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

President Smith in the chair.

Prayer was offered by Chaplain Cobbs, U. S. A.
Journal of thirtieth day's session was read and approved.

Petitions and memorials.

Mr. Miller presented a petition, signed by Helen Adkin and a hundred and ninety-nine other women of Salina, Utah, in favor of prohibition. Referred to committee on schedule, future amendments and miscellaneous.

Mr. L. Larsen presented petition for submission of article on prohibition as a separate article, signed by C. N. Lund and others.

Mr. DRIVER. Mr. President, after listening to certain remarks that have been made by certain gentlemen upon this floor for the last two days, reflecting upon the courage_

The PRESIDENT. Mr. Driver, I think that would be out of order. Those questions are considered and gone by.

Mr. DRIVER. I consider that this is a personal privilege. It seems to me that the remarks that have been made is a reflection upon my character and reputation as a man.

Mr. RICKS. Mr. President, I arise to a point of order. I think the gentleman is out of order.

Mr. DRIVER. If I am out of order, it is all right, but I want it understood that I resent these imputations; that I am here and propose to vote just as my conscience dictates to me. I feel sorry when I look around this hall_

The PRESIDENT. There is no subject_     

Mr. DRIVER._and know that there are eleven delegates from Weber County and only see one who has been willing to stand by my side.

The PRESIDENT. There is no question before the house.

Mr. EVANS (Weber). Mr. President, the gentleman has arisen to a question of personal privilege, and I maintain he has the right to state his question.

Mr. DRIVER. Mr. Chairman, I am placed in a very peculiar position. I came down here one of

eleven gentlemen from Weber County to represent the people from that section of country. I find to-day that I stand alone, with the exception of one other delegate, who dared upon this floor defend the rights of his wife and mother, of my wife and mother. That gentleman cannot go back to his home, attending a meeting there, as I read in the paper, without being insulted by men who claim to represent the people of Weber County_three or four hundred men meeting together, claiming the right to represent in mass meeting twenty thousand citizens of Weber, pass resolutions that reflect on the integrity and honor of at least two members of the delegation from Weber County. Passing beyond that, the scene enacted there has no parallel in the history of political gatherings in this country, except what we witnessed here in the lobbies yesterday; and I say, gentlemen, if I have to stand alone in this {622 - BILL OF RIGHTS} connection, I feel that there are men enough in this house who have known William Driver for the last twenty-eight or forty years to know that he is no fanatic, that while defending his own rights, he has always been ready to defend the rights of his fellow-man, and to-day he will stand and defend the rights of the women of Weber County, if he stands alone. Now, Mr. President, I want to read the effect that has been produced in Weber County by words that have been spoken upon this floor. When I left Ogden to come to attend this Convention no such spirit existed; the people there were almost unanimous as far as I had any conversation with them, in favor of what has been discussed here. Now, a change has come over them, it appears; men meet and discuss this matter, not as gentlemen, but as a mob, and I want to read one or two passages from the report of the meeting last night.

Mr. EICHNOR. Mr. President, I rise to a point of order. I want to ask the gentleman a question. Mr. Driver, do you think any delegate on this floor, no matter how he feels on this question, doubts your sincerity or honesty?

Mr. DRIVER. I want you to understand the feeling aroused in the county from which I came by words which have been uttered here, and I would be recreant to my duty if I did not resent the imputation on my courage, my integrity, and my honor, and I want to show you the kind of people that are opposing this principle in the city from whence I came. I do not recognize that a mass meeting of the citizens of Weber County has been held, and I want to show you the class of people that were there assembled, and that come here, passing a resolution condemning this whole Convention. (Reads.) I want to say that I cannot accept that. I cannot accept the interpretation of my conscience from any source, only from my own conscience, and I want it understood that I am of the same mind to-day as I have ever been, since I came to this Convention, with regard to this matter, and I trust that I will be so, so long as I am here.

Mr. EVANS (Weber). Mr. President, I do not think the gentleman from Weber need to be disturbed about the action of the meeting on yesterday evening, because there was undoubtedly a majority of the people in that meeting who favored woman suffrage, and the friends of woman suffrage voted an adjournment of the meeting and it was only those who opposed it who remained after the meeting had been adjourned and passed these resolutions.

The third reading of the preamble and declaration of rights was proceeded with as follows:

The PRESIDENT. As I understood it, the 10th section was on the table, reported back by the

committee on judiciary. The business in order is the consideration of section 10.

Mr. Evans, of Weber, offered the following substitute far section 10:

In capital cases the right of trial by jury shall remain inviolate. In courts of general jurisdiction, except in capital cases, the jury shall consist of eight jurors. In courts of inferior jurisdiction a jury shall consist of four jurors. In criminal cases the verdict shall be unanimous. In civil cases three-fourths of the jurors may find a verdict. A jury in civil cases shall be waived unless demanded.

Mr. EVANS (Weber). Mr. President, I will just say to the Convention that the committee on judiciary unanimously agreed upon this section. It is not one of my making at all, but one which the judiciary committee agreed upon after reference of this section to that committee.

The substitute was adopted.
{623}
Section 22 was read.

Mr. RICHARDS. Mr. President, I move as an amendment to that section that the words, “or secured to be made to the owner thereof,” be inserted in line three, between the words “made” and “and.” I desire to say in support of this amendment that I have examined the constitutions of all the states of this Union and I find that this proposition only appears in a very few of them. It appears in a modified form in eight constitutions out of forty-four, and in almost everyone of those it is modified to some extent All the other thirty-six either provide that just compensation shall be made and then stop at that declaration, or if anything further is said they put the alternative “or secured to the owner thereof or paid into court.” Now, a very great hardship may be occasioned by leaving this section as it now stands, and no possible hardship, it seems to me, can result from the amendment that I propose. It would be in the power of an individual owning property on the line of a railroad or a canal, that might be in course of construction to supply a whole settlement of people with water, to demand an exorbitant price for the right of way and refuse to be reasonable. Now, you may say that it is not fair to assume that anybody will do this, but I am telling you what they may do, and that such things have been done is within the knowledge of many of us. And as was testified to before the committee of the whole when this matter was under consideration, such instances have occurred. It would be in the power of one individual to say, “I will not settle without exorbitant compensation, “something that would be entirely unreasonable and the whole progress of the enterprise would have to be stopped until an adjudication could be heard in regard to that matter, and the damages assessed in court. Now, my proposition is that the words “or secured to the owner thereof,” be inserted so that if a person will not agree_if they cannot agree or do not agree upon the compensation, then under the laws that will be enacted by the Legislature proceedings for condemnation will be commenced, but before anybody can enter upon the property a bond will have to be given or the money will have to be paid into court, which will secure the owner amply as to whatever amount may be adjudged. Now, I think this is fair, and I think it is just. The suggestion was made the other day that this

provision, the way it now stands, will be in the interests of the poor man. Now, it might be and it might not be. For example, suppose a settlement of poor farmers desired to obtain water from a distant source, and suppose, in order to get a right of way they had to pass over a large tract of land owned by some wealthy corporation. Suppose that corporation were to say, “You cannot have my land nor the right of way over it unless you pay an exorbitant price.” A whole settlement of people could be deprived of the use of this water, could be deprived of the right to construct this canal and perhaps prevented for a whole year from getting any benefit from it or else they would have to accede to the exorbitant demand that would be made upon them. A man might charge a thousand dollars for property that was only worth a hundred and compel them by extortion to pay this money or to lose the whole season. Now, it seems to me that no possible harm or injury can come to the owners of property, if the compensation is secured to them in advance, and that is what my amendment proposes, and as I say it is in harmony with the constitutions of thirty-six states in this Union, and the eight which have provided that compensation shall be first made have modified the effect of that by prescribing summary proceedings by which these damages may be determined; and I submit, Mr. President, that this amendment ought to prevail.
{624}
Mr. EVANS (Weber). Mr. President, I desire to offer another amendment, by striking out all in section 22 after the word “compensation,” in the second line, “providing property shall not be taken for public use without just compensation.”

Mr. RICHARDS. I second the amendment.

Mr. EVANS (Weber.) Now, I want to give a reason for that. That is the usual method of constitution making throughout the country. I do not know of any instance where any hardship has ever accrued by reason of the fact that the additional clause has not been inserted in the constitution. There is no gentleman upon this floor who has studied the law who will deny that the Legislature has a perfect right under the section as it now stands if these words were stricken out, to make such regulations and such conditions that the property might be taken by the individual or corporation or might not be taken, without first having paid compensation for it, or the Legislature would have the right to require a bond, would have the right to require security as our legislatures have already done in this Territory.

It seems to be wholly a matter of legislation that we are inserting in the Constitution. The principle is what we want. The two lines, “providing private property shall not be taken for public use without just compensation,” declare the principle. That is, that no man's property shall be taken even for public use without just compensation. Could we say any more? Do we want to go into detail in this bill of rights and determine the particular manner in which it shall be done_the particular manner in which it shall be paid for? Now, gentlemen, I am not a corporation lawyer; the fact is, all my business has been against corporations. That is, in the main, and I would do nothing at all to favor a corporation as against the individual, or anything which would oppress the individual, but I say that through my experience in this Territory I do not know of any instances wherein the individual has been oppressed by reason of our present laws or provisions of this character. If any gentleman does, I would like to have him point it out. The reasons given by my esteemed friend from Utah County the other day were that it would compel corporations,

to settle with individuals by paying a fair price rather than go into court and have the expense and trouble of litigation. Now, in one sense, that might be a very admirable thought, but I say to you, gentlemen, is it right that even a corporation should be held up? I say that a corporation and an individual ought to stand upon equal footing before the law, and I say, too, that if this section passes in this way, its tendency will be to retard business enterprises in this Territory, and I say that if it passes as I suggest, it would not retard business enterprises, neither could it possibly injure the individual. Corporations would rather settle with the individual, and they usually pay a fair price, rather than to have litigation. They are not seeking litigation any more than the individual. They desire to avoid it. If they are unable to contract between themselves they resort to a court for the purpose of determining the just value of the land. But, why say in this Constitution that they shall first pay before they take possession? It might be that even a preliminary survey could not be made by a corporation, because they would not have the right to take possession, although I think the weight of authority is against that, but the law would permit individuals or corporations to make the preliminary survey over the land of others, although they would have no right to do anything at all with the land without first having made payment for it. It might be that the enterprise was not fully developed. It might be that it would require certain {625} manipulations and negotiations in order to secure the money for the enterprise, but if men who desire to engage in business enterprises see this provision in our Constitution and see that they can not go upon an individual's land without first paying for it, would not it have a tendency to retard this progress which we all so much desire? I say that the corporation ought to secure the individual for the value of his land, but I say the Legislature has already done that and it always will do it, and if in the good judgment of the people who compose the next Legislature, they deem it necessary and proper to require payment first to be made, let them do it, but let us not put a rigid, unyielding thing of this kind in our Constitution, which is so hard to amend. Leave it as it has been left by other states. Leave it as it is left by the Constitution of the United States. That is a good model with respect to a matter of this kind, and I do not believe that any injury would result from it.

Mr. SQUIRES. Mr. President, I would like to ask that this section and the following section, 23, pass over without action for the present, and for this reason. Mr. Varian informed me on yester- terday that he had been making a careful examination of this subject and he is satisfied that the action already taken on section 23 is in violation of the law of eminent domain.

The PRESIDENT. No question about it.

Mr. SQUIRES. And the proposition which he has, I presume would be to strike out one of these sections and have the two sections consolidated, and for that reason and in his absence, I would like to have the Convention pass over these two sections, or further consideration of them, for the present.

Mr. EVANS (Weber). Mr. President, I desire to say that Mr. Varian desires to be heard on the other section in regard to private property being taken for private use. I understand he is preparing an argument on it.

Mr. SQUIRES. He might want to strike out one and amend the other.

The proposed amendment of Mr. Evans was read.

Mr. PIERCE. Are you going to put in the words, “or damaged?”

Mr. EVANS (Weber). I am willing to as far as I am concerned.

Mr. PIERCE. Well, I am in favor of the motion with those words in.

Mr. ELDREDGE. With the consent of the gentleman I would suggest it read as follows: “Private property shall not be taken or damaged for public or private use without just compensation,” and leave all the balance to the Legislature.

Mr. EVANS (Weber). Section 23 provides that it shall not be taken or damaged.

Mr. KIMBALL (Weber). Mr. President, I offer this as a substitute for section 22:

Private property shall not be taken for public use, or damaged, without just compensation as determined by a jury, which shall be paid as soon as it can be ascertained and before possession is taken. No benefit which may accrue to the owner as a result of an improvement made by any private corporation shall be considered in fixing the compensation for property taken or damaged.

words of Lord Chatham, spoken upon the floor of the house of commons when he says, “The poorest man in his cottage may bid defiance to all the armed forces, the wind may blow through it, the rain may enter, but the king of England cannot enter.” But here we propose to give a railroad corporation, and I speak of that, because the trouble always is with those_     

Mr. JAMES. May I ask Mr. Thurman a question? Do you know in the last fifteen years in Utah Territory where the railroads have taken a piece of property from any individual and not paid for it?

Mr. THURMAN. Yes, sir.

Mr. JAMES. Would you name a case?

Mr. THURMAN. I will name the instance.

Mr. JAMES. Will you name the company and the case?

Mr. THURMAN. Yes, I will name the company; I do not suppose it will be giving away secrets.

Mr. EVANS (Weber). Without the consent of the owner, Mr. Thurman?

Mr. THURMAN. Why, of course it was without the consent of the owner. I will name an instance under the law which exists in the Territory of Utah to-day, in which a man was cited to appear in court and have the question of the necessity of taking the property determined and also appraise the value of it. That corporation had offered the man $300 for his property. They were willing to pay him $300 and rather than go to law he offered to take $800 for his property, though protesting all the time that it was worth more than that. At last when we reached a jury the jury gave the man $1300 for his property. There was this righteous corporation that my friend from Utah County referred to the other day, and this same question, when the committee of the whole overwhelmingly voted to place this measure in the article as we find it here. There was the righteous corporation exercising a power under a constitutional law. In that case it was unconstitutional.

Mr. RICHARDS. Will the gentleman from Utah permit me to ask him a question?

Mr. THURMAN. Yes, sir.
{627}
Mr. RICHARDS. If the money had been secured by a bond or the money paid into court, how would this individual have suffered, except by not having the use of the money during the pendency of the suit?

Mr. THURMAN. The exception answers the question.

Mr. RICHARDS. That is the only injury he could have suffered, is it not?

Mr. EVANS (Weber). Don't you recognize the fact that the property itself is always held as security for the payment of the land?

Mr. THURMAN. Well, let us see. Suppose it is.

Mr. EVANS (Weber). No title passes until he gets paid.

