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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.


FRIDAY, April 19, 1895.

Convention was called to order at 9 m. President Smith in the chair.

Roll call showed a quorum present.

Prayer was offered by Rev. Geo. W. Rich, of Park City.

Journal of the forty-sixth day's session was read and approved.

Mr. Coray was excused.

Mr. Chidester moved the rules be suspended and all petitions relating to elections and right of suffrage be filed without being read.


The following petitions were presented asking that the question of woman's suffrage be submitted as a separate article to a vote of the people:

File No. 364, signed by C. A. Glazier and 9 others from Provo, by Corfman, of Utah.

File No. 365, signed by W. H. Dickson and 171 others from Salt Lake, by Van Horne, of Salt Lake.

The following petitions were presented asking that an equal suffrage clause be placed in the Constitution:

File No. 366, signed by Elizabeth Carlisle and 37 others from Mill Creek, by Cannon, of Salt Lake.

File No. 367, signed by Hugh McKee and 174 others from Huntington, by Howard, of Emery.

File No. 368, signed by N. J. Neilsen and 32 others from Hyrum, by Thoreson, of Cache.

Mr. Hyde, of Juab, presented the following petitions from Nephi, asking {1182 - REPORTS} that the question of prohibition be submitted as a separate article to a vote of the people:

File No. 369, signed by Thos. H. Ingram and 54 others; File No. 370, signed by Chas. Morris and 46 others, and File No. 371, signed by J. W. Paxman and 15 others.

Referred to committee on schedule, future amendments and miscellaneous.

Mr. RICKS. Mr. President, I move that all petitions on the woman's suffrage question hereafter

presented be presented to the clerk without being read to the Convention.

Mr, CHIDESTER. And in order to save time in this matter, I move that the rules be suspended and that all petitions of that nature be submitted to the clerk and placed on file.

Mr. CANNON. I would like to ask the purpose of the motion_if it is the intention that it go on record?

Mr. CHIDESTER. Not necessarily.

Mr. VAN HORNE. Mr. President, I hope that will not be done. We put in our bill of rights a declaration that the right of petition of the people should not be taken away from them. The right of petition means the right of presenting it to the body which has to consider it, and I think it will not be courteous to our constituents without at least reading the title of the petitions.

Mr. CHIDESTER. I did not mean any discourtesy, but it was simply to save time. There are a number of petitions coming in and it will encumber the records.

Mr. BOWDLE. Mr. President, if I understand the motion, it is simply the reading by the clerk of the petitions. They will go into the minutes just the same and in fact be treated and considered as such, is that it, Mr. Chidester?

Mr. CHIDESTER. Yes, sir.

Mr. BOWDLE. I am in favor of that motion.

The motion was agreed to.

Reports of standing committees.

Committees on public lands and education reported as follows:

Convention Hall,

Salt Lake, April 18, 1895.


Your committee on public lands and education and school lands, to whom was referred the article on “public lands,” have decided that each committee report on the respective duties assigned them.



Chairman committee on education an school lands.


Chairman committee on public lands.

Report adopted.

Committee on schedule, future amendments and miscellaneous reported as follows:

Committee Rooms,

April 19, 1895.


I submit herewith report of your committee on schedule, future amendments; also minority report on the question of “prohibition;” also return herewith the various files referred to us and recommend that they be filed.

RICKS, Chairman.

Constitutional Convention Hall.


Your committee on schedule, future amendments and miscellaneous have considered the proposition to submit a separate article to the vote of the people, prohibiting the manufacture and sale of intoxicating liquors as a beverage; and respectfully beg leave to report that in the opinion of your committee the question involves the destruction of so much property, injury to established business enterprise, and the disturbance of vested rights in property, that it is a question which ought not to be hastily dealt with as it must necessarily be if considered by this Convention. Moreover, we respectfully represent that the control of the manufacture and sale of intoxicating liquors by means of governmental prohibition is but an experiment, and if tried at all in the new State ought to be by legislative enactment, and not by constitutional provision; and we therefore recommend {1183 - PROHIBITION} that the subject be left to the Legislature.









Committee Room,

Joint County and City Building,

April 19, 1895.


The minority of your committee on schedule, future amendments and miscellaneous deem it their duty to recognize the many petitions presented praying that prohibition as a separate article be submitted to the voters of Utah for their acceptance or rejection. Therefore, we beg leave to submit the following article on prohibition, to be voted on as a separate measure.




Mr. JAMES. Mr. President, the committee on corporations other than municipal are ready to report. They have not submitted with their report any written statement for the reason that they have not had time.

The committee is anxious to get this report before the Convention that it may be printed and go into the committee of the whole.

Mr. EVANS (Weber). Mr. President, I move that the rules be suspended and that the minority report on the question of prohibition be rejected and the majority report be adopted.

Mr. THURMAN. No; let us reach it in the regular order.

Mr. IVINS. Mr. President, I am entirely opposed to this summary manner of disposing of this question or any other of similar importance that may come before this body. I want to ask why, under a suspension of the rules, we should proceed to deal with this question this morning when there are other matters upon the calendar waiting for our attention? It is not proper and right, and I hope that this question will be left until it comes up in its regular order and then let us make such disposition of it as we may choose.

Mr. VARIAN. Mr. President, I move to lay the motion on the table.

The motion of Mr. Varian was agreed to.

Mr. THURMAN. Mr. President, it has been suggested that the motion just made here carried the whole question to the table; if that was the purpose of it, this Convention did not understand it. I do not believe in a thing being carried by a misunderstanding.

Mr. VARIAN. It was not the purpose of it, but I suggest that it can be taken up at any time.

Mr. THURMAN. Well, it ought to be taken up right now. I do not think this Convention wanted to do that, that they wanted to deal with the petitions of a large portion of Utah in any such way.

Mr. VARIAN. Mr. President, I will say the object was to cut off the discussion, so that we could go on with the business.

Mr. THURMAN. I accept the suggestion. I move now that it be taken from the table.

The motion was agreed to.

Mr. EVANS (Weber). My only purpose in offering my motion was to dispose of this question as the gentlemen say in a somewhat summary manner. We have been here sometime. I believe that

the Convention is in a temper now to dispose of it without delay.

Mr. HART. A motion to suspend the rules is undebatable.

The motion of Mr. Evans was rejected.

Mr. FRANCIS. Mr. President, I move that the committee on accounts and expenses be instructed to inquire if it is necessary to longer employ the services of our committee clerks. Also if we need all the other officers at present employed, and report thereon as soon as possible.
The motion was agreed to.

Mr. BARNES. Mr. President, in behalf of that committee, I would ask that a copy of the resolutions be furnished the committee.

Mr. ADAMS. Mr. President, I would move that the article on public lands be reinstated on the calendar in its regular order; it was taken off you will remember some time ago and we would like to have it reinstated.

Mr. CANNON. Mr. President, this is out of order. Motions come later.

The PRESIDENT. This motion will come in a little later.

The Convention then proceeded to the consideration of the article entitled public debt.

Section 1 was read.

Mr. CANNON. Mr. President, I desire to offer the folio wing amendment, in line 6, after the word “indebtedness:” “and when existing indebtedness shall have been paid the debt authorized by this section shall never at any time thereafter exceed two hundred thousand dollars.”

Mr. VARIAN. I ask to offer a substitute for the section.

Mr. EVANS (Weber). Mr. President, I move an amendment to the amendment of Mr. Cannon, striking out the words, “two hundred thousand dollars,” and inserting “one hundred thousand dollars.”

The PRESIDENT. The motion is out of order.

Mr. Varian presented a substitute for the entire section as I understand it.

The substitute offered by Mr. Varian was read as follows:

The State may, to meet casual deficits or failures in revenue and for necessary expenditures for public purposes, including the erection of public buildings and for the payment of all territorial indebtedness, assumed by the State, contract debts, not exceeding in the aggregate at any one time the sum of three

hundred thousand dollars, over and above the amount of the territorial indebtedness assumed by the State, and when the said territorial indebtedness shall have been paid, the State shall never contract indebtedness for the purposes herein specified in excess of the sum of three hundred thousand dollars; and all moneys arising from loans herein authorized shall be applied to the purposes and none other for which they were obtained.

Mr. VARIAN. Now, Mr. President, my purpose in rewriting the entire section was to make perfectly clear what I conceived to be the intention of the Convention. While the amendment offered by the chairman of the committee this morning eliminates some of the obscurity that was embraced in that section, it seems to me it ought to be more specifically and clearly stated; that is to say the intention of this section, as I understand. it, was to authorize the contracting of an indebtedness to meet casual deficits or failures in revenue and also such other burdens growing out of the necessity for public institutions or buildings. I thought, and some differ and some agree with me, that “or for expenses,” in the second line, was not sufficiently explicit, that that might be interpreted to refer to the ordinary and current expenses of the State, and inasmuch as it is susceptible of this dual interpretation, it was deemed expedient to present the matter to the Convention more explicitly. The substitute offered provides for expenditures for public purposes, including the erection of public buildings, and it also includes the other proposition which is embraced in Mr. Cannon's motion, that when the territorial indebtedness, which is specifically mentioned as the indebtedness comprehended by this section, shall have been paid or any part shall have been paid, that the limit for these other purposes shall be fixed at three hundred thousand dollars. I do not know whether that would meet with the approbation of the members of the Convention or not, but it is the amount usually fixed in clauses of this kind and certainly would not be considered more than sufficient {1185} if it were necessary to erect public buildings. At the suggestion of gentlemen here I would ask leave to make that two hundred thousand dollars instead of three hundred thousand dollars.

Mr. HART. Mr. President, it seems to me that the amendment by the gentleman from Salt Lake, Mr. Cannon, hardly covers the ground that he wishes. It seems to me that the matter is left uncertain as to whether additional indebtedness could be contracted by the State in excess of the present indebtedness, or whether that would apply only after the present indebtedness was fully paid. It seems to me that it is not as clear as the proposition offered by the gentleman from Salt Lake, Mr. Varian, which clearly limits the indebtedness of the State to a certain amount. It seems to me that the amendment of the gentleman from Salt Lake places no limit upon the matter until after the present indebtedness is paid.

Mr. CANNON. Mr. President, I call the gentleman's attention to the fact that the section as passed in the committee of the whole would limit the indebtedness, including the existing Indebtedness, to nine hundred thousand dollars. The amendment offered by myself provides that after the existing indebtedness shall have been paid that thereafter the indebtedness provided for by this section shall never exceed at any time two hundred thousand dollars. I think it is clear on that point. I am opposed to the substitute offered for the reason that it takes up some matters dealt with in other sections that I think are covered better than they would be by this. I think that the amendment proposed, making it two hundred thousand dollars after existing indebtedness is paid_that the article would be better as passed in committee of the whole.

Mr. HART. Mr. President, I call the gentleman's attention to the words “after the debt has been paid.” What would be the rule before that debt has been paid?

Mr. EICHNOR. Nine hundred thousand dollars.

Mr. HART. Suppose some part of that should not be paid at any time?

Mr. VARIAN. Will the chairman of the committee point out what matter in other sections is embraced?

Mr. CANNON. In section 2 there is a provision that the money arising from the contracting of such debts shall be applied to the purpose for which it was raised and for no other purpose whatever.

Mr. VARIAN. I call attention to the fact that that is copied from the original article. That objection is certainly not good.

Mr. CANNON. Well, I did not want to confuse the two sections.

Mr. ROBERTS. Mr. President, I cannot say that I object to the substitute offered by the gentleman from Salt Lake, especially as to the principle of it, but I am of the opinion from my recollection of its reading that it would be simpler to amend this section as reported from the committee and cover the same points, and if I vote against it at all, it would be upon that ground, that I think that this section as we have it from the committee could be amended and make us a better section than this substitute. As for instance, I would so amend and intended to offer the amendment until barred out by the number that are already before the house, so that it would read, “the State may, to meet casual deficits or failures in revenue, or for expenses, not provided for, contract debts and such debts direct and contingent in the aggregate shall not at any time exceed one hundred thousand dollars, not including present indebtedness, and the moneys arising from the loans creating such debts,” etc., shall be applied to the purposes for which they were obtained. Then I would say that the committee on schedule, {1186} future amendments and miscellaneous will necessarily bring in a section in their report making provision for the State to assume the territorial indebtedness, and thus you would avoid in this section the provision that is made for the State taking the indebtedness of the Territory, and leave this section unburdened by reference to the territorial indebtedness at all, and would prefer an amendment of this kind to the substitute that is offered.

Mr. PRESTON. Mr. President, it says, “when the present indebtedness is paid.” I would like to have some information from the chairman of the committee as to when that may be. Can the chairman of the committee on public debt tell when that will be done?

Mr. CANNON. I am unable to foresee exactly when it will be paid. I can find out when it will mature.

Mr. SQUIRES. Are not the bonds fifteen year bonds?

Mr. CANNON. They are twenty year bonds and the time has partly elapsed, but the object of the amendment is that when the existing indebtedness shall have been paid that the debt authorized by this section shall never thereafter at any one time exceed two hundred thousand dollars.

Mr. ROBERTS. Does it not follow then that before that indebtedness could be settled that under your amendment the State could exceed this limit that we are trying to fix upon?

Mr. PRESTON. That is the point I was trying to make.

Mr. CANNON. I think not, Mr. Preston. It could not exceed the nine hundred thousand dollars. It limits it to less than two hundred thousand dollars in excess of the present indebtedness.

Mr. VARIAN. I would like to ask the chairman, supposing when this Constitution goes into effect the indebtedness of the Territory is nine hundred thousand dollars, as it is liable to be, what would be the effect then of this article as amended by you?

Mr. CANNON. I would understand it myself, that then we could not increase the indebtedness for the purpose named in this section until we had paid the indebtedness which exists, and that therefore they could contract indebtedness not at any time to exceed two hundred thousand dollars.

Mr. ROBERTS. Suppose that the State should pay off, we will say, five hundred thousand dollars of its debt, could it not then immediately go on under your amendment contracting several hundred thousand dollars indebtedness again?

Mr. CANNON. The State could go not to exceed the limit provided until the indebtedness was paid. I do not think they could renew that indebtedness, except in the way of taking it up.

The amendment offered by Mr. Cannon was rejected.

The substitute offered by Mr. Varian was adopted.

Mr. EVANS ( Weber). What is the limit now in the substitute?

Mr. VARIAN. Two hundred thousand dollars.

Mr. EVANS (Weber). Mr. President, I move now that that be amended by inserting the words “one hundred thousand dollars,” instead of two hundred thousand dollars.

The amendment was rejected.

Sections 2 and 3 were read.

Mr. EVANS ( Weber). I want to inquire of Mr. Cannon what these objects are in section 3_what is intended by that?

Mr. CANNON. I would state that the object of the committee as I understood it, was that in case of any public work of any kind being desired to be undertaken and the people desiring to perform that by incurring indebtedness, they should have the power to vote upon it.

Mr. EVANS (Weber). Now, I understand this section just as the chairman does exactly, and since Mr. Varian's substitute has been adopted that provides {1187} for public buildings, I therefore move that section 3 be stricken out. I submit that that substitute fully covers section 3. Section 3 is a useless thing and it ought to be stricken out.

Mr. SQUIRES. Mr. President, the only point that would make me hesitate about striking this other section out is that in this section as provided for is required to first be voted by the people, and in section 1 there no limit of that sort. It leaves the entire matter of indebtedness to the Legislature. Whatever they should provide will have to go up to the limit of the indebtedness of the State, without the people having a word to say about it. This section 3, it seems to me, ought to be amended in some way so that this extra indebtedness should be voted by the people, as provided in section 3, and not leave too much to the Legislature.

Mr. VARIAN. Mr. President, the object of creating a public debt as declared in section I, would be restricted and practically of little importance, if it were to be determined as suggested by Mr. Squires, by a popular vote. You will observe that the debt is limited to certain specified purposes. They are necessary purposes. First, to meet the deficits in the current revenues of the year; second, to supply the necessary public buildings for public purposes. Now, for what other purposes can the people of this State be called upon to create a public debt? Section 2 provides in the improbable contingency of invasion, insurrection, war, etc., for this matter. Section 1 provides for taking care of the State as she shall move along from year to year, if it shall be necessary to provide her with the necessary public buildings. Now, what other purpose can be served by providing for still an additional debt for some undefined object or purpose, provided the people shall vote upon it? Of course, if there is a purpose that is not disclosed, let us put it in here, because I fear that an article like that, unexplained, carrying so much obscurity and uncertainty as to the purposes of it upon its face, when the people come to look at it and vote upon this Constitution, it will have a tendency to alarm them. Of course, I may not have been astute enough to see it. If there is a specific and good purpose, let us put it right in there so that the people can see what is meant by it. I confess I do not understand it.

Mr. ROBERTS. I would ask Mr Varian if the indebtedness provided for in sections 1 and 2 would not be under the jurisdiction of the Legislature to contract those debts?

Mr. VARIAN. Yes, sir.

Mr. ROBERTS. And that it is not necessary to refer under these provisions to the people at all?

Mr. VARIAN. No, sir; I do not think it is ever held to be a good policy to refer debts of this kind, because before the people would pass upon it the emergency would have passed.

Mr. ROBERTS. Mr. President, I submit that in the event of undertaking a public building, it

would be a question that the Legislature in all probability would be elected upon, and it is sufficient limit to the Legislature if we say the purposes for which they will tax the people and for which they will not_not only limit them as to the purposes for which they shall use these taxes or this indebtedness, but also the amount of the indebtedness. I take it, sir, that it is a sufficient limitation upon the Legislature that there is nothing further left for which the State can reasonably go into debt than for the purposes specified in the substitute for section 1 and in section 2, and therefore there is no excuse on earth that I can see for leaving in section 3 in this article, and I shall vote to cast it out.

