[Previous Day][Next Day][Back to Menu of Days]

NOTE: You may notice textual errors throughout this document, many of which have been left intact from the original text. Should you want to investigate the integrity of the original report, please refer to the original two printed volumes containing the official report of the proceedings and debates.

Roll call showed a quorum present. Prayer was offered by Delegate Brandley of Sevier.

Journal of the fifty-second day's session was read and approved.

Mr. CHIDESTER. Mr. President, it appears to me that a good many members of the Convention have determined to leave here on Saturday for home, and it appears to me that by crowding this matter a little we might get through. and I therefore move that it be the sense of this Convention that when we adjourn this afternoon we take a recess until 7:30 and have an evening session. My reason for doing that is because I believe by holding evening sessions we can complete all the work before us by Saturday evening.

Mr. SQUIRES. Does the gentleman have any idea that the work can be so completed that the members can leave here for home on Saturday?

Mr. CHIDESTER. No; I do not believe they can, but I believe if it was all done up ready for revising and arranging, that they would be content to remain over until Monday.

Mr. SQUIRES. Well, has the gentleman an idea how long it is going to take after our Convention work is completed before the Constitution itself will be completed? The committee on compilation {1477} and arrangement has to get its work in to be reported here. Then the entire Constitution has to be engrossed, and then it requires the signature of every gentleman of the Convention. It will take at least a week before you could possibly finish this business.

Mr. CHIDESTER. That is very true, but that is one reason why we should hold these evening sessions.

Mr. HOWARD. I think, Mr. President, we would have to suspend the rules if we did that, for the rules provide that that committee shall have not less than five days to complete their work.

Mr. HEYBOURNE. Mr. President, I have been credibly informed that the committee on compilation will not detain the members more than a half a day before they will be prepared to report. I understand from one of the gentlemen that they are about up with the business.

Mr. SQUIRES. The gentlemen do not seem to realize that after the committee on compilation has reported it will require considerable time, perhaps two or three days, to carefully examine the work and see that what work has been passed by this Convention has gone into the Constitution, without any mistake_the work of comparison and ascertaining whether we are absolutely correct or not. It is going to take a number of days of careful scrutiny on the part of the best men in this Convention before the work can be declared complete.

Mr. THURMAN. Mr. President, if what Colonel Squires and Mr. Lambert say is true, all the more reason for holding night sessions, and we ought to have begun a week ago; I favor this motion.

Mr. MALONEY. Mr. President, I trust these gentlemen will not be in a hurry to get away from here to go to their homes. They are now getting to the most important part of the work. Every member will get his salary in full, and I hope the members will not be in a hurry. I sincerely hope that every member will remain here if it takes all next week and even longer; let us do this work properly.

Mr. SQUIRES. Mr. President, the only objection I have to night sessions is that there are so few present. Now, we had one night session, we adjourned to meet here at half past seven, at a quarter to eight we had a quorum, and the last of the members came in about a quarter to nine, and the highest number we had present that night was sixty-five out of a total of one hundred and seven. Now, I do not like to see important Convention work done by a handful of the Convention. If it is necessary to institute a Convention composed of one hundred and seven men to do this work, I do not believe that we should so arrange our matters as to have the work done by sixty-five. If there is any way of compelling attendance here at night sessions, I should be very much in favor of evening sessions, but I do not like to have the work done by a small handful of the Convention.

Mr. BUTTON. Mr. President, I do not know as I would object to having night sessions, but I cannot attend night sessions. I am perfectly willing the rest should, but it is impossible for me to attend night sessions.

Mr. KIMBALL (Salt Lake). Mr. President, I do not think the willing workers should be held back by those who are indifferent, There are some of us whose business actually suffers for our attention. While I am an employe[*note*], the business that I represent in the way {1478} of the home manufactures here in the Territory is actually suffering for want of being represented throughout the country, and while I am willing to work harder and more hours if necessary in order to accomplish this work and do it well, I think those who are not so situated ought to be willing to make some concession to let the country members get home to attend to their affairs and let those who have business get away from here so that we can do it.

Mr. HEYBOURNE. Mr. President, I do not think that the per diem is cutting such a great figure as some of the gentlemen here think, in relation to their statements here this morning, so far as the country members are concerned. As the gentleman has just stated, it is a season of the year when their presence is needed at their labor where they reside, and I do not think that those who are willing to labor should be held back, and I just ask this Convention now to look over these vacant chairs and see who there are that are delinquent here this morning, and there has been no

night session last evening. I am in favor of proceeding cautiously and intelligently in this matter, but not wasting time, and I think that we could with propriety hold a night session or two to expedite this business.

Mr. JAMES. Mr. President, of course we all have our opinions and now is the time to express them, regarding the extra hours of work. I am in full sympathy with all the gentlemen that have expressed a desire to finish up this work and get away from this Convention, I know that it is important, and I say to you, gentlemen, that there is no man that regrets so much having to be tied down here in this Convention as I do. I have got business and matters that I want to attend to, and I ought to be away from here, but I want to say this to you, gentlemen, man has just about so much capacity; he can do about so much work in twenty-four hours and do it well. Now, if he undertakes to go beyond his capacity, he will slight his work. That must be so. Now, this is an ill- conceived room for such a large body of men. The air, although you may have the windows open, gets very bad during the day. When night comes a man is dull and needs sleep. His brain is not active, and if you keep a man working here from 9 o'clock in the morning until 6 o'clock in the evening, you have got about all out of him that nature intended you should get out of him in this kind of work.

Mr. THURMAN. May I ask the gentleman a question? Can you explain how it is on this question of capacity that the members from the country seem to have more capacity for standing this city hall with its bad air and its ventilation than the members from Salt Lake? They are absent_with the exception of yourself. I will give you credit, and Mr. Squires and Dennis, but the others are absent whenever they please. But anyway, explain that question, it is a physiological one.

Mr. JAMES. We all know that the good material comes from the rural districts. I guess that must be the explanation of this. Now, I want to say, gentlemen, in my little observation of constitution making, which I took a little pleasure in examining in the past six or eight months, I found this, coming from the lips of one of the greatest constitution makers that this nation ever produced, in a speech, as to the time occupied in framing a constitution. He says, “Gentlemen, I would not give one fig for a constitution that was formed in less than twelve months.” Now, since this Convention has convened and our work has come upon us, the remark of that gentleman has come very forcibly to my mind. It used to be the old rule of conventions to meet and formulate their work, put it into shape, print it and have it go before the people, take an adjournment of four or {1479 - ELECTIONS} five months, come back, and then put four or five more months in upon that work, and by that time they got something that they themselves were satisfied with and the people at large were contented with. And it was what they wanted. Now, I only call your attention to this for the reason that I say do, not be in too big a hurry right now; it is the winding up and finishing up and polishing up of our work that will give it its true ring and will satisfy you afterwards or dissatisfy you, and it will be the same with the people, and I think you had better come here and do a good day's work and take your time and finish this up as it ought to be. Now, here is an article on incorporation. You cannot push things too fast, gentlemen. From the time this matter has come before the committee up to the present time they have been receiving information from the public and advice from the people in reference to this very thing, and you have got to take a reasonable length of time to do the work or else it will not be well done.

Mr. CHIDESTER. No; for to-night.

Mr. EICHNOR. Well, Mr. President, I am going to try it again.

Mr. CHIDESTER. Well, try it once more, and if it does not work we need not try it again.

Mr. EICHNOR. Mr. President, I do not want to praise myself, but I have tried to be a faithful attendant. I do not think it is right for members to get up here and fire promiscuous shots at members from Salt Lake County. Censure those who do not come, but it is not right for those who come here and try to do their best to be insulted. I am trying to do my duty and represent my people, and I say gentlemen ought not to hurry this matter too much, but I am willing to try night sessions.

Mr. RICKS. Mr. President, I believe when members want to go home the best thing they can do is to put a bridle on their tongues. I have discovered that we have wasted more time here than would have given time to frame three or four constitutions. I believe if that will be followed by country members as well as Salt Lake members we can get away from here shortly. I am compelled to get away from here either Monday or Tuesday. If we let an impression get out over this assembly that when a man talks fifteen minutes he is costing the Convention fifty dollars the speeches will be shorter.

Mr. SQUIRES. Mr. President, ever since I learned that the country members had held a caucus, with a view to shutting off debate in this Convention, I have left the country to do all the talking. Up to the present time this morning, I believe I have not made a speech, and I do not intend to take up the time of this Convention except when I consider it absolutely necessary. I thought they wanted to get away, but they have done all the talking ever since the night they held that caucus.

The motion of Mr. Chidester was agreed to.

Mr. RICKS. Mr. President, I move that it be the sense of this Convention that all the committees report not later than to-morrow morning.

The motion was agreed to.

Mr. ALLEN. Mr. President, section 14 of the article on elections and rights of suffrage was reconsidered last Monday and laid on the table, and inasmuch as some that are here now were not here then and will not be able to vote intelligently as to the taking up of this question, without an explanation, I wish to say, the motion was to this effect, that section 14, and that section only, of the article on elections and suffrage was to be reconsidered, and in order to place the election of judges at {1480} the time of the general election, and a great number of the delegates being absent, it was thought wise to lay it on the table, which was done. Now, this morning the judiciary article comes up and there will be a slight change in that, providing that this motion to

reconsider should carry and the section be amended. That is one reason for having this called up this morning. Another reason is, the committee on printing are waiting to see what the result of this motion to reconsider will be. Therefore, I move to take from the table the motion which was laid on the table last Monday, tending to a reconsideration of section 14.

Mr. THURMAN. I do not see why gentlemen are so persistent in wanting to bring this matter to the front. It was out of order to bring it up at all. There was no motion to reconsider that on the day on which the matter was disposed of, and to say the least the only way it can be done is by suspending the rules.

Mr. CRANE. Mr. Chairman, the object of bringing this matter up is that the committee on compilation and revision have now quite a number of articles to hand to the printer; we are trying to keep up with our work as close to the Convention as it is possible to do with revising and compiling the different articles that passed the third reading, and there seems to have been some misunderstanding in regard to section 4. I had an idea that the article as amended provided that the judicial officers should be elected the same year that the State officers were. I do not know what the opinion of the gentleman from Utah County is. I think we both agreed on that matter. There were some objections to it, but I had an understanding that that passed in that form.

Mr. THURMAN. I am in favor of the article just as it passed this Convention myself.

Mr. CRANE. And the way we have it in the revised copy here, as received from the secretary, it makes it that the judicial, municipal, and school officers should be elected in the odd years, when we do not have any State elections, and that there shall be a separate election for that purpose. It was understood, I believe, at least by me and others on the floor of the Convention, that the judicial officers should be elected at the same time that the State officers were, and thus save thirty or forty or fifty thousand dollars for a general election, that would be necessarily held to elect these judicial officers.

Mr. EVANS (Utah). I arise to a point of order. The point is that the motion to take from the table is not debatable.

The PRESIDENT. The point of order is well taken.

Mr. SQUIRES. Mr. President, I want to inquire if the motion to reconsider was made at a proper time to make it a valid motion?

The PRESIDENT. That is the remembrance of the chair in regard to the matter.

Mr. THURMAN. My understanding is that the motion to reconsider was not made at the proper time, but the motion made last Monday was to suspend the rules and reconsider. This requires a two-thirds vote.

Mr. JAMES. Did not I understand from the gentleman from Millard that the committee on compilation had arranged this matter in the form precisely as Mr. Allen's motion would place it?

The motion to take from the table was agreed to.

The PRESIDENT. The question is now on the motion to suspend the rules and reconsider section 14 in this article on elections and suffrage.

Mr. THURMAN. Mr. President, now if there is any reason in the world for reconsidering this I for one would like to hear it. I do not see any so far as I am concerned. I hope there will be no {1481} lengthy debate on it, but I would like to know the reason the gentlemen have for wanting to reconsider it. If a mistake was made, the mistake ought to tobe corrected, but if it is some man who simply wants to undo what was done, because he did not carry his point, I hope the Convention will defeat it and let this work go on.

Mr. GOODWIN. Mr. President, I will say in explanation, there seems to be a misapprehension of what the amendments to that section really were, and whether it conflicts with the judiciary article or not.

Mr. BUTTON. Mr. President, it applies to State officers, too. I do not understand the section passed the way some say it did.

Mr. THORESON. Mr. President, while we have section 14 under discussion, I believe it was almost unanimous that the idea was that we wanted the State and county elections to go on only every other year_every even numbered year, but the way the section passed we find that judicial officers, including State and district judges, would of necessity have to be elected on some other time from that of other State and county officers; and in talking with a great number of the members all that I have met were of the opinion that judicial officers were cut out as the section passed; but that is not the fact; we find the word judicial in there, and the committee on compilation always were under the impression that “judicial” had been omitted and that the section passed. We see by this that it will necessitate a State election every year and a county election every year, which is contrary to the opinion and idea of the members expressed both in the committee and in the Convention. For that reason, I favor the reconsideration and the striking out of “judicial” from section 14.

Mr. CRANE. Mr. President, I desire to read the section as it has been revised, and I also desire to resent the imputation of the gentleman from Utah County that any individual on this committee desires to satisfy his own selfish ends, to construe, alter, or amend, or in any way, shape or form, change any word, letter or anything else, in any article that has been presented to this committee.

Mr. THURMAN. There has been no such imputation made.

Mr. CRANE. I will see you later. ( Reads section 9.)

Mr. THORESON. Will the gentleman allow me a question? Is it a fact that this section was numbered 14 in the original proposition?

Mr. SQUIRES. Mr. President, I submit that the proceedings as read by the chairman of the committee on compilation are exactly as took place in this Convention, and however much we might change that now, I do not think it is wise to go into it.

Mr. CRANE. It is only for the purpose of getting it correct. That was all that we had in the matter, was to get it exactly as it passed the Convention. Now, no one on this committee has any desire in the least to change, alter, or amend one word in any way, shape or form. There is a matter of personal honor in this thing. I do not believe that any gentleman on this committee would dare think of such a thing or has thought of such a thing, and I resent the imputation from any gentleman on this floor to the contrary. It is only to get this matter distinctly before the house that we may understand it, and that this committee in revising may fully understand and get it exactly as it passed this body. There seems to be a disposition among quite a number {1482} of gentlemen on the floor, that this is not the way the section passed.

Mr. THURMAN. Mr. President, I arise to a question of personal privilege. I do not see how any language that I have uttered here could be so misconstrued as it has been by the gentleman from Millard. I had no thought whatever of the committee on revision. The committee on revision never entered my mind. My point in what I said was this, that if a mistake had been made, for one would like to know wherein it was made, and we would correct it here; but if some gentleman_and to be frank, I had in mind the mover of this motion to reconsider_if they were simply wanting to overturn what this Convention had done, because they were dissatisfied with what we had done, I thought we ought to vote it down. I never thought once about the committee on revision, and there is not a man on that committee that I could be made to believe would stoop to do a dishonorable thing in connection with the work they have in hand or in this Convention. That is all I have to say on the subject.

Mr. GOODWIN. Mr. President, I think the matter is exactly as agreed to the other day, and the gentleman is mistaken in thinking that the election for judges and the city elections and school elections will come in odd years. The only object was to separate two or three of the elections from the main general election. The election of judges, municipal elections, and school elections_that was fully discussed and we passed it, and as Mr. Crane read it, it agrees entirely with our notes. I think the thing is all right as it is.

Mr. ELDREDGE. Mr. President, I just simply wish to say that the section was read by Mr. Crane is verbatim as I have a record of it here.

Mr. GOODWIN. I believe that the section as passed as Mr. Crane read it a little while ago. We might as well be frank in this matter. I plead guilty to the charge that Mr. Thurman made, or the position that he took, that the men who were defeated when we passed this artcileare trying to change this now. That is the truth of the matter. We believe it is wrong, and we believe that the

judicial officers should be elected when the State officers are elected. That is the whole thing in a nutshell.

Mr. LAMBERT. Mr. President, when this question came up before the compilation committee, there was a difference of opinion. Some of the members of that committee were under the impression that this judicial election was made at the same time as our general election, and it brought about the discussion. Many of the gentlemen surrounding me here are of the same opinion, that we only have one general election throughout the State, and it was for this reason that this question was brought up.

Mr. GOODWIN. Mr. President, I move that the section be accepted as read by Mr. Crane.

The PRESIDENT. The question is on the reconsideration_that is, to suspend the rules.

Mr. HOWARD. Mr. President, I am opposed to reconsidering this article. I think that as passed in the Convention it is just right. That is so far as it can be construed at the present time, and this question has not only been up herein this Convention but has been considered by others in the various parts of the country, and they think it is the right thing to do. I believe that that principle is right and that we ought to adhere to what the Convention has done.

