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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 26, 1895.

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

Roll call showed a quorum present.

Prayer was offered by Delegate Raleigh of Salt Lake.

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

Communication from N. W. Clayton, manager of the Salt Lake and Los Angeles Ry. Co., inviting the members of the Convention to an excursion to Saltair Beach, was read.

Mr. Ricks moved the invitation be accepted with thanks, and 2 p. m. Sunday next be the hour fixed for the excursion.

Mr. Heybourne moved as an amendment that the hour of 4 p. m. to-morrow (Saturday) be the time fixed for the excursion.

Mr. Evans, of Utah, moved as an amendment to the amendment that action on the invitation be deferred until the end of the session.


The committee on public buildings and state institutions reported as follows:

Convention Hall,

Salt Lake City, April 26, 1895,


Your committee on public buildings and state institutions report that they have had under consideration the various propositions referred to them, and submit to you for incorporation in the Constitution the accompanying article.

We return herewith files No. 24, 53, 84, 89, 102 and 127.



Ordered printed and referred to committee of the whole.

The Convention then proceeded to the third reading of the article entitled mines and mining.

Mr. EVANS (Utah). Mr. President, I would really like to be enlightened upon how that question got before this Convention. My recollection is that in the committee of the whole that matter was

killed. There was no report. It was not agreed that any report of that article was to be made in any way, shape, or form, as I remember it, and I should really like to know how that came before this Convention.

The PRESIDENT. It could not be killed in the committee. It was brought back to the house to be killed. The committee recommended that it be killed. In the effort to kill it, somebody brought in a substitute and that is now before the house.

Mr. EVANS (Utah). It would certainly have to be reported back here. As I remember it, it was not done. No action of that kind was taken and it is still in the committee of the whole if anywhere.

Mr. RICKS. Mr. President, as I understand it, the committee of the whole recommended that the article be stricken out_that is, not adopted, and I made a motion that the report of the committee of the whole be adopted, but it was voted down and that as a substitute brought the whole article up.

Mr. HART. Mr. President, there was no question but what the article came properly before the Convention. The committee of the whole, if you remember, struck out the three sections, but did not strike out the title.

Mr. EVANS (Utah). Isn't it a fact that the whole article was stricken out and wasn't that the motion that was made? Would not that include the title?

Mr. HART. I don't think it would.
Mr. EICHNOR. I arise to a point of order. I think this is wholly out of order. If Mr. Evans desires light, let him come over and find out.

Mr. HART. Mr. President, I think there is certainly a misunderstanding. As the secretary read last night, he read two of the sections that were stricken out, then came the motion to substitute or insert section three, a section from the Idaho constitution, and as the clerk read it last evening, just before the vote was to be called on the final passage of the article, he had sections 1 and 2 in there. Now, Mr. Chairman, it is very clear that this matter is properly before the Convention on third reading, but it is equally clear that sections 1 and 2 are not in here. There was a motion made by Mr. Ricks or some one else to adopt the report of the committee, but without that, those two sections would not be before this house, unless some one moved to insert them.

Mr. BUTTON. Mr. President, the first two sections were read and so was the third one, and when the third section was read, Mr. Kerr offered a substitute for section 3.

The PRESIDENT. I think the matter is legitimately before the house.

Mr. HART. I call for a ruling of the chair as to whether sections 1 and 2 are now before the house.

The PRESIDENT. There was a motion made by Mr. Pierce to adopt the report of the committee of the whole in regard to that article on mines and mining. It was lost. And in the mind of the chair the whole article was before the Convention.

Mr. HART. I call your attention to the fact that heretofore we have always taken up an article just as it was amended by the committee, and if the section was stricken out that section was not read here, and it was not considered that was before the Convention on third reading_unless some one moved to insert on third reading.

Mr. BUTTON. When those reports were taken up by the Convention, did {1528} not they always adopt the report of the committee?

Mr. HART. That is what I say.

Mr. BUTTON. Did they adopt the report of the committee in this instance?

Mr. HART. No; the paragraph was stricken out in committee of the whole. That paragraph is out unless it is moved to insert it on third reading.

The PRESIDENT. The ruling of the chair is that the article is properly before the house.

Mr. EVANS (Utah). Mr. President, I arise to a point of order. I submit to you, sir, that section 3 in substance has been before this Convention in the bill of rights.

Mr. SNOW. I arise to a point of order. The chair has decided this question. If he wants to appeal from it he may do it.

Mr. EVANS (Utah). Mr. President, I accepted that decision, and I make a point of order on the article itself. I am surprised at the gentleman from Washington.

Mr. HART. I would like to suggest to the gentleman that that objection should have been made at the time Mr. Kearns presented it. It is now too late. We have voted upon that. The only way to get this before the house now is on a motion for a reconsideration of that article that we placed in there, offered by Mr. Kearns.

Mr. EVANS (Utah). Is it a fact that we have passed upon section 3?

Mr. HART. Yes, sir; we voted section 3 in.

Mr. EVANS (Utah). Well, I must confess that I missed that from head to foot. I was here last night.

Mr. HART. Mr. President, the minutes of the last day show that I am right about this matter.

Mr. EVANS (Utah). Mr. President, if we can dispose of it in this way, I think it is the shortest

way out. Here is a rule. Because you have blundered over that, I want to ask the gentleman from Cache if he is prepared to say_there is no provision saying when that shall be done. It simply says it shall not be entertained.

Mr. EICHNOR. I arise to a point of order. I hold that this colloquy is out of order.

The PRESIDENT. The point of order is well taken. The whole of it is out of order.

Mr. RICKS. Mr. President, I want to know if the article on mines and mining is open for amendment?

The PRESIDENT. Yes, sir; the whole article is before the house. You can do as you please with it.

Mr. RICKS. Mr. President, I move an amendment in line 5 of section 3, to strike out the words, “useful, beneficial or.”

Mr. KEARNS. Mr. President, I accept the amendment.

Mr. EVANS (Utah). Mr. President, I move to strike the whole thing out_section 3.

Mr. ANDERSON. Mr. President, I would like to ask for information, if sections 1 and 2 have been adopted? Did the president rule upon that?

The PRESIDENT. The whole of it, of course, is open to amendment.

Mr. ANDERSON. Mr. President, I sincerely trust that this motion of Mr. Evans will not prevail. I think it is necessary that this should be in the Constitution for the development of the resources of our State. This section protects all classes of citizens alike; protects the irrigator, the agriculturist, the farmer, and those engaged in mining. It will be necessary for the people that they have roads to go into the canyon after timber, after wood, after lumber, or after building rock, and these roads will pass over the lands of others. As the State increases in population all of these lauds will be taken, and it will be necessary for the public use that they should have these roads_    
Mr. HART. Mr. President, I arise to a point of order. The motion of the gentleman from Utah County, to strike {1529} out this section, is out of order, for the reason that we voted this in last evening. The only way that he can bring that matter up is on a motion to reconsider the vote of last evening.

Mr. EVANS (Utah). It has been amended this morning.

Mr. THURMAN. I will ask if it has not been amended this morning and changed entirely?

The PRESIDENT. It has been amended and changed this morning.

Mr. HART. They had no right to amend it. We agreed upon that just as it was last evening.

Mr. THURMAN. Yes, that has been done; it is too late, as you said awhile ago' to raise the question.

Mr. HART. Mr. President, even if a few words have been stricken out, you cannot strike out the rest of it. If you have stricken out a few words of it you can raise the objection to striking out the rest of it.

Mr. ANDERSON. Mr. President, it is also necessary for the development of the desert lands of our State that canals be taken out from our streams and rivers, and in order to take these canals out, it would be necessary to cross the lands of others. This is a public use and I think it should be so declared and also for the manufacturing interests of our State. I think that in the future our cities and towns and our homes will be lit up by electricity and heated by electricity, and this power will be gotten from the mountain streams, and in order to develop these canals will have to be taken out. This, I contend is a public use. And also for the purpose of drainage. The health of the whole town might be at stake. Large canals may have to be constructed in order to drain a town or the farming lands of the community. This is a public use, and I think that we should insert it in the Constitution. And in regard to mining, we find that mining claims are located often in inaccessible points in the mountains, and it is necessary that they go upon the lands of others for tunnel sites and dumps and tramways, etc., in order to develop the mineral resources of the State. I think that this is very important, and it affects every citizen. Therefore, I hope that this will not be stricken out.

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

Mr. CHRISTIANSEN. I wish to offer an amendment.

Mr. SNOW. I arise to a point of order. The previous question has been called for.

The PRESIDENT. Before we put the previous question, it strikes the chair that this section second_there was a question raised in regard to it last evening, that there is something there that may work improperly. I wish the Convention would look at it before we proceed.

Mr. JAMES. Mr. President, I hope the Convention will not order the previous question until this matter has had a chance to be debated.

Mr. THURMAN. Mr. President, now, I will admit that you cannot debate this, but I would like to make one explanation. I arise to a personal privilege. This matter, Mr. President, yesterday afternoon came up in a very peculiar way. After having been killed in committee of the whole, after the house was well nigh empty of its benches, a great many members had gone out, it came up here and was rushed through, and we asked that the matter might go over until this morning in order that an explanation might be made. Now, this morning the previous question is moved to shut off debate. I want to say to you, gentlemen, it takes fifty-four to pass this article, and you are not going to do it unless you have a fair, full discussion.

Mr. BUTTON. I arise to a point of order. The previous question was moved.

Mr. RYAN. Mr. President, I would {1530} like to ask the father of this third article_

Mr. LAMBERT. I arise to a point of order.

The motion for the previous question was rejected.

Mr. JAMES. Now, Mr. President, I wish to make a few remarks upon this section, and I wish to say before proceeding to make any remarks that this is one of the most extraordinary proceedings that has ever occurred in this Convention, since we have convened.

Mr. CREER. Mr. President, I arise to a point of order. Is he speaking on any motion?

Mr. JAMES. Yes, sir; I am speaking on the motion before the house before any amendment is offered. I claim the protection of the chair.

The PRESIDENT. What is it you are speaking on?

Mr. JAMES. I am speaking on the amendment before the house, offered by Mr, Ricks, or I do not know who.

Mr. RICKS.. I arise to a point of order, The amendment was accepted and it is not before the house.

Mr. JAMES. Then, I am speaking on the entire business.

Mr. EVANS (Utah). Mr. President, I submit to you that I made a motion to strike out.

Mr. HART. Did the chair rule that that motion to strike out is in order?

The PRESIDENT. Yes; I did. Mr. James will proceed with his argument.

Mr. JAMES. As I was about to say, this is the most remarkable proceeding that has come before this Convention since it has convened. And I am astonished, Mr. President_I cannot understand this proceeding. I cannot comprehend why on yesterday evening a proposition of this nature was sprung upon us, or attempted to be forced through, and this morning attempted to be put into our Constitution, without ever being heard from by a member upon this floor. Now, you know, Mr. Chairman, that in the beginning of the discussion of this question I was strongly in favor of extending to the mines and other industries of this Territory rights that I thought should be granted them for the purpose of their development, but I knew I was treading upon dangerous ground, when I even conceded in this Convention that this Convention had the right to declare the right of way over a man's ground for private purposes, but I believed that it was the best thing that we could do for the benefit of this mining industry, and this matter was voted down. It was disposed of by this Convention, and now here comes a sweeping proposition before this

Convention, that if it goes into the Consitution [*note*], in place of benefitting the industry will become one of the greatest obstacles and hindrances to it that it is possible for men to put upon the statute books of this State. Now, I assert that no man that understands his business as a miner, that has followed the business as I have followed it, will say the contrary of what I have repeated before this Convention. And, Mr. President, if you want to bring nine-tenths of the vested property holders in mines in this Territory to vote against this Constitution, you pass your act as you have attempted to put into It our Constitution and you will get it done. Now, mark my word. I know what I am talking about. I have prospected this intermountain country from the British Possessions to Mexico on the south. I have been at the business for the last thirty years. I have observed it in all its ramifications, and I know what the miner wants, and I know what he does not want, and I will tell you, Mr. President, no miner wants, after his years of toil in the hot suns and in the snows, and in the storms, and in the exposure that he goes through, to secure the piece of mining property_he does not want any set of men to come upon his ground and declare that erecting hoisting works for private purposes, to work some {1531} other man's mine, is a public use. Now, think of the proposition_coming onto a man's ground and erecting hoisting works for private uses and declaring it for public purposes.

Mr. KEARNS. May I ask the gentleman a question right there?

Mr. JAMES. Yes, sir.

Mr. KEARNS. I understand that this says, “hereby declared to be a public use and subject to the regulation and control of the State.” Is the future Legislature going to send a man onto your claim to put a shaft down?

Mr. JAMES. The future Legislature should have no business through this Constitution to be permitted to perform such an act.

Mr. KEARNS. You are afraid the future Legislature might not be as intelligent as this house.

Mr. JAMES. I am not afraid of the people anywhere. I have confidence in them, but I am afraid of this Constitution, if it proposed to do such things as it is proposed to do in this act.

Mr. CRANE. May I draw the gentleman's attention to one section of the preamble and bill of rights? If you notice in section. 23, it says that private property shall not be taken or damaged for private use, unless by consent of the owner.

Mr. ROBERTS. I think that was stricken out.

Mr. JAMES. Mr. President, now, about ten or twelve years ago, within twenty miles of this town, there was a mining claim that has paid out in this town since that period, for over one hundred thousand days' work, that would have been subjected to closing absolutely under this provision, and that labor that has been paid for, never one dollar of it would have been expended. Now, that is a matter that comes directly under my observation. Here is a mine located, it is worked at one end of the claim. The workers of that mine do not know where the ore is going, but near the other

end of the claim, or partially towards the other end of the claim, up on the mountain side, come some fellows, and locate a worthless claim, and commence to dump down. At that time the surface ground that was owned by the right of patent from the government, that was then of no value, except surface purposes, that had been granted by the government, and five dollars an acre paid for it. Now, supposing those men that spent twelve thousand dollars there, trying to get into the mine, had called a jury under some legislation, and condemned that surface ground and paid for it, what would a jury have said it was worth? Why, they couldn't have said it was worth more than a few dollars_maybe five or ten dollars, or twenty dollars an acre. It would not have amounted to anything. They could not conscientiously say anything more, but by and by when the owners of that property developed their property, until they found it was necessary for them to erect hoisting works right where that dump came, what would they have done? This surface ground, which in the wisdom of the government of the United States had been given to the miner, for the purpose of enabling him to develop his claim, was owned by somebody else, and had been taken away from him, and he found it impossible to go ahead there and open his mine. Now, that is the condition, and that is just what this proposition proposes. It is proposed to put the thing into a shape so that through some accident the surface ground of a miner may be taken away from him at a time when there is no particular value to it, and by and by, when the ore extends under that ground, and it is necessary for him to go upon that ground and upon his mine and work it, it is owned by some other institution that has nothing of value, that cannot come in there and utilize it, and he is shut out, and he has got to pay those men back again after securing that land from the government {1532} of the United States. Now, that is the provision that it is intended to compel us to accept in our Constitution. And I say to you, it is a most vicious thing, in my mind, that has come to my attention since this Convention has convened, and I hope that this Convention will see to it that no such thing is put into our Constitution. I hope that they will do what is right, give a right of way of roads or anything of that kind, for the working of mines, and do not allow dumps or hoisting works. Why, Mr. President, how long will it be until there will be a right of way through your shaft for public purposes_a right of way through your tunnel for public purposes? Why, you are opening the door here to the most dangerous proposition that was ever heard of in the world, and I cannot believe that this Convention will be so indiscreet as to adopt a proposition of that kind.

Mr. BOWDLE. Mr. President, I want to say just a few words. I do not want to go over what was discussed days ago on the question of eminent domain, and all that kind of thing, but this is a very queer article in some regards. It starts out with the necessary use of lands for construction of reservoirs and storage basins. Now, necessary to whom? It does not say to the public. Under that section, any man could claim that there was a necessity for him going across, over, or through any other person's land, and if he could make it appear to a jury that that was true, it would go right through. It raises the question here, do you own your land or does some other man own it? Under that section there is no guaranty to property in this Territory. We have now a guaranty of private property to the private individual, and it can only be taken for public use
something that will benefit the people, but in that section there is no such thing. Any one man can claim that he has the right to go across his neighbor's land. Gentlemen, I take it that this Convention is not a wealthy body of men, and I want to say to you that if you count the wealthy people who will suffer_it will be the poor people under this section who will suffer, and don't you forget it. The wealthy man is always able to take care of himself, and the wealthy corporation

is always able to take care of itself, and to get just what it wants, and it usually does. If they do not do it in one way they do it in another way. And it is the poor fellow that needs the protection, and it is for the poor man that I would urge my objections against this section. I do not care whether he is a miner or agriculturalist. Suppose you have a claim down here, be it a mining claim or be it a land claim, I. do not care which it is. Some man wants to go across there. He claims that it is necessary for him to go across there. You say that it is not any necessary use, you don't want your place cut through that way by him. Your only relief against that individual man is a lawsuit; no difference how poor you are, the only relief you have got is a lawsuit. That is all, you have got to do it. And if he is a wealthy man or a wealthy corporation, he don't care for a lawsuit_not a particle, when he can carry his point and compel you to give that that you don't want to give. You don't have to give it, that is true. There is a provision here that you are to be paid for it, but I submit to you, gentlemen, that is not sufficient.

The question is, do you want to be compelled to sell out, at some other man's price, your own property? That is the question. If you are willing to give this privilege to compel every man in this Territory to sell his property at some other man's price, then put this in there and you have got them. That is what it means. You have not anything to do with saying what the price is, and probably you have had enough to do with juries to know they are not {1533} to be entirely trusted in those regards. You may want that as a whole. It may have a peculiar value to you. You would not sell it under ordinary circumstances for an ordinary price. They say to you, “This man can go across that way.” A neighbor on the other side says, “We want a way across there.” It is necessary for him. He has a little patch of land over on the other side, he wants to get water to. This law gives him the privilege of going the other way. There is absolutely no limit to it, the way you have it here_positively no limit. Now, I tell you what is the trouble with the gentleman. Some of us have known individual cases where some stingy fellow has sat down and has said that where it was absolutely necessary, some other man should not go across his property for public benefit, and he has caused a great deal of trouble, and we have concluded that this would remedy that. It may remedy that, but it brings the other evil that I have just been speaking about, and I tell you that whenever you invade the right of private use, you take away a very sacred right, a right that is guaranteed to every man in this broad land. Now, gentlemen, I am opposed to it, upon those principles, and shall vote against it, and vote against the article on its final passage, if that is put in, because I cannot conceive of any real reason why that article should go in there and thus put property of every individual in this Territory up as against the property of his neighbor.

Mr. EICHNOR. I would like to ask Mr. Bowdle a question. The last line or two of section 3 provides that these uses are hereby declared to be public and subject to the regulation and control of the State.

Mr. BOWDLE. I do not think It means anything.

Mr. EICHNOR. Mr. Bowdle, who is the real owner of the property of the State?

Mr. BOWDLE. I say that the Legislature is not_answering your question in the negative.

Mr. EICHNOR. I will put my question fairly and squarely, and I want a fair and square answer. Who is the real owner of the property in a state_the individuals or the state?

Mr. BOWDLE. The individuals own. it, and the state cannot lay its hands upon that private property solely and except for public use.

Mr. CANNON. Did you ever come across a principle in law that an individual simply has the title to the land and the real owner of the land is the State?

Mr. BOWDLE. I do not think that that has anything to do with this question. That is an old theory, I admit, but I do not believe that it has one thing to do with this. Where are you putting the title, Mr. Eichnor?

Mr. EICHNOR. I am asking the question of you and you fail to answer.

Mr. BUTTON. I would like to ask Mr. Bowdle a question.

Mr. BOWDLE. I would like to answer Mr. Eichnor. I say that the people own the property and not the state, and there is no principle of law in this. world that lays down that the state owns it.