Mr. CANNON. Mr. President, the substitute offered for section 1 and which has been adopted by the Convention, meets the objection that was made at the time in the committee of the {1188} whole to striking out section 3, the objection which I then made to striking it out. The only question in my mind is whether or not two hundred thousand dollars would be ample for purposes that might be designed under section 3, and yet I would hesitate to make the amount larger than two hundred thousand dollars, because when not applied to those purposes, I think two hundred thousand dollars is more than enough. I would have preferred one hundred thousand dollars for the purpose first stated in section 1 or originally stated in section 1, and a provision as in section 3, but under the circumstances, so far as I am concerned, I believe I shall vote to strike out section 3.

The motion to strike out section 3 was agreed to.

Section 4 was read.

Mr. SNOW. Mr. President, I move to strike out the words in line ten, “those voting thereon,” and insert in lieu thereof the word, “such electors.” It will be noted that in section 5 the debt that is authorized aggregates fifteen per cent. besides extra indebtedness for sewerage, etc. The qualifications required in section 4 to vote on these propositions are those of a taxpayer. Now, according to section 4 a majority of those voting at this election could vote the tax so that a small minority might be at any time capable, in the absence of all the qualified voters voting, to vote this tax upon the great majority if this section only requires a majority of those voting at the election to vote these taxes. The amendment which I propose limits the assessing of this tax to a majority of the qualified electors. The object of this amendment is to provide that only a majority of the qualified electors_that is, taxpayers, shall be capable at any election to vote the assessments that are authorized in section 5 to prevent a bare minority. I would like to illustrate. Suppose there are one hundred electors in a school district and the proposition is to assess five per cent. According to this, if there were but fifty who went out to the polls to vote, twenty-six of them would carry the election, and seventy-four of them would be compelled to pay a tax that had been authorized by twenty-six electors. If my amendment carries, it will require fifty-one in such a case to carry the election or assess the tax. The proposition here is that there shall be in addition to being a qualified elector a taxpayer for the next preceding year.

Mr. EICHNOR. Mr. President, I am opposed to the amendment. It is the duty of every citizen to vote. If a man can make his vote_if a man by remaining away from the polls can make himself as effective as by going and voting against it_that is the result of the amendment; why, it is contrary

to the institutions of the United States. It is the duty of every citizen to vote and a majority of the votes cast should govern. Why, if that principle were adopted the men could stay at home and it would be just as good as if they were to go and vote; that is certainly wrong in principle.

Mr. BOYER. Mr. President, the very reason that Mr. Eichnor advances as his objection to the amendment of this section, I should offer in favor of the amendment. I certainly hold that for the purpose of all assessment of a tax upon any individual that there should be a majority in any voting district or precinct to determine that tax and that should consist of a majority of the voters of the district, because that in order to take money from one individual for the purpose of an improvement, in the event that he does not desire it, there should at least be a majority of voters requiring that. For instance, you might illustrate a little further on the proposition that Ain Snow introduces. Supposing that in an election district that there were one hundred voter, proper notice having been {1189} given, and only three voters in the precinct should turn out to cast their ballots for the assessment of a special tax of five per cent_

Mr. EICHNOR. Whose fault would that be?

Mr. BOYER. It would be the fault of no one particularly, only those who expressed a right to cast their vote by staying at home. The two parties out of three voting could assess a tax upon a hundred taxpayers for the purposes of a special improvement. Now, I hold that he that stays at home and does not vote for the assessment of a tax, expresses a determination not to be taxed. This section, as I take it, is for the sole purpose of the privilege of making a special assessment, and it is given to the parties that desire that assessment to express their views and not for a party that votes against it. The party staying at home expresses his views against this assessment. He evidently does do so, by not voting for the assessment. Now, in order to get a legitimate assessment, we must have a majority of the electors in favor of it.

Mr. ROBERTS. Mr. President, it occurs to me to ask why not go to the polls and register a protest against the indebtedness by voting?

Mr. BOYER. In answer to Mr. Roberts, I would say this, if I understood the question. The question is asked, why not go and express your vote at the election as against it? The question is one that requires an affirmative in order to assess the tax, consequently if the person stays at home he expresses by a negative that he does not wish the tax assessed against him. That is the reason, and I hold that it should be necessary for a majority of the electors of the district to say when the tax shall be assessed.

Mr. LAMBERT. Brother Boyer, do you think it right to reward a man for staying away from the polls?

Mr. BOYER. Sometimes I do, yes, sir; now Mr. Lambert, I may be away from the election district, as many times dozens of men are away from the election district_are off on other business and cannot possibly be at home to vote at school elections or when the special assessment may be made, and I hold that they have no right whatever when they are absent and away to express their wish; they cannot possibly get to the polls and they should have that right

from the fact that it requires the affirmative for the assessment of this tax and there should be a majority of the electors in the district required to make that assessment.

Mr. BOWDLE. Would not that same argument pertain to any election?

Mr. BOYER. No, sir; because this is a special election for a special purpose, for a special tax, which assesses every individual at the same rate, and if he chooses upon a general election to stay away and sacrifice his right, it his own business and nobody else's. It is not understood only just so far as the general taxes are concerned.

Mr. GOODWIN. May I ask the gentleman a question? Under the new dispensation could not a man's wife do that for him, if he were away?

Mr. BOYER. She could do just half of it; if he were fortunate enough to have two wives they might be able to do the business. [Laughter.]

Mr. ROBERTS. Mr. President, I shall oppose this amendment, just for one reason. It seems to be a contrivance by which an election may be carried by the people staying away from the polls, and therefore I shall vote against it. I believe in the kind of an election that can only be carried by the people going to the polls and voting.

Mr. BUTTON. Mr. President, I want to offer an amendment, and if this amendment carries, I will vote for the other. I move that every elector shall be fined five dollars if he don't go to the polls and vote.

The PRESIDENT. It is not germane to the subject
Mr. JOLLEY. Mr. President, I think that this is something that we should carefully consider. Now, it has come under my observation in the past where there have been less than two dozen voters that have imposed a heavy tax upon two hundred voters for school improvements, and it was simply because it was in a busy time of the year, and in a farming district, and the people were scattered and busily engaged, and the notices being posted up for ten days were unobserved by the busy workers of the people. And I think myself that they should get the assent of a majority of the people before they assess any tax.

Mr. THORESON. Mr. President, I am opposed to this amendment. We elect public officers for certain purposes, and they present these questions to their constituents_to the people of their district, or the city that they represent, and they ask the people to come up and vote for or against the proposition made, and I think that they should be backed up by their people. They want to ascertain the feelings and by a majority staying away then for different purposes they do not get this information, but by coming up and voting for or against, they tell their servants_these officers, what they expect of them, and they act accordingly.

Mr. CREER. Mr. President, for the same reason expressed by the gentleman who has just spoken from Cache, I am opposed to the amendment. It would have a tendency simply to stultify

progress of our school districts, because the people simply would stay away, and there is no other manner to present it. The trustees must do that almost yearly_that something is needed for the improvement of the school property of the district. According to this idea all they would have to do is to stay at home, and it is encouraging a principle that is absolutely wrong, in my opinion.

Mr. PARTRIDGE. Mr. President, I would not say anything, only I see a, disposition to oppose the amendment. The question was asked here by one gentleman, if the speaker who was speaking was in favor of punishing the person_I do not remenber now just how it was_but I will reply to that at any rate, by asking him if he would wish to punish a person for staying at home? Now, I understand this matter in this way, that if the trustees of a school district wish a tax. and they call upon the voters of that district to vote that tax, it should be a matter that concerns the voters of that district. It is not a matter that concerns the trustees alone, but it concerns every one that holds property in that district, and I do not think that a few men should have the privilege or the right to get up an election contrary to the wishes of the majority and force them to pay a tax. It is said here that by their staying away they should be forced to go to the polls. I do not think so. I think that they should have a say in it. If they did not want an election they should not be forced to do it_to go to the election, and if there is a majority go there and vote for it, and if there is only a minority that wants it, why let it fail, that is the way I look at it.

Mr. EVANS ( Weber). Mr. President, I am in favor of the amendment, because I am opposed to public indebtedness. Gentlemen misunderstand this section. It is not a question of the rate of taxation. It is a question as to whether the people can go in debt by this method. And being opposed to public indebtedness, I shall vote for the amendment.

Mr. ELDREDGE. I would like to ask the chairman of this committee one question. What tax is section 4 intended to apply to? Is it a general tax or does it look to cover anything that that may come up in the form of a special tax?

Mr. CANNON. I should understand {1191} that it would be the taxes which would be collected for the special purpose; that if it were for a school district, it would be the tax collected for school purposes; if a county, it would be the tax collected for a county purpose, etc.

Mr. ELDREDGE. Would we understand that that would apply to a tax levied under the statute or would it be a tax collected?

Mr. CANNON. I would understand it to apply to the circumstances connected with the various cases. For instance, take a school district, the school trustees would know before hand about the amount of tax that would come to them. This section is designed to prohibit them from incurring an indebtedness greater than they may expect a revenue to cover. That is my understanding of it, and anything that they might reasonably expect to collect they would have a right to appropriate or incur indebtedness for.

Mr. SQUIRES. Do you remember, Mr. Cannon, that the recent court decision in regard to the indebtedness of this county excluded the school tax from the amount?

Mr. CANNON. I do not understand the scope of the gentleman's question or what he wants.

Mr. SQUIRES. The purpose of the county court here was to ascertain what the limit of indebtedness should be in order to know how much of these outstanding warrants are illegal, and the court decided that they could not include in the taxes of the year, the school tax of the county, and that made these ninety-five thousand dollars of warrants which were issued illegal.

Mr. EVANS ( Weber). How would that affect this?

Mr. SQUIRES. Well, this is the same language as provided in that statute. I wanted to know what he understood by it.

Mr. CANNON. The purpose is, as I understand it from the committee, to limit the indebtedness that may be created by a county or by any municipal corporation to the amount of revenues that that particular subdivision would receive.

Mr. SQUIRES. Including school tax?

Mr. CANNON. Including school tax.

Mr. HAMMOND. Mr. President, I am in favor of this amendment, but I am like an old broken winded horse with the heaves. I cannot tell all that I think about it, but it affects San Juan and that is enough for me to get on the floor. Our school districts there are small. That is, they cover a good deal of ground, with the centers of population small, while our taxable property, which is cattle and sheep, are roaming over the wilds there and the cattlemen's headquarters and outfits are from forty to fifty miles away. Now, our school districts and voters get together_a, half a dozen of them, as they have done, and get up a craze_boom_want a school house, and go on to this higher education, and it has affected very largely the main property taxpayers in that county, because there is no paper published there. The Tribune scarcely ever gets down there and for that reason those cattlemen do not get posted in regard to these little notices stuck up on the blacksmith shop or the co-operative store or the meeting house, and they are in oblivion in regard to it until the tax is assessed upon them.

Mr. BOYER. Mr. President, I want to say one word further if I may be permitted. Now, the principle of this law that we are enacting here is based upon the position that a majority must make the law. The very Convention that is gathered together here that will frame this organic act under which this assessment may be made will require fifty four of the delegates here to pass upon this article to give it place in the Constitution. Now, suppose a number of those men go out and we can only get fifty-three, that part of the organic act would certainly fail. It requires a majority to give us this organic act {1192} under which the special assessment may be made. If they were outside, they could hustle out and collect them in.

Mr. CHIDESTER. Mr. President, I am opposed to the amendment for the reason that it would give those who desire to levy a tax or those who stayed away or were absent from any cause_might perhaps thwart the design of those who wished to levy a tax. Now, some might

remove from the district, yet they might have been voters; their names may be on the list and all of that, and it seems to me that it would give a reward to those who were careless and indifferent and stayed away from the polls. It would thwart the real design and wishes of those who would want to levy the taxes.

Mr. IVINS. Mr. President, there seems to be such a decided opposition to this amendment I must say a word. Mr. Hammond has represented a condition that exists in nearly all of the outlying counties of this Territory, and I am certain that unless this amendment is approved that injustice may be done in those outlying counties. I know the ambitions of men to build school houses and make other improvements, and in many instances men who have control of these affairs are not the representative men of the district.

Mr. HAMMOND. They pay no taxes some of them.

Mr. IVINS. They pay no taxes some of them. It is just as Mr. Jolley says, advantage will be taken of those away from home, due notice will not be given, and a small minority would, in many instances, impose very heavy burdens upon the majority. I say whenever the time comes that a majority of the people desire that money shall be expended for special purposes, they will go to the polls and say so.

Mr. CHIDESTER. Is it not a fact that the trustees would have to publish a notice to the taxpayers of this meeting?

Mr. IViNS. They might be required to publish a notice. It is also a fact that the paper in which they published a notice might not find its way into one-tenth of the houses of the people of that district.

Mr. CHIDESTER. Is not it a fact that they would have to publish the notice in the different places in the precinct post notices also?

Mr. IVINS. Yes; it is also a fact that notices may be posted up in a district where people never see them, and I have known it to be done. It has come under my own observation.

Mr. CREER. Mr. President, I would like to ask Mr. Ivins a question. This does not cover the school district? It also covers towns and counties. Therefore, if they want to make any improvement_get an expression of the people, there is no way of reaching that_simply by absenting themselves they can defeat the whole thing. Now, in all legislative bodies we have a compulsory process to compel a majority. Does this apply also to the citizens of the towns and villages, and other subdivisions, besides school districts?

Mr. IVINS. I suppose it would. I am in favor of it applying to them.

Mr. CANNON. President, the objection I have to the amendment is this, every man who might be detained from the polls, even though he might vote for the proposition, would be counted against it. I think it would be unfair. I think in addition to that, there might possibly be as many

men away from home who might want to vote for a tax as were away from home who would oppose the tax, and it would be unfair in that case to count the absentees all against the proposition. The lists had not been revised, every man who might have died or might have removed from the district, would be in the same way counted against the proposition. I am certainly in favor of defeating the amendment.

Mr. BOWDLE. Mr. President, this is a very absurd proposition, to say the {1193} least of it. Suppose that you have a registration list of a hundred voters, it would require fifty-one of those to vote a tax. You commence in the morning, the registration list has a hundred voters. Suppose that one of those voters should die during the day, how are you going to determine whether you have got an election or not? How would you arrive at a conclusion in that manner? I think that the face of the thing would be absurd.

Mr. RICKS. Mr. President, I have a proposition that I wish to mention before this goes to a vote. I believe that the section ought to be so amended as to make it necessary for at least a majority of the residents of any district, county or city to vote on a proposition of this kind, providing that a majority of those ought to decide a tax. And I believe if you strike out in line 7 the words “and voted or by a majority,” it would cover exactly the objections made so that it would read, commencing in line 6, “unless the proposition to create such debt shall have been submitted to and voted on by a majority of the qualified electors thereof.” It would render it necessary for a majority of the electors to vote on a question. And then if a majority of them voted in favor of the indebtedness, it would be created, but as it is, without the amendment of Mr. Snow, if there are a thousand electors in any district and twenty of them go and vote, eleven of them can vote the indebtedness or the tax, and I am not in favor of leaving it in that way, neither am I exactly in favor of the amendment of Mr. Snow, but I believe that the amendment that I propose, if adopted, will leave the question to the majority.

Mr. ALLEN. Mr. President, the gentlemen from San Juan and Washington, speaking about these cattlemen_I know of men that have large herds and they do not care whether their children have education or not. They are the men that are able to pay taxes and the tax is voted on. They do not grumble at it, yet they would not go the polls either for or against, and if they were compelled to go to the polls some of them would vote for it, but they are indifferent and pay no attention to it. Therefore, I think the amendment ought not to carry.

The amendment of Mr. Snow was rejected.

Mr. RICKS. Now, Mr. President, allow me to submit my amendment.

The amendment of Mr. Ricks was rejected.

Section 5 was read.

