[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.

The roll was called and the following named members were found in attendance

Adams
Allen
Anderson
Barnes
Bowdle
Boyer
Brandley
Button
Buys
Call
Cannon
Chidester
Christianson
Clark
Coray
Creer
Cunningham
Cushing
Driver
Kimball, Weber
Larsen, C. P.
Lemmon
Lewis
Low, Wm.
Low, Peter
Low, Cache
Lund
Maeser
Mackintosh
Maloney
Maughan
McFarland
Morris
Moritz
Murdock, Beaver
Murdock, Summit
Nebeker
Page

Mr. President. Prayer was offered by Rev. S. J. Adams, Baptist district missionary for Utah.

The journal of the twentieth day's session was read and approved.

Mr. Boyer presented a petition, signed by Frank C. Leonard and twenty others of the Christian Endeavor Society, of Springville, Utah County, for prohibition (file No. 156).

Referred to committee on schedule and future amendments and miscellaneous.

Mr. Morris presented a petition from Edwin Dalton and 102 others, citizens of Parowan, asking that the question of prohibition be submitted to the people ( file No. 157).

Referred to committee on schedule and future amendments and miscellaneous.

The committee on rules reported as follows:

MR. PRESIDENT:

The committee on rules, to which was referred resolution (not numbered) relating to morning sessions, herewith report the same, with the recommendation that standing rule 1 be amended by striking out “2 o'clock p. m.” on third line thereof, and inserting “10 o'clock a. m.”    

VARIAN,

Acting Chairman.

Mr. STREVELL. I move to amend by making it 10:30 instead of 10.

The amendment was rejected.

The motion was agreed to.

The committee on ordinances and federal relations reported as follows:

MR. PRESIDENT:

Your committee on ordinances and federal relations respectfully submit for your consideration their joint report of the accompanying draft of an ordinance on compact, and recommend its adoption. We also report back the following propositions referred to us:

File No. 118, by Mr. Maloney; of Weber.

File No. 153, by Mr. Raleigh, of Salt Lake.

With recommendation that the latter be referred to the committee on schedule, future amendments and miscellaneous.

HEYBOURNE,

Chairman committee on ordinance.

PAGE,

Chairman committee on federal relations.

Motions and resolutions.

Mr. CHIDESTER. Mr. President, I desire to make a motion, and as a preface to this motion, I wish to say that the object of the motion is to secure a speedy action upon the election bill. By a speedy action, I mean that it may not be delayed by the act of the minority, who have informed the Convention that they wished to make a report the other day. I believe that it is the object of some who do not favor this bill to delay it and for that reason the minority have not made any report. Of course, I may be mistaken on this, but the circumstances go to prove to me that this is the case. Therefore, I move you that the rules be suspended and {317} that we make the election bill a special order of the day, Wednesday, after the regular order.

Mr. HART. I second the motion.

Mr. ROBERTS. Mr. President, I believe that the gentleman from Weber, Mr. Kiesel, who desired to make that minority report, is not present. I do not know whether any of the other members of the minority are here or not, but I have observed by the calendar there, of the committee of the whole, that the elections and rights of suffrage has the sixth place, and for the life of me I cannot understand what haste there is over the report of the election bill, any more than the legislative, or any other part of the Constitution that is to come upon the floor of this Convention, and I protest against the assigning of improper motives to gentlemen in their work in regard to asking for a delay of this matter. As there is very much to consider, very many files on this committee of the whole calendar, I can see no reason why gentlemen are in such an all-fired hurry in this matter. If I were as cock-sure of my position in relation to this as the gentlemen of the majority profess to be, I would not be afraid of a little delay, even if that was the motive that was prompting the action of the minority on this subject, and I can see no reason why the rule should be suspended and this matter hastened. I will vote against the proposition.

Mr. CANNON. Mr. President, I am in favor of the motion to suspend the rules for the reason that I believe that It is time this minority of the committee should report. They have had abundant time. I opposed the other day the making of this article a special order for the reason that I

wanted them to have time in which to prepare their report and present it to the Convention. That has not been done and there seems to me to be a disposition to leave this matter open, for the secretary of this committee reported to us that the section upon which there will be a minority report was considered weeks ago, and that at that time the minority knew what the action of the majority would be. I favor making this a special order in order that this committee, or this minority, may present their report.

Mr. ROBERTS. Will the gentleman permit me a question?

Mr. CANNON. Certainly.

Mr. ROBERTS. Will you tell me what reason there is for hurrying this matter when it has already an early number on the calendar.

Mr. CANNON. The committee having this matter in hand have requested that the matter he taken up and set by a special committee, and I think that they have the conduct of that affair and they may have their own reasons. I know not what they may be but I am in favor of bringing it up at that time, in order that there may not be unnecessary delay on the part of the minority.

The PRESIDENT. I will say to the Convention that Mr. Kiesel has been called away and may probably be back here to-morrow, so I have been informed.

Mr. BUTTON. I want to ask if this minority report does not come in, if this will be delayed on account of it?

Mr. ROBERTS. Why, no.

Mr. MACKINTOSH. Mr. President, as one of the minority of that committee I will say that Mr. Kiesel is out of town. That will be prepared probably to-morrow, but as it was on the calendar the sixth in order we did not hasten about it at all; but it is coming.

Mr. CHIDESTER. Mr. President, I simply want to say this, that the object of wanting to make this a special order is to give them notice that it is going to be considered at that time, and when that time arrives they will have no reasonable grounds to say that they are not prepared to meet it and thereby set a delay when we reach it. We set it now so that they will have time to be ready to meet it {318} and they have just as much time to be ready to meet it as we have for the reason that the first day that the committee met that was the very first thing that was done_was to take up that section_not the first day, but it was agreed the first day that the next meeting we would take up that section and look it over. In pursuance of that we did take it up and look it over and passed upon it, and from that day until now they have understood that was going to be passed and they should be prepared just as well as we.

Mr. JAMES. Mr. President, if I could see wherein the majority of the committee would be injured, or discommoded or inconvenienced, I should vote for the motion to suspend the rules, but it seems to me that if every committee would pursue the course of this committee a great

portion of our time would be consumed in trying to place orders one ahead of another. It seems to me that the course for us to pursue to expedite our work is to let each article as reported by the committee take its place and take it up in its order. For that reason I don't feel that I can vote for the proposition to suspend the rules. I concede that each article should take its place and come up as the secretary records it.

Mr. SQUIRES. I call for the ayes and noes on this proposition.

Mr. THURMAN. Mr. President, I desire to say a few words before that is done. The question has been asked here why hasten this measure? I think frankness in all things is about the best policy to pursue. I will tell you why I want it hastened. I am informed by the gentlemen on the other side that we are losing votes every day. [Laughter.] I am informed by gentlemen of the other side that if we do not get this measure considered and carried that they will work up enough opposition to it to defeat it. For that reason I am in favor of suspending the rules and disposing of it just as quickly as possible. I do not want to see Democrats and Republicans who have unanimously, in all due solemnity, pledged themselves to carry out the principle, put themselves in the inconsistent position of trying on the floor of this Convention to defeat that which they have pledged themselves to do; and if I can save them_if we can prevent that inconsistency in the eyes of the world let us do it. There will be that much good done if nothing else. [Laughter.] Let us suspend the rules and put this measure on its passage and do what we have pledged to the people to do.

The question was taken on the motion to make the report a special order and it was decided in the negative.

AYES_61.
Allen
Anderson
Barnes
Boyer
Brandley
Buys
Call
Cannon
Chidester
Christianson
Clark
Coray
Corfman
Greer
Cunningham
Driver
Engberg
Evans, Weber
Evans, Utah

ABSENT_13.
Crane
Eldredge
Kiesel
Kerr
Larsen, C. P.
Low, Cache
Miller
Ryan
Sharp
Spencer
Thatcher
Thompson

Mr. THORESON. Mr. President, I was asked by Mr. Low, of Cache, to have him excused, but he asked to have his vote recorded aye, in favor of this proposition.

The PRESIDENT. It is, lost, gentlemen; it requires a two-thirds vote.

Mr. Brandley offered the following, and moved its adoption:

Resolved, that we, the members of the Utah Constitutional Convention, assembled at Salt Lake City, do hereby express our sympathy with the grief-stricken people of Wyoming in the calamity which has come upon them through the terrible explosion in Red Canyon; and, be it further

Resolved, that we devote one day's salary to the relief of the wives and children whose husbands and fathers have met death in this horrible catastrophe; be it further

Resolved, that the president of this Convention be and is hereby authorized to make the necessary arrangement for the proper distribution of the money thus received.

There being no second to the motion to amend, the question was taken on the adoption of the resolution, and the resolution was adopted unanimously.

Mr. CREER. Mr. President, I move that we now resolve ourselves into committee of the whole until 5 o'clock.

The motion was agreed to.

Mr. CANNON. I would like to ask the purpose of fixing the hour?

The PRESIDENT. That matter was corrected.

The Convention then resolved itself into committee of the whole with Mr. Evans, of Weber, in the chair. [Applause.]

COMMITTEE OF THE WHOLE.

The committee then proceeded to the consideration of the preamble and bill of rights.