Mr. THURMAN. May I ask you a question?

Mr. BOWDLE. Yes, sir.

Mr. THURMAN. If the state owns the property, as suggested by my friend Eichnor, is there any need of this article in here at all?

Mr. BOWDLE. Absolutely none, and it would be a perfect absurdity.

Mr. BUTTON. I want to ask Mr. Bowdle_he says that the last three lines of this section do not amount to anything.

Mr. BOWDLE. No; I said legislative control.

Mr. BUTTON. I understood you to say that it did not amount to anything.
Mr. BOWDLE. I say I do not think {1534} it does amount to anything in this. It would take me an hour to answer you what it means and what it amounts to. It amounts to robbing one man for the benefit of another man. That is what it amounts to.

Mr. KIMBALL (Weber). Mr. President, on this third section of the mining article I have a little something to say, and as my friend from Beaver told us (Mr. Anderson), I am in favor of that article. I am in favor of it for this reason, that God Almighty when He created this world, created Utah with the rest of the world, as my friend suggested_San Juan among the rest. It will not be doubted or questioned that irrigation is a principal factor in developing the Territory or State of

Utah. There cannot be any question about that, and while it is true that most of the water rights in Utah are vested, at the same time agriculture is one of the principal factors in the development of this State, and must be for all time to come, and it is necessary in order to develop the agriculture that we have our ditches that we have, irrigating canals, and we want those, and so far as this Constitutional Convention has gone now, there is no provision for it, and the third section, as read by the secretary, provides for that. In my opinion it is necessary that this Convention adopt that article, so that leaving mining out of the question altogether_for the benefit of agriculture it is necessary that we adopt that article so that we can have the right of eminent domain so far as water ditches are concerned. It is equally necessary to develop our mines that we have the right of eminent domain so far as water ditches and drainage and dumpage is concerned.

Mr. JAMES. May I ask the gentleman a question? Having proceeded to develop our mines and our agricultural resources in this Territory_have not we been doing it for the last twenty or thirty years?

Mr. KIMBALL (Weber). Yes, that is true, but we are changing our condition now from a Territory to a State.

Mr. JAMES. Did not we do it under a statute of the Territory and under a statute of the United States?

Mr. KIMBALL (Weber). We did, and it is very indefinite, and all that depended upon the decision of judges entirely. There was no statutory regulation of it. It depended upon the decision of judges, and it depends now if you don't adopt this article. While the law remains the same, it depends upon the individual judgment of the men that we elect to the bench, and I say put it into the Constitution, so that the judges cannot evade it in any way, so that when the question comes up, therein the constitutional article that we have got the right to exercise the right of eminent domain for the purpose of agriculture, for the purpose of mining, and for sanitary purposes. That is what we want.

Mr. THURMAN. Do you consider mining a public purpose?

Mr. KIMBALL (Weber). In this Territory, yes, sir; I do consider it a public purpose.

Mr. THURMAN. Do you consider agriculture a public purpose?

Mr. KIMBALL (Weber). I do in this Territory.

Mr. THURMAN. You consider all of these so?

Mr. KIMBALL (Weber). I consider every industry mentioned in that third section as read by the secretary a public purpose. We are in an anomalous condition.

Mr. THURMAN. Then, let me call your attention to section 23, which provides for taking property for public purposes.

Mr. KIMBALL (Weber). That is all very true. Now, the third section as proposed in this mining article, sir, declares what public purposes are. Private property cannot be taken for a public use without just compensation. The section that we have now under consideration does not affect that section {1535} at all, but it simply says what shall be public uses, and in this mountain country certainly mining and agriculture are a public use. They must be.

Mr. THURMAN. I agree with you that they are and that the courts will so hold. Now, I will ask you another question. Is there anything in this section that is before the Convention that is a private use?

Mr. KIMBALL (Weber). No, sir; I do not think so.

Mr. THURMAN. Then, why declare it to be a public use if it is already a public use?

Mr. KIMBALL (Weber). I will tell you why. There is a division of opinion among the judges east of the Rocky Mountains and west of the Rocky Mountains as to what is a public use, and I say now, to settle that whole question, we want to put in our Constitution what is a public use.

Mr. THURMAN. Suppose there should be something here that is strictly a private use_can we make it a public use by simply declaring it so?

Mr. KIMBALL ( Weber). Not by that section, no, sir; I do not think the section that we have under consideration contemplates the making of a purely private use a public use, but we are shut off here by the mountains. We are an agricultural community, and we are a mining community, and if you take the decisions of the states east of the Rocky Mountains, where there is no irrigation ditch, there is no mining ditch, there is nothing that we can do that would not be a private use, as construed by the decisions of the courts east of the Rocky Mountains. We are following the decisions of those courts. Now, what we want to do is_we are here situated so that we are obliged to have an education. We are obliged to have mining, and we want to declare those things public uses. That is my point exactly.

Mr. THATCHER. I am not an attorney, gentlemen of the Convention, but the doctrine announced by my friend from Salt Lake is quite a new doctrine to me. Until he had made the statement that the people had no property, but that it was all in the State, and that all the people had was the title thereto_it had occurred to me heretofore that title, for instance, the United States patent, was irrefragable evidence of ownership. I desire to call the attention of the Convention to this fact that this whole mining business was condemned by this Convention, nothing having been left, as I understand it, except its title, but by peculiar methods we find this thing presented to this honorable body for re-discussion. It may be that we are able to give a definition of what is for a public purpose, and when we do we restrict the Legislature to that definition. You will remember, gentlemen, that the irrigation bill was mainly killed because those who presented the bill advocated the control of the water right by the State.

Now, gentlemen, I have some property in this Territory, which under such a condition or under the last two lines of section 3, which is now before the house with a motion to strike out_I am

perfectly willing to give that property to any gentleman on this floor_my houses and lands, and barns, and horses. The only condition that I would require is this, pay the taxes on that property, keep it in good repair, keep my carriages and buggies and harness just as good as they are now, feed my horses and keep them fed, just leave the control with me, and that is all I ask. When you want to use the horses I will be there to tell you that I have the control of them. If I don't manage better in the future than I have in the past, why then I will think myself no financier. That is just what these two lines do_the very thing that we fought against and killed by almost unanimous vote on this floor. But we find it introduced here again. Many {1536} private matters declared to be a public, and those matters placed under the control of the State. I object to it and shall vote for that reason against that section. I shall vote for striking it out, feeling, however, that if attorneys well versed in the law can draw a section, after mature deliberation, that will give the proper definition of what is for a public purpose in order to keep it out of the courts, the expense of litigation that must follow, well and good, but the first two sections I am opposed to_this appointment of a new officer to go to coal mines, who is taken charge of by the manager of that mine, taken into every part of it, where there is no danger, he goes back and reports that all is right, and in three days afterwards there is a fearful explosion and a dozen or fifty or a hundred lives lost. I am opposed to this section and to the bill as it stands, and shall vote for striking out section 3 on that proposition.

Mr. BUTTON. I would like to ask the gentleman a question. He spoke about creating a new office. Have they already got a coal inspector or a mine inspector?

Mr. THATCHER. Yes, sir; a thing we ought to do away with.

Mr. BUTTON. It would not be a new office then?

Mr. THATCHER. It would be a new office of the State, I take it.

Mr. KIMBALL (Weber). I would like to ask Mr. Thatcher a question. Is not irrigation one of the prime necessities of the Territory?

Mr. THATCHER. I think so, and equally so in mining. I am just as favorable to the provisions of mines as I am to agriculture.

Mr. KIMBALL (Weber). What objection have you, then, to declaring those public uses?

Mr. THATCHER. I would have no objection if that section defined what I would conceive to be a public use, but when you build on other people's property hoisting works and dumps and things of that kind, without reference to

Mr. KIMBALL (Weber). Under that section you cannot do it, without a jury or some other legal tribunal.

Mr. THATCHER. If that is so, let the court pass upon the whole question.

Mr. ROBERTS. I would like to ask who it was that presented this section.

The PRESIDENT. The chairman of the committeee on mines and mining.

Mr. ROBERTS. Mr. Kearns. I thought I had heard some attempts to find out who the father of this child was, but I could not locate the matter. From my knowledge of the character of the gentleman I should never have thought that he would have hesitated to have proclaimed his progeny, but, sir, I would really like to know when this Convention is to consider a question settled. Now, sir, there are several things in this Constitution that I would like to agitate, but the Convention has been against me and against some of the propositions that I favor, and I have accepted the action of this Convention.

Now, sir, I remember that this subject was up for discussion when the very first article presented in this Constitution was brought upon the floor of this Convention, and after several days of debate and earnest effort to come to an understanding in regard to what would be proper, just, right, and prudent, we settled the question, and we settled it, sir, upon contrary principles to what are laid down here in this third section. When the taking of private property for private uses and the taking of private property for public uses was under discussion, the decision of this Convention in effect was that those matters should be left to the Legislature and to the courts of this country. Then, sir, this question was brought up again on this article of mines and mining and we went over it, sir, again in the committee of the whole, and again we {1537} rendered a verdict against such a thing as this third section is, and after the entire article was stricken out by the action of the committee of the whole, then we are again confronted with the self-same proposition. Now, sir, it seems to me, that men ought to learn to take defeat of their proposition when majorities are against them, and I think it is a foolish waste of time to bring up again and again and again the same old proposition. Sir, I look upon this section as crude_extremely crude, and as containing things that are mischievous in their nature. The gentleman from Salt Lake, Mr. Bowdle, discussed this question, saying what could be done with private property if some individual should say that it was necessary. Why, sir, it may not only be claimed_he need not claim that it is necessary. It shall be sufficient for the accomplishment of his purpose under this language if he can only say that it is for some useful purpose.

Mr. KIMBALL (Weber). Does not the court have to pass upon the question of necessity or use before it can go to a jury?

Mr. ROBERTS. Then, sir, if it does, why not permit the court in the first place to define the useful and the public purpose at the same time?

Mr. KIMBALL (Weber). For the very reason that the majority of the decisions are that this is not a public use. We are here peculiarly situated. We want to declare what is a public use. If you go east of the Rocky Mountains, the things we declare here are a publice use are not a public use there.

Mr. ROBERTS. I was not aware that the words “useful and beneficial” were stricken out, but, sir, I take it that we shall all be equally safe, the miner, and the agriculturist, and the manufacturer, if

this question is left to the Legislature and to the courts, and if there is any meaning in the last phrases of this section, that is where it hinges. At any rate is it to be declared to be a public use and subject to the regulation and control of the State?

Why not leave it in the control of the Legislature in the first place? And then here is another sweeping proposition that I cannot understand the reason for, and that is to make use of these necessary lands for the various purposes named, not only for the purposes declared here, which I am of opinion mean a private rather than a public use, in some instances, but to the complete development of the State. I would like to ask the gentleman who drew the article what he means by that? He will have an opportunity of speaking and I shall watch his speech very closely to hear his definition of that purpose. And, sir, I protest against this continual bringing up upon the floor of this house a snake that has been killed time and time again, and I think that we ought to stand by the decisions that we have now twice rendered upon this subject.

Mr. CREER. Why was it that you continually brought up the female suffrage question after it had been voted against?

Mr. ROBERTS. Mr. President, in inanswer to that_there was an opportunity here yesterday to bring back the article on rights of suffrage the whole of it. I wish to call the gentleman's attention to the fact that I voted against bringing it back here and throwing it open for discussion, and I wish to say further on that proposition that that question was not brought back, only as it appeared in the committee of the whole, and then in the Convention, but this question has been decided in the committee of the whole. When the article or bill of rights was discussed in committee of the whole it was killed then. It was brought upon the floor of the Convention and killed then. It was brought again in committee of the whole, on the article of mines and mining, and was. killed then, {1538} and then it was sprung upon us as a. surprise yesterday afternoon. When the article on irrigation also_

Mr. KIMBALL (Weber). May I ask you a question? Wasn't it understood when it was killed in the bill of rights that it could be brought up subsequently in this Convention in an appropriate article?

Mr. ROBERTS. I have no such understanding.

Mr. KIMBALL (Weber). I so understood it.

Mr. SNOW. Mr. President, I think the discrimination that this body will be able to exercise will convince them that the insinuation of Mr. Roberts in relation to foolish waste of time is not well taken. I want to remind the gentleman that this section, as reported by Kearns, has taken the usual parliamentary routine, and that it has come legally and in order before this body, and it has not been a foolish waste of time, except upon those who would like to see it adopted. They have not taken any undue advantage, neither have they brought it before this Convention at any other time than when it could come regularly and legally before it, and according to parliamentary rules and order. I would like to ask the gentleman of what use mines or agriculture will be without these rights of way? Whether they will be of any use whatever, whether it be public, or whether it be

private use? Now, you take an arid region, and if we do not have the right to condemn lands for storage basins, for reservoirs, or for canals, and ditches and flumes, the land will be of no use to us whatever. It will neither be a private use nor a public use. This is substantially the law to-day. There is a territorial statute that confers substantially the rights of this section upon all the agricultural lands and settlers, and I submit that in all arid regions these rights are absolutely necessary to the maintenance and perpetuation of agricultural life, and I can see no way when it is left to the control of the State of any poor man being imposed upon, but I can see where poor men who wish to congregate themselves together and unite their labor and capital would be unable to condemn the land of some corporation or some rich man without they had this defined as a public use. They could not build a reservoir; they could not construct canals to their lands, because of a standing in the way of those who held this land, and they might be, as it were, a dog in the manger contending for prices that these men could not meet and could not obtain. I am not in favor of this going through without just compensation being first made, but I think it is an eminent domain_that land could be condemned. It is entirely different in relation to water. We can get plenty of land, but we cannot get water. I think the circumstances are entirely different, of those who refer to striking out the water article for this purpose. I think their point is not well taken for these reasons. We have lived under this statute which has been recognized all over the Territory for many years, and I see no reason why we should not perpetuate it.

Mr. IVINS. Mr. Chairman, I want to call attention of this body to the fact that this question has never been before this Convention until this morning, notwithstanding the remarks of other gentlemen to the contrary. In the bill of rights there was nothing said in regard to the declaring of certain property or certain things to be public uses. And that was one of the objections, that private property shall not be taken or damaged for public use, without just compensation. That was section 23, as it was originally reported. Then, that private property shall not be taken for private use, unless by consent of the owner, except for private ways of necessity and for reservoirs, etc. The very objection that was raised to this was that that was private property taken {1539} for private use, and that those uses were not declared to be public. That was one of the objections raised to it.

Mr. ROBERTS. I will ask the gentleman from Washington if he does not remember that the gentleman from Salt Lake brought in or submitted a substitute which made a declaration of public purpose only, and that was discussed and discussed?

Mr. EICHNOR. That was Mr. Van Horne.

Mr. IVINS. Yes, but it was not exactly in the same terms that this is, from my recollection. Now, let us go on a little further. It has been said that this question was settled when the report of the committee on mines and mining was introduced here; that is not the case. The section reported from the committee on mines and mining provided that the necessary use of lands for rights of way, for tunnels, flumes, etc., was declared a public use, and the objection was raised here that agriculture was not included in this, and consequently members refused to vote for it, because they said it was a discrimination between mining interests and the agricultural interests, so that in order to meet this objection the chairman of the committee on mines and mining introduced the section which is now before us, which provides that not only for mining, but for agricultural

purposes, these shall be declared public uses. And I contend that in its present form it has never been before this committee for consideration, therefore, this ground is not well taken. Now, the gentleman says the article is crude. That may be the fact, but if it is crude, let us perfect it, and not leave it in the indefinite condition that it is. I apprehend, gentlemen, that a greater injury_a greater hardship will be wrought upon the poor farmers of this Territory, unless this section is adopted, than can be possibly wrought if it shall be. There are objections to it, certainly, grave objections, to leaving this question without some declaration. There are railroad corporations now in this Territory that control vast areas of land, with unlimited means behind them, to contest the right that might be claimed by any body of farmers to construct a canal across their lands, and such matters confront us now in the northern part of this Territory, where canals are contemplated and railroad companies absolutely refuse to grant the right of way to the poor men who are seeking to construct them. Now, I shall vote for the passage of section 3, just as it is, unless some member can amend it and make it better. I am willing to assume a part of the responsibility for it, in connection with the chairman of the committee on mines and mining, of which I am also a member, and I do not think there will be any hesitancy at all upon his part in assuming the fatherhood of this child.

Mr. VAN HORNE. Mr. Ivins, do you remember the fact of an amendment to section 23 of the bill of rights that public use should include reservoirs, flumes, tunnel and mill site, and dumps, upon, and rights of way over and across the lands of others for railroads, roads, tramways, water ways, and drains, which was amended by the gentleman from Salt Lake (Mr. Richards) to include pipes, conduits, etc., for mining, milling, domestic, agricultural, and municipal purposes?

Mr. IVINS. Yes, I remember that something of that kind was_    

Mr. VAN HORNE. More carefully worded I think than this, and that was voted down by the Convention?

Mr. IVINS. I remember that something of that kind was introduced, but I submit, notwithstanding the fact that that amendment might have been voted down, it might have been very materially different to the one that is now before the house, from the fact that the insertion of a few lines would have changed the status of the whole question. {1540} Now, I am free to admit that when this question was first under discussion I was very much inclined to the opinion that such a section should not be inserted in the Constitution; but the more I thought of it, the more I reflected in regard to conditions that exist in the sections of country from which I come, where I know that canals and reservoirs are now under course of construction, and I know that in order to utilize that water upon vast areas of desert land, it will be necessary to pass over the lands of others. I have concluded that some such provision as this is necessary, and I believe that we will make a greater mistake if we omit it than if we insert it.

Mr. HOWARD. Mr. President, I am in favor of this section being passed, and I recollect, as Mr. Van Horne mentioned, about the amendments introduced by him. I know that I voted against them at the time, but they were not in the shape that this present section is. This section was introduced here last evening, as a substitute for the one introduced by the committee; it provides “and subject to the regulations and control of the State.” That does not mean that the State shall

take the control of everything in the State and furnish the means to carry it out with. It does not mean that the State shall furnish the means to develop mines or to develop the farming industry, or anything of that kind, but it means that the Legislature shall control it in this way, that they might provide means whereby these rights of way may be obtained. The Legislature may provide under this section that the price, be what it may asked by the individual, shall be paid for this right of way, or it may provide that the property may be condemned by condemnation proceedings and a valuation placed upon it. It may provide that that valuation and that price shall be paid before the property shall be taken. And the Legislature may also provide in regard to what is a necessary use. This says a necessary use of lands. It is left to the Legislature to provide what that necessary use is. Now, we have in the Enabling Act_Congress has given to the State of Utah, several million acres of land, and it is to be presumed that two or three millions of that will be agricultural land. There is no man on this floor that will get up here and say that we have water at the present time for watering one million acres of land that is not appropriated, without it is some_probably Green River on the east, which I don't know of a place now where there is that much land that water could be taken to, but for the sake of the agricultural college, for the university, for the sake of our public schools, for the sake of these various institutions, for which Congress has given this land, I say that this section is necessary, because what use is that land to the State without it can be developed? What use is it to the poor man to take up and farm on the desert without he has the right to construct a ditch or a canal and get the water to it, or to build a reservoir. where he can store the water before he takes his canal? I claim, Mr. President, that the adoption of this section will increase the value of the public lands of this State in a great measure, and be a means to furnish and to guarantee to the poor man or to others that may want to take up this land, the right to take canals or ditches to it to develop it. I believe that the section ought to pass, and leave it to the Legislature in what way it shall be disposed of.