Mr. EVANS ( Weber). Mr. President, I now move to strike out the word and figure five, in line 6, and insert in lieu thereof the word and figure two. I must submit a remark or two on this. This to me is more vital than anything else. I want to show you, gentlemen of the Convention, just in

figures, for a moment, where this section is leading us. We started out yesterday and the motion was voted down, but I do not believe that this Convention apprehends the real danger of this section. I am going to take for illustration Salt Lake City and Ogden City, with respect to their assessed property valuation. I will first take Salt Lake City. It has an assessed valuation in round numbers of forty million dollars. We can levy under this section twenty per cent. of the taxable valuation of that property. That would permit an indebtedness for city, county, and school within the State, of eight millions of dollars, or in other words it would permit an indebtedness for these purposes of one hundred and sixty dollars per capita. I believe the amount of money equally distributed throughout the United States would only amount to from twenty-seven to thirty dollars per capita. Now, we take Ogden City, as I understand it from a statement made to me this morning by the mayor, our assessed valuation is about twelve millions of dollars. If we can levy for the purpose {1194} of indebtedness twenty per cent. under these sections, we can incur an indebtedness of two millions, four hundred thousand dollars for these various purposes. That would amount exactly to one hundred and sixty dollars per capita. It seems to me that these figures are perfectly appalling when examined. It would seem to me that upon this question of public indebtedness we are simply running mad. We have gone already to a considerable length in respect to these matters, but here is an article which will permit us to go far beyond what we have already been entitled to go. Judge Dillon, the authority upon municipal corporations, gave an opinion with respect to the very situation which exists here in Utah. He holds that school indebtedness and the city indebtedness are separate and distinct; that they are two political subdivisions for that purpose, so that this section will be construed as to indebtedness as meaning that the city may go in debt five per centum for general purposes, five per centum for water, lights, and sewers, which is ten, the school district five per cent. and the county five per cent., that makes twenty per cent. As I have amended this section, the total indebtedness would be seven per cent., one for general city purposes, that would not include of course the present indebtedness, because that is already provided for in section 7, so that this would be a legalized debt and would be required to be paid. One per cent. for general city purposes after the adoption of the Constitution, and one per cent. for county purposes. That is certainly ample; one per cent. after the indebtedness which we have already assumed; that is certainly ample; and two per cent for water works or lights or sewers. Salt Lake City has a valuation of forty millions of dollars; two per cent. would allow eight hundred thousand dollars for these purposes; it would allow Ogden for the purpose of establishing water works two hundred and forty thousand dollars. It seems to me that is amply sufficient, but not only that, a portion of the general taxes collected for the city could be appropriated for those purposes. Now, gentlemen, are we willing to say in the light of the past experience that we will permit these political subdivisions to go in debt more than seven per cent? Is not that liberal? It is beyond what I think it ought to be, but it seems to me that we certainly ought to agree upon these figures. Talk about twenty per cent. of indebtedness for these political subdivisions. Why, gentlemen, it is one-fifth of the entire wealth of the State, including its real and personal property. Would any individual desire to go in debt for one-fifth of his worth? Indeed, it would exceed one-fifth, because we already permit about one per cent. territorial purposes. I, therefore, am in favor of this amendment.

Mr. CREER. Mr. President, if this proposition of the gentleman was adopted it would work a great hardship to other cities that have not already gone in debt. Now, for instance, we will take the city from which I come, Spanish Fork. I think we have an assessed valuation of from nine

hundred thousand to a million dollars; we have no way now of protecting the property there_that is from accidents by fire. This motion would simply give us the power to assess for water works about two thousand dollars; therefore we would be perpetually or forever prohibited from establishing water works. Of course these other cities have already the benefit of these water works and the benefit of electric lights and such things as those, and we want some opportunity; we cannot get it by the annual taxes, because we are limited in that.

Mr. EVANS (Weber). You would be allowed to go into debt thirty thousand dollars.

Mr. CREER. No, sir.
Mr. EVANS (Weber). One per cent. and two per cent. for water works_

Mr. CREER. Well, three thousand dollars-_

Mr. EVANS (Weber). It would allow you thirty thousand dollars if you have a million.

Mr. CREER. That even would not be sufficient to establish water works for our city, but I take it that it would not allow that much, because we have got to take besides water works, electric lights and other improvements as well; we would be limited to this tax. I say that this would be unjust and unfair to other cities who had not already got these advantages that Ogden and Salt Lake and Provo and the other large cities of the Territory have to-day, and we should not be prevented from voting those improvements. They are actually necessary, and I am opposed to this. Therefore, I move an amendment, that we make it not to exceed three per cent._strike out the word and figure five, in line 5, and make it three, and in line 19 also. I think the statute provides now four, and I am willing to decrease it one per cent.

Mr. PETERS. Is it too late to offer an amendment which would practically be an amendment to the amendment?

Mr. CREER. This is an amendment to the amendment.

Mr. CANNON. Mr. President, I am opposed to both of these amendments. This was very thoroughly discussed in the committee of the whole, and the committee decided to leave the article as it is. As it was there pointed out, this is left to the people, and unless the people vote upon it, those who have paid a property tax the year before unless they vote to have indebtedness, it cannot take place at all. I have been looking over the report of the governor to the secretary of the interior while the gentleman from Weber was speaking, and I find quite a number of the cities far exceed the amount we have named already. I have selected four of these, Brigham City exceeds the amount of $19,866. I am informed by the gentleman from Brigham City, one of the representatives of their county, that they have there a most excellent system of water works, and that is a great benefit to the city_more than the amount of indebtedness they have incurred. In Corinne also, they have $4,663 more than the amount; in Logan they have $25,998 more than we propose. In Manti they have $7,311, and so you could go on through the different cities of the Territory. Those that have been the most progressive and that have benefits to show for that

which they have increased their indebtedness for, and I think we can safely leave it to the people, just as it is in the article. I am opposed to the amendment.

Mr. PARTRIDGE. Mr. President, I favor Mr. Evans' amendment. If we cannot get that, I would favor two per cent. If we could not get that, I would take the next best. It was said by the gentleman who was last up that this tax cannot be levied without the people vote for it. We have just decided that question, that a minority can vote the tax. If it had been carried that a majority was necessary, it would not have been so bad, but under the existing condition of our action, I am opposed to putting such a high limit and allowing a minority to vote an excessive tax on the people; therefore I shall vote in favor of Mr. Evans' motion, and if that does not prevail, I will favor the next best.

Mr. ELDREDGE. Mr. President, I shall favor the amendment offered by the gentleman from Utah County, for the reason that I think it is unsafe to grant power to create an indebtedness to the amount that this section does as presented by the committee. I think that if we will look at the history of the people of Salt Lake City and of Ogden, the last few years, we will conclude {1196} that had there been an opportunity to have created an indebtedness to the extent that it is here provided, that there has been a period that that indebtedness would have been created, and it is reasonable to presume that history will repeat itself, and that sometime in the future if this provision prevails, there may be a condition of things which will lead the people up to do just what they would have done had they had the opportunity in the past. Now, we find that Salt Lake City has reached its limit, as was provided by law, and to-day there hangs over the city an indebtedness of $3,573,000, and under this provision they could have extended that indebtedness to eight millions of dollars. Therefore, I am opposed to giving such unlimited powers in the interests of creating indebtedness.

Mr. VARIAN. Mr. President, I came here this morning prepared to reduce that percentage, but I am confronted in my own mind at least with an objection that might be obviated perhaps by a reconsideration of the section, which provides that this limit shall include existing indebtedness. Now, take the city school district here; I believe there is an indebtedness of some eight hundred thousand dollars; that would be the existing indebtedness; if we reduce this to one per centum, which would be some four hundred thousand dollars_it would provide for only half of the indebtedness already existing and during the life of these bonds and until they were all paid, the school district here in this city would be crippled and prevented from expending or improving in any way. I think about two and a half or three per centum would obviate that objection or a special exception as to the municipalities and cities of a certain class, but if this amendment shall prevail of Mr. Evans' the conditions will be just as I stated.

Mr. THORESON. I would like to ask the gentleman if section 8 of this same article does not cover that case?

Mr. VARIAN. No; lines 5 and 6 of this section, “shall not for any purpose become indebted for an amount including existing indebtedness,” etc. Tow, if you put in one per centum that fixes this city school district for a good many years.

Mr. EVANS (Weber). He called your attention to section 8.

Mr. VARIAN. There seems to be a conflict, although I am not quite certain as to the meaning of section 8. Section 5 is quite specific. It says that they shall not, for any purpose, become indebted to an amount including existing indebtedness. Now, section 8 provides: (Reads.) I think it is still within the limitation of this maximum percentage. It is simply a declaratory clause at the close of the article, that nothing shall be intended by this article to impair the going into debt upon submitting to a vote of the electors, etc., within the limitations of section 5. I submit that three per cent. would be a better provision there, or that a special exception be made for certain cases which would involve the reformation of the entire article.

Mr. FARR. Mr. President, I have listened to the conflicting views of the members here, and I have pretty carefully looked this section over, and I, for one, would prefer to leave this section to the future Legislature than to pass this question as it is, and especially according to the various ideas and notions of the members present; consequently I shall make a motion to strike out section 5.

The PRESIDENT. The motion is not in order now.

Mr. THORESON. Mr. President, I want to state in behalf of the committee that the committee was of opinion that section 8 covered the present indebtedness under the territorial law, and that section 5 has no reference whatever {1197} to the present territorial indebtedness, but that the existing indebtedness here referred to would be under the State Constitution, and I believe that the judgment and the views of the committee on this_it is set forth in section 8_seems to be very plain. Under the territorial law no debt can be created without a vote of the people; that is, bonds could not be issued. Hence, this is to cover up existing indebtedness of the cities referred to particularly. There may be an exception or two outside of Salt Lake City and Ogden City. But it was particularly inserted for the benefit of these two cities to cover the present indebtedness.

Mr. RICHARDS. Is it not a fact if the construction that you place upon these sections be correct, that if when the State is admitted an indebtedness shall exist at that time up to this limit, it cannot be increased_no further indebtedness can then be incurred?

Mr. THORESON. Indebtedness created after the admission could not be increased above the limit fixed by section 5.

Mr. RICHARDS. But if an indebtedness existed at the time of the admission of the State up to the limit, then would it not be impossible for the State or town or district to create any greater indebtedness after that?

Mr. THORESON. They would have a right to go and create a limit fixed in section 5, over and above the limit of the territorial law.

Mr. RICHARDS. I do not think it possible to place that construction upon this language.

Mr. CANNON. Mr. President, I believe I have the same view expressed by Mr. Richards. I think that section 5 limits the indebtedness including existing indebtedness to a certain per cent. It expressly states that.

Mr. RICHARDS. That is to say, that if at the time of the admission of the State, the indebtedness of the State is up to this amount no further indebtedness could be created?

Mr. CANNON. Yes, sir. That is my understanding. I call attention for instance to Salt Lake City, which has a six per cent. indebtedness at the present time. Salt bake City, under this provision, could not increase her indebtedness at all, except for purpose of procuring water privileges or electric lighting, etc.

Mr. VARIAN. How about the schools? Mr. CANNON. The school districts the same way

The amendment of Mr. Creer was rejected.

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

Mr. PETERS. Mr. President, I desire now to offer my amendment.

Mr. EVANS (Weber). Mr. President, I now move to strike out section 5.

Mr. Peters' amendment was read as follows: Strike out lines 1, 2, 3, 4, 5 and 6 of section 5, and substitute the following:

Even when authorized to create indebtedness as provided in section 4 of this article, no county shall for any purpose become indebted to an amount, including existing indebtedness, in the aggregate exceeding two per centum, and no city, town, school district, or other municipal corporation shall for any purpose become indebted to an amount including existing indebtedness in the aggregate exceeding four per centum.

Mr. PETERS. Mr. President, the object in making this motion is for the purpose of reducing the debt limit of counties. As the article now stands the debt limit of the State is about one per centum of the assessed valuation. That is, including present indebtedness. The next largest subdivision of the State is the county, and includes all of the municipalities. Under this section 5 a county may incur an indebtedness up to five per centum of the assessed valuation, which in my mind is excessive. Two per centum will cover all that will ever he necessary. That is to {1198} provide a sufficient amount to raise funds for all necessary expenses of that county. As the statutes now stand no county is authorized to bond to an amount exceeding one per cent. of its assessed valuation, notwithstanding that the United States statute provides that the debt limit shall be four per centum. Now, as to cities, we come nearer to the people, and it seems to me that they ought to have the right to borrow more than a county for the reason that money that they secure is usually for an immediate purpose and benefit of the city, for the purpose of putting in water works and so on. At the present time each incorporated city is authorized to borrow an amount not exceeding four per centum of its assessed valuation. Many have taken advantage of that provision and have already placed in excellent water systems. We have in our own city a

system that has cost us about twenty-eight thousand dollars. Now, when you come to say that a city can put in a water system for three per centum of its assessed valuation, that will render any service to that city, it is a mistaken idea_that is for a small city. It would do very well probably for a large city, because the assessed valuation is so much larger in that city. The lower rate of per cent. would bring a larger sum of money; but when you take a city of twenty-five hundred inhabitants or three thousand and attempt to say that they can put in a water system for three per centum of the valuation, the wealth of those cities will have to far exceed to-day what they are in the Territory of Utah. The assessed valuation of our city is about seven hundred thousand dollars and four per cent. of course will be twenty-eight thousand dollars, and the water system to render it of sufficient service in our city really ought to cost about thirty-five thousand dollars. We are now unable to even furnish the people with water that they would desire and by that means we cut off the revenue. If we could extend our system so that it would bring in more families and more users we would be better able to pay the interest and create a fund to meet the original indebtedness. Now, I would be willing to have the counties one per cent.; in fact I would not care if they would not be authorized to borrow at all, but two per cent. it strikes me is sufficient, and four per cent., as the section now reads, is high, and the object of my amendment is to make a distinction between counties and cities. I will say that I had a further amendment to the last part of the section, to strike out the word five and insert the word three, in line 15.
The question being taken on the amendment of Mr. Peters, the Convention divided, and by a vote of 50 ayes to 3 noes, the amendment was agreed to.

Mr. EVANS (Utah). Mr. President, I move to amend section 5 in line 19, by striking out the word five and figure 5, and inserting the word three and figure 3, in lieu thereof.

The PRESIDENT. That has been voted down.

Mr. EVANS (Utah). If the chair please, I would like to be heard on that, It is not the same thing. That that was voted down was to strike out five and insert two.

The PRESIDENT. No, sir; it was three. It was Mr. Creer's motion to insert three in place of five.

Mr. EVANS (Utah). Then, I will make it four.

The question being taken on the amendment of Mr. Evans of Utah, the Convention divided and by a vote of fifty ayes (noes not counted) the amendment was agreed to.

The PRESIDENT. The question now before the house is on the striking out of the entire section.

The motion was rejected.

Mr. PRESTON. Mr. President, I move to strike out, commencing in line 16, all the balance of the section. Cities {1199} can provide all those things without that proviso in there. Cities and towns where they need this kind of improvements can provide for them without that part of the section.

The motion was rejected.

Sections 6 and 7 were read.

Mr. BOYER. Mr. President, I move to amend section 4 in line 10, between the words “a” and “majority” insert the words, “two-thirds.”

The motion was rejected.

Mr. THURMAN. Mr. President, I desire to offer a substitute for section 1:

The indebtedness of the State at any one time shall never exceed the sum of two hundred thousand dollars. This section shall not be construed to prevent the State assuming the present indebtedness of the Territory and paying the same as may be provided in this Constitution.

I suppose the article on schedule will provide for that.

Mr. VARIAN. Mr. President, of course that is not in order, but the matter is so important I will waive that question.

Mr. THURMAN. Mr. President, I desire to call attention to the objection. I am satisfied that the mover of that substitute and the Convention had in mind the object that I seek to attain now. Of course that section that I offer contemplates that the article on schedule must provide the payment of the territorial debt.

Mr. VARIAN. Congress provides that too.

Mr. THURMAN. Yes, Congress provides that we must do that. The objection that I have to this may be considered hypercritical, but at the same time I am satisfied that we want to place this matter beyond question. I will call the attention of the Convention to the point I make. “The State may, to meet casual deficits or failures in revenue and for necessary expenditures for public purposes, including the erection of public buildings, and for payment of the territorial indebtedness, assumed by the State, contract debts, not exceeding in the aggregate, at any one time, the sum of two hundred thousand dollars over and above the amount of the territorial indebtedness assumed by the State.” The point I make is this, that it points out specific objects for which the State shall not execed a certain limit of indebtedness, leaving the State to go in debt without limit for any other purpose, should it feel inclined so to do. Then the balance of it rather emphasizes that fact, I think, “and when the said territorial indebtedness shall have been paid, the State shall never contract indebtedness for the purposes herein mentioned, in excess of the sum of two hundred thousand dollars.” Leaving it again, limiting the State only as to the purposes specified, and not for purposes which may not fall within the enumeration. Now, the substitute I offer is not as perfect as I would like it, but it seems to me to meet what I believe the mover of this substitute designed.

Mr. ROBERTS. I desire to ask the gentleman from Utah if it would not be better to provide there for the indebtedness of the State existing at the time_the indebtedness that might be assumed at the time it was assumed? It says, “at the present time.”

Mr. THURMAN. Yes, that is what I intended.

Mr. VARIAN. Mr. President, I do not think that the section, in the light of section 2 taken in connection with it, is susceptible of the construction that there is no limit as to other purposes. I take it that a familiar rule of construction would warrant the putting of this meaning upon this article and this alone, where they undertake to point out and specify the power of the Legislature or the people with reference to certain matters, all else not specified or embraced by implication within the grant would be excluded. This is made clear particularly here, by reference to the second section which provides in {1200} addition to the above limited power to contract debts, “the State may,” etc. So you take the two sections together, I do not think there is any question about that. I think it is perfectly clear. So far as the other objection is concerned, I, for one, intended just what I put in here, to limit to certain purposes. I thought the Convention desired that. I certainly wanted into vote to limit its power of contracting indebtedness for the State to certain defined purposes, and not leave it open, and I thought this included all the purposes we would be willing to go in debt for.

Mr. THURMAN. Reading the latter part of it again, “and when the said territorial indebtedness shall have been paid, the State shall never contract indebtedness.” Now I will ask the gentleman if he objects to the following four or five words being struck out, “the State shall never contract indebtedness for purposes herein specified,” strike out “for purposes herein specified.” If that is accepted, I would withdraw my substitute.

Mr. VARIAN. I do not wish to be tenacious, but I really do not put the construction on it that you do, Mr. Thurman.