Mr. THORESON. Are you in favor of having special elections_State and county elections for judicial officers apart from State officers?

Mr. HOWARD. I am in favor of keeping municipal and school elections out of politics just as much as possible.

Mr. THORESON. I agree with you on that, but are you willing that the {1483} judges also_the district and supreme judges should be elected separate and apart from other State officers.

Mr. HOWARD. Why should they not be?

Mr. THORESON. Why should they be? That is what we want to know?

Mr. HOWARD. Could you give any good reason why they should not be?

Mr. LAMBERT. I will tell you why. It will cost the State twenty-five thousand dollars and disrupt peace every year.

Mr. CRANE. It will cost them thirty-five thousand.

Mr. THURMAN. I would like to ask Mr. Lambert, will it cost twenty-five thousand dollars, if municipal and school elections are separated, to have a judicial election at the same time.

Mr. LAMBERT. Municipal elections are paid for, I believe, by municipalities; school elections are by the school districts, but this judicial election will be paid by the State.

Mr. LAMBERT. Why, in paying the expenses of campaigning the Territory_disrupting business, will cost a hundred thousand dollars.

Mr. HOWARD. Does the State pay for all campaign expenses?

Mr. LAMBERT. Well, the people of the State have to pay for them, and people of this State have been crying out for years against so many elections, and every one of your constituents to-day, gentlemen, is asking for us to lessen the number of legal elections, and lessen this expense that is tearing them to pieces and disrupting their business affairs.

Mr. THURMAN. I desire to ask one further question. This money that is paid out in campaigning, is paid from one citizens of the State to another. It keeps inside of the State lines, don't it, as a rule?

Mr. LAMBERT. Not only that, there is paying the registration officers.

Mr. THURMAN. Does not that keep inside of the State?

Mr. LAMBERT. And printing bills, etc.

Mr. CRANE. Do you not think that there will have to be another registration?

Mr. LAMBERT. Yes, sir; I am of the opinion that there will have to be a special registration?

Mr. CRANE. Do you think these registration officers will have to be paid by the State?

Mr. LAMBERT. Yes, sir.

Mr. CRANE. Do you think there will have to be judges of election?

Mr. LAMBERT. Yes, sir.

Mr. CRANE. Do you think they will have to be paid by the State?

Mr. LAMBERT. Yes, sir.

Mr. CRANE. This last election cost this State twenty-five thousand dollars.

Mr. GOODWIN. Mr. President, if this was not a dignified assembly, I should say this was all rot. This will not place judicial elections on an odd year at all. It simply puts it on a different day, for instance we have the general election on Tuesday; the same rolls are used on Thursday for judicial elections. That is all there is to it. All the expense is a day's work by the judges of

election, and the State that cannot stand that ought to go into bankruptcy.

Mr. EICHNOR. I would like to ask Judge Goodwin a question. Is not it a fact that we have fixed the terms of the supreme judges in order that the elections shall not come on the years when the State officers are elected?

Mr. GOODWIN. No, not by any means.

Mr. L. LARSEN. Mr. President and gentlemen of the Convention, we have been economical on this floor when we have said what the salaries would be of the State officers. Here is a matter that it appears to me that we might {1484} rightfully use economy in. I cannot see any reason why our judicial officers should not or could not be elected on the same day and at the same election as our State and county officers. There is no reason that presents itself to me. It has been argued here that we should do this in view of political matters or influences entering into our elections. Now, I do not see that it will make any difference. I do not believe that political ideas will be kept out anyhow, and hence, I am certainly in favor of saving this amount of money to the State, which will amount in the aggregate to many thousand dollars without any question. If we have an election here, in regard to this_members have perhaps exaggerated this amount; it is certain that it will be a great amount of money, and it may as well be saved as to throw it away. I was in favor, when this question was up before, of leaving it to another election for our judicial officers, but after due consideration of this matter, I have changed my mind, and I am now in favor of electing them at the same time and letting our school officers, etc., be elected at some other time.

Mr. ELDREDGE. Mr. President, I am still of the opinion, as I was in the first place, concerning the election of the judicial officers. We provide here that all State officers except those shall be elected on a certain day. Then we leave that measure to the Legislature to say whether that election shall be held on that year or some other year, and if it is held on the odd year, in my judgment, it will be necessary to have a registration anew for judicial officers.

Mr. GOODWIN. That cannot be. It is fixed so that they will come in the same year.

Mr. ELDREDGE. We may suppose it comes in the same year. They hold an election on a certain day in November for all officers except judicial; then a week after or a week before, as the case may be, to hold another election just simply to elect the judicial officers_what will our constituents say? They will say, “Why, when you were providing for that, why didn't you provide that we get at this work all at the same time? You simply provided for the election of all officers except one class of State officers on a certain day, and then you hold their election over until a week after, and we have got to spend another day in keeping the polls open all day, and devoting our time just for that purpose.” Why, it is simply like throwing just that much time away, because the entire work could be done on one day.

Mr. THURMAN. Are you in favor of having school elections on the same day as that of State officers?

Mr. ELDREDGE. Well, I would be in favor of having the judicial elections on the day of the

general elections.

Mr. THURMAN. No; but I am asking you now about school elections. Are you in favor of having them on the same day?

Mr. ELDREDGE. Well, there is a
question concerning municipal elections and school elections that is quite different.

Mr. THURMAN. Well, if you have a separate election for school and municipal officers, why not elect the judicial officers at the same time, for the same reasons and the same expense? This talk about the expense there is nothing in it, if you have another election any way.

Mr. ELDREDGE. So far as that is concerned, I should say to have the school elections on the same day. I think it is just exactly like a man having forty bushels of wheat to take to a mill and his team could carry it all just as well in one trip as it would in five, but in order to spoil two days he is going to take twenty bushels at a time. That is about the proposition. But on the judicial measure I shall certainly vote in favor of reconsidering that.

Mr. BOWDLE. Mr. President, if it {1485} were possible to make the judicial elections entirely non-partisan, and take them out of politics, I would be in favor of a separate election for judicial officers; but in my opinion that is utterly impossible. You can no more make a man that nondescript_neither republican nor democrat_because that is what you would make of your judicial officers, by electing on a different day, than you could do any other impossible thing. If he is a republican he will be a republican, or else he is not any kind of an American citizen. If he is a democrat, he will be a democrat. You cannot change him by electing him on a different day. Now, the argument they use here is, “Why, this won't increase the expense, because we elect on Tuesday, in the general election, and on Thursday the judicial officers.” How far does that take it out of politics? The same machinery that you have had in operation to bring about the results of your general election will be in operation to bring about the judicial elections. The same ward heelers that will be working for your general election will be working for your judicial election, and you cannot get away from it. I cannot see how you can possibly, by doing it in that way, make it a non-partisan matter. I would not want to make it a non-partisan matter, as far as that is concerned, because I would not want to take away from an American his political opinions, if I could do it. I would not want that kind of a man on the bench. I would rather put my good friend from Utah County_a good strong democrat, on the bench, and know that he was than, that some nondescript fellow that was neither one thing nor the other. Let me know where a man stands and I do not think politics would have so much to do with him after he would get on the bench, and I would not think that he would be so swallowed up in politics that he could not hear a case and determine it in all its bearings.

Mr. EVANS (Utah). Mr. President, I may state on general principles that I am opposed to this system of going back into the work. However, perhaps no man on the floor can, with more consistency, take the position that I do on this question than myself, having given notice at the time I voted that I was opposed to section 14, but I should never have brought it up of my own accord, and I am of the same opinion yet. I think that this is a condition of things that we can

with consistency and propriety reduce the expense a great deal to this new State, and not only the expenses to the State can we save by having these elections all upon one day, but there is no man upon this floor but what from actual experience knows what the effect of these political campaigns is. It was suggested by my colleague that we need not to campaign. That is true, but will we take such advice as that? Experience since our division upon party lines has proved to the contrary, and that is but a theory. We must meet this thing as it confronts us, and I am confident in my mind that the results to this Territory will not be attained by having two general elections, that there will in having them all upon the same year. Now, in regard to the school question, it has been asserted here by every man that has spoken upon this question, that he thinks the school elections ought to be kept out of politics. I want to suggest to you, gentlemen of the Convention, that if you shall incorporate one single election in addition to the school election, you will thwart the plan that you are desiring to accomplish. It has been stated that in July perhaps would be the best time for school elections, and I believe that it is barely possible, and only barely possible too, that if the Legislature were to pass laws providing for an election in July for our school officers that we might perhaps accomplish the object, but if you shall connect one single election, even to a town election, {1486} you will find that this question of politics will drift right into it. I submit to you that in the town where I live they have drawn lines so very close in politics that a man need not expect to receive a job at the hands of the party that is in power; they employ all the minor officers to the very least that they have, from that political faith. Then talk about keeping that out of politics! I say, let us make these elections uniform. Let us have them upon one year.

Let us gird on our armor of war in politics, fight the battle to the death, and when we get through, let us rest for two years, and we certainly need it. I realize that it requires two-thirds for the reconsideration of this question, and I believe that we will be able to get them. Some gentlemen have come before the Convention here to-day and said that after mature judgment and deliberation they have decided that they voted wrong the other day. There is not a question in my mind as to carrying this, if we could once get this before the Convention as it stood before; so that a majority could carry it.

Mr. THURMAN. Who is it that voted wrong the other day?

Mr. EVANS (Utah). My friend from Sanpete said that he had been converted.

Mr. THURMAN. I think he voted on that same side, and I think that every man who has spoken on your side voted that same way.

Mr. EVANS (Utah). I submit to you that Mr. Larsen from Sanpete stated that he voted upon the other side and that he has been converted now to this way of thinking. Another gentleman from our own county voted upon the other side, and he to-day is prepared to vote on our side, as I believe there are many more here to-day, and that we will obtain the necessary two-thirds to reconsider this matter, as we ought to do, and that we will be able to present this question to our constituents in away to meet their approval; and I believe we ought to do it.

Mr. RALEIGH. Mr. President, I am in favor of having as few elections as possible, and as far

apart as possible. Hence, I am in favor of electing judges on the same day as other officers. It has been many times remarked that poets are born, not made. Our friend from Washington County says that dudes are born, not made. And I am impressed with the idea that democrats and republicans are born, not made, and that they are both useful in a republican form of government, one just as much as the other, and I am in favor of having, as I said, as few elections and as far apart as possible.

Mr. KERR. It seems to me, Mr. President, as far as I can remember, that the same arguments are being continued today that were offered when this question was before the Convention, and I was desirous of being recognized in order that I might move the previous question, but I notice two gentlemen very anxious to speak on the question and I will withhold that for a few moments. It does seem to me we should bring this to a vote as soon as possible. We have already spent an hour on this question.

Mr. CRANE. Mr. President, I desire to read for the information of the gen-men here from the stenographic report that was held on this section. (Reads from proceedings of thirtieth day.)

Mr. EVANS (Weber). I would like to inquire of the gentleman from Millard which side of this question he is on?

Mr. CRANE. I am on neither side. I want to get the sense of the house, and I want to get this article correct, as there seems to be some dispute in regard to how this article passed the Convention?

Mr. EVANS (Weber). I understand you are in favor of reconsideration, are you not?

Mr. CRANE. I want to get the article correct. My idea is to bring the article {1487} before the house and get the sense of the house, and if, as we have amended it and revised it, it is correct, I am satisfied with anything. I am not supposed to know anything at all about what passed this Convention when it comes into the committee on revision.

Mr. EVANS (Weber). I wanted to know whether you are in favor of reconsideration. I am, whether you are or not.

Mr. CRANE. My discussion here on the floor of the Convention was that I wanted the judicial election to be held at the same time of the State election, and nothing but the school and municipal elections at any other time.

Mr. EVANS (Weber). You are in favor of reconsideration?

Mr. CRANE. I am in favor of reconsideration.

Mr. EVANS (Weber). Why do you read speeches that oppose it?

Mr. CRANE. For the simple reason that I want to get the correct idea before the house. That is

all. I have no personal interest in this matter at all.

Mr. HEYBOURNE. Mr. President, I hope the motion to reconsider may prevail. I am opposed to having elections any oftener than they are occurring at the present time.

Mr. KERR. Mr. President, I arise to a point of order. According to rule 13, a motion to suspend the rules shall be decided without debate. This is a motion to suspend the rules, and all this discussion is out of order.

The PRESIDENT. The question itself is a debatable question.

Mr. HEYBOURNE. I am in favor of the motion being reconsidered. I consider it would be not only a matter of economy, but it would be unwise for us to precipitate so many elections and to have the turmoil that is connected with these elections. Now, so far as school matters are concerned, the election of school officers, I hold that that is open, unless it should be provided otherwise by the Legislature. Various trustees in the school districts have these matters in hand, prepare all the necessary arrangements and conduct the affairs of elections of school trustees. The condition of the people at these elections is such that it would be calculated to annoy and to perplex them in the selection of the proper officers to direct and manipulate their school affairs, and it was my opinion that when this matter was first passed, the election of the judicial officers and of the school officers were separated, and I am certainly in favor of that proposition now, to keep our school matters entirely separate from the general election.

Mr. HOWARD. You stated that school elections are local. Are not municipal elections local also?

Mr. HEYBOURNE. Yes.

Mr. THURMAN. Mr. President, I am opposed to reconsidering this on principle. I say if we vote here to reconsider this question it establishes a precedent for the reconsideration of any question that any gentleman has been dissatisfied with it in the first place. There are several questions. There are several propositions in this Constitution, gentlemen, that I am unalterably opposed to, and there are men on this floor who stand shoulder to shoulder with me in that opinion. They say they were wrong. Are we going to, because we were defeated on some question in the early days of this Convention, go around and work up a sentiment and get men won over and come in here when some of the men perhaps who took a position on the other side are absent, and get a reconsideration? Is that the precedent that we are going to establish? I say that there is a time for all things. This matter was debated fully, squarely, and face to face, and a man who stands up here now and says he did not understand the vote, all I can say is, he was not giving attention; he must have been reading a newspaper or drawing pictures on his table, or something of the kind. There has not {1488} been a question during this entire Convention that was any more fairly and deliberately discussed than this question that was reported unanimously by the committee, which you now seek to overturn. And, Mr. President, let me say this: Men have talked here about holding so many elections, and when I asked them, Are you in favor of school elections? “Why,” they say, “no.” Are you in favor of municipal elections on the same day with the State officers,

No. You are going to have these elections anyhow. That is the ground I put it on. Now, gentlemen, I say, let us be men. If we want all these elections on one day, that is the way to get economy, and if that is the sense of this house I will vote with you on that. I am going to stand by what this Convention does. I want to stand by what it has done in the past, although I am opposed to many things that are done; but when men say, “We will have school elections separately, we will have municipal elections separately, and we do not want judicial elections, because that makes so many elections,” it does not look to me as if it is in good faith. It is an argument that is without foundation. Now, if economy must prevail in all cases_the saving of expense in all cases, let us say that we will have the election of all of these officers on the same day, and if that is your mind, gentlemen, I will vote with you.

Mr. ELDREDGE. Do the same judges of election that officiate for the judicial also act for the school and municipal elections?

Mr. THURMAN. They can. The law can be made to accomplish that very result. Men are talking about our local laws as they now exist. The Legislature can make laws by which municipal officers and school officers shall all be elected and voted for, and the same ballot boxes presided over by the same judges. That is the whole spirit of this provision.

Mr. ELDREDGE. Then, if it was the
case that the same judges presided at all three of those elections, those elections must be on the same year of the general elections?

Mr. THURMAN. It does not matter about that. The article does not provide that it shall be a different year. It simply provides it shall be on a different day. We have been having school elections on a different day. We have been having municipal elections on different days, and the idea was to pick out these officers, gentlemen, that we felt as far as possible might be withdrawn from rank partisan feeling, and put them together.

My friend and colleague from Utah County talks about things being so red hot in his town that it comes down to the question of a man getting a job. I will tell you we will make them red-hot, and they will grow hotter and hotter all the time unless men seek to make some reasonable provision by which we will take some of this hotness out of the business, and that is the whole object of this.

Mr. SQUIRES. Your idea is that the judicial and municipal and school elections should be held on a separate day?

Mr. THURMAN. The same day, so far as that is concerned.

Mr. SQUIRES. The same day, but on a separate day from the general elections?

Mr. THURMAN. Yes, sir.

Mr. SQUIRES. How then would you divide the expense of the election, the judicial officers

being State officers?

Mr. THURMAN. Let the State pay its part, the school district its part, and the municipality its part.

Mr. SQUIRES. How would you divide it?

Mr. THURMAN. Why, that belongs to the Legislature to determine. We cannot enter into details here and say how this shall be done and that shall be done. The fundamental principles should be established by us, and let the Legislature work out the details.