The CHAIRMAN. Gentlemen of the committee, when we adjourned on yesterday, we had under consideration section 13 of the preamble and bill of rights.

Mr. THURMAN. We had disposed of that, hadn't we?

Mr. WHITNEY. Mr. Chairman, the committee, I believe, arose after hastily passing upon section

13, before some of us could get a fair idea as to how it would read as amended. I would like to hear the section read, before we proceed, as amended and passed.

The secretary then read section 13.

The CHAIRMAN. Gentlemen, we will take up section 14.

Section 14 was read and passed without amendment.

Section 15 was read as follows:

Section 15. No law shall be passed to abridge or restrain the freedom of speech or of the press. In all criminal prosecutions for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.

No law shall be passed to abridge or restrain the freedom of speech or of the press, but all persons shall be responsible for the abuse of the privilege.

In all trials for libel the truth may be given in evidence and shall be a sufficient defense, if it shall appear to the jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, and the jury shall have the right to determine the law and the facts. Upon instituting suit for damages for libel, plaintiff shall file bonds for costs or plead insolvency.

Mr. VARIAN. Mr. Chairman, that amendment goes further and does not accomplish what the mover intended. There is no objection so far as I know to inserting, if it is necessary, in the Constitution that the truth may be given in evidence in civil cases. That is the law now and in civil cases it is a complete defense to plead and allege the truth, because of the fact that the person claiming could not claim damages for an alleged injury consisting in something that was truthfully said about him. So far as criminal cases are concerned there is still another element in the interests of the State, which is always, or at least generally, at the present day interpolated in all laws on the subject_that before a defendant charged with criminal prosecution may be acquitted it must appear that he published the alleged libel with good motives and for justifiable ends. That is because the State in looking after its business does not permit the publication of even the truth, unless there be a good purpose and justifiable end connected with it. It is not so as

I understand in civil cases. Now, gentlemen will observe, as the section is amended that it is required not only in civil cases cases that the truth may be given in evidence, but that the defendant may go further and show, in order to escape being mulcted in damages, that it was published with good motives and for justifiable ends. Of course, I suppose that is not the intention, and if it were the intention, it ought not to be so. The defendant in a civil suit ought to be acquitted from damages if the publication was true, and there should not be added to it the further qualification or restriction that he must show that it was also published with good motives and for justifiable ends, as he would have to do if he were indicted. Unless taken out, the provision concerning good motives and for justifiable ends qualifies the whole matter. The committee will observe that that clause qualifies criminal and civil cases.

As to criminal prosecutions, it ought to stand substantially as it is, but as to civil prosecutions, if in the excess of caution and prudence we desire to put in the absolute declaration that the truth shall be a defense, it ought, to be remodeled and shaped in that way. As it stands now, it is carrying more, I think, than ought to be carried or was intended to be carried.

Mr. SMITH. Mr. Chairman, I have an amendment to offer. I move to amend section 15 by inserting between the word “all” and “criminal” in line three of said section the word “civil” and by adding at the end of said section the words, “under the direction of the court as in other cases.”

Mr. THURMAN. Mr. Chairman, I am opposed to both the amendments for the reason suggested by the gentleman from Salt Lake, Mr. Varian. Now, if I {321} comprehend this right (and if I am wrong Judge Goodwin will correct me), it is rather an infringement upon the liberties of the press that ought not to exist_that is to say to introduce amendments that in a civil case they would not only have to establish the truth of the libelous matter to be justified, but go further and show that it was published with good motives. Now, if it means that, the gentleman from Salt Lake, Mr. Goodwin, is asking for more stringency to be placed upon the press than I am willing to concede ought to be until I am further enlightened in the matter. These matters ought to be kept separate. The law of criminal libel is one thing as suggested by Judge Varian, and the law of civil libel is another thing. In criminal libel the truth may not be a complete defense, but the truth with good motives is a complete defense. In civil libel, if I understand the law, the good motives has nothing to do with it. A man has a right to state the truth and to plead it.

Mr. GOODWIN. Mr. Chairman, the law as has been practiced in civil cases goes as directly to the motive as to the truth. The particular stress that lawyers put is to find out the motives of the publisher and the great strain is to show, if possible, that there must have been deep malice, and on that they found their claim for damages. A man who publishes a newspaper_or a company, is responsible for it. If they publish what is true about a public man, the motive is implied. If they publish about a private citizen something that is true, they will have to show that they had a good motive in doing it. I meant it exactly as the language conveys. I think that the newspaper is responsible for what it says, but I protect it after that. I may say while I am on my feet, the amendment of Mr. Smith will, if adopted, have to be fixed, because in civil cases men are not acquitted.

In all civil actions for libel, if the truth is not shown, there is an absolute right in a citizen to recover what is termed compensation, this is to say, damages commensurate with the injury done to him in his reputation. The question of malice never enters into it, except when it goes further and seeks to recover what lawyers and the law know as vindictive or punitory damages, which are awarded by way of punishment or smart money. He may or may not claim such damages, or his case may or may not present a case for the awarding of such damages. In either case the truth will defeat the claim. Now, as to the amendment offered by my colleague from this county, I call attention to the fact that the last clause which he would put at the end of the section absolutely neutralizes the provision as found in the section, giving the jury the right to determine the law and the fact in criminal cases, which is the law everywhere today and has been ever since it was adopted in England after the great battle in Westminster hall. In criminal cases, if it should stand without any reference to the other amendment offered by the gentleman from Salt Lake, Mr. Smith, it would provide that the jury might determine the law and the fact as in other cases under the direction of the court. What does that mean? It means nothing. I submit to the gentleman, in either case, except in cases of criminal libel, the jury determine the question of law and fact under the direction of the court. It simply neutralizes itself. What I think the gentleman desires is to give the jury the right to determine the question of law and fact in criminal cases only, without reference to the court at all, except that {322} the court has the right to declare what it supposes the settled, law to be and then the jury can go off and decide that question in accordance with its views, or otherwise.

The question being taken on the substitute of Mr. Goodwin, it was rejected.

Mr. GOODWIN. Mr. Chairman, I move that the section be stricken out entirely. As it is, I think the section is a menace to everyone, who publishes a newspaper in this State. I think that it would be so construed by two-thirds of the courts. In all the constitutions I have ever seen the same protection is thrown around civil as criminal cases. I believe that the ordinary judge, with this mandate in the Constitution, would rule that that was the supreme law and that there would be no use of pleading the truth, or anything else in the libel case.

Mr. WELLS. Mr. Chairman, I will say in behalf of the committee that had this matter under consideration, that I don't remember now that there is any constitution, excepting perhaps Wyoming, wherein there is a similar section providing that the civil and criminal prosecutions shall be taken together, as the judge has stated, and this section, just at it stands here, is the same as in New York, California, Michigan, Wisconsin, South Carolina, and Maine, and there are similar provisions in a great many of the states.

Mr. GOODWIN. Mr. Chairman, I wish merely to say one word in explanation. There was a second paragraph in that section. I intend to explain to the committee that under all the circumstances it would come under the head of legislation; but the libel law has been two hundred years or more in getting up to the present state of barbarism, and in this country forty-

four constitutions have been made and a good many of them have been remodeled and that particular feature to protect newspaper publisher's against blackmailers has been left out. That is the reason I put it in. I care nothing about it personally. I was asked to do it by a great many members of the Press Association of this Territory.

Mr. FARR. Mr. Chairman, I have a motion to suggest or make to strike out all of section 15 after the first two lines.

Mr. VARIAN. Mr. Chairman, do not let us be in a hurry about that. If gentlemen will take the trouble to study the history of the law of libel, they will find that this provision on the criminal prosecutions became engrafted under the law of England, and into the law of the United States after fierce and bitter defense of the liberties of the press. The battle was waged for many months running through years in Westminster hall.

Prior to that time the law of criminal libel was expounded by courts of England in this wise: The jury was left to say whether the matter was published or not, and the courts upon that looked into the alleged libelous matter and determined for itself and against or for the prisoner, whether it was libelous or not, and thereupon judgment was awarded. Now, the people of England made that fight through their bar, led by a Lord Erskine, and they won it after repeated and unsuccessful attempts so that the criminal law of libel was changed, leaving it to the jury in all cases to determine, not only the question of fact, whether the accused published the libel, but as to whether it was really libelous and whether it was under such circumstances that the man ought to be punished for it. That is the law of the United States today. In substance, I believe it is in the constitution of every state. So far as my observation goes at least it is so administered. Why then take it away from the jury? If the gentlemen desire to add further provisions as to civil cases, that can be accomplished by offering an independent amendment without interfering with {323} this matter, which ought to be left in the organic law. I submit that we do not want to strike that out. We do not want to take that from the jury, We want to leave that just as it is in criminal cases, that the jury shall judge of the law and the fact, and if you want to add to it a proviso, because you are desirous of making it perfectly clear in due caution, that in civil cases the truth may be offered in evidence, why, you can put that in by an addendum.

The question being taken on the amendment proposed by Mr. Farr, the amendment was rejected.

The motion of Mr. Goodwin to strike out all of section 15 was lost.