Mr. THURMAN. Mr. President, we will fall back now on railroads. Men understand railroads, and understand what they mean. We all understand it, and we comprehend about how they sometimes do business. A railroad starts in a line. It is a tangent. They do not propose to swerve to the right hand or to the left to avoid running through a little house if need be, worth four or five hundred dollars, they go right through a man's house_a thing that is liable to happen any time where a railroad is built, and always happens through a thickly settled country at some point or another. They tear this house down. They spoil the ground that it stands on for any other purpose. He is secured. The bond is not worth anything, how about the land being still security for the loss that man has sustained?

Mr. EVANS (Weber). Now, do you know of any such case as that that ever happened?

Mr. THURMAN. I say it is a case that is liable to happen at any time and in any country wherever a railroad may be built. I will ask the gentleman a question now. If a railroad starts upon a tangent in a certain direction and there is a little house_a home where a man lives, worth two or three hundred dollars, right upon the line of it, will the railroad swerve around it? If not, then it will go through it. It spoils it, it destroys it. Gentlemen, unless we can provide a summary remedy by which the compensation {628} may be ascertained and payment made in advance, let us pass this proposition just as it stands. Just one word as to how this has been construed. The

federal Constitution has been construed to mean all that I contend for, but state constitutions in exactly the same language have been construed by some courts to mean that the legislature may do what the Utah Legislature has done. Provide a bond. Other state supreme courts have construed the same language to mean as the federal language has been construed. Just how our Constitution would be construed_if I thought it would follow the construction of the federal Constitution, then I would favor the proposition of my esteemed friend from Weber, simply leave it just as it was first written, but we know not whether it will be construed that way or not, and whether or not the precedents in those states that hold to the contrary may no tbe followed. For that reason, Mr. President, I favor fixing this in the Constitution so that it will be unequivocal and unambiguous, and that the right of the citizen to his property may be protected against any power whatever.

Mr. EVANS (Weber.) I want to ask Mr. Thurman a question. Under the provision, as I propose it, “private property shall not be taken or damaged for public use without just compensation,” has any court anywhere in the land ever decided that the corporation can take possession of it before payment is made?

Mr. THURMAN. Yes, sir.

Mr. EVANS (Weber.) In the absence of a statute?

Mr. THURMAN. Yes, sir_no, not in the absence of a statute, but courts have held in some of the states that under that kind of a constitution the legislature may provide the very procedure that my friend from Salt Lake desires, and that is just exactly what I want to prevent if possible.

Mr. EVANS (Weber). That is true, but under this constitutional provision private property cannot be taken can it, until paid for, unless the legislature comes to its aid?

Mr. THURMAN. I think not, but there is nothing to prevent the legislature in one view of the authorities coming to its aid and we are here to prevent the legislature from aiding such things. That is just what the bill of rights means.

Mr. MALONEY. Mr. President, I am, in favor of the substitute offered by my friend from Weber County. It strikes me it meets the objections raised by Mr. Richards from Salt Lake. It does not stop the enterprises, it does not prevent progress, and I do not care how summary the proceeding may be, as soon as the compensation is determined by a jury, then let them pay for the land they take before possession is taken. “Which shall be paid as soon as it can be ascertained and before possession is taken.” I maintain that that meets all the objections. And above all things in this world, I say protect the owner of this property and do not take his property and turn him out of his house and home to litigate with a railroad or any other corporation for a great number of years. It has been tried in South Dakota and it has been found to be acceptable to the people and at the same time it is sufficient protection to the railroad companies.

Mr. CREER. Mr. President, I do not think property ought to be taken until paid for. I know of instances where it has worked great injury to the citizens. Now, those of you who are aware of

the location of the railroads in Utah County know that after the railroad leaves Springville, it runs diagonally across the country pretty much to the south end of the county. When the first railroad was located through there the probate court at that time assumed the whole jurisdiction and appointed a commission to value the lands; and this commission, I believe, {629} was a standing commission. However, they persuaded the people that it would be of great benefit to them if they would only consent to accept of the propositions that were made, and quite a number did so, but others did not, and it went into court. Subsequently there was another railroad located and they also went diagonally through a great tract of country_valuable land, and now there is another contemplated railroad going diagonally through this same country, and some individuals upon a single farm have now a contemplated third railroad cutting right through their land diagonally. Now, while it may seem that it would be wrong to obstruct enterprise, at the same time, you can see that the farm would be useless almost after it was cut and divided up into pieces of that kind by three railroads, and perhaps more might follow. And furthermore, I have in mind another condition over and above that. I had a near relative that was near and dear to me that was killed by a railroad. There was no particular wrong, however, at the time, but still she lost her life because of the close vicinity of a railroad to the domicile_to the house_she did not contemplate it and did not see the disadvantages of having a railroad so near to the house. That was a little south of American Fork.

Mr. EVANS (Weber). How would it do to require the railroad company to make compensation for the lives of the people before killing them?

Mr. CREER. I am speaking about this fact that when the matter is left to the court, in fact, that is invariably the case, they take into consideration the benefit that might accrue. Now, all the benefit that might accrue would not restore that party's life again, and all the benefits that might accrue would not justify cutting up a person's home or domicile or even their farm, and just as remarked by my colleague from Utah County, when a railroad starts out they are going to go, no matter where it is. Supposing, now, in Salt Lake City, these railroads that run diagonally through some valuable blocks for instance_of course they have the power to do so, if they so desire, but it seems to me that there should be some check upon this matter, and I believe a greater justice would be done if they were required to pay for the land before the possession was taken. And I know of instances where they were kept out of possession for a great length of time in our neighborhood. It seems to me nothing but just and right that they should at least pay for the land before they took possession of it, therefore, I am in favor of the gentleman's substitute from Weber County.

Mr. CANNON. Mr. President, I am in favor of the motion of Mr. Evans, of Weber County, to strike out all after the word “compensation” in the second line. Mr. President and gentlemen, I have noticed this fact, that while men are opposed to railroads when they come to a consideration of this kind, every man is anxious enough to have a railroad built to his particular village or town or locality. You take the people of any county in this Territory and those people are particularly anxious that the railroad should be built to their town, but after the line is fixed, after the survey has been made, after a man finds that it is going to cut right through his land, then we always find a certain class of men who rise and want to exact an exorbitant amount. There is nothing in this section as left by Mr. Evans that does not provide for compensation. It leaves to the Legislature

the matter of fixing details as to how that compensation shall be arrived at, when it shall be paid and all other matters connected therewith. It may be true, and it doubtless is true, that sometimes people have been inconvenienced by railroads, but where one man has been inconvenienced in this way hundreds of others have been benefitted. {630} There is a certain amount of benefit to any community and to any locality to have a railroad brought to it, and I think we should not hamper railroads, and as stated by the gentleman from Salt Lake, Mr. Richards, this does not apply to railroads alone. It applies to all kinds of enterprises of a public nature, and in many cases poor people have combined their efforts in order that they may accomplish something, and it is just as well that they should have this matter left to the Legislature who will be able to fix the matter properly.

Another thing is this, if we leave it to the Legislature and if they find by practical experience that the law which they enacted does not operate for the protection of the people, they can change it at any subsequent Legislature. But if we fix it here, we are then fixing it so that it requires a large vote and a great change in public sentiment before it can be changed. I am in favor of the motion of the gentleman from Weber.

Mr. HART. Mr. President, I trust that the amendment of the gentleman from Weber County to the original section will not prevail, and while I have little choice between the proposition of the gentleman from Weber County, Mr. Kimball, and the original section, yet I do prefer the proposition that the gentleman has offered in preference to section 2, for the reason that a proposition which he offers is one that has been incorporated in the constitution of another state and I believe has already been adjudicated upon, and for the further reason that section 22 is a production that was produced right here in committee of the whole by amendments from various quarters of this house, and as it now stands it is somewhat uncertain in my opinion and poorly constructed. For instance, the provision that where private property is damaged for public use the compensation is to be determined by a competent tribunal would almost give rise to the inference that where private property is simply taken for public use that a public tribunal is not to pass upon it. I think, Mr. President, as that section stands, that there is an opportunity for the misconstruction of the true purpose that we want to reach in bringing forward this section. I do not think that it is injustice to a railroad corporation, or to any other corporation if they are taking private property, to require of them that they shall make compensation for it. I do not think that there can be much of anything in the suggestion_and I make the remarks with all due deference to the opinion of the gentleman from Salt Lake, Mr. Richards, when he claims that a provision which requires compensation to be made in advance would stop the business enterprise of the construction of a railroad or of some other enterprise. I see no reason, Mr. President, where a railroad company is being taken through a county or district of country, why compensation should not be made, and the matter of what is adequate compensation arrived at within the short period for instance of thirty days. I do not believe that this would be an injustice to any railroad company or to any corporation to require that they shall pay in advance before they take the property. Iowa, Indiana, and a number of other states have provisions that are equally as strong as the provisions that the gentleman from Weber brings forward.

Mr. RICHARDS. Did I understand you to say the state of Iowa?

Mr. RICHARDS. The amendment that I offered is in the language of the state of Iowa.

Mr. HART. I did not know that the gentleman had an amendment before this house. I thought the one of Mr. Evans of Weber was the only one pending.

Mr. RICHARDS. I offered an amendment in the very language of the constitution {631} of Iowa and Mr. Evans offered as an amendment, striking out all after the word compensation, which I accepted.

Mr. HART. The constitution of Indiana on this subject_the portion of the section which refers to this matter is, “No man's property shall be taken by law without just compensation, nor except in case of the state without just compensation first assessed and tendered.” And the provision of Iowa constitution on the same subject is, “Private property shall not be taken for public use without just compensation first being made or secured to be made to the owner thereof, as soon as the damages shall be assessed by a jury, who shall not take into consideration any advantages,” etc., being the same provision that the gentleman from Weber produces; the only difference between the Iowa constitution and the provision which the gentleman from Weber offers, is the matter of securing compensation to be given, but I take it that the provision of the Indiana constitution and of the others is a better provision in this: that it requires the money to be paid in advance without the danger of a worthless bond, and it absolutely does no injustice to any man to require him to pay the money before he takes the property.

Mr. CANNON. I want to ask Mr. Hart a question. I understood that in the case of Indiana it requires the money to be tendered, but not paid.

Mr. HART. Well, that is equal to a payment; if the man won't take his money when you offer it to him, why every good purpose is subserved.

Mr. CANNON. He may not agree on the price. There is a great difference between allowing a man to make a tender of a fair price and making a payment.

Mr. HART. Well, it says it must be assessed or tendered in advance.

(The President here called Mr. Anderson to the chair. )

Mr. SMITH. Mr. President, I have been thinking considerably over this matter and to me it is a matter of very grave concern. The other day in committee of the whole, I remember that some of the constitutions had sections in like section 23. I became a little concerned that possibly we might do a wrong if we did not put the 23d section in, but in the consideration of this section it seems to me if we tie this up too completely and too perfectly it is going to strike back in a way that it will not only plague us but will do extreme hurt. I trust that the spirit of this Convention is that so far as it is possible we will declare in our Constitution what we want and that the legislative power shall be left with power to do some things where questions may arise of the

character that present themselves here. This section to my mind as proposed to be amended by Mr. Evans is less liable in my judgment so far as I can weigh this matter, not being an attorney, the safest for all concerned: “Private property shall not be taken or damaged for public use without just compensation.” It seems to me that if we were to work a month to shape that language and to change it and fix it in every form possible we could not more perfectly shape it so that the Legislature in the exercise of its powers would deal rightly and properly with this proposition, and so far as I, myself, can weigh this language it strikes me that the safest thing for us to do in this matter is to adopt the amendment proposed by the gentleman from Weber County. We may add to it and merely insert words_we may change it to follow the various ideas and views, but we simply strike the ground of legislation when we, do it and when this has once become law, established in this bill of rights, it seems to me that it may place us in a position that it will work extreme hardship possibly to men who are in the condition that Mr. Richards mentioned, unable to meet the responsibilities that {632} might be required of them by wealthy people. So far as the wealthy are concerned in these matters, we recognize this fact, that they can usually take care of themselves, and these wealthy corporations can do this, but in a country such as ours where any day of the week almost there are occurring little combinations of interest_a half a dozen men perhaps to take out a water site or enter into some little business enterprise, it would be in the power of a strong corporation or of men possessed with wealth to so tie them up that it would be impossible for them to act and the reverse might be the case, so far as that is concerned, for I am not here myself upon the basis of trying to curry favor with the poor or with the wealthy. That is not the proposition. The proposition is to secure in this law a law that will be sufficiently broad and at the same time will protect the rights of all men so far as possible, and give them their day in court when the Legislature, under the enactment under this Constitution as it shall be provided, shall determine what are the rights of those individuals.

It seems to me that any attempt to reach the interests of this friend or to guard the interests of the other friend on some idea that may be engendered in our minds as affecting the other interests or this interest, will simply plague us in the future and that it will hurt the very ones that in our judgment we are seeking to guard. I trust that when the vote shall be taken upon this proposition and this section shall have been passed, it will provide that property shall not be taken for public use without just compensation, and in my judgment when that is done it amply covers the ground and our people are in less danger than they otherwise would be.

Mr. VAN HORNE. Mr. President, I am in favor of the amendment of the gentleman from Weber. It is exactly in the language of the original draft presented to us by the committee on declaration of rights, and it seems to me it covers every possible plea that has been made on this subject. It is admitted by the gentlemen who oppose this amendment that no court has construed such language without statute passed by the Legislature in such a way that could be a hardship upon persons whose property is to be taken. Are we to say on the very beginning of the new State of Utah that we are afraid of our legislatures and the laws that they will pass, that we will presume that they will pass such laws that the court will have to construe them as doing injury to the people? It seems to me that we can safely trust the legislatures of Utah to pass only such laws on the question of eminent domain as shall be just and fair to the citizen. I am opposed as far as it is possible to avoid it, to putting legislation details and specialties into the Constitution. I believe that the language of the committee on that section now incorporated in the amendment of the

gentleman from Weber is all that is necessary. It is all that is needed to protect the rights of the citizen against public use, and I am in favor of that amendment.

Mr. THORESON. Mr. President, I am in favor of this section as we have received it from the committee of the whole, or if amended at all as amended by the gentleman from Weber, Mr. Kimball. We are sent here as I take it to defend the rights of the citizen of the proposed State. We have provided for the preservation of certain rights. We have now arrived at their property rights and I am in favor of providing here that before property is taken from the private citizen for any use that he be paid a just compensation for that property. You say, “Leave it to the Legislature.” This is something that we ought to fear when the rights of the citizen are set in opposition to those of corporations. Why, corporations wield a better influence and a greater influence {633} with a smaller body than with the present one. I am in favor and I believe the citizens of the Territory of Utah demand of us that we guard their interests, guard their lives, their liberty and their property, and that we restrict the Legislature upon this very point and upon all such points. If I understand it right, that is what we are here for, and I say that a corporation or an individual_if I want anyone's property, I look upon it as honorable to first negotiate with the person and pay him a just compensation, if we can agree upon it, or submit it here to a tribunal that will decide it and then tender him his money before I take possession, and I say, gentlemen, it was our almost unanimous conviction upon this subject as expressed in committee of the whole, we then concluded, and I think we were guided by the spirit of our constituency when we almost unanimously voted that compensation must first be paid.