Mr. SQUIRES. Wouldn't it be a clear {1489} saving if all the State officers are elected at once? That would leave the State election by itself?

Mr. THURMAN. I don't think so. In the roundup the expense is going to be the same to the people.

Mr. EVANS (Utah). I would like to ask the gentleman if it is not a fact now that as hot as things are in the town in which I live, the municipal elections, school elections, and county elections are not separate to-day?

Mr. BUTTON. I would like to ask Mr. Thurman if in the judicial, school and municipal elections there won't be politics in it?

Mr. THURMAN. I think there will be to a certain extent, but I introduced this resolution early in the session of this Convention, and I put it on the grounds that it would tend towards a non- partisan election, if we can take out some of this red fire_red-hot feeling that my colleague speaks about. Gentlemen, there is that much good. I submit it to every gentleman on this floor that during our campaigns we are temporarily insane, we don't know what we are doing, and I think that we can rise above that to a great extent, if we will take our State officers and the county officers out of our elections. I believe that we can do that. I have evidence of it in our own county.

In school elections we have succeeded down there in many of our precincts in getting together and getting the best men. Can you do that for ordinary State officers or county officers? Now no one dreams that we can do anything of the kind, but there is a feeling that when we can get a judicial officer, without regard to party, there are many men who feel that the object should be to get the best man and unite on him, because he has got to be a man that will be at all times fair, just, and impartial in his decisions, in deciding the rights of men, and as far as municipal officers are concerned, I have never thought that we could reach that degree of non-partisan feeling in relation to them that we could as to others. But when it was suggested by Judge Goodwin that they be added to the list, I accepted it, because if we can do that, all the better.

Mr. BUTTON. I just want to say that school elections must be different from what they are at Salt Lake City. I want to ask you a question. If we have elections all at once, won't there be less

of that hot fire?

Mr. THURMAN. I don't think so. I think three months after a general election, if politics are ever dead they will be dead then, and then is the time to come along and have your judicial and school elections.

Mr. GOODWIN. Mr. President, the only reason I speak is to correct a misapprehension. So learned a gentleman as my friend from Salt Lake seems to have an absolute misapprehension of the principles behind this idea. He does not wish to throw down a gentleman's political opinions and make him a non-entity. Now, I am astonished to hear such reasoning from such a source. The idea is this, that the office of judge, either district or supreme judge, is something so sacred and so exalted that it ought to have the fullest respect and confidence of men. In our deliberations in the judiciary committee, there was no thought of partisanship in apportioning the State, the idea being that the best man ought to be elected judge. Now, if an election for judges was to come to- day, I don't know how other men who are strongly partisan feel, but I know I would vote for the best man. If there was a republican that I thought failed either in legal ability, judicial ability, or in the character necessary for a judge, and his opponent possessed those qualities, I would vote for the democrat. It was that thought that pervaded the whole committee as we fixed the article on judiciary. Now, to put the election on the {1490} same day of these gentlemen that are talking here this morning_some of them will be trading constables for judges, and degrade the bench. That is the idea. Most of this talk about expense is most pitiable. This State has forty thousand schoolchildren growing up, and they are watching things as keenly as young minds always do, and if they are brought up to believe_

Mr. CORAY. Don't you think you could exercise the same amount of judgment on the general election day as you could on any other day?

Mr. GOODWIN. I think I could. I think there are a great many like my friend from Bingham; if he could make a trade on a judge to elect some pet officer, he would be likely to do it.

Mr. SQUIRES. Mr. President, I arise to a question of personal privilege. I would like to know whom the judge referred to as his friend from Bingham.

Mr. RICHARDS. I think the gentleman ought to be excused from giving a bill of particulars.

Mr. GOODWIN. I want to speak to a little personal privilege. Have I ever so given myself away on the floor as to admit that Mr. Squires was my friend? I want to exalt the bench. And if men can go to an election and vote their best judgment on judge or on a number of judges, and the whole expense is what Is paid to election judges (because that Is all the expense there is), let it be done. We talked this all over. We agreed to it here in full Convention early in the ;session; and let me say further that in the old states a sentiment is turning more and more to frequent elections, to keep the minds of the people wrought up all the time to a clear perception of their political duties. If it were not for that, we might either have an election once in ten years or delegate four or five men to go and vote for us. This is a republic. All the safety it has is in the intelligence and patriotism of the people. A few dollars' expense on an election to keep the bench

exalted and to make them understand that if they run for that office they cannot be elected simply because they are democrats or republicans, but because they are fit for the place, is well spent. I hope this motion will be voted down and that we will proceed with the regular call this morning.

Mr. BOWDLE. Judge, did you ever know this fine spun ideal to work in actual practice?

Mr. GOODWIN. I have, very often.

Mr. BOWDLE. Did it work satisfactorily?

Mr. GOODWIN. It did. In this city, for instance, we could tell, when the names of some attorneys are mentioned, in one moment which we would think would make a good judge, which we think would make a bright attorney, which attorney we would pick out, if we had some sharp practice we wanted to carry through.

Mr. BUTTON. I would like to know how much politics was kept out of your school trustees' election last fall in the fifth precinct?

Mr. GOODWIN. I am not in favor of the school question. I do not know how many rogues there were there. I know some people were reported to have worked against perfectly straight citizens who inhabit that ward.

Mr. EVANS ( Weber). Mr. President, I wish to submit a few remarks on this question.

Mr. KERR. I arise to a point of order. I insist that this whole discussion from beginning to end is out of order.

Mr. EVANS (Weber). I raise the point of order that that question has been ruled upon.

The PRESIDENT. The chair's understanding was that this opened up the whole debate.

Mr. KERR. I appeal from the decision of the chair.

Mr. EVANS (Weber). Business has been transacted since the chair ruled.
{1491}
Mr. KERR. I would like to discuss the appeal on the point of order.

Mr. EVANS ( Weber). It should have been discussed at that time.

Mr. CANNON. I trust the gentleman will withdraw his appeal, for the reason that I think about everybody has spoken who desires to.
        
Mr. BUTTON. I would like to have the gentleman discuss that appeal, and I want to diccussit. I think there is a mistake before the house.

Mr. EVANS (Weber). I make the point of order, that when the chair ruled no appeal was taken. And it has been discussed for twenty or thirty minutes since that. An appeal must be promptly taken at the time, and not let business be transacted.

Mr. KERR. I did not understand that the chair had ruled upon the question. I was waiting to give the gentleman who made this motion an opportunity to reply without shutting him off, since a number of others had spoken, and I understand that the appeal had not been decided.

Mr. HART. Mr. President, if I remember rightly, there was no expressed decision of the chair at that time. There was a sort of a tacit decision. I would not like to shut off debate here and stop the gentleman from Weber, who has the floor, from talking, yet as a question of parliamentary law there can be no doubt about the position taken by the gentleman from Cache (Mr. Kerr), for this reason, that if it is not a motion to suspend the rules, then the motion to reconsider is out of order.

Mr. EVANS (Weber). I raise the point of order upon Mr. Hart, that he is not talking to any question now before the house.

Mr. HART. I am talking about the appeal by the gentleman from Cache.

The PRESIDENT. The chair will rule the appeal out of order. As I stated previously in regard to this matter, as the discussion has gone on, the gentleman should be permitted to speak.

Mr. EVANS (Weber). Mr. President, I am in favor of a reconsideration of this motion, and I do not believe that any sufficient reason has been given why it should not be reconsidered, and why different action should not be taken by this Convention. It has been argued here that it will take the question of school and municipal officers, and judicalofficers, out of politics. Now, we know, gentlemen, that that is not true in the light of the history; of this Territory. Of course, we are yet new converts of the school of politics, new converts are always more zealous than old ones. There was an instance in Provo where they undertook, at a separate election, to nominate school officers, and the people of that city bolted the citizens, the nomination. We know it was exactly the same at Ogden, where we had but one school election; no other election was present, and the citizens in one of the wards bolted the ticket, and the voters elected their trustees. We all know that. While it is very nice in theory to separate these elections, and keep them from the whirlwind of politics, yet we know when we face the condition of things that they. are not kept out of politics.

There was an effort made here when the people elected their delegates to this very Convention to make it non-partisan. The people were not in a temper of mind to do so, and it was impossible to accomplish it. Even when we convened here, another slight effort was made to make the Convention somewhat non-partisan. It was made partisan by the election of the president and all the subordinate officers, right down to the chairmen of committees. When a constitutional convention cannot be made {1492} non-partisan, tell me, gentlemen, what can or what ought to

be? But gentlemen say that if we elect our judicial officers, and school officers, and municipal officers on the same day, it will have a tendency to keep the election out of politics. Why, gentlemen, don't you know that municipal elections are the most red-hot elections that are ever held anywhere? Talking about trading a judicial officer for a constable! What about trading a judicial for an alderman, or a councilman, or a justice of the peace, and all those subordinate officers, right in the very locality where these people reside, where they have their friends? We are running side by side with a councilman and an alderman and a mayor, a State officer.

Mr. GOODWIN. There is no such proposition.

Mr. EVANS (Weber). I am referring now to the argument of brother Thurman, wherein he states that there will only be two elections. He says the State officers will be elected on one day and the school, judicial, and municipal on another.

Mr. THURMAN. I said nothing about trading, did I?

Mr. EVANS (Weber). No. The trading part_I had reference to the gentleman who interrupted me. But, gentlemen, if you have these three sets of officers elected on the same day, you will have politics of the most rank character, trading in the most insolent manner, and if you undertake to separate those elections and hold the municipal election on one day and the judicial elections on another, and the school on another, then you will have four elections instead of one as there should be, or at the outside not more than two. I bay that it is almost unprecedented in the United States, and I challenge the contrary_to elect State officers on the same day that municipal officers are elected. And yet that is the very proposition which confronts this Convention, and we must do that unless we separate those elections and make two out of them instead of one; and if we made two, then we will have three. Why, in the Legislature of 1892, the Legislature wisely consolidated many of the elections in order to keep the Territory out of political turmoil and trouble, and yet it was not sufficientiy consolidated. Elections were too many then, but the way this Constitutional Convention is now arranging these elections, gentlemen, we will have more than we ever had in Utah, and we will keep the Territory in constant turmoil and trouble, when we ought to be at peace in transacting the business we are carrying on.

Mr. ALLEN. Mr. President, quite a number have expressed themselves that because this was thoroughly considered once, it should not be reconsidered. Now, there have been two different days or two half days at any rate when the Convention got in a humor of voting down everything that came along. I remember once that the gentleman from Salt Lake said, “There is no use voting down everything that comes along in this manner.” Therefore, he moved to have it laid over until another day. It was so on the day this was passed. We got in the habit of voting down everything that came along and we spent half a day on this section.

Mr. THURMAN. And is not it a fact that on the very day you speak of this Convention struck out five or six sections of the article reported by the committee?

Mr. ALLEN. Not the half day. We spent a half day on this section. You speak about blaming somebody because they had expressed themselves as not being aware this passed the Convention.

Now, I will say, as the gentleman from Utah one day acknowledged before the people of the Territory in this Convention, that when be voted for bounties, he did not know what he was doing, that he was in the same {1493} condition as he blamed men on this floor for. As for making it non-partisan, if the people wish to make it non-partisan, why not, just at the time of holding caucuses, get together and say, “Boys, let's have a non-partisan ticket and work up a non-partisan ticket as far as possible, as far as judges are concerned?” This is not impossible. I cannot see where anybody is going to gain anything by having this election separate, unless it is during the campaign, as these newspaper men generally make a pretty good haul. Now, the gentleman from Utah comes at me with this kind of a statement, saying that because I was defeated on a motion on that day, I now work it up among the members, trying to get the matter reconsidered. The fact of the matter is this, the gentleman from Utah_this is his hobby. In the committee, he is the man that brought this up and urged it through the committee, and he now wants to hang to that after two-thirds or three-fourths, I believe, of this Convention want this matter changed. He still comes along with some kind of a scarecrow and tries to force us to uphold his own measure.

Mr. THURMAN. You were a member of that committee, were net you?

Mr. ALLEN. No, sir; I was not.

Mr. THURMAN. You were there, were not you?

Mr. ALLEN. No, sir; I was not.

Mr. THURMAN. How do you know that was my hobby in that committee? As a fact that committee was absolutely unanimous. You are talking about something you do not know anything about.

Mr. ALLEN. Was not that your motion? Was it not at your motion that was placed in there?

The PRESIDENT. The chair cannot permit this kind of conversation.

Mr. ALLEN. I have a statement of a reliable man on that committee. If he wishes me to, I will bring the man to him. To be sure, there has been brought before this Convention, while the majority were in favor and had expressed themselves as being in favor of a certain measure_because gentlemen like the gentleman from Utah would use the words niggardly and stingy, and all these kind of stigmas, then we were afraid to vote and he gained his point. Now, he has come at us in this form for the purpose of gaining this measure that he himself is the father of.

Mr. KERR. Mr. President, I move the previous question.

The previous question was ordered.

The PRESIDENT. The question is on the motion to suspend the rules and reconsider this section

14, now numbered, I believe, section 9.

Mr. VARIAN. Mr. President, I desire to submit a point of order, and in order that I may submit it intelligently, I want to state what I now understand to be the fact. An entire article relative to a distinct subject, to-wit, suffrage and elections, has been passed under the rules, on the third reading, and is now in the hands of the committee on compilation and arrangement. Is that true?

The PRESIDENT. That is true.

Mr. VARIAN. It Is now proposed by a motion made to reconsider, not the vote by which the entire article passed, but to reconsider that vote, by a section; that is to say, we are to eliminate in some intangible way, unknown to anybody and inconceivable in the mind, a part of that from the other_segregate it out so far as it applies to section 14, and reconsider that, and bring up section 14 again?

The PRESIDENT. That is the motion.

Mr. VARIAN. I undertake to say, gentlemen, that a moment's reflection will convince every gentleman in this house that that is absolutely, utterly, out of order, and impossible in the very nature of things. I make that point of order.

Mr. EVANS (Utah). I arise to a question of personal privilege. I want to ask {1494} the gentleman from Salt Lake if this body has not got the power to undo anything they have done from the day this Convention began in regard to their rules? This is a motion to suspend the rules for that purpose.

Mr. VARIAN. I will answer that by saying yes, with this qualification: It can, upon the final consideration of this entire Constitution, change anything that is in it. They can, if they choose, reconsider the vote. They can suspend the rules now and reconsider the vote by which the entire article was considered, and recall it from the committee on compilation, but they cannot undertake to recall a section or a line or a phrase, or two sections, or any part of it; and if you do that you will be simply in a disturbed and confused condition Lora which you will never come out satisfactorily. If you want to do that, make your motion to reconsider the entire article, and recall it from the committee.

Mr. EVANS (Weber). Mr. President, this seems to me a very peculiar thing indeed. Mr. Varian admits that this body has the power to undo and change its work as a whole, but he denies the power to change a section or a word. That is to say, he admits the power to rip up the entire instrument and change it, but denies the power to change a section of it. It is not in the parliamentary law that any parliamentary body with the power to act cannot reconsider a section and change its rules, and change its work if it finds it has made a mistake.

Mr. RICHARDS. Mr. President, I think that the position of the gentleman from Salt Lake who raises this point of order was not correctly stated by the gentleman who last spoke. I do not understand that Mr. Varian says that this Convention could reconsider the whole article and then

could not reconsider a portion of it, but he says it must be done in an orderly way, and I think he is right about it. I do not think there is any sort of question about it that the first thing to be done in order to bring the question before this Convention at all is to move to reconsider the vote upon the article. Then, if that should prevail, and the article then, as an article, is before this Convention, a motion to reconsider the action upon any section of that article, or to amend a section of it, might be in order; but it certainly cannot be in order until it is brought before the Convention in an orderly way.

Mr. EVANS ( Weber). I would like to ask Mr. Richards what rule of order it follows? We are under Roberts's rules of order, which say that two-thirds of the Convention can change its rules.

Mr. RICHARDS. I say it follows every rule of order.

Mr. RICKS. I arise to a point of order. I don't think the gentlemen have a right to discuss this question.

Mr. EVANS (Weber). The orderly thing to do is for the president to decide this. It is not debatable now. We have all been out of order.

Mr. CANNON. I would like to ask Mr. Varian if the gentleman who made the motion to reconsider should modify it slightly in its form, if it would not accomplish the same result and yet obviate your objection_if he should move to reconsider the vote on the article?

Mr. VARIAN. I admit this, that this Convention can reconsider by a two-thirds vote and bring back any article. I am only contending against the absurdity of attempting to bring back a paragraph or a section of an article.

Mr. THORESON. Wasn't this same rule applied for the reconsideration of section 1 of this same article_a motion to reconsider made by the gentleman himself?