Mr. KIMBALL (Weber.) Mr. Chairman, I offer this amendment, to add to section 15 the following matter, “and in civil prosecutions for libel the truth may be given in evidence, and if it shall appear to the jury that the matter charged as libelous is true, it shall be a complete defense.”

The amendment was rejected.

Section 16 was passed without an amendment.

Section 17 was read as follows:

Section 17. All elections shall be free and equal, and no power, civil or military shall at any time interfere to prevent the free exercise of the right of suffrage. Soldiers in time of war may vote at their post of duty, in or out of the State, under regulations prescribed by law.

The amendment was agreed to. Section 18 was read as follows:

Section 18. No ex post facto law or law impairing the obligation of contracts shall ever be passed.

Mr. WELLS. Mr. Chairman, the committee had that under consideration and thought that it was better out. A great many of the latter states have left it out and the committee have never heard of any such thing and deem it unimportant

Mr. ROBERTS. Mr. Chairman, as I understand the object of the Constitution it is not to create facts or customs but is really to declare what the custom is, and to say that because it was never heard that there was any bill of attainder ever passed in this country or State, is no reason why its prohibition should not be fixed when we are making up our Constitution. I don't suppose there has been any ex post facto law passed in this country.

Mr. WELLS. A great many of them.

Mr. ROBERTS. But whether that be true or not, it seems to me that the proper thing for us to do is not so much to slight things that are customary, but to declare what that custom is. Nearly all these provisions in the bill of rights rest upon the customs and declarations of what the real situation is. I do not think that that is a proper reason to give for refusing to insert this bill of attainder, that there has been nothing of that kind known in this country.

The motion was agreed to.

The section as amended was adopted. Sections 19 and 20 were adopted without amendment.

Section 21 was read as follows:

Section 21. No distinction shall ever be made by law between resident aliens and citizens as to the possession, taxation, enjoyment, or descent of property.

in accord with the progress made with other nations. To illustrate: Some years ago the federal government made a treaty with France in which the French government agreed that American citizens in France should have the same rights under some few restrictions as its own citizens in regard to the use and enjoyment of property. Reciprocally, the United States agreed during the life of the treaty that the same privileges should be extended to French citizens. But it is not desirable, I submit to the committee, that this matter should be permanently determined in the organic law. If a war should break out between this government and another country, it might be very necessary that all the rights of sovereignty should be exercised, which, in such cases, would include even the confiscation of the enemy's property, or the property of the alien enemy. Of course, that would be an extreme case. The exercise of such extreme power would have to be an exceptional case in the present age of modern civilization. Still, it is reserved and ought to be to every government. You can imagine cases where it would not do at all to have a large portion of your agricultural lands, for instance, on which you rely for the support of your people and your State, owned and in the possession of foreigners. It must be in a situation so that it could be made useful in accordance with the exigencies of the occasion, the necessities of your people; and for that reason, I think the matter ought to be left to the Legislature. Particularly is it true in the absence of the assertion of the right of the government to take from an alien the property which he holds. I speak of real property. He can hold as against anybody else in the absence of a prohibitory law. Of course, Congress has passed one so far as this Territory is concerned,
but supposing this Constitution says nothing about it, and the Legislature says nothing about it, an alien can hold. He cannot transmit his property through his ballot; it cannot be transmitted by the descent to his kindred, without the express provision of law authorizing it, but he can hold it and enjoy it. He can hold it for his life; he can hold it until the government comes in, and through its officers, escheats it to the use of the government. Now, why not leave that for the Legislature to act upon? It can ascertain what countries extend the same privileges to the citizens of the United States, and can limit such privileges if it chooses, as seems to have been the course of governmental policy elsewhere. or it can say nothing about it, but whatever it does, it can change it from time to time; but if you put it in the organic law here it will take years to change it.

Mr. WELLS. Mr. Chairman, I would be in favor of striking out the word, “resident” in line two.

The CHAIRMAN. Do you move that as an amendment to the amendment of Mr. Varian?

Mr. WELLS. Yes, sir. The purpose of the committee in inserting this section was that the Territory or the new State is in need of capital. One of the great essentials to the prosperity of this country is the investment of foreign capital, and this is a guarantee to the people who reside abroad that if they will invest in property in Utah no distinction shall be made as to their property, as to its enjoyment, taxation, and descent, from the property of citizens of the State. I am informed that in Salt Lake City now there are a great many foreigners who have invested, as well as in other parts of the Territory. One gentleman, who resides in Liverpool, has as much as three hundred and fifty thousand dollars' worth of property in Salt Lake City. The statement has been made that possibly the new Constitution would make some such {325} distinction as this, or would make some distinction against the property of foreigners, and this was put in as an invitation for foreigners to invest in the Territory.

Mr. VARIAN. Then, the only motion is to strike out the section as it stands?

The CHAIRMAN. Yes, sir.

Mr. VARIAN. I want to reply for a moment to Mr. Wells, and suggest this, granting all that he says, how can that affect this question that I am speaking of? There may a time come when the State will want to make a distinction between property rights as to the holding of land and the transmission of it by descent between aliens and its citizens. As I understand it the State could not confiscate the property of a man, it could not impair the obligations of his contracts, if he came in here and held property. Why not leave it to the Legislature to determine when and under what circumstances, and for how long they will permit aliens, resident or otherwise, to hold land? I don't care so much about the taxation proposition; I know that they would not tax them any higher than other people anyhow. It would not be permitted, because you have another provision in that Constitution that taxation will be equal and uniform. The court would hold the alien was entitled to the same protection under that section as the citizen.

Mr. JAMES. Mr. Chairman, I can appreciate very readily the motive of the committee in adding this section. So can any man that has been familiar with the mining industry in this Territory in the last few years, since the land act became a law. Gentlemen who are familiar with what has been going on know that states like Idaho_in a short period after the state came into the Union, received from Europe about seven millions of dollars invested in mining enterprises, while the Territory of Utah hardly received that many hundred dollars from foreign countries, and I suppose probably that is one of the reasons why we find that commonly in the new states that have come into the Union. That alien land act has worked, in my judgment, very severely upon the Territory, and to give this out, as it is put forth in this article, I think is surely going to help out and say to the balance of the world that if they may come in here and purchase property, as they did in Idaho and other new states adjoining, and I am in favor of the article as it stands.

Mr. MALONEY. Mr. Chairman, I am in favor of the article as it now stands, because it is copied from the constitution of Wyoming. I don't think it is wise to make a distinction between a resident and non-resident in holding property in the State.

Mr. VARIAN. If the gentlemen will excuse me, I will withdraw the motion.

Mr. THURMAN. I object; I think it is a good motion.

Mr. MALONEY. The section as we have it is copied from Wyoming. I think it ought not to be stricken out. We want to encourage foreign capital to come here.

Mr. THURMAN. Mr. Chairman, I think the motion ought to prevail. If some gentleman from Liverpool has three hundred and fifty thousand dollars in Utah, under what law did he bring it in? He didn't have anything of this kind as a protection. He knew that he had protection without it.

Now, this is unquestionably a matter that ought to be left to the Legislature. They will never abuse a trust of that kind. Can you conceive of a Legislature that will want to legislate against the introduction of capital under proper circumstances and at proper times? We have {326} had no such law before. We have had nothing declaring this inequality, but they have been equal just the same. But there may a contingency arise in this country when this power, or rather this limitation upon the power of the state government, will be exceedingly dangerous. I think that it ought to be wiped out and left entirely to the Legislature. For that reason I am in favor of the motion to strike out.

Mr. WELLS. Mr. Chairman, I desire to state_the gentleman has said that this is the same proposition that is in the state of Wyoming. I will say that it is also in North Dakota, Arkansas, Nebraska, South Dakota, Wisconsin_as many as that and I don't know how many others.

Mr. ANDERSON. Mr. Chairman, I would be in favor of the motion for this reason, that there may come a time when the safety and defense of our government might require that there should be a distinction between aliens and citizens, in regard to holding property, and I think that it can be safely left to the Legislature.

The CHAIRMAN. Gentlemen, the motion of Mr. Varian, of Salt Lake, was to strike out section 21. Mr. Wells moves to amend by striking out the word “resident” in line 2.

Mr. THURMAN. Mr. Chairman, I raise a point of order on that; that is not germane.

The CHAIRMAN. If the point of order is raised, I shall have to sustain it.

The question was taken on the motion of Mr. Varian, and on division there were: ayes, 49, noes, 43.

Section 21 was stricken out.

Section 22 was read as follows:

Section 22. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist in this State.

Mr. EICHNOR. I think that is the language of the Constitution of the United States.

Mr. WELLS. Exactly.

Mr. EICHNOR. I believe in adhering to the Constitution of the United States when we copy it.

Mr. WHITNEY. It is a hundred years old.

Section 23 was read as follows:

Section 23. Private property shall not be taken or damaged for public use without just compensation.

Mr. ROBERTS. Does that mean before the damage is done?

Mr. THURMAN. No; I move to strike out the words “or damaged.”

Mr. VARIAN. Mr. Chairman, I call for a division of that_there are two motions.
T
he CHAIRMAN. The chair will divide the motion so that the question on striking out “or damaged” will first be voted upon.