Mr. FARR. Mr. President, I have yielded the floor to different ones in hopes that this subject would come to a close without detaining this assemblage so long, but I am opposed to this amendment. That is, that the Legislature has full power to enact. Of course, we want to limit them and tell them how far they shall go. This section seems to be all that is necessary, “Private property shall not be taken or damaged for public use.” And I see in the next section it has got private use. If that is the wish of the Convention to have that in, why not insert it here_“shall not be taken or damaged for public or private use without just compensation?” Who is going to take private property for private use without first making reparation? The man has access to the law, that will be made in the Legislature, right straight, and if we put that in it does seem to me it covers everything without lumbering up our constitutional laws with legislative matters. Why not leave it to the Legislature? They have full powers to do it. They know what they should and should not do, and why not leave it there? What is the use of spending our time here day after day trying to legislate things that the Legislature is paid for to make laws, and then if they find that it don't work and they want to change it at the next session, they can change it; but to go to work and tie it up here, we put shackles on them and they cannot amend it. I do not want to find fault with members. I like to see them get up and express their views and knowledge upon things and give vent to their understanding, and so on; but to my mind it does not interest me at all. I want to see the Constitution broad and comprehensive and give the people all their rights they need instead of depriving them of rights as this section will do. I leave it to the Legislature.

Mr. HEYBOURNE. Mr. President, I am not here, if I understand my duty, to legislate against railroads or other corporations, nor am I here to retard any enterprise that may be established in our midst for the development of our country, yet at the same time, I think that we should have

due consideration for the rights and privileges of the people and seek to protect them in every way that is possible. I understand that we are living in a country that is not thoroughly developed. That there will be great improvements made in regard to railroading and in reclaiming many hundreds of acres of land that are now lying waste, and that in this latter matter canals and reservoirs will of necessity have to be constructed that will be of vital importance to the people at large, and I have not in my mind at the present time any of these enterprises that are under way that have not got at least some pecuniary object in view, and in carrying out their projects they will of necessity have to cross over tracts of land, they will of necessity have secure places for reservoirs. In the advent of railroads {634} into the Territory or coming State, rights of way will have to be secured, and I think, Mr. Chairman, that the section as reported upon in the committee of the whole is that that is necessary, and that that we require. That it has a due regard and consideration for those who may invest in this enterprise, and it will reasonably recompense and protect those whose property may be taken and used for the consummation of these purposes that I have referred to. Therefore, I am in favor of the section as it now stands. That we in taking this course do not detract from the enterprises that may be introduced in the midst of the citizens here, and we offer reasonable protection to those whose lands may be taken for these enterprises.

Mr. IVINS. Mr President, I just want to say a word in the same line of argument used by my colleague from Iron County. This section was elaborately discussed in committee of the whole. All of the ground was gone over and we concluded that as it passed that committee it was a good section, and I have seen nothing nor heard nothing here this morning that would lead me to change the opinion in regard to it. I do not regard it as legislation at all. It simply provides that compensation must first be made. It removes that question from any further discussion. It removes it from the province of the Legislature, so far as the enactment of a law by which it might be made possible for corporations to take advantage of individuals by the filing of bonds and promised compensation that would result in long drawn out lawsuits. I have instances that I recollect that have come under my own observation where railroad companies have built grades through private property. Compensation for damage done has been deferred and shortly after the railroad has become insolvent, and the man has been left with a grade through his farm, and the privilege of levelling it down again at his own expense. All we ask is that it be plainly defined that before private property can be taken for public use compensation shall first be made, and I believe this section is a good one just as it was reported from the committee of the whole, and it seems to me that it ought not to be changed.

Mr. HOWARD. Mr. President, I think that the section as it stands now will give satisfaction, for the reason given in argument made here to-day. It has been said by some of those who are opposed to it or who are in favor of some of the amendments, that a man would have the power to ask a thousand dollars or ten thousand dollars for a piece of property that is not perhaps worth over one hundred. This does not give him the power to do that. The first part of the section reads: “Private property shall not be taken for public use without just compensation first made.” Now, that does not say the man who owns this property, be he a poor man or whatever he may be, can demand just what he pleases, and the party that wants the property has got to pay the price that he asks for it. It leaves it with the Legislature to determine that. It leaves it with the Legislature to provide how and in what way this property might be assessed. And the latter part of the section reads, “And no private property shall be damaged for public use without just compensation to be

determined by a competent tribunal.” It looks to me, Mr. Chairman, as though that was fair. To change this section and leave it as some of these amendments suggest, it would throw this question into the courts and perhaps leave it there for years to the detriment of the poor man that owns this property that might want to be taken, whether it be by a railroad corporation or any other corporation. The amendment offered by {635} Mr. Kimball, from Weber, covers some of the ground that this section already reported covers, but it provides that the compensation is determined by a jury. If that should prevail, it would compel the man to go into the court. He may go to a court to get a jury, he cannot arbitrate it, he cannot settle it in any other way provided there is any trouble over it, only by going into court to get a jury. Some of the gentlemen who want this changed admit in their argument that it is good enough but they want to leave it to the Legislature. Let the Legislature provide for these things, that this section now asks for. This body of men here to-day is a larger representation of the people of the Territory than you can get in the Legislature, and if they conclude that this is good enough why let them put it in the Constitution. If it must go and it is left to the Legislature to fix how this shall be done, there is a possibility that it might be changed or left in a way that corporations would have the advantage. It is possible_we have heard of such things being done_that corporations have influenced legislation, and if this is such an important article to be considered in the interests of corporations, they certainly would take an interest in this matter when it came before a Legislature and would do all that they possibly could in their own interests to keep the Legislature from protecting the rights of the citizens, and I think that it should be left as this section now provides, that this should be determined by a competent tribunal. Let the parties when they disagree in regard to the value of a piece of property choose arbitrators if they want to, or let the court appoint a commissioner to take testimony and to present in the case if they want to, or let it go to a jury if they like; let them choose the mode, but do not compel them to go into court and take a jury. I think we should leave it the way it is.

Mr. LAMBERT. Will you allow me a question? You are living in a sparsely settled country. There are canals to be taken out in your region. Who are taking out those canals?

Mr. HOWARD. The people as a rule are taking them out.

Mr. LAMBERT. Are they not composed, as a rule, of poor men, and would not it make it a hardship if they had to put up cash for a right of way?

Mr. HOWARD. I think not.

Mr. THURMAN. How about the other fellow, is not he a poor man, too?

Mr. HART. I would ask if a private canal company has anything to do with this section? This is for public purposes, as I understand it. That would come under the following section.

Mr. LAMBERT. You can incorporate canal companies, can't you?

Mr. RICHARDS. I desire to ask the gentleman from Cache a question. I understand you to say that the taking out of water might not be a public use_the construction of a canal?

Mr. RICHARDS. I ask the gentleman from Cache this question. Suppose the inhabitants of a town were to construct a canal to convey water from any source, would not that be a public use?

Mr. HART. Well, it would probably be so construed, but we have not considered it as such in framing the provision of this Constitution. We have public uses and private uses and we have placed as private use rights of way for the construction of ditches and canals. There is a doubt as to what the construction would be.

Mr. RICHARDS. I desire to ask the gentleman another question. Is it not a fact that this section 23 does not relate to that kind of a case? Is it not a fact that section 23 does not apply to the case that I suggested? Would not the {636} case that I speak of be a public use and would not the case where an individual or two or three individuals desired to use the property of another_would not that be the kind of a case that is reached by section 23?

Mr. HART. Well, it is possible, as I stated, that the case stated by the gentleman would come under section 22, but the restriction given by the gentleman here of three or four men taking out a ditch and going across another's land is certainly in contemplation of section 23.

Mr. LAMBERT. If they would incorporate it would come right under that section.

Mr. BOYER. Mr. President, I only arise especially to place myself straight before this Convention. The worthy gentleman from Utah County in his remarks referred to his colleague from Utah County taking opposite ground to him on the particular question before the house a few days ago. Now, when this question was up, I remember distinctly objecting to placing in this Constitution any provision that should subject any corporation to consequential damages, and that those damages should first be paid before gaining possession of the property that would be necessary for their use. That objection having been thoroughly overcome in this section, as now provided_in section 22 upon this subject. I then voted fairly and squarely for the provision in my mind as it now stands, for the amendment; and I hope that every amendment that has been offered to the substitute, as it has been offered, will not prevail, but that section 22 as it now reads may stand in this Constitution; and I desire, while on my feet, to make reference to one particular case that I now have in my mind, in furtherance of answer to the question of the gentleman from Weber County, and that is whether_I think, however, if I mistake not, it was Mr. James that asked the question_whether within the last fifteen years any property had been taken and confiscated without first being paid for by any corporation. Now, I have in my mind one special instance that transpired in Utah County_

Mr. JAMES. May I correct the gentleman?

Mr. BOYER. Yes, sir.

Mr. JAMES. You have not quoted my question exactly right. I asked the question of Mr.

Thurman, did he know of any property having been taken within the last 15 years where compensation had not been had and owners of the property had not been paid for it, and to name the property and name the corporation. I wanted to ask it for information. I wanted to know if it had been done under the law which provides that property can be taken and a bond given for the payment of the property.

Mr. BOYER. I will confine my answer to that question or endeavor to. The case that I have in mind is something like this: a corporation desired a certain piece of property and running in front of a gentleman's land in the construction of a railroad, and this individual gave a certain piece of his land, very meager though, in quantity, yet to him somewhat valuable_gave to this corporation certain property and then there was a difference still existing between the corporation and the individual. The private individual wanted a thousand dollars for his property and the railway declined to make any concession and then went away. Before taking forcible possession of this property the railway agent, conversing with the individual owner of the property' asked him whether he would take five hundred dollars for his claim. The gentleman replied, “I want one hour to consider,” inferring to him that he would accept of the proposition. In the meantime, the same agency came before me and desired to enter proceeding by way of obtaining a warrant to suppress the individual from doing {637} damage in the event that the company should take possession of his property forcibly. I declined to issue him a warrant on any information or belief of that kind, that would so deprive the individual of his personal liberty. Consequently_I will not say consequently of that action, I will say, right along here, before the individual and the agent got together, the company itself took forcible possession, and with a score of men with ax in hand took possession of the property of the individual, chopped his forest trees, etc., down, held possession of it, and it was months afterwards before the individual got his pay and that was by the award of a jury in the district court of the first judicial district of the Territory of Utah.

Mr. EVANS (Weber). Mr. President, I desire to ask the gentleman a question. Could not a corporation do the same thing under this section as you desire to have it passed?

Mr. BOYER. Certainly not.

Mr. EVANS (Weber). That is simply a lawless act?

Mr. BOYER. I should say so.

Mr. EVANS (Weber). I could go upon anybody's property and lawlessly do the same thing.

Mr. BOYER. I have no fear of anything of this kind when we have the law emphatic. When we provide that no property shall be taken without compensation first made therefor, then we have no question about it, and he subjects himself to a double prosecution.

Mr. BOWDLE. Mr. President, in all these cases there will be individual hardships, and it is a well settled principle that the general good must first be subserved, even if an individual occasionally does have to suffer. I do not believe in taking any man's property without just compensation, but as we stand here to-day, we cannot see exactly what will be the future in all its

bearings on this subject, and all that I have heard said with reference to this section and urging against the amendment of the gentleman from Weber (Mr. Evans), is casting a doubt upon the wisdom and the ability of the future Legislatures to take care of this matter. Under the amendment as offered by Mr. Evans, and which I most certainly favor, the Legislature can take ample care of this whole subject. They will have the power to pass any law that they may see fit regarding the manner in which the compensation shall be made. They can say it shall be made before the property is taken. They will come up from the people; they will be persons that will be representing the people, and I take it, not the corporations, and it seems to me that we can safely leave that to them when we say that no property can be taken or damaged without just compensation. That covers the whole ground. The only difference is that some say it must be paid in advance or there must be a bond given. That is all. Those are the only things upon which they differ. We must not lose sight of the fact that we want this Territory developed, and while we must take care of our citizens and protect them in their property rights and in their homes and all that, we must not at the same time make such a Constitution here as will discourage private enterprise and proper development of this country. Now, if we put this in as the gentleman has by the substitute offered, that fixes it for all time to come. The Legislature at its first session may do that very same thing that is here proposed by this substitute. There might come up such a circumstance or such a complication of circumstances that the Legislature in its wisdom would say that it was not a good thing. The Legislature could remove that, but as we fix it here the Legislature can do nothing at all in the matter. They are compelled to leave it just as we fix it here, and I am in favor of leaving it with the Legislature {638} when we say that you shall not take the property without you make compensation for it_I believe we can safely leave to the Legislature the question of how and when that compensation shall be made, and I am in favor of the substitute and leaving it just as that will leave it, and then the Legislature can adopt the ways and the means which will be eminently within their province by which this can be done.

Mr. MURDOCK (Beaver). Mr. President, as I regard it, we are in the interests of all parties. That is not only those that may constitute a corporation, but individuals and all there is of a corporation, they are just simply a little larger “feller” than the individual. That is all there is of a corporation. They represent a company, and they should be treated as an individual, and if it is right to take the property of individuals for a public purpose, which all corporations is more or less regarded as a public enterprise, that is instituted to what? To develop the country, making roads, railroads, to make canals, or reservoirs, and all these things, and it is very possible that directly an individual may be injured but indirectly he may be greatly benefitted by that enterprise whatever it may be. He may be greatly benefitted and we are here to not only look after the individual, but we are here to look after what? Men who are enterprising, men of means, men who are desirous to make perhaps money for themselves. That is their main object, is to make money for themselves, and while they are making money for themselves, they are making money for the individual. We are dependent upon enterprising men, we are dependent upon men who will bring their means into the country, and we do not wish in any wise to hedge up and hinder their progress. We have only commenced_

Mr. THORESON. Will the gentleman allow me a question?

Mr. MURDOCK (Beaver). Yes, sir.

Mr. MURDOCK (Beaver). I am not arguing against a man's private property being properly_

Mr. EVANS (Weber). That is what the section does say, “If you want private property you must pay for it.”

Mr. MURDOCK (Beaver). Yes, sir, I fully endorse the section and the very most I think is necessary is the amendment of Mr. Evans from Weber County. We do not want to make the matter so stringent that men of enterprise will feel discouraged. I believe in giving them a chance to bring forward any enterprise that will be beneficial to the public. I do not believe in being so particular. While I desire to have individual interests guarded and well guarded, and we are not here to legislate, gentlemen, I believe that we are here simply to make a boundary that will surround and protect future legislation, and we do not want to legislate in all these particulars in a detailed condition, which I see are many, if it is in bills that are brought here, that to my mind is a great deal too much legislation. I think we should leave these matters. I have confidence in the men that will represent the people here in the future in the Legislature. Let them have as much at stake as we will here.

