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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.

Roll call showed a quorum present.

Absentees_Hart, Kearns, Francis, Kerr, Larsen, C. P., Lewis, Low, of Cache, Lowe, Win., Peters and Pierce.

Excused_Keith, Eldredge, Moritz, Buys, Gibbs and Ryan.

Prayer was offered by Delegate Heybourne, of Iron.

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

The Convention then resolved itself into committee of the whole, with Mr. Evans, of Weber, in the chair, and resumed the consideration of the article entitled public buildings and State institutions.

The CHAIRMAN. The chair under stands {1628} that we got down to the fifth subdivision of section 6.

Mr. KIMBALL (Weber). Mr. Chairman, I move to insert in the blank in the fifth subdivision, after the words, “institution for the deaf, dumb, and blind,” the words, “at the city of Ogden, in the county of Weber.”

Mr. RICKS. Mr. Chairman, I move that we strike out lines 16, 17 and 18 of this section.

Mr. CHRISTIANSEN. Mr. Chairman, I present the same amendment here this morning that I offered Saturday evening, when we adjourned, that was to strike out all after “blind,” and insert “Sanpete County, the site to be selected by the Legislature.”

Mr. KIMBALL (Weber). Mr. Chairman, I think that it is to the best interests of the State institutions that the location ought to be made permanently now, and I think that for this reason: In view of the fact that the present building occupied by the deaf, dumb, and blind has been transferred by this Constitution to the university, now, I think. for the benefit of that institution, as well as for the benefit of the pupils that are taught in it, the institution ought to be located permanently, and it seems to me that Ogden City offers more inducements, and has more facilities than any place in the Territory outside of Salt Lake City. So far as the institution itself is concerned, the Territory now owns buildings in Ogden City, amply sufficient to accommodate all of the pupils for years to come and at very little expense. The next Legislature can so arrange those public buildings as to accommodate this institution. For another reason, it seems to me that it ought to be located permanently, it is a central location, accessible, not only to all parts of this Territory, but all parts of the surrounding states and territories, and in view of the fact that neither

Montana nor Idaho has institutions of the character_if Logan had a central location such as Ogden is, there would he a consider.. able number of outside students. I submit, Mr. Chairman, that my amendment should be adopted.

Mr. JAMES. Do I understand the proposition made by Mr. Kiesel and other delegates from Ogden is still held good?

Mr. KIMBALL (Weber). I have no doubt, sir, but that will be held good. My view was that the Legislature would take the reform school building for this institution, and the other buildings for a reform school.

Mr. RICKS. Mr. Chairman, I believe it would be a mistake for this Convention to locate permanently either the reform school or the school for the deaf, dumb, and blind, for the reason that we have not yet definitely settled in our minds where these institutions ought to be located. It was a question at the last Legislature whether the reform school ought to be continued or not, and it is a growing sentiment throughout the Territory to-day that the school ought to be abandoned, because of its expense to the State. Now, Mr. Chairman, while the arguments of Mr. Kimball may apply all right to the deaf and dumb school, it seems to me that it would be a mistake for this Convention to locate that school. We do not know, sir, but what in the near future we may want those buildings and the grounds at Ogden, for the State normal school. The state normal school, as I understand it, is not yet permanently located, and I believe it would be for the best interests of the State to strike out the third subdivision, and also the fifth, and leave the matter of reform school, the school for the blind, and also the state normal school, for future action of the Legislature.

The amendment of Mr. Christiansen was rejected.

The amendment of Mr. Kimball, of Weber, was rejected.
{1629 - SCHEDULE}
The motion of Mr. Ricks was agreed to.

Mr. RICKS. Mr. Chairman, I move you, sir, that we strike out lines 12 and 13, of the third subdivision.

Mr. IV INS. I would like to hear the gentleman's reasons for asking that this section be stricken out. We may carry this thing to an extreme, if we commence to follow on in the line proposed.

Mr. HEYBOURNE. Mr. Chairman, I am of the opinion that this is somewhat of a sweeping motion. I understand that institution has quite a record, costing the Territory considerable. To go now to work and strike this matter out, I think it is a little unusual and wants some explanation. Therefore, I shall oppose the motion unless the gentleman can furnish some good reason for his action.

Mr. RICKS. Mr. Chairman, my reasons are, as I just stated, that the reform school is not a permanent institution of the State; that there is a growing sentiment throughout the State that it

ought to be abolished because of its expense to the State. Now, if we strike that out, it does not discontinue the reform school. It remains just as it is at the present time, located at Ogden, subject to be removed or abolished, or some change made, as contemplated by Mr. Kimball, and the Legislature may desire, and I believe, sir, it is for the best interests of the State to not locate that in the Constitution, but leave it wholly to the Legislature.