Mr. THURMAN. Mr. Chairman, I would like to suggest to the gentleman from Salt Lake, Mr. Varian, that my purpose in offering this amendment is to provide for a compensation being made before the property is taken. If the words “or damaged” are put in there that cannot be very well determined. There ought to be a separate section covering the damage of the property.

Mr. VARIAN. Mr. Chairman, I am in accord with the motion of the gentleman to require the compensation to be first made, but it seems to me that {327} to strike out “or damaged” is a very material matter. I have taken pains to look at it a little to-day in the late works on eminent domain, and I find it is put in other constitutions or statutes to meet the entire case. In some states some courts have held that damage to property of a consequential kind was not necessarily within the meaning of the article of the constitution. For instance, I believe in Pennsylvania_I may have confounded the state_the question arose where an elevated road was erected upon a street and while it did not touch the property of the abutting owner, did not destroy a brick, did not take a foot of his ground, it did affect his use and occupation of his premises very disastrously. It affected the convenience of the inhabitants of a house, and in this particular case, following later, it was held that there was no remedy. There was not the taking of the property. Now, the courts of New York went off in another direction and it is finally settled in that case that such injury as that could be compensated under the law of eminent domain. To make it perfectly clear this word has been put in laws and constitutions, and the text-writers say that it is an equivalent for any kind of injury of that kind.

Mr. THURMAN. Mr. Chairman, I agree that the compensation ought to to be made, but the trouble would be to make it first in the case of a consequential damage.

Mr. FARR. I do not see why. Take a case like that. It could be estimated. There could be no subsequent change; there is the railroad; there is the house; there are the windows; there is the

deprivation of light and air; there are all the necessary inconveniences of noise and soot and cinders, and disturbing the peace and rest of the family. That can be compensated for just as well in the beginning as it can after the lapse of ten years, because the means of arriving at the estimate are within the knowledge of men and can be adduced before a jury. I do not care how the gentleman does it. I do not wish to be technical about it; I would like to see those words, “or damaged,” kept in some way.

I hope those words, “or damaged,” will remain in that section. I do not wish to argue the point, but I can see in a great many instances where it would be very important. For instance, on a sidewalk, a person owning land; they dig down a bank ten or fifteen feet. and damage that lot to a great extent. I think the man should be remunerated for the damage done to his lot. I move that those words remain in that section if they possibly can remain there.

Mr. THURMAN. Mr. Chairman, my objection to the words “or damaged” is the utter impracticability of providing for compensation before the damage is done. Now, I will cite an instance familar to a great many. A few years ago people in Salt Lake County placed some boards in a dam here at the point of the mountain; they had a right to do that if they did not damage anybody and I don't suppose they thought they would damage anybody, at the same time they did it; but the result was that a great many people in Utah County were damaged, after the act which caused the damage. Now, in a case of that kind how would compensation be made before the act was done which caused the damage? Damage is not always_in fact is not often contemplated or expected. It comes unlooked for as the consequence of an act which the party performs. Consequently it seems to me that as to taking property by the law of eminent domain they should have the right to take it when they pay for it, if the necessity for taking it exists. As regards damaging it, why, it ought to be paid for as soon as the damage can be ascertained. It seems to me that this is the only way that it can be done.

Mr. EICHNOR. Mr. Chairman, if I {328} understand the gentleman correctly, from Utah County, he would be in favor of striking out the words, “or damaged.” Gentlemen. I hope this amendment will prevail. Just for the very reason that the gentleman from Weber County said it should be in the Constitution. Take a city like Salt Lake, where grading is required, or any other city where grading is required, and you will bankrupt those cities if you place this in the Constitution. Every man that owns property in the street_the street will be graded and one or two or three people will claim damages and the result will be it will bring the municipalities into court.

Mr. VARIAN. Would not the compensation benefit always allowed in a case of that kind more than equalize the damage?

Mr. EICHNOR. The law is unsettled at present in regard to the grading of streets whether they can secure damages; it would simply bankrupt Salt Lake City, I tell you that, gentlemen if you place this in the Constitution.

Mr. PIERCE. Mr. Chairman, I am in favor of retaining the words “or damaged.” I recollect a spectacle a few years ago of grading in Salt Lake City. There was a certain street_I believe it was State street_the grade had been established for some years, and the city came in and established a

different grade and built the street up some ten feet higher than property abutting on it. There is a spectacle where they could not get any damages for it, and the street as it was built absolutely destroyed the value of their property and they could not get a cent for that. I say that it ought to be fixed so that the city must adjust the grade for the accommodation of people that own
property along a certain street and that is the reason that I am anxious that the words “or damaged” should be left in. And in speaking to the remarks Mr. Varian made, I desire to read a line or two from Lewis in his work upon Eminent Domain:

“When the people of Illinois revised their constitution in 1870, they introduced an important change into the provision respecting the power of eminent domain. The provision reads as follows: 'Private property shall not be taken or damaged for public use without just compensation.' Every other state which has revised its constitution since 1870, except North Carolina, which never had any provision on the subject, has followed the example set by Illinois by adding the word 'damaged' or its equivalent to the provision in question.”

Mr. RICHARDS. Mr. Chairman, I am opposed to the motion to strike out the words “or damaged.” I believe, as has been said already in this discussion, that when the public use a man's property or make an improvement that virtually destroys the use of that property, that they should pay for it as much as if the property itself were taken. Of course, as has been suggested by the gentleman from Salt Lake, whatever benefit results by reason of this improvement is set off against the damage that is caused, and in that way the public gets absolute justice in relation to the matter, but to say that a public corporation should be permitted by the {329} raising of a grade or by the lowering of a grade or by any other kind of improvement to injure private property and because they don't actually enter upon and take the property itself, although they do destroy the use of the property, that they should be liable for damage; I think it is unjust and unfair and I am therefore opposed to this motion.

Mr. RALEIGH. Mr. Chairman, I propose a slight amendment, “Private property shall not be taken for public use or damage without just compensation first be made.” Simply a reconstruction of the section, that is all.

The CHAIRMAN. The chair rules that that would be a proper question on revision and compilation.

Mr. THURMAN. Mr. Chairman, I will withdraw the motion to amend as far as “or damaged” is concerned if it is not objected to.

Mr. CREER. Mr. Chairman, I am in favor of the motion of the gentleman from Utah, that the amendment shall be added to the section for the reason that notwithstanding the gentleman from Salt Lake says compensation may be secured, yet we know of cases_there are many in the Territory where property has been taken and the party dispossessed and that the property be litigated for for considerable length of time and the party kept out of possession, notwithstanding there may be a bond there, and at the same time probably he would have to sue upon the bond afterwards. I think it is a very strong proposition anyway to give the public a right to dispossess a private person of his property summarily and it seems to me he ought to be compensated before that is done, because he may be put to a great inconvenience and loss of time. He may have to sue even upon the bond after he should vindicate his rights in the court. Therefore, I am in favor that if that should be required, he should be first compensated before his property is taken.

Mr. GOODWIN. Mr. Chairman, I do not believe the committee can pass such an amendment. Emergencies may arise when it would be simply impossible to carry it out. What there ought to be is a law (and that belongs to the Legislature) to compel fair treatment both ways. It is true that railroad companies have had the right of way, and they own and have owned for thirty years where they have gone through. It is just as true that if you try to build a railroad through some back street in Provo, or up to some mining camp, you would find yourself confronted with the most ridiculous property values you ever heard of, and every man in that town that you would get as an appraiser would raise the price. It is all right as it is; let the Legislature fix it sometime within a year that the property shall be paid for and that the party taking the property shall give ample bonds. In this bill of rights it is simply foolish to put something that cannot be executed, because emergencies would arise in the mines, in the cities, and in the fields, where there are floods that would make it impossible. Sometimes the thing is to be acted upon in a moment, and there will {330} be no one to pay in advance, or to estimate in advance what the damages shall be.

Mr. VAN HORNE. Mr. Chairman, I want to call the attention of this committee to the fact that there are other cases in which it would be impossible to make the payment before the work was done, which would be held to be damaged. Take the instance that has been brought up by grading of a street. We all know by experience that many a time men at the time the street was driven through and the grade is changed think their property is injured and injured very severely. But upon further consideration, and seeing the benefits of the work that had been done for the public they find that where they would have considered themselves greatly damaged in the first instance their property, in the eyes of every real estate man, has actually been improved and increased in value. Now, if the damages have to be paid before the property was taken or damaged, do you

suppose that any one would come to the conclusion, no matter how much others did, that he had been robbed in receiving the damage that he thought he had sustained at the time and was ready to pay it back to the public?

