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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.


TUESDAY, March 5, 1895.

The Convention was called to order at 10:30 a. m. by President pro tem. Kimball.

Roll call showed a quorum present.

Prayer was offered by Rev. T. C. Iliff, of the Methodist Episcopal Church. The journal of the first day's proceedings was read and approved.

Mr. RICHARDS. Mr. President, I move that the oath of office be administered to those Delegates who are present this morning and who were not sworn in yesterday.

Mr. JOLLEY. Mr. President, before we proceed, I would like to say that J. L. Jolley and Mr. Peterson went down to the Chief Justice and took the oath. If it is necessary, we will take it again.

The PRESIDENT pro tem. That is not necessary, I think, sir.

The oath was then administered to Messrs. Thatcher and Hammond.

Mr. CHRISTIANSON. Mr. President, I, in connection with Mr. Jolley, took the oath yesterday.

Mr. PIERCE. Mr. President, I would suggest that the records ought to be amended in such a way as to show that these two gentlemen took the oath, that our record would be complete; and they would prima facie be entitled to participate in the proceedings; otherwise, the record would not show that they had taken the oath.

The PRESIDENT pro tem. That oath was taken privately, was it, before the Chief Justice at chambers?

Mr. JOLLEY. Yes, sir; in his office. Chairman Crane was present.

The PRESIDENT pro tem. In order that it might get on the minutes, we can order the minutes to show that they took the oath before the Chief Justice on yesterday.

Mr. EVANS (Weber). I would like to inquire of the gentleman who it was that was present when the oath was taken.

The PRESIDENT pro tem. Mr. Crane, he says.

Mr. EVANS (Weber). Who?

The PRESIDENT pro tem. Mr. Crane.

Mr. EVANS (Weber). Oh! [Laughter.]

The oath was then administered to Messrs. Thatcher, Hammond, Jolley, and Christianson.

The committee on credentials then presented its report, which was read.

Mr. VAN HORNE. Mr. President, I move you that the report of the committee as received be referred back to the committee with power to investigate {14} and report upon the qualification of the members-elect from the third precinct of Salt Lake City.

Mr. EICHNOR. I second that motion.

Mr. VARIAN. Mr. President, before the vote is taken on this question, I desire to make some observations to the assembly in support of the points that I shall make; that you are absolutely without jurisdiction in the premises. It is true, a body of this kind has the physical power; a member may cast his vote through and because of his own volition to do an act which, joined with the votes of others, may result in the consummation of something; but he has not or may not have the legal right to do it; and I know that every member of this body_every gentleman who accepts a seat in the Convention, appreciates the dignity and responsibility of his position, so that he will not knowingly violate law, concerning any vote he may have to give.

I desire to call the attention of the gentlemen, first, to the fact that this is not yet the Constitutional Convention of Utah. It is a preliminary assembly of persons who have been prima facie shown entitled to do_what. To participate in the permanent organization; nothing more has been done. You have under the statute law and the parliamentary law, written and unwritten, which has been handed down ever since the British Houses of Parliament were constituted, no authority as a deliberative or as a legislative body. The question presented involves the power of a legislative body to judge of the qualification of its members. I affirm that right (speaking for myself), in its fullest extreme and to the fullest extent. In the absence of some higher authority controlling the deliberations of the body called into existence by that very authority, it must of necessity exist. It involves the very right of representation and free government. But we have not reached that stage of the proceedings yet; we are not yet a legislative body; we are still bound by the law which called us into existence, and which has itself determined the qualifications of those who shall be called upon to organize permanently this Convention.
I had supposed on yesterday that this question was so well settled and so well known that it would not be seriously controverted, but reading in the papers this morning the suggestions that had been made concerning it, and being confronted with a motion which involved the determination of this question by this body, through its committee on credentials, I ask the gentlemen present to bear with me for a few moments, so that I may, if possible, convince you, as I have convinced myself, that we lack the very essence of the right here_the power.
The Enabling Act prescribes that the election for delegates to this Convention shall be conducted, the returns made, the result ascertained, and the certificate of persons elected to such Convention issued, in the same manner as prescribed by the laws of the Territory at the present time. Those laws, and taking into consideration the act of Congress, which gives them potency and effect, require the issuance of certificates of election by a returning officer or board. The act of Congress

provides that that shall be the only evidence_that is what it says_the only evidence of the right of the person claiming a seat, to sit in the first instance. This is not a new question. If there were not anything in the statute concerning it, it would doubtless be governed by the general rule which governs in all such cases, that where there is a requirement by statute of official documentary evidence, by way of certificate, as evidence of the right of a person to an office to which lie claims to be elected, that he, for the time being, and he alone, is the incumbent. And in its application to legislative bodies the rule, as you will see, is laid down in these terms practically. {15} And whether he be rightfully or wrongfully elected, he sits until the power of the legislature may be exercised, after investigation and inquiry, after a hearing at which everybody interested may be heard, shall determine to the contrary, and put in his place the man who shall have been found to have been legally elected.

Mr. Cushing, in his great standard work on the law and practice of legislative assemblies, lays down the doctrine thus:

“The right to assume the functions of a member in the first instance, and to participate in the preliminary proceedings and organization, depends wholly and exclusively upon the return of certificate of election, those persons who have been declared elected and are duly returned being considered as members until their election is investigated and set aside, and those who are not so returned being excluded from exercising the functions of members, even though duly elected, until their election is investigated and their rights admitted.”

Further, he says:

“It follows, therefore, that wherever these two principles_freedom of election and equality of representation, are admitted to be fundamental, as they are in all the constitutions of government in this country, the manner of conducting elections, which has been established by the law and the evidence agreed upon beforehand to authenticate them, cannot be varied or departed from in any important particular consistently with the very nature of a representative government, and consequently, that the only evidence by virtue of which any one can rightfully assume or be permitted to assume the functions of a member of a legislative assembly under such a form of government, is the return of certificate which contains and embodies the results of the proceedings at the election as decided upon by the returning officer.”

And further:

“The principles of parliamentary law applicable to the question are perfectly simple and plain, founded in the very nature of things, established by the uniform practice and authority of parliaments and confirmed by reason and analogy. These principles are as follows: First, that every person duly returned is a member, whether legally elected or not, until his election is set aside. Second, that no person, who is not duly returned, is a member, even though legally elected, until his election is established.”

In the same line stands another writer, Judge McCreary. I read from his work on election:

“The regular certificate of election properly signed is as we have seen to be taken as sufficient to authorize the person holding it to be sworn in. It is prima facie evidence of his election and the only evidence thereof which can be considered in the first instance and in the course of organization of a

legislative body.”

He goes on to say, touching the question of the qualification of a member who holds the certificate and speaking of a challenge made to his qualifications:

“It is to be presented at the earliest possible moment after the meeting of the house.”

That does not refer to the preliminary organization. Further he says:

“It is to be observed in the outset that when a number of persons come together, each claiming to be a member of a legislative body, those persons who hold the usual credentials of membership are alone entitled to participate in the organization, for it is as we have said and had occasion several times to repeat, a well settled rule that where there has been an authorized election for an office the certificate of election which is sanctioned by law or by usage is the prima facie written title.”

So another writer, Mr. Paine, on the law of election, relative to this subject matter under discussion, says:

“The certificate of an officer charged by law with the duty of ascertaining, declaring, and certifying the result of an election is conclusive evidence of the result, except in a statutory or parliamentary contest which can only be made before a legally constituted and organized assembly with jurisdiction to determine the question.”

That is, the qualification of its own members.

Mr. Cushing says, in another place, in relation to the question of determining the right of members to seats in the legislature or in a legislative body:

“Each branch when duly organized and without waiting for the organization of the other may proceed to the transaction of any business of which it {16} has exclusive jurisdiction by itself and which does not require the intervention of the other, and therefore until both are organized should not send the above mentioned notices to the executive. In the meantime either branch, as soon as it is duly organized, may proceed for example to investigate and settle the rights of claimants to seats.”

Now, sir, in the case here, as we are informed by the report of the committee on credentials, the representation from a certain precinct in this city is not here.

So far as this body is now informed there has been no return made; it cannot know officially that there has been an election In that precinct; it cannot know that until it is formed into the Constitutional Convention, with power and jurisdiction to determine the question from its proper and appropriate committee, to make investigation, to call witnesses and determine from evidence who it is that is entitled to represent, if any one, that precinct in this Convention. It does not necessarily follow as a matter of course that anybody is, because there have been cases and there may be again where nobody is elected to represent the people in a particular locality, owing to this, that, or the other cause, as the case may be.