Mr. HAMMOND. Mr. President_

The PRESIDENT. Mr. Hammond.

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

Mr. VARIAN. I hope that won't prevail. I protest against it.

Mr. ROBERTS. I sincerely hope it will not prevail.

The PRESIDENT. I had already acknowledged Mr. Hammond before Mr. Ricks had presented his motion.

Mr. HAMMOND. I am now getting tired. I do not purpose to detain you, gentlemen. It has been well said that this is a very important question that {639} we are debating. I have had some experience; I am not a lawyer nor the son of a lawyer, but I have my thoughts and convictions. A long resident of this Territory, saw a great many acts of corporations, I am utterly opposed and ever have been for any individual or corporation of any character jumping down onto my land without my having a voice in saying_at least preventing me from having any voice in the act. The government which I love, our great and good government, with Grover Cleveland at the head_I am not good on dates, but I think in the year 1888 there was a commission sent out to make a trade with the Southern Ute Indians, and it placed them over into San Juan County. The secretary, a very able gentleman_a clergyman of great repute and high standing, was the secretary, and they rode about our country up and down for four months until they expended every last cent of the appropriation, I think it was ten thousand dollars, before ever they returned

a report at all, and finally by paying the chiefs over two hundred and fifty dollars_five hundred dollars possibly, they got their names to a treaty to give up their present reservation and placed them over in Utah, and this secretary wrote to me afterwards asking me to follow with a report or an estimate of the settlers' claims_the value of our claims there? $30,000 was embodied in the bill to pay settlers for their thirteen years of hard labor there. In connection with some other gentlemen we got together and submitted an appraisement of the valuation of our claims there exceeding $100,000, and afterwards, I went to Washington on that very thing to keep every_inasmuch as we were bound to be ousted, and I submitted it to the committee, that they embody in the bill $200,000 more or less, to pay the settlers for their labor and claims there. Why we had one canal that cost the people $96,000, that this high toned commission was going to allow us $30,000 for all our land, land claims and water rights. Now, I am opposed to this, whether it is the government, or whether it is corporations, private or municipal, to squat down onto me or on my people without giving us a chance to Wave some voice in the bargain_two sides to a bargain, hence, as I seconded this amendment, I am heartily in favor of it.

Mr. VARIAN. Mr. President, I want to suggest to my friends on the right that they must not be impatient; the discussion of these matters is long sometimes and some of us have not the opportunities of being in at the beginning when the work is done and hearing the discussion and the talk before the committee. I must talk on this question, and particularly the matter concerned in the 23rd section. It may be that if the views I entertain shall meet with consideration at the hands of the Convention, the Convention may desire to add something more to section 22, the one under consideration now. In the view I take of it, it does not make very much difference whether you put in the Constitution a provision that compensation shall be paid for private property taken for public uses, because otherwise you could not take it. That is a fundamental proposition. I lay it down now. You cannot take private property for a public use without paying for it. The second proposition is you cannot take private property for private uses at all, whether you put it in your Constitution or not. The section as it stands perhaps is not objectionable unless it be in the provision regarding compensation to be first made. We went over all that ground the other day and I had supposed that the Convention had finally and definitely concluded upon that subject. So far as I am concerned, I do not care to discuss that question. I find in my mind at least serious objection, however, to a portion of the amendment, offered I believe {640} by the gentleman from Weber, Mr. Kimball, which. as I remember it, expressly provides that benefits accruing to the owner of the condemned property shall not be taken into consideration in the award of compensation. I do not believe that is right. I have serious doubts whether it could be maintained. Perhaps, however, that being for the benefit of the citizen, might not present a serious question. It is wrong in principle anyhow. Under such a provision as that any municipality in opening a street in a city, increasing the value of the property immensely perhaps_for the sake of illustration, we will say, a hundred per cent_why should the city be compelled to pay the price for the land taken for this great public purpose, which not only results beneficially for the general community at large_the entire city, but absolutely puts money into the adjoining property owners' pockets? It does seem to me that such a proposition as that ought not to be considered. It is not alone a question of railroads or quasi public corporations. This great question of eminent domain includes a vast variety of matters. It is founded on fundamental principles, underlying which, all the time, as it is the corner stone, is the right of private property. I object, therefore, so far as I am concerned, to that amendment, and I understand that there is

another amendment by the gentleman from Weber, which, if adopted, would simply leave the first two or three lines, I believe, in the section.

The amendment offered by Mr. Evans, of Weber, was read.

Mr. VARIAN. It leaves it “first being made.”

Mr. EVANS (Weber). Yes, sir.

Mr. VARIAN. Now, gentlemen, this is a matter of popular_a matter which you will decide without reference to law, because it is a matter that can be determined. It is a legislative question. I do not care to discuss that. I do want, however, to discuss matters arising particularly because of the 23rd section, and while we have not reached that yet, still as I said before, it is intimately connected with the 22nd section, and with the general subject, and it may be that you will want to make some further declaration as to what public uses are. If I shall be able to convince you as I have convinced myself since this matter was before the committee of the whole, that all these matters and declarations in the 23rd section are absolutely in violation of the 14th amendment to the Constitution of the United States_

Mr. BUTTON. Would not you prefer to take a recess and argue that afterwards?

Mr. VARIAN. I very much perfer it. I wanted to bring a volume or two here to illustrate.

Mr. EVANS (Weber). Mr. Varian, I desire to ask you a question. Would it not be better for you to make your argument on that subject when we reach it? We are simply determining this question now of taking private property for public uses.

Mr. VARIAN. Well, I have concluded to pitch right in here.

Mr. EVANS (Weber). I thought that might confuse both sections. I simply want to settle this question about what we will do, that is all. I simply want to ask you whether it would not be a better order if you had no amendment of this section to dispose of section 22 and then go to section 23.

Mr. VARIAN. No, Mr. President, the view I take of it, the two sections should properly be considered together. And as I am advised, it might be necessary to present some additional amendment to section 22, which cannot be done without considering at least by way of argument the effect of section 23.

The Convention then took a recess until 2 o'clock p. m.
{641}
AFTERNOON SESSION.

Mr. KIMBALL (Weber). Mr. President, I do not desire to make a speech at this time on my substitute for the section that is now under consideration and all the amendments, but I do desire

this, as the gentleman from Salt Lake, Mr. Varian, has the floor, to correct him in one thing that he mentioned this morning. If you read my substitute, it obviates the objection the gentleman raised. I do not refer in that clause of the substitute that refers to the non-allowance of benefits to public corporations, and I simply want to call his attention to that matter now, so that he may not be misled in his argument that he may make hereafter in regard to that matter, and if the gentleman reads it himself, he will observe that it is restricted to private corporations, not municipal corporations, or any other public corporations.

Mr. VARIAN. Mr. President, as intimated before the recess, the matters embraced in section 23 are intimately connected with the subject matter of section 22. It is impossible, I think, to intelligently discuss the whole underlying principle which ought to be and must be, I submit to you gentlemen here, discussed and understood before you can afford to pass on either one of these propositions. The matter has been considered, Mr. President, at some length in the committee of the whole. I believed then as I believe now that in the general desire to accomplish an admitted good for the people of the new State and to enable them to develop its resources, the great fundamental principle underlying this entire doctrine was overlooked, or if not, was passed by too hastily. It was assumed that the people in this Constitutional Convention assembled had complete and full power to even disturb vested rights, to invade the sanctity of the private ownership of property, and by a simple ipse dixit_a declaration to make of a private use a public use. Now, I submit in the beginning that that theory is in violation of the principles upon which this government rests; it is the right of eminent domain which we are considering and it is well to pause a moment and understand and admit what that right and power are. It is the power inherent in all governments, whether you declare it in your Constitution or leave it out, based upon the principle that the public safety is the supreme law, predicated upon a law of necessity, which authorizes the entire people, through the medium of their common government, to reach out the hand and take the property of the citizen, because it is deemed necessary to advance the interests of the state. That is the principle underlying it. It is well expressed by the supreme court of the United States, speaking through Mr. Justice Field, in the following language:

The power to take private property for public uses, generally termed the right of eminent domain, belongs to every independent government. It is an incident of sovereignty, and as said in Boone versus Patterson, requires no constitutional recognition. The provision found in the fifth amendment to the federal Constitution, and in the constitutions of the several states, for just compensation for the property taken, is merely a limitation upon the use of the power.

United States, that the whole people in constitutional convention assembled might enact an act of confiscation, which that would be, if compensation was not provided; but we must also admit that it would be so foreign to the entire temper and disposition of the people of the United States, that it could not be maintained; public sentiment would not maintain it, and it is at least questionable at this time whether the courts themselves would not override the constitutional enactment, upon the ground that it was contrary to all natural law and an interference with vested rights that the present age would not permit.

The second proposition, intimately connected with this, is that after all, under your system, however you may curtail it and modify and express it, in your constitutional enactment, it is upon the judiciary that the weight of determination must fall. It is impossible for any American citizen to admit for a moment that the power lies anywhere in a legislative body or in the people themselves to invade the ownership of private property to the extent that it may be taken, even for public use, without compensation; and of course that principle is always accompanied with another, that in cases of supreme necessity, when the laws are silent, when the necessities of the entire community require different action, it is not applicable then. As an instance it may be illustrated in cases of great conflagrations and calamities of that kind, which have overtaken and may be expected to overtake large communities; when a great fire eats away and destroys cities, the government may step in on such occasions and may arrest the progress of the flames, or attempt to do so, by destroying private property, for the benefit of the public, and unless there is a statute providing for it, no man is liable and no compensation need be made. But, we are not dealing with exceptional cases, we are dealing with the general principles, and I want to start right from that broad foundation, upon which I stand, and I affirm these propositions: First, that the right of eminent domain is inherent in all governments and needs no constitutional declaration. Second, that since the 14th amendment to this Constitution of the United States was adopted, no state can take the property of the citizen for a public use, without compensation. Third, that no state can take the property of the private citizen for a private use under any circumstances or at all. Fourth, that of necessity the question of public use must finally be determined by the courts; that the simple declaration in your Constitution or in your legislative enactment, that the use of property in a certain way shall be deemed a public use, is not conclusive. This is a question of necessity, a shifting one. It depends upon different conditions, different circumstances, which overtake a people from time to time as the years go by. What may be deemed a public use in one locality, under certain conditions, with certain circumstances surrounding its people, would absolutely be deemed the contrary under other circumstances and under other conditions. So that, of necessity it is always a question, as we term it, not alone of law, but a mixed question of law and facts. The facts must be ascertained, the conditions must be ascertained, the circumstances must be known, the purpose and objects of the proposed act must be defined, in order that the application {643} of the law to such conditions and such facts may be made by the proper tribunal.

Now, if I have made no mistake in that (and I don't think I have), we are ready to proceed in the line to the consideration of the next matter. We start, you will remember, with the understanding that we do not need, first, to make any declaration in this Constitution at all. We are all agreed that as it is usual and customary to do so, it is better to do so, perhaps. We are all agreed that we ought, in accordance with the times, with our system of government and with our ideas

concerning the protection of property and the rights of the individual, also couple with the declaration a limitation, as it were, upon its exercise; that is to say whether we shall put in there that it shall not be taken without just compensation. But, now we are confronted with the further proposition, that we are to declare here, not alone what shall be public uses, if we come to condemn, but we have gone further and attempted to say what shall be deemed private uses; or, to reverse the statement, we have attempted to declare that in certain classes of cases, for some certain specific purposes, the property of the private citizen may be transferred from him to his neighbor; and I undertake to say that it is in violation of the Constitution of the United States, as it is in violation of all our understanding of vested rights; that it is confiscation and spoliation, in principle and in fact, as it is presented here in this declaration. Why, the very object of this government, the primary object, is the protection of life, liberty, and property. Property stands upon the same plane with life and liberty. It is simply, as it is affirmed in the opening statement of this very preamble and declaration of rights, a reaffirmation of what has always been in this country and in England since the days of magna charta. The language is changed a little, but the equivalent is there, and the meaning is the same, and none other.

It will take no longer, as a part of what I have to say, to incorporate in my language what is said by others upon this question, law writers, and judges. Following this, of course, it is apparent, Mr. President, that a constitution is not beginning of government. Government existed before the constitution. It is not the origin of all these rights, or privileges if you please, that are affirmed and declared in it and are protected in it or by it. Mr. Cooley says:

In considering state constitutions, we must not commit the mistake of supposing that because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the power of the rulers, but they do not measure the rights of the government. What is a constitution and what are its objects? It is easier to tell what it is not than what it is. It is not the beginning of a community nor the origin of private rights. It is not the fountain of law nor the incipient state of government. It is not the cause, but consequence, of personal and political freedom. It grants no rights to the people, but is the creature of their power, the instrument of their convenience, designed for their protection, in the acknowledgment of the rights and powers which they possessed before the constitution was made. It is but the framework of the political government and necessarily based upon the pre-existing conditions of laws, rights, habits, and modes of thought. There is nothing primitive in it. It is all derived from a known source. It pre-supposes an organized society, law, order, property, personal freedom and love of political liberty, and enough of cultivated intelligence to know how to guard it against the encroachments of tyranny.

Fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. The language of magna charta in substance was, no freeman shall be taken or imprisoned {644} or be disseized of his freehold, etc., but by the lawful judgment of his peers or by the law of the land.

of the United States engrafted upon their organic law that prohibition reaffirming the prohibition of the 5th amendment, making it specially applicable to the states in this Union. Let me read you the language particularly applicable here:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.

Due process of law undoubtedly means, in the due course of legal proceedings according to those rules and forms which have been established for the protection of private right.

As to the words from magna charta, incorporated in the constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this, that they were intended to secure the individuals from the arbitrary exercise of the power of government, unrestrained by the established principles of private rights and distributive justice.

If, however, an act of assembly, whether general or special, public or private, operates retrospectively to take what is by existing law the property of one man and without his consent transfer it to another, with or without compensation, it is in violation of that clause in the bill of rights which declares that no man can be deprived {645} of his life, liberty, or property, unless by the judgment of his peers, or the law of

the land. By “the law of the land” is meant, not the arbitrary edict of any body of men, not an act of assembly, though it may have all the outward forms of a law, but due process of law by which either what one alleges to be his property is adjudged not to be his, or it is forfeited upon his conviction by his peers of some crime for which by law it was subject to forfeiture, when the crime was committed. If this be not so, every restriction upon legislative authority would be a vain formula of words without life or force. For what more can the citizen suffer than to be taken, imprisoned, disseized of his freehold, etc., and be deprived of his property without crime?