Mr. JAMES. Mr. Chairman, I cannot realize how it can be that a growing sentiment can be found in the Territory of Utah to abolish our reform school. If there is a necessity, to my mind, it is the reform school. Why, Mr. Chairman, just think of these little urchins that are without fathers or mothers    

Mr. BUTTON. Mr. James, Mr. Ricks will withdraw that and let it come up on the third reading.

Mr. RICKS. I will withdraw it, yes.

Mr. BUTTON. Mr. Chairman, I move that the article as amended be passed and referred to the Conventon for third reading.

The motion was agreed to.

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

Sections 1, 2, 3 and 4 were read.

Mr. RICHARDS. Mr. Chairman, I move to insert after the word “accordingly,” in the twelfth line of section 4, the following words:

All taxes assessed or levied under the laws of the Territory of Utah shall continue taxes assessed and levied in the State of Utah, and their validity shall be unaffected by the change to state hood.

I think there is an omission to provide for that.

The CHAIRMAN. What is the use of the words “people of the United States in the Territory of Utah?”

Mr. KIMBALL (Weber). Some years ago all recognizances ran to the people of the United States in the Territory of Utah, and all criminal recognizances and judgments in favor of the Territory were taken in that name, that is why, I suppose, that language is inserted here. It was discontinued in 1884. In 1884, the Legislature changed the style of process to the people of the Territory of Utah_or 1878, originally, I think.

The amendment of Mr. Kimball, of Weber, was agreed to.

Mr. RICHARDS. Certainly not, I think the phraseology would be better. It was written in haste.

The CHAIRMAN. I would like to call Mr. Richards's attention to the fact that the schedule in another place continues all the laws of Utah in force under the State government. Would not that cover it?

Mr. RICHARDS. I am afraid not. This section, you will observe, deals particularly with the revenues, property, etc. It seems to me that in order to make that absolutely safe we ought to include taxes.

Mr. RICKS. I would like to ask Mr. Richards if he would insert, “taxes” right after “fines,” in the third section, if that would not answer that same purpose?

Mr. RICHARDS. I think not; I do not think it is broad enough to meet the question.

Mr. EICHNOR. Mr. Richards, would not your amendment be covered by the word “revenue,” in line 13, and the provision in another section that all the laws of the Territory of Utah would be in force?

Mr. RICHARDS. I think not. In my view the taxes assessed are not revenue until collected. I do not think that is covered by anything in the schedule, or else I would not have suggested it. This section, as I remarked before, is an enumeration of the various things that are to be preserved to the State, and I think that it would be dangerous to omit any thing that is desired to be preserved.

Mr. RICKS. Mr. Chairman, Wyoming, Washington, South Dakota, which have recently formed constitutions, have nothing in the constitutions that cover the amendment made by the gentleman. I believe that the word revenue there, taken in connection with the second section, will cover the ground.

Mr. GOODWIN. I would like to ask Mr. Richards if the words “assessed taxes” would not cover everything, put after the word “and,” at the end of line 12?

Mr. RICHARDS. Possibly it might, I am not sure. Of course, in framing this amendment, I desire to say that I prepared it so that there would be, as I thought, no possibility of mistaking the meaning of it, and it seems to me that any section of the importance of this we should be careful to leave it unambiguous. If there is any sort of doubt about the necessity of this amendment, the amendment ought to be adopted, because this is exactly the reverse of the usual effect of the provisions we are putting in the Constitution. Ordinarily the provisions that we are putting here are restrictive of the powers of government, but this provision is just the reverse of that, it is preservative. This section is for the expressed purpose, not of limiting, but of preserving to the State all that belongs to it, and if there is any doubt about the matter, the doubt should be solved in favor of making it explicit and full. Therefore, I think the amendment is necessary, or I would

no thane proposed it.

Mr. HAMMOND. May I ask Judge Richards a question? What, sir, in your opinion, would be the effect, if this amendment of yours should not prevail? Could we not assess and collect taxes? Would that be the end of taxing the people? If so, I would support it.

Mr. RICHARDS. The gentleman from San Juan does not apprehend the purpose of the amendment.

Mr. HAMMOND. No, I do not apprehend it.

Mr. RICHARDS. It is not that I apprehend there would be no power in the State to assess, but there might be taxes assessed under the territorial form of government, which were not yet collected at the time the State government takes effect, and it is to preserve {1631} those taxes and allow of their collection.

Mr. HAMMOND. I am in favor of taxing every time. If we could not collect it we ought to.

Mr. GOODWIN. Mr. Chairman, I move as an amendment that the words “and assessed taxes” be inserted after the word “accordingly.”

The amendment of Mr. Goodwin was agreed to.

The amendment of Mr. Richards was rejected.

Section 5 was read.