I call attention now to what Judge McCreary says, who, as you know, was a distinguished and

very learned circuit judge of the United States for many years and won chief distinction as a text writer and particularly on this subject:

“There is still another class of cases which have arisen in the lower house of Congress in which neither party holds credentials, the governor or other returning officer having refused to declare either to be elected, [that would seem to be this case] in some of these cases, the house, (after its organization) has undertaken, upon such documentary evidence as it has been able to bring before it without delay to decide the case and order one or the other to be sworn in pending the controversy. Of course the house must in each case of this character, judge whether there is before it sufficient prima facie evidence of the election of either one of the claimants, but as a

general rule, it is believed that in the absence of credentials none should be admitted to the seat in advance of an investigation by a committee, after a report thereon, and such special inquiry and report can scarcely be possible unless there is something in the nature of credentials or of written evidence of the election of one or the other claimants. If the returns are duly certified the house might act upon these or if there is an informal certificate the house may order an inquiry into its effect, but if there is no record or other documentary evidence to show what the result of the election was, it is believed that a full investigation upon the merits should precede the swearing in of either applicant. If the house finds it is obliged to take testimony generally to decide the prima facie case, it will generally find that it cannot stop short of hearing all the evidence and deciding upon the merits.”

That seems to fit this case; it appears by the report from the committee on credentials that there has been no return made from the third precinct of this city and county, but it appears that affidavits have been filed tending to show that certain persons named therein were duly elected.

It is not possible, gentlemen, without overturning all the traditions and customs and laws of the century, to permit the simple filing of an affidavit that a man was elected to take the place of the certificate required and provided by law and determine the very question.

I do not doubt that when this Convention shall have been organized that through its appropriate committee it may reach out its arm and take control of this question, but it cannot determine it summarily; it has no right any more than a court of justice to pass upon questions of this kind in a summary way, or without full notice and full hearing and a fair trial. And its report again is subject to the challenge, to the inspection of the Convention, whose duty it will be to review it and go through it again. Neither is it an answer to say that if this thing is not done some portion of the people of this Territory will for a time and a time only probably remain unrepresented in the Constitutional Convention. It is better for the {17} interests of the State, it is in the line of public policy that the organization of a body like this should not be delayed pending the determination of contests of this kind or of claims of this character; better that people should be unrepresented all through the session than that the whole people should for even a day remain unrepresented as they are each day that is passed in this manner by adjourning from day to day awaiting the return of a committee sent out by a preliminary organization.

Mr. Paine says in that line on that subject:

“The proposition that it is better to have the seat occupied even by an intruder than to have the district temporarily unrepresented is unsound; it is subversive of the very fundamental principles of popular representation,”

and as I read before, Judge McCreary supports him in that.

Now, then, where is your authority for this? There is none. What is the necessity for it? Is it one that will bear the light of inspection? Is it true that it is done in order to qualify any particular person to become an officer of the permanent organization of the Constitutional Convention? I submit these questions to you, each of you who are entitled to vote here at this time. First, do you believe in your conscience and your hearts, under your oath, that you have power to do it, and second, do you believe that if you have the power or do it, you deem it to be expedient and feasible to exercise it under these circumstances? Do you propose to present to those who are to come after you in this Territory by the record made here of this first and greatest legislative body that will ever be held in it, the spectacle of 102 representatives practically representing the entire Territory dawdling away their time from day to day, spending the money of the people of the United States, over four hundred dollars every day, to await the result of an investigation which may go into days, may last weeks, to determine whether the third precinct of Salt Lake City shall be represented by five men, and who they shall be? What reason is there for it? Is it a dignified spectacle that we are going to present to the world and to the people of the Territory? The spectacle of being unable to perfect a permanent organization without going into an election contest and inquiry in this particular stage of the proceedings, and unable then, unless that election contest and the inquiry concerning it shall result in a particular way; that is what it means and it cannot be disguised nor can it be juggled out of existence. That is the spectacle that the delegates who are to form this Constitutional Convention when it shall be organized will present to the people of the Territory and the people of the United States. That is what the record will contain, whether in terms or not, that they had delayed their organization, in order to ascertain whether it were possible to reach a certain result concerning an election contest coming from one precinct in the entire Territory.

I, for one, am not willing to vote towards such a determination; I don't believe that this assembly at this time has the power to open up that contest. I don't believe that you have the power to determine upon affidavit first, whether a precinct should be represented or not_that is to say whether there was a lawful election; whether any one of the candidates represented in the election had the qualifications to take the seat as a member of the Constitutional Convention; whether any one of the candidates received a sufficient number of votes to authorize his admission; because all those matters must, if this Convention when it is organized performs its duty, be gone into and determined, and that must be determined after a hearing and a trial. As a matter of common knowledge we {18} know that there have been and are conflicting claims concerning this particular precinct; there has been a great deal of excitement, considerable irritation, perhaps some bitterness growing out of the matter, as it has been presented to the public during the past two months. While as men we know that there is not one of us that knows as judges where the right lies. You cannot say that you do, and you cannot one of you say that you ever will until you sit down and carefully and with unbiased minds and unclouded judgments, in so far as you can produce such a state in yourselves, and determine the question as you are bound to do it regardless of party fealty or of any allegiance, except your allegiance to the Constitution of the United States.

I appeal to you now, Republicans and Democrats_I appeal if that is not the case. I appeal to you not to write this shameful record here upon the history of this Constitutional Convention in the very beginning of its life; remember that the future will sit in judgment upon the past and the time will come when every act that we do here will be called to our recollection and in different frames of mind and perhaps under different conditions and circumstances, we will pass upon the question ourselves and for ourselves, and condemn or praise our conduct as we think it deserves. I appeal to you to stop. It is not worth it. The game, (to use a common expression), is not worth the powder. You cannot afford to do it. I cannot afford to do it. We cannot afford to make a record like this. It is our duty, whatever our feelings may be, whatever our desires may be, to go on with this organization and to take up this question and any other of a similar nature, if there should be one, in the legal and parliamentary way, having power to act and power to decide. Suppose you carry this motion: your committee conforms to it upon evidence sufficient or insufficient, as the case may be, reports a representation for the third precinct; and suppose those gentlemen take their seats; one or more of them take positions or hold office in the Convention, and after a contest when the Convention is fully organized, a hearing is had before this committee on privileges and elections, and it should be honestly determined at the expiration of the time that there had been a mistake_upon a fuller and a fairer and a more candid hearing_and it would be found the duty of the Convention to notify the gentlemen who had been seated by the temporary organization, which is not the Convention, to step down and out, what sort of a spectacle would this Convention present? I mean these delegates when organized in the Convention as they will be. I appeal to you to think of those things, not to dilly dally along here day after day to accomplish a purpose which, however righteous and just under ordinary circumstances, reaches now under the conditions to the dignity of almost a crime. It is an offense against parliamentary law, it is an offense against statutory law, it is an offense against the law of representation, to keep this Territory unrepresented during the period that will be occupied here until this matter shall be determined, unless_and of course I do not assume that_unless, Mr. President, it is already determined. There should be no question about that. It is either one thing or the other; either this means there is to be a hearing or it means that the question has been determined without a hearing. If there is to be a hearing, anybody that is interested has a right to be heard and take up the time of the committee and the time of the temporary organization in support of his claim. If there is not to be a hearing, why refer it to a committee at all? If it is to be done by the physical force of votes, they can be called here, and under the general law of the land_the {19} parliamentary law, if there is a majority of votes in favor of that proposition, it will be carried.

I submit this to you, gentlemen, in all seriousness, and trust that you will not be carried away into so grave and serious an error, that you will not permit yourselves to make such a mistake as will be made if this matter is prolonged and carried out as indicated by this motion.

Mr. THURMAN. I would like to have the motion read.

The Secretary then read the motion.

Mr. VAN HORNE. Mr. Chairman and gentlemen of the Convention, as the mover of the motion, it becomes my duty to speak to the question of whether it shall prevail or not. You have heard an

argument against the motion. With you will rest the question of whether it is right, whether it is just, whether it is equitable, and whether it is legal, that that motion shall prevail.

To begin with, I will say that, so far as I, the mover of the motion, was actuated, I made that motion with a full adherence and a full recognition of the solemn oath I took on becoming a member of this Convention. I made the motion and I adhere to the motion with a full consciousness that I am sworn to uphold the Constitution of the United States; that I am, by implication, sworn to do only such things as I think to be legal, to be right, to be equitable. No purpose other than the purpose that the people who have expressed their preference for delegates to this Convention shall have that expression recorded in the form of the delegates they sent here. No other motive than that the whole people of Utah shall be recognized in this Convention is in my mind in making that motion.

The gentleman says that only upon the permanent organization does this become a Convention; that we are dilly dallying with the question from day to day in order to seat certain men.

Mr. VARIAN. I didn't put it in that way.

Mr. VAN HORNE. I understood the gentleman that way. I may have been mistaken.