Mr. VARIAN. Never. It seems impossible for me to make myself clear to the gentleman. There was never such a proposition mooted before in this {1495} body, and I doubt if it ever was thought of in any other body.

Mr. NEBEKER. I arise to a point of order. I hold with the gentleman from Salt Lake    

Mr. RICHARDS. I arise to a point of order, that the gentleman is out of order until the chair decides the point of order now before the Convention.

The PRESIDENT. It seems to the chair that this body of men is competent to suspend its rules at any time it may think proper and. to consider any proposition involved in this Constitution before they shall adjourn.

Mr. RICHARDS. I appeal from the decision of the chair, if that is a decision against Mr. Varian's point of order.

Mr. EVANS (Utah). I arise to a point of order. This question that has been appealed from is undebatable.

The PRESIDENT. The point of order is well taken.

Mr. VARIAN. What is that_an appeal is undebatable?

Mr. EVANS (Utah). Yes, sir; if the question appealed from is undebatable.

Mr. VARIAN. A motion to reconsider is not debatable? Is it the disposition of this chair to rule this matter as the chair desires it to be ruled? If it is, I will retire.

The PRESIDENT. No, sir.

Mr. VARIAN. It seems to me that way. I will ask the chair if a motion to reconsider is not debatable?

Mr. EVANS (Weber). Mr. Varian will you permit me to

Mr. VARIAN. No, sir; I will not. I will ask that question now.

The PRESIDENT. Yes, sir; it is debatable.

Mr. VARIAN. This is an appeal, is it not?

Mr. EVANS ( Weber). This is a motion to suspend the rules, and that is not debatable.

Mr. VARIAN. I do not care if it is a motion to suspend the rules. I understand that. It is a motion to suspend the rules and bring back from the committee on compilation one section of an article. That is what it is. Now, what do your rules say? They say that after the entire proposition shall be passed by a final vote, it goes to the committee on compilation and arrangement. What is the vote you are going to reconsider? Not the vote by which this section was adopted. I do not know whether there was any specific vote on that or not. In accordance with the usual custom here, that section was passed simply with the reading. No amendments were offered to it. It was included with the others in the final vote upon the proposition as an entirety. How can you move to reconsider a vote which never was taken in the adoption of this section in the sense here? The motion is to reconsider the vote by which section 14 was adopted. It never was adopted by a specific vote. The entire article, including other propositions connected with section 14, was adopted by a specific and definite vote. You cannot segregate it in that way. It is the clumsiest blacksmithing of parliamentary law that ever was projected anywhere. Section 14 was adopted because other sections were with it. As a whole it was adopted. Now, if you want to open up the question, move to reconsider the vote, out of order and against your rules, by which the entire article was adopted, and let the entire article come back here so that we can view it in all its

phases, comprehend it in all its possibilities. If section 14 shall be amended, it may be necessary in accordance therewith to amend section 15 or section 10 or section 1. Is there any scheme behind this which makes gentlemen so tenacious of the point that will prevent us from bringing back the entire article? If there is any reason, gentlemen, why this section must be amended, it must be a good reason. If there is any reason why this article should be amended, it is a good reason, and I am {1496} sure will not only get two-thirds of the vote of this house, but it will secure the unanimous vote of this house. I only ask you to put it on proper grounds. I do not know how section 14 is proposed to be amended, but I can see that it may be amended in such a way that in my judgment, and perhaps in the judgment of others, it might be necessary to amend section 16, and we would be met with the proposition that we only have section 14 back here.

Mr. HART. Mr. President, there can be no doubt, in the first place, but what this appeal from the decision of the chair is debatable. If the point was relating to indecorum, then it would not be debatable. When the previous question is pending, an appeal is not debatable, but, Mr. President, the previous question that was put here was out of order, because the motion at that time was to suspend the rules, and the previous question could not apply to an un-debatable motion, which that was, to suspend the rules. Now, in regard to this other point, I would be only too glad to eliminate that word judicial and have the judicial elections come at the general elections, but there can be no doubt about the position of the gentleman from Salt Lake, that the only way to reconsider that question is to reconsider the vote on the whole article, and if by a two-thirds vote we open up that question, then every section in that whole article will be open for reconsideration. All the debate this morning was out of order from beginning to end. If we were going to reconsider this question, we should have, without debate, decided to reconsider the article as a whole. You cannot take out one of those sections from a whole article that was passed, on a vote to reconsider. And another reason for the point of order is that that whole matter is before the committee on compilation and arrangement. How can we reconsider something that is in their hands without calling it back and getting it before the Convention?

Mr. FARR. Mr. Chairman, I have sat here a whole half day listening to talk that to me should not have been said, and should have been settled here in two minutes, and I claim that I have some experience in convention rules and in convention order, and if this Convention, after they have passed on the third reading of an article, say that one section now they would like to consider, we do not want to consider anything more, we are satisfied with all the rest, but section 14 we would like to have brought up, and there was a motion made to do it, and when the question is put two- thirds say we won't have it, that is the end of it. I think we could settle that in two minutes, three hours ago, just as well as if we had spent all that time; and if two-thirds had said we want to recall section 14, and consider some things in that, and no other, we are satisfied with all the rest, and if two-thirds say, we will call it up, they have a right to do it. And now what is the use of spending all this time on that subject? I have been waiting here. I had a section already written out with one-third or one-half of the wording that is in that section 14, that will cover the whole business. I have not been able to get my feet on the floor because there are so many that wanted to let out the gas that was in them, and I told you here four weeks ago that I had arranged my business to remain here all summer, if necessary.

Mr. GOODWIN. Mr. Chairman, I want to make an explanation. This thing came back from the

committee on compilation because there was a difference of opinion in the committee; the notes were confusing, and as I understood it from the first, they wanted simply an expression of this Convention as to what that amendment was, whether it included the word judicial or not. It was in the interest of the committee {1497 - JUDICIARY} on compilation that this thing was brought up.                                        

The question being taken on the appeal from the decision of the chair, the Convention divided, and by a vote of 34 ayes to 51 noes, the decision of the chair was not sustained.

Mr. SQUIRES. Mr. President, I now move that the rules be suspended and the entire article on elections and suffrage be brought back from the committee on compilation and arrangement, that the vote be reconsidered by which that article passed.

Mr. THURMAN. Including woman's suffrage and everything else.

The question being taken on the motion, the Convention divided, and by a vote of 44 ayes to 46 noes, the motion was rejected.

The Convention then proceeded to the third reading of the article entitled judicial department.

Sections 1 and 2 were read.

Mr. CHIDESTER. Mr. President, I offer an amendment to section 2, by striking out, commencing with the word “the,” in line 10, down to and including the word “years,” in line 14, and insert the following:

The State shall be divided into three supreme court districts as follows: The first district shall be composed of the counties of Cache, Rich, Box Elder, Weber, Morgan and Davis. The second district shall be composed of the counties of Summit, Salt Lake, and Tooele. The Third District shall be composed of the counties of Beaver, Carbon, Garfield, Grand, Iron, Juab, Kane, Millard, Piute, San Juan, Sanpete, Sevier, Uintah, Utah, Wasatch, Wayne and Washington. The qualified voters of each of said districts shall elect the said judges for the term of six years.

Mr. ROBISON ( Wayne). Mr. President, I hope that amendment will not prevail; the classifying of the counties in that district would not be suitable at all, and it would not add any to the benefits of the people, but it would be very much the other way, and I shall vote against that proposition.

Mr. JOLLEY. I would like to ask the gentlemen from Garfield a question. There would be only the three judges that would fill those different districts?

Mr. CHIDESTER. There would be one judge from each district that would compose the supreme

court of the State.

Mr. GOODWIN. Mr. President, I hope that will not be considered. The idea is to have three of the very best men for the place, no matter where they come from, and all the people to help pay for their services and all the people to vote on them.

Mr. ANDERSON. Mr. President, I hope this amendment will prevail. I think that it enables the people to be better represented. Each part of the Territory, if this amendment prevails, will be represented, and I do not think that the State will suffer any in consequence. Therefore, I shall vote for the amendment.

Mr. VARIAN. Mr. President, this is a startling proposition. It seems to have been incubated since we discussed this question in the committee of the whole. So far as I am concerned, I supposed we had reached a tacit if not an express understanding on that matter. Is it designed to open up this entire question of the judiciary, in order that we here who differ from our friends from the extreme south and north on these questions may also be enabled to present our particular views by way of amendments and substitutes, and make an attack upon this article as it comes from the committee? It seems to me, Mr. President, that we had reached a fair understanding on this matter, and it ought to go. I confess {1498} I do not understand the purpose of this motion. That it is not meritorious, I am quite convinced. Justices of the supreme court ought to be the representatives of the entire people, just as much so as your governor. They are called upon to administer and determine the laws for the entire people. They are the expounders and protectors of this Constitution, which extends its protecting influence over the entire people. The man in Logan, the man in Saint George, ought to have the equal right to voice his choice in the selection of candidates for all three of these high and distinguished positions. He is equally interested with his neighbor at the other end of the Territory. Every county is equally interested with every other county. It ought not to be and shall not be a question of locality. It is simply the men that shall be looked to_the qualifications and characteristics of the candidates who shall be selected by this entire people to constitute that august tribunal in whose hands shall lie the liberties, the property, and the lives of this people. I protest against this attempted innovation. It does not prevail under our system of government anywhere. The highest court in the State is and ought to be composed of men who are selected from the body of the people, from whatever section or locality they may come. Do not gentlemen see that it is all important that all sectionalism, that all local prejudice ought to be and must be eliminated from this tribunal? And you are now attempting to inject into the organization of the supreme court these very things which ought not to be there, to send men from local places, feeling that they are representatives of districts, bound and tied by the prejudices of their respective communities. Naturally you will find that these matters will be given expression in the consultations and in the decisions of the supreme court. What is the theory of the organization of the supreme court of the United States? That it shall be selected by the President through his power of appointing its several members from the great body of the bar of the United States. When it can be done, due consideration is always given to the wishes and the preferences of certain localities as represented by states and sections of the Union, but never in the sense that is attempted here by this amendment. If it had been so, sir, I would like to ask you, and through you this Convention, what would have been the result in the expounding of the Constitution during the last hundred years, which has resulted in building up and maintaining the

liberties of this people? I do hope that the amendment will either be withdrawn or voted down. It ought not to prevail.

Mr. THURMAN. Mr. President, I am a member of that committee which reported the article as it now stands. This proposition was submitted or raised in the committee. The committee, I believe, was about equally divided. There was no minority report. I myself am in sympathy with the principle embodied in this proposed amendment. I do not see that there is anything in it that is un-American. There are certainly precedents for it. I do not see anything in it that is confusing or that is calculated in the least degree to cause a member of the supreme court to be sectional in his decisions and opinions. So far as I am individually and personally concerned, I am perfectly willing that it shall stand in the article as it is, but members have come to me from the various parts of the Territory, without regard to party or anything of that kind, and have insisted that this amendment be made. Waiving any personal feeling that I may have in the matter, if the various parts of the Territory of Utah feel that they want the right to vote for some one man taken from their section of the country, there being only three members of the court, I see {1499} no reason why it should not be incorporated in the Constitution. To be frank, the only feeling that I have in my mind against this amendment is the mere fact that I am a member of the committee and stand here, so far as I possibly can, to help carry to a finish everything that that committee has recommended here, because we did arrive at it We arrived at our conclusions after mature deliberation. As far as this particular provision was concerned, it is almost difficult for me now to understand how the full committee would have voted. I know the only vote I ever cast upon the question was in favor of this principle, but I did not propose to make any fight in the committee until I saw a sentiment from the various part of the Territory that they desired it At the time I voted for it, it carried, but I do not care about going into details about what the committee did. I do not know. At any, rate that. was reconsidered and the other matter prevailed, but I feel that if the outside counties desire to have three districts, so that they can put forth from each district a man for this position, there is nothing un-American about it The Constitution of the state of Illinois has a provision of that kind.

Mr. VARIAN. The constitution of Illinois provides for an intermediate court of that kind, like the constitution of New York, but the court of appeals is at large. I want to ask the gentleman a question. It is a question of local politics now, is it prejudice, so that each section of the country may confine themselves to a member of the supreme court to be elected by them? I want to know if that is the underlying principle while we are making a Constitution?

Mr. THURMAN. I am not aware that local politics is in it.

Mr. VARIAN. I mean by politics, not as distinguishing between two parties, but as between the sections. I understood the gentleman to say that they wanted to have a section of country to which should be allotted a member of the supreme court to act for the entire State?

Mr. THURMAN. Yes; that is the idea. Now, I believe, Mr. President, that I have stated my views upon the question and I shall vote for the amendment.

Mr. VARIAN. Did I understand the gentleman to say as a member of the committee that he

would vote for the amendment?

Mr. THURMAN. I shall vote for the amendment, yes.

Mr. GOODWIN. Mr. President, that is to me a very serious matter. I thought the supreme court would be held above the influence of sectionalism, and that any suspicion of doubt that every man in the State might have the privilege of voting for every one of these supreme judges, would be removed; and that when those gentlemen took their seats on the bench they would understand that they were there because a majority of all the people of the State desired them to be there. It is very strange. In districting the State, or proposed State, for district judges, gentlemen came to me and said, “Do not link our county with the next county to us,” showing evidently that there was an irrepressible conflict between those counties; but they come here this morning and propose another thing, which in effect says, “Do not link our end of the State with the other, and by all means do not link us with the center.” I once saw a gentleman exulting_saw him getting drunk, because a second gentleman had received a high appointment from the President of the United States. Both the gentleman who received the appointment and the one who was getting drunk, were from Kentucky. Another Kentuckian said to this gentleman who was exulting, “Why, I heard you call that man all manner of names, and now you are rejoicing because he has received an appointment.” {1500} “Why” he says, “of course I am, but that was in Kentucky.” It seems to me this is a parallel case. Gentlemen in one part of the State will, among themselves, say all manner of disrespectful things about a certain other gentleman, but when he is put in competition with men from any other part of the State he becomes a perfect gentleman in a moment, and justifies any other gentleman in exulting over his promotion. It is all wrong on principle. Let it go on ten years, and you will see just as much partisanship in the electing of supreme judges and in the feeling toward them by the people as you ever see now in any business where the sections of the State are brought in collision. We had enough of that last week. Even on the simple matter of education, there was. no end of bitterness expressed, and so poorly concealed, that it was apparent_simply on a sectional matter, whether one county should have something or not.

I think it would be an outrage to change this. I do not believe there is any precedent for it. We have divided the State for district judges, and I want to give notice here that if this passes, then I will consider it a notice that every district in this State must be a political district. When it comes to the right place, I shall move for a change of the districts to make them all republican, if that is to be the rule_if that is to be the contest here. If the judiciary is to be dragged down, and we are to either elect them on sectional or partisan grounds, then I, as a member of the committee, give notice that I will do my best to make every district in the State republican.

Mr. RICHARDS. I desire to ask the gentleman who has just taken his seat, if he has not already done his best to make these districts republican? I ask for information.

Mr. GOODWIN. I want to say to the gentleman, that in the committee room there was not one partisan thought, that the only thought was to get these districts harmonious, and to rate them in fair proportion to the population. On complaint of the gentlemen from the south, on account of mountain ranges and other things, the districts had to be changed. I appeal to all the members of the committee, if there was one partisan word spoken, or if there was one act which led any one

in that committee to think that any other one was working for partisan advantage?

Mr. EVANS (Weber). Mr. President, I will say that what Judge Goodwin has said respecting the matter of partisanship in the committee is true, every word of it, and there was never a thought expressed or an idea conveyed, which would tend, in any manner, to give partisan advantage. It is a matter about which I feel very proud, and desire to express it now. I do not want to take any particular part in this matter that is up now, because in the committee we first voted to make the three districts, as proposed by Mr. Chidester, districts for the trial judges, and apportion the number of judges to each of these districts, and then we did take a vote to make these districts supreme court districts, just as it is now proposed, and that carried, but afterwards the districts for trial judges were changed, and then, on a tie vote, the supreme court districts were changed. All I desire to say now is, that I have examined the constitution of Illinois, and I think that my friend, Mr. Varian, was mistaken about a court of appeals being elected by districts. It is the supreme court that is elected by districts in the state of Illinois. They are all set out in full in the constitution, just as Mr. Chidester's motion is set out.

Mr. GOODWIN. Mr. President, before this vote is taken_there are a great many absent, and some are on committees near by. I wish they might be called in.
{1501}
The PRESIDENT. The sergeant-at-arms will notify the members that they are wanted.

Mr. CHIDESTER. Mr. President, as far as this amendment is concerned, we will not press it. If they are not ready, we can go on with something else.

On motion, the Convention then took a recess until 2 o'clock p. m.