Mr. VAN HORNE. Mr. President, I thought that this Convention would make a very great error if they passed this section worded as it is at the present time. I am in favor of a general declaration, carefully worded, of public use, including necessary extended works for the purpose of irrigation, development, and mining, but I want to call the attention of the Convention to some of {1541} what I consider the weak points in this article under consideration now. The first part of the section is, “the necessary use of lands for the construction of reservoirs or storage basins.” I think it entirely proper to designate that as a public use, because a reservoir or storage basin we know from the nature of things is not the particular use of an individual, but the use of a more or less extended operation of the community_of the public at large. So far the article is all right; following on down, “or for rights of way for the construction of canals, ditches, flumes, or pipes to convey water to the places of use for any necessary purpose,” is all right. They should have those rights of way, because it does not interfere with the title to the land, nor to the general use. It is simply a way of conveying something useful to the public across the private property of another and only gives them an easement_a right of way for that purpose across that land, and is not taking the private property of the individual. Notice, however, gentlemen, now how the section reads, “or for drainage.” Not saying that it is necessary drainage. It does not say that it must be necessary, nor that this shall be a public use, but if it is convenient for some one, or desirable or it is their whim that they drain a certain portion of land, then they can do this. There conies in a semi-colon “or for the drainage of mines.” Simply a matter of convenience or necessity, whether a man might want to put up a pump to drain his mine or not. You say by this

article whether it is for the drainage of mines, whether it is simply convenient or not, he can condemn the land of others in order to get across it with drainage pumps. Further on, “or the working of the mines.” I know that it is necessary_I know that it must be necessary before he can do that, but the working of mines generally is a public use, so that if it is more convenient to work them in one way than in another, he can say that the way that is most convenient to him, or that he considers most desirable, is a public use and that consequently he is entitled to condemn the land for that use. It goes on, “by means of roads, railroads etc.,” declaring them as necessary means of development, and then to show that it does declare them as necessary in the way that the man who owns the property and works it may judge best and most desirable for him, and says, “or other necessary means.” These are necessary and any others that the court may construe may be necessary also. Now, gentlemen, see how far it goes. They are necessary uses, what for? Not for the reasonable development of these mines, which would be held to be a use by which the mines could be worked and the fruits thereof enjoyed, by the man or company owning them, but are other necessary means to their complete development. What does it mean? Did you ever hear anything so broad? It means that if by adding any of these rights_taking any of these rights away from the individual, you can make a more complete development of this in that way, than you could in the other_a more desirable one to the man who owns the mine, and you can condemn the land of another man for the purpose of so doing.

Mr. KEARNS. This section says, “the necessary.” Now, you can go on and argue fundamental principles of it all day. The State has the control of it, has it not?

Mr. VAN HORNE. What portion are you calling attention to?

Mr. KEARNS. The first three words in the last two lines.

Mr. VAN HORNE. I was calling at-tion [*note*], not to the opposition to the general declaration of a public use. I was calling attention to the fact that this article in my opinion is artificially drawn_that it goes further than any man on this floor intends such an {1542} article to go, and the way it is constructed_separating that first paragraph from the ones that come afterward, it leaves it open to construction that would be just simply ruinous of the rights of private property in this Territory. I am not opposed to the proposition, as I said before. I introduced the section on public use after consideration with eminent legal gentlemen in this town, for insertion into the bill of rights. It was drawn carefully and hours were spent upon it by men who are known to the community and bar here, and to the courts, as men of eminent ability. I believe that there should be a declaration of public use that will give our courts_will impose upon our courts the necessary duty of saying when certain things come up for a condemnation on the ground that it is a public use, that mining and irrigation are public uses, and where the necessity can be shown to carry them out, that the courts should give to the men desiring the right to exercise eminent domain over the property of others_

Mr. IVINS. I would like to ask the gentleman a question. The gentleman says that he is in sympathy with the general idea of this provision, but that some parts of it are dangerous. I want to ask him if he cannot suggest an amendment?

Mr. VAN HORNE. I could suggest an amendment if it is in order.

Mr. RICKS. Mr. President, I move that this article go over until tomorrow to allow the gentlemen to agree upon some proposition to be presented to the Convention.

Mr. ROBERTS. Let us settle it now.

The PRESIDENT. The question before the house is on the striking out.

Mr. MORRIS. Air. President, I consider that to strike out this section 3 or to kill it_it means to kill enterprises and industries of every kind in the new State. That is just my opinion in a few words, but it may not be perhaps exactly right from the wording. Some might take advantage of it to the in jury of his fellows, but I think that an amendment of a few words, it can be made a benefactor to a new State, and we cannot afford, gentlemen, to throw any obstruction whatever against the interests of mining and agriculture, for we all depend on it, and I favor to place this section 3 in the Constitution that it may stay there as long as the power is given to the Legislature to regulate and govern and to control these matters.

Mr. THURMAN. Mr. President and gentlemen of the Convention, I am in favor of the motion to strike out. If I could offer any amendment that would accomplish what gentlemen in good faith seem to want to accomplish, I would gladly do it, but I am unable to do it, and it seems that the gentlemen of this Convention are unable to do it. Now, I want to read two or three lines of this proposed substitute and ask every gentleman upon this floor if he desires any such control to be given to the State. If we will read the first line or a part of it and omit all of the specifications down to the general provision at the close, it brings into plain glaring light what this Convention is now asked to do. “The necessary use of lands * * * * to any use necessary to the complete development of the material resources of the State.” The meaning of that, gentlemen, is simply this, it does not mean mines and mining alone. It is not agriculture, but under this section you cannot imagine any industry in which one single man can engage, if it is for the complete development of the resources of the State, but what eminent domain here is proposed to be exercised in his behalf. A complete development of the resources of the State, gentlemen, means right to strike one lick towards the completion of it, and in order for a private citizen who has a little herd or flock of ewes up in the mountain, a dozen or so, and he wants to develop a {1543} little spring of water_of course that is necessary to a complete development of the resources of the State, that he should have the right to do that_and in order to do that, it is necessary that he should have the right to subject the land of every individual in the State, so far as necessary to that complete use. And so it is with any industry that you can conceive of or imagine, gentlemen. I tell you there has never been a proposition brought before this Convention that is as vicious as the proposition we are now considering, and if I stood alone, gentlemen, I would vote to strike it out. And when we ask gentlemen on this floor, “Do you think mining is a public use? Why, yes. Do you think agriculture is a public use? Why, yes.” So do I think so, and I say, being a public use, we have provided for it so that there can be no escape. If I ask, “Gentlemen, do you want to subject private property to a private use? 011, no.” Then, if you want to subject it only to the public use, why not rely on section 2 of the bill of rights as, nearly every state of the Union has done? I tell you, gentlemen, you want to subject private property to private use, and it is not in

the power of this Convention to say that the property of one man shall be taken from his pocket and put into the pocket of another. You cannot do it, gentlemen. The courts will say that your Constitution is unconstitutional. It is unquestionable.

Mr. KEARNS. Have not all the states got this provision?

Mr. THURMAN. Idaho has it, and Idaho has had other provisions, gentlemen. Idaho is not a model for me to follow its legislation.

Mr. KEARNS. Any more of them got it?

Mr. THURMAN. Its legislation is unconstitutional and has been, and every member on this floor knows it. I do not look to that quarter for light upon the question of what is proper legislation, and if Idaho did it and if it followed some other state that illyconsidered the question, what has that got to do with us here? I will tell you, gentlemen, if this Convention were to say to-day that one man might put his hands into the pocket of another and take his money out and put into his own_if we should declare that, next year when New Mexico comes to adopt a Constitution, and wants the provision, it would cite the Utah Constitution as an example. That is where we lead to. Gentlemen, let us stand on what we have done three or four times in this Convention. Let us strike this out like men, and say that it must be hands off when you come to touch the sacred rights of private property, unless it be for a public use. Now, coming to that question, one moment and I will conclude. I say that mining is a public use. I say that agriculture is a public use, and the courts of Utah will hold it to be a public use, so far as it is a public use; but when you depart from the public use and bring it down simply to a private use, you have no more right to do that than you have to go and take a horse of your neighbor, simply because it is doing nothing and you can use it to develop completely the resources of the State. That is what the State could do under this provision. Gentlemen, I might just as well be frank with you. I tell you, you cannot adopt any provision by which you can declare that a private use is a public use. You cannot do it. The courts in the end will decide that question.

Mr. HART. Will the gentleman permit a question? Supposing a farmer, the owner of a tract of land, say 164 acres, to get water on the land has got to take a ditch across the land of his neighbor, he has either got to take the ditch across the land of the neighbor or build an expensive levee, almost equal to the value of his land. His neighbor refuses to permit him to take a ditch across that land, although {1544} just compensation is offered for it. Does the gentleman understand that under our present law the owner of that 160 acres of land could compel his neighbor to permit a ditch across that land, or would he have to either abandon his land or construct the expensive levee?

Mr. THURMAN. I do not know; the courts would decide that question, and if the court decided that it was purely a private use, I say let him abandon his land. If you cannot get property without taking you neighbor's property from him, you are not entitled to it. That is the ground I stand on.

Mr. HART. Suppose another case. By taking five acres of your neighbor's land you build a storage basin and reservoir, which will irrigate a few acres of land. Your neighbor refuses to

permit you to have that live acres of land, although you are willing to pay double and treble the value of the five acres. Would it be to the interests of the State to abandon the use of all the land that might be utilized by constructing that reservoir, or would it be to the interests of the State to require that individual to give up his land?

Mr. THURMAN. I think the courts would hold it to be a public use, but the courts ought to decide it. That is the ground I stand on. It is not for this Convention here to decide that question.

Mr. KEARNS. Is it not a fact_you are a lawyer, Mr. Thurman_that the courts of California, Pennsylvania, West Virginia, hold that it is not a public use?

Mr. THURMAN. Well, I am not familiar with all the decisions. I know that it has been held each way, but I take the position again, that after all we have got to be bound by the courts. Your declaration here is not worth the paper it is written on. You cannot take the private property of an individual and give it to another private individual, and you cannot say that whereas it is only a private use now, by the simple ipse dixit of this Convention we are going to make it a public use, in order to get around the question. You cannot do it.

Mr. VAN HORNE. Is not it a fact, that by declaring a public use, we put upon our courts the burden where there was a conflict in authority of deciding that under our law, that public use held by some to be public, and by others to be private_to hold under our law that it was public?

Mr. THURMAN. I will tell you what I think about that, Mr. Van Horne. I think that the courts of the Territory would be governed by the great consensus of public opinion as to what was the public use. We cannot get around that. Courts ought not to be governed by public opinion, but on a question of this kind, they would take judicial notice of what the people generally believed to be of material interest for the public use. That is what I think about that, but I do not think it would have any weight any further than being merely directory.

Mr. JAMES. Is not there a distinction between the proposition put to you by Mr. Hart, where something is for a public use for the whole people, and the provisions of this section. Is not this first law in the interests of the private individual?

Mr. THURMAN. I think so; I cannot see it in any other way. If it was not so, then we would be willing to rest on section 23.

Mr. ANDERSON. I would like to ask Mr. Thurman a question. If all these matters are left to the courts, what is the use of our having a Constitution at all?

Mr. THURMAN. The matters we have got involved in this question are left to the court; I do not say that every matter is left to the court; this is, decidedly.

Mr. GIBBS. Is it not a fact that there are thousands of acres of land so situated in Utah at the present time that {1545} we have to take our ditches across private property in order to enable us to water our lands?

Mr. THURMAN. I think that is true; and I want to say, gentlemen, in answer to that, that I have been more or less connected with the farming interests all my life, and been acquainted
with farmers and have associated with them. And I have heard less complaint about this very thing than most any other thing that we have had under consideration_less complaint among farmers. They always work these things out mutually between themselves, down in our section of country, and they will do it unless we put in something here that will come back to plague us.

Mr. FARR. Mr. Chairman, I have listened with a good deal of interest, part of the time, and part of the time I have been mortified and chagrined and have all sorts of feelings to realize that this assemblage_body of men had plenty of time and all the time there is approaching to spend. Why, I have sat contented. I have tried to be contented at least, although I was aware that there were a great many that had business at home, that wanted to get through to attend to it, but it does not seem to me this Convention, the way they argue and talk, expect that our future Legislatures were going to get any men that had sense or ability, but that all the ability is centered right here. Well, now, I want to say to you, I have not the least doubt but what some of the men here will be in the future Legislature, so we must not despair that we have got all the ability here. We have got plenty of law on all these subjects that we have been talking about to-day. All these things have been contradicted satisfactorily by the courts, and why cannot we leave this matter to the Legislature? Why should we spend so much time? We might spend here day after day, and when we get through, be further apart than we are now. Why cannot we leave this matter to the Legislature to manage? As I said before, there is plenty of law now already enacted to manage all these cases, and after we have made all the laws we can, if we could get to work and establish this section, and the courts would have it all to settle there; it has got to come there, because there won't be any person that will feel it his right to settle upon it. It has got to go to the courts, and we have got an abundance of law that if there is not_let the next Legislature make the laws. Why should we spend our time here and legislate for things that the future Legislature can provide for just as much as we can?

Mr. CHIDESTER. Mr. Chairman, I move the previous question.

The previous question was ordered.

The roll being called on the motion to strike out section 3, the result was as follows:


Evans, Utah
Kimball, Salt Lake
Larsen, L.
Lemmon Lewis
Lowe, Wm.
Peterson, Sanpete
Robison, Wayne
Van Horne

Kimball, Weber

Larsen, C. P.
Lowe, Peter
Murdock, Beaver
Murdock, Wasatch
Murdock, Summit
Peterson, Grand

Evans, Weber
Low, Cache

Robinson, Kane
Spencer Strevell


The president declared the motion carried and section 3 struck out.

Mr. HART. Mr. Chairman, I move that sections 1 and 2 be stricken out, and the title.

The motion was agreed to.

The PRESIDENT. The next business is the schedule and future amendments.

Mr. ANDERSON. Mr. President, I would like to offer the following sections: “The Legislature shall provide_“

Mr. SQUIRES. I arise to a point of order. We have now stricken out not only every section, but the title to the article.

The PRESIDENT. There is nothing left. It is gone.

Mr. HART. Mr. President, I move that the report of the committee of the whole on the subject reported by the committee on schedule, future amendments, and miscellaneous, be adopted.

Mr. IVINS. Mr. President, as an amendment to that motion, I move you that the report of the minority of the committee on schedule, future amendments, and miscellaneous, upon the question of prohibition, be adopted.

Mr. SQUIRES. Mr. President, I submit that that is hardly in order. It is the reverse of the other proposition. If we do not adopt this other report, we will have to adopt the minority report.

Mr. IVINS. Mr. President, I wish to say, I do not care to go into any debate upon this question, but I would like to show that the motion was made in that way, and I call for the roll call.

The motion of Mr. Ivins was rejected.

Mr. HART. Mr. President, examining the report of the committee of the whole, I find that the minutes do not make it clear as to what action was taken in the committee of the whole upon this

matter. Therefore, I modify my motion that the majority report of the committee on schedule, future amendments, and miscellaneous, be adopted. That will make it clear then what we are voting on.

The roll being called on the motion of Mr. Hart, the result was as follows:

Larsen, C. P.
Lowe, Wm.
Lowe, Peter
Murdock, Wasatch
Murdock, Summit
Evans, Utah

Kimball, Salt Lake
Kimball, Weber
Peterson, Grand
Van Horne

Larsen, L.
Murdock, Beaver
Peterson, Sanpete

Robison, Wayne

Evans, Weber    
Low, Cache    
Robinson, Kane

The president declared the majority report adopted.

The Convention then resolved itself into committee of the whole, with Mr. Ivins in the chair, and proceeded to the consideration of the article entitled “Corporations other than municipal.”

Section 11 was read.

Mr. SNOW. Mr. Chairman, I am opposed to the substitute for this section. One reason is I do not think the authors of it will attain the object for which it was offered. I see considerable harm in it. It provides, if I understand it correctly, that every corporation that is organized shall pursue one line of business only, and if they undertake any other kind of business they would of necessity be obliged to incorporate again for that special business. Now, I am aware that in a great proportion of this Territory, particularly in the southern portion, there are a great many co-operative stores, whom this would effectually destroy. In Iron County and in Beaver County, and in nearly every city, there are co-operative stores, they have a store, saw mill, lumber mill, shoe factory, tannery, roller mill, and woollen mill, or something of this kind consolidated and combined, and if this

section were to obtain and be put in the Constitution, it would effectually kill their co-operative measures and would be a source of inconvenience and great financial loss to these people that are engaged in this kind of industries. We expect and hope at some future day in our own county to establish such industries in such a manner. Now, if to obviate this we are under the necessity of incorporating separately, it will be at great expense, and I submit, Mr. Chairman, that if the advocates of this substitute are right when they say that the same board of directors could act, they virtually nullify what they wish to obtain. If the same board of directors can act in these various corporations, the same capital will be invested. The same persons will control it, and have it under their control, and all that will be gained by it will be separate corporations with increased expenses. I submit that we cannot legislate against capital in this way. That to prevent legitimate investment, they will get around it in some way. And I submit and contend {1548} that if we endeavor to do it, in this way, we will ruin more than we will build up, and we will do more harm than we will good. I am opposed to this section for these reasons, and I think there are no good reasons why it should be incorporated.

Mr. HOWARD. Mr. Chairman, I am opposed to the substitute offered by the gentleman from Davis, and one of my main reasons is this, our laws now provide, and I presume will continue to do so, that private property shall not be held for the debts and liabilities of corporations. If that is so, and this substitute was to be passed, four or five or six men, as the case might be, get together and conclude to go into certain classes of business of three or four different kinds, and they would incorporate under those several heads, the same men would incorporate three or four or five different incorporations, and all they would have to do to make money would be to borrow a lot of money for one particular corporation that they were interested in and they might invest money in the others to advance their interests. This particular corporation that they borrow the money for the use of would break up and go out of business, and whenever those parties they borrowed the money from would look to the assets, it is not there, and the private property that belongs to them in their corporations could not be taken. I don't believe it would be right to place our corporations in any such a condition as that, and I am opposed to it.

Mr. JAMES. Mr. Chairman, I want to say a few words regarding the amendment of Mr. Roberts. I will say to Mr. Roberts that I appreciate his motives, that I know that he is endeavoring to protect the people, he is working in that direction; but I do not believe he appreciates or realizes the impossibility of his amendment to cover that which he is endeavoring to do. On the other hand, I believe that it will produce just the contrary to what his efforts are intended for. Now, his amendment says that one corporation shall be engaged in one business solely, Now, what is the result? I want to call the gentleman's attention to what has occurred in our intermountain country under his provision, and of course It would occur under this just the same. Take for instance the milling and mining proposition of the Comstock. There the mines are under an incorporation. The milling is under a separate incorporation. The mining incorporation is controlled by the same men that control the milling corporation. Now, what is the result? They sell the stock in the mines to the public down to just a bare majority, so that they can remain in control of these mines. That stock goes out among the people. The stock in the milling corporation is not sold at all. That is all locked up. Now, what do they do? They go to work and they make a contract with themselves, between the two companies, and charge the men for milling the ore all there is in it. They take the whole of it, and now the result is the company that is controlling the mine through

their having two incorporations robs the stockholders in the mining corporation. Now, that is what my friend wants to obviate, I know, and it is what every man on this floor wants to obviate, but the movement he makes gives us no advantage at all over that condition of things. Take the Co-op. as an illustration. We will say for instance they wanted to do the same thing as these gentlemen do over on the Comstock. Now, they have the manufacture of boots and shoes and the manufacture of overalls and shirts, and they have a general merchandise. Now, supposing they have three incorporations, the managers of these three incorporations say, this is a pretty good scheme, we will hold the stock of the general merchandise, we will let the stock of the boot and shoe and the {1549} stocks of the others go out among the people, keeping barely control so that we will manage these things. They turn around and they sell material to make the same boots, overalls, etc., and charge such a price for these articles that there is nothing left in profits to any one of the three corporations, excepting the merchandise one. Now, don't you see that there is an imposition upon the public and you cannot cover it by the amendment offered by the gentleman from Davis? And I say, Mr. Chairman, that if I thought this amendment would in any way protect the public, that it would amount to anything more than an inconvenience, why, I would vote for it, but I am firmly convinced that it would only add inconvenience in the way of extra incorporations and extra meetings, and an extra expense and nothing at all accomplished.