Mr. VARIAN. I said if it should be so.

Mr. VAN HORNE. The legal question of whether this is a Convention or not and whether it only becomes a Convention upon the permanent organization, I take it is decided by our action yesterday. If we were not a Convention yesterday, we have not met in accordance with this law, because it says the Convention shall meet on the first Monday in March, 1895. If we were a Convention when we met and effected a temporary organization, we are a Convention now, and will be so long as in the suffrage of these delegates here the temporary organization is continued. The gentleman says that perhaps it might come that no one would be represented from the third precinct of Salt Lake City during the whole course of the Convention. Would we have a Convention under such circumstances, when the law under which we are organized here prescribes that the Convention shall consist ,of 107 members? It does not mean “may” consist of that number, but to be a Convention it “shall” consist of 107 members.

The question of its once becoming a Convention when 107 members are seated_the question that it must have at some time that 107 members under this law, wouldn't be effected by what might happen in the judgment of Providence or by act of visitation of God in destroying that number, after they were once members of the delegation and the Convention was complete.

Gentlemen, we will have the permanent record of what we have done here if this Constitution becomes the Constitution of the State of Utah, and so far from thinking that it is a crime that the preliminary organization of this Convention should determine upon {20} some representation of some kind for a portion of the population of Utah Territory, I am willing that I go down on the records of this Convention and of all time committed to the proposition that what is just and fair and equitable and in accordance with the expression of the will of the people was attempted to be

carried out by me in this Convention.

The question comes in as a contested election; it comes in with gentlemen occupying seats in this Convention, where their title is in doubt; it comes according to the report of the committee, not upon contests before them. It comes simply upon the proposition that by some means and in some way there is no representation for the third precinct of Salt Lake City in this Convention; that before that committee on credentials is filed some evidence tending to show that certain persons and no other are entitled to seats in this Convention and should have received the prima facie evidence of their title to seats. It is not our purpose, it is not our right, I take it, to go into the facts which have brought about such a state of circumstances. The only thing we can do is to recognize from the report the fact that such is the case. I think there will be no question of the fact that if the report of the committee shall be that five gentlemen shall be seated from the third precinct of Salt Lake City and they are seated by the vote of this Convention, they will then be in the position of persons holding seats on prima facie evidence and will be subject to any legal contest that may be made against their title. The purpose of a report of a committee on such a matter as this is to put into the seat to represent the people who have cast their ballots some one who has some evidence sufficient to justify his claim to a seat and to have the question whether his claim is a good one or not, and whether he shall be unseated or not, adjudicated by this Convention.

If this were a question in which partisanship might come, if it were something that a majority was striving to do to interfere with the rights of a minority, under our oaths as members of this Convention, we would be bound not to support it; but it is not; it does not tend in that way; the question is not who shall represent the third precinct of Salt Lake City, whether it shall be represented by Democrats or by Republicans. The question is, shall we proceed with the deliberations of this Constitutional Convention and deprive one portion of our great people of their right to be represented in choosing an organization and determining and outlining the policy which this Convention shall pursue. I take it_going into common report_that the non-partisanship of such a motion will be shown by the report of the committee. I take it upon my knowledge, as the gentleman takes things, that on the report of that committee, we will find that it has decreased the majority of this Convention and has not increased it. I take it that after the report of such committee, no gentleman can say that it was an attempt of the majority to force a wrong upon the minority of this Convention.

But, gentlemen will say, have said, that we are dilly dallying with this question, spending the money of the people, in order to determine some things that seem to be some way fixed in his mind as the purpose of this motion. We have precedent for continuing the temporary organization from day to day. If I am not mistaken the constitutional convention of South Dakota did not complete its permanent organization for six days after the time appointed for the first meeting of the convention. South Dakota is to-day in the Union of states without a stain upon her escutcheon because she spent six days before making a permanent organization.

Now, gentlemen, there is one other point and only one other point that I {21} care to refer to, and that is the admission of the gentleman that we have the power to do this thing. That if we vote to do it, it will be done. It is the question, and after the vote is taken, if it should result in that way,

that it would do anything more than simply make a record, as he says, of an attempted crime. Does he think that it would affect the legality of the action of this Convention? Does he think that if we did that which was just a right and equitable thing, putting the representatives of the people of the third precinct of Salt Lake City into their seats in this Convention, making thereby the Convention represented by a full number of delegates, as required by law, that the fact that it had been done in preliminary organization would, after the Constitution had been drafted and submitted to the people and accepted by them, in any way affect the validity of such a Constitution? When all the people are represented here, can any greater question be raised as to the validity of our acts than when part of them are excluded from the floor of this Convention? Only a part of the people, according to the gentleman's contention, may have a permanent organization and proceed with this business; but the whole of them, according to this contention, likewise, if this motion prevailed and the gentlemen from the third precinct were seated_if anything after that was done, it would be an outrage upon the people. I take it that no member of this Convention will for one moment think that if the people are given full representation, if we are here, 107 delegates in temporary organization, if after that a permanent organization is effected and the deliberations of this Convention so proceeded with and our actions receive the suffrages of the people that any question can be raised with regard to the validity of it. Gentlemen, I hope the motion will prevail.

Mr. THURMAN. Mr. Chairman, I desire. to ask the mover for information_whether his motion contemplates deferring the permanent organization until the proposed report of this committee, or whether the matter is proposed to be referred to the committtee and the Convention to go on with its work?

Upon the proper understanding of that question perhaps will depend my vote at least. If the motion contemplates deferring the permanent organization of this Convention, I shall perheps vote one way; if it contemplates not deferring the permanent organization, I shall vote the other.

Will the gentleman answer the question?

Mr. VAN HORNE. The motion contemplates nothing except what it expressed; the reference of the report of the committee back to the same committee with instructions to investigate and report.

Mr. THURMAN. I will ask another question.
Is the purpose of this motion to defer the permanent organization, whatever may be on the face of the motion_is that the purpose of it?

Mr. VAN HORNE. No, sir; that is not the purpose of it.

Mr. THURMAN. Then, I understand the gentleman is willing to go on with the permanent organization?

Mr. VAN HORNE. I am willing to say this, that if the committee reports contests of the gentlemen claiming seats, that we will enter into the question of whether or not we will proceed

with permanent organization, regardless of that.

Mr. THURMAN. I believe I am satisfied.

Mr. EVANS ( Weber). Mr. Chairman, I believe that this is a matter which it will not be considered a waste of time to discuss a little while for the purpose of informing ourselves upon our exact situation. I desire to call attention a little more specifically to the law of Congress, which enabled Utah to elect {22} delegates to the Constitutional Convention and form a Constitution. I call the attention of the Convention to the second section of the Enabling Act and shall only read the portion of the section which relates directly to the election of delegates to this Convention.


“And such election for delegates shall be conducted, the returns made, the result ascertained, and the certificate of persons elected to such Convention issued in the same manner as is prescribed by the laws of said Territory, regulating elections therein of members of the Legislature.”

Now in order to ascertain what those laws provided, it will be necessary to make reference to them, in order to ascertain just who are properly elected delegates to this Convention_as has been suggested, prima facie entitled to seats in the Convention, I call attention to the Edmunds law passed in 1882, by the Congress of the United States. In section 9, which created the board of canvassers, is the following provision:

“The canvass and return of all votes at elections in said Territory for members of the Legislative Assembly thereof shall also be returned to said board, which shall canvass such returns and issue certificates of election to those persons who being elegible to such election shall appear to have been lawfully elected, which certificates shall be the only evidence of the right of such persons to sit in such assembly.”

Now the words “Legislative Assembly,” and “Assembly” might be changed to the word “Convention.” And that section would be directly then applicable to the question which we now have in hand. Let us read it with the word Convention interpolated into the statute as required by the Enabling Act:

“The canvass and return of all votes at elections in said Territory for members of the Constitutional Convention shall also be returned to said board, which shall canvass such returns and issue certificates of election to those persons who being eligible to such election shall appear to have been lawfully elected, which certificates shall be the only evidence of the right of such persons to sit in such Convention.”

Mr. Chairman, it seems to me that in the light of the Enabling Act and the laws under which this assemblage has gathered, there can be but one opinion upon the question. It would seem to me in this preliminary organization that if we were to undertake to pass upon the election of any member who did not hold a certificate from this returning board, such action upon our part would be revolutionary and without jurisdiction. We are here as a body of men for the purpose of

forming a fundamental law to guide the future State. Can we afford upon the very threshold of our duties to put an act upon the record here, which in itself is revolutionary and contrary to the very acts of Congress which have called us here together? As has been so ably stated by the gentleman upon the other side of the house, the preliminary organization is always effected and acts simply for the purpose of determining prima facie who shall sit in the Convention when organized. It is for the purpose, in other words, of aiding the organization of the Convention itself.