Mr. ROBERTS. Mr. President, before that question is put_in addition to the defects as I look upon it already stated by the gentleman from Utah County, I think there is another objection to this substitute as it stands, and that is in the latter part of the substitute or the section as it has been adopted, “and when the said territorial indebtedness shall have been paid, the State shall never contract indebtedness for the purposes herein specified in excess of the sum of three hundred thousand dollars.” Now, from the rather hurried consideration that one has been able to give this section in the midst of the confusion of the house and trying to keep track of other questions, it seems to me that as it stands here your indebtedness of the State may play between the limit of nine hundred thousand dollars. That is, we will suppose that the territorial indebtedness is paid all but two hundred thousand dollars, or one hundred thousand dollars; so long as it is not entirely paid off it may be increased again. and run up well nigh to the nine hundred thousand dollar line, and I think I am not mistaken in regard to the effect of that under the present reading of this section. So that the State indebtedness, so long as you refuse to pay off the territorial indebtedness, may constantly play between a hundred thousand dollars and nine hundred thousand dollars.

And then again, I, for one, am convinced that by making the enumeration here of specific purposes for which the State may go in debt, placing the limit for these specified purposes to two hundred thousand dollars, that for purposes that are not specified the State may go into debt. Now, I have prepared a substitute on these lines as follows, following very much the language

that is found in the section as reported to the Convention by the committee; making it a part of my argument now, and not offering it as a substitute, it would be as follows: “The State may, to meet casual deficits or failures in revenue or for expenses not provided for, contract debts, but such debts, direct and contingent, in the aggregate shall not at any time exceed two hundred thousand dollars, not including the present indebtedness of the Territory of Utah, which is hereby assumed by the State of Utah. The moneys arising from the loans creating such debts shall be applied to the purposes for which they were obtained to repay debts so contracted and to no other purpose whatsoever. And except for the purposes named in this section and in section 2 of this article, no indebtedness shall be incurred by the State.” Now, it seems to me that if a provision of that kind were adopted, it would clear away all {1201 - REPORTS} possible difficulty that might arise in construing this section, but as the section is now, I cannot vote for it, nor can I vote for the article if that section is retained in the article.

Mr. VARIAN. Mr. President, I think we can arrive at the idea. Mr. Thurman suggests that we strike out the words, “for the purposes herein specified,” and insert “except as in the next section provided.” I have no objection to that if that will satisfy the gentlemen on the other side.

Mr. THURMAN. I will accept that and withdraw my substitute.

The amendment was agreed to.

Mr. PETERS. Mr. President, in order to make the language a little more uniform, I would ask that the word “even” be stricken out in that amendment of mine.

The amendment was agreed to.

The roll being called on the adoption of the article the result was as follows:


Evans, Utah
Larsen, L.
Larsen, C. P.
Lowe, Wm.
Lowe, Peter
Low, Cache
Murdock, Beaver
Murdock, Wasatch
Murdock, Summit
Peterson, Sanpete
Robinson, Kane
Robison, Wayne
Van Horne
Vail an

Evans, Weber.

Kimball, Salt Lake
Kimball, Weber
Peterson, Grand


The president declared the article adopted, and referred to the committee on compilation and arrangement.

Mr. LUND. Mr. President, under the resolution that was passed this morning, the committee on expenses would report as follows:

Convention Hall,

April 19, 1895.

Mr. President and Gentlemen of the Convention:

We, your committee on accounts and expenses. complying with the resolution introduced this morning by Mr. Francis, beg leave to report as follows:

We have consulted a number of the chairmen of different committees, also a number of other delegates, and have reached the following conclusion: It may appear at times that the officers are not fully employed, but we submit that the implied (if not the expressed) intention of the Convention in employing {1202 - WATER RIGHTS} its officers was that they were employed for the entire session.

The committee on compilation and revision has yet a great deal of work for the committee clerks, hence their service cannot be dispensed with. Assuming our understanding of the employment of the officers expressed in the foregoing to be correct, we believe it beneath the dignity of this honorable body at this late stage of the proceedings to discharge any of its employesbefore final adjournment. We therefore recommend the retention of all employed, and also recommend their payment in full from the government appropriation.

Very respectfully,

A. C. LUND, Chairman.



The report was adopted.

The Convention then, on motion, took a recess until 2 o'clock p. m.


Mr. ADAMS. Mr. President, I now move that the article on the calendar on public lands be replaced on the calendar in its regular order.

The motion was agreed to.

Mr. EVANS (Utah). Mr. President, I move you that the action of this Convention just preceding its adjournment, in regard to the adoption of the report of the committee on expenses and accounts, be reconsidered.

The PRESIDENT. The chairman of the committee is not here.

Mr. EVANS (Utah). I only ask to give notice now that I expect to call that up.

Mr. EICHNOR. Mr. President, I now move that the Convention resolve itself into committee of the whole for the consideration of the article on water rights, irrigation and agriculture.

The motion was agreed to.

The Convention then resolved itself into committee of the whole with Mr. Cannon in the chair, and proceeded to the consideration of the article entitled water rights.


Section 1 was read.

Mr. MALONEY. Mr. President, I move to strike out the entire article, sections 1, 2, 3 and 4.

Mr. EVANS (Utah). Mr. Chairman, I would like to ask whether there is a minority report accompanying the majority report.

The CHAIRMAN. There is a minority report.

Mr. EVANS (Utah). If so, I would ask that it be read before the motion is taken upon striking out this entire article.

The minority report was then read.

Mr. CHIDESTER. Mr. Chairman, I desire to offer a substitute now for the entire article.

Mr. SNOW. Mr. Chairman, I move you that the minority report be accepted and the majority report rejected.

The CHAIRMAN. Before that motion can be entertained, a substitute has been offered by the gentleman from Garfield County, which will now be read by the secretary.
Mr. Chidester's proposed substitute was read as follows:

The Legislature shall provide by law for the regulation, distribution, and controlling of the waters of this State, and may provide by law such rules and regulations under which rights may be acquired to any of the waters of this State for any useful purpose, and shall also provide for the protection of all water rights acquired or to be acquired for any useful purpose.

Mr. PETERS. Mr. Chairman, I arise to a point of order. I notice the substitute that has just been offered by the gentleman is nothing more nor less than the minority report_section 2 of the minority report. I think that Mr. Snow's motion ought to precede it.

Mr. CHIDESTER. I beg to differ with the gentleman. It is a part of the minority report.

The CHAIRMAN. The chair would rule that the substitute is in order.

Mr. CHIDESTER. Mr. Chairman, I wish to say in regard to this article that I have considered it a dangerous article. It is in my {1203} opinion a failure in that it proposes to take from the government of the United States water rights and transfer it to the State. In my opinion that cannot be done. All that could be done is what the Enabling Act has given them. That being the case, we have no need of such an article as this. In the second place, I believe that the right of eminent domain so far as it is calculated to condemn water rights for public purposes is also evaded. I believe that the present law that we have in regard to water rights is as good as any that exists in the United States. While, of course, it has not been confirmed by the courts_if it had been, it would be a good law to-day_it has saved many a lawsuit. The system that is inaugurated in our present law has saved a great deal of litigation, and the substitute that I offer puts us in the position to leave this matter to future legislation. It provides that the Legislature may handle this, and in so doing may adopt a law similar to the one that we have now, which in my opinion is all that we need, but to take this provision as it stands here, in my opinion, would be to work a hardship upon the people. And then again, the engineer and board of control, in my opinion, is an expensive luxury in which we do not, or should not wish to indulge. It would be impossible for us to repeal it unless it was done by constitutional amendment. If this was left to the Legislature and they tried the scheme and it was pronounced a failure, they could do away with it. Therefore, I think it is unsafe to couch that within the Constitution, but leave that to future legislation, and I think that they will govern this matter and enact laws that will be calculated to further the ends of justice in this regard.

Mr. SNOW. From what you have said, I understand that your substitute is substantially section 2 of the minority report.


Mr. SNOW. Section 1_You are not opposed to that?

Mr. CHIDESTER. I am not opposed to that, but it simply puts us in this position, that we are asserting something in the Constitution that we could not interfere with anyway. We cannot interfere with those existing rights; it would be unconstitutional. We cannot take away any existing rights.

Mr. SNOW. But you state a recognition here and confirm it. I ask the gentleman to consider that and see if he cannot accept it.

The minority report was re-read.

Mr. CHIDESTER. I can accept that all right; I was misled. This was laid on my table and I supposed this was the one. I would withdraw my substitute for the purpose of admitting the minority report.

Mr. SNOW. Mr. Chairman, I wish to make the motion that I tried to make several times, that the minority report be accepted.

Mr. L. LARSEN. Mr. Chairman and gentlemen, I wish to make a few explanations. As Mr. Snow has said, the minority does not include the first part of this article that has been distributed around. It is an article for both the majority and the minority reports. The minority report has not got the first three lines in this article. I hope that the motion that the minority report be accepted will prevail. My first idea on the subject of water rights was this, not to include this part_the majority report. I was opposed to that, where it cedes to the State the water_the property, but finding a number of gentlemen in the Convention that were in favor of this, I was for including that part, but if the Convention should prefer to have this part left out, I certainly would be in favor of voting for the minority report as it stands, and I hope that motion will prevail. I am not in favor of creating new and expensive offices in this State, which I believe the {1204} people would not be in favor of when it is presented to them for their votes for election. I think they will oppose the Constitution on that ground. I think it would be better to leave that part to the Legislature to provide for them if they deem proper to do so, and if they should make a mistake at any time, they can correct this, or it can be corrected by future legislation, and for this reason I hope the motion will prevail.

Mr. BUTTON. Mr. Chairman, who is the father of this report, I would like to know?

Mr. JOLLEY. Mr. Chairman, I will answer that, it was Mr. Larsen, who has just taken his seat. Mr. Larsen is the father of the minority report, and as he has stated there were some gentlemen that wished a little addition, and he allowed an addition to the substitute for both the minority and the majority report, and that is what has been distributed over the house. Mr. Chairman and gentlemen, I would state that there appears to be a great uneasiness among the farmers of this Territory in relation to the word ceding the water to the State. They feel as though they ought to be protected very pointedly in their already acquired rights, and that the Legislature will be a safe body to regulate those things, and while I am up I will just say in conclusion that I favor the minority report on those grounds. I think it will give perfect satisfaction to the people throughout the Territory_that is the farming community, and it will cause that fear to leave their minds that now is existing. I have been written to in relation to this matter, and petitioned to do all that was possible to prevent the water being given to the State as its property, and I would say, “let us vote for the minority report.”

The CHAIRMAN. Gentlemen, I wish to make a ruling to this effect: I believe it is improper to move to strikeout an entire article and substitute another article. The only way in which this can be done is by striking out section by section and substituting sections of the proposed article.

Mr. JAMES. Mr. Chairman, before you make a decision_there is nothing to hinder that from being done, providing the Convention consents to it.

Mr. EVANS (Utah). I do not understand that to be this question; I understand the motion to be that we adopt the minority report.

Mr. SNOW. That is the motion.

Mr. CHIDESTER. Mr. Chairman, it would be impossible to comply with your ruling for the reason that there are only a few sections in the substitute.

Mr. EVANS (Utah). Then, I arise to a point of order. There has been a motion made to adopt this minority report and it is now before the Convention for discussion.

Mr. SNOW. Mr. Chairman, I appeal from the decision of the chair. All I have to say is this, that I think we are governed in committee of the whole by the same rules that govern the Convention so far as they are applicable. They are applicable in everything but to shut off debate, or to limit it. The only object in committee of the whole to ignore these rules is that we may have freedom of discussion. I think when there are two reports before the committee, a minority and a majority report, that it is the privilege of the Convention to accept one and thereby reject the other. It seems to me this is a plain proposition, and that is all there is before the committee.

Mr. SQUIRES. Mr. Chairman, I read from Roberts' rules of order, section 32, on committee of the whole. (Reads.)

Mr. IVINS. I just want to ask Col. Squires, if there is any difference between adopting a report and accepting a report? That is what the motion is_to adopt the report of the minority.

Mr. SQUIRES. We have under consideration {1205} this article on water rights and irrigation and we may adopt or reject any section of that article.

Mr. NEBEKER. Mr. Chairman, I call the chairman's atttention to the fact that the motion of Mr. Snow is simply a motion to amend in this, that it proposes that this committee shall adopt the minority report instead of the majority report. It is really a motion to amend.

Mr. THORESON. Let me call attention to the fact that in the record, page 136, thirty-third day. the gentleman presents a minority report, which, under the rule, was referred to the committee of the whole. The minority report is before the committee now for action and the motion to adopt is proper.

Mr. BUTTON. Mr. Chairman, may I have the floor a minute now?

The CHAIRMAN. Yes, sir; if you wish to speak on the subject.

Mr. NEBEKER. Mr. Chairman, I object, unless it is to state a point of order. I submit that I have the floor.

Mr. BUTTON. Have we not a right to debate this point of order on the appeal?

The CHAIRMAN. Mr. Nebeker had the floor; he had not finished his speech.

Mr. EVANS (Utah). Mr. Chairman, I arise to a point of order. My point is this, that there has been a ruling made of the chairman, as I understand it, that Mr. Snow's motion is out of order. That has been appealed from, which has been properly seconded. The only business before this Convention is the debate as to whether the decision of the chair should stand as the judgment of the assembly or no.

The CHAIRMAN. The point of order is not well taken, for the reason that that is what is being discussed.

Mr. NEBEKER. Mr. Chairman, I am not in favor of the minority report_    

Mr. HART. Mr. Chairman, I understand the motion before the house now is whether the decision of the chair shall stand?

The CHAIRMAN. That is correct.

Mr. NEBEKER. I did not wish to speak to the appeal at all.

The CHAIRMAN. Mr. Button has the floor.
Mr. BUTTON. Mr. Chairman, on the twenty-fifth day, page 106 of the journal, rule 20_

Mr. EVANS (Utah). Mr. Chairman, I arise to a question of personal privilege. The point of order I raised_I desire to read this rule as personal privilege. (Reads from rules.) My point of order is, the only thing to do is to pnt that question.

The CHAIRMAN. The point of order is not well taken. This question is debatable. Mr. Button has the floor.

Mr. BUTTON. Mr. Chairman, I just wanted to read rule 20 as amended; that applies to committee of the whole. (Reads.)

The point of order raised here on this question. This article could not take the place of another.

Mr. HOWARD. I would like to call the attention of the chair to page 82 of Roberts' rules of order. (Reads.)

The CHAIRMAN. The position of the chair is as follows:

The chair contends that in committee of the whole, a motion to adopt a report, either of the minority or majority, is out of order. The only place where a report such as that can be adopted, is in the Convention. Reports of committees are made to the Convention and not to the committee of the whole.

The question being taken on the appeal, the committee divided and by a vote of 45 ayes to 34 noes, the decision of the chair was sustained.

Mr. CHIDESTER. Mr. Chairman, I now insist on my substitute for the whole article.

Mr. SQUIRES. Mr. Chairman, I arise to a point of order; that it is our duty to consider this matter section by section, and no substitute for the entire article can be received.
The CHAIRMAN. The point of order is well taken.

Mr. SNOW. Mr. Chairman, I move to strike out section 1 of the majority report and substitute section 1 of the minority report.

Mr. FARR. Mr. Chairman, I will say that I have heard a great deal said in the last fifteen or twenty minutes, and a great deal of confusion, but I must say that I have not been able to comprehend any of it. I do not understand it. This motion to substitute or strike out section 1 and substitute another_I have heard no complaint of the report of the committee. I am not very partial to any of the whole business, but I want to state to this honorable body that this committee consisted of fifteen men, and they spent some two or three or four weeks on it at different times and heard all the complaints and all the suggestions of all the members coming in on all sides, and suggestions outside of this Convention and letters from all parts of the Territory in regard to the matter; they were all submitted to this committee, and they have had all this to take into consideration. They have got the best wisdom and talent and ability of the territorial board of irrigation, which they have put their minds and attention to for the last year or two. They have sent to Colorado and Arizona and California, and got the best opinion they could and they have fixed up a very nice report. I have heard the other, but the committee has got them all together and consolidated them, and this report of the committee embraces everything that all this talk and hurrah has been made this afternoon. It takes the whole of it in and what in the world is the trouble, I cannot tell. They do not make any point, only this one wants his report, and this one wants his idea in and they jump up around. I say it is time to go at it like men and if there is any fault to be found with it, put in the reason and if it is unworthy, we can strike it out. I think there is time enough spent on this. I would like to get down to business.

Mr. NEBEKER. Mr. Chairman, I am in favor of Mr. Snow's motion. In the first place, section 1 of the minority report in my opinion means nothing; there is no advantage in my mind to the irrigators of this State to have that section inserted in the Constitution, because the Constitution, without it, will provide means by which vested rights shall be recognized and confirmed. Section 1 of the article as reported by the committee, or at least part of it, I believe to be a good thing, not with any view of the State confiscating any water rights, because I realize that vested rights to the use of water cannot be disturbed. If water has been appropriated for any beneficial use, whether we declare in this Constitution or not that the State can take charge of that water, the individual will have at least a day in court on that question and those rights will not be disturbed. But there is an advantage, as I understand it, in declaring the waters of all natural springs, lakes, and collections of still water within the boundaries of the State are hereby to be the property of the State, in this, that our Enabling Act has provided that we shall declare by ordinance that we will

forever disclaim any right to the public lands in the State.