Another instance, we will take the case of a railway which in some manner, rightfully or wrongfully, has acquired its right of way, and we will say a hundred feet on each side of the railroad track, or two hundred feet wide in all, or a hundred feet wide; another railway wants to cut across the line and they know they are going to be a competing line, how long do you suppose it will take the railway in possession to come to the conclusion that they are not going to let those people go through on a decent rate of damages? They will hold them there until the charter of the other railroad expires if it was possible to do it. And where you make a law of this kind and say that the damage must be paid first, how are you going to estimate your damage? They say, “we will be damaged ten thousand or ten hundred thousand dollars by you crossing our tracks.” The law provides for it now, it says, “you can proceed with your condemnation proceedings by giving a bond to answer in damages. What is the trouble with that? Why not have it? Are we going to have only the railroads that we have here now or are we going to have others that will cross the tracks of this, that, or the other corporation? The same thing will come_suppose a railroad was going to a mining camp and there was a narrow canyon and some fellow had a claim and one corner of it lapped over the proposed course of that railroad; his claim is benefitted by the railway, that strip of land with no mineral on it would be worth for that occasion ten times the value of the mineral part of the claim, and he would assess his damages to the railroad company at such a figure that if they paid many such claims as that, it would cost them double the amount to build the railroad. Now, is not the citizens protected by the fact that our laws would say that the bonds must be filed to secure the damage, then the work can proceed, so that there will not be this unnecessary delay? Would not the public be benefitted by forcing a railroad company upon bonds being given, to let another railroad company cross their track? Are not we looking for the development of this country and not to say that those who are in possession of surface ground of one kind or another shall say to the world, “Oh, you cannot cross our ground without paying us what we estimate it is worth, no matter what the development is that is done; we do not want the land; we say we do for this occasion. We are not using it, but you cannot use it: we will sit here as guardians of the right of way, and this, that, or the other thing, and say you must {331} not come until you pay us just what we see fit?” Gentlemen, such an act as that, in my opinion, would be putting into the hands of men who wanted to act as obstructionists, the power to act as highwaymen to every enterprise that came along, and say, “throw up your hands and give all your money to me”

The Hon. John Clark was admitted to the floor, at the request of Mr. James.

Mr. BOYER. Mr. Chairman, I hope the motion to amend will not prevail for the reason that I have a case in my mind now. Some two or three years ago a certain railroad company building a railway to Springville, having right of way, and they had fairly and justly compensated the parties for properties that they had used for their road. Subsequent to the building of the track and the running of the line it appears as though the erection of the grade had caused also some swamp lands to arise to a very great damage to the party that was interested there. It was a subsequent damage to that that could not possibly have been thought to have been asked for at the time of the

construction of the road; hence I think, as it has been stated by a number of persons here, that to collect a consequential damage would really be inconsistent, and as I construe this section as it reads “private property shall not be taken or damaged for public use, without just compensation,” that it conveys to the party owning the property the idea that he holds and has an inherited right in his property, and when just compensation is made therefor, he is entitled then to convey a title to the property. And furthermore, in answer to the gentleman on my right in relation to a railway holding another railway company off, the construction I place upon this argument is this, that if one railway company be a private corporation, owning private property, all other railway
companies of necessity must be private corporations, and consequently in relation to railway companies may not fully apply here; or private property taken for public use does not really and necessarily mean that a man's private property taken for railway purposes is converted to a public use, but it is converted to a private corporation and the private corporation eventually uses the road for public purposes; and hence, I believe that the right in private property is covered and provided in the section following, 24. I believe it is there fully covered and that section 23 guarantees all the rights of the individual that are necessary. And if I understand what constitutes the conversion of property to public use, the public is always good for the damages that may accrue against the private individual.

Mr. THURMAN. Let me ask you a question.

Mr. BOYER. Yes, sir.

Mr. THURMAN. Please tell me under what provision of the next section you place a railway company. If it does not come under the head of public use, where does it come?

Mr. BOYER. I would say this, that I have to place it in just the same position that I would a man that would own one acre of land_a railway running through and across that ground, that is given to a railway company, I would hold to be a private corporation, and as such they would be entitled to compensate the individual for the damages they would do the property they would take and also be liable for any subsequent damage that might be done.

Mr. Howard offered the following substitute for section 23:

Private property shall not be taken for public use without just compensation first made, and no private property shall be damaged for public use without just compensation to be determined by a competent tribunal.

corporation, or of any corporation, public or private, taking any private property that it does not pay for. I want that distinctly understood; but I do say that when provision is made by the giving of bonds for the payment of the value of the property taken, or of the damage that may be sustained to the property by reason of the use that it may be put to, then the party owning the property is safely protected and the public improvement can go on, whether it be taken by a public corporation or whether it be by a private corporation. For example, a railway company desires to construct a railroad and they are met by the exorbitant demands of perhaps one or two or three, or a dozen persons owning land on the line of their road. These people say “we absolutely refuse to make any terms with you,” or they put their price so high that the railroad company feel they cannot pay it and ought not to pay it. Perhaps several times as much as the property is worth; perhaps they do not want the railroad there at any price. What is the result? Proceedings for condemnation would have to be taken, and according to the experience of the courts, as we have had them here for years past, one or two years would be consumed in determining the value of that property, and the compensation to which the owner was entitled, before the railway could be constructed. Railroads would not be built under those circumstances, and railway companies do not project railways this year in the expectation that they will construct them two or three years hence. By the time they had acquired the title to their property and the right to pass over it, the exigency, or the desire, or the necessity for the railway may no longer exist. It may not be desirable and the road might never be constructed.

I say that under the present law, they have all the protection that is necessary. Just such a law as we may presume that the Legislature would pass in the new State, and that is when any company_a private corporation or a public corporation_would enter upon the property of another person, or of a company or a corporation, that they should give a good and sufficient bond to be responsible for the damage that may be awarded and then they can go on and construct their improvement, and as soon as the courts can determine the question, the party gets his pay.

Mr. VARIAN. Will the gentleman answer a question?

Mr. RICHARDS. I will try to if the gentleman will ask it.

Mr. VARIAN. I just want to know if it is your idea that the railway company should take the man's farm whether he is willing or not, and then litigate it or not?

Mr. RICHARDS. It is my idea that if a railroad is projected through my farm and I refuse to make reasonable terms with the railway company, that the company may enter upon that ground and by giving a proper bond they may take possession of it, and when the value of that property is determined and the damages I have sustained_they are to pay it. That is my idea of {333} it exactly, and I say that if I don't adopt this method_if you adopt the other method, then you put a block in the way of progress and of development in this country, and in this new State, that the people of the State do not want to have there; that is what I say. I instanced it in the very example I have stated. I can point to cases now that are pending in the district court in this district that have been pending there over a year_just such cases as I am speaking of where companies have entered upon the property of people, who refused to enter into negotiations with them or to agree with them on a fair compensation for that property; they entered upon it and gave their bonds,

and from that day to this the court has not reached that case and they haven't been able to litigate it. Now, would you say that railroad should not have been constructed_that that public improvement, whatever it might be, ought not to be made. Why, if you say that, you will not have railroads, and many other public improvements will not be made, for the reason, as I have stated, that when men enter into these undertakings that involve the expenditure of large amounts of capital, they do it because the time is ripe when they enter upon the enterprise for the accomplishment of it, and if they cannot accomplish it within a reasonable time, if they have got to wait two or three years before they can commence the construction of the road, they are not going to build a railroad, they are not going to project it. For that reason, I say I am opposed to it and I say that the individual has ample protection, when the owner of the property and the company that desires to take it cannot agree upon its value and upon the damage that will be incurred, and a sufficient bond is put up, as soon as the matter is determined he gets his money.

Mr. JAMES. Mr. Chairman, I hope the gentlemen will be a little patient. I don't believe there is a question to come up before this Convention that will be of greater importance to it than the one that is being discussed right now. I am heartily in accord, Mr. Chairman, with the remarks of the gentleman who has just been on the floor, Mr. Richards; I don't believe we can afford in this Convention to take that matter out of the hands of the Legislature. I am in favor of the Legislature meeting and arranging how this shall be done. I say that we can afford to be as liberal as the great state of Illinois. There is a state that is almost one solid garden. It is said that there is not one point in the state of Illinois that is ten miles from a railroad. Now, what do they do? They leave it to the Legislature, and as it has been read on this floor already during this debate, they simply say that damages and compensation shall be allowed by a jury or fixed by the state. They leave it to the Legislature. Now, why cannot we be as liberal as they are? Mr. Chairman, I can tell you why we cannot be more liberal than they are, for the very reason that the lands that our railroads are built over into this great vast desert country are far less valuable than they are in the state of Illinois.