Mr. RICHARDS. Mr. Chairman, I move to insert after the word “State,” in line 6, the following words: “And in the court having jurisdiction thereof under this Constitution.”

Mr. RICKS. Do not you think that that is fully covered in section 6?

Mr. RICHARDS. I offer this amendment for the purpose of offering a substitute for section 6. I think section 6 is not well constructed, and I think I can offer a substitute much shorter for the section. I have no objection to reading it. I shall offer the following as a substitute for section 6:
All actions and proceedings, which may be pending in any of the courts of the Territory of Utah at the time of the change from a territorial to a state government, may be continued and transferred to the State court or courts having jurisdiction of the subject matter thereof under this Constitution.

The amendment of Mr. Richards to section 5 was agreed to.

Section 6 was read.

Mr. RICHARDS. I desire to submit the substitute just read for that section.

Mr. RICHARDS. I would like to ask the gentleman a question. Omitting the last three words, “under this Constitution,” which ought not to be in the section, and I, therefore, ask the chairman to strike them out_they were not there as originally written_I ask Mr. {1632} Varian why this section would not cover the ground.

The CHAIRMAN. I suggest if that word “may” should not be “shall?”

Mr. RICHARDS. No objection to making the change.

Mr. VARIAN. I call attention of the gentleman to the fact that there are different classes of cases under the federal judiciary act, which may be transferred, and for different reasons. In certain cases there may be transfers upon the ground of local prejudice, and the moving cause of transfer is an affidavit. In others it is the citizenship of the party. In others, it is where claims are made upon grants of land, from different states, and so on,The only exclusive jurisdiction of the United States courts is that of criminal cases arising under the federal Constitution. Now, what we want is to draw this thing with particularity, not necessarily that they should be transferred, but, if in accordance with the act of Congress, within a certain time after the adoption of this Constitution, any party who would have been entitled to have it transferred, if at the time they were commenced there was a State government here, they do so. I would not absolutely put a fiat in there that they should be transferred, because that would conflict again with the congressional act under the Constitution of the United States. You will see that it requires some degree of detail and particularity. I had hoped to have been able to put my ideas in more specific form this

morning, but I was waiting on these other gentlemen.

Mr. BUTTON. Mr. Chairman, I was going to ask if we could not pass this section and let the gentlemen have their amendments printed in the minutes tomorrow?

Mr. VARIAN. It could come up, if Mr. Richards did not object, on the third reading. There is nothing in this except to get it exactly right.

Mr. RICHARDS. That is all, as far as I am concerned; it makes no difference whether the consideration is postponed and we take it up after lunch in the committee, or whether we go on and act on the substitute. I was going to remark that the remarks of my friend from Salt Lake have given me considerable confidence in the section I have proposed. I believed it was about right before, and certainly he has not pointed out any weakness in the section. I ask to have this section submitted as a substitute.

The CHAIRMAN. The chair is somewhat delicate about making this statement, but it is firmly of opinion that we ought to continue this until third reading. It is very important and it ought to be considered very carefully.

Mr. RICHARDS. If the gentlemen desire to have me withdraw this and present it on the third reading, I am willing to do it.

Section 7 was read.

Mr. GOODWIN. Mr. Chairman, I suppose this is all right, but I do not understand it. I arise for information. The sentence beginning in the middle of line 15_are the probate judges to re main in office after the district judges are elected and qualified?

The CHAIRMAN. According to this schedule, they are. They are to hold office until the first day of January, 1896. I suppose the idea of the committee was to give ample time to have the matters in the probate court transferred to the district court.

Mr. GOODWIN. The judges will not take their office until next January?

The CHAIRMAN. Yes; that is right.

Mr. RICKS. Mr. Chairman, I think there is a provision somewhere in the Constitution that provides that all officers elected under this Constitution shall take their offices immediately upon the issuing of the proclamation of the President.

The CHAIRMAN. The chair can answer Mr. Goodwin's question in this way, if it will be permitted: That {1633} when the President proclaims Utah a State, the Constitution immediately goes into effect, and the jurisdiction then of the probate courts would be given to the district courts, but the idea is to continue that thing until the first day of January, 1896.

The CHAIRMAN. The chair would like to make a suggestion, that after the word “of” in line 8, the word “this” be inserted, and the words, “the above” stricken out.

Mr. BOWDLE. Mr. Chairman, that is just the motion I was going to make, because that would refer to the other section. Therefore, I move you that the word “the” and “above” be stricken out, and the word “this” be inserted.

The amendment was agreed to.

Section 9 was read.

Mr. RICKS. Mr. Chairman, I have an amendment to offer to that section. In line 3, after the word “held,” strike out the word “and” and insert the following, “on the Tuesday next after the first Monday in November,1895, and shall be.” The reason for that is this: I notice that we have not anywhere in the schedule specified the date of the election of State officers, while we have set the date for the adoption of the Constitution, and it is thought better to name the day on which the election of State officers should be held, as well as the adoption of the Constitution.