Mr. SQUIRES. Mr. Chairman, I spoke upon this amendment when it was before the committee of the whole, night before last, and at that time I intended to call attention to something in the second section of this article, because I wanted an opinion from some of these legal gentlemen here as to its force in connection with this proposed amendment. I want to know before I vote upon this what force those words, “provisions of this Constitution,” may have upon this proposed amendment.

Mr. THURMAN. I understand that it means provisions of the Constitution relating to incorporations.

Mr. SQUIRES. Well, that would be this particular amendment among others?

Mr. THURMAN. Yes; anything we adopt.

Mr. SQUIRES. Would it then require that all the corporations now in existence would have to accept this provision and shall confine itself to one single line of business, no matter how it is. now incorporated, and how it is conducting its business? Now, it seems to me, that is an important question to consider in connection with this proposed amendment, and until that is cleared up I should certainly vote against the proposition as submitted by the gentleman from Davis.

Mr. BOWDLE. I think I asked that question the other evening. I had my own opinion about it, and it was answered by some one. I do not recollect. whether it was Mr. Varian or the chairman of the committee.

Mr. SQUIRES. Mr. Varian had gone home. He could not very well have answered it.

Mr. BOWDLE. The answer was that it would not affect the corporations that are already in existence. I do not think that we could make a Constitution here_fix a constitutional provision here that would compel any corporation now existing, during the lifetime of its charter that had been granted, to change that charter. I think that that is a thing that is fixed_anything with. reference to the control of the corporation on general laws but not affecting that charter. I do not believe that we can change that contract. It is virtually a contract with the Territory and that corporation so long as that charter life shall last_that it shall be entitled to carry on its business according to the charter. That is my understanding of it.

Mr. SQUIRES. Then I submit that we should have two different methods of doing corporate work in this State. One company would be allowed to transact three or four different kinds of business. Another company would be restricted to a single line of business. One corporation could deal in the sheep industry and in connection therewith could buy and sell wool. One company could engage in mining and milling and another company would be restricted simply to mining, and if they wanted to put up a mill on their property to mill their own ores, they must be at the trouble and expense of another incorporation. {1550} I believe it would be making an unfair distinction between the business interests of the coming State, and for that reason, if for no other, I should vote against it, and I do not believe in the principle of the proposition anyway.

Mr. KIMBALL (Salt Lake). Mr. Squires, do you not believe that the original section would have the same effect?

Mr. SQUIRES. I do not, because under the original provision any business which is named in the charter can be conducted, but no other business. A company incorporates for two or three different kinds of business. They can transact all of that business under their charter, but it must be specified in their charter.

Mr. MALONEY. Mr. Chairman, I do not think it needs the opinion of a lawyer to inform this Convention that no vested rights are interfered with or attempted to be interfered with, by the substitute proposed by the gentleman from Davis. All corporations now in existence can go on and transact their business authorized under their charter precisely as though this amendment had never been incorporated, in the event it is incorporated. Now, I want to say to you, gentlemen, that the object of this is to prevent, in the future, corporations doing these things. I want to say to the Convention that the Z. C. M. I. will not be interfered with; they can go on and do their general mercantile business, and do their manufacturing business, because the substitute offered by the gentleman from Davis does not apply to them. Corporations formed for mining and milling can go on and do their mining and milling as though this article had not been adopted. I will tell you what it does interfere with. Take, for instance, the Pullman charter; they incorporated there for the purpose of building Pullman cars; instead of confining themselves to their legitimate business, they founded and built a city; they establish waterworks, gasworks, and went into the real estate business generally.

Mr. SQUIRES. Would not they be prohibited from doing that under this section as presented by the committee?

Mr. MALONEY. Not when they are already incorporated, but it is intended for the benefit of the people in the future. So I say it does not interfere with any vested rights. Now, is it fair to incorporate a railroad company in this Territory and allow them to run coal mines, health resorts, cattle ranches, sugar factories, and everything? Why, if you do that, no private person can compete with them. I want to say to the gentlemen of this Conven-that this does not interfere with the Utah Company in any particular, but it is to prevent, as I say, the blanket corporations for the purpose of monopolizing all the interests and business of the Territory, all enterprises, under one head. I say it is wrong, and the amendment ought to be adopted, and I will vote for it.

Mr. JOLLEY. Mr. Chairman, I am not aware where the gentleman from Weber got his change of heart, being he is one of the sub-committee. I will state that I am not in favor of the substitute. I was up in the committee room and in the sub-committee on this article, and we talked the matter over_this single theme arrangement, and we felt as though it would curtail capital, that there were many institutions that have been established in this Territory for many years in the past that it would cripple, and that they were so small, yet they have branches that would not pay them to incorporate into two or more corporations. This matter was talked up, and I will state here, Mr. Chairman, that nothing was put in this article but what the sub-committee fully agreed upon. I was not there at the presentation to the committee in full, but I supposed that they had all agreed upon it and {1551} we discarded the one and accepted the other_section 11, as it now reads, as it was broadened; and it would encourage and would allow the present institutions to go on with their branches of business and not cripple them. I consider, Mr. Chairman and gentlemen of the committee, that we should legislate here for the benefit of the whole, for the benefit of the men of wealth, as well as those that have not got wealth. As was stated to-day here, by some gentlemen upon the floor, that the delegates of this Convention were not all wealthy men_they are not all wealthy men, but we should consider that that is most beneficial to both parties. Therefore, I trust that the substitute will not prevail. for it will work many hardships, and curtail the interests of the capitalists that we want to invest and to be encouraged in our Territory and in our future State.

Mr. RICHARDS. Mr. Chairman, I hope the motion to adopt this substitute will not prevail. I have not heard any good reason assigned why it should be adopted, and I think that a great many good reasons can be assigned why it should not be adopted. The section as it stands is sufficient protection against any harm that might result from silence in the Constitution on this subject. Why should not a corporation be organized to transact more than one kind of business? I have heard no good reason assigned for it. I do not believe that any good reason can be assigned why that should not be so. The proposition that is offered is an unusual one, and one that might result in a great deal of injury. Now, it has been said that the adoption of any article or provision in this Constitution cannot interfere with vested rights; that is true. But what are vested rights? That is the question. The gentleman from Weber, a member of the committee on corporations that reports this article, intimates that it would be a vested right to interfere in any way with the conducting of business as now organized. I am not so clear about that. It is true that if they had been incorporated under a law that did not permit amendment or provide that any modification could be made in the laws creating them or regulating them, it might be so, it might be an interference with that which might otherwise be regarded as a contract; but the supreme court of the United States has held that Congress may interfere with charters that have been granted and may change them in this Territory, and if Congress may do that, why may not the State do it, as a

State? And it seems to me that there would be a great danger in this provision in section 2 that has been referred to, that it might operate prejudicially on corporations that are now in existence. But, independent of that, whether that be so or not, it seems to me that there can be no good reason why this amendment should prevail. If the articles of incorporation set out the purposes for which the corporation shall be created, and it shall only be permitted to do such business as is specified in the articles, then the public are protected. They understand and comprehend at once what is expected of the corporation and they know what they are dealing with.

Mr. JAMES. Mr. Richards, you have observed in section 2 that it says in order to benefit by future legislation, they shall accept of the provisions of this Constitution. Would not that practically compel every corporation, or else they would be left in a position so they could not have the benefits of future legislation?

Mr. RICHARDS. Well, I will not express a positive opinion on that subject, because it is a question that I think even lawyers might differ upon, and I do not believe in off hand opinions; but I do believe this, gentlemen, that we are legislating here in the fundamental {1552} law, that we ought not to enact anything that is ambiguous and uncertain and that we do not know what it means; that is what I say, and the great objection that I have in this article is that it is so legislative to its character and not fundamental that the greater part of it has no place or ought to have no place in the Constitution of this State. The chairman of the committee will excuse me for speaking in this emphatic way. I say it with no disrespect to the committee, but it does seems to me that the committee has fallen into the error of placing into this article a great deal of matter that ought never to enter into the Constitution of the State, because it is not necessary. Now, I make no particular objection to the provision as it stands in the original article here in section 11. I do not believe that that is necessary, but still I do not object to it, because I do not see that it will cause any particular harm to let it remain there. It simply encumbers the Constitution with something that might be dispensed with, but there are provisions in this_

Mr. SQUIRES. Would not that section, as it is, be a certain sort of protection to the stockholders of a company who might not be interested in the management of it? They would know by that that no other business could be transacted except that authorized by the character_no speculation or gambling business.

Mr. RICHARDS. That would be, but for the fact that it is a rule of law that is absolutely inflexible that if they were silent the law would construe it to mean the same thing; that is to say, a corporation cannot in the very nature of things do legally anything more than is specified in the articles of incorporation. So that if we were entirely silent upon that question, the protection is absolute and complete upon that point. So this is simply a declaration of what the law is now.

Mr. SQUIRES. I understand, Mr. Maloney claims the Pullman Company has been doing this and doing it legally. They were chartered to build Pullman cars and they were building cities.

Mr. RICHARDS. I do not know what the charter of the Pullman Company is, but I undertake to say that if the Pullman Company was chartered for the whole purpose of manufacturing railroad cars and they undertook to build cities and do the other things suggested by the gentleman, as I

understood the company did do, it was acting ultra wires and could have been stopped from doing those things. The state could have interfered, the stock-holders could have interfered, and the matter could have been stopped; but we cannot in a constitution legislate in such a way as to prevent people from doing things that are unlawful and illegal. That is not authorized by law. That we cannot do. We can lay down some fundamental principles, and as I say, I find no fault with this section, because it is simply a declaration of law that exists independent of this.

The committee thereupon took a recess until 2 o'clock p. m.


The committee re-assembled at 2 o'clock.

Mr. ROBERTS. Mr. Chairman, it is not my purpose to detain this committee in the consideration of this question, as I believe that the mind of the committee is made up as to the action it will take in regard to the substitute, and I am not about to launch a speech of any considerable length at least. But I do wish to say, sir, that in drawing this substitute I do desire if possible to present something to this Convention that would alleviate the prospective difficulties and evils that might grow up in our new State by reason of incorporated power. It is quite possible, sir, that the principle in this substitute is impracticable and may not reach the evil at which it is leveled, and {1553} I am almost in despair at the prospect of drafting anything that would be equal to the occasion of resisting the evils that grow out of corporate powers. And it is quite possible, sir, that we shall have to rest our case ultimately upon the spirit of the people, which I trust shall' be of that nature that will lead them never to sit quietly down while corporate power rivets collars upon their necks, and brands them for its own. Many years ago, when perhaps I was more impressionable than I am now, I read with burning interest the great debates that occurred in the British house of parliament on the trial of Lord Hastings, wherein inquiry was made into the proceedings of the East India Company, and I became satisfied then that if there was one thing which more threatened the liberties of a nation than another, it was the organization of just such companies as this, just such corporations, which could grow in dimensions until they could be compared only to some huge octopus with power to throw a tentacle over every possible resource of the country, crush out all competition, and enslave the people. I saw, during my reading of those interesting cases and arguments, the truth of the old adage that corporations have no bodies that you can kick, and they have no souls that you can tempt, and they are the most difficult things to contend with that ever confronted our civilization. My attention, however, sir, has been called to the last section of this article on corporations, and I believe that that will mitigate much of the evils that exist to-day in regard to corporate powers, in that it will prevent, if properly executed by the officers, and if proper laws shall be drafted in pursuance of its provisions by the Legislature, combines and trusts to control production and the prices thereof. I must confess that I did not discover all the virtues that are in that section, and this will make it easy for me to do what I intended to do before I got through, namely, withdraw the substitute that I offered for section 11, if my second will consent to that. Certainly, sir, it was not my intention to draft any measure or urge any measure upon the Convention that would look to the destruction or look to impairing small corporations that are engaged in the small manufacturing establishments. The only object that I had in view in drafting this section was to prevent great corporations with

millions and perhaps scores of millions behind their backs invading our Territory, laying a paralyzing hand upon the resources which, as I think, ought to be left for the people.

My friend from Ogden this morning called attention to the evils that accrue out of the corporation known as the Pullman manufacturing establishment, the evils that it brought upon the people of Illinois, the abuse of its powers, threatening for a time civil war in our land. Outwardy all was fair and beautiful, and yet, sir, when the blanket was lifted, and the inside workings of its operation could be observed, it was found to be like the gilded sepulcher, fair to the view but inwardly full of dead men's bones and rottenness. The tourist had been charmed with the prospects surrounding the workmen at Pullman, but upon a close investigation of its affairs, instead of being a benefit to the workingmen it was discovered that it was but an engine of oppression and held the fortunes of it semployes in its own hands. It was to prevent anything of this kind arising in our State that I was anxious that something of this kind as indicated in the substitute should be provided, not to interfere with small manufacturing establishments. And I must think that the construction placed upon what is one general line of business has been drawn altogether too narrow, as I take it in these debates; and yet, sir, I must confess that I have been convinced that {1554} this measure would be impracticable in reaching the objects for which it was intended, and therefore if the second to my motion does not object, I will withdraw the substitute.

Mr. THATCHER. Mr. Chairman, I would call the attention of the committee to section 1, that corporations may be formed under the general laws, but shall not be created by special acts. Now, section 11 might leave the construction that corporations should be formed in this section under special acts, and for that reason I would propose, after the word charter, in the third line, “as specified in its articles of incorporation.”

Mr. RICHARDS. Mr. Chairman, I think I comprehend the object of the gentleman's amendment, and if it were necessary I should concur with him; but the word charter, as used there, I think has a clear signification only of the means or article by which it was incorporated, whether that be by agreement of incorporation, or articles of incorporation. Whatever the article may be called, is the charter. That would be the legal interpretation of the term, I think. I do not think it would be held to mean a special act.

Mr. THATCHER. I am a little inclined to think that section 7 would have a doubtful construction, but inasmuch as special acts are prohibited in section 1, I think that this section should be so amended as to make it clear that no special act of the Legislature was necessary.

Mr. MALONEY. Would not the word “specified,” right after the word authorized, meet your amendment?

Mr. THATCHER. Not clearly, no, sir; I do not think it would. Of course, I am not particular on this, but I think it would save a good deal of trouble.

Mr. SQUIRES. Why not strike out the word charter and introduce “articles of incorporation?”

Mr. THATCHER. I have no objection to that at all.

Mr. SQUIRES. I move, then, that it be so amended.

Mr. CANNON. Mr. Chairman, the object desired to be attained by Mr. Thatcher's motion, and also by Mr. Squires's, I think we all agree with exactly, but from my understanding of the interpretation placed upon the word charter by the legal gentlemen who have spoken_I think the word charter is broader than articles of incorporation. It might possibly embrace more. For that reason, I see no reason for the change.

Mr. EVANS (Weber). Mr. Chairman, it would seem to me better to leave “charter” in there, and add “articles of incorporation.” If an amendment would be in order I would make that as an amendment. Then, if the Legislature does grant a charter, such as they sometimes do_

Mr. JAMES. I think, Mr. Chairman, that will cure the dissatisfaction.

The amendment offered by Mr. Evans, of Weber, was agreed to.

Mr. RYAN. Mr. Chairman, I think I realize the object of the committee in introducing that section, but I do not see that it accomplishes anything. I move that the entire section be stricken out.

Mr. ROBERTS. I wish to ask the chairman of this committee if there is any other part of this article that provides that the purposes for which the corporation is organized shall be specified?

Mr. JAMES. No, sir; not that I know of.

Mr. ROBERTS. Then, Mr. Chairman, I am most heartily opposed to striking this section out, because, as was developed in the debate here this morning, in the argument of the gentleman from Weber (Mr. Maloney), it appeared that the great corporation at Pullman was incorporated to do one thing, but went outside of things specified in its charter and engaged in other enterprises. I believe, sir, that whatever else we shall {1555} do in regard to corporations, we at least ought to insist that they shall specify the business that they are going to engage in, and that they ought to be confined within those specifications, and believing that this would be some little protection to the public at least in the way of announcing what business this corporation is going to engage in, and in order that we might know something about its limits, it should expressly say what its business should be, and it ought to be beconfined to just what it has expressed in its charter, and not give them carte blanche to engage in everything under heaven, without giving the public notice that they are going to do it. You leave it now so that a corporation can engage in any number of lines or pursuits; at least let us have it understood that they can only engage in those pursuits that they specify in their charters. For that reason I shall object to striking out this section.

Mr. RYAN. Mr. Chairman, I think the time is coming when corporate power should be restrained, and I am in favor of that. I am in line with that and I was in favor of Mr. Roberts's

amendment as being the best of the two. However, I do not think that section 11 will accomplish any good or accomplish the end for which it was aimed. I think if we ever restrain corporate powers, it has got to be in other directions, and possibly the best way would be to scrutinize their first charter or have a power or a different source from which they should emanate. Any one can secure a charter by paying a few dollars and specifying the purpose for which they are organized, and I do not see as section 11 accomplishes anything, and, therefore, I was willing to see it stricken out.

Mr. JAMES. Mr. Chairman, this section took up a great deal of time in the committee. It took up more time, not only in the committee, but in seeking information from sources that the committeemen felt were safe to advise with, and I will say to you, gentlemen, that four of the most eminent attorneys in this city approved of that section, as it is in that article, and three of them are corporation attorneys. They said that we should have something that should limit the corporations from extending all over the world and doing anything they pleased. We should say that they should not go into business that they did not expressly set forth in their charter.

The motion was rejected.

Sections 12 and 13 were read.

Mr. JAMES. Mr. Chairman, I wish to strike out the words “tonnage and cars,” and add in lieu thereof the words “and freight.” The reason I ask to strike out the word cars is because I have learned that in the interchange between railroads and cars an injury might be done one road if it had to carry those cars when it had its own cars in which to carry the freight.

The amendment was agreed to.

Mr. THATCHER. Mr. Chairman, I would like to call the attention of the committee to line 5, where it provides for carrying passengers without delay. I move to insert the word “unnecessary,” between the words “without” and “delay.”

Mr. RICHARDS. I desire tb offer an amendment to Mr. Thatcher's amendment; transpose “discrimination,” and place it after the word “without,” so that it will read this way, “without discrimination or unnecessary delay.”

Mr. THATCHER. I will accept that.

The amendment was agreed to.

Section 14 was read.

Mr. RICHARDS. Mr. Chairman, I move to insert after the word transportation, in the fifth line, the words, “under similar circumstances and conditions.”

Mr. JAMES. Won't you accept the same amendment then, in line 13, so that it will be consistent

within itself?
Mr. VAN HORNE. Mr. Chairman, I {1556} move a substitute for section 14, which I have drafted in accordance with the inter-state commerce law, as follows:

No railroad or other transportation company or common carrier shall discriminate in the transportation of persons or property between persons or places, or in the facilities for transportation, or any charges for like service in transporting like kinds of property under similar circumstances and conditions.

I move its adoption, as a substitute for section 14. I wish to call attention of the Convention to the fact that the substitute provides for a case that is not provided for in the original section, which is what might possibly be called a discrimination on account of the quantity of freight as distinguished from the character of freight. The substitute provides directly in line with decisions on the inter-state commerce law against discrimination, in the four ways in which discrimination is possible, namely, between persons first; second, between places; third, in facilities of transportation; and fourth, in charges for service in transporting property or persons under similar conditions and circumstances. It has been decided that those four classes cover all classes of discrimination that are possible. That being the case, anything further than a general provision that no discrimination of that kind can be made, it strikes me would be out of place in a constitution. Any detail that would be necessary to go into should be properly gone into by the Legislature. As an illustration of this, the original section provides only for discrimination in classes of persons; suppose a person had a sack of sugar to ship and another person had a train load of sugar to be shipped to the same point. It would be fair to say under all business principles that the person shipping a train load on account of the thegreater rate that he should pay in the aggregate, or less trouble of delivering, should be entitled to a better rate of the shipment.

