. This remedy proposes that these men shall work; that they shall work for the State, work for the county, or the city, the town, the village, the public institutions, any public institution. You may do work in a State prison for an alms- house in Chautauqua, if you like. The Committee on Charities have brought in a report showing that there are eighty thou- sand people in the charity departments of this State depending on the State for support. They must be clothed; you must have shoes for them; you must have bedding for them; you must have beds for them. Put your prisoners at making all of these things. I was surprised, I was agreeably surprised, on a visit to the penitentiary in New York city, when the Charity Committee went there, to find that one of the most experienced prison men in the United States was superintendent of that prison — Mr. Pills- bury. He had eight hundred able-bodied men there at work. I saw them working. I said: "Mr. Pillsbury, do you sell any of the products of this prison? " '' Not a dollar's worth." '' How can you occupy your men here? " "1 keep them busy working for all the departments of the city, and keep them busy every day and every hour of the day during which they are required to work." I said: " Could you, if you were superintendent of the prisons of this State " — and he was once, I think: he certainly was in the Albany Peniten- tiary — " could you find employment for these prisoners without selling the product of their labor?" "I could." I know he could, and 1 know that any able, honest man could do it if he tried. We find every year the prison influence on this Legislature. Why are these men so anxious? There is no proposition here to take their salaries away from them. No one proposes to cut down their pay at all. Why are they so anxious as to what the State of New York shall do with its prisoners so long as they are kept busy? I know it will be said that when this act of 1888 was passed, men went insane for want of employment. The clamor did go out from Sing Sing that they were going insane for want of work. It did not August 25.] CONSTITUTIONAL CONVENTION. 173 come from any other prison. But I see now that there are six hundred idle men down there. Why does not the clamor go out that the present system makes men insane? Have you heard about the six hundred men there becoming insane? We had a practical, level-headed man in the Albany Penitentiary when this law of 1888 was passed. His men did not become insane. He sent them out filling up the hollows and leveling off the hills on the grounds, and he found plenty for them to do, and he so improved those grounds that they would sell to day for fifty per cent more than they would have sold before those improvements were made. I am told that about that time they established a military drill at the Elmira Reformatory, simply to keep the men exercised. They marched them up and down, and I am told that that worked so well that they have retained it to this day. I have heard of many men going insane through worry and excitement, and from hunger, but it is vary seldom that a man goes insane who is well housed, well fed, well clothed, who has a physician any time he wants to call him, who has his religious exercises every week, who has his library at his hand every idle hour. But here is an opportunity to keep these men employed, and we give the State two years to make the neces- sary changes; we give the State until 1897. Two Legislatures will have convened in the meantime, so that there is ample time allowed before we make this change. Now, it is said that we should teach these inmates trades so that they may work at them outside. The warden of one of the most important prisons in the State stated to us that about ten per cent of all the prisoners in the prisons reformed; not above that, and that between fifty and sixty per cent came back again. The trades they get amount to very little. One man may learn to make the heel of a shoe, another the sole, and another the upper, and when they get out of it is a question whether they have a trade at all. If it is desired to teach them shoemaking, let them sit down and learn the trade as the fellows did in old times, make them by hand, if you please, and learn the whole trade so that they may become cobblers when they come out. But these trades they are being taught now, making wrappers or corset waists, how many men will work at them when they come out? Making women's skirts, how many able-bodied men will work at that trade when they get out? Making children's waists, how many men will work at that trade? Making overalls, why very few will work at this trade when they get out. They have established at Clinton prison a toy factory to make tin toys, and they have established that industry because they say there is nothing like it elsewhere in the State of Xew York. Very well ; when the prisoners get out after I74 REVISED RECORD. [Saturday, having learned that trade where will they find employment? Nowhere. That is a mere pretext. We talk about our being a popular government. I found when we were considering the referendum that it was anything but popular. Why, do you know, gentlemen, that the wage-workers obtain more consideration from the English parliament than from our legislative bodies? I forgot to mention the other day when speaking of the referendum, that Lord Salisbury had come out in favor of it, and if we had known that my lord was for it, I know that we should have had many more votes in its favor here. (Laughter.) Now, New York State is the Empire State, and, as in everything else, it is the Empire State in the production of convict-made goods. I have here a report from the Bureau of Labor at Washington, a recent work, prepared carefully by the present Commissioner of Labor and Statistics, Carroll D. Wright, and from it I find that New York manufactured in a single year goods of the value of $6,236,320.96. She leads all the rest. Now, I am not afraid of a good thing merely because its " English you know." I differ therein from Governor Hill. In the debate on the income tax he said that he did not want it, because it was " English, you know." Well, if those Englishmen pay £13,000,000 a year for the support of the government, they receive protection in return, and it may not be a bad thing. Under the French system no prison goods are sold outside. I read from this report, at page 424: "The articles made by the convicts are the property of the government, and are never sold. In these prisons, the convicts work exclusively for the prison department, not even for any other public department. In one of them, for instance, a rather important number of male and female convicts is employed in making clothes for the penitentiary population. In the large central prison at Melun there is a printing office, which is operated only for the prison department's use, printing of official reports and administrative papers. In the agricultural penal settle- ments and in the reformatories for juveniles, convict labor is exclu- sively employed in providing for. the wants of the establishment or of other penitentiary establishments. Consequently, the prison department receives no orders for any products." Now as to the English system, the report says: "A sentence to penal servitude of male convicts consists of three parts: First, a period of strict confinement; second, a period on public works, and third, a period on license, if a remission of any portion of the sen- tence has been earned." That is what they call ticket-of-leave. " The first period of the sentence, in all cases, lasts for nine months, during which each convict works, sleeps and eats in his own cell. August 25.] CONSTITUTIONAL CONVENTION. 175 The men are employed in tailoring, hammock and bagmaking, shoe- making and matmaking, weaving, oakum picking, threading fire lighters, and basket making. The women during this period are mostly employed in needlework and knitting. " At first, a considerable quantity of the products thus made was sold ; but opposition to this on the part of the public was after a while aroused. The prison labor reform association requested the com- missioners, who were appointed in 1878, to inquire into and report on the working of the penal servitude acts, the nature, extent and value of the labor performed in the convict prisons, and also the manner in which manufactured articles were sold, and the prices obtained, and this was done. It was sought to lessen opposition to the system by employing the convicts, as far as possible, in the manufacture of articles designed for the use of the government departments. The tailors, for example, were employed in making garments for the convicts ; others, in making bags for the post-office, coal sacks, and hammocks and bags for seamen. Competition with outside makers was thus speedily reduced to small dimensions. " Among other employments was that of matmaking. After com- plaints arose, the product was confined, as far as possible, to such amount as was needed for public use. The prices were fixed at a certain sum per foot, but considerably less to the government than to outside buyers, the prison department having no object in making a profit from the government. Private dealers have always been eager to buy all that could be had, on account of the superior quality of the goods, and not because of their cheapness. During the investigation mentioned one of the witnesses, being questioned, on this point, declared that the prison prices never varied, and that therein lay the great inducement to the trade. On account of the strong opposition, however, the manufacture of these mats for out- side sale was discontinued in England. And this is also true with respect to nearly everything made in the prisons." Now, we see that this system has been found successful in Eng- land, successful in France. I want to call your attention to Massa- chusetts. Massachusetts is a State which is pretty well advanced on all the questions of the day, and Massachusetts has tried the con- tract system; Massachusetts has tried the public accounts system, and Massachusetts has tried the piece-price system, and they were all a failure. I hold in my hand the report of 1894, °f the general superintendent of prisons of Massachusetts and in reference to this subject he urges the Legislature to come to the system proposed here. He says: "It is well known that the State, through its penal, corrective and eleemosynary institutions is a very large consumer 176 REVISED RECORD. [Saturday, of manufactured products. Most of these products are such as could be quite easily manufactured by prison labor, the State being the purchaser and the consumer of its own productions. The irri- tation of free labor by competition with prison labor would be absolutely avoided, and the manufacturer would cease his com- plaints as to the injustice of meeting prison-made goods in the open market. There would be a constant, growing demand for these prison-made products, thus ensuring steady employment and a stability in the establishment of industries that would be of vast benefit to the discipline and welfare of the prison. A sure outlet would thus be made for the goods manufactured, without the expense, trouble and annoyance occasioned by seeking to dispose of the products through the regular channels of trade to say noth- ing of the risk of loss of accounts through failures and bad debts That this plan was eminently practical was evidenced by the reports obtained by the Committee on Prisons of the Legislature of 1886. Naturally, these returns were quite imperfect, but enough was given to show that the plan was entirely feasible. The population in these institutions has increased rapidly since 1886, and the con- sumption of manufactured products has kept pace with the increased population. "The Commonwealth is a very large consumer; the Common- wealth is also to a limited extent a manufacturer. This being self- evident, then why not manufacture such goods as can be used by the State itself in her many and varied institutions, without the intervention of any one but State officers. This idea may not be popular with the purchasing agents " — and what is true of Massa- chusetts is true of New York — " this idea may not be popular with the purchasing agents of many of our institutions, for reasons that may be obvious." And the reasons for that I will give you before I finish. Now, it has been found in this State within a few years that road making may be profitably performed by prisoners. Some thought that that could not be done. Clinton prison has solved the problem. Two or three years ago a law was passed permitting convicts to make public highways, and in the last report of the superintendent in regard to that matter, we have beautiful photographs of prisoners out on parade, making magnificent roads; we have their road machines illustrated, and we have a report from the warden of that prison showing that it has been very successful. I read from page 161 of the report: "Taking into consideration that the convicts only work eight hours per day, and that they, as well as their keepers, were inex- August 25.] CONSTITUTIONAL CONVENTION. 177 perienced in road making, the above showing is one that is entirely satisfactory." He gives figures before that as to the quantity of road work performed. He continues: "That a limited number of convicts can be worked successfully at road building is now an established fact, and that the road con- structed is a first class one is conceded by every one who has seen it." Road building goes on also at one of the other prisons, and the last Legislature was so well satisfied with the results that they passed an act providing that not to exceed 300 prisoners from each prison might be employed upon road making, or in all, 900 prisoners in the State. That is only one of the many things that they may do. Is it not strange that they do not make their own shoes in our prisons to-day? The warden of the Clinton prison says in this report, that he has just started the prisoners at making their own shoes within the last year, and that it is a marked success. Why should not they make their own shoes in every prison in the State? Why should not they make their own clothing, if they make overalls to sell outside? Why not put a woolen mill into the prison, and manufacture for all the institutions in the State ? They can do it. Four or five years ago they wanted a wall around Clinton prison, and $30,000 were appropriated by the Legislature, to a contractor, to build that wall; and I was told by the warden of that prison within a month that the wall was rotten, that the prisoners have had to rebuild it, and they are at it now. That is good work for them. The Legislature three or fours years ago appointed a commission to locate grounds for a new prison. The people of that beautiful city of Sing Sing are tired of the name Sing Sing while the prison is there. It seems to detract from the greatness of living there, to a certain extent, and I was told that they did not fancy having the prison there. The wardens have been clamoring every year for a new prison. They say that two men are assigned to each cell and in a well-regulated, prison that should never happen. Well, this commission located a prison site somewhere down in Ulster county, on a farm. The prison, however, has not been started as yet. Now, why not take up four or five hundred acres of rough ground there that is not of great value, in which stone may be found, and set the prisoners to building their own prison? That is one of the lines of work they have done on Blackwell's Island. There is a great stone quarry on that island and stone is quarried there, and ever}' time they put up a new building these prisoners are employed 178 REVISED RECORD. [Saturday, upon it. They built a sea wall around that island. They have improved that property so that New York to-day could get millions and millions of dollars for it if they should sell it. The system that was proposed by what is called the Yates bill, of which many of you have heard, provided that prisoners convicted of mis- demeanors might be kept in their own counties, each county having in that case only a few prisoners to look after, who might be employed upon a county farm, and raise enough to support them- selves. The warden of Clinton prison told me the other day that he was going to break up forty acres of ground this year on which to plant potatoes; let the prisoners plant them, and hoe them, and eat them ; and that is good work for them ; good, wholesome, healthy work. Now, these county farms would make a little colony in the respective counties almost self-supporting. With breaking stone for the road and all that, they could all be kept busy. Then vve should not have the spectacle of a penitentiary sending attorneys to Washington to induce the government of the United States to send prisoners here, and to Kings county and other counties, for the sake of getting the board money and work out of them. An attorney from Albany was sent to Washington some years ago to induce the government to send prisoners here, and hence we had prisoners from Texas, from the Carolinas and from Navassa Islands. What do we want them here for? They are not desirable for us. What is the sense of paying the expenses of an official to come from Texas to Albany with a prisoner? It is something outside the desire to have these men work. I see it has become the custom here to ascertain what other States are doing, and if we can in that way establish a precedent for a proposition, it seems to be favorable to it. I think New York ought to lead in this, as she leads in other things, and whether any other State has adopted a particular meas- ure or not ought not to make any difference with us, so long as it is right. But other States have profited by road making ; Alabama, California, Colorado, Dakota, Illinois, Indiana, Missouri, Nevada, 'North Carolina, Pennsylvania and others that might be mentioned. I am aware that some one may say, "How about the cost? Ought not our prisons to be self-supporting? Ought not these men to be made to do work, to pay for their care and their board, and their lodging, their medical attendance and their spiritual welfare?" I should say, not necessarily. Do you ask that the courts shall require people to pay costs enough, or fines enough, to support the courts of the State? Why, no. If the primary object is reformation, if the object is to make these men better, we cannot say that they shall necessarily pay for it. That is not an answer. But if any man August 25.] CONSTITUTIONAL CONVENTION. 179 holds that they ought to pay, then I meet him right there and say they do not. We are losing money by manufacturing goods in this State, and I will demonstrate it to you. The report of the super- intendent to which I alluded before shows that we have invested a capital of $1,497,222.24; that is, the plant, the money, the machin- ery. Think of that vast capital engaged in competition against out- side capital. In this last year there has been a deficiency in the three prisons of $477,266.97. Where have you made money? Why, all the materials bought and paid for at such prices as the purchaser sees fit to give, without any limitation, manufactured by these great State factories, then put upon the market, do not bring the cost of the raw material, or have not, for this last year. Our system is buy what you please, at whatsoever price you please, and where you please, manufacture in your prisons, and then sell at whatever price you please. Now, I want to read a few figures to this body, and, for the benefit of financiers, I want to draw their attention to some facts in connection with those figures. There are tables in this report showing the total cost per man for maintenance; and by maintenance is meant the care, the guarding of the prisoners, the feeding and clothing of the prisoners, the repairs of buildings, in fact every outlay made upon prisons. From the official report for the year 1887, I find that the average cost per man, in all the prisons, for every possible outlay, was $126.33 per year, for main- taining, feeding, clothing, making repairs, and guarding all the prisoners of the State. I compared the tables for 1887 with those of 1893. In 1893, when everything was cheaper, when these great factories were running with a capital of a million and a half, I find that the cost of a man per year for all expenditures was $138.38, or an increased cost as compared with 1887 of $12.05 Per man, or $42,175 per year. Why is this? But it may be said that possibly there was more money expended on prisons, on repairs and so forth, and that that is hardly a fair comparison. Very well, let us take what it cost to feed them alone, ordinary support, as they call it. The item of ordinary support is about twenty cents a day for a prisoner, and, by the way, it is a mighty poor man that cannot earn for the State of New York twenty cents a day. But the ordinary support in 1893 cost $77 a year for each man. The ordinary sup- port in 1887 cost $69 per man, or a difference of $7.63 per man as between 1887 an^ J893, or a total of $26,705. Were they feeding the prisoners better in 1893 than they were in 1887? I doubt it. What is the reason of this increased cost? Now, then, the deficiency this last year was $477,266.97. The State paid out so much and got back so much, and the difference — l8o REVISED RECORD. [Saturday, Mr. Peck — On the manufacturing and everything? Mr. McDonough — Everything. We cannot from these tables find just what we want, and we have to do the best we can with the figures that are furnished. These are official. The number of prisoners in the State prisons last year was 3,492. If you divide $477,266.97 by 3,492 it will give us the cost per man per year for every possible expense, and we have $136.67, ten dollars more than it cost in 1887 for each man. The consequence follows that these men could have been maintained in idleness, with not a dollar's worth of work done, or a dollar's worth of goods sold, for what the deficiency amounts to. Now, I do not want to see men maintained in idleness. But the plea has gone up from the superintendent of the prisons that these are hard times. I knew that this tariff law affected a great many people, but I did not know that it would strike the prisons of the State of New York. It seems, however, that the hard times have struck the prisons, and that is the excuse advanced for not making money during this last year. But, gentlemen, I will show you that they have not made money in ten years. I went to the Comptroller's office and asked him how much money the State paid out for all its State prisons in ten years and how much was received back, and I got a report. The report contained the items for each prison for each year, the amount paid out each year, and the amount received each year. If the committee will permit me, I would rather hand this state- ment to the stenographer and let him insert it. Mr. Chairman, if there is no objection, I would like to have it take that course. Mr. Deady — Mr. Chairman, I would like to ask the gentleman if he will give way for a moment for a question. Mr. McDonough — Certainly. Mr. Deady — I wish to ask the gentleman now, he having inves- tigated this question, as his speech shows, when the prisons of the State of New York were last self-sustaining? Mr. McDonough — I do not know that they were ever self-sus- taining, in the true sense of the word. Reports show that they make money in the prisons. I will tell you how they make money. They count nothing for rent, nothing for insurance, nothing for pro- visions, nothing for taxes, and nothing for support. Mr. Deady — Never mind what they count. In the last ten years what has the deficiency been, since the contract system was abolished in the prisons? Let us hear that. Has it not amounted to a million dollars? August 25.] CONSTITUTIONAL CONVENTION. igi Mr. McDonough — Those are the figures which I was about to give you, Mr. Deady, with the permission of the Convention. Mr. C. B. McLaughlin — Will the gentleman permit me a question? The Chairman — Will Mr. McDonough give way for another question? Mr. McDonough — Certainly. Mr. McLaughlin — I see you include in this provision the reforma- tories of the State? Mr. McDonough — Yes, sir. Mr. McLaughlin — Now, as I understand the theory on which prisoners are sent to the reformatories, it is that they may be saved to the State. I would like to have you explain under what arrange- ment you would have the Legislature provide for the employment of persons sent to the reformatories, and especially juveniles? Mr. McDonough — First, I would give them a thorough educa- tion. Secondly, I would not lash them as they are lashed in some of the reformatories in this State until they make savages of them. Thirdly, I would teach them trades, right in the reformatories. I would teach a man, or a boy, the whole of the shoemaking trade. The present law provides that in reformatories they may make walls and pull them down again, to make bricklayers of them. That is provided in the present law. The present law provides ail that, and I do not see that they learn any more by selling the product of their work than they would by manufacturing those goods and selling them to a public department. There is no difference. Mr. McLaughlin — Will the gentleman permit a further ques- tion? I do not think he gets the point of my inquiry. I am assum- ing that the reformatories in the State are good. I do not know whether they are good or bad. I assume that for the purposes of my question. Now, my question Mr. McDonough — I will say right here that the people that are sent to the reformatories are not good or they would not be sent there at all. Mr. McLaughlin — No; I say the reformatories of the State, I am assuming that they are good reformatories Mr. McDonough — You have no right to assume it. Mr. McLaughlin — The point of my question is, that there is an institution provided by the State for the purpose of reforming young people, saving them to the State. Now, why should we include 182 REVISED RECORD. [Saturday, them in a class with State prisons, penitentiaries and jails? In other words, the reformatory in theory is a school. Mr. McDonough — Very well, why should that school want to sell the product of its work any more than any other institution? My second answer is, that at the present time, the statute law pro- vides for reformatories. That is my answer. They can be well taught there, and the reformatory that you perhaps have in mind, includes boys up to the age of thirty years ; pretty old boys, some of them. Now, I have not received leave to have this statement printed, as yet, Mr. Chairman. If there is any objection, of course, I will read this mass of figures. If not, I will simply read the totals. The Chairman — Mr. McDonough asks unanimous consent to have certain statistics printed. Are there any objections? If there are none, it is so ordered. Statement showing the amounts paid to, and received from, the several State prisons during the ten years ending with September 30, 1893: AUBURN. Amount paid from Amount received State treasury. into State treae- Year. ury. 1884 $120,623 42 $1 15,408 09 1885 ' 370.495 55 166,542 84 1886 550,90404 385,67892 1887 729,57658 482,10845 1888 591,15061 759,07408 1889 176,824 84 103,916 77 1890 194,399 18 2,387 17 1891 137,60929 5,12828 1892 * 146,930 47 154,23433 1893 $168,50675 3,39392 $3,187,020 73 $2,177,872 85 * $150,000 of the amount of prison capital fund received during 1892 was turned into the State treasury during that year, so that the amount is included in both items of $154,234.33 and $330,656.13. t $30,000 of the prison capital fund used for rebuilding shops destroyed by fire in 1893. August 25.] CONSTITUTIONAL CONVENTION. 183 CLINTON. Year Amount paid from State treasury. Amount received into State treas- ury. 1884 $120,375 10 $46,899 74 1885 428,131 68 93,866 27 1886 532,202 05 359.890 88 1887 527,426 16 477>i95 95 1888 403,334 07 450,204 79 1889 171.683 58 273,264 18 1890 269,662 30 3,520 80 1891 267,15632 5.95I39 1892 1290,290 07 82,479 97 1893 242,18377 10,77397 $3,252,445 10 $1,774,047 94 SING SING. 1884 $191,866 59 $238,179 56 1885 188,60174 246,28460 1886 183,787 32 242,842 50 1887 340,85758 182,51949 1888 941,55307 900,76397 1889 223,033 02 82,149 36 1890 317,898 18 9,147 51 1891 293,578 09 8,306 88 1892 225,681 96 7,474 74 1893 215,04683 7,5857° $3,121,904 39 $1,925,254 31 Recapitulation. Auburn $3,187,020 73 $2,177,872 85 Clinton 3,252,445 10 1,774,047 94 Sing Sing 3,121,904 39 1,925,254 31 $9,56i,370 22 $5,877,175 ib t $75,000 of the amount of prison capital fund received during 1892 was turned into the State treasury during that year, so that the amount is included in both items of $82.479.97 and $212.025.04. 1 84 REVISED RECORD. AUBURN. [Saturday, Amount paid from Amount received prison capital fund. into prison capital Year. fund. 1884 I885 1886 1888 1889. $n,343 83 1890 $139.363 58 169,184 19 1891 203,201 72 269,992 1 1 1892 184,083 18 303,856 13 1893 168,380 63 240,066 70 $695,029 ii $994,442 96 CLINTON. 1884 1885 1886 1887. 1888.. 1889.. $2,68824 1890 $65,93731 87,87089 1891 227,069 67 308,748 89 1892 116,894 95 212,025 04 1893 252,02258 167,54894 $661,924 51 $778,882 oo SING SING. 1884 1885 1886 1887 1888 , 1889 $1,300 oo $9,541 25 1890 164,000 oo 187,284 06 1891 432,200 oo 477413 05 1892 665,39000 631,80359 1893..' 542,60000 596,55371 $1,805.400 oo $1,002,595 66 August 25.] CONSTITUTIONAL CON VKNTION. 185 Recapitulation. Amount paid from Amount received prison capital fund. into prison capital Year. fund . Auburn $695,029 1 1 $994,442 96 Clinton 661,924 51 778,882 oo Sing Sing 1,805,490 oo 1,902,595 66 $3,162,443 62 $3,675,920 62 Mr. McDonough — As will be seen from this statement, in ten years the total amount of money paid out by the State of New York for its prisons was $12,723,813.84; total amount paid back, $9>553>°95-72; leaving a deficiency of $3,170,718.12. Mr. Deady — Will the gentleman give way for a moment? The Chairman — Will the gentleman give way for a question ? Mr. McDonough — Certainly. Mr. Deady — Has it shown the statistics for the preceding ten years ? Mr. McDonough — I can say this, that I have examined the sta- tistics for the preceding ten years and there is a deficiency for that period also. Mr. Deady — I know; but is the deficiency anywhere near, pro- portionately, to the deficiency for the last ten years? Mr. McDonough — For the purpose of this argument, Mr. Chair- man, that amounts to nothing. The contract system has gone, and you can never reinstate it in this State. The people have said by a majority of 138,000 that the contract system must go, and no pub- lic man dare stand up before the people to-day and say that it must come back, and face the people at any time thereafter. It has gone. Now, then, with a deficiency of over $3,000,000 in ten years, with a capital $1,500,000 invested at five per cent, we have $750,000 more. We have, therefore, a deficiency of $3,920,718.72 in ten years; and that would support every prisoner in all the State prisons of the State in idleness. Where has the money gone that has been made in these prisons? I will admit that money is made. Where is it? Who has it? I will tell you who has it. I have examined every prison report for ten years to find out what the commissions were that were paid for selling prison goods. You will all remember that within two or three weeks, a scandal has arisen at the prison in Auburn, where the prison agent was not only selling the brooms manufactured in this State, but was buying brooms manufactured 186 REVISED RECORD. [Saturday, in the prisons of another State, and selling them, and the Governor has called him to task for it. You will hear more about that before this debate is over. Now, inadvertently, and through some strange means, unaccountable to me, the amount of commissions paid in one prison for selling goods for one year, crept into a report in the year 1887, and never have we seen one since. It shows the net results. But to show you how munificently these prison agents are paid, I want to call your attention to one item. In the statement of the receipts and expenditures for Clinton prison for the year end- ing September 30, 1887, appears this item: "Commissions on sales;" and I wish you would mark this, gentlemen, for it is quite important: "Commissions on sales, $29,930." The man that received that money is satisfied that the present prison system is the best on the face of the earth — three times the salary of the Governor for selling the goods of one prison, and that the smallest prison in the State, for one year's services. Let us multiply that by three and then we have the total for the State. It must be more than that, for more goods are made in the other prisons than in Clinton prison. On this showing, we have $90,000 a year paid as commissions for selling these goods manufactured in these prisons. If there is- money made, the money does not come to the State of New York ; and this may account for what has been called in this State the " prison ring," for the great anxiety on the part of these people who- are managing these prisons to have these industries continued, for their great love for the taxpayers, and their desire to save the tax- payers from paying out money. They have taken an extraordinary interest in this matter. Now, I think I may safely say that there is no profit for the State of New York in the business. There would be profit to the State of New York if these prisoners were working for the State. There is no question about that. Under the present law they may make goods for certain departments ; but, as I said to you a moment ago, they do not. The Legislature ought to, if this becomes a law, compel every public department to receive from the prisons, penitentiaries, reformatories, every possible article that can be manufactured there; and then they will become self-supporting in the State of New York. We would not lose this money by that operation. I suppose I will be met with the objection that is directed against many measures here, that this is not a proper pro- vision to be put into the Constitution. I say, gentlemen, it is emi- nently proper; it is eminently proper because it is a restric- tion put upon the Legislature ; it is eminently proper, because, from what I have said to you, it will be apparent that the Legislature has not clone its whole duty in regard to this mat- August 25.] CONSTITUTIONAL CONVENTION. 187 ter. And, as before, I may cite other States which have provisions regulating their prisons in their Constitution. Missis- sippi, after having tried everything else, has finally come to the adoption of this plan, and on December 31, 1894, the prisons are to begin working for the State, and only for the State, on roads, public works, and in manufacturing goods for the State institutions; and that is made a constitutional provision. It exists in the Constitution of Mississippi. An article regulating prisons exists in the Consti- tution of California; an article with regard to prisons and the employment of prisoners exists in the Constitution of Montana; there is such an article also in the Constitution of North Carolina. This subject is of vastly greater importance than many others that have a place in our present Constitution. We provide for the laying out of private roads in our present Constitution. Could not that have been left for the Legislature? We provide for agricultural leases; we say that no farmer shall lease his land for more than twelve years. Might not that have been left to the Legislature? We provide for a laying out of highways and alleys ; we provide for building bridges ; we provide for the publication of the statutes ; we provide for the security of the debts of corporations ; we define cor- porations; we provide an oath of office. Many of the things that are in the Constitution might more easily and more properly be left to the Legislature than this. But I find here that when any gentleman is opposed to a measure, he will say that it is not a proper thing to have in the Constitution. When he is in favor of it, it is just the thing to have in the Constitution. Well, as many as" favor this will have it in the Constitution if they can. Now, I do not wish to take up much more of the time of the Con- vention. I am a sort of an anomaly in politics, and have been so since I was a voter; and you will pardon me if I mention it. I was a Republican when a boy, because the Republican party was opposed to slavery; I was a Republican during the war, as a young man of eighteen or nineteen, when at school, because the Republi- can party was for saving the nation. I was a Republican after the war, because the Republican party was in favor of reconstructing the nation. I am a Republican to-day, because the Republican party stands for protection, protection for the manufacturers of the country, protection for the wage-workers of the country ; and I have heard it on the stump so often, and in so many varieties of phrase- ology that I never can forget it, that we ought to protect ourselves against the pauper labor of Europe. What about the prison labor of New York? Why, the pauper must make a living some way. The prisoners are cared for; they are fed; they are clothed by the 188 REVISED RECORD. [Saturday, State of New York. There is no danger as regards them. Why should they be put into competition with free men? Why not pro- tect us from these people; and if the Republican party is the party that I believe it is, it will protect us against these people. Mr. Smith — I would like to ask a question of the gentleman, if he will permit me. The Chairman — Will Mr. McDonough give way for a question by Mr. Smith? Mr. McDonough — Yes, sir. Mr. Smith — Would there be any objection to allowing the sale of the products of prison labor to foreign countries? Mr. McDonough — Mr. Chairman, there is just as much objec- tion to allowing the sale of prison products to foreign countries as there is to allowing the sale of the same products made in foreign countries here. The pearl button industry was ruined, four or five years ago, in New Jersey, by the importation of pearl buttons manu- factured in the prisons of Austria. We ought to put up our gates against that; we ought to change our tariff law to save us from it. I believe the Knights of Labor have a motto to this effect, that an injury to one is the concern of all. I do not propose that New York shall manufacture goods to make more paupers abroad than there are now. Let them alone. I do not believe that it is a natural right for us to send our prison-made goods to another country. (Laughter.) They might meet us there with a tariff law; they might stop us, and we cannot say, " gentlemen, we have a right to come here whether you like it or not." Mr. Maybee — I desire to ask the gentleman a question. Did he intend to intimate that the Democratic party was not in favor of saving the nation during the war? Mr. McDonough — I beg your pardon. I do not think any such impression has gone abroad, that I believe that the Democratic party was opposed to saving the nation; that is the Democratic party of the north. If there has, I wish to take it all back. There was hardly a Democrat south of Mason and Dixon's line that had not a gun in his hand aimed at the heart of the nation; however, there were many patriotic Democrats. General Grant was a Demo- crat before the war; Douglas was a Democrat before the war. Brady, of this State, was a Democrat. There were a great many patriotic Democrats; but the good work was done more by indi- vidual Democrats than by the party; for the party that declared the war a failure, in Chicago, 1864, did not represent the patriotic Dem- ocrats of the State of New York. August 25.] CONSTITUTIONAL CONVENTION. 189 Mr. Deady — I would like to have the gentleman give way for opportunity to ask a question. The gentleman has stated that the reason why this proposition is presented here is because the work- ingmen were unable to get legislation. I would like - Mr. McDonough — I beg your pardon. I did not state anything of that kind. On the contrary, I said that workingmen who could come here with so many votes got legislation. Mr. Deady — Then, I would like to ask the gentleman where there has been any indisposition on the part of the Legislature of this State to give the workingmen of this State any rights to which they are entitled, and if there has been no such indisposition, why this proposition is presented to this Convention? Mr. McDonough — Mr. Chairman, if the gentleman was as familiar with legislation at Albany as he is with questions in his own neighborhood, he would know better than to ask that question. Repeatedly, repeatedly, they have appeared here with a bill to abol- ish this system of prison labor, and repeatedly it has been defeated. Mr. Deady — How many statutes are there on the statute books now providing for the protection of laboring men by restricting prison labor? Is it not true that only five per cent of those in any prison can be engaged in any form of labor? Mr. McDonough — No, sir; that is not true. Not five per cent of those in any prison. It is five per cent in all the prisons, and consequently you can put 900 hundred men at almost any ,line of industry. But that is not true for all labor, either. It is only true as to certain labor, where there are more than fifty employed in it; but that applies only to certain things. Now, how many women are employed in making shirts? Mr. Deady — I will have to give that up. Mr. McDonough — Very well. Mr. Chairman, it is very easy to ask these questions. If the Legislature has done something for these people, and we ask for something more, that is just as proper, should it be refused because we have not done our whole duty? I am going to talk plainly to you. You talk of the unrest that is abroad. You are finding fault with the uprising of the working people throughout the State and throughout the nation. What do you do for them? They come here and recommend certain measures, and they are turned away every year from the Legisla- ture, and they are turned away by the men who are sent here every year by corporations of this State, by the paid attorneys of these corporations, and what little you give them is, just as I read to you, so construed that it is of no benefit. They came here and recom- 190 REVISED RECORD. [Saturday, mended a weekly pay bill, and it went out all through the country that the Legislature had done a great deal for them; and when the law got before the courts at General Term in the fourth department there was nothing left of it. They came up here and the Legislature gave them a so-called anti-Pinkerton law. There is no such law on the books. But certain people wanted an act called an anti-Pinker- ton law as an excuse for not employing Pinkertons, but for calling out the militia of the State. It is cheaper, it is more effective, and the railroads receive pay for their transportation. There is no anti- Pinkerton law on the statute books of the State, and I defy this gentleman, or any other, to point it out to me. It has been a fraud perpetrated on these people, and thus we turn them away every jyear. Now, they come here and ask for a reasonable measure, that which is right and proper, and are you going to turn them away? Why, stop and think a moment. Suppose the State of New York should put its 10,000 prisoners building a railroad from New York to Buffalo, to parallel the New York Central road. The State could •do it. Suppose the State should do that. Then it should sell that road to the highest bidder, what would the New York Central people say? What would the West Shore people say? They would come here and say it was paternalism, pure and simple, and that the State had no right to destroy their property; and you would listen to them ; you would never allow it. Whom are you attacking now? Why, you are attacking the wage-earners of the State. They are not as strong as these great bodies, but they have rights that ought to be protected equally. If you attempted to start a law school in the prisons — and I am sure you could make many expert criminal lawyers there — every law school in the State would say you must not do that. If you should start a medical school there, and fit these people to go out and heal the sick and bury the dead, all the doctors would say you mustn't do that. Has not a granite cutter a right to say that the State of New York shall not compete with him ? Has not the marble worker a right to say that the people shall not compete with him? Has not the man who makes brass bedsteads the right to say you shall not compete with him? The right is less in importance, perhaps, but it is a right, the right of self-preservation. I leave this matter to the Convention. I have done my whole duty, gentlemen ; you may do yours. I am not interested in this one iota. Personally, it does not affect me at all. If anything, it is hurt- ing me. It has, in a business way, hurt me for ten years to do something and say something for these men. If you have any sym- pathy for the needs of the people, these are the men that deserve it; August 25.] CONSTITUTIONAL CONVENTION. 191 and I am satisfied when they come here and ask for a measure that is reasonable, that is right, proper, and just, that they ought to have it. Mr. Francis — Mr. Chairman, in supporting the pending amend- ment proposed by the Committee on State Prisons, I speak for 14,000 collar girls, including a large proportion of that number engaged in the laundry industry. These are employed in the great establishments of Troy and in the outlying tributary districts. My advocacy as well is in behalf of their employers, and, I may add, the interests and welfare of more than 150,000 citizens of my district. Notwithstanding the legislation of 1892 forbidding the manu- facture of shirts, collars and cuffs and the doing of laundry work in the prisons and penitentiaries of the State, it seems that under the pretext of some previous contract the right was claimed and has been enforced by the management of the Albany penitentiary to extend the time of laundry work in that prison for a period of several years. So now it is alleged that fully 200 convicts in that institution are employed, equipped with the latest labor-saving machinery in carrying on this industry under contract. Thus, in contravention of the spirit and intent of the Worden prohibitory law of 1892, this convict competition is waged against the honest and industrious women who are engaged in that service. The effect is to diminish their wages and absolutely to throw out of employ- ment fully 300 worthy girls in this department of industrial activity. At Dannemora the Worden law is evaded by taking up another branch of similar industry which is or has been carried on quite extensively in Troy and vicinity. That is, the manufacture of boys' shirt waists, which has heretofore given employment to hundreds of women in the city of Troy. This convict competition has had a disastrous effect upon the industry, depriving large numbers of employment and of the means of livelihood. As an illustration, it may be stated that the convict goods are sold in New York at $1.25 per dozen, when in fact with anything like living wages they can- not possibly be produced for that sum. The plain, unvarnished facts afford an exposition of the situation demanding a constitutional mandate to the Legislature to take prompt and decisive action as required by the proposed amendment reported by the diligent, thoughful and very efficient Committee on State Prisons. I need not analyze the pending amendment. It strikes right to the point ; it is concise and admits of no misinterpre- tation. It means a positive prohibition of the shameless war upon women by the State through the agency of its convicts. It means a prohibition that shall prohibit the war by the State by 192 REVISED RECORD. [Saturday, means of its convicted felons as a working power against the legiti- mate and honorable business of its citizens. It means that the State shall at once and forever discontinue this disreputable business. It calls a halt; it says of this smirching of the body politic, "out, damned spot," and the constitutional washing will prove its purifi- cation. It commands a complete dissolution of the copartnership of the State with crime. It deals a most effective blow at that sordid, wicked selfishness that would profit by crime, and even reduce womanhood to unutterable suffering, that it may fill its purse with ill-gotten and shameless gain. So, in my humble but always earnest way, I speak in this matter for honored and industrious womanhood, and in the name of justice and for the good name of our imperial commonwealth, plead with you, gentlemen of the Con- vention, to protect this womanhood from further proscription by the adoption of the proposed amendment to the fundamental law of the State. Mr. Chairman, I hold in my hands a communication from the Collar Girls' International Association, addressed to this Conven- tion, authenticated by the signature of its capable president, Miss Mary F. Terry. It is a record of scandal, maladministration and wickedness almost indescribable, with cruelty most shocking, grow- ing out of the competitive convict labor system at Dannemora, and consequent upon the greed of contractors and their influence upon prison management to produce the largest amount of goods for their benefit. It is shown, by official and individual reports, that prisoners in this competitive work against honest, wage-paid indus- try, were compelled to work fifteen and sixteen hours a day, and that failure to perform tasks demanded of them, impossible tasks without the working so many hours, even taking their work to their cells at night, was visited with most inhuman punishment. The result was awful demoralization, fearful increase of disease, insanity and suicide. All this the result of convict labor farmed out, con- tracted for, to make war upon the honest business of law-abiding citizens and wage-earning labor by toiling womanhood. So I say the time has come for decisive action, to have a State houseclean- ing, a purification, a reform — the utter extirpation of this disrepu- table business on the part of the State. As to employment of convicts, the Chairman has discussed the matter in a clear and exhaustive manner, pointing out very con- clusively that it may be directed in a way that shall not, as at present, constitute a war upon business and the honest industries of our people. It is said that convicts should have employment. This is conceded as desirable ; nay, it is an essential factor to a policy August 25.] CONSTITUTIONAL CONVENTION. 193 of humanity. But they may be employed, the men largely in road making; the women in making up clothing for the convicts, and all more or less in work for the prisons. Without entering into detailed discussion of this question, the fact for illustration may be cited that in counties of this State where the jail prisoners are put to work on the streets and highways, the effect is most salutary in a moral as well as physical sense; the deterrent influence against vice is apparent; the army of tramps never make their appearance. Certainly our State prison and penitentiary convicts may be assigned to wholesome labor that will not involve war upon our important business industries, nor make felons a power to strike down the wage-earning industry of womanhood. The proposed constitutional amendment will be the entering wedge to achieve this beneficent result. Pass it and receive the blessings of toiling womanhood, the blessings of our best manhood, too, and the approval of the Higher Power that rules the universe and asserts with divine force His perfect and omnipotent will. Mr. Griswold — Mr. Chairman, I offer the following substitute by way of amendment. The Secretary read the substitute offered by Mr. Griswold as follows: Strike out all after the word " reformatories in the State," in line 5, and insert " as shall be for the best interests of the State having regard to the safe confinement in prison and welfare and improve- ment of the prisoners without other limitations." The Chairman — The question is on the adoption of Mr. Gris- wold's amendment. Mr. Griswold — Mr. Chairman and delegates of the Convention, I agree that this is an important subject which is now before this Convention. I also recognize the fact that we are here in Consti- tutional Convention where we should have regard for the interests of the State, 1 mean the interests of all the people, the greatest, the best interests of the greatest number. You cannot legislate in the Constitutional Convention for a few in any particular locality. This is not the first time that this provision, proposed here as a consti- tutional amendment, has been proposed for enactment into a law. It was first presented at a special session of the Legislature in July. 1888. I wish to state a few facts to delegates which they can verify for themselves, and then let them exercise their honest judgment, and I shall have nothing more to say. We have heard what has been said upon this subject, and much time has been taken in this 13 I94 REVISED RECORD. [Saturday, discussion, but there are a few facts which, if presented, I think will enable gentlemen to form their own opinions satisfactorily to themselves. I wish to state a few of the circumstances attending the original presentation of this provision to the Legislature. For some years prior to January, 1888, it was the law that labor should be per- formed in the several State prisons and in the penitentiaries, and it was provided by statute that the State should furnish requisite sums of money to purchase the raw material and provide for the other expenses of manufacture and carrying on the work in the prisons. For some reason or other there was a further law that the proceeds of these manufactures when disposed of, sold, should be turned into the treasury of the State. So you see that, whenever the money that had been appropriated for the purpose of purchasing the raw material was expended, the Superintendent of State Prisons had nothing in his hands to proceed with further, because he had to pay out every dollar that he received and give his vouchers and pay the proceeds into the State treasury. The result was, when that was done, that he was entirely out of funds. That was the situation prior to January, .1888. At that time, the Superintendent of State Prisons sent a most urgent request to the Legislature to provide means; stating that the money was about expended, and that the prisoners would remain idle and be shut up in their cells, and the State would lose the benefit of their labor. He sent two communications of that character to the Legislature, and the Legis- lature, after various delays, and after many prisoners had remained idle, granted about one-quarter of what was required and what was necessary in order to give the prisoners employment. The Legis- lature then adjourned without furnishing the means. So that the Governor was compelled in June or July to call the Legislature together at an extra session to provide means for furnishing the material and to set the prisoners at work. The prisoners were com- plaining; they were being sick, demoralized, and men in the prisons were saying, "We are getting crazy; save us; let us go to work." All of the delegates here, I think, must have heard of it and under- stood it at the time, and I know that there was a storm of indigna- tion all over the State. I do not know whether that Legislature was Republican or Democratic, and I would not go to that door to ascertain. I never have given it a thought, and I do not care which it was; but if there was vicious legislation there I want the Conven- tion to know it, so far as it may be material for its action. Now, at that extra session there was granted a small appropriation, not nearly what was required. It did not last, for that very year the August 25.] CONSTITUTIONAL CONVENTION. 195 prisoners were without labor, I think, for about nine months. Then, at the time of that extra session, as seen by the statute, they further enacted this vicious act, as I claim it to have been, which contained as its worst provision the very provision that has been embodied in this proposed amendment to the Constitution, that no motive power, or machinery for manufacturing purposes should be placed or used in any of the penal institutions in the State, including peni- tentiaries. And mark the further provision, "That no person in such institutions shall be required or allowed to work while under sentence thereto, at any trade or industry where his labor or the product of his labor is farmed out, contracted, given or sold to any person or persons whatever." See what an act that is. It is an actual prohibition against the manufacturing of everything to be sold or used outside of the penal or charitable institutions of the State. I wish I had time to read what the superintendent said was the condition of those prisoners. They were demoralized. They were without work, which he regards as most essential for their reformation; prevented their being taught trades so that afterward they might be able to get a living honorably and honestly. Now, the next Legislature, in 1889, 1 think the act was signed June sixth, passed another act which was known as the Fassett act. I presume Senator Fassett drew it, and was responsible for it. It was a most excellent and admirable act in some respects; that is, in regard to the care and treatment of the prisoners, and was a very good act generally, but it was defective in this, because it limited the employ- ment of the prisoners, it limited the industries to which the pris- oners could be put at work, to three per cent of the manufactures in the State of boots and shoes and clothing, and all others, as I read it, were limited to five per cent, and thus they are restricted now. Now, any intelligent man must know that the State prisons are, from their situation and circumstances, limited in the employ- ment that they can give to their prisoners. It is proposed here that they shall be sent out into the mountains and into the fields. Why, sir, it would require two guards to every prisoner. How could it be done? Again, they say, there are 300 girls at Troy in one place who want to make shirts, and I believe they kept the tariff up pretty well for them. I am a friend of the girls, but the delegates to this Convention must legislate for the State with due regard to their duties and their oaths of office. It is the State that we are to act for. Now, where is the great grievance that is complained of, if this State shall manufacture those things which they are so situ- ated that they can manufacture with its prisoners? There is no State line for commerce which prevents the transporting here and 196 REVISED RECORD. [Saturday, selling property from other States. Now, you cannot go into a village, a hamlet or a cross-roads store but you have got the shoes of Massachusetts or Connecticut which come here in great boxes, and you can see them in every shoe store. A millionaire can set up his manufactory of this same kind of goods here. Any man is a free man in this State so far as industry and manufacturing are concerned. Massachusetts can serfd any quantity of goods across the line, or any of the other States. Every man is free to set up in this State any number of manufactories of boots and shoes and ai! other articles. It is the taxpayers of this State who are concerned in this question — every poor woman with her children, who has a little house and lot, every poor man who owns a particle of real estate. It is the State that the great grievance is against here on the part of the few. It seems strange that all God's creation can manufacture what they have a mind to in the State, or can come into the State from outside and import all they see fit, and the only persons in the world who are prohibited are the taxpayers of the State. Is there any reason in that? The taxpayers collectively have as many rights and interests, I claim, as any individual has. They have a right to employ and engage in such employment as they see fit, and put their prisoners to such employment as they see fit. But it is said that the State prisons will manufacture and send their products out to the community to be sold at half price or a reduced price. Now, that is mere talk. If you have a proper officer to take charge of that, as we are presumed to have, and if we have not got them, they should be turned out and somebody else put in their place, but let them sell those products for all they can get. I do not believe that what they would manufacture of any of these dif- ferent kinds of articles will be more than a drop in .the bucket. Look at the country where these things may go. You have got all the western States, you have all the South American States and Cuba, and in fact the whole world is open to you. It is all talk about their reducing the price one-half. If that is so, then the products are sold for less than they are worth and by corrupt practices of the officers engaged in it. Suppose it is true that they make cheap shoes in the prisons. Where do they go? Who gets them cheaply, pray? It is the poor of the whole State and of the whole country. These poor people who use those things that are manufactured in the State prisons may be just as good as those clamorous people who come here. I see no grievance at all that people get those cheaply, if they do. Why is it that there must be this special legis- lation? Under this Fassett act now, the prisoners are limited as to the amount of their production, and the Superintendent of State August 25.] CONSTITUTIONAL CONVENTION. 197 Prisons is fettered and tied up by these vicious laws. I do not say but what the drafter of this Fassett act meant to do as well as he could; I say it is an admirable act, all excepting the restriction on industries in the State prisons to three per cent on shoes and cloth- ing and five per cent on other things, but there was probably part of the Legislature that forced them to do it, or would not allow the act to be passed. I would like to see an independent body like this that would not be influenced or carried away by any few individuals and pathetic clamorous talks about 300 girls. I think we should have a reasonable law, and let the prisoners do work, and make the prisons a paying institution. I believe from what I have seen and what I have read, that there is not the least difficulty, with proper legislation, in having the prisons self-sustaining, instead of the mil- lions of debt. I say that the species of legislation which brings about such a result is all wrong, and any intelligent man will say so. I have no more interest in this subject than any one else. I think this amendment is unnecessary in the first place. It has no business in the Constitution. I say that hereafter, the prisoners should have such employment as will tend to the best interests of the State. That is what we should look for, having due regard to the safety of the prisoners in the prisons, their reformation, education and wel- fare. I think the amendment I offer is drawn in such a shape that there will bec no trouble in its enforcement. There were, on the elev- enth day of this August, 329 prisoners idle because they are limited in the right to manufacture such articles as they could manufacture. If it is proposed that they manufacture shoes in these prisons up bobs the shoemaker and says, " I am making shoes, and you must stop manufacturing shoes in the prisons." If you are making rough clothes, up jumps the tailor and says he is making clothes and you must stop manufacturing clothes in the prisons. Why, the whole thing is a fallacy, in my judgment. This may not be popular, but I cannot help that. I submit this amendment ought not to be adopted by the Convention. I think this substitute is a right and proper thing, and then you will put an end to that sort of thing, I believe it is the proper thing to do. I presume this Convention will never adopt the proposed measure. (Applause/) Mr. Pratt — Mr. Chairman, ever since the proposed amendments introduced in this Convention have begun to be discussed here, complaint has been made that a large number of them were legisla- tive in their character, and not fit to be introduced in the funda- mental law of the State. Unquestionably, Mr. Chairman, a large portion of the mass of proposed amendments that have been intro- duced, and now sleep in committee, or have been passed upon 198 REVISED RECORD. [Saturday, adversely, are of a legislative character, and not fit to be put in the Constitution. It seems as though every person and every associ- ation of persons in the State that had a grievance endeavored to get a perpetual injunction against its continuance by putting in the Constitution that every one who perceived the shadow of a danger of any right belonging to him being transgressed, sought to pre- vent such transgression for all time to come by putting some pro- vision in the Constitution. Now, Mr. Chairman, it seems to me, that no proposed amend- ment which has been introduced in this Convention has that legis- lative character more thoroughly stamped upon it and is more unfit to be put in the Constitution of the State and become the funda- mental law of this commonwealth than the proposition which is now before this committee. If this proposition is put in the Constitution as it is sought to be put there, there is no telling what the effect upon the penal institutions of this State will be. There was a law passed in 1888, which was in substantial accord with the provisions of this proposition. That law was only tried, however, for one year. It was abrogated in 1889, and we have no criterion by which to determine what the effect upon the penal institutions of the State will be on the adoption of this proposed amendment. Therefore, before the insertion of any such provision in the Constitution, great care should be taken in investigating the matter and to ascertain if possible what the possible effects of the amendment will be. And I submit to this Convention that notwithstanding the very great, pains- taking care and the thorough knowledge which the chairman of this committee evidently has, he has been biased in his work upon this matter. He has heard only one side, and has made up his mind on the evidence produced by one side only. He has had before him on public meetings of the committee representatives from nearly all the labor organizations of the State, who claimed to be affected. I have yet to learn that he has had before him any one of experience or scientific knowledge; that the committee has had before it any warden, superintendent or manager of a State prison or reformatory. Mr. McDonough — Mr. Chairman, we did have a warden. We invited them all. We invited some superintendents of prisons, and one of the most experienced wardens of the State appeared before the committee. Mr. Pratt — Against the dozen or twenty representatives of labor organizations, then, Mr. Chairman, there was just one warden of the State prisons of this State, or of any of the penal institutions of this State, before the committee; and from that evidence the chair- August 25.] CONSTITUTIONAL CONVENTION. 199 man of this committee and the committee itself have made up their minds and given us this report. Now, Mr. Chairman, I will yield to no one in my desire to protect the artisans, laborers and mechanical industries of this State against unfair competition. That class is a large portion of the superstruc- ture of this commercial and industrial State, and it should be protected against unfair competition, unless such protection injures others or the State at large. But this matter of convict labor, Mr. Chairman, is a bugbear with the laborers, and especially with the professional labor reformers of the State. To reverse the familiar saying, they strain at a camel when it is only a small insignificant gnat that is waiting to be swal- lowed. The fact is, Mr. Chairman, that the amount of the products of the industries of the prisons and reformatories of the State is so small and insignificant in proportion to the products of the indus- tries outside of the prisons, that it is not worth considering. And in that connection, I desire to quote from the gentleman from whom the honored chairman of this committee has also quoted, the Hon- orable Carroll D. Wright, Commissioner of Labor Statistics of the United States. In his second annual report for 1889 is the follow- ing: "The prison population of the United States engaged in any degree of productive labor is 64,349; a proportion of the population of one in 930. The total product of all industries of the United States for 1880 was $5,369,579,191, and was produced by 2,732,595 employed, a per capita production of $1,965. The total product of convict labor was $28,753,999, by 45,277 convicts, being a per capita prison production of $635." He follows these statistics with the following remarks: " It is perfectly evident, therefore, that the competition arising from the employment of convicts would not of itself constitute a question worthy of serious discussion. The product of the prisons is but fifty-four one hundredths of one per cent of the total mechani- cal products of the country. The whole prison population of those institutions in which productive labor is carried on is but one in a thousand of the population of the country, and those engaged in convict productive labor but one in three hundred of those engaged in free mechanical labor." I shall also crave the pardon of the committee if I take a little time in quoting from the eleventh annual report of the Massachu- setts Bureau of Statistics of Labor, which says: " In productive skilled work in Massachusetts there are 2,333 convicts employed in all industries carried on in prisons, and there are 159,755 persons employed in like industries outside penal insti- 200 REVISED RECORD. [Saturday, tutions; that is, the convicts employed in the prisons of Massachu- setts upon productive skilled work constitute one and one-half per cent of the persons engaged in like industries outside of prisons. A casual look will show that no great industry in this State is in any danger of being absorbed by prison work." This, therefore, Mr. Chairman, is a great bugbear on the part of labor, and especially of the labor reformers. This whole matter should be left, Mr. Chairman and gentlemen, to the Legislature. I concede, and it is conceded by the Commissioner of Labor Statistics of the United States and the Massachusetts Labor Bureau, that if the entire force, or if any large proportion of the entire force of prisoners is concentrated upon any one industry, that industry may suffer serious damage. But it is within the power of the Legisla- ture to so distribute the industries, to have such a diversity of indus- tries in the prisons and reformatories of the State that no perceptible damage will result to any particular industry or to all of the indus- tries combined. Now, to show the ability of the Legislature to handle this ques- tion and to look out for the interests of the laboring man, I quote the acts of 1888 and the act of 1889, and I asseverate, as has been stated here before, that there has never been any disposition to sacrifice the interests of the worldngmen of this State to the taxpay- ers or to the prisons or any other institutions of the State mani- fested by the Legislature. In 1888 the Legislature passed an act which is in substance identical with this proposed amendment. The consequence of that act was that every prisoner in the State of New York was obliged to be kept locked up in his cell, and that shortly, if that act had not been repealed, instead of having prisons and reformatories in different portions of this State, we would have had lunatic asylums, as the history of penology shows in all countries. Now, Mr. Chairman, I wish to come more directly to the amend- ment proposed by Mr. Griswold. There are two classes at least of penal institutions in this State. One class is designated as State prisons. These are such prisons as Auburn, Clinton and Sing Sing. Prisoners are sent to those institutions for the purpose of being punished; the punishment being supposed to have a deterrent effect upon the commission of crime by others. The only object, there- fore, in incarcerating, and the only object in their treatment while there, is to punish them by hard labor, to make them self-support- ing as far as practicable, and to keep them so busily employed that they will not deteriorate and slip back into their old habits. There is, however, in this State another class of institutions, or, perhaps, I should say institution, for at the present time that class is repre- August 25.] CONSTITUTIONAL CONVENTION. 2OI sented by only o*ne institution in the State. It will very soon, how- ever, be supplemented by another, organized on the same plan and system, and has been followed and copied in many States of the Union. It is a class of institutions which takes no prisoner, no crimi- nal above the age of thirty; takes only those from sixteen to thirty who have committed their first offense. No criminal, no convicted person above the age of thirty years, no person who is known to have been convicted of a crime before, is sentenced to that institu- tion. Now, the plan of those institutions and the object at which they aim are entirely different and distinct from the objects aimed at by ordinary State prisons. The belief is that the great majority of men and boys sent to those institutions are reformable; that they have committed their first offense; that with proper surroundings, with proper training and proper education, they will leave the ranks of the criminal class and become self-supporting, respectable citizens of the commonwealth. Now, sir, it is absolutely impossible to reform a criminal; it is utterly impossible to prepare and fit him for his duties in the world after he comes out, entirely impossible to prevent him from going back into the criminal class and becoming a professional criminal, unless while in this institution he is trained to habits of industry or learns some handicraft or trade by which he can maintain him- self after he shall have gotten out of the institution. In that connection, Mr. Chairman, I would like to read a few brief articles. I read first from this same report of Mr. Carroll D. Wright, Commissioner of Labor Statistics of the United States. He says: " The experience of all countries shows that by the adoption of this plan of the abolition of convict labor, the convicts would grad- ually lose their status as convicts and become to a large extent the inmates of insane asylums." Now, I quote from the periodical called the Metal Worker. I assume that it is a trade journal, and in the interest of artisans and laborers in metal. If I am mistaken, I am willing to be corrected. But whatever its predilections are, the following are its words : " The formation of industrious habits in prisoners is an agency without which no hope can be entertained for their reformation. Labor is as much an auxiliary of virtue as it is a means of support. It was a favorite maxim with Howard, ' Make men diligent and they will be honest.' Work is the only sure basis of a reformatory discipline. ' Unless prisoners acquire habits of industry and a liking for some kind of labor.' observes Mr. Frederick Hill. ' little hope can be entertained of their conduct after liberation.' What ought, 202 REVISED RECORD. [Saturday, therefore, to be aimed at as a matter of prime importance is the formation of fixed habits of labor in our convicts. Good resolutions are well as far as they go, but as a dependence for the future, unsup- ported by the habits of honest, useful toil, they will prove wholly fallacious." I shall also read from the report of the special committee of the Prison Association of New York on convict labor, in the year 1885: " The best reformatory treatment involves the assiduous industrial development of convicts. But the latter is always subordinate and subsidiary to the former. Prison labor must be regarded as only the instrument of reformation." I will take the time of the Convention, Mr. Chairman, for just a moment longer to read some remarks of one of the most eminent penologists in the world. He says: " The importance of industry in the reclamation of corrigible criminals is imperfectly known, and is, therefore, underestimated; hence we have indifference and apathy about it. It needs to be known that among the causes of crime the proximate one is very often lack of ability to earn. Most prisoners are youthful and improvi- dent; not one in 100 has ever given a thought to providing properly for future needs. The Secretary of State of New York reports for 1887 that of the 3,191 persons convicted of felony that year, 60.6 per cent were men under thirty years of age, and that 73.8 had no trade or skilled occupation. The proportion of first offenders was 69.1 and of 84,531 persons convicted of misdemeanors 60.3 were first offenders or unknown to have been previously convicted. The need of industrial training and the amenability of prisoners to recla- mation by this means are further suggested by the reports of Sing Sing and Auburn State prisons. Of the 2,536 convicts in October, 1887, 64 per cent were under thirty years of age, 71.4 per cent were first offenders, and 62.5 were without trades or skilled employments." He remarks, from an experience of forty years as a penologist, an experience gathered in prison institutions, "What egregious folly, what 'inexcusable public damage, to confirm these prisoners in their inaptitudes and in their unfitness for society through their imprisonment in idleness or under fictitious industrial conditions." Now, Mr. Chairman, if the objects of this class of institutions are to be subserved, if such institutions are to be in reality reformatories instead of State prisons and merely places of incarceration, it is necessary that trades should be taught there and should be prac- ticed there, and that they should be practiced there in the same manner as they are practiced in the world; that the education which August 25.] CONSTITUTIONAL CONVENTION. 203 is given there in the trades and the training which is given there shall fit the men when they come out from those institutions to support themselves in the way that the world requires and in the manner that the world requires. I hope, therefore, Mr. Chairman, that either the amendment of Mr. Griswold will be adopted or that the entire section will be rejected. I see no occasion, Mr. Chairman, for instructing the Legislature of the State to provide for the employment of the prisoners of the State when they have already done it, when they have never indicated any disposition to do other- wise, and have always been only too anxious to do that which this constitutional provision would compel them to do. Mr. Springweiler — Mr. Chairman and gentlemen of the Con- vention, it is hardly necessary for me to say anything on this pro- posed amendment that is before this Convention, as it has been very ably presented and thoroughly discussed by the organized wage-workers of this State at the public hearing in this chamber some time ago, and the more fully explained by the introducer of the proposed amendment to-day. I believe, Mr. Chairman, that it has been demonstrated to the satisfaction of all capable of grasping the subject, that prison labor is in direct conflict with labor outside of the prison walls. It is the employment of criminals to the injury of honest, law-abiding citizens; the proof is overwhelming. Already many honest men and women are suffering because they cannot obtain work at fair wages, and in ten thousand instances they can't find work at any price. While this condition of things exists, the State transforms its prisons into great workshops, hires out its crime-cursed muscle and skill to greedy contractors, who grow rich, while honest men and women are unable to find employment and homes are wrecked by enforced idleness. It is doubtless true that it is good for criminals to be employed, good for their health and happiness ; but it is equally true that it is good for the health and happiness of men who are not criminals to have employment; good for their children, good for society and good for the State. The leaders of the labor movement of the day are not demagogues, as is generally said when a movement in the nature of this proposed amendment comes up for consideration. We consider, so do the wage-workers of this State and through- out the United States, that they are honest men and have feeling for their fellow-beings. The purpose of transforming penitentiaries into great manu- facturing establishments is to reform criminals; but the real pur- 204 REVISED RECORD. [Saturday, pose is to make crime self-supporting, and, if possible, make it a source of revenue to the State, which has proven to be an entire failure, pure and simple, to the people of the State and a great benefit to the contractors and politicians who are on the inside track. This contract system has enabled many men to amass large for- tunes, and they are in favor of the contract system, but it has not been shown that by keeping criminals at work, by giving them books, good food, good physicians and spiritual advisers, the work of reformation has been such as to warrant a continuance of employment that takes the bread out of the mouths of honest men, and the conclusion has been arrived at that if any one ought to suffer by idleness it is the convict, and not the honest man; if any one ought to have the comforts of life, it is those who obey the laws, rather than those who violate them. To take burglars, mur- derers, footpads and the entire list of able-bodied scoundrels and work them for revenue and reform, when such work entails idle- ness and misery upon those who are trying to lead honest and upright lives, is an outrage which, in some of its features, is scarcely less than a crime. Penitentiaries are not reformatory institutions as at present con- ducted; on the contrary, notwithstanding all that can be said, criminals become hardened while in prison, and the young in crime come out of prison after their first term, worse, if possible, than when they first entered their cells. This is the rule. The State feeds and clothes its criminals and then hires them out to mercenary contractors for a mere pittance, and they are worked in a way which injures honest men, and when a protest is made against such policy, we are told that criminals should have their lives and their health protected, regardless of the influence of their work and skill upon laboring men, who are trying to be honest and to bring up their children in an honest way. If any one is to be idle, let it be the felon, regardless of its effect upon health. The State should not pursue a policy calculated to impoverish workingmen. Such a policy simply makes criminals; and ought to be universally denounced by all men who have any regard for the welfare of society. If it were a fact to only keep the criminals employed, why is it that the State furnished the best and most improved machinery to do the work in the different branches of trade? This proves conclusively that the State is desirous of getting all that it can out of the convicts, and benefit the contractors and their agents. If the laws of this State are for the people and by the people, all machinery should be removed from our State's prisons and the August 25.] CONSTITUTIONAL CONVENTION. 205 convicts worked by hand for the inmates of all State institutions, and not have any of their work come in competition with the wage- workers of the State. We find in the annual report of the Superintendent of State's Prisons that it costs $138 per prisoner, with a daily average of 3,906 in the three prisons, making a total of $539,000. And a total deficiency of over $477,000, making a total of $1,016,000. Now, then, what use is there in this State giving this amount of money for the good and happiness of the convicts? Why not use thai- amount of money and build up our primary schools and meet the demands of the common people, educate the people's children and make good citizens out of them? It appears to me that that would do the State more good than to try and make the convict happy. You all know, or at least ought to know, that there is a con- tinual cry in all our large cities for more school accommodation. Our Legislatures have been informed by the Superintendent of Public Instruction and the chief executive of this State, that they should look after the common people's children, that thousands of them are not getting the proper education. This is a matter that the Legislature always loses sight of. I will trust and hope that this Convention will not lose sight of the fact that there is something radically wrong about the State prison labor, and that they will adopt the proposed amendment and meet the demands of the wage-workers of this State. It is not a party nieasure, but is a measure for the wage-workers of the State. (Applause.) Mr. Moore — Mr. Chairman, coming as I do from a section which contains a State prison, it seems to me that it would not be proper in me to let this amendment go by without saying a word upon it. I have no desire to take up the valuable time of this Convention on such a measure as this, but, Mr. Chairman, it seems to me that this measure is eminently proper. This Convention has done a good many things for the members of the Court of Appeals. It has done a good many things for other judges. It has done a good many things for men who did not need help, and it is about time that it took a stand for men who do need help. It is about time, Mr. Chairman, that this Convention showed itself to be the friend of the people, if it expects to get the people's votes for the measures which the Convention shall adopt. Where does the State stand as to the business, as to the trades which private men are engaged in in this great State to-day? It stands, Mr. Chairman, by reason of its State prison policy, as a competitor. It stands between the manufacturer of shoes and his trade. It stands between the manufacturer of granite and his trade. 206 REVISED RECORD. [Saturday, By reason of this contract system, sir, we get labor free. We farm out this collar trade, this shirt trade, this hat trade, this shoe trade, this granite trade and various other trades; we farm them out to contractors and the contractors make fortunes out of them and the poor man may go to the wall. I am not an advocate, Mr. Chair- man, of keeping men shut up in State prisons doing nothing. I am not an advocate of that system which would literally ruin men. Such a system as that is barbarous. But I am an advocate, Mr. Chairman, of the rights of the honest workingman who is outside of the walls of our State prisons, as well as the dishonest men within them. Now, Mr. Chairman, what is the gist of this amendment? — and the most of you know that I do not make hour speeches or half hour speeches, hardly? What I have to say I try to say in a very few words and in a very few moments. What is the gist of this proposi- tion? The gist of it is, it simply provides that this farming business shall cease; that the State shall no longer be a competitor of the honest industries of the State. Gentlemen have raised the point that it will not do to employ convicts outside of the State prisons: that it is a dangerous thing; that because two men who were employed in making roads at the Clinton prison, escaped, and it cost the warden about as much as was saved to recapture them, that, therefore, the convicts must not be used on the roads. There are 'plenty of places where convicts can be used in this State without coming into competition with industrial trades. There are the roads of this State; no State of this Union has more roads than New York State, and no State needs the aid of the do. Come with me up into the Adirondacks ; get a buckboard and ride over those stumps and stones and hills and in the val- leys and see whether or no there is not at least a place where con- victs may be employed within twenty miles of a State prison upon the roads and kept at healthful employment, and still not come in competition with the honest laborers of the State. Mr. Chairman, I think that this Convention had better begin to think something about the people. It is full time. You have taken care of those who are above the people. You have taken care of classes and castes. Now, then, let us get down and do something for the interests of the people who have sent us here and who are taxed to pay the expenses of this Convention. I read in the papers every day, in the metropolitan and the rural papers, the most severe criticisms upon the actions of this Con- vention. The most of the criticisms are not upon what it has dared August 25.] CONSTITUTIONAL CONVENTION. 207 to do for the interests of the people, but what it is afraid to do for the interests of the people. I say to you, Mr. Chairman, that this proposition possibly ought to be amended some in phraseology, but I say to you that this is a good measure. It is in the interests of the whole people of the State for this Convention to adopt it. Somebody, perhaps, who has read between the lines more care- fully than I have done, may possibly see some verbiage or some minor alteration by which it would read a little better, but the principle is the correct one. Now, Mr. Chairman, I want to ask this Convention to consider this carefully, to give it sufficient time, to let it be discussed and to give time for its discussion here, as has been given for the pet measures which are put through here. Let us give the people a little time here as well as some of these other articles which it is said are to be crammed down the throats of this Convention whether or no, and everything else dropped in the soup. It is about time, Mr. Chairman, that if there are any men in this Convention, men of courage, Republicans who dare to act and speak with the courage of their convictions, that they stood up here and did something for the rights, for the comfort, for the better welfare of the people of this State. Mr. Chairman, I hope that this bill will pass. Mr. Marshall — Mr. Chairman, it seems to me that the subject that is dealt with in this amendment is legislative, as was said by Mr. Pratt. Yet, I believe, it is perfectly proper that we should lay down some principles upon this subject in the Constitution. I think that a correct principle is stated in the first three lines of the proposed amendment submitted by Mr. McDonough, " The Legislature shall by law provide for the occupation and employment of prisoners sentenced to the several State prisons, penitentiaries, jails and reformatories of the State." Every student of penology recognizes the necessity of giving employment to the prisoners as a philan- thropic measure. Ever since the Auburn experiment became so successful, it has been the idea of all who have legislated with ref- erence to State prisons to compel the prisoners to work for their own welfare as well as that of the State. The most intense suffer- ing, the worst abuses, prevail in such institutions in which there is not a compulsory system of labor. But beyond that provision, it seems to me that the proposed amendment is fraught with great danger. It is an experiment at the best, and an experiment which if introduced into the Constitution, and which in the sequel proves a failure, is one which would do infinite harm to the State. There has been an attempt in the Legislature for the last ten or fifteen years to devise some plan which would avoid all the evils 208 REVISED RECORD. [Saturday, which have been so well described by Mr. McDonough in his very able address to this Convention upon the subject. But it has been found that every experiment that has been tried was not an entire success, and that it was necessary to resort to modifications; to repeal one experiment and to try another. Now, we are asked to try another one and to put it into the Constitution. What is the situation which confronts us? Mr. McDonough has stated that there are in the various penal institutions of the State at this time about 12,000 convicts. Now, it is necessary under the first clause of his amendment, under this principle, to give them occupation and employment. Now, how are they to obtain this employment? What provision is made in this proposed amend- ment for the occupation and employment of the prisoners? It is suggested that they may work, and that the products of their labor may be disposed of to the State or any political division thereof, or for or to any institution owned or managed or controlled by the State or any political division thereof. But suppose it should prove that the product required for these several institutions would be so small in quantity as not to occupy the labor of those in the penal institutions for more than two months in the year, what will be done with these prisoners during the remainder of that period? No provision is made for them. The result will be that a manifest inconsistency would be created between the first clause of this constitutional amendment and the remaining clauses, and the very principle with which this amend- ment starts out would be lost sight of, because it would be impos- sible to give these men or women in the penal institutions of the State employment. It, therefore, is very clear that we must avoid Charybdis while we are steering away from Scylla. Now, it seems to me that all that we can be expected to do in the Constitution will be to lay down a principle in respect to the employment of the pris- oners in the several institutions of the State, which shall always be observed by the Legislature when it comes to consider the question of the employment of those prisoners. And the two principles are, first, the one which Mr. McDonough has so well stated in the first three lines of his proposed amendment, and the other principle is that which I desire to have substituted for the remaining portion of the section. For the purpose of expressing my ideas on the subject, I move as an amendment to the proposed amendment of Mr. McDonough, the following: Strike out all of page i, after line 5, and all of page 2, and insert in place thereof the following: " So far as practicable, such employment shall be restricted to the perform- ance of labor upon public works and the manufacture of products August 25.] CONSTITUTIONAL CONVENTION. 209 for use by the State or any political division thereof, in the public institutions of the same and by the several charitable institutions, subject to State visitation and inspection." By this provision, there- fore, the Legislature will be admonished to do two things: First, to provide for the employment, the occupation and employment of prisoners sentenced to these penal institutions; and, secondly, to bear in mind always that such employment shall be restricted, so far as it is practicable to do so, to the performance, first, of labor upon public works — that would enable them to work upon the high- ways and upon other public works of the State — and, secondly, to the manufacture of products for use by the State in its institutions, by the various charitable institutions which are subject to such visitation and inspection. Mr. Griswold — Mr. Chairman, may I ask the gentleman a ques- tion? I think that I have an amendment by way of substitution after Mr. McDonough. You speak of amending Mr. McDonough's amendment. Air. Marshall — I can offer it either as an amendment to Mr. McDonough's amendment or an amendment to Mr. Griswold's pro- posed amendment, Mr. Chairman. My idea is that we should express here the idea that so far as it 'is practicable to do so this employment should be restricted to the performance of labor upon public works and of the manufacture of products for use in these various institutions. Mr. Griswold — Is not your amendment substantially the same as mine? Mr. Marshall — I think it goes a little further than the gentle- man's, Mr. Chairman, but in principle it is the same possibly. Now, we must also bear in mind another important idea and that is this: It has been shown that the expense of maintaining the various prisons in this State amounts to about $1,000,000 a year. Of course it is the duty of the State to make provision for the pris- oners who are sentenced in its various institutions. But such machineries should be devised as to enable the State so far as it may to make such institutions self-sustaining. I do not mean to say it is absolutely necessary that the State should make a profit out of these institutions, or under all circumstances the State shall not be obliged to make up a deficiency. But so far as it is possible these institutions should not be a burden upon the people. Much has been said about the evil of having prisoners engaged in productive pursuits in these institutions. It seems to me that the 14 210 REVISED RECORD. [Saturday, alleged evil is more a bugbear than an actual existing evil. At any rate by legislation arrangement may be made so that the labor of those who are sentenced to the various institutions may be so adjusted, so divided, that a very small percentage or fraction of the prisoners shall be engaged upon any particular class of work, and the result will be that there cannot be any competition in our prisons which would result in the reduction of the prices of products which are manufactured out of prisons, or so as to affect the price of labor of those who are engaged in useful occupations outside of the penal institutions of the State. Of course, it is a great wrong, it is a great evil to so employ prisoners in our institutions as to lead to the diminution of the earnings of the honest laborer who is not employed in them; but it seems to me if we bear in mind the two principles which would be enunciated in this amendment if my proposed amendment should be adopted, it would be very easy for the Legislature with those two guiding stars, to work out this problem, and we would not be putting into the Constitution a pro- vision which is, at most, an experiment and which might result in greater harm than the continuance of our present system. The Chairman — The Chair holds that it will treat Mr. Marshall's proposition as an amendment to the original proposition; that Mr. Griswold's proposed amendment is a substitute. Mr. Crosby — I would like to have Mr. Marshall's amendment read by the Secretary. The Secretary read the amendment of Mr. Marshall as follows: Strike out all on page I, after line 5, and all of page 2, and insert in place thereof the following: "So far as practicable such employ- ment shall be restricted to the performance of labor upon public works and the manufacture of products for the use by the State or any political division thereof in the public institutions of the same and by the several charitable institutions, subject to said visitation and inspection." Mr. Crosby — Mr. Chairman, I am opposed to the proposed amendment offered by Mr. Marshall. It appears that in this dis- cussion we have not gone to the foundation of the prison labor ques- tion; that we have discussed results only, dealing with conditions instead of principles, and that the proposed amendment is merely a suggestion upon the subject, and not- an expression or declaration of a fundamental proposition. We are liable to overlook the dis- tinction between fundamental principles of law, which should form parts of a Constitution, and legislative enactments, which are August 25.] CONSTITUTIONAL CONVENTION. 2II intended to regulate the affairs of the people of the State, subject to constitutional law. The first proposition to consider is whether or not the great State of New York, with its vast population and wealth, should go into business as a manufacturer, in competition with any individual citizen or class of citizens. Crime is one of the burdens visited upon the body politic; the expense first falls upon the county where it has been committed, and afterward upon the whole people, when the accused has been convicted, sentenced and imprisoned. Should the people of the State of New York, in their corporate capacity, directly by State account, or indirectly by contract, enter into competition with the laborer or the manufacturer for the pur- pose of raising revenue to pay the expense of restraining and con- fining the criminal classes, and thereby protecting society from danger and contamination, any more than they should engage in competitive business for the purpose of providing revenue to defray the other expenses of the State government? This is the first ques- tion for our consideration and the foundation upon which we should build our superstructure. If it is just and in accordance with the spirit and genius of a government of the people, by the people and for the people, for the masses, the aggregation of inhabitants com- posing the State, with their vast combination of capital and intel- lectual and physical power, to enter into competition with an indi- vidual producer, to make money from which to pay the expenses of our prisons and reformatories, why should not the State compete with other laborers or manufacturers in carrying on trades and great manufacturing enterprises, or as a common carrier, and in that manner raise the necessary revenue to defray all the other expenses of the State government? I assert the broad proposition that the State of New York should not engage in or carry on any business in competition with a citi- zen, whether he is a laborer or manufacturer, who is earning a living by honest, free employment. Mr. Chairman, no attention has been given to the great expense incurred by the county attending the arrest, detention, indictment and trial of the accused. If it is right and just that, by convict labor and the use of improved machinery, money shall be raised to defray the expense of confining and caring for the criminals after sentence, why should not the State of New York go farther and provide the means necessary to reimburse the taxpayers of the county, who have already incurred and paid all the expenses before the sentence of the prisoner? 212 REVISED RECORD. [Saturday, There is much involved in the proposed amendment, as reported by the committee, that does not appear by a casual examination of the proposition. The discussion has proceeded upon the assump- tion that the only question considered by the committee and referred to in the proposed amendment relates to the employment of convicts at manual labor. The words " occupation and employment " were carefully discussed by the committee, and include much more than manual labor. We have in the different prisons and reformatories conflicting systems of punishment, occupation and employment of the pris- oners. In the prisons of the State the policy has been, and is, to treat the convict as a slave, an outcast from society, having no right to protect his person, and his labor has been farmed out to con- tractors for a nominal consideration, or has been used by the State to produce articles of commerce to be put upon the market in com- petition with goods manufactured by free and honest labor. In the State reformatory at Elmira, in theory, attempts are made to reform the prisoners. But a monarchy is established there, and the arbitrary will of one man is supreme over all under his control. The convicts are compelled -to work at hard manual labor during the day, and at night are required to devote their attention to intel- lectual training when weary from manual labor, and then, if after his daily toil and his study in the class-room at night, a prisoner is unable to compete with an educated, bright fellow, if he is not able to learn as rapidly as others with whom he is graded, and if he does not attain the same degree of proficiency in his studies, he is put in a lower class, and generally remains there several years thereafter. In the reformatory for fallen women, at Hudson, kindness, love, charity and mercy govern the institution, and the inmates are taught in the rudimentary branches of education, as well as in the perform- ance of domestic duties. They are instructed to work, to perform the labor of those within their social spheres, and there has been no demand for the sale of the products of their labor. The experiment made by the managers of that institution, and the zeal which they have shown in their work, have resulted in the reformation of over seventy-five per cent of the prisoners committed to their charge. The county of Albany has one of the most severe and inhuman penal institutions in the United States. In the Albany penitentiary silence and exclusion are inflicted as punishments. The convicts are compelled to turn their backs upon the world; both men and women are required to toil early and late without communication with others, without sympathy and without intellectual training of any kind. In our reformatories for juvenile delinquents much August 25.] CONSTITUTIONAL CONVENTION. 213 attention is being given to the moral and intellectual culture of the prisoners, and but little manual labor is demanded of them. I desire to call the attention of the Convention to the fact that no product of the labor of any convict is sold from any reformatory for juvenile delinquents or from the Hudson Reformatory for Women, and that the products of convict labor in the State's prisons and Albany penitentiary are alone sold in market and put in competition with free labor. This is a complicated question in view of the different methods of training and government adopted by the authorities in the different penal institutions, and we are brought back to the consideration of what is the correct policy for the people of the State to adopt, in order to protect society from the dangers and contaminating influ- ences of the criminal classes and at the same time to induce them to reform and become honest and useful citizens, while inflicting upon them a proper degree of punishment by compelling them to labor. There are two sides to this question, and, while I do not desire to unnecessarily occupy the time of this committee, I urge these sug- gestions believing that the committee will permit the proposed amendment to go to the Convention to be voted upon after it has received more thorough consideration. We are asked what shall the prisoners do? In reply to that, permit me to say that we are required to furnish food and clothing for the inmates of our prisons, reformatories and jails; we have pur- chased large farms of land for the use of our State hospitals for the insane, upon which we raise large quantities of food, consumed annually by the thousands of inmates of these institutions, and we employ large numbers of men and women to perform labor upon such farms and pay them large sums of money for their services from the State treasury. There should be a farm near each State prison and reformatory, owned and managed by the State, upon which employment could be given to the prisoners in the produc- tion of a large portion of their necessary food. Clothing is needed for the inmates of the prisons, reformatories and hospitals for the insane of the State, and the jails of the different counties. That which is needed in the State institutions should be produced or manufactured by convict labor, and the articles needed by the coun- ties should be supplied by the State at actual market price, quality considered, and the local authorities should be required to purchase from the State what they need for the use of local institutions. Furniture, bedding, etc., will be needed in all these institutions, and should be supplied by the prison labor. Each year we are building additional buildings for our State prisons, our State hospitals and 214 REVISED RECORD. [Saturday, our insane convicts. We are about to build a large prison in Ulster county and a new building at Sing Sing. And why should not the work be largely performed by convicts, if it does progress a little slower, and the money is saved which would otherwise be paid from the State treasury for outside labor? Mr. Chairman, we have the authority of the Superintendent of State Prisons showing that such a plan has worked well, and I read from his report to the Legislature for the year 1894. He says: " There has been a maturing judgment among the officers who deal with the matter of prison labor directly that construction work in prisons could be thoroughly and well done by convicts with marked economy and consequent advantage to the State. Frequently, in late years, the wardens of the State prisons have reported favorably from time to time on the execution of such work done in the respect- ive prisons by the prisoners. The State is having a large amount of work performed each year in dredging the canals and rebuilding and repairing the canal locks, for which it pays out large sums of money, especially shortly before each general election. Why should not that work be done by contract labor and the money kept in the State treasury? There is also an unlimited amount of work needed upon the public highways of the State upon which convict labor can be profitably and successfully employed. There can be no question about ample opportunity and demand for the labor that every convict can perform for the benefit of the people of the State under proper management without putting the products of his labor in competition with free labor. If the employment which will be furnished within the prison walls and upon the prison buildings, upon the asylums and the canals for the use and benefit of the State, and for other State pur- poses, does not occupy the entire time or the proper part of the time of the convicts, shall the State then engage in a business which will compete with free labor of the individual citizen or class of citizens? If any loss be sustained by reason of the lack of profitable employ- ment of the convict labor, who shall be compelled to bear that loss? Shall such loss be sustained by the gentlemen who are engaged in a particular business in the field of free labor? — and when I speak the word " gentleman," I use it intentionally, because the man that toils with his hands from day to day in any respectable vocation, is entitled to as fair consideration by this Convention and the people of the State as the professional man who labors with his brain or pen — or should any particular individual or class of citizens suffer, or, on the other hand, should the expense be borne by the people of the whole State by direct taxation? August 25.] CONSTITUTIONAL CONVENTION. 215 Insanity is a public misfortune, and the people bear the burden of taxation necessary for the proper care and treatment of the unfor- tunate patients; contagious diseases visit the State, and the people meet the expenditures properly incurred for the public protection, and crime is a disease upon the body politic which must be restrained a-nd punished, and the expense of detaining and punish- ing the violators of law should also be paid by the whole people and not by a particular class, especially by men who earn their daily bread by honest toil. Mr. Chairman, it has been well said that this Convention has been taking care of those who are able to protect themselves; that we have been making liberal provisions for the judiciary and those who enjoy the higher walks of life, and I now assert that the laborers and manufacturers of the State of New York should have the same pro- tection, the same consideration by this Convention and the people of the State as the professional men and that no delegate can afford to refuse to recognize the right of the laboring man and vote blindly against the proposed amendment. I am confident, sir, that each delegate will vote in favor of pro- gressing this proposition to its third reading to the end that it may be further discussed and considered and finally adopted. Mr. Pratt — Mr. Chairman, if an amendment be in order, I would like to amend Mr. Marshall's amendment by striking therefrom, in line 5, the words " and reformatories." A recess was here taken until 3 o'clock P. M. AFTERNOON SESSION. Saturday Afternoon, August 25, 1894. The Constitutional Convention of the State of Xew York met in the Assembly Chamber, at the Capitol. Albany, X. Y., August 25, 1894, at 3 P. M. President Choate called the Convention to order. Mr. Platzek — Mr. President, may I ask the Convention to be kind enough to excuse me for the day's session on Monday? It is the first request of the kind that I have made, and it is absolutely necessary that I should be absent. The President put the question on excusing Mr. Platzek. as requested, and he was so excused. Mr. Jesse Johnson — Mr. President, I have a telegram from Mr. Xostrand, saying that he is called home by sickness in his family, and requesting an excuse for this afternoon's session. 2l6 REVISED RECORD. [Saturday, The President put the question on excusing Mr. Nostrand, as requested, and he was so excused. The House then resolved itself into Committee of the Whole, and Mr. Dean resumed the chair. The Chairman — The House is in Committee of the Whole, in consideration of general order No. 25, and Mr. Pratt, of Chemung, has the floor. Mr. Pratt — Mr. Chairman, just prior to the noon recess, I handed up an amendment to general order No. 25, or rather an amendment to Mr. Marshall's amendment of that general order, which I understand is acceptable to Mr. Marshall. It simply provides for the striking out of the words " and reformatories," in the fifth line of the first page, and excepts reformatories from the actions of this proposed amendment. I wish to state very briefly, Mr. Chairman, my reasons for mak- ing this amendment, perhaps with some repetition of what I have already said to the Convention. If this amendment should pass and should prohibit the carrying on of any manufacturing opera- tions or handicrafts in the prisons of this State, the character and existence of the State prisons would not be affected at all. They would simply have to change the method of employing prisoners, or to cease employing them at all. It would be with them sim- ply a matter of internal arrangement and management. But, sir, if the proposed Constitution should prohibit the reformatories of the State from carrying on in such reformatories any industrial occupation or handicraft, it would be the entire destruction of the distinct character of those reformatories, and it would make and constitute them, from that time, mere State prisons. A great advance has been made in the development of penology by the establishment of these reformatories, and by the passage of such an amendment as this, followed by proper legislation, those institu- tions would be strangled almost in their birth. Now, all of the inmates of these reformatories were admitted thereto under the age of thirty-one years, running down to juvenile delinquents. Moreover, the number of them is very small. The manufactured articles which it is possible for them to turn out will not, in any perceptible way, or to any perceptible amount, affect the product of manufactured articles in this State; and for that reason I ask that the two words indicated be stricken from the amendment. Mr. Kerwin — Mr. Chairman, I would like to ask the gentleman a question. I would like to ask him if he ever heard or has learned of the fact that in the case of industrial troubles, inmates of the August 25.] CONSTITUTIONAL CONVENTION. reformatories are paroled on good behavior and sent into the shops where such industrial troubles exist? Mr. Pratt — Mr. Chairman, I heard it this morning for the first time, when it was stated by one of the gentlemen who are here in the interests of this amendment. That was the first I ever heard of it. Mr. Kerwin — I would like to ask the gentleman if he thinks the people who are favoring this amendment would be justified, in the face of that fact, in consenting to strike out the word " reformatory." Mr. Pratt — That, Mr. Chairman, is a matter of judgment. Mr. Smith — Mr. Chairman, I had intended to offer an amend- ment to the proposition under consideration, but have concluded, on reflection, that my contemplated amendment would not very materially improve the measure. We are called upon to deal with the subject of convict labor and to so control the use of it that it shall not operate prejudicially to the great cause of labor. The number of convict laborers is so very small compared with the masses of honest laborers, that the subject might be regarded as one easy of solution, and yet, I con- fess myself more embarrassed by it than any question thus far pre« sented for our consideration. It is a subject linked into the great chain of circumstances called the "labor question." It is a vast subject to speak of. Vast, because it involves the consideration of the great subject of competition, a subject of vital interest and importance in the sharp struggles of life, to every member of the human family. Now what is implied by this strong effort to prevent the labor of the comparatively small number of persons in prison from coming into competition with the great masses of laborers of the State? What does it show? I think it shows that industrial competition is very sharp; that the struggles of life are growing more and more intense. It shows that the markets of this country are over-sup- plied with the products of certain industries, at the prices demanded for them; and it is claimed that the competition of prison-made products is injurious to the cause of labor. Xow, I am ready to believe that under existing conditions, this claim is well founded. I have no doubt that some industries are injuriously affected by the competition of prison labor as it is now conducted. And in view of existing conditions. I am in favor of this measure and mean to support it. I believe that we should adopt, as a fundamental principle, and assume its truth, that the great masses of the labor- ers of the State shoul not be compelled to compete in any respect, 218 REVISED RECORD. [Saturday, if it can be avoided, with the labor of convicts in prison. I think we may adopt, therefore, as a principle to guide us, that so far as we can prevent that competition, without injustice or inhumanity to others, we should do so. (Applause.) I have referred to the sharp competition that exists in the mar- kets of this country, and to the severe struggles of life under exist- ing conditions. If we were to attempt to study the causes that have made these conditions so hard to bear, it would open the door to a subject that would involve a discussion of six months or a year to do it justice. I do not propose to enter that great arena. I will say this, however, that whenever the policy of this country is so improved that it will open the markets of the world to the man- ufactured products of this country, so that all such products shall find a market somewhere, this sharp competition of the several classes of laborers will cease forever. (Applause.) But that is something beyond our control in this Convention. Now, as I have already stated, I intend to support this measure because I believe it will help labor or lead to something still bet- ter to improve the condition of labor. But in doing so, I will take the liberty to say that this is a many-sided question, and my remarks are intended only for consideration in dealing with the question. I do not wish to be understood as proposing any plan of action in particular. It has been suggested that convicts might be employed on the public works of the State, or of its subdivisions, in the construction of the public buildings or upon the highways. Such a use of convict labor, I believe, would meet with great oppo- sition, and would be quite as injurious to the cause of labor as the present objectionable system. Within the last ten or fifteen years we have, in the city of New York, vastly extended that great system for supplying the city with pure and wholesome water. All that work was of a character that belonged to the public. Suppose that convicts had been brought out in chains and put to work in building up that magnficent sys- tem. There would, I am ready to believe, have arisen from the vast army of laborers a protest that would have penetrated every household and received a sympathetic response from every human heart. (Applause.) Convict labor on public works would displace honest labor; would displace the men who have no machines to help them in the struggles of life, and who go forth bare-handed to earn an honest living. I am not ready to believe that convict labor should ever be allowed to compete with honest labor on our great public works. (Applause.) The truth of the matter is, Mr. Chairman, that every laborer who works at all, in view of the August 25.] CONSTITUTIONAL CONVENTION. 219 restricted markets of this country, does come into competition more or less with some other laborers at some point of the great circle. You may, by prohibiting convicts from making shoes, help honest laborers engaged in manufacturing shoes, and so, too, if you set convicts to work on public improvements, you will displace or bar out honest labor that is dependent upon such work for a living and for the support of families, women and children, numbering thousands or tens of thousands. So that the competition at these points of the great circle would be very sharp and very fatal, more fatal, indeed, because the vast army of laborers now working for the public are men without machines and entirely dependent upon their bare hands. I am in favor of doing everything in my power to help the men who do not own machines and who are dependent upon their bare hands to gain an honest living. To-day, with the aid of the contributions of science and of scientific inventions, the man with a machine is the man who has the advan- tage. I lately visited an establishment in this State engaged in making fish lines. I was told that five persons were at work, three men and two women, and a two-horse power steam engine with one hundred and fifty spindles. I inquired the capacity of the establish- ment computed in day's work, and was told that it was equivalent to five hundred and fifty persons. Let me suggest for consideration, that if you wish to prevent the competition of the labor of convicts in prisons that you take from them the machines in the prisons. Let them make shoes and everything else, by hand. Let them be kept busy. Every prisoner would then learn a trade that would be of great service to him on being released. I have indulged in most of these remarks by way of suggestion, and to show the vastness of the subject and its many sides, to show how widely this great circle of human labor extends. The great fabric of human society is so interwoven and so connected together that it is a unity. One class of laborers dig the foundations and others build, and others again adorn the superstructure, and not- withstanding the fact that the faithful workmen one by one, their spell of toil accomplished, retire from the struggle, perhaps to shades of oblivion, yet the great work goes bravely on ; civilization advances, bringing to humanity in all the varied walks of life its benefits, and higher and higher rises the standard of our social policy, and broader and broader and more beautifully spread out on every side the beneficient results flowing from the division and dis- tribution of labor, mental and manual; further and further back retire the dark tides of misery, ignorance, superstition and crime; nay, even of disease and death itself, until the enthusiastic spectator 220 REVISED RECORD. [Saturday, upon the destinies of the human race may well become impressed with the hope that in the course of time it will be granted to the intellectual energy and the moral development of mankind to recover a lost paradise and restore the shattered harmony of crea- tion. (Applause.) This is the greatest age of the advancement of civilization. Touch the great circle at any point unjustly and you disturb the harmony and unity of the system. I shall vote for this measure because I am in favor of adopting what the laborers believe will help them. If it fails we will try and try again for better results. (Applause.) Mr. Peck — Mr. Chairman, and gentlemen of the Convention, you have heard a discussion of this subject by a representative of the district from which I come. That district is, in its surroundings and circumstances, one of the largest industrial neighborhoods of the State, and the reason why I ask your attenton for a few moments is to point out to you the difference that exists between experience and statistics. We have heard it argued from statistics, very ably and apparently very conclusively, that the small percentage of gen- eral labor constituted by prison labor would not affect any industries disastrously which were of any particular importance; and yet every representative from my district will be able to tell you from experi- ence that one industry has been driven from it entirely by prison and convict competition; that is the hollow-ware, enameled-ware industry, which was engaged in to a large extent in Troy at the time I went there and subsequently. That was driven out from the industries of that place, and of this State, by convict labor, not of the convicts of this State, but of an adjoining State. It, however, illustrates the principle ; and those foundries are entirely closed, and that business is entirely gone in consequence of that competition. Another industry in that district largely engaging the efforts of the people of Lansingburgh, the brush industry, has been very seriously injured and its continuance threatened by convict labor in the peni- tentiaries of this State. It is almost prostrated at this time by this kind of competition. So, that as you see statistics and actual experi- ence are not always in harmony. At the present time another industry is being threatened. It is an industry which engages the efforts of a very large proportion of the working people of the city of Troy, and which has already been alluded to in different forms in this discussion. It is an industry which occupies largely the attention of the working women of Troy. In speaking of them, I wish to say that I speak of a very intelligent and very prosperous and very self-respecting body of working people, the working women of the city of Troy, the great pride of the city, a body of August 25.] CONSTITUTIONAL CONVENTION. 221 women that commands by its own self-respect, the respect of every person in that vicinity. They are being competed with now by con- victs in the prisons, and their wages are being affected by that com- petition. There are no votes to be affected by it, except the votes at this Convention, and it does seem to me that they are entitled to that measure of respect and assistance from you. It is no answer to say that this is legislation. We are here to legislate. This is fundamental legislation; it is equitable legislation; it is the legisla- tion which lies at the sub-structure of society, that free labor shall not be put in competition with convict labor, and when we shall have enacted that in this Constitution, as I hope we shall, we will have taken this question away from the Legislatures to a consider- able extent, leaving to them only the development of the particular plan by which it is to be administered. Now, then, gentlemen, do not allow this to be amended in such a way that it will be suffocated. If it needs amendment, let us take hold of it as men, as business men, and put it in proper form. Let us put it in such shape as it ought to be, if this is not the proper thing, but do not let us vaporize it; do not let us put it in such condition that it will float away because it has no consistency and leave not even a shadow behind it on society. Let us make it mean something. If anybody here has any criticism to make on it, let it be made now, and while I am talking about criticism, gentlemen, let us put ourselves in a position on this question where we shall have a right to criticise. We are all accustomed to say that the working people do not use the proper methods to get their recompense; that they resort to violence; that they resort to methods which cannot be justified on any score of intelligent criticism. Well, then, if we want to have the right to criticise people who are doing the best they can according to their light to secure the remedies they ought to have, when they do ask for something in the right method, in the right way; when they come to us and offer us a measure which involves none of those methods which we are likely to criticise, let us acquire the right to criticise their wrong methods by applauding the right ones. When they ask for what is right, when they are doing it in the right way, let us join hands with them, and then, when they are wrong, we shall have the right to criticise them, and they will listen. Now, gentlemen, I will not ask the attention of this committee any further on this matter. I hope that this Convention will do something on this subject which will be of benefit to these people. If anybody thinks that it is wrong in form let him tell us where it is, and we will correct it, but do not, as I said before, vaporize it and let it float awav without anv results. 222 REVISED RECORD. [Saturday, Mr. Mclntyre — Mr. Chairman, following the remarks of some of the gentlemen, it seems to me that we have wandered a little from the real common-sense view of this whole question. Just as soon as this Convention goes to the adoption of any particular scheme to favor any particular class, without there exists a good and solid foundation back of it, it seems to me to make a mistake. If you take the argument of the gentleman from New York (Mr. Smith) and follow it out to its logical conclusion, the only thing that you can do will be to shoot the inventors and do away with all inven- tions; the only thing that you could do with this matter would be to say to the State, when it produces certain articles, that it must stop manufacturing, and you might as well say to every other manu- facturer that he must stop manufacturing because he is competing with some other person, because he employs certain laborers and the other man does not want to have him do it. Now, it strikes me that the error arises from this fact, it is a lack, perhaps, of a suitable and proper head in control of all these public institutions. This great State of New York, that has these prisoners, is under certain obligations to the prisoners themselves. There is no way so good to correct vice as to give vice something to do ; there is no way you can reform prisoners so well as by having them employed at labor, and if you follow out the arguments of the different gentlemen, you will find this fact staring you plainly in the face. The gentleman from Rensselaer county states that prison labor interferes with some of their industries there. The gentleman from Delaware (Mr. Crosby) says what? Why, he says we can employ them on the canals down his way. What shall we do with them where we have no canals to employ them on, or any public roads to make? The question comes up, they must be employed. How will you employ them? Let them be employed by the superintendents or the legitimate heads of the institutions in a legitimate manner, doing whatever they can do best and make the most of, and get the most money out of, for the State. But how? Not by putting down prices and having them beat the price down upon the market, but by having a just and wise regulation of the whole matter, and whenever an article is put upon the market, put it on the market at just the price that other people put it at; do not lower it in competition, but make the article and compete regularly and prop- erly. One gentleman springs up and says that the reformatories must be excepted. Why? Because he very well knows that the large reformatory in Westchester county manufactures shoes, manufac- tures chairs, and such other necessary articles of industry as they make, and sells them; and why? To help support the institution; August 25.] CONSTITUTIONAL CONVENTION. 223 and every dollar they earn in that way saves the State of New York so many dollars in the support of her convicts. The State of New York should handle all her convict institutions in the same practical, common-sense way. When you say we must take the pris- oners of the State of New York and keep them locked up in idle- ness because some few laborers come here and cry out that they are competing with them, I say that that is not practicable. It is purely and simply a legislative matter. It should be under the control of the proper head. We are not here to say that the head that manages and controls that that department cannot be regulated, because he can be changed. We are not here to say that the leg- islators of the State of New York are to be corrupted by the shoe men and. the paper men when they come up here. You might just as well say that the head of every other department of the State government will be corrupted. There seems to be an attempt here on the part of some delegates to pose as the representatives of the poor men, the laboring men, and we are willing to lie down and bind ourselves down, to be walked over for them, simply in speech. That is not the way to help them. The way to help them is to have the employment, but not to say we are going to shut up this factory or shut up that institution for the sake of helping them; but to say that we will not go into unjust competi- tion with them; that we will have the goods manufactured, but we will have them put upon the market for what they are worth. These prisoners must labor. It is no time in this nineteenth cen- tury to bow down and say that the industries of the nation shall stop because forsooth some labor institutions come up here and say they want to have it. I had a gentleman say to me the other day that he manufactured tables, and that in another place they manufactured tables, and he could not compete with them because they got them at a lower price; he understood that prison laborers manufactured them. I said, "How do you know?" It proved to be nothing but a mere rumor. The man that he referred to was manufacturing the tables himself, but he could compete with the other parties. There is a great deal of hue and cry about this. It seems to me that if we are to exercise the common sense that is talked about, we should be logical in our arguments, and we should go at this thing as we ought to. We should have every prisoner employed, and employed in doing that .which he can do the best. You cannot limit it to breaking stone upon the roads, because we may not have them. You cannot limit it to repairs upon the canals, because we may not have the canals. You can- not limit it to any particular thing. This is particular legislation. 224 REVISED RECORD. [Saturday, You have to have broad, general principles in a Constitution; and I hope for one that this Convention will not be carried away by any false sentimentality in this matter, but that it will look at the subject upon its merits, and if it is right, have such a proper amend- ment as will simply leave it under the proper care of the appro- priate persons; and if those persons are not proper ones to have the care, then change them; but let us not wipe out of our State prisons all opportunity of employing prisoners. They ought to work, and it is the only way in which you can reform them. They cannot be kept in idleness. Down in the city of New York, on their island there, they work them in the quarries and have them get out stone, and build buildings. They have a way to employ them. That particular work cannot be had in all tke institutions. They work them in Dannemora in some such way as that, but there may be a thousand and one ways of finding employment in the other State prisons. Let us have a broad, general principle; let us not be boyish in this matter, and let us not be led away simply by local affairs. It reminds me of the tariff. Every man will rise to advo- cate some pet scheme at home that he is looking after. That is not a matter for constitutional enactment. It must be a broad, general principle having its application throughout the whole State. Mr. Kerwin — Mr. Chairman, after listening to the debate as far as it has proceeded, and listening to the statistics brought forward by different gentlemen, and especially to the able argument pre- sented by my colleague, Mr. McDonough, all that I can do is to produce some facts bearing on the question as to whether or not this system should be abolished. Mr. Chairman, the first recollec- tion I have of the prison contract system extends as far back as 1876. At that time a prominent stove foundry was in operation here at Albany, employing anywhere from 800 to 1,200 or 1,500 men, as the season demanded. Trouble arose in that shop. The employer said : " Gentlemen, you must submit to a reduction of wages." The men in that foundry said: "No, we will not stand a reduction of wages." What was the outcome? The warden of Sing Sing Prison came to the city of of Albany, made a dicker with that foundry firm, and the entire plant was removed to Sing Sing Prison. Well, that encouraged the agitation against the prison contract system. The agitation against that system went along until 1883. The Legislature of that year, elected on a platform for the abolition of the prison contract system, cowardly in their action, sent to the people the question as to whether or not the contract system should be abolished. More than 400,000 people decided affirmatively, against 200,000 in the negative, and said that the contract system August 25.] CONSTITUTIONAL CONVENTION. 225 should go. Well, we come along to the next Legislature. What was the outcome? Gentlemen, the contractors of this State, the people interested in the prisons of the State, went to that Legisla- ture with a lobby, the equal of which has never been seen in the legislative halls of the Senate or Assembly since; and in the face of the fact that the people by a majority of 200,000 had said : "Away with the contract system," the inducement was strong enough upon the members of that Legislature to say: "No, we will retain the contract system;" and 'it was retained. We come along to the Fassett act. There is no use in reviewing all the ground from the time of the incidents mentioned, to the time when Senator Fassett introduced his act. Section 104 of that act reads as follows: " It shall also be the duty of the Superintendent of State Prisons to determine what lines of productive labor shall be pursued in each prison, and in so determining said superintendent shall select diver- sified lines of industry with reference to interfering as little as pos- sible with the same lines of industries carried on by the citizens of this State, and also with reference to employing the prisoners so far as practicable in occupations in which they will be most likely to obtain employment after their discharge from imprisonment. The Superintendent of State Prisons shall annually cause to be procured and transmit the same to the Legislature with his annual report, a statement showing in detail the amount and quantity of each of the various articles manufactured in the several penal institutions under his control within this State under the public account or piece-price plan which have been or were intended to be sold other than to public institutions. " Sec. 105. The total number of prisoners employed at one time in manufacturing one kind of goods which are manufactured elsewhere in the State shall not exceed five per centum of the number of all persons within the State employed in manufacturing the same kind of goods, as shown by the last United States census or State enu- meration, except in industries in which not to exceed fifty free laborers are employed. Provided, that not more than one hundred prisoners shall be employed in all the prisons of the State in the manufacture of stoves and iron hollow-ware." Mr. Chairman, that is the Fassett act. You might as well return to the Fassett act as to adopt the amendment which is offered by Mr. Marshall. Mr. Marshall's amendment practically is this, that, so far as practicable, the prisoners of the State shall manufacture for the benefit of the charitable institutions of the State. But when our prison authorities find it impracticable to manufacture for the insti- 15 226 REVISED RECORD. [Saturday, tutions of the State, they will turn around and manufacture for out- side concerns. The amendment embodied in the Fassett act is virtually the same. Mr. Chairman, we thought we had a great help when we obtained the Fassett act, and it was nothing else than this same amendment proposed by Mr. Marshall. This Convention might be pardoned for favoring such a measure were it not for the fact that we have had the experience furnished by the Fassett act, as proposed by Mr. Marshall's amendment. But, Mr. Chairman, the Fassett act says that one hundred men shall be employed in the stove trade and the hollow-ware trade. Well, let us see what that means. * They employ one hundred men in the stove trade; they employ one hundred men in the hollow-ware trade. Not content with that, they take advantage of the extra five per cent and put them on also, so that they are employed in the State, too, especially at the Elmira reformatory. Then we come along and we find the reformatories of this State standing ready at any time with a surplus of men, who have just enough knowledge of the different trades which they conduct at Elmira, to come out and do the work. A strike occurs, an industrial question arises in some portion of the State between employers and employes. What is the outcome? The parol system is put into effect; every person in any of those reformatories who has had any experience at all immediately writes to the employers, and Mr. Brockway sends those persons imme- diately to the employer to take the place of honest men. Mr. Chairman, we will now come down to the conditions prevailing during this last period of depression. We have all heard within the last year of the prominent men who have gone through the State preaching this lawful depression, the fact that the rich men have been immediately impoverished, that the poor man is to-day lying in want and hunger by reason of lack of employment. Up at the city of Auburn, where one of the prisons is situated, there are several jobbing shops, or new workshops. During the depression, those shops were practically closed, so far as new work was concerned. So far as Auburn was concerned the shops were closed. The prison authorities went to those people, and not content with having the new work, they took the jobbing out of the shops and took it to Auburn. We come down to Brooklyn. We find in Brooklyn, less than eight months ago, a firm by the name of Coyne & Delaney — the delegates from Brooklyn will bear me out in this — a firm employing three hundred men. The prison authorities of Sing Sing, finding that trade was dull in their business, immediately go to Brooklyn to see Messrs. Coyne & Delaney. Messrs. Coyne & Delaney accept their most liberal offers, close up their shops in August 25.] CONSTITUTIONAL CONVENTION. 227 Brooklyn and remove their entire plant to Sing Sing prison. But, the gentleman says, it is only sentiment that we are looking for in this Convention; there are no facts staring us in the face at all. Then again, the broom industry went so far, and the law was violated to such an extent that the committee went to the Governor and the Governor instructed the Superintendent of the Labor Bureau to make an investigation. That investigation shows that they imported brooms from Pennsylvania and sold them in this State at one dollar a dozen; and the Superintendent of the Bureau of Labor Statistics states that the brooms cannot possibly be manufactured for less than two dollars a dozen. Mr. Paulding, of New York, a broom manufacturer, who some of the delegates from New York city may know, states that since this investigation was inaugurated and the prison authorities compelled to comply with the law, his .sales of brooms have increased fifteen per cent. His letter, gentle- men, is on file in the office of the Labor Bureau. Mr. Paulding's letter, over his own signature, states that within two months the broom industry in his own establishment has grown fifteen per cent. Another gentleman says that this is an experiment that has never been tried. Gentlemen, if 40x3,000 people of this State, going to the ballot-box on election day, decide in favor of an experiment which has never been tried, have one hundred and seventy delegates sitting in this Convention any right to say that they will refuse to allow the people to try that experiment? I do not think they have. Mr. Peck states that the hollow-ware industry in Troy was wiped out of existence. Mr. Chairman, I remember within my time an extensive hollow-ware foundry in the southern section of this city, one that I can remember well, that was wiped entirely from the face of the globe by the prison competition system. The brush industry was also alluded to by Mr. Peck. And so far as the brush industry is concerned, I may add that the Superintendent of Labor has on file in his office reports made since this investigation took place making a very favorable showing as to the picking up of trade in that special industry. Mr. Chairman, I do not intend to take up the time of the Con- vention any longer on this subject. I was in hopes from the general sentiment which appeared to prevail in the Convention, that when Mr. McDonough finished his remarks this morning, followed by my able friend, Mr. Francis, we would immediately rise and report upon this question one way or the other; but it seems that consider- able opposition has developed; I know not from what source, nor why. This is a practical question. It is no dream. It is a live question, and before us; and I think the Convention should decide it. 228 REVISED RECORD. [Saturday, Mr. Chairman, it is now ten minutes of four. Not wishing to take up any more of the time of the Convention, I move that this committee rise and report to the Convention with a recommenda- tion that this amendment be passed. The Chairman — The motion is not in order at this time, as there are two amendments pending. Mr. Powell — Mr. Chairman, I simply want to make one sugges- tion in reference to the amendment that is now before the Con- vention or before the committee — the amendment of the gentle- man from Onondaga, Mr. Marshall. Having, as I do, great confidence in his legal judgment and in his ability to use words properly in all matters relating to the build- ing of a Constitution, and having on numerous occasions during the session of this Convention consulted with him about matters where I was in doubt, and having on all those occasions placed great confidence in the formation and opinion which he gave me, I am surprised that he should propose an amendment to the Con- stitution which shall contain a provision that some thing or things shall be done so far as may be practicable. Now, if there is any one thing that we want more than another in the Constitution, it is precise, accurate, definite language, about the meaning of which there can be, if possible, an absolute certainty. So far as practica- ble, these things shall be done. Suppose we adopt this proposed amendment to the amendment of the gentleman from Albany. Should it be considered then as mandatory or merely advisory? Will the courts construe it simply as advice which this Conven- tion gives to the Legislature for them to follow it so far as prac- ticable? Who shall determine what is practicable? The Legisla- ture, the Governor, the Superintendent of our State prisons, or the proposed State Board of Prisons, if such a board shall be insti- tuted, as I believe one will be, when the work of this Convention is finally passed upon by the people? And who can say that that which is practical to-day will be practicable next week, or that which is not practicable to-day may become practicable a week from now? I certainly think that it would not be only a mistake so far as this matter is concerned, but that it would be a grievous error for us to introduce anywhere in the Constitution of the State of New York such words as these; provided that certain things shall be done or must be done so far as practicable. There are certain persons who come to us and ask us for a certain thing. They define it clearly. There is no room for doubt, and it is the duty of this Convention either to give them that which they ask August 25.] CONSTITUTIONAL CONVENTION. 229 for, or to refuse to give it to them. In other words, do not let us try to cheat them with a subterfuge. Let us deal honestly with them. Either give them that which they request from us, or else absolutely deny it to them. Finally believing this, I shall vote against all of these amendments, and if the amendments be voted down, I shall vote affirmatively for the proposition itself. But let us not be deceived in stretching out to them that which appears perhaps to be a helping hand, but which shall turn out in the end merely to be the hand of death, without muscle, without nerve, without power. Mr. Osborn — Mr. Chairman, I wish only to make one practical suggestion in regard to the matter, which has "not yet, I believe, been touched upon, and which strikes me as having some value. It has been suggested that the prisoners and the reformatory inmates of the State should be used upon the public highways of the State, and I only suggest that there are great local jealousies, or such jealousies would arise between various communities, those on the one hand which would be favored by having their highways" improved by the prison labor, and those on the other hand which would not be so favored. I can easily imagine, for instance, that residents of one portion of Westchester county residing near the Sing Sing prison would hail with delight the building up of the highways, and thus building up the land values which surround the Sing Sing prison, but that another part of the county would feel aggrieved, that they would be compelled to bear their share of the burden for the support of the prisoners in Sing Sing, while their farms or villa sites would be lying in the same condition as they were before this proposition was introduced. Mr. Bigelow — Mr. Chairman, I am sorry to see so much elo- quence running to waste in this Convention, every drop of which might be admirably utilized in the next Legislature. (Applause.) This is purely a question for legislative action. It has no place here, at least that is the way it strikes me. We are asked to tie the people's hands and say they shall have nothing to do with the occupation and employment of the prisoners of the State after this Constitution goes into effect. They shall take no note of the fluc- tuations of trade and of business, and as was very properly said by the gentleman who spoke a few minutes ago, Mr. Powell, that your recognition of what may be changed to-morrow of what did exist yesterday cannot be determined. I think, therefore, that this is purely a question for the Legislature. I will, however, allow myself to say a word or two upon the particular amendment which I think 230 REVISED RECORD. [Saturday, implies an entirely false system of legislation, even if we had juris- diction. It practically says that the prisoners shall only be employed on work for which there is no market. That is what it amounts to. In other words, they may work upon State work, public work as it were, but they may not work upon anything that shall be sold in the general market. In other words, they may not make shoes or brooms, but they may be police officers, they may be sent to the Legislature, and you may make Governors of them. It seems almost an absurdity to put it in that light, but that is really the legitimate conclusion from the wording of this amendment. It reminds me a little of the old song we used to read of in our youth, attributed to Mother Goose: "Mamma, may I go out to swim? Yes, my darling daughter; Hang your clothes on a hickory limb, But don't go near the water." Gentlemen, there is no labor which you can imagine upon which you can employ prisoners that won't come right into competition with some other labor. Place them on a public work, and you dis- place free men. Place them anywhere else, and you bring them into competition with some one. I do not wish to argue upon this question. I only wish to say in conclusion what I said before, that this is only a question of legislation, and we should dismiss it from this body. Mr. C. B. McLaughlin — Mr. Chairman, I desire to say but a few words on this proposition. I do not care to go into the dis- cussion as to whether this proposed amendment is wise or not, but I propose to address myself most exclusively to that portion of the amendment embodied in the amendment offered by Mr. Pratt. Now, it seems to me clear that the words, that Mr. Pratt proposed to strike from the proposed amendment, ought to be stricken out. The State prisons and the penitentiaries and the jails are not to be classed with the reformatories of the State, and any person who has had any experience in sending young boys to these reform- atories will not for one moment think of classing boys from twelve to eighteen years of age with the criminals that are committed to State prisons. Now the whole theory of the reformatories of the State is that persons that have committed some minor offenses, who are possibly prone to evil, may be reclaimed and made good citizens. I have in my mind now an application which is pend- ing before myself concerning a boy thirteen years of age whom his mother wishes to be committed to the State Industrial School August 25.] CONSTITUTIONAL CONVENTION. 231 at Rochester. Xo\v when we are asked to put into the Constitu- tion a provision, which provides that the Legislature shall provide by law for the occupation and employment of that boy, it seems to me to be a principle which is vicious in its character throughout. In the first place, the boy is committed to that institution to be governed by its rules that he may be reclaimed and made a good citizen. Now when you say in a constitutional provision, that the Legislature of this State shall provide for the employ- ment and occupation of that boy, you destroy the whole principle ' which underlies the reformatories of this State, and all I care to say upon this subject is that it seems to me a most dangerous doctrine when you ask the Legislature to act to that extent. You destroy the whole principle which underlies that class of insti- tutions, and I sincerely hope that that amendment, if not anything further, may be adopted. Mr. Mclntyre — Mr. Chairman, I would like to ask the gentle- man a question. Would not that same argument apply equally as well to all the State prisons? Mr. McLaughlin — I answer it with pleasure. They are not of the same character. In the first place, a person is sent to a reformatory to be discharged when, in the judgment of the man- agement of that institution, they should be permitted to go at large. Whereas in the State prisons of the State a person is com- mitted for a definite term of years. It has not been the theory that the person committed to a State prison will be entirely reformed. He is not sent there solely for reformation. On the contrary, it is to furnish an example to the State at large, and the other citizens of the State, that they must not commit the same offense that he has. The theory which underlies the two institutions are as sep- arate and wide apart as can be conceived of. Mr. Mclntvre — Mr. Chairman, I would like to ask the erentle- » o man another question. Are they not both punishments? Are they not corrective in their nature? Mr. McLaughlin — Well, the whole theory of the reformatories of the State is not to punish a boy of thirteen years of age. It is to correct him. He is sent to such an institution that he may be reformed, not to punish him. Mr. Crosby — Mr. Chairman, the Convention will pardon me in making this suggestion: The words "employment and occupation" include study as well as work — occupying their minds as well as training them. The Elmira reformatory is a full-grown man; a full- grown tyrant. There is no boy about it. The labor is as severe, 232 REVISED RECORD. [Saturday, the hours exacted as long, and the punishments are more cruel than in any prison in the State, and when the superintendent fails to get the work out of them that he exacts, or fails to get the obedience required from the treatment that the inmates receive, he has the power and he sends them off to a prison to serve out the remainder of their sentences. It is a part of the prison system, and comes more in point with this system than any other prison institution in this State to-day. The Chairman — The question is on the motion of Mr. Pratt to strike out the word " reformatory." The Secretary will read the amendment. The Secretary read the amendment as follows: Mr. Pratt moves to amend by striking out in line 5, the words "and reformatory," and insert before the word "jail," in the same line, the word " and." The Chairman put the question on Mr. Pratt's amendment, and it was determined in the negative. The Chairman — The question now is on the amendment of Mr. Marshall. Mr. Moore — May we have it read? The Chairman — The Secretary will read the amendment of Mr. Marshall. The Secretary read the amendment as follows: Strike out all after line 5 and insert the following: "So far as is practicable such employment shall be restricted to the per- formance of labor upon public works and the manufacture of pro- ducts for the use of the State, or any political division thereof in the public institutions of the same, and by the several charitable institutions subject to State visitation and inspection." The Chairman put the question on Mr. Marshall's amendment, and it was determined in the negative. The Chairman — The question now is on the substitute of Mr. Griswold. The Secretary will read the substitute. The Secretary read the substitute as follows : Strike out all after line 5 of the first page and insert the fol- lowing: "As shall be for the best interests of the State, having regard for the safe confinement in prison and the welfare and improvement of the prisoners without other limitation. The Chairman put the question on Mr. Griswold's substitute, and it was determined in the negative. August 25.] CONSTITUTIONAL CONVENTION. 233 Mr. McDonough — Mr. Chairman, I move that the committee do now rise, report this amendment to the Convention and recom- mend its passage. The Chairman put the question on the motion of Mr. McDon- ough, and it was determined in the affirmative by a rising vote of fifty-five to twenty-seven. Mr. Mclntyre — Mr. Chairman, no quorum is present. I raise the point of order there is no quorum present. The Chairman — The members will please rise and be counted for a quorum. The Secretary proceeded to count the members present. The Chairman — A quorum is present; eighty-nine. The President resumed the Chair The Chairman — Mr. President, the Committee of the Whole have had under consideration proposed constitutional amendment, printed No. 392, entitled, an act to amend article 3 of the Con- stitution by adding a section to provide for the occupation and employment of the prisoners in the State prisons, penitentiaries, jails and reformatories of the State, have gone through with the same, made no amendment, and have instructed the chairman to report the same to the Convention and recommend its passage. The President — The question is on agreeing with the report of the Committee of the Whole. Mr. Abbott — Mr. President, owing to the fact of the slim attend- ance here, I move that the report of the Committee of the Whole be laid upon the table. The President put the question on motion of Mr. Abbott to lay the report of the Committee of the Whole on the table, and it was determined in the negative. The President — The question is on agreeing on the report of the Committee of the Whole. Mr. Powell called for the ayes and noes, and the call was sustained. The Secretary proceeded with the call of the roll. Mr. Abbott — Mr. President, after having listened attentively to this discussion, I am satisfied of at least two, and perhaps three, things. First, that there is a wrong which should be remedied. Second, I am not satisfied that the wrong can be remedied by the adoption of this proposition. Third, I am thoroughly satisfied, as has been so admirably stated bv the srentleman from Xew York 234 REVISED RECORD. [Saturday, (Mr. Bigelow), that it is entirely a matter for legislation. Now, I think that the fact that this matter receives the support that it does in this Convention is because, as has been stated so often here, of a distrust of the people. It is said that it cannot be carried through the Legislature by reason of the lobbying interests preventing it. Mr. President, I have confidence in the people and in their repre- sentatives that are elected every year, and I have confidence that if there are any evils they can be remedied from time to time. I with- draw my excuse, and vote no. Mr. Alvord — Mr. President, I desire to be excused from voting, and will briefly give my reasons. My reasons are that this is purely and entirely a legislative matter. It has no place in the Constitution of the State. The question comes up from time to time, and the exigency requires different treatment at different periods of the time. You put it into the Constitution and there it must remain, if the people say so, years and years, without any alteration whatever. I think if the people go so far as to approve of this amendment, if it is submitted to them, they will repent their action in sackcloth and ashes, but I think, Mr. President, that the people would condemn the proposition now before the Convention. Under those circumstances. I withdraw my request to be excused from voting, and vote no. Mr. Becker — Mr. President, I desire to be excused from vot- ing, and will state my reasons. I believe that when the people of this State put into the Constitution the prohibition of convict con- tract labor they meant what they said. I believe that the subterfuge that has been used under the name of the piece-price plan to avoid the effects of that constitutional prohibition, has worked great harm to the State, as well as to the honest labor within the State. I believe that no first-term prisoner that goes to any prison in this State should' be required to labor, except in manual training; that he should be educated and kept separate and apart from the older and corrupt minds of those that are in the prison. I am afraid that under the present condition, developed by the investigation of the Elmira Reformatory, a blow has been struck at indeterminate sen- tences for first-term- prisoners that it will take this State ten or fif- teen years to recover from, for I am afraid, from what I have heard from our judges and from the friends of prison reform throughout the State, that the tendency will be not to send these prisoners any more to these reformatories where indeterminate sen- tences prevail. I am one of those who believe that the solution of the problem of the reform of first-term prisoners rests in the inter- August 25.] CONSTITUTIONAL CONVENTION. 235 mediate sentence. I see no other hope for the reform of the first- term prisoners. Experience extending over nearly five years in the district attorney's office of Erie county showed me boys who came back from contact with hardened criminals and with the second- term criminals, corrupted in thes.e prisons, and I believe that this measure, although it may work hardship, although I am of the opinion that it is going to cost the State a large amount of money, is the beginning of a reform, if the people adopt it, that will lead to the making of these penal institutions, so far as the first-term pris- oners at least are concerned, solely and principally educational. For these reasons, and while I believe the scope of the amendment is so broad that it will not be ratified at the polls, while I believe that it will raise up against us a host of those who would not oppose Mr. Marshall's amendment, those who are furnishing the penal institu- tions with materials and products throughout the various counties of the State, making contracts in those counties from which they reap wealth The President — Your time has expired, Mr. Becker. Mr. Becker — I favor this amendment, because I believe it is a measure of reform. I, therefore, withdraw my excuse and cheer- fully vote aye. Mr. E. A. Brown — Mr. President, I ask to be excused from voting, and will briefly state my reasons. I do not agree with the gentleman from Erie (Mr. Becker) when he says that he thinks there should be no labor performed by the convicts sentenced to the prisons of this State. Mr. Becker — I said first-term prisoners. Mr. Brown — First-term prisoners or second-term prisoners, or any other prisoners. I say that it is the duty of the people of this State to keep the minds and the hands of the prisoners busy at something. I agree with my veneralble friend on the left (Mr. Bige- low) when he says that there is competition in every branch of labor; that the minute you turn out a convict to work on the roads or on the canals of the State you are turning an honest man out of work. I believe that the great harm that will be wrought is a direct blow at the agricultural districts of the State. I come from a district that is mainly agricultural, and I tell you that the farmers will not support any such measure. It is proposed to saddle the State with the expense of keeping these prisoners in idleness, and a large share of that expense will fall upon the fanners of this State. This is a whim of class legislation. For that reason, I with- draw my request to be excused from voting, and vote no. 236 REVISED RECORD. [Saturday, Mr. Gilbert — Mr. President, I ask to be excused from voting, and will briefly state my reasons. I think prisoners should be employed. I think they should be employed in productive labor. So far as that obtains I agree with the gentleman from New York (Mr. Bigelow), that it must to some extent come into competition with free labor. I arn in sympathy with the general purpose of this proposed amendment. I do not think it wise to provide in the Con- stitution specifically what convicts shall be required to do. If we put in there a general proposition that their labor shall come in competition with other labor with the least possible injury to the industries of the people of the State I should have no objection to it, but in the form which it now is, I am compelled to vote in the nega- tive, and withdraw my request to be excused, and vote no. Mr. Holcomb — Mr. President, I would like to be excused from voting, and will briefly state my reasons. I am in favor of the amendment. I am entirely convinced that it is quite proper that a proposition like this, that the State of New York shall not and is unwilling to make money or make any earnings out of the crime committed within her borders, should be put into the Constitution of the State. I would like to have convicts employed, but if any men are to be made idle in this State, in my judgment it should not be the honest men outside of the prison walls, but they should have employment even though the convicts never have any work to do. I am in favor of the amendment, and, therefore, withdraw my request to be excused, and vote aye. Mr. I. S. Johnson — Mr. President, I think it is not necessary to ask to be excused from voting under the present rules. The President — Not under the present rules. Mr. Johnson — But that any member may state his reasons. I am in favor of this amendment, and I am in favor of settling these great questions that are being discussed, and that have been agitat- ing the people, and settling them now and for twenty years to come if possible. Every year and for several years past, for many years past, this question has been discussed by the people. It is well known to every member of this Convention what their views are and whether it is right or wrong, and if it is right that this matter should be settled in the affirmative, I am in favor of settling it now. I believe that this proposition is right and I am in favor of placing it in the fundamental law of the land, and I, therefore, vote aye. Mr. O'Brien — Mr. President, coming as I do from one of the prison towns of this State, I have seen very many of the disad- vantages of competition between the free labor and the convict August 25.] CONSTITUTIONAL CONVENTION. 237 labor of the prison. I have from the start, from the very beginning of this Convention, felt that something should be done to remedy the evils which are suffered there. I have, however, from the intro- duction of this amendment and before our Committee on Prisons, of which I am a member, opposed it, because I have believed that it has gone altogether too far. That is too radical and sweeping a measure to incorporate into the fundamental law of this State. I think we are taking a very serious step when we bind by a system in the Constitution the prisons of this State for no one knows how many years to come. I believe that we should be content here and now with passing some general Constitution provision which should crystallize into our law the determination of the people of the State upon this question. But to incorporate into the Constitution of our State a hide-bound system from which we cannot depart, I believe to be a very serious wrong. I think, therefore, Mr. President, I must vote no. Mr. Spencer — Mr. President, in explaining my vote I desire to say that I do not believe that we should arrogate to ourselves all the duties of the Legislature. We were not sent here to legislate in regard to matters of this character. It is a matter which the Legislature is fully competent to deal with, and one which it has not shown any disposition to shirk from. As I understand it, there is no complaint anywhere but that the Legislature of this State has listened patiently to all complaints and petitions in respect to this matter, and have tried to the very best of their ability to deal with it in an intelligent and fair manner for all, and for us, a Constitu- tional Convention, to take up and experiment with a matter which the Legislature has not yet dared to do, and incorporate it into the Constitution, and provide, as this provision does, that the resuks of the labor of the prisoners of this State shall not be sold to any person or corporation, we are putting into the Constitution a mat- ter that should be left out, and which we will hear from to our sore disadvantage, if we put it in, when we come to lay the results of our labor before the people. They will say to us: "You have been dealing with a matter that belongs to the Legislature, that may be changed from time to time, as the exigency arises, and it will, therefore, not receive our approval." I, therefore, vote no on this proposition. Mr. A. B. Steele — Mr. President, as I understand the effects of this proposed amendment, it requires that all persons confined in prisons and the other places mentioned should work and should be put to work, and then the next proposition is in effect that they 238 REVISED RECORD. [Saturday, must produce nothing, or, in other words, their production cannot, must not, be disposed of. Now, if the Legislature, as has been said, has been endeavoring to solve the problem as to how best to care for the persons confined in prisons, and as to whether or not if they work their productions should be disposed of, and the Legislature has been unable for a number of years to solve it, it seems to me that we are taking a wonderful stride and arrogating to ourselves wonderful knowledge in undertaking in the short time that we have been assembled here to solve it. I, for one, am not willing to do it. I am willing to make that statement. I believe it is for the Legis- lature to do it, and believing that, and having full confidence in the ability of the Legislature to handle and properly dispose of any questions that come before it, I vote against this proposition. The President — In explaining my vote, I wish to say that I regard this amendment as a most unwise interference with the power of the State to manage the prisons of the State according to the best results of modern science as it has developed from time to time. In my judgment, this matter of the relation of prison management to free labor outside in the State is a problem which has not yet been solved and will not be solved for some time to come, and while it goes without saying that free labor ought to be protected in every possible manner from competition of convict labor, whether in the form of contract labor or piece work, or any other form, that it is no place and no time for us now to put into the Constitution such a rule as this, that cannot be changed for twenty or thirty years. In my judgment, if adopted, it will be seriously regretted as well by the champions of free labor as by the other people of the State. I vote no. Mr. McDonough — I call for the absentees. The Secretary called the absentees. Mr. C. B. McLaughlin — Mr. President, I desire to be excused from voting, and will briefly state my reasons. I believe this matter to be entirely a matter for the Legislature. I think the people of the State can safely trust the Legislature with this problem to decide wisely for the best interests of the State. I cannot conscien- tiously vote to put the reformatories on a par, in the same class of the prisons of this State. I, therefore, withdraw my request to be excused from voting, and vote no. The President — The report is agreed to, fifty-eight in the affirmative and thirty-three in the negative. The amendment goes to the Committee on Revision, and when reported by them will be put upon the order of third reading. August 25.] CONSTITUTIONAL CONVENTION. 239 The vote in detail is as follows : Ayes — Messrs. Ackerly, Arnold, Barnum, Becker, Blake, Bow- ers, Campbell, Cochran, Coleman, Crosby, Davenport, Dickey, Floyd, Francis, Augustus Frank, Fraser, C. A. Fuller, O. A. Fuller, Gilleran, A. H. Green, Hecker, Hill, Holcomb, Rolls, Hottenroth, Jacobs, I. Sam Johnson, J. Johnson, Kerwin, Kinkel, Kurth, Marks, McArthur, McDonough, McKinstry, Meyenborg, Moore, Morton, Ohmeis, Parker, Peabody, Peck, Platzek, Porter, Powell, Rogers, Smith, Speer, Springweiler, T. A. Sullivan, Titus, C. H. Truax, C. S. Truax, Tucker, Turner, Vogt, Williams, Woodward — 58. Noes — Messrs. Abbott, Alvord, Bigelow, E. A. Brown, Cady, H. A. Clark, Deady, Dean, Doty, Emmet, Farrell, Gilbert, Gris- wold, Hamlin, Hawley, Manley, Marshall, Mclntyre, C. B. McLaughlin, J. W. McLaughlin, O'Brien, Osborn, Parkhurst, Phipps, Pratt, Putnam, Rowley, Spencer, A. B. Steele, W. H. Steele, Tibbetts, Wellington, President — 33. Mr. Gilbert — Mr. President, I move that the Convention now go into Committee of the \Vhole on general order Xo. 65. I do it for this reason: It is one which, I think, will provoke very little if any discussion. I think every member will be in favor of it when he knows what it is. It does simply one thing. It provides that the annual session of the Legislature shall begin on Wednesday instead •of Tuesday, so as to avoid desecration of Sunday by caucus work on that day. I think there will be no discussion about it. Mr. Peabody — Mr. President, I would like to be excused for the balance of the session to-day in order that I may catch my train for home. The President put the question on excusing Mr. Peabody for the balance of the day, and it was determined in the affirmative. Mr. Powell — Mr. President, I ask that Mr. Allaben, of Brooklyn, be excused. He sent word to me this morning, and I did not have an opportunity to request it then. I, therefore, ask now that he be excused for the day. The President put the question on granting leave of absence to Mr. Allaben, and it was determined in the affirmative. Mr. Kerwin — Mr. President, Mr. Andrew Frank stayed here up to the roll-call, and was obliged to leave in order to take a train for home, where he is called on business of importance. He stayed until the last moment. The President put the question on granting leave of absence to Mr. Frank, and it was determined in the affirmative. 240 REVISED RECORD. [Saturday, The President put the question on the motion of Mr. Gilbert, that the Convention go into Committee of the Whole on general order No. 65, and it was determined in the affirmative. The President — Mr. Platzek will please take the chair. The Convention resolved itself into Committee of the Whole. Mr. Platzek in the chair. The Chairman — The Convention is in Committee of the Whole on general order No. 65 (O., I. No. 385, P. No. 444), introduced by Mr. Gilbert. The Secretary will read the proposed amendment. The Secretary read the proposed amendment, entitled " A pro- posed amendment to amend section 6 of article 10, in relation to the time when the Legislature shall assemble." Mr. Gilbert — Mr. Chairman, I have already stated the object of the amendment, and I presume it is not necessary to say anything more. Mr. Bowers — Mr. Chairman, I make the point of order that there is no motion before the House. Mr. Gilbert — Mr. Chairman, I move that the Committee of the Whole do now rise, report this amendment to the Convention, and recommend its passage. The Chairman put the question on the motion of Mr. Gilbert, and it was determined in the affirmative. The President resumed the chair. Chairman Platzek, from the Committee of the Whole, reported that said committee had had under consideration general order No. 65, made no amendment thereto, and was instructed to report the same to the Convention and recommend its passage. The President put the question on agreeing to the report of the committee, and it was determined in the affirmative. The President — The amendment goes to the Committee on Revision, and on their report will be put on the order of third reading. Mr. Bigelow — Mr. President, I move that the Convention do now adjourn. Mr. Moore — Will Mr. Bigelow give way for a moment? Mr. Bigelow — Certainly. Mr. Moore — Mr. President, it may be necessary for me to be absent on Monday morning. I am not sure of it, but I would like August 25.] CONSTITUTIONAL CONVENTION. 241 to make provision for it. I, therefore, ask to be excused for Monday. The President put the question on granting leave of absence to Mr. Moore, and it was determined in the affirmative. Mr. Bigelow — Mr. President, I renew my motion to adjourn. The President put the question on the motion of Mr. Bigelow, that the Convention do now adjourn, and it was determined in the affirmative, whereupon the Convention adjourned until Monday morning, August twenty-seventh, at ten o'clock. Monday Morning, August 27, 1894. The Constitutional Convention of the State of New York met in the Assembly Chamber, at the Capitol, Albany, N. Y., Monday, August 27, 1894, at 10 A. M. President Choate called the Convention to order. Mr. Lincoln moved that reading of the Journal of Saturday, August twenty-fifth, be dispensed with. The President put the question on Mr. Lincoln's motion, and it was determined in the affirmative. Mr. Durnin — Mr. President, family matters call for the absence of Mr. Deyo until to-morrow afternoon, and I ask that he be excused until that time. The President put the question on the request that leave o£ absence be granted to Mr. Deyo, and he was so excused. Mr. Lincoln — Mr. President, I have been present so far at every session of this Convention since it was organized, but I think I will ask the grace of the Convention to be absent on Thursday, Friday and Saturday of this week and Monday of next week, if the Con- vention sits on Monday. The President put the question on the request of Mr. Lincoln to be excused from attendance, and he was so excused. Mr. Hill — Mr. President, I would like to be excused on Satur- day of this week and on Monday of next week. The President put the question on the request of Mr. Hill to be excused from attendance, and he was so excused. Mr. Porter — Mr. President, there are some matters demanding; my personal attention, and I ask to be excused on Friday and Sat- urday of this week. 1(5 242 REVISED RECORD. [Monday, The President put the question on Mr. Porter's request to be excused from attendance, and he was so excused. Mr. Turner — Mr. President, I would like to be excused on Friday and Saturday of this week, and Monday and Tuesday of* next week. The President put the question on Mr. Turner's request to be excused from attendance, and he was so excused. Mr. H. A. Clark — 1 would like to be excused on Saturday after- noon of this week, and Monday of next week, on account of busi- ness engagements. The President put the question on Mr. H. A. Clark's request to be excused from attendance, and he was so excused. Mr. O. A. Fuller — Mr. President, I would like to be excused on Saturday of this week and Monday of next week, on account of important business. This is the first time I have asked to be excused. The President put the question on the request of Mr. Fuller to be excused from attendance, and he was so excused. Mr. Hottenroth — Mr. President, Mr. Ohmeis asks to be excused to-day. The President put the question on the request that Mr. Ohmeis be excused from attendance, and he was so excused. Mr. Ackerly — Mr. President, I should like to be excused on Saturday of this week and the Monday following. The President put the question on the request of Mr. Ackerly to be excused from attendance, and he was so excused. The President — The Chair is very sorry to state that Mr. Alvord, for the first time, in consequence of the condition of his health, wishes to be excused to-day. The President put the question on the request that Mr. Alvord be excused from attendance, and he was so excused. Mr. Powell — Mr. President, I have just received a letter from my associate in business in New York, and I find that my presence will be required there for a short time to-morrow, and I ask to be excused from attendance at to-morrow's sessions. The President put the question on Mr. Powell's request to be excused from attendance, and he was so excused. Mr. Woodward — Mr. President, on the eighteenth day of August I presented a minority report as member of the Com- mittee on Preamble. I supposed it was referred to the Committee August 27.] CONSTITUTIONAL CONVENTION. 243 of the Whole, but it does not seem to be by the Journal. It has been printed, and is Document No. 56, I desire to have it referred to the Committee of the Whole. The President — The rules do not permit it to be referred to the Committee of the Whole, but when the question is under discussion in the Committee of the Whole you can move it as an amendment. That is the course minority reports have taken. Are there any petitions or memorials, notices or resolutions, reports of committees ? The first business in order to-day is general order No. 8 (O., I. No. 258, P. Nos. 260-317), unfinished, with Mr. C. H. Truax in the chair. Mr. Dean — Mr. President, is that Mr. Lauterbach's general order? Is that a continuing special order? The President — It is continued especially for this morning. Mr. Dean — My understanding was that it was for Saturday. Mr. Holls — I think the cities article is the first special order. The President — The Chair understands from the Secretary that this amendment of Mr. Lauterbach's was a special order for Satur- day, and will require a vote to be taken up now. Mr. Holls — Well, I call for the order of the day. The President — Mr. Lauterbach, will you give your attention for a moment? It seems there has been some difficulty about your order as to its losing its place. The Chair had the impression that it was continued as a special order for this morning. The Secretary states that it was a special order for Saturday and was reached that day, and, therefore, no motion having been made, it lost its place. Mr. Lauterbach — I make the motion now. Mr. Dean — I rise to a point of order, Mr. President, that it requires a two-thirds vote to displace a special order. The cities article is a special order for this morning, and it requires a two- thirds vote to displace that before this can be taken up. Mr. J. Johnson — Mr. President, I entirely concur in Mr. Lauterbach's motion. It prevents the necessity of discussing sec- tion two twice. The President — On consulting the rules, the Chair finds that unfinished business of general orders comes ahead of special orders. Judge Truax will please take the chair on this general order. The House resolved itself into Committee of the Whole, and Mr. C. H. Truax took the chair. 244 REVISED RECORD. [Monday, Mr. Lauterbach — Mr. Chairman, there seems to have been some error in the understanding at the Secretary's desk. Mr. Bowers's motion was, in which I, of course, concurred, that the amendment be printed. It does not appear to be printed, but I presume the Convention would be satisfied if it were again read. It is very brief, and contains the substance of the original proposition, and is only a change in phraseology to conform to the suggestions of the Cities Committee, so as to be a substitute for the provision in that respect contained in the report. I ask for the reading of the amendment. The Secretary read the amendment as follows: "Sec. — . All laws creating, regulating or affecting boards or officers, charged with the duty of registering voters or of distribut- ing ballots, or of receiving, recording or counting votes at election, shall secure equal representation of the two political parties which at the general election preceding that for which such boards or officers are to serve, cast the highest and the next highest number of votes. All such boards and officers shall be appointed or elected in such manner upon the nomination of such representatives of such parties respectively as the Legislature may direct. Existing laws on this subject shall continue until the Legislature shall other- wise provide." Mr. Lauterbach — Mr. Chairman, I stated the substance of the amendment fully on Friday, and I suppose that its general nature is thoroughly understood. Its discussion was checked, and a neces- sity created for its being put over owing to the ignorance of the gentleman in charge of the proposition as to the charactertistics and peculiarities of town meetings. The gentleman having been born in the Bowery in the city of New York had not very much experience in town meetings of any kind or character. Conference with those having full knowledge of the subject has resulted in a general consensus of opinion that it would be wise to restrict the effect of the proposed amendment from town meetings, and I offer as amendment that at the end of the proposed amendment there be added the words, " This section shall not apply to town meetings of this State." Mr. Dickey may explain, if he will kindly do so, the present practices that prevail in respect to town meetings. Mr. Bowers — I make the point of order that you cannot amend a substitute until the substitute has been adopted. We are on the original amendment. It can be amended or a substitute offered. I do not see how we can receive a substitute and amend a substitute and keep any track of where we are. When the substitute is August 27.] CONSTITUTIONAL CONVENTION. 245 adopted it takes the place of the original amendment and then we can amend it. If Mr. Lauterbach withdraws his substitute and amends it, then he can put it in any form he likes. Mr. Lauterbach — Well, I add that as a part of my substitute, if there be no objection. The Secretary read the amendment as follows: " This section shall not apply to the town meetings of the several towns of this State." Mr. Lauterbach — If you would add another qualification so that it may be fully understood, I will qualify the substitute further at the suggestion of Mr. Holcomb and others. The words "officers shall distribute ballots " might, perhaps, be held to apply to police superintendents and police commissioners. There is no such intent, and in order to cover that objection, which also appears to be valid, I propose that there be added after the words " distributing bal- lots," in the third line, " at the polls," so that it shall only apply to the official distributer of ballots who has been designated as a ballot clerk and who officiates at the polls. In that form I submit it as a whole. Mr. Holls — May we have it read in its amended form? The Secretary read the amendment as follows: "All laws creating, regulating or affecting boards or officers charged with the duty of registering voters, or of distributing bal- lots at the polls, or of receiving, recording or counting votes at elections, shall secure equal representation of the two political par- ties which, at the general election preceding that for which such boards or officers are to serve, cast the highest and the next highest number of votes. All such boards and officers shall be appointed and elected in such manner and upon the nomination of such repre- sentative of such parties respectively as the Legislature may direct. Existing laws upon this subject shall continue until the Legislature shall otherwise provide. This section shall not apply to town meet- ings in the several towns of this State." Mr. Dickey — Mr. Chairman, at the request of the mover of this amendment, I desire briefly to explain to those gentlemen from the cities who never get into the country the reason of the excep- tion of the towns from the general provisions of the amendment as originally proposed. In towns where there is but one election dis- trict, and that applies to a great many towns in the State, the board of election officials is made up of the four justices of the peace and the town clerk, they sitting as an election board. Large towns are 246 REVISED RECORD. [Monday, some of them divided into election districts, some as many as three and four election districts. In some towns where they vote in election districts, as many as three or four at the fall election, at the spring election they vote all together at one polling place, and there elect their town officers, the supervisor, the town clerk, the justices of the peace, the constables, the excise commissioners and such like town officers. The general provision might might apply to towns where there is more than the one election district. I had placed on Mr. Lauterbach's desk without seeing him, in his absence, an addi- tional amendment to this section, reading as follows : " This sec- tion shall not apply to town meetings in the several towns of this State in which the voters therein all vote at one election place;" limiting the exception only to such towns where all the voters voted at one polling place. The election officers are elected in the spring in all the towns of the State, and at that election, where they have more than one election district for the fall elections, they elect the inspectors of elections in the respective districts. Leaving it as he proposes it now, might make an embarrassment as to those various election districts in the several towns, because the justices of the peace and the town clerk, in towns where there is more than one election district, could not well divide themselves among the possi- ble three or four election districts. So that I think the qualification and the reservation and exception should be in the form that I have now indicated. But in those towns where there is but one election district, the requirement of one inspector from each party should not be made, because in the towns the justices of the peace and the town clerk are frequently the big men of their respective localities, and we do not want to array that mass of people against this Con- stitution, because if you do there will be no chance of its passing in the rural districts or getting any votes. They are so powerful and influential, that if you take away from them the fees they get as town officers at the elections in the spring, I fear it would influence them so strongly that they would be effective in massing a large number of votes against this Constitution. I think it ought to be amended in the particulars that I have indicated, so as to leave them to perform their functions in the spring as they have been in the habit of doing from time immemorial. And as this is an ancient prerogative, I am sure the Chair and a good many of the members will approve of continuing it because of its antiquity, if for no other reason. Mr. Emmet — Mr. Chairman, I should like to inquire as to the duties of local boards in relation to local elections in towns in which there is only one election district. I understand from Mr. Dickey August 27.] CONSTITUTIONAL CONVENTION. 