Now, it has been silent on the subject of water, and there seems to be an opinion in possession of attorneys who have studied this question that by making this declaration here in this Constitution, it is possible for the State to obtain ownership and absolute control of the unappropriated waters of the State. If that be true, I submit that it would be a good thing to do, because if we could by declaration obtain all the public lands of this State, I do not think there is a gentleman on this floor who would say that that would not be a good thing to do in that simple manner, {1207} to become possessed of all the public lands in this State. So if we can do that by declaration and thereby obtain the control of the water instead of having to deal with the parent government hereafter, we will simply have to deal with our State Legislature, so far as acquiring right to any of the unappropriated waters in this State is concerned. I am opposed to the balance of the article as reported by the committee, for the reason that I do not think it would be wise for us to provide for a state engineer and board of control through this Constitution, because that will be a matter of experiment, and it may or may not be a good thing; and if it be a good thing, subsequent Legislatures can deal with that question. The principal argument, as I understand it, for a board of control is that the way the courts are now run it is a very hard matter for an individual to have a vested right confirmed, that the courts are expensive, or the expression has been used, in order to obtain a record of a vested right it was like creating a derrick to raise a sack of ofpotatoes with. Now, I think I will here anticipate the action of this Convention in stating that I believe the judiciary article as reported by the committee will be adopted, and if it is adopted, we will have a court in each county, and if any individual wishes to have his water right made a matter of record it will be an easy matter for him, as plaintiff, to make every other individual who will own in that stream of water, defendants, so that the courts will have jurisdiction of the whole question and will make an order on the evidence, and that order can be made a matter of record and the title to water will then be confirmed in the same manner as the title to land is now confirmed, as I understand it.

Therefore, I think that if this Convention simply adopts the proposition that the waters of all natural streams shall be the property of the State, we might go a little bit further to appease the apprehension that was mentioned here by Mr. Jolley, and say that the vested rights that have already accrued shall not be disturbed. We might make that declaration in this Constitution. I think it would be harmless and I do not think it would mean anything; at the same time, to appease that element that has been mentioned by Mr. Jolley, I do not think that that would be a bad thing to do.

Mr. CHIDESTER. If that be the case that through adopting this section it cedes to the State the waters of the State that are unappropriated and acknowledges the vested rights, how would the citizen obtain the right to water that is not appropriated at the present time?

Mr. NEBEKER. He would obtain that right through the regulation of a subsequent Legislature.

Mr. CORAY. I think I can answer that question, if the gentleman will allow it.

Mr. NEBEKER. I will yield for the gentleman, Mr. Coray, to place the gentleman from Garfield

straight. [Laughter.]

Mr. CHIDESTER. One more question, would it make any difference whether the water remained the water of the United States or the water of this State so far as the citizen obtaining a right to it?

Mr. NEBEKER. I do not think so.

Mr. CHIDESTER. It would be just the same one way or the other?

Mr. NEBEKER. I think it would be just the same one way or the other, any more than we would have the power to confirm the right nearer home, that is all.

Mr. MURDOCK (Beaver). Mr. Chairman and gentlemen of the committee, when other men speak my mind, it is unnecessary for me to occupy your valuable time, but there are some points in this first section that perhaps I might enlighten the minds of you to a small extent. My friend from Bear Lake has {1208} pretty much covered the ground that I wished to on that first section.

The object of the first section is this, nothing more or nothing less, simply to extinguish the right of the general government to the waters of the coming State of Utah, simply to extinguish the right that it may hold and let it revert to the domain or to the State. We might ask the question, who is the State, what is the State? The State is the people, consequently it confirms any original right that they may have. It reverts to the people_to the State, and that is all that that section can be construed, is that it is to extinguish the original right which the government may hold to the water and confer upon the new State. As my friend Mr. Nebeker said, it just simply brings the matter at home instead of having to carry our claims to the general government, and for this reason I hope that that section will be retained. I think it is a very essential section. You have all read it, of course, but there can be no other construction upon the section. ( Reads section 1 of the majority report.) In some of the amendments, I notice there were certain references to useful purposes_that water was used for useful purposes. There may be any number of conflicting claims that would come up and they might be put upon that ground, substantially, useful purposes, but they might not have a legal right to the water although it had been used usefully, but this is all that that section contains, is simply to extinguish the right of the general government to the waters of this domain. I see the same furore is raised here on this floor_I am wholly pleased to have opposition, if I think I am right. It has created the same furore here upon this floor as it has throughout the whole country, and there were importunities sent from all parts of the country when they saw the article that was circulated to the members on this floor, which in substance is the same that this first section contains, that it shall revert to the State. The committee even were very much prejudiced against that clause or against that portion of the printed matter that was circulated here. They were very much opposed to it, but when they came to look it squarely in the face and investigate the matter, it only confirmed the rights of the original owners. Now, there is a great conflict of interest in the way, as you all know, in every part of the country, and there is perhaps all of them_the use of the water is converted to useful purposes. No doubt about that, as all know that our lands are worthless unless we have the use of water, and this is one of the most intricate subjects that can be brought upon this floor, is the water question. That is the foundation of all our interests, both agricultural and manufacturing,

and every other interest is planted upon the interest of the water, and as I said before I left my home, that if that one question could be regulated satisfactorily to the people of the country, I should then have spent my time, as I think, very profitably if that could be done, for there is nothing that is more intricate in regard to an interest than the water interest.

As you all know, there is no use of my detailing it; and we have come to this condition; we have come right here to this condition, now. gentlemen of the committee, that it is necessary that some legal steps be taken to define the true and correct rights of every individual. Where there is abundance of water, there is little or no trouble, but where water is scarce, there is such an intricacy of interests, one taking from the other, that I may be safe, and will be safe, I think, in saying that many men who think they have a legal right to water have none, and it will be necessary, in my opinion, that this water question will have to be put into the hands of a legal tribunal to adjust the rights of the various individuals, and for this reason I hope that this section {1209} will be retained. That is all it conveys. You can make nothing else out of it. It brings the interest right home instead of forcing us to go to the general government to establish our claims.

Mr. SNOW. Do you think the appropriation of the waters of the State has already vested a right in the proprietors?

Mr. MURDOCK (Beaver). Well, it has by usage.

Mr. SNOW. We have vested rights now?

Mr. MURDOCK (Beaver). We have vested rights now.

Mr. SNOW. Do you think this declaration then in this section 1 will make that right any stronger?

Mr. MURDOCK (Beaver). Well, it will make it equally as strong_yes, stronger_I think it will.

Mr. SNOW. Suppose the general government should deny our right to thus take from them their rights by a simple declaration, would we not then have to carry it to the federal courts?

Mr. MURDOCK (Beaver). No; I think not.

Mr. SNOW. How would you get your rights then, if you did not?

Mr. MURDOCK (Beaver). I think if they would object to that section, why of course we would have to go to the general government for our rights.

Mr. SNOW. Do you think the simple declaration here “we appropriate water,” gives the right to us if we have not got it by use already?

Mr. MURDOCK (Beaver). I apprehend they are reasonable enough, that they will grant to the domain all water of the State.

Mr. SNOW. Would they grant it any more reasonable or any quicker by making this declaration than without it?

Mr. MURDOCK (Beaver). It would certainly draw it to a thorough conclusion in regard to the use of the water.

Mr. SNOW. Do you think the declaration is merely suggestive to the general government that we claim the waters of the State?

Mr. MURDOCK (Beaver). I think, in common with other rights that will be ceded to the State, that they would cede the waters.

Mr. MALONEY. Mr. Chairman, if there is any one thing about which the people of Utah are sensitive, and in which they take a vital interest, it is water rights and irrigation. Now, when you come to look at this first section of the majority report, you find the first section is simply a confiscation of water rights in this State. Now, the United States owns lands in this Territory and will the future State of Utah, but they have donated to us in the Enabling Act something like eleven and a half millions of acres. Of course, when that land was donated, we obtained the right to the water, because when land is conveyed, it carries with it all the water rights that are appurtenant to that land.

Now, the question of the gentleman from Washington to the chairman of this committee seems unanswerable. The idea of our making a declaration in this Constitution that all the still waters, lakes, and running rivers, and streams of this State are the property of the State is simply ridiculous, because it cannot be done. You cannot take away vested rights by constitutional amendment or enactment, or by any act of the Legislature. That has been determined over and over again. So I say that the first section is simply meaningless and it is wholly unnecessary. I say that we cannot take away the vested rights of the people of this Territory who have since 1847 been using this water. I do not care what method you adopt to take it away from them, you cannot do it, and to put something in the Constitution declaring that their water is the water of the State is simply out of the question. Now, Mr. Chairman, this majority report_section 1 does not protect vested {1210} rights at all. You will see in the first part of the section there is a declaration that the State is the owner of all the water. Then, when they come to protect vested rights, as they call it, then simply speak of the use only, not the right or title to the water. So then, I would say that my position is that there ought not to be any legislation here or any constitutional provision upon this water question. Leave it entirely to the people. The idea of our having a board of control, superintendents, division watermasters, stepping in and interfering with the rights that these people have had since 1847, is not to my mind the thing that the people of Utah want. So I say, Mr. Chairman, rather than have this first section. I would prefer the section of the minority report, but I am opposed to the whole business.

Mr. HEYBOURNE. Mr. Chairman and gentlemen, I am not very partial to the provisions of this article that has been reported by the committee, nor am I very partial to the minority report. Yet, if we had to do anything with this question, I think we had better support the minority report, or the amendment offered by the gentleman from Washington. It may have a tendency to appease

the unsettled feeling and condition existing throughout the Territory in relation to the possibility of confiscating the water rights of the people. My opinion is, that if we confine this matter to the second section, it would answer all the purposes that would be required. We have at the present time laws in relation to the water interests of the Territory, and I apprehend that the matter is of vital importance and one that will receive due consideration at the hands of the Legislature. We anticipate, of course, in the near future the fact that a great deal of lands would be taken up and a system of irrigation adopted whereby reservoirs and canals would be constructed, and people have gone to work in the rural districts of our Territory particularly and acquired as they considered rights to the use of the waters to irrigate their lands, and have got away with the idea that there was an effort being made to confiscate them and to make them more complicated than they were previously. Therefore, in consideration of this I shall support the gentleman's motion from Washington County.

Mr. CORAY. Mr. Chairman, I would say in regard to this report that we have had the advice of the best attorneys in Salt Lake City, and among them Judge Sutherland, and he submitted to us an article that he considered would be good for Utah Territory, and in that article the first section was identical with the first section submitted by the majority report. He declared that the waters of Utah Territory belonged to the United States, and the citizens merely have the right to use that water. They do not own the water. They simply have the right to use it, and if they run any of it to waste why that waste water can be appropriated by somebody else, and the object of the committee was to transfer that right from the United States to the State.

Mr. NEBEKER. Do I understand you that it is the opinion of Judge Sutherland that that declaration does transfer the water to the State from the United States?

Mr. CORAY. Yes, sir; transfers the water from the United States to the State; that is the way I understand it, and there is a question comes up_there is a great deal of the water that rises in Utah Territory and runs out into other states; you will find it so in the northern boundary, a great deal of it runs to Wyoming, and we think there would be an advantage in claiming that water before Wyoming claimed it_or Idaho rather; and I will also say that this is a copy of an article in the Wyoming constitution on this subject, and it has been ratified by the government, and I understand that Wyoming {1211} claims the waters of the state of Wyoming, and we thought that by making this claim that if the government ratified the Constitution, they ratified the claim also.

Mr. ELDREDGE. May I ask the gentleman one question? If by action of the constitutional convention of Wyoming they became entitled to the waters of that State, what about that large portion of the water that rises in Wyoming and comes into Utah?

Mr. CORAY. I suppose it is appropriated if they choose to do so, if it had not been appropriated before.

Mr. ELDREDGE. On the understanding that individuals have acquired a right to the use of that water long before Wyoming became a state?

Mr. CORAY. I understand it so. I do not understand that this section interferes with the rights of individuals. It has never been construed so. The law has been applied in Wyoming for some five years and has never been construed that the title to the water interferes with the right to use the water. The ownership of the water does not impair the right to use the water unless the public interests demand it; then they can deny it.

Mr. SNOW. Mr. Chairman and members of the committee, I think that in relation to the law governing water rights it is somewhat new and as yet undefined. I believe the lawyers of this committee will agree with me when I say that there are no exact settled rules in relation to water except a few fundamental, and that one of those fundamental rules is the right of use for beneficial purposes, or what is known as usufructoryright of water. Now, while this is true, in this intermountain region we have come to look upon water as an absolute piece of property. Our Utah statutes define it as personal property that can be transferred by one person to another, and we all recognize its value, as a paramount value to nearly everything else in this mountain region. The land is worthless without it. To extend a right of eminent domain reaches a man's property that is most precious to him. You may take his land or his house or almost anything that he has and it will not affect him like taking his water rights, because the land is valueless without it. In the county that I come from wherever there is water there is an oasis in the desert, and water is so valuable there that one inch computed according to weir dam measurement is worth two hundred and fifty dollars any minute and you cannot buy it for that. We are very jealous of our water rights and we would dislike very much to see a right of eminent domain in relation to water rights obtain.. And while we recognize the principle of beneficial use for water, as the only absolute right, yet, as I said before, we have become used to looking upon it as a piece of personal property, the title to which vests in us absolutely and can be traded or bartered off by one person to another. Now, I hold this, that if as stated by the chairman of this committee and by the gentleman from Rich, that the only purpose of this section 1 is to declare that the State owns these waters, that it is absolutely of no use, for if we own the waters, we own them by right of appropriation and use and from no other. And it does not matter if we make the declaration here if it does not rest upon that use and appropriation, it is of no value, and if it does rest upon appropriation and use it is of value without the declaration, and the idea that this will quiet our title seems to me to be absurd. I think perhaps this is the object of the committee in reporting it, but I think the effect of it is to confiscate the water rights of the Territory and place them under State control, of which local companies, cities, and towns, who have admirable regulations for the nse of their water, would be jealous, and would not brook any such interference. If public sentiment ever {1212} comes to the point where they think it is necessary, I think it is much safer to leave that to the Legislature. In relation to the first section that I propose to substitute for it_of the minority report, I will say frankly, that I think this is of no weight and does not increase the value of existing rights, but like the article upon labor that we persisted in putting in the Constitution, I will say in the language of the advocates, that it can do no harm; that seems to be what we are trying to do here; instead of putting something into the Constitution that will do some good, we want to put our fads in that will do no harm. This is one of them, and I am willing to vote for it. It is short; it only consists of two lines.

Mr. FARR. Mr. Chairman, I arise to a point of order. I understand that no person should speak twice on the same subject until all the rest have got through. I am not much acquainted with

rules; I have served as a member of the Legislature for twenty-eight years, but we always had the rules in our own heads and never run against anybody. Now, I want to know what the order is and when they all get through I want the privilege of speaking again, if that is the order; if not, I will speak now. This water subject, I want it distinctly understood is one of the most important subjects in my estimation that there is or has been before this body of men. It is something that we get our living from and without which we cannot live. There is no state or territory in the United States, I presume, that has as much to do with the control of water for irrigating purposes as Utah. Wyoming_they have been at it twenty odd years, Colorado, and Idaho, they have got their laws; all their laws are similar; in substance, the same as this, but not like it. The substance is the same and they all provide that the water shall be the property of the state. Well, now, it is very plausible that the government owns the water_that is that the water is unappropriated. The United States have already ceded by law all the appropriated water. They have said in so many words that those who get the water first have the first right to it. The United States has acknowledged that in their statute. Now, there is a great deal of water that may be appropriated. Now, who is going to take charge of that water? That is the question. Who is going to try to have control of that water, and who is the State? The gentleman has asked who are the State. The people are the State. Now, the people want to provide some way that this water can be controlled without difficulty. What is the best way to control this water? We have got it all under control and that is very wisely_that is very well said. I say all that.

I do not presume there is a man in this room has any more to do with water than I have. That is all very good and well said. The question is, who shall control the water and who shall be arbitrator? We want to get the water business in a settled, tangible manner, so that we can understand how it is. There will be lawsuit after lawsuit if there is not some way settled to control that water. It must be done. Who are the parties? This committee has started out to try to point out some way to find out how the water shall be controlled and who shall control it. This one cannot say it shall be so and so. I am entitled to so much water, and a great many will say “I will be damned if you have any at all.” That won't do. We have got to have some laws and some recompense by which that water can be controlled without this strife and this feeling of animosity. But how is it to be done? This committee has tried to point out how it shall be done. That is, that the Legislature shall prescribe means how that shall be done. This provides: (Reads,)

That has all been conceded, and when {1213} the President of the United States signs this Constitution then they have conceded it. It becomes the property of the State as far as that is concerned; but why do we say that it is the property of the State? It belongs to the people of the State. We say that in order that the Legislature shall provide laws to govern this water and control it and there shall not be any question in regard to that, there shall not any man say it is mine. Who is to discharge that duty? We decided that; we wish to make a law how that water shall be distributed and it will be decided when it comes to the court. Here it says: (Reads.) Now, that has been the case all over this Territory. You must not give away this water, and when they read the law of Wyoming and Colorado, why they do not like it. They say the reason why they do not like it is because they do not understand it. They say that it should not be given to the State, that each one must retain his own water, but who is to decide that question? That is the question. Why, they say, we place the control of it in the hands of the people, and who are the people? Why, this Convention are the people to-day; next year the Legislature will be the people; but we want to fix

some landmark by which that matter can be settled without having so much litigation. I think this water question is going to be a source of a great deal of litigation, and a great deal of trouble, if we do not fix it on some firm basis here. This matter has all been talked over by the soundest lawyers in the nation, Colorado, Wyoming. It has been submitted to some of the soundest lawyers in the nation; and they say that that provision of the law is sound. There is not a man here that pretends to say to the contrary, only he gets up and makes an assertion. He does not use any logic or any reason whatever. Somebody should take charge of this water. We must have some sort of
arbitration, that the rights of water can be disposed of satisfactorily, and for this reason, why we have brought this forward. Now, if you can give any better reason we are willing to hear it, but I do not want them to lose sight that we must prescribe some way. We want a board by which water can be_the right can be put on record somewhere. That there can be a final decision without having so much litigation, and you will find that we have got to have a board or somebody in charge of this water.