This is a country of the most difficult kind to build railroads and maintain them in. We have long hauls, and the most heavy grades that are to be found anywhere in the world, and in order to build railroads we must give them an opportunity and a fair show. Now, the gentlemen that are familiar with the construction of railroads through these canyons and these mountains all know what the builder of a railroad has to contend with. I have seen it myself, within twenty-five miles of this town. I have seen a railroad blockaded for three months and our men behind their breastworks to prevent that railroad from passing over a little piece of land that was not worth one cent, and is not worth today one cent, only for to lay that roadbed upon, {334} and the work that existed there at the time when these gentlemen took possession of this land was nothing more than some holes dug into some copper-stained rock by some gentleman that had thought previous to that that
there might be some mineral found there, and when this man found the survey was being made and the road must come over that point, he rushed out and locates and takes possession, and what did he do? He blocked the Bingham canyon railroad for two months and two men were shot over it. Now, why not allow this matter to be put in some shape so that these difficulties can be adjusted without compelling the land to be paid for, or the damages to be assessed and paid for before that railroad is built? I want to call the attention of the gentlemen of this Convention to a point that they may not stop to think of. You take the state of Montana, the state of Wyoming, the

state of Idaho, and the territories of Utah and Arizona, and the state of Colorado, and the state of Nevada, and the territory of New Mexico, and it represents an area in extent equal to a country east of the Mississippi river, or say east of the Missouri river, that contains pretty nearly thirty- seven millions of population. What is the population of these states of this inter-mountain country that I have just named to you? Less than eleven hundred thousand. Now, in that sparsely settled community with interests in common with each other, where railroads must extend in order to make them valuable, are you going to put an obstruction in the way of building those roads? You will, my friends, if you adopt the proposition that the lands must be paid for and damages assessed and paid for before the railroad can move, or, as Mr. Richards says, you will find instances where they will remain in the courts maybe for two years and prevent an enterprise being carried outwhich will be of great advantage and great value to the community in which that railroad is constructed. And I hope that the original proposition will prevail. I hope this Convention will leave our legislators to regulate that matter so that we can go ahead with our enterprises, with any railroads, with any factories, with any ditches, and all such things. And if we do not have them, we cannot be a prosperous and happy people. And, Mr. Chairman, the industrial system of a nation or a state is a more delicate thing than is often thought. We have an object lesson before us in the last few years, when the country was all in prosperity and everything was moving and nobody could realize_

Mr. PETERS. Mr. Chairman, I arise to a point of order; I submit the gentleman has left the main question and is not talking about rights of way.

The CHAIRMAN. The chair thinks the gentleman is in order.

Mr. JAMES. With this condition of things, before we knew it, we were in one of the hardest and most panicky conditions that a country ever saw, and I simply mention this, Mr. Chairman, to call the attention of this Convention to the importance of being careful how they deal with our industrial institutions in our new State.

Mr. EVANS (Utah). Mr. Chairman, I must confess that in listening to the oratory displayed by gentlemen of this committee upon my right and upon my left, I can hardly tell what some of them are in favor of. They think in their remarks it ought to be left to the Legislature. They presume to say they believe such a law ought to be enacted, while others believe it ought not to be. One of the gentlemen from Salt Lake, speaking upon this question, has reminded us very fortunately that many of these cases are taken into court and they are litigated for two or three years. I want to say to you, sir, that that is one of the reasons why I am in {335} favor of this amendment_for the reason that if it should be in litigation for two or three years, the individual whose property would have been damaged would have been taken and diverted for uses other than his own, has to remain out of the use of his money. I am opposed to that system. But, if the corporation that is seeking to take the property of the individual shall be told “thus far and no farther,” you will find that there won't be a single case that will be in litigation for six months, but those corporations will proceed, as they will have the right to do, and they will force that question to an issue, when perhaps the power of an individual will be unable to accomplish that. If they should come against one of that class, he has assumed to say he had refused to make a just compensation, I take it, sir, that in that language he desires to say that railroads offer compensations that are just in every

instance, and because men refuse to take them they are not just. Upon the other hand, my opinion goes in favor of the individual. I believe in nine cases out of ten that the individual whose property is to be taken for these uses is willing to make a sacrifice rather than to demand what is just, and I am in favor of this prevailing. I want to say to you that the Legislature have not done that in the past, and so far as I am concerned I am ready to cast my vote to place that restriction and say that they must do it in the future.

Mr. EICHNOR. Mr. Chairman, I am in favor of striking out the words “or damaged.” I gave my reasons particularly for it, but the committee thought differently. I am opposed to the amendment for several reasons; but the main reason I am opposed to the amendment is this: The Constitution of the United States says, “Nor shall private property be taken for public use, without just compensation.” That is the law of the United States. Now, why not have the same law in this State?permit me to answer him_because that was made a hundred years ago and it is found necessary by experience to change it.

Mr. VARIAN. Will the gentleman

Mr. EICHNOR. The amendment was not made a hundred years ago. Now,
I am opposed to tacking on this proposition that compensation shall be first made, and I hope this committee will vote it down. I tell you, gentlemen, frankly, that if we sit here, day after day, and commence to improve on the Constitution, that the people, when they receive this Constitution, will vote it down.

Mr. HOWARD. Mr. Chairman, I am in favor of the language quoted by Mr. Eichnor from the Constitution of the United States, and I believe that language is incorporated in that substitute. I am also in favor of the last provision which reads, “And private property shall not be damaged for public use without just compensation, to be determined by a proper tribunal.” Now, that does not mean the damage must be paid for before it is done. It means that after the damage is done that a proper tribunal will take hold of it and assess the damage, and the party who did the damage shall pay for it. The first means that no property shall be taken until it is paid for. The other means that the damage shall be paid for after the damage has been done, and after the damage has been properly assessed. I believe the substitute will cover the ground of the objections made, and I think it ought to carry.

Mr. SNOW. Mr. Chairman, it is not often that laymen have interjected their opinions into the discussions that have taken place over the bill of rights, and I think the great majority of us would have been content to let the lawyers discuss these matters, inasmuch as they mostly pertain to law, but this is a question that vitally affects all the people. If corporations can be allowed to take private property for public use, {336} even if they say they shall have just compensation, without some manner to be indicated how that compensation shall be arrived at, I think that the rights of the individual will be infringed upon as the experience of the past has shown that they have been infringed upon. I am in favor of the amendment of the substitute. I should have liked to have seen it drawn a little farther and provide how the farmer whose right is taken from him should be compensated. I find that in California, Colorado and other states, that in their constitutions they have provided that the amount shall be paid into court for the owner before the right of way shall

be appropriated. They have also provided, in some states, for a jury or a number of commissioners to decide what the damage or the compensation shall be before ever the right of way accrues. I think that that is just. It is humane, and I don't think any law ought to compel the farmer or the citizen to litigate for his natural, inalienable and indefeasible rights, and I think a right of property is just as useful, just as good, and just as near to the individual in many cases as life itself, for life is dependent upon those rights of property. I am in favor of the amendment or the substitute; I don't care which prevails, as I believe either will arrive at the point that we wish to see obtained.

Mr. CUNNINGHAM. Mr. Chairman, I am surprised at many gentlemen here in their remarks that they have made. We must have a very wicked people_people that own little pieces of land where the railway companies go through_and very holy, just, and righteous railway corporations. It must be all in favor of the corporation and nothing in favor of the people. Now, I believe people have rights, and we are here to protect the rights of the majority of the people and all the people, and I believe, as one of the gentlemen has said_although I believe onthe other side, that if we want this Constitution voted for we must protect the rights of the masses, even if it does not suit the righteous corporations.

Mr. MURDOCK (Wasatch). Inasmuch as this discussion has got down to the laymen, I feel that I ought to say a word or two, inasmuch as I disagree with the gentlemen that have spoken upon the question. As it has been stated by our legal men, the laws of Utah make provisions for damage to parties who are injured by railroads and by other corporations passing over their lands. I think we can safely trust this to the Legislature to protect the man, to protect private individuals from corporations trespassing upon them, but I think that if this substitute of the amendment prevails it will place an obstruction in the way not only of railroads, but of enterprises like irrigation companies. In my short experience, had this law been the law without any other legislation, it certainly would have stopped several irrigation companies from building their canals for three or four years, long enough to have prohibited the owners of the land from raising enough grain to have paid the expenses of building those canals. Now, I am opposed to the substitute and to the amendment, and I trust that this committee will vote them down, and that we will leave it in the hands of the Legislature of this future State to make such laws that shall be necesssary for the protection of property owners.

Calls for the question.

Mr. THURMAN. Mr. Chairman, I don't know whether this committee desires to hear me or not. I made this motion and have not had a single chance to speak to it. I made it in good faith. I believe that the right of property is a sacred right, and no matter if it is the widow's mite, I believe that the man who owns just one little ewe lamb has just as much right to that as the man has to his cattle that {337} graze on a thousand hills; having a sacred and absolute right to his property, having paid for it and the company owner; it may be his home_it may be all he has and the proposition here now advanced is that a railroad company may come along and stake out this lot and tell him to get off and await the slow process of the law in litigation; and we know what it is when you come to litigation with the railroad company; they just simply have the advantage at every turn. They have their attorneys paid by the year; they have money to bring forward all the

witnesses they want, and to secure every advantage that the law possibly gives. And if delay is of any benefit to them in that case they insist on the delay and they get it. In the meantime, the man is deprived of his property, his home is taken away from him, and because his home is only a matter of three or four hundred dollars_it did not amount to much anyway as the gentleman from Salt Lake in front of me here intimated, very much in the language of a corporation attorney_it was not worth anything anyway_land that was not worth a cent. Now, the facts are, gentlemen, that this proposition will not retard the development of the country. It will not retard the progress of the country, but as suggested by one of the gentlemen on this floor if railroad companies understood that they must determine this compensation in advance, they will see to it that instead of ceaseless and endless litigation, they will be anxious to bring their cases to the front, if it comes to a case, and have them disposed of, and if a man does ask them what they may think is a little bit extraordinary in its terms, had not they better, in view of the fact that they had this extraordinary right to take away a man's property, without his consent_had not they better pay a paltry sum even in excess of the value and go on with their work, than to have the poor man kept without the use of his property and sitting by and seeing another man reveling in the possession of it, while he has not anything in return for it? Now, Mr. Chairman, I am about as much surprised as my colleague from Utah County to hear men talking just as if this provision of the law which stands today in two-thirds of the modern constitutions in the United States was an innovation here. As if the progress of the whole country was going to be stopped, because we want to get into the Constitution a provision which says that before a person using the power of the State can take from a man the property that belongs to him he must first pay for it. I say there are two-thirds of them. I will not take the time to read the clauses in the various constitutions, but nearly all the modern constitutions provide that this payment must be made in advance; and I believe the constitution in the state of Washington has been referred to more than any constitution in the United States_has been referred to more by members on this floor than any other constitution, and I am going to read that paragraph as it will only take a moment:

Private property shall not be taken for public use, except for private ways of necessity, and for drains, flumes, or ditches, on or across the lands of others for agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made or paid into court for the owner, and no right of way shall be appropriated to the use of any corporation other than municipal, until full compensation therefor be first made in money or ascertained and paid paid into court for the owner.