247 that in such towns the local boards consist of the justices of the peace and supervisors. Mr. Dickey — Not the supervisor — the town clerk. Mr. Emmet — Well, the town clerk; they act as election inspectors. I understood that in such towns and all towns, they acted as boards of canvassers, acted as canvassers of the returns, but had no dealings with the votes. It seems to me that in the town in which I live, and which, I think, is a representative town, their duties have no connection whatever with those of an ordinary election officer. They deal only with the returns which come in from the election officers, and I wished to make a suggestion about their being excluded in these towns, excluded from the operation of this law. Mr. Dickey — In answer to the gentleman's question, I do not know how it may be in regard to his particular town, but in all the towns .of the State, of which I have any knowledge, they act as a board of election officers at the town meeting only. They receive the votes themselves. There are no separate election officers other than the town board, made up of the justices and the town clerk. Mr. Dean — Mr. Chairman, the full growth fetich having been introduced into this committee, the experience of the past few days ought to adminish me that I should be quiet and not raise my voice in opposition. But in the language of Thomas Jefferson, " I have sworn eternal hostility to every form of tyranny that rules over the mind of man." This word " reform " has grown into a tyranny in this country. Everything that comes into this Convention desig- nated a reform is carried along as though it was something sacred, something that must be considered without any regard to any other question which may come before us. Now, this proposition for bi-partisan elections does not accomplish the objects which the movers claim for it. It does not provide for the appointment of men by responsible representatives of the public, but leaves it entirely in the hands of the Legislature to juggle with this fetich in any manner which may suit their purposes. Now, we are driven away from fundamental principles. If the rule of majorities is right, then there is no more excuse for introducing this bi-partisan fad into this Constitution than there would be for any of the many other foolish propositions which have been submitted to this Con- vention. Logically, if the majority cannot be trusted to conduct elections, then we should go to the other extreme and give to the minority a majority of the election officials. Certainly there is nothing logical in making a double-headed board of registration. 248 REVISED RECORD. [Monday, It is fatal to our system of government, because it leaves no place where the matter can be decided in the event of a discussion, a •difference of opinion, as between parties. There is absolutely no power of decision. It is simply anarchy. In our system of govern- ment, in the Senate of both the United States and the State of New York, we provide a presiding officer, whose duty it is to cast a vote in the event of a tie between the two parties. In this we have entirely violated that principle. This is probably the first time in the history of a constitutional government, when a dignified and •deliberative body, brought together for the purpose of formulating the fundamental law of the State, has recognized political parties .and political committees as the foundation of a system of govern- ment. I find in the statute of 1894, chapter 348, I believe it is, the law which is proposed to be made a part of this Constitution. Our Constitution provides that no statute shall become a part of any other statute unless it is embodied in the statute which has been enacted. We are proposing to introduce in the Constitution .a statute which as yet has been inoperative, never has been in force; simply came into effect in July, and never has been operative. I find in that statute that the mayors of the several cities of the State, outside of New York and Brooklyn, are empowered with the duty •of appointing election inspectors in the several election districts of their cities. They do this upon the suggestion of the local commit- tees, or the county committees, as may appear, and if these do not agree, the mayor himself is allowed to do these things. It does away with all the inspectors of election in the several towns and cities of this State, and puts it into the hands of mayors chosen without any reference to this question, to come in and nullify the action of the electors. I find in this statute, that if more than one list for any political party is submitted to the mayor, the appoint- ment shall be made from the list, if any, submitted by the organi- zation of such party, recognized as regular by the State convention of such party, held next before the tenth day of August, or if the regularity of any of the organizations of the parties submitting two or more such lists, shall not have been passed upon by such State convention of such party, then such appointment shall be made from the lists submitted by the organization decided to be regular by the State committee appointed or organized in pursuance of such convention. These gentlemen in this convention who have laid awake nights, fearful that Thomas Platt would organize the party in this State against the best interests of the people, are deliberately going to work to put in the Constitution this provision that Mr. Plait's State committee, or Mr. Sheehan's or Mr. Murphy's State August 27.] CONSTITUTIONAL CONVENTION. 249 committee may decide upon the regularity of the election officials in every city in this State practically. All that is neces- sary is to get up a little faction somewhere, and get the machine, the State committee, to recognize it as regular. This may be making a Constitution which will be approved by the people, but, in my opinion, it is not. In my judgment it is a fatal defect. In the cities of New York and Brooklyn it is provided that these election inspectors shall be chosen by the board of police commis- sioners out of lists submitted by the several party organizations, and in section 15 it is provided that if they do agree in organizing these boards they shall draw lots for the position of chairman. Is not that a dignified thing for a Constitutional Convention to be providing, that we should go into the organizing of an election official or an election board by lot? It is a mere game of lottery. We have in our Constitution a provision that we shall have no lot- teries in our State, and here we are deliberately providing for a lottery in the choice of election officials. It is all wrong and vicious. There is no reason in the world why the people of the several elec- tion districts should not elect their election officials. There is no reason why, having elected them, they should be legislated out of office by a statute, and that statute indorsed by the Constitution of the State. I know it is true that the Legislature is allowed to change these constitutional provisions, but it seems to me that that is a very extraordinary provision, to put something into the Constitution, and then say that the Legislature may change it at its pleasure. It is absurdity. We want the rule of majorities. I would rather trust the Democratic board of inspectors elected by the people, than to have a bi-partisan, namby-pamby, goody-goody sort of a board chosen by the mayor at the dictation of a lot of cheap ward politicians. I am opposed to it. I do not believe you can carry such a provision before the people of this State. I under- stand, Mr. Chairman, by the impatience of this Convention in listening to these remarks, that is is absolutely useless to talk against it. You might talk here until the day of the resurrection and you could not stop anything in the nature of a fad, but I want to be put on record as opposing any such kind of fallacy, which is absolutely opposed to every conception of dignity and decent gov- ernment by the people. Mr. A. H. Green — Mr. Chairman, I move that the committee rise, report progress and ask leave to sit again, have these amend- ments printed, and have the matter reserve its place on the calendar. This is a matter of vast importance and everybody ought to understand it. I must confess there are amendments I do not 250 REVISED RECORD. [Monday, understand that have been offered here, and I want it in such shape that I can understand them. Mr. Bowers — Will the gentleman from New York (Mr. A. H. Green) withdraw his motion for a moment to allow an explanation to be made? Mr. Green — Certainly. Mr. Bowers — Mr. Chairman, the substitute which has been offered is taken from the language of one of the proposed bills bearing upon the cities of the State, and it is exceedingly important that this question should be disposed of before we take up the cities article, which is down for consideration next, as this bears upon the whole State. I think there is no difficulty in our proceeding. I first felt as the gentleman from New York (Mr. A. H. -Green) feels, but on discovering that the language of Mr. Lauterbach's substitute is precisely the same as one of the cities articles, I think there is no difficulty in our dealing with the subject and amending it and pass- ing it now. I hope the gentleman from New York will permit us to amend it and dispose of it before we go into the cities matter. Mr. Lincoln — Mr. Chairman, I move to amend, if an amendment is in order, by excepting from the provisions of this amendment, charter elections in incorporated villages. Mr. Bowers — I make the point of order that until the substitute is adopted it cannot be amended. The Chairman — The point of order is well taken. Mr. Lincoln — I am not advised as to the order of amendments. The Chairman — There is a substitute now before the House. Mr. Lincoln — What is the substitute? The Chairman — The Secretary may read the substitute. Mr. Mclntyre — Mr. Chairman, I rise to a point of order. I understood the gentleman from New York (Mr. A. H. Green) made a motion and only withdrew it for the purpose of an explanation. I think that motion should be entertained. The Chairman — The Chair understood the gentleman from New York (Mr. A. H. Green) to withdraw the motion. Mr. Green — I withdrew my motion for the purpose of allowing the gentleman from New York (Mr. Bowers) to make an explana- tion. I now insist upon the motion. Mr. Mclntyre — We know nothing about this, and I think it should be printed that we may know what is being done. Mr. Lauterbach — I desire to explain that the resolution on August 27.] CONSTITUTIONAL CONVENTION. 251 Friday was, as we understood it, that the amendment should be printed. The motion was not made so clearly as to cause the Secre- tary to catch the point as to the printing, and the amendment was not printed. If any gentleman desires to have it explained, it is an amendment of six or seven lines, which carries out the original pur- pose with a little more detail as to the appointment of bi-partisan or non-partisan election inspectors at every election throughout the State. General order No. 8 contains the printed amendment. The sub- stitute, instead of providing for boards of election officers only, which might be construed to be inspectors of election, refers in detail to the registering officers, the clerk who receives the ballots, the ballot clerk and the poll clerk. It specifies that they shall at all times be bi-partisan. I will state for the information of Mr. Mclntyre, as stated on Friday, that the present law seems to be entirely satisfactory to the people throughout the State, and has precisely the provisions that are sought now to be embodied in the Constitution, and the amendment provides that the existing law shall not be modified or repealed unless any law made in substitution of it shall contain those provisions. In other words, it is intended to engraft into the Constitution of the State the policy that the casting of the votes and the counting of the ballots shall be under the supervision of the representatives of both parties, and not of one party only, and that that shall prevail generally throughout the State ; and is simply crystallizing into the Constitution the essential element of the statute of 1894, so far as it applied to towns and the city of New York, and other statutes which apply to other cities of the State, Brooklyn and Buffalo, which had been enacted before that, in which the policy of bi-partisan election boards has been steadily maintained. Mr. Dean — Mr. Chairman, this provision is wide enough in its scope to cover every school district election in the State. It has not been printed. Gentlemen in this Convention do not know anything about what it provides. It is impossible to find out anything about it. I move that the committe rise, report progress and ask leave to sit again. Mr. A. H. Green — And that it be printed and retain its place. The Chairman — That motion must be made in the Convention. The Chairman put the question on Mr. Dean's motion, and it was determined in the negative. Mr. Ackerly — Mr. Chairman, this matter of bi-partisan boards throughout the State I am in favor of, and it seems that all the dele- gates here are in favor of it generally. Now, the question arises in regard to town meetings. It seems to me that this matter of town 252 REVISED RECORD. [Monday, meetings has not been, perhaps, fully explained, so that all the members understand it. The old rule was for the towns to meet at one place during the spring elections, at their town meetings, and that provision, I understand, now prevails in a majority of the towns. A few years ago the Legislature passed an act by which it was submitted to the vote of the people to have their elections in districts. Then the board of supervisors were given power to pass an act allowing them to have their elections in dis- tricts. Now, when they do have their elections in districts, mem- bers will understand that the same board of election officers act as such in the fall, and at all other elections. So that in the towns that voted to have their elections in districts, the same state of affairs exists. But if you extend it and do not except towns that did not vote for elections in districts, then the Legislature will have to make provision for those towns, and where they now have one board of election in the whole town, they may be divided up into districts, and, perhaps, four or five districts. That would meet with great opposition, and, perhaps, would be unnecessary. But I am in favor of this amendment, provided it excepts towns which do not now vote in election districts. Mr. Vedder — Mr. Chairman, I suppose the object of this is to have all elections in cities and in every locality of the State pro- vided with boards which conduct those elections non-partisan. I suppose those are the general elections that were intended to be provided for, in which all the State are interested, the elections for Governor, State officers, members of the Legislature and federal officers, and I would ask Mr. Lauterbach whether he could not make this apply only to those general elections, leaving charter elections in cities and elections in towns to be regulated as the Legislature might direct. For instance, what concern is it to that great city which sits at the gates of the sea, the city of New York, how a town meeting is carried on in the western part of the State, or in the great northern part of the State, whether this supervisor or that supervisor is elected, or this or that town clerk or constable or justice of the peace. Why not let the system that they have in towns be as it now is, or as the Legislature shall direct, for the rea- son that those elections do not affect the balance of the State? Now, when you say boards of election officers, that would mean the election officers of a town or any municipality, incorporated villages, at general elections or special elections, and so forth. Why not start in by amending the section so as to have it apply only in the first instance, to general elections which attract the whole people of the State, and let it go at that. I understand the gentleman from August 27.] CONSTITUTIONAL CONVENTION. 253 Brooklyn has a scheme for the organization and regulation and government of cities. That takes in, as I understand it, the election boards in all of the cities of the State. That is provided for. Would it not be easier and better to have this non-partisanship apply to boards of election, in those elections only which affect the whole State, where the city of New York, for instance, is interested in what the town of Little Valley, where my friend Lincoln resides, shall do. I simply offer these as suggestions to the gentleman from New York (Mr. Lauterbach). Mr. Lauterbach — Mr. Chairman, I understand there are two suggestions, the one to limit the operation of the proposed amend- ment to general elections. The answer to that is that the main object of those who are anxious to secure bi-partisanship at elec- tions, is that fair elections shall certainly be conducted at local elections in the great cities, which is of as much, if not more, conse- quence to the inhabitants of the State than general elections. We desire to accomplish the results not only at general elections, but especially at local elections, therefore, the limitation in that respect would not be wise. As to the further suggestion that is proposed that it be left a matter for the Cities Committee to arrange as a part of their general scheme for the government of cities only, I desire to say this, that for many years while the inequality of the election boards throughout the country and in the city prevailed in the country in favor of one party and in the cities in favor of the other, that it seemed to be a general feeling that fair elections should be provided as far as possible not only in the cities, but also in the country, and that the same principle that obtained in an election in a city to a great degree was equally applicable to an election in the country to a lesser degree. Now, there are one or two cases which have been pointed out in which there can be no substantial grievance at the election, and in which there would be greater diffi- culty in endeavoring to create bi-partisan election boards than the wrong that is complained of creates. Therefore, it seems to be not unfair to make the exception as to town meetings in which all elections are held at a single polling place, and it seems to be not unfair, as suggested by Mr. Lincoln, that in incorporated villages, the methods of whose elections are prescribed by their charters, and whose elections are doubtless controlled by a board of trustees, should also be excepted from the rule. But I believe that what is fair for the city is fair for the country in respect to any effort to regulate the election and render it certain that it shall be honestly conducted. For that reason I should not desire to entertain an amendment that would cause a change in either respect, either as 254 REVISED RECORD. [Monday, to a limitation to local elections or as to a limitation to the effect of the provision to cities only. Mr. Woodward — Mr. Chairman, there is one idea that suggests itself to my mind. Suppose you have four election inspectors, two from each party. A man comes up with a vote and is challenged, and the board stands two and two; who is to decide? How is he to get in his vote? Should there not be a majority on the election board, three to two, instead of two and two, so that it may be decided whether a man is a voter or not; and so of any other ques- tion? I only mention that as one question that may arise. Should not the majority party have the power to decide, and the responsi- bility be thrown upon the majority party? It is true you may get out a mandamus, days afterwards, to compel them to admit this voter, but it is too late for the election. It should be decided at the election, at the time the vote is offered. So of any other question that may arise before this election board, if they stand two and two, and they happen to differ as they stand with reference to parties. How can you get a decision? Mr. J. Johnson — Replying to what has been stated by the gentleman from Cattaraugus (Mr. Vedder), in relation to the cities article and the article now before the committee, the Cities Committee deemed a provision for fair elections nec- essary to any scheme for city government. Another com- mittee proceeding on parallel lines arrived at the same con- clusion as to the whole State, and the two provisions came before this committee in slightly different language, at about the same time. • As the article on cities was about to be presented, it was suggested that much objection to it would be obviated if the provision of the Committee on 'Suffrage was taken up first, so that what should apply to cities should apply to the whole State. This has been taken up, as I understand, in order to avoid the necessity of debating it as to a part of the State, that is, as to cities, and in order to avoid difficulty raised by the fact that it should be uniform throughout the State. In reference to the objection of the gentle- man who has just spoken (Mr. Woodward), theoretically he states a difficulty. It is a difficulty, however, which a large and varied experience in many elections in cities all over the State, where there are a thousand polling places, I think, has shown does not exist in practice. At any rate, if it does exist, it avoids the much greater difficulty, not difficulty alone, but danger and menace, of the major- ity party having practically the control over the election; it avoids the much greater difficulty, and I think is necessary to any scheme of fair elections at this time in this State. August 27.] CONSTITUTIONAL CONVENTION. 255 Mr. Moore — Mr. Chairman, I wanted to say in answer to Mr. Woodward's remarks to the Convention, that a board of inspectors very rarely divides on agreeing or disagreeing to allow a man to vote; that that is done by challenge, and then if they vote to sustain the challenge or not to sustain it, the man votes or not as he likes. If the challenge is sustained, he may swear in his vote, and there is no necessity of an agreement. Under the ballot law as it stands now, there are three inspectors. By some mistake in the original ballot act it was made five, but the Secretary of State, under an opinion from the Attorney-General, decided that three inspectors were sufficient, but that they must be divided among the two domi- nant political parties, according to a vote of a certain election previ- out to that act; and, therefore, the inspectors of election now — I speak of my own county especially — are two of the majority party and one of the other party; but they only agree on whether they shall sustain a challenge or not. No one's vote is disturbed, or is his registry disturbed, unless that vote is challenged, and in that respect only are these inspectors required to act. Mr. Cookinham — Mr. Chairman, when this amendment was before the Committee on Suffrage it was formulated, as appears in general order No. 8. My recollection is that the committee were unanimous in its report upon this amendment. Since then, as a member of that committee, I have carefully examined the proposed amendment as reported by the committee, and also the one now offered as a substitute by Mr. Lauterbach, and I am very clearly of the opinion that any gentleman who investigates the subject will come to the conclusion that the substitute is a vast improvement upon the amendment as reported from the Committee on Suffrage. It seems to me that it removes doubt upon certain matters that appear in the proposed amendment reported from the committee. It seems to me clearly, if delegates will bear in mind the contested election cases that have been before this Convention, that they will see that the terrible abuses in Buffalo and at Gravesend came about and the frauds were perpetrated largely, if not entirely, because the election boards in those election districts, although theoretically Republican and Democratic, in reality were neither. They were simply the tools of certain persons who had conspired together to defeat the honest voters and to elect whom they saw fit. Now, I believe, Mr. Chairman and gentlemen, that if this amendment, as now proposed by Mr. Lauterbach, is adopted, it will be a step, and a very, long step, in the direction of honest elec- tions. The amendment as proposed now, and I will read it, that every delegate may hear the exact wording, seems to me 256 REVISED RECORD. [Monday, to cover the questions involved, to cover them completely, and to provide, when the Legislature shall have carried it out, almost a perfect system of elections. The amendment reads as follows: " All laws creating, regulating or affecting boards or officers charged with the duty of registering votes or of distributing ballots at the polls, or of receiving, recording or counting votes at elec- tions, shall secure equal representation of the two political parties which at the general election preceding that for which such board or officers are to serve, cast the highest and the next highest num- ber of votes. All such boards and officers shall be appointed or elected in such manner and upon the nomination of such repre- sentatives of such parties, respectively, as the Legislature directs. Existing laws upon this subject shall continue until the Legislature shall otherwise provide. This section shall not apply to town meet- ings in the several towns of the State." Mr. Lauterbach — " In which the electors therein all vote in one polling place, and in village elections." Mr. Cookinham — Mr. Chairman and gentlemen, it seems to me that there is but one desire in this Convention, and that is to pro- vide for honest elections, and this amendment will do it, and I, therefore, hope Mr. Lauterbach will now move that the committee rise and report the amendment favorably to the Convention, and recommend its passage. Mr. Dean — Mr. Chairman, let us be absolutely honest about this. If we are going to have this kind of thing, let us be honest about it. Now, we are conceding the fact that the majority cannot be trusted in the conduct of elections. Now, I propose this substi- tute: "Boards of election inspectors shall be elected or appointed as the Legislature by law may direct. The minority of the voters in every district shall be entitled to the majority of the election offic- ials." That is the only logical conclusion of this contention that the majority cannot be trusted. I offer that as a substitute for this proposition. The Chairman — The gentleman is out of order. Mr. Dean — Do I understand the Chair to rule that some gentle- man may offer a substitute for an original proposition, and in that manner shut out all possible amendments to this proposition? The Chairman — No ; the Chair simply ruled that you were out of order. Mr. Dean — Then, Mr. Chairman, I will offer this as an amend- ment to the proposition. August 27.] CONSTITUTIONAL CONVENTION. 257 The Chairman — There is one substitute before the committee now. Mr. Dean — Then I offer this as an amendment to the substitute. The Chairman — That is out of order. The question now is upon the substitute. Mr. I. S. Johnson — Mr. Chairman I would like to inquire of the Chair whether the ruling will be that the substitute may be perfected or amended after The Chairman — If such a question comes up, the Chair will then determine it. Mr. Bowers — I move, Mr. Chairman, the adoption of the substi- tute, with leave to the committee to perfect it afterwards. The Chairman put the question on the motion of Mr. Bowers, and it was determined in the affirmative. The Chairman — Motions to amend the substitute are now in order. Mr. Dean — Mr. Chairman, I now offer the proposed substitute, and ask the Secretary to read it The Secretary read the substitute offered by Mr. Dean, in the following language: " Boards of election officers shall be elected or appointed as the Legislature by law may direct. The minority of the voters in every district shall be entitled to the majority of the election officials." The Chairman put the question on the adoption of the substitute offered by Mr. Dean, and it was determined in the negative. Mr Bowers — I move to amend the substitute, by inserting after the words "distribution of ballots," and before the words "at the polls," the words " to voters." Mr. Lauterbach — I will accept that amendment, Mr. Chair- man. I think it makes it a little more specific as to its application. I propose another amendment in the interests of those who have town elections in which the votes are all cast at one voting place, as well as those who have made the objection as to village elections, and move to amend by striking out the words "this act shall not apply to town elections," and substitute therefor the following: " This section shall not apply to town elections." The Chairman — Does Mr. Bowers move an amendment? 17 258 REVISED RECORD. [Monday, Mr. Bowers — Yes, sir; it was accepted. I moved an amendment which was not opposed. The Chairman — It cannot be accepted now. The Chairman then stated again the amendment offered by Mr. Bowers, and the Secretary read the substitute, as amended by Mr. Bowers's proposition, in the words following: "All laws creating, regulating or affecting boards or officers charged with the duty of registering voters or of distributing ballots to voters at the poll," etc. The Chairman put the question on the adoption of the amend- ment offered by Mr. Bowers, and it was determined in the affirmative. The Chairman — Mr. Lauterbach offers an amendment to the substitute, which will now be read. The Secretary read the amendment, proposed in the language following. Mr. Lauterbach moves to amend by striking out the last two lines Mr. Hawley — What are the last two lines? The Chairman — " This section shall not apply to town meetings.'' The Secretary (resuming) — And substitutes the following: "This section shall not apply to town elections in the several towns of this State in which the electors therein shall vote at one polling place, or to village elections." Mr. Kimmey — Mr. Chairman, I do not see any necessity for this amendment, for the reason that where the election is held for spring elections in election districts it is not a town meeting. The town meeting is held on the following day when the board of town officers meet as a board of town canvassers, and there the vote is canvassed and all the results which are to be passed upon by a viva voce vote are voted upon at that meeting. Therefore, I think there is no occasion for the amendment. Mr. C. B. McLaughlin — Mr. Chairman, I would like to hear the amendment to the substitute read. The Secretary again read the amendment offered by Mr. Lauterbach. Mr. McLaughlin — Mr. Chairman, I would like to ask what the purpose is in excepting towns that do not all vote at one polling place ; why there should be an exception made of such towns. Mr. Lauterbach — Because, as Mr. Dickey has explained, the rule is different. They have inspectors of election other than the August 27.] CONSTITUTIONAL CONVENTION. 259 justices of the peace, who preside in those special meetings which are all held at one polling place. I so understand it, Mr. Dickey? Mr. Dickey — Yes, sir. Mr. McLaughlin — Does the gentleman mean to say that the justices of the peace are any more honest or better prepared to supervise elections than the inspectors? Mr. Lauterbach — No; I only mean that four justices of the peace are enough; I do not want eight. Mr. McLaughlin — I do not think this exception ought to pre- vail here. I do not know of any reason why this should go into a constitutional provision; why a town having, for convenience, if you please, two, three or four polling places, should be made an exception in a constitutional provision. Mr. Lincoln — Mr. Chairman, under the statute of 1893 there is provision made for holding town meetings for the election of town officers, by election districts in certain towns, and a vote is to be taken upon that question, whether the election shall be by election districts upon the application of twenty-five electors of the town. Now, if a town is divided into town election districts, the election inspectors are to be elected or appointed for those districts, but the canvass of votes for the town is still to be made by the same town board and the same officers that would canvass the vote if there was only one district, and in case there are two or more districts in a town voting at town meetings for town officers, then the town offi- cers, the justices of the peace and the town clerk, who act as a can- vassing board for the town, are required to meet on the day follow- ing the town meeting and canvass the votes from the several election districts in the town. Now, as I understand it, this amendment would require those justices of the peace to be partisan, if you please, or require some different arrangement from what the statute now requires. Mr. Lauterbach — Mr. Chairman, for the gentleman's informa- tion, I will say that there is no effort to regulate the canvassing of votes after election. The law in that respect remains unaltered. This simply covers the case of registration, of the distribution of ballots and the voting as it occurs on election day. The matter of canvassing is, of co'urse, unaffected. I do not mean that there shall be a second board of aldermen in the city of New York to perform the canvassing of votes. One is enough for the present. We have one board of aldermen that does canvassing; so that there is nothing in the constitutional amendment that refers to canvassing at all. It refers simply to registration 200 REVISED RECORD. [Monday, Mr. Lincoln — As originally introduced it does. Mr. Lauterbach — No. Well, it does not now ; it refers simply to registration. Mr. Hamlin — I think, Mr. Chairman, that this matter can be much better settled out of the committee than in committee. I move, therefore, that we rise, report progress and ask leave to sit again. The Chairman put the question on the motion of Mr. Hamlin, and it was determined in the negative. Mr. Nichols — As I understand the provision of this substitute, it comprehends the canvassing of these votes. Mr. Lauterbach — No. Mr. Nichols — That is, as I understand it from the gentleman who moved the substitute. Mr. Lauterbach — It is at elections. Mr. Chairman, it refers only to the conduct of the election at the election, and not to pro- ceedings after election. It has no reference to canvassing. Mr. Nichols — Well, what is the objection, may I ask Mr. Lau- terbach, to making the exception apply to all town meetings, irre- spective of whether they be held by election districts or in towns? Mr. Abbott — Mr. Chairman, is an amendment to the amendment in order? The Chairman — An amendment to the substitute is in order. Mr. Abbott — An amendment to the amendment offered by Mr. Lauterbach? The Chairman — There is one amendment now before the House, the amendment of Mr. Lauterbach. Mr. Abbott — Then I desire to offer another, an amendment to the amendment. The Chairman — It may be done. Mr. Abbott — I am opposed to this exception of towns having more than one election district, and I propose that the exception be, " except town or village elections." Strike out the provision in regard to separate districts. The Secretary read the proposed amendment to the amendment, offered by Mr. Abbott. Mr. Lauterbach — Mr Chairman, if it be in order I accept the amendment, because that certainly is broad and general enough and covers the question and leaves the matter no longer in doubt, August 27.] CONSTITUTIONAL CONVENTION. 261 and to prevent further discussion, I will accept Judge Abbott's amendment. The Chairman — The gentleman from New York cannot accept the amendment; it must be voted upon. The Secretary read again Mr. Abbott's amendment, as follows: Mr. Abbott moves to amend the amendment of Mr. Lauterbach so that it shall read as follows: "This section shall not apply to town or village elections." Mr. Bowers — What is the objection to making it municipal generally? Mr. Abbott — No Mr. Bowers — What is the objection? The Chairman — The Chair has not recognized anybody yet. There are so many up that he cannot see them all at once. Mr. M. E. .Lewis — I only desire to suggest, Mr. Chairman, that possibly a better wording of that amendment will be: "This sec- tion shall not apply to elections for town or village officers." I do not think the words " town elections " appear in the Constitution, and I make the suggestion that " town or village officers " would be a more proper term, if Mr. Abbott sees fit to accept that suggestion. Mr. Abbott — I accept the amendment. Mr. Ackerly — Mr. Chairman, I think a supervisor, although elected by the town, is considered a county officer. That would not do. They are elected at town elections. Mr. Carter — Mr. Chairman, I think we do not want to shut out village appropriations. That certainly would not be advisable. I do not think that would do. I think Mr. Abbott's wording is much preferable. Mr. Moore — Mr. Chairman, may I ask through you, a question of Mr. Abbott, the mover of this amendment? Would it not be better to say that this shall not apply to town meetings? That is the term used in the Constitution and in the law " town meetings," not town elections. Mr. Abbott — The term does not apply to villages; it does not say village meetings. I think " town " means the same thing, town or village elections. Mr. Moore — You should say this should not apply to town meetings and village charter elections: then you have the exact wording of the law and of the Constitution. Mr. Abbott — We are not making- the law. Mr. Chairman. 262 REVISED RECORD. [Monday, Mr. O. A. Fuller — Mr. Chairman, if this amendment is for giving us purer elections, although I come from the rural districts, town meetings and village elections ought not to be excepted, and for this reason : we have in our town about fourteen hundred voters. It is very closely divided as to politics. The town board is wholly upon one side, and I remember that, about two years ago, first one candidate was declared by that board elected by one vote. A recount was had, and the other candidate was declared elected by two votes. Now, that applies equally to our village elections. The trustees, who count the votes and receive the ballots, are for renomination generally. They count and receive their own ballots. That is also true of the justices of the peace who sit as inspectors of election at our town meetings. It seems to me that a provision could be made for towns where one election for town meeting is held, as in my town. We have, for general elections, four districts; at our town election, only one district. It seems as if it could be provided that the inspectors of election who reside in the district where we hold our town elections should preside at our town elec- tions. As I said before, Mr Chairman, if this amendment is to give us pure elections, we need it in the towns; we need it at our town elections, and we need it at our village elections as much, and more, than we need it at our general elections; and I am sorry, for one, that the town elections and the village elections should be excepted from this amendment. Mr. Bowers — May I ask the gentleman, through the Chair,- who introduced that amendment, its object? Is there any reason for it? Mr. Abbott — Mr. Chairman, I come from a county which is noted for its non-partisanship — The Chairman — What county? (Laughter.) Mr. Abbott — The county of St. Lawrence. Perhaps I am not qualified to speak on this question. Every town of that county is Republican at the general election. We very frequently elect Democratic supervisors, and we have all the machinery of the election, the town board, always in existence, and the proposition without this exception would involve the election of another set of officials to act in that capacity. There is no partisanship in our town meetings and at our village elections, and I do not see, of course, even if there were, with the village and town boards con- stituted as they are, the election officers composed of the best men of the town, the justices and the town clerks, the village clerk, and with the watchers of both parties to superintend the election, there can be possibility of any fraud in the town meetings, and there August 27.] CONSTITUTIONAL CONVENTION. 263 is no fraud; and for that reason, and in the interests of economy and the saving of expense and the multiplying of election boards, I offer this proposition. Air. Bowers — Mr. Chairman, I suppose that the only justifica- tion for this amendment is that the State at large is not interested in the village or the town elections. That may be a good reason for exempting them from the provisions of the proposed act, but it is somewhat difficult to perceive what interest the gentleman from St. Lawrence has in the municipal elections in the city of Brook- lyn; and it is somewhat difficult to perceive why the cities article should provide with such great care that the cities of the State should have bi-partisan boards, and yet the general principle be announced here that while we apply it to the whole State, we shall not apply it to towns and villages of the country. I think the gentleman from St. Lawrence is right in his proposition, unless it is right to deal with the whole State on the theory that every- where fraud or wrong is being done. If that is conceded, which seems to be the view of very many members of this Convention, why then of course we ought to restrain gentlemen in the country from voting in their ordinary way. To my mind the general theory of this is that while we protect the whole State on every question which applies to the whole State, there is no necessity for making it apply to the city elections at Ogdensburg, or a vil- lage election at any village or town election in any town; and I should suppose that the same principle would apply to the great cities of the State. Perhaps Mr. Johnson would inform us why the distinction should exist. Mr. Abbott — Mr. Chairman, in answer to the gentleman from New York, I will say that I am not very familiar with the pro- visions of the cities article, which is not, however, open for dis- cussion in this committee, as I understand it; but there is quite a distinction between the boards as constituted in the country and boards constituted in the cities. In the cities, as I understand it, they are appointed, while in the country they are elected by the majority vote of the towns and villages, and, of course, they represent entirely local matters ; and it seems to be that the excep- tion should be made. Mr. Lauterbach — Mr. Chairman, I desire to ask the gentleman a question. Is it not a fact that under the statute of 1894 the pres- ent provision is that in town meetings where the election inspectors are elected, two shall be appointed by the opposite political faith? Mr. Abbott — The act does not apply to town meetings and vil- 264 REVISED RECORD. [Monday, lage elections. It applies simply to the general State and county elections. The town meeting board is composed of the justices of the peace and town clerks of the towns. Mr. Lauterbach — Mr. Chairman, then it seems to me that Mr. Bowers's objection is entirely met, so far as town and village elec- tions are concerned, which affect simply the town and village busi- ness and nothing else, the exception that Judge Abbott speaks of might be made; that in respect of the conduct of elections which affect the people of the State generally, the present law, the statute of 1894, provides for bi-partisanship as well in towns and villages as it does elsewhere, and under these circumstances it appears to me that the amendment of Judge Abbott might prevail without at all endangering the principle which govern the bill. Mr. O. A. Fuller — Mr. Chairman, I would like to ask Mr. Abbott one question. That is, if at our town elections, we do not have more partisanship in the election of our town officers than we have at our general elections? Mr. Abbott — Mr. Chairman, in answer to the gentleman, I will say that that is not the fact in St. Lawrence county; of course, I cannot speak for Allegany. Mr. Fuller — I know that it is true in our town, and wherever I have had any experience, and as I said before, if there is a prin- ciple in this amendment that will conduce to purer elections, I hope it will apply to the whole State and to all our elections. Mr. Cookinham — Mr. Chairman, it seems to me that it should read, "This section shall not apply to town meetings or to village elections." It frequently occurs that a town meeting is called for the sole purpose of appropriating money, and it would not be an election technically speaking. It would be a meeting, and it .seems to me that a better expression would be " town meetings or to vil- lage elections." I move, therefore, as an amendment — The Chairman — There are two amendments to the substitute now proposed. The question is upon Mr. Abbott's amendment to the amendment of Mr. Lauterbach to the substitute. Mr. Kimmey — Mr. Chairman, I hope that Mr. Cookinham's amendment may prevail, for the reason that if you except the town meetings or town elections — The Chairman — The Chair will inform the gentleman from Albany that Mr. Cookinham's amendment is not before the House. Mr. Abbott — Mr. Chairman, is it in order to accept the prop- osition? If it is within my power to accept the amendment of August 27.] CONSTITUTIONAL CONVENTION. 265 Mr. Cookinham, I am willing to do so, and make it " town meet- ings or to village elections." The term " meeting " applies evi- dently to all elections of town officers as well as to other meetings. The Chairman — Mr. Abbott having expressed his desire to change his proposed amendment, it will be changed, no one objecting. The Secretary then read the amendment as modified by the sug- gestion of Mr. Cookinham and accepted, in the language follow- ing: "This section shall not apply to town meetings or village elections." The Chairman put the question on the amendment as read, of Mr. Abbott, to the amendment of Mr. Lauterbach to the substitute, and it was determined in the affirmative. The Chairman — The question now occurs upon the amendment of Mr. Lauterbach, as amended by Mr. Abbott's amendment. The Secretary will first read the section as it now stands. The Secretary read the section in the language following: "This section shall not apply to town meetings or to village elections." Mr. Dean — Mr. Chairman, I desire to offer the following amendment. The Secretary read: Mr. Dean moves to amend as follows: "This section shall not apply to the election of school district officers." Mr. Dean — Mr. Chairman, this proposition is broad enough in its provisions to cover the election of school officers in all of the school districts of this State. They are purely non-partisan elec- tions and have no reference to politics in any way, shape or man- ner. It is absolutely absurd to go on here making a constitu- tional provision requiring bi-partisan elections boards for school elections. The Chairman — The question is upon Mr. Dean's amendment, which is to be added to the amendment as it now stands. The Secretary again read the amendment offered by Mr. Dean. The Chairman — That is correct, Mr. Dean? To be added at the end of the section? Mr. Dean — Yes, sir. The Chairman put the question on the adoption of the amend- ment offered by Mr. Dean, and it was determined in the negative. The Chairman then put the question on the adoption of the 266 REVISED RECORD. [Monday, amendment offered by Mr. Lauterbach, as amended, and it was determined in the affirmative. Mr. Lauterbach — Mr. Chairman. I move that the committee now rise and report favorably upon the proposition as amended,* and recommend its adoption by the Convention. Mr. Bowers — Mr. Chairman, I call for a reading of it before we take that vote. The Secretary read the amendment as follows: ''Sec. — . All laws creating, regulating or affecting boards or officers charged with the duty of registering voters or of distributing ballots to voters at the polls, or of receiving, recording or counting votes at elections, shall secure equal representation of the two poli- tical parties which, at the general election preceding that for which such boards or officers are to serve, cast the highest and the next highest number of votes. All such boards and officers shall be appointed or elected in such manner and upon the nomination of such representative of said parties, respectively, as the Legislature may direct. Existing laws on this subject shall continue until the legislators shall otherwise provide. This section shall not apply to town meetings or to village elections." Mr. Gilbert — Mr. Chairman, I had not intended to participate in this debate, but there are one or two considerations that I want to call attention to. First, this exception would seem to imply that the principle of non-partisan or bi-partisan supervision of elections should not apply to village and town elections. Now, it cannot be that anybody wants to exclude the operation of this principle from those local elections. I do not care to enter at large upon the merits of this at all, but it does seem to me that the importance of this measure is sufficient, and that the uncertainty in regard to what ought to be done and in regard to the effect of what is proposed to be done, are such as to make it in a high degree desirable that we should see this proposition in print and have an opportunity to examine it carefully before finally acting upon it. As was suggested by one gentleman who wanted to have this course taken, we have provided that the Legislature shall not pass bills without having them three days in print before the members. Now, I trust it will meet with the approval of all concerned that this take such a course that it may be printed and be upon our files where we can examine it. There is no factious opposition; there is no opposition; simply a desire to get it right, to have the principle go wherever it ought to go and in the way that it ought to go. The Chairman — The Chair understands that it will be printed August 27.] CONSTITUTIONAL CONVENTION. 267 after it comes from the Committee on Revision, and will be upon the files for some days before it is reached. Mr. Choate — Mr. Chairman, may I ask a question in the same view in which Mr. Gilbert has presented his suggestion? The last clause of this struck my attention when it was read by the Secretary, and I have not the knowledge that enables me to judge whether that exclusion provided for in the last clause covers all elections that may take place in towns and villages; and if it is so intended, why have a provision with an excepting clause, and why not say in the principle proposition " in cities," if that is all it is intended to apply to? Mr. Lauterbach — Mr. Chairman, I understand that that would not cover the object. I understand that at the general elections in towns, the existing law of 1894 has perfect application, and that this exception is simply intended to give an exception as to town meetings and village elections affecting local interest. In point of fact the existing law of 1894 provides absolutely for bi-partisanship, not only in city elections but in town elections, and provides that the presiding officer at a town meeting shall appoint two inspectors who shall be of the opposite party to those who have been elected at the same town meeting. That provides for general elections and ought not to be militated against in any way, and will be preserved by this amendment. As 1 understand it at town meetings and village elections the exception does not apply here. Mr. Choate — The exception of villages or village elections is a somewhat equivocal phrase and might cover everything that is voted on at the village elections. The Secretary again read the clause in question as follows: " This section shall not apply to town meetings or to village elections.'' Mr. Choate — Now, my question is, whether, when the people of a village vote for electors for president or for State officers, it is not a village election. That is the question. Mr. Bowers — Mr. Chairman, I move to strike out the following words: "All such boards and officers shall be appointed or elected in such manner and upon the nomination of such representative of said parties respectively as the Legislature may direct." It is abso- lutely unnecessary to have that clause in the section. The Chairman — The gentleman from New York is out of order. No motion can be made while the present motion of Mr. Lauterbach is pending. Mr. Bowers — Well, this motion is debatable. I hope the motion will not prevail then, because I failed to move to strike out that 268 REVISED RECORD. [Monday, particular clause, and the reason I move to strike it out is this, it is unnecessary, as it is purely legislation. Mr. Lauterbach — I will withdraw my motion at this juncture, so that Mr. Bowers may make his motion. Mr. Bowers — If that clause remains in there it will be within the power of the Legislature to appoint the inspectors from the whole State, I suppose, by name if they want to. I presume all that we intend is that at least the authorities of each county are to do that work, and it seems to me that we had better leave the provisions all just as they are and let the Legislature legislate as they may deem best to carry out the spirit of the act, and it is wholly unnecessary for us to go on and put this in, as it may be used in a way to do a great deal of harm, and certainly bring no benefit. The Chairman — Does Mr. Bowers offer an amendment? Mr. Bowers — Yes; I move to strike out: "All such boards and officers shall be appointed or elected in such manner and upon the nomination of such representative of said parties, respectively, as the Legislature may direct." Mr. Nicoll — I would like to offer another amendment. The Secretary read the amendment proposed by Mr. Bowers, striking out the words as stated. Mr. Lauterba'ch — As to that amendment, I desire to oppose it for this reason. So far as the words, " all such boards or officers shall be appointed or elected in such manner as the Legislature may direct," it appears to me there can be no objection that the Legisla- ture, to whom is confided the province of making laws governing and regulating these boards, can determine the manner — which is, perhaps, a repetition of the idea, but there certainly is nothing objec- tionable to it. As to the other sentence, " and upon the nomination of such representative of said parties, respectively, as the Legislature may direct," I believe that to be in entire accord with the spirit that prevails of recognizing the fact that there is and always will be a majority and minority party in the State, and that the parties have their arrangements, and that the Legislature may continue to do, as it has done in 1894, not only provide for bi-partisanship by per- mitting a partisan to designate the members of the board who he believes are representatives of the other party, but to make such laws as will enable the party itself, as such, to be consulted in respect of the nomination of the incumbents of the office. In other words, that a Democratic Governor or a Democratic mayor shall not be at liberty to say, " I look upon A and B as being Republicans." His notion of what a true Republican may be may be a very false one, August 27.] CONSTITUTIONAL CONVENTION. 269 and the idea is that the Legislature may do, as they did at the last session, provide for a method by which the nomination of the opposing inspector of the minority party may not be at the whim and caprice of an adversary, but may be at the suggestion of the party itself; a nomination not made for the party but by the party, else the whole thing is useless, and I think there can be no gain- saying this proposition. The man does not exist who is so thoroughly to be trusted that he can say, that he should say, that he should be permitted to say, who of his adversaries shall be the ones to be selected in determining the representative character which they bear toward their party. That should be done if possible as it has been done successfully by the party itself; and I believe there should be engrafted in the Constitution, if we are to recognize the question at all of the existence of parties — and it appears that the evolution of affairs from the beginning of the creation of this State down to the present time has been such as to render it absolutely necessary that the existence of majority and minority parties should be recognized — that if that should be done and we make any provision in this respect, the provision should be such as to enable the party itself to make the designation for themselves and not have it made for them. Mr. Gilbert — Mr. Chairman, I made the suggestion a few moments ago that it seemed to me that this matter ought to be upon our files in print before we finally act upon it. The suggestion was made in reply that after the Convention shall have put it upon the order of third reading it can then be amended. Now, I desire information upon that point. It has been stated authoritatively in this Convention that there can be no amendments after a proposition is ordered to a third reading. Now, I would like to be instructed upon that point. The Chairman — Rule 40 provides that on the third reading of a constitutional amendment, no amendment shall be in order with- out unanimous consent. It may be recommitted again. Mr. Gilbert — Yes; but if it is going to be recommitted, why not let it stay there? Mr. Chairman, if it is in order, I move that the committee now rise and report progress and ask leave to sit again, for the purpose, and for the sole purpose, of enabling us to see it on our desks in print before we finally act upon it. And at the suggestion of my friend, Mr. Green, I would add, and that it be printed. The Chairman — That part of the motion cannot be made here. Mr. Gilbert — No, that is true; it cannot be made here. 270 REVISED RECORD. [Monday, The Chairman then put the question on the motion of Mr. Gil- bert, that the committee rise, report progress and ask leave to sit again, and it was determined in the negative. Mr. Lauterbach — I now renew my motion that I withdrew, that the committee rise, report favorably and ask the adoption of the amendment. The Chairman — There is an amendment before the House. Mr. Bowers moves to strike out the words " all such boards of officers shall be appointed or elected in such manner and upon the nom- ination of such representative of said parties respectively as the Leg- islature may direct." The Chairman put the question on the adoption of the motion of Mr. Bowers, and it was determined in the negative. The Chairman — The question is now on Mr. Lauterbach's motion. Mr. Abbott — Mr. Chairman, at the suggestion of Mr. Choate, the President, I think it would be well to insert before the word " elections," and after the word " village," the word " charter," mak- ing it read " village charter elections," to save any question of con- struction hereafter. I ask that that be done. The Chairman — The section will then read, "This section not apply to town meeings or to village charter elections." Mr. Dean — Mr. Chairman, I rise to a point of order. The Chairman — Mr. Dean will state his point of order. Mr. Dean — My point of order is that the proposed amendment is not germane to the proposition of Mr. Lauterbach. The Chairman — The point of order is not well taken. Mr. Hotchkiss — Before that vote is put, I want to state that although I have attempted to keep watch Mr. Abbott — I withdraw the proposition made by me. Mr. Hotchkiss — I renew the motion for the purpose of speak- ing. I do not know what you have got through or where you are The Chairman — The Chair will state. The question is upon the motion of Mr. Lauterbach. Mr. Hotchkiss — I renewed the motion for the purpose of speak- ing— the motion made by the gentleman The Chairman — State your motion. Mr. Hotchkiss — I do not know what his motion was. I repeat it simply for the purpose of addressing the Chair. I find that August 27.] CONSTITUTIONAL CONVENTION. 271 chapter 233 of the Laws of 1893, relating to elections, provides that there shall be a ballot clerk and a poll clerk of each of the two greater parties in each election district in the State. From these amendments which have been offered here, exempting certain classes of elections, I am left entirely in the dark as to whether at those elections which are now covered by the statute of 1893, the pro- posed constitutional amendment will be operative or not. Under those circumstances, I am certainly not in a condition to pass any judgment upon the amendment upon which the vote is to be taken. I withdraw the amendment which I offered. Mr. A. H. Green — I understand that at the suggestion of the President, the word " charter " was proposed to be put in with regard to villages. I would like to know what distinction there is The Chairman — That amendment was withdrawn. Mr. Green — The amendment may have been withdrawn, and yet there may have been very great merit in it. I would like to know what merit there is in it. Mr. Lauterbach — Mr. Lincoln did not think there was much. The Chairman — It is not now before the House. The question is on Mr. Lauterbach's motion that the committee rise, report this amendment favorably to the Convention and recommend its passage. The Chairman put the question on Mr. Lauterbach's motion, and it was determined in the affirmative. The committee thereupon rose and President Choate resumed the Chair. Mr. C. H. Truax — Mr. President, the Committee of the Whole have had under consideration proposed constitutional amendment printed No. 317, entitled, "To amend article 2, relative to suffrage," have gone through with the same, have made some amendments thereto and instructed the chairman to report the same to the Con- vention, and recommend its passage. The President — The question is upon agreeing with the report of the Committee of the Whole. Mr. Dean — Mr. President, I move that we disagree with the report of the Committee of the Whole, and that the proposed amendment be printed and referred back to the Committee of the Whole. The President put the question on the motion of Mr. Dean, and it was determined in the negative. 272 REVISED RECORD. [Monday, The President — The question is on agreeing with the report of the committee. The President put the question on agreeing with the report of the committee, and it was determined in the affirmative. The President — The amendment goes to the Committee on Revision, and will be printed and take its place on the order of third reading. Mr. Davenport — Mr. President, in behalf of the minority of the Cities Committee, I beg leave to submit the minority report. I may say that Mr. Fitzgerald, of New York, concurs in the report, but has not been able to reach here and sign it. The President — This minority report will be printed and placed on the desks of the members, and anything in it may be moved by way of amendment to the majority report in Committee of the Whole. Mr. Jenks — Mr. President, I ask leave of absence for Mr. Chaun- cey S. Truax, of New York. Mr. Truax has been suffering from an attack of rheumatism, and he has been advised to seek a change of air for a week. I ask that he be granted leave of absence for the balance of the week. The President put the question on excusing Mr. Truax, and it was determined in the affirmative. Mr. M. E. Lewis — Mr. President, Mr. E. A. Brown asks leave of absence for the day. The President put the question on granting leave of absence to Mr. Brown, and it was determined in the affirmative. Mr. Hamlin — Mr. President, I have a dispatch from Mr. O'Brien, who is unavoidably detained at home to-day, and asks to be excused for the day. The President put the question on granting leave of absence to Mr. O'Brien, and it was determined in the affirmative. Mr. Jesse Johnson — Mr. President, I would like to have the minority report of the Committee on Cities read. The majority of the committee have not been furnished with any copy of it. The President — The Secretary will read, before we go into Com- mittee of the Whole, the report of the minority of the Cities Committee. The Secretary read the minority report as follows: August 27.] CONSTITUTIONAL CONVENTION. 273 Minority report of a minority of the Committee on Cities, dis- senting from the proposed constitutional amendment (Int. No. 369, P-. No. 451, G. O. 13), to provide home rule for cities. A minority of the Committee on Cities, dissenting from the pro- posed amendment (Int. No. 369, General Order No. 13, printed No. 451), reported by a majority of said committee, do respectfully sub- mit the following as a minority report and substitute: ARTICLE — . All cities are classified according to the last State enumeration, as such enumeration shall from time to time be made, as follows: The first class includes all cities having a population of two hundred and fifty thousand or more; the second class includes all cities having a population of less than two hundred and fifty thou- sand, and of more than fifty thousand; the third class includes all other cities. The Legislature shall enact general laws for the government of cities, so that all cities of the same class shall possess like powers and be subject to like restrictions. Such laws shall include in their provisions that the electors of every city shall elect a mayor vested with the chief executive authority, and a common council vested with sole legislative authority to legislate for all city purposes, including the following subjects: Streets, parks, public places, docks, markets, water-works, sewers, public buildings and prop- erty, the character and structure of buildings as to safety and secur- ity, salaries of all officers and employes paid out of the city moneys, ward boundaries, local assessments, finances, including the issue of municipal securities and obligations, the raising and the appropria- tion of moneys for city government and public purposes lawfully charged upon the city, and such other matters as are the con- cerns of the local government of cities. The Legislature shall not enact any law relating to cities as to any of the subjects enumer- ated in this section except as hereinafter provided. The Legislature may enact general laws for each class of cities rela- tive to the subjects which, though concerning the State at large and the people thereof generally, are entrusted or to be entrusted to the administration of cities or any officer thereof, or any local officer elected by the electors or appointed by the authorities thereof. All heads of departments, city officers and employes, including members of the police and fire forces and all officers and employes, whose powers and duties are limited to the territory of the city or to 18 274 REVISED RECORD. [Monday, a part thereof, shall be chosen by the electors or appointed by the authorities thereof. The Governor, after notice and a hearing upon written charges, may, for cause, remove the mayor of any city. The Legislature shall not pass special or local laws for the gov- ernment of any city, except with the approval of the mayor of the city affected. No city shall hereafter be incorporated by special law, but the Legislature shall enact general laws for incorporating cities. Cities heretofore incorporated may become organized under such general laws whenever the majority of the electors voting thereon at any general or special election shall vote in favor thereof, and such general laws shall make provisions whereby the questions of the organization of any such city under the general laws applicable thereto may, from time to time, be submitted to the electors therein. Nothing in this article contained shall limit or affect the power of the Legislature to consolidate contiguous cities, but no such law shall be enacted until a majority of the electors of each city to be affected have voted in favor of such consolidation. August 25, 1894. WM. B. DAVENPORT. A. BLEECKER BANKS. EDWIN C. ROWLEY. I concur in the above, and I would gladly favor the further exten- sion of the principle of home rule, to abolish all State interference with the local affairs of cities, and to give to every city the power to construe and to amend its own charter by the votes of its citizens. W. McM. SPEER. The President — It requires a motion to go into Committee of the Whole on this cities business, I suppose. Mr. Bowers — Mr. President, has a motion been made to go into Committee of the Whole on the cities articles? The President — Not yet; we are waiting for it. Mr. Jesse Johnson — I move that we go into Committee of the Whole. Mr. Bowers — Mr. President, before the motion is put, I desire to say a word. Mr. Johnson — I made the motion, but I understood the matter was a special order, and a motion to go into Committee of the Whole was not necessarv. August 27.] CONSTITUTIONAL CONVENTION. 275 Mr. Bowers — Mr. President, I understand that one of the sec- tions of this bill provides for separate elections in cities; not for separate spring elections, but for separate annual elections. Mr. Jesse Johnson — I will show that when the article is reached, the gentleman consenting that we will pass it and hold it where it is without prejudice. If that is agreed to, we will ask that it be passed until the article that we have been considering this morning is dis- posed of, until the matter which has been discussed this morning is disposed of. Mr. Bowers — If the gentleman will allow me to finish he will understand better. There is a provision in this article for separate elections, not to be held in the spring of the year but in odd- numbered years, and that is dependent upon the report of another committee, the Committee on Revision and Engrossment. It also depends upon the proposition in reference to the term of the Gov- ernor and the term of the members of the Legislature. I do not see any use of considering this section until the report comes in on that proposition. I understand it is not in. We will have no remedy in the Committee of the Whole, and I want to offer a resolution before we go into Committee of the Whole that these sections in reference to separate elections be deferred until this committee reports. The President — The Chair is of the opinion that the motion is out of order, and will explain his view of it. This matter is already in Committee of the W'hole and the special order of the House to proceed at this time. The object sought to be obtained by Mr. Bowers can be obtained in this way; after that matter has been considered that is contained in the first article of the report of this committee, it will be quite in order for the committee to rise and report progress and ask leave to sit again for the purpose of having an independent disposition made of that section and then go back into Committee of the Whole on the rest. That is entirely a pos- sibility under the rule. The Convention under the special order already made will go into Committee of the Whole on the report of the Cities Committee. Mr. I. S. Johnson will please take the chair. Mr. I. S. Johnson in the chair. Mr. J. Johnson — Mr. Chairman, I understand that under the rules section i of the proposed article is now the topic for imme- diate consideration. I ask the Secretary to read it. The Chairman — The Secretary will read section one. 276 REVISED RECORD. [Monday, The Secretary read section i, as follows: " Section i. All elections, except to fill vacancies, of city officers, including supervisors and judicial officers of inferior or local juris- diction, elected in any city or part of a city, and of county officers elected in the counties of New York and Kings, and in all counties whose boundaries are the same as those of a city, shall be on the first Tuesday succeeding the first Monday in November in an odd- numbered year, and the term of every such officer shall expire at the end of some odd-numbered year. The terms of office of all such officers elected before the first day of January, one thousand eight hundred and ninety-five, whose successors have not then been elected, which, except as herein provided, would expire in an even- numbered year, or in and before the end of an odd-numbered year, are extended to and including the thirty-first day of December fol- lowing such expiration ; the terms of office of all such officers which, except as herein provided, would expire in an even-numbered year, and before the end thereof, are shortened so as to expire at the end of the year preceding such expiration." Mr. J. Johnson — Mr. Chairman, this section, with the exception of a few verbal changes, is the same section which was before the committee in the previous article and numbered section 2. Its pro- visions have been so fully discussed that the committee do not, at this time, desire to say an}^thing further in its behalf. Mr. Jacobs — Mr. Chairman, it is with great reluctance that I propose to offer any opposition to the adoption of this section. The Chairman — There is no motion before the House. Mr. Jacobs — I understand Mr. Johnson moved the adoption of the first section, did you not? Mr. Johnson — Yes, sir. The Chairman — I do not understand that is a proper motion. Mr. Rolls — I make a motion that the committee report sec- tion i favorably. Mr. Jacobs — Then I will speak to that motion. The Chairman — The Chair understands the entire article must be reported and not by sections. Mr. Johnson — I move that we agree to section i. Mr. Choate — Mr. Chairman, it seems to me that the ruling of the Chair is a necessary one, and there can be no escape from that But I had in mind this (and I make the suggestion with a good deal of diffidence and upon grounds which I might now state). I believe that the principle of this first section is generally approved, not only August 27.] CONSTITUTIONAL CONVENTION. 277 by the Convention, but by those whom we represent — by the com- munities — and that it receives that approval without regard to any political or partisan consideration whatever. By many it is regarded as in itself the most effective step that can be taken to secure the independence of municipal affairs, so that they shall be administered like the affairs of other corporations, like business matters, which concern chiefly and only the people whose money is spent and whose comfort and convenience is promoted in them. Now, the other sections are wholly independent of this matter. They involve questions which may excite, and I think they will excite, great controversy in this body. They are in a measure experimental from this or that point of view. They will necessarily be carefully considered with regard to their political consequences, and it would be most unfortunate that a measure upon which all are agreed should be involved in controversy which may by a pos- sibility involve the defeat of that as well as all the rest, although I do not think so. I think this Convention, by a large majority, will be prepared to come to some definite conclusion on the remaining sec- tions of the article; but in this it is a wholly different matter. It would, in my judgment, be a misfortune if we should have to go to the people with the cities article as a party measure, and I hope for one that we shall not. But where there is something that both parties and all men agree to, in substance (I do not say that this first section is now perfect in form, because the second para- graph of it requires a very considerable amount of intellect to carry, and yet is may be the best form to express the purpose that all have in view.) My hope would be that the Convention, by some means, would be able to extricate this section, or the object of this section, from the controversy that the rest involves, and my way of doing it would be this (and I suggest it with very great difference and with deference to the parliamentarians who are on the floor and can advise us about it.) It seems to me that when this first section is discussed and has been perfected (as things are per- fected in the Committee of the Whole), I might rise, or some- body else might rise, and move to report progress and ask leave to sit again. The matter would be then in Convention, and open to a motion in Convention that this first article as perfected be recommitted or be committed by itself to the Committee on Cities, with instructions to report it as a distinct and independent constitu- tional amendment, and then go back into the Committee of the Whole upon the rest. That is probably the view that Mr. Brown and Mr. Bowers had, and if it is practicable I should like to see this first section considered and perfected with that purpose in mind. 278 REVISED RECORD. [Monday, Mr. Jacobs — Mr. Chairman, if I am in order, I would say that while I may approve of the objects which were intended to be con- summated by this section, I do not believe — The Chairman — Does Mr. Jacobs make a motion? Mr. Jacobs — No, sir. I am talking to a question. I move to strike out the first section. Air. Johnson — Mr. Chairman, I submit the motion is unneces- sary and should not be made for the purpose of discussing this question. Mr. Jacobs — Mr. Chairman, I do not believe that the object which is intended will be consummated by any such provision. The idea contained in that provision, as I understand it, is that people will be aroused to some sort of civic pride by having separate elections and will turn out in such large numbers to vote. I do not believe they will turn out in any such numbers, or even equal the numbers, that turn out in general elections. We know as a fact in general elections — in presidential elections, where we have an exciting canvass for six months, with all the means to arouse enthusiasm and induce men to register and vote, that even then, on election day, there is at least six per cent of those who are regis- tered who never take the trouble to vote. It is undoubtedly a fact that there is another six per cent who do not take the trouble to register. I have no doubt that at least twelve per cent of the men qualified to vote at any election do not vote at all. It is a great loss, because those men are really substantial men. Those men who have nothing at stake always vote. But the men of substance, the taxpayers, cannot afford to lose the time, and do not vote; but the working people always vote. They never lose any time. Now, if my recollection is correct, I think we have had in these cities separate elections that were held in the spring, separate, how- ever, from the general elections, and because of the very fact which I am now pointing out to you, the non-interest taken by a large body of voters, they proved failures. The men that did not vote were the men who ought to have voted, and on account of this mis- carriage it was changed, so that the elections would be concurrent with the general elections, in the hope that this lack of interest would disappear and a large vote would be polled for good govern- ment. I do not believe that any more men will be brought out at a separate election than will be brought out at a general election. I do not believe as many will be brought out. Now, let us take a general election, where men of large means or August 27.] CONSTITUTIONAL CONVENTION. 279 large business interests have at stake not a few dollars, more or less, of taxation, but their business at stake. If twelve per cent of these men will not come out to vote when they have almost all they have at stake, do you think they will come out to vote at any little muni- cipal election for the purpose of saving five dollars or so of taxes or to keep the tax rate down? The thing is absurd. The thing that appeals to them most, all their business interests does not affect them to that extent. Twelve per cent of those who ought to vote and are qualified to vote for good government do not vote. I think that a larger per cent will absent themselves from the polls at an independent election. Now, I do not believe that all the people, and everybody, as the President suggests, is in favor of this. I have heard no such expres- sion as that. Of course, I have heard a noisy clique and a noisy clack. 1 have heard them clamor. Why, they would clamor for the repeal of the ten commandments if everybody was in favor of them. They make a noise. They write to the newspapers; they write to the magazines; they swell themselves with their undue importance. They are men who have new ideas to whom they ways of the fathers are not good enough ; who want to improve upon the whole scheme of divine Providence; and if you will only give them a lead pencil and a pad of paper they will reconstruct a perfect paradise for all good people. They will build a gin- gerbread heaven. I don't believe in such people. They are shams. They don't know the world they live in. They are legis- lating for a world that never did exist, and I hope to God never will exist. Now, I believe in real men, men who have passions and who have ambitions; living forces and not mock-orange men. Now, are not those men coming to us every day with their nostrums for all the political and social ills which exist mainly in their imaginations. We have lived now for more than six thou- sand years in our boorish and clownish way without any of those new-fangled notions. If there is anything that I have come altogether to hate it is this word reform; not because of the reforma- tion itself, but because of the great abuse placed upon that word. To most of the new-fangled men it means a change for the sake of change. Now. one of our parties (we might as well speak now of parties, because we are dealing with broad politics), one of our parties is simply a national party. It votes once every four years, and I presume you all know which that party is. The other party is a local party. It never misses an election. It is present at all the local meetings and is out in force at all the local elections no matter 28o REVISED RECORD. [Monday, for what office, and I have no doubt you know what that party is. It is composed largely of men in our large cities who abroad were nobodies, simply drudges. They come here and are placed upon an equality with everybody else and they take pride in it, and they never miss an opportunity to assert the sovereignity of their will. It is the dilettante American who believes it is vulgar to go to an elec- tion. It is the man who is above the vulgar crowd; who really can- not stomach it. There was a gentleman before the committee the other day who told them that they always held an election down his way next to a stable for the purpose of disgusting the high-toned, broadcloth gentlemen from attending the election and leaving it to the common, plain people. Now, sir, I do not think anything of this kind ought to be put into the Constitution. It is a mere experiment. If we were Members of Assembly called upon to vote for a bill permitting this thing as purely and simply an experiment, a bill which could be repealed as soon as proven defective, I would agree to it ; but to put it into the Constitution and have it there permanently, if it goes wrong why that would be very embarrassing and awkward. N,ow, I speak from my experience. I know the difficulties in a large city of getting what you call the best people, who take no interest in their government, out to vote at an election, when there is no interest in it for them. My district (and I think I may speak of it) is practically divided in two. Through the center of it runs a main avenue. Below it and near the river is the laboring man's district. Above it is the district of the very respectable people. The one thing that they mainly contribute to life is their intense respectability, and it is of a very high order. They survey the world from over high shirt collars and sometimes through their plated eye glasses, and are really satisfied that they are a superior order of men. They don't register; they don't vote; but they find fault with everything on earth, of course. That is the way they compensate themselves. (Laughter.) But below that, where they have the men in shirt sleeves, where they toil all day and perhaps don't always smell perfume, they always register and they always vote their full strength, but above Bedford avenue we always lose. If you have this separate and independent election, where you won't have the stimulus of a great and active campaign prolonged through months, you will find that the good people who live in the brown-stone front houses will absent themselves in a much larger percentage from the polls than they do at the present time. There would be no making them vote. They would emigrate first. (Laughter.) August 27.] CONSTITUTIONAL CONVENTION. 281 These, Mr. Chairman, are the reasons I have for opposing this amendment. If I could be led to believe that it would accomplish the purpose of bringing these recreant Americans out to vote who shirk their civic duties, I would vote for it as often as you would allow me, and, if necessary to pack the votes I would do that too. (Applause.) Mr. Dean — Mr. President, I dislike very much to find myself in opposition to the distinguished President of this Convention, who asked me in a very sarcastic manner a little while ago if there was anything that I did approve of? (Laughter.) I do not believe in the divisions of the elections we are going to make men any better than they are now. In the little city of Jamestown (and it is very active for its size) we elect our members of the common council for two years each. We elect two in each ward. If this provision goes into effect, we will be obliged to elect four aldermen in order to have an alternate in each ward. I do not think that the people of James- town want anything of that kind. I am opposed to any arrange- ment by which any person is absolved from his political duties at one time or the other. I believe that we should all go to the polls and vote any time there is an election. I believe further than that that we should go every time there is a caucus of the party on every proposition that involves the public welfare, and I cannot see that this is a benefit for the people in the way of better and purer elections. Mr. E. R. Brown — Mr. Chairman, are amendments to section i in order? The Chairman — A motion to strike out section i is before the House. Mr. E. R. Brown — The motion to strike out the section has been 'withdrawn. I move to strike out a portion of section i. The Chairman — Will the gentleman send his amendment to the desk? The Secretary will read the amendment. The Secretary read Mr. Brown's amendment as follows: Mr. Brown moves to strike out the word "numbered" every time it occurs in section i. Mr. Jenks — Mr. Chairman, is a further amendment in order? The Chairman — An amendment to the amendment is in order. Mr. Jenks — I wish to offer an amendment to section i, if it is in order. 282 REVISED RECORD. [Monday, The Chair — It is not in order unless it is an amendment to Mr. Brown's amendment. Mr. Jenks — It is not an amendment to Mr. Brown's amendment. The Chair — Then it is not in order for the present. Mr. J. Johnson — Mr. Chairman, I found in examining the statutes which have attempted the same thing in cities, notably the election of supervisors in the odd-numbered wards, that the word " numbered " had been used. The committee are not particular, and they simply followed the statutes which were brought to their attention. Mr. Mulqueen — Mr. Chairman, may I ask if Mr. Jacobs has withdrawn his motion to strike out the first section? Mr. Jacobs — Certainly, Mr. Chairman; I withdraw that motion if I made it. Mr. Holls — I hope that the amendment of Mr. Brown will prevail. I think it improves the language of the first section, and, as the Chairman has stated, it makes no difference. Mr. Spencer — Mr. Chairman, I hope that the amendment of Mr. Brown will not prevail. It was found that this term had been used in other Constitutions, and it was adopted by the committee after serious consideration. It was thought to be better phraseology; sounded better, and was clearer in every respect. It is an odd- numbered year; it is not an odd year, as has been suggested. It is an even-numbered year; it is not an even year. It would be very awkward phraseology to leave it as this amendment would leave it. I trust the good sense of the committee will approve of the report as it has been made in this respect. Mr. E. R. Brown — Mr. Chairman, I would like to ask the gen- tleman if he can conceive of any case where the interpretation of the word " even " would be different from "even-numbered " or from "odd-numbered?" Mr. Spencer — Mr. Chairman, an answer in the affirmative or in the negative, would not remove the objection which I made. I make the objection to this amendment in the cause of language and good sense. Mr. Dickey — Mr. Chairman, answering the gentleman's ques- tion, if I may be permitted, I would suggest that leap year might well be called an odd year. (Laughter.) The President put the question on Mr. Brown's amendment, and it was determined in the negative. August 27.] CONSTITUTIONAL CONVENTION. 283 Mr. Jenks — Mr. Chairman, I now offer my amendment to sec- tion i. The Chairman — The Secretary will read the amendment. The Secretary read the amendment as follows: After the word "shall," in line 6, page i, strike out all of the remainder of the section, and insert in place thereof, these words: " be held separate from all elections for State and national offi- cers, and that the Legislature, at its session next after the adop- tion of this article, shall enact such general laws as it deems nec- essary for such purpose." Mr. Jenks — Mr. Chairman, I would suggest, if it would not be too much of an imposition of duty upon the secretary, that he read the whole section as it would appear if this amendment were accepted by the House. The Secretary read section i of the article as amended by Mr. Jenks, as follows: "Section i. All elections, except to fill vacancies, of city offi- cers, including supervisors and judicial officers of inferior or local jurisdiction, elected in any city or part of a city and of county offi- cers elected in the counties of New York and Kings and in all counties whose boundaries are the same as those of a city, shall be held separate from all elections for State and national officers, and the Legislature at its session next after the adoption of this article shall enact such general laws as it deems necessary for such purposes." Mr. Jenks — Mr. Chairman, the purpose of the amendment is not far to see. Instead of putting into the Constitution anything of a legislative character which can be avoided, this amendment simply enunciates the general principle and remits to the next Legislature the enactment of such general laws as are necessary to carry out the purpose of the article. That is the whole sum and substance of the purpose of the amendment, and it seems to me that you keep the Constitution within its legitimate lines, and we intrust to the Legislature those legislative functions which belong to it. Mr. J. Johnson — Mr. Chairman, I hope that the amendment will not prevail. It destroys the whole purpose of the article. It leaves it where it is now. It can all be done now by spring elec- tions and spring elections in the cities at least will not call out over sixty or seventy per cent of the vote. It defeats the possibility of what we believe is a threat reform, and which we believe is 284 REVISED RECORD. [Monday, accepted by the press, representing the people with a unanimity which has occurred as to very few propositions that have been sub- mitted to this Convention. Mr. Jenks — Mr. Chairman, I do not know what the purpose may be of which the gentleman speaks. I do not know what scheme it frustrates, or what measure it may stab in the back; but I do know that this amendment, barring perhaps the English phraseology, simply places in the Constitution that which belongs to the Con- stitution and commits to the Legislature that which belongs strictly to the Legislature. Why should this constitutional amendment be clotted up and encumbered so that it will be like the intrica- tions of the metric system or the time table of a Long Island rail- road. Why not initiate the principle for which the President has so eloquently and charmingly contended this morning? Do not say elections shall be in the fall or spring. Do not encumber this article with the details ; but leave them to the Legislature. I have no secret motive. There is nothing behind it. I simply want to keep within the strict constitutional lines, that no legislation should be put into the Constitution, if it can be prevented. Mr. Rolls — Mr. Chairman, in answer to the gentleman from Kings, who has just taken his seat, I would state that in my opin- ion the term "separate election" as now used, and as used in the amendment, is somewhat the result of evolution. Separate munici- pal elections, in the sense of having spring elections, and elections in December, or at some other time during the year, except in November, when the State and federal officers are elected, is not a new thing in American political history. We have tried it in this State, it has been tried in nearly every State, and the result has been, generally speaking, that it is impossible to get a large percentage of the voters out for any such election, either in the spring or in December. Now the principle for which we contend here, and which we believe would work a great improvement, is based upon this funda- mental fact: that it is possible to get a large percentage of the vot- ers out once a year, in November. It is perfectly possible, in my opinion, in any city, perhaps even without a law for compulsory voting, to get a large percentage of the voters out once a year, in November; but experience has shown that it is not possible to do so at any other time of the year. We wish to combine the results of experience, and also the results of observation, as to the baneful effects of voting for city officers on national platforms. We have combined the two ideas in this August 27.] CONSTITUTIONAL CONVENTION. 285 amendment, which provides for city elections not at any other time than when citizens are accustomed to vote, in November; but not in the same year, when they vote for national or State officers, this is essentially a new principle. It is true that under the amendment proposed by the gentleman from Kings (Mr. Jenks), the Legisla- ture could provide for elections in odd-numbered years; but it is also true that it is very improbable that this would happen. The very thing we wish to accomplish here is to make it impossible to go on in the old stumbling way, with spring elections or December elections, in which we know there is no possibility of getting out a full vote, and which only aggravates our municipal evil. We want to get rid of all those ideas, and we wish to put it in the funda- mental law that the election days of odd-numbered years shall be reserved to the people for their local affairs. I admit that the Leg- islature might do this. At the same time, if there is any one ques- tion upon which the people of this State are willing to see an infrac- tion of the sound rule that as little legislation as possible shall be put into the Constitution, I think it is in reference to an improvement in our city government. If any observer would be asked to point to one single potent reason for the corruption and abuses which prevail in our city governments, he would undoubtedly say that it arose from the fact that city officers are elected upon national and State issues, instead of being elected upon issues relating to the affairs of the city. This has been so as long as the county has existed, and it will be so until we get rid of the cause of it all. The people do not want separate elections in spring or in December. The cry for separation of State and municipal affairs which is uni- versal, as our honored President has said, is for a separation by a full calendar year, when there can be no question of the influence of one election upon another. Mr. A. H. Green — Mr. Chairman, I do not want to debate this question, but simply to toss into the arena facts that are certified to by very high authority such as the Hon. William M. Evarts, Mr. Hand, and others of like character; and to read this paragraph: "The question of a separation of elections in the city of New York has been a fruitful source of debate and experiment. It is a mistake to suppose that the municipal elections fail to bring out a full vote in the large cities. A careful comparison of the vote cast in the city of New York at the charter elections and the general elections during all the years from 1834 to 1874, discloses the fact that in many years the number of votes cast at the spring charter election was larger than the number cast at the fall general election, and that when the elections were held simultaneously the votes cast for the 286 REVISED RECORD. [Monday, political candidates on State and national tickets largely exceeded those cast for the mayoralty candidates." Now, as I have said I do not propose at this moment to debate this question as to what portion of the year these elections should be assigned, but to state a fact that experience has demonstrated, that where separate elections are held in the spring they bring out as large a vote and a much larger vote than ever the general elections. I think there is a very general disposition here to accept the separa- tion of the two elections. I am not addressing myself to that point, but I simply desire to state the fact and let it have whatever weight it may have in the progress of the discussion. Mr. McDonough — Mr. Chairman, I am rather favorable to this measure, on the whole. I do not, however, think the spring elec- tions or the separate elections are going to make any great change. In almost all the interior cities of the State we have separate elec- tions. They happen to be in the spring instead of in the fall. Practically, I do not think it is going to make much difference. I desire, however, to say this in addition; I observe in this proposed amendment that everything that is proposed here can be done by the Legislature. Now, consistency is a jewel. I had a very important measure here on Saturday, and the only objection to it was that the Legislature could do it all. If that is so, why not leave this to the Legislature? 1 do not believe in leaving everything to the Legis- lature that can be left to the Legislature. I think this Convention ought to provide for this very thing. It ought to provide for it. I think it is proper. But I simply want to call the attention of some eminent gentlemen to the fact that on Saturday the argument was made that it might be left to the Legislature, while to-day the argu- ment is that the Convention ought to attend to it. I agree with to-day's views. Mr. Holls — Mr. Chairman, I wish to answer just one observa- tion of my friend Mr. McDonough. Not all of this can be accom- plished by the Legislature. The terms of county officers cannot be changed by the Legislature. In the great cities of the State it will be readily conceded that county officers are practically city officers, really perform the work only for the city. Mr. H. A. Clark — Mr. Chairman, I agree with the gentleman from Albany that consistency is a jewel. But on Saturday he insisted that those matters which could be done by the Legislature ought to be done by this Convention, and to-day he stands up before you and says that those matters which can be done by the Legislature should be left to the Legislature. But there is one August 27.] CONSTITUTIONAL CONVENTION. 287 reason why these elections should be separated that has not been called to the attention of the Convention. They say, leave it to the Legislature to make the separation, and also at the same time that most of the cities have separate elections at the present time. That is a fact, but there are some objections to the elections being held as they are now. The city of Albany holds its election on one day, and the city of Troy holds its election just one week from the day of the Albany election. People who are not particular as to how many times they vote, and how often, vote one day in the city of Albany and the next week go over to the city of Troy. Some of them residing so near the border of .the city of Troy that they are not certain in which city they reside, come to the city of Albany and cast their votes. I am told that the city of Hudson holds its elec- tion a very short time after the November election; and that the results of the November election have a bad effect on one party or the other at their city elections. It was argued before the Com- mittee on Cities, that it would be a good thing to make the change so that all city elections should be held on the same day. Now, when we make the change and say that they shall all be held on the same day, it seems advisable to fix the day; some of the large cities like New York and Brooklyn hold theirs in November. To say they shall hold them all on the same day and leave the day to be fixed at some other time in November, would create a very large expense, without accomplishing the desired result. Evidence was brought to the Committee on Cities that it cost a million dollars a year to hold an election in the city of New York, and that the city of New York had tried spring elections and they did not work well. To require cities to hold their elections on a separate day from the general elections, and to require them to hold an extra election, incurring this great expense would be an unwise provision to adopt. It seems to me, Mr. Chairman, that after the extended discussion on section i here and before the committee — having been before the Committee of the Whole once before and very little objection to it found — I think the section ought to be adopted. I under- stand that upon this question the Committee on Cities were unani- mous, after hearing many arguments in favor of different times of the year for holding the elections. Mr. Jacobs — Mr. Chairman, may I state one fact? I desire to call the attention of the committee to one ominous fact, and that is the deathly silence of the minority in this Convention. They know their meat. Mr. Peck — Mr. Chairman, I believe I have the misfortune to be a member of the minoritv. I think it is a sfreat misfortune to this 288 REVISED RECORD. [Monday, Convention that we are in the minority. What I now wish to say is that this seems to be a discussion of the first section of the article and I desire to propose to Mr. Jenks that he shall add to his amend- ment its extension for the purpose which I will now indicate. It is proposed here that municipal elections will be reformed to a con- siderable extent, so that the attention of the citizens of cities may be directed by having separate elections for municipal matters, and in that way the municipal corporation will receive a different kind of attention from the citizens. Now, that is to be done in the cities of New York and Kings by the separation of the municipal election from the election of State officers. Why? Because it is desired that State and national politics shall be separated from municipal politics. If this section is left in its present condition it will be of benefit only to the cities of New York and Kings. It is local legis- lation, and according to its own provisions it should be submitted to the approval of the mayors of New York and Brooklyn. I say it is local, because it does not separate in any of the other twenty or thirty odd cities of the State, State and national elections from muni- cipal elections. I am very sorry that there are so very few of the representatives of the smaller cities of the State present in this committee at this time. I think they will all unite with me in saying that so far as separating politics from municipal elections under the provisions of this first section, it will be absolutely worthless. In every one of those cities a sheriff is of more political consequence than a Governor, so far as the organization of the party politics is concerned. So far as the organization of parties is concerned, the county clerk is of more political consequence than the Lieutenant- Governor. And so you may go through the county officials, and if you leave them to be elected at the same time with the city officers, your amendment will be absolutely worthless in such localities, because party organization does not depend upon who sits in the executive chair in Albany. It does not depend upon who sits in the Lieutenant-Governor's seat in the Senate. It depends upon the active politicians holding office in the county, and we will have no benefit from this section. No smaller city in the State, whose boundaries are not coincident with that of the county, will have any benefit from this, except once in a while when, at odd-year elections, no county officer is to be elected. I, therefore, ask Mr. Jenks to extend his amendment so as to strike out all of line 5 to and including the word " city," in line 6, and insert before his amendment takes effect " in counties where there is a city." August 27.] CONSTITUTIONAL CONVENTION. 289 Mr. Jenks — I think, Mr. Chairman, that I will take that amend- ment. I accept it with pleasure. The Chairman — Mr. Jenks desires to correct his amendment so that it will read as follows: Mr. Jenks — I have no desire to correct my amendment, Mr. Chairman. Mr. Peck — It is not to correct Mr. Jenks's amendment, Mr. Chairman, but to put this in previous to his. The Chairman — That will be an addition to his amendment. Mr. Jenks — But not a correction, Mr. Chairman. Mr. Peck — Mr. Chairman, I see that my suggestion is going to make confusion, and I, therefore, withdraw it, and will offer it later. The Chairman — Mr. Peck withdraws his proposition. The ques- tion is on Mr. Jenks's motion to amend. Mr. Spencer — Mr. Chairman, I think that this debate is drifting from the question that is really of importance here. Coming as I do from one of the smaller cities of the State, I feel, sir, that I can in a measure answer the remarks of the last speaker with some authority. I do not believe that this provision will, to any great extent, eliminate politics from city elections. It is not that which has recommended this report to me. On the other hand, I believe that it will permit the citizens of a city to deal with their local and domestic concerns directly and not affected by larger and greater and outside interests. When the local and domestic con- cerns of a city are mixed up with national and State affairs, it is impossible for the average citizen to separate those affairs and deal with the subjects together; and my view of this amendment is that it places these several matters in separate years, and enables an ordinary citizen to deal with them separately, intelligently and unbiased by matters of greater moment and concern to the State and nation. I presume, sir, that politics will enter as largely, if this provision is adopted, into city matters hereafter as it has heretofore. I do not presume that this will interfere with the political manage- ment of parties in cities, but when measures of reform, when ques- tions in regard to streets, parks, highways and other multitudinous matters come up in city elections and are brought before the people, they can give to those matters their undivided attention, and they will be dealt with intelligently, upon a business basis, and in a man- ner that will be best for the business interests of the city; and it is this thing which has given me great interest in this change. I 10 290 REVISED RECORD. [Monday, believe, sir, that it recommends itself to the people of all the smaller cities of the State. Further than that, under our present system of elections the expense attending these elections is of some moment. Further than that, I believe, sir, that we have too many elections. With our spring elections as to cities, with our fall elections as to State and national questions, with our intermediate elections as to schools, our citizens are constantly called upon to act in relation to this and that matter. I believe, sir, that an election every other year in regard to State matters is frequently enough; and also that the same principle applies to city matters. I, therefore, hope that the amendment of the gentleman from Brooklyn will not prevail, but will be voted down, and that the report of the committee will be accepted as it has been made, and as it stands upon this general order No. 13. Mr. Dean — Mr. Chairman, I am entirely unable to fathom the subtle reasoning of our professional reformers. I cannot under- stand how a man is going to be more, virtuous, more patriotic, more public spirited in November than in June. This proposition carries with it the whole scheme of biennial sessions of the Legislature, goes out into the realm of reapportionment, and all that sort of nonsense which is going to be brought up here at a future time. A great deal has been said about the desirability of divorcing this mat- ter from politics. It seems to me that no more foolish proposition could be introduced into this discussion than that politics is in itself vicious. Politics, in its broad sense, simply involves questions of public policy. I believe that every time a man goes out and dis- charges his duty to the community, whether it be at a spring elec- tion or a fall election, he is doing a public duty and that he is a better citizen for it. This going on the assumption that the citizen- ship of this State is essentially corrupt and vicious and that we have got to surround it by all kinds of traps and machines for the pur- pose of reforming it, is in my judgment entirely consistent with the ideas of the professional reformers who read a magazine in the after- noon, based upon premises created out of the imagination of the author, without any reference to the practical side of the question, carried on through a maze of mere words and suggestions and brought in here and introduced and carried on at great length by every fellow who has never had any practical experience further than to practice statutory law and read his magazine in the evening. I am entirely opposed to this idea of bi-partisan and biennial elec- tions. It is taking up the time of the State, it is simply increasing the amount of work to be done by a single Legislature every ses- sion, and it will result inevitably in disaster to the State. August 27.] CONSTITUTIONAL CONVENTION. 291 Mr. Emmet — Mr. Chairman, I do not understand that the object of this separate election scheme is to remove municipal matters from politics. I understand its object to be the separation of municipal politics from State and national politics. I do not think any member of this Convention is impractical enough to hope, or to believe, that any scheme can be devised which will remove politics from the consideration of any public matter, and I for one do not consider that such a scheme would be desirable. I think that the admission of political methods into the consideration of all public matters is important and desirable. In my opinion, the existence of political parties is a prerequisite to a proper expression of public opinion. Political organization leads to a proper consider- ation, by the people, of the issues which citizens are called upon to settle. By means of it, the views of public thinkers are dissemi- nated and an expression of opinion upon those views is achieved. My support of the separate election idea is based, not upon the belief that it strikes in any way at party organization, but that it strikes at the confusion of issues which is bound to result where upon one ticket there are included the names of thirty candidates and five or six issues — issues affecting different extents of terri- tory, offices which have no connection, one with another; hope- lessly, inextricably, confused. I believe that, with separate local elections, citizens could devote careful consideration to the one essential issue which should be before the minds of municipal resi- dents during a. municipal election — the local issue — which in the larger cities of our State, at any rate, is usually more important and closer knit to the individual interests of taxpayers and citizens than either the issues of State or national elections. Xow, sir, believing that in a consideration of these issues alone there should be an unclouded opportunity for each voter to use his individual judgment, uninfluenced by the consideration of other and absolutely extraneous matters, I favor separate elections for cities. The scheme will in no way detract from the essential strength of party organization in our municipalities, nor will it have any other effect than to assist intelligent voting upon local matters by the resi- dents of cities. I am opposed to the amendments of Mr. Jenks, because I believe that while it may result, as has been pointed out, in the eventual gaining of separate elections, its more probable result will be an absolute neglect on the part of the Legislature, of the mandatory provision laid down in the scheme. The Constitu- tion of 1846 has furnished too many examples of disobeyed demands upon the Legislature to give much hope that such an injunction as this will be obe>ed simply because it is in the Constitution. I 292 REVISED RECORD. [Monday, believe that our duty now is to grant to the people this one reform which has been demanded by public opinion for many years, against which no sound argument can be brought, and to grant it in a Way which will be unmistakable, and to implant it where it cannot be tampered with or taken away at the whim of a Legislature. I favor the separate election feature of the report of the Cities Com- mittee, and trust it will be adopted. President Choate here resumed the chair. Mr. O. A. Fuller — Mr. President, I have received a dispatch from Mr. Acker, stating that his wife is very ill and asking to be excused from attendance upon the Convention. The President put the question on the request of Mr. Acker to be excused from attendance, and he was so excused. The Convention took a recess until three o'clock this afternoon. AFTERNOON SESSION. Monday Afternoon, August 27, 1894. The Constitutional Convention of the State of New York met in the Assembly Chamber, at the Capitol, Albany, N. Y., pursuant to recess, Monday afternoon, August 27, 1894. President Choate called the Convention to order. The Convention then went into Committee of the Whole, Mr. I. S. Johnson in the chair, on general order No. 13, and resumed the consideration of the amendment offered by Mr. Jenks to amend section i of proposed amendment. Mr. Moore — Mr. Chairman, in speaking upon section i of this bill, it passes my comprehension how two gentlemen from the same city, evidently as anxious for the welfare and well-being of their city, one as the other, can differ so entirely as do the chairman of this committee and the gentleman from Brooklyn who proposes to amend it. I have looked at this section pretty carefully, as I see it, and from what information I can get, I believe that it will be unwise to amend it. I believe that if you amend it in the particulars pro- posed by the gentleman from Brooklyn you will literally take the heart out of the section and make it literally inoperative. You do that which we submit should not be done. I remember that at a meet- ing of the joint Committee of Legislative Powers and that of Cities, and of some other committee, the very question, the very difficult question around which the discussion ranged, was the fact that the city elections should be made in the fall and not in the spring, and August 27.] CONSTITUTIONAL CONVENTION. 293 that, therefore, they should be biennial. If this bill is to pass at all, if it is to become the action of this Convention, I think, Mr. Chair- man, that this section i should pass exactly as it is worded. As to the proposition made by our honored President, that it should be taken out entirely from this bill and the bill be recommitted, and the section be made a separate amendment from anything else, and so adopted it by the Convention, I regard that simply as a matter of expediency upon which I have no opinion, but I should be very apt to follow the action of the majority here. But as to the section itself, I am free to say that it is my judgment upon all the informa- tion that I can get that it should pass exactly as it is and without amendment. I shall, therefore, vote for the section as it is. The Chairman — The question is on the motion of Mr. Jenks to strike out the words which have been read by the Secretary. Mr. Bowers — There is no very great difference of opinion, Mr. Chairman, between the majority of the delegates of this Convention as to the propriety of separating municipal elections from State elections. I understand generally that the delegates from the interior of the State are willing to concede that to the delegates of the great cities, and the cities would be very glad to get that among other matters which are to bring home rule in some measure to them. The sole question now to be determined is how effective a relief can be given merely in the provision for a separate election. The bill proposed by the Cities Committee is to the effect that the election shall be held in odd-numbered years. That gives no relief. There is a State election held every year. The Constitution pro- vides, as I understand it, that State officers, other than Gover- nor and Lieutenant-Governor, hold office for two years; they were elected in 1893, and will be again in 1895, and in 1897. Now, we have had no report as yet from the committee on the Governor and State officers — or at least not to my knowledge — and we do not know whether they have made any change in the terms of those offices. I do not know why it has been held back, or what is intended to be done with it. I do not even recall whether an extension of time was given to it. But it is perfectly plain that if we pass this section as proposed by the Cities Committee, and that committee, and the Committee on Governor and State Officers make no report, or fail to make it in such form as to meet the wishes of this Convention, nothing whatever will be done to accomplish the separation of elec- tions. Therefore, it is, as I understand it, that Mr. Tenks's amend- ment is offered, which, in mandatory terms, compels the Legislature to arrange for separate elections. And it was wholly with this in 294 REVISED RECORD. [Monday, view that I, this morning, suggested that we ought not to consider this section until such time as we had that report from the Com- mitee on the Governor and State Officers. Otherwise than that, if you defeat the amendment made by Mr. Jenks, we may end this Convention by making no effective provision whatever even under which the Legislature can arrange for separate municipal elections, unless it be for spring elections. But if you pass the amendment proposed by Mr. Jenks you do give effective relief and compel the Legislature in some form to arrange for separate elections; and then if we get a report from the Committee on the Governor and the State Officers which will be acceptable to the Convention it will give time enough to determine the precise wording of the section as now proposed by the Committee on Cities. For those reasons, and for the purpose of preserving some principle on which we can get separate elections, I advocate the amendment made by Mr. Jenks. Mr. Nicoll — Mr. Chairman, assuming that at some subsequent time in the Convention an amendment is to be made for the pur- pose of accommodating the friends of the State officers to the proposed amendment contained in section i, I am opposed to it, and for this reason: I am opposed to constitutionalizing what all persons agree is an experiment. It is proposed to separate in the larger cities the local elections from the national and State elections in order that the attention of the electors of those cities may be concentrated upon municipal affairs, and may not be distracted during the periods of municipal elections by State or national con- siderations; and it is believed that as the result of such separation in the course of time better government will be brought about in the cities. But, as I say, that is an experiment. It is an experiment about which men differ. There are those who believe that perhaps it may not secure the result desired, that instead of securing better government, it may in fact only put municipal government within the power of the dominant machine. Such has been the experience of other cities where the experiment of separating municipal from national and State elections has been tried. I had occasion to say in the course of my remarks upon the Cities Committee amendment the other day, that in several of the western cities where they have attained the separation of municipal from State and national elec- tions, they have been unable to get out the vote, and that in con- sequence municipal affairs had fallen absolutely into the hands of the machine. Now, as between those different views, what ought we to do, as sensible and conservative men? Ought we to put into the Constitution an experiment which we can never change without August 27.] CONSTITUTIONAL CONVENTION. 295 another Constitutional Convention or the submission to the people of a separate amendment? Suppose, as a matter of fact, after we have separated in the city of New York the municipal election from State and national elections, the results desired are not obtained; suppose, as matter of fact, the good citizens of that city are not sufficiently aroused by municipal considerations to go to the polls, and the elections do fall into the hands of the dominant machine in that city, how are you going to change it? How can the Legislature go back? They will be tied hand and foot to the proposition now proposed to be incorporated in the Constitution for separate elec- tions forever, or until, as I say, another Constitutional Convention meets, or until a separate amendment is proposed to the people. Ought we do that, in view of the experience of the past, in view of the experience of other municipalities, in view of the fact that we have had separate elections in the city of Xew York, and have dis- carded them, for the very reason that they did put the municipality entirely in the control of the dominant machine? Ought we now to take up a once discarded experiment and put it in the Constitution, so that we can never change it? I am opposed to doing such a thing. I believe that we should do what is proposed in Mr. Jenks's amend- ment — that we should leave it to the Legislature, with a mandate to the Legislature to try the experiment, but leaving in the Legis- lature reserve power enough to change the law if the experiment works badly. That, as I understand it, is what the amendment proposes. That is the safe and conservative course which this Con- vention ought to adopt, and it ought not to tie down any of the cities in this State to a hard and fast constitutional rule which has worked badly in the past, and which may work badly in the future. Enough elasticity ought to be left to the proposition to enable the Legislature to change it if, after the experiment has been tried for a reasonable period of time, it fails to work successfully. Mr. Choate — Mr. Chairman, I think, perhaps, the Convention has a right to hear from the representatives of the majority, if they may so consider themselves, in the great city of Xew York on this subject (an untirely unrepresented body of men in municipal affairs), and why it is that \ve consider it very important that this first article should find a place in the Constitution substantially in the form in which it has been ^resented by the Committee on Cities. I am not at all surprised that my friend from Xew York who has just spoken and his colleague from Kings desire to have this article substantially nullified by the amendment that has been pro- posed by Mr. Jenks, as it would nullify it if you simply left it all to 296 REVISED RECORD. [Monday, the Legislature under a general declaration that municipal elections ought to be separated from State and national elections. Let us look for a moment at the condition of things in the city of New York. What is the municipal government of the city of New York to-day? Is it Democratic? Not in the least. Is it Republican? Not at all. Our friends who are on the floor of this Convention representing the minority party have, no more voice in •our municipal affairs than we who represent the other party. The city is not governed in any way by representation. It is simply in the hands of a little body of men who may be counted upon the fingers of one hand; and the most celebrated of these representatives from the district of New York have no more voice in the government of the municipal affairs of that city than so many tabes unborn. And they know it perfectly well. If a judge or an alderman or a street sweeper is to be created, nobody would go to them and ask their influence, because they have none. (Laughter :and applause.) And nobody knows it better than 'they. What is the government of the city of New York based upon? It is based on the possession of the 15,000 to 20,000 places that con- stitute the government of that city from top to bottom, which are used purely as patronage. And that is the evil that lies at the basis of the entire failure of our municipal government. I have said that five men — not more than five men — govern the city. I might have said, almost, that it was in the hands of a single man. If anybody wants to be a judge, he takes off his hat to him; and if he wants to be employed in the gang of veterans who pre- tend to sweep the streets, he applies to him. And there is no different measure applied as to fitness for a place in the whole range of offices from top to bottom. By means of a well-perfected organization it is thus that the affairs of that city are thrown into the hands of one, two or three men, who govern it to suit themselves. Now, what remedies can be applied? What possibility is there of restoring such a state of things as that such men as those who represent the districts of that city on the floor of this Convention can be restored to their proper influence? (Laughter and applause.) That is what I wish to see, so that the brains of the Democratic party may be represented in the government of that great Demo- cratic city. I do not hope to see it cdhverted into a Republican city. That is far off in the millennium, which probably none of us will live to see. What I want to see is a representation of the real, dominant party, whichever it may be, in the government of that city. August 27.] CONSTITUTIONAL CONVENTION. 297 Mr. Nicoll has said that this is an experiment. For one I say any experiment is better than the continuance of the thraldom under which both parties now labor and suffer in that city. There are remedies; there is a hope, and my hope is — and I think it is shared by the great bulk of both parties in that city — that there may be a change for the better; that the citizens of both parties may take an interest in the management of its affairs, and that if it is to be gov- erned by one party only the virtue and the honor and the intelli- gence of that great party may take charge of its affairs. I am sure, Air. Chairman, that if the government of the city -could be so shaped that the gentlemen who represent it on the floor of this Convention should conduct its affairs, it would be a great change for the better: or if they could be restored to a minimum of influence it would be a great step in advance. This government by one man is what I think we should all seek a way out of, if we can. It is a very singular thing, as my friend from Kings said this morning, that these three, four or five men were not originally at home in New York. They understand the art of government — that form of government — and they have succeeded in putting it in practical operation. Now, it is true that the government of the city of New York, conducted on the most economical, honest, strictly business prin- ciples, would involve the annual expenditure of some fifteen to twenty millions of dollars. It is an enormous city; its necessities are very great, and you cannot expect to get the pay-roll of the city much below the figures that I have named. And then when you come to the expenditures upon contracts that the city is obliged to make in the conduct of its affairs, the amount is almost doubled. Now, the proposition — the hope — of good citizens in the city, including, I think, all our associates, here from the city districts, as well as their colleagues from the Republican districts of the other party, is that this vast expenditure may be simply made and man- aged in the interests of the city ; that two men shall not be uniformly employed, as I think they are now, to do one man's work, but that every dollar that is expended shall be expended for the public good and not merely for the good of the recipients of the offices and the appointees. There is no doubt that the complications which come about from the union and confusion at every annual election of national and State politics with municipal affairs tend greatly to this debased condition of affairs with us. There is no reason why a man should be the mayor of New York simply because he is a Republican or because he is a Democrat, or that any oilier municipal office should 298 REVISED RECORD. [Monday, be filled by this man or the other because he belongs to one national party or the other. The questions of national and State politics have nothing to do with the economical, the honest, expedient and prudent administration of municipal affairs. But every time an election comes on the choice of office for muni- cipal affairs is absorbed and swallowed up in what the great majority of men think are the vastly more important questions of State and national politics, and has to be controlled by the policy of one party or the other about the affairs of State and nations. And so it becomes about that this vast outlay of the city, this patronage, into which it is counted, this necessary expenditure of public moneys for the municipal necessities comes to be used as a great and controlling factor in our national and State politics, and it is about as injurious to the dignity and wholesome condition of national and State politics as it is to that of municipal affairs. I think the question has been studied very carefully for the last ten or twelve years, and I believe that there is a general union of opinion throughout the State, among men of both parties, that great good will be accomplished if we can secure such a separation of municipal elections from State and federal elections by having them in alternate years; that when the only question up for con- sideration is the conduct of the city's affairs, the attention of good citizens, like those who represent the city districts here to-day, will be attracted, and all men who have anything at stake in the conduct of city affairs, will take an interest in the election which is to decide who is to be mayor, who are to be aldermen, who are to fill the various other offices which have to do with the conduct of the general affairs of the city. Then there is another startling evil that will be cured by this separation of elections and that is the most corrupt and, it seems to me, degrading habit and practice of trading at these elections, where both of these important interests are involved to either, swapping of a municipal candidate for a Member of Assembly, if you please, and votes for the Member of Assembly. I do not think that any of my fellow-delegates from the city of New York will deny that this is a great, a constant and a growing evil. There is a vast deal of it done, and I do not think the needs of this proposed reform depend upon the question as to which party is or is to be in the control of the city. If the other party were in control and managed its affairs in the same way, I should be as much opposed to any Republican boss charged with the authority of distributing the offices of the city as I am now to a Democratic boss doing the same thing. August 27.] CONSTITUTIONAL CONVENTION. 299 -Now, these evils very certainly will be relieved and mitigated if one year we vote for State officers and federal officers and the next year vote only for municipal officers. And I for one am in favor of giving the people of this State what they seem almost unanimously to demand — this separation, for the purpose of testing the civic virtue of the people in these municipalities. And, then, Mr. Chairman, if they are satisfied with the form of government or administration under which they exist, why let them submit to it. I do not believe that public virtue is to be created or originated by any acts of legislation or by any constitutional provision, but I do believe that it may be fostered ; I do believe that when you summon the people of the city and say to them (take the city of New York, for instance) : " Now, you are not content with your former govern- ment; you are not content with the people who administer your affairs; you want a different kind of a Democrat, or a different kind of a. Republican, in charge of this or that particular office;" when you challange them to that I think they will come out and attend to their business or they will deserve to continue to suffer from the evils under which they now labor. It has been said very often, and very wisely, I think, that the government of the city of New York is as good at any particular time as the people of that city deserve, and if they are not willing when the opportunity is given them to take their own affairs into their own hands and manage them as matters of business, why let them fall and continue in the hands of the destroyer, of the despoiler, where they are now. Of course, this depends upon the willingness of the members of this Convention to adjust the election of the State and federal officers so that there shall be this possibility of alteration, each alter- nate November, giving the people an opportunity to vote for State officers and then in the next year for municipal officers. But, that is not to be accomplished by any such proposition as that of my friend, Mr. Jenks — simply to leave it to the Legislature to appoint some other day for municipal elections than that on which State and federal elections are held. Not at all. It is not accomplished, either, I think, from our general knowl- edge of the Legislature, by leaving it to them. There is sometimes an occult and subtle sympathy between the ruling element, I was going to call it, it is hardly an element, but between the ruling authorities in New York and a large proportion of the Legislature ; and I think we might wait probably until far into the twentieth century before the Legislature carried out the idea or plan of my learned friend from Brooklyn. And, perhaps, he has something in 300 REVISED RECORD. [Monday, his mind when he proposed the amendment to leave it to the indefi- nite pleasure of the Legislature under no mandatory provision whatever, or command to make the municipal elections alternate with the State elections. Well we can do it, and I believe it is the duty of this Convention to see that the people have a chance to do it. Of course, the great federal elections come on what the chairman of the Committee on Cities has so aptly designated even-numbered years, and, as I have understood, the Committee on Governor and State Officers are ready to report, if they have not already reported, that the great officers of State shall be elected in the same year; and as there is a substantial identity under our form of party government between State politics and national politics, no better method than that can be devised. But it is our duty to give an opportunity for the civic virtues to be cultivated and resurrected, and to put each city govern- ment upon the people of that city every second year for them to say whether they want to be improved or not. I do not think there has ever been a time, certainly not during my residence of thirty- eight years in New York, when if the people of the city — by which I mean those who are interested in its welfare, who have a stake there as being the home of themselves, their children and their pos- terity, as having business there, as having property there, as being under obligation to pay taxes there — there never has been a time under any form of government since the charter of 1870 was repealed, when these citizens of both parties, such as are repre- sented on the floor of this House by these district delegates from the city and the delegates-at-large who reside in that city, when they could not if they had this chance of a strictly municipal election, have carried things to suit themselves. They will be greatly aided ; they will be helpful in their efforts for good municipal government, if they have this opportunity, when the question will not be whether a man is a Republican or a Democrat, but whether he is a fit man to administer the affairs of the city as they ought to be administered so as to make ways and means meet, so as to have every dollar spent as it ought to be spent, for the public good, and not as a matter of party patronage and party plunder. Give them that opportunity. And so, Mr. Chairman, I, for one, hope that this amendment sub- stantially as proposed by the Committee on Cities — I do not stand on any particular form or phraseology — but so as effectually to separate the municipal from State and federal elections, shall be adopted. August 27.] CONSTITUTIONAL CONVENTION. 301 Mr. Jenks — Mr. Chairman, I was amazed at the bright flashes of silence which came from the chairman of the Committee on Cities, until I found that he had retained counsel, who held a brief for him upon this motion. I have now come to the conclusion, if the Chair- man will pardon the personal allusion, that the defense of the chair- man on cities to this section was to be an alibi. In the words of the classic quotation, " O, Samivel, Samivel, why wasn't there an haliby? " But I assume, that since counsel has been retained by the chairman of the Committee on Cities, he has been furnished with that second edition of Johnson's Dictionary, which he clamored for so loudly on Saturday. If he has lost his mind in the study of the phraseology of this particular section, I am not surprised that he has forgotten the plain, compact phraseology of the amendment, which I say now, that I had the audacity to offer on the floor of this House. I regard this principle enunciated here as a great honor, in the interest of good government. But, without going back too much to our Pickwick, I had made up my mind that the committee had drawn this particular resolution on the same theory with which Mr. Pott wrote his great work on Chinese metaphysics. He read up under the heading of " C " all about China, and under " M " for meta- physics, and combined the information. So these gentlemen, hav- ind read up under the head of " O," for officers, and under " E," for elections, have combined the information. The loose recklessness with which times, calendars, and relative pronouns were jumbled together in that coterie, gave me the inducement, in my own humble, plain Anglo-Saxon way, to draw up what I thought was a plain and simple amendment. Now, Mr. Choate does me an injustice, and I may say, that he does my father's son an injustice, when he claims my purpose in offering this amendment is to defeat this principle of divorcing State and municipal elections. It is not so. The purpose of introducing this particular amendment was to express in the Constitution that which belongs to the Constitution, a cardinal principle, and to commit to the Legislature that which belongs to the Legislature, the power to legislate in accord with that cardinal principle. If we are going to doubt the Legislature, if there be any ground for it — and the gentleman knows which party expects to have the Legislature next year — if we are going to doubt the Legislature, then make the Constitution of the State, if you please, as voluminous and heavy as this book, because if you are once going to doubt the Legislature on one point, why not doubt it in all, and if we are to be afraid that this cannot be intrusted to the next Republican Legislature or to the next Democratic Legis- lature, why, then, what can we intrust to the Legislature? That is 302 REVISED RECORD. [Monday, the point in this particular case. I had no purpose, let me tell the learned President of this Convention, to defeat this measure. My amendment reads thus: "There shall be separate elections, and the Legislature, at the next session after the enactment of this article, shall enact the proper laws to carry it into effect." If that be not mandatory upon the Legislature, then make it mandatory; but, because you think that your next Legislature will not do its duty, there is no reason why you should encumber the Constitution with every possible article of legislation which the ingenuity of the mind of man can suggest. I do not seek any other purpose. I give the gentleman my word of honor, if it be worth anything, that my simple and sole purpose was to confine the Constitution to the subjects which properly belong to the Constitution, and not to encumber it with legislation. What do I know about this matter in New York? I do not seek to know. I do not seek to answer here, by flinging back the words, and saying that the State is under an Oriental des- potism — the despotism of the Oriental Hotel at Coney Island. (Laughter.) Would that be in point? Is it in point to tell whether Mr. DeLancey Nicoll, whom I love and revere, can or cannot appoint a street sweeper in his district? Are we legislating for this party or 'for that party; for the next gubernatorial convention, or for the next State convention, or for the next Legislature? Are we legislating that the next mayor of New York may or may not be a Republican or a Democrat? We are here to make a Constitution, imder our oaths of office, in the line of the splendid phraseology and flowing words which lifted us so high in the plane of duty as they came from the lips of him who presides in this Conventon on the day he took the gavel. I have attempted, so far as party lines and respect for mere Democratic obligations will permit me, to live up to the sentiment, revering, yea, almost loving the man, for reasons which lie knows, which I need not tell — the man who gave us the inspira- tion on the day he spoke here, when we took our places. I do not seek, I do not desire, for the mere sake of stabbing a measure in the back with cowardice and with despicable action, to defeat this mat- ter. I am in favor of the separation of State and municipal elections, and if the committee can draw a phrase in good, decent, homely Anglo-Saxon, which will put it in the Constitution that this is a cardinal principle, and at the same time commit to the Legislature by mandatory terms the execution of the fiat of the Constitution, then I will vote for it, no matter who votes against it, and no matter who damns or complains. That is the principle I have in this mat- ter. And now to be told, merely because I differ with the gentleman in politics, that I stand here with the purpose of defeating this meas- August 27.] CONSTITUTIONAL CONVENTION. 303 ure, is hardly just to me. I am the gentleman's equal not in intel- lect, not in experience, not in many things which make him great — but I say to him, with all frankness and with all sincerity, that I am the equal of the gentleman in the honest and sober purpose to discharge my duty here to the full measure of the obligations which came as soon as my hand rose and fell when I took the oath of office. (Applause.) Mr. A. H. Green — Mr. Chairman, I have listened to the remarks of the two gentlemen who have preceded me, and who have depicted very eloquently the condition of things in the city of New York. There is much truth in what has been said with regard to affairs of the city of New York. That city is not possessed of self-govern- ment. It has been deprived of that. And I may say that the voices that I now hear in this hall are very different from those that I heard here about ten years since. About the year 1884 the measures which have brought about the condition of things, which the President of this Convention has so eloquently depicted, were urged upon this community with all the force that the newspapers and all the orators could command on the side of politics on which he acts, if he acts with any side, and those measures were to the effect that all the powers of government should be concentrated in the mayor, in order that he should have the responsibility. I was up here and was called upon (I happened to be in the Assembly Chamber at that time) to assert my conviction that that was the proper thing to do — which I repudiated then, as I do now. I do not think, and I agree with the President of the Convention, that it is a proper thing that one man should rule in the city of New York, whether he is the mayor, or whatever he may be. It is not the Democratic party that is answerable for that. I never expected, when I came to this Con- vention to allude to parties at all; I have avoided it, and wish to avoid it; but it has been pushed into the arena of discussion here, and one can hardly avoid alluding to it. It has been urged, as I have said before, for years past that powers be taken from the board of aldermen, that elective offices be dispensed with, and that we must concentrate power in order that we may have responsibility. The result is that we have been denuded of all responsible electoral gov- ernment in the city of New York, and it is not the Democratic party which is responsible for it. \Ye talk about getting rid of partisan- ship in this business. I don't believe it is intended to get rid of partisanship in New York. I don't believe they mean to let New York have legislative power — independent power, an autonomy of its own. When you take into consideration the fact that the Presi- dent of the United States appoints a hundred thousand office hold- 304 REVISED RECORD. [Monday, ers, when you take into account the further fact that he is elected by the States of this Union, and that the election is controlled by the State of New York, and that the election in the State of New- York is controlled by the city of New York, and that the city is very largely controlled by its patronage, any man who knows anything about legislation here for the past fifteen or twenty years knows that the Republicans will never allow the city of New York to have control of that patronage if they can prevent it, because it defeats their purposes in a broader field of political action. (Applause.) Now, sir, I have not heard from the distinguished and much-admired President of this Convention one practical word about the whole subject — not one. We have had good government men and all sorts of theorists here, and the gentlemen with stylus and pads come here and write about schemes of government, but if you ask our President to put clown in writing what he wants, I think it will trouble him just about as much as it troubles anybody else, so far as the city of New York is concerned. It is a problem not easily solved. With its multiplicity of interests, franchises and powers, you cannot, in five minutes, or hours, devise a scheme here which shall not do damage to somebody or to some great interest. You cannot do it. I would like to see his great intellect employed in put- ting down in writing what he says should be done, that will suit the people. I have heard an old saying, which some of my friends may understand: " It is not so plain as the old hill of Houth, A man has got his belly full of meat, Because he talks with victuals in his mouth." I want to see something practical. I think it is a simple thing to do, and it is the only thing to be done — constitute a legislative body in New York on a basis that will command the confidence of the people; confer power upon the legislative body, but do not hamper them by legislation, and do not hamper the Legislature so much that they cannot interfere in case it is necessary they should interfere. I believe that the Legislature of this State is the sovereign power of this State, and it is an anomaly to say that you have to take away from the sovereign power the right to interfere in the various divis- ions of the State which it has, and always must control ultimately. I think the remedy a simple one. It is not necessary in its details to impose limitations upon the powers of the Legislature of the State. If the local legislature is properly constituted, it will have dignity, influence and power enough to prevent any intervention on the part of the Legislature with measures they ought not to interfere with. August 27.] CONSTITUTIONAL CONVENTION. 305 As to the separation of these two elections, the State election and the election of municipal officers, that is well enough, but it is not going to cure everything; it has been tried over and over again. There seems to be a very general sentiment upon this point, and 1 see no reason against it, particularly. In November let the State officers be elected, and let the municipal officers be elected in a sub- sequent November, if you will. But if that involves an election of Members of Assembly for two years, I can see no reason for con- senting to that. I am opposed to that. I am opposed to directing a separation of State and municipal elections which shall relegate Assemblymen to a two years' term. One more point, and I am done. That is this : We heard, in very eloquent terms, in the discussion of the judiciary article, the state- ment that it would not do for us to leave these halls with the stain of repudiation upon us. I would like to know how our friend, the President, gets along with cutting short the official terms of offices, which would not expire for a year or so after he would abolish them. There may be some judicial officers whose terms will be cut off by the section under discussion, before whom some of our friends may have their cases to plead. It may possibly be — I do not know that it is — but if it so happens, it would be rather unfortunate. I hope some means will be arrived at so that we may secure this separation of elections. I think it might be desirable to do it. I don't think- there would much come out of it, but there is no harm in trying it. But if we are going to have those two-years Assemblymen running into biennial sessions of the Legislature, we cannot consent to it, because we want an annual session of the Legislature. Some people propose to have a session of the Legislature only every two years, and there are a great many people who would like to have one every ten years; they could then get what they want from one Legislature, and would never want to have the Legislature in ses- sion again at all. You had better stick to your one-year term. Mr. J. Johnson — Mr. Chairman, the chairman of the Committee on Cities deems it a distinguished honor that he is again selected as the point of attack in discussing this great question of municipal reform. When it was first suggested that the Committee on Cities might do something that would reach down into the heart of the great cities and restore better government, at once the cry of the " cuckoo." here and in the press, was heard, and the word went out that the Committee on Cities was broken in pieces. It seemed as though there were a preconcerted sneer to the effect that some '' powerful mind " was attempting that which would disorganize the 20 306 REVISED RECORD. [Monday, Convention and ditch the entire business for which we are here assembled. Whenever we approach a point where something is to be done, then the word seems to pass around, " if you have sneers to shed prepare to shed them now." The sneers, mis-statements, misconstructions and misquotations have been going1 on from then until now. And, as I said before, I deem the fact they have been concentrated on me a very distinguished honor. When this debate opened, almost the first thing that happened (1 refer not to my genial friend from Chautauqua, with whom no one could quarrel, for sometimes we cannot believe him serious), a mem- ber of the Committee on Cities, who had been present at every phrasing of this amendment, arose here and stated that it was not drawn in the English language, and when asked, begged and entreated, so far as parliamentary usage would allow, to point out a word that was not right, he struggled out three phrases. The first sneer was, " boards and officers;" it went through the Conven- tion that that was bad English, and yet the same identical phrase went through this morning in a similar amendment, without objec- ton from him or from his literary confreres, and it is written in the records of the adopted work of this Convention. It came, I think, from those that understood the English language. Ah! they had sneers to shed and they shed them then. Then he took up the phrase, "city apparatus and force for preventing or extinguishing fires;" "what a phrase," and he shed a sneer. And the next day the gentleman who had shed the sneer in the amendment he intro- duced, adopted and presented this sentence which he had sneered at. Half a page of what should be records of reputable debate he spent in sneers over the words, " majority and minority." What did it mean, anarchists, labor, men, anything or everything? And the next day he put in a record of what he proposed to do, and he used the same identical language; and there was no sneer then; no cuckoo phrase went round that the English language was muti- lated. And, now, after this section (I speak advisedly, and the written record shows it) had been adopted by the entire Cities Com- mittee, Democrats and Republicans, and voted for by that entire committee — it was in the proposition of ex-Mayor Banks — after this section had been voted for, and after every one had said they wanted it, until they think the day has come when they will get it, now they come up, and they assault it in detail, and they assault it in principle. Sir, this minority shall not escape from this Convention without the mask torn off. They live in a city where the govern- ment is a political trust, and they are very small stockholders; they live in a city where the people have been robbed of government, and August 27.] CONSTITUTIONAL CONVENTION. 307 they cry, " home rule, home rule." Why did they not give it in 1892? Why did they not give it in 1893? They want it at all times save when there is a possibility that they will get it. They wanted this amendment, and their representatives voted for it until to-day, but now, when the conscience and the intelligence, and the probity of the Convention is, as I believe, about to pass this amendment, and to write a new line, a new and living line in the history of the State of New York, they come in and swear out an alibi. They are like the horse that I remember — a horse that used to run down at Graves- end — I have never been on that course — (laughter) but the story is, that that horse could win anything, but that he would never run at the time a race was set. Again and again the ducats were gathered in on the story of what that prodigious horse could do, until it became monotonous, and even the gulls of the racetrack learned that that horse was not good for anything. And so it is with our friends of the minority. They want city reform — except when they can get it. They want separate elections, save when they are going to have them. They want responsibility undivided, between the governors and the governed, save when the apparition is that they have got to take it, and to take it now, and the day is to thrust it upon them. And now, with grammar, and sneer, and assault, with misquotations, with amendments that crucify, with suggestions that destroy, they come in here and still give you the cry, " we want better government ; " but to-day that horse doesn't feel like running. He wants to prove an alibi. (Applause.) I think, Mr. Chairman, the situation is understood. The move- ment that here is started (whatever the Committee on Cities or any member may or may not do) has come to stay. It is fastened in the thought and mind and conscience of the people of the State of New York. It would have been timely if they had proved an alibi to-day, and had not thrown themselves with a most prodigious devotion in front of public sentiment and in front of the movement which is to prevail. I hope this Convention will not be distracted from the questions here. They are large, they are dignified, they are important; they are a part of the history of the State, they pertain to the dignity and honor of New York. Let us discuss them as men ; and if there are any brilliant flashes of silence, or any flashes that are not brilliant from the chairman of the Committee on Cities, I beg them to come to the front and tell us whether they do or do not intend, when home rule is on, to grant it, and whether they will or will not engage in the race of the day. Mr. Bowers — It is a very difficult thing for two delegates 3o8 REVISED RECORD. [Monday, approaching a proposition with an equal desire to maintain it and place it before the people of the State for their approval, to get into a very heated discussion over it. It will be recollected that on the floor of this Convention this morning an effort was made to have the consideration of this particular section of the present proposed con- stitutional amendment postponed until we could obtain the report from the Committee on Governors and State Officers, on which this absolutely is dependent; but that effort failed. It is an acknowl- edged fact in this Convention that no report has yet been made from that committee, and I do not believe they intend to make a report which they expect this Convention will adopt. The plan and propo- sition seems to me this morning to be to place on record section i of Mr. Johnson's article, and then attempt to force upon the minority of this Convention the responsibility for not getting home rule, when they presented a report from that committee which was known in advance that we could not accept. I want this done, I want this section taken in substance, and I want proper changes made in the State officers, so that we can accomplish all that the President of this Convention seeks. But 1 do not propose, and my associates did not propose, and do not propose, if it lays in their power to help it, to have it- said that when earnestly seeking to gain the separation of elections they should be put in the position, by unfair treatment by the majority, of not doing so. Those, sir, were the reasons which led me to favor the proposi- tion advanced by the gentleman from Kings, because in its mandatory terms, it compels the separation of elections, and noth- ing that this Convention could do afterwards could destroy it. I said, Mr. Chairman, that it was very difficult for two delegates, seeking to accomplish the same results, to get into a very warm dis- cussion. I had in mind at that moment the exceedingly kind remarks made by the President concerning the minority delegates from the city of New York. Indeed, his statement was true that we have never been politicians, and had no part in political life. The only advantage that we had over him is, that we are not seeking to-day to enter political life. We have not been seeking, and we seek not now, to take office of any kind. Our position is absolutely independent. We are not knocking at the door of any one particu- lar man who has for his gift not only the patronage of a great city, but the patronage of a great State; but we speak our own senti- ments, our own views, and are beholden to no man. There are in the city of New York something like eighteen hun- dred thousand people; something like eleven hundred thousand of these people support the Democratic party, and something like six August 27. J CONSTITUTIONAL CONVENTION. 309 f hundred and ninety thousand support the Republican party. There is a small remnant of about ten thousand who, for the most part, spend their time in foreign climes and who gain plaudits among themselves by speaking ill of their own city of New York, from which they draw their incomes on which they live. There are some ten thou- sand of such people, who are unable to appreciate that it is the best governed city on this continent, with the lowest tax rate, the best health department, the best fire department, the best depart- ments of every kind which contribute to the safety and comfort of its people; and they are always looking about to see what can be said against that city, and in time and out of time, always and every- where, they are speaking in criticism of the city to whch they owe their all, and yet, Mr. Chairman and gentlemen, notwithstanding that class of men who are always speaking ill of the city and leaving the public at large to believe that it is not a well-governed city, the minority delegates to this Convention are perfectly ready, and, indeed, exceedingly anxious and striving to the utmost, to get some of the very things that the President of the Convention has indicated that we were, not seeking. Why has this sudden outbreak come to-day? Why has this sharp criticism been made upon the course of the minority delegates upon this question at this particular time? Have we not, from the very outset, been endeavoring to the best of our ability to assist this Convention in the great work it is seeking to accomplish? Have we not striven to elevate its dignity, and to increase the position and standing of its President in order that he might go with some assurance before the public and make a claim for once in his life upon a party for party honors? What has hap- pened? Was it the declaration made on Friday night by a single delegate to this Convention that the days of fairness have passed? Was it that an apportionment bill is coming in to-night? Was this the prelude to introduce a notice that we are no longer to be able to pass upon questions simply as to the right and wrongs of such questions? Has the President of this Convention found it necessary to change his entire attitude? And has the time arrived in which he feels that it is best for the interest of the majority delegates that there should be a change in every aspect? 1 trust not, Mr. Chair- man. And for my own part, I say now that to the end I shall pur- sue the same course I have in the past, and shall endeavor simply to obtain the best possible legislation in this body, to the end that the people of the State may adopt it and have the benefit of it, if it is well that it should be adopted. No sharp attacks upon our city, no sharp reference to the honorable course the minority delegates are striv- ing to pursue, shall change those views one iota. We stand now 3io REVISED RECORD. [Monday, for separate elections; we have no doubt we will only get them by our own earnest appeal and contest for them, and we have simply been driven by the improper withholding of a report to be compelled to ask this Convention to say that in place of section i, there shall be a provision that separate elections shall be ordered by the Legis- lature. In two provisions, at least, of the cities article the Legisla- ture are directed to do important things upon which its fulfillment depends. The judiciary article is full of directions to the Legisla- ture. Most of the constitutional amendments that have passed this body are directory to the Legislature. It was no extraordinary thing that the gentleman from Kings made his amendment this morning. It has been misunderstood and unfairly treated by our President; but I hope that the good sense of the delegates of this Convention will stand by the suggestions which have been made by the gentleman from Kings, and when we fix and change the terms of the State officers it will be time enough to pass upon the language which is contained in the section with reference to the city of New York. Mr. Powell — Mr. Chairman, I beg leave to suggest to the Con- vention that it might be well for us to come back for a moment or two to the matters which are before it. We have listened patiently to this wail of a down-trodden minority. We have heard the tale of their woes and of their sufferings, and we have witnessed the falling of their tears. We have heard their piteous cries. Gentlemen, in the name of all that is good, of all that is tender, of all that is sympathetic, of all that is holy, of all that is pure, let us take our feet off of this down-trodden minority, and let them get up out of the mud and dirt, and walk around like ordinary mor- tals once again. I feel sorry for the minority. I do, indeed, feel sorry for them. They have been so terribly abused, they have been so grossly maltreated, they have been so ignored, that I pity them profoundly from the bottom of my heart. But I certainly have been amused at the rapidity with which the minority right over here has passed from criticism of the language of the chairman of the Cities Committee to a wail of sorrow and to a death cry of unspeakable agony; and I have wondered what has transpired between the criti- cism of the Anglo-Saxon of the chairman of the Cities Committee only a moment ago, and this death-bed cry which has just gone out from my immediate presence. Let us admit that the minority are all right; let us give them a clean bill of health, and not hear their cries and wails of agony any longer; let us give them a certificate of good standing before this Convention ; let us admit that they are all jolly good fellows, and that they mean to do pretty nearly what is August 27.] CONSTITUTIONAL CONVENTION. 311 right — that is, as near as they can, considering the city from which many of them come; and then, gentlemen, let us, if we deem it neces- sary, go further than that, let us admit that in the great city of New York they have the most perfect, the most ideal, the purest, the high- est type of municipal management that can be found in the world. And while we do that, let us regret that the gentleman from New York, Mr. Bowers, in pointing out the excellencies of the great city of New York, its excellent features of government, and the excel- lence of its departments, forgot to mention the police department of that great city. I do not know why he left that out. (Laughter.) " Non-partisan," somebody says. Perhaps it is non-partisan. The facility with which our friends on the other side cry out " partisan " and " non-partisan," the facility with which they criticise or utter wails of agony, the facility with which they pronounce one thing- proper for the Constitution and another thing proper for the Legis- lature, are so startling that we can scarcely keep track of them. Now, Mr. Chairman and gentlemen, the question before us is not as to the treatment of the minority; it is not just at this moment the condition or status of the government of the city of New York, but the question is whether or not we had better adopt the amendment of Mr. Jenks instead of the proposition of the committee. Let us look at that for a moment. We have tried spring elections, in order to separate our local and municipal elections from those of State and nation. The scheme has proved a failure. We have tried con- ducting our municipal and local elections at the same time as our State and national elections, and we are not satisfied with that. What, then, shall we do? There is only one other method that can be adopted, and that is the method which is suggested by the Committee on Cities, namely, the alternating method — one year our spring election, and then the national election or the State elec- tion, and the next year our municipal election. The virtue of the amendment proposed by the committee is that it makes either one of the old methods that have proved unsatisfactory impossible in the future. Under it we cannot go back to the old spring election scheme; under it we cannot go back to the dual election scheme; but we are held down to the one method which we have not yet tried, but which we believe will be for the advantage of the cities of our State. The fallacy of the amendment proposed by my friend from Kings is simply this (and I do not for a moment criticise his intentions; I know him too well; I know the manly honor which has ever characterized his life, and I believe that when he introduced this amendment he introduced it for what he believed to be the advantage of our city; but T think, sir, that he made a mistake, that 312 REVISED RECORD. [Monday, was all) — I say that the trouble with his proposed amendment is this: that the Legislature may do almost any number of things, and it may go back to the old scheme of spring municipal elections, or they may hold their municipal elections one week or one month before the State election, or one week or one month afterwards; and so that amendment would place it within the power of the Legislature to nullify the intention of the Convention. But the amendment as proposed by the Committee on Cities so fixes and establishes the law that no Legislature can subvert the intention of this Convention. One other suggestion that has been made as to the superiority of the amendment proposed by the gentleman from Kings, is that it has more Anglo-Saxon words than has the amendment pro- posed by the Committee on Cities. I would like to ask my friend if he has gone over this proposed amendment offered by the Com- mittee on Cities, this first section, and, if so, if he can tell me just how many words there are in it of Anglo-Saxon origin. I have examined it carefully, and I find that almost every word in this section as proposed by the Committee on Cities is a word of Anglo-Saxon origin. While I have not had before me the amend- ment proposed by the gentleman from Kings, so that I could subject it to a like critical examination, I do not believe that the percentage of Anglo-Saxon words in his amendment is as large as that contained in the amendment proposed by the Committee on Cities. Somehow it has seemed to be the right thing lately in this Con- vention whenever we have talked about cities, to throw out some fling at Johnson's dictionary. There were some gentlemen who, just as soon as they received this proposed amendment, took down their Worcester's and their Webster's, and their Century diction- aries, and they made a close comparison of their dictionaries on this proposed amendment, and they said that Johnson's dictionary was not right. Gentlemen of the Convention, I come from the same city as the chairman of this committee, and I want to tell you that whatever you may think of his dictionary here, the people who live in that great city hold it in highest regard. There are certain noble words which have been nobly defined in that dictionary. Such words as " honor," " integrity," l< civic usefulness," have been defined there by the deeds of a lifetime, for the author of that dic- tionary by his life has written these and kindred words upon the hearts and minds of his fellow-citizens in characters as luminous as those which Divine Power flashed upon the walls of Belshazzar's palace. (Applause.) Now, is it not time to August 27.] CONSTITUTIONAL CONVENTION. 313 stop this nonsense? Is it not time even for the joint minority who seem to be constrained so far as their ideas are concerned, is it not time for them, driven at last to the piteous wails of the oppressed few, is it not time for them to cease this absolute, complete and insane nonsense of looking over this article and every once in a while rinding an uncrossed t or an undotted i and then throwing out some fling or mean sneer at the chairman of this committee? I do not suppose, sir, that the Cities Com- mittee endeavor to write odes that would compare with those of Horace, or that they have looked upon themselves as writing arti- cles for the Spectator in Addisonian style, but they have grappled with the question of municipal government, and they did it boldly, they did it faithfully, and, if there may have been slight errors of language here and there, it is the duty of this committee to cor- rect it; but I notice that the gentlemen of the minority seem to be confined exclusively to the picking out of petty flaws. And, as the chairman of the committee said not long ago, when brought face to face with the possibility of voting for this proposition, they take a makeshift which may mean black or may mean white, just as the Legislature happens to turn it, and they want to take that instead of straightforward and honest doctrine. Gentlemen, I appeal to those of you who come from what are known as the country districts, and independently of what the minority may think or may not think, I say to you that the Repub- licans of Brooklyn and the Republicans of New York, and I believe the Republicans of every great city in the State, want section i of this article, but they want it exactly as it is written here; and we ask you to give it to them whether the minority may like it or not. We will take it. We will stand by it. And we will come back to you in the future with purer cities and with better municipal governments. Give it to us in the interest of what is right, of what is pure, and of what is true. (Applause.) Mr. Mulqueen — Mr. Chairman, it has been suggested to me by some friends, whose advice I usually take, that I should not enter into the discussion on this question, and for reasons obvious to every member of this Convention; but T am here as a delegate to this Convention, representing, in part, proudly, the organization known as Tammany Hall. I am here as a Democrat, and I am going to exercise my privilege, even though some of my friends think it would be more decent not to say anything upon the subject. Xow. Mr. Chairman, it is well for us at the start to consider what is the question now before the House. Members on both sides of the chamber believe that we should have separate elections, and the 314 REVISED RECORD. [Monday, only question of difference on one side of the chamber and the other is as to how we are to arrange the terms of offices so that we shall have separate elections. Now, I am one of those who believe that this outbreak to-day is a part of a scheme. You can see it all over the House that the Republicans are to be rallied together for the pur- pose of holding them together to pass the apportionment bill. I cannot believe that a gentleman of the ability of the President in discussing a question whether we should leave to the Legislature the change of officers or whether we should do it in the Constitu- tion, would go out of his way to attack the great city which is his home by adoption. Now, we of New York city are proud of that city. What is its present condition to-day? It may be popular here to decry that, but let me call the attention of this commit- tee to just the position of the government of that city to-day. No man in this Convention dares to stand and cast a single word or slur against the judiciary of our city. Every man on the bench was nominated and elected by the dominant organization of the city of New York. There is not one word to be said against it. What man will rise here and say that the equal of our fire department can be found in any city in the world? The fact remains and it is true that the insurance rates in the city of New York are lower than in any other city in the world because of the efficiency of our fire department. Now, the gentleman from Kings (Mr. Powell), has said that the gentleman from New York (Mr. Bowers) did not refer to the police department of our city. He did the other day in his speech, and at present that department seems under a cloud because it has not been able to eradicate what has not been eradi- cated in any city in the world. Mayor Hewitt, against whom none will dare say a word, said that he knew during his administration that that evil existed, and that he could not stop it. Outside of that they cannot attack an official of the city of New York that has profited a single dollar by that great abuse. Nay, more, in the city of New York to-day the authorities have declared that every man who has been guilty of any wrong in that connection shall be pun- ished and put out of the police department and the trials are being pressed every day with great speed. But aside from that question what man will deny that our police department in the city of New York is worthy of praise? You hear of no highway robberies in the city of New York, you hear of no bank burglaries, except from the men who refuse to vote on election day and who some- times handle the funds. Women to-day in the city of New York can pass through it without fear of insult. Men at night go to bed with safety and with a feeling of security, that their property, their August 27.] CONSTITUTIONAL CONVENTION. 315 homes and their lives are in perfect security. I remember last winter, when there were thousands of people out of employment in the city of New York, I rode through Central Park on a very dark night with perfect security, and I could not help but say what a magnificent police force we must have, when at a time when there are thousands of men out of employment, that men and women can pass through our city with perfect security and perfect safety. I want the gentleman who is so fond of traducing the city that he owes so much to, to point to me or to the people of the State a better system of education than we have in the city of New York. I want the gentleman to point to me anywhere in the State of New York or in any other State a better system of supplying water to the citizens of the city. I want the gentleman to point to me any city in the Union that is better paved than the city of New York. 1 want him to tell me where in any city in the world the health rate is as good as it is in the city of New York. The percentage for the last six months is lower than any other city in the world. It is all very well, Mr. Chairman, for the purpose of uniting the Republican majority in this House, for the purpose of slandering his own city, to indulge in glittering generalities. But why does he not bring forth facts? He says that in the city of New York two men are employed to do the work of one. I say it is absolutely untrue, and I call upon the gentleman to name one single case of it and he cannot do it. He says that fifteen millions ought to be sufficient to govern the great city of New York, and yet he and all of his party have been unable to show, although they have tried over and over again, where a single dollar can be saved in the administration of that city. The present expenses of that city are forty millions a year, and if they could show that twenty-five millions were wasted, they would have a much easier time running next fall than they hope to have. As I say, Mr. Chairman, it is easy to throw mud at the city of New York, but when you come down to facts even he with all of his great ability is unable to find any. Look at its tax rate to-day. The tax rate to-day is the lowest in thirty years. Gentle- men try to sneer at that and say that that is brought about by increased valuations. Why, Mr. Chairman, the property in the city of New York is 'always on the increase. Valuations, as all candid men will admit, are continually increasing, and it is only right and proper that if property increases in valuation that the people should get the benefit of it. In what city of the State tell me does property remain at the same valuation on the tax list? Not a single case of it. We say that in that city the tax rate to-day is lower than it has been in thirty years, and we are willing to go before the people upon that 316 REVISED RECORD. [Monday, record. The gentleman seems to sneer at people who vote to-day. It is not new to him. He is constantly sneering at the people of that great city. Not long ago the same gentleman said in a public speech that he was tired of having this city run by a foreign gang. The point is that he has no trust or confidence in the real live people of the city of New York. I deny that the body of the people of our city are lacking in virtue, intelligence or patriotism. It is true the gentlemen with whom he associates may be better educated, may have more money, may have more of the luxuries of life, but the plain, honest people of the city of my birth possess just as much honor, just as much intelligence, just as much patriot- ism as do his associates. Now, while we say we are in favor of separate elections, it is not because we fear that the people will not vote. I say it is a base slander, even upon the people whom he represents, for he does not represent the majority of the people in that city, although he does in this House, to say that even those men of high intelligence and lofty patriotism and great ability will not vote unless you have a separate election. Now, that is not true. The men of the city of New York to-day are big enough at every election to grasp the questions that come before them at each election, and it is a slander to say that a man of intelligence will become all mixed up on muni- cipal matters if you have an election for State and national officers. It is absolutely untrue and the men are able to grasp them and do, sir; the minority of this House, recognizing that there is a sentiment for separate elections, stand in favor of it, and stand committed to home rule. But, Mr. Chairman, the majority of this House cannot escape its responsibility to the people of this State by refusing to give them home rule, by slandering one of the great cities of this State. Now, what is the condition to-day in the city of New York? To say that the men in authority in the city of New York to-day were selected by men lacking in patriotism or in honor or intelli- gence is to say the greatest majority ever given to a candidate in that city was given by men who are lacking in all those qualities. The present administration was put into office by seventy-five thou- sand majority. The gentleman himself has publicly stated that no fault could be found with that administration of the city, and he knows that is a fact; and, therefore, I say it is not for the purpose of speaking to this amendment that he made his speech to-day, but for the purpose of making this body partisan, which up to the present time it has refrained from being. Perhaps the gentleman did not include me in the list from the city of New York that he paid so much praise to, but if he did, I wish to disclaim it. I want no August 27.] CONSTITUTIONAL CONVENTION. praise from him or any other man that carries with it in the same sentence a disgraceful allusion to the city of my birth. Now, in conclusion, Mr. Chairman, I want to say that we who have favored this separation of State and national elections believe that the proper way to do is to state the principle in the Constitution and then leave the details to the Legislature. The gentleman seems even to fear the Legislature. He thinks they are dishonest, and that the men from the city of New York may come up here and get them to do dishonest work, notwithstanding the fact that they are so anxious about carrying this Constitution into effect that to-day they had a gentleman here from New York to help them frame it, and the other night they had Mr. John C. Reid, the per- sonal representative of the central committee, helping them to frame the apportionment measure that they hope to carry this fall. And yet they say in advance to the people of the State of New York, when we have carried it they will be so dishonest that we cannot trust them to regulate this plain mandate of our Constitu- tion. Mr. Chairman, I sympathize with the gentleman who fears one-man power so much. The gentleman has read the lines, the writing on the wall, which says the gentleman who arrived from Europe yesterday shall be the candidate of his party this year for Governor. I do not blame him for feeling bitter, and having a very bitter hatred toward one-man power. But, concluding as I began, Mr. Chairman, I hope the minds of the delegates of this Convention will not be carried away on these party issues; that they will leave those issues to the stump, where they properly belong, and will keep themselves in the proper frame of mind to discuss this very important question of home rule for cities. Mr. McClure — Mr. Chairman, if anything would induce me to favor the amendment of Mr. Jenks, it is the scene that has passed before the spectators of the doings — I will not call them delibera- tions, I will not even dignify them as debates — of this Convention this afternoon. It seems that we have resolved ourselves into a sort of a legislature. Readers of the papers throughout the press to-morrow will find the familiar cry about the city of New York, its corruption, dishonesty, and the need to reform it at the hands of the Republican body. Mr. Chairman. I deprecate exceedingly the con- dition of mind and thought and expression to which this Con- vention finds itself driven. I am more sorry than I can tell, that upon whomever the responsibility may rest, there has been thrown into this Convention for the first time the suggestion of majority and minority, and attacks have been made upon one party and the other; for I think the mistake is greater than will be repaired by this 318 REVISED RECORD. [Monday, Convention to the end of its sitting. There is a simple question before this body. It is not worth discussing the merits of any city in deciding upon it. It is not necessary that it shall be determined that New York is any worse than Brooklyn, or that Brooklyn is any better than Buffalo. I cannot understand why the discussion should go on, limited as it has been to the city of New York. I supposed that this question affects all the cities of the State. Now, what is the question? Not whether the great city of New York, which, as is shown by a table which I have before me at this moment for another purpose, contributed during the last year two millions of the three millions of collateral inheritance and direct tax paid into the coffers of the State, shall have some- thing done to it, but whether there shall be an amendment to the Constitution. What is the amendment suggested by Mr. Jenks? One, similar to many contained in the amendments proposed in this body, namely, that there shall be a separation of elections in cities, and that the Legislature shall provide the methods. Why can we not discuss that without going into the relative merits of political parties, and the relative merits of majority and minority on this floor. As one of the minority, I want to say that the minor- ity have taken care of themselves with dignity, and so far as my influence goes, they will take care of themselves with dignity to the end. I do not come here representing any particular party or any particular hall. I come here as a representative of my dis- trict and of the people of the city of New York. I want to see to it that, so far as the cities are concerned, they shall have as fair treament as the country districts. I do not like the appeal to coun- try delegates made to them as Republicans, to come in and support a measure because it is proposed by a Republican majority of the committee. I assert, Mr. Chairman, that it is not dignified action on the part of this body to support an amendment to the Consti- tution because it is proposed by a majority of the committee being Republican, and the Republicans are therefore to support it. Now, I have only this suggestion to make. It is very possible that we may find that the amendment proposed in detail, which is legis- lative action by the committee, may not work, and if does not work successfully, it cannot be altered except by another Convention, or by a special amendment of the Constitution. I am perfectly satis- fied, and I am only repeating what I have said here many times, I do not care whether the Legislature is Republican or Democratic, I am willing to trust the Legislature, and if we cannot trust our Legislature, then we are idling away our time in making a Con- stitution. I believe Mr. Jenks's amendment to be the best one. August 27.] CONSTITUTIONAL CONVENTION. Not because it is proposed by a Democrat, not because I consider for a moment he wants to defeat the idea and the proposition of home rule and separate elections, but because it is the simplest, and the Legislature would be compelled to act upon it, and if it is found that their action is not for the best interests of the people, that action can be reversed at the next election. I hope, Mr. Chairman, we will not have any more discussion about politics in this body. I understand that there are a great many amendments to be passed upon, and I hope Mr. Jenks's amendment, being the simplest and best, and for that reason only, will prevail. Mr. Hotchkiss — Mr. Chairman, I offer this as a substitute for Mr. Jenks's amendment. The Secretary read Mr. Hotchkiss's amendment as follows: " Elections of city officers and of judges and justices of inferior local courts in all cities, and. of county officers in all counties con- taining a city and of supervisors elected in a city, except to fill vacancies, shall be on the Tuesday succeeding the first Monday in November in an odd-numbered year. The Legislature shall, at its first session after the adoption of this article, provide by law for carrying into execution the foregoing provision and in so doing shall extend or abridge the terms of such officers then in office so far as may be necessary for that purpose." Mr. Hotchkiss — Mr. Chairman, not only do I deprecate the fact that politics have been flung into this debate, and quite unneces- sarily, but I also deprecate the fact that the chairman of the Cities Committee, for whom I have the highest respect, should have lost the good nature and bonhomie, which have characterized him dur- ing the sittings of this Convention and during the sittings of the committee of which he is chairman; and that in losing his temper he should also have lost sight of what he would not deny to be facts touching my relations to the drafting of the original article pro- posed by his committee. I do not believe that he would inten- tionally say anything that would either harm me in the estimation of this body or hurt my feelings, but he certainly has been griev- ously in error in the statement that he has made touching the part which I took in aiding to frame the article as reported. Mr. J. Johnson — May I ask the gentleman a question? Mr. Hotchkiss — Not now, sir. Difficulties without number were suggested to the article when it was reported to this Convention, and the gentleman in his attempt to overcome them now. reminds me of Lowell's schoolmistress and the trouble she had with the hard words — 320 REVISED RECORD. [Monday, " If any tyro found a word too tough. And looked at her, pride furnished skill enough. She nerved her larynx to the desperate things, And cleared the five-barred syllable at a spring." That, Mr. Chairman, seems to be the way in which the chairman of the Cities Committee hopes to clear the manifest difficulties which have been suggested to his measure. Now, addressing myself to the substitute which I have offered. I wish to call the attention of the Convention to the fact that it eliminates what I conceive to be the main objection offered by the majority to the amendment sug- gested by Mr. Jenks, and that is that it is left to the Legislature to fix the time when the elections in cities shall 'be held. It has been suggested that instead of fixing them all in the fall, where the majority would apparently have them held, they might fix them in the spring, which would interfere materially with the affairs in many of the smaller cities, and, therefore, in preparing this amend- ment, I have been careful to retain the period in the section fixing November as the time for holding these elections. But there is an amendment as it conies here from the Cities Com- mittee which, to my mind, is fatal to it, and an objection which has not been referred to by any gentleman yet, so far as I have heard. If that section is adopted as it is drawn, it extends the time of the successor of the present incumbent of the mayoralty office in the city of New York to three years. So that when we get to the polls next fall to vote upon the adoption of this Constitution, although we are voting for a candidate for an office, which has the distribution in his hands of between thirty-five and thirty-six mil- lion dollars during the current year, we shall not know whether we are voting for a two-years' or a three-years' term. Now, to my mind, that is improper. To my mind, it will be found an impro- priety to every one who looks at the question candidly; and I believe that unless that is eliminated from this section, it will go further to convince the people of this State that there is politics in this attempted separation than anything else that this majority might do. President Choate here took the chair. The President — Mr. Hotchkiss will be good enough to continue his remarks at eight o'clock, to which time this Convention takes recess August 27.] CONSTITUTIONAL CONVENTION. 