AFTERNOON SESSION.

Mr. CHIDESTER. Mr. President, I desire to withdraw the motion that I made to amend section 2, and in doing so I just have this to say, that in view of the fact that concessions have been made to the outlying counties in framing this bill, giving them practically all that they have asked, I believe that it is fair to them and would be right and proper for me to withdraw that motion. I see in addition to that, fire in the eye of my friend, Judge Goodwin, and I do not wish to add any fuel to the flames. Therefore, I wish to withdraw it.

Mr. KERR. Mr. President, I desire to offer the following amendment to section 2; Beginning with the words “the judges,” in line 14, strike out the words down to and including the word “elected,” in line 16, and insert in lieu thereof the following:

The judges of the supreme court elected at the first election under this Constitution, shall immediately after said election be selected.

therefore could be improved, hence I offer the amendment.

Mr. EICHNOR. I would like to ask Mr. Kerr a question. The way the section stands, it contemplates that the judges of the supreme court shall be elected in November next, does it not?

Mr. KERR. Well, the preceding sentences in this section provide, I think, for the election of the judges.

Mr. EICHNOR. Judge Goodwin, is it the intention of the section, the way it stands, that the supreme judges should be elected at the general election in November_that is, the first set of supreme judges, and afterwards according to this rotary system?

Mr. GOODWIN. Yes.

Mr. RICKS. Mr. President, I think that amendment ought to be considered. If, as still contemplated, we amend that section in the article on elections so as to include the judicial officers in the general election, then under the schedule_the schedule committee has already decided to elect all the State officers, this fall, in order to hold office until the general election under the Constitution in 1896. If that amendment be made to that other article, then I think that the section should remain as it is for the reason that the judges elected this fall would only hold their offices for one year and would be elected again, all three of them, one year from next November.

Mr. KERR. Mr. President, by way of explanation, you will observe that the statement here is not qualified “The judges of the supreme court.” That is, all the judges of the supreme court; but the way it is worded in this proposed amendment, only those judges elected at the first election after the adoption of the Constitution, will be selected by lot. That is really all there is to it.

The amendment of Mr. Kerr was rejected.

Sections 3 and 4 were read.

Mr. VARIAN. Mr. President, in view of the amendment made in the committee of the whole, it occurs to me that the word “it,” in line 4, should be supplanted by the words “the court.”
{1502}
Mr. CREER. The word it, is already out.

Mr. VARIAN. Perhaps that is a matter for the committee on compilation. I will not detain the Convention with it.

Mr. GOODWIN. Mr. President, I understood the secretary in reading it to say. “any judge.” There is another section here which gives the Legislature the power to establish inferior courts. Under this would not those judges have the same power in regard to issuing writs?

Mr. VARIAN. Mr. President, I move to insert after the word”court,” in that amendment, the

word “thereof,” so that it would make it returnable before any district court or any judge thereof.

The amendment was agreed to.

Section 5 was read.

Mr. KERR. I would like to ask the chairman of this committee if he has considered the number of miles that some of the judges would have to travel to hold court in the different counties four times a year. In the 7th district, including the counties of Sanpete, Carbon, Emery, Grand, and San Juan, I find that he would have 368 miles to those courts, and returning would make a distance of 772 miles. If he went the rounds of these courts four times a year he would necessarily have to travel 3,088 miles. He would have to travel 330 miles by stage, and those who live in the outlying counties know what it is to travel by stage, summer or winter. Going from Richfield to Piute County, to Carbon County, he would have to travel 128 miles. From Price to Castledale would be 35 miles by stage. Very frequently they have to camp out over night in the sagebrush, being overtaken by a storm even in the summer sometimes. He would have to return and thence to Thompson's Spring, a hundred miles, thence to Moab 35 miles, and from Moab to Monticello, 60 miles. I am sure that our friend from San Juan County can describe the trip down there much better than I can, and I am sure that the majority of the members of this Convention can scarcely realize what a trip down in that country means in the winter time. I don't believe it is possible for a man to make the trip. Now, it seems to me that in some of these outlying districts

Mr. BOWDLE. I arise to a point of order. There is nothing before the Convention.

The PRESIDENT. The point of order is well taken.

Mr. CRANE. Mr. President, I want to state the proposition, whether there is anything before the Convention or not, because I do not believe it is possible for a man to do it, and if this thing is mandatory, he cannot do it. I move to insert at the end of year, in line 7, the words, “until otherwise provided by law.” I don't know whether that would meet the requirements of the case or not. Some of my legal friends here are probably better posted than I am. But it is an utter impossibility for a man to make three thousand miles in winter or summer in these counties. I am informed by the chairman of this committee that that was added the other evening. The secretary has failed to read this amendment that was passed the other evening.

The PRESIDENT. The secretary says there is no such amendment.

Mr. CRANE. I am informed by quite a number of gentlemen by whom I am surrounded that such an amendment passed. I move it now, however, if it did not pass.

Mr. ROBERTS. Mr. President, my recollection of this matter is very distinct, for the reason that it was regarded as a compromise of the motion to make it two terms a year in each county instead of four, and in order to leave it to the Legislature that amendment was submitted and adopted.

The amendment was agreed to.

Mr. KERR. Mr. President, I move that in line 8 of section 5, the word “thirty” be stricken out and the words “twenty-eight” inserted in lieu therof [*note*].

Mr. SQUIRES. I would like to ask the gentleman from Cache who his candidate is? [Laughter.]

Mr. KERR. I think, Mr. President, that we have placed the age of our attorney general at twenty- five years and our senators and representatives at twenty-five. The United States senators need not be older than thirty, the President of the United States but thirty-five. In Georgia, Illinois, Montana, North Dakota, and South Dakota, the district judges need be but twenty-five. In Wyoming, and some of the other states, the district judges are eligible at twenty-eight. It seems to me that for district judges they are old enough, and in some of the districts it may bar men who are thoroughly competent to fill the position as district judge to place the age at thirty.

Mr. GOODWIN. Make it twenty-seven.

Mr. KERR. I will accept that.

Mr. GOODWIN. Alexander conquered half the world at twenty-seven. Make it twenty-five.

Mr. VARIAN. Make it twenty-five.

Mr. FARR. Make it twenty-five and a half.

The question being taken on the motion to fix the age at twenty-five, the Convention divided, and by a vote of 46 ayes to 36 noes, the motion was agreed to.

Mr. EVANS (Weber). I desire to offer the following amendment to section 5, after the word year:

All civil and criminal business arising in any county must be tried in such county, unless a change of venue be taken in such cases as may be provided by law, or upon consent of the parties, in writing, in civil cases.

Mr. EVANS (Weber). I think the article by implication now would require that all the business should be transacted in the county where it arises. My only purpose was to make it certain that all the business should be tried in the county where it arises, and I want to add this with the qualification there of cases where a change of venue might be taken as provided by law. There may be some criminal case where all the jurors in the county are prejudiced and it would be necessary to remove it into another county, and then in civil cases, if parties want to stipulate it into another county, they can do so.

Mr. EVANS (Weber). I think not.

Mr. VARIAN. It seems so to me; that is purely a matter of legislation anyhow.

Mr. EVANS (Weber). Stipulation is a matter, anyway, of consent, and that might be stricken out_that part of it. If there is any objection to that I would ask that that part of it be stricken out.

The amendment as modified was agreed to.

Sections 6 and 7 were read.

Mr. James was called to the chair in the absence of the president.

Mr. VARIAN. Mr. President, I call attention to line 3, the words, “not prohibited by law.” Is it the intention to permit the Legislature to change the jurisdiction?

Mr. EVANS (Weber). Mr. President, my own idea about that is this, that the Legislature might restrict the district court in small cases_not give it jurisdiction in small cases, but give the justices of the peace jurisdiction?

Mr. VARIAN. But would it not also give them full plenary power over the whole subject?

Mr. EVANS (Weber). It would give {1504} a supervisory power to control justices of the peace.

Mr. VARIAN. I mean, if the words, “not prohibited by law,” would not include the whole subject?

Mr. EVANS (Weber). I think it would. I think the Legislature would have that power.

Mr. THURMAN. Mr. President, in the first section, the gentleman from Salt Lake will notice that the Legislature is given the power to create other courts inferior to the supreme court, and necessarily to fix a jurisdiction. Suppose they should want to create a probate court, after trying this system a while, in each county, and give probate jurisdiction?

Mr. VARIAN. If that is the idea, all right. I did not understand it.

President Smith resumed the chair.

Section 8 was read.

Mr. CRANE. Mr. President, was not “precinct” inserted there instead of “county?”

The SECRETARY. Strike out in line 3, section 8, the word “from,” and insert the word “in,” and strike out the word “county,” and insert the word “precinct.”

Mr. GOODWIN. Mr. President, that is exactly the record, but it seems to me that it makes an inconsistency. Every city is divided into precincts and every incorporated town is divided into precincts, and so is every county, and it seems to me if that was to go in it ought to read this way: “Be elected in each precinct of each county, city, and incorporated town.”

Mr. SQUIRES. Mr. President, in Salt Lake City it is the practice to have more justices of the peace than we have precincts. You remember we have had a recent contest on the question of the power of the county court to have additional justices of the peace. The Legislature will provide by general law how many justices of the peace there should be in each precinct in the city and incorporated town. The city of Salt Lake might have more than one precinct under the general law.

Mr. GOODWIN. What is to become of the precincts outside?

Mr. SQUIRES. Each precinct of the county?

Mr. CREER. I would like to ask the chairman of the committee if it is intended that there should be one justice of the peace elected for each incorporated town in the new State?

Mr. EVANS (Weber). It says the Legislature may determine that.

Mr. GOODWIN. Sometimes there are two justices in one precinct.

Mr. CREER. If they incorporate a town, divide it into precincts, that would necessitate having two justices of the peace.

Mr. GOODWIN. I merely wanted it to correspond with what the Convention wants.

Mr. CREER. I do not think we need a justice of the peace in an incorporated town. I think a justice of the peace of the precinct in which the incorporated town will be included is sufficient. Therefore, I move to strike out “and incorporated town.”

Mr. THURMAN. Mr. President, I wanted to move an amendment to that, to strike out “city and incorporated town,” and leave it “county.” We are dealing here with counties, because the number of justices of the peace that each city will have will be provided for by their charters. We are dealing now with justices of the peace of the county. If the Legislature gives each county a certain number of justices of the peace and leaves the commissioners to dispose of that, and they make the precincts as needed, it seems to me that is what we want.

Mr. THORESON. Mr. President, I understand it was amended in the committee, namely, that

“county” should be stricken out and “precinct” retained. {1505} Now, if we want to cut this up with municipal precincts, I have heard some of the gentlemen here speak about precincts of the city. Those are municipal precincts. That would come under the city; but precincts of each county should have a justice of the peace. Cities of the third class in our Territory have no municipal precincts. A certain district or part of the county is designated a precinct. Within that precinct there may be a city of the third class. That city should be entitled to a justice of the peace independent of the precinct justice. The city justice would have jurisdiction under the ordinances of the city, while the precinct justice of the peace would have under the laws of the State. I believe we should have precinct justices and also city justices.

Mr. EICHNOR. I would like to ask Mr. Thurman a question; if the section is adopted according to your amendment, if the cities should provide by ordinance for justices of the peace_if city justices of the peace were provided for by ordinance, would the ordinance be constitutional?

Mr. THURMAN. Why, I think so. I think we are dealing here with another set of officers altogether, but, however, if there is any question about that, then an amendment ought to be made in another way, such as the gentleman may have in his mind, provided that this shall not interfere with such number of justices of the peace as may be provided by law in incorporated cities and towns. I would not object to that if there is any doubt about it, “the Legislature shall determine the number of justices of the peace to be elected from each county in the State and fix by law their powers, duties and compensation.” Now, in my judgment the city charter will provide for that, and of course this law would not interfere with it.

Mr. THORESON. Mr. President, that would give the county courts the power to designate the justices of the peace. I think this is a power that should be left to the citizens themselves. Justice of the peace for a certain county_to designate where these should have their office or residence would be inconsistent, would be giving the county organization power over cities, which I think is a little inconsistent. The ordinance of the cities would provide for justices of the peace, and I think they should be independent of the county organizations.

Mr. THURMAN. I would like to make one suggestion, if the chair will indulge me, in answer to the gentleman from Cache, that the Legislature has the fixing of this number of justices of the peace anyhow; they always will have, whether in the county or whether in the city; there is no question about that, and when we say that the Legislature shall provide for the number of justices of the peace to be elected from the county they certainly will provide that so many be elected for the ordinary precincts, and the law itself will provide the number to be elected.

Mr. CANNON. I would like to ask Mr. Thurman if he would not strike out also the words “from each county;” would it not then give the Legislature the full power and be better than it now is?

Mr. THURMAN. Some power has got to apportion them among the counties. That must be the Legislature.

Mr. CANNON. Would not the Legislature have that without saying, “from each county?”

Mr. CANNON. That is what I offer as an amendment, if the gentleman will accept that.
            
Mr. THURMAN. Yes, sir; strike out all of line 3 and the words “the State,” in line 4.

The amendment was agreed to.

Mr. BOYER. Mr. President, I now move to amend this section by inserting between the words “duties” and “and,” {1506} in line 4, the word “jurisdiction,” and strike out all the remaining portion of the section after the word “compensa-sation [*note*],” in line 5.

Mr. THURMAN. Mr. President, I object to that, because we want to limit the power of the Legislature to extend the jurisdiction of justices of the peace. We do not want them ever to have the power to give justices any more jurisdiction than they have now. They may restrict it but not enlarge it.

The amendment of Mr. Boyer was withdrawn.

Mr. Evans, of Weber, offered the following substitute for the section:

The Legislature may provide for the election of justices of the peace in each county, city, and incorporated town in the State, and fix by law their powers and compensation. The jurisdiction of justices of the peace shall be as now provided by law, but the Legislature may restrict the same.

Mr. EVANS (Weber). Why, it has the power to do that, only it can fix fees if it wants to, just as it does now. We are here creating courts. That is the only purpose of mentioning justices of the peace at all. We are creating that class of courts in pursuance of section 1 of this article.

Mr. THORESON. I understood your substitute for this section fixes the compensation or authorizes the Legislature to fix the compensation.

Mr. EVANS (Weber). It will do that, but of course the Legislature will have power over the cities. The city is only a creature of the State and it might delegate the power to the cities to do that.

The substitute of Mr. Evans, of Weber, was rejected.

Mr. RICHARDS. Mr. President, before passing section 8, I move that the word “but” be stricken out at the end of line 6, and the word “unless” inserted in lieu thereof, and the word “may”stricken out in line 7, and the word “shall” inserted.

Mr. GOODWIN. Would you not change your word unless to “until?”

Mr. THURMAN. Mr. President, I do not believe in splitting hairs. It seems to me that is what we are doing, but the word until implies that the Legislature will do it probably as soon as they get an opportunity. Now, that is not the meaning of it. It means that the jurisdiction shall remain as it now is. But if the Legislature ever chooses to do so, it may restrict it. Now, why is not “but” the proper word?
    
The amendment of Mr. Richards was rejected.

Section 9 was read.

Mr. RICHARDS. Mr. President, I move to insert after the word “court,” in the third line, the following words: “Upon such conditions and under such regulations as may be prescribed by law.” It seems to me that as the section now stands it might give an unqualified right of appeal without complying with the regulations in the way of filing bond, etc., as the Legislature might prescribe, and I think that it is proper that the Legislature should have power to prescribe certain conditions and regulations.

Mr. GOODWIN. I would ask Mr. Richards if his idea is that under this amendment a man could take an appeal without paying costs? If that is the case, I think the amendment good.

Mr. THURMAN. Mr. President, I have an amendment to cover the same ground and including something else with it. My motion is to strike out all of lines 2 and 3 down to the word alone, in line 3, and insert the following:

From all final judgments of the district court, there shall be a right of appeal to the supreme court, under such regulations as may be provided by law. In equity, the appeal may be on questions {1507} of law and fact. In cases at law, the appeal shall be on questions of law alone.

In the article as reported by the committee we provided that an appeal should be upon questions of law alone in all cases. The gentleman from Salt Lake, Mr. Varian, moved to strike out the same words that I now move to strike out.

Mr. THURMAN. He moved to strike out the words “on questions of law alone;” that prevailed. That left it that an appeal could lie upon both questions of law and fact in all cases from the district court. Now, I think he agrees with me that in equity cases that is right, but in law cases where the facts have been found by a jury, the supreme court ought not to have a right to review those facts except it be for purposes of determining the legal question involved.