When the Convention is organized_it is usual_it is lawful among all parliamentary bodies, among all constitutional and legislative bodies, that persons claiming seats in the body, not holding certificates from the regularly constituted returning board, shall apply to that organized body for seats.

Let us see further what the spirit and meaning of this Enabling Act is. Let us see if we can ascertain from it whether it was intended that we should meet here and adjourn from day to day for the purpose of determining in advance the question as to who shall have seats in this Convention and expend the public moneys, or what the intention of Congress was. The gentleman from Salt Lake probably unconsciously or unintentionally misquoted the provisions of the {23} Enabling Act, which calls us together in this hall.
As I understand him, he said the Enabling Act provided that the Convention should meet on the first Monday in March, 1895. The second section of the act reads as follows:

“That the delegates to the Convention thus elected shall meet at the seat of government of said Territory on the first Monday in March, 1895, and, after organization shall declare on behalf of the people of said proposed State that they adopt the Constitution of the United States, whereupon said Convention shall be, and is hereby, authorized to form a Constitution and State government for said proposed State.”

What was the intention of Congress in passing section 3 of this act? It was clearly its intention that the delegates should meet and not only meet and appoint committees upon credentials for the purpose of ascertaining who was elected in any case where it is not shown by the certificate which they hold, but it goes further in its intention and states that they must meet and organize. Suppose, Mr. Chairman, this matter be referred back to the committee, what is the power of that committee in this preliminary organization? If it had power at all, which I deny, then it has the power to receive evidence necessary for the purpose of determining the question as to who was elected. We must go into the question as to whether there was an election held. We cannot take judicial notice of that fact. We must take the returns, and if discrepancies appear upon the face of the returns, wouldn't we have the right, as a committee, to go into the ballot box and open it, and determine from the ballots who might be elected? We would have the right to receive any evidence which was within our reach and which a legislative body might enforce by process, and examine it, and determine this question. I don't say that this would be done; there may be considerable harmony upon the part of the members of the committee. I believe no member of the committee desires to do that which would wrong any man, but that is not the question here. We are not presumed to know what has been published in the newspapers and take that as evidence, but our duties would be to receive evidence, consider it, determine the question as to who was elected, and the reason why certificates were not issued, and then, in an organized capacity, we might have the right to seat those delegates and I believe we would have.

Mr. VARIAN. I would like to ask the gentleman: Suppose a contest was filed when the committee went out_some parties filed affidavits claiming they were elected, what would be their duties then?

Mr. EVANS (Weber). I say then, if we had any duties to perform at all_I don't believe that we have any duty to perform, but if we did perform the duties of the ordinary committees on privileges and contested elections, we would have the right to receive any evidence within our reach for the purpose of determining who was elected.

Mr. VAN HORNE. May, I ask a question, Mr. Evans?

Mr. EVANS (Weber). Yes, sir.

Mr. VAN HORNE. You call attention to the statute showing a certificate should be the only evidence that would entitle one to a seat. Would you contend that if no certificate was issued, we would be unable at any stage in our proceedings of organization, to seat members elected from the third precinct?

Mr. EVANS (Weber). I do not. And I want to be distinctly understood upon that question. I have taken the position heretofore and I take it now, that when this Convention is regularly organized, it has the inherent power to judge of the qualification of its own members in the absence of any paramount law prohibiting it.

Mr. JAMES. Mr. Evans, may I ask you a question?

Mr. EVANS (Weber). And I will state
upon that particular question, I believe the act of Congress determines_

Mr. JAMES. May I ask you a question, regarding that?

Mr. EVANS (Weber). Yes, sir.

Mr. JAMES. Could you proceed under a permanent organization with any different course than you would proceed under a temporary organization; wouldn't your course of procedure have to be absolutely the same?

Mr. EVANS (Weber). Why, no; the law and decisions of the court, as have been quoted by the gentleman from Salt Lake, clearly point out the distinction. The temporary organization is effected by those persons holding prima facie evidence of their election; holding the certificate of the returning board, authorized and constituted by law. That is their right, to take the first step. But our position is that we have no right to determine whether these officers are or are not elected in the manner prescribed by law, in a temporary organization, and seat them as permanent members.

Why one of the best illustrations that could have been given was given by the gentleman from Salt Lake. It has been stated upon the part of another member from Salt Lake that there may be some individual who does not occupy a seat with us, who has some laudable ambition. It may be true_public rumor says it is, the newspapers say it is. But suppose the gentleman were seated in this temporary organization and placed in the chair as a permanent officer and then when we have the power of a Convention in our organized capacity, it will be determined that he was not properly elected to this Convention. What a spectacle it would present indeed_what a reflection it would be upon the intelligence of a free people. There should be a gentleman in the chair whose election is not in any manner in question: and by saying this, I do not desire to reflect upon the other question, that the honorable gentleman who aspires to that position is not entitled to a seat here. We do not know whether he is or not. There is one thing sure, that if he is, the Democrats in this Convention will vote to seat him. [Applause.] And all we ask of you is to proceed in a regular way, a legal way, and a way in which we have jurisdiction to proceed, a way in which all parliamentary bodies have proceeded, and we are asking nothing else.

I promised to refer to this statute on the question of the right of the permanent organization to seat any delegate whose election is contested. Of course this is applicable to the legislature, but there is a provision in the same act of Congress of 1882, commonly known as the Edmunds law, as follows:

“Each house of such assembly after its organization shall have power to decide upon the elections and qualifications of its members.”

Now, gentlemen, can there be anything more plain than that? Make your Convention here the legislature and the law is applicable to it, and after the organization of this Convention, then we have the power to pass upon the qualifications of those delegates to seats in the Convention, but before that time we are devoid of power and cannot exercise it.

Mr. EICHNOR. Mr. Chairman, and gentlemen of the Convention, the first gentleman that opposed this motion yesterday made a motion to appoint a committee on credentials: if I am wrong, if I am in error, why please correct me.

Mr. VARIAN. Yes. sir, that was perfectly proper.

Mr. EICHNOR. I will state now, and I can cite a number of instances where the secretary of a state or the secretary of the territory is called into the convention and reads the roll. There is no committee on credentials, and I challenge any man to dispute that. When the committee on credentials is appointed, {25} they throw open the whole question of contests and we have the right to determine it in a temporary organization. [Applause.]

I will state, gentlemen, that as a member of the majority of this house, (in politics I am a Republican) I propose to deal on the floor of this house with my political opponents the same that I would deal with them in private life; I am going to be fair and square in the matter. [Applause.]

I propose to vote for the seating of three Democrats and two Republicans. It is an historical fact

that in the third precinct in Salt Lake City, Salt Lake County, Utah Territory, three Democrats, namely, Andrew Kimball, A. H. Raleigh, and William B. Preston are elected to this Convention, and that John Henry Smith and George R. Emery are also elected, and I hope that this motion will prevail and we will settle it in a temporary organization. The people of Utah have suffered enough from disfranchisement, and we are not going to set the example in this Constitutional Convention. [Applause.]

Now, Mr. Chairman, I will state further with regard to the gentleman's quotation from parliamentary law; analyze the matter that he read and what does it say? That members that have no certificate shall not be entitled to take part in the first instance. What is the first instance of this Convention? The temporary organization. Did John Henry Smith, George R. Emery, A. H. Raleigh, Andrew Kimball, and William B. Preston take part in this? No, but we are going to seat them in the temporary organization that they shall have as full voice, power, and right as any other member on this floor to take part in the permanent organization. That is my sentiment in this matter. If I stand alone, I care not, I am willing to go down on record here, that I believe that if any one has juggled, if any trickery has taken place, if any chicanery has been practiced, that I am not goingto hedge myself around with a little technicality and say we don't know it. It is as clear as the noonday sun that three Democrats and two Republicans are elected. We might as well be plain in the matter and face the situation as it is. It is not worth while then to beat around the bush.

Mr. EVANS (Weber). What is the use then in referring it to a committee on credentials at all? Why not pass on it right here if they have the power to do it.

Mr. EICHNOR. They can bring it directly before the house. I have investigated the matter to my own satisfaction as far as I am concerned. I have lived here and I have watched the contest for the last three or four months, and I say, gentlemen, don't be alarmed about voting for this motion; for the only disgrace that can be attached in any manner to the election of the delegates to the Constitutional Convention, I will refer the gentleman to Sanpete County and the third precinct.

Mr. IVINS. Mr. Chairman, may I ask the gentleman a question? I just wish to ask the gentleman if he can quote some authority to us, I would like to have it. I am in earnest about this now_if he can quote some authority for the assertion that this committee on credentials that has been appointed under temporary organization has authority to act in all cases of elections and contests as he states that they have.