321 EVENING SESSION. Monday Evening, August 27, 1894. The Constitutional Convention of the State of New York met in the Assembly Chamber, in the Capitol, at Albany, August 27, 1894, at 8 P. M. President Choate called the Convention to order. Mr. Lester — Mr. President, Mr. Moore was granted an excuse this morning. The business which he intended to accomplish this morning was postponed until this evening. He was present in the Convention this morning, and desired me to ask that the Conven- tion should transfer his excuse from the morning session to the evening session. I, therefore, move that Mr. Moore be excused for this evening session. The President put the question on the request that Mr. Moore be excused from attendance, and he was so excused. Mr. Cornwell — Mr. President, I have received a telegram which requires my attention immediately upon business, and I respect- fully ask to be excused for to-morrow and next day. The President put the question on Mr. Cornwell's request to be excused from attendance, and he was so excused. Mr. Veeder — Mr. President, I am requested to ask that Mr. Wil- liams, of New York, be excused from to-day's sessions. The President put the question on the request that Mr. Williams be excused from attendance, and he was so excused. Mr. Mantanye — Mr. President, I have just received information from home that makes it necessary for me to be there on Wednes- day and Thursday of this week, and I ask to be excused. The President put the question on Mr. Mantanye's request to be excused from attendance, and he was so excused. The President — The Committee on Legislative Organization was to report to-night. Is any member of the Committee on Leg- islative Organization and Apportionment present? Mr. Dickey — Mr. President, I am a member of that committee. The President — The Chair understood that there was a report from that committee expected? Mr. Dickey — We expect so, Mr. President, when the chairman comes in. 21 322 REVISED RECORD. [Monday, Mr. E. R. Brown — Mr. President, the report is prepared and is ready to present this evening. The President — Then in order that the promise to the Com- mittee on Legislative Organization and Apportionment be made good, and that they may make their report this evening, we will now go into Committee of the Whole and the committee will rise at ten minutes before ten. Mr. Johnson will please take the chair. The House resolved itself into Committee of the Whole and Mr. I. S. Johnson took the chair. Mr. Hotchkiss — Mr. Chairman, I was calling the attention of the committee, when we took a recess, to what I conceive to be a very important matter relating to this proposed first article, first sec- tion; that in its form as it now appears, it extends the time of the successor to be elected to the office of mayor to succeed the present incumbent in the city of New York; extends his term to three years. So that when we go to the polls in New York this fall to vote for our mayor, we vote for our Constitution at the same time, not knowing whether the Constitution will be adopted; we necessarily do not know whether the term' of the mayor for whom we vote will be two years or three years, a very serious objection, to my mind. If there is to be any doubt of that character in a city of the size of New York relating to an officer so important as that of the mayor of that city, it should be left upon the line of a lesser term of office rather than a greater. Therefore, if we are to perform the functions of the Legislature in this amendment, if we are to fix the terms of office, let us rather fix them in the smaller term than in the larger, in this individual case, where these peculiar circum- stances arise. Mr. Chairman, I shall not take advantage of any future oppor- tunity to address myself to the subsequent sections of this bill, and I think that I can economize time to say all that I wish to say at this time. It is only now about three weeks since the Committee on Cities reported its proposed measure for the government of cities. When it came into this Convention it was opposed, criti- cised and condemned by the minority, and aside from the chairman of the committee and one other person, there was, so far as my memory serves me, not one single voice raised in its defense. If there were others than the two gentlemen I have referred to who saw merit in this measure, they were certainly silent in its praise. I do not think that in the history of deliberative bodies a measure covering so important a subject, and coming from so distinguished a source, was ever received with such contemptuous indifference August 27.] CONSTITUTIONAL CONVENTION. 323 on the part of those in political accord with its author as was this measure. The chairman of the Cities Committee has accused me and others of sneering at his article, and from what he said it might be inferred that he thought that I had sneered at him. Such, surely, was the farthest from my intention. I declared myself in unqualified terms in opposition to his article. I have heretofore expressed, and, if necessary, I repeat now my confidence in the gentleman's amiability upon almost every occasion and my high regard for his ability. Of the industry which he has displayed in attempting to frame an article for his committee, every one on that committee is a witness. But the article brought in from the committee, and receiving the indorsement of the majority of that committee, received then, as the second article will receive now, the heartiest condemnation so far as it lies in my power to give it. In the observations which I submitted on the first article, I took occasion to say that, in my judgment, it violated the primal princi- ple of what a constitutional article upon that subject should be. Now, we cannot differ as to what the Constitution should contain. The primary purpose of a Constitution is to create and define a government; its next is to secure personal and political rights, and establish a few of the great and fundamental principles of govern- ment. To these may be added certain restrictions upon the admin- istrative forces of government, the legislative, the executive, and the judicial. But such restrictions ought to extend no further than to those administrative agencies, that is, they must have behind the principle the body politic. This Convention, for better security of the people, may tell future Legislatures how they must work, not what they must do. Those are principles from which I fancy there will be no dissent ; and it is those principles which the measure as reported violated, and I believe the measure now reported vio- lates. It was certainly my understanding of the majority in this Convention, that when this article was referred back to the com- mittee, it was referred back only that it might be amended and corrected, but it comes back with its chief evils still full upon it. There has been a re-arrangement of its sections, the provisions in respect to a State election board have been eliminated, but, with that section, the article remains substantially as it was. My first objection to the article lies in the fact that it attempts in the Constitution to classify the cities of the State. I believe that is legislative and inexpedient, and I believe that the history of the gentleman's action with regard to his report proves what I say to be true. In his report there was a division of cities, I do not remember exactlv what classes, but there was a division of cities 324 REVISED RECORD. [Monday, into three classes, within a certain amount of population to each classs. During the debate it was suggested that there should be a re-arrangement as to population. There was no reason given during the debate why the population should be re-arranged in the classes, and without reason, so far as I know, the majority of the Cities Committee has taken this article back, and has reported it again to this Convention changing simply the population into which the cities are divided, into classes. They must have found some reason for it, but the whole thing is experimental, the classification of cities; and how are we to know that three weeks after this Con- vention is adjourned, or a month after this Constitution may have been adopted, it may not be discovered that the classification which the majority have now incorporated into their bill is an improper and an inexpedient one. But it will then be altogether too late to correct the error. We have attempted to tie the hands of the people. We have attempted to do that which the Legislature, and it alone, ought to be permitted to do, for the Legislature can cor- rect its error if it discovers that it has made an error, whereas we cannot. In the measure which I submitted as a substitute upon the former occasion, and the authorship of which I did not claim, as the chairman of the Cities Committee suggests, but which I ascribed to its true source, namely, the Committee of Twenty-one, the committee from the Good Government Club, and the com- mittee of the Republican Club of the city of New York, that meas- ure escaped the objection which I made to this, by providing simply the principle that cities should be classified and that the Legislature should arrange the classification as to them might see fit. That is an objection which is radical, and which goes to the basis of this proposed measure, and which cannot be corrected unless you aban- don all of the proposition of attempting to legislate here in this bill for the people tying the hands of a subsequent majority which may sit in this Capitol; for the purpose of enacting laws for the people of this State, the majority upon this floor is to-day tying the hands of all future majorities for twenty years to come. No argu- ment will ever convince me that that kind of work is expedient for this Convention to perform. Another and basic objection which I make to this article lies in the fact that it conveys or grants to the city no real and substantial home rule. What is home rule? What do we mean by it? If it means anything, it means granting to a municipal legislature which is to be erected in the various municipalities the power to legislate with respect to its municipal affairs, and then leaving it to work out its own salvation. That is home rule, but this measure August 27.] CONSTITUTIONAL CONVENTION. 325 does not propose anything of the sort. This measure simply ties the hands of the Legislature and throws obstructions into the path of the people in the future with respect to the subjects which are denned in this measure. It says not to the people of the city of New York: you may legislate for yourselves in respect to those matters which concern the administration of your city. It does not say that. It says simply that the Legislature of the State shall not hereafter pass any law affecting those subjects within any city or any class of cities, unless it be by a vote of three-fifths majority in such Legislature. That is not home rule. That is not what the people of New York come to this Convention seeking for and expecting to get. To my judgment, it will simply work out a con- tinuance upon perhaps a greater scale of evil of the same practices, the same difficulties, which have beset us in the past. It will make the obtaining of a three-fifths vote a little more difficult, a little more expensive, perhaps for those who wish to effect jobbery but it will by no means prevent it. These are by no means all of the objections which I have to this measure, but they are objections which go to the root and founda- tion of the measure, and which are sufficient, to my mind, to induce me to believe that this Convention will not have granted to the cities of the State what they need if they adopt what is here provided for them. I wish, however, to be understood as admitting this much, that if the scheme outlined in this measure does not effect the result which I fear and anticipate, namely, that it will make job- bery a little more difficult and a little more expensive but will not prevent it, if it does not work out that result, then possibly by tying the hands of the Legislature in respect to measures which the cities may object to, it will work some little degree of good. But it will not bring the measure of benefit and advantage which might be accomplished by this Convention for these cities crying out for relief, that could be accomplished if individual feuds would only be subordinated, and the true principles which should guide Constitu- tion makers and those who seek home rule for cities, were to prevail. Mr. Veddcr — Mr. Chairman, I am very glad that the gentleman who last occupied the floor (Mr. Hotchkiss) has endeavored to get out of the Midway Plaisance of debate as exhibited here this after- noon with its oriental pomp and splendor, its wild, weird music, its strange sights and sounds, away from the sullen, fierce roar of the tiger's own city, and the triumphant scream of the eagle which is supposed to own States, back into the transportation building where we can make some progress. I wish to ask the gentleman, the chairman of the Committee on Cities, whether this scheme includes 326 REVISED RECORD. [Monday, the necessity of electing Members of the Assembly for two years — I mean the first section. Mr. J. Johnson — This section, as is known and understood, treats not at all upon that subject. That is a subject which I do not understand is touched or affected at all by this section. I appre- hend that when it comes up it will be considered on its merits. Mr. Vedder — Then I understand, Mr. Chairman, that if this section should pass substantially as it is, it would not necessarily follow to make it harmonious or to give it effectiveness that we should pass a resolution or an amendment that Members of the Assembly should hold office for and be elected every two years. Mr. J. Johnson — That would be for the judgment of the committee. Mr. Vedder — Mr. Chairman, there seems to be in this proposed amendment reported by the Cities Committee seven distinct propo- sitions, neither of which is dependent upon any other; each one of these seven different propositions could exist without the other. There might be some of these seven that the Convention would object to very seriously and that the people might object to more seriously when they come to vote upon it. I think the suggestion made by our distinguished President this morning is full of wisdom, as I understand it, and that is, that some means should be taken so that at least this first section should stand before the Convention as an independent proposition. I think that a way can be found by which that can be done. I think that if the committee will think of it for a moment, we might in our report to the Convention on this proposition make a motion to strike out the first section, and in the same motion that the section be referred to the Committee on Cities, with instructions to report it as a proposed amendment. I think that could be done, and I would suggest to the friends of this measure whether or not that is not altogether the better way to pro- ceed. Let us have one thing at a time, and let us have the first proposition first, as an independent proposition, standing or falling upon its own merits. I think that method could be adopted, and a proposition reported at once. If that should be agreeable to the chairman of the Committee on Cities, the father of this measure, I would make a motion, at his suggestion, to effect that purpose. Mr. Maybee — Mr. Chairman, I exceedingly regret that any partisan feeling has been injected into this discussion, but I am glad that the first firebrand of partisanship that has been thrown into the arena of this debate has proceeded from the camp of the Republican majority. When this Convention assembled, upon the August 27.] CONSTITUTIONAL CONVENTION. 337 eighth day of May, the excellent inaugural address of our distin- guished President, for whom many Democrats voted, was full of beautiful sentiments, breathing the spirit of patriotism and non- partisanship. But the vigor of the war has not come up to the sounding phrase of the manifesto. Immediately afterwards, when the large Democratic minority of this Convention asked the privi- lege of nominating to one of the vice-presidencies the distinguished ex-minister to France, the scholar and the publicist, whose name is known the world over, and who always rises above the plane of mere partisanship to the higher plane of patriotism and love of country, that boon was denied to the minority. And ever since, the only members of this Convention from whom non-partisanship has even been expected have been the Democratic members. Now, Mr. President, the Democratic members have manifested a spirit of non-partisanship during the entire time that this Convention has been in session. With two or three exceptions, so far as my observation goes, all the members of the Democratic party have endeavored to sink partisanship, and have endeavored to study the good of the people in carrying out the work of this Convention. And when the history of this Convention comes to be written, its brightest page will be that which records the non- partisan spirit, the unselfishness, the patriotism of the minority. I, Mr. President, individually, have absolutely sunk my party affilia- tions. I voted to seat the Republican contestants from the city of Buffalo, and so did many other Democrats. I voted to seat the Republican contestants in the county of Kings, and so with three exceptions did all the Democratic members of this body. I have voted with the Republican leaders of this Convention upon all the vital measures that they have presented for our consideration. But when partisanship is injected here, when under stress of party necessity, under the party whip and spur, party measures are endeavored to be carried out as a part of the work of this Con- vention, we come to the parting of the ways ; and for my part, and I speak for myself alone, my support is not to be gained for any of the measures that the Republican majority undertake to put before the people as a part of the work of this Convention, by wanton and unjust attacks upon the great party to which I am proud to belong, or by unjust personal attacks upon its representatives upon this floor. Something has been said, Mr. Chairman, about the hand- writing upon the wall in which appeared the doom of Belshazzar and his bacchanalian lords. The real handwriting upon the wall is that which will write the doom of the work of this Convention if partisanship is to control here. Tf a gerrymander of the senatorial 328 REVISED RECORD. [Monday, districts of this State is to be put through this Convention under party whip and spur, if partisan measures are to be put through here as partisan measures, then the work of this Convention will be repudiated by the people at the polls, and the very name of " Con- stitutional Convention," as the New York Sun of to-night well says, " will become odious in the ears of the people." Mr. H. A. Clark — Mr. Chairman, I do not rise to make a political speech for I am not given to speaking on politics when at home or away from home. I have just listened to a speech from a gentleman in the Convention, while the subject before the Conven- tion is the first section of the article on cities, and I failed to hear him mention the article in a single syllable that he pronounced. He spent all his time over a question of partisanship, injecting partisan- ship into this Convention. Certainly it never has been injected into this Convention by the majority and it has hardly been referred to by the majority, and the debates will show whenever it has been referred to it has been referred to by the minority members of this Convention. Now, Mr. Chairman, I fortunately or unfortunately was made a member of the Committee on Cities. I had little or no experience in the matter of city government, and went into that committee with the desire to perform my duty to every part of the State of New York. I have heard home rule talked, that the cities desired home rule, and the members of the Committee on Cities sat iri the Assembly parlor week after week attempting by united effort to work out some scheme whereby to give the large cities of this State what they seemed to be demanding, " home rule." They listened to committees from the different cities which appeared before them; gentlemen from the good government clubs of New York and Brooklyn and Buffalo appeared and gave us their views upon the subject. We heard many arguments from different sources, and the members of those clubs differed materially as to their views of home rule; in fact, very few of them agreed. The first idea was to confer upon legislative bodies of cities the powers of local legisla- tion to give them the right to control unfettered by the Legislature, their municipal affairs; but certain members of the same clubs appeared and advised the committee that it would never do; that the result would be that our State, our sovereign State, would be divided into several sovereignties; that the State would lose its control over its cities, while the cities would still continue to rule the State. The argument was used before the committee that the counties had home rule and that the cities had not. Now, the home rule that the coun- ties possess is a very different home rule from that which has been August 27.] CONSTITUTIONAL CONVENTION. 329 asked by the cities. The only authority that the counties possess is that given to the boards of supervisors, and that is conferred upon them by the Legislature and can be changed at any time. The suggestion was made that the same kind of authority be given to local legislative bodies in cities, powers conferred by the Legislature which might be taken away at any time. This appeared unsatisfac- tory to the committee, who were nearly all from the different cities of the State, and was most unsatisfactory to many of those who appeared before the committee, and I dare say that it would be unsatisfactory to this Convention. However, I believe it to be the only safe and proper way. The committee continued its work and concluded that the only way that home rule could be worked out under the circumstances was by limiting the powers of the Legisla- ture in relation to city affairs, and that the Legislature should not pass special acts, except as those acts were first after being passed, before they became laws, submitted to local authority for sanction. On this theory this article was drafted, and fourteen of the members of the Committee on Cities took part in drafting it, took part in the construction of every sentence that it contains, aided in making up its language, criticised it when they saw fit before the committee, and then the language was changed in accordance with their sug- gestions and after assisting and helping make this article and pre- paring it, as it was to be laid before this Convention, then they came into this Convention, and attacked the very language and the very sentences that they had assisted in framing. The only section now before this committee, as I understand it, is section i. That section was considered by the committee until it was understood that it was satisfactory to every member of the committee who took part in its work save three. Afterwards when we came to take the final vote in committee, they reserved the right to attack the article on principle, but claimed that they were satisfied in every respect with section i. Furthermore, they have made a minority report and placed it before this Convention, and nowhere do I find in that minority report a single reference to section i, indicating that they are in any way dissatisfied with that. Now, Mr. Chairman, in the work of that committee, everything ran smoothly in relation to section i. There seemed to be no difference of opinion as to the divorcing of elections; there seemed to be no difference of opinion as to the manner in which the section should be arranged. The different sections were considered, construed and passed upon until we came to the article in relation to the police, and then we found a different sentiment. We found certain members of the Com- mittee on Cities who claimed they were in favor of home rule in 330 REVISED RECORD. [Monday, favor of divorcing the elections, in favor of everything that might be suggested before the committee, but when we came to the section where the State proposed to put its hand upon the police, so as to see that those elections were carried on properly, then there was a change of sentiment; then the minority, as they called themselves, began to object, began to withdraw from the work of the com- mittee, and from that time until this, they have not been so much in favor of home rule. One more word in relation to this section. Before the report was finished Mr. Banks, a member of the Cities Committee, proposed an article for the cities. It was read and dis- cussed in committee, and that article, as proposed by Mr. Banks, was voted for, I believe, by every member of the minority who has signed the minority report; and that proposition of Mr. Banks, which was brought in there by the minority and proposed as a sec- tion to the cities article, contained the same matter as section i which is now before this Committee of the Whole. Now, I cannot quite understand the position of the gentlemen who oppose sec- tion i. They helped frame -it. They helped construct each sentence in it. They produced before the committee a sec- tion just like it in principle, containing its language almost word for word; voted for it, stood by it, and now, when the majority come into Convention in Committee of the Whole and favor it, they turn around and criticise it and oppose it. We wish they would tell us what they would like. They say they want home rule. Why do they not present us something in favor of home rule? They say they want divorced elections. Why do they not present us something that will operate in that way? Conferring the power on the Legislature to separate elections does not guarantee the divorcement of elections. It merely operates to kill this section, and nothing more. Mr. Chairman, while some of the speakers have seen fit to discuss this whole article, I feel that it is only proper that I should confine myself to this section, and when the other sections come up, I hope to have something to say in relation to them. But I only wish to say here, that after the minority have proposed this same section in substance to the Committee on Cities, and voted for it, they ought now to stand by it. Mr. Vedder — Mr. Chairman, I move the committee now rise, report progress on this bill, and ask leave to sit again. The Chairman put the question on Mr. Vedder's motion, and by a rising vote it was determined in the affirmative, ayes 56, noes 41. The committee thereupon rose and President Choate resumed the chair. August 27.] CONSTITUTIONAL CONVENTION. 33! Mr. I. S. Johnson — Mr. President, the Committee of the Whole have had under consideration proposed constitutional amendment (printed No. 451), entitled "To provide home rule for cities," have made some progress in the same but not having gone through there- with, have instructed the chairman to report that fact to the Con- vention, and ask leave to sit again. The President — The question is on agreeing with the report of the Committee of the Whole, and granting leave to sit again. Mr. Nicoll — I call for the ayes and noes on that question. Mr. Roche — Mr. Chairman, I happened to be out temporarily when the vote was taken on the question of the committee rising. I do not know what the purpose of the committee in rising is. The President — It is to get leave to sit again. Mr. Roche — That is very true I presume, and it is the form, but if it means that the committee is to rise for the purpose of reporting this proposition separately in accordance with the proposition by Mr. Vedder, that, I think, should be considered by this Convention before the vote is taken by ayes and noes. If this in effect means that all we are to have of home rule is a simple proposition for the separation of elections, then it seems to me that it should be care- fully considered by this Convention. Mr. Putnam — Mr. President, I rise to a point of order. There is no motion now before the House. The President — There is a question before the House, whether it will agree to the report of the Committee of the Whole and give them leave to sit again. The ayes and noes have been called for, and the Chair holds that this is debatable. Mr. Nicoll — Mr. Chairman, I beg to withdraw my request for the ayes and noes. The President — Mr. Roche has the floor. Mr. Roche — Mr. President, I think it is very much easier to criticise this proposition of the Committee on Cities than it is to construct a new proposition. For one I am not disposed to criti- cise. I would rather be helpful to the committee in framing a use- ful and practicable proposition, which would confer on the great municipalities of this State some of the rights and some of the benefits of self-government. I have been taught to believe as a Democrat that the people can be trusted with power in their several localities, and that they should be given large measures and powers for their own government. T believe, Mr. Chairman, that this amendment is a step in the right direction. It may not accomplish 332 REVISED RECORD. [Monday, all that it is expected to accomplish but the separation of local elec- tions from State and general elections, or national elections, has been thought generally to be a wise and necessary step in the direction of better municipal government. We have a proposition on this subject before the Convention. 1 hope that it will be adopted in some form. I believe in the substance of things, and not alone in the form of them. It may be that this amendment does not very clearly and intelligently express the object which is sought to be accomplished; I will not say that it does or does not. In reference to the objections which were raised by Mr. Hotchkiss in regard to the coming election in the city of New York, I desire to say that the people in that city will vote upon the question of who shall be the next mayor with their eyes open. If this Constitution is before them with knowledge that it may be adopted, they will vote upon that and upon the question of who shall be the mayor, with reference to the fact as to whether his term shall be a two-years or a three-years term; and it may be that the citizens of New York and the political parties of New York will be much more careful in regard to who shall be the candidate or candidates for mayor, if the person elected is to be installed for three years rather than for a two-years term. Now, Mr. Chairman, this has got to be put in some form, and it seems to me that the object at which we should all aim is so import- ant that it should make substantially no difference if, in fact, it results in the next mayor of the city of New York, being elected for a three-years term instead of for a two-years term. I know it is said that this is legislation in the Constitution. Well, what is all our Constitution but legislation in some form, either affirmative or negative? We have put it in the Constitution that the Legislature shall pass laws upon certain subjects, and we have placed it in the Constitution that the Legislature shall not pass laws upon certain other subjects. It strikes me that we may go a little astray in regard to this business of legislation in the Constitution; that we may perhaps be in favor of a legislative Constitution when it hap- pens to be in harmony with our views or ideas upon certain matters, and that we may be opposed to legislation in the Constitution when it is not in harmony with our views upon some particular matter. The man who was asked if his horse had the glanders said he did not know what the glanders were, but if he was any the better for them he had them a plenty, and if he was any the worse for them he didn't have the glanders at all. Now, it may be a good deal like that in reference to this matter of legislation in the Constitution. I am asked if we can trust the Legislature to do this thing right, to August 27.] CONSTITUTIONAL CONVENTION. 333 obey this mandate. 1 have a great deal of respect for the character and the learning of the distinguished gentleman from Kings (Mr. Jenks), and if the majorities in the Legislature were composed of men of his knowledge and experience in municipal affairs, accom- panied with his high character and ability, I should say yes, and would be satisfied with putting in the Constitution a mere mandate that the Legislature should enact laws of this character, in the hope and belief that they would be enforced. But, Mr. Chairman, if we are to be guided by the experience of the past, I say to you Demo- crats who are sincere and honest in your professions and desire for home rule, let us have home rule here in plain, concrete written form, and not take it at plain mandatory provisions to the Legis- lature. The Constitution now contains plain mandatory provision to the Legislature on subjects which it has been pleased to ignore time and time again. We know that the Legislature of this State got into a quarrel with the Governor of this State in regard to the constitutional mandatory provision for an enumeration of the inhabitants of the State, and that it disregarded the Constitution. We know that the Legislature of this State quarrelled with the Gov- ernor in regard to the calling of this very Convention, and that the constitutional provision for its assembling was defeated year after year for five or six years after this Convention should have assem- bled in accordance with the provisions of the Constitution. The experience of the past tells us that we cannot be too careful, as against political, willful, ignorant or corrupt action upon the part of Legislatures, and that men who sometimes take an oath of office to obey the Constitution and laws of the State find excuses, and excuses of the most trivial character, for refusing to comply with the mandatory provisions of the Constitution. Now, Mr. President, I believe in home rule, and I believe in it in such form, and am so anxious to have it secured to the cities of this State that I want to see it put in this Constitution in such shape, that no Legislature, whatever may be its political complexion, can deprive the municipalities of the State of the boon and benefit of local self-government. But does this proposition for separation mean that all we are to have is simply a provision for separate elections? Does it mean that gentlemen who are not really in favor of home rule for the great cities of this State, but desire that the legislative power and the legislative authority shall be asserted on any and all occasions even to the hiring of a clerkship in a public office, or the question of whether a municipality may build a bridge across a stream, and that they shall have to come to the Legislature for matters that are purely subjects of municipal rule and regulation. 334 REVISED RECORD. [Monday, Does it mean that gentlemen want to assert the power of the Legis- lature over the municipalities in order that they may force power and patronage and a dispensation of favors from either political parties or from the municipalities as the price of granting legisla- tion? Does it mean that these gentlemen propose to leave us here with a single proposition for the separation of elections, or does it mean that we are to have some constitutional safeguards against legislative interference and legislative tinkering such as we have seen time and time again? Mr. President, I think that there is some home rule in this proposi- tion, but I think it can be improved upon. There may be no home rule for the city of New York; the members from New York city know best about that. I think there is. I know that there is in regard to many other of the cities of the State. We can add to the number of subjects to be treated upon in this article if they are not sufficiently covered ; but I do hope, Mr. Chairman, that this question which has occupied so much of the time of this Convention will not end in this way; that it will not mean and that it does not mean that we are to have simply a separate proposition from the Committee on Cities, as suggested by the gentleman from Cattaraugus, and that all the other provisions, that are intended to give us something of the semblance as well as the form of home rule, are to be cast aside and sent adrift and kept out of the sight of this Convention for the remainder of the period. I hope, therefore, Mr. Chairman, if that is really what is meant by this proposition to rise, that the Convention will not adopt the report of the Chairman. Mr. Vedder — Mr. President, I do not quite understand the gentleman from Rensselaer, who is in favor of this proposition and yet hopes that the Convention will not grant leave to sit again on the very proposition that he says he is in favor of. Mr. Roche — Mr. President, may I suggest something to the gentleman? It lacks an hour of ten o'clock. Why can't we go on to-night with the discussion of this matter for the remainder of the evening? Why do we hear the suggestion that this thing now shall be cut to pieces and that it shall be reported back from the Committee on Cities with simply a provision for section one? What is the meaning of it? Why can't we go on and act upon this matter, section by section, and adopt it here to-night and for the rest of the time until it is completed? I have heard no answer to the suggestion, if Mr. Vedder will pardon me, that this thing really means that everything is to be cut out of this provision relative to home rule for cities except section one; that that is to be adopted, and we are to go adrift in regard to the rest of the article. August 27.] CONSTITUTIONAL CONVENTION. 335 Mr. Vedder — Mr. President, I do not know from whom the gentleman from Renssclaer could have heard any such story as he has just detailed, that it was all going to be cut out except the first section, for there has been no such suggestion from me, nor from any one to me. I made a suggestion a short time ago, when we were in Committee of the Whole, which I supposed was accept- able to the majority of the Committee of the Whole and of the Convention, that these seven distinct items in this one proposition might be considered independent of each other, standing as sin- gle isolated propositions. There are those who are in favor of the first section of this bill who are not in favor of some of the other sections. Section one is an independent proposition which is to divorce business elections of cities and elections for State pur- poses or national purposes and to separate them; to have a divorce between those two different classes of elections for different classes of officers. One is a business proposition to regulate the affairs of the city and the other to regulate the affairs of the State or the affairs of the nation in the case of a presidential or a congressional election. Now there has been so much mystery and so many rumors connected with this matter that have got in the ears of those friends who are panting to vote for this whole proposition, or any part of it, that I will say I moved progress on the bill and asked leave to sit again upon the theory that if leave was granted to sit again — and it would be if everybody was in favor of the prop- osition, as they seem now to be — that then I would make a motion that the proposition be referred back to the standing Committee on Cities, with instructions to strike out the first section, the bal- ance retaining its place on general orders, and to report the first section as an independent proposition and bring it into the Com- mittee of the Whole, side by side with the others; so that if one section failed, all would not fail, and all would not be lost. Those who are in favor of all the seven propositions and are so eager to vote for them, ought to consider this, that there may be those who are not in favor of each of the seven propositions; and I ask those who are in favor of the seven propositions, and of each and every of the seven, whether they would not be content to take one or two of them if they could not get all? Now, then, Mr. President. I shall not make the motion. Those who are in favor of this prop- osition as a whole, by voting aye will grant leave to sit again, and in five minutes or less we can be in Committee of the Whole. But let them understand that in their fierceness to get all. they may possibly not get any of it. Mr. Roche — Mr. President, may I ask the gentleman a question? 336 REVISED RECORD. [Monday, Is there any reason why we should treat this article section by sec- tion any differently from what we treated the judiciary article? Mr. Vedder — Yes, exactly. The judiciary article was a com- plete, matchless, peerless whole, and you could not take any part from it without destroying the whole of it. It was so symmetrical in all of its proportions that you could not violently disturb any of it without disturbing the whole of it. There were not seven different propositions in the judiciary article, inde- pendent of each other, each hinging upon the others as a system. Here are seven distinct propositions; first, to enum- erate some of them, that there shall be a divorce between municipal elections for business purposes, for cities, and State and national elections; second, that in all the election machinery of the State there shall be an equal number of those who represent the two great parties as determined by the votes at the then last guber- natorial election; the next proposition is that the Governor shall have power to remove the police commissioners of cities and appoint their successors during the term of the then present mayor; another proposition is in regard to proportional or minority rep- resentation in cities; another proposition is that a mayor of any city in the State of New York shall be equal to three-fifths of the Legislature of the State of New York in nullifying the acts of the Legislature of the State; and none of these is dependent upon the others. But as I say, I am not dying to have these propositions separated. Let the friends of this whole measure take the conse- quences, and let those consequences be on their own heads, if they wish to club them all together. I think the true friends of reform, of those principles of reform which are in the bill, will take one if they can get no more; if they are not willing to lose all in their greed to have all. Mr. Bowers — Mr. President, it is very difficult to perceive why the same course of procedure should not be had upon this bill as was had upon the judiciary article. I thank the gentleman for his statement that the judiciary article was matchless and peerless, and I beg at this time to call to the attention of the chairman of the Cities Committee the fact that the two most serious criticisms that "have been made upon his report have not come from the minority. We did not make a reference to Johnson's dictionary, nor did we compare it as it has now been compared with the judiciary article. Are we now to understand from the declarations made by the gen- tleman from Cattaraugus (Mr. Vedder), that all the measure that this Convention proposes to give to cities is separate elections, and no part of the home rule which has been so much discussed. August 27.] CONSTITUTIONAL CONVENTION. 337 Mr. Vedder — No. Mr. Bowers — Then, Mr. President, why separate, and why not proceed as we did with the judiciary article? And if you do not like the amendment made by the gentleman from Kings (Mr. Jenks), defeat it, and we will bow, as we have always bowed, to the majority. Mr. Vedder — If the gentleman will permit me, I will answer him. For one, Mr. President; who may be in favor of and probably is of some of these propositions, I wish to separate them because I do not believe that if these are all put in together, when we come to vote that we will get a single Democratic vote in this Conven- tion for all of them put together. Mr. Bowers — Mr. President, the gentleman is quite right, if he proposes to give power to the Governor of this State to rule the city of New York and its police department, that he will never get a Democratic vote. But at the same time, it is within the power of this Convention to so amend that article as to strike out the pro- vision which proposes to give to the Governor power to remove and appoint for three years the head of the police of New York; and with that amendment stricken out, as I believe a majority of the delegates in this Convention will agree to do, there is no difficulty in properly amending this cities article, and providing some reason- able proposition as to home rule. If it is meant that we are to take separate elections alone, we shall accept that. But it is impossible now for us to perceive any reason why the whole article should not be gone through, section by section, properly amended to meet the wishes of the delegates of this Convention, and then adopted. We make these propositions now, because we are quite willing that the Committee of the Whole should sit again upon this 'article; but we are aware that when that motion conies to be made it may be made with restrictions and in such form that we cannot debate and present our views. Why should a different course of procedure be taken. We ask to go on for the rest of the evening, as we did for three days and a half on the judiciary article. We ask leave to consider this section by section, and not have it turned back again to the committee, because there is criticism on the very first section. Why, we will go on at this rate forever. Is it proposed to-night to recommit the first section, with instructions to report back in a certain manner, or are we to sit again? Mr. Vedder — Mr. President, will the gentleman permit me? I thought I distinctly stated, I intended to, at least, that the question 22 338 REVISED RECORD. [Monday, is now upon granting leave to sit again. I shall make no motion to separate. There will be no motion made to separate. Let us con- sent to it, and go into Committee of the Whole immediately and commence debating the bill. Mr. Bowers — Mr. President, we all agree to that. Mr. Vedder — All right. Mr. Bowers — What was the purpose of the motion, may I ask the gentleman? What brought us to this situation? Was it child's play? Mr. Vedder — Mr. President, I very frankly told the Convention what I intended to do, but there has been so much said about it, and such a consuming desire to vote upon the proposition alto- gether, to have it altogether and to debate it altogether, that I say I will not carry out my original purpose of making a motion, but if leave to sit again is granted, we can go right into Committee of the Whole and proceed with our work. The President — Is the call for the ayes and noes insisted upon? Mr. Nicoll — That is withdrawn, Mr. President, in view of the explanation. The President put the question on granting leave to the Commit- tee of the Whole to sit again, and it was determined in the affirmative. Mr. J. Johnson — Mr. President, I move that we now go into Committee of the Whole on this proposition. The President put the question on the motion of Mr. Johnson, and it was determined in the affirmative; whereupon the Conven- tion resolved itself into Committee of the Whole, and Mr. I. S. Johnson resumed the chair. The Chairman — The Convention is in Committee of the Whole. What is the pleasure of the Convention? Mr. Holcomb — Mr. Chairman, I would be very much obliged if the Secretary would read the proposition as before, the House. I was not so fortunate as to be here this morning. The Secretary read as follows: Substitute for section first offered by Mr. Hotchkiss. "Section first: Elections of officers and of judges or of justices of inferior local courts in all cities, and of county officers in all counties containing a city, and of supervisors elected in a city, except to fill vacancies, shall be on the Tuesday succeeding the first Monday in November, in an odd-numbered year. The Legislature shall, at the first session after the adoption of this article provide by law for carrying into execution the fore- August 27.] CONSTITUTIONAL CONVENTION. 339 going provision, and in so doing shall extend or abridge the terms of such officers, then in office, so far as may be necessary for that purpose." Mr. Holcomb — Mr. Chairman, I would be very much obliged if I could hear the proposition presented to the Convention by Mr. Jenks, of Kings county. I have not heard it. The Chairman — The Secretary will read the amendment. Mr. Jenks — Mr. Chairman, will the gentleman give way for a moment? In order to meet the suggestion of one or two members of the Convention I have added a word or two to the amendment as proposed by me, and with the consent of the Convention, I will send it to the Secretary as it now stands. Mr. J. Johnson — Mr. Chairman, may I ask if that is the same amendment in effect that was made before? Mr. Jenks — Yes; I will read the amendment to the House. The article as it now stands, with my amendment, is as follows : " All elections, except to fill vacancies, of city officers, including super- visors and judicial officers of inferior or local jurisdiction, elected in any city or part of a city, and county officers elected in the coun- ties of New York and Kings, and in all counties whose boundaries are the same as those of a city, shall be held separate from all elec- tions for State or national officers, except as otherwise provided in this Constitution, and the Legislature at its session next after the adoption of this article shall enact such general laws as may be necessary for such purpose." The Chairman — Does the Chair understand that this is to take the place of the former amendment? Mr. Jenks — The way it now stands; yes, sir. Mr. Cochran — May I ask the chairman of the Committee on Cities a question for information? Do I understand that this article now proposed by the Committee on Cities, in so far at least as the first section is concerned, is not dependent at all upon the reports of any of the other committees, so far as the separation of the State elections is concerned? Mr. Johnson — I did not say that I understood myself to say so. Mr. Cochran — I understood you to say so this morning. Mr. Johnson — Mr. Chairman, I understood myself to say what I intended to say, that the business of Assembly, of State officers, everything that is interrelated with this should and will be taken up when it is reached in order as an independent proposition, entirely unaffected by this. 340 REVISED RECORD. [Monday, Mr. Cochran — But that this proposed amendment was not dependent upon the others? Mr. Johnson — I did not say so. Mr. Cochran — Well, I desire to call the attention of the chair- man of the Committee on Cities to the report of the majority of this committee, Document No. 33, page 5, which reads as follows : " This section of the article is tentative; it will not be pressed unless met by supplementary provisions from other committees." I ask the chairman of the Committee on Cities if we have received those other supplementary provisions from the other committees which would entitle the chairman of the Cities Committee to now press the fur- ther consideration of this question? Mr. Johnson — Mr. Chairman, there is such progress made in the other matters, as was stated in the debate when it opened, stated with the assent of the committees having the other subjects in charge, as makes it absolutely and entirely proper, indeed neces- sary, to ascertain the sentiment of the Convention on this subject. It would be quite absurd, sir, for the Committee on State Officers and for the Committee on the Legislature to go further than they have gone, until the purpose and thought of the Convention is ascertained on the proposition as to elections in cities. There are two different propositions, and one or the other must go first. This is naturally first, and naturally here, and when it is adopted it leaves the other subject to be considered in due and proper time, and then the Convention will act on that as it does on this, with an independent judgment. Mr. A. H. Green — Mr. Chairman, it seems to me that there is a difficulty here and some embarrassment about the matter. If the suggestion that was orally made in the discussion, that the report of the Committee on State Officers had been before us, we would have had their mind on the subject as well as the mind of the Committee on Cities. Now, this proposition, in the first section, is to divide the State elections from the municipal elections. That involves necessarily the election of Assemblymen for two years. There are gentlemen here who do not believe that that should be done, and if we adopt this section now, and the Committee on State Officers comes with a proposition that they will elect Assemblymen for one year, it destroys all the effect of this. This is a proposition, as I say, to hold the election for State officers in one year, and the election for municipal officers in another year. That, I believe, to be the fact. Now, if you postpone the election of municipal officers for every other year, you necessarily leave out the Assemblymen, and if you August 27.] CONSTITUTIONAL CONVENTION. 341 wish to elect the Assemblymen for one year, you have got to pro- vide that they shall be elected among the municipal officers. The chairman of the committee thinks the mind of the Convention should first be ascertained upon this proposition. I think the mind of the Convention would probably be better ascertained if the proposition of both committees were both before the Convention. I think the proposition as originally made when we begun this dis- cussion was that the committee should have its report before the Convention before this matter is acted upon, and I think that would be a very wise thing to do. Mr. Johnson — Mr. Chairman, the objection here made, I was about to say, was a surprise to the Cities Committee, but it is not. Nevertheless, I feel bound to say to this Convention that to-day is the first objection I have heard from any member of the Cities Committee. Possibly two days ago one gentleman spoke to me about the mayoralty term; excepting that, it is the first objection I have heard from the Committee on Cities to the adoption of this proposition. More than that, we have every affirmative proposi- tion printed and before our committee in the same language. More than that, we have their answer to our report; an original proposi- tion, in which, while objecting to much, no objection was taken to this. It would seem to the Committee on Cities, it seems now, that in the judgment of this Convention the best course would be to pass this article as it is, and as every one connected with its framing had agreed to, and move on to something else; then the way is clear and the other subjects cannot be taken up. But to balance between whether we shall go to the right or the left, and so not go at all, halt in this career which all assent they are for, because there is a question as to which we shall do first, it seems to me is not at all appropriate to the deliberations of the Convention. This can be passed precisely, practically, as the minority and majority agree, and then we will take up, in good heart, when it is reached, the other proposition, and progress will be made. Otherwise, we simply halt between two opinions, and the time of the Convention goes on, and nothing is done in the matter which we believe to be so essential. Mr. Hotchkiss — Mr. Chairman, will the gentleman allow me to ask him a question? Is it not a fact that I retired from the sub- committee appointed to frame this first section? Mr. Johnson — If the gentleman says so, I would not disagree; and I will now ask the gentleman a question. Mr. Hotchkiss — Did I not inform the chairman of the committee 342 REVISED RECORD. [Monday, that I did retire from that sub-committee, and would not become further responsible for this first section? Mr. Root — Air. Chairman, I feel bound to raise a question of order as to whether this is of any consequence to this Convention or to the performance of its duties, whether any member of the Cities Committee did or did not do this or that. The Chairman — The Chair rules that the gentleman is out of order. Mr. Hotchkiss — Mr. Chairman, the question would not have been raised — Mr. Root — Mr. Chairman, may I inquire what is the question now before the committee? The Chairman — The question is on the amendment offered by Mr. Jenks. Mr. Jenks — Mr. Chairman, in justice to myself, I want to say that I should not have suggested that subject were it not for the assertion which was made by the chairman of the committee during the course of his remarks. The Chairman put the question on the adoption of Mr. Jenks's amendment, and it was determined in the negative by a rising vote, 42 to 70. Mr. Peck — Mr. Chairman, I now again offer the resolution which I offered this morning and withdrew, which is to the effect that in the counties of the State containing cities other than the great cities of New York and Kings, the elections of county offi- cers shall also be separated from those of municipal officers. The purpose of the amendment is to make this reform, if it be a reform, extend to all the cities of the State and give them all the benefit which is given to the large cities, and that the act shall be consistent within itself. And if the Convention is consistent with itself, I think this aid will be granted to all the cities. Mr. J. Johnson — Mr. Chairman, I hope the amendment will not prevail. It is simply bringing a new matter in here in no way con- sidered, save in two counties, where the county officers and city officers are practically merged. Mr. Lincoln — Mr. Chairman, the report of the Committee on Legislative Organization is to be made at this session, and I under- stand the chairman of that committee is ready to submit his report. I suppose it will be necessary that we go into Convention and out of the Committee in order that the report may be received, and for August 27.] CONSTITUTIONAL CONVENTION. 343 that purpose I now move that this committee rise, report pro- gress and ask leave to sit again. The Chairman — The Chair understands that that report is not ready at this moment, but will be in ten minutes. With that state- ment, does the gentleman press his motion? Mr. Lincoln — If it is not ready yet, I withdraw my motion for the present. Mr. Becker — Mr. Chairman, the report of the committee is ready now. Mr. Lincoln — Then I renew my motion, Mr. Chairman. The Chairman put the question on the motion of Mr. Lincoln, and it was determined in the affirmative; thereupon the committee rose, and President Choate resumed the chair. Mr. I. S. Johnson — Mr. President, the Committee of the Whole have had under consideration proposed constitutional amend- ment (printed No. 451), entitled, " To provide home rule for cities," have made some progress in the same, but not having gone through therewith, instructed the chairman to report that fact to the Con- vention and ask leave to sit again. The President put the question on agreeing to the report of the Committee of the Whole, and it was determined in the affirmative. The President — By special order of the Convention, the Com- mittee on Legislative Organization and Apportionment was to report at this evening's session, in connection with an assurance given to the minority of that committee. Is Mr. Becker ready to report? Mr. Becker — I present the following report, Mr. President. The President — The Secretary will read the report. Mr. Cochran — Mr. President, I would like to inquire if this is the one that was published in the morning papers? It would save the trouble of reading it. Mr. Becker, from the Committee on Legislative Organization, to which was referred the proposed constitutional amendment, intro- duced by Mr. E. R. Brown (introductory No. 176), entitled, " Pro- posed constitutional amendment to amend article 3, relating to apportionment of Senate and Assembly districts/' makes a written report of the same, as follows: To the Constitutional Convention: The Committee on Legislative Organization reports herewith to the Convention a proposed amendment of article 3 of the Constitu- tion, which provides: 344 REVISED RECORD. [Monday, First. For an increase in the number of Senators from thirty- _two to fifty, and of Members of Assembly from 128 to 150. Second. For a new apportionment of the Senate and Assembly districts. Third. Rules governing all future apportionments which insure, in the opinion of the committee, equality and fairness, and guard against the inequalities and unfairness, which have heretofore obtained. In proposing a new apportionment of the Senate districts and fixing the number of Members of the Assembly in each county, your committee follows the precedents established by the Constitu- tional Conventions of 1821, 1846, and 1867, and remedies the gross inequalities and injustice of the apportionment act of 1892. The provisions of the amendments reported by your committee are in substance: First. That an enumeration of the inhabitants of the State shall be taken in 1905 and in each tenth year thereafter, under the direction of the Secretary of State, and when taken shall be taken during the months of May and June. The Secretary of State is named for the reason that much conflict has heretofore arisen, and may arise again between the legislative and executive branches of the State government as to the officer who should have the direction and the management of the census bureau. If it is thus settled in advance, and before it is known what political party will be in power at the time that the census is taken, upon what department of the government this duty shall rest, one of the most serious sources of conflict and difficulty in taking enumeration will be removed. The power of the Legislature to control and regulate the expenditure necessary to make the enumeration is still pre- served. The provisions that the enumeration shall be taken in the months of May and June will insure fairness to both the rural and city districts. Second. In the formation of Senate districts it is provided that no town or block in a city shall be divided, and that no district shall contain a greater excess in population over an adjoining district in the same county, than the population of a town or block therein which is so situated that it can be put in either of the two adjoining districts. As the population of a town or block is not apt to exceed 2,000, and probably never exceeds 5,000 citizens, this will reduce to a minimum the opportunity to create any great inequality between the districts. Heretofore there has been no unit of population in cities; without the establishment of such a unit your committee can discover no practicable rule for equality, which will be more defi- nite than the existing provisions of the Constitution, which the August 27.] CONSTITUTIONAL CONVENTION. 345 Court of Appeals has pronounced inadequate. The further provis- ion that an additional Senator shall not be apportioned on less than one-half the ratio is so manifestly proper that it demands no expla- nation. Your committee have also deemed it wise to incorporate a provision that an additional Senator shall not be apportioned to any county on less than the full ratio (obtained by dividing the total citizen population of the State by the whole number of Senators), when the average number of inhabitants, including aliens, in all the Senate districts in such county would not otherwise exceed by one- tenth the full ratio. The working of this principle may be illustrated as 'follows: If seven Senators are apportioned to the county of Kings, there would be a remainder of 58,264 citizens, being just in excess of one-half the present ratio, which is 115,817. If an addi- tional Senator was apportioned to that county, each of the eight adjoining Senatorial districts in that county would have to con- tribute so many of its citizens that each would have less than said ratio, but under the plan proposed by your committee, each dis- trict would have only 8,323 more than the ratio. According to the plan of your committee, there will be in no other part of the State, except Kings county, eight districts in block, each one of which is below the ratio, and it is not thought either wise or just, where so many Senators are apportioned to a single county, to permit the average representation in the Senatorial districts to fall uniformly below the ratio. The inequality necessarily arising from the rule preserving county lines would operate with great harshness upon those counties of the State which are too small to be entitled to a Senator, and which must be combined in the formation of Senatorial districts, if counties entitled to a large number of Senators were per- mitted to have a representation on less than the ratio. We have under our amendment proposed that New York shall have twelve Senators, Kings, seven Senators; Erie, three Senators, and Monroe, two Senators. These four counties have approximately one-half of all the Senators apportioned, and unless some such rule as that suggested by your committee is provided in the Constitution, it may easily happen that the rest of the State will on the average have a smaller representation in the Senate than those four counties. Inasmuch as every Senator from a county in a broad sense repre- sents the entire county, our proposed rule can never work any real injustice. The rule regarding county lines makes inequality as between the rural counties of the State and the city counties of the State inevitable to a certain degree, and we think that this inequality should not be increased as against the rural counties and in favor of f.he counties of the State embracing the great cities which are 346 REVISED RECORD. [Monday, incorporated entities, unified in interest and with a small area of population. Third. As to the apportionment of Members of the Assembly, your committee have recommended rules which will make this apportion- ment hereafter a matter of strict mathematical calculation, and which it is believed will approach more nearly to equality of repre- sentation than any other apportionment that has ever been made in this State. The principal difficulty in reaching absolute equality arises here also from regarding the county lines as controlling. But with 150 Members of Assembly the ratio is 38,606, and the inequalities are not considerable, except in the few cases arising under that provision of the Constitution which provides that every county, no matter what its population, shall have a Member of Assembly. Your committee has not deemed it wise to attempt to change this rule, which has been so long established, but has attempted to formulate new rules by which the loss of representa- tion occurring in those counties having one or more ratios must be equally borne by both the rural and city counties of the State. We have hereto annexed tabular statements showing the three classes into which the counties are divided for the purpose of an apportion- ment of Members of Assembly. From this it will appear that while the original ratio for each Member of Assembly is 38,606, the last or highest ratio in apportioning Members of Assembly in the ten larg- est counties of the State is only 40,566. As appears by Assembly exhibit 3, hereto attached, the average population in the Assembly districts having one or two Members of Assembly, by reason of having one or more full ratios is 39,273. The same rules requiring equality in population among the districts in counties having more than one Member of Assembly are applied by your committee to such Assembly districts as are applied as heretofore stated to the Senate districts; and it is specifically required that every Assembly district shall be wholly within some Senate district. Having formu- lated the foregoing rules to insure equal representation in both Senate and Assembly districts, your committee have deemed it advisable to increase the number of Senators from thirty-five to fifty, and of Assemblymen from 128 to 150, in order to effectuate a more complete representation of the whole people of the State. The present number of each House of the Legislature was fixed by the Constitution of 1821, when the population of the State was 1,372,812. The total citizen population of the State is, under the census of 1892, nearly five times greater, viz., 5,790,865. If Sena- tors are to have auy sense of locality, and to intelligently represent the interests of their several districts, it is of the greatest import- August 27.] CONSTITUTIONAL CONVENTION. 347 ance that the rural districts should be confined within reasonable territorial limits. Under the apportionment of 1892, the largest Senatorial district in population, as well as in territory, outside of the city of New York, is the Twenty-first, composed of the counties of Washington, Warren, Essex, Clinton, Franklin, Hamilton and Fulton, containing a citizen population of 229,905. This district is much larger in territory than the average Senatorial district of the State. When the Senatorial districts were but eight in number, the controlling reason for the change made by the Constitutional Con- vention of 1846, from eight Senatorial districts, each electing four senators, in thirty-two Senatorial districts, each electing one Sena- tor, was that the Senators from the eight large districts could have no close relation with all the people of their districts. Our pro- posed number of fifty Senators will substantially restore to the peo- ple approximately the same representation that they had under the Constitution of 1846, the additional eighteen Senators going to the great centers of population. The opportunity for any selfish or cor- rupt interest to obtain control over a body composed of fifty mem- bers will, undoubtedly, be much less than to obtain control over a body of thirty-two members. As we propose, the most popular body, the Assembly, is increased to 150, which is three times as large as the Senate, thus preserving a fair proportion between the number of members of the two bodies. Your committee, believing that municipal elections should be separated from State or national elections, under the plan proposed by the Committee on Cities to this Convention, requiring the municipal elections to be held in the odd-numbered years, and the State elections in the even-numbered years, has also recommended, in order to bring this about, that the terms of Members of Assembly shall be extended to two years. It is necessary if these elections are separated that this extension should be made, or biennial sessions should be provided for, and your committee has chosen the former method. For the purpose of securing obedience by the Legislature and by the local boards to the constitutional mandate preventing gerrymandering, your committee have recommended that the action of these bodies should be reviewable by the courts, and that all actions and proceedings relating to apportionment should have precedence over all other actions and proceedings on the calendars of the courts. This is no innovation, for the courts of this State and of other States have repeatedly held that they had power to review the action of these bodies relating to apportionment. In preparing their proposed amendment your committee have received much valuable assistance from the amendments proposed by Messrs. Lauterbach (No. 32), 348 REVISED RECORD. [Monday, Vedder (No. 13), Cookinham (No. 48), Mantanye (No. 83), Porter (No. 229), Veeder (No. 92), Jacobs (No. 97), Dean (No. 132), Davies (No. 280), Peck (No. 359), and have embodied in our proposed amendment the salient features of Mr. Brown's proposed amend- ment (No. 404). It has received much assistance, also, from the arguments and suggestions of these gentlemen concerning them, which we here respectfully acknowledge. Your committee have proposed that in all cities comprising an entire county, some of which have no board of supervisors, the duty of erecting the Assem- bly districts should rest upon the common council, and in all other counties upon the board of supervisors. In the county of Kings and the city of Brooklyn, which are in the process of reorganization and where the board of supervisors is to be abolished after Decem- ber, 1895, and the city boundaries made coterminus with the county boundaries, this duty has been devolved upon both the board of aldermen and board of supervisors in joint session. The exhibits hereto attached show the practical working of the apportionment recommended by your committee, on the basis of the citizen population — shown by the State census of 1892. This cen- sus having been taken by election districts and not by blocks, the districts in New York county have been laid out according to election districts as they existed January i, 1892. Respectfully submitted, TRACY C. BECKER, Chairman. The President — The report is referred to the Committee of the Whole. Mr. Bowers — Mr. President, is not the proposed amendment to be read? We have been waiting three months and a half for it. The President — The amendment has been read by title, as usual, and referred to the Committee of the Whole. Mr. Bowers — We have been waiting three months and a half to find what they propose to do. The President — Mr. Becker, does this amendment differ from the one already on general orders, except that the blanks are filled? Mr. Bowers — The filling of the blanks is of considerable moment, Mr. President. Mr. Becker — I think, Mr. President, that it does differ in some respects which are material, as well as in reference to the subject- matter of the amendment as to the filling of the blanks for the districts. August 27.] CONSTITUTIONAL CONVENTION. 349 The President — It had better be read. If the Convention desires to hear it read they will have to extend the time of the session by order. Mr. Durfee — Mr. President, I think that is hardly advisable. I think we can get at it better by seeing it in print, and I, therefore, move that the reading of the amendment be dispensed with and that it be ordered printed, and the report also. Mr. Veeder — Mr. President, I rise to a question of privilege. The chairman of the committee has seen fit to give me credit for some thoughts that appear in his report. I should like to have it distinctly stated wherein I am entitled to credit, before any docu- ment goes to be printed, that I may disclaim it if I am not entitled to it. Mr. Osborn — Mr. President, as this is the first opportunity I have had to hear this highly interesting document, and as it emanates Mr. Bowers — Will the gentleman allow me a question? Are you a member of the Committee on Apportionment? Mr. Osborn — I have been a faithful member in the sittings of the committee. Mr. Bowers — And you have not heard this report until to-night? Mr. Osborn — I have not heard it. The President — Mr. Osborn has the floor. Mr. Osborn — And while I have listened to its rhetoric with the greatest interest, it has seemed to me there are some statements in it which I am not wholly prepared to agree to, and before it is printed I shall ask leave to have my name placed upon it as dissent- ing from it. Mr. Giegerich — I make the same request, Mr. President I have not seen it. Mr. Bush — Mr. President, I also ask to be reported as dissenting. Mr. Cochran — Mr. President, may I ask if the majority of this committee have signed the report? The President — The Chair is not informed. Mr. Cochran — I submit, Mr. President, that it is very important that we should know. This report is disclaimed by three members who say they have not seen it, and I submit that it is a pertinent question to ask the chairman of the committee whether the report has been approved by the majority of the committee. 350 REVISED RECORD. [Tuesday, The President — It is not pertinent to the motion now pending, made by Mr. Durfee, that the reading be dispensed with and that the amendment and report be printed and laid on the desks of the members. Mr. Cochran — I think, Mr. President, that my inquiry goes to the pertinency of the question whether we should order it printed or have it read. Mr. Root — Mr. President, if this delightful by-play, evidently arranged by these gentlemen Mr. Cochran — The gentleman is in error. Mr. Root — Evidently arranged Mr. Bowers — On which side? Mr. Root — By men who delight in calling themselves the minor- ity, and whose conduct will probably keep them in that happy category, is finished, and they have made sufficient display of anx- ious desire to hear or see a document which has, in all its substan- tial features, been in print and upon their files ever since the ninth day of August last, I move the previous question upon Mr. Durfee's motion. Mr. Holcomb — Mr. President, I ask that the ayes and noes be called. The Convention here adjourned until ten o'clock Tuesday morning. Tuesday Morning, August 28, 1894. The Constitutional Convention of the State of New York met in the Assembly Chamber, in the Capitol, at Albany, N. Y., August 28, 1894. President Choate called the Convention to order at 10 A. M. Prayer was offered by the Rev. John Mclsaac. Upon motion of Mr. O'Brien the reading of the minutes of the proceedings of yesterday was dispensed with. The President — The subject before the House at the time of the adjournment was Mr. Durfee's motion to print the amendment offered by the Committee on Legislative Organization, and dispense with the reading of the amendment. Mr. Dickey — Will the Chair allow me permission to ask to be excused from attendance Friday night and Saturday to enable me to attend to a matter of business which requires my personal attention? August 28.] CONSTITUTIONAL CONVENTION. 351 The President — Will Mr. Dickey make his motion a little later, after the pending question is disposed of? Mr. Bowers — Mr. President, I think we are entitled to have this proposed amendment read. What we wanted last night was to hear the amendment. The President — I think that it is the right of the gentlemen who desire it. It will now be read by the Secretary, the amendment as it is finally offered by the Committee on Legislative Organization. Mr. Holcomb — Mr. President, would it be in order to inquire of the chairman of the Committee on Legislative Organization whether that report had been adopted at a meeting of that committee or not. I understood several members of the minority last night to say that they had had no opportunity to see the report, and I should be pleased to have the information whether it had been adopted at a meeting of the committee. I think I have a right to have the ques- tion answered. The President — Yes. I do not think that the reading of the amendment should be displaced by that. Perhaps the chairman will be in by the time the reading is concluded. Mr. Holcomb — May I have the favor of one more word? The reason I ask for the information is this, that if that report has not been adopted at a meeting of the committee, then I have the right to object to its being received in this Convention. That is the rea- son for my question. I think it should be adopted by the committee itself before it can come out of the committee and come into this Convention. The President — The rule is that upon the request of any member an amendment that is offered may be read. We are proceeding under that rule. The Secretary will proceed. The Secretary proceeded to read the amendment offered by the Committee on Legislative Powers, entitled " Proposed constitu- tional amendment to amend article 3, relating to the apportionment of Senate and Assembly districts." Mr. Holcomb — Now, Mr. President, may I interrupt a moment? I see that the chairman of the committee is here, and I would like very much to have my question answered. The President — The reading of the amendment will not be inter- rupted unless the House so orders, for any questions. Mr. Holcomb — Then, Mr. President, I move that the reading of the report on the proposed amendment be interrupted until we can have an especial statement from the chairman of the committee as 352 REVISED RECORD. [Tuesday, to whether that amendment ever was considered in the committee before it came into this House. Mr. McMillan — Mr. President The President — One moment. Now, let the Chair state what he understands to be the situation. The report was read last night. The question pending when we adjourned was on having it printed. A motion had been made to dispense with the reading of this amendment. Its reading, however, was demanded by Mr. Bowers, and the Chair has ordered it to be read in pursuance of that request. Mr. Holcomb desires to interrupt the reading in order that he may catechise the chairman of the committee, and the Chair holds that that is not permissible, except on the order of the House. The question is on Mr. Holcomb's motion to suspend the reading of the amendment until Mr. Holcomb has satisfactory opportunity to cate- chise the chairman of the committee. Th'e Chairman put the question on the adoption of Mr. Holcomb's motion, and it was determined in the negative. The President — The Secretary will proceed with the reading of the amendment. Mr. Holcomb — Mr. President, before the reading has begun, I think I have the right to object to the use of the word " catechise," in respect to what I had to say, or what I did say. I have not the slightest intention to catechise the chairman of the committee or anybody else. I simply want to know whether this report was ever considered by that committee before it came thence into this House; and I have the right to that information, and I wish my objection to its being read here, or being considered by this Convention, unless we have that statement, to be entered upon the record. I ask that, sir. The President — Mr. Holcomb having now enjoyed his opportu- nity of objecting, the Secretary will proceed with the reading of this amendment. Mr. Holcomb — I protest again, Mr. President, against your remark. The President — The gentleman's protest will be entered upon the record, and the Secretary will proceed. The Secretary resumed the reading of the amendment. Mr. McMillan — Mr. President, I raise a question of order here. The motion last night, as I understand it, was to suspend the read- ing of the report, to order it printed, and upon that Mr. Root moved the previous question. That motion was before the House when August 28.] CONSTITUTIONAL CONVENTION. 353 we adjourned. It is a proceeding that it seems to me is properly before the House now. The Convention has the power to suspend by its action the reading of this report, and to order it printed ; and upon that I believe the previous question has been ordered. The President — Mr. Root's motion was not put. The Secre- tary will proceed with the reading, unless the House orders otherwise. Mr. McMillan — That motion was pending, Mr. President. He moved the previous question. That motion had not been put when the Convention adjourned. That is the question, it seems to me, that is before the Convention this morning, as to whether or not the main question should now be put, whether or not the reading should be suspended and the report ordered printed. Mr. Holcomb — And, Mr. President, on that I demanded the ayes and noes prior to adjournment. The President — The Secretary will proceed with the reading of the amendment. Mr. McMillan — I move you, sir, that the reading of this report be now suspended and that it be ordered printed and placed on the files; and upon that I move the previous question. Mr. Bowers — I raise the point of order, Mr. President, that the gentleman cannot interrupt the reading of a report which has been ordered by the Chair, to make any motion whatever. The President — The Chair so holds. The Secretary will con- tinue the reading. Mr. McMillan — Mr. President, I appeal from the decision of the Chair on that proposition. Mr. Holcomb — I move, Mr. President, to lay the appeal on the table. The President put the question on the motion of Mr. Holcomb, and it was determined in the affirmative. The Secretary resumed the reading of the amendment. Mr. Becker — Mr. President, after consultation with the minority members of the Committee on Legislative Organization, I have deemed it best to ask unanimous consent at this time to interrupt the reading, in order to move that this matter may be printed which has been reported by the committee, placed on the files of members, and that the consideration of this proposed amendment be made a special order for next Tuesday, a week from to-day. The President — Does any member object 23 354 REVISED RECORD. [Tuesday, Mr. Bowers — I am willing that the reading should be dispensed with. The President — Is unanimous consent given to dispense with the reading of the amendment? Mr. Holcomb — I object. The President — The Secretary will proceed. The Secretary concluded the reading of the report, after which it received a second reading by title, and was referred to the Com- mittee of the Whole. The President then put the question on Mr. Root's motion for the previous question, upon the motion previously made by Mr. Durfee, to have the report of this committee printed and laid upon the desks of members, and it was determined in the affirmative. Mr. Holcomb — Mr. President, what becomes of my request for the ayes and noes on Mr. Root's motion of last night that the Chair has just put, as to whether or not the main question should be put? I. withdraw it. I did not hear the Chair make any reference to it; I simply desired to know what became of it? Mr. Kerwin — Mr. President, inasmuch as the printing of this report has been called for, I would like to ask if, under the rule adopted on Friday, June eighth, there is any way in which we can force the printer to live up to that rule? The President — This is a different subject-matter, Mr. Kerwin. The question now is on whether this report of the Committee on Apportionment shall be printed. Mr. Kerwin — I should like to have a vote taken on my proposition. The President — Yes, but your suggestion is out of order and is not open to debate, the previous question having been ordered. The President then put the question on the motion of Mr. Durfee to have printed and laid upon the desks of members the report of the Committee on Legislative Organization, and it was determined in the affirmative. Mr. Becker — Mr. President, I now move that the consideration of the amendment proposed by the committee be made a special order for next Tuesday morning's session. Mr. Bowers — I offer as an amendment, Mr. President, provided the printed amendment proposed is put upon the desks of members to-morrow morning. The President — The Secretary tells me that it probably can be August 28.] CONSTITUTIONAL CONVENTION. 355 printed to-morrow morning, though it may not be until the after- noon. It is rather Mr. Bowers — If we do not receive the printed report until Thursday morning it will leave rather a short time The President — I think it will be received some time to-morrow, anyway. Mr. Bowers — Well, will the gentleman accept my amendment? Mr. Veeder — May I ask, Mr. President, what becomes of the minority report? The President — The minority report, if it ever appears, will, under the rules, be printed and laid upon the desks of members, and can be made the subject of amendment in Committee of the Whole. Mr. Veeder — Go into the same Committee of the Whole on the same special order as the report of the majority? The President — It will be upon the desks of members for any member to move any part of it by way of amendment Mr. Veeder — But does it go as an independent matter into the Committee of the Whole? The President — It does not go ; it is always there and every- where for such action as may be desired with regard to it. The question is on Mr. Becker's motion. Mr. Holcomb — I understand, Mr. President, that an order was made the other day to the effect that after the consideration of the cities proposition should have been concluded, it should be followed by the report of the Committee on Education. The President — That was so. Mr. Holcomb — So that I suppose, if the Convention be not through with the report of the Committee on Education by next Tuesday, this will have to wait until that is disposed of? The President — That is the opinion of the Chair. Mr. Holcomb — Is that the order of the Convention now? If not, and I be in order, I would move that the consideration of the report of the Committee on Legislative Organization come before the Convention after the Education Committee's report shall have been disposed of. The President — It will take that course. It is set down for Tues- day morning unless the educational matter shall have been previ- ously finished, which is not at all likely. The President then put the question on the motion of Mr. Becker, making the report of the Committee on Legislative Organization 356 REVISED RECORD. [Tuesday, a special order for Tuesday morning next, and it was determined in the affirmative by a two-thirds vote. Mr. Becker — Mr. President, I have a further report from this committee. The Secretary read a report from the Committee on Legislative Organization, to which was referred the proposed constitutional amendment, introduced by Mr. Hill (introductory No. 131), entitled, " To amend section 8, article 3, of the Constitution, relating to the eligibility of persons to a seat in the Legislature," in favor of the passage of a substitute thereto (printed No. 131 — 455). The President — The Secretary will read the substitute as recom- mended by the committee. The Secretary read the proposed substitute, after which the same received its second reading by title, and was referred to the Com- mittee of the Whole. Mr. Becker, from the Committee on Legislative Organization, to which was referred proposed constitutional amendment, intro- duced by Mr. Marks (introductory No. 16), entitled, " To amend section 6 of article 3, as to the pay of members of the Legislature," reported in favor of the passage of a substitute which accompanied the report (P. No. 16 — 456). The Secretary read the proposed substitute, which thereupon received its second reading by title, and was referred to the Com- mittee of the Whole. Mr. Morton — Mr. President, I desire to have my dissent to the report on this last proposition entered upon the Journal. The President — A communication from the Comptroller will be read by the Secretary. The Secretary read the following communication (No. 27, Doc. No. 66, in response to resolutions 17 and 181): STATE OF NEW YORK, COMPTROLLER'S OFFICE, ALBANY, August 24, 1894. To the Secretary of the Constitutional Convention: DEAR SIR. — In accordance with the resolution of June 21, 1894, I beg to submit to the Convention a list of property exempt from taxation in this State, as reported by the local assessors of the sev- eral cities and towns therein, with the exception of the town of Ulster, in Ulster county, the towns of Fayette and Varick, in Seneca August 28.] CONSTITUTIONAL CONVENTION. 357 county, and the city of Utica and towns of Ava, Bridgevvater, Forest- port, Verona and Westmoreland, iii Oneida county, which we have been unable to obtain. Yours respectfully, WM. J. MORGAN, Deputy Comptroller. The President — Referred to the Committee on State Finances and Taxation. Mr. Kellogg — I move that it be printed. The President — Mr. Kellogg moves that this communication with the table annexed to it, one sheet of figures, be printed. The President put the question on the motion of Mr. Kellogg, and it was determined in the affirmative. Mr. Hotchkiss — Mr. President, I ask to be excused from the close of this morning's session until Friday morning, on account of family reasons. The President put the question on excusing Mr. Hotchkiss, as requested, and he was so excused. Mr. Holcomb — Mr. President, I desire to ask the privilege of the floor for Hon. John Connolly, of New York, a former Member of Assembly. , The President put the question on the motion of Mr. Holcomb, and it was determined in the affirmative. Mr. Dickey — Mr. President, I will now renew my request to be excused, made earlier in the session, for Friday night and Saturday. The President put the question on excusing Mr. Dickey, as requested, and he was so excused. Mr. Durfee — Mr. President, I beg to request the favor of leave of absence for Wednesday evening and Thursday of this week. The President put the question on excusing Mr. Durfee, as requested, and he was so excused. The Convention thereupon resolved itself into Committee of the Whole, on consideration of general order No. 13, and Mr. I. S. Johnson resumed the chair. The Chairman — The House is now in Committee of the Whole on general order No. 13. The question is on the amendment offered by Mr. Peck. The Chairman put the question on the adoption of the amendment offered by Mr. Peck, and it was determined in the negative. 358 REVISED RECORD. [Tuesday, The Chairman — Are there any further amendments to this section? Mr. Jacobs — I offer an amendment. The Secretary read the amendment offered by Mr. Jacobs, in the language following: Add to section i the following: "In every city wherein exist by law commissions or boards composed of appointees of the mayor, the official terms of such appointees shall terminate with that of the mayor making the appointment, and the mayor of such cities may for cause remove any and all members of such com- missions or boards upon written charges and after an opportunity to be heard. The Governor, for- cause, and upon written charges, and after an opportunity to be heard, may remove the mayor of any city." The Chairman — That relates to the amendment to section i ? Mr. Jacobs — Yes, sir; that is what I propose to add to the end of it. Now, Mr. Chairman, I am informed by the title of this article — and otherwise I should not probably recognize the fact, that this measure is intended to provide home rule for cities. In the committee's report which accompanied its first emanation, and afterward was pulled in for repairs, there was quite a large portion of the report devoted to the lamentable condition existing in the city of New York; and it was very pointedly stated, and I think demon- strated, if there was any doubt upon the subject, that the city of New York was really a bureaucracy governed by commissions, whose terms of office have extended beyond the memory of man, and who can tell where they end? At least for a long term of years; no mayor of New York could put his hand upon any of these com- missions, either to remove them or change their personnel. They lap over him by a number of years. If that is the case, then the government of the city of New York is not in the hands of the people, nor even of the mayor, but, on the contrary, is in the hands of an almost endless bossism that does not seem to be responsible to any one; so that the people of New York city might unanimously elect a mayor for the purpose of reforming all these administrative boards, and who nevertheless would be unable to accomplish any- thing. They would simply elect a mayor who, by law or by the courtesy of his colleagues, if they saw fit to invite him, might attend the meetings of these boards, vote yes or no on questions before them, and that would be the end of his influence in the matter, while the other members of these several boards outvoted him. Now, that is not my idea of government; it is simply a great solemn pretense; and if the purpose be to provide home rule for the cities, August 28.] CONSTITUTIONAL CONVENTION. 359 let us then place the power back with the people who support the government, who pay for it, and who ought to constitute the gov- ernment. Now, let us look at the language of this report. I do not propose to go over all the details of the report, and I question no statement of fact contained in it. " In New York city," say the committee, " the power of local legislation has almost disap- peared from the frame work of the city government;" and then, after stating of how little effect the voice of the people is in their government, of how little consequence the authority of the mayor really is, the committee continue: "It is undoubtedly the truth, * * such government is not government by the people; it is not representative government. It is difficult to imagine a system based at all upon the elective principle where there is so little actual responsibility of the official to the people." Then the committee took very high ground; it became, indeed, a sort of an alarm bell — I believe that is a favorite expression of the chairman of the com- mittee, and I do not say that with any view of ridiculing or of commenting upon him — and told what this convention must do, rise up heroically, strike the evil and provide adequate and com- mensurate remedies. I read further from the report: " But whether the system is good or bad, your committee is convinced that the time has come — come to this Constitutional Convention — to do something to change it." Well, I have looked through all these several reports of the committee and I have not found that they propose a single change in the structure of the government of the city of New York. They have restricted the Legislature; they have tied the hands of most every one else, but they leave the people of the city of New York as powerless over their home government as they were when the committee first put out its hand to do some- thing, because of the great necessity for doing something. Now, my amendment provides that the people shall have some powers. They shall elect a mayor, and that mayor shall be a living force in munici- pal government; he shall have the power of appointment; he shall have the power of removal, and terms shall not overlap his term, but himself and his administration shall be a unity. He shall repre- sent the will of the people of the city that elects him, and the terms of office of those he shall appoint shall begin with his term; they shall assist in carrying out the policies that it is intended to carry out, and the terms of office of all shall terminate with the termina- tion of the mayor's term, so that an incoming mayor shall have some power and have some force, and so that something like repre- sentative government shall be restored to New York city and to every city, and that they may have popular government through 360 REVISED RECORD. [Tuesday, their elected representatives, he making the appointments to carry out the details of executive policy. I was and am surprised that the chairman of the committee, with his large experience, did not, in view of the language used by him, incorporate such a living force into this amendment. You will see at once that while this proposi- tion does not restore legislation to cities (and in this there may be cause for congratulation to the people of New York city) it does give some authority and power to the mayor; it puts the power back into the hands of the people, through the man they have chosen for the purpose of governing them, and it restores a system that will be responsive to the popular will, and will not be thwarted by hostile and obstructive boards of commissioners and by departments hostile to that popular will. Why, suppose the Republicans shall elect the next mayor of the city of New York — and I think that is undoubtedly probable — to do something to reform the adminis- tration of that city. His hands would be tied for the entire two years that he will hold the office. So far as these commissioners are concerned he will not be able to do anything except to answer to his name at roll-call at such commissions as he may attend. He will not be able to remove anybody; he will not be able to appoint anybody; he will not be able to enforce his will or the will of those that he was elected to enforce. Why, he could not even remove or interfere with this non-partisan police board; and the only reason, by the way, that I can conceive for its being called non- partisan, is that no one can ever tell whether it is addicted to virtue or to vice. Therefore, this proposition which I offer, as I said before, confers upon the mayor the power of removal, and I go no further than that. Now we propose to make the mayor a constitu- tional officer; we provide for that office in the fundamental law, and we say what the term shall be, that it shall be two years, and if it be a correct principle to remove the police commissioners through the Governor, because Governor Flower once removed a sheriff, it is also correct to place the same power in the hands of a Governor with respect to the mayor, and permit him to remove a mayor for gross misconduct in office, and thereby hold over such mayor the restraining provision that some day some Governor upon some charge may snap off his official head. Then this will be symmetri- cal. Now I do not like this separate election arrangement. I am fearful of the consequences; but if we are to have it, let us have it with as few dangers as possible, and if the scheme should go wrong there may be appeal then to the central government to save us from the hands of our friend, the chairman of this committee, who, with- August 28.] CONSTITUTIONAL CONVENTION. 361 out wicked intent on his own part, is unconsciously handing us over to misrule. Mr. Jesse Johnson — I would like to inquire whether the gen- tleman makes that an amendment to section i ? It seems to me it should be made an amendment to section '4. Mr. Jacobs — I will withdraw the amendment for the time being, but I cannot withdraw my speech. I will move it as an amendment to section 4 when we reach that section. Mr. Johnson — You can repeat your speech then. Mr. Jacobs — No, I won't repeat it. It is good as it stands. Mr. Johnson — Mr. Chairman, I move the three following amend- ments which I ask to have the Secretary read in their order. The Chairman — The Secretary will read the first amendment. The Secretary read the amendment as follows: Section i, line 2, strike out the words (i except to fill vacancies " after the word " election," and insert the words so struck out before the word " all," so that the line shall read, " except to fill vacancies, all elections of city officers." Mr. Johnson — Air. Chairman, if in order, I ask for a vote upon that question. It merely transposes some words and is the way it was originally drawn, but was changed in the copy. The Chairman put the question on the amendment, and it was determined in the affirmative. The Chairman — The Secretary will read the second amendment. The Secretary read the amendment as follows: Section i , line 3, strike out the word " or " between the words " inferior " and " local." Also strike out the word "jurisdiction," on lines 3 and 4, and insert in lieu thereof the word " courts." Mr. Johnson — That is to make the language as to local courts correspond with the language used in the judiciary article. The Chairman put the question on the amendment, and it was determined in the affirmative. The Chairman — The Secretary will read the third amendment. The Secretary read the third amendment as follows: Add at the end of section i, line n, page 2, the words " this sec- tion shall not apply to any judicial office except judges and justices of inferior and local courts." 362 REVISED RECORD. [Tuesday, Mr. Dean — Mr. Chairman, I am satisfied that this article ought to pass without any further consideration. It has received the sanc- tion of Mr. Johnson and of Mr. Becker and of the various other gentlemen who come under the designation of the " majority of the committee " without • any very definite idea of individuality. Why any one should question its propriety is beyond my compre- hension. It is true, of course, that it contains propositions which no man of practical common sense could indorse — The Chairman — The Chair is unable to see what the gentleman is talking to; what proposition? Mr. Dean — I am talking to this amendment. The Chairman — Your remarks are not germane to the question, as the Chair understands it. The question is on the amendment of Mr. Johnson. The Chairman put the question on Mr. Johnson's third amend- ment, and it was determined in the affirmative. Mr. Dean — Mr. Chairman, I move to strike out the first section. The Chairman — Mr. Dean moves to strike out the first section. Mr. Dean — Mr. Chairman, I am satisfied this article ought to pass without any further consideration. It has received the sanc- tion of Mr. Johnson and Mr. Becker and various other gentlemen, who come under the general designation of the " majority of the committee," without any very definite idea of individuality, and why should any one question its propriety? It is true, of course, that it contains propositions which no man of practical common sense would indorse, but it is necessary that the Constitution which we propose to the people should be symmetrical, and with the excep- tion of the judiciary article, which we may bring back and remodel by adding a couple of judges to be elected by cumulative or minority representation, this article is in complete harmony. What could be more symmetrical, for instance, than the mechanical, patent-rights article of last week, in conjunction with the bi-partisan election fad which was railroaded upon us yesterday morning in defiance of every rule of parliamentary law, and without even having been printed so that the members might know for what they were voting? What could be more euphonious than to couple with the compulsory voting proposition of Mr. Holls the referendum of Mr. Johnson? What could be more touchingly beautiful than the scheme to make an educational qualification for voters and the " common council of one or two bodies " which we find in this article? We have made the law of 1894, which has never been in operation, a constituent part of the fundamental law of the State, August 28.] CONSTITUTIONAL CONVENTION. 363 and it only remains now to introduce a few sections of Gilbert and Sullivan's " Mikado," with Mr. Becker in the title role gaily singing: " My object all sublime, I will achieve in time, To make the punishment fit the crime, The punishment fit the crime." To have a complete and harmonious whole, with that evidence of continuity of thought so desirable in an article of this kind. If the people of the future need any elaboration of the opera, we can fur- nish them Ko-Kole-Ko Cochran, who — " I'm sure would not be missed," and we could supplant him with Mr. Holls, the Poohbah of reform, and with Nankipoo Towns, who is said to sing with great effect " A Wandering Minstrel I." We should be willing, Mr. Chairman, to serve the public weal; we ought, for and in consideration of the ten dollars per day afforded us by the State, to be willing to amuse the people, and this ought not to be marred by any old-fashioned notions of principles, or any consideration of what belongs to government. I trust, therefore, that any gentlemen who have been laboring under the impression that they were discharging a solemn duty, and that they were called upon to regulate the affairs of State, will disabuse them- selves of this hallucination, and hereafter devote their energies to developing a harmonious instrument, to - " Make each prisoner pent, Unwilling represent, A source of innocent merriment. Of innocent merriment." (Laughter and applause.) Mr. Blake — It is greatly to be regretted, Mr. Chairman, that anything has occurred to mar the harmony that has hitherto charac- terized the deliberations and proceedings of this body. Until yester- day we had dwelt in peace together, as brethren should dwell, and any stranger entering this chamber would have fancied that all the gentlemen of this Convention had but one thought, and one mind, and one purpose, entirely to formulate provisions of the fun- damental law that would meet the approval of the people of this State. And gentlemen on both sides of this House (if I may use the word '' sides " for the occasion) have mingled very freely together, and they have learned to respect one another. They have, more than that, formed bonds of attachment and friendship which it is to be hoped even the occurrences of yesterday will not sever. 364 REVISED RECORD. They have learned to know that all the intelligence and all the patriotism, and all the virtue are not to be found in the ranks of one party. I shall not attempt, sir, and it would boot very little to attempt to fasten the blame for the occurrences that transpired here yesterday. Possibly there are gentlemen upon both sides of the House who are somewhat too impulsive or manifest too much readi- ness upon the slightest provocation, to resent and to give the taunt and indulge in innuendoes and philippics that will be sure to arouse resentment and tend to strife. Perhaps it would be better if we would quit posing and attutidinizing before the public and address ourselves to the questions before this body. Suppose we stopped for a while playing to the grand stand, and possibly there would be less unseemly and undignified wrangling, and the discussion would be placed upon a loftier plane than it is now conducted. Certainly, it was most ungracious and unkind in the gentleman from Catta- raugus (Mr. Vedder) to speak of the " howl of the Tammany tiger/' He knew well that that was unworthy this presence; that it would necessarily brand every gentleman who is here, who in everything that makes true manhood are, at least, his peers. Those unkind thrusts and offensive epithets are not calculated to produce har- mony or expedite the work of this Convention, or to promote the interests of the people. If we must differ, let us honorably differ, but let us not forget that we are gentlemen; that we are engaged in the discharge of the greatest and most sacred trust that the people can repose in its citizens. Now, sir, while I am on my feet (I am suffering somewhat from a cold, and I must husband my voice), I shall say a few words upon the main question. If there has been one question, Mr. Chairman, that more than another is calculated to engage the attention of this Convention, that has aroused deep and widespread interest through the entire length and breadth of the State, it is the question now under consideration, the question of home rule for our cities. More than that, it has commanded the attention of our people in every city throughout our State; it has occupied very largely the public mind; it has invited discussion, and it is of more vital concern to the citizens of our cities than any other subject. This feeling and this interest are reasonable and just, Mr. Chairman. They would have their ample justification in the natural instincts and impulses of the people who are inspired to obtain, and will, if possible, obtain that which they instinctively feel will contribute to their material prosperity and well being. But beyond that, and more than that, they rest their claims upon principles of justice and upon right, reasons that satisfy the consciences of the people that they have August 28.] CONSTITUTIONAL CONVENTION. 365 an inalienable right to that measure of self-government that is com- patible with the interests and the rights and the dignity of the larger governments of the State and nation, and any measure of self-gov- ernment, anything less than this, is a wrong and injustice. Any- thing less than this is in derogation of the rights that belong to every people. Now, I do not place the question upon that ground (I ask you, gentlemen — I cannot address this Convention with the hum of conversation surrounding me — I think I shall have some- thing worthy the ears and interest this Convention) — . The Chairman — Let there be order. Mr. Blake — I say I do not place the question upon the ground, sir, although it would be quite sufficient that such a measure of legislative and governmental control will necessarily and essentially contribute to the material and moral well being of municipal popu- lation, but I place it upon the loftier plane of justice and inalienable rights. These are its firm and sure foundations. Just so and in the same degree that all men are created free and equal. So, also, the aggregation of individuals constituting the cities are free and equal in natural rights and justice. This is so self-evident a truth, and especially among a free people, that if the contrary be proclaimed anywhere in this broad land of ours, it would meet with instant and universal condemnation. So, sir, it has come to pass that this truth has impressed itself upon the minds of our people, so that through- out the length and breadth of our State there is but one sentiment in the community all the while, and that is home rule for the cities of our State. Nowhere throughout this entire State, nowhere from Niagara to the sea, has a single dissenting voice been raised. No discordant note has been sounded to mar the universal harmony. All hearts are in sweet accord. All voices are blended in one grand refrain, and that refrain is none other than " home rule for the cities of our State." Along by the shores of our placid lakes upon the north, and echoing along the streams that wind their silvery way to the sea, and from every home and every hamlet nestling on our mountain heights, the sound has come, and every one has heard it. The farmer has heard it ; the mechanic on his bench; the laborer in his trench; the merchant in his store; the banker in his counting house: people in all the ranks and walks of life: in every field of industry the sound has come, and all men bow their heads in approval. To the earnest prayer coming up from the cities of our State, all men have uttered a profound Amen. Now, sir, since this is the disposition of our people, the wonder comes to me why this right has been so long postponed. At another time, but not now, it might be a subject of curious interest 366 REVISED RECORD. [Tuesday, to inquire what motives, what causes have influenced previous Con- ventions and Legislatures, year by year, to turn a deaf ear to the voice of the people demanding in thundering tones this right and this inalienable, self-evident right. But it boots little to press this inquiry here. Suffice it to say that many years back, so long that the " memory of man runneth not to the contrary," unless it be that of the illustrious nestor of this body, the distinguished gentleman who has given a half century of his life to the service of the State — I mean my very distinguished colleague, Governor Alvord — at any rate longer than the most of us can recollect, the cities of this State have been practically ruled from this Capitol hill, and many of them with great wrong and injustice. One of them, New York city, I know has suffered a great deal of oppression by reason of unjust legislation. No Roman dependency — I might say — under the empire ever felt the lash of Caesar's authority cut more deeply than have the people of the city of New York. They have felt the swish and play of the whip that was wielded in the legislative halls at Albany. The interests of that city have been bartered and sold. They have been made the football of party politics and party exi- gency. Our people at times ceased to hope to be able to throw off their oppressors, and the best and grandest citizenship of our city has cried out almost from the depths: "How long, O Lord, how long? " In their deep despair they have turned rather to their Maker than 'to the wise and incorruptible statesmen at Albany. But now the evil is known to all men. Now the public conscience has been aroused and stirred more than it ever has been before. But the friends of home rule must beware. It is true that the people demand this measure of reform and justice, and the time is ripe for reform and justice, but let us not delude ourselves. The danger is not past ; the danger is not at all past, and the friends of reform and home rule in this body have never so much need as now to be true, to be brave and to be watchful; to see to it that no man shall hold the " word of promise to the ear and break it to the hope." Let us not rejoice until we have cause to rejoice. Let us not rejoice until our aspi- pirations are realized; until the "hope deferred which has so often made the heart sick gives some promise of fulfillment." Would you accept for your meed that dead body without animation, without vitality, without the principle of life, for the strong, vigorous, lusty, glorious reality that alone will satisfy your rightful expectations. Where is the chairman of that committee? I want to address myself to him. I see him. Sir, I say to you we have asked you for bread and you have given us a stone. We have asked you for fish and you have given us a serpent. And yet we are told — and it is so written in August 28.] CONSTITUTIONAL CONVENTION. 367 the Manual and he does not deny it — that he hails from one of the twin cities by the sea. Beautiful, great, magnificent in all that makes for municipal power and prosperity and grandeur, across the narrow barrier that nature has seemed to interpose to separate two loving hearts, across which the people of those cities have erected a wondrous bond of union that is deemed one of the marvels of this age, so they have clasped hands, I might say, almost like wooing lovers :they have with soft eyes looked love to eyes that spoke again. They are like Parthenia and Ingomar of cities: " Two souls with but a single thought, Two hearts that beat as one." And to-day they yearn and they long as never before to rush into each other's arms and upon each other's breasts, there to rest in everlasting embrace and rapturous bliss. And yet you, sir, have lived for so many years in this proud city by the sea, the second in importance in this land, and you know so little of her wants and ours that you needs must play such pranks as these. What can be the motive of such extraordinary behavior on your part? I confess, sir, I know not. This only I know, that it is not the banquet to which we have been invited. It is not the banquet to which the people of New York and Brooklyn have been invited. It is some- thing worse than the play of " Hamlet " with the mad Prince left out. It is a cheat, a fraud, an imposture. It has not even the merit of dead sea fruit which at least is fair to the eye though it turns to ashes on the lips. That deceives the traveler, but this deceives nobody. It is an open and potent cheat. It is a fraud as clear as the sun in the zenith. It is born of deceit. DeTocqueville, I think it is, or Jefferson (I know not now which), has said that the world was too much governed, and I think that every student of history and the science of government will assent to that proposition. Sir, I think for my part that the old-fashioned New England town meet- ing furnished the best example of self-government, of popular government, of which we have any knowledge. I think that all men, if not agreed, should be agreed at least that every political and civil division of our State, no matter how small it may be, if it be a political entity, that is, every town, every city and every hamlet should have control, and full and complete control, of its own local concerns. That seems to me is a general statement of a principle which admits of no dispute and no question. Horace Greeley said, when the question of specie resumption was a live, burning issue with the people, that " the only way to resume is to resume." Now, the only way to grant home rule, is not to grant something spurious, 368 REVISED RECORD. [Tuesday, that will be labeled home rule, but to grant home rule itself, the genuine article. These words are not difficult of understanding. They are, it seems to me, easily comprehensible to the ordinary intelligence. If the chairman of this committee has not yet lost the faculty of blushing (I trust he has not), he says he has not, — then I say that he cannot stand in this presence and look this Convention in the face and make a declaration that this amendment is an ade- quate, just and proper measure of home rule; that it is such a measure of home rule that the cities of our State demand and have a right to expect. And, gentlemen, you cannot plead ignorance. Ample light has been shed upon the subject. They have had hear- ings from distinguished men who understand the subject and it has been the subject of debate in this body at great length. They have incubated this bill for months, and it cannot be said of this amend- ment as MacDuff said of himself, that it was from its mother's womb untimely ripped. The period of gestation has been suffi- ciently long to have begotten a healthy, strong and lusty child, and not this misshapen, disfigured abortion. The gentlemen knows what the city of New York wants, and, therefore, I assume, and I have a right to assume, that this is a deliberate attempt to betray the interests of the city. It is a sop to Cerberus. It gives but a half- hearted measure of the justice which the cities have a right to expect, and which I think, sir, they will not willingly consent to receive. Perhaps the gentleman desires to make his measure so obnoxious that the people perforce must reject it. Well, I tell you if that be your purpose the people of the cities have pretty long memories and they will know how to single out and visit their wrath upon the guilty men, those who have betrayed their trust. Sir, I am in favor of the largest possible decentralization of power. I believe that the largest possible grant and distribution of powers to the uttermost limits of our State which is consistent with the safety of the people. The solution of this question does not call for a discussion of the larger problems that engaged the attention of Jefferson and Hamilton. Let me content myself — I know that you are tired of discussing this amendment, and I sup- pose it was rather an unhappy thought for me to arise at this hour — but I desire to say in my judgment the more decentralization that you have, consistent with this qualification that I have pointed out, the more widespread and the more effectual will be the prac- tical application of home rule and the enjoyment of home rule by our people. Now, sir, just one word further and I shall have done for the present, though I might have much to say upon other sections of August 28.] CONSTITUTIONAL CONVENTION. 369 this amendment. I want to say this; I read the remarks of our illus- trious President this morning (I had not the pleasure of hearing him yesterday. It is always a pleasure to hear him, whether one agrees with him or not). I had the pleasure of reading his remarks to-day, and I want to say of the city of New York, that great metropolis of which I am proud to be a resident, that, say about it as you will, criticise it as you will, I challenge any man upon this floor to point me to a mayor of New York possibly since the foun- dation of that city, that could not be intrusted with all the interests of that great metropolis. Sir, the nation and State are proud of that metropolis. Our illustrious President himself thought it was a good place to come to. He and the distinguished leader of the opposition (Air. Root) and that other brave and liberal-minded champion of every good cause (Mr. Lauterbach), they can all say that it is a good city in which to live. It is mightier and grander to-day than ever was ancient Rome, with its Coliseum and splendid temples and marble palaces; prouder and grander than Thebes, with its hundred gates, or Babylon, with its hanging gardens, that were the glory of the olden world. In everything that makes for the advance of civilization and refinement; in everything that contrib- utes to the happiness, prosperity and well being of its population in every walk in life; in its unrivalled and splendid schools; in its vast treasury of art and science; in its magnificent charities for the relief of the suffering and distressed, that dot Manhattan Island as thickly as the stars that are strewn in the blue firmament over our head; in all that goes for the betterment of its population, New York city has no superior in municipalities. No, sir; it has no equal in all the western hemisphere. (Applause.) And, sirs, permit me to say to the gentleman from Cattaraugus (Mr. Vedder), although I do not wish to inject the word " politics " in this Convention any more than I can avoid — it is a popular word, but I will not inject politics — but permit me to give him a retort courteous and say that the Tammany tiger is at the helm, and should a New Yorker go abroad through the earth and visit all the cities thereof, and view with his own eyes their untold wonders, beauties and treasures, yet when he comes back, when he sails up our beautiful bay and views in the distance the statue of liberty enlightening the world, and catches a glimpse of the Brooklyn bridge, one of the marvels of the age, when he sees that great metropolis lying before him, teeming with industry, wealth and population, the first thought in his heart and the first words upon his lips are " after all there is but one New York." That, sir, is the universal sentiment. You 24 370 REVISED RECORD. [Tuesday, find that to be the sentiment, there is after all but one New York. And I ask you, gentlemen, to give that city of New York its full and just measure of home rule, that which will enable its people to make it what is destined to be the greatest city on the earth, and its population will bless you, and you and your children and your children's children will rejoice at its growth, at its prosperity, at its unrivaled splendor. (Applause.) The Chairman — The Chair rules that Mr. Dean's motion is not in order, as it amounts to a division of the question. The question is on the substitute offered by Mr. Hotchkiss. Mr. J. Johnson — Before that is put, I would like to make a verbal amendment, which has been suggested by Mr. Marshall, who has so much skill in drafting articles. In lines 5 and 9, on page 2, strike out the words " except as herein provided," and insert in place thereof the words " under existing laws." The Chairman put the question on the motion made by Mr. Johnson, and it was determined in the affirmative. The Chairman — The question is now on the substitute offered by Mr. Hotchkiss. The Chairman put the question on the motion of Mr. Hotchkiss, and it was determined in the negative. The Chairman — The Secretary will read the second section. Mr. J . Johnson — I move that the second section be passed. The principle was practically disposed of in the amendment adopted yesterday. Mr. Cochran — Then we will strike it out. The Chairman — Is there any amendment to the second section? Mr. Bowers — What has been done with the first section? The Chairman — Amendments have been proposed to the first section; the substitute has been defeated, and the first section stands. Mr. Bowers — At present. The Chairman — Yes; at present. Are there any amendments to the second section? Mr. Cochran — I move to strike out the second section. Mr. Veeder — What do I understand that the chairman of the committee desires to do with the second section. Withdraw it? The Chairman — Pass it. Mr. Johnson — I move that the second section be stricken out. August 28.] CONSTITUTIONAL CONVENTION. 371 Mr. Cochran — That was my motion. Mr. Veeder — I want to ask what you mean by the words " pass it? " Are we to consider - Mr. Root — Mr. Chairman, I rise to a point of order. It is that the motion to pass the resolution having been ruled out of order by the Chair, and withdrawn by the mover, the gentleman now upon the floor is not speaking to any question before the House. I desire a ruling upon my point of order. Mr. Yeeder — I desire to know this - Mr. Root — May I have a ruling on my point of order ? The Chairman — The point of order is well taken, and the Chair will not explain what the meaning of the words is. Mr. Veeder — In section 2, line 12, I move to strike ou the words " for the purpose of securing fair elections." Mr. J. Johnson — Mr. Chairman The Chairman — Mr. Veeder has the floor. Mr. Veeder — I do not understand the necessity for those words. What is the possible purpose of their being in the section? What is their purpose in this provision of organic law? Why should we declare a purpose of this kind in the Constitution? It says, " for the purpose of securing fair elections." It must be considered as an intimation that heretofore we have never had fair elections, but now desire to have fair elections. Is this my friend's invention, so that at this time we can tell the people of the State that hereafter we are determined to have fair elections? I submit that such an expression has no place in our Constitution. I, therefore, move to strike it out. Mr. J. Johnson — Mr. Chairman, I am opposed to any amend- ment to section 2, because I consider that it would be trifling with the time of this committee. The principle was adopted yesterday, and I hope this motion will be voted down, and that then I may be allowed to make a motion, if I can obtain the floor, to strike out section 2. The Chairman put the question on the motion of Mr. Veeder, and it was determined in the negative. Mr. Johnson — Now I move to strike out section 2. Mr. Cochran — What becomes of my motion to strike out that section? The Chairman — The motion is on Mr. Johnson's motion to strike out section 2. 372 REVISED RECORD. [Tuesday, The Chairman put the question on the motion of Mr. Johnson to strike out section 2, and it was determined in the affirmative. The Chairman — The Secretary will read section 3. The Secretary read as follows: " Section 3. No law shall be passed conferring the power to appoint the head of the police force of any city or any city officer, except the mayor, or the mayor, with the consent of the common council. The Governor may remove the official or officials or any of them constituting the head of the police force of any city for cause, upon charges preferred before him; a copy of such charges shall be served upon the official sought to be removed, and an opportunity afforded him to be heard in his defense. Upon such removal the Governor may appoint the successor of any official so removed, and said successor shall hold office until the expiration of the term of office of the mayor of said city holding office at the time such charges are preferred. Nothing in this section contained shall in any manner interfere with the power of the mayor or other officer to remove or appoint the head of police or other police officer, as such power is or may be conferred by law; but such power shall not extend to the removal of any person appointed by the Governor as herein provided." Mr. J. Johnson — Mr. Chairman, what I desire to say upon this section has already been said as well Mr. Bowers — I make the point of order that there is no motion before the Committee of the Whole. The Chairman — The point of order is well taken. Mr. J. Johnson — Mr. Chairman, I move that we agree to section 3. The Chairman — The Chair holds that motion out of order. Mr. J. Johnson — I have no desire to discuss it if you will simply pass it. Mr. Blake — Mr. Chairman, I offer an amendment. The Chairman — The Secretary will read it. The Secretary — Mr. Blake offers this amendment : " Section 3. No law shall be passed conferring the power to appoint the head of the police force in any city or any city officer, except the mayor, or the mayor, withe the consent of the common council. The mayor may remove the official or officials or any of them con- stituting the head of the police force of any city for cause, upon charges preferred before him; a copy of such charges shall be August 28.] CONSTITUTIONAL CONVENTION. 373 served upon the official or officials sought to be removed, and opportunity afforded him to be heard in his defense. Upon such removal the mayor may appoint the successor of any official or officials so removed, and such successor or successors shall hold office during the unexpired term of office of the officer so removed, and until their successor or successors shall be appointed." The Chairman — Do you offer that as a substitute or as an amendment? Mr. Blake — As a substitute. Mr. Holcomb — I sent an amendment to the Secretary's desk, and would be pleased to know the situation of that. I thought I had the eye of the Chairman. The Chairman — The Chair did not recognize the gentleman. Mr. Holcomb — When will my amendment be in order ? Can I reserve the right to present it immediately after Mr. Blake's? The Chairman — I suppose the gentleman can present an amend- ment at any time when it is proper. There is one amendment offered to section 3. The Chair holds that if Mr. Blake's proposi- tion is a substitute, that the section must be perfected before the substitute is put. Mr. Blake — Then I offer mine as an amendment. The Chairman — If it is an amendment and does not go to the entire section, it will be considered. Mr. Blake — It goes to the entire section. The Chairman — If it goes to the entire section, the Chair will hold it to be a substitute. Mr. Blake — I offer it as an amendment. The Chairman — As the Chair understands it, it goes to the entire section, and in fact strikes out the entire section as now pre- sented, and inserts what the gentleman moves as an amendment. Mr. Blake — I beg pardon. It strikes out only a portion. It is precisely like the first part of the section, and strikes out the last part of the section. It is, therefore, an amendment. The Chairman — The Chair will rule in a moment. Mr. Blake — I will say that it merely substitutes the word " mayor " for the " Governor " in the fore part of the section. The Chairman — The Chair will hold it to be an amendment, and Mr. Blake may proceed. Mr. Holcomb — Now, will Mr. Blake give way so that I may present my motion? 374 REVISED RECORD. [Tuesday, Mr. Blake — I do not wish to yield my rights. The Chairman — Unless it is an amendment to the amendment offered by Mr. Blake it is not in order at present. Mr. Blake — Now, Mr. Chairman, a few moments only, because I do not wish to trespass again upon your patience, for you were very kind when I addressed you before. I simply wish to call the attention of this Convention to the character of this amendment. It substitutes the word " mayor " for " Governor." It appears to me that if there be one provision in this amendment more obnox- ious and more pernicious than another, it is that which gives the right to the Governor to remove the head of the police department over the head of the mayor. Under what principle of home rule do you grant such a power to the Governor? Does it not violate the most essential principle of home rule, the sine qua non, without which there is no home rule, without which you have nothing left but the emasculated dead body, which, according to the gentleman from Cattaraugus, should be removed as speedily as possible from this chamber. Why should you give the Governor such power as is contemplated in this amendment? Does he know more of the needs and wants of the people of the cities than does the mayor himself ? Why, sir, let me ask you to suppose that the President of the United States were given by law the power to go over the head of the Governor of this State and remove the sheriff of Kings county, or of Greene county, or of Herkimer county, what would you think of that as a home rule measure? And yet it is justified by the principle of this bill. Let us not give to the Governor (a partisan Governor, if you please, because Governors may be parti- san), the power to come down to the city of New York, or to any other city, and just before election remove the head or the heads of the police department because, forsooth, they have a different political faith from him; and to do so for partisan and political ends. That is the power you propose to place in the hands of the Gover- nor. It is true he cannot remove such official except for cause; but he is himself made the sole judge of the cause, and you know very well that a politician will not have to go very far to find a cause when he wishes to decapitate the heads of his political enemies. No man knows so well as the mayor what is best for the people of the city. He is the best judge whether any head of a department has violated his duty, or has performed his duty, or has betrayed a trust. The mayor is responsible directly to the people of the city, and they would scrutinize his actions and would hold him to strict accountability if he makes an error or mistake. But the people of the city are not the entire constituency of the government. They August 28.] CONSTITUTIONAL CONVENTION. 375 only form a small part of his constituency. What do the people of Schoharie county know or care for the Governor's action in remov- ing the head of the police department of Syracuse, Buffalo or Brooklyn? What do they know whether such removal is just or otherwise ? Let us, therefore, not give to the Governor any such power as this. I appeal to the gentlemen upon the other side of the Convention. Sirs, let me say a word to you, and I am done. Especi- ally do I appeal to you in respect to your action upon this amend- ment. We have relied upon your intelligence and upon your fairness. You have never failed on important questions to show your inde- pendence and your freedom of thought and action. Many times since we commenced our labors here we have seen evidence and proof of your independence. You have the leadership. In the main it has been just, wise and patriotic. Leaderships are good sometimes, but on important questions you have shown your inde- pendence of leaderships. Upon these noble characteristics of American manhood we of the cities rely. Some of you are from cities, and we rely upon you. We base our hopes upon that reliance. That is our sole trust. Upon this side of the chamber, to you of the Republican faith, I say that there has been less restraint. There has been no restraint. You have shown marked exhibitions of independence and freedom of action. I do not know whether it is so or otherwise, but we find no pressure of leadership. There must be some pressure, I suppose, and some of you gentlemen on the other side can answer that question better than I. At any rate, we have not felt the pressure, for we have had no leader. Every man is a sovereign on this side of the chamber, and has voted, since the eighth of May last, as best agreed with his judgment and con- science. You have observed this. You have seen evidences of it. Therefore, you have always had Democratic support for every just and wise measure you offered which seemed to be in the interest of the people. May we not, in turn, count upon your sense of fair- ness and justice? We do count upon it, gentlemen. We ask you Republicans who come from cities, and we ask you Republicans who come from the interior to do justice to the great municipalities of this great State. If you give this power to the Governor you know that you will stab home rule to the death. You know that you will kill the living principle of home rule. I might say much more, but will not abuse your patience and good will. I make this last appeal to those who differ with me in their political belief, to do justice to the great cities of Brooklyn, New York, Buffalo, Syracuse and other cities of this State. Do us justice. If yon are 376 REVISED RECORD. [Tuesday, willing to give us home rule, then give us the full measure of home rule, that our people may thank you for it and bless you. Mr. Francis — Mr. Chairman, I desire to discuss this question calmly and dispassionately, and so I begin by asking the question: home rule; what is it? We have a republican form of government, but it must have its definitions and limitations. Safety to the State, protection for the people must be assured to answer the purpose of a just government.' Sovereignty, where is it lodged? If it is applied in an absorbent manner to every locality, town, county and city, so that each may exercise the powers of government independently of relationship to the others, to the State at large, or to the Union itself, we have a dissipated government, the organization of towns, counties and cities within States, and States within the Union absolutely without any responsible head, each exercising its powers without limitation for itself alone. Such conditions every intelligent mind, every stu- dent of political philosophy may see would lead to confusion, to anarchy, to the dissolution of all controlling forces that constitute the guarantee of common civilization. Such divergent and multi- plied sovereignty, each equipped with powers to act for itself with- out regard to relationship with others, would inevitably destroy all adequate government of the people for the people ; it would involve us in a revolutionary chaos. There must be a recognized sovereign power in all essential matters relating to the protection of liberty, the rights of property and the immunities of citizenship to assure safety to the State, safety to the republic, safety for our common civilization. We cannot have a government split to pieces in hun- dreds of parts; there must be a supreme magnetic force to assure unity of the whole when emergencies require united action. This we may define as a supreme sovereignty; not supreme in the sense of encroaching upon local authorities in matters of strictly local nature, but supreme in the paramount object of maintaining the rights of the people and the just privileges of citizenship. If we are to carry the idea of home rule so far respecting the government of cities as to abrogate therein the sovereignty of the State, we plant , ourselves upon the ground of the old southern heresy of State inde- pendence of federal authority. We cannot afford to concede to cities, towns or counties entire release, full freclom from State control in matters wherein are concerned life, liberty, good order and whole- some republican government. This would be to set up supreme pow- ers within the State, the same as was attempted, on a larger scale, to enforce by rebellion this principle as applicable to the southern States of this Union. Carried out in practice as insisted upon by August 28.] CONSTITUTIONAL CONVENTION. 377 some advocates of so-called home rule, it would involve the State in perplexities, dangers and probable future calamities. Why, all these sections or parts of the body politic derive their powers from the State. The policy of our government from the beginning has been to maintain the sovereignty of the State, while according limited powers, with a view of local conveniences and efficiency, to the subdivisions thereof — the cities, villages, towns and counties. To quote the simile of the late Judge Parker in his discussion of an important question before the Constitutional Convention of 1867 and 1868: " XP11 cannot sever these interests. If the city of New York is the great heart and center of the commercial body, these limbs which spread out in each direction cannot be severed without sapping its strength and perhaps taking life. The streams of com- merce that run into this central heart like the veins of the system, we must remember, are counterbalanced by corresponding arterial returns of commerce to the country itself. You cannot sever a limb at any point without affecting the vitality of the whole system." If this be true as applicable to our great commercial metropolis, how much more is it a dominating principle when applied to the State at large? The power that gives life to the whole has created all, and has given it head, heart and limbs. We can have no proper or safe home rule for our cities unless these cities are placed in cor- respondence with the State, receiving of its life blood, as the limbs of the body obtain vitality from the ebb and flow of the life-giving element from the heart. We must have honest elections guaranteed by the State; we must have a police power held to the strictest accountability to the State as a basis, the very foundation for home rule. Limitations may not be so exacting in regard to other departments connected with municipal government; and still, in all things, I would have a reserve power in behalf of the State, so that in cases of monstrous abuse or usurpation, the brakes may be applied by State forces. This has been provided for in another section of the report of the majority of the Committee on Cities, so that a three-fifths vote of each House of the Legislature, with the approval of the Governor, may be interposed as an authoritative agency to baffle and defeat notoriously dangerous and unjust local legislation. Held within legitimate limits, I would have home rule accorded to our cities in the fullest practicable measure. But in the matter of police, it is absolutely necessary that this power shall be held to strictest accountability to the State. In section 3, now under consideration, it is seen that while the appointment of the 378 REVISED RECORD. [Tuesday, head of the police force is conceded to the mayor, or the mayor with the consent of the common council, State authority is inter- posed as a remedy for maladministration of this all-important department of municipal government. The Governor may remove the officials, or any of them, constituting the head of the police force, for cause, " upon charges preferred by him; but such official •is to be accorded the opportunity for a full hearing and defense." This for the protection of the people against gross abuses and out- rageous excesses, such as have occurred under corrupt partisan control. Then upon such removal, the Governor may appoint the successor of the official removed, " and such successor shaty hold office until the expiration of the term of office of the mayor of such city holding office at the time such charges are preferred." To this extent, and no further, State sovereignty is interposed to protect the citizens of cities in the enjoyment of vital rights. It appears to me there ought to be no partisanship, really no difference of opinion among fair-minded men, as to the propriety, the justice, nay, the necessity, of this interposition of State authority. The State really divides authority with the municipality, but still holds the latter under check. And in view of what has occurred, what has been demonstrated by irrefragable proof of police abuses in New York city and elsewhere, this accountability seems absolutely necessary. Many would prefer a larger and more extended police power under the supreme direction of the State; but a majority of our committee, with a view of avoiding just objections, has con- ceded to municipalities the appointing power right in the line of home rule, only exacting responsibility to the State in what seems to be the fair manner prescribed in this section. To do less than this would be to betray the law-abiding and order-loving people of cities, and to relegate them to the mercy of pernicious partisan- ship, which, as we know, too often wields the power of the dan- gerous classes, and gives to the slums preferment and ascendency over decent citizenship. I need not here refer to recent revelations in New York city, nor evidence, so fresh in the public mind, afforded by the city of Troy. But I may say that when a police power becomes so debased, if not criminal in intent and practice, that when a great crime, the crime of a deliberate murder, is perpetrated at a polling place on election day, and it fails to do its duty, it is time it was brought unrelentingly to book. Bear in mind in the case under consideration the police and police officers were so distrusted by the prosecution that none of them was called as a witness, nor did any of them volunteer to aid in bringing the guilty to punishment. This of itself tells its own story, rendered August 28.] CONSTITUTIONAL CONVENTION. 379 all the more impressive from the fact that the prosecution was intrusted to reputable and able lawyers wrho belong to the same party with those recalcitrant officials, but who could not be made agencies for the condonement of abhorent crime. And so I say the State must exact accountability in cases of police maladministration; and here it is provided for in a straightforward, non-partisan way. It is not a supposable case that the Governor of this State is for all time to be of one party; we have seen that in this respect there are changes from one to the other, though for many years past we have had only Democratic Governors. But of whatever party the Governor may be, the deterrent influence on police excesses and crime would be great and wholesome with this right of appeal on the part of a mis-governed people to the chief magistrate of the State for relief when the law is violated and justice trampled under foot by the power appointed to execute law and enforce justice. We are only asking that which is now- accorded with reference to the sheriff (who is himself in a large sense a police officer), the district-attorney, clerk and treasurer of a county. The Governor removing any of these officials on proven charges fills the vacancy created for the period intervening until the next general election. In the section before us it is provided that the chief magistrate shall, in case of a removal of a police official, fill the vacancy for the unexpired term of the mayor upon whose authority and action the convicted official was appointed, or has been retained in service, so practically delegating to the Governor a similar authority to that exercised by him in the case of the county officers named. The only difference is that vacancies with reference to the latter are filled by him until the people can vote upon the choice of suc- cessors; while in the case of the police official, as he receives his appointment from the mayor, the Governor fills the vacancy for the unexpired term of that chief officer of the city. Now if the Gov- ernor was simply authorized to remove the offending official, and not empowered to fill the vacancy as described, the mayor could re-appoint the removed officer or select in his place one equally offensive, and so there could be no reform, no deterrent influence in the premises. The removal and appointment by the Governor must go together to secure the desired results. Separated, with the mayor's power retained to fill the vacancy at once, all may see the whole business will be reduced to a farce. Usurping and criminal police authority must be made to feel from the absolute condi- tions of their situation that imminent danger confronts them of removal and disgrace for their misdeeds. This is the stronghold 380 REVISED RECORD. [Tuesday, of the State, as the section defines, for the assertion of its sov- ereign power to protect the people of cities from such outrages and crime as have so recently stained our municipal records; to protect the people from intolerable misrule, and in the enjoyment of "life, liberty and the pursuit of happiness." So much as this we require, nay, demand, as the very basis of home rule. With- out it, home rule is a snare and a delusion, an opening way to anarchy and chaos; with it, we may appeal to a Governor, whether he be a Democrat or Republican, for justice, for self-preservation. If we cannot have this, I, for one — and there are others whose opin- ions accord with my own — would vote to continue existing con- ditions, and to give the State, through its Legislature, all the authority it now exercises. We want home rule with safety. If safety, under the proposed changes, cannot be accorded us, we would have the home rule as it exists to-day, with no enlargement of powers to municipalities; least of all the conferring of power to appoint the police force with liberty to exercise the authority as dictated by partisan bosses in utter violation of law. Good citi- zenship can never endure this. Much has been said against State commissions, but we know that those organized under municipal authorities and unrestrained by the power of the State, as with police organization, are infinitely the more dangerous. So I repeat; a fair measure of home rule I would have with appropriate checks and balances for the protection of the people of cities. But to give unrestrained control would prove an unmixed calamity. We must have fair and honest elections, with a police authority subject to State responsibility to give to home rule harmony, unification and success. We must not have a recognition of the "pestilent heresy of State rights as applicable to the cities — the political ulcer of the republic — which, after festering for seventy years, ripened into secession, and burst into open rebellion, which cost us four years of bloody civil war to extirpate." This I said in the expression of my views in the Convention of 1867 and 1868. I repeat the sentiment now with all the solemnity of earnest and confirmed conviction, and say to you, my fellow- delegates, that we must have this power of the State to restrain municipal and police excesses, or unutterable calamities will ensue. Our cities will be like the ancient cities, not a part of the State, but each city a whole State, and the agricultural districts their trib- utaries and subjects. Let us do what we can and all we can to relieve the Legislature from the congestion of municipal legis- lation, relegating what may safely be accorded to the cities for their disposition as local interests may seem to demand. But August 28.] CONSTITUTIONAL CONVENTION. 381 still let us build upon the broad foundation of that sovereignty which grants these just rights of home rule without danger to the integrity of the State. To reiterate in a few words the deliberate opinion expressed twen- ty-seven years ago, I say to you, gentlemen of the Convention, " it is a marvel to me in view of the record of the past, the exigencies of the present, and the necessities of the future, that any good citi- zen, whatever his party predilections, can be found to favor a sys- tem of municipal police control by which the safety of vital interests would be constantly imperiled, and the worst criminals be encour- aged to ply their vocations with the assurance of old-time immu- nity from punishment. And here I may say, so far as we have pro- ceeded in that direction, the way has been opened for crime and criminals, and through police toleration to bring upon us the most fearful evils that can menace the life and liberty of any people." I add to the argument I have endeavored briefly to present, a suggestive quotation from the latest issue of Harper's Weekly, a journal that has heretofore given earnest support to the candi- dates, the national candidates especially, of the Democratic party. This ably conducted paper approves most heartily the proposed amendment of the Constitution as reported by the majority of our committee for the government of cities. On this section relative to police organization, Harper's Weekly says: " The section of the amendment concerning the police, giving the Governor power "to remove the commissioners, superintend- ent, or other head of the police force of any city for cause, upon charges preferred before him," has called forth some hot contests. We think a constitutional provision of this kind very desirable. The exercise of the police power in our large cities should not be considered as a strictly and exclusively municipal function. Not only the inhabitants of New York city, but the people of the State are strongly interested in the question whether the police in our great metropolis or in the other large cities is, in point of char- acter and efficiency, what it should be. A good or bad police in the great centers of business is so serious a concern to the people of the whole State that the correction of evils in its composition or conduct should not be left exclusively to the sweet will of the local politicians It can well be imagined that the police force of a city, serving as a political machine to the politicians in power, may find protection for the most outrageous misconduct of its members at the hands of its patrons in possession of the municipal offices. In such a case there should certainly be a remedy outside of that municipal government, and that remedy should be pro- 382 REVISED RECORD. [Tuesday, videcl for in the manner proposed in the amendment, or in some other way equally effective." Mr. Bush — Mr. Chairman, I am not a representative from any city, in this Convention; yet, nevertheless, it seems to me that this proposed amendment is of such great importance, and the fact that it is being looked upon here as entirely a matter for State rather than municipal action, the control of cities, that I venture to express a few words in reference to the matter. This proposed amend- ment is entitled, "An act to provide home rule for cities," but I insist, Mr. Chairman, that the title should be amended so as to read " An act to take away from cities the little home rule they now have." (Applause.) Mr. Chairman, if the delegates in this Con- vention see fit to adopt this article, and it should be adopted by the people, a man might as well live in the wilds of St. Lawrence county as in the city of New York, or in any other great city, so far as having anything to say with reference to municipal control. It does seem to me that the attitude of the members of this Conven- tion in discussing city affairs and city government is entirely unre- publican and undemocratic. It would seem that every member of this Convention who has discussed this matter on the side of the majority, secretly and at heart, does not believe in the control of majorities or in popular government. If that is true, why not come out openly and say the people cannot be trusted, and it is wrong to place any power in their hands ; that they do not know what they do; that the few only are wise and intelligent, and that the many are, of necessity, ignorant. That was the theory of Greece in ancient times, that was the theory of Grecian philosophers, that of necessity only the few can be wise, that the many must of neces- sity be ignorant. That seems to be the sentiment that prevails in this Convention now. From the first day I came into this Con- vention I have heard nothing but distrust of the Legislature, dis- trust of local and municipal boards, hints that the people are cor- rupt, that corrupt politicians govern the people, that the people do not know how to vote. One man proposes that they be com- pelled to vote; another proposes that elections be separated, so that in case a man has to vote on the tariff question he will not be so entirely benighted as to vote his clean party ticket, assuming all the while if he voted his party ticket he would be doing something radi- cally wrong; that the great parties of this State have not within their own bodies men of sufficient intelligence and integrity to govern the localities in which they reside; that elections must be separated and divorced from each other; that the dilettante reformers who live in these great cities, when they come up to the polls to August 28.] CONSTITUTIONAL CONVENTION. 383 vote for a candidate for mayor, must not be disturbed by the ques- tion of whether tariff protection or free trade is also to be decided. That seems to me radically wrong, and that the theory of this Con- vention is wrong; that republican government is on trial by the delegates in this Convention, at least in principle. I do not care who makes the laws for the government of a municipality so long as I have the enforcement of them. It does not matter what the laws are so long as some particular individual can enforce them or not enforce them as he sees fit. Where is the autonomy of any municipality of this State if the Governor of the State of New York at any moment may remove the officers who execute the laws? Why is it that, in the hundred years of government in the great State of New York, nobody has heretofore thought that it was nec- essary to give the Governor of that State not only the power to remove corrupt officials, but the power to fill vacancies? It is a nice scheme of government which the majority are bringing forth in this Convention. First, by one of the most iniquitous gerry- manders that was ever placed on the statute books they propose to control absolutely the Legislature of the State of New York; second, they propose to give the Governor power to remove at will the police official in any city, and to fill the appointment. Now, it is true that it is alleged that that may be done only upon charges, but just let me show you the practical working of this beautiful scheme. And I ask any gentleman in this Convention if there is a city in the State, if there ever has been a city in the State or ever will be a city in the State where, for instance, a disorderly house will not exist. Now, then, permitting the existence of any such thing as that in cities would be cause for removal on the part of any Governor, who wanted to obtain control of the police force in any city. He is the sole judge of whether or not the cause is sufficient for removal. There is nothing but the public conscience back of him to deter him, and we know how little that interferes with any politician when his party interests are at stake. Now. if a Governor cannot only remove the head of the police depart- ment but fill the vacancy and tie the hands of the mayor so that the mayor cannot remove that official, so that even the Legisla- ture cannot remove him, then I ask what is left of home rule for any city in this State? It is true that you provide here that in passing general laws for cities, they shall not become laws unless three-fifths of the Legislature approve. Now, what does that amount to? Any party having a majority in the Legislature can at any time get a three-fifths vote if they want it. All they have to do is to institute contests enough to make up three-fifths in the 384 REVISED RECORD. [Tuesday, start of every session of the Legislature, and the members whose seats are contested must vote with them or else they are unseated and their antagonists put in their place, and it is very easy to get a three-fifths majority, particularly when the great and wealthy city of New York with its twenty to thirty millions of patronage is the prey which they seek. I have been in this Legislature four years in succession, and I have seen men coming here from the remote rural districts into this body and passing laws, and pro- posing laws for the government of the city of New York with the express purpose and the only purpose of going down to the heads of departments there and saying: " I will press this bill unless you give me such and such appointments." Why, the city of New York is full of appointments of countrymen in the various departments. They simply levy blackmail upon the depart- ments of the city, and I know whereof I speak. I have been in the Legislature a good many years and have seen it often. That is bad enough, but you must give the Governor power to remove the police and power to pass laws by a three-fifths vote. You say you make general laws for the government of the State, but your three- fifths can entirely override it. Where you can find any home rule in this bill I do not know. I do not think that there is a man in this Convention who will vote from his conscience, who will vote for this article and say to the resident of any city : " We have given you home rule." On the contrary, if his conscience direct him at all, he will have to say that city government, local city government is a dead failure in the State of New York. We have said so in the Convention, and we will hereafter govern you from Albany. Mr. Chairman, I detest and despise hypocrisy. I despise this pro- fessed attempt to give the cities home rule, when in reality you are taking away from them every vestige of home rule that they ever had. I want the delegates to understand first what they are voting for. I want the people of New York to see just exactly what we propose to give them. Mr. Smith — Mr. Chairman, it is not my purpose to engage the attention of the Convention for any considerable length of time, but I will ask the Convention to be consistent in making a Constitution. Consistency is a jewel. And now what does this third section propose to do? Does it propose to establish a system, built upon consistency? Or does it propose to interject irregu- larity and to make a system that has no logic in it? If this third section had provided that the Governor might remove the mayor of the city of New York, or of any city, for want of the proper administration of his office, the mayor being the official who August 28.] CONSTITUTIONAL CONVENTION. 385 appoints the heads of police, that might have been said to be con- sistent. It would have been the exercise of authority from above, downward in regular order, like following the steps of a stairs from the top to the bottom. But when the mayor is clothed with author- ity to appoint the police board, and the police board with authority to appoint the superintendent and the sergeants and the patrolmen, then to be consistent, if you are determined to confer authority upon the Governor to interfere at all, it should be first to remove the mayor and appoint another, and then for the mayor to remove the police board, and the police board the superintendent, and so on down to the bottom of the ladder. The learned gentleman from Rensselaer (Mr. Francis), has referred to the authority of the Gov- ernor to remove the sheriff and appoint another. I was glad, indeed, that he mentioned that circumstance, because it gives me the oppor- tunity to show his inconsistency. This, in principle, is not like authority to remove the sheriff by the Governor, but it is like authority to remove a deputy sheriff by the Governor, and to appoint another deputy or an under-sheriff, leaving the sheriff in office. There would be no consistency in that. You may take the entire system of government, not only in this State but in the United States, and you will not find anywhere in operation a system by which the highest officer leaves an intermediate officer and goes down and removes the lowest officer. Take the Secretary of the Treasury. He appoints something like five or six thousand sub- ordinates. Is there a case, or could there be a case where the Presi- dent would intervene and remove a treasury agent appointed by the Secretary of the Treasury? And yet the United States system is one, so far as relates to the executive department, that is all under the control of the President. Now, you may take all the details of government in this State, or in the country, I care not what or where, and you will not find this want of consistency anywhere. Now, Mr. Chairman, I wish to say in all kindness to every dele- gate in this Convention two or three words of a fundamental charac- ter in respect to the way we should act, in respect to the way that we should form opinions and act upon them. One of the first great rules that was given to me for the guidance of my life I will now give to this Convention, and that is this: that every opinion taken up without investigation and held without knowledge is mere prejudice, and should be guarded against with all the diligence in our power. Why this prejudice against the city of New York? Why is it that gentlemen are disposed to organize into law preju- dices against the city of New York? Instead of principles, you are 386 REVISED RECORD. [Tuesday, disposed to organize prejudices into the law, and the highest law of the State. Why, the truth is that ever since I was old enough to read anything, I have heard the Democracy of New York denounced because they governed the city. Those denunciations have always been largely the result of prejudice. They were not specifications of evil-doing, but they were general denunciations, and those denunciations, originating in that way, without specifica- tion, have resulted in a vast prejudice. Those prejudices have been molded into opinions, and the opinions that are now gov- erning this Convention are largely molded from the prejudices of the past. Is that the way to make a Constitution? Suppose these denunciations of New York had never been heard, and you were to meet here, free from all these prejudices, then how would you proceed to make this Constitution? Why, gentlemen, would say, following up the argument of the honorable gentlemen from Rens- selaer (Mr. Francis), just following out the very theory that you are designing to carry into effect, " we want the Governor to have a supervising control over the city of New York." How shall we put that into practice? We will give the Governor power to remove the mayor of the city of New York for any dereliction of duty on his part, and we will give the mayor of the city of New York power to remove subordinates for dereliction of duty on their part, and so on down, and that would be logical and that would be consistent. But would a Convention assembled without prejudice and without any party or political design construct a system that has no harmony in it, and that in fact accomplishes just the reverse of what its title professes to accomplish? I appeal to you gen- tlemen to do whatever you are determined to do in a logical and systematic way. If we in New York are to be executed, if we are to be oppressed, let it be done with order and consistency; let it be a symmetrical system. Everything that we observe when we look out on the face of nature is done by a system of order. Nature itself is a great order with manifestations of force; appearances of force that always conform to the order; no breaks, no want of logic, but consistent and beautiful and symmetrical. Do what you do, no matter how bad it is, in a logical and orderly way, and not by any irregular bounds like this. (Applause.) Mr. Nicoll — Mr. Chairman, I consider it very unfortunate that the principle contained in section 3 of the proposed amendment should have found its way into any measure which, in its title at least, is designed to give home rule to cities. The effect of incor- porating this particular section in this alleged home rule measure is to give a species of better local self-government in one hand. August 28.] CONSTITUTIONAL CONVENTION. 387 and to invade with the other every right of local self-government which the people of this State now enjoy. It strikes a deliberate blow at what we call home rule in cities. I am opposed to it, Mr. Chairman, first, because it is reactionary; second, because it will be demoralizing to the cities and contribute to disturb their good order; and third, because it is unjustified, unjustifiable, and unnecessary, from anything that we know by our experience with cities. Now, I say it is reactionary, by which I mean that it is a recur- rence in this day and generation to a system of governing the police of cities which' in this State we threw away twenty years ago. Every one familiar with this subject knows that prior to the year 1857, the police in cities, heads of departments were appointed by the mayor, or the mayor and the recorder, or in New York, if I recollect right, by the mayor and recorder and the city judge. Complaint jvas made that the police force was inefficient, that riots took place, and on that account, that system of appointing by the mayors and recorders and city judges was discarded, and instead thereof we erected in this State the proceeding of appointing police through commissions existing under acts of the Legislature. In the year 1857, we divided the State into what were known as dis- tricts, the cities of Xew York and Brooklyn being the metropolitan district; commissioners were appointed under an act of the Legis- lature and those commissioners appointed the police officers of the city. That system went on from 1857 down to about 1873, and then it was discarded, because the effect of it was that the mayors of cities who, by their charters, were charged with the enforcement of the law and the preservation of order in their respective local- ities were unable to accomplish those objects while the police force was controlled by another and different and independent power. The effect was seen at once in the great cities of the State. Disorder reigned, crime was more frequent. The police force, not obedient to the chief magistrates of cities, looking only to the commissioners who controlled them, were indifferent to his mandates. It was felt to be unjust that the millions of dollars raised from . the taxpayers of the city for the support of their police force should be expended by officers not elected or appointed by the cities themselves; and as a result of that feeling, finally about twenty years ago the commissioners were wiped out and there was substituted in place thereof the present system, which is this: the mayor is charged with the appointment of the police commissioners, but the Governor is empowered to remove the mayor, and it is now competent for the Governor in this State to 388 REVISED RECORD. [Tuesday, remove the mayor of any city in this State, upon charges; in fact, upon charges that he neglected to remove persons who were improperly exercising functions of police commissioners. And that is the system, the system of removing the head of the domestic cor- poration and not one of its subordinates, which has existed in this State for the past twenty years. It is a system which is founded upon a long and hard experience. It is a system which experience has taught us is necessary to the good government of cities, because under this system, and under it alone, are the police of the cities obedient 'to the mayor and diligent to execute his mandates. And what is now proposed? It is deliberately proposed, after twenty years, to go back to the system which we discarded twenty years ago; and in fact to take the fifteen thousand men, or more, who are now police officers in cities, and put them immediately under the power of the chief executive of the State, without any control of the mayor over them at all. I say it is reactionary; I say it is dangerous, because how can you expect the mayor of a city to be responsible for its good order, for the enforcement of its laws, and for the preservation of peace and quiet, if the police commissioners and the police officers shall say to him when he issues an order, " we are not responsible to you ; ours is a different and a higher authority? The Governor has the power to remove our superior officers. We take our mandates, not from the chief magistrate of the city, but from some other source." I assure you, gentlemen, from long experience in these matters, that nothing would be more dangerous to the preservation of life and property and the good order of our cities than the recurrence in these latter days to a discarded principle of administration. Why not put it into the Con- stitution, if it is desired, that the Governor shall have the power to remove the mayor of any city; that he shall have the power to remove the head of the domestic corporation and not one of its subordinates? Isn't that all that is necessary? How quickly would the mayor of a city act upon a suggestion from the Governor, if in the Constitution was lodged the power in the Governor to remove the mayor for cause. Now, I say that it is not only reactionary, not only demoralizing, destructive of good order in the cities of the State, but I say also that it is entirely unjustified by any experience that we have had. In fact, the only suggestion at all for this return to an abandoned method of administration, is that the police have interfered with elections in cities. I had the honor to state to this Convention, on the occasion of my remarks some weeks ago upon this subject, what I conceived to be the reason for that complaint, and that was that in certain cities we had destroyed the non-partisan August 28.] CONSTITUTIONAL CONVENTION. 389 character of our election boards, and made them partisan, and that under our election laws the police officers were really at the polls, the subordinates of the election officers, and that you could expect nothing else from a partisan election board than a subordination on the part of police officers, charged with the duty of preserv- ing order at the polls, to the election officers themselves. Now, that was the cause, but that cause has been removed. It has been removed by this Convention. It was removed by the Legislature of 1893. We have now incorporated into the Constitution of the State a declaration that hereafter all boards of election officers shall be non-partisan. Why, then, insist upon that which was prompted only on account of that cause? Why return to a system which we have once tried and abandoned forever, when the cause which sug- gested the return no longer exists? Nothing, in my opinion, will be received with greater indignation by the cities of the State than this attack upon their internal affairs, by this unnecessary and unjustified departure from a system of administration which we have tried for twenty years, which has worked well, and with which the State, as a whole, is well content. I suggest to the distinguished chairman of this committee, instead of insisting upon this proposition, the only effect of which will be to create a feeling of indignation against the other wholesome provisions of his article, that he gallantly withdraw from this situa- tion, and incorporate an amendment in the Constitution of this State to the effect that the Governor of the State, for cause, after an opportunity to be heard, shall have the power to remove the chief magistrate of any city. Mr. H. A. Clark — Mr. Chairman, I seem to get the impression from many of the speakers who speak in opposition to section 3 that they are impressed with the idea that when you pass north of the city of Yonkers there are nothing but barbarians left in the State, and that we are only trying to amend the Constitution in rela- tion to the cities of New York and Brooklyn. Nearly every gen- tleman who has seen fit to speak upon this subject has taken as his illustration the great city of New York. And it is a proper illustra- tion, for it is a great city and a beautiful city. It has more popula- tion than any other, or any other two cities within our State. It has more magnificent buildings, it has more education, more ability. It has more frauds committed within its territory. It has more dis- grace upon its history than any other part of the State. It has more corruption within its borders than any other part of the State of New York, and I need go no further for this proof than to refer them to the evidence taken before the Lexow committee. I do not 390 REVISED RECORD. [Tuesday, wish to say anything disrespectful of the city of New York, or of any of its inhabitants, for I believe, as has been said upon this floor, that the majority of the people of the city of New York are intelli- gent, enlightened and honest people. But it is a fact that you cannot take any portion of our State and have a sewer of ignorance and corruption flowing in upon it from foreign lands for years, that settles down in its midst, without giving it a population that is beyond its control. Mr. Holcomb — Mr. Chairman, will the gentleman allow me to interrupt him a moment? The Chairman — When the gentleman has finished his remarks. Mr. Holcomb — Does the gentleman decline to be interrupted, Mr. Chairman? The Chairman — The Chair declines to allow the interruption until he has finished his remarks, when questions may be asked. Mr. Clark (resuming) — They attack section 3, by saying that it should be changed so that the Governor should have the power to remove the mayor instead of the head of the police department. They refer again to the city of New York as their illustration, but they fail to remember that in the other cities, or in many of the other cities of this State, the head of the police department is not appointed by the mayor, but by the common councils of these cities. Suppose that the heads of the police department appointed incompetent men to positions, would you advise that charges should be brought against the mayor for that reason, when the mayor has no control over the police board? Take the city of Rochester as an example; the mayor has no power over the polic.e board. It is appointed by the common council, and yet the gen- tlemen who have spoken before me suggest that the mayor be tried and removed from office because the common council has seen fit to appoint an incompetent police board. The gentleman from New York (Mr. Smith) compared the sheriff's office to that of the ordinary policeman or to that of the mayor. The common council occupies the position of the legislative body, the mayor that of the local governor. Now, whatever is done by the common council, the mayor should not be held responsible for. By this section we strike right at the root. Whoever appoints this police board gives them power over all the police of the city. If that police board does not see to it that the police perform their duties, we give the Gov- ernor of the great State of New York, by this section, the power to remove that board and appoint a board in its place that will per- form the duties. Mr. Bush said we had taken the power away August 28.] CONSTITUTIONAL CONVENTION. 391 from the mayor. I beg to differ with him. If he will read section 3 through, he will see that no power is taken away from the mayor in appointing a police board; but if he appoints incompetent men, men that will not perform their duty according to the law, then on charges being made to the Governor, that board may be removed from office and a new board appointed. They claim it is unfair. Why is it any more unfair that the Governor should place his hand upon one of the cities of this State than it is that he should place his hand upon one of the counties of the State? He is given the power to remove the sheriff, who is the great peace officer of the county; he is given the power to remove the district attorney, if he does not perform his duties; he is given the power to remove county treasurers, and he appoints the successors of all these men when removed. Why should he not have the same power in con- nection with the cities that he has in connection with the country districts? If they are not satisfied with his merely having the power to remove the police board, I would suggest the addition that he also have the power to remove the mayor in connection with the police board. Very often we hear it referred to here that at the head of this article is contained the term '' home rule." I regret very much that that term was ever placed at the head of the article. It was an error. We do not claim that that article gives home rule to cities pure and simple. There is no claim that it cuts those cities into thirty-six or thirty-seven principalities and sovereignties. There is no claim in reference to that article that Xew York city shall be a government by itself and the State have no control of it, or that Brooklyn or Buffalo shall have such a right. What a spectacle it would be for the cities of Xew York and Brooklyn and Buffalo and the other cities of this State to have absolute control over the territory within their boundaries, and yet at the same time send members of the Legislature to Albany to govern the rest of the State. They say we have home rule in the country, but we have no such degree of home rule as is given by this article. There is nothing given to the country districts, or to the counties of the State but what the Legislature can take away. The Legislature has conferred powers upon boards of supervisors. The next Legis- lature that meets in this State may take away those powers. That is all the home rule there is in the country; that is all the home rule possessed by any county. If the cities want that class of home rule I would favor the bill. I would favor giving them just such home rule as is given to the country and to the counties: but nearly every member of this Convention who hails from a city is opposed to that measure. Many of them seem to desire to be cut loose 392 REVISED RECORD. [Tuesday, from the great State of New York, and I wish to say, Mr. Chairman, that if such a proposition was raised in this Convention, I would not only oppose it in the Convention, but I would oppose it from this day until election time, if passed. The only consideration which the smaller cities have for making the great change in their local self-government that this proposition will make, is the fact that the State of New York shall hereafter control the police. Take that away, and many of the smaller cities would be opposed to this measure. You take away the reserve power that is given by that section to the State of New York, and I will use every effort I can to defeat every measure contained in the article. Mr. Schumaker — Mr. Chairman, may I now ask the gentleman a question? Mr. Clark — You may ask me a question. I can't say whether I can answer it or not. Mr. Schumaker — In the county of Tioga there was an election held in 1892, where it is stated that more fraudulent votes were cast on election day — and I think it is true — than were cast on Coney Island and that McKane got. You have been speaking of corrupt influences in New York and vicinity. Mr. Clark — That is not so. Mr. Schumaker — You have heard of it, haven't you? Mr. Clark — I never heard of the matter before. I never heard such a charge made. Mr. Schumaker — It was in the McCarthy election case, and was proven in that case that in the county of Tioga, on election day, in 1893, there were more votes cast illegally than there were at Coney Island. Mr. Clark — Will the gentleman refer me to the contested elec- tion case, and what it- was? Mr. Schumaker — I have not got it here, but it is contempo- raneous history. Mr. Clark — Mr. Chairman, there was no contested election case in Tioga. Mr. Schumaker — I don't say it was. I say it' was the con- tested case of McCarthy in the Senate, where they proved that the fraudulent votes cast were as many and more in the city in which he lived and the county of Tioga than were cast in Coney Island. Was that in your ward? Mr. Clark — Mr. Chairman, it was not in my ward, nor in my county. I could tell the gentleman, from information that I have August 28.] CONSTITUTIONAL CONVENTION. 393 received, just where the whole corruption fund went to, that Tam- many Hall sent into that county. Mr. Schumaker — I thought you never heard of it. Mr. Clark — It did not get to the voters at all. It was pocketed by certain leaders to whom it was sent in the county. Mr. Schumaker — That is not the question. Mr. Holcomb — Will the gentleman from Tioga allow me to ask him a question? I understood the gentleman from Tioga to make some reference to a sewer of people that was casting its contents into the city of New York by way of immigration. I would like to ask him whether he stands there and is prepared to assert before this Convention, and before the people of this State, that all the immigration coming into the city of New York is a sewer? Mr. Clark — Not all of it, Mr. Chairman, not anywhere near all of it; but it is true that our unlearned population come to us from foreign shores. Recess was taken to three o'clock "in the afternoon. AFTERNOON SESSION. Tuesday Afternoon, August 28, 1894. The Constitutional Convention of the State of New York met at the Capitol, at Albany, N. Y., Tuesday afternoon, August 28, 1894, at three o'clock P. M. President Choate called the Convention to order. Mr. Goodelle — Mr. President, I request that Mr. Alvord may be excused for the day, on account of illness. The President put the question on the request that Mr. Alvord be excused from attendance, and he was so excused. Mr. T. A. Sullivan — Mr. President, believing as I do, that one of the greatest duties of the citizen is that he attend his caucuses, and assist in making up the ticket for which he expects to vote. I desire to be excused for Friday and Saturday of this week, in order that I may go home and attend the caucus in my ward. The President put the question on the request of Mr. T. A. Sullivan to be excused from attendance, and he was so excused. The Convention resolved itself into Committee of the Whole, with Mr. I. S. Johnson in the chair. The Chairman — The Convention is still in Committee of the Whole on general order No. 13. 