Mr. JAMES. Mr. Chairman, I rise to {338} a question of personal privilege. I have been misquoted on this floor and I want to correct it. Mr. Thurman gave the idea that I had stated that a man's home was worth nothing, etc. If I said anything of the kind, I did not mean it. I cannot believe that I said anything of the kind. Mr. Thurman knows very well that when I spoke about a worthless piece of land, I was speaking about undeveloped, unimproved land in these canyons, and he knows very well that I meant this_

Mr. THURMAN. I object to the gentleman making an argument under cloak of personal

privilege; he can not do that.

The CHAIRMAN. Under the rule the gentleman has a right to speak as many times as he pleases and as long as he pleases.

Mr. JAMES. That is the very reason why I inferred that this matter should be left to the Legislature, because we have these different kinds of land, and these different conditions of things existing here so that provision should be made without hardship to the railroad or without hardship to the settlers and the inhabitants.

Mr. BUYS. Mr. Chairman, if the amendment of the gentleman from Utah includes, as he indicated, the payment in advance for the lands, I am in favor of it. I am in favor of provision being made where property is taken for public use that the money shall be paid to the owner or to be paid into court for his use. If the amendment by the gentleman from Utah would secure this, I would vote for it, but as it is, I hardly think that it would, [*note*]

Mr. THURMAN. The substitute does; for the information of the committee I will say that I expected the substitute to be in lieu of the amendment that I proposed.

The secretary read the substitute proposed.

Mr. BUYS. That is all right. I will accept that and I think it is just right.

Mr. RICHARDS. Mr. Chairman, I desire to call attention to the fact that that amendment does not meet the objection that has been made. It does not provide that the money may be paid into court in case of taking property. As I understand it, it is an absolute requirement that compensation must be made before the property is taken, but in case of damage, then the money may be paid into court. Now, I say that if this amendment prevails at all, there ought to be a provision that the money may be paid into court in every case. In other words, that the property may be taken by paying a compensation to the owner or paying the money into court, and that is not this amendment.

Mr. VARIAN. It seems to me so.

Mr. RICHARDS. Not necessarily.

The CHAIRMAN. The amendment first offered by Mr. Thurman is withdrawn from consideration and the only question before the committee is the substitute just read.

Mr. RICHARDS. Mr. Chairman, I offer as an amendment to the substitute the insertion of these words, “or paid into court for the owner,” after the words “first made.”

Mr. THOMPSON. I will second the amendment.

Mr. EVANS (Utah). Mr. Chairman, I am opposed to that amendment for the very reason that it

places the matter in the very same condition that it was before. The corporation can pay money into court. They can go to work and plow up the man's land, tear down
his house, turn him upon the street, and wait along three years before it is determined whether they are to have that money or not. That is the reason I am opposed to it.

The amendment of Mr. Richards to the substitute was rejected.

The substitute was adopted.

Mr. VAN HORNE. Mr. Chairman, I call attention to the fact that the Convention {339} resolved itself into committee of the whole until 5 o'clock.

The CHAIRMAN. The gentleman is mistaken; as the chair understands it, the motion to fix a definite time was changed.

Mr. VAN HORNE. Mr. Chairman, before going any further I want to move an amendment to section 23, to insert at the end of the section as amended, a declaration of public use. I move to insert at the end of the section the following:

Public use shall include dump, mill, and tunnel sites upon and easements over and across the lands of others for tunnels, roads, tramways, reservoirs, waterways, water supplies, and drains, for agriculture, mining, milling, municipal, domestic and sanitary purposes; and such other public uses as the Legislature may declare.

Section 24. Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and for reservoirs, drains, flumes, or ditches, on or across the lands of others, for agriculture, mining, milling, domestic or sanitary purposes, and in no case shall such property be taken without due compensation.

Mr. VAN HORNE. Mr. Chairman, I was going to move as an amendment to that that the amendment I propose be inserted in place of the section.

Mr. KIMBALL (Weber). I second that.

Mr. VARIAN. That presents substantially the same question that was presented on his motion to strike out. Now, it will be observed that this section contemplates the taking of private property for private use. There is no question here of a public use. Of course the proviso in the second line of the section amounts to nothing. Of course private property can be taken for private use by consent of the owner; that simply amounts to the right of contract, which we have anyhow. But, the objectionable feature of this is in the exception “except for private ways of necessity,” etc. That is very far-reaching, Mr. Chairman. That simply amounts to this, that if I have a lot or a farm, and my neighbor deems that it is necessary for him to have a private way across it without

reference now to the public use, without reference to whether it is necessary for the convenience and benefit of the public, which comes in under the other section prior to this, he is entitled to go into court, if I don't choose to allow him to go upon my land, and proceed to condemn it, because it is in the organic law, and I am compelled to surrender my right; not for the benefit of the public, not for the good of the community as a whole, but for the benefit of my neighbor, and I would like to know why he stands in any better position than I do in that particular. If there is anybody to be inconvenienced it should be the one who had not the vested right of property; I have it, it is mine, it belongs to me, it is vested in me, it is protected, not only in the Constitution in other sections, but by the general law underlying all constitutions. The right of eminent domain is founded upon necessity. It has never been and ought never to be accorded in anywise to any individual; it is only accorded in the name of the State upon the fears and assumption that the good of the entire community is the supreme law, and the rights of individuals must yield in order that the rights of the whole may be benefitted. That principle does not apply here. You are opening a wedge, you are invading the rights of the private citizen in these particulars named. Where are you going to stop? Under this section, gentlemen of the committee, I can go upon your land if it adjoins mine, I can make use of it for domestic purposes; I can build an outhouse or a kitchen there, I can put a cesspool upon {340} it, upon my showing to the court or the jury that it is necessary for the convenience of myself. Do you want that? Whoever drafted this has interpolated a provision as to mining in order to cloud it a little. There is no question now in this country about mining being a public use. It is so recognized in all the mining states and territories. The legislatures declare it so, courts have upheld it. This matter of a public use ought to be maintained just as it was entitled or just as it means,_a use for the public. If it be necessary to develop the mines to get a right of way on another man's lands, to secure a dumping ground, as the law now stands, as it has been construed in all these mining states and territories, by the legislatures and the courts, it is deemed to be a public use. I lay no stress upon that word “mining” there, because it would be included in section 23 if the Legislature so declared it. Agriculture ought not to be deemed a public use; it is not a public use in the sense of the law of eminent domain. One farm is as good as another. The farm of forty acres is just as good and sacred in the eye of the law, and ought to be, as the farm of three thousand acres, whether it be used as a range or for wheat growing or grain raising. Underlying it all is the fact that it is an innovation, invading the vested right, that ought not to be lost sight of here. As the law now stands, private ways of necessity as indicated by the courts in certain classes of cases, are given; that is to say, if you sell a man a piece of your land and the situation of the land that you sell is such to the land which you retain that it is necessary for that vendee to cross your land to get out, the implication of law is, and it is so held_it is the law of real property, that you have conveyed to him the right to go out over your land; but if he goes and buys somebody else's land adjoining you, settles himself down there to build up a home or a farm, he takes it as he finds
it and he is not authorized to cut your farm up with a water ditch because he needs to get water on his land, nor to cut your farm up with a private way, because it is more convenient for him to cross it, and it should not be so, because you simply transfer a right from one to the other, and so far as the State is concerned, it is a difference between the two individuals. He must take the situation as he finds it. I can imagine cases under this law where a man's farm can be cut in two with a big water ditch and every time he runs his plow or his harrow or reaper up there, he would have to stop and turn around or get a bridge and jump his horses across. It is not right. The same application can be made of it in cities and towns. Going back to the first proposition, though, the

main and the serious objection to it is that it is an interference with vested rights and you had better leave the disposition of property rights, except where the State is interested and concerned, to the subject of contract between the citizens of the State.

Mr. PIERCE. Mr. Chairman, I would like to ask Mr. Varian a question before I make any remarks. Mr. Varian, do you maintain that the right to build irrigating ditches is a public use?

Mr. VARIAN. No, it has not been so declared here.