Mr. HAMMOND. Mr. Chairman, it is true as has been said a number of times that this is a very important subject that we are discussing. Much latitude has been given. Now, I do not want to say very much. I have not got wind to do it. That is all that shuts me off is the lack of wind, or else I would wear you out. I have been a user of irrigating water ever since this Territory was formed, in fact before it had a name. My friend from Weber, Honorable Mr. Farr, claims he is the oldest citizen; I do not know but he may be. If so, it is only a few days or a few months in the use of water and I am satisfied and have been to leave this matter entirely in the hands of our Legislature, and for that reason supported the proposition to strike out. Now, I have had sonic experience also over in Colorado, our neighbor state. And a grand old state she is too, but when she came to go into this irrigating business and copying after Utah she made a plumb muddle of it. Why? Why, in this provision here a state board_a high toned engineer living where? At Denver. and his deputies located around in every county. That reaches where I own property there, the southwestern corner of Colorado, several hundred acres of land there. I supposed when I went over there that water, like it was in Utah, was a piece of personal property. We could sell it, we could trade it, we could swap it, we could loan it to our {1214} neighbor, but sir, when I got over there and bought out a half interest in a large irrigating ditch I supposed I had some title to the water, but it turned out when we came to adjudicate and litigate our water rights, that my farm, lying near the tail end of the ditch_that prior proprietors of the water before it reached my spot took my priority rights away from me and instead of being one, as I supposed, on the ditch, it turned out I was number seventeen, when they came to get the water rights numbered off. Well, now, it has been in constant litigation from that time. They claim the water is the state's. The state says, when you have done with the water_someone proposed here that the surplus could be used. Now, sir, not in that country at all; if it goes back into the natural stream again, as soon as it is done by the user, and this is some of my experience in the water right. Now, I want in my heart to trust it to our Legislature. I believe a good portion of them will be people of Utah, that have had experience in this matter, and we need not worry ourselves over it.

Mr. BARNES. Mr. Chairman, I do not favor the adoption of this section under consideration for various reasons. In the neighborhood where I hail from, water rights have acquired a commercial value. They have been bought and sold, as is other property, and a right to use it is transferred

from one individual to another. I think that it would be doing a very great injury to the people of my neighborhood to say that the rights which they believe they are entitled to_many of them by virtue of paying out their money for it, shall become the property of the State.

Mr. NEBEKER. Do you understand that if this Convention should declare that the water of the State should become the property of the State that that means an interference with vested rights?

Mr. BARNES. I am afraid so. That is the point with me. I am afraid so.

Mr. NEBEKER. We would have to climb right over the Constitution of the United States, if it were a fact.

Mr. BARNES. As to that I do not know. We get along very nicely to-day in the use of our water. Our streams are small; we have no difficulty with anybody, and we claim the water as it comes from the mountain that flows in the various creeks. We claim it by right of usage, by right of appropriation. As I said before, we buy it, sell it, and transfer it from one to another. Now, to come up and say that we no longer have that right and that the water belongs to the State, is something more than I can do, and then I cannot vote for the adoption of the article under consideration. I do not favor the entire article. I think the entire article is wrong, and that the whole matter should be left to the Legislature.

Mr. MURDOCK (Beaver). Mr. Chairman, as it has been often remarked here this afternoon, this is a very important question. And while we may think it so difficult that we don't want to take hold of it here, in what better condition would the Legislature be to take hold of this mattter [*note*]? Now, there seems to be a head to all things, and there should be in this great State. This interest is perhaps one of the most important that we have to meet, and if this body of experienced men that are here upon this floor are not able to take hold of this matter and dispose of it in a proper way, why I cannot conceive that the Legislature that are no greater experienced men than this body is can take hold of it and do that that would be satisfactory to the people. Now, I think that the water should be disposed of in some way.

Now, continually waters are running from one state to another and if we acquire the right to the use of the water that is running into this State from {1215} other states, why that right would be established if it was conceded to by the general government. Now, we want the experience of other individuals; if it be of any strength to us, or of any use to us, we should use the experience of other parts of the country. While I am willing to admit that Utah is in the lead in the experience of water, and I may be as tenacious upon my rights as any man possibly can be, I have been using water in this Territory for forty-five years myself, and I am tenacious on my own rights, and when my rights are well guarded, I say that every man's right is guarded. I say that provides that no priority right shall be interfered with. Of course if that be so, then it guarantees to every man that holds a water right. It is confirmed, bat it simply is placing the water that the United States may obtain and hold at the present time_it converts it, it confers it upon the new State, and then the new State will dispose of it through its Legislatures, which this section provides. Now, we have the experience that has already transpired in the other adjoining territories, and they seem to work very excellently. Now, here is a law that I will read, which will

be a part of what I have to say. It is from Governor Richards, of Wyoming. It seems that the governor of the Territory has applied to him for his opinion in regard to the water question:

To His Excellency, the Governor of Utah, Salt Lake City:

Dear Sir:_I am in receipt of your esteemed favor of April 9, in regard to the state control of water, I can give you no better information upon the question than that contained in the report of the state engineer and my message to the legislature, copies of which I mail to you to-day. We are very well satisfied with the working of our water laws, including the constitutional provision relating thereto, and no changes that could improve it occur to me at the present time.

Very respectfully,


Governor, Wyoming.

Now, that is his experience and here is the Wyoming law of the water, and he reports it as being excellent, I have also here a report of the engineer. ( Reads.) Now, we don't want to treat this, gentlemen, lightly. I think that we want to shift a great labor and a great burden off of ourselves and put it on to somebody else that is not a bit more capable of disposing of this matter than we are. Now, there is not a feature in the bill that has been presented to the committee that takes away priority rights from them, but it is strictly guarded_strictly guarded. And I say emphatically that everything should have a head to it, and now you leave this to go on in the confused way_some parts may not be disturbed with this confusion, but I know many parts are confused, and men who are original owners are entirely deprived of their water rights. For what reason? Because there has not been a proper control made of the waters, and it is getting worse. We leave this matter for a few years more and the complication is increased. Now, we want to adjust this matter so as to put this water to the best possible use to the general whole, I do not wish to monopolize while I may have a priority. Men think that they own the water that they use. You might just as well claim that air that goes through the air and that you use as to say that you own the water. There is not a man that owns the water. He only owns the use of it where it goes from one to the other and passes by us as the air does, aim there is not a man_I am strong on that point, that there is not a man that owns the water; he owns the right and perhaps through the custom that has been established here, he can transfer the right from himself to his neighbor.

Mr. ELDREDGE. Mr. Chairman, I am aware that there is no question that will come before this body that is surrounded with so much importance as the one we have under consideration, {1216} and I am of the opinion that we can say nothing in this Constitution which will give any increased right to the State of Utah to the water that it would not have if it did not even mention it in the Constitution, nor should we say anything here that would detract from rights that have been acquired by the use of water. One advantage that the Legislature would have in dealing with this question over this Convention would be this, that if the Legislature should make an error in providing for the mode in which the water should be controlled, they could correct that error far more easily and more readily than what this Convention could have it corrected, should they make an error in the Constitution. Then there are different classes of rights we acquire to water; there are certain rights we acquire which only constitute a right to the use of the water, as for illustration, there may be a mill situated upon a stream and that is permitted to divert the water

from its channel, carry it down and over its wheel and pass it back into the stream, and thus not infringe upon the rights of any person that may have acquired a right to the use of the water or even a right to the absorption of the water below them. Now, that is one class of right. Another class of right would be a farmer. He takes a stream of water upon his land and he exhausts that stream. There is not one particle of it that passes off from his farm to go on to afford its use for somebody else, hence, there are two different modes in which the rights to water attach. Then, should we appoint a board and that board should prove unsatisfactory to the people of the Territory, it would then become very objectionable and be very difficult to change, but if we leave the appointing of a board or even the creating of a board to the Legislature, it is then in shape that it can be properly handled. There are a great many questions will arise in regard to the
water. For instance, you can take one class of land and it will require perhaps only one-quarter or one-half as much water to produce a crop as what some other class of land will and it would be impossible to say to a person that so many miner's inches or feet, as the case may be, of water that you can have to this twenty-acre or that forty-acre tract, and apply that rule to some other twenty-acre or forty-acre tract. All these obstacles will come up and present themselves to a board that undertakes to have anything to do with the water question, and therefore, as one, I am fully in favor of leaving the question to the Legislature to handle, and if we put anything in this Constitution, it would simply be the two lines that were presented by the minority report that all existing rights to the use of any of the waters of this State for any useful purpose shall be recognized and confirmed. I agree with the gentleman from Washington County upon that proposition, that it will not add any right to a person that has acquired a right either to the water or to the use of the water. There are some instances where they have acquired a right only to the use of the water, and in other instances they have acquired a right to the water and they use it absolutely, and therefore I think that we should leave this question unto the people that would be able to adjust it.

Mr. CORAY. Mr. Chairman, I would like to say two or three words. I will say that we wrestled with this question_that is, the committee did, three or four weeks and there was only one man that held out and that was Mr. Larsen, from Sanpete, and I notice in the substitute that he offers here to-day that he has come right around to our way of thinking. I will just read it for your benefit. It is very short. (Reads.)

Mr. LARSEN. I did not offer it.

The motion of Mr. Snow was agreed to.

Section 2 was read.
Mr. VARIAN. Mr. Chairman, I move to strike out the entire section. Now, Mr. Chairman, I will consider this section in three subdivisions. First, priority of appropriation for beneficial uses shall give the better right. In a certain particular and to a certain extent, that is the existing law. There are, however, rights growing out of riparian ownership which are equal to the rights given by the law existing as to prior appropriation. A declaration of this kind certainly could not interfere with vested rights, and if it could I should not vote for it, and I do not believe this Convention is willing to vote for it.

The second clause, that no appropriation shall be denied except when such denial is demanded by public interest, that looks towards confiscation. A man has a right by prior appropriation. It is just as much his property as if he had gained it in any other way. I do not think we ought to attempt to put any such confiscating clause as that in. The third clause, that the right of eminent domain shall extend to land and water rights, is entirely unnecessary. We had better leave that law of eminent domain just where it is. It is determined by well known principles. Courts are familiar with it. Legislatures are familiar with it. It is simply declaratory of what exists anyhow.

The motion was agreed to.

Section 3 was read.

Mr. THORESON. Mr. Chairman, I move we strike out section 3.

Mr. JOLLEY. Mr, Chairman, I move that we substitute section 2 of the minority report for the section.

Mr. RICHARDS. Mr. Chairman, I am opposed to the substitution. And I am in favor of the motion to strike out, because the Legislature would have all the power that they need in the premises without any such declaration. I think it is entirely unnecessary, and the section ought to be stricken out, in my judgment.

Mr. THORESON. Mr. Chairman, I think this section should be divided and these two sections treated upon different terms. I move to strike out section 3 of the majority report, which relates to the appointment of a State board and a State engineer, and I think the question should be divided and then afterwards vote on the substitute or the section of the minority report.

The motion to strike out was agreed to.

Section 4 was read.

Mr. BARNES. Mr. Chairman, I move that section 4 be stricken out.

The motion was agreed to.

Mr. JOLLEY. Mr. Chairman, I now move you that we insert section 2 of the minority report. As was stated by the gentleman from Salt Lake, this could be left to the Legislature. I agree with him that it could be, but there is an unrest in the minds of the people that I would like to see settled by this body and upon this floor, and I think that this section should be voted for. It will do no harm and it will satisfy them and give them something to rely upon.

Mr. HART. Mr. Chairman, if we are going to leave this whole matter to the Legislature, I think that we should do so. The word “shall” is in there, and this would require the Legislature to have a board of control. Inasmuch as we have decided not to pass upon the question here and leave the matter to the Legislature, I am in favor of leaving the whole thing to them, not directing that they

shall do certain things.

Mr. MALONEY. Mr. Chairman, Mr. Jolley speaks of the unrest in the minds of the people. It strikes me that section one of the minority report, which has already been adopted, will set that at rest. I agree with the gentleman from Salt Lake that this is wholly unnecessary. The Legislature may provide for all those things. I hope the motion will not carry, that section 2 will not be adopted.

The motion of Mr. Jolley was rejected.
Mr. CREER. Mr. Chairman, I move to strike out section 1, as the article now stands.

Mr. RICHARDS. Mr. Chairman, I am opposed to putting anything into this Constitution that does no good, and the argument simply that it will do no harm is not persuasive to my mind. Now, if any gentleman in this committee can tell me of any good that can result from placing that article in this section in the Constitution-_

Mr. JOLLEY. Mr. Chairman, I call the gentleman to order. We have just passed on section 1 and took a vote on it.

The point of order was sustained, and the motion of Mr. Creer was ruled out of order.

Mr. HART. Mr. Chairman, I move to reconsider the vote whereby we adopted that section.

Mr. ELDREDGE. The gentleman that moved to reconsider_did he vote in the affirmative?

Mr. HART. I do not know whether I was present when that was voted on or not.

Mr. JOLLEY. Then, Mr. Chairman, I object.

Mr. HART. That was introduced at the time section 1 of the original section was stricken out, was it?


Mr. HART. I voted in the affirmative.

Mr. IVINS. Mr. Chairman, I have not participated in the debate thus far upon this article. Now, if the question of reconsideration is before us, I do want to say just a word. I think that that part of this section which was adopted is very proper and ought to stand, and that it ought not to be reconsidered. It simply confirms all existing water rights and provides that from this time on there shall be no law passed which might condemn water and extend this right of eminent domain over it by which people may be deprived of existing rights. I would like to see that remain anyhow.

Mr. HART. Mr. Chairman, I will withdraw my motion by the consent of the house and let the matter go on to the third reading.

The CHAIRMAN. The question now is on the article of forestry.

The committee proceeded to the consideration of the article of forestry.

Mr. CHIDESTER. Mr. Chairman, I move that when we do arise, we report and recommend that this article be adopted.

The motion was agreed to.

The committee of the whole then proceeded to the consideration of the article entitled education.

Sections 1 and 2 were read.

Mr. MAESER. Mr. Chairman, I move that on line 5, in section 2. the words “and high” be stricken out so that it reads, “the common schools shall be free.”

The reason for my making this amendment is the same that I stated before; the status of common and high schools is a different one. Common schools are mandatory. They extend the right to every child of our people to be educated, and every child has a right to demand that kind of education that we shall designate by the term common school education, but high schools are a privilege for any one of our youth that desire to avail themselves of it, and now we are entering upon a statehood with increased taxation and we have to see that our common schools are provided for first in educational matters; that there is nothing done that in any way may infringe upon the full development of our common schools.

Thus far experience has demonstrated that in many parts of our Territory our common schools have not been able to run through all forty weeks which is considered the regular full school year. Very few school districts have been able to reach that under the present condition of affairs, and in some counties {1219 - EDUCATION} schools have not been able to run longer than three months in the year. We all are willing to acknowledge that three months' schooling cannot furnish the child a common school education. It must be unsatisfactory. We must try to build up the common school system of ours so that all the children in our country districts have the privilege of a thorough good education_a solid foundation_there is a tendency, too much so, of over education. We are not educating for professions alone. We are educating our people, our farmers, our mechanics. We have to provide for those, but a tendency has been somewhat created that wherever some smart little children are found in the schools, they are pushed on, passed on_a kind of hot-house education has been developed. As a natural result of the condition of affairs, teachers are engaged for the year, or in some instances only for a term or a number of terms. They want to show off how much they can do in that short time, and press each force forward, and then it is as if the common schools only were arranged and organized that they may feed high schools and so on. Our common school system is a self-existing one. It is there for its own sake, it is not there for the sake of feeding high schools. It is a system in itself. Three-fourths

of our school population get their education in our common schools and close up with that; then they depend upon mutual improvement associations and Christian endeavorers[*note*], and Christian societies, and so on, for further information of a general nature, but it is the common school education which I would like to have secured. I have been accused to my face that I was opposed to high schools, but I wish to say that I am not. I am in favor of high schools. I desire as many high schools to be established in Utah as we possibly can do, and as the means and the communities will allow. I am most anxious to see these, but it must not be done at the interest of our common schools. I would like to see them well established first_our country districts be brought in such a condition that they run their schools all the year around. That means forty weeks, which is the proper school year, and teachers that can stay there and not travel around the country for one term after another, but be able to stay and make their home there, and establish a character in the community and stamp their impress_their character upon the minds of the rising generation. It is not only knowledge, it is the building and cultivation of the character of our children that we want to have established. Therefore, I desire that these words “and high” be left out and provision be made by this Convention for the high schools. Someone else will take up the subject of high schools, I trust. I here only advocate the interests of our common schools and the high possibility.