394 REVISED RECORD. [Tuesday, Mr. Becker — Mr. Chairman, the proposition before this Con- vention, when divested of all extraneous conditions and circum- stances, is simply this: shall or shall not a Governor of this State have not only the power of removal, for good cause shown, of the heads of the police departments in cities, but shall or shall he not also have the power, in case he exercises the constitutional power of removal, after such charges have been heard and passed upon by him, of appointing the successor of the person so removed, dur- ing only the term of the mayor in which that head of the police department is an officer? In addition to that, the question is fur- ther presented as to whether that power shall be conferred upon the Governor, to remove, exclusive of the mayor, or should it be simply vested in him as the Committee on Cities has reported, to remove, in case the mayor fails to exercise his power of removal? The latter proposition I do not think will be seriously debated. I think there is no one in the Convention, as there certainly was no one when the matter was presented in the Committee on Cities, who joined in making a report, who believed that the Governor should have the power to remove exclusive of the right of the mayor to remove, and, therefore, the members of the Convention will find in that article a careful expression that all the rights now existing in the mayor to hear charges preferred against the appointees in the police department, and to remove them, are preserved. In prac- tice, it seems to me, that the provision will work for good. It seems to me that the effect of it will be simply this, that where a wrong has been done in the police department, the charges will first be made before the mayor. He will have the opportunity to act upon them, and if he fail to act, then what is practically an appeal can be made to the Governor. This is in line with the existing provisions of law, as to the city of New York, at least; for under the charter of that city, as it now stands upon the statute books, the mayor cannot remove the heads of the police department without the approval of the Governor. So that we are forced in considering this question, it may be said, to look at it solely from the standpoint as to what is, what should be, the policy of the State with reference to this matter. Do you or do you not concede that the police officers of the cities of this State stand upon the same footing in the eyes of the law as the police officers of the counties? Can there be but one answer to that question? What are police officers? They are denominated in the Code of Criminal Procedure " peace officers." As such it is their duty, not only to preserve the property of the citizens in safety from the attacks of the criminal classes, but it is their duty under well-defined, long existing provisions of the statute August 28.] CONSTITUTIONAL CONVENTION. 395 law, to defend the right of every citizen to approach the polling place on election day, and to cast his vote untrammeled, uninter- fered with, unobstructed by any other citizen. Every elector cast- ing his vote on election day will cast it sooner or later for not only the officers of the city and the officers of the county, but the officers of the whole State. Such being the case, the plain, practical ques- tion is presented to all of us in disposing of this question : Shall not the State, through its chief executive, have power to interpose safe- guards and checks upon the exercise of the tremendous authority and power and discretion vested in the .police in reference to pre- serving order at the polls, seeing to it that every citizen can cast his vote without interference or obstruction? Once you concede that power as you have conceded it as to the county, where a sheriff is the police officer, and it is his duty to preserve that order, then it follows as matter of course, as a legitimate consequence of that con- cession, that the right should somewhere be reserved in the State to see to it that those officers vested with that power should per- form their duty and should not step outside the line of their duty. Hitherto, Mr. Chairman and gentlemen, until within very recent years, it may have been a question undetermined in the minds of our people as to whether the necessity existed of placing those safe- guards and checks around the exercise of this great police power over the election. Mr. Choate — Will Mr. Becker allow me to ask a question for information? Mr. Becker — Certainly. Mr. Choate — What I want Mr. Becker to explain is this, when he comes to it in the course of his argument, whether any particular emergency has occurred in any of our cities which has suggested the necessity of vesting in the Governor the power of reappointing dur- ing the term of the mayor. It is a very important question; I think we are all open to conviction upon it. These cities have existed now a great many decades without any such power, and have got along very well. It may be, however, that something that has occurred in Troy, or Brooklyn or Buffalo, has pointed out the importance of that part of this provision. Mr. Becker — Mr. Chairman, I was approaching that branch of my argument, and I preceded it by making the practical statement, which is involved in the question of the President, that it may have been that hitherto such exigencies had not occurred, had not been brought home to our people, which have since occurred, which 396 REVISED RECORD. [Tuesday, require that this provision should be placed in this article in the form in which it has been placed there by the Committee on Cities. Now, let us view this step by step, in the line of legal argument, briefly expressed, as we would approach the consideration of a legal question. Who has the power of appointing the police offi- cials? In whom has the power of removal been hitherto vested, and in whom is it still preserved by the provisions of this article? One and the same officer and person, the mayor of the cities. He who has created and made this head of a police department an officer, has also the power to remove him. The first question then to be considered is : Is it wise, is it right, is it proper, that the person who has created, who has made this officer, whose creature this offi- cer is, who in the exigencies of party politics and the control which oy the police (as we all know, without citations, but which I shall demonstrate by citations), has been exercised, and can be exercised by these police officers over the elections; is it right that this official, this officer who has the power of creating the police officer, of con- trolling his action, of dealing with him in the various aspects of all official life, shall alone have the power to remove him? If it was the case that these police officers did not come in contact with the rights of all the citizens of this State, I should say, yes; leave the power of removal right where it is; do not change it; do not confer it upon any one else, however exalted his station, however serious his responsibilities. But such is not the case. It is a matter that is as well understood as anything can be, that the police must by the very performance of their official duty at election times and at other times in this State, come in contact with the rights of the whole people of the State. Now, the first question that we have to answer is, conceding that to be the fact, should this power of removal be solely confined to the power of appointment? We all know what human nature is, Mr. Chairman. We all know how it works. Every father loves his own child. He can see no wrong in him. The subject of the appointment of the heads of these departments, police departments throughout the State, is always before the mayor, or mayor and the common council in the cities where the common council acts with the mayor. Various persons are candidates for the place; some are appointed, some are not. It involves the question of choice; it involves argument; it involves entreaty and persuasion on the part of the friends of the candidates, and after that the power of the mayor, the appointing power, finds its exercise in the appoint- ment of some particular person. The press has criticised or com- mented upon his appointment. It is his child. It is his creation. August 28.] CONSTITUTIONAL CONVENTION. 397 He is the author of the being of that police official. Now, then, confront that mayor later on with charges against his child. As well might you ask a father to say that his son had done wrong. The tendency of every mayor of any city, no matter how exalted his personal standing may be, or his social standing; no matter how honest and Christian and noble-minded a man he may be; no matter how devoted he may be to the interests of his municipality, will necessarily be, when these charges are preferred, to stand by his man, to stand by him to the last extremity. He cannot approach the consideration of the question unprejudiced. He cannot act on it in an unprejudiced way. More than that, the times when charges are likely to be preferred by citizens against the official are election times, when partisan spirit runs high, and it may be claimed that the effort is made to remove the police official, not because he did wrong, but because he failed to do the bidding of others than the mayor. The mayor himself may be a candidate for re-election. His friends may be candidates, and we are liable to find a case existing where every condition, every circumstance, every argu- ment that could possibly be brought to bear to produce an unjust judgment by the mayor upon the question of removal will surround him when charges are preferred against the man that he has made. Now, having these conditions in mind, and it being con- ceded, as it practically is here, that the mayor should have this power of removal, but that he should not have it exclusively, you then come to the practical question as to whether, if you give the power to remove to the Governor of the State, representing, as he does, all the people of the State, all interested in this question, whether or not that power of removal conferred upon him is worth the paper it is written. on, unless it is coupled with the power of appointment. I say that in practice the working effect of these provisions will be that the mayor will first be appealed to. No . Governor would undertake, except in an extreme case, and then it would be infinitely dangerous for him to do it, to interfere with the affairs of a city, unless the charges had first been preferred before a mayor and had been acted upon by a mayor. Having failed to act, then the proposition comes up: what good on earth will it do the Governor to act and remove, if the mayor could turn around and assume, before the ink placed upon the paper constituting the Governor's signature in removing this man, is dry, to reappoint the same man or one equally objectionable to the whole body of the citizens who made the charges? I say to you that I personally do not consider that the proposition in this article vesting the Governor with the power to remove is worth a picayune, unless it is comple- 398 REVISED RECORD. [Tuesday, merited and completed with the proposition that the Governor who does exercise this power of removal may in turn appoint for the period of office held by the mayor who had appointed the commis- sioners; and such are the provisions of this article. The theory of the article on that point is this : the mayor has appointed. His term is fixed by law. We should not give to the Governor the appoint- ment of a police commissioner to hold during good behavior; we should only give it to him for the length of time that the mayor is in office. Then, when he has gone out of office, and the people have passed upon the question as to who shall be his successor, that successor should have the right to reappoint or to appoint, if you please, a new commissioner, or head of a police department. But it is said and argued that there is no necessity for this. It is sug- gested in the question of the President to me, it has been suggested to me outside. What facts are there which justify violating, as they say, the principle of home rule by vesting this great power, and it is a great power, in the hands of the Governor? What dangers may flow from it, they exclaim? I will first consider very briefly what facts justify the exercise of this power, what exigencies have occurred in its history with which we are all familiar and upon which the whole people of this State have had an opportunity to pass, and, thank God, have passed on it at the ballot-box at the election of last November. In the city of Buffalo, and I commend what I shall have to say to the attention of my friend, Hotchkiss, who seems to be a great deal troubled about Buffalo, we had a police department there under a Demo- cratic mayor, a man who had been elected by seven thousand major- ity, or upwards of seven thousand, by the people of our city. The police commissioners are three in number. The head of the depart- ment is appointed by the police commissioners. Election time was approaching. One of the election officers was about to go out of office. His successor was about to be appointed by the police board. Under our charter, which we struggled and fought for for five years, finally succeeding in getting it almost by main strength at the hands of the Legislature, the power of appoinment was vested in that police board. I speak now of the head of the police depart- ment. And the power in turn of appointing the police board, or appointing the member of it who would control the balance of power, was vested in the mayor. It was known that Mayor Bishop, of our city, good, honest gentleman that he is, would never permit, and never had permitted the police of that city to be used for election purposes. So it was deemed desirable by some who wished to control, and afterward did attempt to control the election, August 28.] CONSTITUTIONAL CONVENTION. 399 that the power of appointing the police commissioner who would hold the balance of power in appointing the head of the police department should be taken away from the mayor, and vested in another body or person, no matter whom. What happened? As soon as the new board was organized they turned out of office the police superintendent who had held his place for years and had the entire respect and confidence of our people. No complaint was made against him in the papers. Xo complaint was made against him to his superiors, not a word, not a syllable. Then they put in another man. What was the next step? The police captains were changed from precinct to precinct in the city. What was the next step? Subordinates were changed from precinct to precinct in our city. What was the next step? When the election was held in the fall, around some of the polling places where it was thought that the voters could be controlled, where there had been as found by your committee, and their report is in this volume, a fraudulent registra- tion of over a thousand votes, for the purpose of carrying out a gigantic conspiracy to elect some people and to defeat others, at that polling place on election day, as found by your committee (I hold their report in my hand), Captain Regan and some ten or more policemen in uniform appeared with Kennedy and the deputy sher- iffs. When they approached the door of the booth they immedi- ately took possession of it. William Miller, one of the prize-fight- ers, stood in the door, with his arm across it, and the other officers were within the booth or outside, as they saw fit to be, and for sev- eral hours no one was permitted to enter the booth except those to whom said Kennedy and Kilcourse and the prize-fighters saw7 fit to allow the privilege. A line of honest voters had formed there three hours before the polls opened. No disorder existed in that line, no one has ever claimed so; the brief of counsel for the sitting members did not claim there was any disorder. These policemen marched up there to drive the voters away, they took possession of the polls, and they let in a gang of thugs and repeaters and corrupt and purchasable voters that they had brought there to prostitute that election. Your own committee has reported upon it, and on the heels of their report, by a vote almost unanimous, you have unseated five delegates and seated five in this Convention. "So much for Buffalo! When you come to Troy, we have had a recent investiga- tion of what has been done in that city. You are all familiar with the facts as to the killing of Ross. I do not refer to it to harrow your feelings, but it was at that election at that time and under those circumstances that the events took place which are narrated 400 REVISED RECORD. [Tuesday, by the sworn testimony before the " Lexow Committee," which I hold in my hand, excerpts from which I propose to read. " Officer Cahill and Butcher kept back the regular voters, shifting them about and threatening to break their heads, and let repeaters in under the officers' arms." Mr. Becker then proceeded to read at some length extracts from testimony taken before the Senate Mullin Committee, July 10 and n, 1894, concerning police interference with the elections in Troy in November, 1893, at which Robert Ross was killed. Now, I ask you whether, after the testimony has all been in in the Shea case, after it has been in in the investigation1 which I have quoted from here, have any of these men been removed? Have you heard of the mayor of Troy preferring charges against any of these men and removing him? Not one. Did the new police board in Buffalo, fixed there by a statute, attempt to remove anybody for the outrages investigated by your committee and shown in the records of this Convention to have been committed there last fall? Not one. It was not until we got an act through the Legislature last winter, restoring anew the power of appointment in the mayor, that we had any change in the police department, or any attempt to punish any of those who had committed these outrages. Now, my proposition is simply this, and I am not going to waste any more time in discussing it. You have before you these outrages com- mitted by the police. You know what they can do. As sensible men, as lawyers, familiar with the statutes of this State, you know the powers that are vested in them by the statutes of this State in our great cities, and they equally exist in the smaller ones. Near here is the city of Cohoes. There never was a police department more corrupt in the whole State than that in Cohoes at times — used at the caucuses, used at the elections, on every occasion. When such outrages exist in those cities, and you have also the results of the investigations in New York before you, showing the tremendous power the police have over the criminal classes and disorderly houses of the cities, we say the only safeguard that the people of this State have to prevent these policemen from driving the.se classes to the polls like sheep to the shambles, and voting them, from standing around the polling places and defeating the will of the people by keeping honest voters away and letting dis- honest ones in, as this testimony shows, the only safeguard we have, and when I say we, I mean the whole people of this State, who are all interested alike in pure elections, the only safeguar^ we have, is to give the Governor the power of removal, and if we give him that power, I say to you it is my sober judgment, as I believe it will be August 28.] CONSTITUTIONAL CONVENTION. 401 yours W|hen you have considered this question, that that power is worthless unless the same authority having the power of removal is given the power of appointment during the term of the mayor. Take this question home to each of you who live either in the large cities or the small ones. Consider what an outrage it is to have these policemen, who have been appointed by the heads of the department, who are in turn appointed by the mayor, and feel that the election of that mayor may depend upon their action, try to make themselves solid with him by acting in his interest. What value is it to remove men who commit these gross outrages on the franchises of the whole people of the State, unless you vest the power of appointment of their successors during the term of the mayor in the authority having the power of removal? Mr. Choate — Mr. Chairman, may I ask Mr. Becker another question for information as to the construction that the committee put upon lines 4, 5 and 6, at page 3, in regard to the term of office of the appointee of the Governor? Mr. Becker — Will the President be kind enough to read it? Mr. Choate — " Upon such removal the Governor may appoint the successor of any official so removed, and such successor shall hold office until the expiration of the term of office of the mayor of such city holding office at the time such charges are preferred." My inquiry is as to the construction of that provision; whether, the Governor having removed and exercised the power here given him of reappointment, and his appointee proves to be guilty of misconduct in office, is it the purpose of the committee that the mayor shall not have then the usual and ordinary power of removing him? Mr. Becker — The purpose of the committee is not to do any- thing such as that suggested by the President, for it has specifically provided in the section that it has reported, that nothing herein con- tained, referring still to the section and lines read by the President, and to any other part of the article, shall interfere with the right of the mayor to remove. Mr. Choate — Then, immediately upon appointment by the Gov- ernor, the mayor has power to remove his appointee? Air. Becker — He would have the power on charges and for cause shown. Mr. Holcomb — It is expressly taken away from him by the last line. 26 402 REVISED RECORD. [Tuesday, The Chairman — The gentleman from New York will address the Chair. Mr. Choate — Mr. Chairman, may I call Mr. Becker's attention to the last two lines? What becomes of the last two lines: " But ' such power shall not extend to the removal of any person appointed by the Governor, as herein provided?" Mr. Becker — Mr. Chairman, I consider that the President has put a question that I must answer very frankly; that I was not aware that the additional lines had been put in there since the article was first reported. They were not in the first article. I am very glad that he brought the question up, because it is evident that it has been the intention of the committee to do other than that which I had supposed. I think it is plainly evident from that that they expected to preserve this power of the appointment in the Gover- nor, and not to permit the mayor to remove. I will say that I was not present at the last session or two of the committee when that particular line was inserted by the committee. Mr. McClure — Do you approve of it? Mr. Becker — I should feel bound by the action of my commit- tee. Personally I should prefer to permit the mayor in all cases to have the same power of removal in any case as he had originally. But, if the wisdom and judgment of the committee are otherwise, I certainly would not question it. I should subordinate my own judgment to theirs. But my personal notion would be that that power, so far as that is concerned, ought not to be taken away entirely, for that officer might do things not in the line of interfer- ence with the rights of the people of the whole State, but in the line of disobedience of duties solely relating to city affairs, which, per- haps, might justify his removal. And so long as the Governor had still the authority to remove his successor, if he did anything, for doing which the Governor thought that he ought to be removed, I cannot see that it would work very much harm or injustice one way or the other. Mr. E. R. Brown — Mr. Chairman, in the consideration of this question, it has seemed to me that the committee, notwithstanding the care and labor bestowed upon the article, have gone further than perhaps they intended to go. It is the custom in many cities to make the appointment of the head of the police, not on the first of January, but at some other time during the year, although the mayor takes office on the first of January. Such is the case in my own city. Now, a mayor taking office on the first of January, find- ing in office a commissioner or chief of police whom he did not have August 28.] CONSTITUTIONAL CONVENTION. 403 the power to remove, or the successor of whom he did not have the power to appoint until the first of April, might find himself in the situation of having that subordinate of his removed on the first of February or the first of March, and by the Governor a successor appointed, and when the statutory time arrived for the appointment to be made by the mayor, he would by this provision be deprived of making the appointment and would not be permitted to make it under the terms of this amendment during his entire term of office. That objection alone, it seems to me, should, if we have the choice simply between the proposition as it is laid down in this section by the committee and an entire rejection of that proposition, lead us to reject it. But there are some other considerations to which I would like respectfully to call the attention of the committee. My friend from Erie, Mr. Becker, has detailed at considerable length the circumstances connected with the disgraceful administration of affairs in his city in recent times. That disgraceful administration, as I understand it, was carried to its final consummation by virtue of special acts passed by the Legislature, signed by the Governor, notwithstanding the protests of the citizens of the city of Buffalo; and does the gentleman believe that when it was consummated through the act of the Governor, if it was so consummated by that act (I deplore any partisan argument on^ this floor, but I suggest this to the gentleman), does he believe that it would give him relief to have the Governor who signed those bills remove the officer? There is another consideration in relation to this matter. I believe in applying the same laws, other things being equal, to cities that I do to rural districts. That has been claimed in behalf of cities and claimed in behalf of the country, and it ought to be conceded, it seems to me, upon all hands. Under the provisions of our present Constitution and the laws, it is provided that the Gov- ernor of the State may remove the sheriff, may remove the district attorney, and the Legislature has said in its discretion that the Gov- eronr might appoint their successors for the time being. Why not let this provision rest upon the same basis? Is not that an adequate protection? I think that the power of removal in the Governor is desirable. I regard the office of head of police as analogous to that of sheriff, a peace officer, and in the last resort, the Governor of the State should have the power to exercise the authority of the State throughout the State; but it should be in the last resort only, and it should not be so exercised as to make the several commu- nities, or any community in the State of New York, feel that the power of the State had deprived them of the right of local self-gov- ernment. In so far as this principle is laid down in this amendment, I 404 REVISED RECORD. [Tuesday, do not see how it can be controverted that it is in derogation of the principle of home rule. It is in derogation of that principle, neces- sarily and properly so but, being in derogation of so desirable a principle, we ought to hesitate a long time before we carry it so far as to endanger that principle. Now, Mr. Chairman, there is no danger, in my judgment, arising from the circumstance that the Governor shall not have the power of reappointment. Our cities, although they may be given to occasional outbreaks of disorder, will not be entirely lost to such a judgment against them as would be voiced in a decree of the Governor removing the head of police, I do not believe there is now or that there ever has been a mayor in the State of New York who would have the effrontery to replace in office a head of police who had been turned out by the Governor of the State. But aside from that, the power of removal would again remain in the Governor. He could remove him again, yes, and remove the mayor. But, Mr. Chairman, this power if we do not vest it in the Governor, would be vested in the Legislature. Is this a part of a plan to discredit not only the local authorities, but the Legislature of the State? For my own part, I would rather, in the last resort, where deliberation could be had upon a subject of this kind, have it rest in the deliberations of the Legislature, than to have it rest in the power of perhaps an arbitrary and an unjust Governor. It has occurred in the State of New York, that there have been men sitting in the Governor's chair who did not always have due regard to the interests of the various communities of the State. Is it not possible, and placing it in the hands of one man, is it not much more probable that this power will be abused by that one man than it will be by the Legislature representing the entire people of the. State. Now, Mr. Chairman, I have in the remarks that I have made upon this subject barely suggested some of the thoughts that have occurred to me bearing upon the latter part of the section now under consideration. If an amendment is in order I desire to offer one which will carry that purpose into effect, if the Convention shall be so disposed. The Chairman — The Chair will state, upon examining more carefully the amendment, or what was called the amendment, offered by Mr. Blake, that he is satisfied that it is a substitute, as it goes to the entire extent. It leaves nothing in and it puts in a complete section. Hence, the Chair will rule that it is a substitute, and that the original section may be perfected before we act upon the propo- sition of Mr. Blake. Mr. E. R. Brown — I offer an amendment, and I will ask that it be read. August 28.] CONSTITUTIONAL CONVENTION. 405 The Secretary read the amendment, as follows: Strike out all after the word, " defense," in line 3, page 3, and sec- tion 3, and insert: " Any vacancy in office caused by such removal shall be filled according to the provisions of section 5 of article 10." Mr. E. R. Brown — Section 5, of article 10, provides: "The Leg- islature shall provide for filling vacancies in office. In case of elect- ive offices, no person appointed to fill a vacancy shall hold his office by virtue of his appointment, longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy." This is an ancient provision in the Constitution of the State. If this provision were extended to the section in question it would put the cities upon the same basis that we put the rest of the State. I do not offer this suggestion, Mr. Chairman, with the slightest disrespect toward the committee, for whose labors I have nothing but praise. But I regard this pro- posed article, printed as Document No. 33, were stated briefly, as well side of the historical development of the power of the Governor under our constitutional growth in the State of New York; one that has been prompted and brought into this Convention on account of lamentable circumstances in special localities, which I deplore, but which I do not believe ought to control the delibera- tions of this body in forming permanent, fundamental constitutional laws. Mr. J. Johnson — Mr. Chairman, I am very glad that the debate to-day has taken the range of the discussion of high principles. The question suggested a few moments ago by the President of the Con- vention I deem is very pivotal and very important. In the report which the Committee on Cities presented, along with their pro- posed article, printed as Document No. 33, were stated briefly, as well as they might be in the brief space that it was thought well to con- sume, the thoughts which have come to the mind of the committee on this matter. I ask the attention of the gentlemen of the Conven- tion to what is there said, to what is somewhat elaborated in the presentation of this article when the discussion first opened. Those facts will be found at pages 687 and 689 of the Debates. What is the apparition if apparition there be? What is there that calls for something new in the policy of this State, something which, though I believe new in this State, so far as I can learn, exists in nearly all other States of the Union. It is that anew and again has been shown and demonstrated the danger that the police officials of the community in our densely populated sections may become the allies of those who would overthrow the government at the ballot-box. That is the danger. That is what this is chiefly aimed at. And 406 REVISED RECORD. [Tuesday, without it, I would not suppose there was reason for any such thing. It is astonishing to me the acquiescence, the disregard with which such attacks on the ballot-box by brute force, by assaults, some- times by the cruelty of imprisonment, of murder, are committed. Why, sir, I remember well when the question of the policy of Europe, as dependent on the policy of the German empire, was depending on the result of an election in that imperial State. Long hung that election in the balance. The power of the police, the power of the soldiery, all the bruce force of the State, disciplined and armed into soldiery, was in the hands of the young ruler whose policy was called in question. I remember more years ago when the question whether the third Napoleon should be emperor of France was submitted to the result of a plebiscite, there were the fortune of dynasties, the foundation of empires, the forces of government sub- mitted to a people that was supposed to exist under imperial rule; and never once was it said or hinted, never once was the suggestion made, that those citizens of an empire or a kingdom were attacked, assaulted, beaten or imprisoned, in the exercise of their elective franchises. Mr. Jacobs — What history do you read? Mr. J. Johnson — If the gentleman wants to know what history I read, I will give him a catalogue when I am through the speech. Mr. Jacobs — It must be very original. Mr. J. Johnson — I make the statement, sir, that so far as I have read as to the German empire, which is a recent matter, there was no statement made at the time or since, that brute force was used to intimidate voters. I say that if it had been, the inhabitants of those countries would have rebelled and ought to. And yet, the significant fact is here, that more and more constantly, and the his- tory 1 here read is the history that my friend from Kings reads Mr. Jacobs — Never. Mr. Johnson — The history of events in the great cities that the power of the police is used to control elections and to intimidate voters. Do you and I read that history alike? Mr. Jacobs — I do not think we do. Mr. Towns — Mr. Chairman, will the gentleman permit me to ask him a question? Mr. J. Johnson — I would rather not. Now, Mr. Chairman, what were the incidents which came before this Convention? Five delegates seated by a return of nearly fifty per cent of the entire population, and the return was made by conspirators protected by August 28.] CONSTITUTIONAL CONVENTION. 407 the armed police. What were the events that met us in Buffalo? Peace officers undertaking to control the elections and seize the lib- erties of the people. What were the events that met us in Troy? The police of the city, as has been proved by evidence, in complicity with the ballot-box stuffers, who came there not secretly, but in gangs, armed and equipped for war. Those are the incidents of the last six months, as they have been written in the record of trials for conspiracy, in the record of trials before the Governor, as they have been written in the records of trials for murder, and those trials have taken place since we have been sitting here. And is that all? I have a right to say, sir, that the difficulty that developed in the three widely separated parts of this State exists in a large degree in all the cities of the State, or in many of the cities of the State. It is a danger which is a menace, a threat, which, if it goes on, will destroy civil liberty in this State. What, then is the remedy? Has the State no function? A return in New York equivalent in percentage of population to that of Gravesend would give a return of certainly six hundred thousand votes, and every one would know, as know they did in Gravesend, that it was absolutely false. But delegates took their seats and held them under such returns. \Vhat hinders it that in some city, or some part of a city, under the power of the police, some day it may happen, by influences, by acts no more flagrant, no more aggressive, wanton and inexcusable, that the State of New York may be throttled, and those, and only those, who are bene- ficiaries of the crime will be authorized to prosecute. Now, sir, my thought is that the time has come, the whole surroundings and teachings of the occasion demand, that something shall be done to erect a barrier against this possibility of wrong. It seems to me that if the people can be awakened by such an assault upon their liberty, they must be awakened now. It was a masterly insight of the Hebrew law-giver, when he would lead the people out of bond- age in that wonderful march which is the march of history, that the lintels of the doors were stained with the blood of the sacrifice. The blood of the sacrifice for civil liberty has stained the altars of liberty in Troy. It is adjudicated and the facts are proven in court. I believe this people is great enough to live, and in the generation of Gettysburg this State shall not die. But it is our duty to do something. What, then? Do precisely what was done to punish those crimes. Do precisely what was done by Governor Flower to punish those crimes. Admit that the sovereignty of the State, and ber banner and the escutcheon are assailed by such crimes, and admit that the State may protect itself. Did it or did it not violate the principle of home rule when the 408 REVISED RECORD. [Tuesday, Governor went into Buffalo and removed the recreant officer? Did it or did it not violate the principle of home rule when, by his power to remove the district attorney, the pressure was made by the Governor that brought a man from another county to try the murderer of Robert Ross? Did it or did it not violate the principle of home rule, when the appointee of the Gov- ernor and the Attorney-General, the local officials being silent, prosecutors in Brooklyn were appointed from this Capitol, to prose- cute the robbers of Gravesend? Did that violate the principle of home rule? Does it violate the principle of home rule to resist when attacked, to save the honor and escutcheon of the State, when thieves and ballot-box stuff ers would drag it down? Sir, a crime against the ballot-box in the smallest precinct of this State is damnable treason to the liberties and the history of the State. I wonder, sir, when such things go on, when I see such crimes and assaults treated with derision, what must the generations say that sleep in bloody graves on the hills of Gettysburg and along the Potomac? Did they die for ingrates, or did they die for men? Have we that which is worth preserving, and will we let it go ? Now, sir, these are the questions; and if it be true that the principle of home rule, whatever you may call it, was not invaded when the whole central authority of the State was used to punish crime, was used to punish murderers, if it be true that that did not break into the principle of home rule, can it be said or suggested that to give the power to prevent the crime, to save the arc of the covenant from the robbers, can it be said that that is beneath the work of this Convention? No, sir; I think not. The words "home rule" are strangely used. I have before me the statute of 1892. I would not trespass upon anything that is political here. I simply say that the gentlemen who present the objection of home rule here were represented in the Legislature of 1892, and their friends, their politi- cal friends, were in control of that Legislature. I read here from the second volume of the Laws of 1892, at page 1781, the statute passed in that year as to the appointment of the successors of a sheriff who is removed. Did they give it to the board of super- visors? No. Did they give it to any county officers? No. The Legislature of 1892 enacted that when the sheriff of a county was removed, his successor should be appointed by the Governor. That is the principle, that is the enactment of 1892. If my friends of the minority will go with me to the charter of the city of New York, enacted in 1882, held inviolate in 1892 and 1893, when they might have repealed it if it invaded the principle of home rule, they will find there, if I mistake not, and if I am in error, I will be corrected, August 28.] CONSTITUTIONAL CONVENTION. 409 that the power is there given for the Governor to remove the mayor of that great city on charges and after a hearing. Sir, it is in the Constitution, it is in the statute book of 1892, and in the statute book of 1882, that where crime is committed by high officials, by those who have to do with the peace of the State, the State is assailed, and the remedy is not complete to leave the appointment to those associated with, and presumably in some way guilty or derelict with them. The sovereignty of the State has spoken. It is in the Constitution. It is in the statute; and I say, sir, that it is a weak and poor defense against this principle that would at least attempt to do something to save the right to the voter, to save the right to the citizen, to save it for the State, when its dignity is attacked, its flag or its escutcheon smirched, to say that there is no power to send a man there to administer. The point of this is exactly here: there is not one particle of administration in the city of New York possible to the State. You may enact and re-enact, and when you have gone all over it, you cannot send the smallest messenger to represent the sovereignty of the State. You may remove and remove, and again the new appointee comes, must come, from the same local source of official power. These, sir, are the facts. This is the necessity. This is what has come with force to the Committee on Cities, and we believe that if, at this emergency, and at this time, we do not attempt something to stop the withering march of force and cor- ruption to desecrate elections, if this Convention fail in that, it will let go an opportunity and a capacity for ennobling the State such as has been rarely presented in its history. What we have done we have done for the best. If it goes too far, shorten it. If it does not go far enough lengthen it. But do nothing to affect the principle that when the State is assailed, when the Fort Sumter of the Empire State is fired upon, there are cannister and grape and men behind it to right the wrong. Mr. Chairman, such are the considerations. It is new ground, difficult ground. Whether to do or not to do anything, your committee had no difficulty. How far, whether a little more or less, exactly what to do to right the wrong, to stay the danger and erect the barrier, was a matter of gravest consideration. We believed, sir, that in view of the dangers, the wrong which found place in the elections of the representatives to this Convention, the wrong which found a history in a murder trial, the wrong which found history in the action of the Governor, the Convention would deem it wise to erect a barrier, so high, so strong, that no weight of clamor could ever break it down. 4IO REVISED RECORD. [Tuesday, Mr. Root — Mr. Chairman, the concluding sentences of the very eloquent and able remarks just made by the chairman of the Committee on Cities satisfy me that the course of that true con- servatism which ought, above all things, to characterize a Constitu- tional Convention should lead us to adopt the amendment which has been offered by the gentleman from Jefferson (Mr. Brown). I find in the remarks of the chairman of the committee the frank avowal that, while the committee was clear and without doubt as to the principle upon which they should proceed; while they were clear as to what they should do in part, they were in doubt, and still are in doubt, as to how far it is wise to go. Now, Mr. Chairman, and gentlemen of this Convention, let me undertake to state what I understand to be the principle upon which the committee pro- ceeds, for the purpose of seeing how far we should go, for the purpose of seeing what weight we should give to the doubt which is in the minds of the committee, and how we should resolve it. The principle, as I understand it, is this, that all elections are mat- ters of State concern; that the exercise of the sovereignty of the State over every part of its dominion requires that it shall keep con- trol over the forces which dominate elections. And for that purpose the committee provided in their reported article that the State should control the appointment of election boards and that the State should retain in its possession the power to control the police, who can, by brute force, control elections. I agree with that principle; I agree with it fully and heartily. I would not have the State sur- render its power to control the casting of ballots which, in every part of the State, weigh against the ballots cast in every other part of the State; and I say again, as I have said before upon this floor, the abandonment of that power means virtually secession by a part of the State. But, sir, does the principle require that we should go to the full length that the committee's report goes, or should their doubt be resolved by stopping at the point indicated by the gentle- man from Jefferson? The object is to put in the control of the State this power — not of any officer of the State, but in the control of the State. How has that been done heretofore? Why, the Con- stitution of 1846 provides that the Governor of the State may remove sheriffs and county clerks and district attorneys, and then provides that the Legislature shall provide for filling vacancies. Now, sir, we justify placing the power of the removal of the heads of police departments in the hands of the Governor by the analogy between those officers and the peace officers of the counties. That justification requires us only, permits us only, to go to the same extent that the Constitution ?ocs as to removal of sheriffs. Botli of AugustaS.] CONSTITUTIONAL CONVENTION. 411 these grounds upon which we proceed, first, that it is necessary that the State shall control in the last resort the keeping of the peace and order at elections, and, second, that the treatment of the peace officers of cities should be like the treatment of peace officers of counties, are satisfied by putting the power of removal in the hands of the Governor and putting the power to provide for the filling of vacancies in the hands of the Legislature; and neither one of them permits us to go farther. And the chairman of the com- mittee has quoted to us within half an hour laws enacted by the Legis- lature which show that that body is able and ready and willing to pro- vide for the filling of vacancies, and that unless some good cause be shown to the contrary they would provide for it, as they did provide for it in regard. to sheriffs, as they provided for it in regard to the mayor of the city of New York — precisely as this committee would have the Convention provide for it here. In providing for that, Mr. Chairman, they may throw checks and balances and safe- guards around their provision. It may be well to provide in one way to-day. Four, five, ten or fifteen years hence it may be deemed by common consent desirable to provide in another way for filling the vacancies. It seems to me, sir, that there are two per- fectly valid and prevailing reasons for resolving the committee's doubt in the direction of not going too far in the course of innova- tion in this matter. The first is that neither precedent nor the limits of the principle upon which we proceed, justify or permit us to go any farther than is contemplated by Mr. Brown's amendment ; and the second is this, that we owe it, each one of us, to our own self-respect and to the honor of the State we have sworn to serve, without regard to the words " minority " and " majority," without regard to questions of party benefit or party injury, to see to it that we send before the people of this State this fall a Constitution for them to pass upon which will not be open to any just imputation that the majority of this Convention has been reaching out, without precedent or justification in principle, to lay hold upon political and partisan power in the city or in country, anywhere within the limits of the State. (Applause.) And, Mr. Chairman, without any neces- sity, without any justification in precedent or principle, gentlemen who would go to the full length of the proposition of the committee — while I believe nothing is farther from their minds than to seek partisan advantage — would lay themselves and all of us, and the work of this Convention, open to the imputation of being governed, not by conservatism, but by desire for party advantage. For these reasons, Mr. Chairman, I shall vote, and I hope that my associates 4I2 REVISED RECORD. [Tuesday, all about the chamber will vote for the amendment proposed by the gentleman from Jefferson. (Applause.) Mr. Jenks — Mr. Chairman, I offer the following amendment, if it be in order. The Secretary read the amendment offered by Mr. Jenks in the language following: Amend section 3, commencing at line 3 of page 3, by striking out the words " upon such removal the Governor may appoint the suc- cessor of any official so removed, and such successor shall hold office until the expiration of the term of office of the mayor of such city holding office at the time such charges are preferred." Commencing in line 10, strike out the words "but such power shall not extend to the removal of any person appointed by the Governor as herein provided." The Chairman — The Chair holds that the amendment is not now in order. Mr. Choate — Mr. Chairman, I would like to say a few words in support of the amendment offered by Mr. Brown. Yesterday morning I declared that I should regard it as a great calamity if we should offer a cities article to the people as a partisan measure; and notwithstanding the apprehensions excited in the mind of my sen- sitive friend, the youthful member from the fourteenth district, by my remarks yesterday afternoon, I am of the same opinion still. Now, we are making a Constitution here, not for a day, but perhaps for all time, for the next fifty years perhaps, if we take pattern from what has happened heretofore; and it seems to me that we ought not to be inspired by the incidents of the last six months, but should look before and after. We should consider what has been in the past and what may be in the indefinite future that will make this amendment, or this section of the article, as it has been prepared and presented by the committee, sometimes possibly inexpedient. I can remember, Mr. Chairman, a state of affairs in the city of New York involving a condition and conse- quences far more terrible, far more threatening, far more fatal than anything that has occurred in the past year, either in Buffalo or in Troy or in Brooklyn. Mr. Jacobs — Gravesend. Mr. Schumaker — Gravesend, not Brooklyn. Mr. Choate — Well, Gravesend, which I had supposed until now a part of Brooklyn. Mr. Jacobs — It is now. August 28.] CONSTITUTIONAL CONVENTION. 413 Mr. Choate — I can remember when if this section had been enforced, as it is now proposed, it might have resulted in most terrific consequences, not for good but for evil. In the year 1863 we had a mob ready to seize upon the city of New York, and actu- ally in possession of it. We had a loyal mayor, and we had a Gov- ernor who was not disloyal. But suppose we had had, as we might have had, for there were many men of that type in the State and in the city of New York at that time, suppose we had had a disloyal .Governor, desirous for purposes of anarchy and of disunion of leav- ing that city for destruction in the hands of the mob that had seized upon it, and you had had power in such a disloyal Governor to remove the head of the police, which was the salvation of the city and of the State at that time, and to appoint one of his own ser- vants, with a restriction upon the mayor never to interfere with him during his term of office, where should we have been then? I think the committee make out their case under ordinary circum- stances in the ordinary routine of possible emergencies, if you please, for vesting this power of removal in the Governor, but not so when they say that the Governor shall have power to appoint in his place, during the residue of the term of the mayor in office, without any power in that mayor who is held responsible for the peace and good conduct of the city, to interfere with him in the case of misconduct on his part. (Applause.) Well, now we can draw that lesson from history, can we not? And we might look into the future, and look to possibilities that may occur. We, to-day, as we believe, represent a great con- servative people of five or six millions, but opinions change with wonderful rapidity, and it may be while this proposition, if you carry it into force, shall' remain the fundamental law of this State, that we shall have an anarchical Governor of this State, as other great commonwealths in the Union now have, some of them, one at least Mr. Jacobs — Three. Mr. Choate — Well, I think we would all agree that there was one, and that possibility is not absolutely removed from even our great and loyal people. Now, we will suppose that we have such a Gov- ernor in the chair as the chief magistrate of this State, and out- breaks with which he is in sympathy occur in the greater or the smaller cities of the land, and in sympathy with those outbreaks he sees fit to remove a loyal, a faithful head of the police and put in a creature of his own. Where are you then? Is that a possibility that may not happen? Now, I say you must look into the distant future as into the distant past to see how this will work. I am REVISED RECORD. [Tuesday, always thinking when studying the operation of these provisions how, possibly, the boot may act upon the other leg, not where it happens to be to-day; and looking at it on both sides, taking into full view these disorders that have happened in these three corners of the State of New York during the last year, it seems to me that there are far greater dangers than heretofore have threatened us that may possibly threaten us in the future, and that it would be unsafe under such circumstances as we may thus call before us, by imagi- nation at least, to say that when the Governor has once removed the mayor of a city, holding office it may be, for a year and eleven months, charged with the responsibility of the peace of that city, he shall have nothing to say in regard to the conduct of the head of the police. It appeared from the surprise manifested by the second member of the Committee on Cities at the discovery of this snapper upon the end of this article, that they are not all of one mind about it, and it presents a doubt, just as it did when the judiciary article came before us divided nine to eight on the question of nine by seven. We had to solve that doubt for them. So I say now, let us solve it, not in any partisan view, but with a view to the safety of the whole people in the long run, and give the Governor the power of removal, but let the Legislature say how the vacancy thereby occasioned shall be filled. Mr. Towns — Mr. Chairman, it seems that we are all agreed just at this time of day that this is not, and should not be, a partisan enact- ment. It seems to me that the majority, I shall not speak of the minority, since their proclaiming themselves as such aroused, it seemed to me, the acrimonious criticism of the leader of this House — it seems that the majority have softened to some extent their rigid determination to adjust the other side of the House to the Procrustean couch they had prepared ; and the difficulty which arose in their path reminds me of a story that I once heard to the effect that as a calf was going down the pathway to get some water it heard a mournful noise. Looking around, it heard distinctly, " Help me out of this difficulty. I am here suffering. Help me." A little more investigation proved that there was the enemy of its race, the serpent, coiled up, with a stone upon its head. Well, this calf was very benevolent and it determined to remove the stone, and it did so. But first it said, " Well, you know you often bite me, and I suppose that if I remove this stone you will do so again." " Oh ! No; take it off; I am suffocating here; I am in great distress. Take the stone off and I will never bite you any more." Well, soft hearted, it removed the stone. An invitation was extended on the part of the calf to go down and partake of the sweet waters of August 28.] CONSTITUTIONAL CONVENTION. 415 the running stream, and the serpent journeying with the calf got down there and they drank copiously. Pretty soon the calf heard a hissing noise, looked around, and there was the old enemy coiled up ready to strike. The calf said, " I thought you promised not to do me an injury " " Well, I did, but I have got to bite you. It is my nature. I have got to do it." " But you said you wouldn't." " It makes no difference, I have got to bite you. The time has come now, and I have got to do it." " Well, leave it out. Let us appeal, and see if we cannot adjust this. I was kind to you. You wanted my assistance. Just leave it out." They did leave it out to the first person that came along, who happened to be the fox. He said: "Well, I can't decide this case unless I get you all back to the locus in quo, to see just exactly how it was." So he took them back and said, " Where were you, Mr. Calf? " " Well, I was standing right there, walking along the path, and I stopped and heard Mr. Serpent." " Where were you, Mr. Serpent? " " I was over here." " Well, coil yourself up." It coiled itself up. " Is that all? " " No, there was a stone upon my head." So the fox got the stone and put it on the serpent's head and said: " Is this the situation of affairs as they existed before the calf released you?" "Yes." "Now," he said, "just you get away and go on mind your own business ; " and the calf, he got. Now, that is the advice I give to that portion of the House called the minority. I tell them to let Mr. Johnson and Mr. Choate and Mr. Root fight this matter out themselves and mind their own business. (Laughter.) This is their Constitution; and if they do that, and adhere to that rule, the iniquitous measure, the undemocratic measure, the unrepublican measure, the illogical measure, a meas- ure which never could have been conceived except in the rumbling caverns of that erratic mind, aided by the second member of the committee (laughter) would never have been produced here for the solemn consideration of this Convention. So I say again to those gentlemen who have come to the assistance of Brother Root when the judiciary, that matchless mechanism produced here, was in danger, who lifted the stone off his head and heart, who saved him then in the perils and tribulations of his deliverance, that they had better mind their own business. This is a Republican fight, and let them fight it out. But it would have fallen by its own \veight of ill logic and unrepublicanism. Do they mean to say this is not the case — this in parenthesis, Mr. Chairman — this is not the case that has been provided for in section 5 in the Constitution? Those are elective officers, officers elected by the people. This is the case of an appointive officer, one appointed by the mayor, one 416 REVISED RECORD [Tuesday, who should answer to the mayor, one whose very discipline in office, whose very power, whose very obedience, whose very efficiency, depends entirely upon his responsibility to the person who gave him official life; and to take away from that man the power of reappointment or the power to discipline such an officer, to lodge it in the chief magistrate of this State, is undemocratic, is perilous to our free institutions, and it should not prevail. And I imagine that Mr. Root, the leader of this Convention, and that our President, the combination of all that is perfect in man, has seen this, and have called off that mighty warrior who is trying to exorcise the spirits that sleep upon the hills of Gettysburg, who has conjured up and tried to wrap around him not that banner which I see before my eyes, but the bloody shirt which has been buried, and rotten and tattered these many years; who has conjured up on the pages of history creatures that never existed save in his own brain, all for the purpose of putting through this thing, which must have been born, if born at all, it seems, only to have been conceived at present; and it seems that certain gentlemen here have determined that it shall never be born except they know its shape beforehand or its sex. I say that such an article as that, which has begotten querulous- ness in the party, which has begotten dissension, which has taken the mighty trinity of effort on the part of Mr. Johnson and Mr. Becker and again Mr. Johnson to put it through, will necessarily fall of its own weight; and I appeal once more to my brethren of the minority, and I do not wish to classify them as bovines or anything of that kind, but I appeal once more to them to let this Republican fight go on. It is a thing of beauty and it should be to us a thing of joy forever. (Laughter.) Mr. Mulqueen — Mr. Chairman, will the gentleman from New York permit a question. Will not the danger you fear still exist if the Legislature should enact that the Governor would have power to fill the vacancy, and if yes, would it not be the part of wisdom for us to place in the Constitution the provision that the mayor alone should have the power to fill the vacancy? Mr. Choate — I think not. The mayor may not be trustworthy and the Legislature may, and should have the power from time to time to mold the power of reappointment to suit the necessities of the State. Mr. Mulqueen — One more question, if the gentleman please. As I understand the Constitution, at present the Legislature enacts laws which apply for all time. It does not enact a law for removal to meet a particular case. Suppose the Legislature should say, August 28.] CONSTITUTIONAL CONVENTION. 417 what we now declare to be unwise, that in case of removal at any time, the Governor shall fill the vacancy, would we not have the evil you fear? Mr. Choate — Not all of it; not by any means a large part of it. This proposition is that the Governor shall reappoint and the mayor have no power to interfere with him. Mr. Towns — Is not the whole difficulty obviated by allowing the Governor to remove the mayor? It is already admissible in the Constitution.. He has that power. Why not add here in this Con- stitution that, for causes which effect the police and which he disre- gards, he may be removed by the Governor? Would not that be adjusting this matter upon a symmetrical scale, and be aiding in the discipline and government of the different divisions of the State, make them all answerable to the Governor? Mr. Choate — I would prefer that my friend from Kings, Mr. Schumaker, should answer that question ; but I will say again that I do not think that simply giving the Governor the power of removal is enough. You should retain the hold of the State upon it in some form, and I know of no better form than by doing it through the Legislature. The Chairman put the question on agreeing to the amendment offered by Mr. Brown, and it was determined in the affirmative by a rising vote of 82 to 28. Mr. Jenks — I offer an amendment, Mr. Chairman. The Secretary again read the amendment heretofore offered by Mr. Jenks and read. Mr. Choate — I would suggest that Mr. Jenks see whether the amendment offered by Mr. Brown has so changed the situation that any change should be made in the phraseology. Mr. Jenks — I regret that so much tax is being put upon the voice of the very efficient Secretary of this Convention, but without intending to speak at present upon this amendment, I will simply state to the House what the amendment seeks to do. It seeks to strike out all parts of section 3 which give the power to the Gover- nor of the State to interfere with any police official in a city so far as the matter of appointment is concerned, and it leaves to him the power of removal upon charges. The purpose of this amendment is simply to take away from the Governor the power to reappoint in case he makes a removal. That is the sole purpose of the amend- ment offered. 418 REVISED RECORD. [Tuesday, The Chairman put the question on agreeing to the amendment offered by Mr. Jenks, and it was determined in the negative by a standing vote, 54 to 69. Mr. McClure — I rise to a question of information. It seems to us here that votes carried on these two amendments are entirely inconsistent. I rise to ask the Chair in what condition the amend- ment introduced by the committee is now, after we have voted on these two amendments. The Chairman — It stands as amended by the proposition offered by Mr. Brown. The other amendment having been rejected the inconsistency, if any, has passed away. Mr. McClure — May we have it read as it now stands? The Secretary read the amendment as follows: " Section 3. No law shall be passed conferring the power to appoint the head of the police force of any city, on any city officer except the mayor, or the mayor, with the consent of the common council. The Governor may remove the official, or officials, or any of them, constituting the head of the police force of any city for cause, upon charges preferred before him. A copy of such charges shall be served upon the official sought to be removed and an oppor- tunity afforded him to be heard in his defense. " Any vacancy in office caused by such removal shall be filled according to the provisions of section 5 of article 10 of the present Constitution." Mr. McClure — What comes after that? The Secretary — That is all. Mr. McClure — We would like to have the rest of the section read. The Secretary — I read it all. Mr. Platzek — I desire to offer a substitute to the article. Mr. Holcomb — If in order, I would like to offer an amendment. The Chairman — An amendment to the section? Mr. Holcomb — An amendment to the section, yes, by striking out all after the figure 3 in line 20, down to the place where Mr. Brown's amendment begins as to vacancies in office, and insert in lieu thereof the following words: The Secretary read the amendment offered by Mr. Holcomb in the language following: Strike out all after the numeral 3, down to the word "defense," and insert in lieu thereof the following: " The Governor, after notice and a hearing, may for cause, and after August 28.] CONSTITUTIONAL CONVENTION. 419 a hearing, remove the mayor of any city. In every city heads of departments, city officers and employes, whose powers and duties are limited to the territory of a city, or part of a city, shall be chosen by electors or appointed by the local authorities thereof.". Mr. Holcomb — Mr. Chairman, in respect of this power of removal by the Governor, the other day when I had the honor to submit certain remarks to the Convention, I called the attention of the Convention to the precedents which have controlled Republi- can action during the last quarter of a century, and in truth ever since the 'enactment of what was known as the metropolitan police system, in the year 1857; an<^ I w^ be obliged to the Convention if I might have the privilege again and especially to call the atten- tion of the majority of the Convention to this question of consist- ency. For more than twenty-five years, ever since the adoption of the charter mentioned by the President of the Convention in his remarks yesterday afternoon, the charter of 1873, that followed the overture of what was known as the government of the city under the charter of 1870 President Choate here resumed the chair and declared the Con- vention in recess until 8 P. M. EVENING SESSION. Tuesday Evening, August 28, 1894. The Constitutional Convention met in the Capitol, at Albany, August 28, 1894, at 8 P. M. Second Vice-President Steele called the Convention to order. Mr. Lincoln — Mr. President, Mr. Crosby has informed me by telegram that he will be obliged to be absent Wednesday and Thurs- day this week, and asks to be excused from attendance on those days. The President pro tempore put the question on the request of Mr. Crosby to be excused from attendance, and he was so excused. Mr. M. E. Lewis — Mr. President, I ask leave of absence on Saturday of this week. The President pro tempore put the question on the request of Mr. Lewis to be excused from attendance, and he was so excused. Mr. Jenks — 'Mr. President, I ask leave of absence for Saturday of this week. The President pro tempore put the question on the request of Mr. Jenks to be excused from attendance and he was so excused. 420 REVISED RECORD. [Tuesday, Mr. Coleman — Mr. President, I ask to be excused on Saturday of this week, and Monday and Tuesday of next week. The President pro tempore put the question on the request of Mr. Coleman to be excused from attendance, and he was so excused. Mr. Giegerich — Mr. President, I desire leave of absence for Sat- urday and Monday. The President pro tempore put the question on the request of Mr. Giegerich to be excused from attendance, and he was so excused. Mr. Mulqueen — Mr. President, I ask leave of absence for Sat- urday and Monday. The President pro tempore put the question on the request of Mr. Mulqueen to be excused, and he was so excused. Mr. Jacobs — Mr. President, I ask leave of absence for Monday and part of Tuesday. I would not ask for it, but I am called by telegram on business that must be attended to upon those two days. The President pro tempore put the question on the request of Mr. Jacobs to be excused from attendance, and he was so excused. Mr. Storm • — I ask to be excused Friday and Saturday of this week. The President pro tempore put the question on the request of Mr. Storm to be excused from attendance, and he was so excused. Mr. Cochran — Mr. President, as it may be that I shall have to be absent Saturday, and if I postpone it until a larger number of delegates are present it may be refused, I will ask now to be excused Saturday in case I need it. The President put the question on the request of Mr. Cochran to be excused from attendance, and it was determined in the negative. Mr. Woodward — Mr. President Mr. E. R. Brown — Mr. President, I desire to raise the point that there is no quorum present. The President pro tempore — I think the Chair should recognize Mr. Woodward before the question of quorum is passed upon. Mr. Woodward — Mr. President, I have been here at every ses- sion of the Convention, of every session of my committee, but I want to be excused for Saturday afternoon and Monday. The President put the question on the request of Mr. Woodward to be excused from attendance, and he was so excused. August 28.] CONSTITUTIONAL CONVENTION. 421 Mr. E. R. Brown — Mr. President, I would like to know what disposition was made of Mr. Cochran's case. The President pro tempore — The Chair understands that leave of absence was not granted unanimously. Mr. Maybee — Mr. President, I desire to be excused Saturday afternoon and Monday morning. The President put the question on the request of Mr. Maybee to be excused from attendance, and he was so excused. Mr. Deady — Mr. President, I ask to be excused Saturday and Monday forenoon. The President put the question on the request of Mr. Deady to be excused from attendance, and he was so excused. Mr. M. E. Lewis — Mr. President, I move that when the Conven- tion adjourn on Saturday it be until Tuesday morning at ten o'clock, and upon that motion I move the previous question. Mr. Deady — Mr. President, I make the point of order that there is no quorum present. The President pro tempore — The Chair will state to Mr. Lewis that the question of quorum was raised before, and perhaps it is advisable to ascertain whether there is a full majority present or not. Mr. Lewis — I have moved the previous question, Mr. President. Mr. E. R. Brown — Mr. President, I make the point that Mr. Lewis's motion is a matter that will have to go to the Committee on Rules. Mr. Davies — Mr. President, I raise the point of order that there is no quorum present. The President pro tonporc — The point of order is again raised that there is no quorum present, and the Secretary will call the roll for the purpose of ascertaining whether or not there is a quorum present. The Secretary proceeded with the call of the roll. Mr. Hamlin — Mr. President, I move that the roll-call be suspended. Mr. Lewis — Mr. President, I rise to a point of order, that the roll-call having been ordered, it cannot be suspended except by unanimous consent. The President pro tempore — The point of order is well taken. The call of the roll being completed, the Secretary announced that ninety-six members were present. 422 REVISED RECORD. [Tuesday, The President pro tempore — The motion of Mr. Lewis, upon which the previous question is moved, is that when the Convention adjourns on Saturday next it be until Tuesday morning at ten o'clock. The question now is, shall the main question be put. Mr. Choate — Mr. President, I wish to be heard upon that question. The President pro tempore — The previous question having been moved cuts off all debate. Mr. Choate — If it is ordered. The President pro tempore — I think it is not debatable whether it is ordered or not. The President put the question on whether the main question shall now be put, and it was determined in the negative, by a stand- ing vote, 49 to 26. The President pro tempore — Mr. Choate is now in order. Mr. Choate — Mr. President, I understood the question now to be whether we shall adjourn from Saturday noon until Tuesday morning. The President pro tempore — That is the question before the Convention. Mr. Choate — And for one I protest against that. After the con- clusion of the present week we shall have but two weeks in which to complete all our business. I consider that it is a matter of duty for the members of this Convention to take a brace and stick to it until this work is done. There are four questions, one of which is now under consideration, which must be determined, in deference to the opinion of the people of this State who have sent us here, before we can by any pretense claim our liberty. As I understand it we are bound by our oaths to perform this business, and I do not believe there is a gentleman present who thinks for a moment it can be accomplished, even the disposition of these four questions, in less than the time that remains to us before the fifteenth of Sep- tember. It has already been stated often enough in the Convention, and I believe every gentleman so understands, that the Committee on Revision will require several days after we have passed finally upon those four questions, in which to put our work in order for submission to the people; and I believe that we should be recreant to our trust if we took a holiday in the meantime. I trust that gen- tlemen will be true to their oaths and faithful to their duty, and vote down this somewhat revolutionary movement. August 28.] CONSTITUTIONAL CONVENTION. 423 Mr. Veeder — Mr. President, upon the question before the Con- vention I demand the ayes and noes. The call for the ayes and noes was sustained. The President pro tempore — The Chair must hold to the roll-call without debate and without any delay. The question before the Convention is upon the motion of Mr. Lewis, that when the Con- vention adjourns on Saturday it be until Tuesday morning at ten o'clock. The Secretary proceeded to call the roll. Mr. Cochran — Mr. President, leave of absence having been refused me, I vote in the affirmative. Mr. Jacobs — Mr. President, it would be very indecorous for me to vote upon this question, because I have been excused. Mr. Choate — So has the gentleman that made the motion, Mr. President. Mr. Jacobs — If the majority want to stay here on Monday, I will vote no. Mr. Platzek — Mr. President, I desire to be excused, and explain my vote. If there are any gentlemen present who are accustomed by usage to celebrate Labor Day, I am quite certain that upon application to this Convention we shall only be too glad to excuse them. I shall certainly vote that way. I agree entirely with what the President of this Convention, Mr. Choate, says. We are here with the solemn obligation to complete our work, and we have very little time in which to do it; and much as I may respect those who want to celebrate that day, and desire a day off, I feel that under the exigencies of the case we ought to proceed. I, therefore, vote no. Mr. Gilbert — Mr. President, having been excused from attend- ance, I desire to be excused from voting upon this question. The President pro Icinporc put the question upon the request of Mr. Gilbert to be excused from voting, and he was so excused. Mr. Lincoln — Mr. President, I have already been excused from attendance next Monday, and perhaps I ought not to take any action upon this question. I would like to be excused from voting. I do not expect to be here. The President pro tonpore — The Chair is of the opinion that the gentleman is entitled to the excuse, and entitled to his leave of absence, but there is a principle involved in the matter and the Chair thinks that the irentleman should vote. 424 REVISED RECORD. [Tuesday, Mr. Lincoln — If I am required to vote, I will vote no. The motion of Mr. Lewis to adjourn from Saturday until Tues- day was lost by the following vote : Ayes — Messrs. Becker, Blake, Bowers, Carter, H. A. Clark, Cochran, Coleman, Giegerich, Herzberg, Holcomb, Hottenroth, Jenks, M. E. Lewis, Marks, McDonough, Mulqueen, Parmenter, Peabody, Redman, Springweiler, Titus, Tucker, Veeder — 24. Noes — Messrs. Allaben, Arnold, .Baker, Banks, Barhite, E. R. Brown, Cady, Chipp, Jr., Church, Cookinham, Countryman, Dan- forth, Davenport, Davies, Dean, Dickey, Doty, Durfee, Emmet, Faber, Floyd, Foote, Forbes, Francis, Augustus Frank, C. A. Fuller, O. A. Fuller, Galinger, Gibney, Goeller, Goodelle, A. H. Green, J. I. Green, Hamlin, Hawley, Hedges, Holls, Jacobs, I. Sam Johnson, J. Johnson, Johnston, Kellogg, Kimmey, Kinkel, Lester, C. H. Lewis, Lincoln, Lyon, Manley, Mantanye, Marshall, Maybee, Mclntyre, McKinstry, C. B. McLaughlin, McMillan, Mereness, Moore, Morton, Nichols, O'Brien, Osborn, Parker, Parkhurst, Peck, Phipps, Platzek, Pratt, Roche, Root, Sandford, Schumaker, W. H. Steele, Storm, T. A. Sullivan, Tekulsky, Vogt, Wellington, Whitmyer, Woodward, President. The President pro tempore — By courtesy of the President, the Convention was allowed one-half hour for miscellaneous motions. The Chair now declares that the Convention should go into Com- mittee of the Whole, and Mr. I. Sam Johnson will take the chair. The Chairman — The Convention is again in Committee of the Whole on general order No. 13. Mr. Holcomb — Mr. Chairman, when the recess was taken at five o'clock, I was asking the ear of the Convention, and now I will proceed with the few remarks that I have to make. I do not see, Mr. Chairman, why this provision should be included in the proposed amendment of the Constitution, in respect of giving power to the Governor to remove the head of police. When I had the honor to address the Convention on another occasion upon this same subject, if I remember the precise words of the amendment as then proposed, power was given to the Governor, not only to remove the officials who should be at the head of the police depart- ment, but also to remove the man who should be the executive head of that department. In other words, applying it to the city of New York, that the Governor should have power to remove not only the police commissioners, but also the superintendent of police; and, as I read the section now before us, that part of the amendment has been stricken out, and, now, the power is intended August 28.] CONSTITUTIONAL CONVENTION. 425 to be given to the Governor to remove the official or the officials constituting the head of the police force; and if those words imply the men who shall be at the head of the department, then, of course, it is giving power to the Governor to remove the police commissioners. I supposed, Mr. Chairman, when we began the consideration of this proposed amendment of the Constitution that it was to apply generally to the cities of the State, but yesterday it became very manifest to my mind that there is one city alone at which the action of this amendment is directed. It was so declared, substantially, by the chairman of the Cities Committee; it was reiterated substan- tially in the remarks made to the Convention by the President of the Convention, which remarks, if they might be stripped of their ver- biage and of all the graces that accompanied them, to be looked at precisely as they mean, would be, in my judgment, a deformity, because the charge made by the President of the Convention in his remarks concerning the Democratic organization, or whatever one may call that controlling and governing power, actually expressing the will of the people of the city of New York, was not so much an arraignment of the Democracy of the city of New York as it was of the principle which is behind that Democracy, the principle upon which the whole system of our government rests, the principle that the people shall rule. It was an assault, and I do not think that word at all too harsh to be applied, although on account of the suavity of manner with which the assault was made, it did not bear, looking at the President as he spoke, the appearance of an assault, but, nevertheless, it was a deliberate assault as I understood it, not upon the organization of which I happen to be a member, but upon the people of the city, who find themselves willing to have their voice expressed through the action of that organization. In the remarks I made the other day I had occasion to refer to the charter of 1873. The President of the Convention yesterday referred to the overturning of the charter given to the city in 1870. That charter was overturned, by, what I called the other day, the revolution of 1871, and that is what it was — a revolution. In 1873 the Republican Legislature of the State of New York — that Legis- lature that had been carried into power upon the great wave QI" change of sentiment which made John A. Dix Governor — gave us the charter of 1873, and I would call your attention, gentlemen, if I may, to the fact that its enactment came after there had been a great deal of experience in respect of the charters of cities and the government of cities; it came after the experiment of 1857 had been tried, and had been discountenanced by the people of the city and 426 REVISED RECORD. [Tuesday, of the State in the enactment of the charter of 1870, and out of all the experience of years, of all knowledge that the Legislature could acquire of the expressed experience of the most distinguished men of the city of New York, constituting the committee of seventy, it was under the instruction, direction, I might say under the guid- ance, the wise and patriotic hand of that committee, that there was put into the charter of 1873, this provision: " Heads of all depart- ments, including those retained as above, and all other persons whose appointment is in this section provided for, may be removed by the mayor for cause." Thus, may be seen the Republicans of the State of New York coming into power in 1873, after that revo- lution as they have come into this Convention flushed with a sense of their victory, and intent upon reaping its fruit, as one might say, if one were to imitate the language used by the chairman of the Judiciary Committee last night, about us of the minority here, that we were, and forever might remain, a minority, indeed, that we were working our own lack of salvation by our action upon this floor in not being obedient, after all the accomplishment of the committee of seventy, under the guidance, as I have said, of the wise men of the city, and enacting this wise and deliberate provision of law. One of the men whose influence was very thoroughly felt in that enactment, whose influence in the committee and in the Legislature was great, and exercised as I verily believe, in the interests of the people of the State, was the President of this Con- vention; even then that party did not think of putting this extra- ordinary power in the hands of the Governor. It is true that the Legislature provided that, after the mayor should have acted, and before his action should become final, his proceeding should go to the Governor, who should have the right either to con- cur or refuse to concur, but that suggestion is beside the present proposition from what we saw in this Convention last night, from the words expressed to us of the minority, from the very uncom- fortable phrases that were used in respect to the men who come here from the city of New York, I think one might almost say, to use a figure, that the gentleman of the majority are preparing to make this place a sort of political Monte Carlo, so fortunate was their hazard of last fall. I will say that it may not be wise for them to make too strong a bet upon this proposition, or the people may repudiate them and their bank be found broken. You, Mr. Chair- man and gentleman, certainly are not, because you have the power here, to come to us and say to us of the city of New York, that we shall do as you will,, that we shall obey your behests, and pro- nounce your shibboleth, and that we cannot enjoy the right to August 28.] CONSTITUTIONAL CONVENTION. 427 express our own views in our own way, without being taunted by insinuation and charges that we do not represent the people of our city. Now, Mr. Chairman, I would not, in this or any other presence, enter upon any defense of my party in the city of New York, or of my party anywhere in the United States of America. I come here as a representative of the Seventh Senatorial District of the State of New York. Its territory happens to lie within the city of New York, but I come here as the representative of the people. I did not come here, as Mr. Lauterbach charged the other day, when he spoke upon the suffrage question, as an accident of any sort, not an accident of an accident, or in the slightest degree as an accident at all. I came here because the people of my district nominated me to this place, and because they gave me the votes that made that nomination good, and I stand here upon this floor as the repre- sentative of my people, the people of the Seventh Senatorial District. I give voice to their views here. Their opinions are my opinions, and my opinions are theirs. They are the people who express at the polls their beliefs upon the questions that control their own affairs in both city and State. I would not make any allusion to this, except for remarks that have been made in debate within this chamber; but I would call attention, if I might, in respect of this fling that there are five men, or one man, or two men, who govern the politics of the city; that we have there a Democratic organization with a great Democratic vote behind it, and, if you are fretful, because we have very fre- quently met you and fluttered your dove-cotes, as we shall meet you again in the future, and flutter them again, so that you will know there is a Democratic constituency down there by the side of the river and the bay, that is no reason why you are to say to us, and unrebuked, that we represent nobody except some man or men, who dictate to us our policy and tell us what we shall or shall not do, and that we have no influence, even with ourselves. And to one thing I would call attention in this connection, and that is the very constitution of this Committee on Cities. Who made it? Why, the President of this Convention. Then there is one man, the President, whose power is supreme. Why did he select a single individual out of the whole body of this Convention, and one who did not have a single city in his county, and why is there but one man of that description upon this Cities Committee appointed by the very distinguished President of the Convention? If the Presi- dent shall think I have a Pantata in New York, then I am prepared to sav that he is the Pantata of this Convention, as he showed 428 REVISED RECORD. [Tuesday, clearly enough in naming Mr. H. A. Clark, of Tioga county, to be a member of the Committee on Cities, when behind him alone, of all the committee, there was no city in his county? There is a city in Fulton county, where Judge Spencer comes from. There are cities, if I remember the list correctly, in all the other counties there rep- resented— there is only one county having representation on the Cities Committee that has no city Mr. Choate — Mr. Chairman, I rise to a point of order, that the gentleman is not speaking to the question before the House, and it is in the power and it is the duty of the Chair to keep him within it. The Chairman — The Chair decides that the point of order is well taken. Mr. Holcomb — Mr. Chairman, I will endeavor to proceed in order. I do not think, Mr. Chairman, if I may speak with such frankness as addresses itself to my judgment at this moment, I do not think I am any more thoroughly out of order than was the gentleman from New York, who just called me to order, during the debate of yesterday. The Chairman — The gentleman will proceed in order. Mr. Holcomb — If that be too much, it stands upon the record. Now, Mr. Chairman, I will see whether I can get on in harmony with your idea of order as to the remainder .of my remarks. To-day that member of the committee, Mr. Clark, of Tioga — and if that be out of order, I am not aware of it — talked about the population of the city of New York having thrown upon it a constant sewerage from the countries of Europe. May I not say a word in his presence upon that subject? I say this, Mr. Chairman, that we take people from all over the world. I do not understand that it is so very long since every man here within the sound of my voice was of people coming hither from somewhere on the face of the globe and not originating in the United States; and I am reminded that while some remarks were being made yesterday concerning what has been called the " foreign gang " in the city of New York, I saw one gentleman upon this floor ironically applauding who I myself heard say in a club house here that his ancestors had come from Hesse in Germany; and when I heard that gentleman applaud that remark concerning the " foreign gang " yesterday, I remem- bered very well that there was a certain king of Great Britain who bought and sold the people of Hesse and made them fight us when we were undertaking the struggle of our revolution. (Applause.) Mr. Chairman, these may be or they may not be proper remarks to August 28.] CONSTITUTIONAL CONVENTION. 429 be made in this presence. I am perfectly willing to drop them here, provided I may make this further statement, that when men come here our gates are open to them all, there is room and welcome for all, and there was a great deal of patriotism in the remark made by the chairman of the committee, a very decided patriotism in which I entirely agree with him, and in making which he was not called to order, and, therefore, I presume I may go so far as to remark that we open our arms and receive these immigrants to become part of the great body of our people. They enter into our citizenship, and having once been panoplied in that which is greater than anything else on the face of the earth, American citizenship, they are the equals of all men, in this Convention or out of it, and it does not become us to ask whence they came. The question is, what do they, now that they are here — be they Hebrews or negroes, be they Englishmen or Irishmen or Germans, or be they of whatsoever creed, race or clime, they having once stepped upon our shores, are free men, no matter whether their ancestors were sold to battle with us when we were in the throes of our revolution or were not — they stand here now our brethren within our Ameri- can citizenship. I would not have said so much, Mr. Chairman, had I not been taunted as I was yesterday by the gentleman from New York who just now called me to order. I am ready to be called to order if I am out of order, but I have a right to give my voice here upon this floor for my people, and I say that the men that live in my district, I don't care whether they live in single dwellings or in tenements, or whether they live in clubs, or where they live, they are citizens of this republic, and they will not take this provision that you are undertaking to put upon them, made out of the whole cloth, never before attempted to be imposed upon them by any Constitution or statute ever presented save only the law of 1857, which so soon was destroyed. They will not take that and swallow it, and you must listen and hear the voice that will utter when the polls shall be opened on that November day, so near at hand, when the result of your labors here will have been passed upon by the people. As I had the honor to say to this Convention the other day, I am perfectly content to stand upon the provision put in the chapter of 1873, by the Republican Legislature, under the sanction of the great committee of seventy, but not upon this which seems to have come from some body, called a " Committee of Twenty-one," about which so much has been said here. I don't know what that " com- mittee " is, or where it comes from. I remember the old story of the three tailors in Tooley street, who resolved, " We, the people 430 REVISED RECORD. [Tuesday, of England," and these men for aught I know may be the twenty- one new carpenters building constitutions for the people of the State of New York. But what is that to us? We are here upon our oaths, and with our own head-pieces to find out what we should do for the people, and then to do it according to the best of our ability. " The heads of all departments," said the Republican Legislature in 1873, "shall be removable by the mayor;" and as though that Legislature wished to emphasize that proposition, they very shortly after and in the same session passed a supplementary act relating entirely to the police force of the city of New York,' and they did not take one jot or tittle from the proposition that removal of the head of the New York police force should be made by the mayor of the city and not by the Governor. The proposition does not even seem to have been suggested. A great deal is said about the manner of government in the city of New York; whether the people there can govern themselves. The President referred to the trial through which that city passed in the year 1863, and his remark was a very strange one to me. I think it was George Opdyke who was the mayor of the city of New York — we had a loyal mayor then he says — and Horatio Seymour, not men- tioned by name, the then Governor of the State of New York, as brave, wise and patriotic a man as ever administered anywhere (applause) was referred to by the President of this Convention as a man who " was not disloyal." Not disloyal to the Republic during the war between the States? Well, certainly not. How many regiments were equipped by the people of the State under the admin- istration of Horatio Seymour and sent to the front? And there I am content to make one allusion to that great Democratic organiza- tion of which I am a member. We sent to the front during that war, ourselves, with our own money, we paid for, we equipped the Forty-seventh Regiment of New York Volunteers, and the bones of the great part of the regiment are moldering to-day under the very field of Gettysburg, to which the gentleman from Brooklyn referred in such eloquent terms this afternoon. And only within a year or so has that same Democratic organization, in the city of New York, raised a monument to the memory of those heroes there upon that same bloody field. I have nothing in the world to palliate in respect to my organiza- tion, or my friends in that organization, or my party in the city of New York, or my party anywhere else. Are we not patriotic? Do we not do our duty? Do we not pay you taxes to the ittmost of our capacity? Do we not follow wherever the welfare of the August 28.] CONSTITUTIONAL CONVENTION. 431 country demands that we should follow? I understand that in cer- tain minds in this Convention there is a synonym between good government and Republicanism. There is no synonym between the two words, as I read them, or in any dictionary, whoever may have edited it, whether it were the great Sam Johnson of former time, or the later Johnson of to-day, referred to by the gentleman from New York in his speech on Friday last. There is nothing that reaches me that those two words are synonymous. Gentlemen, I am content if you will give us a reasonable amount of home rule. You have been very frank with us to-day. You have said that you would take the words " home rule " from the title. Mr. Clark, the mismatched member from Tioga upon the Cities Committee Mr. J. Johnson — Mr. Chairman, I call the gentleman to order. It is entirely improper to refer to any member of the Cities Com- mittee in that way. The Chairman — The gentleman will proceed in order. Mr. Holcomb — Mr. Chairman Mr. Storm — Mr. Chairman, may I inquire what is the question before the committee? The Chairman — The question before the committee is the amendment offered by Mr. Holcomb. Mr. Storm — Let us confine ourselves to that then. Mr. Schumaker — Mr. Chairman, what objection can there be to referring to any member of a committee? I never heard of such a thing in any deliberative body that I have ever been connected with. The Chairman — Mr. Holcomb will proceed. Mr. Holcomb — All right, Mr. Chairman, if the "Storm" has subsided. I have almost finished. This amendment puts it in the power of the Governor to make these removals. The Governor never before has been given the power; he should not be given it now; it should abide where it has vested ever since the city has had any charge concerning it, where the right to it rests under our ancient charters, in the mayor, aldermen and commonalty of New York exercising governmental functions in that city. I do not believe that this Constitutional Convention should undertake to take those rights away or to interfere with them. It has the power undoubtedly. It has never been attempted but once: that was under the act of 1857, which was repudiated in 1870. and repudiation of which was made good in 1873. Mr. Chairman, if the power of appointment of officers be con- 432 REVISED RECORD. [Tuesday, tinned in the mayor, then the power of removal should abide there also. In respect to the first clause of my proposed amendment, that the mayor of the city shall be removable by the Governor, that simply is putting into the Constitution what is now the law of the State; it has been on the statute book for many years, and there is no reason why it should not be in the Constitution, indeed, there seems to me every reason why both propositions should be put into the Constitution, that there may be no doubt in the future as to what the delegates of the people meant when they were undertaking to discharge their duties here. I am sorry if anything has been said that ought not to have been said. I am very sorry if I have said anything that I ought not. I regret that anything was said yesterday that ought not have been said in respect to my colleagues upon this floor, or in derogation of our dignity as delegates here, but, it having been said, I deemed it my duty not to remain silent, and, having said this much, I am done so far as concerns this section three of this proposed amend- ment to the Constitution. (Applause.) The Chairman — The question is on agreeing to the amendment of the gentleman from New York (Mr. Holcomb) which the Secre- tary will read. The Secretary read Mr. Holcomb's amendment as follows: " The Governor, after notice and a hearing, may for cause and after the hearing remove the mayor of any city. In every city heads of departments, city officers and employes, including police- men and firemen, and all officers and employes whose powers and duties are limited to the territory of a city or part of a city, shall be chosen by the electors or appointed by the local authorities thereof." The Chairman put the question on the adoption of Mr. Hoi- comb's amendment, and it was determined in the negative by a rising vote, 41 to 70. The Chairman — Are there any further amendments to this section? Mr. Platzek — Before the adjournment I endeavored to present an amendment or a substitute. I was informed that there was a substitute before the Committee of the Whole, and that I would have to wait the disposition of that substitute, or possibly submit it as an amendment to that substitute. I want to be right and regular in the matter, and would like to take instruction as to how I should present it. The Chairman — That would be a matter for the gentleman from August 28.] CONSTITUTIONAL CONVENTION. 433 New York to determine, whether to present it as an amendment or as a substitute. Mr. Platzek — I will offer it as an amendment to the substitute of Mr. Blake now before the House, and ask to have it read. The Chairman — Are there any further amendments to the sec- tion? That will be perfected first, and then the Chair will rule that the substitute shall be perfected, and then the vote taken as to which the commitee will agree. Mr. Roche — I have an amendment to section 3. Mr. Platzek — Mine was an amendment to section 3 also. The Chairman — Yours was an amendment to the substitute. Mr. Platzek — I wanted to present it as an amendment to sec- tion 3, but you said there was a substitute which had to be disposed of first. The Chairman — The Chair will state that there is a substitute now before the body; that the section must first be perfected, then the substitute perfected, and then the question will be upon which the committee will agree to, the substitute or the original. Mr. Platzek — I desire, if that is so, to offer mine as an amend- ment to section 3, which will precede the substitute. The Chairman — Then will the gentleman state where it comes in the section — where the words are to be inserted in section 3? Mr. Platzek — I offer it as a general amendment to section 3. The Chairman — Then it would become a substitute. Mr. Platzek — Then I will ask the Chair to retain it on the desk until the amendment offered by Mr. Roche is disposed of. The Chairman — The Secretary will read Mr. Roche's amend- ment. The Secretary — Mr. Roche moves to amend by adding at the end of the section: " Nor shall this section be held to prohibit the Legislature from passing laws authorizing the election in any locality of the heads of the police force therein." Mr. Roche — Mr. Chairman, this section as I now read it, and as I suppose it is contemplated, provides simply for the appoint- ment of the heads of police, either by the mayor or by the mayor with the consent of the common council. Now that the method of appointment is not the only one that should prevail. We have had very many changes in our police force in the city of Troy during the 28 434 REVISED RECORD. [Tuesday, past thirty years and one of these changes was a law providing for the election of police commissioners by the people. I am not aware that we ever had any better police commissioners through the various methods of appointment which prevailed before that, and prevailed subsequently, than those secured by the elective system. It seems to me this section should be in such shape that if the people of any locality desire that the police commissioners shall be elected instead of appointed, the Legislature ought to be enabled to pass a law which would meet the wishes or demands of the people of that locality. The Chairman — The question is on agreeing to the amendment by Mr. Roche. Mr. J. Johnson — I quite agree with the suggestion made by Mr. Roche; but the section as it is simply says nothing about an election, it merely says that a certain person shall not appoint; I think there is no need of the amendment. Mr. Roche — Section 3 reads : " No law shall be passed conferring the power to appoint the head of the police force of any city or any city officer, except the mayor, or the mayor with the consent of the common council." Now, impliedly at least, it seems to me that is a declaration 'that the heads of police are to be appointed, and not to be appointed by any other local authority than the mayor, or by the mayor with the consent of the common council. If there is any doubt about that then certainly this amendment will remove it. Mr. J. Johnson — Will the gentleman from Rensselaer change his amendment so as to have it inserted after the word "council?" The lines near which he would present it, I understand, have been stricken out. Mr. Roche — I was not aware they were stricken out. I do not care in what particular place the words are inserted, so long as we have a provision in here which will render it certain that the people of the locality may be authorized by the Legislature to select the police commissioners at the polls. Where there is any doubt upon that subject I think it is grave doubt, and I would like to see it removed. The Chairman — The committee would like to know where it is to be inserted? Mr. J. Johnson — Where do you want it put? The Chairman — As at present it is inserted at the end of the section, wherever that ends. August 28.] CONSTITUTIONAL CONVENTION. 435 Mr. Roche — Yes. If the section has been stricken from line 3 down to line 12, then the amendment would come after the word " defense " in line 3. The Chairman — That would be at the end of the section as it now stands? Mr. Roche — Yes. The Chairman put the question on agreeing to the amendment offered by Mr. Roche, and by a rising vote it was determined in the negative — yeas 46, noes 68. Mr. Tekulsky — With reference to section 3, it appears to me that this Convention has devoted an unnecessary amount of time to it of no use to anybody. I can see nothing in that section that is of any good to anybody, be it either political or otherwise. Some person who concocted the idea of making a policeman the greatest man in the State of New York, or who had some fears of him, has tried to inject some reform into the Constitution. Now I have myself always considered that a police officer was simply the agent or servant of the people, and I don't want to go out of this Con- vention with the idea in my mind that I must be scared the first time I meet a police officer. You are doing it here. You are making more fuss over the head of the police department than you are over the judiciary, which is the most important measure you have passed here. I say to the delegates here present, if you are not careful with this amendment you certainly will ruin the judiciary article, which is, I think, a very good measure for the people of the State of New York. Why they have injected this police clause in here is something I cannot get through my brain, and I suppose the reason is because I am not a lawyer. It seems it has come into the brains of the lawyers that they must have something to do with it, because they have to do with the super- intendents of police. I don't know anything about that part. I don't know that they are going to usurp their powers or whether they are going to become lawyers, or whether they are going to take their clients away from them. For what reason they are try- ing to inject this into the Constitution is something more than I can understand. No State in the Union has had it. Of course you take it from Buffalo. I suppose, because of what, happened two years ago up there, and you want to take away the power from the mayor and give it to some one else to appoint that head of police. That is something that probably will never occur again during our time, and I say. for one, speaking as a Democrat upon this floor, that I ask the Democrats here not to bother themselves 436 REVISED RECORD. [Tuesday, with it any more, but if the Republicans desire to pass this measure, let them have it; give it to them, and the people will then resent it. The Chairman — Are there any further amendments to the sec- tion? If not, Mr. Platzek's amendment will be in order. Mr. Platzek — I offer the amendment. The Chairman — The Secretary will read it. The Secretary — Mr. Platzek offers the following amendment: " Section 3. The power to appoint and remove the heads of the police force of any city is vested in the mayor thereof, or in the mayor with the consent of the common council. The Governor may also remove the head of the police force of any city for cause, upon charges preferred before him, after notice and opportunity to be heard." Mr. Platzek — I ask, before I send the substitute, that the word " department " shall be inserted in the two places where the word " force " is, so that it shall read " head of the police department," instead of "head of the police force." The Chairman — The Chair rules that this is a substitute, and the first question will be on Mr. Blake's substitute. Mr. Bowers — I would like to know what we are voting on. Mr. Blake's substitute was read early this afternoon, and I would like to have it read again. The Chairman — The Secretary will read the substitute offered by Mr. Blake. The Secretary read the substitute offered by Mr. Blake, as follows : " Section 3. No law shall be passed conferring the power to appoint the head of the police force of any city on any city officer, except the mayor, or the mayor with the consent of the common council. The mayor may remove the official or officials or any of them constituting the police of any city for cause, upon charges pre- ferred before him; a copy of such charges shall be served upon the official or officials sought to be removed, and an opportunity afforded him to be heard in his own defense. " Upon such removal, the mayor may appoint the successor of any officer or officers so removed, and such successor or successors shall hold office during the unexpired term of the officer or officers so removed, and until their successor or successors, shall be appointed." The Chairman — The question is on the substitute offered by Mr. Blake. Mr. Blake — I desire to call the attention of the Convention to August 28.] CONSTITUTIONAL CONVENTION. 437 the fact that this substitute simply places in the hands of the mayor power to remove and power to appoint, where, it seems to me, it should be lodged. Mr. Bowers — Mr. Chairman, I presume that this substitute offered by Mr. Blake, and the substitute offered by Mr. Platzek, are the last substitutes upon which debate will be had of any moment, in this Committee of the Whole, on this most important question. Before the vote is taken I wish to say a few words which will express my own views and the views of some of my associates upon this entire bill as affected by this section. The first section of the bill, as it now stands amended, provides for separate elections in a form that will unquestionably be accept- able to a vast number of the minority delegates in this Convention, when the terms of the Governor and State officers shall have been fixed, as I understand they will be, to agree therewith, and the pro- visions as to giving home rule, in the fourth, fifth and sixth sections of the article, except so far as those sections provide for minority representation, may also be acceptable to very many of the minority delegates. In other words, Mr. Chairman, I am fully in accord with the principle of all those sections of the bill which provide for separate elections. These sections of the bill, as a whole, give bene- ficial results to the cities and State. They are wanted by the people of the cities, and they are wanted by the delegates to this Conven- tion. The question is whether the third section is framed in such form as to prevent the successful passage of this bill in this Constitu- tional Convention and its acceptance by the people afterwards. There have been suggestions made here that amendments pro- posed by certain delegates were calculated to defeat the effect of the entire article. But will gentlemen now bear in mind that the keep- ing in of this section No. 3, with the power vested in the hands of the Governor to take control of the affairs of any city in the State, are of such character as to prevent, to the knowledge of those who insist upon maintaining that provision, the other sections from being received by the people of the great cities of the State. They had better submit to the plunder to which they submit year by year, and to the passage of bills, political very many of them, than that their citizens should yield the independence and manhood which belongs to them as of right, by bowing down to the power of the Governor to come in and absolutely govern all the great and most important protective part of the city government. I speak now, because I feel very forcibly all the criticism that will be made as we pass on in this debate in the future, and when the responsibility for the defeat of this measure will be placed by one gentleman upon 438 REVISED RECORD. [Tuesday, another, and that other upon some third gentleman still further on. We are in accord upon the great principles, but we cannot agree on this question as to giving the Governor power which is now claimed for him. We have, this afternoon, been told the reasons for it. We have been told in plain and distinct language that it is proposed to have the Governor of this State manage the elections in different cities. It is a cause of complaint that there have been some wrongs done in some of the great cities during the past year; and because there were alleged frauds, nay, more, because they yere conceded frauds in Gravesend, and because there were some wrongs attempted in the city of Buffalo, and because there were wrongs attempted or done in the city of Troy, we are to have the whole theory of home rule turned upside down and a provision of law put in the Constitu- tion never before dreamed of. But does not the gentleman from Erie know that the people have already punished the wrong- doers for the election frauds to which he referred? Did not the city of Buffalo give an enormous Republican majority at the last election, at the very time when he claims that it was in danger? And have not the people all over the State already relegated these wrongs to th'e past and punished the wrongdoers? And have not we in the Convention itself, by our own votes of the minority, taken the last step to remove the wrongs that had been thus attempted or done? Mr. Chairman, with a past entirely cleared of all the wrong that was done or attempted to be done, what possible excuse can there be for so depriving cities of the home rule which has been theirs heretofore? Perceiving, as some of the leading men on the side of the majority did this afternoon, that the pursuit of this par- ticular section was one they could not afford to maintain in its then form, they pretended to offer to the delegates of this Convention, and to the people, some change. But was it a change which accom- plished anything? If so, we should be glad to consider it, for we are desirous of home rule, desirous of separate elections, and desirous that this bill shall be put in such form that when we can vote for it. But, Mr. Chairman, all that has been granted this after- noon is this: The Governor shall remove, and having removed, instead of his being given power to appoint for a period running through the unexpired term of the office of the mayor then sitting, it is now provided that the Legislature shall provide for filling the vacancy in office. Is there the slightest doubt that in answer to the suggestions that have been made to the Committee on Cities, and that have been made during the debate upon the floor of this Convention, the Legislature at its next session, if it should happen to be Republican in politics, would provide in language plain and dis- August 28.] CONSTITUTIONAL CONVENTION. 439 tinct that the Governor should do the very thing that the delegates on the floor of this Convention to-day have pretended to say that he should not do? Why should the power be left to the Legislature? Why should it be left to them to say how that vacancy should be filled, when it is the right of the people of the city of New York to fill their own offices, and to spend their own money in their own way, so long as they do not offend against the rights of any other citizen of the State? We would prefer the position we are in now; for if the mayor of the city of New York, or of any other city, refuses for a moment to remove a police officer when he should be removed, the Governor of the State can remove the mayor, and the mayor cannot remove the head of the police department except with the approval of the Governor. Standing, then, with all the protection that can possibly be asked by any citizen of any city, no matter where he lives, why is it that this provision is put in now? I say in all seriousness to you, gentle- men, who have led this Convention on the majority side, that you must appreciate that the keeping in of that provision means that support cannot be given to this bill by delegates from the cities. You only passed your judiciary article through this Convention and much other work with the aid and active assistance and participa- tion of many of the minority; why not give us a chance to work with you still further? \Vhy insist upon putting into this particular bill that provision against which we must protest? Why, if you insisted upon its being put into the Constitution at all will you not separate it and put it in a separate article, and have it voted upon separately, in order that the spectacle may not be presented to the people of the State of this Convention in one hand offering something and in the other taking away so much more that it may not be accepted? On this subject, I speak with the same earnestness that I have spoken at all times in this Convention. I hope that the sober second thought of the delegates will lead them to say that the obnoxious section may either go out altogether, or may be so changed as not to rob the cities of their manhood, and so changed that we may discuss the remaining sections of the bill unem- barrassed by this, and with the desire simply to perfect them, if they need perfecting, or put them into such shape that the cities of this State may receive some benefit from the holding of this Convention. I do not now say, and it is foreign to my purpose to suggest, that this section is being kept in with the intentional purpose of leading to the defeat of this bill. I have no such thought. I should not express it at this time if I had it. But I believe that the result is the same. And bringing it to your attention as I now do, in what 440 REVISED RECORD. [Tuesday, are probably the closing hours of this debate, I earnesly urge that the sober second thought which has so frequently come to the assistance of this Convention, may once more come to the front, and so permit that section to be amended so that the mayors of the cities shall be left with the right to govern their own departments and remove their own heads of departments, including the head of the police force, as exigencies or occasion may require; and not to insist upon injecting such a proposition into a bill spoken of as a bill intending to give home rule to the cities of the State. Mr. Platzek — Mr. Chairman, I can discuss the suggestions con- tained in my amendment in treating of the substitute presented by Mr. Blake. Many pessimistic views have been uttered, but never- theless I feel hopeful in view of the general sentiment that an agree- ment will be arrived at not alone satisfactory to the members of this Convention, but especially to the people whom we represent. We ought not from pride of opinion to stand here simply self- asserting, but we should realize that we are the agents of constitu- ents who expect us to perfect a Constitution which may be pre- sented to and voted upon by all the people. I am sufficient of an optimist to believe that before the fifteenth day of September we will have arrived at a satisfactory result, and one that will meet with the approval of the people. I should be sorry indeed if we had wasted four months of our own time and that of the people and their money, and merely present for the suffrage of the people a paper which they will reject. And it is in that view and in that spirit that I ask the attention of this Convention for a very few moments. The substitute, or the amendment to the substitute of Mr. Blake, which I offer, contains very few words, but in my humble opinion it contains all that is necessary as a constitutional declaration. The difficulty is and has been that there have been attempts to incorpo- rate in the organic law a statute dealing with details, when all that we are asked to do is to declare a constitutional principle. I differ with Mr. Blake in his substitute in this respect. Personally, I should be glad to see the amendment adopted allowing mayors to appoint the heads of the police departments, and allowing them to retain the absolute right to remove them; but I have no right to say that my judgment is supreme, and that men, older and younger in the Convention assembled, should not be consulted and that their views should not be accepted and respected. The suggestion which I make in my substitute, is that the mayor should have the right to appoint and to remove, and that the Governor should also have the right to remove the head of a police department — a concurrent right as August 28.] CONSTITUTIONAL CONVENTION. 441 between the Governor and mayor; leaving the right to appoint (in the event that the Governor removes) in the mayor — the respon- sible head of the municipality. I believe in forcible government. I believe in lodging the power in the head of the municipality, and holding the man who is the executive head responsible for the goor order and good government of the city; and because I believe that I want to confer the power upon him, and I want to hold him responsible for it, and not have that responsibility divided. If he errs, if he is dishonest, if he is partisan, the people of the city will rise and assert themselves, and will mete out justice to him, and to the political party which he represents. I belfeve that we can trust the people, and that we can let them have something to say in the con- trol of their municipal affairs. Much has been said about the State being in jeopardy because of the police force in the city of New York, or some other city. For fifty years we have lived under a system which gave to the Governor the right to remove the mayor, the executive head of the city, and the man who is responsible for the government of the municipality; and, therefore, the man who appoints the head of the police department, and who is held responsible for their good con- duct. That would be all sufficient in my humble judgment, where the power is lodged in the Governor to remove the mayor who controls the police. We do not have to go a step further and say that he shall not remove the police. But, assuming, for the sake of the argument — and I would bring about an agreement for the sake of all of us here, and I know that there are many of us here, both of the minority and of the majority, who are willing to leave some- thing to the Governor — assuming, for the sake of the argument, that we leave to the Governor the right also to remove the head of the police department — if that is what is going to be the panacea which will bring about good cheer, good will and good govern- ment; but I do not want to be left in the attitude when this Con- vention adjourns of having neglected my duty under my oath of office. I have listened with a great deal of pleasure to what the chairman of the Committee on Cities says about leading the chil- dren of Israel out of the bondage, but I tell you, as one of those children, that I do not want to be free myself at the expense of others; I do not want to leave the Democracy in bondage, and be' free myself. I will go a step further. It might as well be said that the federal government is not protected in the State or in the city, and that, therefore, there should be a national police, with a right in the President of the United States to remove the Governor, the mayor, or the head of any police department in any city of this REVISED RECORD. [Tuesday, great nation. By way of illustration, and as indicating the great dangers that are likely to happen, we have had a picture of Gravesend, and of Troy, and of Buffalo, and have been told in most pathetic tones — why, sir, if I were not so hard-hearted, and had not grown so old , I would have shed tears when I heard my friend, Johnson, as he depicted the woes of the citizens in those places where they are deprived of their rights, how the right of suffrage was denied them, and how they trampled upon the ballot, and how they trampled upon the liberties of the people. I arose after he took his seat, hardly believing that we were still here in a free country and among free men, but imagined that when he took his seat all of us would be incarcerated in some vile dungeon somewhere in these United States. But, notwith- standing all that, we are still here, a free and happy people, under a good State government, under an excellent municipal govern- ment, and in spite of such great differences of opinion the people of this great State will maintain a State government to look after their municipal affairs. Now, it is not denied that people have been arrested upon election day, sometimes through the ignorance of policemen, and other times from that of deputy marshals. The gentlemen who are here from Kings, and from Erie, have told of such cases there; and I have stood in a court of justice, too, and on election day have been before the United States commissioner, when hundreds of men were brought in before him upon warrants issued upon one hour's notice on election day, and they were brought in under federal authority under those warrants; and I say- here to you that of forty-seven cases that I tried myself before Commissioner Deuel at the last federal election, he in honesty and fairness discharged every man who was examined, because they were brought before him upon false accusations, and there was no doubt that the arrest was for no other purpose than to hinder them from getting to the polls in time to vote. Therefore, let us not quarrel about little things. If policemen in the cities of New York, or Buffalo, or at Gravesend, much as it may be regretted, may sometimes make mistakes, or even be under the direction of mis- guided or dishonest men, why, our country will nevertheless live; our State will go on; and our cities will still flourish. I hope most sincerely that the committee will adopt the substi- tute I have offered. I believe that it covers in toto all that is required. It provides for the appointment of heads of the police department by the mayor, with right in him to remove; and it also gives the Governor the right to remove the head of that department August 28.] CONSTITUTIONAL CONVENTION. 443 for cause, and after opportunity to be heard. It seems to me that it is fair, that it is honest, and that it is all that we want. The great cities of this State require home rule. They ought to have home rule. But they ought not to have given them that which is called home rule, but which is anything but home rule — centralization of the worst kind. That is all I wish to suggest at this time. Mr. Griswold — It is little more than a suggestion that I wish to make. The argument has been presented here, and I have heard it very often as being a paralled case to what is proposed here — that the Governor removes the sheriff, and, I think, the county judge and surrogate of the several counties when charges are made against them, and also appoints the persons to fill those offices in the time intermediate between the removal and the next election. It is suggested to my mind that originally, when the Constitution was first adopted, and that power was given to the Governor, there was no intermediate appropriate officer to exercise that power. What officer is there standing between the Governor and the dis- trict attorney, sheriff, county judge or surrogate, upon whom it would be appropriate to confer that power of appointment and removal? There is no other officer that I can think of upon whom it would be appropriate to confer that power standing between those officers of counties and the Governor. In this case it is entirely different from that. Here stands an officer — the mayor — between the heads of departments under the mayor (and who must necessarily control to a great extent), and there stands the Gover- nor of the State. It must be very evident that sixty delegates here cannot outvote the 125 in opposition. This whole question must stand as deter- mined by the Republican members who compose this Convention, and it is for them to consider for themselves whether for the sake of some little advantage which they conceive they might gain by having this power vested in the Governor, when, perhaps, they would have the Governor, it is worth while to stand out for it. Whatever the Republican delegates here say upon this subject they can make it so. There is no doubt about that, for I have never known a time when sixty men could outvote 125. It seems to me that the mayor is the appropriate officer. You say that you cannot trust him. Perhaps, that is because you think he may be a Democrat. Now it strikes me that the chief officer of the great city of New York — a city with a population larger than that of many States — will be a man whom the people can trust; that when the people of that city elect a mayor they will be likely 444 REVISED RECORD. [Tuesday, every time to select a man of character and standing, and I think that nine times out of ten it will happen in the future, as it has in the past, that the people of that great city elect to the office of mayor as capable and efficient an officer as the people of the State elect to fill the Governor's chair. I believe that they have done this in late years. Why, then, can we not trust that officer as the appropriate officer, or the officer immediately at the head of those departments. As I have said before, I live outside of the city, and had not pur- posed to say a word upon this subject, but the thought has sug- gested itself to me that there was an entire difference in the relationship and standing between those county officers and those heads of departments in respect to the question of removal. As to the heads of the departments, there is an appropriate and proper officer — the mayor; and I insist upon it that you are quite as likely to have as good a man, as honest a man, as faithful a man to admin- ister the affairs of that city, elected by the people of that city as mayor, as you are to have in the Governor's chair. It has been said a great many times that you ought not, and dare not, trust the mayor with the power that is appropriate and that properly belongs to the head of the city — to the man that the city will elect and must be responsible for. I submit that it would be better policy to dispense here with party feeling and not seek any future advantage, which is just as likely to turn against the party which attempts to obtain it as any other way, in the ordinary course of events, and according to my experience in political affairs. The Chairman put the question on the adoption of the substitute offered by Mr. Blake, and it was determined in the negative. The Chairman — The next question is on the substitute offered by Mr. Platzek. Mr. Bowers — What was the vote taken on? The Chairman — The vote was taken on Mr. Blake's substitute, and it was lost. Mr. Blake — I ask for a count. The Chairman — The Chair had rendered its decision before the count was asked for, but it will allow the count. The Chairman again put the question on the adoption of the amendment offered by Mr. Blake, and, by a standing vote, it was determined in the negative — yeas, 36; noes, 69. The Chairman — The question now is on the substitute offered by Mr. Platzek, which the Secretary will read. August 28.] CONSTITUTIONAL CONVENTION. 445 The Secretary — Mr. Platzek offers the following amendment as a substitute for section 3: " Sec. 3. The power to appoint and remove the head of the police department of any city is vested in the mayor thereof, or in the mayor, with the consent of the common council. The Governor may also remove the head of the police department of any city for cause, upon charges preferred before him, after notice and oppor- tunity to be heard." The Chairman put the question on the adoption of the substitute offered by Mr. Platzek, and, by a rising vote, it was determined in the negative — yeas, 37 ; noes, 70. The Chairman — The Secretary will read the fourth section. Mr. Durfee — Before the Secretary proceeds to read the fourth section Mr. Roche — Have we got through with the' third section, Mr. Chairman? I have an amendment to propose to the third section, and I did not understand that we were through with it. Mr. Durfee — I understand that I have the floor? The Chairman — Mr. Durfee has the floor. Mr. Roche — Has Mr. Durfee the floor for the purpose of mak- ing an inquiry with reference to the fourth section? The Chairman — I do not know, and cannot tell until I have an opportunity to hear what he says. Mr. Durfee will proceed. Mr. Durfee — I rose, Mr. Chairman, to inquire what part of sec- tion 3 was stricken out by the amendment offered by Mr. Brown, and which was adopted this afternoon? The Secretary — All after the word " defense," in the third line on page 3. Mr. Durfee — I wish, also, to inquire whether there was in that amendment anything which retains the power of removal in the mayor? My recollection is not very clear upon that point, and I would like to be informed. The Chairman — The Secretary will read the whole section as it now stands. The Secretary read section 3 as follows: " Section 3. No law shall be passed conferring the power to appoint the head of the police force of any city or any city officer, except the mayor, or the mayor, with the consent of the common council. The Governor may remove the official or officials or any of them constituting the head of the police force of any city for 446 REVISED RECORD. [Tuesday, cause, upon charges preferred before him; a copy of such charges shall be served upon the official sought to be removed, and an opportunity afforded him to be heard in his defense. Any vacancy in office caused by such removal shall be filled according to the provisions of section 3 of article 10 of the present Constitution." Mr. Durfee — All after the word " defense," in line 3 of the propo- sition as reported by the Committee on Cities having been stricken out, that part of the proposition which contains in express terms the power of the mayor to remove the head of the police seems to have been stricken out also ; so that as the section as amended now stands it would appear that the mayor had no such power. Now, Mr. Chairman, not being especially familiar with the affairs of cities, I feel great diffidence in suggesting any amendment to the proposition reported by the committee. The Chairman — I will suggest to the gentleman that the ruling will be that no further amendments can be made until the article has been gone through with. Amendments were called for the original section, that section was preferred, and then the substitute was perfected. Now, as the Chair understands it, the only time when further amendments can be offered \vill be after the other sections are considered, and then amendments generally will be in order. Mr. Durfee — I may, perhaps, be pardoned, since I have the floor under the ruling of the Chair, in making a suggestion to the chairman of the Committee on Cities, that there ought to be incorporated somewhere, by some amendment — which, as I very probably may not be here, I cannot myself make or offer — a pro- vision for continuing in the mayor the power of removal; since, so far as I am able to learn, everybody concedes that he ought to have that power, to be exercised in extraordinary cases. The Chairman — Such an amendment will be proper when amendments in general are in order, as they will be after the other sections have been gone through with. Mr. E. R. Brown — If I am in order I would move to reconsider the vote taken on the motion made by Mr. Jenks. I think that was voted down under a misapprehension. It was evidently offered for the purpose of accomplishing what Mr. Durfee desires to have accomplished, and what I desire to have accomplished; and to remove that doubt I do now move to reconsider that vote. The Chairman — The Chair is of opinion that it cannot be now reconsidered after the section has been perfected, but that it may be reconsidered when amendments in general are in order. August 28.] CONSTITUTIONAL CONVENTION. 447 Mr. Roche — Is another substitute in order now? Will another substitute to section 3 be in order at the present time? The Chairman — The Chair will hold that it will be. Mr. Roche — Then I desire to offer one, for the two-fold purpose of restoring the power to the mayor to remove the head or heads of the police force, and also for the purpose of getting rid of Mr. Brown's amendment, which was adopted this afternoon. Unfortu- nately for myself I was not present when that was voted upon. I want to say that I regard the proposition of the chairman of the Committee on Cities as much fairer and squarer; it is certainly as bold, as square and as plain as anything that can be produced on the subject; and I regard it as much fairer and squarer than these piebald affairs which have been offered and debated upon, pretend- ing to give the minority something which in fact they do not get. The Chairman — Will the gentleman send his amendment to the desk? Mr. Roche — I will in a moment, when I have completed it. Mr. Doty — I move that we proceed to the consideration of sec- tion 4. Mr. Cochran — May I ask what shape section 3 is in before we leave it? The Chairman — There is nothing before the House at present in respect to section 3. The question before the House is on the motion of Mr. Doty to proceed to the consideration of section 4. Mr. J. Johnson — In presenting section 4 — The Chairman — We have not got to it yet. The motion has not t>een put. Mr. Roche — I have my amendment ready for section 3. The Chairman — The motion of Mr. Doty is first in order. The Chairman put the question on the motion of Mr. Doty to proceed to the consideration of section 4, and it was determined in the negative. Mr. Roche — I now offer my amendment to section 3. The Chairman — Mr. Roche offers the following substitute for section 3, which the Secretary will read: The Secretary — " Section 3. Power to appoint or remove the head or heads of the police department of any city is vested in the mayor, or in the mayor, with the consent of the common council. "The Governor may also remove the head or heads of the police 448 REVISED RECORD. [Wednesday, department of any city for cause, upon charges preferred before him, after notice and opportunity to be heard. The Legislature shall provide .by general law for filling vacancies which may arise in the head or heads of the police force caused by removals by the Governor." The Chairman — This appears to be an equivalent motion, and it is so near the hour of adjournment that the Chair cannot decide the question as present, without an examination of other portions of other amendments or substitutes. Second Vice-President Steele resumed the chair, and declared the Convention adjourned until Wednesday, August 29, 1894, at 10 A. M. Wednesday Morning, August 29, 1894. The Constitutional Convention of the State of New York met in the Assembly Chamber, at the Capitol, Albany, N. Y., August 29, 1894. President Choate called the Convention to order at ten o'clock. The Rev. J. H. Messenger offered prayer. On motion of Mr. A. H. Green, the reading of the Journal was dispensed with. Mr. Tibbetts — Mr. President, I have an unexpected business engagement Friday and Saturday, and I desire to be excused for those days. The President put the question on granting leave of absence to Mr. Tibbetts, and it was determined in the affirmative. Mr. Redman — Mr. President, I desire to be excused on Mon- day and Tuesday next on account of an important business engagement. The President put the question on granting leave of absence to Mr. Redman, and it was determined in the affirmative. Mr. Herzberg — Mr. President, I ask to be excused for Friday and Saturday. The President put the question on granting leave of absence to Mr. Herzberg, and it was determined in the affirmative. Mr. Durnin — Mr. President, Mr. Schumaker has been called home on account of serious illness in his family, and he desires to be excused until Monday next. The President put the question on granting leave of absence to Mr. Schumaker, and it was determined in the affirmative. August 29.] CONSTITUTIONAL CONVENTION. 449 Mr. Springweiler — Mr. President, I ask to be excused from the sessions Friday, Saturday and Monday. The President put the question on granting leave of absence to Mr. Springweiler, and it was determined in the affirmative. Mr. Goodelle — Mr. President, I ask that Governor Alvord be excused to-day on account of illness. The President put the question on granting leave of absence to Mr. Alvord, and it was determined in the affirmative. Mr. Arnold — Mr. President, I ask to be excused for Saturday. The President put the question on granting leave of absence to Mr. Arnold, and it was determined in the affirmative. Mr. Blake — Mr. President, I would like to be excused for next Monday. The President put the question on granting leave of absence to Mr. Blake, and it was determined in the affirmative. Mr. Foote — Mr. President, I have a report The President — One moment, Mr. Foote, I have a dispatch from Mr. Cornwell, asking that for necessary causes he be excused for the rest of the week. The President put the question on granting leave of absence to Mr. Cornwell, and it was determined in the affirmative. Mr. Foote — Mr. President, the Committee on Revision and Engrossment presents several reports. The President — Will you hold that for a moment, Mr. Foote? Memorials and petitions are in order. Notices, motions and resolutions. Mr. Porter — Mr. Turner would like to be excused- for to-day and to-morrow, on account of illness. The President put the question on granting leave of absence to Mr. Turner, and it was determined in the affirmative. Mr. Hamlin — Mr. President, I would like to be excused on Monday. The President put the question on granting leave of absence to Mr. Hamlin, and it was determined in the affirmative. The President — Reports of committees are in order. Mr. Foote, from the Committee on Revision and Engrossment, to which was referred the proposed constitutional amendment intro- duced by Mr. Tucker (introductory No. 191), reported by the Com- 20 450 REVISED RECORD. [Wednesday, mittee on Preamble and Bill of Rights and from the Committee of the Whole, entitled " Proposed amendment to amend article I of the Constitution, as to damages for the loss of human life," reports the same as examined and corrected, and as correctly engrossed. The President — This will be put upon the order of third reading and reprinted, unless it has already been printed in the exact shape it comes from that committee. Mr. Foote, from the same committee, to which was referred proposed constitutional amendment introduced by Mr. Vedder (introductory No. 216), reported by the Committee on Powers and Duties of the Legislature and from the Committee of the Whole, entitled " Pro- posed constitutional amendment to amend section 10 of article 3 of the Constitution," reports the same as examined and corrected, and as correctly engrossed. The President — Same disposition. Mr. Foote, from the same committee, to which was referred the proposed constitutional amendment introduced by Mr. O'Brien (introductory No. 119), entitled " A proposed amendment to amend section 3 of article 2 of the Constitution, as to the suffrage," reports the same as examined and corrected, and as correctly engrossed. The President — Same disposition. Mr. Foote, from the same committee, to which was referred the proposed constitutional amendment introduced by Mr. Alvord (introductory No. 9), reported from the Committee on Salt Springs and from the Committee of the Whole, reports the same as exam- ined and corrected, and as correctly engrossed. The President — Same disposition. Mr. Foote, from the same committee, to which was referred the proposed constitutional amendment introduced by Mr. Hill (intro- ductory No. 183), in regard to the suffrage, reports the same as examined and corrected, and as correctly engrossed. The President — Same disposition. Mr. Foote, from the same committee, to which was referred the proposed constitutional amendment introduced by Mr. Doty (intro- ductory No. 86), reported by the Committee on Judiciary and from the Committee of the Whole, reports the same as examined and corrected, and as correctly engrossed. The President — Same disposition. Mr. Foote, from the same committee, to which was referred the proposed constitutional amendment introduced by Mr. McMillan (introductory No. n), reported from the Committee on Legislative August 29.] CONSTITUTIONAL CONVENTION. 451 Powers and Duties and from the Committee of the Whole, reports the same as examined and corrected, and as correctly engrossed. The President — Same disposition. Mr. Foote — Mr. President, I wish to call attention to the fact that three reports from the Committee on Revision were by motion laid upon the table. Before they can be put upon the order of third reading, it will be necessary under the rules that they be printed. I suggest that they be printed at this time. The President — They have already been printed. Mr. Springweiler — Mr. President, I move you, sir, that general order No. 69 be made a special order for Thursday morning, and on that I will demand the ayes and noes. The President — Thursday of this week or next? Mr. Springweiler — Thursday morning. The President — To-morrow morning? Mr. Springweiler — Yes, sir. The President — Mr. Springweiler moves that general order No. 69 be made a special order for to-morrow morning. Gentlemen will bear in mind that this requires a two-thirds vote. The Chair is of the opinion that that will bring it on after the matters already made a special order before that time are disposed of. Mr. Springweiler — Mr. President, I call for the ayes and noes on that. The President — Those who will sustain the call for the ayes and noes on the motion to make it a special order for to-morrow morn- ing will rise and stand until they are counted to the number of fifteen. The call was sustained. The President — The Secretary will call the roll. The Secretary called the roll, and the motion was lost by the fol- lowing vote (not a two-thirds vote) : Ayes — Messrs. Ackerly, Baker, Banks, Becker, Blake, Bowers, Campbell, Carter, Chipp, Jr., H. A. Clark, Cochran, Coleman, Dan- forth, Davenport, Deady, Deterling, Deyo, Dickey, Durfee, Durnin, Faber, Forbes, Francis, C. A. Fuller, Gibney, Giegerich, Gilbert, A. H. Green, Hecker, Hedges, Herzberg, Hill, Hottenroth, Jacobs, Jenks, I. S. Johnson, Kellogg, Kimmey, M. E. Lewis, Marks, Maybee, J. W. McLaughlin, Moore, Mulqueen, Nostrand, Ohmeis, Osborn, Parker, Parmenter, Peabody, Platzek, Porter, Powell, Putnam, Redman, Roche, Rogers, Sandford, Smith, Springweiler, 452 REVISED RECORD. .[Wednesday, W. H. Steele, T. A. Sullivan, W. Sullivan, Tibbetts, Titus, Tucker, Veeder, Whitmyer, Woodward — 69. Noes — Messrs. Abbott, Allaben, Arnold, Barrow, Bigelow, Cady, Cassidy, Church, G. W. Clark, Cookinham, Davies, Dean, Doty, Emmet, Floyd, Foote, O. A. Fuller, Galinger, Goodelle, Hamlin, Hawley, Hirschberg, Holls, Kinkel, Lester, C. H. Lewis, Lyon, Manley, Marshall, Mclntyre, McKinstry, McMillan, Mere- ness, Morton, Nichols, O'Brien, Parkhurst, Pashley, Peck, Pratt, Root, Spencer, A. B. Steele, Storm, Vedder, Vogt, Wellington, President — 48. Mr. Bowers — Mr. President, before we go into general orders I would like to ask for a report from the Committee on Governor and State Officers as to the change of term, if there is any to be made, of those officers. I ask for it because it may have a material bearing upon our action in reference to the cities article. Mr. McMillan — Mr. President, the Committee on Governor and State Officers have already reported verbally to the Convention, and when they make a written report it will be in accordance with the action of the Convention on the cities article. The Committee have agreed on a report to conform with the action taken upon the cities article. That has been stated here time and time again by the chairman of the Cities Committee and by the chairman of the Committee on Governor and State Officers. Mr. Bowers — Air. President, I submit that the report of the Committee on Governor and State Officers will have a material bearing upon the cities article. I have already stated how it will affect it. Now, as it is stated by the chairman of the Committee on Governor and State Officers that that committee is ready to report, there seems to be no reason for withholding it any longer. This Convention has ordered all of the standing committees to report by a certain day, and as their report is ready I do not see why it should not be put in. Mr. McMillan — Mr. President, there is every reason why that report should be withheld, because if made now it may not be as the final determination of the Convention will be on the cities article. Whatever the report may be, it will be made to conform with the disposition of that article. Mr. Osborn — Mr. President, a similar question has been raised in reference to the terms of Assemblymen and Senators. In refer- ence to this whole subject I desire to say that it has always seemed to me that the duty of a committee to which was intrusted the question of the term of such important officers as the Governor, August 29.] CONSTITUTIONAL CONVENTION. 453 Senators and Assemblymen would be to give an opinion to this Convention based, not upon their desire to facilitate the passage of the cities article, but upon their calm, deliberate judgment as to what term -would be most desirable for the Governor, or for a Senator, or for an Assemblyman. The duty of the committee, in my judgment, is to examine into those subjects upon their own merits; to report to this Convention what in their judgment is the proper term for Gov- ernor, and the proper term for Senators and Assemblymen, and then having made that recommendation to the Convention, allow the Convention, which is in possession of the entire subject, includ- ing the questions of the cities article, to determine what compensa- tion and what changes shall be made in those three classes of officers to meet the needs of the State. The Convention is entitled to hear from the committees their opinion as to what is the correct term of those various officers unprejudiced by what may be the demands of the cities amendment. Therefore, Mr. President, I think it is desirable that the Committee on Governor and State Officers should report what is the correct term for Governor and that the Committee on Legislative Organization should report as to the Senators and Assemblymen. The President — If the Chair correctly heard the report of the Committee on Legislative Organization, they did report as to the terms of Assemblymen. Mr. Osborn — I did not wish to state that they had not reported. Mr. Root — Mr. President, there seems to be no matter before the Convention now, except the giving of instructions by various individual members of the Convention to the Committee on Gover- nor and State Officers and the expression of individual opinions as to how that committee ought to perform its duties. If I am right about this, I move that we go into general orders. Mr. Bowers — Mr. President, I make the point of order that this Convention having ordered that all committees report by a certain time, that a report is in order from the Committee on Governor and State Officers. It is quite important that we should hear why they do not report. The President — Mr. Bowers is entirely in error. There is no motion before the House. Mr. Cochran — Mr. President, I would like to make a motion, sir, and that is that the Judiciary Committee be instructed to forthwith make their report in response to resolution No. 113 of Mr. Bigelow, of July tenth, as to the latest day which this Convention can consist- ently sit upon the work in which they are no\v engaged. I think, sir, 454 REVISED RECORD. [Wednesday, that this is a very important matter, and we should have had a report before this. We see in the papers that it is contemplated that this Convention sit until September fifteenth, and then adjourn until the fifteenth of November. I think it is important that we should hear from this committee. The President — The question is on the motion of Mr. Cochran. Mr. Maybee — What was that matter, Mr. President? The President — That was as to how long this Convention can sit, and what the law is as .to the publication of its work prior to its submission to the people. It must be submitted to the electors this year, or may be next year. Mr. A. H. Green — I concur with Mr. Osborn entirely in his suggestion about this matter, and it is a matter which occasions some embarrassment The President — This is another matter, Mr. Green. Mr. Osborn referred to another matter. This motion is to require a report from the Judiciary Committee. Mr. Root — Mr. President, may I inquire what has become of the motion that I made to go into general orders? The President — The Chair rules that it does not require a motion to go into general orders on the cities article, under the order of the Convention. Mr. Roche — Mr. President, it seems to be entirely probable that there are certain matters of an important character which will take up the greater time of the Convention, if, indeed, they do not take up all the time of the Convention between nbw and the fifteenth of September. We have made certain of these matters special orders in order that they might be considered fully by the Convention. The President — Is Mr. Roche speaking to Mr. Cochran's motion? Mr. Roche — No, Mr. President. The President — The question is on Mr. Cochran's motion to instruct the Judiciary Committee to report forthwith on the matter referred to them on July tenth. Mr. Cochran — On that I call for a rising vote. A rising vote was had, and the motion of Mr. Cochran prevailed by a vote of 68 ayes, 27 noes. Mr. Bowers — Mr. President, I move that the Committee on Governor and State Officers be required to report forthwith. August 29.] CONSTITUTIONAL CONVENTION. 455 The President — Mr. Bowers moves that the Committee on Gov- ernor and State Officers be required to report forthwith. Mr. McMillan — Mr. President, I desire to say a word to the Convention upon that suggestion or motion. As I have already stated, the Committee on Governor and State Officers have agreed among themselves to make a report in conformity with the cities article. The cities article is the only one that makes any change in the offices necessary. If the Convention sees fit to make no change in the cities article, no report will be made from the Committee on Governor and State Officers changing the term of said officers. If any change is necessary, it will either be a change of two or four years, as the Convention may take action on that article, and until that article is disposed of, it seems to me entirely unnecessary to take the time of the Convention, because the committee will be entirely governed by the action of the Convention on the cities article. Mr. Bowers — The reason we ask for the report, Mr. President, is because we want to know whether the committee is to report two or four years. We wish to know it now before we vote upon this cities article, and I see no reason why they should not tell us if they have come to a decision. Mr. Roche — Mr. President, there is another matter in this report besides the matter whether the term will be two or four years. A proposition has been referred to and considered by the committee providing for the election by the people of the Superintendent of Public Works, instead of his appointment by the Governor. It has also been proposed and referred to the committee and considered by them (I do not know whether favorably or unfavorably) that the officers of State Engineer and Surveyor and Superintendent of Public Works should be consolidated into one. Now, these are both matters of considerable importance and it seems to me that we should have a report from this committee at as early a date as pos- sible, and the time now seems to have arrived, in order that we may know what they have done upon these two propositions besides the question of whether the term of Governor and State officers shall be two or four years. I hope that we will get a report from the committee some time to-day on these two subjects. Mr. McMillan — Mr. President, I move to lay the motion of Mr. Bowers upon the table. The President put the question on the motion of Mr. McMillan to lay Mr. Bowers's motion upon the table, and it was determined in the affirmative by a rising vote of 75 ayes, 29 noes. 456 REVISED RECORD. [Wednesday, Mr. Roche — Mr. President, I was remarking a short time ago that probably the time of this Convention from now to the fif- teenth of September would be taken up, if not entirely, almost entirely, by matters of very considerable importance. I, therefore, desire that this Convention should at some stage consider what I deem to be one of the most important matters that can come before it and that can come before the people, and that is the care and the improvement of the canals of the State. Up to this time we have presented the very unusual and extraordinary spectacle of not a word being uttered in this Convention relative to these great public works of the State of New York, which are connected with our his- tory from almost the beginning of the State, which are the pride of the State, and in whose importance and management the commer- •cial supremacy of this State is so largely involved. Now, sir, I say this is unusual, for any person who will examine The President — There is no motion before the Convention, Mr. Roche. Mr. Roche — I am going to make a motion, Mr. President, and my remarks will be very brief. For any person who will examine the records of the Constitutional Convention of 1821, the Conven- tion of 1846, and the Convention of 1867, will at once see that the great men of the State devoted a great part of their time in those Conventions to looking after the welfare of the canals of the State and considering what measures would best promote their interests and improvement. Now, sir, these canals are in such a state to-day, and the demands of commerce are in such a state to-day, that we ought to do something on a large and liberal scale relative to these great public works. I, therefore, move, Mr. President, that after the report of the Committee on Legislative Apportionment is con- sidered and disposed of, that this Convention take up and make a special order for the consideration of the several propositions before us relative to the care, improvement or management of the canals of this State. Mr. Becker — Make it next after. Mr. Roche — Next after, yes. Mr. Kellogg — Mr. President, I move to lay that motion upon the table, and upon that I move the previous question. Mr. Veeder — I ask for the ayes and noes. The President — Mr. Roche moves that the canal question be made a special order immediately after the conclusion of the appor- tionment matter. Mr. Kellogg moves to lay that motion upon the August 29.] CONSTITUTIONAL CONVENTION. 457 table. Mr. Veeder calls for the ayes and noes upon the motion to lay upon the table. The call for the ayes and noes was sustained. The Secretary proceeded to call the roll. Mr. Abbott — Mr. President, I am not in favor of this proposi- tion, for the simple reason that I am opposed to making so many special orders. While I favor the proposition of Mr. Roche, I am opposed to making- it a special order, and I, therefore, vote in the affirmative. The motion to table the motion of Mr. Roche was determined in the affirmative by the following vote: Ayes — Messrs. Abbott, Ackerly, Allaben, Arnold, Barhite, Bar- iwm, Becker, Bigelow, E. A. Brown, Cady, Carter, Cassidy, Church, G. W. Clark, H. A. Clark, Cookinham, Davies, Dean, Deterling, Dickey, Doty, Durfee, Faber, Augustus Frank, Fraser, Galinger, Gilbert, Goodelle, Hamlin, Hawley, Hecker, Hedges, Holts, Jacobs, I. S. Johnson, J. Johnson, Johnston, Kellogg, Kinkel, Kurth, Lauterbach, Lester, C. H. Lewis, Lincoln, Lyon, Manley, Mar- shall, Maybee, Mclntyre, McKinstry, C. B. McLaughlin, McMillan, Mereness, Morton, Nichols, Nostrand, O'Brien, Parker, Parkhurst, Pashley, Powell, Putnam, Redman, Root, Spencer, A. B. Steele, W. H. Steele, Storm, T. A. Sullivan, Tibbetts, Vedder, Vogt, Wel- lington, W'iggins, Woodward, President — 76. Noes — Messrs. Baker, Banks, Barrow, Blake, Bowers, Bush, Campbell, Chipp, Jr., Cochran, Coleman, Countryman, Danforth, Davenport, Deady, Deyo, Emmet, Farrell, Fitzgerald, Floyd, Forbes, Francis, C. A. Fuller, Gibney, Giegerich, A. H. Green, Gris- wold, Herzberg, Hirschberg, Holcomb, Hottenroth, Jenks, Ker- win, Kimmey, Marks, McDonough, J. W. McLaughlin, Meyen- borg, Mulqueen, Nicoll, Ohmeis, Osborn, Parmenter, Peabody, Peck, Platzek, Roche, Rogers, Sandford, Smith, Speer, Spring- weiler, W. Sullivan, Titus, Towns, C. H. Truax, Tucker, Veeder, Whitmyer — 59. The Convention resolved itself into Committee of the Whole on general order No. 13, the cities article. Mr. I. S. Johnson in the chair. M. J. Johnson — Mr. Chairman, I believe the pending ques- tion is whether the amendment of the gentleman from Rensselaer, Mr. Roche, is an equivalent amendment. The Chairman — The substitute of Mr. Roche. 458 REVISED RECORD. [Wednesday, Mr. Johnson — Mr. President, I raise the point of order that it is an equivalent motion and not in order. The Chaicman — The Chair understands that Mr. Roche desires to perfect or correct the substitute. Mr. Roche — Mr. Chairman, as the members well know, when the amendment was drawn last evening it was done very hastily. I would like, therefore, to offer for it this morning, a substitute amendment, which I will now send to the Clerk's desk. In the same connection, I desire to say that having last evening- characterized the amendment of Mr. Brown in certain terms, which was also done hastily, and not with a full knowledge of the exact character of his amendment, I desire to say that if there was anything in the slightest degree disrespectful either to Mr. Brown or to his motives in offering the amendment, it was far from my intention to indulge in any such thing. The Chairman — Will Mr. Roche send his substitute to the desk? Mr. Roche — Yes, sir; I offer it and send it up to the desk. The Chairman — The Secretary will read the amendment. The Secretary read the amendment as follows : " The power to appoint the head or heads of the police depart- ment in any city where such officers are appointed, and whether elected or appointed, to remove them or any of them for cause and after hearing, shall be vested in the mayor, or the mayor, with the consent of the common council, as shall be prescribed by law. The Governor also may remove the officers or any of them consti- tuting the head of the police department in any city for cause and after a hearing." Mr. Johnson — Mr. Chairman, I submit that that is an equivalent motion and has been embodied in other amendments and substitutes that have already been passed upon. I raise the point of order that it is out of order. The Chairman — The Chair will hear Mr. Roche on that. Mr. Roche — Mr. Chairman, I desire to say that it is not an equivalent motion. The proposition that is now before the commit- tee is that of the Committee on Cities, section 3. Their report is amended by Mr. Brown and it leaves the section in just this shape : That the mayor, or the mayor, with the consent of the common council, may appoint the head or heads of police departments and the Governor alone is authorized to remove them. Now, I do not think that the Convention intended that the power of removal should be confined to the Governor alone. On the contrary, I August 29.] CONSTITUTIONAL CONVENTION. 459. believe that the wish of the Convention is that the power of removal should be concurrent; that it should be with the mayor and with the Governor, both of them. In that respect, while this proposition is entirely different from the square proposition of Mr. Platzek, there is another point of difference, Mr. Chairman. This whole section, as it now stands simply relates to the appointment of heads of police and to the removal of heads of police, where those officers are appointed. Now, there are certain cities of this State in which the police commissioners are elected by the people, and this contains no provision whatever for their removal either by the mayor or by the Governor. So I put in here in my amendment a subject which has not been considered by the committee at all, and that is, whether they are elected or appointed they may be removed by the mayor, and they may be removed by the Governor for cause. Now, in those respects I say the proposition is different from any of those which have been voted upon by the committee. The Chairman — The Chair holds that Mr. Johnson's point of order is not well taken. The question is on the substitute of Mr. Roche. Mr. Roche — Mr. Chairman, when this proposition was first reported from the Committee on Cities, some of my distinguished Democratic friends (for whose political opinions as well as for whose judgment I have great respect) announced themselves as not opposed to the idea that the Governor of the State should have the power in certain contingencies of removing the heads of police departments. I concurred with them in that opinion, and I have heard nothing since which would induce me to change. I believe there are certain subjects or matters which are purely and properly matters of municipal rule or regulation, and that to a great extent they are pointed out in section six, or rather in section five of this report of the Committee on Cities. I believe that there are certain other matters, the management and control of which sh6uld be largely invested in the local authorities, with a supervisory power, however, in the Governor of the State. The Constitution of the United States guarantees to every State a republican form of gov- ernment. It guarantees to protect the State not only against foreign invasion, but also against domestic violence and disturbances of the peace. I believe the State of New York should hold the same rela- tion to every division of the State that as to matters which concern the State at large; the peace, good order and welfare of the State, like the police government and matters relating to the health of the State, the State itself should exercise some supervisory power. Now, sir, the cities of this State, according to the figures which 460 REVISED RECORD. [Wednesday, have been submitted here, constitute the major portion of the popu- lation of the State. They are constantly increasing in importance .and population. If you look into the future (and we are not mak- ing laws for to-day, and next year), we may honestly and conscien- tiously discern questions and problems arising in the cities of this State, in the great centers of population and wealth (and I say this with full confidence in the people of the State), I say they may dis- •cern questions and problems which will render it highly important, not only to the dweller in the city but the dweller in the hamlet. That the Governor of the State, charged with the faithful execution -of the laws of the State, shall be able to go into the city and if the mayor, either through ignorance, or dishonesty, or corruption, or indifference, or in false sympathy with matters which are inimical to the best interests and prosperity of the State, neglects to do his -duty, that the Governor, acting for the people in that locality as well as acting for the people of the State in a matter which concerns the general welfare, may be able to correct the abuse. I believe, how- ever, that when we have given the Governor that power we should stop. I think it is the sentiment of this Convention that the Governor of the State should not be permitted to go into the cities -and name its local officers, even if those officers perform duties and exercise functions which have an interest and concern for the people at large. The history of every Constitutional Convention in this State is a step forward, a march in the direction of giving the people in the different localities greater control over municipal affairs and over the selection of public officers. We have done -away with the council of appointment. We have done away with those boards which selected for the people of the localities all their public officers, which provided that the Governor of the State might select and under which he did select the mayors of the cities of the State, and I say that to-day we ought not to go backward and place in that functionary the power of appointment of the officers who are to control the administration of the police affairs of the cities. I do not anticipate that any trouble will come by giving the Governor the power of removal. On the contrary, I believe that it will be a spur and an incentive for the police officers to do their whole duty and to •do it faithfully and well, with knowledge of not only what they owe to the law and what they owe to the people residing in the locality, but what they owe to the State, and that their failure from indiffer- ence, from neglect, will be reproved and they may be deprived of their positions by a power which has under its control and which is •charged with the duty of seeing that the laws of the State are •executed. August 29.] CONSTITUTIONAL CONVENTION. 461 It has been suggested that if the Governor removed a delinquent police officer, the mayor of the city might appoint the same mart: over again. I think the idea, Mr. Chairman, is a far-fetched one. I do not believe that the mayor of any city will so fly in the face of public opinion, of what is decent, of what he owes to himself, of what he owes to the locality and what he owes to the chief magistrate of the State, as to make any such selection; and it has been weir answered here that if he did, the Governor of the State might well take notice of it and remove the head of the city government itself. Mr. Vedder — Mr. Chairman Mr. Roche — Pardon me, Mr. Vedder. Were you not under the impression that I was through? Mr. Vedder — Yes. Mr. Roche — I was not. The Chairman — > Mr. Roche has the floor. Mr. Roche — Now, Mr. Chairman, this proposition of Mr. Brown leaves it in the power of the Legislature to provide for filling; vacancies where the officer is removed by the Governor and it prescribes the way the vacancy shall be filled pursuant to the pro- visions of section 10, article 5 of the present Constitution. Nowr I submit that that is bad form, to say the least. The Constitution that we will adopt here will go into effect, if approved by the people,, on the first of January next, and will be the Constitution of the State, and it seems to me, therefore, that it is not a proper thing to> make reference to the Constitution that has already been done away with and that the court should be called upon to cojistrue it by reference to a Constitution that is not now in force. It seems to me, therefore, that the words " the present Constitution " are highly objectionable. The provision is an anomaly. You propose to give the mayor power to appoint. You are willing to intrust him with that power originally. You believe that is a measure in the direction of home rule; that it is logical and consistent with the provision in your Constitution. Now, if this man that is appointed is removed by the Governor with no probability whatever of the reappointment of that official, why call in the aid of the Legislature or of any public state officer to fill that vacancy? You declare in your section that the mayor shall appoint, and why take away from him the power to appoint in case of the vacancy and vest it in some other officer? It seems to me that it makes entirely an illogical and inconsistent provision out of this section of the Con- stitution. There is no necessity for it whatever. You trust the mayor in one place, and the filling of the vacancy may safely be 462 REVISED RECORD. [Wednesday, left to him. It has been suggested by a friend near me that he may appoint over again. I supposed that I answered that propo- sition a few moments ago and cannot answer it any better than I did. But if you leave it to the Legislature you may have a rule of -conduct in one place and an entirely different rule in another place. Under the stress of political excitement, of political necessity, if proceedings should be had for removing the head of a police depart- ment in a city and the Governor for cause should remove him, it may be found that the persons in political accord with the Gov- •ernor and in political accord with the Legislature would go before the Legislature for a special act, be it Troy or Syracuse or any other place, and that an act would be passed for filling the vacancy, and that in anticipation of what the Governor may do or is likely to do in reference to the charges before him. Thus you would have propositions for filling the vacancies in one place of an entirely different character from that which may prevail in another place. That may be entirely true even of the man occupying the office of chief magistrate of this State. I have seen that able and patriotic Governor, John A. Dix, approve against his own judgment an act in reference to the police of the city of Troy, at the earnest request of Republicans of the city of Troy whose character and influence he respected so highly that he could not withstand their importunities. That act, by the way, was declared by the Court of Appeals within six months after its passage to be unconstitutional. At times the very best of men urged by political necessities, or political excitement, or what they believe to be the needs of the party in their locality, may urge the Legislature and may urge the Governor to do something which in their calmer moments they \vould not think was wise and prudent. Sometimes, in both parties, we ask to be saved from ourselves and our friends, and oftentimes we are glad that we were not able to accomplish some of the things that we set out to do. Now, Mr. Chairman, I ask that this provision be put in a con- sistent shape. Let the mayor, or the mayor and common council •combined, to whom you give the power originally, let them have the power to fill the vacancy, the short term, as well as the full term, and do not inject the Governor or Legislature of the State into the locality. It seems to me that all it is desired to do, all the evils, •whether existing or apprehended, that it is desired to meet and over- come, can be fully met and can be fully overcome, and that the interests of the people at large can be fully subserved by a wise provision that the Governor may step into the locality and for cause remove the head or heads of police departments, and when August 29.] CONSTITUTIONAL CONVENTION. 463 you have accomplished that, it is all that is necessary. Then let your municipal machinery go on as it did before, and let the place be filled by those who from local knowledge and local conditions are able to select the most able and suitable person to fill the place. Mr. Parmenter — Mr. Chairman, I have a few observations I would like to make with reference to some of the provisions of this proposed amendment, and I may as well make them on this motion now before the committee as at any other time. They will be very brief. It would seem from some of the observations made by gentlemen here that the city in which I reside, and in which I have resided since 1846, is in some measure responsible for the framing of certain provisions in this article. Now, I am not quite satisfied with any proposition I have yet heard upon this subject, and, although I say it myself, I have had some experience in the law department of the city of Troy, being the predecessor of my friend (Mr. Roche) for a great many years; and I have some knowledge as to the workings of the police system in the city of Troy. Now, the question is, in case of any dereliction in the superintendent or the police commissioners of a city, who should have the power of removal and who the power of appointment to fill vacancies in such cases? It has been asked, if the Governor can remove the sheriff, or the county clerk, or the surrogate, why should he not be permitted to remove members of a police department? I think that has been substanti- ally answered in the course of the debate. Who would you get to remove a sheriff in a county? Certainly no one can suggest any other proper person. The only judicial person who would probably have cognizance over the sheriff of a county for any dereliction would be the county judge, and yet his duties are so closely con- nected with those of the sheriff and the county clerk that no one would like to intrust such a responsible power in his hands. It is alt well enough for the Governor to remove the sheriff, to remove the county clerk or the surrogate, or even the mayor; but when you go one step further, and say that the Governor shall look into the police commissioners' room and remove them, or some of them, for any improper conduct, it seems to me that it is going a little too far. Now, let me recall to the minds of gentlemen here, who may not be as familiar as Brother Roche and myself and Mr. Peck are about these matters in cities, to some of the changes that have been made in the police department of the city of Troy since I became a resident of that city in 1846. We then had a night watch- men system until, I think it was, in 1865, when what was known as the capital police district was made, a new civil division of the State, for the purpose of regulating the police. It consisted of Albany, of 464 REVISED RECORD. [Wednesday, Greenbush, across the river, of Troy, of Lansingburgh, of the then village of Cohoes and of the city of Schenectady. That was in 1865. The men who were put in charge of that police department as com- missioners were honorable, high-minded men, but nobody seemed to be satisfied with the administration of affairs under them. Very soon after that time Albany asked to be released from that district, and it was granted by the Legislature. Cohoes asked to be released. The same privilege was granted. Schenectady did the same thing, Lansingburg did the same thing, and finally Troy came in and asked to be relieved from the operation of the law under what was known as the capital police act. The release of Troy from the operation of that act took place in 1870, and at that time a police board was created and a police force was formed under such board. That worked tolerably well. And I might say here that I have great confidence in every mayor that I have ever known in the city of Troy. I have lived there long enough to have witnessed the administration of Whig mayors, of Democratic mayors, of Republican mayors and of Independent Democratic mayors who were voted for by the Republican party; and I do not think any one of them was ever a dishonest man. I think if we had any one of these men now, if he was not cramped and crowded by the acts of the Legislature, he would discharge his whole duty in case of any dereliction on the part of police officers. So Troy, as I have said, was in 1870 relieved from the capital police system; and in 1873, during the administration of Governor Dix^ and in the very last days, I think, of his administration, nearly the last, a new system was adopted wiping out the then existing police force and the police department of the city of Troy and putting in an entirely ifew one, the Rensselaer police district, consisting of the city of Troy, an island in the Hudson river in Albany county and two other patches of territory, with commissioners appointed by the Gov- ernor with the advice and consent of the Senate, right in the teeth of the Constitution. The old force were all turned out of office a few days afterwards, and a new force installed. I happened to have charge of the law department of the city of Troy at that time, and believing, with a great many others, that the law was unconstitutional, I took out proceedings to test it, and went to the Court of Appeals with it. They held that the law was unconstitutional, and the old force were reinstated. That continued along until bye-and-bye a law was passed providing that the police board should consist of the mayor, and of two other commissioners elected. There was grumbling about that, but that continued along with some little alteration until 1885. In 1885 we had a mayor who, though an honorable man,. August 29.] CONSTITUTIONAL CONVENTION. 465 happened to be a straight-out Independent Democrat, and the Republicans liked him so well that they elected him with what Democratic strength he could get, and defeated the regular Demo- cratic candidate. I voted against him, it is true, as I vote against all irregular nominations, but he was an honorable, high-toned man. Nevertheless his Republican friends pretty soon got sick of him, and they attempted to impeach him, and have him removed by the Governor. He was not removed, however. After a patient hearing the Governor refused to remove him. Then they went in connection with the regular Democrats to the Legislature, and they got an act which provided that the president of the com- mon council, who was nothing but an alderman, except when acting as president, should within ten days appoint four police commis- sioners, one from each of the two great political parties, for a term of two years, and two other commissioners to hojd office for a term of four years, one from each of the great political parties ; and thereafter the four police commissioners were to be appointed by the common council, but with restrictions as to the manner of voting. That act provided, furthermore, that within five days after the new police board was created and in operation the old force should be entirely abandoned, their offices should be closed and they should go out and the new force come in. That was done. This system continued for a while, and down to I think only two or three years ago, and we got along tolerably well under that. The only difficulty with that system was when the police board endeav- ored to have one or two policemen removed — the difficulty was that the police commissioners were not lawyers and did not under- stand the rules of evidence. They were required to have proof, and they got such proof as satisfied them that those policemen were not qualified to act, and they removed them. Their counsel went to the Supreme Court, and the Supreme Court set their decision aside say- ing that illegal evidence had been admitted. They were ready to do- their duty but did not understand the law well enough to know what was proper evidence and what was improper evidence. And thus it went on until 1892. Then a new act was passed by the Legislature which provided, I think, that the police board should consist of three persons and that the old commissioners should go out of office, and that those three persons should be appointed by the mayor alone; and subsequently, in 1892, my friend, Mr. Roche, prepared a new charter, and that new charter contained a provision that the police board should consist of three persons to be appointed by the mayor. That continued in force down to the present day. 30 466 REVISED RECORD. [Wednesday, Now, I believe, as I have said, during all these shifting changes, with all the mayors that we have had, if they had not been cramped by legislative acts in respect to the charges to be made and the evi- dence to support them, without doubt any dishonest man on the police force would have been removed at any time. Now, the ques- tion comes up before this committee as to where the power should be lodged to remove a dishonest or unfaithful police officer, the superintendent as well as the commissioners, and who should fill such vacancies? That is the question that has to be passed upon by this Convention. The provision coming from the Committee on Cities proposes that the mayor should remove the officers, but in case he should neglect or refuse to discharge such duty promptly, the Governor should remove the delinquent police officer. Not only that, but he should fill their places by an appointment by him- self, and that appointment should stand during the term of the then mayor of the city. I do not know how that would work in the city of New York, or Brooklyn, or in any of the larger cities of this State, but I do know something about it so far as the city of Troy is concerned. My opinion has long since been formed upon this subject, and I have seen nothing and heard nothing during this dis- cussion that changes my mind upon that subject. I think that home rule and propriety would induce us to frame an article providing that the police officers, like some other officers, should be removed by the mayor, without requiring any specific charges to be pre- ferred or any particular line of evidence to support those charges; because the mayors are not always lawyers. It is very seldom that a lawyer is elected mayor of the city of Troy. I would have the mayor, if he removes a man, appoint another in his place. I would give that power solely to the mayor. I would not trouble the Governor with it. And then I would hold the mayor responsible and if he did not discharge his duties properly I would have the Governor remove the mayor. That is my theory about it. I do not know that I can get any proposition here that will precisely meet my own views upon this subject, but I will do the best I can. If I cannot get just such a one as I want I will get the next best. I am decidedly opposed to the idea of having the Governor inter- fere in order to remove a superintendent of police, or a chief of police or the head man in the detective department of the city of Troy, and I think it would be highly improper in other cities. The Governor, as I have said, removes county officers and a city officer because there is no one else above them in the locality to whom such power should be intrusted, but to go down below the mayor, pass by him and go into the police board or the administra- August 29.] CONSTITUTIONAL CONVENTION. 467 tion of the superintendent of police, and investigate and find out whether they are derelict in their duty or not, seems to me to be a very improper thing to do. I submit cheerfully to the wishes of this Convention, providing its action shall be adopted by the people at the polls ; but I would desire, if I could have my own way, and I submit it to the Convention, to place all this power upon the mayor himself, and hold him to strict responsibility; and remove him if he does not discharge that responsibility; and I think you will have no trouble, either in Troy, or Buffalo, or New York, or Gravesend. That is the course I would desire to pursue if I could by any form of proposal which would meet the approval of the committee. Mr. J. Johnson — Mr. Chairman, mindful of the shortness of the time, I ask for thoughtful attention from the members of this Convention for less than three minutes by the watch. If this amend- ment is passed it destroys all there is of police in this article. Why? The police officials are purely creatures of legislation and not of the Constitution. Everything that is purposed by the amendment can be done now under the Constitution — everything. It is done in many cities. Everything that is proposed there is done in one or another of the cities. What there is in this amendment that is new, and all there is on that point, is that the State, in a great emergency, when it is attacked, may reach down and put in power one official appointed by it. That is all there is of significance in the amend- ment as it stands to-day. That was preserved by the amendment of yesterday, it only being subject to the ruling of the Legislature instead of the Governor. Strike that out and there is nothing but what is now in the Constitution. The whole thing is destroyed. Mr. Smith — Mr. Chairman, this subject of government is certainly a very interesting subject to study. In this country the theory is that the people govern themselves. In practice it is car- ried out by political parties. Government by the people must neces- sarily be conducted by party. That is the only way by whic*h the individual can make his influence felt. As I have had occasion to say before in this Convention, if individuals were to act independ- ently, they would not accomplish any practical result, but would waste their energies on the vacant air. They must act with their party to make their influence felt. Now the question is — and it is a very simple question — shall the city of New York, or the city of Albany, or the city of Troy, or any other city be allowed to govern itself through the action of the political parties in such city? If the people of the nation can be trusted to govern themselves; if the people of the State can be trusted to govern themselves, why not trust the people of cities to govern themselves? And if you adopt 468 REVISED RECORD. [Wednesday, the principle that cities may govern themselves, then you must necessarily intrust the government to the action of political parties, and whichever party has a majority of the people in its favor will be clothed with authority to conduct the government of the city. Now, how can that principle be applied and put into practice and kept inviolate, except by allowing the majority of the people in a city to elect or appoint their own officers? How can that principle of home rule be applied except to allow the people to govern themselves,, through the action of political parties in cities? That is the ques- tion here. And if you clothe the government of the State with authority to make appointments of local officer's in cities or in coun- ties, you destroy the great fundamental principle of home rule. We shall have no difficulty in applying this doctrine of home rule if you leave out of your action in this Convention the desire for party supremacy. I will venture to say that it is this desire for party supremacy in the State and in the cities of the State that strongly influences opinions which we see actively at work here to have the State control local affairs in the cities of the State, and particularly in the city of New York. You must act upon some principle in making this Constitution, or else you will be exposed to the charge that you have made it of opinions which were molded from preju- dices or which were influenced by a desire for political supremacy. The question is whether you will stick to principle or whether you will turn this Convention into a political agency to promote the supremacy of your party. (Applause.) Mr. Roche — Mr. Chairman, I would like to ask the chairman of the Cities Committee a question. Judging from some expressions on the floor and off the floor, I have derived the impression that some members think, when you speak of the head or heads of police, that it may cover the superintendent of police; and I would like to know whether the committee intend that it shall apply only to the commissioner or commissioners, who are, in fact, the police depart- ment, and that it shall not affect any subordinate appointed by them, no matter of what class or how high a class that subordinate may be. Mr. J. Johnson — Mr. Chairman, it is intended to affect the actual heads of the police department; and in the case supposed by Mr. Roche, where the superintendent is under, or subordinate, to the heads of police, it would not affect him. Of course, it might be quite possible that in some cities the head of the police actually con- trolling the power next to the mayor, and above whom there is no one else, might be the superintendent. But in the case stated by August 29.] CONSTITUTIONAL CONVENTION. 