Mr. EVANS (Weber). I want to ask Mr. Thurman a question, and also Mr. Varian. I am convinced that the way that reads, that in the supreme court you could take your witnesses and have a retrial before the supreme court. I do not believe that either of the gentlemen intend that. It says upon both questions of law and fact, just as an appeal is taken from a justice's court to the

district court, on both questions of law and fact, and there is no question but what a man could go into the supreme court with his witnesses and have another trial, and I do not believe that was ever intended by the mover.

Mr. VARIAN. I call the gentleman's attention to the fact that the all-important provision there is “under such regulations as may be provided by law.” Now, of course, the statute as we have it now, if it is continued over, will regulate that. We must assume that the Legislature will regulate it.

Mr. EVANS (Weber). I think the words, “an appeal on questions of both law and fact,” are well understood and well defined by the courts. It means a retrial of the issue. Now, if they would say, “upon the record,” or something of that kind, so that the supreme court may review the fact in equity cases, it would be all satisfactory, but we certainly do not want to get the idea here that a jury can be called in the supreme court and witnesses can be introduced there and have a trial of the entire issue, and I believe this is broad enough to cover that state of facts.

Mr. VARIAN. Let me call your attention to the fact that in another section the jurisdiction of the supreme court is limited to appellate jurisdiction. It does not mean original jurisdiction.

Mr. THURMAN. It does not mean a trial.

Mr. VARIAN. The general rule in regard to equity causes is that the evidence is taken by what we call depositions; that is, it is taken down in writing; witnesses are never called in equity cases, except in accordance with the code statute, and this means appellate jurisdiction. Whatever may be in the record of the court below would be taken to the court above.

Mr. EVANS (Weber). I would like to call the attention of the Convention again to this matter. 4 am satisfied it is a mistake. I do not believe that there is any gentleman but what would agree with me that an appeal from the justice's court to the district court would be a trial anew before a jury, and the recalling of the witnesses and a reexamination of all the facts. Now, the clause in that section relating to appeals from justices' courts to the district court reads as follows:
And also appeals shall lie from the final judgments of justices of the peace in civil and criminal cases, to the district court, upon both questions of law and fact.

Mr. VARIAN. What interpretation does the gentleman give the word appeal in this amendment? “The appeal {1508} shall be,” on certain questions. That is, the appeal shall be from questions of law and fact. It does not mean the original jurisdiction.

Mr. EVANS (Weber). “And appeals also shall lie from the justice's court to the district court upon both questions of law and fact.” It is an appeal from the justice's court to the district court, just as it is an appeal from the district court to the supreme court, and if it is construed that a trial will be had anew in the district court, from the justice of the peace, then it would certainly be so in an equity case, because the language is identical. I would like to have that amended in some way so that it would be upon the record made in the district court,

Mr. EVANS (Weber). Mr. President, I will offer an amendment to that after the word fact:

In equity cases the appeal may be on both questions of law and fact as made upon the record in the court below.

Mr. THURMAN. I think it is provided for lower down in the section.

Mr. MALONEY I did not know whether I understood your amendment. I am in favor of leaving it to the Legislature. This may not work well and they may want to change it.

Mr. EICHNOR. Mr. President, I do not know how many amendments are before the house, but I am opposed to all amendments. The way it was amended the other day I think it is right.

Mr. EVANS (Weber). Mr. President, I desire to withdraw the amendment which I suggested. I am just like Mr. Eichnor. There is great danger in this section.

Mr. SQUIRES. Mr. President, I am waiting patiently for the lawyers to agree so I shall know how to vote on this proposition. I wish they would put their heads together and fix this thing up.

Mr. EVANS (Weber). Mr. President, I can get this matter before this Convention very readily. I move as an amendment that the words, “on questions of law alone,” be inserted after the word court, in line 3.

Mr. CREER. The words that were stricken out the other day?

Mr. EVANS (Weber). The words that were stricken out the other day, on Mr. Varian's motion, that they may be reinstated.

Mr. VARIAN. Mr. President, I suggest as point of order, that amendment is not pertinent now. It is not an amendment to the amendment, and the amendment to the section covers those three lines. Mr. Thurman offers an amendment to those three lines as a substitute. Now, Mr. Evans conies in with an amendment to the three lines of the section. It is not an amendment to Mr. Thurman's amendment. Mr. Evans must wait, unless he chooses to amend Mr. Thurman's amendment, until we get through with that.

The PRESIDENT. The point of order is well taken.

Mr. EVANS (Weber). Then, Mr. President, as a part of my remarks, I want to state my reasons for voting down the amendments offered. I want to state right here in the beginning that this section was drawn_and I think that I will not be guilty of any breach of courtesy if I name the

gentleman_by Judge Sutherland and other wise lawyers who assisted the committee in this matter of the jurisdiction of courts. It is a well established principle that appeals to the supreme court ought to be on questions of law alone. These words which were stricken out will work a great hardship on those people who are least able to stand it.
{1509}
You let a supreme court have power to review the facts that a district court has had the right to review, and the chances are that the man who is least able to stand the reversals will have to bear the burden. Take it, gentlemen, in cases of railroad corporations, where an individual is injured by a company, and suppose a supreme court has the right to review the facts in that case; suppose a consideration of the facts were not conclusive by the trial court, where it sits and sees the witnesses and their conduct, their manner, and their deportment upon the witness stand, and is capable then and there of judging as to whether the witness is telling the truth or not_take all that away, take the cold record into the supreme court, and permit a review upon the facts, and injury will result to that very class of people who are least able to afford it. It is a well recognized and understood principle of law, that a trial court is the best judge of the facts, and if he tries the case correctly, sees the witnesses, and their conduct and deportment, and determines what the truth is, the facts ought to remain there, and the supreme court ought to have nothing to do except to review any mistakes or errors which might have occurred by reason of some question of law. Some gentlemen might say that the supreme court would not even have the right to examine into the evidence for the purpose of ascertaining whether the facts alone justified the verdict; but that is not true. If all the facts taken together do not as a matter of law justify the verdict, the supreme court will reverse the case. But this principle of permitting a supreme court that is far removed from the people, and from the witnesses, to determine upon a question of fact which it is the peculiar province of the trial court to determine, is wrong in principle, and ought not to be permitted in a constitution. And I affirm here now that even if the substitute offered by Mr. Thurman be adopted, that there will be a retrial upon questions of fact in the supreme court. Every decision will so hold. Every court will so hold when it comes to construing it. As this is now drawn, it is in conformity with the constitutions that are usually written, it is in conformity with the statutes where the jurisdiction of the courts is defined, and this question here of a departure such as that which is now proposed, is dangerous in the extreme. We might as well abolish our territorial courts altogether, and just have a supreme court, who can review the facts_with judges that are far removed from the people, that are not so closely in touch with them as these trial judges who sit, and see and examine the evidence carefully, scrutinize the witnesses, know the impulses and environments, and all that_to take that away from those courts would be an outrage, a shame, and unprecedented. So that I say, that the words which were stricken out the other day ought to be reinserted and the section left just as it was reported by the committee.

Mr. VARIAN. Mr. President, it seems to me the gentleman is not using his usual discrimination. This is not a question of appeal to prejudice. It is not a question of railroad corporations, nor one of the trial of causes against them. I quite agree with him, and I think my friend Mr. Thurman quite agrees with him, that in law cases_that means all cases that under any circumstances can be tried by a jury_the determination of the question of fact ought to end with the trial court; but we have in our system a system of equity law which never has been and probably never will be subjected to the trial by jury. It is entirely distinct in every way. Until within a few years, in the

states of the western coast and in New York, the evidence in that class of cases was never taken before the court in person, by the witnesses appearing in person. It was taken by deposition or in writ ing {1510} and it was passed upon by the trial court and the appellate court, questions of law arising in such cases being so necessarily connected and involved with the questions of fact, which, ever shifting and changing as they do, present new phases and questions of equity law. So that in the main you may say that an equity cause is always a question of law. Now, we quite agree with my friend, Mr. Evans, upon this question, and when these words were stricken out the other day, it was with the avowed purpose and the distinct understanding, as I remember it, that some substitute would be arranged for, to cover the ground, to be presented at this time. Mr. Thurman has presented that substitute for those words, making the distinction clearly between law cases and cases of equity. It is the distinction that is preserved in the Constitution of the United States, in the seventh amendment, which provides that in all cases of a trial by jury, the question shall not be reviewed in any other way except as at the common law. That is, by the trial courts. There the matter ends, just as my friend suggests, but that does not interfere with the equity system which prevails in the federal courts. It prevails, here for that matter. Now, all that is asked by this substitute is that it shall be made perfectly clear that the supreme court shall not be restricted of the jurisdiction that prevails everywhere, in every state in the Union and in the federal court, of reviewing questions of fact in equity causes, because they cannot review the questions of law without they review and decide the question of fact appearing upon the record. Nor, do I think that the fear and apprehension expressed by my friend that this language may or will be construed so as to give the supreme court original jurisdiction in those causes is well founded. It means just what it says. First, in a preceding section the court shall have appellate jurisdiction; second, in the exercise of that appellate jurisdiction, it may not in questions of law review questions of fact; it may in equity causes review questions of fact as they are now reviewed and have been ever since the system of equity came into existence four or five hundred years ago. That is all, as I understand it, but if I am mistaken in the construction of my friend's amendment, he may correct me_

Mr. EVANS (Weber). Permit me to ask a question. If an appeal be allowed in an equity case, even upon questions of fact, would not the supreme court have the right to determine where the truth lies, where there is a conflict in the evidence?

Mr. VARIAN. Of course.

Mr. EVANS (Weber). That is to say, if one set of witnesses swear to one state of facts and another set of witnesses swear to another state of facts, you would not let the trial court determine which told the truth?

Mr. VARIAN. Precisely.

Mr. EVANS (Weber). You would permit the supreme court to review that conflict?

Mr. VARIAN. Certainly.

Mr. EVANS (Weber). Is there any authority for that anywhere under our American

jurisprudence?

Mr. VARIAN. Mr. President, I am astounded at the question coming from the source that it does. I am actually astounded. The authority is everywhere. It began with the chancellors from the first in England. It is exercised to-day by the supreme court of the United States, and it is right that it should be. The system is complex. It is very different from the system at law. It is necessary that certain rules which are the fundamental landmarks in the administration of equity jurisprudence should be maintained, and in order to maintain them it is necessary in every case that the facts should be considered. It would be a monstrous proposition if you would confine that system as {1511} you do the legal system, to the determination of the facts in each case, to the trial by jury, to that of the trial judge. You would have a different system in the administration of equity law in every district in the State. Now, that is not analagous at all to the trial by jury. In a case at law, when the facts are to be tried by a jury, they are clean cut; they only relate to questions of fact and are not connected in that sense with questions of law, and the jury find the facts_that is, the man did so or he did not do so; that is, the note was given or it was not given; that is, the fatal blow was stricken or it was not stricken; there was malice or there was not malice; and upon that finding as it shall be expressed, the judgment of the law is pronounced by the court. On all those questions I quite agree with the gentleman that there ought to be no review. It invades the right of trial by jury. But this is entirely a different question. We are discussing now a question of a different system, or at least a different part of the same system of jurisprudence. Equity and law go hand in hand, it is true, side by side; they are determined by different principles, determined in different ways and by different judges, and they ought to be.

Mr. EVANS (Weber). Mr. President, it may be contrary to the rules_I know this Convention has indulged me many times, probably more than it should, but I would like to make a few remarks respecting this question. No one else seems to want to speak. If any one does, I will yield at once. As I understand Mr. Varian now, he would permit the supreme court in an equity case to review a conflict in the evidence. I regret sincerely that he and I should differ so much with respect to the decisions of the supreme court of the United States upon that question, because I never heard it questioned before that the supreme court would not deal with a direct conflict in the evidence, and the reason for it is this, gentlemen: As I stated before, but did not elaborate upon it, the trial court, in a case of equity, has as many conflicts in the evidence as it does in a case at law. He sees the witnesses, examines them carefully. Why, you know, sometimes a man may swear that black is white or white is black, but that does not make it so. The record may show the strongest kind of a case in favor of a client, when you read it coldly as written out, and yet a judge sitting upon the bench might read right in the face of that witness a lie in every word and sentence that he utters; and you would permit the supreme court, would you, to pass on that question, when it is without the necessary and essential means of determining the truth or falsity of the testimony? And another thing, if this principle be adopted, that an equity case can be reviewed upon a conflict in the evidence, then take for illustration one of those classes of cases which are familiar to you all. Take a water case among the farmers. One set of witnesses will swear that a certain quantity of water was appropriated at a certain time by a certain person. Another set of witnesses will swear that the appropriation was made prior to that time by the other party. There will be a direct conflict in the evidence. The trial judge in many cases goes out and examines the water ditches; he looks at the quantity of water flowing; he examines the premises. This is frequently

the case in equity cases, not only in water cases, but also in mining cases. He goes down into the shaft, through drifts and stopes and levels, and examines everything to ascertain whether or no the witnesses have told the truth. Now, gentlemen, if this cold fact can be reviewed by the supreme court, the supreme court would not be likely to do these things. It would not examine the witnesses, it would not see their {1512} deportment, probably would not examine the premises, or go into the mines and make an examination to ascertain what the fact is, but would take a conflict of evidence before it, and have the right to determine which set of witnesses told the truth and which swore falsely. I do affirm, that no such system of jurisprudence was ever inaugurated in any civilized government, English or American.

The rule is this, that the chancellor hears all the evidence; from that evidence he makes a finding of fact, which finding of fact may be reviewed by the supreme court, or all the evidence might be taken up with the finding of fact for the purpose of ascertaining whether the chancellor came to the correct conclusion or found the proper facts. And if the evidence shows that he did not find the proper facts, or if the facts do not justify the conclusion, then the supreme court, as a matter of law, reverses the chancellor and his case is retried, but not tried by the supreme court. It is returned to the chancellor again for a retrial where the witnesses can again be summoned and brought into court and examined as they were originally. But this system would simply overturn every foundation principle of American jurisprudence, to permit a supreme court, sitting away from the people and away from the witnesses, to determine what their motives and their promptings were at the time they gave their evidence. This section is right as it stands. It is in the interest of every honest litigant. It is in the interest of the people and in the interest of a good system of jurisprudence. Any other system would overturn that system, which has long since been established.

Mr. THURMAN. Mr. President, when the motion was made the other day to strike out these words, I was the only one who voted against it. I thought it very singular that it was so nearly unanimous, but my voice was so lonesome when I voted that it almost frightened me. Now, I objected, and I went over it with the gentleman from Salt Lake, Mr. Varian, and told him I was dissatisfied with that action, that I did not want the supreme court to have the right to try questions of fact, particularly where they had been passed upon by a jury, and that the verdict of the jury should be final as to facts. He agreed with me that that was the case, but wanted it made applicable to equity, so you had a substitute which provides as it has been read, that the right of appeal is absolute in all cases, under such regulations as may be provided by law. In equity cases, it may be upon both questions of the law and fact. In cases at law it shall be upon questions of law alone. Now, there is an appeal allowed to-day for insufficiency of the evidence, whereby the supreme court can even review the facts passed upon by a jury, and in some cases say that the jury found wrongly. There they passed upon the facts, and I take it that that is what this means, that we do not want to permit the supreme court to pass upon even the sufficiency of the evidence. Because for the trial judge to say to a jury that they shall be the sole judges of the facts and the sufficiency of the evidence and the weight of it, and after they have decided it under those instructions, to have some other man or set of men review that and say that the jury decided wrong, is not to leave the facts with the jury, and for that reason we want it understood here that in cases at law where a jury passes upon the facts, there should be no review of the facts by the supreme court; but in cases of equity that it might continue just as it is to-day under existing law.

Now, I will be frank, it may be my ignorance_if that means anything more than it does to-day, that the court may review the facts for the purpose of determining the sufficiency of the evidence, then I agree with the gentleman and {1513} am not in favor of it, but I take it that that is all It means.

Mr. EVANS ( Weber). I thank you for your kindly expressions on this matter. Mr. Varian thinks the supreme court would have the right to determine the fact where the evidence is conflicting, and I want to call your attention further to the fact that the section as you propose gives the supreme court the right to review the facts. If they have the right to review the facts, have not they the right to review a conflict in the evidence?

Mr. THURMAN. Now, they have a right to review the facts under such regulations as may be provided by law. That is a part of my amendment, and I say that it means more than simply fixing a bond and all that, but that it gives to the Legislature the right to regulate the appeal and the extent of it, and I think that it means exactly what our system is to-day. And in relation to these railroad companies and railroad cases, permit me to say this, that where a case is tried by the court alone (and equity cases are always tried by the court alone) it might be very convenient for the poor man to have some other court have a right to review the facts to some extent.

The question being taken on the amendment of Mr. Thurman, the Convention divided, and by a vote of 36 ayes to 29 noes, the amendment was agreed to.