Mr. EICHNOR. No. The way I understand it, there is really no contest at present. But I will hand the gentleman part of the convention record of the constitutional convention of the state of New York, where the question came up, whether the house had the power to seat other delegates in which there were contests, and here are a number of states referred to in which the committee on credentials acted.

Mr. IVINS. Will the gentleman please read the authority? I don't want him to cite them to me for me to read.

Mr. EICHNOR. There are two columns there; I didn't wish to take up the time; I will pass it over to the gentleman if he wishes it.

Mr. IVINS. I thought it would be too long for you to read.

Mr. EICHNOR. If the gentleman takes issue with me, I will state the facts.

Mr. VARIAN. It was after the organization?

Mr. IVINS. Certainly; I don't question the right after the organization is effected. I want him to quote me a single instance where it has been done under the temporary organization.

Mr. EICHNOR. There is not a word said about the permanent organization; it simply states that the committee on credentials settled the matter.

Mr. CHIDESTER. Mr. Chairman, and gentlemen of this Convention, I don't wish to appear to be revolutionary in this matter, but it appears to me that we have a simple duty to perform, and when I left home I came here to represent a portion of the community that sent me here, and their wishes are that I should act fairly in this matter; and in reading the act that enables us to elect delegates and assemble here. I find in the third section the following words:

(Reads section three of Enabling Act.)

In this act it also provides that each county shall have a certain representation in this Convention and if I am not mistaken it sets out that Salt Lake County may have thirty-nine. Now, then, we find here that Salt Lake County is not fully represented; we find that a portion of the representation that was assured to them is, for some cause, prevented from taking seats here, and, with the other delegates who have been accorded seats here, going forward and organizing this Convention and preparing to comply with this section and formulate a Constitution for the State of Utah. Now, then, it and the fact that we have gone so far in organizing as to temporarily organize, and appoint a committee on credentials, that as an inherent right they have a right to determine this question, especially when this Convention of delegates, after temporarily organizing, refers the matter back to them. appears to me that this being the fact,

Now, whether this is revolutionary or not, I say that to me it seems to be justice. It seems to me that I would hate to go back and face my constituents and have them say to me that some certain members who had been elected to this Convention had been denied seats, and I hadn't backbone to stand up here in defense of truth, in defense of right of representation. I take it, gentlemen of this Convention, that is one of the greatest rights that men can have, is to be represented in forming the government under which they live, and it is not a full Convention until they are seated. Some one has been elected here. As for me, I know not who it is and I care not who it is. If it would change the complexion of this Convention, I would sustain this just as quick. I don't wish to be so partisan in my feelings that I would try to thwart the will of the people and the ends of justice. Therefore, gentlemen, I would sustain this motion and I wouldn't wish to influence any man, but to give my sentiments and it shall be in favor of this motion.

Mr. VARIAN. Mr. Chairman.

Mr. JAMES. Mr. Chairman_

The CHAIRMAN. Mr. Varian had the floor first.

Mr. JAMES. Mr. Chairman, I would like to have the privilege of speaking once to other gentlemen's twice.

Mr. VARIAN. The gentleman can speak when I get through.

Mr. JAMES. The gentleman wasn't interfered with when he spoke for an hour this morning.

Mr. VARIAN. I didn't interfere with him I had the floor.
The CHAIRMAN. You need not discuss it, Mr. Varian, I recognize you.

Mr. VARIAN. I don't want to be criticized in that way. My friend Eichnor asked me the open question, if it were so that on yesterday I moved to appoint a committee on credentials, and from that he went on to argue that that was an admission of power. Not so. A committee on credentials might possibly be waived by a body like this, but it does not necessarily follow that if it chooses to have one the power of the committee is in any way acknowledged. I undertake now to challenge the gentleman or anybody, and give them all the time they want, to produce an authority in any legislative body that is worthy of the name, to the effect that a committee on credentials on preliminary organization has anything more to do than to look at the face of the returns.

Now, there is a necessity for that sometimes. Sometimes there are two sets of returns. Sometimes on the face of one return there is an inconsistency or inaccuracy, which can be solved upon the face of it and the history of parliamentary proceedings shows that in such cases they report those matters back to the convention or legislative body for its determination. As to that I say that you have complete and full jurisdiction.

I don't deny that at all. If there had been two sets of certificates here, or if there had been one set of certificates and there were inaccuracies or there were discrepancies or inconsistencies upon the face of either of them so that it was difficult or impossible to determine from the certificates themselves what they meant or who they seated; of course the committee would refer it back to this body and it would determine it from the face of the returns if it could. If it could not, it would send it over to the permanent organization.

But I want to call the attention of the house now, (so far as my friend, Mr. Eichnor, is concerned) to the fact that at least one champion of this motion has already sat in judgment, he has made up his mind, he is ready to decide now, without a hearing, without a trial, without going through any form of parliamentary proceeding or judicial proceeding to determine the question that five gentlemen whom he has named are authorized to be seated here if he can accomplish it. Think of

that. Supposing that there shall be at noon, if this matter is referred back to the committee, two or three others come with a contest, in what sort of a spirit does my friend, Eichnor, go to determine that question? He has not been a judge of a court of record, listening to this evidence. He has not been I suppose, connected with the cases sufficiently to have in his mind a judgment as to what the effect of the evidence was, but from what he knows, from what he feels, from what he understands he is ready now to vote, first, last and all the time to seat a certain number of gentlemen.

It seems to me, gentlemen, that it won't do to distort or disturb this question by getting away from it. The fact is here for you to consider, have you the power, have you the right, do you admit for a moment that if any other set of candidates comes before your committee on credentials and demands a hearing_do you admit your power to go into it, your right to go into it? Or are you willing to say, if you haven't the power to do that, that you have a right to seat either of them until they have a hearing on both sides?

Until you are organized you have no authority to control even the fund which is given by Congress into the hands of the secretary of the Territory to pay the expenses of this Convention. You have no authority to pay the expenses of witnesses. You can do nothing, and I would like to know how a contest of that kind is to come before a committee on credentials.
I submit that to the gentleman from Sevier, I think it is, who spoke last.

Mr. EICHNOR. May I ask Mr. Varian a question.

Mr. VARIAN. Yes, sir.

Mr. EICHNOR. Mr. Varian, you are aware that the Utah Commission appointed a canvassing board for Salt Lake County, are you not?

Mr. VARIAN. Why, I have read that; I know that it is a fact outside of this Convention.

Mr. EICHNOR. Do you know what their report was on the third precinct?

Mr. VARIAN. Well, what then?

Mr. EICHNOR. Well, I ask you whether you know it?

Mr. VARIAN. I understand that it was that there were elected three Democrats and two Republicans.

Mr. EICHNOR. Yes, and I was right present when they footed up the tallies.

Mr. VARIAN. This is the most remarkable method of a lawyer determining a question. I presume if my friend Mr. Eichnor were on the bench and these cases had come before him as they did before one of the judges, he would have said:

“Gentlemen, it isn't necessary to take any evidence here; I know all about it; I was present; I saw it, I heard that, I know that the three Democrats and two Republicans were elected and you need not waste time with me. Enter upon your judgment.” [Laughter.]

Hasn't this discussion developed a tendency to which I allude in one of my remarks before, that we are likely to get into a very bad scrape in this business, that we are likely to be misled and commit a very grave error?

Mr. JAMES. Mr, Chairman, I don't want to say much, I don't wish to take up the time of this Convention in discussing a proposition whether we shall give the opportunity to five gentlemen who claim to be elected and entitled to seats in this Convention, or whether we shall not give them the opportunity to establish their claim to those seats.

I don't wish to take up the time of this Convention long on a proposition of this kind; I take it for granted that the gentlemen assembled here are a class of men that have justice instilled into their minds beyond that narrowness of an attempt to defeat men that have been honestly elected to their seats, and it has been so decided as Mr. Eichnor said by a committee appointed to make the canvass, and who have made their returns.

Now I say, gentlemen, this motion included nothing more than to give these gentlemen a chance to prove whether that commission appointed by the Utah Commission made a correct count or whether they did not.

Now, I want to say to each one of you gentlemen here, you vote against this resolution and you vote against a proposition to give those five gentlemen a chance to establish whether they are entitled to their seats or not.

Every one of you that has talked here has made that admission, that you believed that we could take it up and decide it in a permanent organization, but you say to these men:

“No, you shall not come into this Convention, until we do away with this temporary organization. Then we will allow you to come in, even though we conduct the Convention clear to the end with the officer that we have in that chair now, which we have a right to do.”

Every one of you knows that this temporary organization has just the same authority as any organization, or that it is possible to confer upon a body of men.

It cannot be otherwise. The Enabling Act said that you should meet here yesterday at the seat of government and that you should proceed to organize.