469 Mr. Roche, the case of a subordinate superintendent, that is not included in the power. Mr. Roche — Mr. Chairman, another suggestion, and I make this more particularly to the majority of this Convention. I think that they may very well regard the warning which was so eloquently expressed by Mr. Bowers last evening. I think that we are actu- ated by a desire to have this Constitution which we adopt acceptable to the people. That is my own feeling. I have enough pride in my membership in this Convention and in the work that is done in it, at least I hope to have, so that I may go home and, whether to my constituents singly, or through the public press, ask them to support this Constitution. I, therefore, believe that it should be 'made as little objectionable as possible to the cities of this State. I think it is unwise to place in here a provision which will inject the Legislature under any circumstances into municipal affairs, even if those municipal affairs are police matters, in the way of appointing a police commissioner, or commissioners, in place of those whom the Governor may remove. We all know that the number of persons who vote upon the adoption or rejection of con- stitutional provisions is comparatively small. The votes are largely cast in the great cities of the State. Many of them, and particularly the most important of them, are largely Democratic. If the great and powerful Democratic organizations in these cities object to this provision as a violation of the spirit of your existing Constitution, as a departure from the march in the direction of home rule and of self-government which we have made for half a century, as an unwise and unnecessary thing, in my opinion it will defeat not only this provision, but will greatly endanger other provisions which will be submitted to the people. It is entirely unnecessary and entirely unwise to incur this risk, to offend this sentiment of home rule, which I believe is not confined to the Democracy of the great cities, by putting in a provision here which would enable the Legis- lature under any circumstances to come into any city and to appoint, or to provide for the appointment by a State officer, or by a State board, or by the Legislature itself, of any head or heads of a police department who may be removable, or who may be removed, by the Governor of this State. I submit, with all due respect to the judg- ment of the chairman of the Cities Committee, that he ought not, in the interest of this home rule article, he ought not, in the interest of this Constitution, he ought not, in the interests of his own party, to ask that this objectionable provision shall be inserted in what seems otherwise to be an acceptable proposition to the majority of this Convention. 470 REVISED RECORD. [Wednesday, Mr. Spencer — Mr. Chairman, I hoped that the time might arrive in the history of this august body when we would be relieved from amendments that do not amend and from substitutes which lead from safety to uncertainty, from firm ground into a quagmire; but it seems to me that amendments of this character are very common in this body. While I am not thoroughly satisfied with the phrase- ology of this section as it now stands, I am more dissatisfied with the substitute which the gentleman from Troy has offered. I do not see how it is possible for any member of this Convention to vote for any such thing as that; we should say that the Governor should be charged with the responsibility and the duty of removing an offi- cer in a city, and then that he should not have the power to fill that vacancy. Why should we make an exception in this instance? We give him power of that kind with regard to other peace officers, other officers that discharge duties under the Constitution, and why should we not confer the same power on the Governor in respect to a police official that we do in respect to a sheriff, a county clerk, a district attorney and other officers; and why should we introduce into the Constitution such a ridiculous proposition as the one that the Governor of the State shall be responsible, and charged with the duty of investigating the police department of any city, and then, when he has removed an official, he shall be powerless to name an officer for the place who shall correct the abuses, and that he (the Governor) will be compelled to leave it in the hands of the mayor who was responsible for the appointment of the official that had been removed, to repeat and continue the error by the appointment of a man of like stamp? I say, sir, that we must vote down this proposition of Mr. Roche's. He has been converted very thor- oughly since he made his remarks in this body last evening. His proposition last evening was that he much preferred the amendment proposed by the Committee on Cities, because it was definite and certain and explicit; it placed the power definitely in the hands of the Governor, and he (Mr. Roche) objected to the present wording of the section, because it was uncertain and indefinite, and left it to the Legislature, who might appoint this man or that, or provide for the appointment of this man or that man. Mr. Roche — May I ask the gentleman a question? Mr. Spencer — No, sir. I am not here to be interrogated. I am here to speak a few moments, and then take my seat. I am not here to speak all the time; I am not here to take every opportunity to- speak on every possible question; but as a member of the Commit- tee on Cities I think I have the right to be heard in defending that committee from the unjust assaults that have been made upon it; August 29.] CONSTITUTIONAL CONVENTION. 471 and I say that our system is complete, is consistent, is definite, is certain, and that the one that is now proposed is indefinite, uncer- tain, undefined, and nobody can tell what it will be or what it will amount to. Mr. Durfee — Mr. Chairman, the thought intended to be expressed in the substitute offered by the gentleman from Rensse- laer, as I gather from his remarks and from the remarks of other gentlemen who have spoken upon that subject, is that the power of removal should be vested in the mayor; but unless I am very much mistaken, the substitute, in fact, vests the power of removal in the mayor, or the mayor and the common council. Mr. Roche — No. Mr. Durfee — If that is the case, then the drafting of the substi- tute does not fully express the idea which it was intended to convey. If I remember correctly the expression is so connected with the expression of the power relating to appointment that it puts the power of removal on the same footing as the power of appointment. I desire to call the attention of the authors of the substitute to that defect, as it seems to me, in phraseology. The Chairman put the question on agreeing to the amendment offered by Mr. Roche, and it was determined in the negative, by a rising vote, 46 to 65. Mr. J. Johnson — Mr. Chairman, in the amendment proposed by Mr. Brown yesterday, the last clause, commencing with the word " nothing," on line 6 of page 3, was stricken out. I understand that it was not intended or precisely understood that it was stricken out at that time. I, therefore, move to amend the section as it now stands by inserting these words; add at the end of section 3, as amended, the following: " Nothing in this section contained shall in any manner interfere with the power of the mayor to remove the head of the police force or department or other police officer, as such power is or may be conferred by law." It is practically what was there before and \vhat I believe no one desires to have done away with. I would also ask to add at the end of line 24, page 2, the words " or department." The Chairman stated the question on the motion of Mr. Johnson. Mr. Cochran — Mr. Chairman, if I recollect the ruling of the Chair last night, as to amendments offered by the minority, it was that they were not now in order. I fail to see why this invidious distinction is made between amendments offered by the minority and those offered by the majority party. 472 REVISED RECORD. [Wednesday, Mr. Johnson — Mr. Chairman, if that was the ruling, I will with- draw the amendment and will reserve it until the article is completed. Mr. Mulqueen — Mr. Chairman, I ask unanimous consent to per- mit Mr. Johnson to offer that amendment now, so that we may get rid of this amendment once for all. Mr. Cochran — I withdraw my objection. The Chairman — Unanimous consent is asked to the introduction of an amendment by Mr. Johnson. If there is no objection it will now be considered. There being no objection, the question is on the amendment offered by Mr. Johnson. The Chairman then put the question on agreeing to the amend- ment offered by Mr. Johnson, and it was determined in the affirmative. Mr. Nicoll — Mr. Chairman, I now move to strike out all of sec- tion 3, as amended. Mr. Johnson — Mr. Chairman, I submit that that is out of order. Mr. Cochran — We ask unanimous consent, Mr. Chairman. The Chairman — The Chair thinks the motion is in order. The Chairman then put the question on agreeing to the motion of Mr. Nicoll, and it was determined in the negative. The Secretary read section 4. Mr. J. Johnson — Mr. Chairman, I desire, on behalf of the committee, to say that this section is, except in the transposition of a sentence, the same section that was originally presented. We have so fully discussed it, both orally and through the report of the committee, that I do not take the time of the Convention at present. Mr. Bush — Mr. Chairman, I offer the following amendment. The Secretary read the amendment offered by Mr. Bush, in the language following: Amend section 4 by striking out on lines 16 and 17 the words "to be elected with or without proportional or minority representation." Mr. Davenport — Mr. Chairman, in moving the minority report of some of the members of the Committee on Cities as a substitute from this point on, I desire to say that I am authorized in their behalf to give the fullest and the heartiest accord to the principle of separate elections, and that we desire that that should be carried forward to its logical and full sequence. In the action with regard to general order No. 8, the State has been made to conform to the principles laid down in the article on cities in behalf of cities alone, August 29.] CONSTITUTIONAL CONVENTION. 473 so that upon those two points there is really no question of differ- ence. Upon the question of section 3, which has been passed upon, we are in strong opposition, believing that the principles therein contained are in conflict with the great principles of home rule, and in moving this substitute, it seems to us, that it provides that larger, fairer and freer quality of home rule which ought to be granted; that, while it recognizes the paramount authority of the State, it does something to preserve to the municipalities created by the State cer- tain reserved rights which are not afforded by the present measure. Mr. Bush — Mr. Chairman, I wish just to change that amend- ment. I want to leave out one word there, and I offer this in place of it. The Secretary read Mr. Bush's amendment, as changed by the mover, in the language following: Amend by striking out the fol- lowing words, line 17, page 3, "with or without proportional or minority representation." Mr. Bush — Mr. Chairman, it seems to me that the sentiment of this Convention has been expressed so fully heretofore upon the question of minority or proportional representation, that but a few words will be necessary in this connection at this time. I believe that nearly every delegate upon this floor is a firm believer in the rule of the majority, and further, that minorities should not be rep- resented upon any board, or hold any public position. I do not think, Mr. Chairman, that it is in line of or is following the principle of republican institutions to permit minorities to be represented. I think the only and the sole duty of minorities is to educate enough of their fellow-citizens of the majority so that they themselves may some day be brought into the majority, and that, I think, is their sole and only function, and that is the sole and only position which they should occupy in public affairs. I shall not make any long speech upon this question. I think the principle is so patent and plain to every one that they should not be permitted to be elected in this manner, that I shall say nothing more on the subject. Mr. Dickey — Mr. Chairman, lest my silence might seem to give approval to this part of the cities article providing for minority or proportional representation, I rise to second the proposition of the gentleman from Ulster, in his proposed amendment, that this part of the section be stricken out. I am strongly opposed, and I believe my people are, to such a provision in this article. We believe in responsible party government and the rule of the majority, and, therefore, I will vote for the amendment. Mr. Smith — Mr. Chairman, this Convention should have no 474 REVISED RECORD. [Wednesday, embarrassment in the adoption of this motion of the gentleman from Ulster. Certainly, the minority here have had no considera- tion paid to them, and that should be sufficient as a guide in acting upon this motion. Mr. Rolls — Mr. Chairman, in my opinion, the amendment offered by the gentleman from Ulster would strike from this article one of its most important and valuable features. For that reason I am opposed to it. A great deal has been said, when discussing minority and proportional representation, about majority rule. Now, nothing can be said in this body in favor of majority rule that I would not indorse very heartily; but I want honest majority rule, and not a mere plurality fraudulently calling itself a majority, and an honest majority rule is precisely what proportional representation would give us if carried into effect. Proportional representation means that a majority in any political division shall have precisely the weight to which its members entitle it, and no more. It means- that one minority, merely because it happens to be the largest of sev- eral majorities, shall not arrogate to itself the functions of the majority; that a political party which has three-fifths of the votes in a city shall have three-fifths of the representation, and that another, having two-fifths, or one-fifth, or one-tenth, shall have its pro- portionate share, no more and no less. I will not take the time of this Convention for an elaborate discussion of the principles of pro- portional representation. Any man who has taken the trouble to look impartially into the matter will agree with me that it is the most honest and the most efficient method of securing true popular government. But, sir, this is not a provision making it mandatory upon the Legislature that proportional or minority representation shall be introduced. If it were, firmly as I believe in the principles involved, I should not be willing to put them into the Constitution, I do not think it would be wise to put into the Constitution a manda- tory provision which could not be changed, except with great diffi- culty, requiring the cities to have proportional representation. But, sir, this is merely permissive. To strike out this permission would' simply be to perpetuate a prohibition which now exists in the Con- stitution against even trying the experiment in the cities of this country. What this article tries to make possible is better govern- ment for our cities. I will not enter into a general discussion of this vast question nor attempt to answer the eulogies upon the present New York city government, which we have heard ad nauseam in this Convention. I do say this, however, that many serious, high- minded, practical men in this country have given thought and atten- tion to the problem of better city government. They are not all of August 29.] CONSTITUTIONAL CONVENTION. 475 them " dudes." They are not all of them " Pharisees." They are not all of them impracticable literary men or studious pedants. Most of them are thoroughly conscientious and honest in their views. They know that of the great cities of the world those which are governed well, are governed upon one principle. There is to-day no great city in the whole world, which is governed well, which is not gov- erned by a great representative body, representing every class of its citizens. Look at the great cities of the old world, London, Paris, Vienna, Berlin, Glasgow. The problems which confront them are not essentially different from those of New York. They grow a& quickly or more quickly than American cities. I would like to refer this Convention to a very interesting article by perhaps the highest living authority on municipal government in this country, Doctor Albert Shaw, whose essay in the Century for July is very interesting and very instructive. Those great municipalities, having practi- cally the same problems to deal with, of sanitation, of education, of police, of street cleaning, charities and everything else which New York must attend to, are all governed practically upon the same plan; that is, they have a large council, representing every class of the citizens. The fact that in some of them there is a small property qualification for voting, has nothing to do with the question under consideration. It does not affect the fundamental fact that the entire civic body is represented in a large legislative and administra- tive body, and that body has the responsibility for the whole city government. Mr. Chairman, there is no better light for us in the problem which confronts us, than the experience of others who have practically had the same problems to deal with, and who have dealt with them successfully. Mr. Hottenroth — Mr. Chairman, may I ask the gentleman a question? Mr. Holls — I beg not to be interrupted at the present time. The Chairman — Mr. Holls has the floor. Mr. Holls- — There is no better guide than experience. It is manifestly impossible in this country, and I, for one, am glad it is impossible, to put any restrictions whatever upon universl suffrage in cities. The plan advocated by the Tilden commission on muni- cipal reform has been repudiated by the people, and in my opinion, rightly repudiated. I do not think the election of any board of finance by a separate class of property owners would improve our municipal government essentially. It would leave us with a great unrepresented proletariat, which, in my opinion, would be positively dangerous. But I do believe this, Mr. Chairman, that if 476 REVISED RECORD. [Wednesday, we are ever to have as good and economical municipal government in this country, as now exists in the large and great cities in Europe, it must come eventually from an improvement in the character of our city councils. I know I will be answered that for the last twenty or thirty years all municipal reform in this country on the part of both parties has tended to take away the last vestige of power from our boards of aldermen, until to-day they can do nothing but license peanut stands, give away franchises, and talk about the bud- get. I am aware of the tendency of municipal reform in this coun- try. I know there has been a great movement to concentrate all power in the hands of one man, the mayor, making him practically a dictator, and electing every two or three years a despot with the hope that he may be a good one, and reform the entire city govern- ment. That has worked well in one or two instances, but in most instances it has worked wretchedly. It is utterly wrong and vicious in principle. It is entirely against the American idea of civil lib- erty and self-government. The American idea is representative government, not only in the nation and in the State, but also in the city, and I repeat, the only hope for better city government, in my opinion, lies ultimately in the improvement of the character of our municipal councils. Now, sir, so far as the city of New York, including Brooklyn and Long Island City, and the other cities of this State are concerned, that improvement in the character of our boards of aldermen or city councils can never come so long as they are elected upon the district system. The collocation of the people in the city of New York is such that the time will never come when there will not be a number of districts densely populated, in which the character of the aldermen whom they elect will not be of the kind which the city needs and ought to have. I, for one, believe in representation of every class. I do not want to see a board of aldermen composed of millionaires, or of literary men, still less of students or college pro- fessors. I hope to see a common council, some day, legislating and attending to the affairs of the greater New York which surely will come some day, thoroughly representing every class and every part of the grand imperial city of the future. But I tell you it cannot be and will not be on the district system, for on that system the temptation to gerrymander, the temptation to rule out the minority entirely, will be too strong for any political party that may be in power. There are to-day in the city of New York over one hundred thou- sand voters who are as absolutely disfranchised in municipal affairs as if they lived in South Carolina or Louisiana. This is not right. It is un-American, for it is unfair. I do not know how many of the August 29.] CONSTITUTIONAL CONVENTION. 477 board of aldermen of New York are Republican. I doubt whether there is one. There may, however, be two or three. If so, the number is entirely out of proportion to the number of Republican voters in the city. I use the word Republican simply because it is convenient. The minority belonging to any political party is in the same position in other cities. There is no way in which their just influence upon municipal affairs can be secured except by some plan of proportional representation. Gentlemen may say it has been tried in New York city before 1873. I wish to deny that abso- lutely. We should be very careful in the use of words. Minority representation has been tried, cumulative voting has been tried, and I think I am within the truth if I say that both of those systems have to-day been abandoned by most of those who, in the whole world, are working for better methods in favor of proportional representa- tion. I cannot at this time discuss it in detail ; I will merely say that its results would be that every political party should get exactly the same proportion of members in the representative body as its vote entitles it to in the entire popular vote. Nothing could be fairer, nothing could be more American, nothing could be better in every sense of the word, both for the city and the citizens. That plan has never been tried in this State. Why not? Because the Constitu- tion at present says that every elector can vote for a candidate for every office to be filled. This one prohibition, put in at a time when proportional representation was not thought of, has been in the way of all progress, in the way of better election methods. It is time that we should remove this obstruction. There is nothing mandatory, I repeat. This does not commit the State to an untried experiment. It simply removes the obstacle from progress in the line of honesty and reform in elections. Mr. Chairman, I hope this amendment and other amendments to this section will be voted down. I would appeal to the gentlemen of the minority, for this is not a matter of partisanship, it is a question of fairness; but we have been told that appeals are useless, since the article is now, unfortunately, in such a condition that they do not choose to vote for it anyway. No one regrets it more than myself. No one regrets more than I do the outbreak of partisanship in this body. But if I cannot appeal to the minority, I certainly do appeal to the majority. We, gentlemen, cannot escape history, as Lincoln once said; and this is our opportunity for at least enabling the city of New York, enabling the good men, the earnest men, who want to improve its government, who would like to have a pride in their own city, giving them an opportunity of agitating for something better. We do not indorse their ideas in detail. We simply tell the people 478 REVISED RECORD. [Wednesday, of the cities here that some of the obstacles to reform are removed, and that if you can persuade the Legislature that proportional rep- resentation is a good thing, then let them ordain it. If it does not work well, it can be repealed. I appeal once more to all the gentlemen in this body, who believe that one of our greatest responsibilities, privileges and opportunities is to help improve city government, to vote down this proposition. Mr. Jacobs — Mr. Chairman, yesterday afternoon we were treated to the election system in France, under the protecting care of bay- onets and imperial police; and also, I believe, to the elections which are carried on in Germany under the same benign spirit; and they were held up to us as illustrations of how beautifully elections can be conducted if you only have plenty of bayonets and plenty of police; and it was urged in their favor that nobody had complained in those countries respecting those elections. Well, those who would have complained, when the second empire was established, were shot down in the streets of Paris on the Sunday afternoon. They never had a chance to complain after that. They were dead. As to Germany, the empire has its bayonets and has its police to break up meetings, suppress newspapers and imprison men under all sorts of charges and complaints for criticising the empire or the Emperor or the Chancellor, under that loosely-defined phrase, the minor treason. I hope that we will not have introduced into this •country any of those lovable institutions. We are Americans, and we are content with American institutions. (Applause.) We come from Saxon blood, with almost two thousand years of free institu- tions, and we are content with the genius of our race and the raci- ness of our soil. We ask for no foreign importations. We do not ask to graft on our institutions something which may be illustrated by the city of Berlin, or of Paris, or of London, or God knows where. We simply ask for illustrations drawn from our own his- tory, from the history of our own race. They suffice for us. We have lived under them, we have thriven under them, and we have grown to be a great and lusty people. England has an empire which stretches around or covers almost four continents, and we ourselves in less than three hundred years have grown to be a great republic of seventy millions of people; and we did not have pro- portional representation, nor cumulative voting, nor minority repre- sentation. We had party government. England and America are the only two countries that do have party government. We do not say it is majority government, but we say it is the government by parties which at recurring elections poll the greatest number of votes upon a given issue. Well, we people have been a long time coming August 29.] CONSTITUTIONAL CONVENTION. 479 to that. We have had autocracy and we have had monarchies, and we have had aristocracies, and we had almost everything on earth except party government, and finally, as the result of all our travail, of all our revolutions, of all our internal con- vulsions, we and our fathers have come to the conclusion that the best form of government for a free people is party government; not that it is perfect, nor that it does not have abuses, not that it does not often go wrong, and very wrong, but take it as a whole, as a unit from beginning to end, it is the least oppressive, the least expensive, and the most satisfactory to our ways of thinking. And, sir, we have grown up under party gov- ernment, government by the party which could poll the greatest number of votes at any given time. Have we suffered from it materially? Have our liberties been restricted? Has our' prosper- ity been destroyed? Have our homes been sacrificed and invaded? Have our streets been deluged with blood in order that some salva- tion to society might be imposed upon us? On the contrary, we know that such has not been the case, and I am only waiting for my friend from Kings to hand me that curious list of historical works from which he draws his inspirations. As an anomaly, I think it would be interesting reading. Mr. J. Johnson — Mr. Chairman, I believe we are on section 4. Mr. Jacobs — Yes, sir; we are on section 4. You are perfectly right; and I will now strike it. So I may ask, why menace party government? And that is what this article intends to overthrow; that we shall revolutionize ourselves and no longer be governed by our habits of thought, our racial traits, but by something imported from abroad and which has its evolution out of peculiar conditions. In what country is there a party outside of America and England? Elsewhere they have groups of men who never can agree upon any- thing except hating each other. They are divided by language, by religion, by social gradations, and it may be necessary in order to carry on government there that every group should be propor- tionately represented ; but, sir, it is not so with us. We are a people who speak one language. We are not divided by religious antipa- thies. We have no personal rancors. We have no gradations of society. However much we may differ on ideas of policy, we are the same in thought, government by party and no other way of gov- ernment. I have no fear that the people of this State will ever vote any differently. Our friends cannot agree on what constitutes ~o- portional representation. The very earnest and sincere and elo- quent gentleman, whom I am now following, tells us that it has not been adopted anywhere. Well, now, there are quite a number of 480 REVISED RECORD. [Wednesday, people who think they have defined proportional representation. But I find that our friends always get away from telling what it is. It does not mean the Swiss free-list system, nor this plan nor that plan, nor the Belgium proposition, nor cumulative voting, but it means something in the air. That is the way generally with all those reforms, something of a butterfly vagary that you may talk about, but you must not define too closely, for if you should, we commons would get on to it, and we would not have it. (Applause.) Well, it is difficult, I admit, to define, and I admire the sagacity of the gentleman who said he would not go into particulars to show how it would operate. I will try and go into its operation. Let us take the city of New York for an illustration — it seems to be a favor- ite one — and assume that in the election of 1892, the thirty aldermen of the city of New York were then to have been elected — of course, on a general ticket. The thing cannot work any other way. Local- ity must be set aside, and everything must be swept to one side in order that this matter, this new-fangled idea, may have its full sweep. It is a little bit intricate to men who have not given any thought to the matter, and who cannot always carry figures in their head, to make plain to an assembly of this kind in the hurry of debate. Now, I say, let me make this plain, if I can, by supposing that the Swiss system, which is probably the most perfect of all proportional representation, existed in the city of New York, and that the thirty aldermen of that city were to have been voted for at that election. Now, in the first place, the aldermen, instead of being elected to represent districts, would have all been voted for on the general ticket. That is, every elector in the city of New York would have voted for thirty aldermen. To determine who were elected would require dividing the total vote cast by the number of aldermen to be elected. There were two hundred and four thousand votes cast at that election, in round figures. The total vote divided by thirty, the number of aldermen, would give ninety-five hundred as a quotient with which to divide the total Democratic vote of a hundred and seventy-five thousand, so as to see how many Demo- cratic aldermen were entitled to be elected, not by the votes, but by a sort of common divisor — mathematics are always the weak point of our friends, the reformers. Well, we would divide one hundred and seventy-five thousand, the total Democratic vote, by the new way of getting at elections, by ninety-five hundred votes, and that would give eighteen full quotients, and a remainder of four thou- sand, and that would give them nineteen aldermen, on the Swiss plan. So it would take a hundred and seventy-five thousand Demo- cratic votes to elect eighteen Democratic aldermen, and only four August 29.] CONSTITUTIONAL CONVENTION. 481 thousand votes to elect one Democratic alderman. You see, the thing is full of beauty, and a lasting joy. Now, we turn to the Republicans. The Republicans polled a vote that year of ninety- nine thousand. Perhaps this plan supposes that that party, being of superior quality to our Democratic friends, is entitled to elect alder- men without quite so many votes as are necessary to elect a poor Democrat. (Laughter.) Well, we have a common divisor of ninety- five hundred into the ninety-nine thousand, and that would leave us ten full quotients, and another remainder of four thousand, and that would give eleven aldermen. But there is another plan, by which only twenty-eight aldermen could be so elected, and would leave two aldermen out in the woods, as it were. Now, comes the beauti- ful plan, called the De Hout plan, to provide for them. I never can get my friends to say which plan, the Hare plan, the Swiss plan, the De Hout plan, the Bruxells plan, or other plan they favor, but they are in favor of some kind of proportional representation. They never will tell you exactly which kind. But the De Hout plan comes in for contingencies and shows you how a very small minor- ity, polling a very insignificant vote, can have an alderman. You will remember that the Republican party and the Democratic party, under this system of dividing votes by quotients, had a remain- der each of over four thousand. Well, the De Hout plan provides that the Socialist party in New York, which polled six thousand votes at that election, being much larger than either the Democratic or the Republican remainders, should be given an alderman, making twenty-nine. As for the thirtieth alderman, a new election would have to be held. So, by the De Hout method, it would have taken one hundred and seventy-five thousand votes to elect a Democratic alderman in New York city, ninety-nine thousand votes to elect a Republican alderman in New York city, and, by the grace of God and this shifting method of electing, only six thousand votes to elect a Socialist alderman. That is the plan that is proposed to us as American people. Xot because we ever had it before, but because in some other country than this, and for reasons which seem to satisfy, it prevails. Well, it prevails in those countries because they are afraid of popular government, because property holders in those countries have to be conciliated, and an additional weight given to them in the electorate, otherwise they would not agree to the refor- matory movements there. But there is one country (Great Britain) where they have tried it in one form, called cumulative voting, where a man votes in the first place because he is himself, and then he votes according to the number of manors he may have in a borough, 31 482 REVISED RECORD. [Wednesday, or a parliamentary division, or, if they are scattered in parliamentary divisions, as elections are held in England for parliament on differ- ent days, he may travel from one parliamentary division to the other and there cast his votes, and if he should have twelve manors, he would have twenty-four votes, whereas poor little I, if I were there, would only have one vote, because I was so unfortunate as to be born simply a man and my fathers had not left me anything. Well, sir, they are getting rid of that in England, and at the great Liberal-Radical convention held at Newcastle last year, and approved by Mr. Gladstone, a program has gone for them. One man and one vote. The race on both sides of the Atlantic-is united. Manhood suffrage once and once only, and party government, and hot government by all sorts of butterfly politics. I do not want to be sneering about that. I know our friends are honest, are sincere, and undoubtedly as patriotic as I am, hoping for the good of this country, and taking as much pride in it as I am. I am not going to live forever, neither are they. We are not building for ourselves. There are others who will come after us, and we must keep them in mind also, and the best way for a man to do is to construct a system of government which shall be Saxon in its beginnings, developed and elevated by an American transportation. That is the kind of government I believe in, and that is the only kind of government I will ever vote for. Now, there is something in this reform that does not always come to the surface. You do not hear the plain, common people asking for this new kind of government. It, like all new things, comes down from above, and percolates that way. It is the outcome of the best people, so much wiser than their poor neighbors, of those who are so much in tune with the full counsel of God that their mission seems to be on earth to reconstruct the whole scheme of things, and set aside such trifles as God and natural laws, and reduce man- kind to some poor empty automatons to serve the useful purpose of mathematical calculations for the working out of intricate aver- ages and percentages. That is all. Well, their schemes I have no doubt are honestly conceived. I have no doubt that they deeply believe in them, but if anybody can understand them he is beyond me. I think that most of their schemes are so subtle, so far beyond the ordinary understanding, as to require for their solution a more leisurely existence than this earth affords. (Laughter.) Now, in Chicago, last year, they had an election, and the Democratic party was forty-five thousand short of winning. There were ten commis- sioners for public works, or county commissioners to be elected. One having only crude Saxon ideas would suppose that the Repub- August 29.] CONSTITUTIONAL CONVENTION. 483 licans being- forty-five thousand ahead of the game ought to have had the ten, and the Democrats ought not to have had any. But, God bless you, sir, one of my friends, I think Charles Francis Adams, writing in the last magazine which I think they call the Proportional Review, proved that that was all wrong, that instead of the Republicans carrying off the victory, they should have shared it with their friends, the Democrats, who were forty-five thousand behind, and there should have been simply five Republican commis- sioners and five Democratic commissioners, because proportional representation must be preserved. Does anybody purpose that the American people will accept any such, I do not want any fad, but any such rainbow, scintillating vagary as that? I do not think so. I do not think there is any fear of it. But, says our friend, and he pleads very eloquently for it, and he is very deeply in earnest concerning this; the proposition is only permissive. Yes, it is very permissive, but I know the gentleman so well, I do not mean him particularly, but I know the gentleman so well that you put this into the Constitution, " may " have it adopted, and we elect a Republican mayor in New York and a Republican Legislature with a Republican Governor, and all the friends of this kind of a reform will pack their gripsacks, hurry to Albany and insist that the mandate of the people had converted " may " into "must." That is the trick. We understand this permissive legis- lation. Our friend rather gingerly touched upon the Tilden com- mission. I thought he would probably avoid that. That was a very beautiful blossom of reform. It was right after- the Tweed episode. Mr. Tweed had made the mistake of thinking that he owned the city of New York. It took several courts I think to con- vince him to the contrary. (Laughter.) Mr. Schroeder — Mayor Schroeder — the ablest mayor that the city of Brooklyn ever had, and I suspect ever will have — he was a German — he was a man with honest instincts, with a high sense of duty, and an elevated con- science, took charge of the affairs of our city and proved just how, instead of owing only ten million dollars, we owed about forty million of dollars, and nobody ever could show us our assets. Well, he made that exposure. He was mayor then; comptroller, I think, in 1873, and mayor, I think in 1875; and a commission was appointed to remodel these municipal governments of ours, and the good reformers then as now were in favor of all of these new things, non-partisan party, civil service reform, proportional representa- tion — everything on earth that is not American they favor. Now, I will believe in a non-partisan party (a contradiction in terms) the very same day that I believe in Platonic marriages and 484 REVISED RECORD. [Wednesday, the propagation of the race by miracles — and not before. (Laughter.) But to return — why, it is something to laugh at isn't it, after all? And there is no wonder. Now, this commission was appointed, and out of their wisdom, being so much wiser than we, desiring to model us, not after ourselves, but after the people of some other country, they proposed that we should introduce into our affairs that element of aristocracy which is developed from property — the supposition being that if a man is himself he is of no particular account, but if he only owns a donkey he is much better that his neighbor, and, therefore, the donkey should have a vote. (Laughter.) So they proposed to have two boards. One was to be a common council, to be elected by the common people, — it would amuse them. But the real business end of the thing was that there should be a board of finance. (Voices — " Louder." " We cannot hear.") Well, I must consult my own lungs. (Laughter.) And lungs are not always brains, by any manner of means, though some people think they are. (Laughter.) There was to be a board of finance, and it was to be composed of six or fifteen men selected by a sort of superior selection, to be voted for by men who had prop- erty. That was the keynote. A man might have brains, and might be a very exemplary citizen, but if he was so unfortunate as to have no property, he was not to be of the elect. • But if he was a roustabout, who had made his money with gamblers or in keeping saloons, or doing anything — even stealing — if you please, and could show he had it in bank or in the shape of houses — he was a man natu-rally fitted to be an elector, and to control the city of New York. Morals were to be set aside. Character was to be of no account. Property — that was the keynote. And if a man only paid taxes for a certain number of years, and owned a certain amount of property, according to the assessed valuations, he should have the inestimable privilege, if not the right, and I am not sure whether he knew it to be or only called it a natural right. (Laughter.) It is very funny — to vote for members of the board of finance who, when elected, were to do the entire business, lay out the expenditures, fix up the budget of estimates, vote the tax levy, and spend the money. All things then would be satisfactory. . Well, the people did not seem to take to that after all. The people will, somehow or other, turn themselves from almost divine messages and go their own clownish and boorish way — and be happy at the same time. (Laughter.) This flying in the face of Providence I do not understand ; but I suppose it is the appointed way ; and they go on. And now let us see who composed this commission. You may recognize some old familiar names of gentlemen who are August 29.] CONSTITUTIONAL CONVENTION. 485 always playing at the hand organ of reform; and if it is not this kind of reform it is some other vagary of men who seem to think the way to heaven is to climb a rainbow. They were E. L. Godkin (laughter), you never heard of him before, of course, you know that he is not in favor of any of these fancy things, some of which my friend has advocated; and James C. Carter, Oswald Otten- dorfer, William Allen Butler, and the man it is reputed, who writes all of Mr. Cleveland's letters and messages — Simon Sterne. Singular, is it not, they all favor proportional representation? Sir, the same nascent feature is concealed in this proportional or minor- ity representation in some way or other, to introduce into the American system the basic idea of aristrocratic government — more privilege and more weight to property. That is all. After that we can pay the taxes, and they will take care of us. I will not approve of that. I do not believe in it. And I apprehend that working under it is also something in the nature of cumulative voting — because minority representation largely means that. I have talked — I do not say with the gentleman himself — but with others, and have asked them what they understood by '' proportional or minor- ity representation," and in the course of conversation it generally came out that somehow or other the word " cumulative " popped out. I do not say they intend to conceal it, but it is only by ques- tioning that it does drop out, and reveals that running through their minds there is the idea of cumulative voting associated with proportional or minority representation. I do not know that there is very much more to be said about that, except this: suppose that we do have minority representa- tion in these local boards — what good will it possibly do? I have been in the minority business myself. (Laughter.) " Ringing the alarm bell," as the chairman has claimed, will prove the beneficial feature of minority representation. I was just innocent enough to get on a local board down our way, and to think that by co-operating with some other men I could accomplish some good. Well, I was like the little boy who got kicked by the mule — he was never handsome again — but he knew a great deal more. There were some four or five strong men on that board, and when I name them you will recognize them. There was Theodore B. Willis — a sagacious, upright and honest man; supplemented by one of the most sturdy, rugged and honest men I have ever known, our present supervisor-at-large, Thomas W. Fitchue. There was another man, and however much we may condemn his political methods I know of no reason for criticising his official honesty — John Y. McKane. They put themselves at 486 REVISED RECORD. [Wednesday, the rope. I think I have no egotism in saying that I am not exactly a babe in the woods, and so I took a hand with them, at the tail; and we pulled, and pulled, and we tolled the bell, in season, out of season, and at all hours. We had the press with us — The New York World and the Eagle, Democratic; the Free Press, German, Independent; the Union and the Times, Republican. And so we all got at the bell, and we pulled it for four long years, and pulled at it and tugged at it, and we went into a great many paroxysms of public virtue, and large-sized type. And, strange to say, we accomplished nothing. (Laughter.) WTe had the speeches, we had the public virtue, we had the press, we had everything except the votes. (Laughter.) And the votes, I am sorry to say, beat virtue. (Laughter.) We did not head off a job, or a sinecure, or any waste of public money; and all that we had was the satisfaction of knowing that we had performed our duty — and walked off with our clothes. (Laughter.) Nothing else. (Laughter.) There is nothing in this alarm bell business. I can tell you that. And yet, I learned a good many things there that I feel pleased about. But, to go back to the main question, I hope we will clirrg to the old-fashioned ways. We are a people of conservative instincts, proving all things, and holding fast to that which is true. We have grown up under our system. We have never failed under our system. We have at the same time put down a tremendous war, built a Pacific railway, and established the greatest banking system the world ever knew — all in four years — and have done it by party government. We have built up under party government this country from ocean to ocean with free States made up of free men and with free Constitutions. Why should we depart from it and bring in something from abroad simply because it is something from abroad ? Shall we bring our politics as we do our fashions from over the ocean? Or shall we cling to our own ways? I put that to the gentlemen. Do you suppose that if we take this down to the cities, where there is a great number of people who have come from abroad, who know how the thing works over there and who came here because they did not like things over there — that they will vote for this — oh, no! They know what it is. And how will we — I am going to speak now to the Republicans — how will we and the Republican party stand if we adopt this? As it is they say that we are not a popular party. But if we allow ourselves to be put into a position where our Democratic friends can say, "That is another step of the Republican party toward introducing an aristocratic feature into this commonwealth," how many votes August 29.] CONSTITUTIONAL CONVENTION. 487 will be gained by that, not only for the Constitution, but for our ticket at large? I think not many. Mr. Becker — Will the gentleman permit a question? Mr. Jacobs — Certainly, sir. Mr. Becker — I would like to know of him if he is the same " Original Jacobs," who introduced No. 91, and argued it before the Committee on Legislative Organization, containing this clause: " The Senate shall consist of nineteen members, who shall be chosen by the electors of the State, and shall hold their office for the term of three years from and including the first day of January next after their election. Every elector may vote for only eleven candidates for Senators? " Mr. Jacobs — Yes, sir; the same man. And there is not a bit of cumulative voting there, or of proportional representation. (Applause.) Now, sir, I hope I have answered the gentleman's question. And if the gentleman will show me there is the first hint there of proportional representation, or cumulative voting, I will never speak again in this Convention. There is in it no minority representation in the sense in which the friends of that " fad " under- stand it — that is, an artificial minority gaining representation, not because of their strength or count of heads, but because they can have something in the shape of cumulative voting whereby property shall supplement their votes, and give them votes that they are not entitled to as men. That is what I object to. And now I think I have said all I need say about this. I hope our friends will bear in mind that we are in danger of introducing a new and dangerous feature into this Constitution of ours, and as politicians and partisans we ought to object to allowing our enemies to put us in the false position before the common people, of this country as favoring something whereby a man owning property shall have at the polls greater privileges than a man who does not own anything at all. (Applause.) Mr. Goodelle — Mr. Chairman, I desire to say but a single word. I am in favor of this amendment. I am opposed to proportional representation and minority representation, believing that it is not in accordance with the spirit or genius of our institutions, and that it would not be accepted by the people. I am not in favor of socialism or anarchism ; nor am I in favor of putting in our Constitution any enactments that will stimulate people of that class and of others, isms to organize a party, and then ask for minority representation in all our different municipalities, as well as in the country at large. For that reason T am in favor of this proposed amendment, and because REVISED RECORD. [Wednesday, I am in favor of it I am opposed to submitting to the Legislature anything that this Convention does not approve. The Chairman put the question on the adoption of the amend- ment offered by Mr. Bush, and it was determined in the affirmative. Mr. Choate — I understand that that is the motion to strike out the words " proportional or minority representation? " The Chairman — That is as the Chair understands it. Mr. Choate — Then I move to strike out the whole of section 4, inasmuch as there is nothing left in it that is not recognized law. Mr. J. Johnson — I agree that section 4 is not necessary at the present time, although possibly convenient. The mayor is referred to in the succeeding article as is also the common council. The Chairman — The question is on the motion of the gentleman from New York (Mr. Choate). Mr. Mulqueen — If you strike out the section as it now stands will any of the sections provide that the city shall have a mayor, and where in this proposed amendment does it provide that the city shall have a common council? Mr. Spencer — I trust this motion will not prevail. This section 4 is a part, a necessary part as I deem it, of the home rule provision. We have had to-day a great deal of what one of the delegates from Kings has been pleased to dub "opera bouffe," and we are very largely indebted to the city of Brooklyn for many other things. I think that among the things that we shall be glad to remember when this Convention is over will be the three J's from Brooklyn — Johnson, with his dictionary; Jenks, with his comic almanac, and Jacobs, with his Child's History of Europe. (Applause.) Now, sir, are we to make a plaything of this subject? Are we to have an opera bouffe every time we come to deal with the serious question of city government? The succeeding sections of this article are based upon the fact that every city shall have a mayor, and shall have a common council; and for that reason, if for no other, I claim that this section should stand, even with the provision stricken out which has been stricken out. I can see no good reason why it should not appear in the Constitution that every city should have a mayor; and if by the succeeding sections you refer to a mayor in connection with our home rule provision, it should be a constitu- tional office, and recognized by the Constitution so that the Legis- lature may not wipe it out, and, in this manner, and by an indirect method, destroy the whole scheme of home rule. And the same may be said with respect to the common council. I see no reason why this motion should prevail. August 29.] CONSTITUTIONAL CONVENTION. 489 Mr. J. Johnson — Mr. Chairman, the kaleidoscopic changes pre- sented in reference to the city article came so suddenly, and with such brilliancy, that I confess I was a little dazzled, and my eyesight gone, when I spoke before. I think, sir, that the motion to strike out that section as it stands now is a central shot at the home rule proposition submitted by the Committee on Cities. (Applause.) Why is this provision that the mayor shall have two years? It is because such prodigious, such large, powers as are now vested in the mayor that the thought of the committee was that he should be a short term officer. In New York city the mayor is elected practically for six years. He is really elected for two years, but he appoints for six. We should make it impossible that his actual election should be for more than two years. We regard this as essential — that the mayors of the cities should have an early and quick return to the people. The next section (since that is changed and since proportional representation is stricken out) I think could be amended possibly by saying " legislative board; " and if this amendment is voted down I shall probably offer that amendment. The next section means this: Mr. Jenks and every one here I think that has spoken with authority, with experience gained from acquaintance in the law department, or intimate association with city governments, follow- ing the language of Judge Finch, in 139 N. Y., agrees that although it would be most desirable, it is impossible to assimilate charters already made, of cities fully grown. But the thought of the com- mittee was, as to new cities, that in the growth and fruitage of the future they should exist under similar laws, similar forms, and similar methods, in order that the work of legislation might be simplified. I hope that this amendment will not prevail. Mr. M. E. Lewis — Mr. Chairman, I quite agree with the chair- man of the Committee on Cities that the resolution as presented by the President of the Convention is a central shot and I desire the delegates of the Republican party in this Convention and the people of the State of New York who are interested in home rule for cities and in self-government to note carefully the man that aimed the gun. The Chairman put the question on the motion of Mr. Choate to strike out section 4. and it was determined in the negative. The Chairman — Are there any further amendments to this section? Mr. J. Johnson — I offer the following amendment: To strike out lines 16 and 17, and the first word in line 18, and to insert '' legis- 490 REVISED RECORD. [Wednesday, lative council consisting of one or two bodies," so that the sentence will read: "Every city shall have a legislative council consisting of one or two bodies, with such municipal legislative powers as may be provided by law." Mr. Veeder — I move to amend the amendment by inserting before the word " with," in line 18, the words " to be elected by the electors thereof," so that they shall not be appointed, ever. Mr. Johnson — There is no objection to that amendment; it is accepted. The Chairman — The Secretary will read the amendment as now accepted by Mr. Johnson. The Secretary — Every city shall have a legislative council con- sisting of one or two bodies, to be elected by the electors thereof, and with such municipal legislative powers as may be provided by law." The Chairman put the question on the adoption of the amend- ment offered by Mr. Johnson, and it was determined in the affirmative. Mr. Johnson — I think that to say " to be elected by the electors thereof " is a surplusage. Mr. Veeder — To be elected by the electors of the city, will, perhaps, be better. The Chairman — If there is no further amendment to this sec- tion the Secretary will read section 5. The Secretary read section 5 as follows : " Sec. 5. All cities are classified according to the last State enumeration, as such enumeration shall from time to time be made, as follows: The first class includes all cities having a population of 250,000, or upwards; the second class includes all cities having a population of 50,000 and less than 250,000; the third class includes all other cities. Laws relating to any of the subjects hereinafter in this section enumerated in all cities of one or more classes are general city laws. Except as provided by section 6 the Legislature shall not pass any law, except general city laws, as to any of the following subjects in any city: First, streets and highways, except bridges or tunnels across the Hudson river below Waterford, or across the East river, or across waters which form a part of the boundary of any city, and approaches to any such bridge or tunnel ; second, parks and public places; third, sewers and water-works; fourth, the character and structure of buildings as to safety and security; city apparatus and force for preventing or extinguishing August 29.] CONSTITUTIONAL CONVENTION. 491 fires; fifth, salaries of city officers and employes; sixth, ward bound- aries; seventh, vacating, reducing or postponing any tax or assess- ment; eighth, membership and constituent parts of the common council; ninth, the powers and duties of the common council or of any city officer as to the subjects hereinbefore enumerated. The Legislature is not hereby restricted in passing laws affecting the jurisdiction or power of any city as to such subjects, so far as it is to be exercised outside of the boundaries of such city." The Chairman — Are there any amendments to this section? Mr. Johnson — I ask that in line 16, page 4, the words " legisla- tive board " be substituted for " common council." Mr. Veeder — I move to strike out The Chairman — Mr. Johnson has offered an amendment. Is yours an amendment to his? Mr. Veeder — It is an amendment to the section. I move to strike out the paragraph. The Chairman — It must first be perfected. The question is on the amendment offered by Mr. Johnson. Mr. Holls — I for one have some little degree of desire to know what the amendment is that we are about to vote upon. I have not the faintest conception what it is. The Chairman — Will Mr. Johnson send his amendment to the Secretary that it may be read? Mr. Johnson — Will not the Secretary take it down as I give it ; to strike out the words '' common council," in lines 15 and 16, and wherever else they occur in the section, and substitute the words " legislative board " or " legislative body," which is the title we have given to it in the previous section. It does not change any- thing except the verbiage. The Chairman put the question on the adoption of the amend- ment moved by Mr. Johnson, and it was determined in the affirmative. Mr. Veeder — For the purpose of having explained the meaning of the language, I move to strike out all after the word " enumer- ated," in line 17, of this section, page 4. I will ask the Secre- tary to read it. The Secretary — " The Legislature is not hereby restricted in passing laws affecting the jurisdiction or power of any city as to such subjects, so far as it is to be exercised outside of the bound- aries of such citv." 492 REVISED RECORD. [Wednesday, Vice-President Steele resumed the chair and adjourned the Con- vention until three o'clock this afternoon. AFTERNOON SESSION. Wednesday Afternoon, August 29, 1894. The Constitutional Convention of the State of New York met in the Assembly Chamber, at the Capitol, Albany, N. Y., Wednesday afternoon, August 29, 1894, at three o'clock. Second Vice-President Steele called the Convention to order. Mr. Abbott — Mr. President, urgent necessity compels my asking to be excused from attendance on Saturday afternoon and on Mon- day during the day session. The President pro tcmpore put the question on excusing Mr. Abbott as requested, and he was so excused. The President — Mr. Andrew Frank desires me to ask that he be excused for to-morrow afternoon. The President pro tcmpore put the question on excusing Mr. Frank as requested, and he was so excused. Mr. Banks — Mr. President, I desire to be excused for Saturday. The President pro tempore put the question on the request of Mr. Banks to be excused from attendance and he was so excused. Mr. William Sullivan — Mr. President, I desire to be excused from attendance on Monday. The President pro tempore put the question on excusing Mr. Sul- livan as requested, and he was so excused. Mr. Veeder — Mr. President, I desire to be excused from the session of Saturday afternoon. The President pro tempore put the question on excusing Mr. Veeder as requested, and he was so excused. Mr. Hirschberg — Mr. President, I ask to be excused next week for attendance at the County Court in Orange county. The President pro tempore put the question on excusing Mr. Hirschberg as requested, and he was so excused. The President pro tcmpore — The Convention will now resume the adjourned Committee of the Whole, and Mr. Johnson will take the chair. Mr. I. S. Johnson in the chair. Mr. Veeder — Mr. Chairman, I made my motion in order that August 29.] CONSTITUTIONAL CONVENTION. 493 the chairman of the committee might explain to us the meaning of this sentence, and I will be glad to hear from him. I am not captious about it, but I do not understand what the purpose of this paragraph is. I would like the chairman to explain, if he will. The Chairman — Mr. Veeder asks the chairman of the committee to explain section 5. Mr. Veeder — The intent of the last paragraph of section 5, beginning with line 17, after the word " enumerated." Mr. J. Johnson — Mr. Chairman, the intent and effect of that provision, as we understand it, is this — to illustrate, the cities of New York, Brooklyn and many of the cities of the State exercise a certain jurisdiction beyond their boundaries in the matter of acquiring and titilizing water rights. It seemed to the committee that when they were outside of the domain for which they were elected, it would be a gross invasion of all the principles on which the amendment was founded to provide that they should be beyond the reach of the Legislature in those other localities and other terri- torial jurisdictions. Since the article was framed, I have received communications from a number of gentlemen stating that that pro- vision had another value. In the interior of the State there are many cities that are compelled for municipal purposes to carry their sewage beyond the city limit, and it equally affects that. It has no other purpose, and so far as we know, no other effect. Mr. Veeder — Mr. Chairman, I ask then, to withdraw my motion. Mr. Choate — Mr. Chairman, I desire at the proper time, and if now is the proper time to do it, to move a reconsideration of the vote by which the words " with or without proportional or minority representation" were struck out from this section, and it is immaterial to me at what particular time it is considered, if I may be allowed for a moment to state the reasons why I wish to make that motion. I do not know how the attention of other gentlemen was occupied at the time the question was put upon that motion, but it seemed to me that the committee did not understand what they were voting upon. At any rate, a large proportion of the members of the Committee of the Whole did not understand it, and there were various gentlemen, myself among the number, who wished to be heard upon that subject; and men of both sides of this Convention, as they have been called. It has always seemed to me that those words in respect to the common councils of the cities of • the first class were of essential importance to this scheme of city gov- ernment as laid out in the preceding and the succeeding sections; that the great cities, containing, as each of them does, a very large 494 REVISED RECORD. [Wednesday, minority of citizens interested in the affairs of the city, and whose interests, perhaps, exceed, or at least equal, those of the majority, should have some right of representation in a municipal legislature that might in time to come be charged with those immense powers of government in respect to which a restriction is applied, by the succeeding sections, upon the power of the Legislature of the State. You take, for instance, the city of New York — why, Chancellor Kent said fifty years ago, when it had put a population of 125,000 inhabitants, that in a century the city of New York would rule the affairs of the entire State; and as time has advanced that prophecy has been more than justified ; and I think it may well now be pre- dicted that during the time that this Convention, which we are now framing, if put in force, shall be in operation before another Con- stitutional Convention, that will substantially be the fact, especially if there should be, as may well be expected, a union of the cities of New York and Brooklyn. Mr. Bush — Mr. Chairman, for the purpose of a ruling, I rise to a point of order. The Chairman — The gentleman will state his point of order. Mr. Bush — My point of order is that the section which the gen- tleman is debating has been already passed, and the debate on that section, or anything in relation to it, is not now in order. Mr. Choate — I wish to say in regard to that point of order, Mr. Chairman, as I said at the outset, that I do not especially care when I shall have an opportunity to make this motion to reconsider; but our rules provide that a motion to reconsider must be made on the day on which the vote was taken, or on the next legislative day; and they also provide that the same rule shall apply in the Com- mittee of the Whole, with some exceptions, as in the Convention at large; and if it is sufficient for my purpose, I will give notice that I intend to make such a motion at the proper time; and if the report of this Committee on Cities should extend beyond to-morrow, I shall insist upon my right to make it before the subject is disposed of,, and before the to-morrow's day is completed. The Chairman — The Chair holds that the point of order raised by Mr. Bush is well taken. The committee will proceed with sec- tion 5. Are there any further amendments to section 5? If not the Secretary will read section 6. The Secretary read section 6 as follows: " Sec. 6. Laws, other than general city laws, relating to any of the subjects enumerated in section 5, or to such subjects with other August 29.] CONSTITUTIONAL CONVENTION. 495 subjects, are special city laws; all such laws, and bills therefor, shall contain the words " special city law " before the first section of the bill or law. After any such bill has been passed by both branches of the Legislature, the house in which it originated shall immedi- ately transmit a certified copy thereof to the mayor of the city to which it relates, and within fifteen days thereafter the mayor shall return it to the house from which it was sent, with a certificate thereon that such city does or does not consent thereto. In every city having a population of 500,000 or more, according to the then last State enumeration, the mayor, and in every other city the mayor .and the common council, shall act .for such city as to such bills. After consent is given to any such bill, as herein provided, it shall be presented to the Governor for his action thereon. Any such bill which is returned without the consent of the city may be passed by a three-fifths affirmative vote of the members elected to each branch of the Legislature, and it shall then be subject to the action of the Governor as are other bills. In such cases there shall appear thereon, after the enacting clause, the words " passed by a three- fifths vote without the consent of the city." The Legislature shall provide for public notice of any such bill so transmitted to the mayor, and for opportunity for hearings thereon before the consent of the city is given." Mr. J. Johnson — Mr. Chairman, I desire to amend this section by substituting for the words "common council," wherever they occur, the words "legislative body." I believe that was the phrase we used in section 4. Mr. Holcomb — May I hear, Mr. Chairman, what that amend- ment is? The Chairman — The Secretary will state it. The Secretary restated the amendment offered by Mr. Johnson. Mr. Holcomb — I hope, Mr. Chairman, that that amendment will not be adopted. \Ye are accustomed to the words " common council," and have been for many years. The generations of man are uncounted since we have had in the city of New York a common council, and the words " legislative council " are simply an innova- tion. So far as I am concerned, I hope this amendment will not be adopted. Mr. Johnson — 1 will simply say, Mr. Chairman, that this is in conformity with the last two sections as they have been adopted by the committee. Mr. Holcomb — Then, Mr. Chairman, I shall move to strike out 496 REVISED RECORD. [Wednesday, the words '' legislative council " where they appear in the other portions of the bill, when the time shall come. The Chairman — The motion is not in order now. The Chairman put the question on agreeing to the amendment offered by Mr. Johnson, and it was determined in the affirmative. Mr. Nicoll — Mr. Chairman, I move to substitute for the words " three-fifths," in line 12, at page 5, the words " seven-eighths." The Chairman put the question on agreeing to the amendment moved by Mr. Nicoll, and it was determined in the negative. Mr. Nicoll — Now, Mr. Chairman, I move to strike out the words " three-fifths," in line 12, of page 5, and substitute the words " four-fifths." Of course, the purpose of this motion is obvious. Under the amendment first introduced by the distinguished chair- man of the Committee on Cities, it was provided that on those matters of local government and jurisdiction which appertained exclusively to the city, the Legislature was to have 'no power of interference. That was essentially a home rule provision, and I had occasion in the course of my remarks upon that to compliment the distinguished chairman of the Committee on Cities for his adher- ence to the doctrine of true home rule. Unfortunately for us who believe in that doctrine, an amendment was interjected which has now been incorporated in the article, so that instead of having the quantum of home rule first offered to us by the majority of the Committee on Cities, we have now only a half-way, or a mongrel, measure of home rule. In other words, instead of giving the cities exclusive control over their own affairs without interference through the Legislature, we are now informed that the grip of the Legisla- ture shall still be left upon the cities, but that they cannot inter- fere with local affairs, except by a three-fifths vote. Why was that surrender made by the redoubtable champion of home rule on the Republican side of this Convention? Why, having espoused the cause of home rule with all sincerity, has he now gone a dozen steps backward and left the cities of this State still in the grasp of the Legislature even as to their local concerns? What induced him to retire from his first strong position upon this subject? What we want in the cities of this State is the power to control our own affairs without interference on the part of the Legislature. We all know what has been going on in this State for the last fifty years, how our cities have been governed, even as to minute local matters, by the Legislature of this State. We know that we have no office, no franchise, no power, no privilege which cannot be taken away from us to-morrow; and the demand which we have made in this August 29.] CONSTITUTIONAL CONVENTION. 497 Convention is that hereafter, as to those matters which are of purely local concern, we shall have absolute control without legislative interference. Evidently some decision has been arrived at in this matter. We are now informed that we shall never have, after long years of suffering and protest, that full measure of local self-govern- ment to which we are entitled, but that the business shall be con- tinued at the old stand at Albany, except that it shall be done hereafter by a three-fifths vote. Well, three-fifths is better than nothing; half a loaf is better than no bread. If you want to divorce our local governments from control by the Legislature except by a three-fifths vote, why, a three-fifths we would have to take; but let us not accept it upon the notion that we are getting much of any home rule by that provision. Either adhere to the strong and vigorous propositions which were found in the first measure which proceeded from the Committee on Cities, or else at least give us a four-fifths vote, so that this prohibition to the Legislature from interfering may be practical and substantial. What do three-fifths amount to? Only a few more votes must be got than are needed now. Why not, at least, give us something? If, in fact, it be true that it is necessary for the Legislature to have some control over the affairs of cities; if you say it is not safe to give them the absolute control over their local affairs; that there must be some mode of escape, why let it be even in the four-fifths provision, and not in the three-fifths, which amounts to nothing. And those are sub- stantially my views upon the subject. I think my amendment would work to our advantage in some respects. The Chairman put the question on agreeing to the amendment moved by Mr. Nicoll, and it was determined in the negative by a standing vote, 31 to 54. Mr. Bush — Mr. Chairman, I move to amend section 6 by strik- ing out from line 12 the words " three-fifths " and substituting therefor the words " two-thirds." Under the present Constitution of this State, no property of the State can be devoted to a local or private purpose unless by a two-thirds vote of the Legislature. When this proposition was first introduced in this Convention as a home rule provision, it was provided that upon the subjects enumerated in this article the local legislatures, or common coun- cils, should have supreme control in the matters therein mentioned. The illustrious President of this Convention — I might say the Prometheus of this Convention — saw fit to propose an amend- ment of three-fifths, and in that way has virtually destroyed what- 32 498 REVISED RECORD. [Wednesday, ever home rule there was in this article upon these enumerated sections. Now, if, under the present Constitution, it was deemed advisable that before any property of the people of the State could be devoted to a local or private purpose, it should require only two-thirds of the members of the Legislature to support it, it seems to me that it would be equally fair that before the Legislature should interfere in the purely local and private affairs of cities a two-thirds vote of the Legislature should consent thereto. Under the pro- posed apportionment which the Republican majority in this body will undoubtedly carry through — which I hope will not be adopted by the people — but in case it should, there will be 150 members of Assembly. Three-fifths of that number would be ninety. A majority of the members would be seventy-five. It is necessary to have only fifteen more than a majority at any time to entirely override the views of the local authorities of any city as to whether they will or will not have any particular provision proposed by the Legislature. Now, it is only fair to say right here that in all proba- bility any party which controls the Legislature will control it by more, must control it by more, than seventy-five votes; probably eighty or eighty-five, leaving at any time probably not more than five or six votes necessary in order to get three-fifths. Now, what would be the effect of that? At any time in this State when a party in the majority needs a three-fifths vote to accomplish its purpose in any city in this State, it will only be necessary to unseat five or six of the opposition in order to get that control ; and has any man in this Convention ever seen the time when any political party in this State, or in the nation, hesitated to unseat five or six of its opponents if they stood in the way of accomplishing any great political purpose? If we adopt this measure, then I would like to see this Convention adopt some method of having the courts deter- mine who are or who are not entitled to seats in the Legislature; because, every session of the Legislature after this is adopted, will simply see a long list of contests in case it is necessary to get a three-fifths vote; because I never knew a political boss that hesi- tated one minute to unseat four or five common ordinary members of Assembly, if they stood in the way of his mighty will to interfere in some great city of this great land. It seems to me that some consideration should be given to this question if men wish to give home rule to any city. This does not give one particle of home rule. Three-fifths is no better than a majority. It is actually, prob- ably, worse, because it would create scandals that would not arise if there was an absolute majority. For myself, I would much rather August 29.] CONSTITUTIONAL CONVENTION. 499 vote that a majority should do it than three-fifths. The effect will be much less scandal in the Legislature of this State. Mr. Dickey — Mr. Chairman, some people would growl if they were going to be hung, and as for me, for one, I am getting tired of this trying to do something, taking away from probably Republican Legislatures and giving to Democratic cities the power that the Republican Legislature ought to retain for the good of the cities and for the good of the inhabitants, and the Republican minorities in the cities, giving it to the Democrats who now control, and probably will always control, the larger cities, and getting no recognition whatever for it; on the contrary, censure and abuse. This provision of three-fifths, if it should be changed at all, should be lessened instead of increased. As it is now, it is prohibitory. What does three-fifths mean? Three-fifths of the present number of Senators is twenty of the thirty-two. Three-fifths of the 126 Assemblymen is seventy-six. The Republican party has seldom any such number in either branch. Mr. Bush — How many have they now? Mr. Dickey — Now, if I may answer you, the conditions were such that the people rose in their might, as they do periodically, and gave us an exceptional majority. That is not likely to happen to that extent in some time again, because the people who gave us the occasion for it, the John Y. McKanes and others, are serving terms in State prison, so that they won't be out to commit such out- rages; and the fact that they were sent to State prison will deter others from committing like outrages and awakening and arousing the people, and all the people, so that they will come out and smite you hip and thigh. (Laughter and applause.) And in the Senate, Mr. Chairman, three-fifths of the proposed number, as proposed by the Committee on Apportionment, of fifty, is thirty in number. Three-fifths of 150 is ninety. You can see at once, when you con- template these figures, that our President has leaned on the mer- ciful side, and has really given these gentlemen the home rule that they are clamoring for. He has put it in the power of a Democratic mayor of a city to rule absolutely without any interference on the part of any Republican Legislature; and I am surprised that these gentlemen do not quickly pass this section and be glad they can get it from this large Republican Constitutional Convention. Mr. Choate — Mr. Chairman, I think it is time for a word to be said in explanation of a certain confusion of ideas that seems to prevail here about this phrase home rule. As it is put at the head of this article by the Committee on Cities it means one thing. As 500 REVISED RECORD. [Wednesday, it is advocated by these gentlemen who are trying to amend and nullify this section it means another thing. I know very well what they mean by home rule, and it is time to say it. They mean Tam- many rule, as it is and as it has been. Now, Mr. Chairman, if they are not satisfied with this three-fifths, and if, as Mr. Bush says, they would rather have it go back to a majority, it will go. (Applause.) I was very much disappointed this morning in not having an oppor- tunity to be heard on what seemed to me to be a cardinal feature of the scheme proposed by the Committee on Cities, and that was the right of the Legislature to give the minority in any city, especially in any great city, a voice in any Legislature that might be charged with these large legislative powers; and for one, I am opposed, and shall always be opposed, to conferring upon any legislature of the cities such power as long as that kind of home rule that they contend for is still maintained. I trust this motion of Mr. Bush's will be voted down. Mr. Dean — Mr. Chairman, I move to amend the amendment by inserting the word " majority " in place of " three-fifths." Mr. Chairman, I believe in the rule of the majority. I believe that to be absolutely essential to a republican form of government. Under this provision we have introduced the very extraordinary proposi- tion that we will allow the mayor to have a veto power upon the acts of the Legislature. This is certainly a very extraordinary proceeding, and one which can be justified only upon the theory that the Legislature is not to be trusted. However, so long as we are going to submit to a second veto, a veto by the mayor of a city, to be afterward subject to the veto of a Governor, and so long as we will allow a period of fifteen days between the enactment of the original proposition and the action of the mayor, it seems to me, after a provision has been passed through the Legislature and has been subject to this veto by the mayor of a city, that it should come back to the Legislature and be passed by a majority vote. Certainly there is no reason why we should take anything less than a major- ity, or anything more. It is a correct principle of government, and I believe that it is the duty of this Convention to stand squarely upon that principle. Mr. Hill — Mr. Chairman, the motion that has just been made by the gentleman from Chautauqua (Mr. Dean) seems to remove what- ever of home rule has been provided in this section. To go to the city with a measure for its veto power, and then return to the Legislature and permit the Legislature to overrule that veto power by a majority vote, is simply leaving the matter where it was when it passed the Legislature in the first instance. It robs cities of August 29.] CONSTITUTIONAL CONVENTION. 501 whatever good there is in the principle of home rule. Xow, Mr. Chairman, it seems to me that the concession which has been made by the Committee on Cities to cities in the way of home rule is a wise one. It is not a novel proposition. It has been suggested repeatedly by eminent statesmen in this country, that some pro- vision should be made to secure the autonomy of cities. The great evils which have sprung up in times past by unwarranted legislative interference have been such as to awaken public interest in this matter as in no other matter before this Convention. Years ago the subject of home rule for cities was thoroughly considered by a commission appointed by Governor Tilden. They examined care- fully into the question of the government of cities, and in their report, among other things, they say that " one of the evils existing in the government of cities is the assumption by the Legislature of the direct control of local affairs. This legislative intervention has necessarily involved a disregard of one of the most fundamental principles of republican government." Continuing, they say: " We entertain no doubt that this intervention has greatly aggra- vated the evils which it was, in many instances, designed to remove. There are some established truths relating to this subject of which the public needs to be reminded in order to perceive what a wide and dangerous departure from sound methods of government is thus made. Our existing system of national and State govern- ment stands fully accepted by us as the most perfect, and, practi- cally, the best adapted to our wants. In any effort, therefore, to cure incidental evils arising from defects in the details of the struc- ture, we should take care not to disturb the foundations or endanger its perpetuity. The system of government by municipalities is inherent in our free institutions. In separate communities existing as integral parts of the commonwealth, but having local interests which immediately concern themselves rather than the State at large, the instinct of self-government has always asserted itself in some way as the basis of their organic life. From this vital germ have sprung the municipalities which in every civilized State have claimed and exercised the right, sometimes granted as a concession of sovereign power and sometimes extorted by superior force, of administering law and government in respect to their local affairs, while retaining their allegiance as members of the whole nation." Then this commission proceeded to give some of the reasons why the Legislature should be limited or restricted in its control of municipalities. They state three or four reasons. Among them are these: 502 REVISED RECORD. [Wednesday, " First, they (the Legislature) have not the requisite time to exam- ine into the condition of affairs of municipalities. " Second, they have not the requisite knowledge of details, and " Third, what is even more important, the general representatives have not that sense of personal interest and personal responsibility to their constituents which are indispensable to the intelligent administration of local affairs." The commission advised that a constitutional amendment be adopted to avert these evils. Several years subsequent thereto, the Senate committee of 1890 made a careful examination into the government of cities of this State, and arrived at substantially the same conclusions, among which are these: " Our investigations result in the conclusions that the chief diffi- culties which underlie the government of cities in this State are four-fold : "First — Over-legislation and too frequent yielding on the part of the Legislature to the importunities of representatives of the various cities for the passage of special or local bills. In our opinion, the Constitution should be so amended as to protect cities against the power of individuals to appeal to the Legislature, and to protect the Legislature from the necessity of entertaining such appeals by restricting its powers to legislation by general laws. " Second — The absence of a general law for the government of all the cities of the State, whereby larger powers should be granted to local authorities and the Legislature correspondingly relieved. " Third — The absence of complete and accurate information relative to municipal administration. " Fourth — Subordination of the city business to the exigencies of State and national politics." And they, Mr. Chairman, prepared an amendment to meet these evils against which the report of the Committees on Cities is designed to legislate. If there be one question, Mr. Chairman, above others in its importance to municipalities — and I speak not for the municipality of the city of New York — it is that they should be pro- tected from the hasty, precarious and inconsiderate legislation that has frequently occurred in the past, and is likely to occur frequently in the future, whereby their rights, their interests and their welfare may be jeopardized. There seems, .Mr. Chairman, to be no reason whatever why the Legislature should not be prohibited from inter- fering with the ordinary business affairs of municipalities. It is not easy for a member of the Legislature, coming from the eastern end August 29.] CONSTITUTIONAL CONVENTION. 503 of Long Island, to find time to examine into the business affairs of a particular ward of a city, like Buffalo, so as to be able to legislate intelligently in regard thereto. The great questions of public pol- icy, to which our President alluded in his remarks a few days ago, must ever remain within the domain of legislative action; but aside from the important questions of public policy, matters affecting local interests ought to be conceded to the municipalities affected thereby, for they are much better prepared to transact their affairs in accordance with their interests than any Legislature. As I said a few moments ago, this proposition is not a novel one. In 1835 the English Parliament passed the Municipal Corporations Act, which swept away many abuses and accomplished needed reforms. That act was amended repeatedly, and in the year 1882 it was codified in the form of what is known as the Municipal Cor- porations Act of 1882. It provides an important and comprehen- sive scheme for the government of the English and Welsh munici- palities. A little later another act was passed, relating to the local government of boroughs, the metropolis and the counties in Eng- land and Wales. Parliament has thus provided for local self-govern- ment in England and Wales by a general law, wherein is reserved to municipalities the powrer to secure amendment of any local scheme of incorporation, upon petition to and confirmation by Her Majesty's Privy Council or by Parliament. So far as we have been able to ascertain, the Municipal Corporations Act of Great Britain has proved a great boom to the municipalities of that country. And on this side of the water many States permit the granting of charters only under general laws, and three States of the Union have taken a positive stand in favor of home rule for municipalities. These States are California, Washington and Missouri. They have incor- porated into their Constitutions provisions securing to municipali- ties substantial home rule. Will the State of New York deny to its municipalities that degree of home rule which has been accorded to municipalities by other States of the Union, and even under mon- archical forms of government? Gentlemen will remember that Rome, with her iron rule, did not hesitate to bestow upon her con- quered municipalities self-government or local government; that those municipalities were permitted to conduct their local affairs as they thought best. Even in the middle ages, we read that the Ger- man emperor permitted the so-called " imperial cities " to control their local affairs as they thought best. It seems to me, both upon precedent and upon principle, that this measure should be adopted as it has been reported. All the writers on political science of the present day favor the 504 REVISED RECORD. [Wednesday, system of local self-government for cities. De Tocqueville says that " a nation may establish a system of free government, but without the spirit of municipal institutions (institutions communales) it cannot have the spirit of liberty." John Stuart Mill attributes " the operation of free institutions " to the efficiency " of local administrative institutions." The royal sanitary commission of 1869 declared that " the principle of local self-government has been generally recognized as of the essence of (English) national vigor." And the exigency seems to have arisen in this State when local self-government may properly be conceded to its municipalities. It will not impair State sovereignty. The only criticism, Mr. Chairman, that I would make upon the report of the Cities Committee is that it should be restored to its original phraseology. But the concession that has been made is undoubtedly a wise one, and we ask that the amendment now be preserved intact. It embodies all the good provisions that were recommended by the Tilden commission of 1875 and by the Senate committee of 1890. Since that time the demand for home rule in this State has steadily, grown. It is almost irresistible in the muni- cipalities of this State. If this amendment be passed and sent to the cities for their approval it will add strength to the whole article and to the other recommendations that the Convention is likely to make. In justice to these municipalities, we ask you that this pro- vision, as it stands, without amendment, be approved by this Con- vention, to the end that the municipalities of the State may be protected from legislative interference and may be permitted to conduct their business affairs as they may deem that their interests require. Mr. Spencer — Mr. Chairman, I fear, sir, that this Convention is liable, in voting upon the motion that is now pending, to take coun- sel not from its wisdom, but from its passions. I admit, sir, that as a member of the Cities Committee, I have not at all times been able to restrain my impatience with what I have felt to be the unjust criticisms and covert attacks that have been made upon the work of that committee. But, sir, we are here, not to be led by passion, and not to be influenced by the motives which underlie or which spring from any of these sources. Rising to speak upon this sub- ject of home rule, I feel no embarrassment, as some of my fellow- delegates think I ought to feel, because I hail from a very small, although no mean, city. I would say to the gentlemen who hail from these large towns, that a man who is in the midst of a struggle or contest is not as well able to judge of the prospect of success or failure, or of the best plan on which to conduct the contest, as he August 29.] CONSTITUTIONAL CONVENTION. 505 who is a little retired, and can take a broader and more calm obser- vation of the field. And so, sir, a man from the interior, who may be a frequent visitor and a close student of the affairs of the great and grand city of New York, may not be without judgment and discretion in regard to its government. I say, therefore, that I do not labor under any embarrassment along these lines; but I do labor under the embarrassment and the difficulty which I experience in formulating my thoughts in proper language and enabling my rather thin voice to reach through the confusion of this chamber. Oh, sir, that I had the diction of a Choate, or the roar of a Dickey ! But, sir, I do not know, and shall not pretend to say what Tam- many's idea of home rule may be, nor shall I undertake to say what is the sentiment of the members of this Convention in regard to home rule. I have been told that the fact that the Secretary and not the committee prefixed this name to our article has misled some of our friends from the interior districts ; and I think, sir, that I am justified in attempting, in my feeble way, to explain what the com- mittee's ideas are on this matter of home rule for cities. It is not, sir, that we should constitute a number of States or inde- pendent principalities within the State. It is not, sir, that we should cripple the powers of the State to deal with its large and important affairs for the good of all its people. It is simply this, that we should relegate to the civic and State authori- ties, respectively, the discharge of their appropriate duties and func- tions, and in that regard to fasten the responsibility for government upon the parties to whom it justly belongs. Now, sir, can we separate the matters that pertain to the life of the cities from the matters that relate to the life of the State? Your committee approached this subject from the point of view of the individual. Is it an attack upon State sovereignty that every man has w;hat a learned and distinguished delegate from Xew York claimed to be his natural right? I think not. I think every man has rights that the State cannot and dare not invade. I think, sir, the State has no concern whether I part my hair in the middle, or whether I part it upon one side. I think, sir, that it is not the con- cern of the State to interfere with my domestic concerns, to say whether I shall wear the breeches in my household, or whether I shall confer that dignity upon my better-half. And so, sir, I say that in regard to cities, it matters not to the State at large whether Columbus avenue shall be forty or sixty feet wide, or whether there shall be one or two sidewalks upon the Speedway, a question that stirred up so much commotion in Albany last winter. These domes- tic internal concerns of the citv the State oucrht not to have am- 506 REVISED RECORD. [Wednesday, thing to do with, any more than it has the right to say that I shall raise cabbages or pumpkins in my garden. Now, sir, the life of the city corresponds in a very large degree to the life of the individual. The same parallel may be drawn between them, and you can carry it to any extent. I will not take the time. Now, is it possible for us to draw this line? Your com- mittee felt that it was a very difficult task to undertake. I admit, sir, that when we were asked to designate these peculiar and par- ticular things that relate exclusively to the city, and in which the State has no concern, we felt that a task had been set us that we could not accomplish. But, as we progressed and worked the thing out, we found that there were certain things, and these things we have undertaken to classify in section 5. And I would call attention to the fact that there are two classes in that category; those relating to the subjects, and those relating to the people or the bodies of officers who, in reference to the internal affairs of the city, are to regulate those affairs; and we have put those provisions there because we have said that the Legislature shall not, except under certain conditions, interfere with these matters. And then we have said that they shall not take these powers from one depart- ment and confer them upon another; and they shall not take the power of regulating parks from the park board or park commission- ers, and confer it upon the sewer commissioners or upon the police department; and, therefore, the last two divisions of that category are necessary and essential to this scheme. Now, sir, the next question that came before your committee was, how should these cities have a voice in legislating upon these particular distinct matters? And the question came up, after a large number of hearings; theories and plans were suggested by different men who appeared before the committee, and this question came before your committee: Is there anything in the affairs of the cities of the State that will form a basis or a suggestion as to how this voice of the city may be expressed? And, sir, there were mem- bers in your committee from different cities of the State, and one testified that for years the Legislature of the State has refused to interfere in these local concerns in our cities, unless they had the consent and the approval of our local officials. Others from other cities testified to the same thing; and we found that in the interior districts of the State there existed, by virtue of an unwritten law. a provision that the officials of the city should approve any measure before it should receive the signature of the Governor, even if it passed either of the Houses. Here, then, was the suggestion which came to vour committee for the wav in which the citv should be August 29.} CONSTITUTIONAL CONVENTION. 507 permitted to exercise its voice, and we have provided that in New York and Brooklyn that voice should be expressed by the mayor. And why? Because we found that they had no representative sys- tem of government there that was in touch with the people, but that the people were in touch with the mayor, and if he stood in the way of reform, the people would reform him, and that his successor would permit the act to be passed. But, we found a representative government in almost all the interior cities. We found they had common councils, and that it was in vogue at the present time that acts relating to these matters must receive the consent of the com- mon council, as well as of the mayor; and, therefore, we made this provision that as to those things the approval or consent of the mayor and common council should be obtained. Now, sir, we have felt that that should be final. We studied over the probabilities or possibilities of having that overruled, and we felt that it would complicate the section. We felt that it would involve propositions that might be confusing, to have bills sent to the Legislature, to the mayor and common council, and then returned subject to being overruled by a majority or a three-fifths vote, and then returned again and finally passed to take their chances before the Governor. But, sir, in waiving our own judg- ments in regard to this matter, we have agreed to report this bill as it now stands, and we think that, upon the whole, it is undoubt- edly the wisest and best course to pursue. Now, sir, we are not only willing, but anxious, to concede to the city of New York — and I will say that all this contest has raged around that city and Brooklyn — we are anxious to concede to her citizens this same right which is now, by an unwritten law, conceded to the interior cities; and in that connection we not only wish to apply this system to those great cities on the seaboard, but we wish to prevent the infraction of this unwritten law in respect to our own municipalities. I need not call your attention to the frequent and oft-repeated violations of this unwritten law in connection with certain cities of the interior. But, sir, we found that it was only broken or interfered with when, under the stress of political neces- sity, it was required to carry a vote in a certain city, or to keep in possession of an office some political boss; and, sir, a provision that does not meet the exigencies of party passion and of party necessity is a reed shaken by the wind. We want something sub- stantial in this Constitution: it is necessary to have it in the Consti- tution, so that it shall be as firm as a rock, stable as the earth itself, so that the Legislature, under no stress of political excitement, can interfere with the domestic concerns in the life of anv citv. And so, 508 REVISED RECORD. [Wednesday, sir, I hope that this covert motion to defeat this whole plan and scheme of home rule will not prevail. Mr. Dean — Mr. Chairman, the gentlemen who are discussing this question of a three-fifths vote in the Assembly or in the Legis- lature to carry these propositions, forget the fact that they are more than compensated for in majority rule by the fact of the great news- papers. Under this provision they have fifteen days from the time a bill passes the Legislature to lie in the hands of its mayor, and with- out his approval, to pass it over his veto. After it has passed through that process, it still has to go before the Governor for his action. Now, with these great newspaper establishments circulat- ing millions of papers through the State every day in the week, Sundays not excepted, they have fifteen or sixteen issues before the matter can possibly get back to the Legislature. With all that deliberation, it is not fair to say that this is equivalent to pass- ing it by the same vote, the original passage, because it is not. It has all the deliberation and all the discussion incident to fifteen days of newspaper notoriety. Those things are not true in the coun- try districts. If this provision is going to be passed, there is no reason why it should not be extended to the chairman of the board of supervisors in every county in the State. They have no protec- tion. There is not a daily paper in nearly half of the counties of the State, and they have no means absolutely of publishing these facts to the people. It is a matter of considerable importance, it seems to me. I cannot see how we are justified at this point in surrender- ing the sovereignty of the State in the slightest degree to the city of New York or any other municipality. Mr. Dickey — Mr. Chairman, a single word in response to the kindly suggestion of the gentleman from Fulton in reference to myself. I think the majority of this Convention, if not all of them, prefer a roar to a squeal. (Laughter.) Mr. J. Johnson — Mr. Chairman, I shall try and keep within the three-minute limit. The committee, I think, are very much obliged to the member of the committee who has just spoken. I was very desirous that every member of the committee should address the Convention, in order that the Convention might gather something from what might be said by them of the labor, the care, the thought, the consideration that have been given to this plan day after day, be it good or be it bad. Now, this amendment strikes at the vital part. I will not discuss it further than this: I want it for Brooklyn. I want it as a citizen. I want it as a Republican. I have been ashamed, sir, year after year, of the tale that the Legislature was August 29.] CONSTITUTIONAL CONVENTION. 509 responsible for the bills that were passed here. They are not, sir. Consider this the Assembly. Strike out the delegates at large that represent New York, and tell us if this Assembly could defeat a measure as to sewerage or water-works sustained by the whole New York delegation? No. So, sir, the officials of New York come here and obtain the legislation, escape responsibility and load the odium on those that are not really to blame. The thought of this amendment that runs through it and around which all else clusters, is responsibility, responsibility. Let the people have some one in their locality that they can reach, and reach with their votes, and that, sir, is the basis of home government for cities. This, sir, I believe, will be a great enfranchisement to the city in which I have the honor to reside, and I believe that the delegates unani- mously in this Convention, from the larger cities, I know not but from nearly all, believe as the committee believed on this point. And so we ask that this work be not broken, but that it go out to give if possible, responsibility, and direct responsibility, where it belongs. Mr. Dean — Mr. Chairman, I ask for a count. Mr. Cassidy — Mr. Chairman, I hope the amendment offered by the gentleman from Chautauqua, substituting " majority " for " three-fifths," will prevail. I am reminded of the famous saying of Napoleon the First, " Nothing by the people, everything for the people, and I will furnish it." That seems to be the position of the minority on the question of home rule. And home rule, as furnished by the majority, is purely statutory legislation, and experi- mental at that. We have no right, Mr. Chairman, to drag statutory legislation by the ears into the Constitution, as you would drag a squealing pig into the parlor, before we have experimented with and proved it. This legislation does not belong to the Constitution. I stated when I first came to this Convention that I believed home rule was a delusion and a snare, a will-o'-the-wisp that men chase, and when they think they have found it they fall upon its neck, as Aeneas did upon the neck of Anchises, and when they strike the ground, they are suddenly brought to their senses. Home rule means simply this, when carried to its logical conclu- sion, that every man shall be a law unto himself and a terror to everybody else. I believe that every part of the State should have an interest in every other part, and that it would be just as unrea- sonable to ask the rural districts of the State to abandon their inter- est in New York city, as it would be to ask the people living in New York city to abandon their interest in the rest of the State. There are people living in New York State who are deeply interested in 510 REVISED RECORD. [Wednesday, the wealth of New York city. Much of the wealth of New York city is owned by non-residents, and much of the wealth of the coun- try is owned by citizens of New York city. We are mutually inter- ested in every part of the State alike, and so long as we have party rule, so long as we are willing to submit to the rule of the majority, the majority should prevail in the cities as in the rural districts. For that reason, Mr. Chairman, I believe that the amendment offered by the gentleman from Chautauqua should prevail. Mr. Root — Mr. Chairman, it seems to me, sir, that the adoption of the proposed amendment to this section would make it utterly worthless. What is the sense of putting into the Constitution a provision that the Legislature shall not enact a law upon certain carefully enumerated subjects, unless a majority of the Legislature vote for it? That is all it amounts to. We have that provision now. A majority of all the members elected are required to vote in favor of every measure which becomes a law, and there is noth- ing whatever to be gained by providing that after the majority has voted for it, and the mayor of some city says he does not like it, the majority shall vote for it again. So this amendment, as it is manifestly intended to be, is totally destructive of the proposed pro- vision. And, sir, as I believe the proposed provision would be a most useful and beneficent one, I am against* the amendment. I have observed, sir, that one of the great difficulties in legislation, regarding our great cities, has been that a large number of the members of the Legislature have really been unable to obtain thor- ough information as to the real state of public opinion in the cities to be affected by the laws proposed. It is exceedingly difficult, to get people to come from New York and from Brooklyn, and from Buffalo and from Rochester to Albany, to hang about the Legislature and await the progress of bills, find out when they will get into committee, and await the opportunity to express their opinions and the opinions of their fellow-citizens regarding them. It is everybody's business to keep watch of legislation; it is, there- fore, nobody's business, and in the enormous multiplicity of meas- ures which are brought before our Legislatures, mounting up in the hundreds and the thousands, the people of our cities have prac- tically no idea of the measures which are being passed upon by the Legislature. The Legislature does not get hold of the real senti- ment and wishes of the people, except upon occasional measures of very grave importance, which are stubbornly contested. The result is, the people of the cities wake up to find that laws have been passed before they know it, when it is too late for them to protest, too late for them to object, and they take it out in grumbling at the August 29.] CONSTITUTIONAL CONVENTION. 511 Legislature; when, if their opinions had been expressed before, the Legislature might have acted very differently. The plan now pro- posed by this committee secures this, Mr. Chairman. It secures the presentation of every law which relates to the private and local affairs of a great city; every law which relates to what may properly be called its private pecuniary interest, its business interests, as dis- tinguished from its functions as a part of the government of the State. It secures that every such law shall, after it has reached a perfected form, be held before the people so that they shall have an opportunity, through their chosen representative in the city, to express their opinion about it and say whether they want it or not. It restores to them the power in regard to their private corporate affairs, to do what private corporations long had the right to do, to accept or refuse to accept a change of their charter. It provides that if, after this full opportunity for discussion and expression of opinion is had, the chief magistrate of the State shall signify to the Legislature that the people of the city do not want the law changing" their private affairs, it shall not be forced upon them, except by a three-fifths vote; the vote of the same number that is required to be present when money bills are passed. Mr. Chairman, I do not believe that requirement will stand in the way of any measure which ought to be forced upon any city in this State against its will, in respect of these private local matters. I believe the effect of the measure will be to concentrate responsi- bility. It will be to turn the light of public discussion, public opin- ion and public knowledge full upon the chief magistrate of every city, and put him to his responsibility for assenting to measures regarding that city's private affairs, or refusing to assent; and if he refuses, it will turn that same light and concentrate that same responsibility upon the Legislature of the State. Mr. Chairman, I do not believe that the true remedy for evils in our government is to be found so much by changing powers from one officer to another, as by fixing responsibility upon some officer, so that the people may know who is faithful and who is faithless to his trust. (Applause.) I believe, sir, that this provision, as reported by the Cities Committee, will accomplish the great reform of fixing responsibility and compelling legislation regarding these cities, to be done upon a hill-top, in the full light, instead of being done under cover of the confusion and darkness of the legislative turmoil in the last days of the session. And, Mr. Chairman, with these views, believing that this amendment is intended to kill this pro- vision, I am going to vote against it; and I hope every one else who 512 REVISED RECORD. [Wednesday, is really in favor of improving legislation as to cities, will do the same. Mr. Vedder — Mr. Chairman, notwithstanding the very eloquent and able remarks of the gentleman from New York (Mr. Root), I am going to favor this amendment. I do not believe, Mr. Chair- man, that any power other than that which is now by the Constitu- tion given to the Governor, should have the right to veto upon the acts of the Legislature of this State. The Constitution now provides that the legislative power in this State shall be vested in the Senate and the Assembly. That is the legislative branch. The executive cannot interfere in that, except as the Constitution points out that he may veto a measure, and after that the Legislature may, by a two-thirds majority in each branch, pass the bill or measure over his veto. I believe that so far as interference with the Legislature is concerned, that is going far enough, and that no portion of the State should by means of the veto become greater than the State itself; that no one man, elected by a portion of the State, should by the Constitution become greater than the Legislature of the whole State. The Constitution should command, or may command, what the Legislature shall do, and that is binding upon the Legislature. It may also command what the Legislature shall not do, and that is binding upon the Legislature. If these gen- tlemen representing these cities desire to prevent the Leg- islature from acting, let them put a provision in the Constitu- tion that in regard to certain subjects connected with city affairs the Legislature shall not act. But if we give the Legislature power to act in any particular in regard to cities, let us make it supreme in the exercise of that power. Now, the chief ground alleged for this provision is that the people of the cities are afraid of their chosen representatives in legislative halls. I have had somewhat of legislative experience, and 1 say to this Convention that I can remember no Legislature that ever sat in the capitol of this State where the members of either branch or both branches, outside of the city of New York, ever forced upon the city measures which its representatives in the Legislature did not want. New York itself represents in the Assembly of this State one-quarter really of all the members to be elected to it under the present apportionment, and it will represent nearly one-quarter under the system of appor- tionment which has been suggested. They also have one-quarter of the Senate of the State of New York, nearly one-quarter, and with the city of Brooklyn acting with them, and the city of Buffalo, they have over one-fourth, and no bill will ever be passed affecting the city of New York or the city of Brooklyn, unless the Members August 29.] CONSTITUTIONAL CONVENTION. 513 and Senators representing those .cities not only consent to it, but favor it. Now, Mr. Root says that if we say they may pass it by a majority after the mayor has refused his consent, it gives no power whatever other than what they will now have without any such provision. Mr. Chairman, it does. The papers of the city of New York rule the State substantially, and if a measure should be passed by the Legislature and that was sent to the mayor of the city of New York, he would have fifteen days in which to consider that measure and to give his reasons why it ought not to be passed over his refusal to consent. If he were right, the press of New York city would thunder in his behalf, and no Legislature would ever dare to pass the measure over the refusal of the mayor to consent to its passage. It has that advantage. The Legislature of this State, gentlemen, always desires to do right. It may sometimes do wrong. This Convention may do wrong, but not intentionally. And of the thousands of measures that have been passed by the Legislature of the State of New York ninety-nine per cent of them have been voted upon by honest men, and have been carried by honest votes. Now, in reference to the mayor of the city of New York, or of Brooklyn. Once in a while there is an accident in Brooklyn, and there is a Republican mayor. No such accident has ever happened in New York, and I believe it never will. (Applause.) Now, what about the present Senators and Assemblymen from the city of New York? Is there one of those thirty who come here each year, and nearly all of them belong to Tammany Hall, or of the seven Senators, but that upon this floor and the other does the will without questioning of Tammany Hall? And if they are suf- fered to vote on a measure affecting the city of New York it is fair to assume that they do so by the consent and with the knowledge of the mayor of the city of New York, and he will stand by them. I never expect to see the time, if this measure shall be passed, when the members, if they are all from Tammany, as they are quite apt to be, from the city of New York, or the seven Senators, that they will ever vote for a measure affecting the city of New York without the consent of the mayor of the city of New York. It would be worse than useless, a waste of time, to send a bill, which they had supported, down to the mayor for his consent or for the refusal of his consent, because he would grant it. I think it is going a good way in giving up the sovereignty of the people, which should be lodged in the representatives of the people in Senate and Assem- bly convened, to permit even a bill to be sent to the mayor of the 33 514 REVISED RECORD. [Wednesday, city before it shall go to the Governor, and then to go through what would oftentimes be a mere farce, to vote on it again after having: ' O O received the reasons of the mayor of the city against it. But it is of some service, perhaps, in that it gives fifteen days for reflection on the part of the Legislature which passed it, and gives them time to think of the reasons which may be interposed, if any are, by the mayor of the city, and that is enough. I have faith in the Legisla- tures of the State that have sat here in the past and of those that will sit here in the future, that if they should pass upon a bill affirma- tively, and the mayor should refuse his consent, giving good reasons therefor, and the metropolitan press of New York city should say that the mayor's reasons were sound and valid, every Member of Assem- bly and every Senator, particularly from the country, would change his vote, and vote in accordance with the sentiment of the mayor of the city and the metropolitan press of the city of New York. Mr. Becker — Mr. Chairman, I desire to say a few brief words on behalf of the other cities of this State, outside of New York. When the Committee on Cities proposed its first report, its mem- bers, or a majority of its members, believed, and I think they still believe, that either for New York or for any other city in this State, it would be well nigh impossible to build up, nurture and support a healthy public spirit of citizenship, unless the citizens themselves, through their control over their local authorities, were solely respon- sible for the good government of those cities. For that reason the veto power invested, in the great cities of the State in the mayor, and in the other cities in the mayor and the common council, where common councils do something and amount to something, where they have not been shorn of their powers, as in the city of New York, where it was found by the Fassett investigating committee that 660 laws or rules passed by the common council of the city of New York out of 1,500 related to the granting of peanut-stand licenses and hack stands, and similar trivial matters of that sort purely municipal; but in the wisdom of some of the gentlemen of this Convention, who are so desirous of preserving what they, per- haps, justly believe to be the supreme control of the State over the affairs of these municipalities, the committee conceded, with hesita- tion, it is true, so much of its original plan as required that the veto power on these local matters should be absolute, but stood upon the provision which is now sought to be deprived of its whole force and effect, namely, that when the members of the Legislature had gone so far as to interfere with the affairs of the city in its purely business matters — for it is only business matters referred to in this provision — and had committed themselves, Mr. Chairman, August 29.] CONSTITUTIONAL CONVENTION. 515 mark you, had committed themselves, as they do commit them- selves when they pass a bill, to the justness of the measure; that if, on going back to the municipality, its chosen representative should say no, then when the bill came back again, more than that majority which had originally passed it, although a paltry few more, I regret to say, should be required to pass it again before it should go to the Governor. Now, Air. Chairman, I do not care to spend time on this matter, but I want to call attention to one thing that I think ought to be called to the attention of this committee, more forcibly perhaps than it has been, if possible. What are these matters in which this provi- sion says that if vetoed by the home authorities, a three-fifths vote shall be required? Why, it is salaries, it is the control of the fire department, it is the control of the streets and the various things that the people of Buffalo, of Erie county, of Chautauqua county, if you please, have no more to do with, as relates to the city of New York or Brooklyn, than any man that sits in this Convention has. What do we care in Buffalo how New York cleans her streets? What do we care how much salary she pays to her policemen, and matters of that sort? And it is solely those matters as to which this veto power is reserved. What has been the history on these questions Why, I remember in my own city, where, against the protest of every newspaper therein, that my friend talks about, and we have a powerful and an honest and intelligent press, against the protest of the citizens, against the protest of the mayor, the written protest, against the resolution of at least one branch of our common council, the mem- bers of the Legislature, who wanted to be renominated the next year, were induced to consent to raise the salaries of one of our local boards; and they followed it up by raising the salary of another local officer, and still another, from $2,000 to $3,500, and from $3,500 to $5,000, and all the protests we could put in, and all the protests the newspapers could make, were absolutely disregarded and pushed aside as availing nothing. It is such measures as that; street opening, street cleaning jobs, and all such things as that, which are given the cover of legislative authority, that this provis- ion is aimed to prevent. Now, how is it that they are able to pass these measures? Why, Mr. Chairman, simply in this way: because the remainder of the State is not interested in such matters, and knows nothing about them. The local representatives have all to say. They come to Albany and they say. '* If you don't give us this thing, you can't have what you want in your city, for your own good, if you please." 516 REVISED RECORD. [Wednesday, They stand together. You scratch my back and I will scratch yours, is the principle that they act on, and history, time and again, has demonstrated it. I do not believe that the Legislature of this State, or the House of Congress, are worse than any other like bodies, but I do not believe they are any better. They have the same weak- nesses of human nature that all of us have, and they are too apt, Mr. Chairman, at times to allow those weaknesses to govern them where they are not likely to be held responsible. If my friend, Mr. Vedder, from Chautauqua county, being in the Senate, chooses to vote for some measure for the city of New York, or against, if you please, I do not care which way it is, which his people do not know or do not care anything about, they do not hold him responsi- ble, and there is no way in which they can hold him responsible, because it is a matter they know nothing about and care nothing about. It is purely a local matter, and it is such local matters as those that this proposed amendment is designed to cover; and it is upon legislation on the principle of mutual admiration and mutual- support and mutual political affiliation, in which both political parties are equally reprehensible, that this bill is designed to put up the barriers and checks. Mr. Chairman, it seems to me that some of the action which has been taken here to-day has done much indeed to give the people of this State the idea that we are simply fooling with this question of home rule; that we are trying to give the people of the State a chance to vote on the shadow, and not the substance, of home rule; that we are making a promise to the ear that hereafter shall prove false in the execution of it. Pause, gentlemen, and reflect what you are doing before you defeat this measure. Do not consider that it is designed solely for New York, for it is not. We have other great and growing cities in this State, as deeply, aye, more deeply interested in it than New York city. Do not strike down the last barrier that the Cities Committee have endeavored to inter- pose against this local legislation, this pernicious legislation about matters of purely business concern. Mr. Towns — Mr. Chairman, it seems to me that this discussion has gone far enough. I had occasion to express my views upon this subject yesterday; and now I think I may be able to settle this question by appealing to the Bible. I think we need a little Scrip- ture. In the language of Bildad, the Shuhite, and the Book of Job, I want to ask this Convention, " How long wilt thou speak these things? How long will the words of thy mouth be like a strong wind? Should a man full of talk be ever justified? Should wise men utter vain knowledge, and fill their bellies with east wind? August 29.] CONSTITUTIONAL CONVENTION. 517 Should vain words ever have an end? How long will it be ere ye make an end of words? How long will ye vex our souls and break us to pieces with words? Who is this that darkeneth counsel by words without knowledge? " Now, it seems to me, Mr. Chairman, that we have devoted suffi- cient time to mere words. We of the minority have made a gallant fight, we have done our best, and it seems now that we have done that best so well that we are about to go back where we left off some weeks ago, and are considering seriously whether we shall amend this article by giving the Legislature what it already pos- sesses, as Mr. Root so well remarked, the power to pass a law by a majority instead of by a three-fifths vote, so I' think that these words of Bildad, the Shuhite, and of Job, who in his agony cried out against words " leaves and nothing more," should be listened to by this Convention. Let us close this discussion upon this most pugnacious section of Mr. Johnson's production. Let us not consti- tute this body a body of counselors of confusion; confusion becom- ing worse confounded. Let us take a vote, and above everything, let us not stultify ourselves by putting into the fundamental law what is the very foundation of popular government by the majority, namely, that a law shall be passed by the majority. It seems to me that it would be the greatest stultification of all the stultifications we have sought to make ourselves guilty of during the pendency of our deliberations. The Chairman put the question on the adoption of Mr. Dean's amendment to the amendment of Mr. Bush, and it was determined in the negative. The Chairman put the question on the adoption of Mr. Bush's amendment, and it was determined in the negative. The Chairman — Are there any further amendments to this section? Mr. Cochran — Mr. Chairman, I have a substitute. Mr. Becker — Mr. Chairman, I desire before the Convention closes to-night, by agreement with the minority members of the Committee on Legislative Organization, to offer a brief resolution. It will not require any discussion. It is in reference to the printing of the proposed amendment reported by that committee in regard to apportionment. The Chairman — Does it refer to this section? Mr. Becker — I am going to make a motion, if the Chair will pardon me. 518 REVISED RECORD. [Wednesday, The Chairman — In reference to this section? Mr. Becker — In reference to the whole matter, Mr. Chairman. I am going to move that we rise and report progress. Mr. Mclntyre — I object, Mr. Chairman. Mr. Becker — We are very desirous, Mr. Chairman, to get the State Engineer at work making certain maps, and for that reason I desire to make this motion. If there is any objection, of course I will have to wait until we come back this evening. Mr. Bowers — Mr. Chairman, I understand the gentleman from Erie merely wishes to move that we rise, report progress, and ask leave to sit again, to enable him to make a proposition in the Convention that leave be given to print some documents which must be printed, if we are going into debate on the apportionment next week. The Chairman — Are there any further amendments to this section ? Mr. Cochran — I have a substitute, Mr. Chairman. Mr. Roche — Mr. Chairman, I would like to ask a question of the chairman of the committee. The Chairman — Mr. Cochran has the floor. Mr. Cochran — Mr. Chairman, so much has been said this after- noon in reference to the kind of home rule that the minority want in this Convention, and it has so frequently been said that the home rule they seek is Tammany Hall rule, that I desire to offer a substi- tute for this present section, a substitute which was prepared by the Committee on Cities and which was reported by them, at least by all of the majority party of that committee. I think if one thing more than another has become apparent to this committee it is that there are two parties in this committee. The Chairman — The Secretary will read the substitute offered by Mr. Cochran. The Secretary read as follows : " Laws may be passed affecting one or more of the subjects enu- merated in the last preceding section, in any city, on the consent of the mayor, or the mayor and common council, given as hereinafter provided. After any such bill has been presented to the Governor and before he shall act thereon, there shall be twenty days in which, as to any city of 500,000 inhabitants or over, according to the then last State enumeration, the mayor of the city named in the title of the bill may consent thereto; and in which, as to anv other city, August 29.] CONSTITUTIONAL CONVENTION. 519 the mayor and the common council may consent thereto, but no such consent shall be given until after five days' notice by publica- tion in the newspapers designated to publish city notices, stating the title of the bill in full, and that the city officers here designated for such city are considering: the question of consenting thereto. After such consent is given and presented to the Governor, he shall have the same power as to such bill and the same time to act thereon as he has as to other bills. The Legislature may also pass laws as to any city affecting one or more of such subjects, to take effect on the consent of a majority of the electors thereof voting thereon, expressed at a general or special election, as may be provided by the Legislature, not less than thirty days after the passage of the act." Air. Cochran — Air. Chairman, I desire to say that I think it has become apparent by this time that there are two parties in this com- mittee; those who desire home rule and stand up for it, and those who make a pretense of desiring home rule, and are only stabbing it in the back. I believe there is on this floor no more earnest and honest advocate of home rule than the worthy chairman of the Cities Committee, who has been so slandered and vilified by those who have no desire to work with him, but only a desire to hinder and delay his work. This Cities Committee came before this Conven- tion with a report, and in that report and in their amendment they suggested what they thought was sufficient home rule to allow the cities, and in what particulars they thought the cities should govern themselves. But my worthy friend, Mr. Becker, who signed that report, seems now to have taken another tack and opposes what he advocated on the floor of this Convention a few days ago. In speaking on this section the gentleman from Erie (Mr. Becker; then said : " What the committee had hoped to do was to provide that on these special subjects, which are here enumerated, and which are purely business matters, just as much business matters as the running of a mill, the carrying on of a bank, the carrying on of a store — that as to those business matters, into which politics should never enter, never could enter and never would enter, except upon the basis of the distribution of patronage, that on those mat- ters the locality should be the sole judge of what it wanted." \Ye discussed the amendment, and during the discussion a new light is brought in on the subject, and some of the gentlemen, who, I believe, are advocating home rule upon this floor and who do not want it. made a suggestion as to what they thought should go into that constitutional amendment. It was returned to the committee, and we find the committee reporting this suggestion embodied in the amendment. I listened with a great deal of attention this afternoon 520 REVISED RECORD. [Wednesday, to see if the worthy chairman of the Cities Committee would advo- cate this amendment as now proposed by the Cities Committee; but, sir, he has not said one word in support of the amendment which has now been interjected into their original amendment. Its advocacy is thrown upon a new member on the Cities Committee. I will leave this committee to draw its own conclusions, but I submit, sir, that if this Cities Committee reported what was really home rule at first, that they have now taken out of it the only element of home rule that it contained, and I trust that this substitute, which is not prepared by the minority in this Convention, but by the major- ity and by the Cities Committee, will now be adopted. Mr. Johnson — Mr. Chairman, lest my silence shall be miscon- strued, I wish to say that I believe it would be one of the greatest calamities that could happen to have that amendment adopted at this time. Mr. Cochran — '' At this time " is a good qualification. Mr. Johnson — I am heartily in favor of the amendment as it stands, Mr. Chairman. It is a marked advance, a prodigious step forward and upward, and we must stand upon it. The Chairman put the question on the adoption of Mr. Cochran's amendment, and it was determined in the negative, by a rising vote, 30 to 54. Mr. Roche — Mr. Chairman, I would like to ask the chairman of the Committee on Cities the meaning of the words on lines 22 and 23, " or to such subjects with other subjects." What is their pur- pose? Why are they put in there? And in connection with this subject, I desire to call the attention of the chairman of the com- mittee to the fact that the Constitution provides, in reference to private or local acts, that the subject shall be expressed in the title, and there shall be but one subject. Here it would appear as if the special acts or special city laws might be incorporated in acts which also contain provisions on other subjects. I would like to ask the chairman the meaning of that. Mr. Johnson — Mr. Chairman, without that it would be impossi- ble to draft a city charter — unless you could mingle the treatment of the enumerated subjects with those that are not enumerated, it would be impossible to make a law general as to cities. Without that, either one thing or the other would happen; you would pass laws as to enumerated matters without that limitation, or they would not be passed at all. Mr. Roche — Then, Mr. Chairman, why not, in order to make it clear, in order to remove the possibility of inserting any acts of a August 29.] CONSTITUTIONAL CONVENTION. 521 general character, provisions which relate simply to a locality, why not say, " or to such subjects with other subjects of a muni- cipal character," or " relating to the municipality.'' Mr. Johnson — Mr. Chairman, if the gentleman will let the mat- ter rest until the evening session I will make a further statement. The Chairman — The Secretary will read the next section. The Secretary read section 7, as follows: " Sec. 7. Nothing in this article contained shall limit or affect the power of the Legislature to annex contiguous territory to any city, or to consolidate contiguous cities, or to make, or provide for making a charter for any city created by such consolidation; but after the charter of any city, created by such consolidation, shall have become a law, such city, and the charter and laws relating thereto, shall be subject to all the provisions of this article. Except as expressly limited, the power of the Legislature as to cities, their officers and government, and as to any district created by law and containing a city, or to provide for the removal of the mayor of any city, remains unimpaired; but such removal shall only be for cause and after a hearing." Recess was here taken until eight o'clock in the evening. EVENING SESSION. Wednesday Evening, August 29, 1894. The Constitutional Convention of the State of New York met in the Assembly Chamber, in the Capitol, at Albany, N. Y., August 29, 1894, at 8 P. M. Vice-President Steele called the Convention to order. Mr. Becker — Mr. President, by mutual consent of the members of the Committee on Legislative Organization, I have one or two resolutions to offer, which relate to the maps setting forth in detail for the information of the whole Convention, the lines on which the Senate districts are laid out, also which relate to the printing of copies of the amendments for distribution. The Secretary read the resolution, as follows : R. 186. — Resolved, That the State Engineer and Surveyor be requested to furnish the Convention with maps of the Senate dis- tricts in New York county and in the remainder of the State, shou - ing the total citizen population in each district, and the total alien 522 REVISED RECORD. . [Wednesday, population in the same, and that the expense thereof be paid upon the audit of the Committee on Contingent Expenses. Mr. Becker — I move that resolution. Mr. Cochran — May I ask the introducer of that resolution if it contemplates a separate map for the county of New York, and another for the other part of the State. It would seem so from the wording. Mr. Becker — It does, Mr. Chairman. The reason for that is this: the Engineer had already constructed one map in colors of the whole State. When he got down to New York he found that it was impossible for him to put it in large enough to show the formation of the districts there, and he had to put the population and all that merely in figures. I consulted with Mr. Bowers and some of the other members here, and they have no objection to it whatever. Mr. Cochran — Is it satisfactory to the minority of the committee? Mr. Becker — Yes; it was with their consent. Mr. Cochran — Then it is satisfactory to me. Mr. Veeder — I did not quite catch what the gentleman said about consent. Mr. Becker — I will repeat it. I stated that we have already had before us, by order of this Convention,, maps which are reduced copies of a larger map, showing the Senate districts under the pres- ent apportionment. Mr. Veeder — The committee has? Mr. Becker — The committee has and the Convention has. It is for the benefit of the Convention, and there will be distributed to-morrow copies of those maps among the members of the Con- vention, relating to the present apportionment. In making those, the Engineer found that when he got down to New York county, it was so large to handle and make, that he could not set out the divisions, all the Assembly district divisions, and all that in New York county, so as to show them successfully, and consequently, in talking this thing over with the members, we thought best to have a separate map made, one of the whole State, and the other of New York county and New York city. Mr. Veeder — How about Kings? Mr. Becker — I am perfectly willing Kings should be included in that. I think the suggestion is a good one to add Kings. August 29.] CONSTITUTIONAL CONVENTION. 523 Mr. Veeder — We should have some knowledge of the geography of these districts. Mr. Becker — That is just what we desire, Mr. Veeder, and why we make this motion. The President pro tcmporc put the question on the adoption of Mr. Becker's resolution (Xo. 184), as amended, and it was deter- mined in the affirmative. Mr. Becker also offered the following resolution, which was read by the Secretary: R. 187. — Resolved, That the number of the copies of the amend- ment to article 3 (O., I. No. 3/6), relating to the apportionment of Senate and Assembly districts, reported on Monday last by the Committee on Legislative Organization, be increased to 4,000, and that a like number of the tabular statements attached to the report of said committee be printed and bound with such amendments, and distributed under the direction of the Secretary of the Convention. Mr. Bowers — May I ask the gentleman a question? That does not call for the printing of the report? Mr. Becker — That distinctly does not call for the printing of the report, and there is nothing whatever in the tabular statements of a political character. It gives simply the figures taken from the census of 1892, from each district. It is an explanation of the amendment. Mr. Bowers — And the amendment itself? Mr. Becker — And the amendment itself. It is entirely satisfac- tory to Mr. Osborne. The President pro tcmporc put the question on the adoption of the resolution, and it was determined in the affirmative. Mr. Powell — Mr. President, I have just received a letter from Mr. Hecker, inclosing a telegram, which he received from his wife, stating that one of his children is very low, and he informs me in his letter that he has been compelled to return to Brooklyn on account of his telegram. I ask that he have leave of absence until such time as the health of his child will permit him to return. The President pro tcmporc put the question on the request that Mr. Hecker be excused from attendance, and he was so excused. Mr. Augustus Frank — Mr. President, I would like to inquire of the chairman of the Committee on Apportionment why we need 4,000 maps? 524 REVISED RECORD. [Wednesday, Mr. Becker — There is no request for any maps but three — one of New York, one of Kings, and one for the remainder of the State. Mr. Augustus Frank — I understood the resolution was to print 4,000 copies of the maps. Mr. Becker — The 4,000 relates entirely to the amendment and the tabular statements, arid is an increase in the number from the regular rule of the Convention. It is simply a matter of so many more turns of the press. Mr. Augustus Frank — I find, in the document room, piles of bags full of documents that we will never take away, and why we need so many of them I do not see. The President pro tcmpore — The resolution has passed, and it will stand unless a motion is made and carried to reconsider. Mr. Veeder — Mr. President, I move that the proposition (O., I. No. 384; P. No. 425), general order No. 48, in reference to the suppression of gambling, be made a special order next, after the conclusion of the article known as the apportionment. Mr. Mereness — Mr. President, I move to lay the motion on the table. Mr. Veeder — Mr. President, I have not yet surrendered the floor. The President pro temporc — The gentleman is still in order then. Mr. Veeder — I hope that the gentleman will not make a motion to lay that on the table. I made the motion, Mr. President, for the reason that to-day one of the crying evils is the methods of gambling Mr. Cady — Mr. President, I rise to a point of order, and also to ask for information. The President pro tcmpore — The gentleman will state his point of order. Mr. Cady — That a motion to lay on the table is not debatable. The President pro temporc — The Chair will inform the gentle- man from Columbia (Mr. Cady) that he entertained the motion to lay on the table, understanding that the gentleman had yielded the floor, but the gentleman stating that he had not yielded the floor, the Chair thought that he had the right to retain the floor prior to that motion, in order to state his question. August 29.] CONSTITUTIONAL CONVENTION. 525 Mr. Cady — Do I understand the ruling is against the point of order? The President pro tempore — The ruling will be against the point of order. Mr. Veeder — I believe I am in order. I do not know to-day, out- side of some general propositions pending before this Convention, any subject that requires our attention more than this subject. There is an evil existing in the State known as pool-selling and bookmaking, part of it licensed by legislation and part not, and I submit at this time that subject should be considered and disposed of. Now I am in doubt about our ability to reach this proposition in its order, and under these circumstances I desire that it shall be taken up at the very first opportunity when the proposition can be considered. I have not made this motion as an attempt to sidetrack any other proposition, or to get in the way of a discussion of any other meas- ure that gentleman may regard as more significant. I only ask that when the measures that are already made special orders are disposed of, this proposition may have consideration in this Con- vention. Why a motion should be made to lay it on the table I cannot understand. It is a very simple matter. It will not occupy more than an hour or two, I think, of the time of this Convention, and I only make the motion in order that the subject may be reached and disposed of, and on my motion I ask for the ayes and noes. Mr. Cookinham — Mr. President, I move to lay the motion on the table. Mr. Mereness — I renew my motion to lay it on the table. Mr. Veeder — On that, I ask for the ayes and noes. The ayes and noes were ordered, and the Secretary proceeded to call the roll. Mr. Becker — Mr. President, I am heartily in favor of the prin- ciple embodied in the amendment referred to by the gentleman from Kings (Mr. Veeder). I believe that no measure before this Convention can ever be adopted and placed before the people of the State which the mothers and the wives and the sisters of the young men of this State will regard as so much of a protection to themselves as this amendment will be. But I do not think that we ought now to make so many special orders. We ought to consider just how we are going to do things and when we are going to do them. For this reason, Mr. President, I vote in favor of laying this matter upon the table for the present and I shall at another time myself, if no one else does, move to take it from the table. Mr. Veeder — After the Convention adjourns? 526 REVISED RECORD. [Wednesday, Mr. Bigelow — Mr. President, this amendment comes before the Convention with a report adverse to it from the committee. I do not think it is entitled to precedence. I, therefore, vote aye, to lay it on the table. Mr. Bowers — I ask to be excused from voting on this measure. Mr. Becker — I move that the request made by Mr. Bowers to be excused from voting be granted. He is counsel for people who are interested in this matter I understand. The President pro tempore — If there is no objection, Mr. Bowers will be excused. Mr. Carter — Mr. President, I am heartily in favor of the prin- ciple embodied in this overture, but I think it is right and proper that the several matters shall take their course as set down on general orders. Therefore, I vote aye. Mr. Davies — Mr. President, I am heartily in favor of the prin- ciple embodied in the proposed amendment, which the gentleman from Kings (Mr. Veeder) wishes to make a special order, and at the proper time I stand ready to vote for it, but it does not seem to me that it is just the thing now to make it a special order, and I, therefore, vote aye. Mr. Dickey — Mr. President, like the gentleman from Buffalo (Mr. Becker), I am in favor of this anti-gambling amendment, and to show that I am in favor of it, I vote no. Mr. Francis — Mr. President, this request is made by an esteemed member of my committee. In conference with him, I not only assented to, but supported, the suggestion that it should be called up for consideration in the manner in which it has been. It will occupy, as he stated, possibly not over half an hour to an hour's time. It is the first of any proposed amendments that has come from our committee, and I shall, therefore, vote no. Mr. Augustus Frank — Mr. President, I think this is a very important measure to come before this Convention, and should be considered at the earliest possible moment. I am opposed to any- thing that will cause delay in any way. It seems to me that, as said by the gentleman who has introduced it this evening, there can be no more important measure here. This matter of gambling by pool-selling and bookmaking has become as bad as the Louisiana lottery, and I am told on good authority that the men who are carrying it on in the city of New York are the men who have moved up from Louisiana and quartered themselves in our own State. They not only carry it on under the Ives pool bill in New York, August 29.] CONSTITUTIONAL CONVENTION. 527 but in each part of the State, and the agricultural societies get a part of the money. It is demoralizing to the whole State, and if we allow this to go on, and refuse to do anything in the Convention, it will be interwoven in the interests of this State in such a way that you can never kill it. The United States government, as we know, has been at work for years now to root it out of Louisiana and out of the country, and with the greatest effort they have succeeded in doing so, and, as I said a moment ago, the very men who carried on the Louisiana lottery have planted themselves in this State, in another name, and are carrying it on worse than ever. I think it is very important that We should take up the matter. As the chair- man of the committee (Mr. Francis) says, it will occupy but very little time, when it comes up at the proper time. We do not ask it this evening, we simply ask it at the earliest possible moment, so that it shall not be allowed to be passed over. Mr. Mclntyre — Mr. President, I, for one, am opposed to gam- bling in any form whatever. Our statute books are full of statutes now in relation to punishing people who gamble. I do not think this is any place for us to try to get a little notoriety as being opposed to gambling. I do not think that we, as a Convention, should put aside other business for the sake of trying to get some- thing in out of its place. I think all these matters should take their place upon the calendar and be reached in their regular order. This is no more important than other matters. I vote aye. Mr. Peck — After listening with a great deal of interest to the gentlemen who favor the war, but oppose its prosecution, I have concluded to vote no. Mr. Veeder — Mr. President, I desire to explain my vote. It has been remarked here that this is a matter of legislation. The Legis- lature legalized lottery, and to-day the Legislature has legalized bookmaking, and I submit that we cannot leave this question to the Legislature. It is for this Convention to dispose of the question, and, therefore, I vote no. The motion to lay on the table prevailed by the following vote: Ayes — Messrs. Abbott, Allaben, Arnold, Becker, Bigelow, E. A. Brown, Cady, Carter, Cassidy, Church, Coleman, Cookin- ham, Davies, G. A. Davis, Dean, Doty, Emmet, Fitzgerald, Floyd, Foote, O. A. Fuller, Giegerich, Goodelle, Hamlin, Hedges, Hill, Holls, I. Sam Johnson, Johnston, Kellogg, Kinkel, Kurth, Lauter- bach, C. H. Lewis, Lincoln, Manley, Marshall, Maybee, McDon- ough, Mclntyre, McKinstry. C. B. McLaughlin, McMillan, Mere- ness. Meyenborg, Moore, Morton, Mulqueen. Nichols, Nostrand, 528 REVISED RECORD. [Wednesday, O'Brien, Osborn, Parker, Parkhurst, Pashley, Platzek, Porter, Powell, Pratt, Putnam, Redman, Root, A. B. Steele, T. A. Sullivan, Vedder, Vogt, Wellington, Whitmyer, Wiggins, President — 70. Noes — Messrs. Ackerly, Baker, Banks, Barrow, Blake, Bush, Campbell, H. A. Clark, Countryman, Deady, Deyo, Dickey, Durnin, Farrell, Forbes, Francis, Augustus Frank, C. A. Fuller, Gibney, Gilleran, A. H. Green, Herzberg, Hottenroth, Jacobs, Jenks, J. Johnson, Kerwin, Marks, McArthur, McCurdy, J. W. McLaugh- lin, Nicoll, Parmenter, Peabody, Peck, Rogers, Sandford, Spring- weiler, W. H. Steele, Storm, W. Sullivan, C. H. Truax, Tucker, Veeder, Williams, Woodward — 48. Mr. Barrow — Mr. President, there was a special order set down for this evening in which I was interested. It was postponed at the request of Mr. Goodelle until this evening, and I do not know whether it takes precedence of the general order we were on this afternoon or not. The President pro tempore — The special order, unless it can be acted upon this evening, is dead, unless a motion is carried to make it a special order again. Mr. Barrow — I would like to ask what becomes of it? The President pro tempore — It goes back to its place on general orders, and must be made a special order by a vote of the House again. If a special order cannot be reached on the day or time for which it was made a special order, by parliamentary rules it loses its position as a special order, and goes back on the calendar as unfinished business on general orders. Does the gentleman wish to make a motion to make it a special' order for some other time? Mr. Barrow — This was to retain its place, as I understand it. It was not on general orders at all. It was a motion that was made a special order for this evening, and to retain its place. I do not understand that that will require a vote to make it a special order for some other occasion. It has been a special order on two occa- sions, and been postponed at the request of parties opposed to the motion. The President pro tempore — The Chair meant to be understood that, not being reached to-night as a special order, it went on the order of unfinished business. Mr. Barrow — And would come up immediately after the con- sideration of the special order which is now before the committee? The President pro tempore — There is a special order in advance to come up immediately after this special order. August 29.] CONSTITUTIONAL CONVENTION. 529 Mr. Barrow — I think not. I think this was unfinished business some time ago, before the Cities Committee report was made a special order, and it was simply postponed until this evening. I rather think it takes precedence of the report of the Cities Committee. The President pro tcmporc — The Chair would inform the gentle- man that there is a special order for Monday and succeeding days, immediately after the consideration of the cities article, special order Xo. 69 (printed Xo. 439), which follows immediately after. This adverse report was made a special order for this evening, and, not being reached, it must drop back to its proper place on the calendar, unless it is made a special order for some other occasion. That is the way the Chair understands the parliamentary rule. Mr. Barrow — Well, I do not understand how. This was a motion that was made a special order. It was not on general orders at all. The President pro tempore — The Chair cannot help the gentle- man. The Chair would inform the gentleman that the special order, made under any circumstances, naturally follows the two pending special orders. That is the way the Chair understands it. Mr. Barrow — This seems to be a little different from that. This is a motion to disagree with the report of a standing committee. It has never 'been upon general orders. Two weeks ago it was made a special order, and was then postponed, by my consent, upon application of the other side, until this evening. It was made a special order for this evening. Now, the special order for this even- ing came in after this was made a special order for this evening. The President pro tcmporc — The Chair would inform the gentle- man again, or would endeavor to make himself plain, that he sees no other way than for the gentleman to make a motion that this be made a special order for some future time, inasmuch as the present is a continuous special order, and cannot now be interrupted. Mr. Barrow — Then, Mr. President, I move that this be made a special order to be heard immediately after the consideration of the Cities Committee's report. The President pro tcmporc — Cannot the gentleman make it fol- low the special order for the amendment of the Committee on Edu- cation? That is the next special order on the calendar of special orders. Mr. Cochran — The apportionment is set down after that. 34 530 REVISED RECORD. [Wednesday, Mr. Kerwin — A question of information. I would like to ask the Chair if the special orders, as made, one to follow the other, the Cities Committee, then the education, and then the apportionment, are to freeze out all other subjects which have been made special orders for a particular evening. Is that the ruling of the Chair, as I understand it? The President pro temporc — The Chair understands that there has been no motion made in this Convention for the purpose of freezing out any motion or any member. The Chair can only follow the calendar as it is presented before him. As to the motive with which it was made, the Chair is not able to state. Mr. Barrow — I have moved, Mr. President, that this be made a special order immediately after the consideration of the cities article now under consideration. The President pro tempore — There is already a special order made for that time. The Chair will put the gentleman's motion to the Convention, although the Chair informs the gentleman that there is already a special order made for the Committee on Education, and that he is informed by the Secretary to follow that is the ques- tion of the Forestry Committee. Mr. Barrow — Do I understand the Chair to rule that where a motion has been made a special order for a particular occasion, that that has to give way to a general order that is made a special order subsequently? Do I understand that to be the ruling of the Chair? The President pro tempore — The Chair sees no other way to rule. Mr. Barrow — Then I desire to appeal. The President pro tempore — That is perfectly in order. I see no other way than .to follow the general orders. The question is on the appeal of Mr. Barrow. Shall the decision of the Chair stand -as the judgment of the Convention? The President pro tempore put the question on Mr. Barrow's appeal on sustaining the decision of the Chair, and, by a rising vote, it was determined in the affirmative — ayes, 80; noes, 15. The President pro tempore — Now that the miscellaneous business of the Convention has been finished, the Chair will resign in favor of Mr. I. S. Johnson, chairman of the Committee of the Whole. Mr. H. A. Clark — Mr. President, just a moment. My family are sick, and I am required- at home. I ask to be excused for the balance of the week. The President pro temporc put the question on the request of August 29.] CONSTITUTIONAL CONVENTION. 531 Mr. H. A. Clark to be excused from attendance, and he was so excused. The House resolved itself into Committee of the Whole, and Mr. I. S. Johnson took the' chair. The Chairman — The Convention is in Committee of the Whole on general order No. 13, section 7. Mr. Roche — I desire to present an amendment to section 7. The Chairman — The Secretary will read the amendment. The Secretary — " On lines 3 and 4, page 6, strike out the words ' and as to any district created by law and containing a city.' " The Chairman — The question is on the amendment of Mr. Roche. Mr. Roche — Mr. Chairman, I think that the attention of the Convention should be called to these words in lines 3 and 4 of page 6. I doubt if there is anything more important in this entire article than the proposition which is contained in these two lines. There is nothing like this in the present Constitution, nor has there been anything like it in any of the Constitutions of this State that I have ever read. What its meaning is I can only surmise. What it will accomplish, or rather what may be accomplished under it, we may well know from what has been attempted in the past and from what has come under the consideration of the highest courts of this State in connection with the proposition which is now before this committee. What can these words relate to? There is only one thing that I can imagine, and that is that it is intended to enable the Legislature to create new districts, or rather districts, whether metropolitan or otherwise, out of certain divisions or out of divisions of the State, in order that the Legislature or the Governor may therein provide for the selection, not by local authorities, but by State boards or State authorities, for police commissioners to administer the police government of that district. Am I right in that? Can this relate to any matter concerning the public health? No; because we have now upon the statute books most efficient laws intended to promote and secure the public health. There is a general law, applicable I believe, to all the cities of this State, except the cities of New York, Brooklyn, Yonkers and Albany, which are governed by special statutes of as stringent a character as the general statute which applies to the other cities. This general statute also governs the towns and villages of this State. In addition to that we have a State Board of Health which may take cognizance of and, which, indeed, is bound to take cognizance of, any delinquency upon the part of any city, town or village board of health, and by stringent 532 REVISED RECORD. [Wednesday, provisions and penalties and removal from office punish the public health officers who neglect an efficient and faithful discharge of their duties in the several political or civil divisions of the State. There- fore, this cannot be intended to make any provision for the creation out of cities, towns, villages or counties of new, and so add to the present Constitution unknown, districts for the purpose of taking care of or promoting the public health in such districts. Is it intended to provide for the more effectual care of the poor? No; because we now have upon the statute books laws which effect- ually meet that purpose, and we have the local provision supple- mented by the work of the State Board of Charities, which board it is proposed to constitutionalize, and to give them more effective powers relating to the administration of the poor laws of the State and the care of the destitute and poor. Therefore, it is not neces- sary that there should be any creation of new districts out of any of the present civil divisions of the State for the purpose of taking care of the poor. Does this relate to education? No; because the present educa- tional laws, both State and local, are entirely ample to provide for the education of all the youth of the State. The system is complete, general and liberal, and the people of the State and of the several counties are willing to make any additional sacrifices or contribu- tions which may become necessary for that purpose. Therefore, this provision is not intended to do anything for the promotion of education, because that is already sufficiently provided for. Now there is nothing else left of a character which the people might agree that the State should have some jurisdiction over, except the police government of the State, or of different localities of the State. It is, therefore, it seems to me, intended solely to enable the Legislature to create new civil divisions or districts of the State, and to provide by State authority, either by the Governor, or by some State board, or by the Legislature, for the" selection of the police officials who will administer the police government in that district. Now, why was it necessary to put that provision in this pro- posed Constitution? Simply because it cannot be effectually done under the present Constitution, as has been decided by the Court of Appeals in the latest case of which I am aware, and in which the Court of Appeals gave a construction to section 2 of article 10 of the present Constitution of this State. Now, section 2 of article 10 was the outgrowth of the feeling that the powers of the council of the appointment and of the Albany regency, which existed in the earlier August 29.] CONSTITUTIONAL CONVENTION. 533 days of the political history of this State, and under which local officers, down to those of the least important character, were appointed by central authorities, under which the commissions of every mayor of cities, of every important or unimportant officer of counties, of, in fact, justices of the peace, and of every officer of the militia of the State above the office of corporal, received their commissions from Albany, and from the Governor located here. That system was subject to such gross abuse, it was made use of by political parties of all complexions or by leaders of parties to such an extent, that the people revolted. It was so contrary to the American ideas of government, and particularly of local self- government, that the people of this State, first in the Convention of 1821, and later in the Convention of 1846, gave the finishing touches to its abolition, and inserted instead in their Constitution this provision, which still remains the organic law of this State: "All county officers, whose election or appointment is not pro- vided for by this Constitution, shall be elected by the electors of the respective counties, or appointed by the boards of supervisors or other county authorities, as the Legislature shall direct. All city, town and village officers, whose election or appointment is not pro- vided for by this Constitution, shall be elected by the electors of said cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the Legislature shall designate for that purpose." Now. Mr. Chairman, the first departure that we have from that plain provision of the statute, and from that very plain and well recognized purpose for which it was inserted in the Constitution, was in the creation of the metropolitan district, in, I believe, the year 1857 under which four counties of this State, including therein the large cities of New York and Brooklyn, were grouped together, and the police government in these counties was put in the hands of certain officials who were selected by State authority. That act received judicial construction in the case of the People v. Draper, and was sustained by the Court of Appeals. The next case of that character which we had was in the creation of what was known as the Capital Police District, under which* Albany, Rensselaer and Schenectady were united. As there was a railroad running from Albany to Schenectady and also one from Troy to Schenectady, the court in effect holds that they were thereby united by a common highway, and that it was proper for the Legis- lature to create a new civil division of the State — they being con- tiguous in the manner I have described ; and the police government of that extended territorv. in which there were at least four cities 534 REVISED RECORD. [Wednesday, and several important villages, was placed under the control of the capital police commissioners who were appointed by the Governor of the State. The different cities in this district, as was stated by our distin- guished associate, Mr. Parmenter, in a few years got tired of that system of police government, and the Legislature wiped it out, and by a local statute, gave to the different cities instead, local police rule, under which the people, or those elected by the people, selected their own police commissioners and their own police force. It came along, Mr. Chairman and gentlemen, to the year 1873, when the Republicans in my city adopted the very singular course of coming to the Legislature and asking for the abolition of the existing police force; and although the head of the police was the mayor of the city, who was a Republican, another commissioner, who was also a Republican, and a third who was a Democrat, they procured the passage by the Legislature of an act wiping out entirely the existing police force, and creating a new civil division of this State, solely for the purposes of police government. Now, it became necessary to create that civil division. Why? Because they did not desire that the people should have the selection of the police commissioners, nor that the local authorities should have the selection of the police commissioners; for it was believed that the reign of the Republican who was then in the office of mayor would probably be a very short one, and that his successor, who would probably be a Democrat, would give the Democrats a majority in the police force and police government of th'e city. They, therefore, created one of the strangest districts that is known to political or local history; and in order that there may be no mistake about it I wish to give you the description of that district from the opinion of the Court of Appeals. That court was at that time composed of very eminent men, three of whom were Republicans, one of whom is still upon the bench ; and in treating of this law, setting aside and declaring it to be unconstitutional (which the court did) all of the judges, with a single exception, united in the decision. One dis- sented, evidently not because he thought that the decision was wrong, but on the principle of stare decisis, referring to the case of the People v. Draper. This district was composed of the city of Troy, of a little island in the middle of the river which was in Albany county, of what was known as the " Patch," in North Greenbtish, and is known as such to-day, and a little piece of the agricultural town of Brunswick, where the festive goat was accustomed to browse and gambol, and where there were also a few habitations, but what there were were far apart. It may be well, in referring August 29.] CONSTITUTIONAL CONVENTION. 535 to this decision, to read something from the opinion of the court on this question of local self-government, because I think it will be instructive, and may bring us back to the consideration and recogni- tion of what is in fact and of what is in truth local self-government; and it may not be at all uninstructive to go occasionally to the foun- tains of wisdom and to drink a little from the waters thereof. But perhaps, before I read that, I had better say that under this law Governor Dix, who, by the way, approved it against his better judgment, and at the earnest request of some of the most prominent and respectable Republicans of the city of Troy, appointed three police commissioners, and these three police commissioners appointed a new police force. The old police force remained in possession of the station houses, and refused to give up possession, claiming that the act creating this new district was unconstitutional. There was then a police war in Troy; and the only way that they could get out of it was one very ingeniously adopted by Mr. Par- menter, who is here present as a delegate, and his method was to get the old police force to order a certain number of tons of coal, get the bill audited by the old police commissioners and have it presented to the comptroller, who refused to countersign it, and to the chamberlain who refused to pay it, and then to ask the court for a mandamus compelling them to countersign and pay it, and in the course of that proceeding this question of the constitutionality of the statute was raised and was determined by the Court of Appeals, and, as I have said, it was determined adversely to what was called the Rensselaer Police Act, and to the force which was appointed by the commissioners selected by Governor Dix. The court said (55 N. Y., 50): "The purpose and object of section 2 of article 10 of the Consti- tution, as is very obvious, was to secure to the several recognized civil and political divisions of the State the right of local self- government, by requiring that all counties, cities, town and vil- lage officers, whose election or appointment was not provided for by the Constitution, save those whose offices might thereafter be created by law, should be elected by the electors of the respective municipalities, or appointed by such authorities thereof as the Legis- lature should designate. As to offices known and in existence at the time of the adoption of the Constitution, this provision is abso- lute in its prohibition of an appointment by the central government or its authority, or by anybody other than the local electors, or some local authority designated by law. Faithfully observed, and effect given to it in its spirit as well as in its letter, it effectually secures to each of the srovernmental divisions of the State the right of choos- 536 REVISED RECORD, [Wednesday, ing or appointing its own local officers without let or hindrance from the State government, and none can be deprived of the rights and franchises thus guaranteed to all: The theory of the Constitu- tion is that the several counties, cities, towns and villages are of right entitled to choose whom they will have to rule over them, and that this right cannot be taken from them and the electors and inhabitants disfranchised by any acts of the Legislature, or of any or all the departments of the State government combined. The right of self-government lies at the foundation of our institu- tions and cannot be disturbed or interfered with even in respect to the smallest of the divisions into which the State is divided for governmental purposes, without weakening the entire foundation, and hence it is a right not only to be carefully guarded by every department of the government, but every infraction or evasion of it to be promptly met and condemned, especially by the courts when such acts become subject of judicial investigation." The court proceeded in this opinion, as I have said, to refer to this Rensselaer police district, and then says: "The proposed district is constituted by annexing to or uniting with the city of Troy these small patches of territory — one on the east, a part of the town of Brunswick, principally, as is stated in one of the affidavits, agricultural lands, and containing in all between 500 and 600 acres of land, and on which there is, by count, sixty- nine dwelling-houses of all descriptions; one on the south, a part of the town of North Greenbush, containing about four acres of land, with a single dwelling-house thereon and projecting, as annexed, in a triangular shape from the southern boundary of the city; and on the west a small island in the Hudson river and within the bounds of Albany county, containing about a dozen acres of land, having thereon one foundry, or manufactory of machinery and engines and a row of tenement houses, with ten front doors, calculated for twenty families. The entire territory was less than a mile square in extent, but no part of it was within the boundaries of an incorpo- rated city or village or had ever had or required, so far as appears, any police organization or force, other than such as is common to every town in the State." The court then continued: " This act differs from every other act in this very noticeable and important particular — that all the territory embraced within the proposed district could, without interfering with any other political or civil division of the State, and without inconvenience to the inhabitants, have been brought within the bounds of the city and incorporated in it in the performance of the duty specially enjoined August 29.] CONSTITUTIONAL CONVENTION. 537 by the Constitution upon the Legislature, to provide for the organ- ization of cities and villages. (Const., art. 8, sec. 9.) Other acts for the creation of civil divisions for political purposes, have only been sustained after a struggle and much hesitation, and by reason of a supposed necessity, and because, on account of the extent of the territory united and its relation to the State and the recognized political organization of the State, it was not competent to readjust the municipal and local governments and incorporate the whole territory under a single city government. It is conceded by all that these new civil divisions are a recent device, and were not and could not have been in the minds of the framers of the Constitution, and, in the absence of an actual and evident necessity, they must, within every principle of interpretation, be held to be forbidden. The Constitution has provided for, or in terms recognizes, every civil and political organization into which it was intended the State should be divided. It provides for Senate and Assembly and judicial districts and the organization of cities and villages, and recognizes the ancient and well-known division of counties and towns; and, if any other division or organization is allowable, it can only be when neither of the others will serve or answer the purpose, or the objects cannot be accomplished by organizing the territory in view under one or the other forms of municipal government auth- orized by the Constitution." The court also considers the case of People v. Draper, and it says on that subject: " It was sought to bring the case within the principles of People v. Draper (15 N. Y., 532), but it comes far -short of it in every important element, and is not within the reasoning of the very judge who gave the prevailing opinion in that case, and of whom it is, perhaps, not too much to say that but for his ability and influence the decision might possibly have been the other way. That decision has now stood so long judicially uncondemned, although never, I think, satisfactory to the public or the legal profession, that it might not be proper, under any circumstances to review or overrule it; and it is to be hoped, in the interests of constitutional government by the people, that the occasion to reaffirm its doctrines may never arise. To my mind, the dissenting opinion of Judge Brown, con- curred in by Judge Comstock. presents unanswerable arguments why the decision should have been different." Now, as I said, Mr. Chairman, that plain evasion of the Constitu- tion, which this Rensselaer police district was, was condemned by the Court of Appeals, and the principle decided in the case of The People v. Draper was declared by the Court of Appeals one which 538 REVISED RECORD. [Wednesday, should not be extended any further in the State. Therefore, on the existing Constitution, the probability of the Legislature creating for police purposes any new districts not already known to the Constitution by the union of cities with towns and villages, or by the union of counties, is one which stands condemned by the courts, and it is highly improbable that the Legislature, acting upon these decisions, will attempt to create them, and it becomes necessary, therefore, to give constitutional authority for that purpose, which is done by the proposed amendment to the Constitution. Why this drive at the cities of the State? Why this attempt to punish the cities of the State? Why this attempt to group them with towns, villages, or other cities, and deprive the electors, or the authorities in the cities, of the selection of their own local officers? For what purpose is this done? Within two days we have heard condemned in this chamber the idea that the Governor of the State should, even after removal, be allowed to appoint police commis- sioners, or other head of the police force, in any locality. Why, then, keep in this, or insert in the Constitution, a provision under which a partisan legislature, at the instigation of heated partisans in any locality in the State, who may come to the Legislature and ask for the creation of new civil divisions of the State for political pur- poses alone, and authorize the Governor, or some board, to take the power of appointment from the local authority, the power of elec- tion from the electors of that locality, and vest it in the Governor, or vest it in some State board? If you do that, then all semblance, all form of home rule is gone. The article with such a provision in it is a mockery and a. delusion. All vitality, all consistency, all the suggested harmony in it, are utterly wiped out and abolished with this provision remaining in this article. Why, I ask, punish the cities of the State? Why make them the targets for this legislative tinkering, this legislative interference, these 'legislative discrimina- tions? Why, the cities of the State, the centers of population, the centers of wealth, contain men who are just as zealous, who are just as earnest in the cause of constitutional freedom as those who live in any other parts of the State. They are ready at all times to stand forward in the defense of the muniments of your Constitution, and of civil and religious liberty. The friction which is created by the association of man with man, the touching of the elbows by thousands in the cities of the State, is one of the surest guarantees of constitutional freedom, of the enforcement of personal liberty, that we have, or can possibly possess. Now, I say, Mr. Chairman and gentlemen, that under such cir- cumstances it is very unwise to keep this provision in the Constitu- August 29.] CONSTITUTIONAL CONVENTION. 539 tion ; to offer to the cities of the State home rule with a string to it, to tie them to the apron-strings of the Legislature, and enable any partisan body, whether Democratic or Republican, to come in under great political stress and excitement and deprive these localities of one of the most important functions of local self-government — the right to select, to control and to manage their own police division and police affairs. I hope, therefore, Mr. Chairman, that this article will not be sub- mitted to this Convention for adoption, and will not be submitted to the people; and its submission under such circumstances, and with the use which can be made of it, is an insult at this day to the intelligence of the people of the State. There is no better way of defeating this entire article than have it go forth to all the citi^ns of the State that the Legislature may come in and deprive them of one of the most important rights of local government. I trust, there- fore, the chairman of the Committee on Cities will consent to the elimination of these words from the article. • Mr. J. Johnson — Mr. Chairman, the statement made by the gentleman from Rensselaer is so extraordinary that it seems impos- sible to realize what it really is. There is not word of grant, not one syllable of empowering, not one thought of enabling any one to do anything, in that section. It simply says that the power existing now shall not be impaired. He goes the round of municipal duties, and, having satisfied himself that nothing else is meant, says that it is the police. It is astonishing with a gentleman of the observation, of the acuteness of the gentleman from Rensselaer, that when he was striving to find a latent purpose it did not occur to him that if that had been the purpose, if it had at all been in thought, then the report of the Committee on Cities here, and the provisions as to con- trolling the police of cities contained in it, was made without cause, and all that has been said in favor of it was useless. It seems to me that the effort to make the police of cities reputable, respectable and safe would be the clear information that that was not what we were after. Now, sir, I will state what is the necessity of that. It is as to sewers, parks and things entirely different from police that are made the municipal subjects of the Constitution here. Those are subjects as to which it is necessary, or may become necessary in the march of events, that some added powers shall be given to the cities of the State, that some added power shall be exercised outside of the cities ; and it was merely to provide that an implication outside of the letter of the provision should not be made. They are words of negation, of negation only; and there is nothing in them that 540 REVISED RECORD. [Wednesday, could possibly cause the effect which is stated by the gentleman from Rensselaer. Mr. Mulqueen — May I ask the gentleman a question? Mr. Johnson — Certainly. Mr. Mulqueen — If they are only words of negation, why do you object to striking them out? Mr. J. Johnson — Because they negative an implication that might arise from making certain subjects the matters of municipal control. Whenever it is necessary that the State should control sewerage, or health, or anything of that kind, in order to prevent a pestilence, the power must not be taken away by implication. Mn Mulqueen — Is not that provided for by the last words of section 5, where you say that "the Legislature is not hereby restricted in passing laws affecting the jurisdiction or power of any city as to such subjects, so far as it is to be exercised outside of the boundaries of such city?" The last question addressed to the Chair was as clear as mud to me, and I would like to ask the gentleman if what he claims is not provided for in those last lines of section 5. Mr. J. Johnson — Certainly not. The Chairman put the question on the motion of Mr. Roche to strike out from section 7 the words " and as to any district created by law and containing a city," and it was determined in the negative. The Chairman — Are there any other amendments to this section? Mr. Mulqueen — I offer an amendment. The Chairman — The Secretary will read it. The Secretary — Mr. Mulqueen moves to insert after the word " consolidation," in line 23, page 5, the words " but no such law shall be enacted until a majority of the electors of each city to be affected have voted in favor of such consolidation." Mr. Mulqueen — I desire, Mr. Chairman, to say but a few words in support of this amendment, and to call the attention of the Con- vention to the danger of the section as it now stands. I do not think it was the intention of the Committee on Cities that the Legis- lature should have the absolute power of uniting any two cities against the protest of both cities; and I do not believe they intended that the Legislature should say that a city free from debt should be united with another city perhaps owing twenty million of dollars. And yet, under the section as proposed, the Legislature would have the absolute power to do it. I think it is only fair that where you seek to unite two cities, the electors of each city should have a voice in the consolidation; and my amendment is that before any law August 29.] CONSTITUTIONAL CONVENTION. 