Mr. EVANS (Weber). Mr. President, I change my vote to the affirmative for the purpose of moving a reconsideration.

Mr. VARIAN. I object. The gentleman cannot change his vote after the decision is announced.

Mr. EVANS (Weber). I cannot vote for this judicial article with that amendment in it, and will not.

Mr. VARIAN. Mr. President, I will say this, if after the section is passed the gentleman requests it, I will give notice of reconsideration myself.

The PRESIDENT. Will that be satisfactory?

Mr. EVANS (Weber). That will be very satisfactory indeed.

Mr. EICHNOR. Mr. President, I move to strike out section 9.

The motion was rejected.

Mr. RICHARDS. Mr. President, I move to strike out the word “an,” at the end of line 3, section 9, and the word “appeal,” in the beginning of line 4, be made to read “appeals.”

The amendment was agreed to. Sections 10, 11, 12, 13, 14, 15, 16, 17 and 18 were read.

Mr. GOODWIN. That was put in and stricken out; I do not remember how. I believe it was on the ground that it did not amount to anything. That is something I am not at all particular about.

Sections 19 and 20 were read.

Mr. EVANS (Weber). Mr. President, I want to call attention to section 19, to show the consistency of the vote taken a while ago. There shall be but one form of civil action, and law and equity may be administered in the same action, You have a case of law and equity mixed. How would that be? Would the case be divisible for purposes of appeal.

Mr. VARIAN. Yes, it is, and has been so.

Mr. EVANS (Utah). Mr. President, I move to amend section 20 by striking out the words, “and mileage.”

Mr. CREER. Mr. President, I have a substitute as follows:

Until otherwise provided by law, salaries of the supreme judges shall be three thousand dollars a year, paid quarterly, and that of the district judges twenty-five hundred dollars a year, paid quarterly, and their mileage.

Mr. EVANS (Utah). Mr. President, I want to amend section 20 by striking out “and mileage,” in line 4, and inserting after the figures 3,000, in line 3, “including mileage.”

Mr. GOODWIN. I want to ask the gentleman a question. In case the mileage should amount to thirty-five hundred dollars, how about the five hundred dollars?

Mr. EVANS (Utah). If his mileage amounted to three thousand dollars, perhaps the Legislature would do something for him, but I do not think it will. I have figured this thing up. I am going to talk on it a little while, if I am permitted. As I remarked the other day. I am opposed to this mileage system, in any way, shape, or form. I think it is very near akin to a fee system, and I think this Convention has decided_will carry into effect the fact that we propose to abolish the fee system. Whenever you have a mileage attached to the office of any individual, you never know what you have got to pay. I think that three thousand dollars is plenty. If it should be found necessary in the Legislature that some incidental expenses ought to be paid after this has had a fair trial, then they would have the right and power to do it, but in every event, or in any event, I believe that three thousand dollars is all this State ought to pay to our judges. I came here fixed in my mind that twenty-five hundred dollars would be sufficient to pay them, and if this shall fail I want to give notice now that I shall move to amend by making it twenty-five hundred dollars, and I shall have strong support in this Convention.

Mr. EVANS (Utah). Yes, sir, I do. I think it is right. I submit to you, gentlemen of the Convention, that if we shall confine it to localities upon the principle that the gentleman has indicated, that Salt Lake City will turn into the treasury five times as much from fees as will these other districts. I submit to you that the cost of living will be much cheaper in these outlying counties than it is in Salt Lake City. I heard it remarked by a gentleman in speaking on this question, and I believe there is a great deal of truth in it, in delivering a lecture, he said that the judges and attorneys live entirely too high. He says, “They have a good time, spend lots of money and die young.” And I am in favor of cutting their salaries down a little so that they will live not quite so high and by reason of that they will live a little longer and not. have so many widows and orphans in our midst, and I am in favor of this being three thousand dollars, and no discrimination against Salt Lake City or anywhere else. We are arguing this question now upon a principle of fixing the salaries as Idaho has done, at three thousand dollars. Let that cover everything. It will make them more judicious in the expenditure of their means in traveling. I presume the longest travel will be from Juab down to Saint George, and upon the actual traveling expenses, computed at ten cents a mile, if they shall make twelve trips it will only be six hundred, and that will leave a salary of twenty-four hundred dollars, but as we have provided, they shall only be required to go four times, and consequently it would reduce that amount and leave that about twenty-seven or eight hundred dollars, and I say that is plenty. This Convention cannot go upon record for {1515} any greater salaries than three thousand dollars including everything, and I shall cast my vote and I want to go upon the record for that.

Mr. CRANE. Mr. President, I have an amendment that I desire to offer that I think will meet the requirements of this case: Insert after the words “payable quarterly” the words, “and the necessary traveling expenses incurred in reaching the several counties in their respective judicial districts.”

Mr. IVINS. Mr. President, I am more opposed to this latter amendment than I was to the amendment offered by the gentleman from Utah, from the fact that it provides that the necessary traveling expenses would be paid without defining anything about what those traveling expenses shall be. And we know how easy it is for men to create large bills for traveling expenses. My opinion is that the section just as we amended it in committee of the whole is the proper thing, and that we ought to pay these men their regular salaries and mileage. They cannot deceive the State, because the map will show plainly the number of miles they have traveled. They cannot report that they have traveled five hundred miles when they have only traveled two. But it is a very easy matter for a man to build up an expense account when there is no rule by which he is governed. This idea of living being cheaper outside than it is in Salt Lake is all wrong. It costs a man just as much to get a meal in Saint George as it does in Salt Lake. There is no article in the market, unless some peculiar product of that country, that cannot be bought for less here than in Washington County, from flour to beef steak, and I say that it is proper that these judges should

be paid three thousand dollars, and they ought to have their mileage, and then let them spend just as much money for incidental expenses as they wish while they are traveling. It will be their own.

Mr. GOODWIN. Mr. President, the idea of mileage was that the actual money paid out in traveling should be returned to the judge. Under the arrangement proposed by Mr. Crane, a man will have to be on the road all the time. He would be away from home continuously. It would be all right if I knew that a Salt Lake judge or attorney would be elected to those long stretches, but the chances are that it would be some man from the lower country, where they are not so scrupulous as Salt Lake attorneys, and the bill would be simply unapproachable. I think the section ought to stand. It is splitting hairs to say that a man would travel hundreds of miles in stages or on a mustang or in a buggy, to get mileage. He gets his punishment. He will earn all that he gets.

The amendment of Mr. Crane was rejected.

Mr. EVANS (Utah). Mr. President, I ask for the ayes and noes on my amendment.

Mr. CRANE. Mr. President, I trust this amendment will not pass. I do not believe that it is right that a man, because he is a judge of a district court, three or four or five hundred miles from the city of Salt Lake, should have his salary reduced lower than that of the judge in Salt Lake. He may be just as good a judge. He may be just as learned in the law, and he has to travel hundreds, and in one district, I find three thousand miles during the year. He has to withstand a great deal of hardship, the burning alkali dust of summer and the blasting storms of winter, and I do not believe that it is right and just that he should be compelled to pay his salary of three thousand dollars or any portion of it for traveling expenses, or that his salary should be reduced in any particular lower than that of the judges of Salt Lake City who have a good office, and no office rent to pay, have library facilities that the judges in the outlying counties {1516} have not; they cannot carry any freight when they go in a buckboard or in their own conveyances, which they will have in going from Summit to Uintah, and I do not believe it is right and just to those judges that they should be compelled to work for a less salary than the judges in Salt Lake, who have all the comforts of home around them.

Mr. CREER, Do the judges in the neighboring states_Idaho, for instance, and Wyoming, get mileage?

Mr. CRANE. I do not know anything about Idaho. I am only speaking of the judges who live outside of this city, who are perhaps just as learned in the law as they are in this city.

Mr. CREER. I wish to say that they have the same duties to perform as these judges will have, yet they receive no mileage.

Mr. CRANE. Mr. President, I will say that Idaho is an entirely different state from Utah, that the traveling is not half as much. The precincts and the districts are not half as large as they are here, and the facilities for traveling are much better than they are here.

Mr. BARNES. Mr. President, I will say that I agree exactly with Mr. Crane. I think in the matter of compensation and fixing of salaries, we should try to be just, and I cannot think it is just to ask a man who is traveling, as has been described by Mr. Crane, to pay his own expenses out of the salary, when whoever may be appointed to sit in Salt Lake City can do so without any expense. It must be evident, I think, to all classes that it must be very much more pleasant and agreeable to sit in a comfortable office here in Salt Lake City, than it would be to travel through those mountain gorges or over the dusty roads, as the case may be. I know it would be, and I think it is manifestly unjust to ask a judge in the outlying counties to thus travel and pay his own expenses out of the salaries of office.

Mr. FARR. Mr. President, I could not do myself justice, nor justice to the person that got up this motion to exempt expenses of mileage from this, without saying something. It comes so near to my proposition of two thousand dollars a year, I think it is nothing more than due that I should get up and support the gentleman that has made this motion, and I certainly shall support the motion that the mileage be exempted from this section. I am satisfied from the dense population here in Salt Lake City, that they will have about twice or three times the time to spend in court to what they will have in these outside counties, and the time will be taken up, and they can well afford to pay the extra mileage to what the judges do in this city, and I think it will make it about equal to what it would be to be confined here in this city and attend the great number of courts they will have. Consequently, I will support the motion.

Mr. HAMMOND. Mr. President, I am opposed to the amendment and in favor of the section as we left it at our other discussion. As I have observed, if altered at all, I would favor an increase. Now, sir, as you may know personally, I traveled that country for the last ten years and have worn out five buggies. The last one you helped bust out yourself. [Laughter.]

The PRESIDENT. I did not intend to do that.

Mr. HAMMOND. It is a hard country on buggies and teams and men. Our judges that are worthy of being judges of counties like San Juan should certainly have their mileage added to their salaries. I have no idea of their cheating us, as has been observed here. The routes_the county roads and cow trails, as some one has observed here {1517} before, are well known, and there is no possibility of their cheating us at all, and I am in favor of leaving the section as it stands.

Mr. KIMBALL (Weber). Mr. President, I should oppose the motion of the gentleman. My experience for a number of years in travellingthrough this Territory has demonstrated the fact that it costs on an average of five dollars a day to travel. Now, if we take this from the judges' salary of eight, and include some incidental expenses, it would figure him down to a bare living, and I certainly oppose it, but I would support the proposition of a less amount including mileage.

Mr. VAN HORNE. I would like to ask the gentleman from Utah what the use is of putting in the words, “including mileage?”

Mr. MURDOCK (Wasatch). Mr, President, I trust the motion to strike out mileage will not prevail. Undoubtedly those who are in the outside counties realize the fact that they need as competent judges to sit in cases where they are interested, as those do who live in cities and places where the judges will not have to travel, and to cause them to pay their mileage, or to pay it out of their salary, would indicate a cheaper judge for the outside districts. I certainly contend that we want just as good a judge for the outside counties as the people have that dwell in the more thickly settled counties; and further, it appears to me that if we compel them to pay their own mileage, they will not come to see us very often. I venture to say they will not make more than four trips in any outside county if they have to pay the expenses of those trips, and, as has been stated, there may be cases in which their services are much needed, but if they are under the obligation of paying the expenses to go to those counties, I am inclined to think they will not go oftener than is provided by law, and I trust that no delegate from an outside county will vote in favor of them paying their mileage, for I believe if he does he will be voting against his. own interests and against the interests of his county. I do not know that I blame those that live in counties where the judge does not have to travel and where probably he will reside, for being opposed to mileage. They will keep the judge at home all the time and will have his services right at hand.

The roll was then called on the amendment offered by Mr. Evans, of Utah, with the following result:

AYES_24.
Boyer
Brandley
Chidester
Coray
Creer
Cunningham
Evans, Weber
Evans, Utah
Farr
Halliday
Lemmon
Lowe, Wm.
Lowe, Peter
Low, Cache
McFarland
Peters
Raleigh
Ricks
Robertson

NOES_65.
Allen
Anderson
Barnes
Bowdle
Button
Buys
Call
Cannon
Christiansen
Clark
Corfman
Crane
Driver
Eichnor
Eldredge
Emery
Engberg
Kerr
Kimball, Salt Lake
Larsen, L.
Larsen, C. P.
Lund Maeser
Maloney
Maughan
Miller
Morris
Moritz
Murdock, Wasatch
Murdock, Summit
Nebeker
Page
Peterson, Grand
Peterson, Sanpete
{1518}
Francis
Gibbs
Goodwin
Green

ABSENT_15.
Adams
Cushing
Hughes
Kiesel
Kimball, Weber
Lewis
Mackintosh
Murdock, Beaver
Partridge
Preston
Robinson, Kane
Snow
Symons
Varian
Whitney.

The president declared the amendment lost.

Mr. ALLEN. Mr. President, I want to explain my vote. Inasmuch as Mr. Evans has given notice that he will move for twenty-five hundred, I will vote no.

Mr. CREER. Mr. President, just because the Convention did not make it twenty-five hundred dollars I vote aye on this.

Mr. JOLLEY. Mr. President, my opinion is that we have got these salaries five hundred dollars too high, but I do not believe that there should be any distinction made in the judges wherever they may be. Therefore, I vote no.

Mr. EVANS (Utah). Mr. President, I move that three thousand be stricken out and that twenty- five hundred be inserted.

The roll being called on the motion, the result was as follows:

AYES_38.
Allen
Barnes
Boyer
Brandley
Call
Chidester
Coray
Creer
Cunningham
Engberg
Evans, Weber
Evans, Utah
Farr
Gibbs
Halliday
Heybourne
Howard
Jolley
Kimball, Salt Lake
Larsen, L.
Lemmon
Lowe, Wm.
Lowe, Peter

NOES_51.
Anderson
Bowdle
Button
Buys
Cannon
Christiansen
Clark
Corfman
Crane
Driver
Eichnor
Eldredge
Emery
Francis
Goodwin
Green
Hammond
Hart
Haynes
Hill
Hyde
Ivins
James
Keith
Kearns
Kerr
Larsen, C. P.
Lund

ABSENT_15.
Adams    
Cushing    
Partridge
Preston
{1519}
Hughes        
Kiesel            
Kimball, Weber     
Lewis            
Mackintosh        
Murdock, Beaver
Robinson, Kane
Strevell
Symons
Varian
Whitney.

PAIRED_2.
Johnson        
Lambert.

Sections 21, 22, 23, 24 and 25 were read.

Mr. RICHARDS. Mr. President, I move that all of line 3 and all of line 4, except the last two words, be stricken out.

Mr. CRANE. That amendment has already been passed.

Mr. RICHARDS. I thought so, but if there is any doubt about it, I move it be done now.

Mr. EVANS (Weber). I move as an amendment, Mr. President, to the motion, to strike out the entire section 25. I do not do this for any affront to the honorable chairman of the committee. Of course he understands that, but it is wholly unnecessary for any purpose whatever. There is nothing in it that is so essential that it shall be made constitutional. It simply provides that the supreme court shall pass upon all the points fairly arising, and if a judge dissents he shall give his reasons in writing. These are things that are always done by every supreme court. It seems to me to be wholly unnecessary and I therefore move to strike it out.

Mr. RICHARDS. I think it should be made definitely the duty of the judges of the supreme court to make their opinions in writing and file them. Of course it is the general practice, but still it ought to be expressly stated.

Mr. MALONEY. Mr. President, this is a provision in several of the constitutions of the United States. It was put in at the special request of a number of members of the Salt Lake bar. I do not think a court ought to decide a case without considering fairly all the points in the case. I shall support it as reported by the committee.

Mr. RICHARDS. My recollection is that a motion similar to this prevailed. There did not seem to be any opposition at that time to this proposition. I desire to say this: Suppose a case is taken up and there are a half a dozen or a dozen different points raised in the case and one point is decisive of the case, why should the supreme court be required to go on and write an opinion upon the eleven other points that are raised in the case when one point decides it? It is unusual. It seems to me to be not only unnecessary, but undesirable that this thing should be done. The supreme court of the United States, when they consider a case and conclude to decide it upon any one point, if that point is decisive of the case, it decides it upon that point and says it is not necessary to consider other points, and so with other courts.

Mr. BOWDLE. Mr. President, I am not in favor of striking that out. The idea, I take it, for putting it in here is this: There is a case comes up to the supreme court; there is one point that would decide the case, but there is another point that is equally decisive, and a third that would be equally decisive. Now, the court, we will say, decides on this point, leaves the other two points yet to be litigated, and the idea, as I take it, that prompted that suggestion was that very thing, that when the points are properly before the court, to save litigation they should decide that question. Now, that is the gentleman from Weber's suggestion.