Mr. RICHARDS. That is exactly the point designed to be covered by the amendment I offered.

Mr. VAN HORNE. I understood that it was designed to be covered by that, but I think that the substitute covers it perhaps a little more clearly than the amendment would. In like instances a man that had a hundred bushels of wheat to ship where it would only make part of a carload could very properly be charged on account of the greater cost of handling the additional rate for shipping that wheat to the same point that a man would be charged who shipped a full carload, or a full trainload. In like manner the owner of a mine who attempted to ship two tons of ore to have it separated and kept separate from other ores shipped in the same car, would impose upon the railroad company a greater duty of carrying his property from intermixture with others than would be imposed upon the railroad company in case he shipped the full car-load of ore, and this amendment covers that distinction between quantity and class.

Mr. JAMES. Mr. Chairman, I want to say a word or two to this Convention as to why this section was written and placed in this article, and since Mr. Richards has amended it as he has, I believe it covers the ground. Now, I will say the reason why that section was written in the form that it is in is this: Information came to this committee that it cost one hundred dollars more a car to ship a carload of freight if it contained twenty tons, from Omaha to Eureka than it did from Omaha to Park City, which was a distance of over one hundred and fifty miles farther to haul it. Now, gentlemen, I call your attention to that condition of things and ask you if it is true, and I think it is

true, because I got it from reliable {1557} sources, if we should not do something to regulate conditions of that kind? Then, I call your attention to the fact again, as another reason why that section was written in the form it is in, is because the railroad company sees fit to make Eureka City a common point in shipping out, but not a common point in shipping in. Now, gentlemen, it is a very queer thing when it is a downhill haul from Eureka City to the valley below, that it is a common point out, and a less rate is charged for freight out of that town than to haul it into it, when it is an uphill haul to haul it in. Now, I want to say to you, since Mr. Richards has amended this in the form it is in, it covers the whole ground. The reason where it was weak before is just what Mr. Van Horne has raised on the floor, that you might charge as much for small quantities as you could for large quantities. The amendment of Mr. Richards obviates that point. Now, Mr. Van Horne's section is one that I have not had time to give thought to. The section for the purpose that it was written has had due consideration and given a great deal of time and thought, and I believe as amended now, it is what we need.

Mr. VAN HORNE. I just want to call attention to one fact, the prohibition there as to discrimination in places covers the very point that was brought in by the gentleman speaking for the report as amended or proposed to be amended.

Mr. JAMES. Does your section cover the ground to hauling in and going out_that discrimination, as it is going on now?

Mr. VAN HORNE. I will ask the gentleman if he does not think that under similar circumstances and conditions does not fully cover that?

Mr. JAMES. I ask you if your section covers that?

Mr. VAN HORNE. I think so.

Mr. RICKS. Mr. Chairman, I hope the amendment will prevail, for the reason that I think it will cover exactly the ground covered in the original, and I do not believe the original covers the ground Mr. James thinks it does, that is covered in the inter-state commerce law, and I very much question if we can ever legislate in this State to cover the objections he desires to cover_the ore or anything else coming from other stations that must come under congressional law, as it does at the present time, and I think the amendment of Mr. Van Horne covers every point that is necessary to cover.

The question being taken on the adoption of the substitute proposed by Mr. Van Horne, the committee divided and by a vote of 50 ayes (noes not counted), the substitute was adopted.

Mr. CANNON. Mr. Chairman, I will move to amend by inserting “quantity” after “kind,” and make it read, “kind and quantity.”

Mr. RYAN. Mr. Chairman, I hope the amendment will not prevail. I do not think we should limit that as to quantity. The circumstances and conditions will limit that enough. Railroad companies are in the habit of discriminating too much in the interest of large shippers_powerful

corporations, and that only intensifies that evil. I hope it won't prevail.

The amendment was rejected.

Mr. ROBERTS. Mr. Chairman, I move that section 14 be stricken out. I find that section 13 provides that all railroad and other transportation companies are declared to be common carriers and subject to legislative control. Now, sir, the substitute that the committee has adopted, introduced by Mr. Van Horne, seems to be so uncertain as to what points it does cover and what it does not cover, that I doubt the propriety of adopting a section about which the Convention seems to have so much doubt, or to be in so much uncertainty in regard to, and it seems to me, sir, that all these matters enumerated in the original section and also in the {1558} substitute offered by Mr. Van Horne, may be properly left to the Legislature, and those are my reasons for moving to strike out the entire section.

Mr. BOWDLE. Mr. Chairman, I do not know; I might eventually come to the same conclusion, but not having the substitute a long time to think about it particularly, it looked to me like it was all right. I came to the conclusion that I would let it go to the third reading and then we will have the whole matter before us and we will know better_at least I feel I will know better what I want to do in that regard, and I don't feel like taking action on it now.

Mr. RICHARDS. Mr. Chairman, I am in favor of striking out. I am fully in sympathy with the idea that railroad companies should be required to do all that is prescribed in this section. I want that understood to start with, and perhaps more, and there is where the danger lies in this section, as I view it; that is to say, by section 13, all railroad companies and other transportation companies are declared to be common carriers subject to legislative control, and all railroad companies shall receive and transport each other's passengers and freight without discrimination. Now, that is provided for in section 13. Now, I believe that the Legislature ought to have full power over this subject, and when we commence to enumerate in section 14, certain things that shall be done, there is danger that when the courts come to construe it, they will say that the Legislature is limited in that matter to those things that are enumerated in the Constitution, and if we leave this section out, with section 13 standing as it is, it gives the Legislature full power over this subject. We can legislate upon it from time to time as the exigencies of the case may require, and I believe it would be very much better for the Constitution and very much better for the people, and would carry out the wishes and intention of this Convention to leave that section out.

Mr. VAN HORNE. Mr. Chairman, the intention of offering the substitute was directly in line with the purpose of not specializing in this Constitution the methods of discrimination, but leaving it general, under the construction of the inter-state commerce act and the courts of the United States, of the four classes of discrimination that were possible. If there is to be no section corresponding to section 14, I am thoroughly of the opinion that sections 1 and 13_I believe it is, cover the whole question and leave the Legislature the full power to regulate, control, limit, and restrict the action of corporations. Section 14, as introduced by the committee, strikes me as being dangerous in the line that it specializes too much. The substitute specializes less, in that it covers only the four species of discrimination that have been passed upon under the inter-state commerce act, and it has been decided that those four classes cover all kinds of discrimination. If

there is to be no section corresponding to section 14, I shall support the motion to strike out.

Mr. JAMES. Mr. Chairman, I feel a good deal like Mr. Roberts felt about this thing at the present time, that you had just about as well strike this out, but at the same time, Mr. Chairman, as if there was a very serious mistake being made here. I do not know why gentlemen are talking so much about legislation and about the seriousness of our trying to regulate something. Now, if any other gentleman can show me in this section anything that would create a hardship, that would injure a corporation, in any way in the world, I would say, for heaven's sake let us amend it and let us strike it out, let us get rid of it; but, Mr. Chairman, there is more that can be said regarding this thing. You observe that they were very careful to get out that along where it says, hauling from and to. Now, gentlemen {1559} of this Convention, why should it be? Why should it be that a ton of freight or a carload of freight should cost the people a hundred dollars more in Eureka than it does in Park City? Now, why has the Legislature long ago not corrected those things? Did the people vote for us to come here and say that the Legislature can do these things and all we have got to do is to sit here and look nice and feel happy and draw our pay and go home? Now, here is another proposition. Here is our little Utah Central railway that was built from this town here by John W. Young, to Park City. When that little railroad got to Park City, what condition did he find? He found, sir, four dollars and a half a ton freight from Park City to the smelters in this valley. What was the result? The freight was put down to two dollars and a half; the round trip fare from here to Park City was seven dollars; what is it now, after the little road was built up there? Four dollars and a half. Did any man make anything out of that road? Was it not solely for the benefit of the public? Have not the people that put their money in there forfeited every cent of it and has it not gone into the hands of a receiver? And why? Because the railroad saw fit to say that we will not receive your freight, we will not take your freight here in Salt Lake City and haul it up to Park City. We will not take your freight at Park City and haul it down here and allow it to be transferred over the Union Pacific or the D. & R. G. railway company. Now, gentlemen, are you going to say, “Oh, we will allow the Legislature to regulate all these things?” We cannot do it, because it is tramping upon the roads. Still those things go on. I say you might as well strike it out, gentlemen. You have taken its teeth out. When the provision was put in that section that an equal charge will be made in each direction and the charges should be indiscriminate, then was when the work was done that created the great howl that went up all over this city.

Mr. KIMBALL (Salt Lake). Has the committee conferred with the business men's association_the chamber of commerce, regarding this?

Mr. JAMES. No, sir; we wrote them a letter, and had some correspondence from them regarding it, but there has no information come from them in regard to it.

Mr. KIMBALL (Salt Lake). Mr. Chairman, I will state that only recently the manufacturers and jobbers of this Territory have formed an organization, the special purpose of which is to confer with the railroad companies and regulate the tariff. This discrimination has become so painful and extensive that it was necessary for the manufacturers and jobbers to combine together against the railroads on this proposition, and I believe if we strike this section out and leave the matter for the time being, that they will confer with the next Legislature, and arrange a section that will

meet the emergency.

Mr. VAN HORNE. Mr. Chairman, there is a principle of law, that the expression of one thing is the exclusion of another. The lines 10, 11, 12, and 13 of the article as drawn, we find that charges not exceeding the charges of transportation, or persons and property of the same class, in the same direction, under similar circumstances and conditions, to any more distant station or landing. The mention of in the same direction, under that principle of law, allows the very thing that the chairman of the committee was claiming as a wrong here_a discrimination when it was in another direction, because mentioning that they were prohibited from making that discrimination in one direction by exclusion says that they can make the discrimination in another direction. And wholly in sympathy with the purpose of the committee in regulating these discriminations, it seems better to me {1560} to make the general classes of discriminations as to persons, places, facilities, and charges, limited only by similar conditions and circumstances, and leave the Legislature to interpret the matter. I believe the wrong complained of by the chairman of the committee, of one railroad company refusing to receive the freight of another railroad because it was in competition, is fully covered by section 13, which provides that all railroad companies shall receive and transport each other's passengers and freight without discrimination or unnecessary delay. The other was devoted towards leaving general the power of the Legislature, and not, by the mention of particular things, make the constitutional prohibition against the Legislature, saying that discriminations in other respects should not be prohibited by them.

Mr. EICHNOR. I would like to ask Mr. James a question. Section 14, as it originally appeared in the article, was taken from the constitution of California, and from the constitution of the state of Washington. In California that section has been in existence since 187, when the constitutional convention framed a constitution of that state, the last time. Do you know how this section has worked in the state of California?

Mr. JAMES. No, sir.

The motion to strike out was agreed to.

Section 15 was read.

Mr. RICKS. I would like to ask the chairman of the committee what he means by that?

Mr. JAMES. It is put in there for this very purpose: When this Territory grants franchises, and gives rights to a railroad company, building in a similar direction, to reach the same point, that they shall not then combine their interests and deny the State of benefits that should come from competing lines by consolidating their interests; after they have benefitted by giving them those rights, they expect them to do according to their agreement with the State.

Section 16 was read.

Mr. VAN HORNE. I would like to ask the chairman of the committee what are the provisions of

the article on revenue and taxation? Do they not provide for the taxation of the property mentioned in this section? If so, it is a duplication of the action already taken by the Convention.

Mr. JAMES. Mr. Chairman, I am not familiar enough with the article on taxation to say. I suppose probably it does. That is my recollection.

Mr. RICHARDS. Mr. Chairman, I move to strike this section out, not because there is anything in the section that is objectionable at all but because it is simply a reiteration of what we have had in the article on taxation and a statement of what would be the law in the absence of any statute at all or any provision. The rolling stock of the company is personal property. It has been so held by every court in the land and everywhere, and it is liable to taxation, and subject to execution, and we cannot in this Convention enact everything that ought to be said on the subject of the management and conduct of railway companies.

In reply to the suggestion made by the chairman of the committee_he seems to think that there is unnecessary stress being laid upon the fact that this legislation, or that certain provisions in this article are legislative and ought not to be included. Now, I do not make this objection simply because it is legislative, although I think that that alone is sufficient reason. I think we ought not to encumber the Constitution with detailed matters_matters that ought to be on the statute book and could be changed from time to time. We ought not to duplicate these things, and when we have provided substantially for this in the article on taxation, as to what property should {1561} be taxable, etc., I think we ought not to enumerate it here, and then as I have said before, there is danger of, by enumeration, limiting the power of the Legislature when we do not intend to. I think that these things ought to go out, and it is not because I have any objection to the matter itself, but I think it belongs on the statute books instead of in the Constitution.

Mr. MALONEY. Mr. Chairman, I do not object to the words “taxation and,” coming out in line 4 of section 15, but I do object to the other going out. This section was fully discussed in the committee. We attempted to make one complete article on incorporations other than municipal. The committee worked earnestly and long for this object to be attained, and I think we have attained it. Now, the very fact that other constitutions in many of the states have made provision with regard to the rolling stock and other movable property belonging to any railroad company or corporation is sufficient evidence to my mind that the section ought to remain entirely as it is, with the exception of the words “taxation and.”

Mr. ROBERTS. Mr. Chairman, before voting to strike out this section, I should desire to know whether it duplicates any provision in the article on taxation and revenue. So far as I am able to discover there is no duplication in the article on taxation and revenue.

Mr. CREER. Section 11.

Mr. ROBERTS. The section as I remember it, however, read by the gentleman, would make the personal property subject to taxation, but it does not make it subject to execution and sale, and I desire for that reason, sir, to say that it is not an entire duplicate, one of the other. There are provisions in this that are not to be found in the other, and for that reason I shall vote to retain

this section.

Mr. RICHARDS. I would like to ask the gentleman from Davis a question, and that is if he knows of any case where any railroad property has ever been made exempt from execution?

Mr. ROBERTS. I shall have to confess that I have no knowledge of that kind. I am not a lawyer, not engaged in that kind of transaction, and therefore am put at a disadvantage in that matter. As suggested by my friend from Weber, who comes gallantly to my rescue, as a voice behind me, we never want the Legislature to have the power to exempt the property from execution. I want it fixed, sir, that these railroad corporations cannot escape either taxation or having their property subject to execution and sale where it becomes necessary to meet just taxation, and in order that we may be dead sure that we have got them, I propose to vote for retaining this article.

Mr. SMITH. Mr. Chairman, it seems to me that the section will give no strength to the section already in the law on taxation. Everything that is possible to reach, in any way, shape or form will be reached under that.

Mr. VAN HORNE. Mr. Chairman, I want to call attention of the gentleman from Davis and members of this Convention, that in section 9 of the article on legislative the Legislature is forbidden to grant to an individual, association, or corporation any privilege, immunity, or franchise whatever. The exemption of property of a railroad company from taxation will be fully covered by that section, beyond question. If that be true if the general law also be true, as announced in our article on revenue and taxation, that such companies must pay taxes on all property owned or used by them, the Legislature is forbidden from granting them any immunity. The section, as it seems to me, consists of nothing but declaring that the rolling stock and movable property of a railroad company shall be held as personal property, and that is all that is done by the law. The immunity would also extend to the {1562} proposition that their property should not be subject to execution. It would be an immunity guaranteed by the Legislature to say that the rolling stock of a corporation would not be subject to execution.

Mr. THURMAN. Will you please read, if you have got it before you there, the section that you referred to about the immunity?

Mr. VAN HORNE. Section 9; that is the prohibition of the Legislature passing special laws.

Mr. THURMAN. That relates to special law. That is a different proposition.

Mr. SQUIRES. They might do it by a general law.

Mr. VAN HORNE. The same proposition is contained in the same article against any special law where a general law would be applicable. Are we to understand the gentleman as fearing that the Legislature of this Territory should ever pass a general law that all the movable property of the railroads should be exempt from taxation or should be exempt from execution and sale, on the judgment of a court?

Mr. THURMAN. It might depend on whether all the legislators were railroad men, or not. If they were, we might get just that kind of a law.

Mr. VAN HORNE. It seems to me that the general provision that the Legislature may control the creatures of the State_the corporations within it, is sufficient, taken in connection with the other, that they must pay taxes on that, and that the Legislature is not going to grant any immunity by general law to all the railroad corporations in it, that their property shall not be subject to execution and sale.

Mr. JAMES. The gentleman either does not understand this proposition or else does not want to meet it. We all know very well that the rolling stock may belong to one company and the railroad to another company. We are trying to cover the whole, that is why the section is put in the shape it is.

The motion to strike out was rejected.

Mr. VAN HORNE. Mr. Chairman, in accordance with the amendment suggested by Mr. Maloney, I move to strike out the words “taxation and,” in line 4.

Mr. MALONEY. Mr. Chairman, since my attention has been called to it, by the gentleman from Davis, I think that ought to remain there.

Mr. SQUIRES. Mr. Chairman, I am opposed to the motion.

Mr. EVANS (Weber). Mr. Chairman, I seconded the motion to strike out simply because in my judgment it was fully covered in the article on revenue and taxation. Otherwise, I should not vote to strike it out.

The amendment was rejected. Sections 17 and 18 were read.

Mr. HART. Mr. Chairman, I move to strike out section 18. The Legislature has that power.

Mr. MALONEY. Mr. Chairman, I object to it. I want a constitutional basis for it here in the event that the future Legislatures of the State may find it proper to establish a commission.

Mr. RICHARDS. Would not the Legislature have the power to appoint this commission without the section?

Mr. MALONEY. It is very possible, but we want a constitutional recognition of the commission. They have it in nearly every state in the Union.

Mr. RICHARDS. Is there any possible question about the power of the Legislature to do it?

Mr. MALONEY. I doubt it very seriously. Therefore, I insist that it remain in.

The motion to strike out section 18 was agreed to.

Section 19 was read.

Mr. VAN HORNE. Mr. Chairman, I move to insert the word “if,” at the beginning of the paragraph.

The amendment was agreed to.

Mr. VARIAN. I want to ask the committee if it is necessary to put into the {1563} Constitution a declaration that the State of Utah has jurisdiction over all property within the State? If not, what is the use of spending money to print it? I move to strike it out.

The motion was agreed to.

Section 20 was read.

Mr. RICHARDS. I desire to ask the chairman of the committee what the purpose of this section is and what it means.

Mr. JAMES. It is to avoid such things as a year ago of the Pinkertons. That I guess will explain it so as to save time. Just say the Pinkertons.

Mr. RICHARDS. I would like to have some gentleman explain to me what the meaning of the words, “without authority of law,” as used in that connection. If the chairman of the committee or any other gentleman will explain that I would be glad.

Mr. JAMES. Well, I suppose it is meant to cover the proposition that they might bring them if they got permission of the governor under a legislative act.

Mr. RICHARDS. I move that the section be stricken out.

Mr. SQUIRES. Mr. Chairman, I do not think the chairman ought to give Mr. Richards, he being a corporation attorney, the information he needs that will show him how to act upon this section after it is adopted.

Mr. THURMAN. Mr. Chairman, I hope this section will not be stricken out. I think it is necessary. “Without authority of law,” not only means the authority of the governor of this State, who should at least be the executive head, but the President of the United States, to protect the property of the United States, might have the right to send troops in. That is, by authority of law, but outside of that authority, some one charged with the official duty, the committee thought that no private company or individual had a right to import an armed body of men into the State to protect the State or the people of the State against domestic violence. We think we can do that ourselves_or the property, as suggested, of any individual. We think the State is able to do that. If not, we have no business organizing as a State.