541 shall be passed uniting two cities the question shall be submitted to the electors of both cities to be affected thereby. The Chairman — The question is on the amendment offered by Mr. Mulqueen Mr. J. Johnson — That amendment was put in at the suggestion of the colleague of the gentleman, Mr. A. H. Green, in order to pre- vent the consolidation of New York and Brooklyn (which is now to go before the people) being in any manner interfered with. It seemed a wise provision and is obviously right. Mr. Hottenroth — I would like to ask the gentleman a question: What is there in this article that would prevent annexing of terri- tory as provided in section 7? Mr. J. Johnson — Nothing. Mr. Hottenroth — Then I do not see any necessity for it. Mr. Cochran — I would like to ask the chairman of the Com- mittee on Cities how the amendment as proposed by the gentleman from New York at all affects the pending law with respect to the consolidation of the cities of New York and Brooklyn. Mr. J. Johnson — It would make it impossible unless the two cities voted for it. The Chairman put the question on the adoption of the amend- ment offered by Mr. Mulqueen, and it was determined in the negative. The Chairman — Are there any further amendments to this section? Mr. Bowers — Does that complete the reading of the entire paper? The Chairman — If there be no further amendments offered, then amendments generally are in order. Mr. Bowers — I move to strike out all the sections after the first section, and to substitute the report of the minority committee. Mr. Choate — I raise the point of order that substitutes are not in order until amendments to the general bill have been called for and exhausted. Mr. Bowers — Then, Mr. Chairman, I offer it as an amendment to the whole bill. The Chairman — The Chair rules that the point of order is not well taken. He moves to strike out all but the first section. Mr. Bowers — Mr. Chairman 542 REVISED RECORD. x [Wednesday, Mr. Vedder — I move that section 5 Mr. Bowers — Mr. Chairman, I had not yielded the floor. I only paused for the ruling upon the point of order raised. I understand the Chair to rule my motion to be in order. The Chairman — That was the ruling of the Chair. Mr. Vedder — Mn Chairman The Chairman — Mr. Bowers has the floor. Mr. Bowers — On that motion I wish to be heard. There is no necessity for wasting time upon this question. I think Mr. Nicoll has something to say, and desires to be heard in favor of this amendment; and, as I have been heard several times, if the Con- vention will assent, I will yield the floor to Mr. Vedder. Mr. Nicoll — Mr. Chairman The Chairman — The gentleman from New York cannot yield the floor in favor of any particular member. Mr. Nicoll — Mr. Chairman Mr. Vedder — Mr. Chairman, I have the floor. The Chairman — Mr. Vedder has the floor. Mr. Nicoll — This amendment introduced by The Chairman — Mr. Vedder has the floor. Mr. Nicoll — Did not the Chairman recognize me? Mr. Vedder — He recognized me first. The Chairman — I had recognized Mr. Vedder when Mr. Bowers gave way. Mr. Bowers — I make the point of order that Mr. Vedder was' only recognized while I had the floor, and that the Chair recognized Mr. Nicoll when I yielded the floor. The Chairman — The Chair recognizes Mr. Vedder from Catta- raugus. (Applause.) Mr. Vedder — I move to amend section 5, page 4, in line 4, after the word " six," by inserting " of this article." It now reads, 41 Except as provided by section six the Legislature shall not pass any law, except general city laws," etc. Now there are many sec- tions " six " in this Constitution, or will be when it is passed; so you had better have it more clearly stated — " Except as provided by section six of this article "- — so that there will be no doubt about it. Mr. J. Johnson — The committee assent to that amendment. Mr. Nicoll — Now, Mr. Chairman Mr. Cochran — I raise a point of order. One amendment is August 29.] CONSTITUTIONAL CONVENTION. 543 before the committee. I think the amendment of the gentleman from Cattaraugus is now in order. Mr. Nicoll — I beg pardon. I do not want to speak to Mr. Ved- der's motion. Mr. Vedder — I ask the committee to let this pass, as the chair- man of the Committee on Cities states that there is no objection to it. Then the gentleman can have the floor. The chairman of the Committee on Cities, Mr. Johnson, consents to it, and the Con- vention doubtless will. The Chairman put the question on the adoption of the amend- ment offered by Mr. Vedder, and it was determined in the affirmative. Mr. Choate — I propose an amendment to section 4, as follows : 41 In section 4, strike out all after the word ' years,' in line 15, to and including the word 'law,' in line 19, and insert as follows: 'Every city shall have a legislative body, consisting of one or two boards, with such municipal legislative powers as may be provided by law. The members of such legislative body shall be elected by the elect- ors of such city, and in cities of the first class such members shall be elected with or without proportional or minority representation, as may be provided by law." Mr. Bowers — May we hear that amendment read again? Mr. Nicoll — I rise to a point of order. The Chairman — The gentleman will state his point of order. Mr. Nicoll — -Are any such amendments in order until after sub- stitutes have been considered? The Chairman — The Chair holds that it is in order; that the article should be perfected before a motion is made to strike out. Mr. Cochran — It is a motion to strike out and to amend. It is not alone to strike out, but to substitute. The Chairman — It does not change it, whether you call it an amendment or a substitute. Mr. Cochran — It is an amendment to the entire article, that is all. The Chairman — The Chair has ruled. Mr. Choate will proceed. Mr. Bowers — We were unable to understand the amendment. He read in so low a tone that we could not hear him. Mr. Choate — I will get my friend, Mr. Dickey, to read it. Mr. Bowers — That will be entirely agreeable to our side, as we will be able to hear it then. The Chairman — The Secretary will read the amendment offered bv Mr. Choate. 544 REVISED RECORD. [Wednesday, The Secretary — " Every city shall have a legislative body consist- ing of one or two boards, with such municipal legislative powers as may be provided by law. The members of such legislative body shall be elected by the electors of such city, and in cities of the first class such members shall be elected with or without proportional or minority representation, as may be provided by law." Mr. Holcomb — I raise the point of order that the proposition is the equivalent of one passed upon to-day upon motion of Mr. Bush. The Chairman — The Chair rules lhat the point of order is not well taken. Mr. Choate will proceed. Mr. Choate — Mr. Chairman, for the information of Mr. Hol- comb and those who may be in sympathy with him, let me say that this is not the equivalent of any proposition or of anything that was voted upon to-day. This morning, under the inspiration of the magic wit of the gentleman from Kings (Mr. Jacobs) there was a great deal of joking in the Convention on the general subject of minority representation, and a vote was taken hastily and without an opportunity to several gentlemen who desired to speak on that general subject to be heard. I had intended to move a reconsidera- tion of that vote, but on further consideration, and after conference with gentlemen entertaining various views, and of both parties in this Convention, I concluded to change the proposition from that which was before the House this morning, and to propose that it should be left to the Legislature under our Constitution in case of cities of the first class (that is, cities of two hundred and fifty thou- sand inhabitants, or more) to permit proportional or minority repre- sentation in the election of members of the common council, or, as I believe it has now been transformed " legislative body," as the Legis- lature might see fit. If the gentlemen of the committee will indulge me, I will recall what occurred this morning. When this was struck out of section 4 altogether it seemed to me that the whole merit of section 4 was gone; that there was nothing left in section 4 that was not already fully covered by other clauses of the article as proposed by the committee; and I, therefore, proposed to do what seemed to me to be in harmony with the vote which had been so hastily taken, but apparently by a large majority of the body, strike out what remained of section 4. To my surprise, the motion was taken in dudgeon by the chairman of the committee, whom I so much respect and love, and by one of his associates, who seemed very much excited on the subject. Nothing was further from my thought than attacking the residue of the bill, of which I am entirely in favor. August 29.] CONSTITUTIONAL CONVENTIO ',. 545 Now, Mr. Chairman, in respect to the proposition that I now present, it is in the view of the committee, having now approved the sections that contemplated conferring upon legislative bodies, in large cities these very great legislative powers, embracing and involving the city of New York alone, what the very well advised representative of the Fourteenth district here, who is allied in blood, or in some other way, to the present city government, declared amounted to an expenditure of nearly forty million dollars per year. Now, if anybody expects that the Legis- lature and the city of New York combined — for gentlemen will observe that this amendment of mine, this plan of conferring a pos- sible representation upon the minority of the common council of the city, can only take effect upon the consent of the city or by a three- fifths vote of the Legislature — if anybody supposes that the Legis- lature and the city will combine, or that the Legislature, by a three- fifths vote, will seek to impose upon the legislative body that we have in New York, or upon any that we are likely to have under the present mode of election, these vast powers, he is, I think, counting entirely without his host. We have been doing nothing for the last twenty-five years in respect to the legislative body of the city of New York but to strip it, one by one, of all legislative powers, so that I believe now it merely has the right of a formal confirmation of the tax levy, the right to pass upon the granting of railroad franchises, and the right to supervise the issuing of licenses for keeping dogs. That is all that the people of this State, as repre- sented in the Legislature, and the people of the city, as represented by men of every party, have granted, and so they have made it utterly impossible to have such a legislative body in the city of New York under the present mode of representation. And yet, here we are debating a scheme for the government of cities which prohibits the Legislature, up to a certain point, from legislating for cities on matters which must be legislated upon year by year, and which would naturally be left to the legislative body of the city. What I propose as possible is, not to put any provision in the Constitution which will require this to be done, but if, in the course of years, or while the matter is still under consideration, it shall be deemed wise by the people of a city, by a majority of the people of a city (and we know well who that majority will be composed of), and by a majority of the Legislature, or by three-fifths of the Legislature, to say that we shall have a legislative body in which there shall be a representative of the minority. And what is that which a representative — 35 546 REVISED RECORD. [Wednesday, Mr. Veeder — Will the gentleman allow me to ask a question? Mr. Choate — Certainly. Mr. Veeder — Are you familiar with the history of the last minority representation in the legislative body of the city of New York? Mr. Choate — I shall be happy to be instructed about that by Mr. Veeder after I get through. Mr. Veeder — Are you not familiar with it? Mr. Choate — I know something about it. Mr. Veeder — Do you know that the monumental frauds of New York were under just such a board as that? Mr. Choate — I know something about it. I am now speaking of a possible legislative body for the city upon which large legisla- tive powers may be conferred. It can never be done in my judg- ment unless the minority of the people of that city have a voice in the common council. Eight hundred thousand people out of eighteen hundred thousand or out of two million people are not to be excluded from the legislation of that city, or they will have no legislation in the city. Now, that can be done by the very admir- able method pointed out by Mr. Jacobs and advocated by him before the committee of which Mr. Becker is chairman, in respect to the election of twenty Senators where he proposed that nobody should vote for more than eleven is quite a possibility. At any rate it is within reasonable expectation that some method will be evolved which, in the course of the next twenty-five years, may make it possible for a majority of the people of New York, and a majority of the Legislature, to combine on a plan which shall admit these eight hundred thousand people, these one hundred thousand, or if you please, one hundred and fifty thousand voters to some voice in the legislative councils on the expenditure of money, to which this minority contributes its proportional share. How do we stand under the Constitution as it is? Perhaps the Legislature has now under the existing Constitution power to authorize it; but in two decisions in cases in which the question has arisen in our courts (not in the courts of last resort) it is left a doubtful question. In other tribunals in other States, where the Constitution is in substance as ours now is, it has been held to be prohibitory. It is merely to remove this prohibition, to lay open this possibility of reform, of regeneration of civic life in our great city, that I offer this amend- ment. And I have purposely made it to exclude the smaller cities, cities of the second class and cities of the third class, unless the representatives of such cities deem it desirable that it shall be August 29.] CONSTITUTIONAL CONVENTION. 547 applied to them also. I have made it extend only to those larger cities which need the protection of the Constitution, and where a great minority, representing so much of value, so much of interest, so much of character, are entitled to be protected. Mr. Jacobs — Air. Chairman, I would like to ask the President what possible good he thinks minority representation would effect in a board which was determined to do whatever the majority saw fit? Now, I speak from experience. I am confident that he does not. The Republicans in the local boards in Brooklyn have had a minority representation. They have had some very strong and able men acting as the minority, and they have reasoned and argued with the majority; they have had the sentiment of the community with them, and all of the press with them, including Democratic papers, as well as independent and Republican papers, and, sir, they never yet beat a job, they never yet ended a sinecure position, and all they ever did was to make a noise, and noise is not reform. Now, the academic reasons given to us are not real reasons. I have long learned, sir, that all reasoning is not reason. Men who have stood in the front of the battle, who have taken part in it, and who have had actual experience, know what all this talk about minority repre- sentation is. It is a creation of the mind; it accomplishes nothing. Now, I do not want to exhaust the Convention on this matter. I have already exhausted myself perhaps, and I am not quite sure whether I have exhausted the Convention, but, if the testimony of men of experience is worth anything as against theory, I raise my voice here to-night and I protest against anything in the shape of proportional representation, or any dreams built upon the fact of some minority being in a board. Why, Mr. Chairman, the history of the city of New York where the gentleman comes from, if he will carry his memory back a few years, is redolent with the corruption which was brought about by this minority representation, when the old board of supervisors was divided six and six, nobody could vote for more than six, and each party selected six men to represent it, and if they left anything in the city of New York over night, it was by inadvertence. (Laughter.) Sup- pose that I was committed in the exuberance of my youth, in the beginning of this Convention to this proposition. I was wrong then. I am right now. That is the difference. (Applause.) And I cannot be balked as to whether I will be consistent or incon- sistent. If I made a mistake then and have found it out, I will retreat, and will not bull-head it through. Now, I hope, Mr. Chair- man, that this Convention knows its own mind. This proposition is un-American. It will be productive of no good. It will be 548 REVISED RECORD. [Wednesday, productive of evil. Men, where there is pelf, men with the itching palm, will draw together and make their combinations whether they belong to the majority or minority. The only question will be, who will get into the ring first. That is all there is of it. I have had experience with Democrats and Republicans. I have met honest Democrats who could not be tempted, and I have met Republicans whom I would not trust while I had my eye on them. (Laughter.) Now, we are talking out in meeting; that is all. We are talking facts. We are talking truth, what we know to be so, not what we read about, and what some theorists tell us. I do not believe in idealistic politics. I do not believe in swallow-tail politics either. (Laughter.) I believe in the good hard-headed politics that come from experience. (Applause.) Mr. Choate — How much of this experience has he had since he tried before Mr. Becker's committee to advocate this very plan? Mr. Jacobs — I have had the experience of listening to a great deal of talk on this proportional representation, of reading a great number of magazines. Oh, yes, I was taken with it; I am apt to be taken, but when I began to think and revive my own experience, and the experience of others and consult with experienced men, I had pointed out to me the errors of my own ideas, and had suggested quite a number of errors. I have had considerable experience in holding office myself, and I think that it was a very lucky escape I made, because I got in some very bad company. How I ever kept out of jail is a mystery to me. (Laughter.) It required a great deal of caution, and most of the times I voted no for safety, and whether I did any good then or did harm, I never could tell. Now, sir, I am going to say no more. The thing is with you. Your own common sense will tell you whether it will work or not, and I do not know that there is anything more to be said about it. Mr. Moore — Mr. Chairman, I would like to ask Mr. Jacobs a question, if he is willing to answer it. Do I understand that the gist of the gentleman's argument is that the principal use of min- ority representation is for trading between the members who are to make up that body? Mr. Jacobs — Well, when they get a sufficient number of honest men among the majority who cannot, on a count of noses, be sure for jobbery, and there are enough in the minority that can be brought over and fixed to make the combination, you will find that the trade takes place very easily. Though they will part on political questions they will unite for business on purely " business principles." August 29.] CONSTITUTIONAL CONVENTION. 549 Mr. Dean — Mr. Chairman, I am grieved that the President of this Convention should rate integrity in this body at so low an ebb that he will propose to introduce a vicious principle into the Consti- tution, simply because it only affects the city of New York. It is an assumption that those of us who come into the Convention from the smaller cities will be willing to concede something that is absolutely wrong, vicious and un-American, simply because we come from the country districts, and this does not affect them. No man who is governed by principle, no man who has any just con- ceptions of government, can support this proposition. What is the minority? It is not the gentlemen who go around in the upper circles of the city of New York. You will find that, if this propo- sition is adopted and ever comes into operation we shall have, not the gentlemen of wealth and influence who have been talking in this Convention, but the gentlemen from the lower wards of the city, the Anarchists and Socialists, all of the elements of disturbance in every large community. It is the rag-tag and bob-tail of every community which will be seeking the patronage and dissipate all the elements of good government. The true theory of representative government, Mr. Chairman, is the intelligent action of the minority out of office, keeping watch of the majority, looking for an oppor- tunity to become that majority. It is not by inducting into the official positions here and there an individual, to be overcome by the majority in those bodies, but by the intelligent action of the entire minority keeping watch of those in power. Instead of the con- serving influence of the gentlemen who pay the taxes, we shall have the money of our large municipalities spent by Anarchists and Socialists. A wrong theory of government ought not to be intro- duced into this Constitution under any pretext whatever. We are here, not for the purpose of following every fad and every theory. We are here for the purpose of enunciating correct principles of government. I cannot see how gentlemen of the conservatism and intelligence of the President of this Convention dare stand up and advocate this doctrine. Mr. J. Johnson — Mr. Chairman, if in the heat of what seemed an emergency of debate, anything less than the utmost kindness appeared toward the honored President of the Convention, it is certainly much regretted by me. It has been the thought of the Committee on Cities that we were under obligation to learn the sen- timents and be guided very largely by the counsels of those in sympathy with this great movement who represented the great city of New York. We intend and hope that that union will continue. I have, sir, a statement which I wish to read, and that will comprise 550 REVISED RECORD. [Wednesday, all that I have to say on this subject. It is from the Sun, that shines for all, not only in New York, but in Albany, which published, as this debate commenced, the following: ''Misrule by city council," and it commends to the attention of the Constitutional Convention an address by Mr. Story, of Boston, before the American Bar Asso- ciation. It then quotes what Mr. Story said as to a decadence, the titter uselessness, the inefficiency and corruption of city councils. It then makes to this Convention this direct question: "At the present time, the idea of increasing the powers of the common council with- out doing something to elevate the character of such bodies would to most people seem preposterous." That, sir, is from the paper that more thoroughly than any other represents and speaks for the minority of this Convention in the city of New York. It is a state- ment of the fact that something must be done if we are to have gov- ernment in New York that is responsible, that something must be done for the city councils, and this, sir, is the only proposition made here or before the Committee on Cities or anywhere else. There are those who believe, I am one of them, that there is great potency for good in this movement; that it will be a grave mistake, a great mistake reaching into the future, not to allow this experiment to be tried. I believe, sir, that if it is tried, great good will result. Let us look at this Convention. Here are eight or nine hundred thou- sand people entirely unrepresented in this Convention except by the delegates-at-large. The proposition that this Convention will not allow those eight or nine hundred thousand people to have tried for them the experiment at some time, if the Legislature so directs, of having some representation in the board that spends their money, it seems to me is altogether wrong. This is all that has been sug- gested as the remedy for the defaults and misfeasance of the legisla- tive body in New York; and New York wants it. The cities adja- cent, I believe, sir, require it. The city of Buffalo will ask it. Why should they not be allowed to have the experiment tried. Mr. Holcomb — Mr. Chairman, I would like to ask the gentleman from Kings a question. What does the gentleman mean when he says the city of New York wants this experiment tried? Mr. J. Johnson — If I had a copy of Johnson's dictionary here. I would send it to you. Mr. Holcomb — It would need more than a Johnson's dictionary, either the Johnson, of Great Britain, or the present Johnson, who is representing the Cities Committee on this floor to explain your meaning. Mr. J. Johnson — It would need something on your part, I think. August 29.] CONSTITUTIONAL CONVENTION. 551 Mr. Holcomb — I do not know whether it would or not. Second Vice-President Steele here took the chair. The President pro t cm pore — The hour has arrived — Mr. Holcomb — Then, Mr. Chairman, I will claim the floor in the morning on this proposition. The President pro tcmporc — The hour has arrived — Mr. I. S. Johnson — Mr. President, I offer the following resolu- tion, that the Committee on Rules — Mr. Cochran — I understood the Convention had adjourned. Mr. I. S. Johnson — That the Committee on Rules be required to report at the first session to-morrow — Mr. Speer — Mr. President, a point of order. The hour is now ten o'clock. We cannot transact business under the rules after that hour. The President pro tcmporc — The hour of ten o'clock has arrived. The Convention stands adjourned until to-morrow morning at ten o'clock. Thursday Morning, August 30 1894. The Constitutional Convention of the State of New York met in the Assembly Chamber, at the Capitol at Albany, on Thursday, August 30, 1894, at 10 A. M. President Choate called the Convention to order. Prayer was offered by the Rev. S. F. Morrow, D. D. On motion of Mr. Rogers, the reading of the Journal of yester- day was dispensed with. Mr. Francis — Mr. President, reluctantly I have- to make a request, and I feel that I need not give special reasons for doing so. I ask leave of absence, the first of my absence from duty during the sessions of the Convention. I ask to be excused from this day until Tuesday next. • The President put the question on excusing Mr. Francis from attendance as requested, and he was so excused. Mr. I. S. Johnson — Mr. President, I offer the following resolution : Resolved, That the Committee on Rules be required to report forthwith a rule limiting the debate on the question pending in this morning's session, and that no member shall speak more than once, or more than five minutes. 552 REVISED RECORD. [Thursday, The President — The Chair would inform Mr. Johnson that the Committee on Rules, under the instructions previously received, are ready to report a limit of debate on the cities article. Mr. Johnson — Then, Mr. President, I ask leave to withdraw the resolution. Mr. Cochran — Mr. President, may I ask a question for informa- tion? May I ask when the Committee on Rules received that instruction to which the President has just referred? The President — Under a resolution offered by Mr. Cookinham. Mr. Veeder — Mr. President, I ask that the matter lie over, under the rules, until the next legislative day. Under our rules we are entitled to that. May we have it read again, sir? Mr. I. S. Johnson — Mr. President, if the Committee on Rules are not ready to report before the Convention goes into Committee of the Whole, I ask to have my resolution acted upon. Mr. Bowers — Mr. President, there is no rule from the Com- mittee on Rules reported, if you will allow a minority member to state what took place, until you have the report before the House, and then you can act upon it. The President — Perhaps I can state myself. The Committee on Rules propose the following: that the vote be taken upon the cities article to-day, at a quarter before one o'clock. Mr. Bowers will correct me if I am at all in error. That the time limit for the amendment now under discussion be not to exceed forty minutes. That the residue of the time between that and a quarter before one be allowed for the debate upon the substitute offered by Mr. Daven- port, and that time to be equally divided between the supporters of that substitute and the supporters of the article. Mr. C. B. McLaughlin — Air. President, do I understand that the Committee on Rules have agreed that there shall be no time devoted to the discussion of any substitute that may be offered except that offered by Mr. Davenport. The President — That is what they propose. Mr. McLaughlin — Is that matter before the House now for discussion? The President — I think it may be considered before the House for discussion. Mr. Bowers — Mr. President, if the gentleman will pardon me a moment I will explain before the House. The statement of the President is accurate as to what the majority of the committee August 30.] CONSTITUTIONAL CONVENTION. 553 determined. The minority members dissented. The matter comes before the Convention in response to a resolution offered by Mr. Cookinham on the eighteenth, bearing generally upon the subject. So far as it bears upon that resolution, I make the point of order that it lie over until to-morrow. The President — And that may be done, of course. Mr. Bowers — So far as it depends upon the pending question, I suppose it must now be disposed of, and that was, as stated by the President, the conclusion arrived at by the majority of the com- mittee. We opposed it upon the ground that there is no necessity, as yet, for limiting the time. Mr. C. B. McLaughlin — Mr. President, as I understand the con- dition in which this question now is, it is this, that the Committee upon Rules have decided The President — They have not decided, Mr. McLaughlin; they have proposed. Mr. McLaughlin — That they propose, and which is now before the House for consideration Mr. Veeder — I rise to a point of order. The President — Will you please state your point of order. Mr. Veeder — I understand a proposition has been presented here and read by the Secretary — if I am wrong I desire to be cor- rected— to change the rules, by Mr. Johnson. How does the matter come before us for consideration? If I am not right The President — The Chair does not know anything about any resolution offered by Mr. Johnson. Mr. Veeder — I understand there was a proposition offered by Mr. Johnson, and read by the Secretary. The President — That was withdrawn by Mr. Johnson. Mr. McLaughlin has the floor. Mr. McLaughlin. It seems to me, Mr. President, this is a very unfair decision The President — Mr. McLaughlin has the floor, and ought not to be interrupted. Mr. Veeder — Will Mr. McLaughlin pardon me a moment? Mr. McLaughlin — I prefer to finish what I have to say; then the gentleman can have the floor. There is no member upon this floor who has had an opportunity to offer a substitute for this bill except Mr. Davenport. We have had this bill under consideration for a week, or nearlv that. There is not a member who has had 554 REVISED RECORD. [Thursday, opportunity to offer a substitute after the amendments have been considered. I have sat here and listened patiently to the discussion upon this bill. I desire when the proper time comes to offer a sub- stitute for the whole bill, and it seems to me that I should be accorded the privilege, at least, of presenting for the consideration of this body my views upon the proposition. Under the rules, I supposed that I had a right, when this bill had been fully considered, when all of the amendments which had been offered to it had been passed upon, to present to the body for its consideration, a substitute for the whole proposition. Xow we are here, confronted at the very first opportunity, at the very threshold of debate, with a proposition from the Committee on Rules that no substitutes shall be offered. The President — The Chair will state that substitutes and amend- ments may be offered ad libitum. The committee merely propose a limit of debate, and on the time for taking the vote. Mr. McLaughlin — Mr. President, I understood that the Commit- tee on Rules proposed a rule in which the time of debate should be limited, and which would exclude from consideration any substitute except that which had already been considered. Now, if that be true, how can I offer a substitute? If this rule be adopted, then the limited time of discussion will be used in the consideration of the proposition by the gentleman from Xew York, or the minority report. Mr. Root — Mr. President, will the gentleman give way for a suggestion? I suggest, as to this matter, that the Committee on Rules acted without having any knowledge that the gentleman from Essex proposed to offer a substitute; and as after so many days' dis- cussion of this article, a discussion that was out of proportion to the time to which it was entitled in comparison with other matters before the Convention, nothing appeared in sight but the pending amend- ment and the pending substitute, the committee supposed that they were justified in considering that those matters which were in sight were the only matters to be discussed, and proposed the rule accord- ingly. My suggestion is, that this matter be recommitted to the Committee on Rules, and that any gentleman who has anything to propose should notify them, and let them propose a rule based upon that knowledge. I move, unless some one is especially dissatisfied with that disposition, that the matter be recommitted to the Com- mittee on Rules, with instructions to report during the afternoon, and that will give opportunity — Mr. Veeder — Mr. President, I rise to a point of order — August 30-] CONSTITUTIONAL CONVENTION. 555 The President put the question on the motion of Mr. Root, and it was determined in the affirmative. The House then resolved itself into Committee of the Whole, and Mr. I. S. Johnson resumed the chair. The Chairman — The Convention is again in Committee of the Whole upon general order No. 13. The question is upon the amendment of Mr. Choate. Mr. Holcomb — Mr. Chairman, I have some suggestions which I would like to submit to the committee concerning this proposition in respect of minority representation. As was very well said by the gentleman from Kings (Mr. Jacobs), in his exceedingly good speech yesterday, the suggestion of minority representation comes as an exotic to us here in America. It originated in Great Britain, under the chief advocacy of Mr. Hare, the editor, with Wallace, of Smith's Leading Cases, because the crown of Great Britain was afraid, and his suggestion of it was made because that crown was afraid of the people of Great Britain, and it was considered that minority repre- sentation would act as a buffer between the people and the crown, and thereby the crown be sustained; and here, in this Convention, the proposition comes from the Committee on Cities and the con- trolling minds, the controlling power in this committee, that minor- ity representation may act as a buffer between those who, being in the minority, and not entitled to control the cities of this State, and the sovereign people there who are entitled to that control in virtue of the votes which they hold in their hands under the section of the existing Constitution of the State. The whole proposition of minor- ity representation is un-American. It is hostile to every principle underlying our manner of government. We are a people governed by majorities. The minority is a check upon that majority, and a wise and honest minority, as in this State and in this republic, almost the equal in power of the majority, is such a check as will hold the majority always in order. There is no reason why the minority of the people should be represented except as they now are repre- sented, in the honest votes and in honest judgment, in the honest will, honestly expressed at the ballot-box of the whole people. There is no reason in the suggestion made by the President of the Convention last night, that the people will be better governed if the minority, be represented a? now proposed — and he described it the minority having the power. Mr. Mulqueen — Mr. Chairman, I rise to a point of order. The Chairman — Mr. Mulqueen will state his point of order. 556 REVISED RECORD. [Thursday, Mr. Mulqueen — My point of order is that members should be compelled to maintain silence while a delegate is speaking. The Chairman — The point of order is well taken, and, hereafter, order must be preserved while gentlemen of the Convention are speaking to the question. Mr. Holcomb — I am perfectly willing, Mr. Chairman, so far as I am concerned, to stand upon the traditions of our people. We have always had two parties in city, State and republic. We never had any great man in public life, either in the United States or in the State of New York, who did not insist upon the wisdom and virtue of the existence of two great parties into which the people should be divided, through which the people might discuss matters that related to their affairs, differing upon the details of those affairs, upon the details of their management, but standing as one man when the interests of the Republic or the interests of the State were at stake. I shall not go further into detail, except to repeat that this proposed amendment as it is, is unrepublican, is undemo- cratic. It is an attempt made by the majority to override the expressed will of the people. It is one of those strange propositions in whose heart rests hostility to the fundamental principle upon which our government stands, the principle of government by the people, giving voice through the majority of themselves. The people themselves control and have a right to have their will expressed in their own way, by themselves. The experiment has been tried before. Mr. Veeder, of Kings, called the attention of the President of the Convention last night to the frauds that were com- mitted in New York, prior to the enactment of the charter of 1873, and he asked the President if those frauds were not made possible — not made possible of perpetration only, but possible of consumma- tion, under the sanction of the then existing statute giving the called-for representation to the minority, the plan now laid before us of minority representation; and I did not understand that the gentleman from Kings received any answer to his question from the President of the Convention. Now, if I remember rightly — I may be at fault — but if I remember rightly, when the chairman of the Committee on Cities presented his report from the committee and this idea was first presented here, the President of the Conven- tion asked him this question, " If this be a good proposition why not make it mandatory upon the Legislature? Why will you leave it to be exercised by the Legislature, or not exercised at its will?" And I do not understand that the chairman of the Committee on Cities gave the President of the Convention any direct or satisfactory August 30.] CONSTITUTIONAL CONVENTION. 557 answer. Yet, last night, when the President made his remarks, he took then an entirely back track. Why is this? Why is there this veering and turning by the gentlemen into whose hands, to a very large extent, the destinies of this Convention seem to have been committed, the President who has assumed on so many occasions the control of the debates and the will of the delegates here? Why not stand as he stood then? What is the reason of the change? If two weeks ago it were wise for him, in his judgment, to suggest that if this proposition go into the Constitution at all, it should go in mandatorily. Why is it not, in like manner, wise to-day, as it is conservative? We have trouble enough already with our election system. We have been tinkering with our election laws for a num- ber of years past, and thereby the people have had much laid in the way of the expression of their will through the franchise, until their burdens now are almost intolerable. Add this new scheme to their burdens, give the Legislature the power to say this year, we will have minority representation, and next .year we will take it away, and the people cannot know where they will be. We are now able to understand our policies. When the people of the State of New York, whether by accident or design, placed the destinies of this Convention in the hands of the Republican party of the State, they knew what they were doing. They knew what they might expect, and they were in no fear of any unpatriotic action. Nobody would suggest that we may not differ on points of detail but on every principle we should stand patriotically together; the people understood that. Now, give us in practice your minority repre- sentation idea; give us an handful of anarchists in the common councils of our cities; give us a handful of populists or anarchists in the Assembly of the State of New York, open the doors of your Congress to them, to the Coxeyites and the other people who tramp over the country, undertaking to redress imaginary wrongs and who so wise that he can fortell the result upon our legislative system? We are safe to-day; we are safe under the aegis of our independence, and under the flag that floats over us all alike. The men who rep- resent us in our Legislatures, as was splendidly said last night by the gentleman from Cattaraugus (Mr. Vedder) who come from the people to represent us as our lawmakers, are honest and upright men, as wise and just as those who are delegated to form our Con- stitutional Conventions, and equally as patriotic, and in their hands, under our present system, our institutions in this State are safe. No experiments are necessary, or in any way entitled to our sanction, and I am entirely opposed to this innovation. Let us stand firmly in the ways that have been proven. 558 REVISED RECORD. [Thursday, The Chairman — The Chair recognizes Mr. McLaughlin, of Essex, who rose last night at the same time Mr. Holcomb did. Mr. McLaughlin — Is a substitute in order, Mr. Chairman? The Chairman — A substitute can be received at this time and will be acted upon in its order. Mr. McLaughlin — I offer the following substitute : The Secretary read the substitute offered by Mr. McLaughlin, in the language following: "Section I. There shall be in the several cities of this State a common council or board of aldermen, to be composed of such members and to be elected in such manner as is or may be provided by law." " Section 2. The Legislature shall by general laws confer upon the common council or the board of aldermen of the several cities of this State, including those that may be hereafter incorporated, such further power of local legislation and administration as the Legislature may from time to time deem expedient." Mr. Blake — Mr. Chairman, do I understand that the motion of the President is before the House, to reconsider a vote taken by this body? The Chairman — The question before the House is to insert certain words Mr. Blake — Can that be done until the motion of Mr. Choate is disposed of, to reconsider the vote on this? The Chairman — The motion was not to reconsider, but to insert certain words that were stricken out, together with other words, which materially changed the subject. Mr. Blake — Which is equivalent. The Chairman — The Chair has decided that it was not equivalent. Mr. Blake — Mr. Chairman, I desire to say a word upon that question. I shall bring within the compass of three minutes what I propose to say on this motion; I will try to. The motion, as I understand it, is seriously made to reverse the judgment and the will of this body, which was yesterday morning clearly expressed, not by a narrow majority, not by accident, not by any misunder- standing, but by an overwhelming preponderance of the gentlemen present in this body, after thorough discussion, or at least after every gentleman who chose to do so had been heard. Now, sir, it seems strange that this committee should, without adequate or preponderating motive or cause, overturn that judgment which was August 30.] CONSTITUTIONAL CONVENTION. 559 intelligently expressed, within twenty-four hours. Mr. Chairman, the main reason, I understand, advanced by the President for this extraordinary step, is that the action was hasty, that it was taken under the charm, or spell, or speaking in his language, under the influence and inspiration of the wit and humor of the gentleman from Kings. Now, sir, that declaration, in my opinion, was maladroit, was at least a very poor compliment to the intelligence and judgment of this body. It is true, sir, that the speech of the gentleman from Kings was somewhat colored, tricked out and dressed, but he simply summoned to his aid those helps for the purpose of ridiculing and satirizing and killing what I believe to be a colossal humbug, introduced in the realm of politics in our country by hair-brained Eutopian dreamers — the greatest humbug I say, sir, as has been well-expressed by the gentleman from Brook- lyn, ever introduced into our system of politics. But the woof and warp of the gentleman's argument was constituted of truth and fact and logic which was so strong that it flashed conviction to the mind and conscience of every man here. The subject of minority repre- sentation was killed. Its body was dead, and it only remained, in the language of the gentleman from Cattaraugus, to carry out the corpse; and now the President seeks to resurrect it, to perform the miracle of resurrection. Now, I have but one word to say seriously on this subject and I have done. I say this is in contra- vention of the principles of local self-government. I have always been opposed to the theory of minority representation. It is directly opposed to the genius and spirit of popular sovereignty. Minority representation should have no place in our system. As has been well said by gentlemen before, and so wittily expressed by the gentleman from Kings, it is exotic; it is foreign to our soil; it is an anomaly. Mr. Chairman, majority should rule in this free land; then we have full responsibility and a strict accountability for the administration of government. That is the true rule, sir, and no other should prevail amongst us. That is all I desire to say, Mr. Chairman, and I trust that this body will not permit an act of self- stultification, by overturning what it so deliberately adopted yester- day morning. Mr. Root — Mr. Chairman, I hope the Convention will agree to the motion which is now pending, and in hoping that, I do not ask the members to commit themselves to the principle or the expediency of minority representation or proportional repre- sentation or any other device. Let me state, sir, what I consider to be the question now proposed. I think it is this. The government of great cities presents the most difficult 560 REVISED RECORD. [Thursday, problem which has ever been presented to thinkers, to prac- tical men who have endeavored to secure good government in any form and under any system since popular government was first attempted. It is a problem which has come upon us within the memory of man, for the great cities of the world are growths of our own day. It is a problem which is still in its early experimental stages. It has never yet been wrought out to satisfaction by any people in any country. Good men, men who seek law and order, men who believe that the people can govern themselves, all over the world are cutting and tying, experimenting upon the govern- ment of these great masses of people collected in small spaces of territory. We have, Mr. Chairman, in this State, one of the great cities of the world, the great city which we call New York and Brooklyn, in which three millions of people are gathered within a small area. The government of those cities presents this situation, and I beg the gentlemen from city and from country alike to con- sider it. Especially in the larger portion of that city, for it is but one city, the principle of representative government to-day stands as a failure. We have what we call a common council elected by the people, but year by year we have been taking away from those representatives of the people every power they possess, and we have been vesting it here in a board of sinking fund commissioners, there in a board of estimate and apportionment; here in a board of health, there in a board of police; and while we keep the form of representative government, go through the farce of electing men who are called representatives of the people, we rob them of all power; and the government of the city of New York to-day is an abandonment of representative government. It is a confession, if we are to stand there and call that the best we can do, that repre- sentative government in the great cities of this country is a failure. It is as bad as bad can be. Nobody on the face of this earth ever sank lower than the common council which professes to represent the people of the great city of New York. Now, Mr. Chairman, while in all cities of the world men are trying to work out some satisfactory solution of this great and difficult problem, the Legis- lature of this State, which alone has power in respect to our great city, finds its hands shackled by a provision introduced into the Constitution long before the problem was thought of. One of the ways in which people are experimenting, trying to work out some- thing better, is by means of what is called minority representation, or proportional representation. I do not know whether it will work or not. I know the gentleman from Brooklyn who gave us such an amusing and interesting speech yesterday. I know that August 30.] CONSTITUTIONAL CONVENTION. 561 as the result of his wide and varied experience in practical affairs in the city, he came to this Convention convinced that it would work. Mr. Jacobs — Never. Mr. Root — He came to this Convention committed, as the result of his experience, to the practical benefits of minority representa- tion, and he proposed an amendment to this Constitution which would have introduced it into the formation of the Legislature of this State, and advocated that, and the speech which he gave us yesterday was the result, not of his convictions based upon his experience, but of some new light which he has got here from theory. For while he has been here he has not been having prac- tical experience in the government of cities. Now, sir, I do not know whether this is desirable. There is one thing about it that I can say. It is, that in a great city it is not practicable to secure the same kind of variety of representation by means of cutting the city up into districts which you get when you take the different counties of the State, or when you take the different towns of a county, for the reason that locality counts for nothing in the city, except in isolated cases. Here and there will be a neighborhood which is homogeneous, the people dwelling about a square, the people in a little section of a street; but as a rule, my next-door neighbor is not the man who lives next to me; he is the man, per- haps, who lives three or four miles away, and whom I meet in busi- ness, at church, at the club, in various enterprises. Locality counts for nothing. The lines of demarcation between localities do not differentiate representation, and every man elected to a municipal Legislature represents the whole city as much as he represents the particular division from which he is elected. So, Mr. Chairman, the only logical way in which to elect representatives would be on a general ticket; but if you elected them on a general ticket either one party or the other would have the whole, and the only way to secure any variety of representation in the discussion on contending inter- ests, in the rectification of ideas of a majority at conflict with the minority, such as we get in our Legislature by electing from differ- ent counties, is by means of some plan of proportional representa- tion or minority representation. Now, sir, as I say, I do not know whether this will work; but I do know that it is a great mistake to keep the hands of our Legislature tied so that it cannot try to improve the government of this city. It cannot be worse than it is now. It may be better. And I think we ought to set free the Legislature of the State so that it can at least try to make it better. 36 562 REVISED RECORD. [Thursday, And for this reason, without committing myself to minority or pro- portional representation, I think we ought to adopt this proposed amendment and let the Legislature do its best for the cities of our State. Mr. Bush — Mr. Chairman, I had supposed yesterday when this Convention almost unanimously rejected this proposition, that the matter was settled, at least so far as this article was concerned. But it seems that there was at least one man in this Convention who was not satisfied, and he happened to be the President of the Conven- tion, and lo, and behold, he rises and asks to have the whole matter reconsidered and says: "You didn't know what you did. The gentleman from Kings made you laugh, and, therefore, you didn't know what you were doing. You must reverse your action; you were entirely wrong, notwithstanding the fact that you were substantially unanimous." And we get new light, and the leader of the majority now finds that he is also in favor of minority repre- sentation and all the other fads connected therewith. The gentle- man who has the honor of presiding over this Convention twits the gentleman from Kings with being inconsistent, and with having changed his mind on this matter. Now, it is only a few days ago that the President of this Convention was discussing the judiciary article which provided that two judges of the Court of Appeals should be elected, and that no voter should vote for but one. But he characterized that as an extremely dangerous proposition. He said it ensured the election of two who were nominated, and that a bad man might be nominated and elected, and, therefore, it was something entirely improper to be adopted by this Convention. And the Convention, in accord with those views, rejected that por- tion of the article. Now, when this home-rule proposition was brought up in this Convention and discussed by the press through- out the whole State, it was said that the principal benefit to be derived from the article as it was introduced here was this, that separate municipal elections would be held — they should be held — separate and distinct from elections for President or State officers, or any other officers, in whose election any other questions might arise than those relating to purely local self-government; and the object of having separate municipal elections was to prevent party influence from controlling, that a man should be voted for on account of his business ability, of his peculiar ability to administer the affairs of a city. It was supposed that party would not be con- sulted in that case, and that a purely business administration might be obtained for the various cities of the State. Upon that theory many gentlemen in this Convention were in favor of separate muni- August 30.] CONSTITUTIONAL CONVENTION. 563 cipal elections. But if separate municipal elections will not produce that result; if they are already discredited by those in high author- ity in this Convention, I ask what will it do, and what is the good of them? You say that a man must not vote for a candidate who is nominated simply because they agree upon the tariff question. Every member of this Convention is willing to coincide with your views, to give you separate municipal elections, so that these great business men, as you call them, may be elected to municipal offices. But now you discredit your whole theory in advance, and you say that something is radically wrong in the system. What do you mean? The great majority of the people in the city do rule its affairs. The President of the Convention finds most grievous fault in the fact that while the Republican party in the city of New York has one-third of the votes, it has nothing to do with the government. But, Mr. Chairman, does the city of New York differ in that respect from any other city in this State, or in the United States? Are the Republicans of New York city laboring under any peculiar disadvantage in that respect? Are the Republicans of that city any different from the Democrats of Rochester, or the Democrats of Philadelphia, or of every other Republican city of this State? Do you see Democrats howling for minority repre- sentation, so that they may manage to get into the board of alder- men in the city of Rochester? But, now, how insidious is the proposition of the President. He finds that this Convention is overwhelmingly against his pet idea; that gentlemen from the smaller cities of the State, where they have Republican majorities, are absolutely opposed to this. He holds out the luring and tempt- ing bait. He exempts their cities from this provision, and says: "Help me to descend on New York; let the Republican party get in in New York, and we need not let the Democrats get in in your cities." It has been bewailed here that Troy is misrepresented ; that a gang of Democrats run that poor city. Why do you not allow minority representation to come in and try itself there? What is the matter with letting good Republicans there benefit by this principle? What is the matter with exempting Troy? The only reason is that you cannot pass your little measure if you exempt the smaller cities of the State. You think they have so little principle that they will vote to impose it upon the larger cities of the State; but I do not believe that principle is so lacking on the majority side of this Con- vention as to do that. Now, Mr. Chairman, where has this minority representation idea ever been tried, and where it has been tried, where has it been approved? Is it a wise thing to put into the Constitution of the 564 REVISED RECORD. [Thursday, State of New York a provision that there is not a section of the whole earth that insists that it is a good thing, where experience has demonstrated that it is a good thing? This is not a new idea in New York State. It has been tried long ago and rejected. Now, I heard a very able Republican in this Convention yesterday say to me : " Why don't you fellows let this minority representation idea go into this section, and then they will all have to vote, and we will kill the whole cities article? " And I am satisfied that that is the purpose of this whole matter, to overload this home-rule meas- ure to such an extent that nobody can vote for it. The purpose is to get the Democrats to vote against the home-rule proposition, to force this minority representation matter, and they say : " Either take the minority representation or do not take the bill at all." I am ready to vote against this bill, if you put that in. But, Mr. Chairman, the responsibility for this home-rule matter is not upon the minority in this Convention. We have no voice here, we are but about one-third of the membership of this Convention. The responsibility for home rule and for every section of this bill is on the majority, and I, for one, am willing to leave it there; but I am not willing to permit you to evade the question and to load down this home-rule amendment to such an extent that it will be thrown out of this Convention, and then say to the people: "We tried to give it to you, but the Demo- crats wouldn't let us." Now, Mr. Chairman, I hope that the gentle- men of this Convention will stand by their act of yesterday. It was substantially unanimous then, and it will be very strange if they can reverse their convictions on this in twenty-four hours. It is true, as the President says, it was not debated or discussed. Mr. Chairman, it seems like assuming a great deal to say to the members of this Convention, men of experience, excellent lawyers, men who were selected from their several constituencies, to come here for this very purpose, it seems to us strange to say that these gentlemen were literally laughed into this change of mind yester- day, and that one man could do all that. I do not believe it. Mr. E. R. Brown — Mr. President, I am astonished at the tone the gentleman assumes in discussing this question, in opposi- tion to the motion made by the President for reconsideration. It is not a question of twitting or of recrimination, or of secret party advantage. When I was chosen to this Convention I came here, not for the purpose of home rule or the betterment of the political conditions of the city in which I reside, but I came here, if possible, to contribute by my vote something that would tend to ameliorate the condition of our great cities; and I believe August 30.] CONSTITUTIONAL CONVENTION. 565 that the motion of the President, confined, as it is, to cities of more than five hundred thousand inhabitants, strikes the true note upon this subject. For us to attempt to formulate a plan of home rule for cities which shall be foisted upon cities which do not demand it, which have no use for it, which do not want it, amounts to nothing. But for us to formulate a plan which will tend, in some measure, to ameliorate the condition of the great cities of the State is everything, and, as I regard this amendment, it is in that line. Mr. Chairman, we have heard the Democratic members on this floor cry out for absolute home rule, for the establishment of cities •which should stand by themselves, independent of the State. Is it not in the line of home rule that the cities themselves should, if they desire, have minority representation, or proportional representa- tion? Is there anything, Mr. Chairman, so savory in the represen- tation in the common councils of our great cities that we should hesitate to make it possible that there should be an improvement in them? I have seen for many years the records of the proceed- ings of the common councils of those cities, and never yet have I heard a single word, or seen a single word, in praise of the common council of the city of New York. But in the discussion of this question, while we are to bear in mind, first, that we are not disturb- ing any institution which has thus far rendered itself desirable, and, second, if you pass this amendment, that we will take a further step in the direction of home rule, we should still further bear in mind that if we vote for this amendment, we will not yet vote for minority or proportional representation. We will simply have voted to leave it to these individual cities to act in this respect as they desire. It is far from my purpose to stand upon this floor now and discuss the merits of these systems; but let me say that not only did the gentleman who has so violently opposed this proposition advocate the measure at the beginning of this session, but it is not an untried system in this country. It prevails in various cities. It prevails in at least one State, and it seems to me that any system which has been adopted into the constitutional law of any State in the Union can well be made possible as a system to ameliorate the condition of our great cities. Mr. Holcomb — Mr. Chairman, may I ask the gentleman a question? The Chairman — The Chair has determined to rule hereafter, during the discussion of this question, for it is the only prerogative he seems to have, that questions can only be asked after gentlemen who have the floor have concluded their remarks. 566 REVISED RECORD. [Thursday, Mr. Holcomb — I understand that Mr. Brown has ceased his speech. The Chairman — If the gentleman has finished. Has Mr. Brown finished his remarks? Mr. Brown — I have. The Chairman — Then, Mr. Holcomb, is in order. Mr. Holcomb — I would like to ask Mr. Brown what State he refers to? Is it not the State of Illinois? Mr. Brown — The State of Illinois. Mr. Holcomb — And whether the State of Illinois has not a Gov- ernor who is substantially an anarchist? (Applause on the Demo- cratic side.) Mr. Brown — Mr. Chairman, I am perfectly willing to reply to the gentleman. That State has a Governor who is an anarchist and a Democrat (applause on the Republican side), just exactly as three-fourths, if not nine-tenths, of all the members of the common council of the city of New York are, and always have been Demo- crats; and this proposition, if it ever shall be taken advantage of by the city of New York, may make is possible to reduce their majority on that board to two-thirds. Mr. Holcomb — May I ask the gentleman a further question? Then the real motive of this is to reduce the representation by con- trolling the people of the city of New York in their common coun- cil; is that it? Mr. Brown — I deny that there is any such purpose, Mr, Chair- man; but I do asseverate upon this floor, after renewed discussion, of this question, I have been able to discover, from the tone of my friends in the minority, that their purpose has not been to secure the best possible government, but has been to put up the bars so- that what always has been Democratic, even though it has been bad, shall always remain solidly Democratic and bad. Mr. Osborn — Mr. Chairman, I do not wholly agree with the esti- mate of this bill, which is taken by my colleague from Ulster^ I consider it quite a nice measure. I think that, with the excep- tion of some objectionable features, it is a measure for which most of us can vote. One of the objectionable features is this feature of minority representation, which this Convention, in its wisdom, removed yesterday. I am somewhat surprised, Mr. Chairman, that the gentlemen from New York, who have had so wide an experience of the elements which go to make up the life of that cosmopolitan city, should have neglected what is, in my judgment, the very August 30.] CONSTITUTIONAL CONVENTION. 567 foundation of the political system, the very source of the political disorders of that city. In the city of New York, Mr. Chairman, there are men, many men, of wisdom, of capacity, of character and of experience, who are willing and ready to give their time to the service of the public. The chairman of the Committee on Charities has said upon this floor that he is amazed at the character of the charities of the city of New York, at their vigor, at their public spirit and at their benevolence. There is, Mr. Chairman, in that city an element which is ready to sacrifice itself for the good of the public. What is the reason that it has not shown its capacity in taking an interest in public affairs? It is because, in order to obtain a nomination, it is necessary for a man to go down into the mud of party politics; it is because after that nomination is obtained and the election is had, it is necessary for a man to keep no end of political strings agoing, to give a pass here, to give a permit there, to look after a banana stand or a soda water fountain, and no man of character or capacity is going to place himself in a position where his time must be used in those ways. Now, Mr. Chairman, what is there in this bill which takes the slightest account of that great element of city life in this country? There is nothing. The very element which the President of this Convention is endeavoring to introduce into this Constitution is one which, in my judgment, would put a premium upon men who desired to trade upon votes; would put a price upon the position of alderman or member of the common council which it has never hitherto held. The position of a man who could get into the minority and slide in that way into the common council would be one of glorious opportunity for the many keen and shrewd men who now are willing to sacrifice every- thing to get into New York city political life. If this Convention wishes to do away with the features of New York city civilization, to which so many sneering references have been made, let it pre- pare some measure which will form a political body in the city of New York, and in the other large cities in this State, that will be freed from those malign influences to which I have referred; but do not let it stand up and build up in the cities of this State one more body into which may be injected the utmost opportunities for the very evils of which they are so bitterly complaining. Mr. Becker — Mr. Chairman, the position of a great many gentle- men on this question reminds me of the definition of orthodoxy and heterodoxy. Orthodoxy is the doxy of the man that is advocating a measure. Heterodoxy is the position of the man that takes the opposite side of it. Now, I think that there is a con- sideration involved in this matter that has not been, perhaps. 568 REVISED RECORD. [Thursday, brought out here as strikingly as it seems to me should be, upon which the decision of this matter should largely turn. I stand here to say, for one, that so far as 'my judgment and experience go, unless it should be changed by future argument, I do not believe that either the principle of minority representation or proportionate representation should be applied to political bodies, as such. I would not vote here to introduce the system of proportionate repre- sentation into the Legislature of this State, nor to introduce minor- ity representation in the Legislature of this State. They have to do with great political questions which concern the welfare of the whole people of the State, and it is entirely proper, and I think is governed by the great principles of constitutional and organic fundamental laws, to use Mr. Smith's favorite expression, " natural rights," that there should be a majority there, and that the minority, if it got there at all, should be recognized as a minority, but when we come down to the government of a factory, or a bank, or a store, or a business corporation, I say that every stockholder should have some voice in its management. What is the position of these municipal corporations to-day? I do not care whether it is Buffalo, New York, Hornellsville or Troy, they are all purely business corporations. There is no politics in them, except that politics which is represented by the three P's, patronage, plunder and pelf. The only politics there is in New York city, or any other city, to-day gathers around a distribution of the offices and the sale of the fran- chises, and the only politics there is in any city in this State is of that character, except the additional, and I may say almost still worse politics which uses that patronage, uses the office-holding classes as a tremendous engine for controlling votes on general questions, on general election day. Now, those considerations, Mr. Chairman, influence me to believe that in these local bodies which have control of these business matters, there should be a representation permitted to every stockholder. As it is now, the question comes up, who are the stockholders? In the great body politic of this State, dealing with the laws which restrict a man's social actions as a member of the social compact, every man, whether he owns a dollar's worth of property or whatever be his station or condition in life, is a stockholder, and he is represented there, directly down to the taxpaying community in the great cities ; in some of the cities of this State where they predominate, they do constitute a part of the body politic. But in some of the other cities, where the great masses, the tremendous volume and majority of the masses, do not pay any taxes, and, to use an old mining expression, have no stake, except a grub stake, they are not stock- August 30.] CONSTITUTIONAL CONVENTION. 569 holders in the institution. To be sure, I do not go so far as to say that they are not interested in good government. Of course, they are interested in clean streets ; they are interested in fair police protection, although I say here openly I believe it was a great mis- take ever to intrust the police of this State, the great arm of govern- ment protection for the whole body politic, to any branch of the body politic. But, taking the question from the standpoint from which I look at it, it seems to me that the gentlemen here who desire to preserve the theory of party representation, which has been so eloquently portrayed by all the gentlemen, not excluding Mr. Jacobs, that they can preserve the full force and effect of their argument, and still concede minority representation, or some form of proportionate representation to the taxpaying elements in the great cities without violating the principle. Now, I cannot spend the time upon this question to make a very long speech, but when my friends get up here and talk about Democratic doctrine I would like to cite very briefly a few great expounders of Democratic doctrine who have, in one way or another, declared in favor of this proposition. In this State the Constitutional Convention of 1867 was elected under a law which made provision for minority representation (Laws 1867, chap. 194, sec. 2), and this provision was inserted in the act upon a suggestion made by Governor Fenton in his annual message (Assembly Journal of 1867, p. 16). The Constitution of the State itself provided for minority representation in the Court of Appeals as at first elected (art. 6, sec. 2). From 1873 to 1883 the aldermen of New York city were elected under statutes which made provision for minority representation. (Laws 1873, chap. 335, sec. 4; Laws 1878, chap. 400.) But much doubt was expressed by the Court of Appeals as to the constitutionality of these statutes. (People v. Kenney, 96 N. Y., 294; People v. Perley, 80 N. Y.. 624: Demarest v. Wickham, 63 N. Y., 320.) Governor Hill evidently found nothing un-American in minority representa- tion, for, in his annual message of 1887, he recommended that the Constitutional Convention be elected in such a man- ner as to give representation to the minority. He said: "It is suggested that the Convention should consist of no delegates, of which sixty-six should be elected by districts, two from each congressional district, and forty-two should be elected from the State at large, no elector being permitted to vote for more than fifteen delegates, and the forty-two delegates receiving respectively the highest number of votes should be elected. If it should be deemed desirable to further adopt the system of minority represen- 570 REVISED RECORD. [Thursday, tation, it might also be provided that in voting for district delegates each elector should vote for only one delegate, and the two candi- dates receiving, respectively, the highest number of votes in any district should be elected." (Public Papers of Governor Hill, 1887, p. 17.) The original act passed by a Democratic Legislature, relating to the election of delegates to this very Convention, contained a provision for minority representation (Laws 1892, chap. 398), but these provisions were subsequently repealed because of the general belief that they were unconstitutional. Minority representation is also provided for in the choice of election inspectors in towns. (Laws 1890, chaps. 569, 619.) Under the existing law there are four inspectors, no voter may vote for more than two, and the presiding officer must appoint two additional inspectors, who must be the persons who have received the next largest number of votes for the office. Minority representation, therefore, exists to-day under the statutes of this State in the choice of election inspectors in towns, or does exist, unless the bi-partisan act of last winter has interfered with it. We have elected our justices of sessions for half a century by a system of minority representation, and nobody has ever been heard to complain, although its constitutionality has been questioned. Article 4, sections 7 and 8 of the Constitution of Illinois provides: " In all elections of representatives aforesaid each qualified voter may cast as many votes for one candidate as there are representa- tives to be elected, or may distribute the same, or equal parts thereof, among the candidates he shall see fit." In Michigan it is provided (Laws 1889, No. 254): " In all elections of representatives each qualified voter may cast as many votes for one candidate as there are representatives to be elected, or may distribute the same among the candidates as he may see fit." This act was subsequently declared unconstitutional in the case of May- nard v. The Board of Canvassers (84 Mich., 228), in which, if the gentlemen care to get a better light on this question, they will find fully explained in a brief, but clear statement, the several methods devised for obtaining minority and proportional representation. In Ohio, by an amendment to section 1998 of the Revised Stat- utes, passed April 21, 1894, it was provided that in certain cities four police commissioners should be elected, but that no voter should vote for more than two of them. This act was subsequently declared unconstitutional. (State v. Constantine, 42 Ohio, 437.) Cumulative voting in corporate elections is allowed by constitu- tional provisions in the following States: California Const., art. 12, August 30.] CONSTITUTIONAL CONVENTION. 571 sec. 12; Nebraska Const, art. n, sec. 5; Missouri Const., art. 12, sec. 6; West Virginia Const., art. n, sec. 4. In Pennsylvania, in 1872 and 1873, statutes were passed allow- ing cumulative voting for certain officers. Now, look at some of the names that are attached to the rolls of the Proportional Representation Society of this country. Let me read just a few of them. They are not all theorists. They are men of experience in government affairs, practical experience, men who are honored and respected, have been presidential electors, have been candidates for Governors of their States, some have even been favorably considered as candidates for the presidency; ardent, out- spoken, earnest in their advocacy of applying this principle, at least, so far as the government of these great business municipal cor- porations are concerned: Hon. Charles Francis Adams, of Massa- chusetts ; Robert Treat Paine, of Boston ; Samuel B. Capen, William Lloyd Garrison, and here is a choice name for our Democratic friends to think of, Hon. William M. Springer, M. C, Washington; Hon. Tom L. Johnson, Cleveland; Hon. Clinton Furbish, Prof. Felix Alder, of New York; Simon Stern, of New York; Henry George, of New York, and so on down through a long list. What is this system of proportional representation that is talked of? It is not simply minority representation. Tf I had my choice, I should not choose minority representation in preference to propor- tional representation. This amendment provides that the Legisla- ture may, if it chooses, permit either one of these two methods to be adopted. Now, there are two theories of municipal government. One is to centralize everything in your mayor and take it away from your people, as you have done in New York, as you have done in Brooklyn. There is not a single thing done in New York city by its common council, its elective body; everything is done by the mayor and the boards, some of whom are elected for a longer term than he i§; some as long as six years. What kind of popular government is that? Government that is put upon the city of New York by a concensus of opinion of both Democrats and Republi- cans, and that is the only salvation • for the taxpayers of that city. In our city we had a board of aldermen, elected by districts, and we found that that did not work well, so we elected another board called the council, to which there are nine members elected from the whole city, three each year, the effect of which has been that in the upper board we manage to get some of our very best citizens. We would gladly have inserted — and I know whereof I speak, for I was connected with the revision of the charter in which that provision was inserted — we would have gladly inserted the pro- 572 REVISED RECORD. [Thursday, vision in there that some portion of that board should be elected by some system of proportional representation, but we could not do it; the Constitution stood in the way. Now, what is propor- tional representation? And before I pass on that question I wish to consider the other form of municipal government. The other form, which is the true form, is to have a great central body repre- senting the whole city, or very large districts, and rotating in office, part of them going out one year and part of them the next year, charged with the whole duty and responsibility of local self-govern- ment, and I should say, if possible, serving without pay, as the London county towns' councils do and the Berlin council, if I am not mistaken. Now, the object of the Proposed Representa- tion League as stated in its Constitution, is to " promote the reform of legislative assemblies by abandoning the present system of electing single representatives from limited territorial districts by a majority or plurality vote, and by substituting the following: First, all representatives shall be elected at large on a general ticket, either without district divisions, or in districts as large as practi- cable; second, the elections shall be in such form that the respective parties or political groups shall secure representation in proportion to the number of votes cast by them, respectively." So,, if the Republicans, we will say, in the city of Buffalo, should cast more votes than the Democrats, they would have more representation, and vice versa; but, on the other hand, in the governments of these great cities, those that could not cast the most votes would, at least, have some one in the council representing their interests, as tax- payers an.d citizens of the city. Now, I cannot spend the time of this Convention longer on this question. I have talked longer now than I meant to, but what I meant to emphasize as distinctly as it -was in my power is this, that there is a vast difference between a Legislature or a Congress, where great questions of public policy are at. stake and passed upon, and in which the whole mass of the citizens are equally interested, and a municipal body in a business municipal corporation, dealing purely, simply and absolutely with business concerns. I believe there could be some form adopted in which it would be always certain that there would be some minority repre- sentation in these municipal business councils, as in the boards of directors of railroads, or banks, or the like business corporations in which there would be checks and safeguards placed around the spending of public money, someone to stand up for and fight for the interests of the taxpayers. It is true that there would be, at times, as there will always be, whether you elect by majority repre- August 30.] CONSTITUTIONAL CONVENTION. 573 sentation or minority representation, it makes no matter, there will be deals; there will be divisions; no matter by what partisan vote people are elected, in a ward or district, assembly district, if you please, for the aldermen of New York are not elected by wards any longer, they are elected in assembly districts, people elected to a council from separate districts in that way, no matter which party elects them, who if there is plunder to divide and the stake is sufficiently large, will join hands and make combinations; but it does not follow from that that if you could get representatives in there from large districts by some system of minority or proportional representation, that because those members are elected in that way they will be any more likely to make combinations or divisions than those elected from the districts. Now, we plead for this, not because it is an experiment. It has been tried. It has been tried in Switzerland, it exists to-day in Germany, and I, for one, am not going to stand here and stultify myself by the assertion that we should reject everything that comes from the other side of the water because it comes from there. What ridiculous nonsense. Our own Constitution and the free principles that it is based on came from the Magna Charta. As well might the gentlemen that stood up in the Constitutional Convention with Jefferson, and Madison, and Hamilton have said that many of the things that were put in the great fundamental organic law of our country should not be put there because they were copied after something abroad. Experience teaches, time works great changes of feeling and experience. The original idea and unit of municipal government was the town, in which all the people came in, and all voted upon what should be done; but the tremendous growth of these great cities, springing up like mushrooms, into whose lap the wealth of nations is poured, affording opportunities for corrupt combina- tions for the sale of franchises and the giving away of city property, has totally changed the condition of affairs. The whole people cannot vote on these questions; they are not represented. What, then, is the remedy? Simply to permit some small portion of them, if the Legislature, in its wisdom, sees fit, to be represented in a local body and to build up a strong local assembly for the handling and management of the business affairs in which the citizens arc interested. Air. M. E. Lewis — Mr. Chairman, when the Cities Committee presented its report originally, something like three or four weeks ago, I was entirely satisfied with that report. In that report was the proposition which was stricken out yesterday upon the motion of Mr. Bush, namely, that minority or proportional representation 574 REVISED RECORD. [Thursday, might be tried as an experiment, if the Legislature of the State of New York saw fit to try it in any of the cities of the State. Various and numerous amendments were presented to that article, as it was originally reported, amendments presented by gentlemen who had given but very little consideration to the subject. Some of those amendments, having been submitted to the committee when the report was recommitted, had been incorporated in the report and in the article which the Committee of the Whole is now con- sidering. Not one of those amendments, Mr. Chairman, incorpor- ated in the article which this committee has now reported has tended to strengthen or better that article, as it was originally reported. In my judgment, every amendment that has been made to the article, as it was originally reported, has tended to weaken that article. I refer not especially to the amendment in relation to the three-fifths; I refer not especially to the amendment in relation to the police subject; I refer not especially to any amend- ment, but to all. Every amendment has weakened the entire article, and to-day the article is not nearly so good an article as was origin- ally reported by the chairman of the committee. In the committee we recommended the article with the proposition for minority or proportional representation. We did that on the theory that it had not been tried in the State of New York, that evils existed in some of the great cities of the State, and that it was advisable to permit the Legislature to try the experiment of proportional or minority representation in some of these cities, with the idea that, if it was found to be a cure for those evils, it might be applied to all the cities of the State. That proposition commended itself to the mem- bers of the committee only upon that theory, and that alone. And that proposition was yesterday hastily, I think, stricken from the article. As a member of the committee, I do not wish to be under- stood as favoring the proposition and making it compulsory as to all the cities of the State. Far from it; but, as a member of the committee, willing to try whatever may seem to promise good for all the cities of the State, I would be in favor of putting that propo- sition back into the article just exactly as it was before the motion of Mr. Bush was made, just as I would be in favor of putting back into the article every proposition that has been stricken out from that article. I think the article, as I said before, is weaker now than it has ever been before, and, if the amendments continue very much longer, the value of the article will be entirely destroyed.' Mr. Veeder — Mr. Chairman, are amendments in order? An amendment to the amendment proposed by the honorable President? August 30.] CONSTITUTIONAL CONVENTION. 575 The Chairman — An amendment to the amendment is in order. Mr. Veeder — I offer the following- amendment. Mr. Becker — 'I rise to a point of order. The Chairman — The gentleman will state his point of order. Mr. Becker — I understood that the Chair held yesterday that amendments to the section proper must be exhausted before Mr. Choate's — Mr. Veeder — I rise to a point of order. The gentleman is not stating any point of order, but catechising the Chair. The Chairman — The Chair rules that the point of order is not well taken. The Chair did not so rule yesterday. Mr. Becker — I understand, then — perhaps I should not have premised it, Mr. Chairman — it was out of no disrespect to the Chair, however — I understood that Mr. Choate's proposition was offered as a substitute; if it were not, of course, I am wrong. The Chairman — Mr. Choate's amendment was to insert certain words which the Chair held included such words that it made a substantial difference, and it was not an equivalent question. The Chair now rules that an amendment to that is in order. Mr. Veeder — I move to strike out of the proposition, or the amendment, proposed by Mr. Choate, the words " in cities of the first class." Now, if the principle claimed by the gentlemen who are the majority of this Convention is a correct one, I cannot under- stand why they confine this principle to only two or three cities of the State of New York. If it is well to have minority representation in the city of New York, and in the city of Brooklyn, and, perhaps, the city of Buffalo will be included in the first class, why is not this principle a proper one for all the cities? The Chairman — The Chair would be obliged to hold that if those words were striccken out it would be an equivalent motion. Mr,. Veeder — Pardon me, Mr. Chairman, I think the Chair is in error. My proposition is for minority representation in every city. The one ruled out or voted upon, for which the substitute is now offered, is a proposition for no minority representation. But mine is for minority representation for all cities. The Chairman — Mr. Veeder will please send his amendment to the Secretary's desk. Mr. Veeder — I can only send a copy of the resolution with my pencil drawn through the words that I refer to. Now, to make it clear, Mr. Chairman, if this principle of minority representation is a 576 REVISED RECORD. [Thursday, good one, or a proper one, for any city, why should it not apply to all cities? I do not believe the gentleman from New York is sincere, who talks so harshly about the citizens of New York. I believe New York is a very intelligent city, and there is not a word that he has uttered upon the floor of this Convention that he has not uttered there to the citizens of New York, and there is not a word that they have not repudiated, and the gentleman as well. Now, sir, if there is sincerity in the proposition, make this the rule, that every city shall have minority representation. Mr. Spencer — Mr. Chairman, as a member of the Cities Com- mittee, I desire to say for myself, that I hope the amendment pro- posed by the gentleman from New York (Mr. Veeder) will be approved. I cannot see any reason why we should permit the three great cities of the State to avail themselves of the benefits of this provision, and should exclude the other cities. If it is a correct principle, as he says, why not apply to all? I cannot see my way clear to any other conclusion, and I appeal to the gentlemen of this Convention in behalf of the general proposition which underlies these amendments to regard the arguments that were made here a few days since, in respect to the amendment which was adopted in relation to the elective franchise, and which permitted, or was passed to permit, the use of machines in elections, a machine that it is well conceded by every one has never yet been invented, and the inventor of which has never yet been born. Now, sir, if we are willing to inject into the Constitution a provision which opens the door to improvements; if we are to open the door, as I say, for an opportunity of improvement, to permit inventors of machines to have a chance at the methods of our elective franchise, why shall we not open the doors also for the inventors of better systems of economy, to apply the results of their brains to the machinery of civic municipalities? I can see no reason why, if we vote for one proposition we should not vote for the other. One is equally con- sistent with the other; and, furthermore, the principle which this amendment seeks to permit to be applied to our municipalities has been tried already in our great business corporations. I think every gentleman on this floor who is familiar with corporation law will agree with me that substantially the provision that is here sought to be permitted to be applied to cities has already been applied to limited liability corporations, and we know that it has worked well there. It has not worked great reforma- tion, but has served as a check to prevent evils and frauds, and to easily detect wrong is one of the best preventives of wrong. Now, sir, I believe that the gentlemen in this Convention who August 30.] CONSTITUTIONAL CONVENTION. 577 regard themselves as belonging to the minority, and who in the interests of New York city feel inclined to resist this proposed amendment, have failed to appreciate the fact that it cannot be applied to their cities without the consent of the cities, unless the Legislature passes it by a three- fifths vote; and I ask what proba- bility is there that the Legislature, by a three-fifths vote, will ever saddle this provision upon the city of New York, unless it be agree- able to that city? I am not willing, for one, Mr. Chairman, to have it said that we vote here to put this proposed amendment upon the the city of New York because it belongs to one political party, and that we refuse it to other cities of the State because they belong, or many of them, to another political party. I believe that we should act fairly and squarely in this matter, and if we adopt this provision, we should make it apply to all of the cities alike. Mr. J. Johnson — Mr. Chairman, I regard the amendment by the gentleman from Kings, if adopted, as killing, by indirection, the proposition made by the gentleman from New York. I was for the measure as reported by the Committee on Cities. That was stricken out yesterday. There is now a second proposition, stand- ing on different grounds, fairly before this committee; and we ought to have a vote on it; and to kill it by indirection does not comport with the dignity or the importance of the subject. And since I am on my feet on this question, I want to say, with all the force and intensity that I am able, that I appeal to the members of this Con- vention in the cause of good government, in the cause of better representation, in the cause that we fight for almost — I appeal to them to give us an opportunity in the cities that we have the honor to represent — give us, we appeal to you, gentlemen, give it to us that this is possible — repeal as to common councils, and in the large cities, the prohibition of the suffrage part of the Constitu- tion. We ask it. Argument is exhausted. No one has attempted to answer the argument made by the gentleman from New York (Mr. Root), that locality representation does not give variety of representation in the cities. There is no answer to it. I consider, sir, that the defeat of the resolution offered by the President, or the adoption of the resolution offered by the gentleman from Kings, would be fatal to the work of this committee, and as we believe, sir, to the work of this Convention. Mr. Veeder — Mr. Chairman — There were numerous calls of " question." The Chairman — The Convention not having limited debate, 37 578 REVISED RECORD. [Thursday, whenever a gentleman rises and is recognized, he will be heard, until that course is taken by the committee. (Applause from the Democratic side.) Mr. Veeder — I want to ask the chairman of the Committee on Cities, if the amendment suggested by the President prevailed, what cities would be affected by it other than New York and Brooklyn? Mr. J. Johnson — Buffalo. Mr. Veeder — Is it not applied to cities of a population of over half a million? Mr. J. Johnson — The amendment applies to cities of the first class, of over 250,000. Mr. Cochran — Mr. Chairman, I think this subject has been very thoroughly discussed, and I do not desire to take up the time of the committee any further than to repeat what I said yesterday as to what it seems to me the action of this committee indicates. I said yesterday that it seemed to me there was a party in this com- mittee who did not desire to give home rule to cities, unless they gave it with a big string. I mean by that, sir, that there are those here who are willing to give home rule and to use it themselves, but when the other party comes in to rule, they desire to be in a position of controlling those who ought to rule under the amend- ment which they want to have adopted for their own benefit. To illustrate what I mean, sir, we will assume that the expectations of our Republican friends in this committee are realized and that the Republicans are in control of the Legislature during the coming year. The worthy President of this Convention saw fit yesterday to say, and I think he said it truly, that in the city of New York, the Republicans, probably, would never control the city legislature. We can, therefore, assume that in the city of New York, at least, this measure of minority representation is intended solely for the benefit of the Republican party in that city. We will now illustrate how the string works. The minority in the common council of the city of New York desires some measure passed. They have not sufficient votes. They go to the majority. The majority accedes to the request of the minority and the string is not pulled. But let the majority refuse to accede to the request of the minority on that board, and the minority proceed to the city of Albany, and under the amendment which this Convention yesterday interjected into this present section for the first time, they override the action of the local common council and of the mayor of that city; and I say. sir, that it permits the minority in any local legislative body to control ^he majority and to control the government of that city. And I August 30.] CONSTITUTIONAL CONVENTION. 579 submit, sir, that it would be a very unwise thing for us to interject any such thing as that into this Constitution. My friend from New York (Mr. Root), however, says that it is immaterial whether we believe in it or not. That is not the question. What we want to do is to leave it to the Legislature. Let them say whether the city shall have it or shall not have it. Why, sir, it is such an evasion of what our duty is here that I am astonished to think that the gentleman would stand up here and advocate such a measure; and I cannot do better than repeat the words of that gentleman on a question very similar to this, namely, the female suffrage, when an attempt was made by certain delegates in this Convention to evade the question, as to whether they should or should not recommend female suffrage, but leave it to the people; and my friend, Mr. Root, of New York, spoke as follows: " Now, we are met, sir, by the proposition that instead of per- forming the duty which we came here to perform, instead of exer- cising the warrant given to us by the people to revise and amend the Constitution, we shall have recourse to a weak and shuffling evasion, and thus throw back upon the people the determination which they charged us to make in this Convention. I hope, sir, that this Convention will discharge the duty of determining this question with manliness and decision of character." I think, sir, that it is apparent to all that if we leave this to the Legislature, it is only because the delegates in this Convention are afraid to put into the Constitution such a measure as is advocated here, and I think, sir, that we should, as Mr. Root said at that time, discharge our duty " with manliness and decision of character," and if we do not believe in it, if we do not believe in proportional or minority representation — and that we do not was clearly shown by the vote of this Convention yesterday — I say it is our duty to vote down the amendment offered by the President of this Convention. Mr. Root — Mr. Chairman, the Committee on Rules is ready to perform the duty imposed upon it by the Convention. Mr. Bowers — Mr. Chairman, I rise to a point of order Mr. Root — And to enable it to do so, I move that the committee now rise, report progress, and ask leave to sit again. Mr. Bowers — I rise to a point of order. The gentleman from New York is not speaking to any motion. Mr. Root — I made one. Mr. Bowers — When I made my point of order he had made no motion to rise and report. 580 REVISED RECORD. [Thursday, Mr. Root — I have now. I call for the question. The Chairman — The Chair recognizes the fact that the gentle- man has made a motion to rise, report progress, and ask leave to sit again. Mr. Bowers — And I submit now, the point of order — The Chairman — Mr. Bowers has the floor to a point of order, which is always in order. Mr. Bowers — I now make the point of order that when a point of order is made it shall be determined as of the time when made, and the situation shall not be altered by a gentleman making a motion afterwards. The Chairman — The Chair holds that the point of order is not well taken. The Chairman put the question on the motion of Mr. Root, to rise, report progress, and ask leave to sit again, and it was deter- mined in the affirmative. President Choate resumed the chair. Chairman Johnson — Mr. President, the Committee of the Whole have had under consideration proposed constitutional amendment No. 451, entitled to provide for home rule for cities, have made some progress in the same, but have not gone through therewith, and have instructed the chairman to report that fact to the Con- vention, and ask leave to sit again. Mr. Speer — Mr. President The President (Mr. Speer continuing to demand recognition) put the question on agreeing to the report of the Committee of the Whole, and it was determined in the affirmative. Mr. Root — Mr. President — Mr. Speer — Mr. President, may I not be recognized here? The President — The gentleman will be seated. Mr. Speer — I want to be recognized. I have been asking repeatedly to be recognized. I wanted to ask for a roll-call on that. I have a right to be heard, and I arose and addressed the Chair in a respectful manner. I think we might as well kill this proposition now on the calling of the roll, and I ask for a roll-call on the motion to rise, report progress, and ask leave to sit again. The President — If the gentleman does not take his seat the Sergeant-at-Arms will see that he does so. The Chair recognized Mr. Root. August 30.] CONSTITUTIONAL CONVENTION. 581 Mr. Root — Mr. President, the Committee on Rules has instructed me to report to the Convention the proposition that fur- ther debate upon the amendment which is now in Committee of the Whole relating to the affairs of cities, be limited as follows: That thirty minutes further time be allowed for the presentation and dis- cussion of amendments, and that speeches be limited to five minutes; that thirty minutes further time be allowed for the presen- tation and discussion of substitutes, other than the minority report, and that speeches thereon be limited to five minutes; that one hour and a half further time be allowed for the discussion of the substi- tute proposed by the minority report, and that speeches thereon be limited to twenty minutes, and that at the expiration of the time so limited, the vote be taken in the Committee of the Whole. Mr. Veeder — On that I demand, under rule 56, that the matter be laid over till the next legislative day. Mr. Root — Mr. President, I have not yet yielded the floor. Mr. Veeder — The Chair has recognized me. Mr. Root had sat down. The President — The Chair did it by mistake. Mr. Root has the floor and will keep it until he is done. Mr. Root — Upon that report I move the previous question. Mr. Cochran — I demand the ayes and noes. Mr. Bowers — I rise to a question of privilege; that is, I desire to state that the minority members of the committee dissent from that report. Mr. Blake — I further object to the consideration of that rule to-day. The President — Upon what ground? Mr. Blake — And if I am sustained by twenty-four I shall insist that it lie over. The President — On what ground? Mr. Blake — Under the provision of rule 56. Mr. Root — I raise the point of order that the only question now before the House is the roll-call. The President — The Chair rules that, under rule 56, Mr. Blake's point of order is not well taken; that this matter comes under the proviso at the end of that rule, which excludes the matter of the twenty-four votes. The demand for a roll-call made by Mr. Cochran was sustained. The President put the question upon the ordering of the main 582 REVISED RECORD. [Thursday, question on the adoption of the report of the Committee on Rules, and the Secretary proceeded to call the roll. Mr. Blake — Mr. President, I desire to be excused from voting and will give my reasons. I insist, sir, that upon the proper con- struction of rule 56, this roll-call is entirely out of order. I insist that that rule, " all questions or motions authorized by this rule shall be decided at once, without delay or debate," means when it is proper to consider that rule, but being objected to, if the objection is sustained by twenty-four, it must go over for twenty-four hours, until the next legislative day. With that statement, sir, of my con- struction of the rule, which I think to be correct, with all due respect and deference to the decision of the Chair, I withdraw my request, and vote no. Mr. Bowers — Mr. President, I dissented from this report because, while the subject has been very fully discussed, I feel that there ought to be a little more time given to the discussion of a minority report. Feeling, however, that after three days' discussion has been had, the time has arrived when it is fair to vote upon these questions, I should not have been inclined to press at any great length, the opposition to the report in the form in which it came. I expect at the hands of this Convention reasonable time for debate. I shall take no part in any unnecessary delay at any time; and as I think we may dispose of this question and get ahead with the work, I shall vote aye. Mr. Cochran — Mr. President, I desire to say, sir, that I would have voted for any rule which will place any reasonable limit on the debate of this question, and I had even so agreed with several of the members of the minority of this Convention; but I submit, sir, that when a rule is brought in in the manner in which this was, when a gag is put on the minority of this Convention, when mem- bers are not recognized on the floor when they are entitled to it, it behooves the manhood of every member on this floor to stand up and vote against it, sir, and I vote no. Mr. Goeller — Mr. President, I desire to be excused from voting and to explain my reasons. I am actuated by the belief that if we delay progress much further upon this subject, we will be thrown into considerable confusion, and we will impair the consideration of other weighty matters to come before the Convention hereafter. For that reason, Mr. Chairman, I withdraw my request to be excused from voting, and vote aye. Mr. Mulqueen — Mr. President, I hope that the impression that was made upon us on the opening day of this Convention will not August 30.] CONSTITUTIONAL CONVENTION. 583 be forgotten, when our President said, and I believe that in the discussion, consideration and decision of the great questions of policy and principle that should come before us, we should not be actuated by any partisan spirit whatever; fearing, Mr. President, that we are, but hoping that the inability of the President to see Democrats on the floor, when they seek to exercise their privileges, will not continue to the end of this Convention, I am willing that the debate should be limited, and shall, therefore, vote aye. Mr. Peck — Mr. President, I desire to explain, in a very few words, my vote. I do not wish my vote to be construed as favoring or approving the methods by which this vote has been reached; at the same time I do not wish to in any way impede the work of this Convention, and I, therefore, vote aye. Mr. Smith — Mr. President, I would like to explain my vote. I think that consistency is more important than pace in this Con- vention, and I believe that every delegate here has an equal right (laughter), and I will add, a natural right (laughter) to be recog- nized and to express his opinion. I have observed in watching this debate that it has been a compound; that no method has been observed, no analysis observed, but that judicial officers and execu- tive officers and representatives, so far as respects minority have all been mixed up in a compound and thrown at the Conven- tion together, and the result is that the minds of the delegates are more or less confused. The human mind is so constituted — The President — Will Mr. Smith please confine his remarks to the subject which is within the rules, explaining his vote. Mr. Smith — Yes, Mr. President, if I am beyond the limited time I will stop. The President — Not at all; but within the limit allowed, gentle- men should confine themselves to the question. Mr. Smith — The human mind is so constituted that it cannot see clearly and distinctly more than one thing at a time, and if you confuse it by a great mass of compounds, you do not act with con- sistency. I am in favor of more time to discuss this thing than the committee have allowed, and I vote no. Mr. Veeder — Mr. President, I desire to explain why I shall vote as I intend to vote. Firstly, I do not desire to delay one minute further the consideration or the closing of the debate on the cities article. If we do not understand it at this time, we never will. But I do believe, sir, that if there are any rules of this Convention they should be observed by all of us. Rule 56 entitles any delegate who objects to the consideration of a report of the Committee on Rules, 584 REVISED RECORD. [Thursday, if his objection is sustained by putting it to a vote, to lie over for one legislative day, as I read it. Now, the Chair declined to recog- nize me to make that objection, but The President — The Chair did not decline to recognize Mr. Veeder, and did not see him. Mr. Veeder — That is peculiar, because he called me by name. The Chair mentioned my name, and then recognized Mr. Root. But no matter, we will not quarrel about that. I submit that if we act fairly in these matters, we will reach a clear conclusion on all subjects. I vote no. Mr. Bush — Mr. President, I ask the privilege of explaining my vote. I am in favor of limiting debate in the manner proposed by the Committee on Rules. For the purpose of the precedent I have taken the interpretation of rule 56 placed upon it by the Chair. Rule 56 provides that any member may object to a report of the Committee on Rules, and if the objection is sustained by twenty- four members, the consideration thereof shall lie over for one day. Mr. Blake objected to a consideration and was ignored, and the question decided immediately. A member was recognized, and the Chair overruled his objection. That ruling was entirely wrong, if the rule means anything. A report of the Committee on Rules may be presented at any time, but if the consideration of the report is objected to by any member, and sustained by twenty-four others, it must lie over for one day. That is the only protection that the minority have. Otherwise, the chairman of the Committee on Rules can do absolutely as he pleases in reference to debate in this Convention, and there is no way on earth to stop it. I vote aye upon this question. Mr. Veeder — Mr. President, I make the point of order that, under rule 56, upon the coming in of a report of the Committee on Rules, and being under consideration, the previous question is not in order. The President — The Chair holds that the point is taken too late, that it is not in order, and not well taken. The call of the roll being completed, the President announced that the previous question was ordered by the following vote : Ayes — Messrs. Ackerly, Allaben, Arnold, Baker, Barhite, Bar- num, Barrow, Becker, Bigelow, Bowers, Brown, E. A., Burr, Bush, Cady, Carter, Cassidy, Church, Clark, G. W., Coleman, Cookin- ham, Countryman, Crosby, Danforth, Davies, Davis, Deady, Dean, Dickey, Doty, Durnin, Emmet, Floyd, Foote, Forbes, Frank, Augustus, Fuller, C. A., Fuller, O. A., Galinger, Gibney, Giegerich, August 30.] CONSTITUTIONAL CONVENTION. 585 Gilbert, Goeller, Goodelle, Hawley, Hedges, Herzberg, Hill, Hirschberg, Holls, Jacobs, Jenks, Johnson, I. Sam, Johnson, J., Johnston, Kellogg, Kerwin, Kimmey, Kinkel, Kurth, Lauter- bach, Lester, Lewis, C. H., Lewis, M. E., Lyon, Manley, Marshall, Maybee, McArthur, McCurdy, McDonough, Mclntyre, McKins- try, McLaughlin, C. B., McMillan, Mereness, Moore, Morton, Mul- queen, Nichols, Nicoll, Nostrand, O'Brien, Ohmeis, Osborn, Parker, Parkhurst, Peck, Phipps, Platzek, Pool, Porter, Powell, Pratt, Putnam, Redman, Roche, Root, Sandford, Spencer, Spring- weiler, Steele, A. B., Steele, W. H., Storm, Sullivan, T. A., Tekulsky, Tibbetts, Truax, C. H., Vedder, Vogt, Wellington, Whitmyer, Wiggins, Woodward, President — 1 14. Noes — Messrs. Banks, Blake, Campbell, Cochran, Davenport, Deyo, Gilleran, Green, A. H., Green, J. I., Holcomb, Hottenroth, Marks, McLaughlin, J. W., Meyenborg, Parmenter, Peabody, Rogers, Smith, Speer, Tucker, Veeder — 21. The President — The question is now on the adoption of the rule proposed by the Committee on Rules, prescribing a limit to debate on the cities article. Mr. Bowers — Mr. President, I have an amendment I would like to offer. The President — The previous question has been ordered, and the gentleman is too late, for that reason. The President put the question on the adoption of the rule pro- posed by the Committee on Rules, and it was determined in the affirmative. Mr. C. B. McLaughlin — Mr. President, I offer the following resolution: The Secretary read the resolution as follows: R. 1 88. — Resolved, That the Committee on Rules be instructed to report a rule changing or modifying rule 57 so that the ayes and noes cannot be taken on a question or proposition unless by request of twenty-five members. Mr. McLaughlin — Mr. President, upon that I move the previous question. Mr. Bowers — Mr. President, I make the point of order that that has to go to the Committee on Rules. The President — The Chair so holds. Mr. Root — Mr. President, I move that we now go into Com- mittee of the Whole on the general order under consideration. 586 REVISED RECORD. [Thursday, Mr. Vedder — Has the resolution of Mr. McLaughlin gone to the Committee on Rules, Mr. President? The President — Yes. Mr. Vedder — I move that the Committee on Rules be discharged from the further consideration of that motion, and that it be reported forthwith. Mr. Cochran — I object, Mr. President. Mr. Bush — Mr. President, the motion of the gentleman from Cattaraugus is not in order, we not being under the head of reports of committees. That is the only place where a motion to discharge a committee can be made. The President — The Chair does not so understand. Mr. Yed- der's motion is in order. Mr. Vedder — Mr. President, I move the previous question upon my motion. Mr. Bowers — Mr. President, I make the point of order that you cannot by this means avoid the effect of rule 56, that on the objec- tion of twenty-four members no report from the Committee on Rules shall be considered until one day has elapsed. The President — The gentlemen evidently do not understand the motion of Mr. Vedder, which is to discharge the Committee on Rules from the consideration of the matter which has been sent to- them, and that it be taken up for consideration by the Convention, and upon that Mr. Vedder moves the previous question. Mr. Cochran — Upon that, Mr. President, I call for the ayes and noes. Mr. Cochran's call was sustained. The President — Gentlemen, as their names are called, who are in favor of Mr. Vedder's motion for the previous question made by him will say aye, and those opposed will say no. The Secretary proceeded to call the roll. Mr. Bush — Mr. President, I ask permission to explain my vote. I protest against changing the rules in this ill-considered manner. The rules are made for the protection of minorities, and for the regularly and orderly conduct of the business of this Convention; and the very first time that any conflict arises, the majority instead of referring the matter to the Committee on Rules, who are, by this Convention, selected to consider all those matters, attempts to change the rules of this Convention without even five minutes debate on the proposed change. That is abso- August 30.] CONSTITUTIONAL CONVENTION. 587 lutely unheard of, and partisanship run mad. The simple fact that this provides for an increase of only ten members upon the question of calling for the ayes and noes is of no consequence. It is the pre- cedent you are establishing here, which, within two weeks, will probably tear the rules of this Convention all to pieces, if you are going to adopt this method. Ordinarily you cannot change a rule of any body except by a two-thirds vote, but that was overlooked1 in this Convention. Mr. President, I protest against this method; of procedure, and that is all I can do, because we are in a tremen- dous minority here. I vote no. Mr. Cookinham — Mr. President, at last the lion, or the tiger rather, has crawled out from under the ass's skin, and I have been surprised that the gentlemen who sit upon this side of the House have so long been deceived by the ass. I vote aye. Mr. Hottenroth — Mr. President, during the session last night, and the entire session of this morning, we discussed very deliber- ately the question as to whether minority representation is the proper thing in cities. If it is the proper thing in cities, I think it ought to be the proper thing in this Convention. The Republicans have taken that position on this question, and I believe that at this time we can express a wish to have at least minority representation. The previous question is moved on a demand or a limitation of time; time, I might say, that has taken up on the other side of the House discussing the question as to what extent of liberality they should exercise toward cities; that time was taken up by them, and if it is the purpose now to limit the minority in discussion, that is the only power we have; and if you believe in minority rule or in minority rights, give us that right now, or at least a part of it. Mr. Mulqueen — Mr. President, I am proud in the recollection that I opposed the adoption of this particular rule. I remember how eloquently the gentleman from New York, Mr. Bowers, told the minority of this Convention that he wanted to be supported, because by that report the minority would be protected in their rights. Now, Mr. President, this is the beginning of the end of all deliberations; and you are turning this body from a Constitu- tional Convention into a political convention. You may do it if you will; make your Constitution a partisan measure, and ask the conservative people of this State to change their fundamental law simply to oblige the Republican party. I vote no. Mr. Platzek — Mr. President, I will hardly be accused by the gentlemen of the majority of having attempted to impede in any way the progress of the work here, either by indulging in long 588 REVISED RECORD. [Thursday, speeches or by absenting myself from the Convention at any time. The record will show that, on each occasion when adjournment was asked for, or when the work of this Convention was to be pro- gressed, I voted with the gentlemen of the majority. I did it under the assumption that every man here on his oath was as fair and conscientious in the discharge of his duty as I believe I have been and still hope to be. When I voted for the adoption of the rule I did it under the assumption that the majority would not deprive us of the only protection that we had under that rule. I regret most exceedingly that the suggestion has come from the gentleman from Cattaraugus (Mr. Vedder) for the purpose of depriving us of the only safeguard we have, and with that view, and feeling as I do, I for the first time since I have been a member of this Convention, will vote no on a proposition of this kind. Mr. Root — Mr. President, I wish to explain my vote. I have sat here day after day and week after week, and have seen gentle- men who have called themselves of the minority of this House, calling for the ayes and noes upon questions, the decision of which was not in the slightest degree in doubt, solely for the purpose of obstructing and delaying the proceedings of this Convention; and while there are among the gentlemen, who call themselves of the minority, many who are doing their full duty, I believe a majority of them are doing their full duty, in endeavoring to secure the effective work of this Convention, I believe it is our duty now to see that a factious minority of the minority shall no longer frustrate the will of the people of this State that we shall revise and amend this Constitution. For that reason, sir^ I am in favor of so chang- ing this rule in accordance with regular parliamentary procedure, that while the minority so-called shall, if they wish, call for the ayes and noes, factious opposition and delay will be rendered more diffi- cult than it is now. Mr. Smith — Mr. President, I wish to explain my vote. We are now having an object lesson of what is meant by minority repre- sentation. It is made manifest that it is meant that the minority shall be called into a convention or an assemblage for the purpose of being gagged and choked, and, therefore, I vote no. Mr. Tekulsky — Mr. President, I desire -to explain my vote. I am opposed to this motion because it is continually making changes in the rules, and it is very hard for the delegates here at present to understand them. I myself am opposed to any delay. I have voted every time with the people here who have desired to progress the work of this Convention, but in this case I am opposed to this August 30.] CONSTITUTIONAL CONVENTION. 589 measure, because I think that you will find it has not been the minority that has always called for the ayes and noes. I deplore the fact that a few moments ago the ayes and noes were called on a question that was unnecessary, and I am recorded as voting against it at the time. I do not believe that it is a proper time now to change the rules, as they have been used here from the day we adopted them up to the present time, and I, therefore, vote no. Mr. Vedder — Mr. President, I ask to be excused from voting. The resolution introduced by the gentleman from Essex (Mr. McLaugh- lin) was entirely proper. The motion which I made after it had been referred to the committee was entirely proper, and one that can be made at any time, to discharge any standing committee from the further consideration of any matter which may have been referred to such committee, and we are proceeding in order. The minority upon this floor, whoever they may be, have rights, and the majority have rights, and we are simply asserting the rights of the majority. The majority rule by their votes. The minority have the right to vote, which they exercise. The majority have the right to vote, and they exercise that right, and the result will be declared by the President. Everything has been in order, as it shall continue to be in order, so long as I sit in this Convention and have a voice in these proceedings. No one can object to it. The minor- ity have not an exclusive right here, a right which they may demand, to take up the time of this Convention by talking. The gentleman from New York (Mr. Cochran) opposed the rule a mom- ent ago by saying it was a gag law upon the minority, shutting off debate. Mr. Cochran — He repeats it. Mr. Vedder — Well, if he confesses that the stream of what the senior Senator from New York has called " yawp/' has proceeded from that side, and it is a gag upon them, let them be gagged awhile as we have been gagged sometimes. I withdraw my request, and vote aye. Mr. Veeder — May I ask the gentleman a question? The President — The Chair holds that questions are out of order while the roll is being called. Mr. Veeder — I desire to explain my vote. I deny the right of any gentleman in this Convention to impugn the motives which govern us in our action. Mr. Root has no right to say to any dele- gate here that he is acting improperly. I have called for the previ- ous question myself on occasions. I have not occupied the time of this Convention verv much in debate. Mv friend from Cattarau- 590 REVISED RECORD. [Thursday, .gus has occupied more time in debate, as he called it, than any other member on the floor. But, sir, I have called for the ayes and noes here, not for delay, only that the people may know throughout the State how gentlemen vote upon certain propositions, and for those reasons, we have a right to the ayes and noes. If the gentle- men desire to impose upon the people of the State improper meas- ures in the organic law, let them be willing to go on the record that we may tell the people how they voted, and not go home and plead that they did not vote so, or that some one is mistaken in his assertion. Let them go on the record on every proposition. It will not take any very great amount of time. I vote no. Mr. Moore — Mr. President, I desire to explain my vote on the question. We have been now about nine days on the cities article. Mr. Johnson (I. S.) himself sat in the chair seven days, and I must say that while I do not impute to Mr. Johnson a desire to be more favorable to the minority than to the majority, I must say that the Record will show that he recognized them two to one, and, there- fore, I cannot see that the minority have anything to complain of in the passage of such a rule as this. I vote aye. The previous question was ordered by the following vote: Ayes — Messrs. Abbott, Ackerly, Allaben, Arnold, Baker, Barhite, Bafnum,'Barrow, Becker, Brown, E. A.,, BVown, E. R'., Cady, Cassidy, Church^ Clark, G. W., Cookinham, Countryman, Crosby, Davies, Dean, Dickey, Doty, Floyd, Foote, Frank, Augustus, Fuller, C. A., Fuller, O. A., Galinger, Gibney, Gilbert, Goodelle, Hamlin, Hawley, Hedges, Hill, Hirschberg, Holls, Jacobs, Johnson, I. Sam, Johnson, J., Johnston, Kellogg, Kinkel, Kurth, Lauterbach, Lester, Lewis, C. H., Lewis, M. E., Lyon, Manley, Marshall, McArthur, McDon- ough, Mclntyre, McKinstry, McLaughlin, C. B., McMillan, Moore, Morton, Nichols, Nostrand, O'Brien, Parker, Parkhurst, Phipps, Pool, Porter, Powell, Pratt, Putnam, Redman, Root, Spencer, Springweiler, Steele, A. B., Steele, W. H., Storm, Sullivan, T. A., Tibbetts, Vedder, Vogt, Wellington, Whitmyer, Wiggins, Wood- ward, President — 86. Noes — Messrs. Banks, Bigelow, Blake, Bowers, Burr, Bush, Carter, Cochran, Coleman, Danforth, Davenport, Deady, Deyo, Durnin, Emmet, Giegerich, Gilleran, Goeller, Green, A. H., Green, J. I., Herzberg, Holcomb, Hottenroth, Jenks, Kerwin, Kimmey, Marks, Maybee, McLaughlin, J. W., Meyenborg, Mulqueen, Nicoll, Ohmeis, Osborn, Parmenter, Peabody, Peck, Platzek, Roche, Rog- ers, Sandford, Smith, Speer, Sullivan, W., Tekulsky, Towns, Truax, C. H., Tucker, Veeder, Williams — 49. August 30.] CONSTITUTIONAL CONVENTION. 591 The President — The question now is on Mr. Vedder's motion that the Committee on Rules be discharged from the further con- sideration of the resolution (No. 188) offered by Mr. C. B. McLaughlin, relating to the modifications of rule 57, that it be considered forthwith, and on that he moved the previous question. Mr. Cochran — I desire to debate that, and under rule 50 it will 'have to lie over one day. The President — The previous question has disposed of that point; besides it is not well taken, because it relates to the disposition of business before the Convention, the business of this day and every other day. Mr. Cochran — Will the President allow me? I submit that the previous question was only on the question as to whether or not the Committee on Rules should be discharged from the further consideration of the proposed rule. The President — Mr. Cochran, this is not debatable. The previ- ous question is ordered, and there is nothing to be done but to have the motion put. Mr. Bowers — Mr. President, I rise to a point of order. That resolution as it now reads differs from the statement made, undoubt- edly in error, when I called attention before to rule 56. That reso- lution, as now read, requires this Convention to act forthwith on such report. That cannot be done without a direct and intentional violation of the provisions of rule 56. The President — The previous question has been ordered, and the Chair has no alternative but to put the question. It is not debatable or the subject of discussion. Mr. Bowers — May I finish the statement of the point of order? The President — The point of order is overruled. Mr. Bowers — Before it is stated? The President — Well, you stated it once. Mr. Bowers — Well, it is just as well, perhaps. The President — If you wish to state it again, you may do so. Mr. Bowers • — I have not yet stated it. If you will allow me, I will state it. The President — Very well, you may state it. Mr. Bowers — The rule reads that it will be in order to call up for consideration at any time, a report of the Committee on Rules. Any member may object to its consideration until the next legisla- tive day, and if sustained by twenty-four other members, considera- 592 REVISED RECORD. [Thursday, tion shall be so postponed, but only once. The previous question has been ordered, but the rule prevents the motion from being put if it has the effect which it unquestionably has in the way it is worded. The President — The point of order is not well taken, for this reason, that this is not a calling up, in any sense, of a report of any Committee on Rules or anything else. It is simply a motion to discharge the Committee on Rules from the consideration of a mat- ter that has been referred to them, and that it be considered forth- with by this Convention. Mr. Cochran — On that I call for a division. The President — There is nothing to divide upon. Mr. Cochran — Will the Chair pardon me? There are two ques- tions. First, shall the Committee on Rules be discharged; second, shall it be considered forthwith? The President — The previous question has been ordered on the resolution as it stands, and the question now is: shall this resolu- tion offered by Mr. Vedder be adopted? Mr. Cochran — I ask for a division of the question. The President — It is too late. Mr. Bowers — I ask for the ayes and noes. The ayes and noes were ordered, and the Secretary proceeded to call the roll. Mr. Bowers — Mr. President, in my judgment, this is a mere evasion of rules under which we should have been permitted pro- tection until by proper action of the Convention they had been changed. It is perfectly true that the opposition to-day shows the propriety of the course of the Committee on Rules, and shows that they gave protection which is now sought to take away from them, and that without the slightest consideration as to what is granted by the rules th< mselves. The whole intent of these rules was, that every motion of this nature should go to the Committee on Rules, and by it be reported, and that one day's time should be given to the minority, if they opposed a change in the rules, to be heard. That is deliberately thrown to the winds, and the Convention pro- ceeds to rob them of a protection which is theirs by right, until on a proper vote it has been taken from them. If you had proceeded in the regular order, and changed the course of procedure from fifteen to twenty-five who could demand a call, we might have com- plained, but we could not feel as we feel now, that you pay no atten- tion to the rules, and deliberately deprive us of such parts of the August 30.] CONSTITUTIONAL CONVENTION. 593 rules as is for our benefit, while you retain for the advantage of the majority those parts which are beneficial to them. It would have been very little to have allowed this to stand until to-morrow morn- ing. You could have carried the vote through just as well to-mor- row morning as now, if it was found essential in the further inter- ests of this Convention to make the change from fifteen to twenty-five. But, by what I cannot characterize as other than a device, it is proposed now to break down our solemn rules. We can only accept it as a statement from the majority that hereafter the rules and protection, and order and decorum of this Convention are to be thrown to the winds, as they deem best for their own interests. I deprecate the situation. I regret that you will not wait to change this rule until to-morrow morning, and thus have some pretense of obeying the rules. You can do just as you like. We cannot prevent it. It may just as well be understood that if we proceed on such a course as this, this Constitutional Convention as a deliberative body has ceased to exist, but we are directed sim- ply by the votes of the majority. I vote no. Mr. Cassidy — Mr. President, I think very highly of the minority in this Convention. It is composed of sixty odd members. The work of that minority has been impeded by fifteen or sixteen mem- bers, and inasmuch as this resolution merely asks that a respectable number of the minority may call for the ayes and noes, I wish to vote for this resolution in their interests. Here are sixty of them. Many of them, I believe, are in a hurry to discuss these questions, but a small faction of fifteen impede the work of the minority, and I wish to have the work of the minority hastened. Therefore, I vote aye. Mr. Cochran — Mr. President, the gentleman from New York (Mr. Root) has seen fit to characterize those members of the minor- ity who have called for the ayes and noes as a factious minority. Now, I, for one, sir, have frequently called for the ayes and noes, and not for the purpose of delaying or obstructing the business of this Convention, and no one better than the gentleman himself knows it. I am afraid, however, that there is a tendency to con- sider that every member of the minority is factional and desires to be an obstructionist, if he does not agree with certain views of cer- tain gentlemen of the majority. I, for one, have not always agreed with the views of the gentlemen of the majority, and I desired to have them put their views on record and to let the people know how they voted on certain subjects, and have for that reason 38 594 REVISED RECORD. [Thursday, requested the ayes and noes. If the gentleman from New York knows of any case where I have obstructed the business by calling for the ayes and noes, I demand of him that he point it out, or otherwise exclude me from those he has designated in general terms. I also submit here that my point of order which I made a moment ago, that this was divisible, was a proper point of order, but like many others that the minority have made to-day, it was overruled. I call the attention of the Chair to the rule which provides — The President — That has nothing to do with your reason for your vote. Mr. Cochran — I am explaining my vote. Rule 55 provides that if any question contains several distinct propositions it shall be divided by the Chair at the request of any member. I submit, sir, that there were two propositions involved. The first was that the Committee on Rules be discharged; the second was that we con- sider it forthwith. If there are not two propositions, separate propo- sitions, embodied in that resolution, there never will be two in this Convention. The President — That would have given the gentleman (Mr. Cochran) an opportunity to call for the ayes and noes again. Mr. Cochran • — I might have done it, as I have done heretofore, if I considered it proper. The Chair well knows that I have never called for the ayes and noes under any other circumstances. Mr. Hottenroth — Mr. President, the idea of minority representa- tion, as we have it suggested now, seems to indicate this principle, that wherever the majority and the minority agree, the minority can have its way; but I think when the majority desires to have its way, they ought to at least be willing to be recorded, and that at the suggestion of fifteen members. I vote no. Mr. Kellogg — I wish to explain my vote, and the reason is that the minority yesterday voted against minority representation, so we are giving them what they want. I vote aye. Mr. Maybee — Mr. President, I desire to explain my vote. I have no desire to offer any factious opposition to the progress of the work of this Convention. I think my course in the Convention hitherto is evidence of that fact. The number fifteen is a larger number than is required in almost any legislative body that I know of, to sustain a call for the ayes and noes. In many of the State Legislatures only one member is necessary to sustain that call. In some of the other States, only five, and so far as my observation has extended, ten is the largest number in almost any legislative August 30.] CONSTITUTIONAL CONVENTION. 595 body that is required to sustain a call of that kind. It seems to me, judging by the procedure of other legislative bodies and the history of legislation generally, there is no good reason why any such proposition as this should be adopted. I, therefore, vote no. Mr. C. B. McLaughlin — Mr. President, I desire to be excused from voting, arid will state my reasons. If any illustration is needed why this resolution should be adopted, it has been made manifest in this House this morning. The discussion relating to the cities has now progressed here for nearly six days, until nearly every member in this body, irrespective of party, no matter what they may think upon the proposition, has reached a conclusion that we should finally vote. And yet a few of the minority, for the purpose of delay, when their own party does not sustain them, can obstruct these proceedings and call for the ayes and noes. For what? To take up time. Nothing else, as it seems to me, and it furnishes one of the best illustrations why the number should be increased to twenty-five. That cannot hurt the minority. You have a much larger number than that, if the time comes when the question shall be taken by the ayes and noes. It would be a strange proposition if you could not get twenty-five of your own members to support you. If you cannot get twenty-five, then the delay should not be had. I withdraw my request, and vote aye. Mr. Mereness — Mr. President, it was whispered about here in the early stages of this Convention, that the only hope of the Democ- racy of this State was that the Republicans, who are in the majority in this Convention, might make such a mistake that at the fall elec- tions the Democracy would have a slight possibility of success at the poll. I am very glad to say that up to within a very few days the deliberations of this body have proceeded regularly and in order, but the proceedings during this week have b£en sufficient to satisfy any fair-minded man that something must be done in order to facilitate the proceedings of this body. Whether the advent in this city of the gentleman whose birthday was celebrated yesterday had anything to do with the uneasiness that has been manifested by the so-called minority during the present week, of course, I am unable to say. While I regret that it has been necessary to resort to so forcible measures to facilitate the proceedings of this Conven- tion. T feel compelled to vote aye on this question. Mr. Platzek — Mr. President, I desire to explain my vote. I have no objection to increasing the number necessary to call for the ayes and noes, but I do protest most earnestly against the man- ner in which we are compelled to take that dose at the hands of the 596 REVISED RECORD. [Thursday, majority. There would have been no harm if this proposition had gone to the Committee on Rules, and they had reported it here in the morning. I am convinced that they would have been unani- mous upon it. It is undue, unseemly, unjust haste, and I am obliged to dissent therefrom. The only object of calling for the ayes and noes is to stop the members of this Convention from going through that door when they are too afraid or too cowardly to go on record on any question, whether it be corporate or labor, or otherwise. It has been suggested by my friend, Mr. Mereness, that probably the celebration of a birthday yesterday might have had something to do with it. I will say for myself, that the advent, of the senior Senator of the State of New York to this community has added a large amount to the average brains that exist here. I vote no. Mr. Smith — I object to the making of a new law to cover a case after it has arisen. The laws should be made to govern cases as they arise, and not after they have arisen. My reading of history has told me that the making of laws to meet particular cases partakes of despotism. It is the way that despots conduct government. In all liberal governments, laws are made to govern the masses of the people. Their transactions are to be adjudged- by those general laws. Now, I object to waiting until a case arises, and then making a law to fit the case. If that mode is proceeded with, we shall only be delayed more, in objecting to that irregular way of proceeding, than we will to go along the regular way. I vote no. Mr. Tekulsky — Mr. President, I deplore the position that we are compelled to take in this matter by having every person ready to call for the ayes and noes. I do not believe that it is right for the gentlemen to call for the ayes and noes except on important questions. I do not desire to help any one to delay the proceedings of this Convention, but I am opposed to the continual changing of the rules. I believe that the ayes and noes should be called only on very important questions, where delegates desire to go on record, and I do not believe that on every trivial question that comes before this Convention, some\ one should rise and demand the ayes and noes. It is easy to tell whether a majority are for or against it. I am opposed to the continual changing of rules. I, therefore, vote no. Mr. Veeder — Mr. President, I desire to explain my vote. I submit that this resolution for this change in the rule is wholly unnecessary. As Mr. McLaughlin says, we can obtain twenty-five August 30.] CONSTITUTIONAL CONVENTION. 597 members for the ayes and noes as well as we can fifteen. The true rule should be in excess of the number of Democrats on the floor. If there are sixty, you ought to make it sixty-one necessary to call for the ayes and noes. I vote no. Mr. Vedder's motion was adopted by the following vote: Ayes — Messrs. Ackerly, Allaben, Arnold, Barhite, Barrow, Becker, Bigelow, Brown, E. A., Cady, Cassiciy, Church, Ciark, G. W., Cookinham, Countryman, Crosby, Davies, Davis, Dean, Dickey, Doty, Floyd, Frank, Andrew, Fraser, Fuller, C. A., Fuller, O. A., Gallagher, Gibney, Gilbert, Goodelle, Hamlin, Hawley, Hedges, Hill, Hirschberg, Holls, Jacobs, Johnson, I. Sam, Johnson, J., Johnston, Kellogg, Kinkcl, Kurth, Lester, Lewis, C. H., Lewis, M. E., Lyon, Mauley, Marshall, McArthur, McDonough, Mclntyre, McKinstry, McLaughlin, C. B., McMillan, Mereness, Moore, Mor- ton, Nichols, X*ostrand, O'Brien, Parker, Parkhurst, Pashley, Phipps, Pool, Powell, Pratt, Putnam, Redman, Root, Spencer, Steele, A. B., Steele, W. H., Tibbetts, Vedder, Vogt, Whitmyer, Wiggins, Woodward, President — 80. Noes — Messrs. Banks, Blake, Bowers, Burr, Bush, Campbell, Chipp, Jr., Cochran, Danforth, Davenport, Deyo, Durnin, Emmet, Forbes, Giegerich, Gilleran, Goeller, Green, A. H., Green, J. I., Herzberg, Holcomb, Hottenroth, Jenks, Kerwin, Kimmey, Marks, Maybee, McLaughlin, J. \Y., Meyenborg, Mulqueen, Xicoll, Ohmeis, Osborn, Parmenter, Peabody, Peck, Platzek, Roche, Rog- ers, Sandford, Smith, Speer, Tekulskv. Towns, Truax, C. H., Tucker, Veeder, Williams — 48. Mr. McLaughlin — I now move the adoption of the resolution introduced by myself, and on that I move the previous question. Mr. Bowers — 1 renew the point of order which I stated a few moments ago, under rule 46, that this cannot now be considered. The President — The Convention has ordered it to be consid- ered forthwith. The gentleman's point of order is not well taken. The question is on Mr. McLaughlin's motion. The President put the question on Mr. McLaughlin's motion, and, by a rising vote, it was determined in the affirmative — ayes, 77; noes, 44. The President - — In view of the offensive and disorderly remarks made by several gentlemen in explaining their votes, the Chair will now state his construction of rule 56. and the grounds for it. The proposition that any member may object to a consideration until the next legislative day, and if sustained by twenty-four other mem- 598 REVISED RECORD. [Thursday, bers the consideration shall be so postponed, but only once, relates to a calling up for consideration a report from the Committee on Rules, which was not the matter before the House. The matter before the House arose under the proviso which excludes that par- ticular feature. It is provided that when ordered so to do by the Convention, when a standing committee shall make a report on a constitutional amendment or other subject, the Committee on Rules shall report a rule limiting the time for debate. Now, the proposi- tion here was, there was a report from a standing committee, the Committee on Cities, under discussion, and an order was made directing the Committee on Rules to report an order for debate. It was wholly independent of the previous part of the rule. The Chair took pains to consult with Mr. Bowers, the learned leader of the minority, upon the question, who fully concurred with him, before the ruling was made. Mr. Root — I move that the Convention now go into Committee of the Whole on general order No. 13. Mr. Bowers — I did not hear what the President said. I under- stand you to say that I concurred in the report that you made this morning as to rule 56? The President — I said that Mr. Bowers concurred in the ruling. Mr. Bowers — I protested at the time it was made on the floor of the House. The President — Not only concurred in the ruling, but asked the Chair to make it, and explained to him the entire reasonableness and rightfulness of it. The Convention took a recess until three o'clock. AFTERNOON SESSION. Thursday Afternoon, August 30, 1894. President Choate called the Convention to order at three o'clock. The President — Before the pending question is taken up, the Chair desires to make a statement, which is certainly due to Mr. Bowers, in reference to a misinterpretation which has been put upon a statement made by the Chair just before recess. The state- ment made by the Chair referred exclusively to the operation of rule 56, or the construction of it as had been claimed in reference to the order brought in by the Committee on Rules by direction of the Convention for limitation of the debate on the pending cities bill. August 30.] CONSTITUTIONAL CONVENTION. 599 It was in reference to that point alone that the Chair made any statement whatever. The conversation that Mr. Bowers referred to was in reference to that alone, and the colloquy that took place between the Chair and Mr. Bowers was in reference to that alone. I have read, or heard read by the stenographer, the actual words that were uttered. I understand, however, that it has been con- strued by some members, perhaps many, as imputing to Mr. Bow- ers inconsistent conduct in reference to the point he made. No such suggestion was made, or intended to be made, nor could have been made, because the position taken by Mr. Bowers upon the floor was entirely consistent with what had occurred between him and the chairman previously. His point referred to Mr. Vedder's motion. Mr. Vedder's motion was as unexpected to the Chair as it was to Mr. Bowers. Mr. Bowers's point was that under the oper- ation of rule 56, Mr. Vedder's motion would necessarily have to go over on his complaint or his demand, for a day. It was in reference to that alone that Mr. Bowers spoke upon the floor, and the Chair had no intention of suggesting any inconsistency whatever. Per- haps the Chair was a little in error or out of parliamentary order himself in calling the attention of the Convention to anything that had taken place between himself and a member before the meeting and in committee, and if so, he extends to Mr. Bowers his full apol- ogy for it. (Applause.) Mr. Smith — Mr. President, I would like to be excused from attendance on Saturday and Monday next. The President put the question on the request of Mr. Smith to be excused, and he was so excused. Mr. Roche — Mr. President, I ask leave of absence from the sessions of Saturday and Monday morning. The President put the question on the request of Mr. Roche to be excused from attendance, and he was so excused. Mr. Bigelow — Mr. President, I regret to be obliged to ask to be excused to-morrow and Saturday, to attend the funeral of a valued friend in a neighboring State. The President put the question on the request of Mr. Bigelow to be excused from attendance, and he was so excused. Mr. Hottenroth — Mr. President, I desire to present the minority report, if in order, of the Committee on Canals, and ask that it be printed and placed on the files. The President — Mr. Hottenroth presents the minority report of the Committee on Canals, and if there is no objection, it will be 6oo REVISED RECORD. [Thursday, printed and placed upon file, and any delegate can move amend- ments thereto when the report comes up for consideration. Mr. Towns — Mr. President, I desire to be excused until Monday. The President put the question on the request of Mr. Towns to be excused from attendance, and he was so excused. Mr. J. W. McLaughlin — I have a telegram from Mr. McClure, saying that on account of serious illness of one of his children, he is obliged to remain away, and he asks to be excused until the health of his child will permit his return. The President put the question on the request of Mr. McClure to be excused from attendance, and he was so excused. Mr. Johnston — I move that the privilege of the floor be granted to Honorable R. P. Bush, a former Speaker of the Assem- bly of this State, and also to Honorable Archie E. Baxter, of Elmira. The President put the question on the motion of Air. Johnston, and it was determined in the affirmative. Mr. Deyo — Mr. President, I ask to be excused from attendance on Monday next. The President put the question on the request of Mr. Deyo to be excused from attendance, and he was so excused. Mr. Root — If there is no other business of this description, I move that the Convention now go into Committee of the Whole on general order No. J3. The President put the question on the motion of Mr. Root, and it was determined in the affirmative. The Convention thereupon resolved itself into Committee of the Whole, and Mr. I. S. Johnson resumed the chair. The Chairman — The Convention is again in Committee of the Whole on general order No. 13. Mr. Moore — Are amendments in order? The Chairman — Amendments will be in order, but there is an amendment already pending. Mr. Moore — May not a second amendment be offered now? The Chairman — Mr. Moore's amendment may be handed up, but not acted on at present. Mr. Moore — Then I will hand up an amendment to this bill. I move to strike out all the sections of the bill after the first section, and insert in lieu thereof the constitutional article recommended by the Senate Committee on Cities. August 30.] CONSTITUTIONAL CONVENTION. 6ol The Chairman — The gentleman will put his amendment in writ- ing and send it to the desk. The question now before the com- mittee is on agreeing to the amendment of Air. \ eeder to the amendment offered by Mr. Choate. Mr. Lester — Mr. Chairman, when the debate upon the proposed amendment offered by the Committee on Cities began, it was stated by the gentleman from Cattaraugus (Mr. Vedder), that this amend- ment contained seven distinct and independent propositions looking to the better government of the cities in this State. I have sat here in my place and seen one after another of these amendments rejected by this Convention, by the united voice of the Democratic members of the Convention, with the occasional aid of the Republican mem- bers, until, if I mistake not, nothing whatever remains of the original amendment save only the single proposition to divorce general and municipal elections; and this proposition would have shared the fate of all the others had it not been for the confidence of the Democratic members of the Convention in the ability of the Democratic party to maintain its ascendancy in municipal affairs in the city of Xew York, and the added hope that under the influence of this proposition a greater Democratic wave might sweep from Xew York in every even-numbered year over the whole State. Xow, sir, that very reason is a reason why I am opposed to this proposition, standing as it does alone now in the proposed amendment to the Constitution. It is a reason why I never can give my vote to that proposition, standing alone, because I believe that any slight benefit which might accrue to municipalities of the 'State from this proposition would be more than compensated for by the disadvantages that would accrue to all the rest of the State. I have sat here in silence and seen these propositions, one after the other, thrown out of the Convention because they came neither from the city of Xew York, nor from a county that contained a city; and I believed that my duty in the Convention could be best performed by my holding my peace and listening to those who might be presumed to be better qualified to speak on those subjects. But, sir, I have seen this measure, which its promoters a few days ago believed to be a Samson in strength, for the redemption of the cities of the State from the misgovernment of the Philistines slumbering in the lap of the Delilah of conciliation and concession; and I have seen it shorn of its strength, and I have seen it deprived of its sight, and in its present condition, unless some of its virtues be restored by the adoption of some of the amendments which are now pending in the House, it is good for nothing but to be taken to the pillars pf this edifice of municipal reform which the Committee on Cities have striven to erect here, 602 kEVISED RECORD. [Thursday, to the end that it may tumble the whole edifice into ruins, and bury itself forever beneath the wreck. Mr. Goodelle — Mr. Chairman, I desire, for information, to ask Mr. Choate, the proposer of this amendment, a question, if he will permit me. Mr. Choate — Certainly. Mr. Goodelle — On turning to section 10 of article 2 of the Con- stitution I find this language: " Every male citizen of the age of twenty-one years, who shall have been a citizen for ten days and an inhabitant of this State one year next preceding an election, and the last four months a resident of the county and for the last thirty days a resident of the election district in which he may offer his vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere, for all officers that now are or hereafter may be elective by the people." What I desire to ask is, if this proposed amendment be adopted in the Constitution, whether or not the section which I have read will necessarily have to be amended, or, if not, reconstructed in order to fit itself into and make the proposed amendment available? Mr. Choate — In my opinion it would not be, because this would be a special exception to that comprehensive rule applying to all. Mr. Goodelle — But the language here is that " every citizen shall be entitled to vote for all officers that now are or hereafter may be elective by the people." Mr. Choate — I would very much prefer to strike out the word " all," but it seems to me that where two provisions appear in the Constitution, one such as you have read, and one such as the amendment that I have proposed, both must stand together, and it would necessarily be an exception to that rule. Mr. Holls — Mr. Chairman, I did not intend to take up more of the time of this Convention on the question of this amendment. I understand that the direct question before the House is on the amendment to the amendment offered by Mr. Veeder. Am I cor- rect in that? The Chairman — Yes. Mr. Holls — That amendment extends this principle of propor- tional or minority representation to all the cities of the State. There seems to be a feeling that the experiment which is permitted by this section had best be allowed to be confined at first to cities of the first class, and for that reason I think the amendment to August 30.] CONSTITUTIONAL CONVENTION. 603 the amendment offered by Air. Veeder should be voted down. I do not, however, wish to add anything to the argument which I had the honor of making in favor of proportional or minority represen- tation as a permissive method in the Constitution yesterday, except to repudiate the use of one word which has been applied to this entire amendment, and that is the word " un-American." I do not believe that any word in the English language has been so abused in this Convention as the word " un-American," and to me the accusation of favoring or arguing for anything un-American is not trifling. I would not do it consciously or willingly. Xow, sir, according to the idea of Americanism, which seems to obtain on the other side of the chamber, and which I am sorry my friend from Kings supported by his wit and his ability yesterday, the only truly American hen would be one which is hatched from the egg which she had herself laid. It would be utterly impossible to take anything from the other side of the Atlantic, whether good, bad or indifferent, and not have it repudiated by that side entirely. Their idea of American politics seems to be dishonest politics, but, to my mind, sir, it is a thousand times more American and patriotic to try, even in a mistaken way, to work for the decent, the honorable, the honest in politics than to apologize for corruption by attributing it to excess of party zeal. To my mind it is a sad spectacle, if even in jest, so honorable and high-minded a man as my friend from Kings refers to his public services, with reference to his being kept out of jail. I do not believe he is just to himself. I do not believe that American politics necessarily means corruption. If it \vere not — to quote our American Addison, George William Cur- tis— "the American eagle would not be a noble bird, soaring to the sun, but a buzzard, stooping to carrion." I, for one, repudiate that idea. The idea of permitting minority representation in the cities of this State is fairness, rather than politics — nothing more and nothing less. It means that the mere plurality shall not call itself the majority and assume to act accordingly. It means that every man, no matter to what party he belongs, shall be represented in the popular government. Now, nothing could be more truly Democratic, and nothing could be Republican to a higher degree. For that reason, Mr. Chairman, I reiterate the hope that the amendment of the President will be adopted, and that the amend- ment to the amendment will be voted down. Mr. Bigelow — Mr. Chairman, I confess to have been pained at the tenor of a large portion of the remarks to which I have listened. I have been pained to find how much more of passion than of deliberation has been exhibited, and, may I add, without disrespect, 604 REVISED RECORD. [Thursday, how much more heat than light has been manifested. This is a deliberate body, and it is no suitable place for throwing political accusations across the House from one side to the other for partisan purposes. I have not sympathized with it at all on either side, and I do not think that any of us will look back upon this debate with particular satisfaction, so far as it has been infected by this partisan spirit. Now, I did not rise to lecture any of my colleagues exactly, but to say a few words merely upon what seems to be the purpose of the majority of the Convention, politically speaking. They say they want to secure the representation of the minority in the various departments of the government. I wish some members of the House would tell me in what body the minority is not represented in this country. I think it is a great delusion to talk about minority parties not being represented. So far as I am able to understand of the constituents represented in governments, the minorities are always represented for what they are worth. I hear people talking idly about the master's vote being canceled by that of his domestic servant, and about his being overrun and overwhelmed by the votes of people whom he thinks are less enlightened and less intelli- gent as to public affairs. But it is a very great mistake to suppose that the influence of the master's vote is necessarily dispropor- tionate to the vote of those who are inferior to him in intelligence and enlightenment. 1 do not suppose that any one would pretend that the vote of the distinguished President of this Convention is swamped or drowned by the vote of his coachman or groom. He is heard and listened to and respected by thousands of people, while his groom has probably but a single vote. So it is that people who can write have influence through the press. If a person has an argument to present to intelligent people in favor of or against a political measure or man, shall it not have its weight upon those who hear it, and does it not have its weight? It is through those processes that the minority are heard and that the minority are represented. Therefore, to talk about the minority not being repre- sented, and to say that every man's vote is limited simply to the power that he has at the ballot-box, is an entire misapprehension of the whole system of representative government. With the greatest respect for the motives of those who are insist- ing on minority representation, I wish to say that I think they are entirely mistaken about what they are going to accomplish in this way. They profess to wish to secure representation. Practically they are going to disfranchise the people, and, if they succeed, place the power of the government in the hands of a privileged August 30.] CONSTITUTIONAL CONVENTION. 605 class. We have heard that already somewhat explained here. Anybody who will look over the history of the State of New York since the commencement of bi-partisan commissions has been insti- tuted and learn how the process of political deterioration and cor- ruption has gone pari passu with that down to the present time, will be obliged to admit that the moment you take a step to prevent a party being continually and directly responsible for its conduct to its adversaries, that moment you place it at the mercy of the worst class of society. The Chairman — The Chair is very reluctant to inform the gentle- man that his five minutes are up. Mr. Towns — Mr. Chairman, I wish to offer an amendment to section 4. The Chairman — Mr. Towns offers an amendment, but it cannot be considered at this time. Mr. Towns — When may I offer it ? The Chairman — There is an amendment, and an amendment to that amendment, already pending. Mr. Mulqueen — Mr. Chairman, I cheerfully give my time to the gentleman from New York (Mr. Bigelow). I have a right to five minutes under the rule, and I hope that the House will listen to such a distinguished member of this Convention as the gentleman from New York. I have five minutes, which I will use myself, if you decline to let me give the privilege to Mr. Bigelow. Mr. Root — I ask unanimous consent that Mr. Bigelow may have Mr. Mulqueen's five minutes. The Chairman — If there is no objection, the time of Mr. Mul- queen will be granted to the gentleman from New York. Mr. Bige- low will proceed. Mr. Bigelow — I am obliged to the Convention. When I rose to speak I was not impressed with the force of the limitation rule that is in operation. When I took my seat I was saying that this policy practically disfranchises the people; and that the process of deterioration in our politics has gone pari passu with the introduc- tion of bi-partisan commissions, which is another form of what I would call the same disease. There are many gentlemen in this Convention who will, perhaps, remember the- condition of politics in the city of New York in 1868. We then had a board of alder- men in the city of New York elected upon the system of half Republicans and half Democrats. There were six Democrats and six Republicans in the board of aldermen. The leader and head 606 REVISED RECORD. [Thursday, man in the Democratic section was William M. Tweed; the leader on the Republican side was Hank Smith. Now, if any one will take the trouble to analyze the operation of the doctrine of bi-parti- san commissions and of minority representation under the principle of this act, they will find that in its ultimate results it comes exactly to the result which we there witnessed in 1868. Let us have a party that is responsible. If you put a third, or a fourth, or what- ever the number may be, of one party, and the majority of another party together, " a trade " is inevitable. There is nobody respon- sible. The burden is shifted from one side to the other as the emergencies of politics require, and nobody is held to account for what is done. That has been the misfortune of our politics for the last thirty or forty years. It has been this attempt to put things under the control of commissions which were non-partisan, and where neither party could be held responsible for what was done. I believe thoroughly in party government. I should very much regret to see the government administered without party differences and without party discipline, for the very reason that it would be certain evidence that there was not genuine, patriotic political vitality in either party. Mr. A. H. Green — Mr. Chairman, I do not rise to criticise any- body here, nor to remind any one of his duty. I suppose that every gentleman in this Convention understands his duty and expresses himself in the way that seems proper to him. It is not, however, quite agreeable to those here who represent the city of New York to hear their city abused and denounced in terms that, I regret to say, have been heard in this body, nor is it unnatural that such criticisms should be resented with some warmth. Indeed, it would be almost dereliction of duty did any of the members of the city fail to defend the fair fame of those whom they represent. I hope we shall hear no more abuse of the people of that city whose natural advantages are unequaled, either in a commercial, economical or picturesque aspect. It is the pleasure of a lifetime to our friends from the country to come there, and we are always glad to welcome them. I do not propose to enter upon the discussion of this subject of proportional, minority or other methods of representation. That has already been very ably and sufficiently done. I do not believe that it is a remedy for the deficiencies of our city government: and I recognize readily that many improvements may be made. I do not think the remedy which is proposed goes deep enough, and, indeed, I have hardly heard it suggested on this floor. It has been claimed by its advocates that eight hundred thousand of the people August 30.] CONSTITUTIONAL CONVENTION. 607 of the city are not represented at all in our local legislative boards, in fact, that we have no legislative board in any proper sense. We have already had an experiment with minority representation in its largest sense, and I allude to the subject that Mr. Bigelow has already mentioned as not occurring in the board of aldermen, but in the board of supervisors. In a former board of supervisors of the city of New York, consisting of twelve members, the six who had the highest number of votes at the election were selected, and, with the six having the next highest number, being one-half of the whole, made up the board. Here the minority had one full half of the board. The people, who, it is claimed, are not represented — the minority — say, one-third of the electors, were represented in that body by a number equal to the representatives of the other two-thirds of the electors. The result was a history of monumental wrong-doing and corruption. Let this have whatever weight it is entitled to have. The Chairman — The question is on agreeing to the amendment of Mr. Veeder to the amendment offered by Mr. Choate. The Chair put the question on the adoption of the amendment, as stated, and, by a rising vote, it was determined in the negative — ayes, 50; noes, 53. The Chairman then put the question on the adoption of the amendment offered by Mr. Choate, and, by a rising vote, it was determined in the negative — ayes, 53; noes, 55. The Chairman — The question now is on the amendment offered by Mr. Moore, which the Secretary will read. The Secretary — Mr. Moore moves to amend by striking out all after the first section and by inserting instead the amendment to the Constitution recommended by the Senate Committee on Cities, to be section 26 of article 3 of the Constitution, to read as follows: " The Legislature shall enact general laws for the government of all cities in this State, and no municipal corporation shall here- after be created by special act, nor shall the Legislature pass any act relative to the government of any city in this State, except by way of amendment to the general laws.'' Mr. Parkhurst — I move to strike out the enacting clause, as an amendment to an amendment. Mr. Mereness — I raise the point of order that there is no enact- ing clause to a proposed constitutional amendment. The Chairman — The Chair holds that the point of order is well 608 REVISED RECORD. [Thursday, taken. The question is on the amendment offered by Mr. Moore. The time allowed for debate, thirty minutes, has expired. Mr. Moore — I think I should have time to debate my own substitute. The Chairman — The rule is otherwise. Mr. Moore — Will the Chair please state the rule? The Chairman — It is that after a debate of thirty minutes upon an amendment only five-minute speeches shall be allowed. Mr. Choate — May I ask to have the rule read? As I recall it, it was that thirty minutes were allowed for amendments, and then a certain time was to be allowed to amend the substitute proposed by Mr. Moore and the substitute proposed by Mr. McLaughlin. The Chairman — The Chair understood Mr. Moore to offer an amendment, not a substitute. Mr. Moore — Then I offer it as a substitute now, that I may come within the rule and the ruling of the Chair. The Chairman — Does the gentleman withdraw his amendment? Mr. Moore — I withdraw it as an amendment and offer it as a substitute. The Chairman — The amendment of Mr. Towns will be read. The Secretary — The amendment of Mr. Towns is to add to sec- tion 4 the following: "After the adoption of this Constitution no city in this State shall have any board or department placed under the control of more than one person. The Legislature shall immediately pass laws necessary to carry this provision into effect." The Chairman — The question is on the amendment offered by Mr. Towns. Mr. Towns — Have I time to speak on that? The Chairman — The time has passed for speaking on amendments. The Chairman put the question on the adoption of the amend- ment offered by Mr. Towns, and it was determined in the negative. The Chairman — Now substitutes are in order. - Mr. Moore — Is my substitute now in order? The Chairman — No ; Mr. McLaughlin's substitute is first in order. Mr. Dickey — I ask that it be read. August 30.] CONSTITUTIONAL CONVENTION. . 609 The Chairman — Mr. McLaughlin is recognized as having the floor. The Secretary will first read the substitute offered by Mr. McLaughlin. The Secretary — " Section I. There shall be in the several cities of this State a common council or board of aldermen, to be com- posed of such members, and to be elected in such manner as is or may be provided by law. " Sec. 2. The Legislature shall, by general laws, confer upon the common council or board of aldermen of the several cities of this State, including those that may be hereafter incorporated, such further power of local legislation or administration as the Legisla- ture may from time to time deem expedient." Mr. McLaughlin — Mr. Chairman, after the lapse of the many long hours which have been devoted to the discussion of this pro- posed amendment, I have no desire to inflict upon this body any further discussion upon the subject. I simply desire, speaking for myself and for no one else, to go upon record in this body, in respect to what seems to me to be a wise principle for this State to adopt. The substitute which I have proposed simply reaffirms the principles of the present Constitution relating to the several counties of this State. I have copied the section of the Constitution relating to the different counties of the State, and made it applicable to the several cities of the State, simply substituting for the words " board of supervisors " the words "' common council or board of aldermen." We have listened here for many days to the discussion upon both sides of this House as to what seems to each of the gentlemen to be a wise policy to be adopted by this State as to the government of the great cities of this State, and the discussion clearly demonstrates that upon vital principles these gentlemen are not agreed. The great cities of the State, and, indeed, the great cities of this conti- nent, are now passing through an experimental stage, which, before the passage of the century, it is likely the problem will be solved, but at this time to incorporate into the fundamental law of this State a provision saying what these cities shall do and shall not do, I consider to be very unwise. It seems to me to be a very unwise principle to put into the Constitution of this State that the State shall surrender to the cities of the State sovereign capacity, to manage and control them as they may see fit. We have for years in this State had a law, or had a provision of the Constitution, which relates to the counties, and that has been a wise policy on the part of the 39 6lO , REVISED RECORD. [Thursday, State. If it is good government for the counties of the State, which differ in population and differ in conditions as do the cities of the State, it seems to me the same rule should be applied to cities and not another. Gentlemen upon this floor have argued that you can- not pass a constitutional amendment unless the great cities of the State vote for it. Under the present apportionment of Members of Assembly and of Senate, you cannot pass a bill in either body unless the cities of the State want it passed. It seems to me when we are asked here to adopt and put into the fundamental law of this State a provision that the State shall surrender to the cities the sovereign power to manage and control those cities at this time is unwise. The substitute which I have offered simply confers upon the board of aldermen or common council the power of local self-government, as the Legislature may from time to time deem wise. That can do no harm. It may do good. If it is unwise, if that power is granted to the board of aldermen or to the common council, then the Legis- lature can take that power away; or if it is given to them wisely, and is found for the best interests of the cities, it can be used as well as to adopt here an inflexible provision, which if once given, may for many years work injury to the cities of the State. Mr. Vedder — I want to ask if the proposition submitted by Mr. McLaughlin is offered as a substitute for the entire measure. Mr. McLaughlin — It is. The Chairman — The Chair so understands it. Mr. Moore — Mr. Chairman, I wish to call the attention of this Convention to the fact that in 1891, after a long and patient investi- gation, a Senate committee of the State of New York, after months of labor, decided to recommend that the Constitution of this State be amended, in substance, as follows : " The Legislature shall elect general laws." I amend that by saying that " the Legislature shall enact general -laws for the government of the cities of this State, and no municipal corporation shall be hereafter created by special act, or shall the Legislature pass any act with reference to the gov- ernment of any city of this State, except by way of amendment to such general laws." Now, Mr. Chairman, this recommendation of the Senate commit- tee recognizes the great fact that a Constitutional Convention is not a Legislature; that it is not convened for legislative purposes; that it is not convened to go into details which more properly belong to a legislative body. The substitute which I propose to take the place of the rest of this article will cure every difficulty, so far as this Convention is concerned. August 30.] CONSTITUTIONAL CONVENTION. 6ll I believe that the principle upon which this State has acted for years and years — that the legislative power is vested in the Senate and Assembly — is the true principle for the Convention to work upon. This city bill is full of legislation. I believe that in some aspects it is even vicious, as well as legislative. Therefore, I have proposed, as a substitute for the whole bill, section i, which is the amendment recommended by the Senate committee. At the con- clusion of this elaborate report, the Senators say somewhat as fol- lows: They recommend its passage upon the grounds of the facts which they unearth during their examination. It was made after a most careful and elaborate study of municipal questions, and I believe this substitute of mine embraces the real organic law, leav- ing the details of it, leaving all the minor steps out, and leaving it where the people want it to be left — in the hands of the Legislature of the State. I believe, as other men have said here, that there are honest men in the Legislature of the State of New York. I see men here to-day, who have been Members of Assembly and Senators, who are honest men; and I do not believe that the people are afraid to trust the interests of cities, or to trust the interests of this great State, to the members of the Legislature. Therefore, Mr. Chair- man, I move to strike out every section of this bill of the Committee on Cities, except the first one, and to substitute therefor this tried amendment, this amendment established and found to be the right thing by established facts by this Senate committee. Mr. Powell — Mr. Chairman, I had hoped, although the repre- sentative of the second largest city of this State, that I might be permitted to witness the debate upon the amendment which we now have before us without participating in it at all. But when gentle- men of the majority, who hail from the large cities of Port Henry and Plattsburg express their views about the effect which this amendment will have Mr. Moore — May I ask the gentleman a question? The Chairman — Not until the gentleman gets through. Mr. Powell — No ; my time is too short to permit me to answer questions. There has been too much of that in this Convention already. When the gentlemen from these large cities, representing the Republican majority, attempt to lay down doctrines for the government of cities like New York, Brooklyn and Buffalo, and taunt those of us who favor the amendment which has been introduced by the Committee on Cities, with the statement that the representatives from these great cities are not agreed as to what they want, then, sir, I think it time for us to cry a halt, and 6l2 REVISED RECORD. [Thursday, to remind these gentlemen of the fact that the only difference between the delegates from these large cities as to what they require is a difference between the Republican delegates from these large cities and the Democratic delegates from the same. I think there is no exception to the statement that the Democratic members from all these large cities are not only anxious, but they are exceedingly anxious, 'that this amendment introduced by the Committee on Cities shall be passed by this Convention and submitted to the people of the State. And I beg leave also to suggest that if the gentlemen will fix their minds for a moment upon the opposition to this proposed amendment that has come from the minority, they will discover a very peculiar state of affairs. The first opposition that we have to this proposed amendment comes in the nature of ridicule, not ridicule upon the propositions of the proposed amendments Mr. Mulqueen — I raise the point of order that the question now is on the substitute offered by the gentleman from Essex, and not the minority report. The Chairman — There are two substitutes which will be acted upon — the substitute offered by Mr. Moore and the substitute offered by Mr. McLaughlin. Then the question will be on the substitute offered by the minority. Mr. Mulqueen — And that any criticism on the minority report is now out of order. Mr. Powell — I presume the gentleman will admit that I have the right to discuss the amendment itself. That is what I am doing. The Chairman — The point of order is not well taken. Mr. Powell will proceed. Mr. Powell — Not a ridicule of the ideas which are suggested in this proposed amendment, but a ridicule which is based upon a careful examination of the grammar and dictionary, and upon mere idioms of language. Then the next thing we hear in reference to this article is the plaintive cry of the much-abused or alleged abused minority. And then, last of all, we closed our discussion of this matter substantially yesterday afternoon with a criticism which was brought from Scripture. The very last argument adduced against this amendment was a scriptural argument taken from the Book of Job — the words of a man who had never seen a great city in all his life, and who lived probably before any great city had ever been built. And, finally, when we sift this scriptural argument down to its last analysis, we find that the last argument of the minority against this proposed amendment is a disquisition on the subject August 30.] CONSTITUTIONAL CONVENTION. 613 of ''winds " and of the " east wind," but I believe after all that this essay on wind was about as closely related to this amendment as any of the arguments that were made by the minority. In the midst, however, of all this confusion there was one bright flash which I am happy to say emanated from the gentleman from Brook- lyn, from my friend Mr. Jacobs. The only argument whatsoever on the part of the minority that I have been enabled to find (and I have listened carefully) was that which came from the lips of Mr. Jacobs; and his sole argument was that the fault with this amendment is that it does not carry the principle of home rule quite far enough to give to the great cities of the State absolute, unquali- fied, unlimited home rule. That is the argument of Mr. Jacobs, who argues, I think, from the position of a very confident enthusiast. I admire his words and the oratorical power with which they were placed before this Convention. But, gentlemen of the Republican majority, I ask you how much that argument is worth. Remember that in the great cities of our State there is a constant increase of pauperism, of crime, of anarchism and of socialism — an increase the ratio of which is much larger than the ratio of increase in population. The Chairman — The Chair is obliged to call the attention of the gentleman to the fact that his five minutes have expired. Mr. M. E. Lewis — I ask unanimous consent to permit the gen- tleman from Brooklyn to occupy my time. The Chairman — Unanimous consent is asked that the gentleman from Brooklyn may occupy the time of Mr. Lewis. Is there any objection? Mr. Meyenborg — I object. The Chairman — Is the objection insisted upon? Mr. Meyenborg — I will withdraw the objection. The Chairman — The objection is withdrawn, and Mr. Powell will proceed. Mr. Powell — I simply wish to add a single suggestion. I ask the members of the majority to bear this fact in mind, and it is a fact plainly and squarely before them, and I ask whether or not it would be wise to grant this unlimited absolute home rule to our great cities. I think there was a great deal of wisdom in the suggestion of the President of this Convention, when he said some days since that he believed it might be necessary for the sovereign power of the State, exercised through its Legislature, now and then to reach down into our cities and help them out of their dilemma. And 614 REVISED RECORD. [Thursday, why should we, the great cities of the State, in our dilemma, hesi- tate to go to the sovereign power and ask for assistance? I object to the suggestion that our cities are to be built up into separate States or principalities. Why, gentlemen of the Republican major- ity (and I am speaking now for you), the life of our cities comes from the country. If you were to cut off the supply of young men who come from the farms and country villages into our great cities, constantly bringing a new supply of vitality, our citizens would become imbecile, and would pass away. Look at the constitution of the delegation from Brooklyn and New York to this Convention. Of the twenty-three delegates who are here from Brooklyn there are twelve who were born outside of that city and only eleven who were born in it. Of the thirty-six who come from the city of New York there are only twelve who opened their eyes in infancy in that city, and twenty-four were born without her borders. As we gain our life from the country, so I believe we have the right sometimes to go back to the delegates from the country in the Legislature of the State and ask them for their advice and counsel. And, Mr. Chairman and gentlemen, the charm of this amendment lies in the fact that while it does not go to the extent of divorcing our great cities from the sovereign State, it does go just far enough to protect them from petty impositions on the part of the Legislature. I sub- mit that that amendment has been drawn with wisdom, and I submit, also, that the Republican members from our great cities, with unbroken unanimity, demand its submission to the people, and ask you not to let any subterfuge take its place. We ask it — we who are in the minority, a struggling minority — the Republicans of the great cities of Brooklyn, of New York, and of Buffalo; and we hope you will not turn us away with something which has the appearance of fruit, but within which there is simply rotten- ness and corruption. Give us this amendment which this commit- tee has proposed; give it to us just as it is, and it will help us to a better and nobler city life. Mr. Dickey — Mr. Chairman, my type of statesmen was the great and lamented Roscoe Conkling. He was frank, open and out- spoken, and never believed in any shams. What is the pretense here, or the excuse for the Republicans in pretending to give home rule to the cities when they do not mean to do anything of the kind in the way that the Democratic party ask for it and wyant it. Hadn't we better be fair and straight and honest? We, as Repub- licans, cannot afford, and it is not the Republican creed, to give absolute home rule, so that the cities might govern their own affairs without any control from the State Legislature. And, there- August 30.] CONSTITUTIONAL CONVENTION. 