Mr. PIERCE. Mr. Chairman, I hope the motion will not prevail. It seems to me that the purpose of this article is to define the public school system, and that is more essential than it is to specify exactly how the various branches of the school district shall be supported. We first outline a general plan. Now, if the Convention will turn to the latter part of section 3, I think they will see that Professor Maeser's argument is answered. That is a provision made so that the State school tax and the State school fund shall be used for the benefit of the common schools. That is as far as we have gone and that is all that we have provided. We have provided that all the fund that we raise shall be devoted for the support of the district school. Now, it seems to me that whenever a boy or a girl in a high school reaches the age of fourteen years and shows a special aptitude in studies, that the State owes as a duty to see that that boy or girl is permitted to enjoy education beyond {1220} that, and if it is not so, the result will be to thwart the ambition and crowd them down, and I believe we should leave this matter in there, and leave it so that the Legislature can provide for the support of the high school in such way as they shall see fit to do. Now, why should not we do this? If it is not going to sacrifice the interests of the common schools in any respect whatever? And this bill is so framed that the interests of the common schools will not be sacrificed in any way, because the State school fund and such other additional taxation as the State may provide for shall be devoted to the district schools, and let it go there. Leave the common schools_if the Legislature provides a law for establishing them, leave them free.

Mr. SNOW. You refer to the saving clause, which provides that the school fund, with other means that the Legislature may provide, shall be distributed to the several school districts, according to the residents therein between the ages of six and twenty-one years. Now, the question I want to ask you is this, if the words “and high” are stricken out, will not this saving clause allow any school district which has sufficient funds to establish a high school with what surplus they may have that goes to these residents between six and twenty-one?

Mr. PIERCE. I am not certain but what you are right in regard to that.

Mr. SNOW. I think I am. Another thing, I think if you will leave “and high” there, that the free part of the school will be mandatory.

Mr. PIERCE. Well, I think it ought to be mandatory. That is my view of it.

Mr. SNOW. Well, if it is mandatory, you will have to provide taxes to make it so.

Mr. PIERCE. Exactly.

Mr. SNOW. The idea is this, we want to go according to our means, and by all means have the common school free.

Mr. PIERCE. My own idea is that the common school by all means should be free at all times, and that we should put that down as the foundation stone. Then, above that, that all high schools, at all times supported or provided for by the Legislature, should be free. Let the Legislature define it, that high schools can be established and become free even if they are supported by local taxation.

Mr. SNOW. Then it is clear to your mind that if the words are stricken out it will not prevent the establishment of free high schools?

Mr. PIERCE. I do not know; it is not entirely clear. You may be right upon that proposition.

Mr. PETERS. Mr. Chairman, I make a motion to strike out the entire section.

The question being taken on the motion of Mr. Maeser, the committee divided and by a vote of 47 ayes to 34 noes, the motion was agreed to.

Mr. VARIAN. Mr. Chairman, I want to offer an amendment, to insert after line 7, in section 2, “provided in all cities of the first and second class high schools may be maintained as a part of the free school system.”

Now, Mr. Chairman, this is the same ground which we went over two or three weeks ago. For some reason or other there seems to be an antipathy to high schools in the minds of gentlemen here in this Convention. I confess I do not understand myself why it exists. To hear a gentleman at the head of a great private school_an ecclesiastical school, numbering eight or nine hundred students, making an attack of this kind upon the high schools is something that I cannot understand.

Mr. RICHARDS. As you understand this section 2, would not the Legislature have the power to provide for high schools, as a part of the common school system_free schools? I call your attention particularly to the last two lines, where it says that the other departments {1221} of the school system shall be supported as provided by law.

Mr. VARIAN. Yes, sir; they might have that power. I doubt whether they would have the power

to make them free, but what is the use of beating this thing around the bush in this way? If the intention is to let us have our high schools as we have them now, why not say so? If the intention is to deprive Salt Lake City of its high school, let us understand it. This proviso does not interfere now with you gentlemen from the outside. You have got the section as you want it, striking out the provision making high schools free and doing away with all competition that they might make to your other schools. That I apprehend is behind all this.

Mr. CREER. I desire to ask the gentleman if the provisions here in lines 6 and 7 would not be sufficient and that would cover not only cities of the first and second class, but cities of the third class?

Mr. VARIAN. No; that is the question asked of my colleague from Salt Lake City, but the object of this proviso_there is nothing concealed in it, so far as I am concerned. I want it understood that I want the high school of Salt Lake City maintained free. I presume the gentlemen from Ogden want the same as to their schools. Now, as I took occasion to say upon a former occasion, we have builded up a great school system here; we have a large number of first class school houses; we have incurred a large indebtedness; our people are willing to stand it; we may have to incur additional indebtedness. We shall, in the near future, want a high school building. Our school is increasing by hundreds every year. It is one of the features of our school system; it is doing as much as anything possibly can to bring into line all the children in this city, and they are all looking forward to that high school, one and all.

Now, the simple statement, it seems to me, ought to be sufficient to give us this proviso. The school here and the school in Ogden are now maintained free. This is a permissive proviso, it does not say the Legislature shall do so; it says that the high schools of cities of the first and second class may be maintained free; nothing that I could say, gentlemen, would add to the force of the argument. Time is too precious to go over the ground of argument we went over two or three weeks ago. I simply ask you what you have got to do with it? Why should anybody object to this proviso being carried?

Mr. IVINS. Mr. Chairman, I believe that the members of this committee are laboring under a misapprehension as to the present school system in this Territory. We have no free school system here, such as I understand this proviso of the Constitution that we now have under consideration will create. The Legislature appropriates a certain amount of money to assist the schools of this Territory, and then it provides laws by which the counties and the school districts may, if they wish, make those schools free. But there is no free school system. If a county does not wish to vote a tax for schools, the schools in that county are not free to-day. Now, as I understand this provision that we are about to place in the Constitution, it requires that all common schools in this Territory shall be made free by general taxation, and that is just exactly what I want, and then if there are to be high schools maintained free, let it be by local taxation in the districts, cities, or precincts, where those high schools are located. And if the gentleman will amend his amendment so that it will read that high schools may be made free by local taxation, I should not object for a moment, but I believe that under that provision high schools in Salt Lake City could be maintained by general taxation of all the people in this Territory, and that I do not think is right.

Mr. VARIAN. Will the gentleman permit me to ask him two questions? Does he not know that the schools in Salt Lake City are free, all of them?

Mr. IVINS. Yes, but they are made free by local taxation.

Mr. VARIAN. And second, what difference does it make to you or to the school fund whether that is in or out of the proviso? We do not get any more money from the State than we would have if the school was not free. In other words, we distribute that fund as we choose, and then if we require anything more it must of necessity be by local taxation.

Mr. IVINS. I wish to impress the gentleman that I do not object at all to that condition being continued, but I want to try to impress the members of this committee with the fact that under section 2, we are creating a free school system, and it will be supported by general taxation, so far as the common schools are concerned, and that there will be but one school fund and that will be the territorial school fund. Now, if we want to establish higher schools, let it be done by local taxation, after the pupils of this district have received their proportion of the general fund who are between the ages that are designated here as the school ages. I believe that that amendment, if it is adopted now, would authorize the assessment of taxes on property in Washington County to help maintain the high schools in Salt Lake City, and I do not think that that is right. We are willing to bear our proportion of maintaining common schools in Salt Lake County and in Cache County and in all other counties, and wherever high schools are wanted, let them be maintained by local taxation, just as they are now.

Mr. SMITH. Mr. Chairman, it seems to me that Mr. Ivansis laboring under a misapprehension in regard to the free school system in this Territory. I am not certain in regard to that matter, but the impression in my mind is that the schools in the Territory are at present supported by taxation. Suppose that the children of this city, as an example, were taken of the ages named here in this proposition and appropriations were made for the public school system, and the city itself established a high school in connection therewith_children only of the ages named who would be permitted to attend there, and we would only get our proportion of the money as any other section would, if they saw fit to do the same. I trust that this proposition of Mr. Varian's will carry. I am decidedly in favor of it, because it is a matter of justice and right to the people to be able to use their money in that way.

Mr. RICHARDS. Mr. Chairman, I am decidedly in favor of Salt Lake City and Ogden and any other city in the Territory that is able to support a high school as a part of the common school and free school system, to have that right, and as I understand it, they would have the right under this section, as it now stands. That is the difference between myself and my colleague from Salt Lake City. He seems in his argument to imply that if this proviso is not adopted, the Legislature that we would not have the authority to continue these high shools [*note*]. Now, I do not understand it that way at an, and the reason that I asked the question of the gentleman was not to interrupt him, but to try to get some light on the subject, but I did not succeed in getting the light that I usually get from interrogations from that source.

Mr. VARIAN. Will the gentleman pardon me if I treated him abruptly; I did not mean to. I will endeavor to answer any question.

Mr. RICHARDS. I did not understand that the gentleman did intend to treat me abruptly, but I did not get any answer to my interrogation.

Mr. VARIAN. If you will allow me, I will try to answer.
Mr. RICHARDS. I have no question to ask now. I desire to say something myself. Now, if it is true that this section 2 would prohibit Salt Lake City or Ogden City, or any other city, from maintaining a free school system, or maintaining high schools as a part of the free school system, and it is necessary to have this proviso in order to make that clear, I am for the proviso, but I want to know first that it is necessary. Now, what does this section say. The first section says, “The Legislature shall provide for the establishment and maintenance of a uniform system of public schools,” etc. By section 2, high schools are included in the public school system. “The common schools shall be free.” Now, if it stopped there, there might be a question about the power of the Legislature to make high schools free, because, under a familiar maxim of law, that an expression of one thing excludes other things, it might he doubtful_in fact, I should say that they would not have that power, but this section goes on and makes it clear by saying, “the other departments of the school system shall be supported as provided by law.”

Now, the Legislature has a right to enact laws providing for the establishment of high schools throughout the Territory, and the maintenance of high schools throughout the Territory. Are we to argue that the Legislature will not do this? Are we to assume that the next Legislature will provide that high schools that are now in existence in this city and in other cities of this Territory shall be discontinued? I do not think we ought to indulge in any such presumption as that. If we provide that in cities of the first and second class high schools may be retained as a part of the school system, then I say that it is objectionable, because in line with the very maxim that I have quoted, the expression of one may exclude others. Then it would be impossible for the Legislature to provide for high schools elsewhere, except in first and second class cities. It might be that high schools might be desired in other places besides in the first and second class cities. Now, I want it distinctly understood, Mr. Chairman and gentlemen of the committee, that I want this thing made as clear as any member of this committee. I desire the right retained for Salt Lake City and for Ogden, and for every other city that now has it, but I desire also that the same right and privilege may be extended to every other city, and not only to every other city, but to every county in this Territory, if the time should come that it should be considered wise and expedient that that provision should be made. And so as I understand it, I cannot favor the amendment. If an amendment is necessary it can be drawn in such a way that it will not and cannot possibly operate as a restriction: then I should vote for it, but as I am now informed, I cannot vote for the amendment, because I think that instead of extending any privilege in this regard, that it is restrictive in its character.

Mr. CREER. Mr. Chairman, I do not wish to repeat over the argument of the gentleman from Salt Lake, Mr. Richards, but that is the way the amendment occurred to my mind, that using the expression of cities of the first and second class, it would exclude others, because the Legislature

would be directed by that provision. Now, I think it would be perfectly right and proper_in fact, necessary that high schools may be established in other cities, besides those of the first and second class. We have cities approaching in numbers cities of the first and second class and we have high schools there. I was opposed, not to the principle of sustaining high schools free, but I was opposed to the amendment, because I believed it would be too narrow; it was circumscribed so that other cities could not be benefitted by that.
Mr. CHIDESTER. Mr. Chairman, as I understand the amendment, I could not support it, but if it goes on something like this, I could support it, “the common schools shall be free and the high schools of first and second class cities may be free by local taxation,” then I think I could support it.

As I understood the argument on this question when it was in the Convention before, that was the contention, that they wished to have high schools and pay for them themselves. Now, I do not object to that, but I do object to making these high schools free and having them a part of the free school system.

Mr. EVANS (Utah). It seems to me, Mr. Chairman and gentlemen of the committee, that this matter is certainly strong enough. As I view it, I believe that if it is left just as it is now, it is within the power of the Legislature not only to establish high schools, but I go further, and I believe that the Legislature could make a law whereby high schools could be maintained by territorial taxation. I believe that they could provide by law that kindergarten schools should be made free from the same source. I believe that they could provide that the university could he made free from the taxes of the people throughout this Territory, but I am willing to trust that part to the Legislature. If the time shall ever come that they believe it shall be a just system that high schools should be established in this Territory and that the finances of the Territory are of such a nature that they could be established by general taxation, in addition to the maintenance of the common schools, I am willing to leave it to the Legislature, or if peradventure in the history of the State it should be found that we were able by the resources that accrue to the university, and those that accrue to the common schools_that by making a reasonable tax in addition to that, that very system in this Territory could be maintained free, I would not object to it, and I believe that is exactly the condition of this section as now left. Therefore, I am opposed to the amendment. I think it is strong enough as it is; that it will cover every situation that will arise and it may go to the extent of making every school in this Territory free by any way that they may provide, either by local taxation or general taxation.

Mr. PIERCE. Mr. Chairman, if this section is left as it is, we are liable to meet or may meet with this condition of affairs. I do not say we will, but we may be. The very next Legislature
that we may have may say that the pupils of the high school in Salt Lake City shall be charged tuition. That is the trouble. That is what the gentleman from Salt Lake City desires to get over. His amendment is that the high sehool shall be a part of the free public school system, and it seems to me that it is eminently proper that this amendment should go into the Constitution, so that in cities of the first and second class it would never be possible for the Legislature to charge tuition.

Mr. EVANS (Utah). Are you not willing to trust to the honesty of the Legislature_have you not got sufficient confidence in them to believe that if any district or any locality are willing to be taxed for the purpose of maintaining a high school, that that Legislature will provide a law whereby they may do it?

Mr. PIERCE. I do not want to insert that question when this Convention strikes the words high schools out of the free school system.

Mr. MORRIS. Mr. Chairman, I am in favor of Mr. Varian's amendment, for a free high school. I cannot see why outside districts need to interfere whatever as long as we are willing to sustain and support our own high schools. I favor a free high school for the benefit of hundreds of widows and children that are just as bright as those that have an abundance, and to say that the {1225} high school is to be paid to go in, they are deprived for want of means, and for that reason I favor free high schools, as long as we are willing to sustain them ourselves, and I rather think it comes with poor grace for those in the outside districts to think that we charge them or that they would be taxed to support our high schools, when we in Salt Lake County are supporting all of the public schools, to the amount of about eighty per cent.

Mr. VARIAN. Mr. Chairman, the argument of my friend from Salt Lake and from Utah County is a little disingenuous, as to the construction of this section. First, we are told that if this proviso will be adopted they fear that the Legislature would be prohibited from establishing high schools. They overlook the fact that you have already declared that high schools shall be a part of the public school system. They overlook the fact, or at least ignore it, that you have just stricken out the clause which would authorize the Legislature to make the high schools free anywhere. Whether the proviso is adopted or not, as long as this Constitution shall stand in this way, every lawyer here must know that the Legislature would be prohibited at any time or under any circumstances from making the high schools free. Now, it is in that way that we want this proviso adopted.

Mr. RICHARDS. Do I understand you to say that the striking out of the words “high school” as it stands now with common schools free, that the Legislature would be prohibited from making any other schools free?

Mr. VARIAN. Upon the principle of construction that Mr. Richards announced approvingly a few minutes ago, I should say yes. The Constitutional Convention was dealing with that question as to what schools shall be free. It has declared that the common schools shall be free. By implication, none others are to be free.

Mr. RICHARDS. That would be unquestionably true, if it were not for the section that follows. I ask you what this means, “the other departments of the school system shall be supported as provided by law?” That is as I understand it, the other departments except the common schools.

Mr. VARIAN. I understand that; they shall be supported not as free schools, but supported by taxation in such a way as may be provided by law. It is subject to that interpretation, but passing that let us see what effect this clause has upon your high schools elsewhere. It simply provides

that high schools in cities of the first and second class may be maintained free, as a part of the free public school system. How can we get any money from the people outside, other than the money that we would get whether we have a high school or do not? Your Legislature will create a levy for a school fund, it will be so many mills on the hundred dollars; it will be distributed in the different counties and districts of the State, according to the school population, so that it is not the number nor the character of schools that will determine that, but it is the number of people within school age, who are authorized to draw the school money. We will illustrate by saying supposing we get twenty-five thousand dollars a year or fifty thousand dollars a year for a school fund, how can it concern you gentlemen, whether we distribute that money among the common schools and the high schools, or give it to the common schools alone? The result is the same, when we have exhausted it, we are bound by the levy, we can get no more money from the State treasury. We will do as we are doing to-day, levy a city tax, which in large degree we rely upon to support this system of schools that we have here. It is not true_it is a mistaken idea, if gentlemen will just look into it, they will see that it will not add to your burdens one single cent. It is simply providing that we may still {1226} maintain our high school here in Salt Lake and our high school in Ogden, as a part of the public school system. It is torturiug language. It is a misconstruction and misapplication of the meaning of words to assume any such construction as is put upon it by the gentleman. We do not wish to interfere with that. If any gentleman here is going to vote against this proviso because “supported by local taxation” is not there, why don't he offer it as an amendment and help me to perfect this, if he is in line, and not endeavor to kill it absolutely? If there is that question in it, offer the amendment and let the committee vote upon it, if they want to perfect it in that way, but I trust that you will not vote down this proviso under the circumstances.

Mr. RICHARDS. To make this matter clear and beyond doubt, will you accept this amendment to that amendment:

Provided that in cities of the first and second class and such others as may be provided by the Legislature, high schools may be retained as part of the free school system.

Mr. VARIAN. Certainly. I will be very glad to.