The United States cannot any more than a state interfere with private rights except for legitimate governmental purposes.

But there is no rule or principle known to our system under which private property can be taken from one person and transferred to another for the private use and benefit of such other person, whether by general law or by special enactment. The purpose must be public, and must have reference to the needs or conveniences of the public. No reason of general public policy will be sufficient, it seems, to validate such transfers when they operate upon existing vested rights.

An act to take private property for a purpose not of a public nature, is to take the property of one and give it or sell it, which is the same thing in principle, to another, would be a gross abuse and fraudulent attack upon private rights.

It is now considered a universal and fundamental proposition in every well regulated and properly administered government, whether embodied in constitutional form or not, that private property cannot be taken for strictly private purposes at all.

Mr. VARIAN. I am endeavoring to show and I have shown that the same principle which has hitherto prevailed in all the constitutions has latterly been incorporated in the same language in the Constitution of the United States. I am simply alluding now to the interpretation of that language by the state courts as to what it means in the Constitution of the United States.

In a late case in the supreme court of the United States, Mr. Justice Brown, speaking for the court, says:

Upon the other hand, it is probably true that it is beyond the competency of the state to appropriate to itself the property of individuals for the sole purpose of creating a water power to be leased for manufacturing purposes. This would be a case of taking the property of one man for the benefit of another, which is not a constitutional exercise of the right of eminent domain.

Mr. VARIAN. If the gentleman will allow me to lay my premises, I will endeavor to explain how it affects the discussion of section 22. I was going to read from the report of the supreme court of Illinois. I will not pause for that purpose now.

Now, these are the premises that I lay down, if I can make myself clear. Of course it is a lawyer's argument, and it would not be justified in a body like this under other circumstances. It is a matter, as I shall suggest hereafter, {646} which ought to be discussed and settled or at least investigated by a committee. The proper committee here would be the committee on federal relations, but without any disrespect to those gentlemen, they are not lawyers, any of them, I believe, and this is peculiarly a matter for lawyers, as is quite apparent. Now, these are the premises: First, that it does not lie within the power of our government, whether acting through the medium of a constitutional convention or a legislature, to take the property of one citizen and transfer it to another for a purely private use. It is within the power of our government, in cases of public necessity, and those alone, to take the private property of the citizen, for the uses of the state, making just compensation therefor. We are also bound by the prohibition in the Constitution of the United States just as if we were sitting here as a legislative body, with an organic law of the state controlling and restricting our action with the same kind of language. Do not the gentlemen see that? Do not you see that it is just exactly the same, since this amendment has been adopted, as if we were dealing with a like clause in a state constitution and were attempting to make an enactment under that? Imagine for a moment now that this was a Legislature of the State, and that this provision of the 14th amendment were incorporated in the organic law of the State, and we were discussing a bill containing these clauses. Take that section 23 for instance; the entire question would be disposed of as this must be disposed of. We would look into the history and origin of the power. We would review it in the light of the interpretation and construction it had received. We would review it in the light of the necessities of our people with reference to these constitutional guaranties and protection, and it would be determined there, as it must be determined here, that you have no power, no right, to enact anything at all like that in section 23.

Now, gentlemen say, what has that got to do with section 22? This: If the Convention shall be convinced that the position I am taking is the correct one, and that it will not do to leave section 23 in there, they may consider, “well, there are some matters embraced within section 23 that might properly be declared public uses.” That being so, we want to consider section 22, which refers to public uses, is dealing with that subject in the light of these objections to section 23, and ascertain, if we can, whether we can take some of these uses for which we have attempted to provide in section 23 and make them public uses, and incorporate them by amendment or addenda to section 22. It is in that sense and in that view that I consider that the argument came

on properly at this time, because in dealing simply with these amendments to section 22 in the light of just the matters embraced within it, the Convention not having its attention called to what was coming in section 23, might undertake some action that subsequently they would want to reform and do away with.

Now, I submit, that we ought to take those two sections, pass this question for the time; the matter ought to be recommitted with directions to the committee to investigate and ascertain whether my position here is correct. I do not ask nor expect that my ipse dixit shall be taken by this Convention on a question of this kind. It is a matter of grave and serious moment. It involves one of the gravest questions of constitutional law. It is not only serious as to the effect upon the people if the Constitution should be adopted, but you will observe it is serious in this particular if my position is correct: The President of the United States cannot, under his oath and under the Enabling Act, issue his proclamation upon this Constitution. The language of that act is, “if it shall appear that the provisions {647} of this act have been complied with, that the Constitution as adopted is republican in form and is not in conflict with the provisions of the Constitution of the United States, then the President shall issue his proclamation, whereupon the State shall be admitted.”

So, it is in no captious spirit, and certainly with no desire to be heard or to make a speech (I have plenty of opportunities to do that in any profession), that I have intruded myself at this length at this time. It is in the honest and earnest and sincere conviction that you are just now upon the eve of making a great mistake_and I will go further and say that I do not believe that many of these matters that are contained in section 23 could be made public uses simply by a declaration; and after all, in every case the matter will have to be determined by the court; that under the guise of a public legislative declaration, whether in the Constitution, or in the act of the Legislature, a fact is not changed, a merely private use is not made a public use simply because a body of men representing a government say so. I think that ought to be borne in mind. This matter ought to be investigated patiently and learnedly, if you please, through the medium of a committee, so that we will feel assured that no mistake has been made.

One word with reference to the suggestion made by my friend Mr. Kimball. It seems that I misapprehended the full force of his amendment, and to that extent I withdraw whatever criticism I made upon it. I should still be opposed to it upon principle, however, because I believe that the best and safest way to do is simply to put in your declaration in this Constitution, that private property shall not be taken for public use, except upon just compensation, and put in, “first made” if you please, and “taken or damaged,” and let it rest there. There is no necessity of lumbering up the Constitution with enactments as to what shall be public uses, because whatever you say or do, as I said before, in the end you can do no more than the Legislature could do, and can no more take my property and turn it over to my neighbor, compelling me to sell it for a purely private use, by constitutional enactment, than you can do it by legislative enactment. And I say right here that I would hesitate long before I would vote to establish over me as a citizen of this republic such a law. I believe that it invades the sacred private rights of the citizen. I believe that it is wrong in principle. It is in violation of all that we have understood concerning those things, and it ought not to be, particularly in this Territory. It ought not to go into this Constitution if it is going to jeopardize it in the least; and I simply ask you gentlemen to consider

now_I have made no further suggestion. I am not going to make any motion_whether it would be better to take those two sections on that subject and send them to a committee and let the committee report back after investigation what ought to be done in the matter,

Mr. HOWARD. I would like to ask Mr. Varian a question. You say you have no objections to the words “private property shall not be taken for public use without just compensation first made?”

Mr. VARIAN. I said I had none.

Mr. HOWARD. What particular objection have you got to the balance of that section 22?

Mr. VARIAN. None in particular_none at all. I am not criticising section 22. I concurred in the judgment of the committee the other day. I am not attacking that section, but I think the two sections are intimately connected, because it is one subject matter and ought to be disposed of all at once.

Mr. HOWARD. Section 23 is not before the house, as I understand. I am opposed to that.

Mr. FARR. Mr. Chairman, I do not {648} know_I would like to inquire in regard to the length of time a person can occupy in the debate.

The PRESIDENT. There is no rule in the Convention. The rule applies only to committee of the whole.

Mr. FARR. I do not wish the Convention to understand by this question that I got up for a long speech or anything of the kind. I do not consider if I was to stand here for two hours and quote you authorities it would have any bearing on this matter. The question is, what is right in the matter? That is what I want to know, and what law shall we enact for the benefit of the future State of Utah? (Reads sections 22 and 23.) Well, now, I maintain that the Legislature should provide for all of these. I have a substitute that I wish to introduce here that embraces only a few words, that I think will cover the ground of these two sections.

The PRESIDENT. We already have an amendment to section 22, and a substitute, and another section, until we take some action on this, would not be proper.

Mr. FARR. Mr. President, I just want to say this, for the consideration of the house, while I may vote for the other, this section I think will cover the ground of both of these sections and nearly all the amendments. There are a great deal of exceptions taken to this section, and they have provided a number of amendments to cover that. I will introduce this and read it and I will leave it for the gentlemen of this Convention to act upon it as they see fit:

Section 22. The Legislature shall provide by law that private property shall not be taken or damaged for public or private use without due compensation first being made.

amendments as much as possible in this so that it will provide for all the objections, and the section will cover the whole in as few words as possible. I do not believe in going into all this rigamarole of law when it can be simmered down to a few words. I maintain the Legislature can provide all that there is in this twenty-third section. This Convention requires the Legislature by this section to provide a law for the whole of this. And I leave this section now for your consideration.

Mr. SQUIRES. Mr. President, in view of the remarks of the gentleman from Salt Lake, who has just taken his seat, and in view of the great importance of this subject as to the constitutionalty of our own Constitution, when it is to be adopted, I move that sections 22 and 23 be referred to the committee on judiciary with instructions to make an early report on that subject.

Mr. KIMBALL (Weber). I second that motion.

Mr. ROBERTS. Mr. President, I hope that motion will not prevail, for the reason that I believe that this house is prepared to settle this question now. We have been making slow progress and I think it is time that we made haste as much as we possibly can. Not that I am in favor of endangering any great principle by hurrying it over, but after the doctrines that have been expounded here on this question, and the rights and powers that the Legislature will have in the matter, and the questions also apparently having been pretty well settled in the courts of the country, I think we can at this time adopt section 22, and when we come to consider section 23, either declare such uses public uses as will grant the privileges desired to be obtained, or else leave it to the Legislature and to the future action of the courts, and we can do so with perfect safety. For one, I am prepared to accept section 22 as it is, and then accept such amendments of section 23 as will remove the objections that are made here to it.

Mr. CANNON. I would like to ask {649} Mr. Varian a question with his consent. I was not present at the time the gentleman commenced his address, but from what he said in closing I understand that section 22 as proposed to be amended by Mr. Evans, of Weber, provides that private property shall not be taken or damaged for public use without compensation, and that that would be agreeable to Mr. Varian?

Mr. VARIAN. Mr. President, I would say that I have no objections to section 22, but as coupled with section 23 there is a still further question in connection with it. If section 22 is allowed to stand, the question of public uses is complicated by the declaration in 23 as to private uses. For instance, take mining and milling, etc., that might be construed as a prohibition against the Legislature declaring certain public uses under section 22. If it were certain that 23 were to be stricken out, I would not have a word to say about section 22, and am perfectly content with it.

Mr. CANNON. Then, I am opposed to the motion to commit and in favor of voting on this motion as proposed. One reason is that section 10 was referred to the committee on judiciary several days ago.

Mr. SQUIRES. Mr. President, I will withdraw my motion with the consent of the gentleman from Weber.

Mr. EVANS (Weber). Mr. President, I want to make a remark or two before this vote is taken, and I will be very brief.

The PRESIDENT. The previous question is called for.

Mr. KIMBALL (Weber). I submit the previous question has precedence of everything else. I object to the gentleman's speaking until that is disposed of.

The previous question was ordered.

The PRESIDENT. The question is on the substitute offered by Mr. Kimball of Weber.

The substitute was rejected.

The PRESIDENT. The question now recurs on the amendment of Mr. Evans.

Mr. KIMBALL (Weber). Mr. President, I raise the point of order, the previous question was on my substitute and not on any other matter foreign to that section. I now move to amend section_

Mr. IVINS. Mr. President, I rise to a point of order.

Mr. PRESIDENT. The gentleman was right; he moved the previous question simply on his substitute.

Mr. IVINS. The gentleman from Weber (Mr. Evans) moved an amendment to this section. The other gentleman from Weber moved as an amendment to the motion a substitute. If a substitute is in the form of an amendment, the question having been put upon the substitute of the gentleman from Weber, my point of order is that the question should immediately follow upon the amendment of the other gentleman from Weber, without any further debate.

Mr. KIMBALL (Weber). Mr. President, my motion was the previous question on my own substitute. I believe that the chair sustained me in that.

The PRESIDENT. I sustained it. The question before the house is the amendment.

Mr. KIMBALL (Weber). I move now to amend section 22 by adding at the end thereof the following words:

That among other public uses shall be included all lands for necessary reservoirs, drains, flumes, sewers, conduits, pipes, or ditches, for agricultural, mining, milling, domestic, or sanitary purposes.

gentleman from Weber is not in order. I made a motion to strike out a portion of that section and now he offers to amend by {650} adding to the section. We have got to pass certainly upon that matter which I moved to strike out. I have no particular objection to the gentleman's amendment, but I think we ought first to dispose of that matter which I moved to strike out. The amendment which he offers is in the right direction,

Mr. KIMBALL (Weber.) Mr. President, I maintain that the gentleman's point of order is not well taken. It is true that he moved to strike out certain matter of that section, but my motion was to add to the end of that section, and it does not make any difference whether his amendment is adopted or whether it is not adopted. My amendment comes to the end of the section.

Mr. EVANS (Weber). We can not tell what the end of the section is now until we vote_

The PRESIDENT. The chair is of opinion that the gentleman's amendment is in order.

Mr. CANNON. Mr. President, would an amendment to the amendment be in order?

The PRESIDENT. No; there are two now before the house.

Mr. THURMAN. Mr. President, I move the previous question on the whole subject.

Seconded.

The PRESIDENT. The question now recurs upon the proposed amendment of Mr. Kimball.

The amendment was rejected.

The PRESIDENT. The question is now on the adoption of this section as proposed by Mr. Evans and accepted by Mr. Richards,

Mr. HILL. Mr. President, it is some time since we heard that amendment read. I would like to have it read before the motion is put.

The PRESIDENT. It is the striking out after the word compensation_all after that in that section be stricken out.

Mr. VARIAN. Did Mr. Evans accept the suggestion over here, “or damaged?”

Mr. EVANS (Weber). I did.

The amendment was agreed to.

The PRESIDENT. Section 23 is now before the house.

Mr. VARIAN. Mr. President, I move to strike it out.

Mr. KEARNS. Mr. President, I have a substitute here which I wish to offer for section 23, taken from the 14th section of the Idaho declaration of rights, which I think will cover all the grounds.

Mr. VARIAN. I move to strike out section 23.

The motion was agreed to.

The PRESIDENT. The secretary will read section 24.

Sections 24, 25, 26 were read.

Mr. HART. Mr. President, I move to strike out “a” as it stands in the second line of section 26, so that it will read, “all laws of general nature shall have uniform operation.”

The motion was agreed to.

Mr. VAN HORNE. Mr. President, I move to strike out section 26.

The motion was rejected.

Sections 28 and 29 were read and passed without amendment.

Mr. SQUIRES. Mr. President, I now move the previous question on the whole proposition.

The previous question was ordered.

Mr. CREER. Mr. President, I move that we adopt the preamble as reported by the committee.

The motion was agreed to.