615 fore, as we do not mean to do it, why do we not say so in a manly way, and not make believe or pretend something? My own notion about the matter is, as I said yesterday, that the relief for the cities is to elect, and continue to elect, Republican legislators, so that they may give that measure of relief when it is wanted. That is exem- plified strongly by the result of the last election, and by the fact that we then had a Republican Senate and Assembly, and Tammany has been on its good behavior ever since. We have got two Repub- lican police commissioners already in the city of New York where we had only one before. And, besides, they are turning out the corrupt police officials, one after another, and they are looking about now to find the best and noblest man they can get to accept the nomination for mayor — and looking for him outside of their own ranks — in order to get better government. Had we not better keep that control over them instead of giving them this measure of minority representation; which is but a sham, a make-believe, and which accomplishes nothing as a matter of fact? Why, Tammany is reforming already! Look at the first-class, intellectual repre- sentatives it has sent to this Convention. Why, as I meet them and talk with them, and get acquainted with them, I am surprised, if Tammany is as bad as they make us believe it is, that it has any such representatives in its membership. Why, all of them, and every one of them, would pass any time and anywhere for a first-class Republican. The Chairman — The question is on agreeing with the substitute offered by Mr. Moore; that being only to a portion of the article, it will be first voted upon. Mr. Becker — Mr. Chairman, I will detain the Convention with but a word. All of the powers that the Legislature ought to have over the affairs of great cities have, against the protests and obstructions of our friends of the minority by previous votes in this Convention, been reserved to the Legislature. The only powers which are in any way by this article granted to the cities are certain powers of attending to their own affairs, to their own business matters; and as to these powers this amendment divides the cities into three classes. If it becomes necessary for the Legislature at any time to pass laws relating to those purely business matters, such as sewers, the fire department, streets and the like, it can pass a general law applicable to any one of these classes of cities, and there will then be no necessity of asking (as I read this amendment) for any approval of the authorities of that city. If, however, the Legislature undertakes to go down into that city, to " monkey it," if I may use that expression, with respect to its purely business or local affairs, 6l6 REVISED RECORD. [Thursday, such as relate to its streets, or relate to any of these departments, or like those we denominate in this bill, we want that those laws shall have plainly marked upon their face a characterization of what they are, namely, special laws, and when those special laws come down to be passed they must be submitted to the locality, and the locality shall have the right first through its officers to say whether it wants those laws or not. Applying that to my own city, if I undertook to put up a job, as they undertook to do for the street cleaning in the city of Buffalo, that bill before it became a law, would have to be submitted to the mayor, it would have to be published in the papers, and the citizens would all get notice of it and have an opportunity to be heard; the press would have an opportunity to be heard; and then after that, the mayor and common council both would have to give their assent before it could become a law. But even as to that, as to these matters, under the amendment pre- sented by the President and debated heretofore, it takes only a three-fifths vote to overrule as to any of these matters. Now take it under the bill that is proposed here, for fifty members in the Senate; and there are thirty-two members to-day in the Senate; and how easy for any of the great cities of the first class, New York, Brook- lyn or Buffalo, how easy to get the thirty. The same pro- portion prevails as to members of the Assembly. As I said yester- day, the tendency is, in these local matters, for members outside of the locality to be guided by the wishes of members in the locality. Now, we have given some measure of home rule. It is not as much as I would like to see, but it may build up a great municipal senti- ment of patriotism, and induce the good citizens to come and take an interest in municipal affairs as they ought to; for so long as they can fall back upon the bosom of the Legislature for support and sustenance they never will take as much pains to protect their inter- ests as they ought to do. Well, this amendment does give some- thing, it gives notice, it requires a public hearing; it requires that as to all those purely business matters, in which the people of the western part of the State and the people of the middle part of the State are not concerned — it provides that as to these matters the locality shall have some chance to say what they want, and if they do not do it, then, after that, the Legislature still has another chance. And that is all that this amendment does. The Chairman — The time is up for the discussion of these amendments. The first question is upon agreeing with the sub- stitute offered by Mr. Moore to strike out all of the first section and insert the words vou have heard read bv the Secretary. August 30.] CONSTITUTIONAL CONVENTION. 617 The Chairman put the question on the adoption of the substitute offered by Mr. Moore, and it was determined in the negative. The Chairman then put the question on the amendment offered by Mr. McLaughlin, and, by a rising vote, it was determined in the negative — yeas, 62; nays, 65. The Chairman — The amendment is lost, and the Secretary will now read the substitute offered by the minority. The Secretary read the minority report, as follows: A minority of the Committee on Cities, dissenting from the pro- posed amendment (introductory No. 369, general order No. 13, printed No. 451), reported by a majority of said committee, do respectfully submit the following as a minority report and substitute : ARTICLE — . All cities are classified according to the last State enumeration, as such enumeration shall from time to time be made, as follows : The first class includes all cities having a population of two hun- dred and fifty thousand or more; the second class includes all cities having a population of less than two hundred and fifty thousand, and of more than fifty thousand; the third class includes all other cities. The Legislature shall enact general laws for the government of cities, so that all cities of the same class shall possess like powers and be subject to like restrictions. Such laws shall include in their pro- visions that the electors of every city shall elect a mayor vested with the chief executive authority and common council vested with sole legislative authority to legislate for all city purposes, including the following subjects: Streets, parks, public places, docks, markets, water-works, sewers, public buildings and property, the character and structure of buildings as to safety and security, salaries of all officers and employes paid out of the city moneys, ward boundaries, local assessments, finances, including the issue of municipal securities and obligations, the raising and the appro- priation of moneys for city government and public purposes law- fully charged upon the city and such other matters as are the con- cern of the local government of cities. The Legislature shall not enact any law relating to cities as to any of the subjects enumerated in this section except as hereinafter provided. The Legislature may enact general laws for each class of cities relative to all subjects which, though concerning the State at large and the people thereof generally, are intrusted or to be intrusted to 6l8 REVISED RECORD. [Thursday, the administration of cities or any officer thereof, or any local officer elected by the electors or appointed by the authorities thereof. All heads of departments, city officers and employes, including members of the police and fire forces and all officers and employes whose powers and duties are limited to the territory of the city or to a part thereof, shall be chosen by the electors or appointed by the authorities thereof. The Governor, after notice and a hearing upon written charges, may, for cause, remove the mayor of any city. The Legislature shall not pass special or local laws for the gov- ernment of any city, except with the approval of the mayor of the city affected. No city shall hereafter be incorporated by special law, but the Legislature shall enact general laws for incorporating cities. Cities heretofore incorporated may become organized under such general laws whenever the majority of the electors voting thereon at any general or special election shall vote in favor thereof, and such general laws shall make provision whereby the questions of the organization of any such city under the general laws applicable thereto may, from time to time, be submitted to the electors therein. Nothing in this article contained shall limit or affect the power of the Legislature to consolidate contiguous cities, but no such law shall be enacted until a majority of the electors of each city to be affected have voted in favor of such consolidation. •August 25, 1894. WM. B. DAVENPORT. A. BLEECKER BANKS. EDWIN C. ROWLEY. I concur in the above, and I would gladly favor the further exten- sion of the principle of home rule, to abolish all State interference with the local affairs of cities, and to give to every city the power to construct and to amend its own charter by the votes of its citizens. W. McM. SPEER. Mr. Jenks — Mr. Chairman, I shall speak to the report of the minority of the Committee on Cities. General Garfield said that the sweetest flowers were those which blossomed over the garden wall of politics. It, therefore, gives me great pleasure to congratulate the chairman of the Committee on Cities upon the perseverance and the integrity which he has shown in formulating this measure of the majority. (Applause.) Notwithstanding the assaults that have been made upon it I beg to assure him that he is to be felicitated upon some of its features, and in the spirit of the eminent Bostonianv, who said that not three men August 30.] CONSTITUTIONAL CONVENTION. 619 in the whole city of Boston could have written Hamlet, so I say of him that not three men in the Convention could have produced so meritorious an article; and if I may go back to a Bible story for a moment I would urge him to take to mind the editor out west, who, speaking of a rival journalist, said, " We still notice the infidel attack of the aesthetic editor across the street; but nothing that he can say can affect the Bible, or its immortal author, Thomas Jefferson." I criticise not the execution of the bill, but the principle which lies behind it. I criticise it in that it proceeds from a radically wrong theory as to the government of our cities. The gentleman from Tioga (Mr. Clark), who has been a pink and white tyrant, has told us very frankly that they do not claim that this article gives home rule to cities. With that I thoroughly and entirely agree; and the charge I make against the article as it stands to-day is, that instead of giving home rule to cities it warrants legislative license for inter- ference of the broadest kind. In the short time permitted I cannot go into the details, but I want to point out to the committee, if it will give me attention, why I make this charge and accusation against the bill presented for our vote. The charge then I make is, that it does not afford home rule to cities, but simply gives legislative power to enact gene- ral laws for the purposes which, in the words of Mr. Root, are entirely the affairs of a domestic public corporation. In other words this empowers the Legislature, in express terms, to enact general laws regarding cities, as to streets^ sewers, water-works, ward boundaries, parks and public places, salaries. Everything that a domestic corporation can best do by vote of its stockholders is kept away from the stockholders and committed to the control of a junta, or a body of strangers, in the capitol. Now, what is worse? I need not go into detail. There the article stands, and he who runs may read. And not only has the committee done this, but it has made this extraordinary provision — and here is the fatal defect in the bill to which attention has not yet been called upon the floor by any speaker. The provision is that the laws relating to any of the subjects thereinafter set forth are " general city laws: " and then the act goes on in section 5 to provide that as to such certain specified subjects these laws must be general. Then it pro- vides that laws other than " general city laws " relating to any of the subjects, which are enumerated in section 5, or "to such subjects, with other subjects," are " special city law-s." As to such " special city laws " there is a provision requiring the approval of the mayor, or a three-fifths vote of the Legislature in lieu thereof. Now, if a statute does not relate to sewers, if it docs not relate to water-work?. 620 REVISED RECORD. [Thursday, if it does not relate to parks, or to any other subject specified, or if it is not joined with any other subject, it is neither '' a general law " nor '' a special law," which, requires a three-fifths vote of the Legis- lature for the approval of the mayor. In other words, as this article stands to-day, it permits the Legislature to pass laws by majority vote in matters of city bonds, in matters of city appropriations, in matters of public improvements, in matters of the creation of offices and in matters of police. So that, instead of giving us a coherent scheme for the rule of cities, it really vests in the Legislature many matters of local municipal government. And this is the scheme of progress that we are asked to vote for on the ground that it is home rule. Mr. Brown's police amendment is worse yet. True, it takes away from the Governor the power of appointment of the head of the police, but it relegates the filling of a vacancy to the Legislature making the laws for that purpose. For a police officer of the city is not a city officer. Next, as to this three-fifths vote. In the words of Mr. Becker, of Buffalo, this is merely a matter of log- rolling. Members of the Legislature who are not from the city of Brooklyn, or from the city of New York, are confronted with some measure affecting the local municipal government of either city ; but what vital concern is theirs? In the eloquent words of Mr. Johnson, writing his report for the Committee on Cities, " If anything goes wrong, the local officers come and say that it is the fault of the Legislature, and impose the blame upon the member from St. Law- rence county; and the member from St. Lawrence cares nothing for it so long as it does not affect his interests." " Out of thine own mouth do I condemn thee, Jew." Talk about Moses and the lintels of the doors! When the children of Israel went out into the desert of Zin, did Moses give them relief by the dilettanti spoutings of a syphon bottle, or did he strike the living rock that the water might burst upon the throbbing parched air and that all might drink thereof? But they say that this article will give power to the com- mon council to legislate. What have they left to legislate about? The licensing of a yellow dog. The erection of a dog pound. The name of a street. The keeper of a bath. Power to legislate! Why, to quote, they make the board of aldermen " like marionettes, marking time in a vacuum." In our salad days, before Veeder learned to differ from Vedder upon questions to adjourn, before Dean discovered the previous question, or thought it had been passed on the first day of the ses- sion, the great man who presides over this Convention made a speech in which he said, with mellifluous accents, " It is not for me August 30.] CONSTITUTIONAL CONVENTION. 621 to suggest any possible measures, but it will be strange indeed if the assembled wisdom of the delegates of this great State shall fail in uniting upon some provisions that shall enable the people of the great cities of this State, each to conduct and govern its own affairs without the necessity of perpetually resorting to legislative inter- ference and aid." (Applause.) And I applauded. And then smarting as he did under the insinuations of the master of invective from Kings, President Choate rose later, yet before the tram- els of politics were upon him and before the shackles of party questions had bound him, and said, " Will Mr. Becker allow me to ask him a question?" It is in respect to the operation of this scheme. There is one point upon which my mind is very much concerned. You have spoken of a faction in possession of the city of New York and also have made an assertion against which I sincerely protest — that the good citizens are in a hopeless min- ority. " I," said Mr. Choate, '' believe them to be in the great majority." Well, I appeal now from the President drunk to the President sober. The President also said in his speech on that occasion, you cannot make men good by statute, but you can put responsibility upon them. Upon the theory of John Stuart Mill that the first object of good government is to put upon the shoul- ders of men responsibility, that they may learn, and, learning, they may act, perhaps this was said. What we want, then, is not in the cogent words of the chairman of the Committee on Cities, a mem- ber from St. Lawrence making laws in relation to the speedways of the city of Xew York, but responsibility put upon the citizens of the city, and all your cumulative and minority voting may then go to the winds. Sir, give your common council full powers of local municipal government, then make your common council large enough to make it representative, and then say to the people in the city, '' Here is your responsibility; collect your taxes, spend your money," and then the good men that Mr. Choate knows of in the cities of Xew York and Brooklyn will rise in their might, and that majority will rule. That is the true secret of local government — although the gentleman from Hesse shakes his head. (Laughter.) What we want is, not that the Bedouins of the street should be kept from voting; not that the right shall be given solely to the men who toil in cities, but we want the responsibility so put as to summon all good citizens. As the three hundred of Leonidas saved Sparta, as the six hundred at Balaklava vindicated the might of Britain, so may we yet hope that the four hundred of Ward McAllister will redeem Xew York. Let these dilettanti men remember that if 622 REVISED RECORD. [Thursday, Mr. Balfour plays golf, he has also led the House of Commons; and that Rosebery sat in the London county council before his horse carried his colors to the front in the Derby on Epsom Downs. Now, gentlemen, the plan of the minority of the committee is logical for this reason: there are two great powers, one is the power of the State in all matters which concern the State and the people generally. Those are the police powers. They are, for example, the powers of excise, the powers of health, the powers of charities, the powers of police; and all these matters do not concern a municipality alone. As to these matters I say to you frankly that the Legislature must have supreme control, for I am not seeking to make feudal cities, or those like the cities of Spain of the Middle Ages; and so I say lodge those powers in the State, and give full control to the Legislature, where it belongs; but as to municipal matters, as to matters of local rule, as to sewers, water-works, the paving of streets, the paying of officers' salaries out of the taxes raised in the cities — as to all these and those akin which are but local business affairs, I say the proper thing to do is to intrust them on the principle of Mr. Choate, or John Stuart Mill, so as to put the responsibility upon the people of the cities, and there let the responsibility rest. Why, they talk about the cities of this country as though they were Sodoms and Gomorrahs to be organized and governed under special laws of the Legislature. But it is not so. I believe that when cities are vested with those powers they will rise to the opportunity. At least it is not fair to draw a parallel between their common councils, vested with limited power, which every man of affairs condemns and despises because they have no power, and local legislatures granted full legislative powers for local rule. If you wish to have the Governor remove the head of police, I say it is a proper exercise of the 'power of the State; but the moment you let the Governor come down into the city with power not only to remove, but to appoint, where he removes you are sub- stantially making him the mayor of the city, and the Governor only has to press the political button at Albany, so that he can rule the local affairs of every city of the State. This then is the principle of the minority report. Give the cities of the State the local right to regulate their own affairs. Give to the great State of New York power to pass general laws as to all matters which concern not the cities or the citizens thereof alone, but all the people throughout the State. The city of New York is made up of people, as are the towns, hamlets or villages of the State of New York. It is not the reservoir of a sewer, receiving people different from those of the August 30.] CONSTITUTIONAL CONVENTION. 623 east or the west. Remember the lines of Tennyson of the country boy along the highway, who, " Near and nearer drawn, Sees in Heaven the light of London flaring like a dreary dawn." This is the picture of thousands who come to win fame and fortune in our city streets. There may be many men in this Convention who are fathers, with sons who will flow into this great city, there to make their living and their fame. Whether a man sings his song to the swing of the axe in the great forests of the Adirondacks; whether he passes his life in that city whose roar sounds with diapason of Niagara; whether he lives and toils in either of those great cities connected by the mighty bridge, that bright rainbow of commerce: whether he breathes the violets of the morning on his way to the furrowed field or toils homeward counting the silent stars, he is a citizen of the State, and wherever he may be, he loves her, and prays God bless the commonwealth of New York. (Applause.) I did not intend to be led into rhetoric, but I have this matter at heart. I am serious when I say that it is not a pleasant thing for me to sit here in this Convention and see men who come from the great cities, whose life has been spent there, whose toil there has achieved for them wealth, fame, power and might, rise here and at the dictates of party organization decry the city to which they owe their all. Not invective but emigration is what we want of them. If they love not the city that gave them sustenance, fortune, fame and power God knows there is no writ of nc exeat upon them — let them leave the city they defame. I would have none of this. And we of the cities owe too much to the cities to yield their good to the petty interests of any political party. Is this justice, is this patriotism, is this right? The other day I quoted those lines of Macaulay, which to me seemed to breathe the true municipal spirit. You remember in the same poem that although Horatius nerved himself and the two who stood beside him to their heroic task by asking: " Now, who can meet death better than by facing fearful odds. For the ashes of his fathers; for the temples of his gods." Yet when he was left by even the faithful two, and after the heat and fury of the battle were spent and his deed which saved his city was done, he was moved to his supreme heroic effort by other thoughts. Self-sacrifice first, self-preservation second. He saved his own life because, " He saw on Palitinus the white porch of his home." 624 REVISED RECORD. [Thursday, Mr. Latiterbach — Mr. Chairman, I was born and bred and, during my whole life, I have lived in the city which you have mentioned. I know it, and I love it. I think I know the admirable qualities which control it in its administration, and I think I know the defects that have crept into its administration. We are Americans, and, first of all, owe our loyalty to the federal government, and next, to the Empire State, extending from the Atlantic ocean to the St. Lawrence river, and from the Hudson river to Niagara Falls, and embracing the most magnificent territory that was ever bounded by the limits of a State; a State which contains within itself, at its foot the ocean, the most magnificent rivers in the world, the great Falls of Niagara, lakes unexampled in beauty; forests and mountain; in fact all that can be conceived of in the domain of nature. I am proud that I am a citizen of that State, and proud that I am a citizen of its great Empire city; and as a citizen -of that city I have always recognized the fact that its greatness is not due to itself alone, but that it is largely due to the fact that it is the greatest city of the great Empire State to which it owes so much- of its magnificent position as one of the great metropolises of the world. It is because of its lying at the foot of the river and con- necting with the Erie canal, because the great mountain ranges that separate the east from the west cease to be a barrier almost at the very boundaries of the State, making it the pathway for railway communication directly and without impediment. It is because all these and other conditions have existed, and because the interest of every community throughout the whole State has always been excited in favor of its beloved metropolis, that the city of New York has become what it is. It is a great city. No one shall belittle it. I have been a scholar in its public schools and graduated at its free academy, and I know that its educational system is beyond com- pare. As has been suggested, I am familiar with its noble charitable institutions and know that they are unequaled on the face of the earth. In every respect, all that can be said favorably of any city can be said and must be said in favor of New York. But there are influences that retard its progress. It is not surprising that the great metropolis that suffers itself to become the recipient of masses that are self-exiled, or subjects of involuntary exile from every quarter of the European world, should to some extent receive injury during the period that elapses before that enormous immigra- tion becomes assimilated. It requires a long time sometimes to Americanize those so often unfitted and generations undeserving who receive its hospitality, and do not become fully identified with its methods and its aims. That is the chief difficultv we have had to August 30.] CONSTITUTIONAL CONVENTION. 625 contend with. The ramifications of that drawback have been various. It had manifestation during the civil war, when the necessities of the government required that a draft should be enforced. I have seen that unharmonized element opposing, to the extent of applying the torch to arsenals, to hanging negroes to lamp-posts in defying the federal government, and the government of the State of New York, until crushed into submission by the State. I was a lad when Fernando Wood was engaged in carrying out this principle of the autonomy of the city government to its fullest extent by bringing about the actual secession of the city from the State, and making it not only the autonomy which Mr. Jenks suggests, but the sort of autonomy that must naturally result from any such divorce as that which is suggested here, the actual separation of the two political bodies. I have seen the muni- cipal police in control of that city, under that autonomy, and it was only by an appeal to the Legislature at Albany, and the enact- ment of the metropolitan police law, which was referred to by Mr. Roche yesterday, that defeated the project and secured the salvation of the people in that great emergency. (Applause.) When the Tweed iniquities took place, and whenever before and since that period misapplications of power by those who were in control of the city manifested themselves, there was the feeling that there should be, as there could be, an appeal to other citizens of the same Empire State, to whom the glories of that city, and of every other city, as of the State itself, was dearer than any selfish interest. And the appeals were never in vain. Again and again, as the result of investigating committees, as the result of the appointment of commissions, never with any injury to the city, but always for its benefit, the intervention of the central power of the State was invoked, representing all the elements of the State, the newly arrived and the American-born, the men who were indigenous to the soil and the men who came to it but a few months before, all exercising the same rights of citizenship, but not all with the same degree either of intelligence. My friends, the Democrats, know that the exigency has occured again and again, when they themselves have been glad to know that there was some other power that could be addressed than the local power, the power of the temperate, unprejudiced, unselfish judgment of other citizens of the same Empire State. We have had some scandals. We would have had thousands of additional scandals had it not been for the knowledge that on the first Monday in January in each year there would be assembled in 40 626 REVISED RECORD. [Thursday, Albany a Legislature, composed of men gathered from every corner of the State, who would, and could pass in review the conduct of local authorities, and who could and would put a check to whatever menaced or abused the rights of the State or any of its citizens. Has that central power ever been abused? You will recognize that it has been of use, that it has been of service; that successful appeals have been made to it by the people in emergencies; but where, in all this period of time, has there even been a single case of abuse? I have heard one instance mentioned. The salary of the police was increased last year. These servants of the public came to the Legislature and they begged for that increase. There was no use in the patrolmen of the districts appealing to the wardmen; there was no use in going to the pantata, the captain of the district. These were engaged in more lucrative pursuits, and so they came to Albany and filed his petition, and it was granted by the Legislature. The bill went to a Democratic Governor, and the Democratic rulers of the city of New York were asked to make their opposition. Heaven knows there was no difficulty in securing vetoes of Republican measures from the Democratic incumbent of the gubernatorial chair last year. But the bill was promptly signed. The salary was raised. And I have heard much of the iniquity of the interference of the Legisla- ture in the affairs of the city of New York, because this bill, signed by a Democratic pen, and without, so far as I know, one word of objection from local Democratic influences, became a law. I have no resentment against those who are not of the same politi- cal party as I am. The representatives that you see here are fair representatives of the Democratic party of the city of New York. They are honorable men. I know its present executive. He is one of the best equipped officers that the city of New York has ever had. He gained his experience as the head of the department of public works, where he was an example of efficiency and ability; and in his whole career, so far as I know it, he has shown the same eminent characteristics. I know others who are in office and they are men of the same sort as those you see here- — able, willing to undertake labor, and able to do it successfully. But they are all the better, good as they are for the knowledge that, apart, from the organization which they control, or which controls them, apart from the local self-interests which surround them, apart from surround- ings from which they cannot sometimes extricate themselves, that there is a check upon an exercise of their power, that they are not unbridled; that they are not unlicensed; that they need not listen to the behests of every member of their own organization, or of every powerful politician, but that they can say, "we are not the absolute August 30.] CONSTITUTIONAL CONVENTION. 627 rulers of this city, there is a Legislature to be consulted, to be advised with and considered, and we dare not abuse our power." And if, now and then, an abuse creeps in, if, from a lack of regulation of certain vicious tendencies, social evils which exist in every city, the police are placed in conditions of great temptation, which should not come to them, and they are tempted, as men sometimes will be tempted, when local power is not strong enough to check it, or those who exercise it have themselves become corrupted, a resolution at Albany, the appointment of a committee, a visit to the city of New York, an examination into its affairs, sweeps aside the iniquity and assists those who are honest in the conduct of affairs, while punishing the dishonest. There are as many honest men among the Democrats as there are among the Republicans, and the province of the Legislature is to assist them in accomplishing the regeneration and salvation of the city, in clearing out the plague spots, and making things right which have gone wrong. I would like to dilate upon the subject if possible, but my time is limited. I do want to say that I have looked upon the city as superb in all its accessories, including its officials generally; superb in its method of management, including not only its local legislature, but including the general Legislature of the State. New York is great; Rochester is prosperous; so are Buffalo, Brooklyn, Albany — all the cities of the State — but these cities are what they are because they are integral parts of the Empire. State and are sub- ject to the manner, method and character of government that has prevailed since this State has been created. (Applause.) That form of government I would maintain without change as to essentials, with but slight changes in detail, without listening to the dictates of those who present their vagaries and their Utopian notions of independent local government; men with isms, fads, peculiarities and untried experiments, who are never happy with what exists, but who are always desiring some change; who find nothing good in any but themselves; and who are never satisfied with what has been accom- plished, when once accomplished, even if it is of their own sugges- gestion and creation. ("Applause.) I presume that my peculiar views, if they are peculiar, upon this subject have been known, for I have not been asked to interest myself especially in the affairs of the city of New York or in any of the other affairs of importance and magnitude that ordinarily would be called to the attention of a citizen of that great metropolis, because, perhaps, I am not in sympathy with these new-fangled, untried notions that have never srone further than the territorv of 628 . REVISED RECORD. [Thursday, theory. I am willing to take existing things as they are, and improve them in detail, if improvement be necessary; but I would look to ourselves for suggestion in that respect, and not apply to the residents of Utopia or dreamland for advice. (Applause.) When the patient labor, the unexampled energy and care that were bestowed upon the subject by the Cities Committee resulted in the proposed " cities " amendment, I was as appreciative of their work as any fellow Republican in this chamber. Never has a com- mittee applied itself with such earnestness, with such desire to do right, with so much hope that they would accomplish a new depar- ture that would be of great service to the city. They looked for some controlling principle. Some one suggested home rule. It was a name to charm by. It has a euphonious and captivating ring. But what does it mean? Will you have home rule for wards, for counties, for towns? Are you going to have the principle of home rule applied to all of these? Is New York to be a walled city? Is not New York city a part of the Empire State's own territory? The State is our home. Everything that is done within the boun- daries of the State is home rule; home rule of a long established, always reliable and easily conceivable character, interlacing the local government with the general government, for the advantage of both. (Applause.) You want home rule? But has the true doc- trine of well regulated home rule ever been interfered with in prac- tice? If so, where and when? Gentlemen of the Democracy, what we have to present to you under the name of home rule is unsatisfactory, is it not? You have said it again and again. It is not an autonomy you say. It is not independence. You do not want it. (No, no; from the Democratic side.) Gentlemen of the Republican party, do you want it? What for? What object is to be accomplished? Why separate and segregate any one branch or more branches of the cities business from any other department hereto? Why not keep the whole under harmonious regulation? Why not make the Legislature continue to do what it has done, without even discussing this matter of home rule, or this pretense of home rule, as the Democrats call it. This abandonment of sen- sible State supervision, as I call it. It is condemned on both sides. Nobody wants it, apparently, on either side, as it is now emasculated by Democratic amendment. The Chairman — The Chair has to announce that your time is up. Mr. Dean — I ask unanimous consent that Mr. Lauterbach may proceed until he gets through. Mr. Johnson — Let it be taken from the time allowed. August 30.] CONSTITUTIONAL CONVENTION. 629 The Chairman — It will not be taken from the time allowed, but, if unanimous consent is given, the session can be extended for a few minutes. Mr. Dickey — Until he gets through. The Chairman — Is there any objection to Mr. Lauterbach's pro- ceeding? If not, he may continue. (Applause.) Mr. Lauterbach. — I thank you. Xow, it must be confessed that out of these ideas submitted to the committee, so laboriously and industrially studied by them, there have grown some things that perhaps it may be wise to experiment with. I think there is a con- cession on both sides of the chamber that perhaps it is a wise thing to separate local from general elections. The rest of it, as amended, is now of no consequence. We upheld it because we thought it would give us what has been called upon this side of the chamber, %i minority/' or " proportional representation." I have been told that that sort of representation is to be the great panacea for all ills, and I was willing for the sake of that portion of the bill to swallow all the rest; but when the Democratic motions came, result- ing in its elimination, I had no further use for the whole project; unlimited authority over the fire department and of the parks, was to be accorded, yet within the year I have heard serious criticism of those departments — probably unfounded. Mr. Henry Winthrop Gray was a member of the board of fire commissioners. He resigned because, as he stated, its methods were corrupt. He is an honorable man, and we all know him in the city of New York, and know that he would make no allegation of that kind if he believed it to be untrue. Pass this measure and let an investigation next winter of the New York fire department be asked for; they will say very properly, " What have you, Messrs. Legislators, at Albany, to do with our fire department. We are an autonomy in that respect. Home rule has given us the right to control this fire department and our dock department, and our park department" — of which there has been criticism as to the expenditure of a million of dollars in a month or two last winter — probably unfounded criticism. To Republicans we give the disadvantage of losing all control: and to Democrats, it will give yon the disadvantage of losing a forum to which they could appeal. Better, far better, for you, my Democratic friends, that there may be a legislative committee appointed to inves- tigate any charge against any department of the city of New York, many of which have been found to be completely unfounded, than to be deprived of a fair opportunity for vindication. Put you want, as I want, that those supervisory rights shall continue to be exer- 630 REVISED RECORD. [Thursday, cised so at least to enable you to receive justification, if for no other reason, when unfounded aspersions are made, I was willing, I repeat, to have taken home rule with minority representations, but without it all my interest in it is gone for the rest of this 'session. If I should, without it still, be asked to vote for this . measure by my conferrees, I would be as loyal now as I have always been. I will vote with you. I don't think you will ask me to do so, but if you do, I am ready to make the sacrifice. But the incentive is gone. Now there is but one thing left — the separation of elections clause. In my opinion, viewed from a partisan standpoint, that is not good Republican policy, though it is good Democratic policy; yet I will vote for it. It is said we may put up a better local ticket, and vote for better local tickets in years when there are no national or State questions involved. Possibly that is so. My opinion is, and my notion was confirmed by what my friend, Mr. Holls, said when he spoke in favor of compulsory voting, the necessity of compelling people to go to the polls, for he referred to Republican voters. I know some people will never vote at local elections — and I do not refer to the affiliates of my friends on this side of the chamber — for they will go to the polls 365 days in the year and wish there were 366 to be so utilized (applause) ; but of the gentlemen on the other side of the chamber — my side — I cannot say the same thing. But I am willing to run my chances on that. It may be possible that the injury that may come to the Republican party from the apathy in local elections will be counterbalanced by the fact that perhaps all good citizens will get together and nominate good and pure local tickets, irrespective of the machine of either one side or the other. I am not going to swear that that is going to be so (laughter), but if it is, let us make haste to secure it; let us at least make the experi- ment, and if I could have my wish accomplished it would be, now that minority representation is dead, that the remainder of the measure which the Democrats affect to be unwilling to take, and which I in my heart of hearts do not want to give, shall not be given by us nor taken by them; that the first section as to separate elec- tions, with its amendments may be passed; but that the rest of the work of the Cities Committee may remain as a landmark, so that when a fuller knowledge as to the administration of the affairs of cities shall have been developed, when we are better able to cope with these questions, when we can more thoroughly understand 'the theories of Mayor Low and of the other gentlemen who so earnestly advocate them, it will be of service, it may even stand as an imperish- able monument to the intelligence, the skill, the ability and the earn- August 30.] CONSTITUTIONAL CONVENTION. 631 estness of as good committee as ever represented a Constitutional Convention. (Applause.) The President resumed the chair, and announced that the hour of five having arrived, the Convention stood adjourned until 8P.M. EVENING SESSION. Thursday Evening, August 30, 1894. The Constitutional Convention of the State of New York met in the Assembly Chamber, in the Capitol, at Albany, N. Y., Thursday evening, August thirtieth, at eight o'clock. President Choate called the Convention to order. Mr. Cookinham — Mr. President, I offer the following resolution: The Secretary read Mr. Cookinham's resolution as follows: R. 189. — Resolved, That the proposed constitutional amendments hereinafter mentioned be made special orders for August thirty-first, at ten o'clock A. M., in the order stated below, and that they each be considered in Committee of the Whole until disposed of, except that general order Xo. 74 in regard to apportionment take precedence of all other business after it is reached on the day now fixed for its consideration. The President — Gentlemen will give attention to this as it is a rule proposing the order in which amendments shall be considered. The Secretary continued to read as follows: First. — General order No. 3, relating to home rule for cities, unless sooner disposed of. Second. — General order No. 61, to amend article 9, relating to free common schools. Third. — General order No. 72, to amend the Constitution relative to forest preservation. Fourth. — General order No. 63, to amend the Constitution by addition of new article relative to the waters of Niagara river. Fifth. — General order No. 53, to amend article 7, section 3, rela- tive to canals. . Mr. Veeder — Mr. President, I rise to a point of order. If this is one of to-day's sessions, then 1 submit that immediately upon the assembling of the Convention, we should proceed with the special order. If it is not a continuation of the session, then, by the rules, the general order of business must be preserved. 632 REVISED RECORD. [Thursday, The President — The practice of the Convention has been differ- ent from the beginning. At the beginning and close of every session, it seems to the Chair that the necessary business of the Convention requires an opportunity for motions or resolutions to be offered. That has been pursued and it has been availed of by almost all the members of the Convention in asking for excuses, and other motions, and will be adhered to unless overruled by the House. Mr. Veeder — Mr. President, do I understand that because we have been committing errors and violating the rules of the Con- vention that we shall continue to do it? The President — The Chair has announced his decision, which will be maintained unless overruled by the Convention. Mr. Veeder — Mr. President, what disposition does the Chair make of my point of order? The President — The point of order is not well taken. The Secre- tary will continue. The Secretary continued the reading of the resolution, as follows : Sixth. — General order No. 54, to amend article 7, section 6. Sixth and one-half. — General order No. 58, to amend article 7, sections i to 5, relative to canal debts. Seventh. — General order No. 67, to amend article 5 of the Con- stitution. Eighth. — General order No. 74, to amend article 3, relating to the apportionment of Senate and Assembly districts. Ninth. — General order No. 32, prescribing the period of citizen- ship as a prerequisite of the right to vote. Tenth. — General order No. 34, relating to the registration of voters. Eleventh. — General order No. 64, to amend article 2, relating to the use of money for political purposes. Twelfth. — General order No. 12, to amend article 13, relating to future amendments. Thirteenth. — General order No. 55, to amend article 14 of the Constitution. Fourteenth. — General order No, 62, to amend article 3 by the addition of two new sections. Fifteenth. — General order No. 69, to amend the Constitution relative to the liability of employers for injuries to employes. August 30.] CONSTITUTIONAL CONVENTION. 633 Sixteenth. — General order No. 57, to amend article 8, section 7, relative to liability of stockholders of banking corporations. Seventeenth. — General order No. 36, relating to civil service. Eighteenth. — General order No. 48, to amend article i, section 10, in relation to the suppression of gambling. Nineteenth. — General order No. 44, to authorize the Legislature to provide for construction of dams and reservoirs. Twentieth. — General order No. 42, relative to the drainage of agricultural lands. Twenty-first. — General order No. 7, to amend section 4, article 2, relating to the enforcing of the duty of voting. Twenty-first and one-half. — General order No. 33, in reference to the qualification of voters. Twenty-second. — General order No. 35, as to restrictions on private and local bills. Twenty-third. — General order No. 27, as to trusts or combina- tions. Twenty-fourth. — General order No. 36, relative to corporations. Twenty-fifth. — General order No. 38, relative to religious liberty. Twenty-sixth. — General order No. 39, persons answering for capital and other infamous crime. Twenty-seventh. — General order No. 40, to amend article 2, sec- tion 7, of the Constitution. Twenty-eighth. — General order No. 46, to amend article 3, to establish boards of arbitration. Twenty-ninth. — General order No. 47, to amend article 3, rela- tive to private and local bills. Thirtieth. — General order No. 51, to amend article 10, section i, relative to Governor removing public officers. Thirty-first. — General order Xo. 60, to amend article 8, section n, relative to debt limitation of cities. Thirty-second. — General order No. 66, to amend article 12, sec- tion i, relative to oaths of office. Thirty-third. — General order No. 70, to amend article i, section 6, relative to conspiracies. Thirty- fourth. — General order No. 75, to amend article 3, section 8, relative to the eligibility of persons to a seat in the Legislature. Thirty-fifth. — General order Xo. 71, to prevent discrimination in rates or charges either by railroad, telegraph or telephone com- 634 REVISED RECORD. [Thursday, panics, corporations or common carriers doing business in this State. Thirty-sixth. — General order No. 68, to amend article 8, relative to franchises in city streets and places. Thirty-seventh. — General order No. 59, to amend article 7 of the Constitution. Thirty-eighth. — General order No. 5, relative to the transfer of land titles. Thirty-ninth. — General order No. 19, to amend section 18 of article 3, relating to special or local laws. Fortieth. — General order No. 23, to amend section 13 of article 3, as to passage of bills by the Legislature. Forty-first. — General order No. 24, relating to grants. Forty-second. — General order No. 30, as to the powers and duties of the Legislature in forming and dividing counties. Forty-third. — General order No. 37, relative to criminal prose- cutions. Forty-fourth. — General order No. 43, relative to soldiers and sailors homes. Forty-fifth. — General order No. 49, to amend article i, section 7, relating to taking private property for public use. Forty-sixth. — General order No. 56, to amend article 8, section 6, in respect to banks. Forty-seventh. — General order No. 73, to amend article n, rela- tive to the militia. Forty-eighth. — General order No. 76, to amend article 3, sec- tion 6, as to pay of members of the Legislature. The President — The question is on the adoption of the resolution. Mr. Bowers — Mr. President, I make a point of order. Thurs- day in each week is set apart for the consideration of general orders only. The introduction of this resolution to-night prevents our receiving the benefit of the rule on a matter which is to be adopted, to postpone for a day, which is intended to be twenty-four hours. It seems to me there can be no fair construction of the rule, no reasonable construction as we originally understood, that would allow a resolution of this character to be introduced to-night. What we have been doing has been done by unanimous consent, and I submit as a point of order that this resolution cannot come up to-night, that we ought to go into Committee of the Whole, August 30.] CONSTITUTIONAL CONVENTION. 635 and unless by unanimous consent, that we are not entitled to do any business except the business of the Committee of the Whole. The President — The Chair had already ruled upon that point of order when raised by Mr. Veeder. Mr. Bowers — I make the point of order, Mr. President, that this resolution is debatable and cannot be considered to-night. The President — The Chair rules that that point is well taken. The matter will be considered to-morrow. Mr. Cochran — Mr. President, may I ask that the resolution be read again? There was a resolution in reference to the apportion- ment article. The President — The Secretary will read the first part of the resolution. The Secretary read the first part of the resolution, heretofore read. The President — It goes over until to-morrow morning. Mr. Barhite — Mr. President, I desire to offer a resolution. Mr. Roche — Mr. President, I came in a little late and I ask for information if a point of order had been raised and there has been any ruling upon it to the effect that these resolutions should be referred as a matter of course to the Committee on Rules? The President — The point of order was made that it should go over until to-morrow because it gave rise to debate, and it was held to be well taken. M r. Roche — Well, I ask, Mr. President, if, under rule 50, which starts out, "All proposed action touching the rules and order of business shall be referred as of course to the Committee on Rules," does not of necessity send these resolutions to the Committee on Rules. The President — It was held over until to-morrow, under the rule. You may make that point then. Mr. Roche — I make the additional point of order that these reso- lutions relating to the order of business before the House should be referred as matter of course to the Committee on Rules. The President — Would you have it referred to the Committee on rules now? Do you claim that it should now be committed to the Committee on Rules? It is so referred, and the Committee on Rules will report upon it to-morrow. Mr. Barhite's resolution was read by the Secretary, as follows: R. 190. — Resolved, That the Committee on Rules be directed forthwith to report an amendment to rule 24, striking out the 636 REVISED RECORD. [Thursday, words "two-thirds," and inserting in place thereof the word "majority." Mr. Bowers — I make the point of order that it goes to the Com- mittee on Rules. The President — The Chair is of the opinion that this being a resolution instructing the Committee on Rules does not go to the Committee on Rules ; otherwise, it would be entirely futile. Mr. Bowers — Then we make the point of order that it is to be debated and cannot be taken up to-night. The President — It goes over until to-morrow. Mr. Andrew Frank — I move that the privileges of the floor be extended to the city clerk of Brooklyn, Mr. Joseph Benjamin, dur- ing his stay in this city. The President put the question on granting the privileges of the floor, and it was determined in the affirmative. Mr. Cochran — Mr. President, I rise to a question of privilege. The President — Mr. Cochran rises to a question of privilege which he will please state. Mr. Cochran — Owing to the fact that, during the very interest- ing and exciting debate this morning, there were a number of very general charges made against the members of the minority in this body, and which by their general terms, sir, included myself as much as any other member of the minority, I desire to avail myself of the question of privilege, to say a few words. The charge was made on this floor by a number of the gentlemen of the majority, that in this Convention there was a faction in the minority of this Convention, who were obstructing the business of the Convention and were doing that by continuously calling for the ayes and noes on questions that were of no importance, and that it was apparent, therefore, to the gentlemen of the majority that the ayes and noes were called only for the purpose of delay. I would say, sir, that I, myself, have been guilty once before to-day of calling for the ayes and noes upon a question, and, therefore, that these general remarks relative to the members of the minority party were as much appli- cable to myself as to any other member of my party. I have taken pains during the recess of this Convention to examine the records and proceedings of the Convention and of the Committee of the Whole, to see what the fact was, and whether I was guilty of the charge of which I might have been accused by the gentleman who spoke this morning. I find that since this Convention opened, and down to and including the close of the proceedings last night, August 30.] CONSTITUTIONAL CONVENTION. 637 there were just thirty-three roll-calls on a call for the ayes and noes, and I find that of those thirty-three, twenty-three of them were on the calls for the ayes and noes by members of the majority party in this Convention, and that ten of those calls were on the call of mem- bers of the minority of this Convention, and of the ten, which the members of the minority in this Convention moved, two were on roll-calls relative to the adjournment of the proceedings of this Convention on motions of members of the majority party, and when the members of the minority party wanted to stay here and do work which we felt that we should do. As to the other eight, I believe, sir, that when I tell the members of this Convention what they were, the falseness of the charge which was made against the members of the minority party this morning will appear. One of those roll- calls was on the question of the contest in the election districts in the city of Buffalo. Another was on the question of the change of the jury system. Another was whether we should abolish capital punishment. Another was whether we should take away the limit of five thousand dollars, which is now fixed as the amount of dam- ages to be recovered for injuries resulting in death. Mr. Davies — Mr. President, I rise to a point of order. The gen- tleman is not speaking to a question of personal privilege. The President — The point of order is not well taken. Mr. Cochran — Another was, sir, a question which involved suf- frage of the inmates of the Sailors Snug Harbor on Staten Island. Another was in reference to public officers, a bill introduced by Mr. Mereness. Another one was on a question of high license, a bill introduced by Mr. Titus. Those constitute the only general roll- calls which the members of the minority party in this Convention asked to have. If any gentleman in the majority can see anything in that which is an obstruction, I say I plead guilty. The President — There is no doubt the Convention is delighted that Mr. Cochran has been able to vindicate himself so thoroughly. Mr. Root — Mr. President, I move that Mr. Cochran's plea of guilty be accepted. The President — The motion is out of order. Mr. Barhite — Mr. President. T offer the following resolution: The Secretary read Mr. Barhite's resolution as follows: R. TQI. — Resolved. That rule 27 be amended by striking out the words "two-thirds," and inserting therefor the word "majority." The President — It is referred to the Committee on Rules. Mr. Johnson will please take the chair. 638 REVISED RECORD. [Thursday, Mr. Kerwin — I ask the President to retain the chair for a few moments. The Convention resolved itself into Committee of the Whole, Mr. I. S. Johnson took the chair. Mr. J. Johnson — Mr. Chairman, I desire to inquire how much time remains on behalf of the advocates of the measure. The Chairman — Twenty-five minutes on each side. Mr. Nicoll — I have only a few words to say, Mr. Chairman, by way of the conclusion of the discussion upon the present amend- ments relating to cities. We have reached a very solemn moment in the course of our deliberations upon this amendment. We are approaching a time when this Convention will have to decide whether or not the great problem of home rule, which the people expect us to solve, shall be turned aside for another generation. We are confronted now with the proposition whether or not we shall repeat the experience of the Convention of 1867, which denied the hopes, the wishes, the desires, and aspirations of the people upon this subject, or whether rising for once above partisanship, forgetting that we are either Democrats or Republicans, we can drag out of this discussion that well digested and satisfactory meas- ure of local self-government which three and one-half millions of people of this State now living within the corporate limits of cities have a right to expect from this Constitutional Convention. Dis- turbed as we have been to-day and several days before by merely party considerations, and great as the danger is that this Constitu- tional Convention may wind up in political debate only, let us, if we can, upon a high plane, with a sense of obligation to our oaths, endeavor to-night to cast aside partisan advantage and prepare for submission to the people something which has a fair opportunity of adoption. I am here, Mr. Chairman, to advocate the measure which is proposed by the minority of the Committee on Cities, because unlike the mongrel measure of home rule which proceeds from the majority of that committee, it represents a well conceived, well digested measure of local self-government ; because it contains within its well-defined limits all the views of those who have devoted years to the study of municipal government, and the bringing about, if possible, a better order of things for the people of our cities. I was surprised, Mr. Chairman, yesterday afternoon when I moved an amendment to one of the sections of the present article, proposing to substitute first seven-eighths, and then four-fifths, for the present three-fifths provision to hear the distinguished President of this Convention state that the home rule which I was advocating- was the August 30.] CONSTITUTIONAL CONVENTION. 639 home rule desired only by Tammany Hall. If, gentlemen, that had been its real purpose, if I was indeed speaking the wishes and desires of Tammany Hall on the subject of home rule, I should have been entitled to the respectful attention of this Convention, because it is not to be denied that, for several years past, within the limits of Tammany Hall, has been enrolled the great majority of Demo- cratic voters in the city of New York; a majority not less imbued with the desire for good government, not less instinct with patriot- ism than those who are found within the compass of the Republican machine in that city. But, sir, this is not a question of Tammany Hall or anti-Tammany, or of the committe of thirty, or of the Mil- holland faction, or of any other faction or party in the city of New York, or of any other city in the State. I do not propose to descend to that plane of discussion. I have no desire to divert this discus- sion into the paths of political and personal inuendo. We of the minority, as the President of this Convention has well said, are not here as politicians. We do not pose as politicians. We are not officeholders. We are not men \vho pass our time trying to get street sweepers appointed or looking for the plums of patronage. We have indeed, perhaps, but little political influence in our respective localities, but I may perhaps remind the Convention in passing, that we at least of the minority had enough political influ- ence to be nominated by Conventions who expected us to appear on the floor of this Convention, and that we are not here by virtue of a political accident. But it is said that this measure must be defeated because it is a measure advocated by Tammany Hall. It is not an unusual thing, Mr. Chairman, for those who wish to escape the penetrating gaze of the people, and to avoid their just criticism, to endeavor to divert an issue by political suggestions. But that attempt cannot succeed here. The responsibility for the defeat of home rule and local self-government in this Convention shall be put where it belongs. I will tear aside the veil of hypocrisy, throw off the mask, and have the people of this State know, if the cause of local self-government is to be defeated in this Convention, just where the responsibility belongs. Bear with me for a moment while I recite the history of the cities proposition in this Convention. The Convention assembled. The distinguished President of the Convention appointed a committee for the purpose of considering the various propositions relating to the good government of cities. That committee assembled and sat for weeks and weeks listening to everyone in the State of New York who had anything to propose upon the subject. They listened with patience and consideration to the views of all classes and conditions 640 REVISED RECORD. [Thursday, of men. Before that committee appeared whom? First dame the committee of twenty-one representing all the reform associations of this State, and then came the distinguished president of Columbia College with his well-considered views upon the subject. And what did they advocate? Did they advocate a retention by the Legisla- ture of this State of its powers over cities with regard to local affairs? Did they advocate any two-thirds or three-fifths vote in the Legislature upon such question? Not at all. They advocated, what all men know is essential to good government of cities, sepa- rate elections, and an absolute prohibition of the Legislature to pass special la\vs in regard to cities either without consent of the local authorities. That was their proposition. Was Mr. Seth Low, when he appeared before the Committee on Cities, an advocate of Tammany Hall? Were the committee of twenty-one, when they stood before the Cities Committee demanding as one of the essen- tials to a proper local self-government an absolute prohibition on the part of the Legislature to interfere with the government of cities, the spokesmen of Tammany Hall? Why, not at all. They spoke their own views. They simply said, what every one in this Con- vention knows, that it is impossible for cities to work out any scheme of better local government without separate elections and without an absolute prohibition on the part of the Legislature to interfere at all with their local affairs. And then what happened? The majority of the Committee on Cities took up the proposition, which had been submitted to them by the committee of twenty-one and by the other reform associations of this State, and they reported it to this Convention, and the distinguished chairman of the Com- mittee on Cities over and over again, upon the floor of this Con- vention, insisted, demanded, from this Convention, a provision abso- lutely prohibiting interference by the Legislature in the local affairs of cities. I read from his report. He says: "This is a very large grant of power to cities, and it is intended and believed to be effective and permanent. In and by itself it is a larger degree of home rule than has ever before been presented by any legislative official body. It is certainly a step in that direction, and a very long one. If nothing more comes of it, the officials of the city cannot escape responsibility for legislation on the subjects enumerated ; and the Legislature itself, being without power, will be without the solicitation to interfere in such matters." I had the honor, upon the floor of this Convention, to congratulate him, because he had been able to work out the proposition as well as he had, and because he had been able to see. among all the con- flicting opinions, the two propositions of local self-government. August 30.] CONSTITUTIONAL CONVENTION. 641 And, then, gentlemen, what happened? Why, in the first place there went up from the organs of the Republican party in this State a cry that that kind of home rule must not be given to the cities of the State. In a leading editorial on the subject the party organ said, " the chairman of the Committee on Cities is a very honest, earnest, but a very indiscreet man." And then what next went up? From the machine of the Republican party in this State went up a woeful cry. What? Take away from the Legislature of the State the power to govern the cities of the State? Deprive us of our time-honored custom of interfering with the government of cities? Where, then, would be our patronage? How can we subsist? Without the national and State governments our only perquisite is interference with the government of cities. Where would be our appointments on the aqueduct? Where our policemen and fire- men? Where our slices of fat contracts? Wrhere all the privileges to which we have been entitled for so many generations? What, no more plums from the municipal pudding, no more fingers in the municipal pie! Do you not know that three-fourths of every volume of the Session Laws of this State is filled with special acts relating to cities? Take that power of legislation away from us and our occupation will be gone. Something must be done; at all hazards, the chairman of the Committee on Cities must be compelled to retreat. And then what happened? The distinguished Presi- dent was appealed to. He, as has been said, is not sophistocated in political matters. He is unfamiliar with the ways that are dark and the tricks that are vain. He was asked to come to the rescue. He arose upon the floor of this Convention, " A fairer person lost not heaven. His tongue Dropped manna and could make the worse appear The better reason, to perplex and dash Maturest counsels." And then he suggested that as a compromise between the reform- ers who demanded absolute prohibition on the part of the Legisla- ture, and the machine, which insisted that there should be no prohibition at all, that there should be a three-fifths vote upon the subject. Dust in the eyes of the reformers; the loaves and fishes to the machine. No wonder that the gallant commander of the Chautauqua navy was heard to exclaim: "How our President grows in statesmanship every day." And, then, gentlemen, our only hope — the only hope that the people of this State had — was in the redoubtable chairman of the 41 642 REVISED RECORD. [Thursday, Committee on Cities, who, during the first months of this Conven- tion, made the corridors of this Capitol tremble with his assevera- tions that he, at least, would never desert his post. Imagine our surprise when he, too, surrendered and came back with the cities article incorporating the three-fifths provision, and permitting business to be done at the old stand as in former years. No wonder he could not defend his position on the floor of this Convention. No wonder that he could not speak in defense of that portion of his amended article. " He was led like a lamb to the slaughter, and as a sheep dumb before its shearers he opened not his mouth." His place was taken by the bald-headed sage of Cherry Valley, who tired of playing Boswell to our Johnson (laughter), endeavored to usurp his place and to reconcile the last production of the Com- mittee on Cities with the first. Such, gentlemen, is the lame, impotent conclusion which we have reached. Now, what is the proposition of the majority? Separate elections. That is good. Three-fifths vote. That is nothing. But in addition to that you have loaded it down with the proposition which you knew would make it unacceptable to the minority of this Convention. You knew that no Democratic votes could be obtained for a proposition which, pretending to give home rule, incorporated within its limits a pro- vision that the Governor of the State should have the power to remove and appoint police commissioners. We, who live in cities, knew that that would he the end of peace and order in our midst. We knew that to take away from the mayor the power to control the police would work demoralization. You knew that it was impossible for us to accept any such proposition. Had you been instinct with the desire to give real home rule to cities, why did you leave that portion of it out, and submit it if you chose as a separate amendment to the people, to see how they treated it? Why anchor down a proposition for better self-government in cities by such a. dead weight? And that is about all there is of the present propo- sition. We have substituted in its stead, a measure which expresses the views of all of those who have given years to the study of this subject. We provide for separate elections, for non-interfer- ence on the part of the Legislature on those subjects which are of city control only. And that is the proposition which we urge upon this Convention to-night. I beg to remind you, gentlemen, that we are not here passing a Constitution in the first instance: everything which we do here must afterward go before the great jury of the public. The Chairman — The twenty minutes are up unless the additional five minutes that is conceded to the minority be given to Mr. Nicoll. August 30.] CONSTITUTIONAL CONVENTION. 643 Mr. Mulqueen — Mr. Chairman, I ask that the five minutes be given to Mr. Nicoll. The Chairman — If there is no objection. . Mr. Mclntyre — I object. Mr. J. Johnson — I trust the time will be given to him. The Chairman — I would suggest to the gentleman that the minority are entitled to the five minutes, and if they are willing Mr. Nicoll should occupy the time, I should say there is no real objection to that. Mr. Mclntyre — I am perfectly willing Mr. Nicoll should have all the time they have. The Chairman — That is all that was asked for. Mr. Nicoll will proceed. Mr. Nicoll — Mr. Chairman, I have only one more word to say. This Convention cannot afford to adjourn without preparing a satisfactory article for home rule to cities in this State. For twenty years the people of this State have been looking forward to this Convention for the purpose of having all their hopes, their wishes and their desires upon this subject gratified. What shall we say to them? What can you say to them, who claim to be responsible for the amendment in this Convention, if nothing proceeds from this body in the way of home rule? Strike out, I beg you, to-night, that offensive article in regard to the police. View the situation as it is. Let the mayors of the cities remove police commissioners, as formerly, and let those mayors in turn be amenable to the chief executive of this State. Strike it out. It is rankly partisan. It will never be of any good. Certainly it will do no good to the people who live in the cities of this State. And then restore to this amendment that which was first recommended by the Committee on Cities. Make the prohibition on the part of the Legislature as to interference with our local concerns absolute. Leave the pro- vision for separate elections as it is, and having done that, you will at least have done something to have" gratified the hopes and wishes of 3,000,000 of people now living in the cities of this State, and have contributed something to the blessings of civilization for millions yet unborn. Let us make one last attempt, notwithstanding the passions of the moment, to rise above partisanship, and conscious of our duties toward the people of this State, and mindful of our oaths to them, let us submit something to them which, in the course of years, will bring them the blessings for which they will be grateful to this Convention. Let us not go down to history as weak, impotent, partisan creatures, who could not rise above the passions 644 REVISED RECORD. [Thursday, of the moment, for the purpose of giving some beneficent govern- ment to the people of the cities of the State. (Applause.) Mr. E. R. Brown — Mr. Chairman, after the weariness follow- ing the long debate upon this subject, I feel that any contribution that I make to it will add but little to the ability of any mem- ber to arrive at an intelligent conclusion. I shall be very brief in jny remarks. This is the first time that a Convention has ever met that could take into its consideration and deliberation the problem of city government and municipal reform as it exists to-day. No Convention whose work has ever been adopted ever had this problem staring it in the face. In 1846, the population of New York city was less than 375,000. In 1846, the population of Kings county was less than 80,000. So we are confronted now with a new problem yet unsolved, and to the newness of the subject,, and the difficulty of solving the problem, I attribute the long delay, the arduous labor, and the partially unsatisfactory result which we have reached. But, Mr. Chairman, in the consideration of this question we should look at it from the broad view of the State, As I listen to the arguments of my friends from the great cities, I come to think that the rest of the State must be principally devoted to raising vegetables for the cities which constitute the real center of attraction. But it seems to me, Mr. President, that that is not the high or the elevated view which this Convention should take of this problem. I yield to all those gentlemen save in relation to their pride in regard to the city of New York and the city of Brooklyn. But the city of New York, while it has been the source of pride, has brought the blush of shame many a time to the patriotic citizens of the State of New York. The same with the county of Kings, which has given us this last year one of the most infamous scandals that has ever degraded our annals. Mr. Chairman, we must look upon them with due consideration and due pride for the good that is in them, but we must not forget that we also have to look charit- ably at them, if we would preserve the sacred honor of the State. Now, in the consideration of this question, my friends of the minor- ity insist that we shall constitute these cities into self-acting and self-controlled bodies. Shall we do so? Will it be in analogy with past constitutional enactment? When we first met to frame the government of the State of New York we had the examples of the old colonial establishments. Town government followed from them. County government followed from them. Was there any such authority ever conferred upon towns or conferred upon coun- ties as these gentlemen ask shall be conferred upon cities? Must we then constitute these municipal corporations into independent August 30.] CONSTITUTIONAL CONVENTION. 645 bodies which the State bars itself from reaching? Has the time come, Mr. Chairman, when we shall remit municipal corporations to the condition of domestic and private corporations? Shall we allow them to be controlled by courts of equity? Shall the Attorney-General bring suit to dissolve and wind them up when they fail to behave? That is the analogy which my friends of the minority seek to have us follow in putting their provisions into the Constitution upon this subject. No, Mr. Chairman, in attempt- ing to formulate a constitutional provision upon this subject, we have to remember that it is a new one so far as constitutional action is concerned. If we shall take one step in constitutional develop- ment ; if we shall go forward even so much as we have gone forward in the bill which has been brought in by the Committee on Cities, we shall have risked enough in derogation of the sovereignty and the power of the State, until we have discovered whether those who have heretofore been negligent, recreant to their duty, will, under the additional responsibility, rise equal to the occasion and dis- charge their duties as citizens and as representatives in a creditable manner. What is there in their past history to warrant us in grant- ing this additional power? We grant it reluctantly, looking to the honor of the State, but we grant it gladly so far as we regard it as the only and the last resort for the resurrection of a virtue in these cities. Mr. Chairman, New York State has always been a hard State to manage in the organization of great constitutional move- ments. The first members of the federal constitution deserted and came home because they could not have their own way. In the next great crisis, the war of the rebellion, the honor of New York State was in the balance, and no man knew whether she would stand for the right or the wrong for many a long day and for many a long month. New York State has now to confront another problem, comparable in difficulty with the organization of the federal Con- stitution, comparable in difficulty with the difficulty which Alex- ander Hamilton met when he sought to bring New York State into line under that Constitution, comparable in difficulty to the terrible difficulty that the patriotic citizens of New York State experienced from 1861 to 1865. But I pray of you, gentlemen of this Conven- tion, let no desire to have the absolute and unbridled control of the patronage of any city intervene to make you take the position requiring everything or nothing. I appeal to you, Republican members of this Convention, because you cannot satisfy those who make unreasonable demands upon this subject, because there may be some matter of detail in this proposed measure which does not meet your original approval, do not abandon this subject. Let not 646 REVISED RECORD. [Thursday, this long debate, let not the acrimony or the wearisomeness of it, deter you from keeping on until you shall have solved this problem. The past we have made secure, and I believe that if this Convention devotes itself honestly, in as an unpartisan a manner as men may be expected to act, we shall succeed in making the future as glorious as we have the past. (Applause.) Mr. J. Johnson — I would like to ask of the Chairman how much time remains. The Chairman — Fifteen minutes. Mr. Johnson — I think it would be fair to have possibly five minutes additional time on account of the first speech being not altogether on the topic we present. Mr. Mulqueen — I ask that unanimous consent be given to extend the gentleman's remarks half an hour. The Chairman — He only asks for five minutes. If there is no objection five minutes will be granted, and the time will be extended to twenty minutes from the present time. Mr. Johnson — Mr. Chairman, I do not anticipate that I will use all of the time courteously allowed, but it is sometimes very difficult to speak, feeling the limitation of pressing time. At last, Mr. Chairman, we have arrived at the statement and concession that the great problem in the minds of the people who sent us here, the greatest problem of this Convention, is the question of what to do with the rule of the more than 4,000,000 of people who live in our great cities. At last we have arrived at the concession that the proposition submitted by the Committee on Cities did present, apart from objections which I will discuss in a moment, a full, fair, well-founded and well-secured system of home rule for the more than 4,000,000 of people who live in our great cities. At last we reach the concession that this article, the first essay ever made in this State for twenty years, was full and fair and complete in that which it granted to cities. That fact, sir, will live and would live without the concession. It is written and graven in the truth and the documents which have been presented. This proposition for the government of cities was based upon nothing but the ballot. Whatever may be said, write of us, my conferees on the committee and myself, as those who trusted their fellow men. We believe, sir, that there are intelligence, worth and probity enough in the great cities to make them the jewels, the ornaments and the glories of our State. We asked, sir, for this proposition, but one proposition, a fair election and an honest count; and for that we asked four safe- guards only. What are they? We asked that there be majority August 30.] CONSTITUTIONAL CONVENTION. 647 and minority counters at the polls. In the report which was sub- mitted by the minority they said that was right, and it has since been conceded and adopted without dissent. We asked for separate elections. That has been conceded on this floor; it has been voted by the minority of the Cities Committee that that demand was right. We asked minority representation in the city councils, in the great hives of the people that crowd our immense cities; that the minority of the Committee on Cities said was right and indorsed it in the resolutions which they offered in the committee, having sub- mitted their report along with the majority report of the Committee on Cities, and having in it said that they would soon present an article. In the report which was made by the minority of that committee, not one word or syllable was said that opposed the demand that a restraint should be put on the police so that they might not become the accomplices of the defrauders of the ballot, as in Gravesend and Troy. They in effect said that was right, for they made no objection to it. Having thus conceded in writing three of the safeguards, we asked, conceding the other by not objecting, this article came into this Convention with full and fair prospects of fair discussion. But, sir, when it reached here, what was said of it? That was said of it, which is said in the minority report of the Committee on Cities, that it did not do what it is now conceded it did do; that its promises were delusions; that its efforts fell short; that it was a failure toward securing municipal inde- pendence in cities. That was the contention of three days of debate. For three days it was assailed in detail and in particular, and there was found nothing right and nothing proper about it. Then the article went back to the Committee on Cities. It was brought back, but slightly changed. Then came the minority crying that that which they had assailed as wrong and fraudulent and ineffective, was right, was sufficient, was satisfactory, and an honor to the committee that presented it. And then they threw themselves upon the proposition for safeguards of the ballot, that we had demanded for our home rule article, propositions which in the original they had agreed were fair and proper and reasonable, and should be granted. Such is the position of the minority on home rule, that, either way you turn, they assert that it is wrong. Whether we go to the right or the left, they simply say to us, whichever way you go, you should have taken the other road. Then, sir, come the events of this week. The article had been slightly modified by making a three-fifths vote necessary; practically prohibitory, amply sufficient, and, in the mind of all just men, seeking to secure full municipal independence. Then came the amendment as to the 648 REVISED RECORD. [Thursday, police. That was an amendment that, while I do not entirely agree that it was the very best means, was an amendment which was just and proper, and which secures to minority and majority alike their just rights. Thus stood the bill with all its original integrity unim- paired, with nothing in it that they had originally dared to say was •to be complained of, and that being the situation, they send in a minority report, two months after this report, practically as it is mow, was in print; as the debate begins they send in a minority report, and reserve their attack for that which the chairman of the minority of the Cities Committee (Mr. Hotchkiss), in the proposi- tion he has submitted, had said was right; and which had been con- •ceded by the entire minority of the Cities Committee in their original proposition. There has opened the attack to-day. I •discuss not its propriety or impropriety. I say it is a leap from ambush, and with intent to kill. It is an attack on a position which they had in the early debate agreed was just. And there, sir, this minority, striking out minority representation in city councils, •wounded, for the first time, the fair efficacy of this measure. That, .•sir, is their act, and their confession is that the provision we had made was right. They are convicted out of their own mouths. What is the other incident of this discussion? Their proposed amendment is an overshadowing incident. The first sentence in their proposition is that cities shall be classified and have uniform charters. I refer you to page 748 of the debate. I refer you to what was said where one of the orators of this evening, one of their leaders, one who leads the debate to-night, who has been four years corporation counsel, backing himself with the high authority of the Court of Appeals and its written opinion, said that uniform •charters were impossible. So their first proposition is that in order to have home rule you must do the impossible. Their next presen- tation is that the Legislature shall be bereft of all powers as to cities •except with the approval of the city. Sir, if their amendment stood, there was but one thing to add to it. They should have said: the city of New York, the city of Philadelphia and the city of Chicago are put into one class, and the Legislature shall pass no law as to either which does not take effect as to all. The only tie that they would allow to exist between the sovereignty of the State of New York and its great city would be its common council, discredited, disowned and anathematized by their own orators. Is that an honest substitute for the article which they applauded? To adopt that proposition would be to dismember the State of New York and nothing else. New York city, save for its miserable common coun- cil, would be as far from the power of this State as is Washington, August 30.] CONSTITUTIONAL CONVENTION. 649 and the power never could be resumed, save with the consent of the common council. And so that band, which is trusted only to license peanut stands, wpuld take control of the diadem city of the State of New York. It is unnecessary to follow this argument further. I said in earlier debate that they wanted home rule, when all means resisted, and the facts that I have shown establish that they could not get it, and when it was thrust upon them, they by proposition. And so, sir, with that statement it is established that there is but a single proposition before you that can in any wise fulfil the great demand and expectations of the people, voiced and presented in eloquent language by their orators, that there is noth- ing else in all that has come from these deliberations, nothing else that you can take, to satisfy this demand, to fulfil the greatest duty that remains in the State of New York in this century, there is nothing before you to vote on, nothing that you can adopt save the article presented by the Committee on Cities, complete, effectual and honestly and properly prepared. (Applause.) I beg that the article may be adopted. (Applause.) The Chairman — The question is on agreeing to the substitute offered by Mr. Davenport. Mr. Choate — On that I call for a rising vote. The Chairman put the question on the substitute, and, by a rising vote, it was determined in the negative — ayes, 45; noes, 75. Mr. Jenks — Mr. Chairman, is a further substitute in order? Mr. J. Johnson — I submit it is not, Mr. Chairman. The Chairman — The Chair rules it is not in order. The rule pro- vided the course that should be pursued. Mr. Jenks — I submit to the Chair. Mr. Peck — Mr. Chairman, I wish to state as a matter of personal privilege, that I did not vote and I cannot vote on these questions to-night, because Mr. Hawley, a member of the majority, has been taken ill in such a way that it would be dangerous for him to be here, and I have paired with him on that account. Mr. Jenks — Mr. Chairman, just one word more. I ask the ruling of the most efficient Chairman, the expert on all matters of parliamentary law, whether unanimous consent of the Committee of the Whole would permit me to offer a substitute? Mr. Johnson — I object, sir. Mr. Jenks — Do you object without hearing it? Mr. Bowers — You might allo\v us to read it, Mr. Chairman, to see whether unanimous consent may be given. 650 REVISED RECORD. [Thursday, The Chairman — It can only be done by unanimous consent. Mr. Vedder — Let us hear it read. Mr. Jenks — I will read it. " The Legislature, at its session next after the adoption of this article, shall classify the cities of the State into not less than three, nor more than four classes, proportionately to their respective populations, and such classification shall there- after be determined by the then latest State enumeration. The Legislature shall enact general laws for the government of cities, so that all cities of the same class shall possess like powers and be subject to the like restrictions." If unanimous consent be granted, I will offer this as a substitute. Mr. Johnson — I object, Mr. Chairman. It is hardly different from what has been repeatedly been before us heretofore. The Chairman — Objection is raised. Mr. Johnson — Mr. Chairman, I move you that the Committee of the Whole now rise, report this article favorably to the Conven- tion, and recommend its passage. Mr. Bowers — I call for a division. The Chairman put the question on Mr. Johnson's motion. Mr. Cochran — Before the vote is announced I would like to say that I would have voted with the minority, but I am paired with Mr. Springweiler, of Erie, who would have voted with the majority. The question of Mr. J. Johnson's motion, by a rising vote, was determined in the affirmative — ayes, 87; noes, 47. Whereupon the Committee of the Whole rose, and President Choate resumed the chair. Mr. I. S. Johnson — Mr. President, the Committee of the Whole have had under consideration proposed constitutional amendment (printed No. 451), entitled to provide home rule for cities, have gone through with the same, have made some amendments thereto,, and instructed the chairman to report the same to the Convention, and recommend its passage. Mr. J. Johnson — Mr. President, I offer the following resolution: The Secretary read Mr. Johnson's resolution as follows: Resolved, That the report of the Committee of the Whole be disagreed to, and the proposed constitutional amendment be recom- mitted to the Committee on Cities, keeping its place on general orders, with instructions to strike out all but the first section, and report the same so amended immediately. Mr. Johnson — On that I move the previous question. August 30.] CONSTITUTIONAL CONVENTION. 651 The previous question was ordered. The President — The question is on the adoption of the resolution offered by Mr. Johnson. Mr. Tekulsky — I call for the ayes and noes. The call for the ayes and noes was sustained, and the Secretary proceeded to call the roll. Mr. Bowers — Mr. President, the previous question being moved prevented any opportunity to amend. I am in favor of reporting separate elections, but inasmuch as this compels us to put in clauses which it is evidently not the intention of this Convention ultimately to hold as to the terms of officers, 'and inasmuch as we have not yet received any report as to the term of the Governor and State officers, it seems a manifest absurdity at this time to report those separately. For such reasons only, I vote no. Mr. Cochran — Mr. President, for the reasons stated by Mr. Bowers, I will vote in the negative ; and I will also vote in the nega- tive for the further reason that the motion to strike out all after the first clause kills this home rule bill just as I said this Convention would do. I have said from the very beginning that these gentlemen do not want home rule, and the only element of home rule in this bill they now move to strike out. They do not move to separate these propositions, and bring them in here, but all they want to leave here is separate elections. That I am in favor of, but I am also in favor of home rule for cities, and for that reason I am not in favor of striking out this proposition, although I do not agree to- ft in its present shape. I vote no. Mr. Holcomb — Mr. President, reserving my right to pass upon this proposition when it shall come anew from the committee, and not considering myself included, and not precisely understanding the wording of the resolution, I vote no. Mr. Kerwin — Mr. President, I ask to be excused from voting and will briefly state my reasons. If, after listening to the father of the home rule scheme which has been in this Convention now and under consideration for six days in the Committee of the Whole, and listening to the harangue set up against the minority to-day about taking up time in dilatory motions ct cetera, I think that the father of this home rule scheme is incapable of bringing any home rule measure in this Convention which the majority will confirm, I withdraw my request to be excused from voting and vote no. Mr. M. E. Lewis — Mr. President, I desire to be excused from voting and will briefly state my reasons. I believe that Republicans 652 REVISED RECORD. [Thursday, high in the counsels of the party in this Convention do not desire and have not desired that this Convention should incorporate into the Constitution of this State any article which would give the cities of this State any measure whatever of home rule for those cities. If that is the case, Mr. President, would it not be a more manly proceeding to put this article to a vote at once, and kill it outright, rather than by this underhand method. (Applause.) I oppose this amendment, Mr. President, from the bottom of my heart. I say that it is an outrageous proceeding for this Convention to waste its time as it has wasted it for the two weeks that we have had this proposition under discussion, and then to kill it in this backhanded, midnight manner. Mr. President, I desire to call attention to one other proposition, and that is this, that the separation of this first section from the rest of the article means simply that the Demo- cratic cities of the State of New York are to have one method and one system of elections, and the Republican cities of the State are to have another. I protest against that. I withdraw my request to be excused from voting and vote no. (Applause.) Mr. Maybee — Mr. President, I desire to explain my vote. I am in favor of separate elections for cities, and if a scheme for separate elections for cities could be so arranged as not to conflict with the terms of the State officers, and the convenience of elections in the country districts, I should strongly favor it, at all times. It is some- what remarkable that the Republican majority of this House, after having obtained a motion to report this bill favorably to the Con- vention, within one vote of enough votes to secure its passage on third reading, should now turn around and stab this proposition, which contains at least some measure of home rule for cities. The cause of home rule has been killed in the House of its friends. I withdraw my request to be excused from voting, and vote no. Mr. Mulqueen — Mr. President, I have been in favor of a propo- sition for separate elections, but only when it was accompanied with greater power to municipalities. In my opinion, separate elections will be a farce and a failure, unless in the common councils of the cities you give power to the men whom you expect to elect. Elo- quent eulogies have been delivered here upon the kind of men you can select in cities government when you have separate elections, but the men that the President and the leader of this Convention have in mind will never accept such offices without such power. Striking out, as you have, all the home rule that was contained in your article, having been informed that your caucus this afternoon decided to praise Mr. Johnson by passing his measure in Committee of the Whole and then kill it on this floor, and believing that sepa- August 30.] CONSTITUTIONAL CONVENTION. 653 rate elections, as you now propose them, would be a farce, and are merely a sop to the reformers and the good government people of the city of New York, I withdraw my request to be excused from voting, and vote no. Mr. Platzek — Mr. President, I desire to explain my vote. I am in favor of separating municipal from State and national elections. I regret that I am unable to vote for the whole article, knowing the energy, the ability and the conscientious endeavor bestowed upon that article by my friend, the distinguished chairman of that com- mittee. I regret that he did not eliminate the minority and propor- tional clause of it, and that part of the entire article which permitted the Governor to remove the heads of police, but vested the mayor, who was responsible for the peace and good order of the city, to make an appointment in case of a removal. Had that been done I could conscientiously, in justice to the people, to my party and to myself, have voted for the whole article. But inasmuch as I cannot have all that I desire, I will vote for that which is at least beneficial, in my judgment, and I withdraw my request, and vote aye. Mr. Tekulsky — Mr. President, I wish to state for the benefit of my colleagues here, that I am delighted to see the position that the majority has taken on this measure. For three long weeks they have delayed the proceedings of this Convention on a measure which was of no earthly use to anybody, no earthly use to either county or city. They have come here day after day, and session after session, and have talked majority and minority, and Republi- canism and Democracy, and what does it all avail? It was merely to gain time and try to get up a claim that the minority was the cause of the delay. This measure was introduced and kept here day after clay for the purpose of making a showing that they wanted to hurry up, and then pass all kinds of resolutions and have the Committee on Rules walk in here with amendments to the rules, to hurry up time and limit the debate. For what purpose? For no purpose at all, except to gain some imaginary political advantages. I say now that they have come down to the real tilings which the people have desired and do desire — separate elections. I withdraw my excuse, and vote aye. (Applause.) Mr. Blake — Mr. President, the leaders of the majority on the floor of this House denounced the minority in the severest terms and language, and charged the minority with obstructing the busi- ness of this body, and yet, after the lapse of all this time, to which so many gentlemen have referred, now the life of this bill is suddenly to be snuffed out as with a stroke of a pen. I am reminded of the 654 REVISED RECORD. [Thursday, fate of the little infant that hardly came into the world and whose life was snuffed out, and of whom it was said: " If so early am I done for, What on earth was I begun for? " Sir, the duplicity of the gentlemen, if I may be permitted • The President — Mr. Blake does not refer to any particular gentleman ? Mr. Blake — No, sir; I am tempted, in view of the extraordinary course-of the majority this evening, to recall the words of a dis- tinguished English statesman, who, overwhelmed by a sense of the duplicity of those about him, exclaimed, " Oh, that a tax might be placed upon hypocrisy, then indeed might we pay the national fix the time. 682 REVISED RECORD. [Friday, Mr. Bush — Is it proposed to make several reports, a report on each amendment? Mr. Cookinham — I understand a separate time will be fixed for each amendment. • Mr. Bush — All in one report? Mr. Cookinham — My idea is that it will be divided. Mr. Griswold — Mr. President, I had supposed, when rule 56 was adopted, that it was the intention when that very important power was conferred on the Committee on Rules to fix the time of debate, that it would be recognized that the different subjects and different amendments might require different time of debate. Some might require but a very brief time, while others, as would be reasonable and right, would require a longer time, and I suppose that the subject, recognizing it is a very important power to be conferred upon the Committee on Rules, would have a time allotted to it consistent to its importance. Now. whether that is to be done at the same time as the committee has proposed, or whether it is to be done as the different subjects come before the Convention, and shall be proposed by the Committee on Rules, I do not know. Now, the simple thing, which seems to be necessary is to refer it to the Committee on Rules, which seems to be the necessary thing, should be done, or you will never get through with this Conven- tion. Now, if it is a simple proposition to refer to the Committee on Rules as to how long a time shall be allowed on each proposition, why that seems to me consonant to what is necessary. The President — Perhaps Mr. Griswold does not understand what the pending question is. It is, shall the previous question now be put? Mr. Griswould — I wish to inquire of the Chairman, if it is pro- posed now that the Committee on Rules limit the time of debate on every question. Mr. Root — It is proposed merely that the Convention authorize the Committee on Rules to bring in a report or reports limiting the time upon these separately, and the intention is merely to lay out the work for a day or two or three days ahead as we go along, so that the Convention shall know what they are to do. Mr. GriswoM — Upon every question that comes up? Mr. Root — Upon every question as It comes up. Mr. Griswold — I am not yet informed why that is not appro- priate. Mr. Root — It is appropriate, Mr. Griswold. August 31.] CONSTITUTIONAL CONVENTION. 683 Mr. Griswold — Very well. Mr. Veeder — Mr. President, I rise to a point of order. I claim that it is wholly out of order for Mr. Root to discuss the merits of the proposition. The President — Perhaps it is out of order, after Mr. Root has completed the discussion, to raise a point of order. Mr. Veeder — That comes from the delay of the Chair in recog- nizing members. Mr. Lyon — Mr. President, I shall vote for the adoption of the rule proposed, but I think that a request for five or ten minutes for the purpose of debating a new subject was reasonable. Hence I vote against ordering the previous question. I vote no. Mr. Meyenborg — Mr. President, it seems to me that the major- ity have started out on the line of policy that the minority have no rights which the Republicans respect. The majority fight from a movable pivot. They change the rules to suit their necessities and all would be lost to the Democratic party if there was no appeal to the people who will have their inning in November, and like the words in Mikado " they will achieve in time to make the punish- ment fit the crime." I withdraw my request to be excused, and vote no. Mr. Roche — Mr. President, as a protest against the making of motions for the previous question when they are entirely unneces- sary, when they shut out questions presented by the members simply for information, and when the making of them leads to the consuming of more time than would be given up to debate on the main proposition itself, I vote no. The President — I think that if a very few minutes time for explanation of this entirely harmless, proper and necessary resolu- tion had been given, much time would have been saved and this vote would have been unnecessary. The proposition is merely to authorize the Committee on Rules from time to time as articles or amendments are becoming imminent on the day calendar, for the Convention to make a limit of time on them. It will be under the control of the Convention to make it or not. I vote no. The previous question was ordered by the following vote: Ayes — Messrs. Allaben, Arnold, Baker, Barhite, Barnum, Bar- row, Becker, Brown, E. A., Brown, E. R., Cady, Carter, Church, Clark, G. YV., Cookinharn, Crosby, Davis, Dean, Deterling, Dickey. Doty, Durfee, Foote. Frank, Andrew, Frank, Augustus, Fraser, Fuller, C. A., Fuller, O. A., Galinger, Goodelle. Griswold, 684 REVISED RECORD. [Friday, Hamlin, Hawley, Hedges, Hill, Hirschberg, Holls, Johnson, J., Johnston, Kinkel, Kurth, Lester, C. H., Manley, McDonough, Mclntyre, McKinstry, McLaughlin, C. B., McMillan, Moore, Morton, Nichols, Nostrand, O'Brien, Parker, Parkhurst, Pashley, Phipps, Pool, Pratt, Putnam, Redman, Root, Spencer, Steele, A. B., Steele, W. H., Veeder, Vogt, Wellington, Whitmyer, Wiggins, Woodward — 71. Noes — Messrs. Banks, Blake, Bowers, Burr, Bush, Campbell, Cassidy, Chipp, Jr., Cochran, Danforth, Davenport, Deady, Deyo, Durnin, Emmet, Farrell, Fitzgerald, Floyd, Forbes, Gibney, Giege- rich, Gilleran, Goeller, Green, A. H., Green, J. I., Holcomb, Hotch- kiss, Hottenroth, Jenks, Kerwin, Kimmey, Lyon, Marks, Maybee, McCurdy, McLaughlin, J. W., Meyenborg, Mulqueen, Nicoll, Ohmeis, Parmenter, Peabody, Peck, Platzek, Roche, Rogers, Row- ley, Smith, Speer, Sullivan, W., Titus, Truax, C. H., Tucker, Veeder, Williams, President — 55. The President put the question on the adoption of the report of the Committee on Rules on Mr. Cookinham's resolution, and it was determined in the affirmative. Mr. Root reported in favor of the adoption of the following reso- lution of Mr. Barhite: R. 191. — Resolved, That rule 27 be amended by striking out the words " two-thirds " and inserting in place thereof the word "majority." Mr. Bowers — That giving rise to debate, I suppose will lie over until to-morrow. Mr. Root — I think that that comes under the rule that if twenty- four second the demand that it goes over until the following day. The President — Is there not some mistake about your report. Rule 27 has nothing to do with that subject. Mr. Cookinham — It is rule 24. The President — The matter will have to go over until to-morrow if twenty-four members so demand. Twenty-four members objecting to the consideration of the rule it went over until to-morrow. .Mr. Root — Mr. President, the Committee on Rules submits a further report. The President — A further report from the Committee on Rules as to the order of taking up amendments. The gentlemen will give their attention. The Secretary will read the report. August 31.] CONSTITUTIONAL CONVENTION. 685 The Secretary read the report as follows: The committee reports favorably as amended the following: R. 195. — Resolved, That the proposed constitutional amend- ments hereinafter mentioned be made special orders for August thirty-first, at ten o'clock, in the order stated below, and that they each be considered in Committee of the Whole until disposed of except the general order in regard to apportionment which will have precedence over all other business after the day now fixed for its consideration. The President — Does the gentleman desire to have this report read? It has been read once. Mr. Veeder — There have been some changes made. The President — There have been some changes made. Will Mr. Root state the changes that have been made? Mr. Root — At the request of Mr. Roche general order No. 27 was moved up from the twenty-sixth place to the thirteenth place. Mr. Becker — What is that measure? Mr. Roche — It is the anti-trust measure. Mr. Root — And also one came through Mr. Deyo or Mr. Bowers, I do not know which, by which general order No. 23 was put on at the foot as we have it here. Mr. Bowers — Mr. President, we have had scarcely enough time for the minority members to make an examination as to whether everything is on there that ought to be on, and it seems to me that it might be well enough to let this matter rest until to-morrow. The President — Unless objection is made it will lie over until to-morrow, and will the Committee on Rules please withdraw to the President's room, and under the order just made propose a limit of time on the education matter that is to be taken up? Mr. Bowers — I desire to move that the list and reference to the order in which matters are to be taken up to be printed. Mr. Cookinham — Mr. President, I shall object unless it is required to be printed and laid upon the desks of the members to-morrow morning. Unless it is printed and on the desk of the members to-morrow morning it ought not to be printed. Mr. Bowers — Mr. President, I move that it be printed and laid upon the desks of the members to-morrow morning. Mr. Cookinham — That is all right; I will not oppose that. The President — It will be printed as a matter of course as soon as it is adopted. 686 REVISED RECORD. [Friday, Mr. Bowers — Mr. President, I thought we ought to have some opportunity to let members look at it before it is adopted. The President — It will be printed under the rules. Mr. Bowers — The only point is this, Mr. President, I think the members ought to be allowed to see this report, to see what is pro- posed in the way of special orders and compare it with the general orders and find if it is satisfactory. The President put the question on the motion of Mr. Bowers, and it was determined in the affirmative. Mr. J. Johnson — Mr. President, I purppse to make a mere parliamentary motion, which I will say in advance that I shall move to lay upon the table. It was suggested this morning by Mr. Cochran that, by virtue of the resolution last named, in some way the Convention had lost control of the cities article. I do not apprehend thatthere is any possible question about that ; but in order to save even a possibility of question within the time limited, that is to say, the next legislative day, I move that the vote by which that article, section one, was carried to a third reading, be reconsidered; and I move to lay that motion upon the table. The President put the question on laying the motion to reconsider on the table, and it was determined in the affirmative. Mr. Rolls — Mr. President, I move that the Convention now take up the special order, the report of the Committee on Education. The President — Will Mr. Holls defer that motion for one moment until the Committee on Rules makes a report as to limit of time. The committee is strongly of opinion that unless a limit of time is agreed upon before the debate begins, it will be almost impossible to fix a reasonable limit afterward. I believe the com- mittee is ready to report. Mr. Holls — If not, I would make a motion that we take a recess for five minutes. The President — The Chair does not think that will be necessary. Mr. Holcomb — Mr. President, I am called to New York on business to-morrow, and I would ask leave of absence for to-morrow and Monday. The President put the question for Mr. Holcomb to be excused from attendance, and he was so excused. The President — The Committee on Rules propose for considera- tion of the Convention that the report of the Committee on Educa- tion be allowed one day; that is, seven hours. Is that approved by August 31.] CONSTITUTIONAL CONVENTION. 687 the Convention? It stands as the rule unless otherwise ordered by the Convention under rule 56. Mr. Veeder — Mr. President, will you please state that again? The President — The Committee on Rules proposes seven hours, one entire day, for the report of the Committee on Education, unless otherwise ordered by the Convention. The rules say that such report shall stand as the time limited for debate on the subject- matter referred to in such rules, and the previous question or other motion to close debate shall not be in order until the expiration of the time so allotted, or the debate has been closed. Mr. Holls — Mr. President, I would like to ask for information, whether that time so proposed by the Committee on Rules includes not only the time in Committee of the Whole, but also the time necessarily required for the report of the committee to the Convention? The President — It covers the discussion, in all, in Committee of the Whole. Mr. Bush — Mr. President, I would like to ask for information. I understand the committee reports seven hours, or is it to-day? There are not seven hours left to-day. The President — They report one entire day. That makes seven hours. Now, it is also a part of their report, which I omitted to state, that the principal representative of the report, and of his oppo- nent, representing the opposition to it, shall not exceed one hour each, and that other speeches shall not exceed twenty minutes each. Mr. Dickey — Mr. President, is it in order to move that the vote be taken at a later time, beyond the time limited for debate? The President — I think not, because the rule says that the report shall stand as the time limited for debate; of course, unless the Con- vention otherwise order. Mr. Dickey — Mr. President, if in order. I move that the vote of the pending order be taken on Monday next at twelve o'clock. The President — The present question only is as to the time to be allowed for debate. Shall it be seven hours, or more or less? Mr. Roche — Mr. President, cannot that be accompanied with such a motion as that which Mr. Dickey has proposed? There has been quite a number of excuses granted to members for to-morrow and Monday morning. These members will be back here by noon on Monday: in the meantime, if the debate should close under the proposed rule, some other business can be taken up and there will be no harm done by having the vote upon the educational question 688 REVISED RECORD. [Friday, taken at a time when probably all the members of the Convention will be in their places. Now, I, for one, have asked to be excused, and it is highly important to me that I should be absent from the Convention. I desire very much to vote upon this question, and that is the case with some other members. I think, Mr. President, that it will create a very good feeling among the members and do justice to this question, in which there is' a great deal of interest, if we should go on with the debate from this time out, but agree that the vote upon the question shall be taken on either Monday or Tuesday without further delay. The President — The Chair is of the opinion that if a motion is made to that effect it will be regular. Mr. Holls — Do I understand, Mr. President, that it is not in order to make the motion? The President — I think it is in order. Mr. Holls — Then, Mr. President, I will make the motion that the vote be taken on Tuesday morning, after the reading of the Journal. The. President — That is, the vote in Committee of the Whole, the final. vote? Mr. Holls — Any final votes upon this article or any branch of it. Mr. Platzek — Mr. President, I only desire to make one sugges- tion, which, I think, Mr. Holls will accept; that is, if the vote is to be taken On Tuesday, that it be taken at twelve o'clock, so as to enable a number of gentlemen from New York and Brooklyn, who arrive here on the eleven-fifteen train, the Empire State express, to be present and vote. Mr. Root — Mr. President, I object to arranging the business of this Convention on the thepry that members are going away and stay away during sessions of the Convention, during the last two weeks that we have remaining. Mr. Holls — Mr. President, I think that not only the convenience of members, but the important interests involved in this report, will be best subserved by a postponement of the vote until Tues- day, and I have made the hour the beginning of the day because that will least interfere with the rest of the work. Mr. Platzek — I withdraw my suggestion, Mr. President. Mr. Holls — If the other work of the day is begun and broken into by this vote, it will nullify much of the work that will then be under consideration. August 31.] CONSTITUTIONAL CONVENTION. 689 The President — Does the House understand that the motion is to vote on every amendment, however trifling? Mr. Holls — Oh, no, Mr. President. The President — Do you mean the final vote? Mr. Holls — The final vote. The President — Favorable or unfavorable? Mr. Holls — Yes, sir. Mr. Holcomb — Mr. President, may I ask whether it is the intention of Mr. Holls that that vote be taken in Convention or in Committee of. the Whole? The President — In Committee of the Whole, of course. Gen- tlemen will understand the motion of Mr. Holls, accepting the limit of time, seven hours, proposed by the Committee on Rules, not more than one hour of which time is to be taken by him and whoever represents the opposition to his views, and twenty minutes' limit to every other speaker. He proposes that the final vote on reporting favorably or unfavorably, not oa any amendments that precede that, but the final vote, shall be taken immediately after going into Committee of the Whole on Tuesday morning. The President put the question on the motion of Mr. Holls, as stated, and it was determined in the affirmative. The President — The Convention now goes into Committee of the Whole upon general order No. 61 (O., I. No. 388; P. No. 439), and Mr. C. H. Truax will be good enough to take the chair. Mr. Truax took the chair. The Chairman — The Convention is now in Committee of the Whole on general order No. 61, and the Secretary will read the proposition. The Secretary read section I of the proposed amendment, as follows: " Proposed constitutional amendment to amend article 9 of the Constitution, relating to free common schools." The Delegates of the People of the State of New York, in Convention assembled, do propose as follows: ARTICLE IX. SECTION I. The Legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this State ma be educated. 690 REVISED RECORD. [Friday, Mr. Rolls — Mr. Chairman, for the purpose of regularity, I make the usual motion to strike out the section. Mr. Chairman, in beginning the discussion of the article upon education, it is not my purpose to detain the committee or this Convention by any attempted display of oratory. No words of mine can add anything to the importance of the interests involved in education and the report which has been made by the committee, and which is Document No. 62, upon the files of all the members, contains such explanatory matter of the article itself as amply suffices for an introduction to the whole discussion of the subject. The time of this Convention is now too limited and too precious for more. The first section which we have reported, and which is new, explains itself. Of all the United States of America, New York, New Jersey and Delaware are the only States which to-day have not a similar analogous provision in their fundamental laws. As has been stated by the committee in their report, imagination can- not possibly picture the State of New York refusing to provide education for all her children; and hence the objection might be made that the section was unnecessary. But this argument has not been held to apply to many other matters which are thought to be fundamental, and in view of the policy of the State of New York toward all education, and to which more reference will undoubtedly be made during this debate, we consider it of import- ance that at the head of the educational article there should be a section announcing in no uncertain terms the interest of the State of New York in the foundation of all its prosperity, the free com- mon schools. I now withdraw my motion to strike out the section, and unless amendments are offered, I hope the Secretary will read section 2. Mr. Campbell — Mr. Chairman, I offer an amendment to section i: Insert in line 3 of page I, after the word, "State," the words, " whose education is not provided for by their parents or guardians." Mr. Campbell — Mr. Chairman and gentlemen, in offering this amendment I do it so that the people of this State may express in their organic law the propostion and principle that the parent of every child in this State is charged with the duty to educate that child, and has the right, proceeding from that duty, to provide the means by which his duty will be performed. The free schools of this State are the outgrowth of the performance of the duty and the exercise of the right of parents in the education of their children. August 31.] CONSTITUTIONAL CONVENTION. 691 These schools were not established by the State acting as such or in a formal manner, but by the people themselves, each parent acting in his individual capacity, and all the people co-operating heartily in the performance of the parental duty to educate his children; a duty which Chancellor Kent has called a sacred trust given to parents by their Creator, and a right which they have by the law of nature. The free public schools of this State have, therefore, become sacred to the people and to every home and to every heart. They are the schools of the people in the most inti- mate sense; because they sprung spontaneously from the people before the foundations of the government. Hence, the public schools of America have grown to be the admiration of the world. Every attempt to better their condition and make more general their beneficent action in improving and increasing secular knowl- edge naturally and at once excited the enthusiastic support of the people who created them. Hence, there has been introduced to this Convention a new article of the Constitution, expressing the principle of universal education, and directing the Legislature to use the power of the State to foster that principle, and, perhaps, to enforce adhesion to that principle. It is proposed to enact an organic law, directing the Legislature to provide for the maintenance of a system of schools wherein all the children of the State may be educated. The reasons for making this change are given by the Committee on Education in its report to the Convention recommending the passage of the article pro- posed to us. This is what the report, among other things, contains: " Your committee, therefore, recommends the adoption of section i as an explicit direction to the Legislature to provide ' for a system of free schools wherein all the children of the State may be edu- cated.' This requires not simply schools, but a system; not merely that they shall be common, but free, and not only that they shall be numerous, but that they shall be sufficient in number so that all the children of the State may, unless otherwise provided for, receive in them their education." Thus the committee, by stating in their report that the schools are to be provided for those children who are not otherwise pro- vided for, recognizes the right of parents to educate their children, for it is not possible to imagine that the children not educated in the public schools can be otherwise educated or have their educa- tion otherwise provided for than by their parents. The committee could not question that right with any hope of assent from us. It is a right superior in the parents to that of any other person, superior to any right that might be asserted by the State or any other aggre- 692 REVISED RECORD. [Friday, gation of persons. This Convention, therefore, instead of denying the right of the parents to educate their children, is about to pro- vide all the means of secular education that any parent can ask, to enable him to fully perform his sacred, bounden duty to educate his child. It would seem, therefore, that since the right of the parent to direct the education of the child is undeniable, and is- meant to be conceded here, that it is wiser to express it in the Con- stitution than to leave it unexpressed, and, therefore, capable in the near future of denial or controversy. In order that this truth may be certainly and definitely expressed, I have proposed the amendment to section i, which will provide that the children of those parents who do not provide for their edu- cation may be educated in the public schools. If parents choose to educate their children at any other than the public schools, then they cannot be compelled to send them to the public schools. It will leave parents entirely free to use private schools to accomplish their purpose and perform their duty of education. But it may be answered that the section as proposed without any amendment is permissive only, and simply gives to the inhabitants of the State a privilege of which they may or may not avail themselves at their option. No man can tell, however, what the courts may hold in construing this section of the Constitution if it be not amended in the manner I have proposed. Should the Legislature, in obedience to the mandate of section I, as it now stands, provide by law for one great system of free com- mon schools, with all the teachers, books and appliances sufficient to provide means to educate all the children of the State, including the three or four hundred thousand who are not now attending the public schools, would it be unreasonable for the courts to hold that the grant of such a power implied a grant of the power to compel the people to accept and use the system to the exclusion of any other means of education. If any one should prefer any of the numerous kindergarten schools or academies now conducted by private endeavor and enterprise to those provided by the State, a conflict between the individual and the State would inevitably arise. A controversy might be precipitated, which, before it was ended, would injure the common schools beyond the possibility of repair, and it could end only in settling the law to be that the right of the parent could not be interfered with. We can avoid the possibility of such a dispute by adopting this amendment. The amendment contemplates nothing more than to say in effect that where the education of the child is neglected for any cause by the parent or guardian, or is not provided for by them, then the August 31.] CONSTITUTIONAL CONVENTION. 693 State, in the exercise of its subordinate right on the same subject, may step in and perform the neglected duty of the parent. The words supplied by the proposed amendment are words which the committee, judging from its report, inadvertently omitted to insert in the section, and which it is manifestly our duty to supply. A constitutional amendment should never leave our hands which will be uncertain or difficult of explanation or construction, or capable of more. than one construction which will need any construction. It should be capable of comprehension by the simplest mind of ordinary man or woman. I believe the amendment I propose will accomplish that end with respect to section i of the proposed arti- cle and I urge its adoption. Mr. Holls — Mr. Chairman, the amendment proposed by the gentleman from New York is, in my opinion, entirely unnecessary, and for that reason very objectionable, for it adds to the language of the section without adding at all to its sense. We might with equal propriety say : " All the children of this State who are not otherwise provided for"' — and I believe that is the sense of the gentleman's argument — or we might say, " all the children who are healthy enough to go to school," or " who live near enough to school-houses to go to school." The section, as it stands here, in no way interferes, directly or by implication, with the sacred right of the parent and the family first to educate their children if they wish to do so. It simply says that the State of New York, as a fundamental part of its policy toward all of its inhabitants, shall provide for a system of schools wherein if required — for those words, in my opinion, are fairly implied — all children of the State may be educated; and that, of course, means if required by the parent. The addition of the words proposed by the gentleman from New York might with equal propriety be construed that chil- dren who have parents should not be sent to the public schools, but that the parents should be required first to educate them at home. It is absolutely unnecessary. There is nothing here, and there was nothing further from the mind of the committee than a denial of the rights of the family, or any imputation upon private schools of any character, and it is impossible for me to see by what language it might be read into that amendment. For these rea- sons I sincerely hope that the amendment will not prevail. The Chairman put the question on the adoption of Mr. Camp- bell's amendment, and it was determined in the negative. Mr. Gilleran — Mr. Chairman. I offer an amendment. 694 REVISED RECORD. [Friday, The Secretary read the amendment of Mr. Gilleran, as follows: Amend section I as follows : '' The Legislature shall provide for the maintenance and support of a system of free common schools, which shall be open to all the children of this State." Mr. Gilleran — Mr. Chairman, I did not happen to be at the meeting of the Committee on Education when the first section was agreed upon, if it was agreed upon in committee, and on looking; it over I find that it is open possibly to misconstruction gfammati- cally. It provides that the Legislature shall provide for the main- tenance and support of a system of free common schools (comma), wherein all the children of this State may be educated." The ques- tion is whether the children of the State are to be educated in the system, or in the common schools. By erasing the comma I think the language would properly be interpreted as meaning that the children were to be educated in the schools. However, on looking over the Constitutions of other States, referred to by the chairman of the Committee on Education, I find the exact language which I now wish to insert in place of the last part of section i. And I think that in order that section I may be properly understood, that language should be inserted. The term, " wherein all the children of this State may be educated," is fraught with meaning, pregnant with danger. The use of the word " may '* there is in an auxiliary sense. It is well known that the common use of the word " may " indicates permission, but it may also indicate a possibility with a contingency. The question is, may these chil- dren be educated there, or may they not. They may be; they may not, too. It is according to how you take the meaning of the term "may;" and for use as an auxiliary, expressing contingency, it- expresses contingency in connection with a purpose. Now, the purpose of the State no doubt is or will be, under the terms of this amendment, to provide a system of schools wherein all the children of the State shall be educated if they go there, and which shall be open to them if they go there. Therefore, in order that the sentiment expressed in section I, in which I heartily con- cur and in which I am sure every member of this Convention concurs, may be changed so that it may read in the precise and exact language suggested in the amendment. Mr. Hill — Mr. Chairman, I do not imagine that the construc- tion which the gentleman from New York has placed upon tin's amendment could possibly be placed thereon by any court or by any board of education. The word " wherein," a relative pronoun, refers to the two words which precede it, namely, " common August 31.] CONSTITUTIONAL CONVENTION. 695 schools." This qualifying or relative clause, commencing with the word " wherein," makes it imperative on the State to provide ade- quate free common schools for the education of all the children of the State, if the children or their parents or guardians desire to avail themselves of such schools. The amendment suggested by the gentleman from New York that the schools be kept open is clearly covered by the amendment as it stands reported by the Committee on Education without such suggestion. There has been some fear expressed that the word " may '' might be con- strued as mandatory instead of permissive. Such construction ought not, and, in my opinion, would not be placed upon the word " may/' The State of New York, Air. Chairman, should place itself in a position where the parents and guardians and children, if they desire to avail themselves of our common schools can do so, and the reason of this first section is, that there are places in the State of New York where the common schools are not adequate and not numerous enough to provide education for all the children who desire to avail themselves of them. This provision, if it be adopted, will remove that objection, and it follows as matter of course that if the schools be provided they will be open during reasonable seasons. It is possible that the gentleman's amendment to the proposition as suggested by the committee might necessitate keeping the schools open all the months of the year. That would not be advisable. It would not be prudent, either, for the State or its subdivisions, or for the children to be educated thereby. This amendment, Mr. Chairman, is substantially the same as has been already incorporated into most of the State Constitutions of this country. In the committee I think it received no unfavorable criticism whatever. It seemed to be the unanimous opinion that provision should be made for the education of all the children of the State if they desired to avail themselves thereof, in such man- ner as has been done in this proposed amendment. It seems to me that the gentleman's construction of the sentence is technical. Cer- tainly the language is not susceptible of any criticism grammati- cally, as it stands here, and it provides free common schools for all the children of the State that may desire to be educated therein. It is terse, succinct and clear, and susceptible of no misconstruction. • Hitherto our organic law has contained no such provision, and our common school system rests simply on statutory law, easily abro- gated by any. capricious Legislature. I think, Mr. Chairman, that the amendment ought not to prevail, but that the original section should be reported favorably as it has been reported by the committee. 696 REVISED RECORD. [Friday, The Chairman put the question on the adoption of Mr. Gilleran's amendment, and it was determined in the negative. The Chairman — There being no further amendments to section I, the Secretary will read section 2. The Secretary read section 2, as follows: " The corporation created in seventeen hundred and eighty-four, under the name of the Regents of the University of the State of New York, is hereby continued under the name of the ' University of the State of New York.' It shall be governed and all its corpo- rate powers exercised by not less than nine regents." Mr. Hawley — Mr. Chairman, I desire to offer an amendment. The Secretary read the amendment, as follows: "Strike out the word ( all,' in line 8, and insert, ' which may be increased, modified or diminished by the Legislature,' so that the sentence shall read: * It shall be governed, and its corporate powers, which may be increased, modified or diminished by the Legislature, be exercised by not less than nine regents.' " Mr. Hawley — Mr. Chairman, I desire to say only a word. This amendment is not offered in any hostility to the report as it stands, with which I am heartily in favor. But it is offered because of my own opinion that as matter of law the amendment as it now stands in the report of the committee puts into the Constitution the Board of Regents as it shall exist, and with the powers that they have on the day that the Constitution shall go into effect, and places it beyond the power of the Legislature to add to, increase or diminish the powers of the Board of Regents. That is to say, that if the amendment went into effect to-day, the Board of Regents would be a constitutional corporation, with exactly the powers conferred upon it by the University Law, and without power on the part of the Legislature to in any way alter, diminish or increase those powers. It is to meet just that question, and that alone, to say what I believed the committee designed to say, and what is the wish, I believe, of everybody to say, and to say it so plainly that there can be no misconstruction or misapprehension about it, that the Board of Regents, after being put into the Constitution in this way, shall be still subject to the Legislature in respect to addition, diminution or modification of the powers which they shall exercise. Mr. Doty — Mr. Chairman, I desire to ask the gentleman a question, if I may, and that is whether the purpose that he desires to accomplish by his amendment would not be more effectively accomplished by moving to strike out the entire section? August 31.] CONSTITUTIONAL CONVENTION. 697 Mr. Havvley — Oh, I think there is a very wide, a very large difference in the two propositions. Mr. J. I. Green — Mr. Chairman, I am heartily in favor of the amendment proposed by Mr. Hawley. I do not think we ought to incorporate into the Constitution of this State or give power to any body which would be beyond the control of the people for twenty years, or until a new Constitution is established. For that reason, I think, we are in duty bound to put it in the power of the Legisla- ture to modify, diminish or increase the powers of the Regents of the University of the State. Mr. Holls — Mr. Chairman, in answer to the remarks of the gentleman from Seneca and the gentleman from New York, I wish to say that in the opinion of the c6mmittee, expressed at the time that this amendment was adopted, and after a very careful discus- sion, the words as we have reported them, would by no means give any powers to this corporation which is continued, which could not at any time be modified, diminished or increased by the Legis- lature, so that, so far as the purpose of the gentleman's amendment is concerned, his words do not express anything different from what I understand to be the unanimous sense of the committee. Now, it seems to me, while I hesitate very much to even sug- gest an opposition on a legal question to a gentleman of so much more and wider experience in law and learning, that there can be very little doubt about the true interpretation of this section. We speak of the corporation which is continued. Surely the continu- ation in itself confers no power. Then we say " it''-— the corpora- tion — -" shall be governed and all its corporate powers exercised by not less than nine regents." What are its corporate powers? Those words not being defined in the Constitution, it is necessary for us to seek outside interpretation. We find it in what is called the University Law of 1892, which law defines all the corporate powers of the University of the State of New York. That law. being simply a statute, is, in my opinion, clearly subject to revision, amendment, repeal or modification by the Legislature, subject only to the provisions of the Constitution. All I have to say is that if, in the opinion of the many better lawyers in this Convention, the amendment of the gentleman from Seneca (Mr. Hawley) will add clearness to this provision, the com- mittee have no objection to its insertion. But such was not our opinion when we reported the section. Mr. Mclntyre — Mr. Chairman, now, about the report of the Committee on Education. I was one that voted against the section 698 REVISED RECORD. [Friday, in the committee, and I have never changed my mind. I do not think the amendment offered here improves it or saves it, for the simple reason that all the law that we have had in this State in relation to the Board of Regents of the University of the State of New York is statutory from beginning to end. The whole law of the State in relation to that matter is brought out very fully and published in a small pamphlet issued by the Regents of the law of 1892; and everything that gave the Board of Regents of the University of the State of New York creation came by statute from the State of New York. All the powers and duties that they now have are given them by this same statute. If you seek to incorpo- rate them in the Constitution of the State of New York there must be certain objects for it, and what will you do here if you bring it into the Constitution of the State of New York with anything like the present section, or the section as it will be amended. " The corporation created in 1784 under the name of the Regents of the State of New York is hereby continued under the name of the University of the State of New York. It shall be governed and all its corporate powers exercised by not less than nine Regents." The Legislature would be handicapped. It would be a stumbling block for any future legislation if that should be adopted as it .is here, and the Legislature should be free and untrammeled. The Legislature might take away the fund from the Regents, they might reduce the number to nine, but those nine would still remain and the University of the State of New York would still remain, what- ever system they might want, or however much they might desire to unify the educational system in this State. I do not wish to go into the discussion of that at the present time, but I only wish to say that the amendment would not save it, and I would say that, in my opinion, it would be a stumbling block, and my opinion is that the only way is to strike that out and leave the Constitution as it was in relation to that matter, because it is all statutory, whatever pow- ers we have in relation to the educational interests of the State in both branches of it; that it should be still left to the Legislature if they in their wisdom see fit to unify the system, and there is noth- ing in the Constitution which should be a stumbling block in the way of that legislation. Hence, I am opposed to the amendment. Mr. Hawley — Mr. Chairman, I do not recognize very much the force of an argument against this amendment which comes from a gentleman who desires to kill the section itself. I repeat what perhaps was not understood by the committee, that the sole pur- pose of the amendment which I have offered is to say in clear and distinct language what the committee means to say, but what I August 31.] CONSTITUTIONAL CONVENTION. 699 think as a matter of law it fails to say; and the committee say that if I am right in that construction then they are with me and have no objection to the insertion of this amendment. I believe that I am right, and the amendment is not in hostility to the section, because I am heartily in favor of the section and I trust that the friends of the section will endeavor to protect it, and not take argu- ments for the amendment from sources hostile to the section itself. Mr. Choate — Mr. Chairman, I trust that the amendment of Mr. Hawley will be adopted, and if the chairman of the committee will declare, as he has in substance declared, that it is intended only to carry out the purpose they had, I am sure that it will be. The section ought not to be left equivocal. I agree with Mr. Haw- ley that as it stands the probable construction would be to maintain in that corporation, free from subsequent control by the Legisla- ture, all the powers that it had at the time of the adoption of the article. Now, Mr. Chairman, I believe that Columbia College alone, of all the institutions of learning in this State, has any rights that are free from control by the Legislature. Every institution under the control or supervision of these Regents is an institution created by the State, subject to the absolute control of the State, and supported in a large measure by the money of. the State ; and as a general constitutional principle it cannot be denied or doubted that the State at all times ought to have absolute control of them all. Mr. Hirschberg — Mr. Chairman, the amendment proposed by Mr. Hawley may be all right, but, if so, it seems to me that it is not couched in apt phraseology. The Educational Committee found nothing in the Constitution on the general subject of education. There was simply the provision in reterence to the funds and their disposition. They found two systems of education grown up in the experience of the State; the common school system and that which is known as the system of secondary or higher education. They designed to recognize both, to recognize them by simple language, which should be perfectly free from the slightest sugges tion or suspicion that it interfered in any way with the Legislature or the people modifying, developing or elaborating these systems. They accordingly in the first section provided that the free school system shall be continued, and in the second section, that the LTni- versity of the State of New York shall be continued. Having clone that much, the suggestion was made that a mere provision con- tinuing the existence of the University might be destroyed here- after by legislative action in reducing the number of Regents to a merely nominal number, reducing them to one; and this final sec- 700 REVISED RECORD. [Friday, tion was put in to prevent the reduction being carried below nine. Now, everything would be accomplished by a simple statement that the number of Regents should not be reduced below nine. The objection to the section as amended, as the amendment pro- poses it, is that it is an unnecessary continuance of the language referring to the corporate powers and privileges of the University, and that objection has not been removed by the language of the amendment. I would suggest, then, that the amendment be, and would offer it as an amendment to the amendment, that the num- ber of regents should not be reduced below nine. The Chairman — Does the gentleman offer that as an amendment? Mr. Hirschberg — Yes. President Choate took the chair and announced that the hour of one o'clock had arrived, and that the Convention stood in recess until three o'clock in the afternoon. AFTERNOON SESSION. Friday Afternoon, August 31, 1894. The Constitutional Convention met at the Capitol, at Albany, August 31, 1894, at 3 P. M. The President called the Convention to order. Mr. Parmenter — Mr. President, I am suffering with a very severe cold, and I would like to be excused for the evening session and for to-morrow. The President put the question on the motion of Mr. Parmenter to be excused from attendance, and he was so excused. Mr. Kellogg — I desire to be excused for to-morrow's session. The President put the question on the request of Mr. Kellogg to be excused from attendance, and he was so excused. Mr. C. H. Truax took the chair in Committee of the Whole. The Chairman — The Convention is in Committee of the Whole upon general order No. 61. Are there any further amendments to section 2? Mr. Peck — Mr. Chairman, what will become of Mr. Hirsch- berg's proposed amendment? What disposition will be made of it? Will the action upon it be postponed? The Chairman — The action upon it will be postponed. Mr. Goodelle — Mr. Chairman, I would like to have the amend- August 31.] CONSTITUTIONAL CONVENTION. 701 ment offered by Mr. Hirschberg to the amendment of Mr. Havvley read, to see what form it is in. The Chairman — The Secretary will read the amendment. The Secretary read the amendment, as follows: Strike out all after the words '' New York," as they occur the second time in section 2, and insert " the number of regents shall not be less than nine." Mr. Hirschberg — Mr. Chairman, the suggestion I made was that the sentence should read '' the regents shall not be less than nine in number." I do not want to be misunderstood by the com- mittee. Personally I do not feel that there is any force in the sug- gestion that this line confirms the existing corporate powers of the University of the State of New York. The object of it is simply to name the number of Regents, and all it means is that no less than nine Regents shall ever exist to govern the University, or to exercise such corporate powers as it may have by law. I am at a loss to see how the construction suggested by Mr. Hawley could be seriously entertained. The design of the committee was in no way to fetter the Legislature, but to simply recognize the existence of two systems and put them in the Constitution; one as a corporation known as the University of New York, whose Regents should consist of nine persons at least, to govern the corporation, to exercise its corporate powers; and that, of course, means such corporate powers as are conferred by law; and the other as a recognition of the necessity of a common school edu- cational system. I am in favor of the sentence as it appears in the report of the committee. The Chairman — Mr. Hirschberg does not offer an amendment. Mr. Hirschberg — I do not withdraw my amendment ; my amendment is one changing the phraseology of the pending amendment for the consideration of the Committee of the Whole. Mr. Peck — Mr. Chairman, I hope that the change suggested by the gentleman from Orange will not prevail, for this reason: It would leave the section saying that a corporation is hereby con- tinued, that corporation being a corporation formerly known as the Regents of the University, the name of which has recently been changed to that of " The University of the State of Xew York." Xow what does the word "continued" mean? Does it mean sim- ply that the name is to be continued? Does it mean that a certain entity, something which has been known to the history of this State almost from its beginning, is to be continued? And if it is 702 REVISED RECORD. [Friday, an entity, if it is a corporation to be continued, what is a corporation without corporate powers? I think that no good draftsman in any institution of any kind would allow such a question of construction to remain if it were possible to eliminate it. It is said that this corporation is continued, subject to the same powers as the present corporation is now subject to. I contend that that is not it; that what is continued is not the powers of the Legislature to visit that corporation and to modify its corporate laws, but it is the corpora- tion itself that is continued with its corporate powers. I do not wish to impose my construction of that sentence upon this com- mittee, but I say to this committee that it is a very dangerous thing to leave a construction of that kind in the Constitution, because you cannot tell what construction might be given, and it would be very likely to be influenced by the equities and character Qf the first case that was presented to a court as to how the court would turn upon it. At all events, I think that it is too dangerous a way to leave it, and that it should be modified and actually express what we intend, which is simply to give a constitutional recognition to this body without conferring upon it any powers in such a way that they cannot be modified, governed and controlled by the Legis- lature hereafter as they have been heretofore. And I am further confirmed in that position, the position which I take, the construc- tion which I give to it, because we say here that the corporation is to be continued except in one respect, that respect being the number of Regents. Well, when we make an exception, when we continue a corporation except in one particular, do we not in every other particular continue it in existence as it exists to-day? I think there can be no doubt about the fact that it is a ve'ry dangerous expression and ought not to be left in the Constitution in that way. As to the criticisms that were made in presenting the resolutions by the gentleman from Orange (Mr. Hirschberg), I think he is mistaken, because when we say that its separate powers are to be exercised by a continued corporation it seems to me there can be no question but that that corporation and its powers are continued. And if they are, if they become a part of this Constitution, then they are constitutionalized so that the Legislature is forbidden either to diminish or to increase those powers. There is no power left anywhere until another Constitutional Convention meets, or a constitutional amendment is proposed to and passed by the people to change those powers. And, therefore, I say that, there being no difference, so far as I know, in this committee, as to what is desired to be done, that it should be done in such a way that there can be no mistake about it. I hope that Mr. Hawley's amendment August 31.] CONSTITUTIONAL CONVENTION. 703 will prevail, and that the amendment proposed by the gentleman from Orange will not prevail. The Chairman put the question on the adoption of Mr. Hirsch- berg's amendment, and it was determined in the affirmative, by a rising vote, 36 to 23. Mr. Peck — Mr. Chairman, I call the attention of the Chair to the fact that no quorum voted. Mr. Holls — Mr. Chairman, I think a quorum is present. A count of the House being taken, it was announced that a quorum was present. Mr. Choate — Mr. Chairman, is it too late to ask for a rising vote upon the question, now that there is a quorum present? The Chairman — We have had a rising vote; the Chair has announced the result. Mr. Holls — Mr. Chairman, does not the question now arise upon the amendment as amended? The Chairman — There are no other amendments except Mr. Hawley's amendment. Mr. Holls — Mr. Chairman, that was amended by inserting Mr. Hirschberg's in it, and the question, as I understand it, is on Mr. Hawley's amendment, as amended. Mr. Mclntyre — Mr. Chairman, I move to strike out section 2. The Chairman — Mr. Hawley has the floor. Mr. Hawley — Mr. Chairman, I am advised that a number of gentlemen in the distant parts of the hall voted on the amendment of the gentleman from Orange under a misapprehension as to what was the question before the committee. I do not know whether that has put the matter beyond the control of the Convention or not, but it does not seem to me that the amendment of the gentleman from Orange, which now apparently has been passed by the com- mittee, meets the difficulty at all. It does not put within the control of the Legislature any of the corporate powers of the Regents of the University as constitutionalized by this amendment; and we are met at once by some of the numerous absurdities that result from this action by looking into the University Law. We have now. if we pass this section, constitutionalized the Regents of the Univer- sity, with the corporate powers that they have to-day, and we have said that these corporate powers shall not be exercised by less than nine Regents, and among the corporate powers which we have thus put into the Constitution are the corporate powers given to that 704 REVISED RECORD. [Friday, body by the University Law, and the University Law provides that it shall require ten Regents to constitute a quorum. The University Law also provides that no employe can be removed or his salary changed, of this corporation which we have now constitutional! zed, without a vote of ten Regents. And yet we have tied the hands of the Legislature, and said that a board of nine Regents shall exer- cise, by some impossible power thus to be conferred upon them, the duties which the statute says, which becomes a part of these corporate rights, shall be exercised by not less than ten. Now, it is to avoid just such questions as these and to place the whole question within the control of the Legislature Mr. Mclntyre — Mr. Chairman, I rise to a point of order. There is no motion before the House. The Chairman — Mr. Hawley is speaking to his amendment as amended by Mr. Hirschberg. Mr. Hawley — It is to avoid just that state of affairs, and not from any unfriendliness to this section, but with an earnest and honest desire to see in the section just precisely what the chairman of the committee says they meant, and to see it so plainly that there can be no misconstruction or difficulty about it. And I hope that somebody who knows more about the machinery of a parliamentary body will point the way out of the difficulty in which we have found ourselves by the passage of the amendment of the gentleman from Orange. The Chairman — The Chair will state the situation as he under- stands it. The gentleman from Seneca (Mr. Hawley) made an amendment in line 8, of page I. The gentleman from Orange (Mr. Hirschberg) amended that amendment so that it reads as fol- lows, in the latter part of line 7 and all of line 8: " There shall be not less than nine Regents." The question now before the House is upon Mr. Hawley's amendment as amended by Mr. Hirschberg. Mr. Forbes — Mr. Chairman, I move to reconsider the vote by which the amendment of Mr. Hirschberg was adopted. The Chairman — The question is on the motion of Mr. Forbes to reconsider the vote by which Mr. Hirschberg's amendment to the amendment was carried. Mr. Holls — Mr. Chairman, in view of the slight number of gen- tlemen voting, I hope it will be carried, because it is very important that this question be settled clearly. As I have already stated this morning, it is a question which does not enter into the intention of the committee at all, and it is eminently proper that we should have a full discussion. August 31.] CONSTITUTIONAL CONVENTION. 705 The Chairman put the question on the motion of Mr. Forbes, and it was determined in the affirmative. The Chairman — The question is on Mr. Hirschberg's amend- ment to Mr. Hawley's amendment. Mr. Hirschberg — Mr. Chairman, let me suggest that the Secre- tary read Mr. Hawley's amendment to see if the language of that cannot be changed so as to meet the whole suggestion. The Secretary read amendment of Mr. Hawley. Mr. Hirschberg — If you insert the word " shall " before " be " it will read smoothly; before the second "be." Mr. Hawley — I have no objection to that. The Secretary read as follows: " Shall be governed and its powers, which may be increased, modified or diminished by the Legislature, shall be exercised by not less than nine Regents." Mr. Hawley — I accept the amendment, Mr. Chairman. Mr. Holls — Mr. Chairman, now that Mr. Hirschberg withdraws his amendment, and there seems to be a general consensus of opinion that the amendment of Mr. Hawley will make the section more clear, I sincerely hope that it will be adopted in its present form, according to the last suggestion of the gentleman from Orange. The Chairman — Does the gentleman from Orange withdraw his. amendment? Mr. Hirschberg — Yes, sir; with that modification. The Chairman — The question is upon the amendment of the gentleman from Seneca, Mr. Hawley. Mr. Deyo — Mr. Chairman, I would like to see inserted after the word " diminished " these words, " whose terms of office may be regulated." It seems to me that as this now stands it may be possi- ble that the term of the Regents, which is a life term, will be so continued. I wish to guard against that. If the Legislature sees fit they may alter the term. Mr. Holls — Mr. Chairman, I do not see how there can be any question The Chairman — The gentleman has not offered any amendment. He said he would like to see it inserted. Mr. Holls — Mr. Chairman, it seems to me there can be no ques- 45 706 REVISED RECORD. [Friday, don whatever about the power of the Legislature to change the term of the Regents. That is clearly implied in the words " corporate power." The entire regulation of the work of the Regents is, under this section, as heretofore, continued in the supreme power of the State of New York as represented in its Legislature, and I sincerely hope, therefore, that the amendment of the gentleman from New York, if pressed, will not prevail. The Chairman — Does -the gentleman from New York press his amendment? Mr. Holls — No, it is withdrawn. The Chairman — The question is on the amendment of the gentleman from Seneca (Mr. Hawley). The Chairman put the question on the adoption of Mr. Hawley's amendment, and it was determined in the affirmative. Mr. Cookinham — Mr. Chairman, I offer the following amendment: The Secretary read the amendment as follows: Add at the end of section 2 the following: " The Regents of the University shall also have power to appoint and to remove the Superintendent of Public Instruction." Mr. Cookinham — Mr. Chairman, it is not my intention to argue at length this question. It is one of vast importance. I have offered the amendment to sense the Convention upon this most vital ques- tion, as I believe it to be, in regard to this whole body. I am well aware that there have been good and bad Superintendents of Public Instruction. I am aware that it is a blow at the political method of appointing them. I am aware that it strikes at the wishes of many gentlemen who desire to assist their friends in attaining this, I may say, exalted position. Nevertheless,. I believe it would be for the interests of the schools of the State of New York, I believe it would be in the interests of all education and culture in the State of New York, that this position should be taken away from a political body and vested in this body, which, although it is created by the elec- tions from the respective great parties, is one in which politics has never entered. There are unquestionably many gentlemen present who have given this subject great attention, and who are able to inform us, who are not upon the committee, and to give us information as to the results in the past and the probable result in the future, provided a change is made. I hope, Mr. Chairman and gentlemen, that for once the great Republican party, which has been, is now, and always will be, the friend of education, will be August 31.] CONSTITUTIONAL CONVENTION. 707 joined by the great Democratic party, the vast majority of which here, and everywhere else, are in favor of education, morality and culture, and that we will establish, once for all, the head of the entire school system of this State, by taking it once and forever out of politics. Mr. Kellogg — Mr. Chairman, I am very sorry indeed to be com- pelled to disagree with the proposition of my learned colleague, Mr. Cookinham, that the Superintendent of Public Instruction should be elected by the Board of Regents. In the first place, Mr. Chairman, there is no call for this proposed amendment by the people. In fact, I undertake the assertion that an overwhelming majority of our people are bitterly opposed to the proposition. The school system of our State, the common school system as now constituted, I undertake to say is not surpassed by any civil division in the world. It stands without a rival, and without a peer any- where. It is the result of more than a century's growth. Suppose, Mr. Chairman, that the Superintendent of Public Instruction is elected by the Board of Regents. You have a body of men who have life tenures. Suppose, and the supposition is possible, that a conspiracy is formed in the election of the Board of Regents from year to year, by some peculiar sect or those who have peculiar beliefs, and they get control of the school system of the State, it would be possible for them to draw the knife of assassination and with one fell blow destroy the common school system of our State, which has been maintained and advanced during the marvelous progress of our great State. I concede that the Board of Regents have been crying for this pap for a number of years. They hanker after it as a cat hankers after new milk, but there is no demand by the people of the State for it. It means, Mr. Chairman, simply this: that instead of the common school system of the State being car- ried on and developed by those who understand the elementary principles of education, by those who understand the teaching of A B C, writing, reading and arithmetic, it means that the poor little infants, when they enter the common schools, instead of being placed upon A B C, are to first learn theology, astronomy, geology, mental science, political economy and so forth, and be taught how far it is to the moon. That is what it means, nothing else, more or less. Instead of a demand on the part of the people of the State for this, they are not only opposed to it, but the school commis- sioners of the State are opposed to this radical proposition. I have in my possession letters from the school commissioners from my county, in which they say, do not let such a measure as this pass the Constitutional Convention unless vou wish to turn over the school 708 REVISED RECORD. [Friday, system of the State into the hands of those who not only do not want to understand the best methods of teaching the elementary principles of education, but who are high-toned namby-pambiesr ridiculed by school children everywhere. Let not the State take this uncertain step. Let the common school system remain in close touch with the people in the future as it has in the past. Let it remain where it has made such glorious progress and where it will win yet greater victories in the future. Mr. Dickey — Mr. Chairman, if the Legislature of this State is good enough to elect the Regents, as they do, they are good enough, sir, to elect the Superintendent of Public Instruction. (Applause.) Mr. Rolls — Mr. Chairman, this motion puts a number of the members of the committee into an embarrassing position. I think, sir, that a very strong argument can be made — an argument which, as I have no hesitation at all to say, is absolutely conclusive to my mind, in favor of this motion. I know that every objection urged against it by my friend from Otsego, and the objection which seems very plausible as argued by my friend from Orange, can be answered, if the question was now to be debated. But I, at least, do not think, first of all, that this Committee of the Whole, now sitting upon this report of the Education Committee, is a debating society, in which a proposition which is not reasonably sure to be adopted, as I fully believe of this amendment, should be uselessly debated. I will, therefore, confine my remarks upon this motion, to saying that the section as it stands, giving recognition to the university and putting it beyond the reach of hasty, ill-advised and possibly partisan legislation, has been adopted by a committee in which very different views upon the subject were prevalent, and that, as finally adopted and submitted to this Convention, the section represents the combined views of by far the larger portion of the committee; every one of them having to yield something. Under these circumstances, Mr. Chairman, much as I deplore that this opportunity which I hoped would be grasped by this Convention to unify the educational system of the State, to take it out of the reach of party politics, and to take a step forward in the line of educa- tional reform which, in my opinion, would be very great and very grand; much as I regret that this opportunity should not be utilized, I still feel it to be my duty to ask this Committee of the Whole and this Convention to support the report of the committee unchanged, except as now improved by the amendment adopted on motion of Mr. Hawley. It is useless, I repeat, to go into all the circumstances on both sides of this question as to whether the August 31.] CONSTITUTIONAL CONVENTION. 709 superintendent should be appointed and under the control of the Regents. The arguments for unification have been presented to every member in this Convention, in print. They are simply unan- swerable. The most eminent educators of the State have unani- mously asked for this change. Andrew D. White, who has been properly called the Educational President of the United States; his worthy successor, President Schurman, of Cornell; Prof. Nicholas Murray Butler, the foremost of all the younger leaders of Educa- tional Reform; President Low, and others too numerous to men- tion. From outside of the State the venerable Henry Barnard, the Nestor of American education, and Dr. William T. Harris, the famous head of the Bureau of Education in Washington, urge the same reform. Personally, I am proud to agree with them, and only deep conviction of a higher duty prevents me from supporting the amendment of the gentleman from Oneida. The objections to it are hardly worthy of consideration, and, in my opinion, have been refuted conclusively before our committee. But I appeal to the members of this Convention upon this ground, that it is manifestly impossible that a question presenting so many technical points, and so many matters of detail, can be as elaborately discussed and •decided in the Convention or in the Committee of the Whole as it •can in a standing committee; and it seems to me that the wisest and safest course, the one which also will save most of the valuable time of this committee and this Convention — and this very article will require a great deal more of debate — would be to support the sections as reported by the committee. It does not represent my views, as I wanted them expressed. It does not represent the views of any other one member of the committee; it does, however, represent an honorable compromise. It represents what I think the entire committee, with very few exceptions, consider attainable, and it represents the one request, moreover, which was made officially of this Convention, by the Board of Regents of the Univer- sity itself. The Board of Regents asked to be recognized in the Constitution. Their request is eminently proper. It redounds to the highest honor of this State that its Constitution should here- after recognize that noble institution. That was the Regents's request. They stood ready to assume greater responsibilities, if this Convention in its wisdom should put them upon them. They stand ready to do so now. But they did not ask for more, and after we had examined the question very carefully, the majority of the committee decided that this section was in itself a great step forward, and that hereafter the Legislature might be, after all, counted upon to go forward further on the same lines. I do not 710 REVISED RECORD. [Friday, sympathize with gentlemen whose one great consideration in mak- ing constitutional amendments is distrust of the Legislature. I do not believe now, that the Legislature, which has the power directly to elect this important officer, would fail to surrender this power if the arguments are brought forward properly. If it is, as I believe it can be, made to- appear that it is in the public interest, I do not think that the Legislature would hesitate to deprive itself of this power for the public good, and vest it in the Board of Regents. There is nothing in the Constitution, of course, to prevent it, and, therefore, while I subscribe to this section as it stands, with some regret, I do it, with the hope, which I think is shared by every mem- ber of the committee, that the section as it stands is a step forward and that more will be accomplished by the Legislature hereafter. (Applause.) Mr. Durfee — Mr. Chairman, I move to strike out from the amendment of Mr. Cookinham, the words " and to remove," the effect of this motion being to confine the power proposed to be given to the Regents of the University to the election of the Super- intendent of Public Instruction. The Chairman — The Secretary will read the amendment as amended by the gentleman from Wayne. The Secretary read the amendment as follows: Mr. Cookinham moves to add, at the end of section 2, the following: " The Regents of the University shall also have power to appoint and to remove the Superintendent of Public Instruction. 'r Mr. Durfee moves to strike out the words "' and to remove," so that Mr. Cookinham's amendment would read: "The Regents of the University shall also have the power to appoint the Superintendent of Public Instruction." Mr. Cookinham — I will accept that suggestion. Mr. Durfee — Mr. Chairman, it is a source of sincere regret that in the performance of what seems to me to be a great public duty, I am compelled to differ with the chairman of the Committee on Education, who has just taken his seat. He stands for the report of the committee, because, as he truly says, that report was the best that was obtainable from the committee; although it does not, as he declares, represent his own personal judgment. I shall not, Mr. Chairman, permit consideration for the report of this commit- tee to control my action in a matter which I regard as of the import- ance of the one before us; but I shall appeal to the intelligence and to the patriotism of this committee to put into our report, if it is August 3I-] CONSTITUTIONAL CONVENTION. 711 not already in it, such provision as shall conduce, in the judgment of the committee, to the welfare of the State. What, then, Mr. Chairman is the condition in which we are placed? We have in this State, in this matter of paramount import- ance, the education of the people, a dual system; the Regents of the University having control of higher education, and the Superin- tendent of Public Instruction having control of elementary education. Necessarily, friction arises between these two depart- ments. Necessarily, there arise controversies, and controversies do exist and have existed, and will exist as long as this system prevails, The teachers of the common schools are drawn, for the most part, from the academies, which are under the control of the Regents, and yet the certificate of the Regents of the proficiency of those teachers is not recognized by the officers who have in charge the appointment or licensing of these teachers. This is one instance. There are numerous others. It is not so much the fault of the indi- viduals in charge as it is the fault of the system itself. This, then, is the first evil that arises from the system which prevails, and which has prevailed for many years. And it is an evil, Mr. Chairman. Gentlemen may laud our common schools, they may declare that there is nothing superior, nothing equal to them, in any State in the Union, or in any foreign land. But gentlemen who know the com- mon schools know well that however good work they may have done in the past, they come far short of filling the place which they ought to fill. Not long ago a gentleman as well acquainted with the working of the common schools throughout this State, perhaps, as any man, who has for years been engaged in visiting them and in attendance upon teachers' institutes, deplored, in my presence, the low standard of our common schools, and insisted that there had been no perceptible advancement in the influence which our com- mon schools exert for the last thirty years. Such a condition of affairs as this, Mr. Chairman, is intolerable in this great State. Another evil that results from this State of affairs is, that the election of the Superintendent of Public Instruction by the Legisla- ture is controlled by partisan considerations. Here is an officer, elected once in three years, holding a high position at a high salary, and partisan considerations control his election. They always have, and, as long as human nature remains unchanged, they always will. The result of that is, that no man who is, in the outset at least, well qualified and fitted to fill the place — the best qualified and fitted to fill the place — will take it, because the tenure of his office is neces- sarily uncertain. No matter how excellent an officer he may be. no matter how efficient and capable, when his term expires, if the 712 REVISED RECORD. [Friday, Legislature happens to be composed of members of a party differ- ent from that to which he belongs, he goes out and a new man comes in. We have had numerous illustrations of this in recent years, when some of the most efficient and capable men that have ever occupied that office have been deprived of their official station upon the expiration of their terms by a Legislature of the opposite political faith. A further evil results. For the best operation and conduct of the schools, a well-considered and harmonious system is essential. This cannot be developed in a day nor a year, nor in the term of one superintendent. It is a growth. It must be continued from term to term, and can only be brought to perfection as the product of con- tinuous thought and continuous effort in the same direction, con- trolled by a single guiding mind. Such a result is impossible, when a man who originates and carries forward a method of that charac- ter, or a system of that character, is displaced at the close of his term, and a new man foreign to the method, foreign to the thought, takes his place. Mr. Chairman, what is the remedy? In the first place in can only be gained by bringing both systems, both branches of education, the elementary and the higher branches, under one supervising head. In no other way can unity, can harmony even, be secured between the lower and the higher education. Clearly this must be so. And how shall that be accomplished? I presume we are all agreed that it would be a desirable thing to have the school system of the State brought into harmonious relations. I presume we are all agreed that there should be one harmonious system, well devel- oped from the lower steadily upward without a break to the higher and the highest education. But how shall it be accomplished? We were agreed in committee so far. When we came to consider the methods by which this result should be obtained, we differed. For my own part, Mr. Chairman, I believe that the simple direct method, and one which would surely produce the result that we seek, is that proposed in the resolution offered by the gentleman from Oneicla. Let the superintendent be elected by the Regents of the University and out of confusion will come order, out of conflict will come harmony, and there will be developed and carried forward, a system of which we may indeed be proud. The Regents of the University are a body of men of wide and varied experience. They are men familiar with affairs. They are men as well qualified as any body of men in the State of New York to make the selection of a capable and efficient officer. They are a non-partisan body. Though a majority belong to one political faith, nevertheless, in all their August 31.] CONSTITUTIONAL CONVENTION. 713 action, the}' have been entirely non-partisan. A majority composed of Republicans elected George William Curtis, after his defection from the Republican party, Chancellor of the University. A major- ity composed of Republicans elected Chancellor Upson, and Vice- Chancellor Doane himself a Democrat; and in all their conduct in relation to the trust which they have in charge, their action has been entirely non-partisan. We have, then, in this body, the means of seccuring unity for the system of schools in our State, and the greatest capacity and efficiency in the individual who shall have charge of the department of elementary education. It seems to me, Mr. Chairman, that this subject is worthy of the most careful and deliberate consideration of every delegate here present. For my own part, profoundly impressed with the import- ance of the action we are about to take, and believing that if this Convention were to submit for the suffrages of the people no other measures of reform than this, it would still deserve well of the people, and that if this measure should be indorsed by the people at the polls, as it would be, it would inure to the welfare of the State and to the security and permanence and elevation of the institutions which we love, I hope the amendment proposed by the gentleman from Oneida will prevail. Mr. Moore — Mr. Chairman, I rise to speak upon this question of the gentleman from Oneida, in obedience to a request from my constituents, both personal and by letter. They have implored me to use what little influence I may have, by my voice and by my vote, against this amendment. They are against it. They do not wish to take away from the people, through the Legislature, the election of the Superintendent of Schools. Much as I deplore a double- headed educational bureau, I would not make it single-headed, Mr. Chairman, by putting the Superintendent of Education under the control of the Board of Regents. I would rather create a great officer to be elected by the people of this State, who should be the head of the Board of Regents and at the head of the educational system of the State, an officer of the people. But, in saying this. I do not decry the labors of this board, this hundred and some years old board. There is stability in age, but, Mr. 'Chairman, when you get such a board as that, who send out questions month after month which there is not a man in this House could answer without years of study, and expect small children of eight or ten or twelve or fifteen years of age to answer, and pass at least seventy-five per cent through the Regents's examination, so that the Regents's examina- tion has become a horror in every household in this State, I say it is about time that the people resumed the supervision of the 714 REVISED RECORD. [Friday, Board of Regents's institution, leaving to them the supervision of the schools of the State. Mr. Chairman, in behalf of my people, in behalf of those who have requested me to speak here, I hope this resolution, as well as the amendment of my friend, Mr. Durfee, who has just spoken, will be voted down by this Convention. Mr. Platzek — Mr. Chairman, in our committee I believe that this question received greater consideration than any other that was presented to it. The unification of the educational system of this State very properly addressed itself to every reasoning mind on that committee. For myself, I started out with almost a firm con- viction that there was an absolute necessity to unite in one central body the entire system of education, primary, and secondary or higher education. We had before us some of the leading educators of the State, and even others who came from without our State, to enlighten us upon this question. We had before us and heard two of the Regents, the secretary of its board and the superintendent of instruction; likewise the principals of academies, principals of high schools and teachers. After we had listened to these splendid gentlemen and expert educators, we discovered that we would have to begin to think for ourselves, and find proper solution of the con- fusion into which the committee were thrown by the diverse views of the educators and officials that appeared before them. In my judgment, there is danger to the school system and to the adoption of the entire Constitution, which we are seeking to frame for the suffrage of the people, if we intrust or confer upon the Board of Regents the power to select the Superintendent of Education. Under the system as it now exists, there is an absolute separation between the Superintendent of Education, who looks after the dis- trict and the common school, the place where the people are instructed, where the poor man's child receives his education, and the University of the State, controlled by the Board of Regents, doing a most excellent work, magnificent men of whom the State should be proud, for year in and year out they have rendered ser- vice to the State and have exalted the higher educational systems of our State to that degree that it is unexampled, not alone in any State in the Union, but in any other country or nation on the face of the earth. I want them to maintain that high place, and I want to keep them separate and apart from the public or common and district school. The university, or the Regents acting as and for the university, have built up a reputation for higher education, for conducting a magnificent State library and a circulating library, and for examinations and improvements in collegiate insti- tutions, where professions are taught of which this State is very August 31.] CONSTITUTIONAL CONVENTION. 715 properly proud and appreciative, and for which the acknowledgment of every citizen of the State is due to each and every one of them. But the very moment we seek to unite the lower, that is, the primary or common schools, with higher education, from out the length and breadth of this State, as my friend, Judge Moore, says, there will come a rumbling and a noise of disapproval. There will be a fear on the part of the poor people that the funds raised for education in this State will be devoted more largely to higher educa- tion, to the neglect of the common and school districts. I, for one, favor a higher education. I, for one, would be willing to vote to appropriate money for secondary education, but I would not cast that vote or give it my approval until every child within the State was assured that there was ample room and accommodation and proper instruction in the district and common school. The common and district school instruction is an absolute necessity. The sec- ondary school and the higher school are not absolute necessities, except in so far as the teachers are educated in these higher schools to go out and instruct in the common and district schools; and I am afraid, sir, that the people would look at it in that light, and, instead of approving our work, would most heartily disapprove of it. And another thing. The Board of Regents, as constituted, are elected for life. I am not going to attempt to be witty, and say they never resign and seldom die, but here we have a magnificent body of men associated among themselves, wedded to their own notions, fond of their own ideas, working in one groove, satisfied with what they accomplish; and there is danger that there will be a lack of breadth, of spreading out, of diffusion, that may endanger the educational system of the State also. There are other reasons which it. is unnecessary for me to assign, because I do not care to occupy too much of the time of the Con- vention. I think T have suggested sufficient to show that we had better leave the amendment as the committee has presented it, after deliberation and mature consideration. I hope that it will so stand, and that the amendment of Mr. Cookinham will not prevail. Mr. \\~ood\vard — Mr. Chairman, 1 do not wish to take much time, but I would like to say a word upon this question. I spent twenty-five years of my life in school, either as a teacher or a scholar. I taught quite a number of years, and was town superintendent of schools in two different towns. I have had some experience, there- fore, in education. \Yhen the question was first broached to me of the appointment of the State Superintendent of Schools by the Regents, it struck me favorably: but when I came to reflect upon it. and think of the questions that they send out to our common 7l6 REVISED RECORD. [Friday, schools, the questions that no mortal man alive could answer, it struck me that for a century, at least, they had not been inside or seen or known what there was in common schools; and for that reason I don't think they are the sort of men to appoint the State Superintendent of Schools. Some of their questions were as indefi- nite and incomprehensible as this : " Can a chimera ruminating in a vacuum devour second intentions? " And I would suggest this as one of the questions they would send out for primary classes. (Laughter.) Now, the Regents of the University are old men, selected because they have achieved something in the world of science or in the world of languages; they have achieved something, and, therefore, they are selected as Regents of the University, and they become superintendents of higher education. I am in favor of higher educa- tion. During my teaching 1 fitted many boys for college, some of whom are doctors of divinity at the present time. (Applause and laughter.) For that reason, among others, I claim the right to speak, for I have always fought on the side of education. I think the higher branches of education taught in our schools make better scholars in the lower branches than if only the lower branches were taught. One of the best English grammarians that I ever had in my school, and I had some that had taught three or four winters, was a boy not over twelve years old, but who had studied Latin and had commenced Greek, and there wasn't an observation or a remark in Brown's grammar but that he would cite at any time when it became necessary in parsing or disposing of words. I speak of that as showing the influence of the higher branches. In a school that I taught one winter there had been a teacher there for five years, that had taught the languages. The people became dissatisfied, they said the languages .took too much time and that they would not have the languages. They employed a Normal school graduate who could not teach languages. It was some time ago, when they did n6t teach the languages at the Normal schools. He taught for a year, and they became dissatisfied with him, and they had a board of trustees that were in favor of trying the languages again. I hap- pened to be the individual that was employed by them for the coming winter. I made a rigid classification of the different classes, giving every class its proper time, and training my scholars in arith- metic and algebra and so forth, upon rapid work. I sometimes spent a week with scholars that had been through arithmetic, training them on rapid work, so that when they came to an example they could work like lightning. The teachers frequently came in at the .examination and said: "We can't follow your classes, they work August 31.] CONSTITUTIONAL CONVENTION. 