Mr. IVINS. If Mr. Varian will allow me, I have his original motion here and I want to put three words in it that will satisfy me. I want to move this as an amendment. Your motion is, “provided in all cities of the first and second class high schools may be maintained as part of the free school system.” I have added, “provided, in all cities of the first and second class high schools may be maintained by local taxation as part of the free school system.” I move this as an amendment to the gentleman's motion.

Mr. THORESON. Mr. Chairman, I offer as a substitute for the section and the amendment:

Provided that high schools may be maintained free by any county, city. or district, by local taxation.

Mr. CHIDESTER. Mr. Chairman, I would like to offer an amendment to make it conform to the suggestion I made awhile ago, by adding three words, “by local taxation.”

Mr. VARIAN. Mr. Chairman, if that can be added so that if a necessity should exist for it, there would be no objection to it, but to confine it entirely to local taxation might preclude the use of the moneys that the city is entitled to or any part of them, although it might have more than enough for the common schools, going to the high schools. I do not think the gentleman means that, however.

Mr. IVINS. Would not the latter part of section 3 protect every city in its right to its proportion of the school money?

Mr. VARIAN. Yes, it would protect the city in the right to the proportion of the school money, but to make a limitation as to what they should do with it is what I am complaining of.

Mr. IVINS. I do not understand that you can provide how the trustees shall use that money after it comes into their hands.

Mr. VARIAN. Your suggestion is that we must confine this high school system to local taxation. Leave out “local taxation,” or if you put it in, put in also, “if it shall be necessary,” and give us the benefit of what we do get from the State.

Mr. IVINS. We want you to have that.

Mr. THORESON. Mr. Chairman, my idea of the substitute is simply this, that we have now provided in the section for the common schools. We expect to provide money sufficient and sufficient only for the common schools of the State throughout. Now, more than that, my substitute here provides that any city or county or district may have a high school by a local taxation over and above that of the common school system, and the money appropriated by the State for common school purposes. Now, it would be confined {1227} not merely to cities of the first and second class. I object to that, because I happen to live in a city of the third class, and we want a high school, and I believe the people in the cities of the third class are willing to be taxed, but I do not believe it would be proper for the State to appropriate money to that high school, taking it away from the common school system. I believe it should be provided for throughout the State at the expense of the State, and no more money should be paid than is necessary for those schools, but over and above local taxation, should provide for the high schools.
Mr. ROBERTS. Mr. Chairman, I am not in favor of the substitute offered by the gentleman from Cache. I can conceive, sir, that in compact settlements, and large cities, such, for instance, as Salt Lake, that when that city shall draw the amount of school fund that is due to the city by reason of its school population, that they would have, perhaps, an excess of money over and above what is necessary to run their common schools, and in that event, for one, I would be perfectly willing to see such an arrangement made that that surplus means might be used in aid of running their high schools free. I think that the gentleman from Garfield, if he would accept an addition of one or two words to his amendment_to Mr. Varian's amendment, would cover the entire case. I ask the gentleman to state his amendment to the amendment.

The CHAIRMAN. The amendment is not before the house.

Mr. ROBERTS. No; I understand it is not, but I wish to get it clearly.

Mr. CHIDESTER. To add the three words, “by local taxation.”

Mr. ROBERTS. Now, I understand that objection is made to that, because it would prohibit these cities from using any surplus school fund that they might have in aid of their high schools. Now, the gentleman from Salt Lake suggested that if it were so arranged as to say “if necessary,” he would accept such an amendment as that. Now, I ask the gentleman, could he not make that addition?

Mr. CHIDESTER. I understand that they would be entitled to their per capita of money and that they could use that, and then the balance, of course, would have to be raised by local taxation. I do not understand that we could deprive them of their proper amount of the school fund.

Mr. ROBERTS. I understand that, but the idea is to give them the authority to use that surplus in sustaining their high schools.

Mr. CHIDESTER. Any arrangement that could be made that would allow them to use that money, I do not care where they use it, I have no objection to.

Mr. RICHARDS. Would you have any objection to passing this section for the time being in order that by morning we may prepare such a section?

Mr. VARIAN. I join in that.

Mr. ROBERTS. I will be very glad if that arrangement can be made.

Mr. VARIAN. Let the Salt Lake delegates see if they cannot make it satisfactory to the members of the house.

Mr. LUND. Mr. Chairman, I think we can dispose of this. I do not believe that the outside districts desire that Salt Lake City, if it prepares a child for the high school at thirteen years of age, which was the remarkable statement of our commissioner_I do not think that the outside counties desire that Salt Lake should not apply the pro rata that follows that child into the high school. It certainly would be unfair if we are educating children in the outside districts until they are eighteen years of age in the common school, that because a child in Salt Lake City was able to go into the high school at fifteen or any age younger, that he should not have any benefit of the State school fund. I believe the outside districts would be willing to accept, if an arrangement {1228} could be made, that word “necessary,” when it can be made to show that they had no opportunity for their high schools, that the high schools shall not be free in the same way that the common schools are free. I believe that the pro rata should follow every chlid as a duty of the State to that child until he is twenty-one years of age, no matter what school he may attend, and I should be in favor of accepting any arrangement that would let a part of the State school fund be used for those who are under twenty-one and are studying in the high schools, that it should follow them_that pro rata.

Mr. RICHARDS. I desire unanimous consent to have this section passed over until to-morrow. I am satisfied that we understand each other. The only question is to put it in proper form so that when it is presented here it will express the proper idea.

Mr. RICKS. Mr. Chairman, before that goes over I want to offer another amendment in line 4; after the word “university,” insert the following, “Fifth: And agricultural college.”

The CHAIRMAN. The amendment would be at this stage out of order.

Mr. EVANS (Utah). Mr. Chairman, I move you that it be the sense of the house that this matter go over until to-morrow.

Mr. KERR. Mr. Chairman, I am opposed to this motion. first, because this same section came up some time ago and was referred back to the committee. The committee has reported again and now the committee of the whole is unable to act upon it. We have been in session six hours. I move we arise and report progress.

The CHAIRMAN. That is not seconded.

Mr. PETERS. Mr. Chairman, I trust that this motion will prevail to let this go over until to- morrow, and I am satisfied that after each member has considered this section carefully, he will come to the same conclusion I have, that the evolution that is going on in the school system_that a binding down proposition should be offered in this Constitution, is a little surprising to me. Here we are trying to fix a system, which is to remain for this State. I do not think you can find a system set forth in any constitution_with the evolution that is going on in educational matters, it strikes me that the whole matter should be left to the Legislature, and the remarks that I have heard this afternoon have confirmed me to that fact. We cannot agree, it seems like, on any proposition. If it goes to the Legislature, I think they can legislate according to the progress of the new State.

The motion to postpone was agreed to.

Section 3 was read.

Mr. BOWDLE. Mr. Chairman, I wish to offer an amendment to that section as follows: In line 15, after “with,” insert “the State school tax shall be distributed among the several school districts of the State in proportion to the number of children in each of school age, as may be provided by law.”

I want to say just a word about that amendment. In the section as reported by the committee, we have fixed the school age, as far as this section is concerned, between six and twenty-one years of age. That is, the distribution of this fund shall be according to the number of persons residing in the district between six and twenty-one years of age. I think the wiser thing for us is to leave the Legislature to determine the age, and for us not to legislate upon that question, and therefore, I submit my amendment.

Mr. EVANS (Utah). Mr. Chairman, I move as an amendment that the words “twenty-one” be stricken out at the end of line 19, and that the word eighteen be inserted in lieu thereof. My reason for offering this motion is this, that the greater that we shall make the {1229} age wherein the common school fund is to be distributed, the less per capita will the fund be to the children of the State. Now, sir, I submit to you, that while I believe that the State owes to the children of the State a common school education_I believe, sir, that the age of eighteen will reach every purpose that is anticipated by the common schools. For an illustration, supposing the common school fund accruing from the sale of lands or interest thereon together with such taxes as may be levied for school fund purposes shall amount to one thousand dollars, I submit to you that if that shall be distributed between the children or among the children between the ages of six and twenty- one, that you decrease just one fifth from the purpose and the object of our school funds, if my proposition be true; that we want to educate the children with a common school education, and eighteen years of age will accomplish that object. Perhaps I might illustrate it better by saying to you that if there were only four children and they were entitled to one dollar each they would be entitled to one dollar each by reason of being four. Adding to that the difference of one more, it would reduce it down to eighty cents each for those five children. Now, this is the situation that confronts us in regard to these advantages, for the reason from six up to eighteen divided by four constitutes three in each department, adding on to the eighteen, three more, makes twenty-one, thereby being one-fifth of the age between six and twenty-one. I submit to you, gentlemen of the committee, that I have no objections to going just as far as we can in the education of the children of this State, but, sir, I desire to say that I think that the duty incumbent upon us first is to educate those between the ages of six and eighteen, and, I believe with the system that we have to-day that there will be no children who have a desire to attend school that will not have concluded the eighth grade in the common school system and be ready to advance into some higher departments. If, upon the other hand, there shall be one or there shall be a hundred within this Territory when they attain to the age of eighteen who have not attained to that position in the school system, they either will never attain to it, or else they will be of that class that are sufficiently ambitious, if that spirit shall take hold of them, that they will be able to assist themselves. For these reasons I am in favor of the words twenty-one being stricken out and let it be confined to the age of eighteen, that our common schools may receive the support necessary to carry into effect the object that I believe this Convention designs to carry out.

Mr. BOWDLE. Mr. Chairman, I am opposed to fixing any age in this Constitution. It is unusual to do so. If the Legislature can be trusted upon any proposition, it seems to me they ought to be trusted upon the proposition of saying between what ages this fund shall be divided, and I am in favor of leaving it right there. The question of age is a question now that is agitating the people throughout a great many states of the Union. Some states are looking upon it at one age and some at another, and if we say here what the school age shall be and provide by that means of educating the children_and we thereby in fact fix the age, we ought not to do that. We ought to leave it so that if it shall become necessary to make it eighteen, make it eighteen. If it becomes necessary to make it sixteen, make it sixteen, or whatever age may be necessary for the Legislature to fix it, and I am opposed for us here to put any age whatever in the Constitution.

Mr. CREER. Did you vote for the militia law that a person should serve from eighteen up to forty-five.

Mr. BOWDLE. I objected to that.

Mr. THURMAN. Mr. Chairman and gentlemen, I agree with the gentleman {1230} from Salt Lake, as to the question that this matter should be left to the Legislature, of determining the ages. The Enabling Act provides on page 3 that provision shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the State and free from sectarian control. There is a question in my mind as to whether we have a right to exclude from the public schools anybody that is under the age of majority, under that Enabling Act. It clearly says that the schools shall be open to all the children of the State, and everywhere in this country and other civilized countries males at least are considered in law minors until they are twenty-one years of age. But aside from what the Enabling Act says upon the subject, why is it not safer to leave this matter to the Legislature? Should we progress as we hope to do in our school system, the time may come that we will find that we have reached that degree of perfection or advancement that the children everywhere in the Territory at sixteen will be out of the common school or ready to advance, and should we reach a condition of that kind we might want to get away from this proposition that the age shall extend to eighteen or twenty-one: In any event, it is one of those questions in which it is absolutely safe to leave it to the Legislature to determine, as suggested by the gentleman from Salt Lake, and they may want to vary it from time to time. They may want to run a few years one age and change the age within which they are proper to be admitted to the free schools, and for that reason I favor the amendment proposed and I cannot see that it can do any harm and may be productive of great good.

The amendment of Mr. Evans of Utah was rejected.

Mr. PIERCE. Mr. Chairman, it seems to me that the amendment offered by the gentleman from Salt Lake, Mr. Bowdle, would be rather crude. Would not it be better to have it this way, “Shall be distributed among the several school districts according to the school population residing therein?” The article here would fit in better than Mr. Bowdle's amendment, because it says, “Such other means as the Legislature may provide.” The Legislature may provide other means in addition to the school tax. For instance, I would like to suggest one. Line four of this article says, “The proceeds of all property that may accrue to the State by escheat or forfeiture.” That is one of the means, or perhaps they might provide for a military tax. There are lots of ways in the different constitutions where they provide that whatever there is no other place for, goes to the school fund.

The CHAIRMAN. Do you offer that as an amendment?

Mr. PIERCE. I offer that as an amendment to the amendment, that the words “number of persons” and the words, “between the ages of six and twenty-one” be stricken out, and that in the place of “number of persons,” the words, “school population,” be inserted. Then it leaves it for the Legislature to determine who are the school population residing therein.

Mr. BOWDLE. I have no objection to that. It reaches the same point exactly. I will accept it and withdraw my amendment.

Mr. EICHNOR. Mr. Chairman, I am opposed to the amendment or amendments. When my friend, Mr. Thurman, said that he believed according to the Enabling Act the Legislature could not deprive any person under the age of twenty-one from attending the public schools, I think he spoke exactly correct, but I am in favor of standing by the report of the committee. I think Mr. Thurman is absolutely correct. Afterwards he seemed to wander off in different directions, but his first statement is sound.
Mr. EVANS (Utah). Why do you think it ought to be twenty-one?

Mr. EICHNOR. For the very reason that Mr. Thurman stated that all male persons of the age of twenty-one were considered in law children.

Mr. EVANS (Utah). What about females_would you deprive them of it at eighteen years?

Mr. EICHNOR. No, sir; this fixes it at twenty-one.

Mr. THORESON. What about the children under six years of age, according to the Enabling Act?

Mr. EICHNOR. A child under six years cannot testify in court. There is a legal term for that. It is a legal definition.

Mr. THORESON. Are there children under six years of age?

Mr. EICHNOR. No; they are babies, I suppose.

Mr. BOWDLE. Do you state, as a proposition of law, that a child six years of age can testify in court?

Mr. EICHNOR. Yes, when they are intelligent enough.

Mr. BOWDLE. You cannot find that in the territorial statutes.

Mr. EICHNOR. You can put that construction on it and if you have not read it, you had better go and look up the fundamental principles.

Mr. EVANS ( Utah). I would like to ask if they can at seven?

Mr. BUTTON. Mr. Chairman, I would like to vote on part of Mr. Pierce's amendment each time. Divide that.

The CHAIRMAN. I would rule that the question is indivisible.

Mr. BUTTON. The question of the population I think ought to go in. If it is a part of the amendment, I do not want to vote for it. I would want to vote for school population in the


The CHAIRMAN. The committee has the right to have it divided.

Mr. BUTTON. And the age I think is right.

The amendment offered by Mr. Pierce was agreed to.

Mr. RICKS. Mr. Chairman, I move we rise and report progress.

The motion was rejected.

Section 4 was read.

Mr. SNOW. Mr. Chairman, I move to strike out section 4. My object for moving to strike it out is this, that all the rights, immunities, franchises, and endowments that the university now enjoys will be ratified and perpetuated in the article on schedule, and it is unnecessary to repeat it here.

The motion was rejected.

Mr. RICKS. Mr. Chairman, I move an amendment, to strike out, in line 2, the words “of Utah,” and in line 5, “unto said university,” and insert in line 2, the following, “and agricultural college.” As the article now stands it implies a union of the university and agricultural college, and I believe that every gentleman on this floor will recognize that if the union takes place it would destroy the efficiency of that institution, and I believe that we ought to so arrange this article as to provide for a permanent separation of these two institutions.

Mr. IVINS. Mr. Chairman, I am opposed to the amendment offered by the gentleman from Sevier, for the reason I think the two institutions ought to be united, and for the further reason that when the next section 5 is reached, I have a plan of union which I wish to propose. I do not know that I need at this time to enter into any debate upon the question, as I shall desire when section 5 is reached to give my reasons for the position I take.

Mr. PIERCE. I would like to have your plan developed before we vote upon this.

Mr. IVINS. If the committee wish it, I will give them my proposed amendment to section 5. I will do it as a part of my remarks. I expect when section 5 shall have been reached to introduce an amendment which I will read to fill {1232} the blank, in line 7, with the following, “Logan, Cache County, until July 1, 1898, after which time it shall be located at Salt Lake City.” I believe I have some very good reasons, gentlemen, for opposing the motion of the gentleman from Sevier and in support of my proposition to unite these two institutions as proposed in this amendment, which reasons I shall be pleased to state more at length when the time shall arrive to offer this.

Mr. SQUIRES. Mr. Chairman, we have come up now to the consideration, as I understand it, of the most important part of this whole article of the committee on education. We are worn out

with a long day's session, and not in proper condition to discuss that matter. I therefore move that we rise and report progress.

Mr. THURMAN. Will you withhold that a moment? I desire to state this in opposition to it, if there is any motion to be made with reference to section 5, that we may know and understand what it is before we adjourn.

Mr. SQUIRES. We all know. Mr. Ivins has read it.

Mr. THURMAN. I do not know.

Mr. HART. Mr. Chairman, if the gentleman who made a motion to rise will withhold it one moment, I suggest that section 4 has not anything to do with the union question, and I am opposed to the amendment offered by the gentleman from Sevier, for the reason that that section, as it stands, is all right, and if, after considering section 5, the Convention should decide not to unite, a similar provision could be brought forward with reference to the agricultural college. I suggest that we do not rise now; that we vote down Mr. Ricks' amendment and then come to the question.

The question being taken on the motion of Mr. Squires, the committee divided and by a vote of 45 ayes to 30 noes, the motion was agreed to.

The committee then rose and reported as follows:

Your committee of the whole have had under consideration the article on irrigation and agriculture, including the report on forestry, and report said article for third reading. They also have had under consideration the article on education and school lands and report progress.

The Convention, then, at 5:26, on motion of Mr.

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