Mr. SNOW. Can not the Legislature provide this prohibition and also state when that authority can be exercised?

Mr. THURMAN. The Legislature can provide for just about everything that we have got in this article, but for fear they will not do it, we propose to do it here if we can. That is the idea.

Mr. EICHNOR. Mr. Chairman, I desire to amend section 20, by striking out all after the word “violence” line 4, and inserting in lieu thereof, “except upon the application of the Legislature or the executive when the Legislature cannot be convened.”

Mr. THURMAN. Do you desire to exclude the right of the President of the United States to do that if necessary to protect the property of the United States?

The amendment of Mr. Eichnor was rejected.

Section 21 was read.

Mr. ANDERSON. Mr. Chairman, I move we strike out this section.

Mr. VARIAN. I second the motion. This section_certainly the intent of the committee could not be as this section is expressed. It would deprive a large number of citizens of the privileges of citizenship. In terms it simply says, that no man who is employed by a corporation, company, or association, doing business under or by virtue of a municipal charter or franchise, may hold any municipal office or employment. I presume the intention was to prevent their holding certain classes of municipal offices, but it does not express that. It says he shall not hold any employment therein. I do not know what it means.

Mr. SQUIRES. Mr. Chairman, as I see they have ruled my friend, Mr. Richards, from being a candidate for anything {1564} this fall, I second this motion to strike out.

Mr. EVANS (Weber). Mr. Chairman, I am opposed to striking out that section without any qualification.

Mr. VARIAN. Let us amend it then, to make it clear.

Mr. EVANS (Weber). Well, then, let us amend it before we strike it out. The design of that section is good. It may not be worded just as it should be, but it is designed to prevent a good many evils which exist, and they are evils, too, which exist right under our noses daily. Men belonging to corporations, having stock in them, and controlling them, are members of the city council.

Mr. VARIAN. I agree with that.

Mr. EVANS (Weber). And they sit right in the city council, and passing ordinances and resolutions contracting with themselves with respect to the price which will be paid for various

things_the electrical company for one. We have had an instance of that kind lately, which is shameful to permit, and many of the best authorities and economists in this city have called attention to this thing, and asked that this Constitutional Convention correct it. We had a friend here_one of our fellow delegates, who stated upon the floor of this Convention himself, that just such a condition of things existed with him. It is not right, in principle, so I shall oppose the striking out of this section.

Mr. VARIAN. Mr. Chairman, I move to amend by striking out “or employment.” Let us perfect the section before that motion to strike out is carried. That will make it clearer. As it reads, certainly it would prevent an ordinary servant of a corporation from having any employment in the city. It is not intended, I am sure, to have it go that far.

Mr. VAN HORNE. Mr. Chairman, I think the word “therein” should be included in the motion to amend. I move to amend by striking out the last three words, “or employment therein.” The reason I do that is that “therein” could properly be held to refer to the State and not to the municipality, and that a man who was an agent or servant or employeof a corporation, working under a municipal charter, should not hold any municipal office in the State, it seems to me would be further than the committee intended.

Mr. RALEIGH. Mr. Chairman, the word employeshould be stricken out also, in the first line.

Mr. KERR. Mr. Chairman, it seems to me the word therein should not be stricken out.

Mr. BOWDLE. Could “therein” refer to any other word than State?

The CHAIRMAN. Gentlemen, the question is upon the amendment to the amendment offered by Mr. Van Horne, to strike out the words “or employment therein,” in line 6.

The amendment was agreed to.

Mr. VARIAN. Mr. Chairman, I move to insert after the word “office” the words, “in the municipality granting such charter or franchise.”

The amendment was agreed to.

Mr. RICHARDS. Mr. Chairman, I move to strike out the words, “employe[*note*], attorney, or agent,” in the first and second lines. I desire to say in support of this motion that while I think it very proper that an officer of a corporation should be prevented from being an officer of the municipality under such circumstances, it seems to me that to provide unconditionally in the Constitution that an employe[*note*], or an attorney, or agent of a corporation could not hold an office under the municipality would be a great hardship. I have in my mind as an example the case of a gentleman who holds an office now in this city. He is a member of the city council. He is attorney for a railroad company that has a franchise for a track that runs through some of the streets of this city. There is no reason in the world that I know of {1565} why that man should be any more influenced or biased in his actions in regard to city matters than there is why I should

be or any other man in this city_none whatever. He is an efficient member of the city council. This franchise was granted ten years ago or thereabouts. There are no relations between the railway company that he represents and the city that would tend to influence him in any way, shape, or manner. Now, why should he be excluded from holding an office under the city?

Mr. BUTTON. May I ask the gentleman a question? Will all the attorneys for all corporations be the same as this one you just spoke of?

Mr. RICHARDS. Well, I do not know. I am saying that the section as it now stands excludes that kind of a case; in other words, it would exclude that person from holding office.

Mr. BUTTON. If you let him in, wouldn't you have to let in all the rest?

Mr. RICHARDS. I do not know what you mean by all the rest,

Mr. BUTTON. Well, any one?

Mr. RICHARDS. Yes, if you say any one who represents a corporation under such circumstances as that ought to be in I say no; I say that a person ought not to be excluded under such circumstances, whether it is this man or any other man. Furthermore, I say that a man who works out here on a railroad, where the company has a franchise through the city, and because the man may be a section man_that may be his employment, working on the roadbed of that railroad, and I say that is no reason why he should be excluded. This section is just that broad, I say, that it excludes all that class of people. Now, I am willing that the section should be made strong enough to include officers of these corporations. I think that would be proper, but to make it include every man that works for the corporation, it seems to me that it is carrying it too far, and especially in a constitutional provision. If it was a statute, it would not be so bad.

Mr. KERR. What is the object of putting in “agent of the corporation?”

Mr. RICHARDS. Well, I am not so particular about the striking out of the word agent, although it occurred to me that might probably be stricken out, because men who come as agents are not necessarily influenced to that extent that they would be biased in those matters, but then I will limit, for the purpose of testing this question, my motion to striking out the words “employe[*note*], attorney.”

Mr. BUTTON. Mr. Chairman, I amend by striking out the word “employe[*note*].”

Mr. BOWDLE. Mr. Chairman, I have not very much objection to striking out the word employe[*note*]. I don't know as I would stand on that, but I would object, if we have anything at all in this section, to striking out attorney. You might just as well put the president of the company himself in the city council as his attorney, and. in fact, I don't know but I would rather do it. I do not think that the case Mr. Richards cites is a case that ought to have very much bearing upon this question. He says here is a corporation that has a franchise through this city, and it would be unfair to exclude the attorney that represents that corporation. Why? If we are

going to exclude him for this reason, that the corporation stands in just the same position that it might when a further extension of franchise, and the attorney would be standing there to represent that. I am opposed to the striking out of anything more than employe[*note*]. I would favor the striking out of the word employe[*note*], and then that is a little broader than I like.

Mr. EVANS (Utah). Mr. Chairman, I am opposed to these amendments, both of them. If this Convention wants to get my vote to strike that whole thing out, all they want to do is to carry this {1566} amendment. Then I am ready to move to strike out the whole thing. If we are going to undertake to curtail what this is intended to do, let us do it clean cut, without any whipping around about it. I am in favor of retaining it just as it is, and I am opposed to all the amendments.

Mr. SQUIRES. Mr. Chairman, I would like to ask the chairman of this committee if, under the circumstances, he has any objection to having the word employestricken out of that section?

Mr. JAMES. Why, Mr. Squires, no, I have not.

Mr. SQUIRES. Then, I will support that amendment.

Mr. MALONEY. Mr. Chairman, the object of striking out the word employeis to allow the men who work daily or by the month for the corporations, to be elected under the city charter. Now, if you strike out the word employe[*note*], then the gaff is down. These men are not regularly employed like attorneys, by the year. They can very easily quit the employment of the corporation. I am opposed to both amendments.

Mr. ROBERTS. Mr. Chairman, I am opposed to the amendment for the reason, as suggested by the gentleman who last spoke, that you make a breach in the wall of defense that we build around our corporations in this instance, and I must state that it would result in mischief. I believe the principle upon which this section is founded is a good one. I think it ought to be enforced all along the line as indicated in this section. Gentlemen, remember, in the article on legislative we were very careful to exclude from the Legislature men holding office in the State or county of a certain grade, and the principle of it was to free the Legislature from those men who might be influenced in their conduct as legislators in favor of the interest that they would represent in their official capacity. And now, sir, the purpose of this section, as I understand it, is to exclude from the municipal council those who might work in the interests of these corporations. There is no danger much of the common employes[*note*], such as the section hands, to which reference has been made, of these corporations being elected to the city council, or to any other municipal office. But if they were elected, you could take it as a matter of course that they were going there as the creatures of the corporations in which they were employed, and there is no danger, however, unless it should be in the case that I have now cited_the corporation, having a man elected there that it would own body and soul, and who would be a mere creature of that corporation. Otherwise, there is no danger of men engaged in the ordinary pursuits of an employein a corporation ever getting into the city council, and I shall vote for this section as it is, and preserve the municipalties from the danger that this section seems to provide against. It ought to be just as it is. The attorney ought to be excluded; the agent ought to be excluded; the officer of the corporation ought to be excluded, and so had the employeought to be excluded, as

the great probability is he would never get there unless he was sent there as the creature of a corporation, and would be just as dangerous as any of the other officers, because he would vote just as he was directed to vote, under the cirstances [*note*], by that corporation.

Mr. JAMES. Mr. Chairman, the principle of course will be conceded by this Convention as being correct, but I want to say to this Convention the one trouble that arises is to cover the whole field. If the committee on corporations had attempted to do it, of course it would have got into deep water again. It would have been legislation. I want to say to you, gentlemen of this committee, right here is where the root of the great evil in incorporations originates. I have served in some councils {1567} myself, and I have some opinion of difficulties and troubles that we had to contend with. It goes further though, Mr. Chairman, than what this section provides for. This simply provides for municipalities, or is intended to. I think perhaps the wording of the section should have been with a little more care and then it would have been better understood, but it is pretty well amended now, so it will be understood. But. Mr. Chairman, the evil of to-day in corporations is that the managers of those corporations, running businesses within themselves, taking contracts, providing supplies, and so on, that they are making money out of it, and the stockholder is not. Now, there has been a good deal said on engrafting into this article legislative matter. Why, my friends, I do not know why you say so much about that. If you had kept track of the article that was introduced on the fourth day of the session of this Convention, to be inserted in the Constitution, you would have found an article, in place of thirty-eight sections, as in that, with about sixty-eight sections, and I say the article was complete. You find if you go to the constitution of Missouri, it did not only take care of the municipalities, but they said that no employeof any corporation should be engaged in any contract in supplying the corporation with any supplies or any other business, through which he should receive any emoluments, excepting such as was provided by the officers of that corporation. So far did they go in the constitution of Missouri, to protect the people against just such provisions as we are trying to protect them against in that little clause there.

Mr. MORITZ. I would like to ascertain what other state has a similar provision in its constitution.

Mr. JAMES. I do not know any.

Mr. ANDERSON. Mr. Chairman, I think that these words should be stricken out. I think the cure this section intends to make is worse than the disease. This might exclude the very best men in the municipality, and in many cases would exclude the majority of the voters of the place, and I do not think that this should be placed in the Constitution.. I think that the principle is vicious. that it restricts the rights of the citizen.

Mr. EVANS (Weber). Mr. Chairman and gentlemen, I just want to call attention directly to the purpose of this section. It simply is designed to prevent the election of any person to a municipal office who is an officer, employe[*note*], attorney, or agent of any corporation, that has received a franchise from the municipality. That is the real purpose of it, and the underlying principle in this section is undoubtedly a correct one. To strike out “employes[*note*], attorneys,” would be as the chairman said this morning respecting another matter, taking the teeth out of the section.

You know, gentlemen, that if you permit an attorney of one of these corporations owning a franchise, to be a member of the city council, he would be more dangerous than the president of the corporation himself, or any other officer in it. He would probably devise means by which benefits would be derived which other officers of the company could not. And in that, it would be doing violence to the section to eliminate the word attorneys, because, gentlemen, an attorney would act in the city council as an attorney of his corporation and as the officer of the city, in a dual capacity. I say that word ought not to be stricken out, neither should the word employebe stricken out, because it is just as dangerous to have an employein the service of a corporation owning a franchise, sitting in the city council, as to have his principal; he will do his bidding anyway. He would be under the constant fear and dread of his employer and of being discharged from service, if he did not vote in the interest of his company {1568} when he was casting his vote in the municipality. Gentlemen, these men who sit in city councils and take part in municipal governments ought to be there in the interests of the people and not in the interests of any particular corporation that has received its franchises from the city. The principle itself is right and the section ought to be retained.

Mr. ANDERSON. I would like to ask the gentleman a question, if a wealthy man doing the same kind of business as a corporation in the city_should his employesor attorneys be treated in the same manner?

Mr. EVANS (Weber). Could not the wealthy man have his agents in the city council, you mean?

Mr. ANDERSON. Could not nothe, under this? A wealthy man could do business without incorporating, that would not affect his agents.

Mr. EVANS (Weber.) That is quite true; we are simply dealing with an evil which we know has existed, and we are trying to put a limitation upon that and prevent it. The other evil has not yet arisen.

Mr. SMITH. Mr. Chairman, I trust that this section will not pass in the form in which it is. I think that any person that is doing business in a corporation whether of a private character or what the conditions are, should not be proscribed from holding an office, and by this means so far as practicable, take every man of good common sense out of the reach and manipulation of city concerns; it strikes me this section is of that character and aims a blow at the best interests of the municipalities, and so far as I an concerned, I shall vote for the elimination of the whole business.

Mr. CREER. Mr. Chairman, I shall be obliged to vote against either of the amendments, and against the section the way it is constructed.

The CHAIRMAN. There is no motion before the house to strike out the entire section.

Mr. ANDERSON. Mr. Chairman, I made the motion to strike out the entire section.

The amendment of Mr. Button was rejected.

The amendment of Mr. Richards was rejected.

The CHAIRMAN. The question now recurs upon the motion of Mr. Anderson, to strike out the entire section.

Mr. MORITZ. Mr. Chairman, I would like to say a word on the subject. If I understand this exactly right, it means to disfranchise a certain class of people in this Territory. Now, I am opposed to disfranchisement. I believe this Territory had enough of that. I believe that we can trust the people who they shall elect, and when they send a man of ability. If we cannot trust the people, why it is about time we quit politics, and therefore, I am opposed to the whole section, and I hope that the striking out of that section will prevail, and do not let us have any trouble in this country about disfranchisement. We have had enough of it.

The motion to strike out was rejected.

Mr. VAN HORNE. Mr. Chairman, I move to strike out the words, “in this State,” in line 4. My idea is that we are only legislating for this State. We could not legislate for any other state.

Mr. VARIAN. I agree with the gentleman.

The amendment was agreed to.

Mr. FARR. Mr. Chairman, I have a seetion I would like to put in, or an amendment, and I really do not know whether to put it into this section or at the end of the article. I have looked this over pretty well. Most of the things in this article have been provided for in other articles that we have already passed through in this Convention. And I would like to put an amendment; as I said, I do not {1569} know but I had better put it in at the close of this, but I feel that most of the provisions in this article have already been provided for in other places, but I would like to see this article gone through with and made plain, and every point brought up in it that is necessary to make it complete, although I am satisfied that the Legislature has a perfect right to demand all this business and will do it, but I think it is a very important amendment, to put in here, which I hope will prevail, although I do not know that it is necessary to put it in here now, but the amendment I wish to put in is to strike out the enacting clause. [Laughter.]

Section 22 was read.

Mr. JAMES. Mr. Chairman, I move to strike out, after the word “control,” in line 9, down to and including the word “companies,” in line 14.

Mr. EVANS (Utah). Mr. Chairman, I move to strike it all out.

Mr. JAMES. Mr. Chairman, the reason I ask to strike that out is, that I ascertained since I put that in that it would be impossible for the stations along the railroad in the country to furnish the same facilities to more than one company; that the telegraph operator, and the agent, and a whole lot of other matters are combined in one individual, and they would be unable to accommodate them

with these facilities, and consequently it might work some hardship, and, therefore, I would ask to strike it out.

The amendment of Mr. James was agreed to.

Mr. VARIAN. Mr. Chairman, the motion to strike out should not prevail. I desire to offer an amendment after the word companies, in line 16, to insert “under such regulations as may be prescribed by general law.”

Mr. VAN HORNE. Line 3 provides for an individual, and an individual is expected from the requirement that he shall transmit those messages.

Mr. VARIAN. I am not dealing with that question now. I am dealing with the provision in regard to eminent domain. As it stands, here is a constitutional declaration, without any limitation whatever, extending it to all telegraph or telephone companies. That might make it extremely inconvenient. My idea is that the Legislature ought to prescribe general regulations by general law, by which all telephone companies and telegraph companies could operate. If you leave it just as it is, here is a constitutional mandate which is broadly extended to all companies. Now, that ought to be circumscribed, it seems to me, so that the general law would make a general rule for all these companies, in like conditions, and under similar circumstances.

The amendment of Mr. Varian was agreed to.

Mr. SQUIRES. Mr. Chairman, I move to insert after the word companies, in the fifth line, the words “or individuals.”

The amendment was agreed to.

Mr. EVANS (Utah). Mr. Chairman, one reason that I am in favor of striking this section out is that we are getting a very cumbersome Constitution. It is going to be very expensive to get it printed, and I cannot see that it is going to be of any particular use. It is purely legislative from beginning to end, and I think it is of that class of legislation that ought to be left to the Legislature. It is true there are a great many other things in this Constitution that are legislative also, but I think this ought to be stricken out and leave it to the Legislature to make those regulations. There is no question but what they will do it.

Mr. CORAY. Mr. Chairman, I move to strike out all after the word companies, in line 16, not including the amendment proposed by Mr. Varian.

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

Mr. VAN HORNE. Mr. Chairman, I move to strike out, beginning after the {1570} word “discrimination,” in line 7, the words, “and all such companies are hereby declared to be subject to legislative control.” That is fully covered in section 1.

The amendment of Mr. Van Horne was agreed to.

Mr. EVANS (Weber). Mr. Chairman, I want to propose an amendment to line 7, after the word “without,” by inserting the word “unnecessary,” so as to make it correspond with the section amended formerly.

Mr. CANNON. Mr. Chairman, I move to make the transposition made in the other section, “no discrimination or unnecessary delay.”

Mr. EVANS (Weber). I accept that. The amendment was agreed to. Section 23 was read.

Mr. EICHNOR. Mr. Chairman, I move to strike out section 23.

Mr. RYAN. Mr. Chairman, I desire to offer an amendment to that section, if it is in order, and I will explain it as well as I can. I would strike out all after “generally,” in the fourth line, and I would add at the commencement of the section, “except to its own servants employed in well established lines of work, no railroad or other transportation company shall grant free passes or sell tickets or passes at a discount or extend free transportation to the person or property of any person.” I would not limit the railroad company to granting free passes to public servants, but I would entirely do away with that abuse. That is what I am after, and I would make the railroad companies serve everybody exactly alike.

Mr. CANNON. Mr. Chairman, I am in favor of striking out. I trust the motion will prevail.

Mr. FARR. Mr. Chairman, and gentlemen, I think we can cure the whole section by killing the motion to strike out.

Mr. EICHNOR. Mr. Chairman, I desire to say a few words with respect to my motion. In the first place, I am not a pass fiend. I have only traveled between two points free in my life, and that is between Salt Lake City and Logan City.

Mr. EVANS ( Weber). Do you ever expect to in the future?

Mr. EICHNOR. I don't know, and if I hold any office in the future, I shall not deem it a bribe if I have a pass from the railroad company.

Mr. ROBERTS. You had better serve that notice on the railroad.