Mr. MALONEY. Mr. Chairman, I have an amendment I wish to make, to strike out the word “and,” in line 13, and in lieu thereof insert the following: “All electors qualified to vote under this Constitution may vote.”

The CHAIRMAN. We will pass on the amendment of Mr. Ricks, as it is a different part of the section.

Mr. CREER. I will ask the chairman of the committee if it is necessary_it is specifically provided for in section 4 of the Enabling Act, that there should be an election on that date for the adoption of the Constitution.

Mr. ANDERSON. This is for State officers.

The amendment of Mr. Ricks was agreed to.

Mr. GOODWIN. Mr. Chairman, I want to offer an amendment in line 12, after the word “election,” to add “and are qualified voters,” because there might be a great many citizens 21 years of age who would not be registered at that date or who might have been convicted of some crime and therefore not qualified to vote.

Mr. RICHARDS. Mr. Chairman, I move an amendment to insert after the word “election” the following words, “and all persons who are qualified to vote at elections held under this Constitution after its adoption.” I think that is necessary under the Enabling Act.

Mr. VARIAN. Mr. Chairman, I submit that it is not germane to the other amendment.

The amendment of Mr. Goodwin was agreed, to.

The CHAIRMAN. Mr. Maloney offers the following amendment to section 9: After the word “and,” in line 13, insert the following: “All electors qualified to vote under this Constitution may vote.”

Mr. RICHARDS. Mr. Chairman, I think this amendment is all right as far as it goes, but I do not think it goes far enough. I think that under the law all electors of the proposed State have the right to vote for this Constitution, and if they do not vote for or against it_in other words, if it is not submitted to all the electors of the proposed State, it will not be a valid submission; that is my contention, and hence, no matter how many votes may be cast for it, the Constitution would not be adopted and the State would not be admitted. Now, I know that this view was denominated an absurdity by distinguished {1634} gentlemen on the floor of this Convention at an earlier day in the session, when their attention was called to the matter, but it does not matter if that suggestion was made, it is a very serious question, gentlemen, that confronts us here this morning, and it is a question that no man on the floor of this Convention, and no member of this committee, can afford to allow his personal feelings and prejudices to control his judgment hi relation to. I submit that if we make a mistake in this matter and do not submit this Constitution to the people who have a right to vote upon it and it fails for that reason, a grave responsibility will rest upon the members of this Convention. Now, I propose an additional amendment to the one which I have already suggested to be added to the end of this section; that all the votes given by female voters for or against this Constitution shall be deposited by election officers in a separate box and canvassed separately and so certified by the commission.

Now, my purpose for offering these amendments is this, if it be true_and I stand not here alone advocating this view of the matter; I have in my pocket a communication addressed to this Convention that would have been presented if I had been so fortunate as to get here this morning before you went into committee of the whole, addressed to the president and members of this Convention, signed by Judge J. G. Sutherland, Charles C. Dey, John A. Marshall, George Sutherland, H. P. Henderson, and in addition to those names, many other distinguished members of the bar of this Territory, entertain the same view, that these people have a right to vote on this Constitution, either for it or against it, and any submission of the Constitution to the people that did not include and carry with it the right of these people to vote, would not be a legal submission. Now, as I say, I desire to meet the views of all parties I desire to be cautious in this matter, and for that reason, while I make the proposition that all persons who are entitled to vote under this Constitution at subsequent elections, shall vote for or against the Constitution, and for the State officers, I also would provide that the female votes shall be taken separately so that no harm can result from taking a vote, and it may be the means of preventing the defeat of statehood.

Mr. SQUIRES. Will the gentleman read the letter that he gave the signatures to?

Mr. RICHARDS. Inasmuch as this is a public matter, I will read it cheerfully.

Mr. GOODWIN. At the same time, may I ask the gentleman what the object is of having a separate vote in this case?

Mr. RICHARDS. Simply this, that if the contention of the gentlemen who say that this is an absurdity, and that these people are not entitled to vote, should be correct, then the vote ought to be separate or ought not to be taken at all.

Mr. GOODWIN. Who is to determine that?