Haven't you done it? Yes, sir. You met here on yesterday and you organized. Now, if that wasn't an organization that has control of all {29} affairs that come before this body of men, what are we here for to-day?

Mr. EVANS (Weber). Mr. James, may I ask you a question? If we organized on yesterday, what

is the imperative duty of this Convention immediately after organization?

Mr. JAMES. The imperative duty of this organization is just exactly what we went through.

Mr. EVANS (Weber). To adopt the Constitution of the United States?

Mr. JAMES. Yes, sir; we did that in the oath; when we took the oath every one of us did it.

Mr. VARIAN. Oh, well_

Mr. JAMES. And when you introduced the resolution to appoint the committee on credentials you performed an act under that temporary organization. They did it in one of the Dakotas_a temporary organization lasted there for five or six days; they transacted regular routine business and nobody said that it wasn't legal or proper.

Now, there has been a good deal said here about some attempt to put into office some gentleman that was the choice of this Convention, provided he could be seated. Now, gentlemen, is that any argument why we should not seat these men? For Heaven's sake, if they are the choice of the majority of the people, let the majority have their choice for their presiding officers. I should feel prouder of an election to an office in this Convention if I found I could be elected by the votes of 107 and could not be elected by the votes of 102. I should appreciate the election by the 107 very much the most.

Now, I want to say, Mr. Chairman, so far as proceeding with business that I am ready to go right on with business. We have an organization here; it is perfectly competent. We have plenty of preliminary work. I am ready to proceed with arranging of committees, putting those committees into shape, so as to get ahead with our work. It isnot necessary that we should get our permanent organization to do that.

Mr. EVANS (Weber), Mr. James, let me ask you another question.

Mr. JAMES. Yes, sir.

Mr. EVANS (Weber). Do you concede the idea that this preliminary organization has the power to do business?

Mr. JAMES. It has absolutely, and you are one of the judges whether it has or not, and the majority are here to say. We are a body of men that are not governed nor controlled by any precedent or any parliamentary usage. We can make our own parliamentary law.

Mr. EVANS (Weber). Have you read the third section of the Enabling Act? Mr. JAMES. I have.

Mr. EVANS (Weber). What do you gather from it?

Mr. JAMES. I gather from it that we are simply here as a body of men so far as the detail of our

work is concerned, to decide how we shall proceed with it.

Mr. EVANS (Weber), But the section itself says how we shall proceed.

Mr. JAMES. We have conformed to that part of it.

Mr. EVANS (Weber). Have we yet adopted the Constitution of the United States?

Mr. JAMES. Yes, sir.

Mr. EVANS (Weber). How?

Mr. JAMES. By our oath on yesterday.

Mr. EVANS (Weber). Then, your idea is that we are now organized?

Mr. JAMES. Yes, sir.

Mr. EVANS (Weber). Then, what is the use of the committee on credentials at all?

Mr. JAMES. Simply to decide the rights of the gentlemen that have seats in this Convention.

Mr. EVANS (Weber.) Your idea is that we can adopt the Constitution under the present organization?

Mr. JAMES. Yes, sir; we can do anything {30} in this organization that we see fit to do that is proper in forming a Constitution.

Now, I want to say, as to meeting, as Mr. Evans says, and adjourning from day to day, we only met yesterday. The remark has been used very fluently though “from day to day, from day to day.” A person would think the debate here had been continued as long as the contest on the Idaho senatorial election from the remarks that have been made.

Now, I say here that we met yesterday, and did just about, according to my observation, as conventions do everywhere. We are doing to-day as they do everywhere, except that I will say that I never found a convention where the members of that convention attempted to pass a resolution to prevent delegates elected to that convention from an opportunity of showing whether they were elected or not. That is the only difference between the action of this Convention, and the usual run of conventions where I have had an opportunity of observing.

Mr. EVANS (Weber.) Have you any State in mind?

Mr. JAMES. Now, I hope gentlemen of this Convention, that there will not be a single voice raised against this resolution, not one. I hope that you will all vote for it, because it is just; and it is right, and it is proper.

The question is not up for discussion now whether these gentlemen should be seated or whether they should not be seated; it is a question whether we shall proceed so as to give them a chance to show whether they should be seated or not; that is all there is in it. Why should it meet with such opposition? Why not adopt it and give the gentlemen a chance to be heard? Give them opportunity to be seated if they are entitled to be seated.

I thank you, Mr. Chairman, I didn't intend to take up so much of your time.

Mr. ROBERTS. Mr. Chairman, I wish to make just a few remarks on the question before the house.

I don't believe there is any disposition either on the part of the committee on credentials or on the part of the members of this Convention to deprive gentlemen from the third precinct of Salt Lake City of a seat in this Convention.

The whole question before the house it seems to me, is simply whether, under the temporary organization, the committee on credentials is qualified to enter into the investigation of the election cases in the third precinct. That is the question involved in this motion to refer the report of the committee back to it with instructions to proceed to an investigation of that case. It has been developed in the course of discussion on this floor on the question, that the very great reason for reaching the consideration of the election of these members now, is that one of their number could have an opportunity to aspire to a high position in the permanent organization of this Convention.

I wish to call the attention of members to this circumstance, that the investigation of that committee on the subject of these elections may consume considerable time and to me it would be a sad spectacle to linger along in our work day by day with the formal meetings of a preliminary organization, awaiting the action of this committee on credentials, while they investigate that subject. It is patent to all of us that there has been a good deal of controversy over those election cases.

It is possible that they may be determined in an hour or two, but it may take days to investigate that case, and it would be a waste of time_a useless waste of time of 102 members comprising this Convention when they have the authority and power to act and proceed with the business before the Convention: it would, sir, be a burning shame to continue this temporary organization day by day, awaiting the report of that committee.
With all due respect to the gentleman who was last on the floor, I must hold on the opinion that this Convention has no power to proceed with the appointment of committees and with the work of forming the Constitution until the permanent organization is effected, and I believe the gentleman from Weber who spoke upon the subject at some length read the law that applies in this case, that until this Convention is organized we can not go into a consideration of these cases.

The gentleman told us there is no contest in this ease. We do not know whether there will be a contest or not. There is ground for contest and the contest may arise.

In the meantime we present the spectacle before the country of wasting, literally, the time of this whole Convention pending the investigation of this question. For what?

Why, for the only purpose of giving some gentleman an opportunity to aspire to an office in the permanent organization.

Is it true that of all the delegates assembled there is but one man that can be elected to the position of president of the permanent organization?
Gentlemen have quoted the fact, (I presume it is a fact, I accept it as such upon their statement) that South Dakota operated for six days under its temporary organization. If South Dakota so proceeded, South Dakota wasted just so much of its time.

I appeal to the common sense of this Convention, not to pick bad from bad, but let us proceed upon lines that will enable us at once to discharge the duties devolving upon the members of this Convention, that of writing a Constitution for the future State of Utah, and not hang up this Convention pending the action of a committee.

Let us proceed upon lines that we are sure will be right. Let this matter go over to a committee of elections and privileges under the permanent organization.
Men would do well perhaps_I doubt not in my estimation that they would do well to suppress personal ambition in order that work may go on.

Mr. Chairman, I can not support this resolution, as I do not think that committee on temporary organization has the power to investigate those elections and it would be, in my estimation, a burning shame to hang up the proceedings of this Convention, perhaps for days, before proceeding to act.

Mr. GOODWIN. Mr. Chairman, only for a moment.
It seems to me we are wandering away from the question. In all matters of this kind when a committee of credentials is appointed, that committee goes out, comes in, and makes a partial or a whole report. The committee on credentials have been out once and they have made a partial report and asked for instructions on the remainder of it This resolution instructs them to go back and examine the papers in the case and make another report; if that is satisfactory to this house, it will be adopted. If not, it will be rejected.

We are talking about the powers of the committee. They have simply the powers to examine the papers in the cases as presented to them and give that fact before this house. I do not see that this debate is proper at this point. It seems to me that when they make their final report then it will be for this Convention to decide whether they will accept that report or not.

Now, the gentleman that just spoke wondered if there were but one gentleman in this house that could act in one of the higher offices. I beg to assure him there are 102. Now, the object of that committee to have a primary report is to see if there are not 107.

Mr. CANNON. Mr. Chairman and gentlemen of the Convention, I favor the motion which has been made.

I favor it because, unless we do hear {32} from that committee and until they report upon these contested seats or upon the seats that are in question, you don't have full representation. Fourteen hundred men, within a fraction more or less, are denied representation, until these cases are settled.

The gentleman who last spoke in opposition to this motion said:

“Is there but one man here who is worthy of the high position to which he aspires?”