Mr. EICHNOR. I am opposed to this section. In the first place, it is legislation of the purest kind. The first idea of this was sprung in South Dakota and in the state of Washington. The New York constitution of 1894 followed suit; Kentucky, in 1891, too, did likewise; Mississippi has a similar provision. Now, at present, what is the effect of the constitutional provision in the state of New York? Why, the railroad companies are defeating the provisions of the constitutional enactment. It is simply ineffectual. Gentlemen who argued on this floor the other day that prohibition could not be enforced_I tell you, gentlemen, that this cannot be enforced any more

than prohibition. If prohibition cannot be enforced with all the officers watching, how can you enforce this? I am not a railroad employe[*note*]; I am not an attorney for a railroad; I am not connected with the railroad in any way, shape, or form. Now, I do not deem that the strongest ground is because it is legislation, or because it is ineffectual, that it should be stricken out, but there is a higher principle involved in this. Are we to treat every officer as willing to receive a bribe from a transportation company? Suppose a gentleman from the outside I see my friend, Mr. Chidester, over there, and Mr. Allen, of Piute; suppose they would be here on passes; why it would be impeaching their honesty to say that they would legislate or make constitutional enactments {1571} in favor of the railroad companies.

Mr. CHIDESTER. I would like to ask the gentleman a question. Did I understand you to say we had passes?

Mr. EICHNOR. No, sir; I simply said if you had.

Mr. VARIAN. May I ask the gentleman a question? What is the purpose of railroad and other companies' receivers giving passes to members of the Legislature and public officers?

Mr. EICHNOR. Not any more than if I had a carriage, and I asked Mr. Varian to take a drive with me to Saltair Beach; that is the secret of it.

Mr. SQUIRES. Do the people regard it in that way.

Mr. EICHNOR. I do not care how the people regard it. That is the way I regard it. I have held public office, and I have never had a pass, never asked for one, and if I had a pass I would have acted the same towards the people as I did. This thing of trying to make people honest by legislation is simply nonsense.

Mr. VARIAN. Mr. Chairman, I will agree with the gentleman; you cannot make some people honest by legislation.

Mr. EICHNOR. That may be correct as far as the gentleman is concerned that made the remark. He has held office. Now, to be serious in this matter, gentlemen, what will it show the future generation? It will simply show that we have no confidence in our legislators, and in our public officials. The practical question comes, has this matter been abused in this Territory? I never heard that it has. I do not think any one else has. If it becomes abused, the Legislature can step in and make the provision. If it has been abused in some other state why the Legislature can deal with it. I have been in another state where they have had large railway companies, and we had no legislation on it.

Mr. SQUIRES. Would the gentleman like to have the next Legislature come here to Salt Lake and hold its session on railroad passes, and then charge up mileage against the Territory?

Mr. EICHNOR. Yes, I do not care. If they can get a pass and take the mileage, I say go it.

Mr. EVANS (Weber). Mr. Chairman, that is a matter that I introduced something to be inserted in the Constitution, among the first days of the session, on, and I am somewhat particular about it. I am not going to talk more than a moment or two, but I am going to ask one or two questions. Gentlemen who are going to vote upon the floor of this committee, just answer these questions: Why is it that railroad companies always give passes to the members of the Legislature? Why is it that they always give passes to the board of equalization? Why is it that they always give passes to the judges, and why do they give passes to the governor, and these other officials? Why do they confine themselves to these particular classes of public ofcers [*note*]? Do you not think there is method in the extension of this courtesy on the part of these companies?

Mr. HILL. May I ask the gentleman a question? Is it a fact that passes are only granted to those officials_legislators, governors, and officers of that kind, and them only?

Mr. EVANS (Weber). No, sir; it is not. I am calling attention to this particular class of officers who have it in their power to benefit railroad companies by their actions. The governor can veto measures which are against the interests of corporate power. The board of equalization can assess at a lower rate the property of corporations. Legislators make the laws which affect corporations. Assessors assess the value of the property of corporations, and I call attention to this class of people, for the purpose of showing you that in every instance that class of people receive this courtesy from these corporations. Now, why is it? And another thing, gentlemen of the committee, {1572} this class of people are usually the best able to pay transportation. The questions answer themselves, that they extend these courtesies for the purpose of influencing these particular officers in the interests of railroad corporations. Why is it that the recent trend of legislation is against the right of corporations to grant passes to public officers? Why is it that New York has recently, in its constitutional convention, made the most stringent provisions against it? Why have Kentucky and many of the other states done so? Not the least, gentlemen, in importance of those I have called your attention to, is the case of judges who sit upon the bench. What particular motive has a railroad corporation to extend the courtesy to that class of officers? Why, gentlemen, they sit daily upon the property interests of corporations. They have the right to reduce judgments when they are rendered. They have the right to grant new trials. They have the interests of corporations in their hands, and such officers also receive these courtesies; it is an incidental bribe; it is intended as such, and it is not impeaching the integrity of any man, either, to say so. I believe that officers believe themselves honest. I believe that they honestly believe they are not influenced by the extension of these courtesies, but they are influenced unconsciously in many cases. I believe that legislators are unconsciously influenced in the same way, assessors are influenced likewise, and so are other officers. Now, gentlemen, I believe this provision to be in the interests of the public, in the interests of the people, and I do trust that this committee will not strike out this section.

Mr. LUND. I want to ask the gentleman why he left out sheriffs and ministers? What good could the ministers and sheriffs do corporations?

Mr. EVANS (Weber). They want the sheriffs of course to protect their property and bring people to justice who have interfered with it. I do not know that they could benefit the corporation in any other way. So far as ministers are concerned, I do not know as a general rule that they could get

passes; some of them do; they get rates, however.

Mr. RICKS. I want to ask the gentleman if he thinks for a minute that railroad companies will be guilty of trying to bribe Heaven by passing ministers?

Mr. EVANS (Weber). I suppose the gentleman has asked that in a joke. I believe if these corporations could secure a pecuniary benefit they would even bribe the angels.

Mr. EICHNOR. Mr. Chairman, assuming that my friend, Mr. Morris, of Salt Lake City, would have an annual pass from the railroad company, and he should happen to be elected to a State office, could he use that pass, as a private citizen, or would he be barred altogether by this?

Mr. EVANS (Weber). I do not say it is a direct bribe. I say incidentally it is.

Mr. EICHNOR. Would not he be barred from riding on that pass?

Mr. EVANS (Weber). Certainly he would and ought to.

Mr. EICHNOR. Would not the effect of this be to put more money into the pockets of the railroad than they paid out?

Mr. EVANS (Weber). Probably, in one way, the railroad company would receive more money. In another way it would receive a good deal less, and that is very apparent, without going into detail.

Mr. ANDERSON. Mr. Chairman, I think this section should be stricken out. It is legislation pure and simple. I am surprised at some members on the floor who seem to me so tenacious of the rights of individuals in some instances, while in other cases they will go so far as to disfranchise them to a {1573} certain extent, and tax them without representation.

Mr. RALEIGH. I wish to ask the gentleman from Weber a question. Mr. Evans, provided this section should pass as reported from the committee, and the Legislature should enact a law providing for the carrying out of this proposition in this section, do you suppose it would be enforced any more against a railroad company or transportation company than it could be enforced against you or me or anybody else in making a donation to that effect_that is, to the effect of a pass?

Mr. EVANS (Weber). I do not know whether I exactly understand your question.

Mr. RALEIGH. I will state it differently. Do you suppose that you could prohibit by law the giving away of anything by a corporation any more than you can an individual?

Mr. EVANS (Weber). I think it will have a restraint upon them. I do not know that we can prohibit them, because, as it has been stated, we cannot prohibit crime; still we can make laws against it.

Mr. RALEIGH. Can it be enforced?

Mr. EVANS ( Weber). They are enforcing it in New York, I believe, and in Kentucky. Of course, I do not say that they enforce it completely, but it is a restraint upon them, just as far as any other law.

Mr. BOWDLE. Mr. Chairman, there is just one reason why I am in favor of striking this section out, and that is the intent of it cannot be enforced, and it would debar persons from enjoying the same privilege, occupying the same position. Suppose you pass this law. Now, a conscientious legislator under this would not accept a pass. If he were to accept a pass, if this were not here, that kind of man would not be affected at all one way or the other. You cannot buy that kind of man with a little pass from here to Washington County or anywhere else, but the kind of men that the corporation could use would get the pass if you put this in here. They would get around it. Therefore, I say that the very men that you are seeking to enforce this against you cannot do it. It would not be a written pass, probably; it would be a whispered privilege, to the conductor, “you let this fellow go up there; he is all right,” and pass them all. Now, that kind of a fellow would get through and you could not say that that was a pass, and that is the very kind of an element that would be bought by the railroad corporations, and the man that accepts the pass_an honest legislator would not take it, if this stood there, because he would be disobeying the law, and therefore would not accept it, and there is the reason why I am opposing it, and in favor of striking it out.

Mr. FARR. Mr. Chairman, I hope this section may be allowed to remain. It is well known that I am a friend of building railroads in this country, and have done more probably financially than any other man in this Territory. Hence, I am a friend to railroad companies for this reason; I would like to have this section remain, because if this section would remain, it would save thousands and perhaps hundreds of thousands for the Utah Company, as well as the S. P. Company, because when men come to them for a pass by scores and perhaps hundreds, they say, we cannot, because we are prohibited by law. I hope that section will remain and give the companies a chance to get this money.

Mr. L. LARSEN. Mr. Chairman, I am afraid there are too many of the gentlemen right here that would accept a free pass. For the same reason, I am afraid to leave it to the Legislature for fear they would do the same thing. Up to date, they have passed no law against it. I say it is a discrimination; it is wrong in principle, and we should not sustain it. That is my idea about {1574} it. I have always thought so for many years. Talk about that men won't accept it. I know of a great many all over this Territory_lawyers, etc. The people are tired of it. I think we ought to sustain this section. It suits me all right even with the amendment to it.

Mr. SQUIRES. Mr. Chairman, I am in favor of this section as it stands. I believe it should be adopted. During a little experience last fall in going around this Territory during the campaign, I noticed that on every railroad train where I had to pay my fare there were certain territorial officials, who were upon the same business that I was, that were riding free, and that was a discrimination that did not suit me at all at that time, and I believe it is a discrimination which

should not be made. I am in favor of this section just as it stands.

Mr. EVANS (Utah). Mr. Chairman, I hope this motion will not prevail to strike this section out. These corporations have gone into business for the purpose of making money out of it, and every pass they give, they are going to keep up the rates on people who pay. They make about a certain per cent. out of their traffic, and every time there is a pass given out, and when there are numerous passes given out, they are required, in order to get the same per cent. out of the money invested in that business, to make men who pay for it pay a greater rate, and I am opposed to it. Now, it has been said by gentlemen upon the other side that they don't think it makes any difference. I submit to you, gentlemen of this committee, that if you want to gain influence of a man, you simply want to be good to him, and be kind to him. There is no one of you here but knows that that is your own experience, and if persons are kind to you by doing favors towards you, why it is in the human heart to be drawn out and have a tender feeling towads that class of men and that class of people, and this is its effect, just to that extent.

Mr. ROBINSON (Kane). I would like to know what the gentleman thinks about the kind of feeling that has been shown by this article to railroad companies, when half of us are here on passes?

Mr. EVANS (Utah). I propose to stop it in the future, and when we come up here again, let us pay our way, so that some poor fellow won't have to pay it for us. There is a another thing that I want to submit to this committee. Sometime ago there was a law passed whereby the power of equalizing the taxes of the railroad companies was taken out of the hands of the county courts in this Territory, and after that was done, I submit to you, sir, that the passes ceased to come to the county courts. Now, you can make of that just what you are a mind to, but that is the fact. As soon as the power was within those county courts to pass upon the equalization and the raising or lowering of those values, by the county courts, those passes came, and I was the recipient of them for two or three years. I accepted of it, that is true, but as soon as that came into operation they ceased and stopped,

Mr. THURMAN. And now you are opposed to them?

Mr. EVANS (Utah). And now I am opposed to them. I submit to you, gentlemen, this is the fact and you can draw your own conclusions. I submit to you that the power was placed in the hands of an equalization board, composed of officers of the Territory, but that their passes kept coming. They continued to come. Now, you can make out of this what you want to; and another reason why I am in favor of this section particularly above all sections we placed in this Constitution_my friend, Mr. Eichnor, says it is pure legislation. Mr. Anderson says it is pure legislation, and I would like to {1575} have a section in there which is pure legislation, and I believe that is.

Mr. MORRIS. Mr. Chairman, I am in favor of striking out this section, because I believe it to be a dead letter. If the railroads want to bribe they can find other ways to bribe than to give free tickets or free passes. There are many men who are doing very extensive business for the railroads_mining men, and they have passes; that is true. Such men may be called to the

Legislature, and they would have to refuse to accept of that favor, and I believe it would be better to strike this section out entirely. I do not believe it would be any good.

Mr. CORAY. Mr. Chairman, I have a substitute for section 23 I would like to offer.

The CHAIRMAN. Mr. Coray, that substitute would not be in order just at this time.

Mr. RYAN. Mr. Chairman, I have enjoyed the efforts that have been made_what I could hear. I have not been able to hear all of them, but now I wish to say a word in my own way in support of the amendment that I offer. I think it is conceded, and it is conceded by this Convention, at least in former sections of this article, that the Legislature has full control_in other words the people have full control of corporations of all kinds. Corporations are all around creation; they occupy our public lands, our public roads, and our streets under certain conditious [*note*]. They occupy the property of the whole people, not of one class of people, and as a people we are interested in their economical management, and their just and equal treatment of all people. Every citizen should stand alike, and I think it is the duty of the State to make all corporations of that nature, especially public carriers_to treat all its citizens exactly alike. There is no reason why we within this bar should be granted passes and those outside made to pay their fare, because every citizen or every person that the railroad company carries free, you or I, who pay our fare, must pay that much in addition. Hence, I say it is the duty of the State, as I look at it, from my standpoint, that every citizen should be treated alike, and it is the duty of the State to compel all public carriers to treat its citizens alike. Then we stand on the same footing. Because the railroad companies, in the first place, never grant special privileges, except they expect something in return, and they never grant special privileges only to those who are in authority, or who are rich or powerful. You exclude the common people from the benefits that you otherwise have, if everybody was treated alike and everybody paid alike, for all services rendered by any public corporation. Now, it was with that idea in view that I offered my amendment, and I don't think possibly the members fully understood the amendment as I intended to offer it, and I will write it out in full soon.

Mr. THOMPSON. Mr. Chairman, from what I hear, I should judge that the members of this Convention consider the railroad corporations very hard cases. They all seem to intimate that everything that the corporations do they have an idea to effect something, or bring to them something in an unlawful way, Now, I do not view the matter in this light. I think the corporations that are formed and carrying on business in this country as a rule_I think their object is to do business in an honorable way, and to say that they will not grant a favor to any officer of the country, it seems to me is going a little too far. I think they should have the same privilege that any individual has to grant favors whenever they choose, and if it is discovered that they have been using means to bribe any public officer, then it is time to condemn them, and I am in favor of striking out the section. They are a public benefit to the country, and, as a rule, I {1576} do not hold that they take advantage. I do not think that they charge more to people because they give some half rates. I think they have uniform prices, whether they give many free or half passes or not. I do not think it makes any difference, but they want to confer a favor on public officers, as we all, as a rule, feel to honor officers that the whole people have chosen, and I do not think that we should consider that any man that is holding an office that accepts a favor of this kind, would any way be thought that he would favor them and change his opinion in regard to what is

right, in regard to that corporation. I think that the officers that the people of this Territory will choose to fill their offices, will be men of honor, and they will receive it as a favor because of the office they hold, and not view it that the corporations are doing it that they may favor them. Now, I do not feel to condemn them in that way_that are organized in companies.

Mr. LUND. Mr. Chairman, I do not believe that we can enforce this section at all, not even if we should add to it the language of section 17, which says that “and shall enforce such laws by adequate penalties.” I do not believe that even that at the end of this section would make it hold in all cases. For instances, you take an excursion, and every person there is guaranteed a special rate, because it is of special advantage to the railroad company to have its ears filled. Now, from Sanpete County to Saltair last year, I believe they traveled for $2.25 for the round trip, and those who got on the train to go to Salt Lake had to pay $8.50 with no privilege to return. Now, if our sense of justice and equity is very keen, that would be a very great discrimination; but how could we get at that discrimination? What is a special advantage to the railway companies will be that to which they will cater, and we cannot help it, I do not think, by this section, and I for one, would like to see it stricken out.

Mr. HART. Mr. Chairman, I am in favor of the motion to strike this section out. The section as it stands was no doubt intended as being against the interests of the railroad companies, and yet I doubt not any railroad company in this Territory would feel bad for a moment, or any of their officers, if this section were to remain. What member of this Convention felt that a bribe was being offered him when half fare rates were offered? What member of this Convention did not deem that a courtesy, and did not feel that the company might just as well have gone further and given full transportation? Is there any member of this Convention who has been influenced in any way in this matter by accepting the courtesy of a half rate from the railroad company? With the State officers made members of so many boards, necessitating traveling all over the State, if they should be denied the privilege of free transporation[*note*], the result would be that it would take a large part of the two thousand dollars that we allow our governor for traveling over the Territory connected with the various duties of his office. I do not think for a moment that it would influence him.

Mr. EVANS ( Weber). Do not these officers get their mileage out of the treasury of the State anyway?

Mr. HART. I may be wrong about that.

Mr. EICHNOR. It says the Legislature may provide.

Mr. HART. If there is to be any legislation on this subject, however, I think it would be well to leave it to the Legislature and not put it in the organic law. To my mind, it is a provision clearly in the interests of the railroad, and they will appreciate this favor, I am inclined to think, if you will relieve them from the constant annoyance it has given to have various people, officers, etc., soliciting transportation.
Mr. EVANS (Weber). I would like to ask you why it is that railroad companies issue passes to

judges and the board of territorial equalization in this Territory?

Mr. HART. Well, the situation seems to me about this: Officials expect favors of this kind and they are not influenced by it in favor of them, but if you would withhold from them something which they thought the railroad company should give them, they might go further and be inclined to do an actual injustice, and the railroad companies, for not extending a privilege which they have come to look upon as a matter of course and as a matter of right, will suffer.

Mr. EVANS (Weber). Then, your idea is that the railroad companies extend these passes, so that the judges will not do them an injustice, is it?

Mr. HART. No, I do not say that. But that perhaps woud be so with officers in general, if a railroad company, having the privilege to extend a courtesy that they regard as being a matter of course, should deny it to them.

Mr. MALONEY. Do you suppose for one moment that the Legislature, coming here, every one of them, with tickets in their pockets, would ever pass anything restrictive on railroad companies?

Mr. HART. Yes, sir; do you think for a moment that any member of this Convention has been influenced by the half fare rate that he was given? Do you think any member of this house would be influenced if full transportation had been given? I would not like to think for a moment that any member upon this floor would accept a bribe in that way, and would be influenced, and if the railroad corporations engage in this general bribing business I ask you why they did not, when the organic law of this State was about to be framed, when matters either favoring or discriminating against them were to go into this instrument, why did they not commence the bribery business in this Constitutional Convention? Have you seen anything of the kind here_any attempt on their part to influence your action?

Mr. MALONEY. The question that the delegate put answers itself. The railroad company, when the passes issue, expect value received. Now, as to the delegates of this Convention, I can answer the gentleman's question. I want to say to you that for ten years, being a resident of this Territory, I have tried every Legislature to get something passed in the interest of the farmers along the railroad track. I was met in every instance by legislators and attorneys of railroad corporations in the Legislature, all of them with free passes, and not a single bill could I ever get passed in the interests of the farmer against railroad companies. I am opposed to this pass business from beginning to end. Whenever the railroad company can place passes in the hands of the judges, the governor, and the State officials, it expects value received, and it generally gets it.