Mr. RICHARDS. That is a matter that the courts will determine, of course. This Convention cannot determine it, no matter what view we take. Our decision on this matter is not final: We are not the arbiters. We cannot tell who are the qualified voters here, and have our decision final. Therefore, let us proceed in such a way that there can be no question in regard to this matter. If the vote be taken and their votes are not necessary or are improperly cast, it is not necessary to count them, or at least if the Constitution should be adopted without the vote, there would be no question as to its adoption. If the Constitution was not adopted without the female vote, then the question could be {1635} tested as to whether or not they were proper electors, and it could be thereby determined whether or not the State should be admitted. I will read what these gentlemen say on this subject:

To the President and Members of the Constitutional Convention:

The undersigned, members of the legal profession, having a common interest with other citizens of Utah, not only in the formation of a good Constitution, but in a regular submission of it for adoption by the people, and observing that there is considerable diversity of opinion on the question whether the persons who may exercise the elective franchise under this Constitution, if adopted, may vote at the election next November for its ratification or rejection, we offer the following suggestions on that subject: Section 4 of the Enabling Act fixes the time for that election and contains this language, as to voters: “The qualified voters of said proposed State shall vote directly for or against the proposed Constitution and for or against any provision separately submitted.” Section 2 also contains a provision on the same subject in these words: “Persons possessing the qualifications entitling them to vote for delegates under this act, shall be entitled to vote on the ratification or rejection of the Constitution.” They are “all male citizens of the United States over the age of 21 years who have resided in this Territory for one year next prior to such election.” It is supposed by some that the persons thus mentioned in section 2 are the only persons entitled to vote for or against the Constitution, on the maxim that the mention of one person or class is an exclusion of others. The maxim is sound and applicable, for the right to vote at this election must be granted and the right can be exercised only by those to whom it is granted. The mention of those who may vote need not be in one section exclusively. Particular persons may be mentioned in one section and others in another, section and the maxim will cover the accumulative enumeration, and only those not mentioned in either section will be excluded. Does section 4 profess to confer the right to vote, and by a different and possibly more comprehensive description than that contained in section 2? We think it does. The qualified voters of the proposed State are manifestly those who will be qualified voters when the

proposed State becomes a State, those who possess the qualifications that the Constitution of the proposed State requires. The persons declared entitled to vote in section 2 are not declared in that section to be qualified voters of the proposed State, and in our judgment the Constitution might be so framed that no male citizen only 21 years of age could vote, so that no citizen who has not resided in Utah longer than one year could vote.

On the other hand, the Constitution may so define the qualification of voters that they may exercise the right at and over eighteen years of age, and after six months' residence. If so, it may define the right in a manner to make no distinction between the sexes. The qualified voters of the proposed State, according to the requirements of the Constitution, including the persons mentioned in section 2, whether they possess all the constitutional qualifications or not, would seem plainly to be the persons to whom the Constitution must be submitted. In other words, if women are guaranteed in the Constitution the right to vote, they have the right to vote on the ratification or rejection of the Constitution. It has been suggested that the expression “qualified voters of the proposed State,” means the voters within the boundaries of Utah, and has no force to require anything, but being voters within that area. Doubtless it requires residence within that area, for it requires them to be qualified voters. To be such, they must have all the qualifications enumerated in the Constitution_It should be borne in mind that constitutions generally prescribe the qualification of the persons to whom the question of their adoption is submitted; those who will be qualified to vote after the adoption of a constitution may fitly be trusted to decide whether it shall be adopted. The submission of the Constitution to the qualified voters of the proposed State follows the American practice, is strikingly consistent with the other features of the Enabling Act, with providing for the election of the first State officers at the very election at which the adoption of the Constitution is to be decided.

Signed,    

J. G. SUTHERLAND,

CHARLES C. DRY,

JOHN A. MARSHALL,

GEORGE SUTHERLAND,

H. P. HENDERSON.

Mr. BOWDLE. I would like to ask Mr. Richards a question. Was this article prepared by those gentlemen?

Mr. RICHARDS. I have no knowledge by whom it was prepared. It was handed to me by Judge Sutherland. Perhaps he can furnish you the information with regard to its preparation.
{1636}
Mr. SQUIRES. How many signatures are there to that letter?

Mr. RICHARDS. I read the signatures; five of them.

Mr. SQUIRES. Is that all?

Mr. RICHARDS. Five is all.

Mr. SQUIRES. I understood you to say a large number of other members of the bar.

Mr. SQUIRES. What is the political complexion of the signers of that?

Mr. RICHARDS. I have not considered that. I will look at them and see.

Mr. SQUIRES. I would like to inquire whether they are all democrats?

Mr. RICHARDS. I think George Sutherland is an orthodox republican. He was proposed as a candidate for delegate to Congress, I believe, by the republican party at one time.

Mr. GOODWIN. I want to ask Mr. Richards a question. That is, would this be carrying out the will of Congress in conformity with this Enabling Act?

Mr. RICHARDS. I think that Congress intended that the women should vote, provided that the Constitution should provide that they should have the franchise. If I did not, I certainly should not propose it.

Mr. EICHNOR. Have you any precedents in the United States where the state has been admitted that voters that were enfranchised, so to speak, under that constitution, that they could vote on the adoption of the constitution?