Mr. PIERCE. Is the right to build reservoirs_

Mr. VARIAN. Let me qualify that and answer the full question. If the system of irrigation shall assume such proportions here as to necessitate a thing of that kind and the Legislature should declare it, I doubt not that it would be held as it was in the case of mining, after some difference of opinion among judges, that because of the situation of the community and because of the prominence of that particular branch of industry in the community, it had become on the line of the building of the railroads and other great public enterprises and public uses.
{341}
Mr. PIERCE. Mr. Chairman, I want to make a few remarks upon this proposition. I agree in some points with the remarks of the gentleman from Salt Lake County, that this section as it stands invades the rights of private property and I think we should well consider the amendment made by Mr. Van Horne. The voting down of the amendment to section 23 I believe was done without very much consideration. The section as it stands I am not in favor of it; it says, “except for private ways of necessity.” It has been argued by gentlemen who have preceded me that the law gave a man a right by necessity. That is all right, I believe that. That is the correct principle of law, “for reservoirs, drains, ditches, etc.”

It seems to me that the Convention should protect the rights of irrigation as much as any one thing that they should protect. As it was well argued on the floor of this house not long ago by the gentleman from Wasatch, that the prosperity of a community depends upon the rights of irrigation, and if it is not a part of our system of law that the right of irrigation and the right to build canals is a public use, then, gentlemen, we ought to make it a public use right here and now; and I differ from the remarks made by the gentleman who has just preceded me upon the proposition that the right of condemnation for mining property is a public use. Some states have held that the right to condemn property for mining purposes was a public use, but the majority of the states hold that it is not a public use and that it cannot be condemned under such a clause as we have in section 23, which we have adopted. I have before me a collection of cases by Lewis on Eminent Domain, upon that proposition, and I desire to read some selections from the work so you gentlemen can see just the drift of the current of the decisions that the gentleman upon the other side has referred to. It is true, gentlemen, that Nevada had said that the right to condemn property for the benefit of mines was a public use and existed under the ordinary clause in their constitution, as we will have in ours, that private property shall not be taken or damaged for public use without just compensation, but there are several other states that hold that that is not the law. Those states are California, Pennsylvania, West Virginia, and some others, and the whole practice is approved by Lewis in his work on Eminent Domain. I would like to read from

section 184:

The tendency of those decisions which sustain the mill acts is illustrated by some cases now to be noted.

The mill act was the right to dam up a stream and set the water back in a pond to create water power.

The legislature of Nevada passed an act in which it was declared the production and reduction of ores are the vital necessity to the people of this state, are pursuits in which all are interested, and from which all derive a benefit, so the mining, milling, smelting, or other reduction of ores are hereby declared to be for the public use and the right of eminent domain may be exercised therefor.

(Reading):

In the light of these authorities, nearly all of which were decided prior to the adoption of the state constitution, I think it would be an unwarranted assumption on our part to declare that the framers of the constitution did not intend to give the term “public use” the meaning of public utility, benefit, and advantage, as construed in the decisions we have quoted. The reasons in favor of sustaining the act under consideration are certainly as strong as any that have been given in support of the mill dam or flowage acts, as well {342} as some of the other objects heretofore mentioned. Mining is the greatest of the industrial pursuits of this state. All other interests are subservient to it. Our mountains are almost barren of timber and our valley lands could never be made profitable for agricultural purposes, except for the fact of a home market having been created by the mining developments in different sections of the state. The mining and milling interest gives employment to many men, and the benefits derived from this business are distributed as much and sometimes more among the laboring classes than among the owners of mines and mills. The mines are fixed by the laws of nature and are often found in places almost inaccessible. For the purpose of successfully conducting and carrying on the business of mining, smelting, or other reduction of ores it is necessary to erect hoisting works, to build mills, to construct smelting furnaces, to secure ample grounds for dumping waste rock and earth, and a road to and from the mines is always indispensable.

On the other hand the validity of such laws has been denied in California, and Pennsylvania, and virtually so in West Virginia. This is undoubtedly the correct view.

Mr. VAN HORNE. I am in favor of striking out the section providing for private property to be taken for private use. I do not think it is right. I do not think it is a safe thing to do, to go into taking private property for private use, but I do think that accompanying that it is wholly in line with the good of this Territory and with the good of the people of this Territory and all the people of this Territory that we should make a declaration of public use for public industries in such ways that our courts will not be at liberty to construe them against the uses and industries of our people. I think that the amendment that I propose does that. I do not know whether it had a second or not, but I can use it for the sake of argument. It provides for their condemning a dump, a mill site, or a tunnel site, upon the land of others, and only an easement over or across the lands of others for those ways for waters, roads, tramways, etc. It seems to me that we cannot err if we give our people the right for the good of the public to say to the man who has property and who is unwilling that others should use it to pass over that, “by your being paid a just {343} compensation, it is for the public good that you should not be privileged to say we cannot pass this way, or you cannot come through my land with your irrigation ditch, with your tramway; you cannot take a corner of my land for an aqueduct, for a mine; you cannot take a ravine in my land, that I do not use, as a site for a tunnel.” Nobody wants this to be done without the man being paid a just compensation for it, but I believe we can well afford to declare that the citizen who is so unreasonable in his use of his land that he will not allow it to be used for a great public purpose, such as mining and irrigation schemes, tramways, roads, reservoirs, as are going to be in this country_that he will not allow it to be used by his consent on the payment of just compensation, that we, representing the people, would have a right to say to him, “You cannot act that way to the detriment of all of us. If you will not take the just compensation when it is offered, we will bring you in a suit saying this is for the good of you and the rest of them, and upon paying you the just compensation by the court, we will compel you to let that land of yours be used for the public good.” I think we would do injury to our constituents if we did not declare so that our courts could not construe against it, what would be public uses of the lands of another. I believe it is right that a man who owns land near where another man owns a mine and has land that is suitable for a dump which is not used by him, should be compelled to say that upon taking a just compensation for it, it may be used by the other man and should not be entitled to say regardless of what use might be made, “you want to have the land and you have got to have it, and you shall not pay me a just compensation, sir, but you shall pay me whatever I ask.”

Gentlemen talk about invasion of private rights. We do not have much difficulty practically about it now. One man owns a farm here and another one has to bring his ditch through it; he goes to his neighbor and says, “I will pay you all the damage for that ditch,” his neighbor says, “all right, go ahead.” We are just simply declaring against the man who happens to be more arbitrary than most of the people of Utah and saying if he won't do what is reasonable, that he can be made to do what is reasonable. Take our valleys, dry, without irrigation they are worthless; with irrigation they pour into our State a continual product. Shall the man that has a piece of land across a canyon from which water is to be brought say, “Gentlemen, before I will let you take an irrigation ditch through my land that will enable forty thousand acres to be brought under cultivation, you must pay me half the {344} value of the forty thousand acres, when the water is put upon them?” Would that be a proper thing for this Convention to allow? Would not it be proper for this Convention to prevent such a man from saying that he would ask an enterprise of that kind anything more than a just and fair compensation for the land that was taken and damage that was done by such enterprise? It seems to me, gentlemen, that if we pass from the consideration of this question without making some provision that will protect people in enterprises of this kind we will go back to our constituents and when they ask us why we did not do this, we will have to be ashamed to say, we did not do it because we did not think that it was a public use and for the public good.

Mr. SMITH. Mr. Chairman, to my mind we have struck no proposition of this bill of rights up to this time that should receive the grave consideration that this proposition now presents. Ours is a very peculiar country and I see that the committee have copied almost literally Wyoming upon this proposition, and I trust that before any immediate action shall be taken looking to the striking out of this section the greatest care will be given. It seems to me, as gentlemen on the floor have explained in regard to the mining interests, the same proposition affects our irrigation interests in this section of country. Our farms, as a rule, it is true, are usually small. We have got to cross each other's farms in order to carry our irrigation on properly and raise crops at all, and if this section be stricken out, it is going to leave us in the most defenceless condition, in my judgment, and I trust the motion to strike out will not prevail, but that further consideration of this proposition will be taken.

Mr. VARIAN. Let me ask the gentleman a question. He will observe that this matter proposed to

be stricken out includes many things. If as suggested, it is the sense of the Convention that they want to put in a clause protecting irrigation, mining, it might be put in a proper way separately, but this includes sanitary purposes, domestic purposes, private ways of necessity, etc. It includes too much.

Mr. VAN HORNE. Mr. Varian, the amendment I suggested did not state the private ways of necessity.

Mr. RICHARDS. Mr. Chairman, this is a very important subject and I do not believe that this committee can act intelligently on this amendment without having it printed. I am not in favor of the section as it stands. I think it ought to be printed. Probably a substitute ought to be adopted, but it is a matter of such importance, I think we ought to postpone further consideration of it until we can have the amendment printed and consider what language we will adopt, if we are going to adopt a substitute or what amendment we will make. If it is in order, I would therefore move the postponement of the further consideration of this section until the further meeting of this committee.

The CHAIRMAN. The chair rules that a motion to postpone is out of order in committee.

Mr. EVANS (Utah). Mr. Chairman, I move we now arise and report.

The motion was agreed to.

The committee of the whole then arose and reported to the Convention as follows:

The committee of the whole have had under consideration the preamble and declaration of rights and have considsidered the same and desire to report progress and ask to sit again.

The Convention then, at 5:35 o'clock p. m., adjourned.