I would ask, is there one man here who would deprive fourteen hundred American citizens of the right of representation, even in the formation of this permanent organization. The gentleman stated that he was willing to concede that in all human probability later on these men would be seated. Why not seat them so that they have their voice upon every question that comes up before this Convention?

The Convention, as I take it, is the judge of the qualification of its own members. The committee on credentials_whether or not it had the power to investigate these cases, comes in and reports to us certain facts, declaring that five men have presented certain evidences of their election.
Just 102 men had the certificate of the secretary of the Territory. They declare that they have there a judgment of a certain court, and if you will investigate those papers you will find that in that judgment and made a part thereof are certain findings of fact, which declare that five men had a majority of the votes cast in that election.

The men who haven't seats on this floor represent a constituency larger than many of the counties of this Territory combined, and the principle which is at stake is not so trifling as gentlemen would make it appear.

The gentleman who last spoke in opposition said: “Shall we fritter away days in investigating this?” I would say, aye, when in so doing we have a
principle at stake, which is the basis upon which our government rests; that it is that which brought on the war with Great Britain and made our country free_the right of representation; and here we have fourteen hundred men asking through their duly elected delegates they should be represented on this floor.

For this reason and because I believe that we have the right to refer this matter to them, I am in favor of referring it to the committee with power to act.

Gentlemen have said not to take note of newspaper rumors, yet every man who has spoken in opposition to this motion, commencing with the man who opened the opposition, has taken newspaper rumor and has attempted to play upon your fears and prejudices, claiming that some man aspires to a high position and that because of these newspaper rumors you should deny people their representation. I say that it shows the bias of their argument, for they do not take note of that which has been published for months and they listen eagerly to that which has been whispered for a few hours.

I am in favor of the motion.


[Calls for the question.]

Mr. HART. I move you, Mr. Chairman, as an amendment to the motion that we adopt the report of the committee on credentials. There is some doubt even in the mind of the gentleman who made his motion, it seems to me, as to the scope and purpose of it and I am in favor of disposing of this question in parts. Let us seat 102 members first and then afterwards decide what we shall do_whether we shall refer this matter to the committee on credentials in reference to the third precinct, or whether we shall proceed to a permanent organization, and therefore, Mr. President, I move you this amendment.
The CHAIRMAN. I hear no second to that motion.

Are you ready for the question on the original motion?

Mr. VAN HORNE. Mr. Chairman, I wish to call the attention of the members of the Convention briefly to some things_

Mr. EVANS (Weber). I second the amendment to the motion.

The CHAIRMAN. Mr. Van Horne has the floor now.

Mr. VAN HORNE. _that have been said in the discussion of this motion.

I wish to call attention to the first part of section 2, Enabling Act.

“Such delegates shall possess the qualifications of such electors; and the aforesaid Convention shall consist of 107 delegates.”

As we are now, we consist of 102 delegates. I wish to call also the attention of the Convention to the argument of the gentleman from Weber County, with regard to the latter part of the same section, in which is provided the manner in which these elections shall be conducted, the returns made, the results ascertained, and the certificates of persons elected to such Convention issued, in such manner as is prescribed by the laws of said Territory regulating elections therein of

members of the Legislature. The gentleman called attention to the fact of a special statute in the Territory which says that the certificate issued by the returning board shall be the only evidence entitling a person to a seat.
The act of Congress says_

Mr. EVANS ( Weber). Mr. Van Horne, you misunderstood me. This is an act of Congress I am talking about.

Mr. VAN HORNE. You referred to an act of Congress governing the Legislature of Utah.

Mr. EVANS (Weber). Yes, sir.

Mr. VAN HORNE. This is not incorporated into the Enabling Act under which we are acting to- day. That provision is left out of that, as to what evidence or certificate shall be given and in place thereof is put in the mandatory direction to the Utah Commission to issue the certificate to the person elected. That certificate for some reason, as it appears from the report of the committee on credentials, has not been issued to the members-elect from the third precinct. There is no prima facie title to a seat from the third precinct.

We are not 107 delegates. The committee reports that there are certain things before them tending to show that these gentlemen were elected as delegates and are entitled to a seat.

Upon the report of that committee and the adoption, if it be adopted, by this Convention, there will be a prima facie case made, entitling those gentlemen to a seat; and the question of open contests will then come before this Convention properly, and can be properly made.

I call the attention of this Convention to the fact also instanced by the gentleman from Weber, that we have not adopted the Constitution of the United States.

I do not think that the contention is right, that our simply taking the oath as individual delegates is an adoption of that Constitution, as provided in this Enabling Act. I think it will require an ordinance of this Convention, and that that ordinance must come immediately after the permanent organization of this Convention, and immediately after the permanent organization of this Convention, the Convention shall declare on behalf of the people that they adopt the Constitution of the United States.

Unless in temporary organization we seat some gentlemen from the third precinct, who will be authorized on behalf of the third precinct and the fourteen hundred voters therein to declare that they adopt the Constitution of the United States? Can we do it? We are not elected as their representatives; they have a right to a voice in saying {34} whether they shall adopt the Constitution of the United States or not.

If those five members come in here and others here are unwilling to adopt the Constitution of the United States, we could not proceed with making a Constitution for the State of Utah.

Mr. Chairman, it is not a question of rumor; it is not a question of newspaper notoriety, that is to be determined in this Convention; it is a question of fairness, of justice, of compliance with the act under which we sit in this Convention, and of the ability to so fill the Convention, that when it comes to the adoption of the Constitution of the United States by this Convention, no part of the people of the Territory of Utah can ever say, “our delegates could not take part in the adoption of the Constitution of the country.”

Mr. MURDOCK (Beaver). Mr. Chairman, I think this is a very simple matter, although there has been a great deal said about it. Would we be a perfect body according to the Enabling Act and according to our own judgment, without the whole delegation? I say not
Some have questioned a temporary organization as being incompetent to do business. Why, it is a very absurd thing in my estimation. What are they for? They are to remove every obstacle that may present itself before this body, and prepare for a permanent organization, and if they haven't the right to remove every obstacle that may present itself before this body, then they are a body that has no power whatever.

It is not in the hands of this body to refer this to the committtee [*note*]. It is in the hands of the committee, and I have that confidence in that committee, that they will be able to handle the matter properly in the interests of this Convention. There have been intimations made that there was something being labored for. That comes hereafter, in regard to the permanent organization. I thank you for your consideration.

[Calls for the question.]

Mr. ELDREDGE. Mr. Chairman, I wish to be brief and to call attention to a few items in section two of the Enabling Act.

The “Convention shall consist of 107 delegates, apportioned among the several counties, within the limits of the proposed State, as follows.” It goes on and enumerates the several counties until it reaches Salt Lake County, and states that Salt Lake County shall have 29 delegates, “thus apportioned, to-wit,” etc. And when we reach the third precinct, we find, that it entitles that precinct to a representation of five delegates on this floor.

That precinct then becomes a constituent part, Mr. Chairman and gentlemen of this Convention, of this Convention [*note*], and the people residing within its borders have the same rights and privileges as the peo-people of any other county of this Territory, and the proceedings, as I understand it, as now being taken are not for the purpose of giving some gentleman who may aspire to the chairmanship or presidency of this Convention the opportunity of doing so, but they are for the purpose of giving that precinct a representation upon this floor, even if it only be de facto in place of de jure.

Therefore, I am in favor of leading up to this specific object, and as I understand the situation that committee on credentials has had proof by certificates issued by the commission to seat 102 delegates on this floor, and they have evidences of a different character by affidavits, etc., that show that there are five others entitled to seats here and that there has been no contest filed

against the seating of those five, and therefore it is not a case of contest, but it is purely a case of representation, and are we, at the very opening of this Convention, at the very beginning of {35} forming a Constitution granting unto the people the rights and privileges that they wish to exercise, to under take to perpetrate upon one of the principal precincts of this county such things as these people have suffered under too long? [Applause and cries of no.]

Mr. THATCHER. I do not desire, Mr. Chairman, and gentlemen of the Convention, to occupy more than a few brief moments of the valuable time of this gathering, but I do wish to call the attention of the Convention to the expressions of the committee itself. All this time has been devoted to a discussion in trying to refer the matter to the committee, in which they disclaim any jurisdiction whatever, and therefore if it comes before them, it will go before a a [*note] body of men who claim that they have no authority in the matter.

If you permit me, Mr. Chairman, I will read their language:

(Reads from report.)

Here we have the opinion of the committee itself. I think there is no division of opinion as to the right of five gentlemen representing the fourteen hundred, but I think it will take us some time to determine who those five gentlemen are.

Mr. LAMBERT. Mr. Chairman, I would like to have our secretary read the motion that was made.

Motion was read by the secretary.