Mr. RICHARDS. I do not know that I can refer to any particular instance at the present time, but if I understand the gentleman's question, this proposition is in consonance with the uniform practice in all the states. I understand it to have been the uniform practice for the voters of the proposed state to vote on the constitution. In other words, all those who would have the right to vote under the constitution or in the state after the constitution was adopted and the state government organized, have a right to vote on the constitution as to its adoption. That is my understanding. I do not think that you will find an exception to that. If there is one, I am not aware of it.

Mr. BUTTON. Section 2 says, “all male citizens.” Do you think that if the Congress of the United States was going to allow all the people of the Territory to vote, they would have said “male citizens,” or would not they have said “the citizens of the Territory?”

Mr. RICHARDS. That relates to the qualification of those who shall vote for the delegates to this Convention.

Mr. BUTTON. That is very true. Later, it says, that those qualified to vote for delegates shall he qualified to vote on the adoption of the Constitution.

Mr. RICHARDS. That is right, but it does not say that no others should be entitled to vote, and in the fourth section it expressly says that all the electors of the proposed State shall vote.

Mr. RICHARDS. I will answer you in the language of the Enabling Act, section 4.

Mr. EICHNOR. If you answer my question the way I put it, I think I can get a precedent. Could they have voted on the adoption or the rejection of the Constitution if the question of woman's suffrage could have been submitted as a separate article?

Mr. RICHARDS. This makes no distinction. This section says that the qualified voters of the proposed State {1637} shall vote directly for or against the proposed Constitution, and for or against any provision separately submitted. Certainly nothing could have been more explicit than the language of the act itself.

Mr. BOWDLE. When do you understand that the women, if this Constitution should carry, would be qualified voters? Would it be before that election or after?

Mr. RICHARDS. I understand that they are qualified voters to vote on the acceptance or rejection of the Constitution, and that they are qualified voters to vote at all State elections if the Constitution should be adopted. That is my understanding of it. Now, referring to the suggestion of Mr. Button, I desire to say that there is no conflict between sections 2 and 4 on this subject. Section 2, in the beginning of the section, provides the qualifications for electors to vote for the delegates to this Convention. Section 2, in the latter part of the section, provides that those persons shall vote at this election.

The CHAIRMAN. The gentleman's time has expired.

Mr. IVINS. Mr. Chairman, I am not a lawyer, but I just want to say that I am opposed to this whole scheme. I do not believe it was ever contemplated in this Enabling Act. I do not think it is good law, and I do not see how anybody can construe the wording of that fourth section to have such an application. It says, “at which election the qualified voters of said proposed State shall vote.” Now, it does not say the proposed voters of the State at all, and that is all these women are. You cannot make anything else out of it, and I am opposed to this whole idea from beginning to end.

Mr. VARIAN. Mr. Chairman, I regret very much that upon the former occasion I inadvertently used a word which, if I meant it, would not have been courteous to my friend from Salt Lake (Mr. Richards). In using that word, absurd, it was done thoughtlessly and with no intention, of course, to make any application to anything that might be promulgated by my friend. I want to call the attention of the Convention to the fact that in my judgment the legal arguments or statements presented by the gentlemen who are not members of this Convention, leave out of consideration a fundamental rule of statutory interpretation and construction. It predicates their whole conclusion upon single, and as it were, isolated language, found in one particular section

of this Enabling Act. Congress was dealing with a proposition which might or might not be affirmed when it enacted this Enabling Act. It uses the words “proposed State” six times in this Enabling Act. In each connection, possibly with the exception of the particular section relied upon by Mr. Richards, it is manifest that it is speaking of the proposed State in the sense of dealing with the people inhabiting a well defined and bounded area of country, who propose to form a State. For instance, in section 3 it is required that the delegates of the Convention shall, after organization, declare on behalf of the people of said proposed State that they adopt the Constitution, etc. In paragraph 2 of the same section, it says that the people inhabiting said proposed State do agree and declare in accordance with the requirements of the Enabling Act. Passing the third section for the present, in the fourth section, it provides that if the Constitution and government of the said State are republican in form, and if all the provisions of this act have been complied with, etc., the President shall issue his proclamation and thereupon the proposed State of Utah shall be deemed admitted; and finally, in section 19 it provides that the governor and secretary of state of the proposed State shall certify the election of the senators and representatives in the manner required by law, and when such {1638} State is admitted into the Union as provided in this act, the senators and representatives shall be entitled to be admitted. Now, bear in mind, Mr. Chairman, that no legislative power, other than that that may be necessary to affect the future State, after it shall have been admitted, is conferred by this Enabling Act.