Mr. WELLS. Mr. President, before action is taken_     

Mr. KIMBALL (Weber). Mr. President, I rise to a point of order. The previous question was sustained.

The PRESIDENT. Only on the bill of rights, not on the preamble.

Mr. WELLS. Before final action is taken on this article I move that the subject matter_     

The PRESIDENT. The previous question has been called for and ordered.
{651}
Mr. EVANS (Weber.) Mr. President, I move that he have unanimous consent to speak.

Mr. HART. Mr. President, I arise to a point of order on the previous question on this whole article. Thus far we have arrived at no understanding as to the scope of Rule 23_

The PRESIDENT. It is stricken out.

Mr. HART. Rule 23. (Reads rule 23). Now, Mr. President, while I think a great many of us would not wish the ayes and noes_I think in fact we can unanimously agree that the ayes and noes should not be called separately on all these propositions, because I believe that there are a number of these propositions that there is no objection to from any person. But there are certain propositions here that individuals should have the right to record their votes on. There are some of these that I shall vote on separately. My objection is to the previous question on this whole proposition that it is out of order under these rules, and that the proper thing to do is to vote on each proposition separately.

The PRESIDENT. Not each section_upon the proposition_this is a proposition. The ayes and noes are called for under it.

Mr. HART. I think each one of these sections is a proposition.

The PRESIDENT. Oh, no, it is a bill of rights.

Mr. HART. And a man would have a right to cast a vote against any one section.

The roll was then called on the adoption of the article entitled declaration of rights, and the vote was as follows:

AYES_96.
Allen
Anderson
Barnes
Bowdle
Boyer
Brandley
Button
Buys
Call
Cannon
Chidester
Christiansen
Clark
Coray
Corfman
Creer

NOES_0.

During the roll call members explained their votes as follows:

Mr. BOYER. Mr. President, I do not fully comprehend what we are voting on.

The PRESIDENT. You are voting on the bill of rights as amended.
{652}
Mr. ROBERTS. Does that include the preamble also?

Mr. ROBERTS. And the ayes and nays called on the preamble?

The PRESIDENT. Yes, sir.

Mr. BOYER. No further amendment allowed?

Mr. ROBERTS. Gentlemen, I would ask_

The PRESIDENT. Gentlemen, you are out of order. The roll is being called.

Mr. HART. Mr. President, I wish to explain my vote. I can only vote yea, in
favor of this proposition as a whole, but there are certain propositions in there that I wish to have my vote recorded on, and as I understood it I had the right under rule 23 to so record my vote. I, therefore, desire to be recorded against the striking out of section 23 and also against the adoption of section 10 as it now stands.

The PRESIDENT. The gentleman has the privilege.

Mr. VARIAN. Let it go on the minutes.

Mr. PARTRIDGE. Mr. President, I am willing to vote yea on that article, except the amendment of section 22. I wish to be recorded as voting no on that section.

Mr. THURMAN. Mr. President, I would like to vote upon the entire bill with the exception of the amendment to section 22, by which the Convention refused to require that private property should not be taken for public use without just compensation first made. As to that, I wish to be recorded in the negative.

Mr. VARIAN. Mr. President, in voting yea upon the article, I simply want to state that I have not changed my views as to the article. I am opposed to section 10, but I don't understand we can vote yea on one proposition and nay on another. Therefore, I vote yea upon the whole proposition.

Mr. FARR. Put down the same for me.

Mr. WELLS. Mr. President, I vote yea and announce now that I do so with the understanding that I may move hereafter to reconsider, because I am not satisfied to strike out section 23.

The PRESIDENT. The chair declares article 1, the declaration of rights, adopted.    

Mr. KIMBALL (Weber). Mr. President, I have stood up here so long in order to get the floor, because I knew that if I kept my seat my friend Dave Evans, from Weber County, would be ahead of me, and therefore I stood up while you were announcing the vote. I now move, Mr.

President, that the preamble_

Mr. EVANS (Weber). Mr. President. I arise to a point of order, that when a vote is commenced on any proposition it must be continued.

Mr. KIMBALL (Weber). The president had announced the vote.

The PRESIDENT. The gentleman is not in order. I had announced the vote on the bill of rights.

Mr. EVANS (Weber). The question is on the adoption of the preamble; nothing is in order but the roll call on that.

Mr. KIMBALL (Weber). That has been added to the many times my friend has been wrong. He is wrong again. My motion now is that we adopt the preamble as reported by the committee and as it appears in the printed article, and that we take the vote on it now. I move the previous question now.

The previous question was ordered.

The roll was then called on the question to adopt the preamble, with the following result:

AYES_95.
Allen    
Anderson    
Barnes    
Lemmon
Lewis
Lowe, Wm.
{653 - EXECUTIVE}
Boyer
Brandley
Bowdle
Button
Buys
Call
Cannon
Chidester
Christiansen
Clark
Coray
Corfman
Creer
Cunningham
Cushing
Driver

NOES_0.

The PRESIDENT. The chair announces the preamble carried.

Mr. KIMBALL (Weber). Mr. President, I move that we now resolve ourselves into committee of the whole to consider the next article on the calendar.

The motion was agreed to and the Convention then resolved itself into committee of the whole with Mr. Pierce in the chair.

COMMITTEE OE THE WHOLE.

The article entitled executive was then considered.

Section 1 was read as follows:

Section 1. The executive department shall consist of governor, secretary of state, state auditor, state treasurer, attorney general, and superintendent of public instruction, each of whom shall hold his office for four years, beginning on the first Monday of January next after his election, except that the terms of office of those who were elected at the first election shall begin when the State shall be admitted into the Union, and shall end on the first Monday in January, in the fourth year thereafter. The officers of the executive department shall, during their terms of office, reside at the seat of government, where they shall keep the public records, books, and papers. They shall perform such duties as are presc,ibed by this Constitution and as may be prescribed by law.

Mr. THURMAN. I second the motion.

Mr. KEARNS. Mr. President, I hope that the motion will not prevail. It is unnecessary to create any extra offices. We find thirteen states in the Union that are all of more consequence and with more inhabitants and wealthier states than this that get along without a lieutenant governor. Again, I find that the secretary of state is an office that contains a good deal more responsibility. We are apt to get a better representative in the office for secretary of state than we are for lieutenant governor, and I do not see why at this time we should create that office. I think it is unnecessary. I hope this motion will not prevail.

Mr. KIMBALL (Weber). Mr. Chairman, {654} I am of the opinion that my friend's argument is not good, that because thirteen states do not have a good thing, that we, the last State, should not have it. I certainly think that a lieutenant governor is a necessary party in the executive department, and I think that for several reasons. The first reason is that under all of the constitutions of all the states a lieutenant governor is the presiding officer of the senate.

Mr. KEARNS. Might I ask you a question?

Mr. KIMBALL (Weber). Wait a minute, will you please? You talk so fast I cannot keep track of you and I would like to get my say first, because I may forget it. He is the presiding officer of the senate. He is an indifferent officer, he is a man there without a vote. He presides over that senate impartially. I say that is a good reason for having a lieutenant governor. Another reason for it is that when the people come to vote for governor or lieutenant governor or secretary of state they know who they are choosing to be their governors and they express their choice, that the man that is named as lieutenant governor shall be governor in the absence
the governor or in case of his death or disability. You take the secretary of state. He is elected to perform other duties entirely, and I say you should not change the form of government so as to diverge from the constitutions of almost all of the states. Now, Mr. Kearns.

Mr. KEARNS. You say he is always speaker of the house. Those thirteen states that have no lieutenant governor, how do they manage to get a speaker?

Mr. KIMBALL (Weber). I have been at a loss to know how they did it. They elect some man from the democratic party or the republican party or the populist party, and they have a man in

there that is a partial man from beginning to end, and when you have a lieutenant governor, it does not make any difference whether your state is republican or democratic, he is indifferent. He has no vote. He cannot vote on any question, and therefore, I say that I am in favor of retaining the lieutenant governor. It does not cost you anything. Say the legislative article provides four dollars a day, that the lieutenant governor gets when the Legislature is in session, and then he loses his time besides, and I certainly think that amendment ought to prevail.

Mr. VARIAN. Mr. Chairman, I simply want to explain the matter as it appeared to the committee. We felt that whichever way this was reported it would not meet with the approbation of the entire Convention. That is, if it reported a lieutenant governor, perhaps we would find a feeling or disposition to strike it out; but these were the reasons that moved the committee to eliminate from the government the lieutenant governor: First, the object, of course, was to economize as much as could be done consistently with public good, and then it was considered that the office was hardly worth the keeping. We could not afford to pay the State officer. We cannot afford to pay a lieutenant governor. At least the committee so considered it. It is a high office, and, as suggested, might perhaps assume a still higher function in case of the death or disability of the governor. I have noticed in the experience that I have had in this matter that the result was about in this wise: The State provides for the office of lieutenant governor. When he is elected he knows that he will receive no salary. He knows that there is more or less dignity attached to it. Some bright man runs for the office and the moment he gets there he looks about him and sees all the other officers getting pretty good salaries and well taken care of by the State. He begins to think, “I am not treated right here; I have got to devote my time to the service {655} of the State; I cannot leave the State, and as long as I hold this office I am liable to be called upon to perform duties of the State. Every meeting of the Legislature I have to go there and give my time for the State at a small per diem. I do not think it is right. His friends begin to think so too. The result is they commence to hatch up some legislative scheme to provide emoluments for him.

Now, this is just what happened in your adjoining state of Nevada. No sooner was the constitution adopted and the legislature had met_perhaps the second session, than a scheme was put on foot to provide some way of giving the lieutenant governor a salary, and what did they do? They made him warden of the state prison and that ran along several years until the people became assured it was not just the thing to put politicans in that office. There were too many breaks for liberty; convicts were killed, and officers too; they took him out of that and made him state librarian at a salary of three thousand dollars a year, and so it went. Now, we thought history might perhaps repeat itself. As you start in you will find a tendency like this: “I will run for lieutenant governor, the dignity is all I want.” He runs for this office, which is a dignified office; when he gets in there he begin to see that the other men are not running for the dignity alone. They are running for the salary, and they all want all they can get and like to have it increased if possible. That is human nature, and so you will have the lieutenant governor, and his friends, complicating matters and endeavoring to provide some place for him in order that he may live in the capital and be one of the officers with the rest of them. Now, whether that is a sufficient reason in the minds of this Convention, at least that was one of the reasons that moved the committee. Of course the committee are not wedded to the notion at all, and I do not desire to take time insisting that it should remain in that way, but I thought that we would explain the

views that moved us.

Mr. KIMBALL (Weber). If you will point to some other instance than Nevada_     

Mr. VARIAN. That was under my personal experience.

Mr. KIMBALL (Weber). I am a little prejudiced against the practices in Nevada. I would like to have some other state.

Mr. VARIAN. The gentleman may be prejudiced against a thing that he don't know anything about. I think, perhaps, it will compare quite favorably with those of Indiana, certainly, and if he will take the trouble to be informed he will ascertain that at the time that constitution was made and adopted, Nevada was filled up with some of the brightest men and most distinguished men that ever assembled in one community in these United States.

Mr. IVINS. Mr. Chairman, the gentleman from Weber (Mr. Kimball), who moves as an amendment to this article that this additional office be created, gives as his reasons, first, that the lieutenant governor is president of the senate, and second, that when the people elect a lieutenant governor, they know that the man they choose will, in case of the disability of the governor, act in his stead, and he advanced no other reasons. Now, gentlemen, isn't it a fact that there will be among the twenty-five men or more who may be chosen to the senate of this State some one man that will be just as amply capable of acting as president of the senate as the lieutenant governor might be? Is it not also a fact that the people, understanding when they choose a secretary of state that he will be governor of this Territory in case of the disability of the chief executive, would be just as likely to choose an efficient governor direct? In the first place, this section as it stands, has in view {656} economy. The committee did not think that a multiplicity of offices should be created where they could be consistently dispensed with.

In looking over the constitutions of other states, we find that the lieutenant governor, as a rule, is a salaried officer. If the plan that has been suggested shall be carried out the officers of this State will be salaried officers, and in that event a lieutenant governor would receive a salary, which in many of the state constitutions I have examined is made about half that of the chief executive. Under those conditions it does seem to me that it is unnecessary. While it is true that in a majority of the states the office of lieutenant governor is created, it is also true that in some of the states which have been more recently admitted to the Union the secretary of state performs the duties of governor during his disability, and it was with this view that the section was passed in the committee as it is. Some greater reason should be shown than that offered by the gentleman from Weber, before I should feel like consenting to any change.

Mr. GOODWIN. Mr. Chairman, I do not care to argue this question, but I would like to a little further elaborate the record in Nevada, because the same thing may be done over in this Territory or State. The lieutenant governor was made warden of the penitentiary, but it was given up after awhile because it demoralized the prisoners. The reason given was that where the prisoners were brought in close association with a high officer they lost the respect for authority and could not see very much distinction between a lieutenant governor and a horse thief; but I arise to ask if I

may be excused and to state that the judiciary committee would have no meeting to-night.

The CHAIRMAN. The gentleman may be excused.

The question is on the amendment of inserting the words “lieutenant governor” alter the word “governor,” in the first line.

The amendment was rejected.

Mr. LOW (Cache). Mr. Chairman, I desire to offer an amendment to section 1, which is to strike out all that part of the section, commencing at the word “beginning,” in line 5, down to and including the word, “thereafter,” in line 11. My reason for offering this amendment to section 1, can better be stated and explained more fully when we reach section 2. The clause which I ask to be stricken out here in section 1 seems to me to be precluding the possibility of alternating the offices in the executive department, and I desire when we reach section 2 to offer an amendment that will provide that offices in the executive department will be alternated so that we may not have a governor, secretary of state, state auditor, state treasurer, etc., all elected at the same time, and for the same length of terms.

Mr. VARIAN. Mr. Chairman, I still do not understand, even granting the purpose of the gentleman to amend section 2, why that should prevail. What reason is offered for letting state officers alternate, or some of them? The whole theory of the bill was that state officers would be elected at one time. Of course we have an understanding that certain other elections be held at different times.

Mr. LOW (Cache). Mr. Chairman, by way of explanation, I would read the amendment which I wish inserted in section 2, that after the word “legislature,” in line 4 of section 2, the following:

Provided that at the first election the governor and state officers shall be elected for a term of two years.

Mr. VARIAN. If I understand the gentleman, then, he wants to have the state officers elected alternate, that is at different times?

Mr. LOW (Cache). Yes, sir; that is my understanding; they shall all hold their terms of office for four years after the first election, and by putting in the first two or three of them for two years, then at the end of two years, we will have another election for them and their terms of office shall then be four years, and it would not necessitate the election of all the officers at the same time and their term of office expire at the same time; and I would explain further that I believe it would be an advantage to the executive department not to have the terms of the governor and secretary of state expire at the same time, for I understand that the provision was made in this

article that in the absence or disability of the governor the secretary of state shall become acting governor, and it would be an advantage I claim that the secretary of state would have had an experience previous to the election or incumbency of a new governor in office.