The question being put and the ayes and noes called for; the vote was as follows:

John R. Murdock
Peter Low
J. E. Robinson

J. D. Murdock
Jos. R. Murdock
W. E. Robison

William Low
J. P. Low
A. J. Evans

David Evans

The motion was thereupon declared carried.

Mr. FARR. Mr. Chairman, I have deferred making remarks on this question. My mind has been clear through from the start_

The CHAIRMAN. Mr. Farr, there is nothing before the house.

Mr. EVANS (Weber.) Mr. Chairman, he is an old gentleman, and I move that he be extended the courtesy.
Mr. FARR. The remark has been made that this committee has reported and they have not the authority. I wish to say that that committee has the authority according to their report, which is right in the matter.

Mr. KERR. I move we adjourn until three o'clock.


Mr. CRANE. Will the gentleman allow me to make a motion?

I desire, Mr. Chairman, to make a motion that the chair appoint a committee of seven to confer with the secretary of the Territory in regard to furniture of this room.

Will Mr. Kerr withhold his motion for that motion?

Mr. KERR. That may lead to a considerable discussion. It seems to me that it can be brought up this afternoon.

The CHAIRMAN. The motion to adjourn is in order.

Mr. PIERCE. Mr. Chairman, I arise to a point of order; it wasn't a motion to adjourn, it was a motion to fix the time for adjourning.

The CHAIRMAN. I understand the motion to be that we do now adjourn. Carried.

The Convention then, at one o'clock p. m., adjourned until 3 o'clock p. m.

TUESDAY, 3 o'clock p. m., March 5, 1895.

The Convention was called to order by temporary Chairman Kimball.

Mr. VAN HORNE. Mr. Chairman, I move you that the chair appoint a committee of five on site of holding this Convention and furniture.


Mr. ROBINSON (Kane). Mr. Chairman, I move you that while this matter is under consideration we adjourn until to-morrow morning at 10 o'clock.

Mr. THURMAN. Oh, no, let's go on. Mr. EVANS (Weber). I second the

Mr. CHAIRMAN. You will withdraw the motion until the committee is appointed, won't you?

Mr. ROBINSON (Kane). Yes; after the committee is appointed, I will make that motion.

The CHAIRMAN. The chair will appoint on the committtee W. G. Van Horne, A. C. Lund, J. A. Hyde, S. R. Thurman, Aquila. Nebeker.

Mr. KERR. Mr. Chairman, I move that we proceed to the election of a permanent president of this Convention.

Seconded.    .

Mr. ROBINSON (Kane.) Mr. Chairman, I make a motion to adjourn, which is before the house.

Mr. THURMAN. Mr. Chairman, just one moment; I don't suppose this Convention will commence the permanent organization at this time,

The CHAIRMAN. That motion is not before the house. I heard no second.

Mr. THURMAN. But there is something that we can do and we will facilitate business by doing it. If the Convention had the power to act as it did this morning, and they exercised it, we can proceed at the present time to at least determine the standing committees that this Convention ought to have, and we can so far proceed with that that we will save probably just twenty-four hours by doing it now. If the gentleman will withhold his motion to adjourn until at least that much is done, I will move the chair to appoint a committee to report to-morrow morning the number and kind of standing committees the Convention ought to have. Of course, I don't believe in exercising that power under the temporary organization, but we have broken over the rule and I am in favor of doing it for the sake of getting along, even if the permanent organization has to ratify what we do.

Mr. MALONEY. Mr. Chairman, I second that motion.

The CHAIRMAN. I didn't understand that the gentleman from Kane County yielded his motion.

Mr. ROBINSON (Kane). No, sir; I haven't yielded, on the ground that the {37} other committee should make its report before we can proceed in a proper manner.

Mr. EICHNOR. Mr. President, I would request the gentleman from Kane County to withhold his motion for a little while. I understand the committee on credentials is ready to report.

Mr. ROBINSON (Kane.) I will withhold it on that ground.

Mr. ELDREDGE. Mr. Chairman, I would move that the chair appoint a committee, consisting of one member from each county, to formulate the number of committees that will be necessary for this Convention to appoint and report to-morrow.

Mr. CHAIRMAN. That was the motion already made by Mr. Thurman and seconded by Mr, Maloney, with the exception as to the number of the committees.

Mr. THURMAN. I will accept the amendment of Mr. Eldredge.


The CHAIRMAN. I would like to request each county delegation to select it own members and furnish me the names for that committee.

Mr. THURMAN. Shall we take an informal recess for a few minutes?

The CHAIRMAN. I understand the committee on credentials has now come in; we will hear their report pending that.

The committee on credentials thereupon reported as follows:

Mr. President and gentlemen of the Convention:

Your committee, to whom was resubmitted the matter of right to seats in the Convention from the third precinct, Salt Lake City, beg to report that they have examined the evidence in the above named cases; and find from the face of the returns that the following named gentlemen are entitled to seats in the Convention:

George R. Emery, W. B. Preston, John Henry Smith, Andrew Kimball, A. H. Raleigh, and that there is no contest in any of these cases. We respectfully recommend that they be seated in the Convention.



Mr. STREVELL. Mr. Chairman, I wish to move the adoption of this report.

Mr. JOLLEY. I second the motion.

The CHAIRMAN. The other part of the report is not read; it remains the same as it was read this morning, in favor of 102.

Mr. JAMES. Do I understand that the report is unanimous?

Mr. STREVELL. It is, yes, sir. Motion carried.

Mr. EVANS (Weber) offered the following resolution:

Resolved, that we proceed immediately to effect a permanent organization.

Mr. ROBERTS. I second the motion. Mr. ROBINSON (Kane). I wish to press my motion to adjourn.

Mr. EICHNOR. I move to lay that motion on the table.

Motion seconded.

Mr. JAMES. Mr. Chairman, I move that the gentlemen just seated come forward and be sworn in.

Mr. EICHNOR. Then I will withhold my motion to lay on the table with the consent of my second.

Thereupon Messrs. Emery, Smith, Kimball, Raleigh, were sworn in by the temporary chairman.

Mr. ROBINSON (Kane). I wish to press my motion to adjourn, Mr. Chairman, until tomorrow at 10:30.

Mr. EVANS (Weber). Mr. Chairman, I suppose, of course, that motion is not debatable, except as a question of time, and I want to oppose it for the reason that I think that we ought to commence doing business, and I move as an amendment to that, we adjourn for ten minutes. I want to say, Mr. Chairman, that we ought to do something now; we have gotten along so far, we ought to commence to legislate. We ought to organize. It has been stated that this Convention costs four or five hundred dollars a day. If it is carefully estimated it will be found it will cost one thousand dollars a day counting rents, reporters, {38} officers, and printing, and we have only a thirty thousand dollars appropriation, which will only run us through thirty days; it seems to me that we ought to do something now. We certainly can effect the permanent organization, having committees appointed and commence doing the work that the people expect us to do.

Amendment seconded.

Mr. THURMAN. Mr. Chairman, I wish to call the attention to the fact that there is a matter that

was begun a few moments ago that has not been completed, and that motion was of no avail unless we complete that committee, so that they can go to work; and for that reason I will favor the motion to adjourn, or take a recess, whatever you may please to call it, for ten minutes so that the county delegations can get together and name a man to suggest to the chair.

Mr. VAN HORNE. Very well, I have no objection to that.

Mr. THURMAN. In the meantime, gentlemen of the majority, if you can agree on your chairman, we will proceed with the business; we think that we can accept it.
The Convention thereupon took a recess for ten minutes.

At the expiration of ten minutes the Convention was called to order and the following appointed as a committee for the purpose of determining the number and kind of standing committees that the Convention shall have:

Messrs. Pierce, Salt Lake; Anderson, Beaver; Snow, Washington; Francis, Morgan; Allen, Piute; Chidester, Garfield; Peters, Box Elder; Howard, Emery; Roberts, Davis; Heyborne, Iron; Robinson, Kane; Keith, Summit; Ryan, Juab; Kerr, Cache; Stover, Tooele; Jolley, Sanpete; Corfman, Utah; Buys, Wasatch; Maloney, Weber; Nebeker, Rich; Robison, Wayne; Thompson, Millard; Peterson, Grand; Hammond, San Juan; Miller, Sevier; Johnson, Uintah.

Mr. VAN HORNE. Mr. Chairman, Iwould request the chair to substitute some gentleman's name instead of mine on the committee on site and furniture.

The CHAIRMAN. Do you decline?

Mr. VAN HORNE. Yes, sir, I decline.

The CHAIRMAN. I substitute the name of Jacob Moritz on the committee on site and furniture in place of W. G. Van Horne.

Mr. CRANE. Mr. Chairman, I move we now adjourn until 10:30 to-morrow morning.


The Convention thereupon, at 3:45 o'clock, adjourned until 10:30 o'clock to-morrow morning.

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