All matters of legislation relative to the forming of this Constitution and its adoption and its approval by the President of the United States are retained by and executed in this country by Congress. It would be a matter of legislation, pure and simple, not with reference to the future condition of the new State, but with reference to existing conditions now, if you could interpolate into this Enabling Act language which would authorize the conclusion that we would have a right to create an additional class of voters not existing at the time of the passage of the act, and submit to them the ratification of the Constitution. You might just as well say that you could, by enabling aliens to vote under the language of this Enabling Act, submit the ratification of the Constitution to their choice. Does any gentleman contend that you could do that? You can prescribe when you shall become a State government_that persons who are not naturalized may vote. You could even prescribe that aliens might vote as well as those who had taken out their first papers. That is a matter of governmental state policy, pure and simple, with which the thegovernment of the United States has nothing to do, except in so far as it may affect the election of representatives in Congress. Now, in section 2, Congress is dealing with the question of qualifications of voters, and I call the attention of my friend, able and distinguished lawyer as he is, to that rule of construction, which sheds light on this. They are dealing with the qualifications of voters. First, they say that all male citizens over the age of 21 years, who have resided in the Territory for one year, etc., are authorized to vote for delegates to the Constitutional Convention. Following that, they say that persons possessing the qualifications entitling them to vote for delegates under this Act shall be entitled to vote on the ratification or rejection of the Constitution, under such rules or regulations as said Convention may prescribe, not in conflict with this Act. Now, if there is not a distinct determination of the subject matter, I am unable to appreciate the force of language. They are dealing there with the qualification of voters, not how they shall vote, but as to who shall vote. They have entered upon that field of legislative discretion and have disposed of it. Now, we come to the language relied upon by my

friend and the gentlemen who agree with him, but you will observe, gentlemen, that they are not dealing now with the qualification of voters. They are dealing with the manner of voting, as to how the vote shall taken and adopted. They say it shall be submitted upon a certain day, at which election (now mark this) “the qualified voters of said proposed State shall vote directly for or against,” that is, Congress is now telling the people how they shall vote, for or against the Constitution, for or against an amendment or at least a separate article that may be submitted in conjunction with it. So that, they have prescribed that the vote shall be taken clearly and distinctly without any encumbering with other matter of any kind_no connection with the election for officers or anything of that kind.

So, you see, that in these two separate propositions, you first have a clear and distinct declaration by Congress, which is dealing with the qualifications of voters, and in the first instance as to who they shall be and as to what their qualifications shall be, and second, as to how these persons duly qualified shall vote for or against the Constitution. Now, it seems to me, with all {1639} deference to these gentlemen, taking into consideration the situation under which this Enabling Act was passed, taking into consideration that woman suffrage is the exception and not the
rule, that it is in violation of the common parliamentary electoral law, that it depends entirely upon legislation to extend the franchise to that class of persons, and you find Congress legislating, as it has always done, to the exclusion of this class of voters, particular to confine the right to vote for delegates to the Constitutional Convention, to male citizens of the requisite age and residence; particular to mention the fact that the same qualifications shall be those which shall entitle the persons to vote for the ratification of the Constitution. Bear in mind this rule of construction which must shed light upon every occasion when interpretation of statutory language is necessary, as to the purpose and object of the language. What is the Legislature dealing with? What particular subject matter at the time the language is given expression to was under consideration? To repeat, first, Congress has defined the qualification of voters, dealing with that subject, and of necessity has excluded it from our consideration. Second, it is dealing with the subject as to how the vote shall be taken upon the ratification of this Constitution, necessarily excluding that from our consideration. It seems to me that the construction sought here is far fetched and is not borne out by the Enabling Act. But passing that, if I am right in the first premise, then I lay down that no legislative authority for the present is given to this Constitutional Convention. What can we gain by putting anything of the kind into this Constitution? Of necessity it will have to depend upon the construction put upon this Enabling Act by those, first, who are entrusted with the administration of election laws primarily here in this Territory_the Utah Commission. And second and lastly by the President of the United States, who shall be called upon to determine, first, whether the provisions of this Enabling Act have been carried out and performed. Second, whether the Constitution proposed is republican in form and not in conflict with the Constitution of the United States. The first board of authority which shall have the power to pass upon this question may be enabled to invoke the aid of the courts to determine the question for them, but I submit that even the courts themselves here in this Territory would not probably bind the President of the United States. It would have to be an opinion by the higher federal court. But, however that may be, by putting it in and taking a vote as suggested, you certainly risk your Constitution. It is suggested by my friend on the other side, if you leave it out, you risk your Constitution. That may be, but I do not view it precisely in that light. In one sense that would be true, and in that view it might occur to gentlemen that it would

be advisable to take a separate election in accordance with the view proposed by Mr. Richards, as I understand it.

Mr. RICHARDS. If you will vote separate.