Mr. ROBERTS. Mr. Chairman, I rose for the purpose of asking the gentleman the advantage that would accrue from having these elections as he proposes. That is, dividing the election of the executive officers, and he has given an explanation of that. But I wish to say that the advantage that he claims for this arrangement that he proposes does not appeal to my judgment. I take it for granted that the executive offices will not be very intricate, and men who will be elected to those offices will not be boys but men of experience and competent to discharge the duties to which they shall be elected, and I can conceive of no advantage really to be derived from the plan suggested by the gentleman from Cache Valley, and therefore should not favor the amendment.

Mr. LOW (Cache). Mr. Chairman, I will explain further in regard to this matter, that it is also provided in this same article that the executive officers, many of them, are members of various boards of control, and if we should happen to vacate all the positions in the executive department at once we would have men put into these places who would not have an understanding pertaining to these various boards of control.

Mr. CANNON. Mr. Chairman, I favor the amendment by the gentleman from Cache; in the article which provides for revenue, taxation and public debt, it is designed to make several of these officers a board of equalization, and I think the advantage of having men who have had some experience and other men who are just coming into office would be considerable. It would be upon the same principle upon which they elect senators to the United States senate, and that is followed in many of the states in other respects that they have different members with their terms of office expiring at different times; so also they would have in the various boards referred to here some men who had had some experience. While it is true they would probably elect men of experience, yet there is a certain amount of routine that has to be gone through with, and I believe it would be an advantage to the State to have them elected in the manner suggested by the amendment. I should, therefore, favor it.

Mr. VARIAN. Mr. Chairman, I agree with Mr. Roberts. The question is new to me and I am not prepared to exchange ideas with the gentleman on this statement. It seems to me to be something new. I am not aware whether it has been practiced anywhere. Perhaps my friend can tell me whether the state of Washington has {658} it. But I call my friend Mr. Cannon's attention to the fact that there is not really so much in his reason as at first blush would occur. The same principle would apply in the case of the federal government; the President and cabinet officers change every four years and sometimes oftener. Offices are not dependent on the individuals. They live when the individuals go out, and unless the gentleman is able to illustrate a point rather to some particular instance of this kind in other communities it seems to me we ought to hesitate to change the general rote.

Mr. CANNON. I call the gentleman's attention to the fact that the custom in Utah has been almost universally in our boards of county commissioners, or selectmen, to elect them alternately and not have them retire at the same time.

Mr. BOWDLE. You find it in your native state, I believe.

Mr. VARIAN. It is so long since I have been there I am not able to say.

Mr. JAMES. Mr. Chairman, before putting the question, I want to just make a remark. I am not in favor of the amendment for one reason that has not been suggested, but the greater reason is because this matter has been in charge of a committee who have given it careful thought in their committee room, men that would be capable of dealing with this question, and to my mind their judgment is a guide to me. But there is still one other. It has been said that it would be to the advantage to alternate. Now, my friends, I do not believe that alternating is a good healthy proposition, for the benefit of the State. You, Mr. Chairman, and all other gentlemen here that have observed officials who are not in harmony, know that they do not work to the great advantage for the good of the public, that they do where they are in harmony. Now, the party that may be successful at the election will elect the governor and the other party that probably has been defeated will have the secretary in, and you have a set of officers that probably will not work so well together. Your team is not so well matched. They do not trot so nicely on the road and consequently in place of a benefit, it is really a detriment.

The amendment of Mr. Low, of Cache, was rejected.

Mr. BUTTON. I would like to ask Mr. Varian one question for information. We have to elect a congressman every two years. This provides for these officers to hold four years after this first election. Will it be then that in the intermediate years, we have to have elections?

Mr. VARIAN. I will state that it was thought that after all these articles had been substantially adopted by the Convention then finally this question of time would be fixed.

Mr. BUTTON. Then it won't have any effect on this?

Mr. VARIAN. I presume not. It may be necessary to change this time. It will depend on what the action of the Convention will be in regard to the election this fall, how they will alternate the elections. The committee don't consider that the fixing of this matter in this section was binding on the committee, but simply put in there for the purpose of making the article complete and subject to be changed when you determined how you are going to have the elections.
Section 2 was read as follows:

Sec. 2. The officers provided for in section one of this article shall be elected by the qualified electors of the State at the time and place of voting for members of the Legislature, and the persons respectively having the highest number of votes cast for the office voted for shall be elected; but if two or more shall have an equal and the highest number of votes for anyone of said {659} offices, the two houses of the Legislature at its next regular session shall forthwith by joint ballot elect one of such persons for said office. The returns of election for the officers named in section 1 shall be made in such manner as may be

prescribed by law, and all contested elections of the same, other than provided for in this section, shall be determined as may be prescribed by law.

Mr. EICHNOR. Mr. Chairman, this time I shall not quote from the constitution of the state of Washington. In the state of Pennsylvania the state superintendent is appointed by the governor, and ever since the state of Pennsylvania had a superintendent of public instruction; when we had a republican governor he appointed a republican, when we had a democratic governor, he appointed a democrat. It is simply six one way and half a dozen the other. I believe in electing him.

Mr. HEYBOURNE. Mr. Chairman, I am opposed to the gentleman's motion. I believe in leaving the power and choice of these various officers in the hands of the people just as far as it can be done. Further than that, I am of the opinion that the gentlemen who composed the committee that had this matter in charge have given it very candid and careful consideration, and I am willing so far as the measure has been presented to leave the matter in their hands. Therefore, I shall object to the motion to amend.

Mr. LOW (Cache). Mr. Chairman, I have not heard any argument adduced here why we should submit to every proposition that is presented by members of certain committees, because the gentlemen of those committees would give due consideration to the matters before them and whose judgment would be good. That is the tenor of the remarks made that oppose the amendment I submitted. I desire to add that one reason why I submit this amendment is that we would oftener have an educated man appointed. Where it would be left to the people we would have a politician elected. A politician would work for the office. Certainly he might do if appointed. We would have the governor use his judgment in regard to the question if the matter of appointment is referred to him subject to the support or consent of the senate_the legislative body, and I contend that we would get a better man, no matter if it may be a man of the same political faith that he would have been, if he had been elected. In nine cases out of ten, this would be the truth_the facts in the matter. Although the question of education has been left out of politics to a very great extent, we will find that we will take it into politics to the very greatest extent, if we would allow this to become an office in which the plum would be worth a political fight for, and therefore I would favor the appointing of this officer, no matter what his political ideas may be.

Mr. VARIAN. That is upon the theory that every man who is elected is going to be a politician. Would not the governor be a politician also? And could you depend upon him any more than you could upon a man elected by the people?

Mr. LOW (Cache). You could to a very great extent.

Mr. LOW (Cache). The defeat of my first suggestion of course removed this further from possibility in this connection, because the governor would be in four years then, and in the other case he would be in only two years, and I {660} say there could not be so much conniving in that case. But, of course, if you remove it further from political strife it would be better.

Mr. RICKS. Mr. Chairman, there is one point that we ought to consider in connection with this amendment. Mr. Low refers to section 14 of the article on elections and rights of suffrage. (Reads.) Now, this provides that the superintendent of public instruction, whom I take to be a school officer, should be elected at the same time the other State officers are, and I should think that this amendment or some other looking to harmonizing these two sections ought to be considered.

Mr. VARIAN. I do not understand that the term school officers used in the article on elections and rights of suffrage includes superintendent of public instruction. He is a State officer, but as I said before, can we not, after you get all these articles settled to your satisfaction, by looking over the two that conflict, fix it as you want it?

The amendment offered by Mr. Low, of Cache, was rejected.

Mr. EVANS (Weber). Mr. Chairman, I desire to propose an amendment to section 2, by striking out all in the section after and including line 12. I have so much confidence in the chairman of this committee that I will leave it entirely with him as to whether that is necessary. It simply leaves the Legislature power to do these things, which they would have anyway.

Mr. VARIAN. I have no objection, I think. The thought was that inasmuch as a provision for one sort of a contested election was made in the article_that is, where there were two or more having an equal or higher number of votes than others, that it should be determined by the Legislature. This was put in to provide for other cases, but as at present advised, I see no objection to striking it out.

The motion of Mr. Evans was agreed to.

Section 3 was read as follows:

Sec. 3. No person shall be eligible to the office of governor or secretary of State unless he shall have attained the age of thirty years at the time of his election, nor to the office of attorney-general unless he shall have attained the age of twenty-five years at the time of his election, and have been admitted to practice in the supreme court of the State of Utah, nor unless he shall be in good standing at the bar at the time of his election. No person shall be eligible to any of the offices provided for in section one of this article unless at the time of his election he shall be a qualified elector and shall have been a citizen resident of the State or Territory for two years next preceding his election.

portion of this section may properly be eliminated. You might pass it now if you will.

Mr. EICHNOR. Mr. Chairman, I wish to offer an amendment to section 3, at the end of line 15, “all officers of the executive department, except the superintendent of public instruction, shall be ineligible to election as their own successors.” The reason I offer that amendment is this: The states that have adopted that plan to elect their officers for four years and then make the officers of the executive ineligible to re-election as their own successors_the plan has given great satisfaction.

Mr. BOWDLE. What states have done that?

Mr. EICHNOR. Quite a number of the eastern states. I will come back to Pennsylvania as one of the states, there are several others, the names I cannot recall. I think Ohio has it. Now, if any of you have ever lived in a state where the governor has the opportunity to scheme for re-election as his own successor, I think you would all be in favor of the amendment.

Mr. MACKINTOSH. Mr. Chairman, I would say that that rule ought to apply to the treasurer and all officers having the responsibility of funds.

Mr. EICHNOR. It does apply to all executive officers.
{661}
Mr. MACKINTOSH. It should apply to that one particularly, because in cases of malfeasance in office, or breaches of trust, they can cover them up and go on if they succeed themselves.

Mr. LOW (Cache). Mr. Chairman, I desire to amend Mr. Eichnor's amendment by saying they shall not be eligible to any other office during their term of office.

The CHAIRMAN. There is no second to it.

Mr. IVINS. Mr. Chairman, I just want to say that I trust this amendment of Mr. Eichnor's will not prevail. There is nothing so very desirable in these offices that they will be greatly sought after, and if a man makes a good governor why should not he serve two terms, if the people want him? That is the view I take. I do not believe in placing this restriction in this Constitution. If the people want a man for two terms let them have him. If they do not, there is nothing compulsory about electing him.

Mr. EVANS (Weber). Mr. Chairman, I was just going to say that I was going to support the amendment, that is about all. My purpose in supporting it is this, that it will prevent the governor and executive officers from laying their political wires for re-election. I think the provision is a good one. We have given them a long term of office_four years.

Mr. VARIAN. Mr. Chairman, I am at a loss to understand how the State is going to be benefitted from preventing one man laying his political wires to be elected and letting another man lay his political wires. As long as humanity is as it is, men who have a liking and aptitude for political life, you will always find them laying wires. If a man wants an office, he will try to get it, and I

see no objection to a man who as he received the suffrages of the people to a high and responsible office, having filled it with satisfaction to himself and his constituents, asking an endorsement of the people for his faithful service, for his fidelity, to his trust. I see no difference in that particular, so far as the State is concerned than to allow a stranger to lay the wires. You cannot help that. A man who has not held office, an untried man, he will be seeking to get there, and he will do just as much and more perhaps than the gentleman who relies upon his position in the community and the record that he has made for the suffrages of the people. Of course, gentlemen, this matter of continuing men in office may be abused, but I have yet to learn that simply permitting men to be re-elected once is such an abuse. I hope that amendment will not prevail,

Mr. MAESER. Mr. Chairman, I speak in regard only to the superintendent of public schools and his office. Now, all politics are a curse on education, and I would like to see that office removed as far as possible away from politics. Now, that office is now elective. The people may be fortunate enough, and I trust they will, to secure a very fine superintendent of public schools, because we have one now. Now, it is not possible for any man, no matter who it is, and Mr. Lewis, our present commissioner of schools, will bear me out in that statement_it is not possible for him to do much in one year. It takes several years to make his mark and organize the schools of the State or Territory, as the case may be, so that he can see the fruits of his labors. Suppose now we have a superintendent of common schools secured for the first four years, he has succeeded in introducing a system of schools, beneficent and beneficial in the highest degree, giving satisfaction to the whole people, and by the time now he has got this system in full working order_by about four years, everything goes nicely and he finds he would be deprived from re-election.

Mr. EICHNOR. I would like to ask {662} Mr. Maeser_you understand that the amendment excepts the superintendent of public instruction?

Mr. MAESER. I sustain your position. Now, then, according to that, he would be deprived of re- election. And a new one would step in. He has got new ideas. Gentlemen, I know a little of what I am talking about; you do not find two educators that agree in all points. Therefore, he will have his own system. His predecessor has made a fine record and now he wants to do something also. He will undo a great deal of his predecessor, as much as possible, in order to establish his mark, and so every four years our educational system is liable to be thrown into confusion. But suppose that a superintendent who is not very efficient, after four years this people can get rid of him, until we get one that will give satisfaction or start with one that gives satisfaction. We have one now that gives extreme satisfaction. He starts a very fine system throughout. Perhaps that system ought to be perpetuated_ought to be sustained. Then, by all means let us have him again, and so on. Therefore, I sustain the proposition of Mr. Eichnor.

Mr. HEYBOURNE. Mr. Chairman, I would like to ask Mr. Eichnor_that argument applies to Doctor Maeser just the same as do his remarks to the superintendent of instruction?

Mr. EICHNOR. I say no, for this reason. Because all the State officers are political officers, while we may elect a State superintendent_we will nominate him by a political party and at the

same time as Doctor Maeser states, he should be removed from politics as far as possible.

Mr. LOW (Cache). Mr. Chairman, while I shall support Mr. Eichnor's amendment, provided I cannot get some one else to amend it still further, I wish to state that it is not entirely satisfactory to me, because I would like if it could be made possible that the governorship would not be made the stepping stone to the senate.

Mr. EICHNOR. That is in the last section.

Mr. RICHARDS. Mr. Chairman, I hope this amendment will not prevail. I see no good reason for it. It seems to me it is in the nature of restriction of the right of the people in relation to these matters. If an officer has performed his duty faithfully and if people desire to re-elect him, I do not see why they should not have the chance to do it. I am opposed to it. Now, when you come to putting objections in the way of the chief executive of the State paving the way to senatorial preferment, I can see some reason for that. I can see a reason why a judge should not be eligible to political preferment, but to say that a governor should not be permitted to succeed himself, or a secretary of state, or an attorney general, or any of the other State officers enumerated here, I see no good reason why that should be so.