Mr. EVANS (Weber). Mr. President, I agree with all these things and agree that it is purely for the Legislature to deal with. Why put in this little trivial matter in the Constitution. Our laws already provide for it practically, and they will be continued in force by the {1520} schedule, and if any abuses of this kind arise the future Legislatures can easily deal with it, and there is no use encumbering the Constitution with it at all.

Mr. MALONEY. Where is the law already in existence that covers this point?

Mr. EVANS (Weber). Covers the objection of Mr. Richards that the supreme court shall render its decision in writing, that is all. They always do that.

Mr. EICHNOR. Mr. President, I hope the amendment of Mr. Richards will prevail. One of the first law cases I ever read, appealed to the supreme court of the state of Pennsylvania, was taken up by the silver-tongued orator, Daniel Dunn, and he had seventeen points to be decided upon, and the first point decided the case. Why should the supreme court of that state, or any other state, if an attorney would appeal a case and raise seventeen points when the first point or second point or third point decided the case, burden the record with dwelling on sixteen other points which could not change the decision?

Mr. EVANS (Weber). Isn't it true that lawyers get up twenty or thirty or forty or fifty assignments many times, and it would require the court to pass upon all of them?

Mr. EICHNOR. Correct.

Mr. EVANS (Weber). It would make a decision that nobody would want to read.

Mr. THURMAN. I believe I can answer the question as to why it is wise to do this; it will save litigation in the future. If a dozen questions fairly arise upon the face of the record and the attorney appealing the case relies upon each one of them and sends them up, and the supreme court decides every one of them, whether they are necessary or not, there is no man that will ever appeal on any one of those questions again, because the supreme court has made it the settled law of the land. It is in the interests, I think, of decreasing litigation. That was the object of the committee. It is not an unusual thing. There are a good many of the states requiring that thing in their constitutions to-day. I am not very particular about it so far as am concerned, but to say that there is no reason for it_there is reason.

The amendment of Mr. Richards was rejected.

The motion of Mr. Evans, of Weber, was rejected.

Sections 26 and 27 were read.

Any judicial officer who shall absent himself from the State or district for more than sixty consecutive days shall be deemed to have forfeited his office; provided, that in cases of extreme necessity, the governor may extend the leave of absence to such time as the necessity therefor shall exist.

Mr. THATCHER. Should not we place some limit of time_say four months or six months?

Mr. EICHNOR. It is discretionary with the governor.

Mr. SQUIRES. Mr. President, I notice a difference of thirty days between these two propositions.
Mr. Varian's first motion was to make it sixty days, and that was amended at the request of some of the lawyers present here to ninety days. Now, the substitute comes in and restores the old time, {1521} sixty days. I move to strike out sixty from that substitute and insert ninety.
Mr. EICHNOR. I will accept that.

Mr. GOODWIN. Mr. President, I do not want to say anything except that the public deserves something. If a judge is incapacitated by illness more than ninety days that is his misfortune.

The substitute of Mr. Eichnor was agreed to.

Mr. THATCHER. Mr. President, before we vote on this as a whole_in section 12, I would like to ask whether the letter “a,” in line 2, before the word compensation, is stricken out or not? I move to strike out the letter “a.”

The amendment was agreed to.

Mr. THATCHER. Mr. President, I shall now move to strike out entirely section 24, and if that does not prevail, I shall move for the insertion of a word giving the Legislature power to limit as well as extend; on the third line, inserting the words “or limit.” I think it is well enough fixed at four and six years.

Mr. VAN HORNE. Mr. President, I hope that that will not be done hastily. The committee considered very carefully the term of the judges and fixed upon the term, and they thought that the Legislature might consider it desirable to extend the term, but in no instance would it be for the good of the people to have the Legislature limit it.

The amendment was rejected.

Mr. EVANS (Weber). Mr. President, I hold in my hand a motion to reconsider section 9, which is made by Mr. Varian. He asked me to present it in his absence.

The same was read as follows: “Mr. Varian moves to reconsider the vote by which the amendment by Mr. Thurman to section 9 was carried.”

Mr. SQUIRES. Mr. President, I understood Mr. Varian to say that after this article had been adopted he would file that motion to reconsider.

Mr. THURMAN. Yes.

Mr. EVANS (Weber). No, that is not it at all. We will have another seance just like we had to- day on the election article, because all he moves to reconsider is section 9.

Mr. CORAY.. I desire to ask, did not the vote we took this morning decide that a section could not be reconsidered after the final vote?

Mr. SQUIRES. Not if the motion to reconsider is made at the proper time. This morning we were trying to suspend the rules to reconsider. It is a different proposition.

Mr. THURMAN. Mr. President, I have seconded this motion to reconsider, but I would like to look the question up a little this evening.

Mr. RICHARDS. Would it not be as well to withdraw this motion for the time being, in the absence of Mr. Varian, and let the matter be continued until it can be further investigated? Will Mr. Evans withdraw the motion for the time being?

Mr. EVANS ( Weber). Certainly.

Mr. RICHARDS. Then I desire to submit an amendment to section 26, after the word “of,” in the section line, to insert the word “all,” so that if we are going to have these judges decide all these different points in the record, then I desire the syllabus shall show them all.

Mr. EICHNOR. Would not that make a very large syllabus to each case?

Mr. THURMAN. Does it not mean that now?

Mr. RICHARDS. I think that means that now, by a fair construction, but the supreme court will interpret this Constitution, and I want to put it in such a position that if the point is decided in the opinion it will appear in the syllabus, and that is certainly to the interest of every person who has to refer those decisions.

The amendment was agreed to.

Mr. GOODWIN. Mr. President, I move to adjourn until to-morrow morning.

Mr. CHIDESTER. I arise to a point of order. The time is fixed.

Mr. MALONEY. Mr. President, I move to reconsider the action of this morning that we take a recess until 7:30 this evening.

Mr. RICKS. Mr. President, I desire to submit a report.

The committee on schedule, future amendments and miscellaneous, reported an article on schedule, which was ordered printed and referred to the committee of the whole.

The motion of Mr. Maloney was agreed to.

Mr. KEARNS. Mr. President, I move that when we adjourn, we adjourn until 9 o'clock to- morrow morning.

Mr. EVANS (Utah). Mr. President, I move as an amendment that we take a recess until 7:30 o'clock this evening.

The amendment was rejected.

The motion was agreed to.

The committee on salaries of public officers reported as follows:

Committee Room,

April 25th, 1895.

MR. PRESIDENT:

Your committee on salaries of public officers herewith report an article entitled salaries, and recommend its insertion in the Constitution.

Files No. 8 and 133, which were referred to the committee, are herewith returned.    

R. MACKINTOSH,

Chairman.

The PRESIDENT. Mr. Varian is absent. If there is a proposition to amend section 9, it seems to me

Mr. EVANS (Weber). Mr. President, I just want to say on this question of reconsideration_the motion is now made to reconsider section 9, and has been seconded. All I shall contend for is that if the motion to reconsider be carried, I shall want the section as reported by the committee, It was carefully and intelligently drawn. It is a matter of safety that we should leave it as it was. I do believe, as I stated to you before, that the article as now amended is in a very dangerous condition.

Mr. THURMAN. Mr. President, I am not going to contend over this matter any longer. I shall withdraw my substitute unless the house objects.

Mr. SQUIRES. It has already passed.

Mr. RICHARDS. Mr. President, I submit when the gentleman who offers the substitute states here that he will withdraw it, we certainly ought to vote for a reconsideration.

Mr. ANDERSON. Mr. President, I hope that we will reconsider this question. I think if there is any doubt that this is ambiguous, or is liable to two constructions, it should be changed.

Mr. THURMAN. Mr. President, I want to be understood on this floor. As far as I am concerned, I do not have any doubt about the substance. I think I know what it means; but in the first, I was in favor of this as it now reads in section 9 in the printed article. I alone voted against the striking of it out in this house.

Mr. EVANS (Weber). I voted with you.

Mr. THURMAN. I feel, so far as I am concerned, that there is no doubt about {1523} it, but I am in favor of the section as it stands there. When Mr. Varian succeeded in getting that language struck out of this article, as a compromise I offered a substitute. Now, if Mr. Varian, himself, wants to reconsider this whole matter, I withdraw my substitute and let the section stand_it won't stand, but the words may be reinserted without any opposition as far as I am concerned.

Mr. MALONEY. Mr. President, this Convention passed upon that deliberately. I do not think Mr. Thurman has the right to withdraw his substitute when we passed on it.

Mr. THURMAN. Well, I say as far as I am concerned.

Mr. MALONEY. I think it should be left the way it is.

Mr. CANNON. Before the roll call is had, I desire to ask the chairman of the committee on judiciary a question_whether the construction placed upon section 1 the other night is correct, where the language is used “and such other courts, inferior to the supreme court, as may be established by law,” and if there any question but that the Legislature could establish the probate courts, if they saw fit so to do?

Mr. GOODWIN. There is not, unless the probate court is higher than the supreme court.

Mr. CANNON. Could they in any way reduce the number of district courts, or would that require constitutional amendment?

Mr. GOODWIN. They cannot reduce the number of district courts.

Roll call on adoption of the proposed article on judiciary, as amended, resulted as follows:

AYES_83.
Anderson    
Bowdle    
Boyer
Brandley
Button
Buys
Call
Cannon
Chidester
Christiansen
Clark
Coray
Corfman
Crane
Creer
Cunningham
Eichnor
Eldredge
Emery
Engberg
Evans, Utah
Farr
Francis
Gibbs
Goodwin
Green

NOES_4.
Allen    
Evans, Weber    
Low, Cache
Raleigh.

ABSENT_19.
Adams
Barnes
Cushing
Driver
Haynes
Hughes
Mackintosh
Murdock, Beaver
Partridge
Preston
Robison, Kane
Strevell
{1524 - MINES AND MINING}
Johnson    
Kiesel                
Larsen, C. P.    
Lewis
Symons
Varian
Whitney.

During the roll call the following explanations and statements were made:

Mr. EICHNOR. I vote aye, but I express my disapproval of section 9 most emphatically.

Mr. EVANS (Utah). I want to say that I disapprove of sections 9 and 20, but I shall cast my vote aye.

Mr. HAMMOND. I am satisfied with all the sections except section 5. I shall vote aye on the article. I wanted all these officers to be married men.

Mr. RICHARDS. I vote aye on this article, but I express my disapprobation of the article, in so far as it does not provide for probate courts, and I am not satisfied with section 9.

Mr. SNOW. I vote aye, but like Mr. Richards, I disapprove of not incorporating probate courts.

Mr. CREER. I am not satisfied with section 20, but I vote aye on the article.

The PRESIDENT. The article has been adopted and will go to the committee on compilation.

Mr. THURMAN. Mr. President, I give notice now that I will move to reconsider this article for the sake only of reaching section 9, if I find that I am mistaken in the law. I do not want to be responsible for any mistake. I tried a while ago to get the matter over.

Mr. PIERCE. Mr. President, I move you that we do now adopt the recommendation of the committee of the whole upon the article of mines and mining.

Mr. EVANS (Utah). Mr. President, I do not understand there is anything to adopt. The article was stricken out in toto.

Mr. ANDERSON. Mr. President, I hope this motion will not prevail. I hope it will be voted down. I have two or three sections here which I wish to offer if this is voted down. Irrigation, agriculture, and mining are the chief industries of our State, and we have scarcely anything about them in our Constitution. I have some sections which I think it is necessary to incorporate. I hope this motion will be voted down.

Mr. EVANS (Weber). Mr. President, I believe it is desirable that there should be something said in the Constitution about mining. The committee of the whole struck everything out. Now, if the report of the committee of the whole be not adopted, why, then that of course will bring up the article on mining for a third reading. I simply wanted to say that much so that the Convention would understand that if the report of the committee be voted down, then the article on mining is before the Convention for the third reading.

The motion of Mr. Pierce was rejected.

Mr. RICKS. Mr. President, I understand now that the report of the committee is before this

Convention just as it was in the beginning, with three sections.

The PRESIDENT. That is correct.

Mr. EVANS (Weber). Mr. President, I move that the article on mines and mining be made a special order for tomorrow morning.

Sections 1, 2, and 3 of the article were read.

Mr. KEARNS. Mr. President, I want to offer a substitute for section 3, taken from the Idaho bill of rights, as follows:

Section 3. The necessary use of lands for the construction of reservoirs, or storage basins, for the purposes of irrigation, or for rights of way, for the construction of canals, ditches, flumes, {1525} or pipes, to convey water to the place of use; for any useful, beneficial, or necessary purpose, or for drainage; or for the drainage of mines or the working thereof, by means of roads, railroads, tramways, cuts, tunnels, shafts, hoisting works, dumps, or other necessary means to their complete development, or any other use necessary to the complete development of the material resources of the State, or the preservation of the health of its inhabitants, is hereby declared to be a public use, and subject to the regulation and control of the State.

Mr. RICKS. Mr. President, I move that the section just adopted be stricken out.

Mr. HART. Mr. President, I arise to a point of order. It is not proper.

The PRESIDENT. Roll call on the article.

Mr. BOWDLE. What are you calling the roll upon?

The PRESIDENT. On the whole article.

Mr. RICKS. Mr. President, this question has been discussed by this Convention probably more than any other, except the woman's suffrage question, and on four or five different occasions we have voted

Mr. KIMBALL (Weber). I arise to a point of order. The roll call had been started, and any discussion now is out of place.

The PRESIDENT. The point of order is well taken.

Mr. RICHARDS. Mr. President, I ask unanimous consent to call attention to one thing in section 2. It seems to me that this cannot be as I understand it. It can hardly be intended by this Convention that the Legislature shall provide by law for enforcing safe development and ventilation. I understand that the Legislature has power to enforce the development of all coal

claims. I submit if a man has a patent to coal lands, is it right that the State should enforce the development of them? I submit we are passing something hastily that we do not appreciate the force of. That is what this means.

Mr. SHARP. This says, coal mines operated in this State; that means that if they are mines that are being operated

Mr. THURMAN. I would like to ask that this vote be postponed until tomorrow morning.

Mr. JAMES. Mr. President, I sanction the gentleman's request.

Mr. RICHARDS. It is going too fast, that is the trouble.

Mr. WILLIAMS. It is going too far. It is building hoisting works, building dumps upon public land, etc., that we have not had time to consider, and it has no business here.

Mr. KIMBALL (Weber). I arise to a point of order.

The PRESIDENT. The secretary will proceed with the calling of the roll.

The roll was then called on the adoption of the article, but was interrupted by the following:

Mr. CANNON. Mr. President, I decline to vote, for the reason that I have no time in which to consider this substitute which was offered. The president did not state the question and ask for remarks, and no time was given in which remarks could be made or any amendment offered.

The PRESIDENT. The gentleman must vote either aye or no.

Mr. CANNON. I will vote no.

Mr. CHRISTIANSEN. I decline on the same grounds.

The PRESIDENT. The gentleman must vote either aye or no.

Mr. EVANS ( Weber). Mr. President, I ask unanimous consent that the matter lay over.

Mr. BOWDLE. No, I object.

Mr. IVINS. Now, Mr. President, I want to arise to a point of order. This last section, that it is designed to add to this bill, and which I hurriedly endorsed, was read, and the roll call was demanded before a member had a chance to get on his feet, and the clerk called {1526} one or two names. Now, I claim that that is contrary to all rules of order, to pass an important matter of that kind before a man can get on his feet to offer an amendment to it or make a remark, and consequently, I believe that the calling of the roll is out of order until an opportunity has been had to amend this section if members wish to do it.

Mr. IVINS. I do not want to vote it down.

Mr. HART. Mr. President, I believe it is the sense of this Convention that that section should be passed, but I am in favor of giving members time to consider it. This thing of having crowded down their throats_while I would like to see the particular section passed, I do not believe in seeing it passed in this way. I would like to see that thing go over until to-morrow morning.

The PRESIDENT. The secretary will proceed with the calling of the roll.

Mr. RICHARDS. I desire to supplement to the suggestion made a request that the third section be printed. I submit that the gentlemen of this Convention do not know what they are voting on. I do not know. I have heard that section read once, but no man can from hearing it read once appreciate the importance of it, and understand intelligently what he is voting on, and I do protest against being compelled to vote on something that I don't understand and have not had an opportunity to inform myself upon.

Mr. HART. Mr. President, I move we adjourn.

Mr. SQUIRES. I am going to make an appeal to the gentlemen of the Convention. If there are any men here who are the friends of the mining interests of this Territory and who are the friends of the agricultural interests of this Territory, I say to them, you do not want to put anything into this Constitution that will be hurtful. Now there can no harm come to either one of those interests by deferring this until to-morrow morning. Give everybody time to look at it and then they will come here tomorrow morning to vote for it intelligently. I ask unanimous consent in view of these things.

The Convention then adjourned.