Mr. KIMBALL (Salt Lake). Mr. Chairman, I understand the situation. Our votes indicate that we are willing to accept any passes. I want to say that we will do no harm in taking everything we can get from the railroads. I will say that every member that may be assisted by a pass will benefit the people, because there will be that much more of the circulating medium amongst us, while if the railroads got it, it may go out of the country. And as for the transportation, there is a schedule there is a tariff on their mileage for passengers, which would not make any difference if

they passed every official in this Territory or country over. It would make no difference to the general public. Now, as to the amendment of the gentleman on my left, I want to say that the business men of this Territory do thousands and tens of thousands of business over {1578} those railroads annually, send men out from one end of the country to the other, drum up business for them, making transportation for them, that they ought to be willing to give those men passes, but they don't get any consideration at the present time, except to buy mileage. Now, I don't think that there is any honorable man in this Territory that we may elect to the Legislature or to other positions, that is likely to receive these considerations as bribes. I think, if there is any prohibition to be placed on this proposition, that you can place it upon the man who receives the bribe. I look upon it the same as I do the liquor traffic. Let us go to work and train the people morally that they will not accept of this bribe, rather than that we should prohibit them giving bribes.

Mr. RYAN. Mr. Chairman, I did not mean to offer any objections to men receiving passes. That is all right if men receive passes. I object to the system, simply. I do not think that we, as a people, should extend that privilege to railroad companies, of giving passes. Now, I don't think it will make any difference with the members of this Convention and their action at all, whether they rode here on passes or not. But speaking about business men riding over the Territory, that is all right. I am a business man. I have spent possibly in the last five years, twenty thousand dollars in prospecting in this Territory_or more. I have always paid my fare. Yet I go into Tinticand two- thirds of the people that ride in with me have passes. Well, now, supposing they all paid, what would be the difference? Why, I would be riding cheaper. You would be riding cheaper. I say that every pass extended to any person makes you and me pay that much more. I say it is wrong in principle. The principle of prohibiting railroad companies from the right of issuing passes is growing. Twenty years ago, we did not think anything of it, to our state and county officers, it was all right, if any one could get a pass. They were smart. Now, states are legislating against it. Some states have gone as far_Pennsylvania has prohibited passes altogether in her constitution. Now, all states and all people are thinking of this question. We will soon be there, if we are not ready in this Convention. We will soon be ready to prohibit all passes and all that system. It is to the interests of the whole people that it should be done, not to one class. If we go on as we are, we simply recognize the right of corporations treating a class of citizens different from another. It is wrong in principle.

The amendment of Mr. Ryan was rejected.

The motion to strike out section 23 was agreed to.

Mr. Coray offered the following to take the place of section 23:

No person, holding office under the State of Utah, shall ever be permitted to accept of a pass or discount on the regular fare charged by the various transportation companies within the State. Any violation of this provision shall be deemed a felony.

Mr. CORAY. Mr. Chairman, I believe it is a fixed rule in the United States that the officers of the United States are prohibited receiving any present from any foreign country whatsoever, and I think that is the line we should work on. We have been discussing the question from the wrong

side entirely, and if we prohibit the members of the Legislature from accepting passes on railroads, the railroads certainly will not grant them.

The substitute was rejected.

Section 24 was read.

Mr. JAMES. Mr. Chairman, I move to strike out section 24.

The motion was agreed to.

Section 25 was read.

Mr. JAMES. Mr. Chairman, I move to strike out section 25. My object in moving to strike this section out is this: {1579} There is only one local insurance company in this city. They are required to be responsible under this provision for their losses. I do not know how many other insurance companies do business in this city, whose stockholders are in foreign places. We cannot enact any law which will hold those stockholders responsible. Consequently we enact a law that discriminates against home industry and in the interest of foreign stockholders. That is my object in striking this section out, and as we proceed in this article under insurance, the amendments that I shall offer will even support my position further than what I have stated.

Mr. EVANS (Weber). Mr. Chairman, I fear that we are going too far in this matter, and I do not see how it is that the chairman of this committee has been converted so readily upon this section which he himself has reported here for favorable consideration. It is a very usual provision in many of the states, in fact in all well regulated states, and it is designed for the protection of those people who take out insurance. It makes the stockholders liable for the insurance when the loss shall have occurred. We simply want to have a Constitution here, it seems to me, according to the spirit, which does not protect the poor man at all. Everything is in the interests of organized combination, of the moneyed power, and we certainly ought not to pass over things in this way. I protest against the striking of it out.

Mr. MALONEY. Mr. Chairman, I am at a loss to know why, on a meeting of the full committee, this section 25 was deliberately agreed upon by every member of the committee, the reasons therefor were given, and without consultation with any member of the committee, as I understand it, the chairman of the committee moves to strike it out. Now, there are no safeguards at all if these stockholders have money in there and the corporation becomes involved, and the policy holders ought to be protected in some manner. This is a usual provision in a great many of the constitutions, and I insist that it remain in.

Mr. CANNON. I would ask Mr.. Maloney if he states that these sections on insurance were agreed to by the whole committee without any protest?

Mr. MALONEY. I so understand it. At the last meeting I never understood that there was a single protest from any member of this committee.

Mr. CANNON. I wish to explain that at the last meeting I stated there were several sections I did not agree to, because I did not think they were proper, but I thought they could be amended in committee of the whole as well as there.

Mr. SQUIRES. Mr. Chairman, I want to call attention to the provisions of section 26, and have those provisions considered in connection with section 25. Under section 26 every corporation is required to make a deposit with the state treasurer. Now, why should we make a distinction, and in addition to that make our own local company, the only company we have in Utah, responsible through its stockholders? I believe that is an unfair discrimination against our home company, and I agree with the chairman of the committee that that section should go out.

Mr. JAMES. Mr. Chairman, I wish to make an explanation, as chairman of the committee. The chairman has moved to strike out, after a few consultations with some members that he could reach, but not with a full understanding of the committee, and Mr. Maloney is right as far as I understand it, that we did agree; but I do not think Mr. Maloney would wish to hold me or any other man, after we have investigated and found out we have made a mistake. I say, as Mr. Squires has said, that it discriminates against one company and all the great insurance business that is done here it gives no protection whatever to, it is my intention {1580} to support the striking out of section 26, because we have also discovered that a uniform requirement of all insurance companies in this Territory of a hundred thousand dollars at least would be an injustice, and I do not want to perpetrate any injustice in this Convention on any corporation.

Mr. SQUIRES. Strike out that amount and substitute some other.

Mr. JAMES. I have a substitute here, which, just as soon as we can reach the question, will be considered.

Mr. THATCHER. I desire to ask Mr. Squires whether, if this section is stricken out, the same action would be then had in reference to section 32, which requires banks to be responsible, not only for the amount fully paid up, but a like amount in addition? That is for the safety of depositors, and this is for the safety of those who insure.

Mr. SQUIRES. I submit that banking is a different business from insurance, and we can meet that when we reach it, but I see here an unfair discrimination with section 26 as it stands, against a local company, and I am opposed to that discrimination.

Mr. THATCHER. Mr. Chairman, we are on section 25, and I would like to say a few words on that question. Insurance companies insure business property and residences, not only to the limit of their capital stock, but far above that. Supposing now, there should be a fire that would sweep out a number of insured buildings and wipe out the entire capital stock of the Home company, to which reference has been made. Then ought not the stockholders to be doubly liable, in order that those who paid their money may be protected, just the same in insurance companies as banks? If you do not preserve this section and the Legislature would fail to enact one similar, you will have a good many home insurance companies and a good many bankrupt ones, too, in my opinion.

Mr. KIMBALL (Salt Lake). Mr. Chairman, I believe there is no discrimination against the Home company, but it is going to give them prestige over the foreign companies. if an agent from the home company should come to me and show me this law, whereby we would be protected, or I would be protected, and that each individual shareholder in that institution was liable, by all means I would accept of the home company in preference to the foreign company, and we are going to give them prestige in this respect; consequently, the way I look at it, I am prepared to sustain this section.

Mr. THATCHER. So am I.

Mr. SQUIRES. Mr. Chairman, my own impression is that if this section should be adopted, or should remain there, and this discrimination should remain against the Home company, instead of benefitting it in the way the gentleman suggests, I believe it would succeed in winding up the affairs of the company; that none but foreign companies doing business in this State would have any business.

Mr. BARNES. Mr. Chairman, I agree with Mr. Squires exactly. I think if this discrimination is allowed to be adopted that it will undoubtedly have the effect of winding up the affairs of the Home company. Now, I submit, gentlemen, that for years there has been no law that I am aware of upon our statute books requiring anything of this kind, and there has only been the one home fire insurance company organized. Some gentleman, I believe, made the assertion that there will be a great number of home fire insurance companies organized unless some provision of this kind is made. Gentlemen, there is not sufficient money made in insurance in this Territory to warrant the formation of another company. Already, I can tell you, that the Home Fire Insurance Company has considered the propriety of winding up their affairs by way of insurance, and if you go to work and cripple them, what Mr. Squires has said, {1581} will most assuredly be brought about. I submit, gentlemen, that the Home Fire Insurance Company has dealt honestly and fairly with every one that has insured with it; not one, I believe, who has fairly dealt, with the company has been cheated or despoiled. When they have incurred losses, or when they have met with an accident by way of fire, that company has been honorable and expects to be honorable, and will treat the public honorably. Then, why should we cripple them, why should we ask of them that that we cannot ask of these great companies that come from abroad? Why, gentlemen, are you so afraid of corporations? I have sat here and listened to-day and I have come to the conclusion that you all believe the adage, that corporations have no souls. I submit, what is a corporation, if it is not an assemblage or aggregation of individuals? If the individual is honest, if the individuals composing the corporation are honest, then the corporation will be honest, and why should we have such doubts and endeavor to legislate so against corporations, I cannot understand. I take the position, gentlemen, that this is entirely unfair with regard to the Home Fire Insurance Company, and hope that the suggestion of the chairman of the committee, that it be stricken out, will prevail.

Mr. RYAN. Mr. Chairman, it appears to rue that that is an improper way to commence that matter on insurance. It does not strike me as being proper at all, and that probably one general section might cover that and banking, directing the Legislature to do certain things. If the section on banking would be amended to embrace insurance companies, and leave the whole matter to

the Legislature as a matter of detail, the balance of the matter might go out.

Mr. JAMES. May I inquire of Captain Ryan what he is speaking about? I want to ask him if he is desirous of placing the matter in the hands of the Legislature and letting them deal with it?

Mr. RYAN. Exactly. I was just giving my views on the section covering insurance and banking, that it seems to me wholly unnecessary, and that it did not start in right in one way.

Mr. JAMES. The proposition is this: The Legislature shall enact laws, compelling each company, corporation, association, or individuals, doing an insurance business in the State of Utah, to deposit with the state treasurer of Utah, in money or its equivalent, such sum as they may deem sufficient to protect policy holders, or in lieu thereof, require such companies, corporations, associations, or individuals, to hold unincumbered an equal amount in value of real estate. The secretary of the State has a guaranty fund for the security of policy holders. It turns it over to the Legislature and leaves it absolutely in their power, compelling them to do something to protect the public.

Mr. THURMAN. Mr. Chairman, I am opposed to striking out section 25. A great deal has been said here about the Home company and how this action would affect the Home company. My view of the law is that the Home company would not be affected at all, or any other company organized before the Constitution goes into effect, because we cannot, by a legislative enactment, or by a constitutional provision, increase the liability of a stockholder over and above what he contracted for at the time he entered into the contract of incorporation. That cannot be done. It would be impairing the obligation of a contract, and it is not one of those things that the Legislature has the power to regulate and control after the contract has been made; but it will operate in the future, as to future organizations, and for the good and wholesome reason suggested by the gentleman from Cache County, I do not see {1582} why we should not have that liability attached to the stockholders. It is certainly a peculiar business. It is one in which, by virtue of the exigencies that may exist or occur, the capital stock subscribed will not be sufficient to pay the obligations of the company. It is not like another business in which a company can foresee what its liabilities are going to be, and can guage its liabilities according to its capital stock. It may be thousands; it may be millions; they cannot tell, according to the value of the property it has insured, and it is a proper case for the law to require of the stockholders of the company something more than the ordinary guaranty to satisfy liabilities. And I trust, gentlemen, that we will retain this section if the chairman does strike out the next one.

Mr. WELLS. How do you construe section 2, in connection with your statement that it does not affect the companies now in existence?

Mr. THURMAN. Well, I do not know what section 2 is, but I will say without seeing it, that no matter what it is this Convention cannot say that the liabilities of stockholders in existing corporations shall be doubled, because that is a matter of contract.

Mr. WELLS. I merely wished to ask if in your opinion that would affect the stockholders in the present company?

Mr. THURMAN. It would affect them, as suggested by Mr. Evans, simply as to future legislation. That is what it merely relates to.

Mr. KERR. I would like to ask Mr. Thurman a question. If it is desirable that each stockholder of any insurance corporation shall in the future be individually and personally liable, etc., why is it not also desirable that any corporation incorporated in the past_the stockholders should also be responsible? I do not see why we should discriminate in favor of any corporation already existing.

Mr. THURMAN. It might be very desirable, but it would simply be unconstitutional. It would be in violation of the Constitution of the United States, which says that the state can make no law impairing the obligation of a contract. Now, when they entered into a corporation they entered into a contract in the first place. What was that contract? They contracted with the law as it was, and that was that they were liable to the amount of their capital stock subscribed and paid up_and no doubt a clause in their articles to the effect that the personal or private propery of the stockholders should not be liable for the corporate debts. Now, we come along after that contract is formed on that basis, and by an enactment here, can we say that that contract shall be impaired by declaring that the liability shall be doubled? I say no. I do not care what declaration we make, it is void in so far as it impairs the obligation of a contract.

Mr. SQUIRES. Then the same rule would apply to section 32, relating to banks?

Mr. THURMAN. We will climb that hill when we come to it. I believe that was your language a while ago.

Mr. BOWDLE. Mr. Chairman, I want to coincide exactly with what Mr. Thurman has said. If I had been near him, I would have given him a book which I have here, Morrowitz on private corporations, that covers exactly the proposition Mr. Thurman has laid down:

Whatever doubt there may be as to the correctness of the doctrine that a charter of a corporation embodies a contract between the state and the incorporators, there can be no doubt that the charter of an ordinary business corporation embodies a contract among the corporators themselves. The shareholders of such a corporation may agree to unite for the purposes indicated in their charter. Each shareholder agrees to contribute his proportionate share of the capital of the association, and each in return becomes entitled to a share in the profits and {1583} in the management of the corporate affairs. The agreement thus created is in the strictest sense of the word a contract, and every reason exists for treating it as a contract within the meaning of the provision of the Constitution of the United States, that no state shall pass any law impairing the obligation of contracts.

So that, as far as the Home insurance company is concerned here, or any corporation that is incorporated at the time this Constitution shall be adopted, we cannot affect their rights, nor increase their liabilities, and section 2 with its declaration cannot compel them to make a single change in any contract they have entered into.

Mr. BUTTON. Mr. Chairman, in view of there being so many members absent, I move that we arise and report progress.

The question being taken on the motion to strike out section 25, the committee divided and by a vote of 31 ayes to 27 noes, the motion was agreed to.

The motion to rise and report progress was rejected.

The count being challenged on the vote to strike out section 25, the vote was retaken and stood 31 ayes to 28 noes.

Section 26 was read.

Mr. James offered the following substitute for section 26:

The Legislature shall enact laws compelling each company, corporation, association, or individual, doing an insurance business in the State of Utah, to deposit with the state treasurer of Utah, in money or its equivalent, such sum as they may deem sufficient to protect policy holders, or in lieu thereof, require such company, corporations, associations, or individuals, to hold unincumbered an equal amount in value of real estate, subject to the order of the secretary of state, as a guaranty fund for the security of policy holders.

Mr. JAMES. Mr. Chairman, in support of this substitute that I offer, I will have this to say: When the committee on corporations was formed, they adopted a policy of sending out a communication to all corporations and associations, and even business men, in this Territory as far as they could reach them. We addressed the insurance companies. The insurance companies neglected to answer our communication. The chairman of the committee had several conversations with gentlemen doing an insurance business here and some other members of the committee had conversations as well with others, but we were unable to get any information. Knowledge came to the committee that there was probably no set of institutions, associations, or incorporations, in this Territory doing business, that were doing greater injury or wrong to the public than insurance companies. We found out that there had been a company which came into this Territory a few years ago from California and did a large amount of business. They had gone into one mining camp and the miners almost in a body went into that company. It was a life and accident company. There were a great many claims against that company, but not one man in that mining camp in Park City ever received one cent back, although thousands of dollars of those poor men's money was taken from them and went into the pockets of these individuals that were robbing the public.

Mr. THURMAN. If that be true, why do you want to strike this out and put in something that has no effect at all?

Mr. JAMES. Did not I understand you, in a conversation with you, that we would have to do something regarding that section?

Mr. THURMAN. Reduce the amount?

Mr. EVANS (Weber). I would like to ask a question right there. If the policy holders are the ones that you want to protect, why do you want to relieve the stockholders from individual liability?

Mr. JAMES. Simply because the stockholders do not live here and that section does not cover them. We cannot get at them. They live in California. {1584} Well, then, we also learned of another company in Salt Lake City that organized and started in to do business, but we were not able to ascertain as to the amount of business that they did, whether it was very extensive or not, but it seems to me that they got some one to make oath that they had collaterals or something that our present statute requires, to the amount of two hundred thousand dollars, and they started out and did some business, and we understand that people were robbed through that company. Then, about the time that this matter was being considered by the committee_this insurance matter, there came to my observation some information regarding an eastern insurance company, that is called the Mutual Reserve Fund Life Association. I had quite a good deal of knowledge of my own regarding that company.

Mr. SQUIRES. Is that the New York institution?

Mr. JAMES. Yes, sir. Now, I know of over a hundred thousand dollars of insurance that they took in this town between eight and ten years ago, and some of it about twelve years ago. The life of the company was about twelve years. I know one gentleman, that is a member of your Convention here, that has a fifteen thousand dollar policy in that company. I know another that has a ten thousand dollar policy in that company. I know a prominent business man in this town that has a twenty-five thousand dollar policy. I know another that has a twenty thousand dollar policy. I know several that have fifteen thousand, several more that have ten thousand, and some five thousand.

Mr. MALONEY. Now, if all that be true, why not say here, “life or accident?”

Mr. JAMES. I will answer that as I go along. Now, the information that comes to me from the New York Herald states that this company has been practicing the most high-handed and outrageous fraud. I find here, stated by the commissioner of insurance of the state New York_

Mr. EVANS (Utah). Mr. Chairman, I arise to a point of order. The gentleman has occupied his five minutes.

The CHAIRMAN. The gentleman has not occupied five minutes of his own time. He has been interrupted by questions.

Mr. THURMAN. Mr. Chairman, I make the point of no quorum.

Mr. BUTTON. Mr. Chairman, I move we arise and report progress.

The motion was agreed to.

The committee then rose and reported as follows:

Your committee of the whole beg leave to report that they have had under consideration the article on corporations other than municipal, and report progress.

Mr. SQUIRES. Mr. President, I move we now adjourn.

Mr. Cannon, in the absence of the president, was called to the chair.

Mr. ANDERSON. Mr. President, I move we take a recess until 7:30.

Mr. SQUIRES. Mr. President, I arise to a point of order. Under Roberts' rules, whenever it is discovered in committee of the whole that there is not a quorum, the only thing to do is to rise and report progress to the Convention, and then there is nothing for the Convention to do but to adjourn.

Mr. EVANS (Weber). Mr. President, I arise to a point of order. My point of order is that it has not been ascertained that there is no quorum present.

The PRESIDENT pro tem. The point of order is well taken. The secretary will call the roll.

A roll call showed no quorum present. On motion, the Convention then adjourned.

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