Mr. EICHNOR. I would like to ask Mr. Richards a question. Isn't it a fact in the states where there is no restriction placed upon the officers of the executive department, they have more corruption in the offices than in the states where restrictions are placed?

Mr. RICHARDS. That may be so. It would not necessarily be so.

Mr. MURDOCK (Beaver). Is it not safer to leave this matter in the possession of the people, rather than to restrict them from what might be a great benefit to have a man that has been well tried and that they know has made a good officer, and if he is for candidacy again, why not let them have the privilege of putting him in? I think that is a restriction that is certainly taking from the people a right.

Mr. RICHARDS. I desire to complete my answer to Mr. Eichnor. I was going to remark that if an officer was corrupt the people would not in my {663} judgment re-elect him. I think that they may be trusted on that point.

Mr. MACKINTOSH. Mr. Chairman, I offer as an amendment that the state auditor and state treasurer shall be ineligible to election as their own successors, and for the reason that while they may be perfectly proper persons, still in view of the positions they hold they ought not to succeed themselves.

Mr. CANNON. Mr. Chairman, I desire to second the motion of Mr. Mackintosh. I believe the officers named should not be eligible, but I do not agree with the motion offered by Mr. Eichnor. I do agree with the idea contained in this proposition of Mr. Mackintosh, that the state treasurer should not be eligible to re-election. I believe a number of the states_quite a large number_have a similar provision to this.

Mr. MACKINTOSH. Yes.

The question being taken on the substitute offered by Mr. Mackintosh, the committee divided and by a vote of 54 ayes (noes not counted), the substitute was adopted.

Mr. RICKS. Mr. Chairman, I move an amendment in line 14, to strike out the word “two” and substitute therefor the word “five.” I notice, Mr. Chairman, that most of the states have a provision for five and some of them even ten years as the length of residence that their officers shall have in the state. Seven years in Massachusetts, Michigan five, New Hampshire seven; New Jersey requires that a person shall be twenty years a citizen of the United States and seven years a resident of the state; Maryland requires ten years as a citizen of the state and five years an actual resident, so we can go on. There are a number of the states that have equally long periods of residence, and I think five years is small enough.

The question being taken on the amendment offered by Mr. Ricks, the committee divided and by a vote of 57 ayes (noes not counted) the amendment was agreed to.

Mr. Heybourne was excused by his request.

Sections 4 and 5 were read and passed without amendment.

Section 6 was read as follows:

Section 6. The governor may, on extraordinary occasions, convene the Legislature by proclamation, in which shall be stated the purpose for which the Legislature have been convened, and the Legislature shall transact no legislative business except that for which they were especially convened, or such other legislative business as the governor may call to the attention of the Legislature while in session. The Legislature may, however, provide for the expenses of the session and other matters incidental thereto. He may also by proclamation convene the senate in extraordinary session for the transaction of executive business.

The CHAIRMAN. If there is no objection that can be arranged afterwards.

Mr. Thompson was excused by his request.

Mr. RICHARDS. Mr. Chairman, I move to strike out the word “he” in the eleventh line of section 6, and insert the words “the governor.”

The motion was agreed to.

Mr. HART. Mr. Chairman, before section 6 is passed I would like to direct the attention of the

members to the clause commencing on line 7, “or such other legislative business as the governor may call to the attention of the Legislature while in session.” There is a question in my mind as to what scope that would give the Legislature while meeting in special session. I think the Legislature should do no work except that for which they were specially convened and matters incidental thereto. I move to strike out those words.
{664}
Mr. VAN HORNE. It does not seem to me that that ought to be stricken out. Suppose something should come up_another emergency that if it was not the same for which the Legislature had been called, would have been sufficient for him to have called a special session of the Legislature to consider them, would the gentleman say that that should not be presented to the Legislature and that they might not consider that emergency as well as the one for which they were specially called? It seems to me that it would be limiting the power of the Legislature in any session, unwarrantably, because the governor then would have to let that special session go and then have to call another session by proclamation.

Mr. VARIAN. Mr. Chairman, the gentleman from Salt Lake has voiced the sentiment of the committee drafting this provision. That was the idea that it might be safely entrusted to the governor. In case of emergency, authorizing the special session of the Legislature, if there should be something else that had been omitted or had arisen since the call, he might be trusted with the duty of ascertaining whether it was of sufficient importance or not; that is the reason of it. Mr. Van Horne has expressed the idea.

Mr. EVANS (Weber). Mr. Chairman, I just suggest we had an instance in history where a governor of a neighboring state called the legislature together for the purpose of considering the advisability of coining silver for the United States_that it might be done by the state. I say, however, I think the section ought to stand as it now is.

Mr. RICHARDS. Mr. Chairman, I think this ought to be stricken out and for this reason; it is always desired in special sessions that the Legislature shall be restricted to the work for which they have been called. Now, the chairman of the committee says that the only purpose that the committee had in inserting this provision was that if an emergency should arise during the time the Legislature was in session, the session might be continued to avoid the necessity of calling another session. Now, it seems to me that the inconvenience in calling another session would be far less than to leave the Legislature open to legislate in a general way at a special session. There will be no special inconvenience. The Legislature is in session to-day, called for a special purpose. An emergency arises, the governor issues his proclamation for another session. It begins immediately after the termination of that other session. It is simply the trouble of issuing another proclamation; that is all the inconvenience, whereas, if you strike this out, there is no limitation to the business the Legislature may do at a special session.

Mr. CANNON. I wish to ask Mr. Richards whether a proclamation would not ordinarily be required to be given for a certain length of time?

Mr. RICHARDS. I am not aware of anything in this Constitution that requires anything of the sort.

Mr. RICHARDS. It may be the usual course, but the reason why it is the usual course is to afford the members opportunity to get together. Now, if the emergency has arisen and the Legislature has assembled, what is the reason a proclamation should not be issued to take effect to-morrow?

Mr. BUTTON. Mr. Chairman, I want to ask the gentleman if the extra session then so called would not give every member his mileage?

Mr. RICHARDS. I think not, I see no reason why it should. They do not travel any extra distance. That would be a matter of legislation. The Legislature might provide that it should or should not, just as it pleased, it does not necessarily follow.

Mr. HAMMOND. Mr. Chairman, when I seconded the motion of the gentleman, {665} Mr. Hart_or the amendment, I had in my mind the crazy, cranky governor's operation over in Colorado recently_Waite. He kept that state in a furore there for weeks and weeks, legislating on what? I could not tell and I do not think anybody else could, and when they got through the populistic operation, they called upon the women to oust him and they did it.

Mr. VAN HORNE. Mr. Chairman, I call Mr. Ricks' attention to the fact that the legislative committee in their draft provided for special sessions that members of the Legislature should be paid per diem and mileage. I take it that it could not easily be controverted, that in a special session the mileage is counted from the place from which the member was elected, and if we have provided in that article that way, it would seem to me that if the committee adopted that article we would have that state of facts; a Legislature convening by proclamation of the governor, in session and emergency arising on which a special session will be called. He will call the special session to take effect perhaps immediately upon the adjournment of the preceding session, and under that each member of the Legislature, without moving from the town at all, would be entitled to the mileage that the member of the Legislature would have upon coming for the first time.

Mr. RICHARDS. Will the gentleman permit me a question? Is there anything to prevent this Convention, when they reach the article that you refer to, from saying there that the mileage shall not be paid unless the distance is actually traveled?

Mr. VAN HORNE. No, sir; I think not.

Mr. RICHARDS. I am only discussing the question as it stands now. We can meet the other contingency when we arrive at it.

Mr. IVINS. Mr. Chairman, if I were certain that this amendment should be voted down I should not say anything. It seems to me like a distinction with very little difference, and whatever difference there is is in favor of the section just as it stands, because the governor being authorized to call an extra session of the Legislature, would not be expected to bring in other matters before it unless they were matters of importance, and if they were matters of importance

that should be considered, he would simply issue another proclamation reconvening the Legislature, so that the section just as it stands covers the ground very fully and should not be changed.

The amendment was rejected.

Section 7 was read as follows:

Section 7. In case of a disagreement between the two houses at any special session with respect to the time of adjournment, the governor shall have power to adjourn the Legislature to such time as he may think proper; provided it be not beyond the time fixed for the convening of the next Legislature.

Mr. VARIAN. Mr. Chairman, I would remind the gentleman from Davis County that of necessity we will have to make some comparisons between the several articles when we get them all in, and I do not think he will find any conflict on this general proposition, as to time, but the general proposition underlying this article is that he shall have the power to adjourn a special session when they get locked together_one house against the other. That is the primary object. Now, the question of time is a mere incident. If you strike the entire section {666} out, you destroy the original purpose. Why not let it rest and arrange that matter in accordance with the subject?

Mr. ROBERTS. With the consent of my second, I will withdraw my motion. Section 8 was read.

Mr. RICKS. Mr. Chairman, I think the legislative committee has reported a similar section which covers the same ground, and is much shorter. I move to strike this out.

No second.

Mr. CORAY. Mr. Chairman, I move that the word “five,” in line 13, be stricken out and the word “ten” be inserted in place of it.

No second.

Section 9 was read as follows:

Section 9. When any State or district office shall from any cause become vacant and no mode is provided by the Constitution and laws for filling such vacancy, the governor shall have the power to fill the same by granting a commission which shall expire at the next election and upon qualification of the person elected to such office.

course, we do not know what committee will have that in charge in regard to district officers_possibly the legislative committee. We can either pass it or strike it out. I am not advised about that committee.

Mr. HOWARD. Mr. Chairman, it seems to me as though this conflicted with some of the sections that we have already passed. In section 1 it provides that officers provided for in that section shall assume the duties of their office on the first Monday in January next following their election. This says that the governor shall have power to fill same by granting a commission which shall expire at the next election. Now, turn back again to section 2, commencing with line 7, it provides, “But if two or more shall have an equal and the higher number of votes for any one of said offices.” Now, we will turn over here to the article on legislative department. That provides that the Legislature shall meet on the second Monday in January, so that, returning again now to this section under consideration, it will appear that there will be at least one week of a vacancy in that office without any incumbent.

The CHAIRMAN. Have you any motion?

Mr. HOWARD. I have no motion particularly, only to call attention that it conflicts.

Mr. VARIAN. Mr. Chairman, this section does not contemplate an appointment to office originally. It is after an election, when the office is filled, if there shall be a vacancy, that it shall be filled in this way.

Mr. HOWARD. I would take it that in case there were two men who received the same number of votes and it should come to the Legislature, for them to decide it, there would be a vacancy.

Mr. VARIAN. No, sir; I think vacancy includes something else.

Mr. LOW (Cache). Mr. Chairman, I would like to ask Mr. Varian a question. If a provision could not be inserted in section 9 whereby the appointment or commission might be made until the next meeting of the senate, and they did not consent to the appointment, that he should appoint another individual to fill the unexpired term until the election occurred to that office?

Mr. VARIAN. No; I do not understand it in that way. This contemplates the filling of the vacancy until the people elect. It is not to provide for any officers that the governor shall appoint. This section is not dealing with that class of officers. Another section will probable determine that matter. This section is in relation to all district or State officers elected by the people. Now, an election occurs this fall, and a year from now a man {667} dies or leaves the State, under this section the governor would fill the vacancy until the people would elect to another term.

Section 10 was read and passed without amendment.

Section 11 was read as follows:

Section 11. In case of the impeachment of the governor or his removal from office, death, inability to

discharge the duties of said office, resignation, or absence from the State, the powers and duties of the office shall devolve upon the secretary of state, until the disability shall cease, or until the next general election, when the vacancy shall be filled by election. If, during a vacancy of the governor, the secretary of state shall resign, die or become incapable of performing the duties of the office or be displaced, or be absent from the state, the president pro tempore of the senate shall act as governor until the vacancy be filled or the disability cease. While performing the duties of the governor as in this section provided, except in case of temporary disability or absence from the State, the secretary of state or the president pro tempore of the senate, as the case may be, shall be entitled to and receive the salary and emoluments of the governor.

Mr. VARIAN. There is something left out there, I think. I move to insert the words, “in the office” between “vacancy” and “of,” in line 8.

The CHAIRMAN. If there is no objection those words will be inserted.

Mr. CORAY. Mr. Chairman, suppose that the Legislature should not happen to be in session at the time that this vacancy occurred, the president pro tempore of the senate shall act.

Mr. VARIAN. Yes, it is usual in all senates to elect a president pro tempore. He is a senator and he is a president pro tempore during his term. When the Legislature adjourned he would be a senator for four years and would be president pro tempore of the senate until he was displaced by another election in the senate.

Section 12 was read as follows:

Section 12. The governor, justices of the supreme court, and attorney general shall constitute a board of pardons; a major part of them, of whom the governor shall be one, may, upon such conditions and with such limitations and restrictions as they may deem proper, remit fines and forfeitures, commute punishments and grant pardons after convictions in all cases except treason and impeachments, subject to such regulations as may be provided by law relative to the manner of applying for pardons, but no fine or forfeiture shall be remitted, and no commutation or pardon granted except after a full hearing before the board, in open session, after previous notice of the time and place of such hearing, The proceedings and decisions of the board shall be reduced to writing, with the reasons therefor in each case, together with the dissent of any member who may disagree, and filed with all papers used upon the hearing in the office of the secretary of state. The governor shall have the power to grant respites or reprieves in all cases of convictions for offenses against the State, except treason or conviction on impeachment; but such respites or reprieves shall not extend beyond the next session of the board of pardons; and such board shall, at such session, continue or determine such respite, or reprieve or they may commute the punishment or pardon the offense as herein provided. In case of conviction for treason, the governor shall have the power to suspend the execution of the sentence until the case shall be reported to the Legislature at its next regular session, when the Legislature shall either pardon or commute the sentence or direct its execution; he shall communicate to the Legislature at each regular session each case of remission of fine or forfeiture, reprieve, commutation or pardon granted since the last previous report, stating the name of the convict, the crime for which he was convicted, the sentence and its date and date of remission, commutation, pardon or reprieve, with the reasons for granting the same, and the objections, if any, of

any member of the board made thereto.

A majority of said board shall, in such manner and under such restrictions as may be provided by law, have power to remit fines and forfeitures, commute punishments, and grant pardons, for convictions in all cases, except treasons and impeachments. The governor shall, except in cases of impeachments or treasons, have the right to grant respites or reprieves, not extending beyond the next session of the board of pardons.

Mr. EICHNOR. Mr. Chairman, I offer an amendment to section 12, by striking out the first, second_

Mr. VARIAN. Mr. Chairman, I understand Mr. Eichnor has quite an important amendment to offer, and he does hot seem to have it written. It is pretty late and in order to give him that opportunity, this being the time anyhow for adjournment, I move the committee now rise.

The motion was agreed to.

The committee then rose and reported as follows:

MR. PRESIDENT:

Your committee of the whole has had under consideration the article on executive, and reports progress.