717 so rapidly." By so doing, and a proper arrangement with the school of 1 20 scholars, I was enabled to fit boys for college in Greek and Latin, and nobody complained. There was no difficulty what- ever. It did not interrupt. The fact was, it offered an inducement to those in the lower classes to hurry up and get through their arithmetic and their algebra and the higher branches so as to study the languages, and it had a good effect. Now, I would have a man for State Superintendent of Schools that was a live man. I would not have a fossilized individual (laughter) that fifty years ago studied the languages and pursued the studies that they had in our colleges at that time, and never had been into a common school, and never had been into a teachers' institute. As town superintendent, I conducted more or less teachers' institutes. I do not speak of this as boasting. I speak of it to show that I have some little knowledge with reference to these things. A great many things have been introduced into the com- mon schools latterly that were not in forty or fifty years ago, when these men were in common schools, if they ever were, and a great many of them never were in common schools; they were educated, perhaps, in academies or select schools, or something of that kind, and they gained some reputation and were put in as Regents. They are good in their place. I value them highly. I am in favor of the Regents of the University. There are many of them worthy men and well qualified for the positions they occupy, but they are not in a position to know who the best man is for the common schools. They are too far behind the age for that. (Laughter.) If I were to arrange the election of the State Superintendent of Schools I would have it done by the people. The people should nominate and elect him, and then there would be some care in the selection of the individual. The only trouble with the Legislature is, they don't always look to see whether the State Superintendent of Schools is a fit man or not. I have found him very frequently ignorant, entirely ignorant of school law. In one case I wrote to him at the request of the trustees of our school at Batavia, to know whether a certain Catholic institution was entitled to a portion of the money raised by taxes there. He said they were not. He did not know of any law that permitted it. I made a brief and called his attention to the statute, and also to some decisions in the Court of Appeals, or the Supreme Court, I don't recollect which now, in a case that arose in the city of New York, and also a case that arose at Rochester, and I sent him down that brief. He then said they were entitled to a share in the money. They were claiming fifteen hun- dred dollars of the monev raised bv tax there. I told the trustees 718 REVISED RECORD. [Friday, that they were not entitled to it. As this did not go up to him on appeal, we had a right to litigate it. The Catholics commenced a mandamus to compel us to pay it, and I was employed to defend that. I did so at Special Term. The Special Term decided they were not entitled to it. It then went up to the General Term. I argued it at the General Term, and the General Term also decided that they were not entitled to it. Then they did not see fit to go any further. (Laughter.) I speak of that as showing the lamentable ignorance, sometimes of the State Superintendent. I could mention other instances. In one case he said that this department has always decided that where taxes that are not assessed on the assessment- roll are fixed upon a party, that there must be a personal notice. I wrote a review of that, in which I called his attention to the fact that there were six or seven books published by the department in which they said it was not necessary. A copy of that was sent to him, and I guess he perused it and discovered it, for I pointed out the page. where he would find that law. I would, therefore, like to see a little more care on the part of the Legislature in electing State superintendents, and if they are not qualified in point of law, they should employ some lawyer that is, that understands it. (Laughter.) I do not wish to take the time of the Convention any further. Mr. Root — Mr. Chairman, I have the highest regard and esteem for the members of the Board of Regents. For many of them I have a life-long affection. For their work I have only admiration and commendation. I think they are an honor to the State of New York, and that every citizen of the State is under great obligations to the eminent men who, without compensation, with zeal, fidelity and laborious effort, superintend the unsurpassed system of higher instruction in this State. My personal wish would be to agree to the amendment which Mr. Cookinham has offered. I should be glad to see the Board of Regents elect the Superintendent of Public Instruction; but, sir, I believe that our Committee on Education, after months of listening to tlie advocates of two extreme ideas, after thorough and impartial consideration, have reached a safe, wise and conservative means between the two extremes. And abandoning my personal views, I am for sustaining the report of the committee upon this subject. (Applause.) Mr. Cookinham — Mr. Chairman and gentlemen, when I offered this amendment I was aware that the committee had been divided upon the question, standing, as I believe, 9 to 8. Since offering the amendment August 31.] CONSTITUTIONAL CONVENTION. 719 Mr. E. R. Brown — Mr. Chairman, for the information of the gentleman — Mr. Cookinham — Mr. Chairman, I hope the gentleman will not interrupt me. I only want a moment's time, and then I will answer him. Since offering the amendment, I have consulted with the gentlemen on the committee who voted in favor of vesting the power of appointment in the Board of Regents ; also, the chairman of the committee and the friends who would like to have the power vested in the Board of Regents, and we have agreed that the wiser plan will be to withdraw the amendment and to sustain the committee. The Chairman — The amendment is withdrawn. Mr. E. R. Brown — Mr. Chairman, I did not rise to any point, except to state that the report of the committee was nearly unani- mous upon this question, being 10 to 4 at that time. Mr. Moore — Mr. Chairman, may I ask Mr. Holls, the mover of this amendment, a question? The Chairman — Not just now. Mr. Moore — I simply want to ask one question for information, that is all. Mr. Holls — The motion is withdrawn. The Chairman — There is no motion before the House now. Are there any other amendments to the section? Mr. Mclntyre — Mr. Chairman, if there are no other amendments to be offered, I move to strike out section 2. My reasons are these, and I will be very brief: in the first place I do not think anything should be put into the Constitution of the State unless there is a reason and a necessity for it. Putting this into the Constitution does not change the law in any way from the shape in which it now exists, except in this respect. If it does anything, it simply creates the University of the State of New York so that it could not be changed, and fixes the Regents so that there cannot be less than nine in number. Now, I shall not say anything against the Univer- sity of the State of New York, which is an institution that is with- out existence and is a mere fiction in fact; because our understand- ing of a university is one where instruction is given; undoubtedly the founders of this institution, at the time they founded it. had in view that here or in some other place in the State there should be a large university to which the people might come for instruction, the same as other universities not only in this State but in other coun- tries. The Regents had the charge and management of that, and 720 REVISED RECORD. [Friday, out of that has grown a good thing, and the work that the Regents do I have not one word of fault to find with. I have no criticism to make upon the higher education of the State of New York. I only wish it was more. But the Legislature of this great State has from time to time passed laws favoring the Regents, and they have them now as they were passed and codified in 1892. So it seems to be perfect and complete, and I am going to take the time to call the attention of this Convention to the law that now governs the Uni- versity of the State of New York, for the reason that I presume some have not given it as much thought as we who were on the committee gave to it. I am not going to read the whole law, but I will read some of the headings in relation to the law. The first page is confined to definitions; it defines academies and colleges, and universities; it says that " Regents means Board of Regents of the University of the State of New York. State Superintendent means State Superintendent of Public Instruction. Higher educa- tion means education in advance of common elementary branches, and includes the work of academies, colleges, universities, profes- sional and technical schools and educational work connected with libraries, museums, university extension courses and similar agencies." Now, those are the subjects which the University of the State of New York, through its Regents, now have control of. It gives the corporate name and objects: "The corporation created in 1784,. under the name of Regents of the University of the State of New York, shall continue and be known as University of the State of New York. Its objects shall be to encourage and promote higher education, to visit and inspect its several institutions and depart- ments, to distribute to, or expend or administer for them such property and funds as the State may appropriate therefor, or as the University may own or hold in trust or otherwise, and to perform such other duties as may be intrusted to it. " The University shall be governed and all its corporate powers exercised by nineteen elective Regents, and by the Governor, Lieu- tenant-Governor, Secretary of State and Superintendent of Public Buildings, who shall be ex-officio Regents." Now, there we have, in compact and complete form, the whole of the law in relation to the Regents, which puts it beyond any question of doubt; gives them the absolute power, as much as it would if it were mentioned in the Constitution of the State. The next question that comes to my mind is, why do you wish to put them into the Constitution? It is for the sole and simple reason that they think by putting it in the Constitution of the State of August 31.] CONSTITUTIONAL CONVENTION. 721 New York, no power under heaven, no Legislaure of the State would ever have power to uproot them or root them out if it should ever become necessary; and I, for one, Mr. Chairman, am not in favor of putting into the Constitution anything that is beyond our control, unless we know beyond question that it is what we want in relation to the educational system of this State. Now, we have still a further educational system of this State, and what is it? I will not read you the law of 1894. The Legislature passed laws in relation to the common schools, the State Superin- tendent of Public Instruction, and said what his powers and duties should be. He has charge of the elementary education of the State. The Board of Regents issue their pamphlets and tell you what they do, and what do they do? Why, the State has a magnifi- cent library here. It belongs to the State; the secretary is librarian, and draws his pay for taking charge of it. They have museums of the State, and the State appropriates money, and they take charge of those. It has academies, scattered throughout the State, pri- vate as well as public, and what do they do? They simply look after those that are able to pass the Regents' examinations and appropriate certain moneys to them. But the great mass, the bone and sinew of our educational element, the common schools of the State, are the elementary schools. The first great duty of a State is to educate the common people. It is the primeval and first prin- ciple to commence at the bottom and educate the common people and bring them up to the point where they can work for themselves and get ready to receive a higher education. The State of New York, you would think, wanted to work down hill ; commence at the top with your higher education, and then what? Let the district schools take care of themselves. Now, gentlemen, I wish to say this, that I have not been on this Educational Committee for four months without learning some facts, and what are they? The very first week in which we were assembled, the Board of Regents made a grand charge upon this Convention, and for what purpose? They had an object in view. One member of that board came before the committee, and I, myself, asked him these questions. He said he wanted to have the Regents recognized in the Constitution. I asked him what for, and he said so that the Legislature can never do away with the Board of Regents. Then they said they wanted to have certain funds of the United States school money passed over to them. Why? Has the Legislature ever failed to appropriate for your support whenever you have asked for it? No; but we think that some- 40 722 REVISED RECORD. [Friday.. time the Legislature may fail to appropriate the money, and we want to have a fund so that we shall not have to be dependent on the Legislature. What else do you want, gentlemen? We want to elect the Superintendent of Public Instruction. I asked why. Do you know anything about elementary education in this State? No; we don't. We attend to our higher education, but we want it so that he will stop fighting against us, and we will have the control of him. That was the milk, as the boy said, in the cocoanut; and that was all, and these three things were what they wanted. They did not succeed in getting it all, but at one time they passed a reso- lution that they be recognized in the Constitution. Now, gentlemen, as I said, I have nothing to say against the Board of Regents; but you put into the Constitution anything that recognizes the Board of Regents of the educational system of the State, the head of the common schools and your Constitution is beaten as sure as fate. There is not a common school man throughout this State in the rural districts that would vote for this Constitution, if you put the Board of Regents in any way ahead of the elementary education of the State. I feel deeply in this matter. I don't think the clause, the way they have it fixed, is so but that the Legislature might control the Regents, but there is a doubt about it, and what is the necessity of having a doubt? There is no necessity for it whatever. I hope the people from the rural districts will stand firm and vote solidly against this, because there is no need of it. Now, why is there any other reason? I will be very brief and tell you another reason. I came here cherishing the fond hope that perhaps we might get a unification of educational interests in the State. I, for one, believe there should be. I believe there should be a board of education; you may call them Regents if you like; live, active men. I would like to know where the institution is that we put babes or decrepit old age in to do an active business. We want some active, energetic, middle-aged men to have charge of the elementary education of the State, and I did hope we might get a unification, but we could not do it. I hoped we might have from every judicial district one man that would be on this board of education, and they would elect the Superintendent of Public Instruction and have absolute charge, from the kinder- garten up through the university and the higher educational ele- ments of the State; have a unification that means something. Now, gentlemen, leave the Constitution as it is. Leave the statutes as they are, and you have got something that you can unify this educational system when the people rouse up to it, and they are getting roused every day. Leave it as it is, and the August 31.] CONSTITUTIONAL CONVENTION. 723 Legislature can unify this system of education, and we shall soon have one. We shall soon have something that will have charge of the elementary school from the lowest up through to the highest schools of our State. Why, to hear people talk about the elementary education of the State you would think it was perfec- tion. I would like to get some of you gentlemen out of your cities, and your city schools, and your village schools, and go through the rural districts and look at the elementary education if you think it is perfection. Do you think a school-house eighteen by twenty- four, built with bare walls, unpainted, with a few hardwood seats in it, a deal table and a blackboard, without maps or globes, or any of the appurtenances that belong to a school-room, is going to elevate and educate the children of this State as it should be done? Why, the great State of New York spends money enough, if it was properly directed and if we had a Board of Education that was alive and active in the matter; and I, for one, believe that every single child within the school age, from the time he is old enough until he is sixteen years of age, should be taken in charge by the State in one way, as far as education is concerned, and should be educated. Do that and you would banish ignorance and you would add more to the perpetuity of the institutions of the State than in any other way. But the very first stumbling-stone would be to put this into the Constitution. Leave the statutes as they are, I say; let the matter rest as it is and we are all right. We can get unification hereafter, and if, in good time, the people of the State see fit to reduce the number of the Regents from nineteen down to nine ; if they see fit to abolish the life tenure and give them a reasonable and respectable period of office; if they wish, then, to make the Regents the Board of Education, while keeping the Uni- versity of the State of New York as a name, I have no objection to it whatever, but what I say is, leave it so that the Legislature can do something when necessary, and as long as we are not going to do it here, let us let the matter rest and strike out this section two, and you harm no one. There is no reason why you should stand by the committee, because, forsooth, they have seen fit to bring this matter here of introducing the Regents into the Constitution, unless your good common sense says so. I appeal to you, gentle- men, not to perpetuate this very erroneous thing. Mr. Towns — Mr. Chairman, the reason why the Committee on Education thought it well to recognize the Board of Regents in the Constitution was because they wished to take it out of the unseemly contests that occur from year to year in this Assembly Chamber, and in the Senate Chamber across the war. Thev 724 REVISED RECORD. [Friday, thought that if there was anybody that might be looked upon with veneration, if there were any associations which clung around the political history of the State that were pleasing to all of her citizens and well-wishers, it was those that surround the Board of Regents of the State of New York, and the accomplishments of that board from the time it was originated. They have deserved well at our hands. Their distinguished services in the walks of education have been recognized in every civilized country upon the globe. They have taken medals awarded to them in praise of their action, and where others who have made the system of education a study for some time have seen fit to reward our Board of Regents and to commend them for their acts, it was as little as the Committee on Education could do to recognize those merits and to recognize the Board of Regents in the Constitution, in the fundamental law of the State. What is the Constitution? It is a compilation of laws and regulations fixing certain fundamental rules of action beyond which the Legislature may not go and which they may not invade or trespass upon. We had seen for many years the Board of Regents assaulted here in Albany; we had seen them made the football of political power and intrigue, and we said once for all, if we can do so, we will put a stop to such unseemly actions; and it was for that reason that we thought best to recognize the Board of Regents. If it had been in our power we would have gone further; we would have established a system of unification of the educational system of this State which would have been a rule commendable in itself and efficient in its action. But we did not think that the time was ripe for that. We went as far as we thought public opinion would permit us to go at this time; we went so far as to recognize the Board of Regents and to fix their number, below which the Legislature might not reduce them. That once established, we thought that the good sense of this commonwealth would assert itself in time to come, and would build upon that constitutional body a unified system of education in this State, which would do credit to its wealth and to its vast interests. Now, this gentleman, who is as familiar with these acts as any of us, seeks to nullify our action here by striking out section 2, reduc- ing the Board of Regents to that abject and dependent position which they have heretofore occupied. Why does he say that he thinks this is necessary? Because the higher education is likely to absorb lower education, or elementary education. Is there any truth in that? Has our educational system become less efficient on account of the activity of the Board of Regents? Has not the August 31.] CONSTITUTIONAL CONVENTION. 725 Board of Regents raised the standard of education in this State from year to year? Have they not raised the standard of merit by which persons may be admitted to the bar, by which persons may be allowed to practice medicine in the State? Have they not increased those rules in stringency from year to year, so that we feel safe that the commonwealth of the State of New York is in the advance, marching with the advanced rank in civilization? Now, the Board of Regents are a historical board. There are memories and reminiscences clinging around them which should fill the heart of every citizen of the State with pride. They are a dignified body; they are selected from our most eminent, our best and noblest citizens. They are selected without regard to politics, without regard to anything except their efficiency and except their record of honor and patriotism. If there is any body or any board which should be recognized in the fundamental law of the State, it is that body which sheds the light of higher education upon the elementary schools of the State. It is from above that the impetus to education and advancement must come, and not from below. The higher education sheds its light from above, and not from below; and for that reason we wish to throw around the Board of Regents of the State of New York every safeguard that the funda- mental law of the land can vouchsafe to it. It would be a calamity, gentlemen, if this Constitutional Convention did not recognize the eminent necessity of passing this amendment. Now, I hope it is not necessary to enter into any long disquisition of this matter. We do not wish, nor do we apprehend that the report of the Committee on Education will share the sad fate of the report of the Committee on Cities. We do not want this measure talked to death. We think that it has merits. We have tried to compromise with those who are opposed to the advanced principles which some of us thought should be enunciated in the fundamental law, and we have brought forth a measure here which in the main ' was acquiesced in by nearly every member of the committee. We want to see you accept it, and we want you to recognize that it is not perfect, but it is the best that we could do under the circum- stances. You might as well eliminate the entire effort and the entire report of the Committee on Education from the Constitution if you strike out section 2 and fail to recognize the Regents in the Constitu- tion and take them out of the element of politics. Mr. Forbes — Mr. Chairman, I agree with all that the last gentle- man has said in regard to the eminence of the service which the Regents have rendered to the State of New York, but it seems to me that that is not an argument that should justify putting them in 726 REVISED RECORD. [Friday, the Constitution. If they are so old a body and have served so faithfully and well, that is certainly a reason why they will not be destroyed by any Legislature in the future. The only thing" that is done by this amendment is to provide that they shall not consist of less than nine in number at any particular time. Mr. Chairman, I would not have spoken upon this question had I not wished to call the attention of the committee to what is going on in the Convention in the matter of appointive officers. We are, on the one hand, directing our attention to elective officers. We are going back to the people in the matter of cities — or trying to go back to the people, in the cities which are now governed by com- missions ; but in the State as a whole we are taking the other course and establishing or attempting to establish commissions for almost everything. Now, are we to be in the future a State governed by commissions appointed, or are we to be governed by the elective officers that can be changed by the people from time to time? That is the question before us, and not whether this body of regents is a good body, or whether it has done well in the past or not. The question is whether we shall have a body which shall be under the control of the Legislature and which the Legislature can put an end to. It ought to be so in regard to all of these commissions. We should have no officer in this State who is not directly respon- sible to the people. We want no commissions which cannot be created by the people or destroyed by the people through their proper representatives in the Legislature. Mr. Cassidy — Mr. Chairman, since sitting in this Convention, I have had before me the Constitution of the State. I have often times asked myself this question : " What Constitutional Conven- tion was it that framed the Constitution before me?" And I have come to the conclusion that the Constitution of this State as it now exists was not the growth of a night-time, was not the work of a single Convention, but the growth of a hundred and fifty years of civilization, the work of seven Conventions, and many of its prin- ciples are traceable even to the Magna Charta itself. And I have looked through that Constitution in vain to find any place where the present Board of Regents have been embalmed. I asked myself, how long has the Board of Regents of this State been in existence? And I find that it has existed for more than one hundred years, sub- serving a useful purpose in unifying the educational system of the State, but it has never occupied such a position that the great sages who made this document which we have before us have thought it worth while to embalm their names in this Constitution purely for ornament. A Constitution embodies principles for use, and it is not August 31.] CONSTITUTIONAL CONVENTION. 727 intended to embalm the name of any individual man or set of men. If these gentlemen have occupied a useful place in the history of our educational system, if they are only seeking honor, let their names be crystallized into deathless song by the poet from Long Island. Let the troubadours of this State sing their praises through- out the land, but let us not put their names into the Constitution of the State simply as an honor to them, without its being there for any useful purpose. The Board of Regents has existed for more than a hundred years because they were entitled to exist, because they existed by reason of the work which they were doing. They merited their existence. We now propose to put them into the Constitution so that they may exist, not because they are entitled to, not because they are a meritorious body, but because they must exist, perforce because the Constitution says they must exist. When we have done that we have robbed the Board of Regents of all its usefulness and of all the stimulus which now impels it to its usefulness. I do not believe that this second section should be placed in the Constitution. It serves no purpose, and I am heartily in favor of Mr. Mclntyre's amendment. Mr. Deyo — Mr. Chairman, as a member of the Committee on Education, I desire to explain my position. The Regents are extremely solicitous to intrench themselves behind the barriers of the Constitution. This solicitude would have no grounds for its existence were it not that they fear an attack and that they are not willing to enter upon the encounter solely upon the merits. No one disputes but that the work of higher education they have been doing must continue to be prosecuted, and their contention is, therefore, solely that such work shall be carried on in the manner now followed, and that the Legislature shall be prevented from adopting any other. I am not prepared to say either that the Regents should be abolished, or the higher education intrusted to other instrumental- ities. Such an investigation cannot be made by us, and it would be improper for us to fetter those whose right it is to do so if they desire it. While not expressing a final judgment I can conceive of reasons why an investigation should be made which might result in the abolition of the Regents. The life term seems to many to be not in accord with the spirit of our institutions, and the irregular inter- vals at which vacancies occur prevents the initiation or prosecution of any policy except that which the board itself deems fit to follow. A recognition of the Regents in the Constitution would be a stumb- ling block in the way of any investigation by the Legislature, there- fore, I am in favor of Mr. Mclntvre's motion to strike out section 2. 728 REVISED RECORD. [Friday, Mr. E. R. Brown — Mr. Chairman, I did not intend to make any remarks upon this subject, but at the earnest request of some of the members of the Committee on Education, of which I have the honor to be a member, I think it may be proper that I should say a few words. It is well that the Convention should not act upon this subject without knowing precisely the matters at issue. Before the Com- mittee on Education there were many appearances, and part of those appearances of the best men of the State. We learned, first, that there was an unsatisfactory condition in the common schools; second, that there was an unsatisfactory condition in the higher schools, and that that unsatisfactory state of affairs arose largely from the fact that there was no unity in the educational system of the State. Another fact that was developed before the committee, and so thoroughly developed as to win the almost unanimous sup- port of the committee, was that it would not be proper, in the present state of public sentiment upon the subject, and would not be proper, in view of the conditions surrounding the Regents and surrounding the common schools, to devolve the election of Super- intendent of Education upon the Board of Regents. Upon that subject the committee was more nearly unanimous than upon any other subject discussed before it. The consideration that led the committee to this it would not now be wise for me to detail before the Convention, because there is no scheme before the Convention seeking the unity of the educational system of the State. But I do think it is my duty to call the attention of the Convention to the circumstances that this proposed section was adopted by the com- mittee by a majority of one at a full session of the committee; that it had been sought for by the members of the Board of Regents, avowedly on the ground that they feared their extinction or reor- ganization by the Legislature, and they sought to have this as a fortification against such interference. I am not here to insist that the Convention shall take one posi- tion or another upon this subject; but I do think the Convention should be aware of the fact that the Committee on Education all wished that we may soon have something like a unified system of education in this State, and that the Committee on Education nearly all believed that it cannot be through the Board of Regents as now organized. I believe, myself, that the University of the State of New York is a venerable, an honorable and a desirable institution. What reorganization, if any, should take place, is not for me to say. But I trust that when the Convention acts upon this subject, it will not, in view of the great work, which either the August 31.] CONSTITUTIONAL CONVENTION. 729 Convention or the Legislature ought to do, do something which is a mere empty form. The Board of Regents has had an existence of more than a hundred years. It was in existence when the Con- vention sat in 1 80 1, in 1821, and in 1846, but never yet has there been a constitutional enactment upon the subject. 'If you desire to put it in the Constitution, I only wish that you might put it there intelligently, having in view the purposes which those best inter- ested in education should have, and that you shall not act upon the subject in an indifferent or an unsatisfactory manner. Mr. Gilleran — Mr. Chairman, I would not feel that I had done my full duty as a member of the Committee on Education, did I not state on the floor of this Convention my opposition to recogni- tion of the Board of Regents in the Constitution. I heard the argu- ments submitted before our committee. None of those arguments appealed to me particularly as a good reason why such recognition should be given. The Board of Regents has existed as a Board of Regents and as the University of the State of New York for no years. During that time it has done efficient and good work and the people of the State of New York recognize that fact. During that time they have had venal and dishonest Legislatures, unfortu- nately for the history of our State, and not one of those Legis- latures has taken upon itself the privilege, the duty or the dignity of interfering in any way with this venerable and grand institu- tion. What is the cogent reason why it should now receive recog- nition? Have the people any less faith in it, or do they recognize to any less degree, the grand work they are doing — The Convention here took a recess until 8 P. M. EVENING SESSION. Friday Evening, August 31, 1894. The Constitutional Convention of the State of New York met in the Assembly Chamber, at the Capitol, Albany, N. Y:, August 31, 1894, at 8 P. M. Second Vice-President Steele called the Convention to order. Mr. Doty — I ask to be excused from attendance to-morrow and Monday, on account of illness in my family. The President pro tern pore put the question on excusing Mr. Doty, as requested, and he was so excused. Mr. T. I. Green — Mr. President, T ask to be excused for 730 REVISED RECORD. [Friday, to-morrow and Monday, on account of an important business engagement. The President -pro tcwipore put the question on excusing Mr. Green, as requested, and he was so excused. Mr. Deyo — Mr. President, I ask to be excused for to-morrow afternoon's session. The President pro tempore put the question on excusing Mr. Deyo, as requested, and he was so excused. Mr. Foote — Mr. President, I am obliged to be absent on Mon- day, and ask to be excused for that day. Mr. Choate — Mr. President, before any action is taken on Mr. Foote's request, may I be informed by the Secretary how many have already been excused for Monday? The President pro tempore — Thirty-seven. The President pro tempore put the question on excusing Mr. Foote, as requested, and he was so excused. Mr. Mclntyre — Mr. President, I ask to be excused on Monday. The President pro tempore put the question on excusing Mr. Mclntyre, as requested, and he was so excused. Mr. Titus — Mr. President, I ask to be excused on Monday. The President pro tempore put the question on excusing Mr. Titus, as requested, and he was so excused. The President pro tcmporc — The regular order of business is the consideration of general order No. 61, in Committee of the Whole, Mr. C. II. Truax in the chair. The House resolved itself into Committee of the Whole, Mr. C. H. Truax in the chair. The Chairman — The House is now in Committee of the Whole, and Mr. Gilleran has the floor. Mr. Gilleran -*- Mr. Chairman, when I started to oppose recog- nition of the Board of Regents, or of the University of the State of New York, in the Constitution, this afternoon, I meant to be very brief, and I shall detain the committee but a very few minutes. When the gavel fell, announcing the hour of recess, I was trying to think of any good reason why such an article as this should be inserted in the Constitution. There has been no popular demand for the insertion of this clause ; there has been no demand from any person, or from any class of persons, except the Board of Regents themselves. I think it would be unwise from any standpoint to recognize any corporation, or any association, of life-serving officials August 31.] CONSTITUTIONAL CONVENTION. 731 in perpetuity. Besides, I think that the work of the Board of Regents and of the University of the State of Xew York will be more efficient, will be better conducted, will conduce more to the benefit of the State, if its members feel that they are subject to legislative action. I think that they would be proud if they felt themselves above the Legislature, and I think it would be grossly harmful to them. Plans of unification were suggested in our Committee on Education, but none of those plans, though they suggested themselves very forcibly to the members of the com- mittee, were accepted unless that they hedged around the nucleus of the University of the State of New York. In fact, none was seriously discussed, except such as placed the University of the State of New York as the basis of unification. Near the end of the deliberations of the committee, however, a new plan was suggested, and I hope it will be laid before this committee for action. It involves the retention of the University of the State of New York, that institution which we all revere, and of which such words of praise have been said; but I do not think it would be wise or pru- dent or right to recognize any institution in this State which is properly subject to legislative action, in the Constitution. Let us maintain our public school system; let us establish it on a good, sound basis ; let us improve the elementary education of our people ; let us establish an intelligent and educated constituency; let us cherish all institutions which are dear to us, and let us place out- educational organization on such a basis that, " None, however destitute, be left To droop by timely culture unsustained." Mr. Moore — Mr. Chairman, if it is in order at this time, I desire to move to strike out lines 13 and 14 in section 4. The Chairman — The motion is not in order. Mr. Moore — If it is not in order now, I wish to give notice that I will so move at the proper time. The Chairman — The question is upon the motion of Mr. Mclntyre to strike out all of section 2. Mr. Hirschberg — Mr. Chairman, before the motion is put to strike out section 2, I would like to say a word in explanation of the action of the committee, and to be permitted to indulge the hope that the Convention will not strike out that section. \Yhen the Convention was organized and the committees were arranged, those who had the matter in charge provided for the appointment of a committee on the general subject of education. It was thought desirable to have seventeen members of that committee. When 732 REVISED RECORD. [Friday, the committee met they were, of course, chiefly strangers to one another, men selected from all parts of the State, many of whom •had never seen or heard of the others. They made an investigation, first of the extent to which educational matters had been regarded in the Constitution of the State of New York; second, generally as to the educational system or systems of the State; third, as to the opinion of those best qualified to judge of the proprieties and needs of the occasion. So far as regards the Constitution as it exists, it is, perhaps, sufficient to say that the only recognition at all in the Constitution of the State, of the fact that education forms one of the main features of the public care of the people of the State, is to be found in article 9, which comprises less than a dozen lines, and which is devoted exclusively to regulations concerning the common school, the literature and the United States deposit funds. As it seemed to be thought proper that there should be some educational articles presented; as it seemed that the State had grown large enough, prosperous enough, to make it desirable that something general and organic in its nature should be embraced in the Consti- tution of the State recognizing the fact that the State guaranteed education to its citizens, and that education was the chief founda- tion stone upon which the superstructure of the wealth and of the prosperity of the State was built, the committee, after considerable discussion, decided not to disturb the existing order of things at all, but simply to report to the Convention, so that it might be adopted and embraced in the Constitution of the State, a simple provision recognizing the existing order of things and continuing them for the next twenty years. It was for that reason that sec- tion i was recommended, which, in the fewest possible words, provides that the Legislature shall continue the existing provisions for the maintenance and support of a system of free common schools, wherein all the children of the State may be equally educated; recognizing also the fact that this State, in recognition of its own necessities and requirements, had developed a grand and broad and comprehensive system of higher education under the charge of a corporation as old as the State itself, incorporated in the year suc- ceeding the treaty of peace between the colonies and the mother country; recognizing the existence of that corporation, the admira- tion which it receives from educators all over the civilized world and its beneficent work in this State, they regarded it as proper to report a second section, which, without cumbering or fettering the Legislature or the people in any way, should merely recognize and continue that which was the basis and the safeguard of higher education in the State, and continue it in existence during the life August 31.] CONSTITUTIONAL CONVENTION. 733 of the Constitution. The section 2, which is now assailed, does nothing more than this. It has been said by the gentleman who last addressed the committee, that this corporation should be subject to legislative action. It is subject to legislative action, and this section makes it continue equally subject to legislative action. Its powers, the scope and manner of its work, those limitations are all under legislative control, and it is designed to leave them so. But it is said, "Why recognize them at all?" For this reason, a complaint was justly made on behalf of the gentlemen chiefly concerned that the power existing in the Legislature at any time to terminate their good offices, either by an abolition of the corporation entirely, or by so reducing the number of its Regents as practically to deprive it of its existence, had a tendency to thwart their efforts; they required a better, stronger and more enduring tenure than that under which they had existed for more than a century. If we are to make an educational article at all, and of that, perhaps, the Con- vention may best judge, then it is proper that we should recognize the existence of this important higher branch of our educational system. If the University of the State of New York is not to be recognized, then there is no excuse or occasion for an educational article at all. It was impossible to prepare an article which should be broad and comprehensive and just, which should recognize good work by good and faithful men, recognize the grand experience of the State in educational matters, and leave out of it the University of the State of New York and its work ; and that is the reason that the committee decided to report this section. Now, beyond that they do not go, excepting in one other section, which limits the use of the State money to schools that are entirely under State control. This is the whole purview, purport and scope of the article which has been presented. Now, I say, could it have been less? If it is to be lessened at all, why should it not be all destroyed? The Consti- tution has never recognized education, has never attempted to formulate the principles under which it should be adopted, exercised and developed; but if the time has come, as it seemed both to the Convention and the committee that it had come, when this might well and properly be done, I insist that nothing less than has been reported here could be reported or adopted without great danger of a charge being made that in leaving out the University of the State of New York something invidious was intended and that the committee had acted unjustly, improperly, in disregarding and ignoring what is, after all, the chief and important feature of our educational system. Now, that is all I care to say. Having been called upon to do 734 REVISED RECORD. [Friday, something, we could do no less. I may add that the committee was divided. There were some members of the committee, and I was among them, conservative, willing to leave things just as they are, who preferred to say nothing at all about the article and to report that no amendments were necessary. There were others at the other extreme. They wished to provide means for a unification of the system; they wished it decided which of the two branches should have charge; they wished to furnish all the machinery and to furnish the details and incorporate them in the Constitution. And, as a compromise, we finally agreed upon this plan, and as such it was reported, and as such I hope it will be adopted. Mr. Goodelle — Mr. Chairman, I desire to say but a single word in the line of the remarks of the gentleman who has just taken his seat, as to the question why we should recognize in the Constitu- tion the Board of Regents and make provision for them. I desire simply to say this. It has been deemed sufficiently important to protect the material interests of the State at least, to provide in our Constitution that the canals of the State should not be disturbed. It has been heretofore recognized in the Constitution that the salt springs of the State should not be sold. By this Convention it has been determined that we shall have bi-partisan election inspectors. We have a proposition which will come before this Convention very soon in reference to the preservation of our forests. All I desire to say is this, if these material things, the canals of the State, the salt springs of the State, the forests of our State, the elections of our State are of such importance as that they shall be protected by con- stitutional amendment, I ask this Convention by what consistency, when we come to the head of our educational system, it is proposed that that shall not be protected as well as these material interests? When we undertake to leave the Constitution where the Legislature can strike down the very head of our educational system, we simply put it in a position where we disregard the element in our govern- ment upon which rests its stability and perpetuity. I am, therefore, opposed to this section being stricken out. Mr. Peck — Mr. Chairman, as a member of the Committee upon Education, it has been suggested to me that silence might mean that I was indifferent on this question. I have no wish to make any extended remarks on the subject, but I do desire the committee to understand that, so far as my judgment goes, this section, as it now stands in that article, is a fair, honorable, average sentiment of the Committee on Education, and unless the Convention sees some better reason for changing it than has yet been advanced in this August 3i.J CONSTITUTIONAL CONVENTION. 735 committee — in which case it would surely be accepted by the com- mittee — I trust that it will be adopted in the form in which it was reported, with the change which has been made already in the committee. Mr. Mclntyre — Mr. Chairman, I think the forty minutes have not yet been occupied, and I have just a few words in answer to the arguments attempted to be made why this should be recognized in the Constitution. And I have only this to say, that all you do in this proposed Constitution is to say that the University of the State of New York shall be recognized, and that there shall be nine Regents, but you do not say one word about how they shall be supported. You leave it all to the Legislature. They have to appropriate the funds; they have to provide ways and means, with- out which the board would be absolutely powerless. Therefore, as far as the plea of putting a provision in the Constitution concern- ing the board is concerned, there is no arrangement for it, because you do not provide how it can be perpetuated. Suppose the Legis- lature should withdraw the funds, should withhold the means by which they are supported, why, they would be absolutely powerless. They are dependent wholly upon the Legislature, and I maintain that they should not be recognized in the Constitution any more than is the Superintendent of Public Instruction, and not so much, because the common school fund is for the elementary schools of the State; and I have not heard an argument yet from the other side that has said a word about the elementary schools of the State. That is what the common school fund is for, and that is what we want to preserve. That is what we are here for. We are not here for higher education ; we are not here to recognize the institutions that support higher education; but if we are to put anything in the Constitution, we should put in something in support of the common schools, the common school funds and the common school moneys, and the moneys that are raised for the purpose of elementary educa- tion. Why, $3,500,000 of the funds raised goes where? It goes to the common schools. And only $107,000 goes for higher education. And it is urged here that we should preserve and perpetuate what? The educational system of the State of New York? You do not touch one side of it ; you do not take in any part of it. If anything were put into the Constitution that it was desired to perpetuate in the way of education, we should have a unified system provided for. to protect the common schools, as we shall have in time. We do not want this. This institution is not the head of education in the State; it is not the foundation of it. The foundation is the common school system of the State, and you have got hold of the wrong end 736 REVISED RECORD. [Friday, of the rope. We want a unified system, and we want it for the common schools; and when we get that, that will be the head of the system to provide for in the Constitution. I hope that gentlemen here will not be led astray by any false idea that the Regents, who have existed for a hundred years or longer, are being done away with. Not at all. But they are not the head of the school system of this State. The great public interest is the common school, and we do not want to lose sight of that. The Board of Regents is per- fectly powerless without legislative action. Suppose the Legislature should say, " We won't appropriate any money." What power is there to compel them to do it? Mr. Chairman, we have a first sec- tion that establishes the common schools, and now our duty is to leave that as the system, because that is what the taxation is primarily for, to raise money for the common schools. Mr. Root — Mr. Chairman, there is no question before us here as to whether the superintendent of the common schools shall be pro- vided for in the Constitution. No committee has reported it, and no amendment has proposed it. The question now is, whether this institution, founded by the greatest of New Yorkers, Alexander Hamilton, which has been made the model for the National Univer- sity of France, which among all educators the world over, is the highest title that the State of New York possesses to advanced position among educators in the world; whether this institution, which is, or should be, the pride of every member of the State, shall be recognized in the organic law of the State, as we recognize the Superintendent of Public Works and the Superintendent of State Prisons. Mr. Chairman, I believe that a system of organic law which leaves out this great branch of the public service, which leaves it without a word, which leaves it at the whim, at the mercy of the ideas of every one of the successive Legislatures which may come and go for all time to come, is radically defective. I believe that this time-honored, effective and satisfactory institution should be put beyond the reach of any temporary changes of opinion; left where the Legislature can control it; left where the Legislature may define, may increase or diminish its powers, but put beyond all attempts to destroy it. I believe this committee is right in elevating this great and honorable institution, at least, to the level of the Superintendent of State Prisons and the Superintendent of Public Works. Mr. Holls — Mr. Chairman, I do not intend to take much time of the Convention on this question with what I shall have to say. The Chairman — If Mr. Holls will excuse the Chair, he will state August 31.] CONSTITUTIONAL CONVENTION. 737 that half of the time allotted to the consideration of this article has been consumed. Mr. Holls — I am deeply sensible of that, and will be mindful of it in the few words that I say now. I wish merely to say in answer to one seeming argument that has been made on behalf of this motion, namely, with reference to the common schools, in my opinion and in the opinion of the majority of the com- mittee, there is nothing this Convention can do for the purpose of elevating the common school system of the State of New York more important and of greater permanent value than to give this constitutional recognition to higher education in the State. As the gentleman from Kings has eloquently and ably said, and as has been said by every competent historian of education from time immemo- rial, education works downward, and while it is true that the common school is the foundation of it all and nothing can be said of our system of common schools in their praise and in emphasizing their importance to the State, which I will not heartily subscribe to, its efficiency depends largely upon the ideals set before its pupils and its teachers, and those ideals all come from the higher educa- tion. Education has been aptly compared to a pyramid, of which the common school is the broad and solid foundation; but the exact size and the proportions of the. pyramid and the question whether it shall be a thing of beauty or an awkward truncated figure is all governed by what? By the cap at the top, the headstone or summit of it all. The angles there, and the lines running thence which reach down to the bottom, determine the shape of the entire structure. And so, Mr. Chairman, there is nothing which we can do to elevate all education from the primary school and the kindergarten up to the college and university that will be half so valuable as this con- stitutional recognition and this declaration in the fundamental law of the State that the time-honored policy of the State of New York, which has made it a leader in the history of education and a source of pride to its children, shall be continued and shall henceforth be continued under constitutional safeguard. I sincerely hope the committee will be sustained in its position, and I ask for the question. The Chairman put the question upon the motion of Mr. Mclntyre to strike out all of section 2, and it was determined in the negative. Mr. Veeder — I desire to state, Mr. Chairman, that I am paired with Mr. Augustus Frank. The Chairman — Are there any further amendments? 47 738 REVISED RECORD. [Friday, Mr. Deyo — Mr. Chairman, I have an amendment to offer. The Chairman — Is this an amendment to this section? Mr. Deyo — Yes, sir. The Chairman — The Chair suggests to the gentleman that he is out of order; that amendments were called for and no amendment was offered; then substitutes were called for and substitutes were offered and passed upon. Then a motion was made to strike out. That motion was denied, and we now have passed to other business. The Chair is of the opinion that the gentleman must wait until the completion of the sections. The Secretary will read section 3. The Secretary read section 3 as follows: " Sec. 3. The common school fund, the capital of the literature fund and the capital of the United States deposit fund shall be respectively reserved inviolate. The revenue of the said common school fund shall be applied to the support of common schools; the revenue of the said literature fund shall be applied to the sup- port of academies, and the sum of twenty-five thousand dollars of the revenues of the United States deposit fund shall, each year, be appropriated to, and made part of, the capital of the said common school fund." Mr. Holls — Mr. Chairman, I move to strike out that section for the purpose of debate, and for the purpose of saying merely that that section is the section of the whole of article 9 of the present Con- stitution. The committee investigated the question of funds quite carefully. The result of their investigation is in the printed report, and the result, so far as amendments are concerned, was that it was not thought worth while to amend that section in any particular. It is not a matter of great importance in the educational history or policy of the State, and under all the circumstances, we thought the Convention would best allow matters to go on as they are. The Chairman — Will the gentleman allow the Chair to ask him a question? Should it not read, " The capital of the common school fund," in order to read the same as the section in the present Constitution? Mr. Holls — Yes, sir; that is a misprint. I noticed it just this moment. It should be, " The capital of the common school fund." I move to amend in that particular, Mr. Chairman, to insert the words, in line 9, " capital of the." The Chairman put the question on agreeing with the amendment offered by Mr. Holls, and it was determined in the affirmative. The Chairman — Are there any other amendments to this sec- August 31.] CONSTITUTIONAL CONVENTION. 739 tion? There being no other amendments to this section, the Secre- tary will read section 4. The Secretary read section 4 in the language following: " Sec. 4. Neither the State nor any subdivision thereof shall use its property or credit, or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection of any school or institu- tion of learning, wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught. " This section shall not apply to schools in institutions subject to the visitation and inspection of the State Board of Charities." Mr. Choate — Mr. Chairman, I offer an amendment to this section. The Secretary read: Mr. Choate moves to amend section 4 by striking out the last two lines, namely: "This section shall not apply to schools in institutions subject to the visitation and inspec- tion of the State Board of Charities." Mr. Choate — Mr. Chairman, I move to strike out this proviso, this qualifying clause at the end of section 4, upon the ground that it nullifies entirely the effect of the restraints of section 4 as to charitable institutions in which sectarian or denominational tenets or doctrines are taught, upon the ground that it is a violation of an implied understanding had before this Convention when the dis- cussions on the subject took place in our public hearings; on the ground that it defies the universal public sentiment of this State as it has been expressed in all quarters, and is in flagrant derogation of a sound and universal principle, that none but public schools shall receive the support of public moneys, and that the people of this State, or of any section of this State, shall not be taxed for the support of education of a sectarian nature in any schools whatever. Now, it is well to understand what the meaning of this section is, this final clause of this section, which has been most artfully con- trived and is well calculated to deceive the unwary; and I beg the attention of gentlemen for a few minutes to it. " This section shall not apply to schools in institutions subject to the visitation and inspection of the State Board of Charities." What institutions are subject to the visitation and inspection of the State Board of Chari- ties, it would not now be easy to say. Their powers of inspection and visitation as at present arranged by law are of a somewhat indefinite but yet limited description. I understand, however, that it is the purpose, if this section is adopted, to make it fit in with the 740 REVISED RECORD. [Friday, proposed amendment offered by the Committee on Charities, which will fix and prescribe the exact limits of the supervision and inspec- tion of the State Board of Charities; and in order that gentlemen may understand what that is, I call attention to the report of that committee, being Document No. 59, in the public documents, in which the supervision and inspection of the State Board of Charities is thus described as it is intended to be made. I read from page 8 of Document No. 59: " The State Board of Charities would have supervision over seven reformatories, eight institutions for the deaf, two for the blind, one for epileptics, three for idiots, one for Indian children, one for soldiers and sailors, fifty-eight county poor-houses, one hundred and forty-one orphan asylums and homes for the friendless, one hundred and twelve hospitals, forty-five dispensaries, a population of sixty-two thousand one hundred and fifty-four, together with the supervision " — and this is the important part, Mr. Chairman — " together with the supervision of a number of charitable and benevolent societies not included in the above list." That is to say, as to all those charitable and benevolent societies not in the above list which it is the contemplation of the report of the Committee on Charities to permit to continue to receive public money for the support of their inmates, under restrictions and restraints which will be very properly applied by the amendment offered by that committee, it is now proposed to make section 4 in its main provision utterly inapplicable. What are those institutions? They are the sectarian institutions, Protestant and Catholic, Jewish and of every other description, every form of religious belief in this State; they are the institutions about which the dispute was when this Convention first came in session, when the public mind was agitated upon the subject whether they should not be cut off from every dollar of aid for any purpose, upon the broad doctrine that public moneys ought not to be applied to private charities. Now, then, here is not merely a relief from the restraints, but an implied enactment embodied in the Constitution that those institutions shall receive public money for the support of schools in them, although therein there may be taught, or shall be taught, denominational tenets or doctrines. For one, I am absolutely opposed to that. I do not think we can go before the people and face the people of this State with these two lines in our proposed Constitution. It will sink the whole ship, if we go before them so defiant and regardless of the express views of the people in all parts of the State. Now, Mr. Chairman, it is not the first time this subject has been under consideration here. Almost all the members of this Convention August 31.] CONSTITUTIONAL CONVENTION. 741 were present at the meetings that were addressed by Mr. Coudert and Mr. Bliss, the authorized spokesmen for a very large portion of these charitable institutions, these institutions in which denomi- national tenets are taught and which now it is intended by this constitutional provision actually to authorize public moneys to be expended upon. Not for the support of the inmates ; I do not mean that. We are all agreed, I believe, about that, that wherever they have public wards the public money may be used under proper inspection, accountability and restraint, for the shelter, the food, the clothing of these unfortunate children. The proposition now is, that if they are Roman Catholics, the State shall pay for teaching them Roman Catholic doctrines; if they are Methodists, the State shall pay for teaching them Methodist doctrines; if they are Sweden- borgians, or Presbyterians, or Hebrews, and so on through the whole chapter. Now, what took place when this discussion was up before? They came forward and said they made no such claim. They repudiated any such claim. I read from a speech made by Mr. Coudert in this very presence, at the Secretary's desk. He said: " My friends on the other side unanimously speak of the common schools as the palladium of our liberties, as the corner-stone of our institutions, etc. This language is very fine, and I am quite willing to indorse it, and I shall not to-day say one word in opposition to this plan of amendment so far as it relates to the common schools. Let it be understood that this system shall remain intact — that public opinion will not tolerate a diversion of any public moneys from their lawful object to encourage denominational education. Put it, if you are so inclined, into our Constitution." And Colonel George Bliss, speaking on the same day, made an argument of great ability, and with which he was himself so well satisfied that he afterward printed a revised edition of it; and in that he says: " As to the schools, I do not care what action you take in this Con- vention with reference to an amendment bearing upon the common schools. Mr. Coudert lias very largely anticipated what I had taken the pains, so that I might not be misunderstood, to write down, but I will take the liberty of reading it, so that there may be no mistake about it. I recognize that public opinion believes in using funds raised by taxation exclusively for the public schools, and that though these schools, as now conducted, do not meet the require- ments which Catholics deem essential to education, it is useless to oppose public opinion as it now exists. So, go on with any form of amendment you think necessary to prevent the with- drawal of public moneys from the public to parochial schools; you 742 REVISED RECORD. [Friday, will find no present opposition from me or those I represent. You will, I think, find practically no opposition from any Catholic." Now, Mr. Chairman, what are these appropriations of public money that are being made? They are not for tuition in these sectarian institutions; they are not confined to one sect, to one denomination, to one city, or to any one portion of the State. They are stated as follows in a document submitted to this body, which has never yet found an answer as to these items : " New York city — apportionment of funds by the board of education of the city of New York to corporate schools, for the year 1892," and then it goes on and specifies here, amounting in all to sixty-one thousand dollars. " Brooklyn — apportionment of funds by the board of education of the city of Brooklyn, to denominational schools, for the year 1893," amounting to some thirty-one thousand dollars. Similar reports are given from Rochester, Syracuse, Buffalo, West Troy and so on. Mr. Chairman, there is a law on our statute books now, at any rate relating to the city of New York, referred to by Mr. George Bliss in his argument, to which I wish to call attention. He says : " The report of the board of education in the city says expressly that in all cases of non-public schools receiving public moneys, the State law prohibiting sectarian instruction and the use of sectarian text- books appears to have been complied with." Tell me, sir, what will become of such a statute as that when this constitutional amend- ment, with this proviso, goes into operation? Why, the first thing they will claim, and will claim with confidence, and I believe will claim with success, will be, that the Legislature under this constitu- tional provision, has no right to pass such a law, because it is embodied in the Constitution that public moneys may be used for schools in institutions subject to the inspection of the State Board of Charities, although they are the centers of instruction in denominational doctrine. Now, are the people of the State ready for that? Are we ready, as members of this Constitutional Conven- tion, to go before them? Have we the effrontery to propose such an amendment as that? In my judgment it would sink anything that we should propose in other parts of the Constitution, no matter how meritorious it was. What the people of this State mean as to their public schools, is not that the public schools only shall be maintained, but that no public money shall be applied for education, except in schools and educational institutions that are under public control, and I wonder at the fact that a committee, even by a bare majority of one, has been led to propose to this Convention and to the people of the State such an amendment as that. Now, I do not undervalue these charitable institutions, each one August 31.] CONSTITUTIONAL CONVENTION. 743 protected, maintained, established by some religious denomination. I believe that they are all worthy. Take the most important of them, those instituted by the Roman Catholic church, these chari- table institutions that are found in such numbers in all our great cities, why, sir, the Catholic church has led the march in charities for centuries, and I believe that its work to-day in that direction is not inferior to that of any other sect; and so it may be said of all these institutions. Assume, now, for the purpose of this argu- ment, that they are absolutely worthy as charitable institutions. But what of that? A departure was made from what I think to be well-settled principles of political economy twenty-five or thirty years ago, when the State, instead of taking care of its own wards in proper institutions provided by itself, started off on the new scheme of handing them over to these charitable institutions, where they have been so admirably maintained, as has here been said. Now, let the State provide for their support, provide for their main- tenance, but let not one dollar of the public money be paid for teaching in those establishments any sectarian doctrines or ideas whatever. They are not taught in our public schools. The chil- dren that go to the public schools are protected from such tuition, and the State moneys ought not, and, in my judgment, never will be, permitted to be spent in any such manner. If the Roman Catholics want their priests and nuns to go as teachers into these corporate parochial schools of theirs, let them go, but let them be paid at their own expense, at the expense of that mighty church which draws upon the revenues of its adherents as almost no other institution does. If the Episcopal church wants its priests and deacons to indoctrinate the young inmates of the institutions which they have founded with the peculiar tenets of the Episcopal church, let that church pay for it. They can well afford to do so. But let it not be said that we, a Constitutional Convention of the year 1894, dared go before the people of New York proposing that henceforth any money should be raised by taxation for teaching any child any doctrine of religion as distinguished from any other doctrine what- ever. (Applause.) Mr. Cassidy — Mr. Chairman, the President of this Convention has stated that if lines 13 and 14 of section 4, which are at war with the rest of the section are not stricken out, this Constitution which we are making ought to be sunk; and I stand here with him and say that if that part of section 4, which he would retain, is not stricken out, the Constitution which we are here framing ought to be sunk, and all those who advocate the pernicious principles in that 744 REVISED RECORD. [Friday, section. I wish to offer an amendment, Mr. Chairman, to section 4, so that it may read as follows : " Neither the State nor any subdivision thereof shall use its prop- erty or credit, or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination and inspection, of any institution of learning not wholly owned and controlled by the State or a subdivision thereof," striking out, after the word " wholly/' in lines n and 12, and insert- ing, " not wholly owned and controlled by the State or a sub- division thereof." The' Chairman — The question is upon the motion of Mr. Choate first. Mr. Cassidy — I substitute that for the entire section No. 4, to amend the entire section so it will read like the amendment which I send up. The Chairman — Is this a substitute for the whole section? Mr. Cassidy — It is an amendment to the whole section. The Chairman — The Chair holds that it is the nature of a sub- stitute. The question now is upon the motion of Mr. Choate to strike out the last two lines. Mr. Cassidy — May I speak on the substitute now, Mr. Chairman. The Chairman — You may speak upon the motion before the House. Mr. Chairman, I desire to preface my remarks by reading from the Constitution of the United States : " No religious test shall ever be required as a qualification to any office or public trust, under the United States." (Article 6, section 33.) " Congress shall make no laws for the establishment of religion or prohibiting the free exer- cise thereof." (First amendment.) These two articles, Mr. Chairman, embody all that is contained in the Constitution of the United States upon the subject of religion, but, brief as they are, they proclaim religious liberty in its broadest sense as a fundamental right of citizens of the United States. At the close of the last war, however, these two articles were supple- mented by this sweeping clause of the fourteenth amendment, " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." But, Mr. Chairman, before the adoption of the Constitution of the United States, our own Empire State proclaimed in no uncertain tones her position on this subject. And in the first article of the Constitution adopted by her in the year 1777, we read these words: "The free August 31.] CONSTITUTIONAL CONVENTION. 745 exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed in this State to all mankind.'' Little did the framers of that Constitution, Mr. Chair- man, dream of Mr. Holls and his amendment, little did they think that after a hundred years of religious liberty that there could be found any man or set of men, anxious to steer the ship of State back into the pathless and turbulent sea of religious persecution, and yet if we are to adopt this amendment, all that has been gained in the struggles of the centuries will be lost. Now, Mr. Chairman, I am opposed to this amendment as proposed by the Committee on Edu- cation, because I believe it to be unconstitutional, a surrender to bigotry and fanaticism, and at war with the generally accepted doctrine of separation of church and State. It merely seeks to out- law some of the agencies in the State, because of their religious character. The principle involved in the separation of church and State, is that the State, of right, exists merely for civil ends, that it should have nothing whatever to do with religion; that it should make no inquiries of its citizens, servants or agents whether such and such religious tenets are held by them or not. This principle was illustrated by Roger Williams, the father of religious liberty in the following language : " There goes many a ship to sea, with many hun- dred souls in one ship, whose weal and woe is common ; and this is a true picture of the Commonwealth. It hath fallen out, sometimes that both Papists and Protestants, Jews and Turks may be embarked in one ship ; upon which snpposal I affirm that all the liberty of con- science I ever pleaded for turns upon these two hinges, that none of the Papists, Protestants, Jews, or Turks be forced to come to each others prayers or worship, nor compelled from their own par- ticular prayers or worship, if they practice any. Nor ought any privilege to be accorded to one, that is not accorded to all. I fur- ther add that notwithstanding this liberty, the commander ought to command the ship's course; yea, and also command that justice, peace and sobriety be kept among the seamen and all the pas- sengers. If any of the seamen refuse to perform their service, or passengers to pay their freight; if any refuse to help in person or purse toward the common charges or defense, on the ground that they are able to defend themselves, or that they do not care to help the weak ; if any refuse to obey the common laws and orders of the ship concerning their common peace or preservation; if any shall mutiny and rise up against their commanders and officers, in such cases the commander or commanders may judge, resist, compel and punish such transgressors according to their deserts and merits." 746 REVISED RECORD. [Friday, The principle here contended for it that as the State shall not make a grant to a school simply because it is a religious school, so it should not refuse a grant on that ground. The State ought never to consent to run with the bloodthirsty dogs eager to chase down their religious prey. The churches are not exercising the most deadly influences in government to-day, and yet from the manner these A. P. A. clogs are barking you would think that no other influences for evil could equal them. A church, though primarily a religious body, is also a civil cor- poration. And the State may make grants to it for civil reasons the same as to a peculiarly secular organization. For instance, if the State advertises for the use of a room or building, and the church offers one, the State may vote money to the church for the use of that room or building the same as it would for the use of a room in a railway depot. So, if the State makes grants to other parties for the shelter of the aged, poor and orphans, or for giving instruction in geography, mathematics and other secular branches, it may also make such grants to a church, asylum or school, just the same as to one under purely secular control. For in that case the State is deal- ing with the church not as a religious, but as a civil organization. When a church school renders the State a secular service by giving secular instruction, it may be given grants from the Regents funds, just the same as any purely secular school. When the general government made grants of lands to the several States to foster instruction in agriculture, New York gave her agricultural lands to Cornell University, while New Jersey gave her allotment to Rutgers College, an institution of the Reformed Dutch church. Now, why was not the action of New Jersey just as legiti- mate as that of New York? Cannot agriculture be taught in a Reformed Dutch college as well as in one that is undenominational? And if the State is to continue to make grants from the Regents fund to academies governed by private corporations for teaching algebra and other secular branches, why should it not make such grants to a denominational academy the same as to any other? If a church school renders the same secular service as a non-religious school, why should not the' State make a grant to the former as well as to the latter? This amendment, however, proposes that the State shall establish a " holy or unholy " inquisition, and shall hear and entertain charges that such and such doctrines are taught, and if such charges are proved, that such and such action shall be taken. Now, the State, which exists merely for civil ends, has no more right to inquire into the religious character and teachings of school August 31.] CONSTITUTIONAL CONVENTION. 747 corporations than into the religious character and teachings of an individual. The State has nothing to do except with the civil char- acter of a citizen, and it has nothing to do with the school except with its civil character and the nature of the secular instruction given therein. As the State could not rightly refuse a pension to a soldier because he belongs to a church or taught certain religious doctrines, so it cannot rightly refuse a grant to a school corporation on any such grounds. As the State would have no right to inquire into the religious tenets or teachings of a man who is a candidate for the position of sheriff or senator, so it has no right to inquire into the religious character of a school which is a candidate of an agricultural college land grant or a grant from the Regents fund. The State has no right to discriminate in the matter of grants between two schools which render the State the same secular ser- vice, because of religious or ecclesiastical character or relations. Those who urged this amendment, on the ground of the separa- tion of church and State, are very much like the man who stood up so straight that he leaned over backward at an angle of forty-five degrees — they violate the very principle they claim to uphold. The United States government gives newspaper and magazine publishers certain favors in the matter of postage, while the rest of us pay eight cents a pound on printed matter, they send their pub- lications through the mail for one cent a pound. This is less than cost to the government. Indeed, newspapers are sent within the limits of their own county, free. This is equivalent to a govern- ment grant to newspapers. The ground on which this is justified, is that the circulation of newspapers increases popular intelligence, and is of service to the State. Now, the same privileges are given to religious newspapers established to disseminate certain religious tenets, some of these like the Methodist Christian Advocate being directly owned by the church. And this is right, for these religious newspapers do as much to elevate popular intelligence as political or commercial and other purely secular newspapers. But, if the government, in the matter of postal favors and aids, does not dis- criminate between religious papers and secular papers, why should it distinguish in the matter of grants from the Regents fund, between religious schools and those which are purely secular. The amendment is objectionable as being ambiguous. Would it forbid the State to hire a building or room of a church and pay rent therefor? The money the church school received from the State in rent for one of the unoccupied rooms, might be a considerable aid to its treasury, and so " indirectly in aid or maintenance " of the school. The money paid by the State to a religious school, might 748 REVISED RECORD. [Friday, be just as much in " aid " to the school as money paid it from the Regents fund for its having taught a given amount of geometry, algebra or German. Would such a lease of a room be forbidden? If it be said that moneys paid for rent of a room are paid not to help the school, but to get the room, we might answer that the moneys given the school from the Regents fund are not primarily to help the school, but to help the State, and incidently the school, to give the instruction the State owes. The amendment does not define what is meant by " control of any religious denomination." Matthew Vassar, being a member of a Baptist college, named Baptists for the most part, as trustees of Vassar College. And it is agreed that Baptists shall retain the majority of that board of trustees. Now, if it were proposed to make a State grant to Vassar College, could it be said that, being controlled by a board of trustees in which the Baptists have a majority, it is "under the direction or control" of the Baptist denomination? Cook Academy was founded and endowed mostly by Baptist money. The majority of its trustees are Baptists, and it is generally called a Baptist institution. But, could it, therefore, under this proposed amendment, be denied a grant from the Regents fund? It might be pleaded that it is not under the control of the Baptist denomination, but only under the control of a board of trustees, the majority of whom are of that denomination. If an academy was controlled not by the Catholic church as such, but by a board of trustees composed of Archbishop Corrigan, Mr. Coudert and other Catholics who would manage it in the interests of the Catholic church, would it be under the control of the Catholic church, or only under the control of the trustees? Elmira College is under the control of the Presbyterian denomination by the explicit language of its charter. But, though its president is always a Presbyterian, as the president of Vassar is always a Baptist, its teachers are of all denominations, and we may. say it is no more a Presbyterian institution in any sectarian sense than Vassar is a Baptist college. Now, would it not be invidious to deny to Elmira college a State grant such as would be made to Vassar? Would it not be unjust discrimination to deny to Methodist Conference academies directly under the control of the church what it granted to Cook Academy, which not being nominally under the control of the church, is yet so practically from having a majority of its trustees of one denomination. What is meant by " wholly or partly under the control of any religious denomination?" What is meant by the words " in which any denominational tenet or doctrine is taught." Is the immortality of the soul a denomina- August 31.] CONSTITUTIONAL CONVENTION. 749 tional tenet? There are Christian denominations, for example, the Adventists, who deny it. How about the divinity of Christ which the Unitarian churches deny? Shall we say that it is not a denomina- tional tenet because it is not peculiar to one denomination? But neither is predestination which is held not only by Presbyterians, but also by Baptists, Congregationalists and the Dutch Reformed. Nor is the doctrine that immersion alone is baptism, for this is held by the Greek church as well as the Baptist. Nor is the veneqation of the Virgin Mary, for this is held not only by the Roman Catholic church, but by the Russian also. If a professor in Cornell having an optimistic philosophy should declare that the day will come in the universe when all evil shall be done away and all be righteous, could Cornell be denied a State grant on the ground that this professor taught the " denominational tenet " of the Universalists? Suppose a school says, " No, we do not teach any peculiar denominational tenet in school. In school we teach merely what is held by all Christians. It is only after school hours that our peculiar tenets or doctrines are taught." What then? The proposed amendment would be pernicious in its working, because it is indefinite. Loosely construed it would admit the extremes of sectarian teachings, while strictly construed it might be used to exclude all moral teachings whatever. No one has yet defined " denominational tenet or doctrine." Some one may urge that a given church may have a political " pull " which will enable it to get for its schools larger grants than it is entitled to. But if an academy was established by a secular organization, say by a farmers' club, that also might have a political " pull " which it might use to obtain undue favors. This might be an argument against grants to all schools belonging to private cor- porations rather than to the State, but it is not a reason for discrim- inating between denominational schools and other private schools under private secular control. If it be said that a given school may get a larger grant than is equitably due to it, it may be answered that a given soldier may get a larger pension than he should have, or a railway company an inordinately larger land grant. But this is an argument not for giving no pensions or railway land grants, or grants in endowment of schools, but only of increased watchfulness in making State appropriations to private corporations. It is said that the Roman Catholics obtain from the State for their asylums and other institutions vastly more than do the Protestants. But they have more institutions. It has not been shown that they 750 REVISED RECORD. [Friday, receive more than Protestants in proportion to the number of inmates of their institutions. It is said that the Catholics wish to have the public school funds divided and a part given to their parochial schools. But there are others besides Catholics who would like to draw money from the State treasury, who yet will not succeed in obtaining it. There is nothing to which the people are more attached than our public school system, and nothing would damage a political party or a political leader so much as to consent to anything that would damage the public schools. There need be no fear that the people of the State will ever consent to have the public school system impaired. Nor is it true that the Catholic church has so great political power that it can perhaps do what other churches cannot. The Protestants outnumber the Catholics eight to one in the United States, and by a similiar proportion in the State of New York. How absurd the idea that a tenth of the people can silence or control nine-tenths. Though one-tenth of the people, they do not hold anything like one- tenth of the seats in the national Congress, nor do they in any State hold more public offices than they might fairly be entitled to from their numbers, if equal in merit to Protestants. It is not a help to an aspirant to office, but rather the reverse, to be a Catholic. It would be next to impossible to elect a Catholic President of the United States or Governor of the State of New York Where a candidate gains one vote for being a Catholic he will lose three. Whether it be reasonable or unreasonable, there is a jealousy against Catholics which will be sufficient to frustrate any plans which any of them may cherish of aiding their parochial schools by injury to the public school system. There need be no fear whatever that the Catholic church or any other church will ever be strong enough to overthrow or cripple the public school system. More than that, the Constitution of the State protects the common school funds, and as I began by quoting from the Constitution, so I will close: " The capital of the common school shall be preserved inviolate. The revenue of the said common school fund shall be applied to the support of common schools." (Art. 9, sec. I.) Permit me, Mr. Chairman, before I close to read a letter from Prof. Norman Fox, chairman of the board of trustees of Cook Academy and of Rochester University: ALGONQUIN, N. Y., August 4, 1894. Hon. Ozven Cassidy: DEAR SIR. — Will you kindly send me — directing to this place, where I shall be till Friday, the loth — a copy of the amendment August 3I-] CONSTITUTIONAL CONVENTION. 751 reported by the Committee of Education to the Constitutional Con- vention, the one restraining the State from making any grant to any school wholly or in part, under church control. It seems to me that such a provision would be inequitable, that the State has no right to discriminate between schools controlled by churches and those managed by a purely secular corporation. Take Cook Academy, for instance. The State of New York — to encourage higher education — not only establishes high schools, etc., of its own, but also offers a certain sum to any incorporated institution whatever that is doing a certain work. Under this pro- vision Cook Academy draws about a thousand dollars — I think it is — a year from the Regents fund. The proposed amendment to the Constitution provides that this grant be hereafter withheld. And why? Because Cook Academy is a school " wholly or in part " under denominational control. Because forsooth it teaches not only geography and Latin, but also some elements of religion, it must be denied this grant, which would still be given it if it were under the patronage and control of an agricultural society or the Masonic order. I do not see the justice of this. The amendment is urged in the name of the separation of church and State. In fact it violates that principle. The separation of church and State implies that the State exists merely for civil ends and that it has nothing to do with religion. Now, as the State should not make a grant to a school simply because it is a religious school, so it should not refuse a grant on that ground. As the State has no right to inquire as to the religious character of a candidate for the position of postmaster or brigadier-general, so it has no right to inquire as to the religious character of a college which, is a can- didate for an agricultural college land grant or any other such State subvention. The State should judge of a school purely on its civil and secular character, simply on the character of its secular teaching. If it also teaches religion and denomina- tional tenets, that is a thing of which the State should take no cognizance whatever. This amendment proposes that the State should institute an " inquisition " and find out whether a school asking a grant does or does not teach this or that religious or ecclesiastical tenet. But for the State to do that is to go back to medievalism, to violate the principle of the separation of church and State. The State has no right to inquire as to the religious or ecclesiastical character of a school any more that it has to concern itself with the religious or ecclesiastical opinions of a citizen. And the endeavor to discriminate between different institutions would lead to corruption. Cook Academy is really a Baptist school, 752 REVISED RECORD. [Friday, but to draw from the Regents fund we could say that it was not, for nothing — so far as I know — is said in its charter about its being controlled by Baptists. And what is a denominational tenet? Is it the existence of a God or the immortality of the soul? As to the doctrine of immersion, that is not peculiarly a Baptist tenet for it is held also by the Greek church. The result of an attempt to define practically the meaning of the amendment would be that boards of trustees who were less scrupulous would still draw public funds, while those more tender in conscience would be cut off. Take, for instance, a Roman Catholic school. They might teach in the school itself only secular knowledge, and then, after school, teach the chil- dren the church catechism. And instead of having the school directly controlled by the church authorities they might have it managed by a board of trustees, consisting of Citizen Michael Cor- rigan, Mr. Fred. R. Coudert and other Catholics, and while prac- tically a church school, it would not be such technically and could still draw from the Regents fund. The amendment would be a dead letter except to introduce duplicity in drawing State funds. It is said that Catholics get from the State for their institutions more than Protestants do. But they have more institutions than Protestants. It has not been shown that they get more than Protestants in proportion to the number in their orphan asylums, etc. Again, an institution under the control .of a secular organization, as a farmer's club or a trades' union, might have a political " pull," and get more than it was entitled to. It is not churches alone that can " work " the Legislature, and so there is no reason to discrimi- nate between church institutions and those managed by secular corporations. Some soldiers get larger pensions than they ought to have, but that is not a reason for refusing all pensions. And if some church schools get more than should be given them, that is merely an argument for greater care in making appropriations. If it were proposed that no State grant be given to any institu- tion not owned and controlled by the State, the amendment would be consistent and logical. But when it tries to discriminate between church schools and those managed by other private but purely secular corporations, it violates the principle of the separation of church and State by instituting an investigation into the religious character of an institution, and as the amendment does not, and, indeed, cannot, distinctly define church control and denominational tenets, its enforcement would be impractical or would lead to dishonest evasion. I should be glad to receive any printed documents pertaining to August 31.] CONSTITUTIONAL CONVENTION. 753 this matter which have been laid before the Convention. I should be glad also to receive a list of the members of the Convention. Respectfully yours, NORMAN FOX. I expect to be home — Morristown, New Jersey — after August tenth. Also another letter from Prof. A. C. Hill, a Protestant of Protestants, and one of the foremost educators of the State: Hon. Ozven Cassidy: DEAR SIR. — I am greatly interested in the proposed amendment to the Constitution relating to appropriations to sectarian schools. In its present form, the measure is very objectionable and if passed by your body will help to defeat the adoption of the Constitution when submitted to the people. Opposition will increase as the nature of the proposition is better understood. There are many schools " wholly or in part " controlled by religious bodies that are now doing educational work in the State. Most of these teach no peculiar religious dogmas, but are engaged in strictly educational work. A majority of their trustees are by their charters required to belong to some particular sect or church, and from this fact come within the class referred to as '' partly under the control of religious denominations," and are, therefore, shut out from State aid. These schools are doing no inconsiderable part of the educa- tional work that would otherwise fall to the State to do, at small cost to taxpayers. They are doing no harm, but are rather giving a moral and religious tone to education in the State. Why then should such schools be singled out and thus discriminated against in the matter of State appropriations? A corporation, the majority of whose members are agnostics, atheists or even anarchists, may establish schools and not come under the ban of the proposed constitutional enactment. The Masonic order, a farmers' club or any other corporate body may found schools for which State aid may be granted. Why should corporations composed of Christians or Jews alone be prohibited? The measure is an infringement upon personal liberty; a step toward union of church and State, an intro- duction of a negation of religion into our State Constitution. The measure ought to go further or be struck out altogether. A. C. HILL. Mr. Holls — Mr. Chairman, I do not propose to enter into this discussion now, but to reserve the time which has been given under 754 REVISED RECORD. [Friday, the courtesy of the Convention to the Committee on Rules for to-morrow, to close the discussion. I think it now only due to myself, as well as to other members of the minority of the Com- mittee on Education, to make the announcement to the Convention which has already been made in that report, namely, that the two lines that the amendment offered by Mr. Choate proposes to strike out was adopted by a vote of the committee in which there was a minority, consisting of Messrs. Durfee, Hirschberg, Hill, Tib- betts, Cornwell, Fraser and myself — all the other members of the committee being in the majority, and indorsing this proviso, as I understand it. The minority consisted of seven members. Ten of the members voted to have these two lines in the section. I merely wish to announce that in order to make the record clear, reserving the argumentation of the subject until afterward. Mr. Peck — Mr. Chairman, and gentlemen of the committee, it has been with a great deal of hesitation that I have assumed to lead on behalf of the committee in the reply to this proposed amend- ment. I wish to begin what I have to say by asking who author- ized Frederic R. Coudert or George Bliss to barter or weigh the beneficence of the charity of the People of the State of New York? I stand here to-night representing nobody but the wards of the State of New York — the children, the poor, dependent orphans, the deaf, the dumb, the blind, whose delinquents are a matter of heredity. For them I stand — those upon whom the people of this State have laid its hand and placed as its wards in institutions of this State where it has been thought for twenty years that they best could be maintained, supported and educated. What is the principle that Mr. Coudert and Mr. Bliss raise? It is that the child shall be educated for the State, not that he be retained from sectarian influ- ences, but that he shall be educated. Is there another class of children in this State for whom it is so important that the State should furnish education as those poor children upon whom it has turned the key? Shall it say to those children, " you, the most dependent; you, the most entitled to the sympathy of every human heart; you, of all the children of this State, shall have not one cent's benefit of the public funds for public education?" Is that the voice of the State of New York which has come down to us through its entire history? We are at the end of the nineteenth century, preparing to enter the twentieth, with our history, with our pro- posed Constitution. Do you propose to the people of this State to enter the twentieth century with such a blot on its escutcheon? What era is this? What era is it? What marks it? There have been grander capitols, there have been greater asylums, there have August 31.] CONSTITUTIONAL CONVENTION. 755 been greater academies, there have been stronger forts and deeper dungeons than this era affords; they do not mark it; many of those you could have found in the marble city of Augustus; but there you could not have found an orphan asylum, there you could not have found a hospital, there you could not have found a deaf and dumb asylum. No! It is the mark of this era that men love one another, stretch out their hands to each other, and help each other. It is the asylum and the hospital which mark this age. And do you propose to the people of the State of New York to enter the twentieth century of this era saying that the children upon whom it has turned its key can have their clothes, that they need not starve, but that they must be raised in ignorance, and they of all others shall have not one cent of the public funds which have been raised for the public education? There is no class, there can be no class, in any community which deserve public education more than those children who are locked in these institutions. I would extend it beyond the proposed amendment. Where the courts by their strong arm have committed by their processes to reformatories the children who have grown up in meretricious surroundings, and to whom vice begins to cling — or will you say to them that, in order to be educated, in order to receive their share from the public taxes of public education, they must be clothed, and twice a day must be marched out of their institutions, taken to the schools from their reformatories with keepers attending them, taken from the hospitals or asylums with nurses to take care of them, and marched a quarter or half a mile to school, there watched and taken care of through the day, taken back to dinner, and then marched out again — two or three thousand of them at a time generally to school in the afternoon ; and put the increased expense of this additional care upon the charitable people who are maintaining these institutions? Is that the message that you are going to send to the charitable institu- tions and to the charitable people, or the people of the State of New York? I shall not attempt to anticipate the answer you will receive. In your own hearts you know what it ought to be. We have had here within the past twenty-four hours a statement of what New York is to New York citizens; we have had a magnificent description of its great waterfall, of its mountains, of its beautiful rivers, of its magnificent scenery ; but, gentlemen, beyond and above the natural characteristics of the State of New York is New York manhood. You know what that means. If you have ever visited the far distant settlements of the West you know when you reach a section settled from New York before you have been there for twenty-four hours. You find that you are confirmed in your judg- 756 REVISED RECORD. [Friday, ment when you begin to talk with the people, and you know that one of their highest prides is that they are New York people. When you return to this State from the greatest metropolis that you choose to visit outside of its borders and enter our own borders, you know the change you find; you know the difference there is in business matters and the difference there is in the ways of viewing questions. I cannot tell you what it is, but it is founded on a broader view, a deeper manhood, perhaps, a broader, a more extended, a more self-possessed manhood than we find anywhere else. That is my honest impression, and I believe that every man who has come back to his home in New York is happier in his home than he was before he left the boundaries of his State. That is what New York pride, after all, has for its foundation. And shall we change that? Shall we seek, with such a manhood, and after such a history as we have had, to change this whole tenor, to change its entire subtone, and assume a narrowness, a bigotry, an intolerance, and say, because children are so unfortunate that the only home they have is in a public institution, the only home they can have is something furnished by charity, that those children, under such circumstances as that, who, if they had had homes, would have gone where their parents live, and would there have been taught religious tenets, and would have had religious training — that because they have no home except the home furnished by the charitable Christians of the communities — they shall not have the benefits of a home, and the religious training also? Why, gentlemen, upon my honor, I would rather have a child taught to venerate the Great Spirit of the American Indian, I would rather have it taught any religion upon the earth, than no religion. I do not want the homes of the dependent children of the State of New York to furnish the breeding places of the anarchists and socialists of the future. I want that they should have religious training during their tender years. And, certainly, I do not want to say that because they have no home they shall go ignorant in the State of New York. A man who would advocate the amendment proposed by the President of this Convention, after he has thoroughly and carefully weighed it would — if it was a new question, if it was first proposed to-night to have free schools — vote against it. The two things must go together; and the mind that conceived the one would never have conceived the other. We must have our free schools permeating into the very lowest homes, the homes that promise the least for the children, or we must give up our schools, or we ought to give up our schools. Gentlemen, as American citi- zens, as New Yorkers, as men of the nineteenth century, let us August 31.] CONSTITUTIONAL CONVENTION. 757 stand shoulder to shoulder for our traditions, for the things that are inborn in native-born New Yorkers. I do not care the snap of my finger in what language you put this. It may very well be that the language criticised by the Presi- dent is inadequate. It is not a matter of language. It is not a matter of. expression. It is not a matter of words. It is a matter of humanity, of Christianity, of patriotism. Let us have the prin- ciple— expressed as you please — but let us make our common school money reach these dependent children. Do not vote for anything that does not send the public school money to the most dependent child in the State of New York. (Applause.) I have omitted to say one thing, which if you will pardon me I will add. I want to say that this is not new in New York. It is not something unheard of, or that takes the people by surprise. For twenty years we have had these words in our Constitution. Now expand them. That is all that is necessary. Expand them to reach the crisis which, you think you have reached. You think there is a public sentiment demanding of you intolerance and bigotry, and that that public sentiment will injure the work of this Convention if you do not heed it. But I tell you, gentlemen of the Convention, there is nothing of the kind in the State of New York. These few agitators make a great noise. The shallows are noisy, but the deeps are dumb. We have had Masonic and anti-Masonic agitations in the State of New York, but they were not allowed to mar its institutions. We have had native American agitation in the State of New York, but it did not put its dirty hand on the Con- stitution. Shall we have this baseless, this senseless agitation which is now being wafted in the air, very bitter it may be, but not reach- ing many people, reaching the lungs of no honest, strong American — shall we allow it to blot and stain the Constitution which is to be offered to the people of the State of New York? Are we going to send that kind of thing down over the people of the State? I was going to read this section which has been in the Constitu- tion for twenty years, that you may see how it may be broadened: " Neither the credit nor the money of the State shall be given or loaned to or in aid of any corporation or association or private individual." Now', that would be very easily expanded to any charitable insti- tution, if you please. " This section shall not, however, prevent the Legislature from making suitable provision for the education and support " — both, mind you — " for the education and support of the blind, the deaf 758 REVISED RECORD. [Friday, and dumb, and juvenile delinquents as may be thought proper." (Applause.) Mr. Countryman — I would like to ask the gentleman who has just taken his seat a question. I wish to know whether there is any objection on Christian or moral grounds to sending the children of these charitable institutions to the common schools? • Mr. Peck — There is only the objection of the additional expense, trouble and burden that is placed upon the charitable people of the community. Now, if you have an institution with children enough in it for a school, for a public school, is there any sense in the world in making those charitable people buy overcoats, umbrellas, over- shoes and all that kind of thing, for the mere purpose of walking those children to a school a little ways off, a quarter of a mile, if you please, and then marching them back again, and so adding largely to the expense of maintenance, when all that you have got to do to accomplish the same purpose is to hire a teacher for them, and put him right there in the institution with them. Mr. Countryman — Would it cost any more than is necessary The Chairman — The Chair cannot allow this conversation. Gentlemen will address the Chair. Mr. Lauterbach — I have this amendment to offer to Mr. Choate's amendment. His is a motion to strike out, and mine is a motion to strike out and insert. The Chairman — The Secretary will read it. The Secretary — Mr. Lauterbach moves to strike out lines 13 and 14, and to insert instead the words, " This section shall not apply to orphan asylums or correctional institutions in which education is incidental only." The Chairman — The question is on Mr. Lauterbach's amend- ment to Mr. Choate's amendment. Mr. Lauterbach — Perhaps I had better take the floor to explain the amendment, but without going fully into the subject, as I hope to do at some future occasion. Judge Countryman, as I have the floor for the moment — The Chairman — Mr. Lauterbach will address the Chair. Mr. Lauterbach — Then may I call the attention through the Chair — The. Chairman — Every gentleman here is listening. Mr. Lauterbach — Mr Countryman, I desire to add to the explanation which has been made by Mr. Peck (because your ques- August 31.] CONSTITUTIONAL CONVENTION. 759 tion, I think, covers the whole controversy), that there are institu- tions in which children are confined, which are correctional in their character, and yet are under the supervision of religious associa- tions. The character of the children is such as to render it impos- sible that they should be sent to the ordinary common or public school. If they were sent there the result would simply be the decimation of the schools which they would attend. In answer to your question I would like to refer, for example, to the institution with which Mr. Andrew H. Green, of New York, is connected. It is a Protestant correctional institution, and is one of the best in the land. It harbors committed children — those committed to it by public magistrates. Now, there is a suggestion in this amendment, Mr. Chairman, that no money of the State shall be paid to any school or institution of learning that is under religious or denomina- tional administration, in whole or in part. Now, those children are under such administration. It may be in theory an excellent thing, but in practice, disastrous, that they should be sent to distant com- mon schools that seven, eight, nine hundred, or a thousand (for there are a thousand children in this institution with which Mr. Green is connected) that these thousand committed children, some of them with deeply imbedded inherent vice shall be taken from the institution in which they are harbored, housed, and cared for — and something else — where they are educated; and that is the crime — educating them; for there is no objection to harboring them, no objection to caring for them, no objection to putting food in their stomachs and clothes upon their backs through the administration of the angels, who are secured by Andrew H. Green and others to do this; but when you educate those children who need it so much more than any other children on the face of the earth, then come the zealots and say that you must stop. I want to answer your question — what is to be done with them? Are they to be taken in files, with keepers on either side, down the Boulevard, and down Tenth avenue to One Hundred and Twenty-ninth street, and marched into the schools where the pure, the innocent, the properly- trained children of the mechanics and laborers and the tradesmen are gathered? Are they to be put under the administration of the local school principal or some one else, with money taken from the public school fund, instead of being taught in the institution where they belong, and where it costs less to provide the education, where the curriculum is exactly the same as that of the public schools, for it is always conducted under the supervision of the superintendent of education; where they are well trained, and where they are well provided and cared for. Mr. Chairman, addressing 760 REVISED RECORD. [Friday, you, and through you addressing the gentleman who makes the interrogatory, and every other gentleman, I ask, is not this abso- lutely senseless? I am willing to listen to reasonable clamor founded upon sense; but, unless you mean to drown these children, unless you mean to rear criminals steeped in ignorance, if you mean to care for them at all, in what respect, I ask, is that care more con- sonant with justice and with decency or better exhibited, than in providing them with education. That should be the first essential. Physical care is important, but not as vital as a proper education. Their spiritual welfare and intellectual development are necessary; in this you will all agree with me on every side. You concede these children ought to have both secular and religious education, and yet there is a spiritual teacher who enters that institution for the pur- pose of administering religion, then the concomitant and corollary, and the result of that must be, according to the amendment sub- mitted to the committee, that they are not to receive one word of secular education of any character. Mr. Countryman — My question was pointed at the exception to the general operation of the section at large; and I do not under- stand the gentleman's remarks to be directed to that particular exception. The exception is a legal one and it is in these words: "This section shall not apply to schools in institutions subject to the visitation and inspection of the State Board of Charities." Mr. Lauterbach — Strike that out. That is a mistake. I am not a member of this committee, and I do not know where the notion came from, but I do appreciate the difficulty of seeking to provide for this suggestion of the committee proper, for it is an anomaly, a paradox. The moment I read it I recognized it was a dangerous proviso. Why? Because the Legislature of the State might put every institution, including parochial schools, under the supervision and jurisdiction of the State Board of Charities, and in this man- ner State or local funds might be applied to parochial or sectarian or denominational schools, which nobody desires. Mr. Choate — May I ask Mr. Lauterbach a cjuestion? Mr. Lauterbach — Certainly, Mr. President, with pleasure. Mr. Choate — Do you understand there is anything in my posi- tion, or in what is proposed by my amendment, that will prevent such institutions as you describe receiving, under proper restraint such as you propose, money for the shelter, for the clothing and for the support of the children, as they have always had it? Mr. Lauterbach — I understand that there is no such restriction, August 31.] CONSTITUTIONAL CONVENTION. 761 and I understand that you do not desire to prevent those children from being educated, do you? Mr. Choate — Not at all. My desire is (if the Chair will let me say so in answer to the question) that if -they are to receive their tuition under supervision of a religious body, or if it is to consist in whole or in part of religious tenets, the religious body that pro- poses to insert these tenets into the minds of those childen shall pay for their education. (Applause.) Mr. Lauterbach — But the committee's amendment would pre- vent both secular and religious education, and might even be con- strued to prevent any aid to a secular institution. Every one con- nected with this subject starts with the agreement that in response to a sentiment here, that has really no foundation in fact, there shall be a new clause inserted in the Constitution to the effect that no money shall be paid to any parochial, sectarian or denominational school. One would imagine from the excitement that there were being spent vast sums of money upon denominational, parochial and sectarian schools; but actually the sums of money that have been paid out in those directions in the last year amounted to only about three thousand dollars, and in any year before that to not quite as much; and it is limited to a sectarian school in Poughkeepsie, and to a few other small sectarian schools where the trustees of the district have found it more to their convenience to make a contract with the existing Catholic school-house than in any other manner; and they would be sorry (and Mr. Arnold, of Poughkeepsie, will tell you so) if as a result of this constitutional amendment they were prevented from so doing. But there have been political zealots in the Catholic church, whom no one has supported, whom I can find to have no encouragement whatever, who have through one journal and through one or more misguided men, said they wanted to have for their parochial schools some portion of the public school funds. We are all agreed, that whatever is necessary to be done to prevent the possibility of any such abuse. in the future (because no such abuse exists at present) shall be put into this Constitution. We are all agreed upon that. That is, I think, a unanimous agree- ment. There is, however, a sum of money paid for the education of other children, but not in parochial schools, who are receiving an education as an incident of their care and support in orphan asylums and in correctional institutions where they are housed, and where, I believe, every one concedes they are legitimately housed. They are the children of the poor, full orphans, half-orphans or whose living parents are unable to care for them or unfitted to be intrusted with 762 REVISED RECORD. [Friday, their care. Some, those who are merely waifs, are in orphan asylums; others in correctional institutions, who have already in their tender years acquired evil and vicious habits, and have become, if not actually criminal, at least quasi criminal in character, and have been committed as a measure of safety to the public. Up to 1857 it was the infamous practice to take those children and put them in the public alms-house, and then the principle which these zealots proposed was maintained. There was a garment put upon them scarcely to cover their nakedness; they were provided with inadequate and filthy food, but there was no education except in everything that was vicious, everything that was depraved, every- thing that tended to degrade them, the necessary result of their terrible associations. At the instance of the State Board of Chari- ties which existed at that time, and still exists, the law was put upon the statute books that no child should be sent to any public institu- tion of that kind, and that under no circumstances should they be committed to an alms-house, but that they should be contracted out to families or to private institutions, or to public orphan asylums, in farming them out, or in putting them under guardian- ship, that they should be preferentially placed under the guardian- ship of those families or those institutions whose religion was the same as that of their parents. The principle was recognized that it was most important that every child who became the ward of the State should receive religious education. Does any one dispute the propriety of that proposition? Does any one claim that the State, or any of its civil divisions should go into the business of maintain- ing alms-houses, orphan asylums, and kindred institutions? Shall we put the 20,000 children of the State who are dependent upon the State for support under the care and maintenance of professional politicians who are prone to corrupt, abuse and ruin every institu- tion and every public work with which they are connected? And so, since 1875, the principle has been maintained that it is the duty of all public officers to see to it that the children are sent to institu- tions wrhere the jeligidn of their fathers shall be taught them ; that the children of Protestant parents shall be put in Protestant asylums, that the children of Hebrew parents shall be put in Hebrew asylums, that the children of Catholic parents shall be put in Catholic asylums, and in the commitment of children this rule has prevailed. No one disputes the propriety of that. Now, those public, those private, those charitable institutions — Vice- President Steele — The hour of adjournment having arrived the Convention stands adjourned until to-morrow morning at ten o'clock. August 31.] CONSTITUTIONAL CONVENTION. 763 Saturday Morning, September i, 1894. The Constitutional Convention of the State of New York met in the Assembly Chamber, in the Capitol, at Albany, N. Y., Saturday morning, September I, 1894, at ten o'clock. President Choate called the Convention to order. Prayer was offered by the Rev. A. Kennedy Duff. On motion of Mr. O'Brien, the reading of the Journal was dis- pensed with. Mr. Gibney — Mr. President, I would like to be excused for Monday and Tuesday of next week. The President put the question on excusing Mr. Gibney, as requested, and he was so excused. Mr. Bowers — Mr. President, I offer the following resolution : " Whereas, This Convention has learned with great sorrow of the death of a son of our colleague, the Honorable David McClure, of New York; R. 196 — "Resolved, That we extend to our colleague our sin- cerest and deepest sympathy in his affliction." Mr. Durnin — Mr. President, I desire to second the motion that has just been offered by the gentleman from New York (Mr. Bow- ers). The bereavement that my friend, Mr. McClure, has met with in the loss of his son is a grievous one. A boy, promising in his future, a student fully up to the standard of the academies in which he studied, with all the grand hopefulness of a great future, he has been suddenly cut off in the prime of his youth, the hope of a father and the darling of a family. This is a bereavement that can be appreciated only from an acquaintance with its surroundings. He was the beloved boy of a fond father, cut off in the prime of his young manhood. I know that any expression of sympathy coming from this Convention will be appreciated by a fond father and a loving mother, and, therefore, I second the motion of Mr. Bowers. The President put the question on the passa'ge of this resolution, and it was determined unanimously in the affirmative, by a rising vote. The President — Are there any reports from committees? Mr. McMillan — Mr. President, I offer the following report: The Secretary read: Mr. McMillan, from the Committee on Governor and State 764 REVISED RECORD. [Saturday, Officers, to which was referred the proposed amendment intro- duced by Mr. Lauterbach (introductory No. 35), entitled proposed constitutional amendment to amend section I of article 4 of the Constitution, in regard to the powers and duties of the Gover- nor, reports in favor of the passage of the same, with some amend- ments, and the title amended so as to read as follows: (O., I. No. 35, P. No. 457), " Proposed constitutional amendment to amend sec- tion i of article 4, and section I of article 5 of the Constitution, in regard to the terms of office, powers and duties of the Governor," and so forth. Referred to the Committee of the Whole. The President — Are there any motions or applications before going into Committee of the Whole? Mr. Mereness — Mr. President, the report of the Committee of Forest Preservation is the next business on the special calender, and inasmuch as Mr. McClure, who is chairman of that committee, cannot be present when that is reached to-day, I ask that it be deferred until his return, without losing its place on the special calendar. The President put the question on agreeing to the disposition of the report from this committee as suggested by Mr. Mereness, and it was determined in the affirmative. Mr. Pashley — Mr. Kinkel is suddenly called away by illness in his family, and desires me to ask the Convention to excuse him for to-day. He intends to be here Monday, if possible. The President put the question on excusing Mr. Kinkel, as requested, and he was so excused. Mr. Root — Mr. President, I call up and move the adoption of the report of the Committee on Rules. The President — There are two reports from the Committee on Rules, which one is this? Mr. Root — The first is the amendment to rule 24. The President — The Secretary will read the resolution. It is now in order. The Secretary read: Resolution introduced by Mr. Barhite: R., No. 191. — " Resolved that the Committee on Rules be forth- with directed to report an amendment to rule 24, striking out the words ' two-thirds ' and inserting in the place thereof the word ' majority.' " September i.] CONSTITUTIONAL CONVENTION. 765 The President — The rule is open to the consideration of the Convention. The President put the question on the adoption of the rule as reported, and it was determined in the affirmative. The President — The Secretary will read the other resolution recommended by the Committee on Rules. The Secretary read: Mr. Root, from the Committee on Rules, in accordance with the resolution offered by Mr. Cookinham, in the words following: R. 195. — " Resolved, That the proposed constitutional amend- ments hereinafter mentioned be made special orders for August thirty-first, at 10 o'clock A. M., in the order stated below, and that they each be considered in the Committee of theWhole until disposed of, except that general order No. 74, in regard to apportionment, take precedence over all other business after it is reached, on the day now fixed for its consideration," reports the following order of business to be taken up by the Convention unless otherwise ordered. The President — Does any member desire this list to be read again ? Mr. Bowers — That was ordered printed. It has not been. The President — It is printed. Does any gentleman desire to make any remarks upon this? There being no discussion offered on the committee's report, the President put the question on agreeing thereto, and it was deter- mined in the affirmative. The President — Are there any other motions before we go into the Committee of the Whole? Mr. Crosby — Mr. President, I desire to be excused from attend- ance on Monday. The President put the question on excusing Mr. Crosby, as requested, and he was so excused. Mr. Davenport — Mr. President, official duties compel my attendance during the morning at my office in Brooklyn on Monday. I ask to be excused for the morning session of Monday. The President put the question on excusing Mr. Davenport, as requested, and he was so excused. Mr. Holls — Mr. President, two hours and fifteen minutes have been allotted to further debate of section 4 of the educational article. If we go now into Committee of the Whole, that will bring the end 766 REVISED RECORD. [Saturday, of the debate to half-past twelve. It seems to me that it would be impossible to take up much of any other general order before one, and the applications for time to speak on this subject are so many that I would move that the debate be prolonged for one-half hour, until one o'clock. The President put the question on the motion offered by Mr. Holls, and it was determined in the affirmative. The Convention thereupon resolved itself into Committee of the Whole on general order No. 61, relative to free common schools, and Mr. C. H. Truax resumed the chair. Mr. Lauterbach was recognized by the Chair. Mr. Holls — If Mr. Lauterbach will yield a minute, I think a statement from the Chair as to the time allowed to both sides in this debate would materially assist us all. The Chairman — As the time stood before this late extension, the side represented by Mr. Lauterbach had still one hour, and the side represented by the chairman of the committee had seventy-five minutes, or an hour and a quarter. This late extension gives fifteen minutes more to each side. Mr. Gibney — Mr. Chairman, for information of the members, I would ask that the Secretary read the amendment oi Mr. Lauterbach. The Chairman — Mr. Lauterbach's amendment reads: "Strike out lines 13 and 14 and insert instead ' this section shall not apply to orphan asylums or correctional institutions in which education is incidental only.' " The Chairman — Mr. Lauterbach has the floor. Mr. Lauterbach — Mr. Chairman, I mentioned last night that the sum of money that was devoted by the State toward the support of parochial schools as such, schools in which secular instruction alone was afforded, and was afforded under the direction of reli- gious denominations, amounted to a very small sum per capita per annum. So that there may be no misapprehension about it, I will say that that referred to the support that is given by the State or any civil division of the State to any of the schools known as parochial schools. There are, as I understand it, some seventy-five thousand children who are being educated in parochial schools, but they receive no money from the common school fund, except to the extent that I indicated last evening. Of course, I make no refer- ence to the amounts that are taken from the common school and other funds, and paid to the orphan asylums toward the secular September i.] CONSTITUTIONAL CONVENTION. 767 education of children in those asylums. I do not know that a dollar is paid toward any religious education in those schools, but I do know that most of the schools are under the jurisdiction of the common school superintendents and officers of each school district, that the teachers are designated by the authorities and that the curriculum is precisely as is the common school curriculum, and that whatever money they receive is given for the purpose of afford- ing a common school education, differing only from that given, in the general public schools in the fact that the school is conducted within the walls of the asylum itself instead of being apart there- from, and my only purpose in speaking upon this measure is to prevent the possibility that the power to educate those children in the asylums shall in any respect be militated against, but that it may continue, but without any attempt to have any money applied to the religious education of those children in those institutions, toward which in fact no part of the common school or any other public fund has ever been applied. In some few instances a part of the school fund is devoted to the secular education of children in orphan asylums under the acts of 1849 and 1850. In some about seven dollars per capita is allowed for school books. In the Catholic Orphan Asylum of New York, in which there are eleven hundred children, all the money received from the common school fund, or any public fund, by that institution is $7,000, which goes to the purchase of books to be used in a curriculum precisely correspond- ing to the general common school system. They are entitled to receive, under the law, $110 per annum per capita for the support and maintenance of the children, including education. They do not, in point of fact, accept one single dollar. They have the right to go to the treasury and receive the money, and yet, having the backing of their own religious corporation to sustain them, that institution which has supported an average of a thousand children per annum in the city of New York, for at least twenty years, and which could take from the city treasury under the existing law, if it so desired, over a hundred and ten thousand dollars per annum, has not taken one single cent beyond the $7,000 per annum referred to. It is said that even that payment should be abrogated. I do not conceive that there is any great demand for it; but if your amend- ment referred only to that fund, I should say, " Well and good, eliminate it; let them raise the $7,000 in some other way," and let other orphan asylums do likewise. But your amendment goes much further: it provides that an institution in which education shall be conducted and which shall be under religious denomination shall receive no money from any public source either for educational 768 REVISED RECORD. [Saturday, purposes, or for any other purpose. You are absolutely endeavor- ing to cut off the whole supplies of these institutions because secular education may be maintained in them. Your amendment is not limited to the common school fund nor to the literature fund, to no special fund, but you are providing that no moneys whatever shall be given for the aid or maintenance of the institutions. I will read: " Neither the State nor any subdivision thereof shall use its prop- erty, credit or any public money, or authorize or permit either to be used, directly or indirectly " — any money or credit — " in aid or maintenance," — not only for education, but, in aid or maintenance (other than for examination or inspection), of any school or institu- tion of learning, wholly or in part, under the control or direction of any religious denomination or in which any denominational tenet or doctrine is taught." If it be beyond peradventure that the orphan asylums or protectories or correctional institutions to which children may be committed are not " schools or institutions of learning," then there is no point in having any proviso to this section ; if you can convince yourselves with certainty that there will be no fanatic judge upon the bench, no General Term of any district in which bigotry shall prevail, so that no decision can ever be made that an orphan asylum or a protectory is a school or insti- tution of learning, I have no objection to sweeping away all provisos. But who can guarantee it? Our amendment prepared by the Committee on Judiciary provides, as I understand it, that the right to appeal from departments, where local influences exist, to the Court of Appeals, where we know that we are always safe, because local prejudice does not exist, is to be hereafter greatly limited. But should this serious question be presented in such form as to afford a simple question of fact in some department of the State where prejudice does exist, then, as 1 understand the scheme of judicature that is presented for adoption to this Convention, and which will be submitted to the State, the situation might be such that even an appeal to the Court of Appeals on a subject of such importance could not lie. Now, I state it again as my personal impression that the term " school or institution of learning " does not refer to the case of an orphan asylum or a correctional mstitu- tion. That is my belief. That is probably the opinion of those who desire that no proviso shall be attached to this section; and if we could have a guarantee or assurance of that, I would say affix no proviso, because a proviso may be misconstrued. Now, after this very drastic amendment has been prepared, the majority of the members of that committee prepared this proviso, originally it excluded eo nomine orphan asylums, reformatories, protectories, September i.] CONSTITUTIONAL CONVENTION. 769 from the terms of the amendment, but referring as I suppose to make the amendment more succinct after examining the act under which the State Board of Charities is now performing its functions ; and announcing themselves that by no possibility could it be con- strued that the Board of Charities would have any jurisdiction over any school or institution of learning, they with perfect propriety, without any of the deceit that was implied in one of the addresses last evening, prepared the proviso in its present form. But there is one view of the matter in which the proviso might perhaps be abused. The Legislature might hereafter extend the jurisdiction of the State Board of Charities over schools and institutions of learning, and in that way the parochial schools would be relieved from the restrictions of this amendment. That provision might readily have been amended by saying, " institutions of learning of the classes as they now exist," and that would cover the case, because classes as they now exist, supervised by the State Board of Charities, do not include any school or institution of learning. But when the criticism was made last night, I thought it proper that no possible loophole should exist, and submitted the amendment which now is before you for consideration. Now, gentlemen, that is all that I am seeking to accomplish. I desire simply and only that you shall not make such a provision as will prevent a dollar being paid to an orphan asylum or a correc- tional institution because tuition goes on within its walls of a secular character supervised by those who affect some particular religion. If your amendment were limited to the common council funds I would ask for no proviso. If your amendment in terms excluded charitable institutions I would ask for no proviso. But what you have here is so dangerous, goes so far, may reach to the extent of absolutely prohibiting the payment of a single dollar to these institutions, that I insist upon some protective provision. If some one shall be able to establish as a matter of fact that tuition goes on in an orphan asylum and that it is dominated by some religious sect, some one might plausibly claim that no money be paid to it. I am confident you do not mean to effect the destruction of the whole system that would result from an enactment of this kind in the event of such a construction of the law. Impose whatever rea- sonable limitation you please, but exclude in the body of the section orphan asylums and correctional institutions, so as to rescue them from this danger, or adopt the amendment which has been sug- gested. I am not a stickler for phraseology, but I am a stickler for this. I do not desire that the possibility shall arise that all aid 49 770 REVISED RECORD. [Saturday, and assistance of every character shall be withheld by the State from any institution because tuition is given within the walls of that institution. Limit the right to give education, if you please, only to such asylums or homes as will be supervised by the Superintend- ent of Public Instruction. They are, in fact, so supervised. Do as you please about those things, but do not enact a proposition which, if intrusted to inimical hands, will result in drying up the source of supply for the orphans of the State, or for those unhappy children who will be sent to correctional institutions. The law now contemplates that religious instruction may be given, and also that secular instruction must be afforded. Now, there may be the criti- cism that the State should not expend any money for the religious education of children. I do not think it should; I do not think it does. The $110 per annum per capita that is given in the city of New York for the maintenance of each child ; the $80, including the amount paid from the school fund under the act of 1850, that is given in the city of Troy to Protestant and Catholic alike for sup- port and maintenance, does not suffice to put raiment upon the body, food into the stomach, and to provide shelter for the unfortu- nates that are within those walls. There is abundance of money supplied by all these institutions from private sources which pays for the religious education of the children. Not one dollar of your money is applied to that purpose. The small amount paid by the State, less than two dollars a week, that is paid out of the funds derived from local taxation or excise funds in greater part, is hardly sufficient to perform the service, care and maintenance which these free agents perform. You are paying nothing for religious instruc- tion. The expenditure would be small were you to provide it, but you do not provide it. Or if you believe that you do, put into your Constitution whatever you choose in respect to an absolute enact- ment that no single dollar of any fund shall go for religious educa- tion; but do not put upon your statute book, without a proviso, that which not only will prevent secular education, but that may go still further and that may prevent a dollar being given for aid or mainte- nance in any institution that may be said to be, or decided to be, a school or institution of learning. I am confident that there is no intent to do this, but do not permit it to be done carelessly though without intent. I have sought during the last two weeks, in inter- views with every one that I thought was in favor of the measure as it stood, to frame a provision that would be acceptable. I have not been met in the spirit in which I think I deserved to be met. We have in the Charities Committee perfected what I think is a com- plete system for the supervision of charities, a system that shall September x.] CONSTITUTIONAL CONVENTION. 771 supervise the $20,000,000 expended by the State and its civil divisions, and which to-day is without supervision and without check. In that amendment we have simply provided for the care and support of any children in those institutions. If I was sure that the charities article would be enacted with provision for inspec- tion, I would not ask for any proviso. Do not put in jeopardy 145 orphan asylums, the protectories so noble in their beneficence, all these institutions that it is conceded on all hands do so much good as the servants and agents of the State ; do not, in the interest of morality, endeavor to enact into your Constitution that which will not only prevent education, but which may make these unfortu- nates houseless and homeless. Your law does not permit them to be taken into alms-houses. What shall be done with these your wards? Dry up the source of supply; scatter these children to the wind, and if your consciences will approve your conduct I am satisfied. Mr. Hirschberg — Mr. Chairman, it is so very evident to me that a few words of common sense will dispose of all this argument, that I take advantage of this opportunity to explain the attitude of those members of the committee who are opposed to this proviso, or any proviso in this section of the Constitution; and those few words of explanation will demonstrate that this entire argument is wasted and uncalled for. Now, it is conceded that it is entirely appropriate to put in an educational article, a provision that the money of the State shall not be used for religious instruction. That clause was framed in the strongest, broadest and most positive lan- guage that could be devised. A proviso was suggested, a long one. It was defeated in the committee and ultimately the two lines now in question were adopted by a small majority of the committee. Now, the objection to the proviso is this, that by putting in such a proviso the effect is that in attempting, and while pretending to put in the Constitution a provision that public funds shall not be used for religious instruction, it is made to read that in certain institu- tions it may be so used. Mr. Lauterbach — Will the gentleman pardon me a moment if I ask a question? Mr. Hirschberg — If it is not taken out of my time. The Chairman — The Chair holds that the question will have to be deferred until after Mr. Hirschberg has finished. Mr. Hirschberg — Section 4 provides that no money of the State shall be used in aid or maintenance of schools or institutions of learning which are wholly or in part under denominational control. 772 REVISED RECORD. [Saturday, Then the proviso goes on to say, and that is the mischief of it, that this section shall not apply at all to charitable institutions. That is to say, in charitable institutions the public money may be used for denominational tuition, or at all events it is subject to that con- struction; and the only argument for putting in the proviso that has been suggested by the gentlemen for whom the last speaker is an advocate, is that some judge may be so lost to the proper mean- ing of the words as to hold that schools and institutions of learning mean orphan asylums and institutions for the reformation of juve- nile delinquents. Now, it seems to me ridiculous to put in a pro- vision to meet such an unlikely emergency. We will assume that the judges understand the English language, and that they can construe a plain, simple provision of the Constitution; and the answer was made by the gentlemen on the committee, who voted against this proviso, that if it is necessary, as the gentleman claims, to have in the Constitution a provision which shall permit instruc- tion of the inmates of these charitable institutions; it belongs in the charity article and not in the educational article ; and that it all there is of it. Now, there is a charity article proposed here. It is general order No. 67; and the insertion of a single word in it would meet the whole case. It provides, on page 2, lines 18 and 19, that " none of the institutions mentioned in this section shall hereafter receive any public aid, unless authorized so to do by said Board of Charities, and only for the care and support of such persons as may have been sent to such institutions by due process of law, or under such rules as will be established by said Board of Charities." If that is made to read, " And only for the maintenance and instruc- tion of such persons as may have been sent to such institutions by due process of law," then the Constitution will be ample to protect the right of education, in the ordinary elements, of the inmates of those institutions; not religions instruction, but instruction in the secular sense; and the two parts of the Constitution will be read together, the one providing that in schools and institutions of learning as such, no money shall be given if in those institutions religious doctrines are taught, and the other providing that in charitable institutions, such as are known as charitable institutions and recognized as such by law, the money that is furnished by the State shall be devoted to the uses which the State prescribes, among which is that of education. I find the criticism to be based upon this, and that is why the amendment is proper, because what- ever safeguard is to be found necessary it should by this Convention be placed where it belongs, and not placed in an educational article, where it can easily, by implication, be given a false meaning, and September i.] CONSTITUTIONAL CONVENTION. 773 where it necessarily involves the allowance under organic law of just that very thing which we are trying to forbid. Mr. McDonough — Mr. Chairman, as one of the Committee cfn Education, as a Roman Catholic, as a life-long Republican, I cannot let this occasion pass without expressing my views upon this sub- ject. I am sorry that at this late day this religious question has arisen in this Convention. I am sorry that an effort has been made here to put before us a false issue; I am sorry to have you believe that something is wanted here that there is no need for to-day. In 1850, in the height of Know-Nothingism in this State, this act was passed : " The schools of the several incorporated orphan asylum societies within this State, other than those in the city of New York, shall participate in the distribution of the school moneys, in the same manner and to the same extent in proportion to the number of children educated therein as the common schools in their respective cities and districts. The schools of said societies shall be subject to the rules and regulations of the common schools in such cities or districts, but shall remain under the immediate management and direction of said societies, as heretofore/' Will the Republican party of the State of New York in 1894 be less liberal than were the Know-Nothings of 1850? Under this act as read to-day, and only under this act, are the sects drawing any school moneys in any of the institutions of the State. Now, it is proposed to wipe this out, for fear the children should receive some religious instruction in these institutions. Last night, while listen- ing to the able and distinguished President of this Convention, I could not help but contrast his words with the words of that other eminent New Yorker, that man who deserves the praise of every citizen of the State of New York, when he spoke from this rostrum - 1 mean Eldridge T. Gerry — when he said that these children are the wards of the State; that they have been taken up by the State; that as their parents, if living, have neglected to do their duty, and if the children have no parents and no guardians, the State becomes the parent, and that the State should give them a religious education, in order to make of them good citizens. Upon what theory do you tax one man to educate the children of another man? Ask yourself why I am taxed to educate your children, or you are taxed to educate mine? Why does the State of New York pour out twenty millions a year for education in the public schools? It is upon the theory that it makes the children better citizens. To educate them is to make them obedient to the laws, to make them 774 REVISED RECORD. [Saturday, respect their neighbors as themselves, to make them respect their neighbors' rights and their neighbors' property, but unless you reach the consciences of these children, you do not accomplish the purpose that you are seeking. Now, here are these children in these institutions. What are you going to do with them? I recently visited an institution, one in New York, the Negro Orphan Asylum. There were 300 of the little blacks there. I asked the person in charge whether there was any religious training. '' Oh, yes." " What is it? " " Non-sectarian." " Who is it by? " " A Metho- dist minister, twice a day." What are you going to do toward educating these children and others like them? Are you going to take them out of that institution and take them to the next public school? You will depopulate the public school if you do it. More- over, it will cost less to educate them in these institutions than it will in the public schools. Many of these institutions are on the outskirts of the city, far away from the public schools. We have one in this city a mile and a half up Western avenue. It is much cheaper and much better to educate them there than elsewhere; and you are not paying for the religion, you are paying for the reading, the writing, the arithmetic and the grammar; and because they get religion in addition it does not make them any the less good citi- zens. These asylum schools are now public schools, under this act of 1850, and that is the answer I make to the gentleman from Orange. They are subject to the visitation of the public school authorities. They must report to the public school authorities, and their teachers must be qualified under the laws of the State to teach. I say there is not a parochial school in the State of New York drawing one dollar of the public money, notwithstanding all that the President said about diverting public school moneys to sectarian schools. Not one dollar, I say, is paid to a parochial school. The school at Poughkeepsie, so often alluded to, is not a parish school; the school at Poughkeepsie is a public school, under the Board of Public Instruction, and regulated by that board. The only thing about it that makes it look like a parish school is that the women who are teaching in it wear black dresses and carry at their sides a cross; that seems to be objectionable. The school at West Troy is a public school, under the Board of Public Instruction; and it was glad to get that school, for had it not had it, it would have had to build its own; and it saved it many dollars. The school at Plattsburg, the school at Ogdensburg, and the school at Lima also mentioned, are public schools, and under the Board of Public Instruction, and the Lima school was asked by the Board of Instruction, to be conducted as such, so as to save September i.] CONSTITUTIONAL CONVENTION. 775 them the expense of building another public school. The President of this Convention, when he said Colonel Bliss wanted no money for schools, either misinterpreted or misunderstood the words of Colonel Bliss. It was the parish schools he said they did not want any money for. Colonel Bliss read a letter from an eminent ecclesi- astic of this State, in which he said: " We are not concerned about parochial schools; these can take care of themselves;" and Colonel Bliss, in commenting on it, said : " So go on with any form of amendment you think necessary to prevent the withdrawal of public moneys from the public to parochial schools." Colonel Bliss did not mention asylum schools. The Catholics are not drawing a dollar from the State for parish schools, and they are not asking a dollar. No one has yet spoken in this State, with authority to speak, asking a division of this school money. If some editor in New York has proposed it in his paper, with a view to putting some one in a hole politically, he had no authority to do it, and no demand was made here for such division. Their parochial schools are one thing; the schools in these institutions are another. Now, this article is very ingeniously drawn. What have the churches of this State done to the people that would lead us to think them so wicked, that we should condemn them in the Constitution? What offense, I say, have they committed? Are you afraid of your liberties? Are you afraid if children are educated in the religion of their parents that they will destroy your liberties? You are aiming here at religious bodies and religious bodies only. Why, three years ago, one of the most eminent gentlemen of this State, who was a candidate for the nomination for Governor, was turned down, in a Republi- can Convention, because he had written against religion. Now, you propose to enact here an amendment in the Constitution that is an attack on all religious bodies. Why, if you said there should be no State aid in any schools in which socialism is encouraged, that there should be no State aid in any school in which nihilism is encouraged or in any school in which anarchy is encouraged, and you embodied that in a proposed amendment to the Constitu- tion, and went to the people with it, every one in the State would say that your work amounted to a condemnation of anarchy, of nihilism, of socialism. What do you do now? You go to the people and say, " Not a dollar of aid to any school in which religion is taught." That is a condemnation of religion. I tell you that these religious bodies are not so far apart as you think they are. They got together and united at the polls in Wisconsin — Catholics, Lutherans, and others — and they carried the State. I expect as much opposition to this amendment from Protestants as from 776 REVISED RECORD. [Saturday, Catholics, and you will find it so, mark my words. It is a condem- nation of the whole Christian religion. My learned friend, the chairman of the Committee on Education, says it does not prevent the teaching of religion in the schools. He says that the Bible may be read. Well, if the Bible may be read, hymns may be sung, and prayers said, and I think that is the sum total of some religions. But that is not true of others, and so this may be ingeniously con- strued to exclude some and admit others; and I am not sure but that that was the real object intended. The distinguished gen- tleman, who came here from New York to advocate this measure, Dr. King, went down to Washington in 1889, as the agent of the Evangelical Alliance, and advocated there, and had introduced in Congress, a proposed amendment to the Constitution of the United States that provided as follows : " Sec. 2. Each State in this Union shall establish and maintain a system of free public schools, adequate for the education of all the children living therein, between the ages of six arid sixteen years, inclusive, in the common branches of knowledge, and in virtue, morality, and the principles of the Christian religion." Dr. King advocated that measure in Congress. He wanted the principles of the Christian religion taught five years ago; he wanted an amendment to the Constitution of the United States to compel us all to accept that, and his friend, the dis- tinguished Senator from New Hampshire, Mr. Blair, said that the effect of this would be to cut off two sects only, I suppose the Catholics and the Jews. Now, the gentleman that drew that came here with this, and it has the same purpose, the same intent. What system of religion will we have in the schools if this becomes a law? Your proposed amendment says that no money is to be appropri- ated for " institutions of learning wholly or partly under the control or direction of any religious denomination, or in which any denomi- national tenet or doctrine is taught." Any denominational tenet or doctrine? Very well, take away the distinctive doctrines of the Bap- tists, take away the distinctive doctrines or tenets of the Methodists, take away the distinctive tenets of the Presbyterians, of the Episco- palians, of the Catholics, etc., and what have you left? What will schools teach? They will teach a State-made religion. It is a union of the church and State, instead of a separation. The courts will have to tell what kind of a religion they shall teach. It will be some sort of religion, I know, because the chairman of the com- mittee says the amendment does not prevent religion in the schools. Now, what is it? Who is going to tell us what this religion is? I don't know but it will be like that of Mr. Jones, the distinguished superintendent of the House of Refuge on Randall's Island, who, September i.] CONSTITUTIONAL CONVENTION. 777 some years ago, in order to show that that institution was non- sectarian, got up a religion of his own. He took what he thought were the most beautiful prayers from the Episcopal church, the most eloquent from the Catholic, and hymns from the Methodists and Presbyterians, and he combined them all, and then claimed that, inasmuch as he had the best of each, he had something superior to any, and he blessed it and called it Jonesism. This new religion that we are to have under this amendment of ours, should, out of regard for the worthy chairman of this committee be blessed and called " Hollsism," and thus have his name go down the ages as one of the great reformers. (Laughter.) Now, gentlemen, it may be possible that we are wiser than all mankind. It may be that our experience of a hundred, or a hundred and fifty years, in national life enables us to do what the older nations cannot do, but I doubt it. Human nature is much the same the world over, and we can learn something from the other coun- tries that have lived and existed as nations longer than we have; and notwithstanding that it may be un-American, I propose to show you how much more tolerant other countries are than we propose to be; and with your permission, I will call your attention to school laws of other countries relating to religious education. In Germany religious instruction is compulsory, both in public and in private schools. It is regulated by law, is entirely impartial, and is considered an essential part of the education of each pupil. Roman Catholics, Protestants and Jews have masters of their own faith, but no one can give religious instruction who is not author- ized by the general government. Let me say here, that these facts have been prepared for me by an official of the Regents' office, who is thoroughly familiar with the subject, has traveled abroad, has made a life study of this subject and knows what he is talking about. Except in the country, I still refer to Germany, all element- ary schools are confessional. In the case of these rural mixed schools, the religious belief of the teacher depends upon that of a plurality of the pupils. There must be at least twelve pupils to demand it. That is Protestant Germany. In France, in infidel France, in France where the bomb thrower, the assassin and the regicide flourishes, they have adopted our pro- posed system. France has developed the most complete national system ever devised of compulsory, gratuitous and secular public education. Religious instruction may not be given in the public school buildings or their dependencies. Public schools are to be closed one day in each week in addition to Sunday, that parents 778 REVISED RECORD. [Saturday, may give their children religious instruction outside the school buildings, if they desire to do so. In England, the time reserved for religious exercises and religious instruction, is to be at the beginning or at the end of the recitation, and is to be indicated in a time table approved by the education department and suspended in the class room. I desire to hurry through this and can give you only a summary of it. They recog- nize (in England) that each denomination has its rights. And the same is true of Scotland; the same is true of Ireland; the same is true of Catholic Austria; Protestants are entitled to and receive religious instruction in their own schools. The same is true of Hungary; the same is true of Belgium, and the same is true of Canada. Even Catholic Quebec provides for separate religious instruction for the Protestants in the schools. Denmark has religious instruction in its schools; Holland has its religious instruc- tion. In Mexico, which we seem inclined to follow, the program of the public primary schools includes manners and morals, but not religion, which is left to the care of the family and clergy; Sweden has religious instruction; Norway has religious instruction; Switzer- land has religious instruction. Now, then, it is proposed that we shall depart from this old system and adopt something new, some- thing we know not of. I was almost persuaded when I heard the learned President last night talking of the great amount of money the Catholic church was receiving from the people of this State to think that there was something in it, but I find that the church is not, as I have said, getting a dollar for its parish schools. Now, let me show you how many of such schools they have, and let me show you what sacrifices are being made by them for conscience sake. There are in the common schools of this State, according to the census of 1890 — I take the United States census — 1,042,160 children. There are in public schools not common 7,810. There are in private schools, exclusive of parochial, 77,000. There are in parochial schools of this State 119,242 children educated. Of these, the Baptists have 1,991; the Catholics, 108,152; the Lutherans, 8,620; the Methodists, 2,312; the Presbyterians, 848; Protestant Episcopalians, 3,736; all others, 3,147. Now, there are 108,000 Catholic children, about one-tenth as many as are in all the com- mon schools of the State, educated in parochial schools, without costing this State one penny. Of these, there are 40,000 in New York city. It costs thirty dollars per head to educate a child in the common schools of New York city per annum. The Catholics educate 40,000 of them without costing the State one dollar. That is $1,200,000 a year that the State is saved. If they had to erect September i.] CONSTITUTIONAL CONVENTION. 779 buildings for these 40,000 children, the city of New York would have to build at least thirty new school-houses, and with the enormous cost of property there, these school-houses would cost on a fair estimate $3,500,000. The annual interest on this sum is $175,000 at five per cent interest. The Chairman — The Chair will inform Mr. McDonough that his time has expired. Mr. McDonough — May I finish this statement? It will just take a moment. I wish to have this in the record, if the Chair will allow me. There is a saving, then, on interest, of $175,000. Out- side the city of New York the 68,000 children educated, at fifteen dollars per head, would cost $1,020,000, and to provide them with school-houses would cost $1,000,000, the annual interest of which, at five per cent, would amount to $50,000 more; so that there is a total annual saving to the public by these parochial schools, of $2,445,000; and Catholics ought to have credit for that. They are giving to the State of New York. They are paying their taxes for the public schools also, and they do this for conscience sake. Now, they are not asking much when they ask, in common with other denominational institutions of the State, that the children sent to their institutions by the State shall be provided with a proper system of education. The Chairman recognized Mr. Gilbert. Mr. Gilbert — Mr. Chairman, I give way to the President of the Convention for some special purpose. Mr. Choate — Mr. Chairman, it seems to me that some confusion is introduced in the debate by the consideration together of my amendment to strike out the last two lines of section 4, and Mr. Lauterbach's supervening amendment to insert something in place of those two lines. On conferring with Mr. Lauterbach and with other gentlemen, it has seemed to me entirely clear that the sense of the Convention is almost, if not quite, unanimous in favor of striking out those two lines; and it occurred to me that the debate would be relieved of some of its difficulty if a vote were taken on that separately; and that might be done now, leaving the vote on the much more serious question of what, if anything, shall go in place of the two lines, to be taken on Tuesday, at any rate not taken up now; and I would, therefore, ask that the motion be separated and that a vote be taken now upon my amendment to strike out the two lines, leaving Mr. Lauterbach's and other amendments that are to be made for future consideration. REVISED RECORD. [Saturday, Mr. Lauterbach — Mr. Chairman, there seems to be a general assent that the phraseology of the two lines which were criticised and which the amendment of Mr. Choate proposes to remove, and which my amendment also seeks to strike out, shall be eliminated. The question then will be whether other words will be inserted in their stead. The Chairman — Do I understand you to consent to the motion made by Mr. Choate being put now? Mr. Lauterbach — I consent that the matter be eliminated. The Chairman — The question then is upon the motion of the gentleman from New York (Mr. Choate), to strike out lines 14 and 15 in section 4, of general order No. 61. Mr. Platzek — In regard to that, Mr. Chairman, I only want to call attention to one fact. A number of gentlemen not present to-day, were here yesterday, when the motion prevailed that discus- sion should be had and no vote taken until Tuesday. Several voices — No. Mr. Platzek — Out of deference to them, I think the vote should not be taken. The Chairman — The Chair would state that that is not the ques- tion that was not to be voted on until Tuesday. Mr. Platzek — I have no objection to striking out the lines. Mr. Veeder — Is there any necessity for a formal vote, if it is substantially assented that the lines be eliminated? The Chairman — The Chair can have but one way of determining whether it is or not. The question now is upon the amendment to strike out lines 14 and 15. Several members suggested that it should be lines 13 and 14. The Chairman — It is lines 14 and 15 in the copy that I have. Mr. Holls — There are two different prints of that, Mr. Chairman. The Chairman — Well, the question now is upon the motion to strike out at the end of section 4, the following: "This section shall not apply to schools in institutions subject to the visitation and inspection of the State Board of Charities." The Chairman put the question on the amendment of Mr. Choate, and it was determined in the affirmative. Mr. Lauterbach — I move then, Mr. Chairman, that the form 'of my amendment be changed by eliminating the words " strike out " and simply having it words of addition. September i.] CONSTITUTIONAL CONVENTION. 7g[ The Secretary read Mr. Lauterbach's amendment as changed, in the language following : Add at the end of section 4, the following words, " this section shall not apply to orphan asylums or correctional institutions in which education is incidental only." Mr. Forbes — Mr. Chairman, I move to amend the amendment offered by Mr. Lauterbach as follows: "This section shall not apply to corporations organized under general laws applicable to all orphan asylums or institutions for the care and maintenance of dependent persons under sixteen years of age, committed thereto under provisions contained in said general laws. Such general laws may be repealed or amended." This, Mr. Chairman, has in its favor the fact that it allows any of these institutions that the Committee on Charities have agreed* should receive the aid of the State, to receive such aid in the future as they have received in the past. This is irrespective of any idea that we may have in regard to the propriety of the course into which the State entered many years ago, that is whether the depend- ent children of the State should be committed to institutions under religious care, or whether they should be taken care of by the State itself. As it seems to me, the great difficulty that has arisen in regard to this subject is the fact that it is new and untried, and that special laws, only applicable to special cases, have been enacted. I quote from a daily newspaper: " There is much contrariety as to the rate and method of payment to the per capita institutions. In a recent report made by the State Charities Aid Association, it is stated that four of them receive allowances for needy mothers at the rate of $216 per year, and two at the rate of $260 per year. Two receive allowances for infants at the rate of $120 per year, and two at the rate of $138.70 per year. These incongruities are due to piece- meal legislation. In one case the rate of payment was first fixed by law at forty dollars per year per capita; three years later it was raised to sixty dollars: four years later to seventy-five dollars; five years later to ninety dollars, and three years later to one hundred and ten dollars." Now. it seems to me that it is a practical ques- tion — that if all the institutions of the State should be placed upon one common footing, that then and thereafter there would be no difficulty upon this subject whatsoever. There are only two questions before us. One is, shall we con- tinue the policy of the State and give State aid to institutions for the care of dependent children, or shall we reverse that policy? It seems to me, from what I have learned during the sittings of this 782 REVISED RECORD. [Saturday, Convention, that the majority are in favor of continuing the present policy of the State. The next question is, how can we accomplish that purpose? I think that we can accomplish that purpose by laws which are uniform, and which are just, and which are applicable to all the citizens of the State. Why not establish this policy once for all, and not leave it to shifting and special legislation? This would establish the very quintessence of freedom — freedom of caring for the poor. If we should agree among ourselves in this body that we would take care of this particular class of children, we could do it under general laws without going to any central authority and asking for a statute for that special purpose. The Chairman — The gentleman from Franklin, Mr. Gilbert, yielded the floor for the purpose of allowing an amendment to be offered only. Mr. Gilbert — Mr. Chairman, I desire if I can, to contribute some important element to this discussion. I shall not go into figures or details. This is not an auditing board. I shall attempt to deal very briefly, as I must, with fundamental principles. It is of paramount importance to the State, that we arrive at a just con- clusion, and in order to do this we must have a clear understanding of the terms we use and the principles we are dealing with. Now, I ask your attention, first, to some of the terms we make use of. Let us make no mistake at this point. If we do, we shall be like the mariner who consults amiss his compass. Now, in this propo- sition that is before us, we find the words, " religious denomina- tion," and " sect." I ask you to consider those words at the very threshold of this discussion. A denomination may be religious, but it is not religion. A denomination is one thing, religion may be another. I ask you, gentlemen, to consider carefully the distinction between a religious sect and religion itself; because in answer to some things which have been said here and throughout the State and -land, I maintain this proposition; namely, that there should be religious instruction in the schools of the State. What do I mean by religious instruction as applied to schools? I will tell you exactly what I do not mean. I do not mean anything that is sectarian or denominational. Now, what do we mean by sectarian? "A sect," according to the Century Dictionary, " is a community or body of persons who unite in holding certain special doctrines or opinions concerning religion, which distinguish them from others holding the same general religious belief." Mark this definition. It assumes, in the first place, that there is a generic, a fundamental, September i.] CONSTITUTIONAL CONVENTION. 783 a common religious belief. That is the first thing. In the second place it recognizes the fact that in addition to what is fundamental and common, there are certain things that are special; and you do not come to a denomination in the proper sense of that word; you do not come to the word sect within a proper definition of that word, until you have passed beyond the domain of that which is funda- mental and common, and have reached that which is special, that which is properly denominated sectarian. Xow, then, I am pre- pared to state what my creed is in regard to education. I am opposed to the expenditure of a single dollar of the public money for the purpose of promoting any sectarian or denominational instruction anywhere. Let me say before proceeding further, that in my opinion we shall 'never reach a safe conclusion, and I use the word "safe" advisedly, because danger lies all around us; we can- not reach a safe conclusion, unless we recognize the distinction which I have made: and we must be guided by some principle in the light of which we may adjust ourselves to existing circum- stances and passing events as they occur. We must go precisely as the pilot does across the great sea, guided by something that is stable, permanent and eternal, and only then are we safely guided in legislation, involving matters of such vital moment as those with which we are concerned here to-day. Now, Mr. Chairman and gentlemen, I contend that it is not within the province of the State to expend any of its money for the promotion of whatever is peculiar to any sect or denomination. A Methodist, for example, has something that is peculiar to him. I care not what it is. There shall not one dollar of the public money be used for the purpose of promoting that special tenet of his. The Roman Catholic has something that is peculiar to him. I care not what it is. Not one dollar of the public money, with my con- sent, shall go toward the promotion of that, or any other special tenet, however speciously it may be taught or whatever form it may take. I am against it. I am against it to-day, and always, and I believe I stand upon the only policy which an American State can safely adopt, namely, the perpetual separation of the State from every organized church of every name whatsoever. We have been taken abroad, across the ocean, for examples from European coun- tries. They are misleading. They have had State religions and to •what extent they have them still I do not stop to consider. But. here in America we do not have, and by the grace of God we never shall have, a union of church and State religion. But does that mean we will have no religion? I answer most emphatically, no. Mr. Gerry was right, in this room, when he said that irreligion leads 784 REVISED RECORD. [Saturday, to anarchy. It does. But what is religion? ' Why, gentlemen, you may sweep away all these peculiar things, and the great eternal things of religion remain like the great sky above us when a con- flagration has swept over a city. Now, what is religion? Why, appeal is occasionally made here, and properly, to the oaths that we have taken. That oath was that we would be true to God, and true to man, within the sphere of our officials duties. There was religion. The State has a religion. It believes in a God; it believes in our responsibility to him; it believes in the brotherhood of man, and the reciprocal duties of men. It believes in these things, and those are the great fundamental things of religion. Now, some- body has asked, "when you get together these common things, what have you got? They say it is a State religion. I say, you have simply religion. And what is that, and what will it do? Why, when we have taught the pupil obedience to God, and obedience to the Constitution and obedience to law, what becomes of anarchy? What becomes of darkness when the sun rises? Teach religion that is common, teach it to the child, but you need not teach him about baptism; you need not teach him about preordination, you need not teach him about a thousand things more or less that are peculiar to this and that and the other denomination ; but teach him the great fundamental things upon which all good things upon earth depend, and all our hopes beyond rest. Teach those. And so I would have our schools not godless schools; I would have the same religion enter into the school that enters into this Convention, and that is, loyalty to God and loyalty to men, the rights of men. That will leave no room for anarchy. Now, gentlemen, I want to say another thing about the meaning of terms. When that discussion went on in this assembly, to which I listened, Mr. Bliss and others talked about Catholics and Protestants as if the issues were between Catholics and Protestants. This I totally deny. It is not so at all. Is there such a denomina- tion within this country as Protestant? I wait for an answer. I repeat it, for I want an answer. Is there such a denomination or such a sect as Protestant? There is no such sect or denomination as Protestant in this country. Let us dismiss, then, air argument based upon any such distinction as that. " Protestant " is a term that arose when there was a State church. It was a protest against what was then believed to be — I care not to discuss whether cor- rectly or not — what was then believed to be the corruption and per- version of true religion. I do not say whether it was or not, but that is what was said. It was a protest against what was claimed to be untrue, corrupt and demoralizing. Is there any such September i.] CONSTITUTIONAL CONVENTION. 785 thing here? Have we a State church in the commonwealth of New York? Not yet. Not yet is any church so entrenched within this government that it can be said of those who do not accept its peculiar tenets and polity that they are Protestants. Not at all. So that all the fallacious arguments based, as they are, upon that dis- tinction, fall to the ground. Mr. Burr — Mr. Chairman, may I ask the gentleman a question? Mr. Gilbert — I shall be very glad, indeed. The Chairman — The Chair declines to allow any gentleman to be interrupted. Mr. Gilbert — I should be very glad to answer questions; very glad, indeed. The Chairman — Your time is up, Mr. Gilbert. Mr. Burr — May I ask the gentleman a question, now, at the close of his address? You have said, sir, there is something peculiar to the Roman Catholic church — you have said, sir, that there is something specious in the condition or belief of the Roman Catholic — Mr. Gilbert — No; I did not say anything about specious as applied to the belief of Roman Catholics. Mr. Burr — You have said " Not yet," " not yet," and yet and still again " not yet " Mr. Gilbert — Yes, sir. Mr. Burr (continuing) — Has the Roman Catholic church had any voice in this country — The Chairman — The gentleman from New York must ask his question. Mr. Burr — What do you mean by that? What do you mean by this insinuation? Mr. Veeder — I rise to a point of order. The gentleman is out of order. Air. Gilbert — May I answer the question? The Chairman — The gentleman is out of order. The point of order is well taken. You need not answer the question. Mr. Gilbert — I shall be very glad to do it. It is perfectly simple. Mr. E. R. Brown — Mr. Chairman. I regret very much that there should have been, in so small a matter, so much evidence that at some remote time in the past there had been bitter religious con- 50 786 REVISED RECORD. [Saturday, troversies in the world. I suppose the law of heredity would account for the awakening of this Convention, as we all are descended, or mostly all, either from Holland or from England, or from France, in which countries at some time this contest has raged with reality. It is too late, perhaps, for me to place before the Convention the real attitude of the majority of the Committee on Education, but it may be just that I should say at. this time, notwithstanding the circumstance that the two lines referred to have been stricken out, that those lines were inserted on the understanding obtained through a member of the Committee on Charities, who is also a member of the Committee on Education, that the proposed article on charities would closely and narrowly govern and limit the visi- tation of the State Board of Charities. The article had not been presented. I find that the article as presented is much broader than the Committee on Education was led to believe. Prior to the adoption of this proviso a proviso had been adopted which specifi- cally named the exceptions which the committee intended to embody in this proposed enactment. It was rather lengthy, and for the sake of brevity, this manner of expression was used. So much for the form in which the committee embodied the sentiment of the majority. Now for the reason why the committee tried to embody this exception. It was, after full discussion before the committee, stated very authoritatively that this proposed sectarian amendment ivas not intended to effect any fundamental change in the existing order of things; that there was nothing in the State of New York •which it was necessary for us to overturn or to revolutionize. We found that there had been some petty innovations which the modern telegraph and newspaper had exploited throughout the State for the purpose of arousing the ancient bigotry that characterized man three or four centuries ago; and for the purpose of preventing the further spread of this feeling of bigotry, and as some excited gentleman said in the public appearances before this Convention, and said before the committee, for the purpose of pre- venting a religious war, which, forsooth, we stood in danger of, the committee in its wisdom thought it wise, after great hesitation and deliberation and by a narrow majority, to make a declaration against the invasion of the common schools of the State by any religious denomination. There was not in the mind, I believe, of any man in that committee any such immediate danger, bi\t peo- ple, with the old feeling of bigotry aroused by trifling incidents, stood knocking at the doors of this Convention, in large numbers. September i.] CONSTITUTIONAL CONVENTION. 787 for the admission of a principle that was as old almost as the principle, "Thou shalt not steal." It is certainly as old as the State itself. It was established, and we feared in the adoption of this amendment that we might, in laying down this great principle, overlook or retrograde from some of the humane, just ideas that have obtained in these days. For that reason we provided, or attempted to provide, as it seems in an unsatisfactory manner, that the State of New York and the civil divisions thereof, upon which rested the obligation to take care of the truants, of the orphans, of the pauper children of the State, should not be prohibited by constitutional enactment from affording such children some sort of religious instruction. As a matter of practice, of course, the various religious denomina- tions do very largely take care of these children, but the obligation in reason, and in the last resort, rests upon the State and upon the civil divisions thereof. (Applause.) For my own part, I believe that this was logical, that it was just; and that it was much more becoming in the committee, when it answered to this vague and indefinite feeling, having its origin in a want of charity, when it answered to that demand of the public, that it did a much more becoming thing when it took care that these poor, these wretched and these ignorant ones, the duty of the caring for whom had been cast upon the State, should not be neglected — that it did better when it made that exception than it did when it made the rule. Not only that, but, as a member of that committee, I was anxious myself that another exception should be made. For a hundred years or thereabouts it has been the custom in the State of New York for the State to aid religious academies, not as religious academies, but academies founded by the churches when they first moved into the State at its organization. There are many of them under the control of the churches. They have been the beacon lights in the rural districts of the State of Xew York for a hundred years, controlled by Methodists, controlled by Baptists, controlled by Presbyterians very largely, controlled in some instances by the Roman Catholics. I sought to have the committee refrain from laying the strong arm upon these institutions and say- ing that for all future time they should not be recognized by the State. I wanted exception made in behalf of all such institutions, and I believe, for my part, that the committee would have done itself more honor in making such an exception than it did in laying down the rule. But, Mr. Chairman, what was my surprise in coming into this Convention, after the report had been presented by my friend, the chairman of the committee (Mr. Holls), after its wisdom had been 788 REVISED RECORD. [Saturday, exploited by our honored leader (Mr. Root), and we had succeeded in incorporating into the Constitution the perpetuity of an institu- tion, with the proviso that its powers may be increased, modified or diminished, at the pleasure of the Legislature; after we had framed a provision by which there should forever be a corporation, in the State of New York which could be stripped of every atom of power by the Legislature at will, then what? We proceeded to the enactment of a provision which we already find in the Constitu- tion verbatim et literatim, and my friend, the chairman, suggested the amendment of the words " capital of," and my cynical, but genial friend from Orange (Mr. Hirschberg) also suggested the addition of the word " the " and then this committee solemnly pro- ceeded, after providing for the establishment of a corporation that amounted to nothing, to re-enact in solemn grandeur a provision that had stood in the Constitution since 1846. Then what? We get down to the declaration of this principle, a principle old enough,, perhaps, to be in the Constitution, but a principle, too, that is old enough and secure enough so that the people of the State of New York could get along, if it was not in the Constitution. And after we have proceeded to enact " Thou shalt not steal," in the best language that we can find, then the Convention devotes itself to a long argument and a bitter debate as to whether the State of New York shall set an armed guard at every orphan asylum door in the State and say, " if you come with the public money to clothe or to feed these children, well enough; but, if you come with a farthing of public money to provide for the education of these children and one religious word shall be taught, although not at our expense, we will shut you out." Which is the higher duty of the State? Is it the duty to clothe and to feed or is it the duty of the State to educate these children? If it is the duty of the State to educate them, wherein does its highest duty reside? Is it that it shall educate them in trigonometry or the higher mathe- matics, or in literature, or is it to imbue them with those moral and religious principles which will make them true men? That is the point we come to in the discussion of this question; and, for my own part, no matter what the action of this Convention may be, let me say now and frankly that as to those unfortunates who are cast upon the State from the Roman Catholic church, let them be educated, if need be, at the expense of the people of the State, in Roman Catholic institutions; as to other denominations, let them be edu- cated at the expense of the State in other denominational institu- tions, but not in the religion which my friend from Franklin has exploited here, a religion that has no Roman Catholicism, that has September i.] CONSTITUTIONAL CONVENTION. 789 no Methodism in it, that has no Presbyterianism in it, a religion which is a skeleton and a fraud. Mr. Chairman, if the language adopted by the Committee on Education is not apt, find apt language. Do right by the unfortu- nates, do right by the historic academies of the State, take care of them, and I assure you that, notwithstanding the voice of one crying in the wilderness against this proviso, you will find that the people of the State of New York will respect your judgment, and will approve this Constitution more quickly and gladly than they will if, yielding to some vain logic, some imaginary danger, you carry it to that extent that you strike down the power of the State to do its highest duty toward the unfortunates and toward these ancient educational institutions. Why, Mr. Chairman, when I consider what this committee is engaged in, and when I consider what this Convention has done, or rather, what it has not done, for the educational sytsem of the State of New York, I am regretting your action more than I can express. The only theory upon which you can be constructing this educational article, it seems to me, is upon the principle upon which the mighty ocean and the beauteous land were constructed. You are dealing with grains of sand and with drops of water; and you have called in modern science so that you might make atoms out of these particles, and then deal with the atoms, in constitutional enactments. You are not satisfied with taking the original units, but you desire in this matter to make provision for something which, as in the case of the Regents' trifles, are too small for preservation, or as in the case of the sectarian amendment, you