Mr. VARIAN. If you will vote separate. One objection to that, of course, would be the expense attached to it. That, however, might not be sufficient to warrant the Convention in taking an antagonistic position on that subject. I had not considered it from that standpoint, only from the standpoint as first proposed here, as to what the construction of this act was, and ought to be, and while I have not procured a petition or letter of advice, nor have I procured credentials upon this subject from very many members of the bar, I happen to know that the opinion among some of the most distinguished members of the bar in Utah Territory is in accordance with the views that I {1640} have expressed here. I certainly hope that the motion of Mr. Maloney will not prevail unless the design is to take every risk possible.

Mr. RICHARDS. Is it not a fact that if the construction that Judge Sutherland and others suggest is the correct one, and the female vote was not taken, that the Constitution would not be adopted_that is, assuming that the President took that view of it?

Mr. VARIAN. I am inclined to think there would be great force in that.

Mr. RICHARDS. Let me ask this question, and in asking it, I desire, as I am sure every member of this Convention desires, to do what is right, and avoid a failure of our work. I believe the gentlemen that I am addressing will give me credit for believing that. Now, if a provision was made in the Constitution for taking the vote of all the proposed electors, and keeping the female vote separate, how could that possibly injure or tend to defeat the Constitution, or could it?

Mr. VARIAN. I don't believe it could.

Mr. RICHARDS. Well, then, if as you say, the failure to have them vote would be a fatal error if they have a right to vote, and letting them vote separately would not injure the matter if they had no right to vote if it should be so ultimately determined, then, does not prudence dictate to us that we should provide for that?

Mr. VARIAN. I admit there is great force in that. I was principally directing my argument to the first amendment.

Mr. RICHARDS. I put it upon that ground, Mr. Varian. I do not put it on the ground that my opinion is better than yours or anybody's else, but I do say that on the ground of prudence, this Convention ought to adopt a course that certainly could not be construed to be illegal, and could not result in the failure of this Constitution, because it had not been properly submitted,

Mr. EICHNOR. Mr. Chairman, in 1889, Congress passed the enabling act to permit the territories of North Dakota, South Dakota, Montana and Washington to frame constitutions. Now, in those territories the men that were entitled to vote for members of the legislature, or as the laws of the

state provided for, could vote for delegates to the constitutional convention. When it came to the ratification or rejection of the constitution, you will find that the language of that enabling act is identical almost with the language in the Enabling Act for Utah. In the state of Washington they submitted a separate proposition. They submitted the question of woman's suffrage as a separate article, and I say to you, gentlemen of the committee, whether a man is opposed to woman's suffrage, or whether he is favor of woman's suffrage, it is not this question. I will tell you, gentlemen, in the state of Washington they were not allowed to vote. The constitution was adopted and woman's suffrage was rejected, and Grover Cleveland proclaimed Washington as a state. Now, there is a precedent for us to follow. Some of you, gentlemen, have smiled because I have referred frequently to Washington, but there is a precedent where the language of the enabling act is identical with ours, where a proposition was submitted separately and the women were not allowed to vote on the adoption or rejection of the constitution. They were not allowed to vote on the article submitted separately, and Grover Cleveland proclaimed the territory of Washington as the state of Washington.

Mr. THURMAN. Mr. Chairman and gentlemen, although I did not intend speaking on this question this morning_in fact, did not know whether it would be presented at all or not to this Convention, yet it is a question to which I have given some thought and consideration. {1641} Early in this Convention, I was asked by a gentleman on this floor my opinion in relation to the right of women to vote, provided we qualified them to vote under the Constitution. I unhesitatingly gave it as my opinion that they would have no right to vote at the first election. I cannot say that my mind is entirely free from doubt yet as to my position, but I have been compelled to yield my convictions to a great extent as to the law on this question, from the reading of the Enabling Act itself. I do not see that the question raised by my young friend from Salt Lake, Mr. Eichnor, as to the Washington constitution, sheds any light at all upon this question here.

Mr. EICHNOR. May I ask Mr. Thurman a question?

Mr. THURMAN. Yes sir; if I misunderstand you, I want to be put right.

Mr. EICHNOR. Were you present when I asked Mr. Richards several questions.

Mr. THURMAN. Yes, sir.

Mr. EICHNOR. Did not I ask him if the proposition was submitted separately whether he would still claim the women had the right to vote?

Mr. THURMAN. Yes, sir.

Mr. EICHNOR. And his answer was in the affirmative. And in Washington the question of woman's suffrage was submitted separately and they were not allowed to vote, and the constitution was affirmed.

Mr. THURMAN. He might answer you affirmatively on the proposition, and I may answer you

negatively. I am making this speech now for myself. I will agree with the gentleman from Salt Lake, Mr. Richards, as far as we do agree, and where we disagree, I think I will state it succinctly. As I was saying, the separate submission proposed by the state of Washington might well be limited to those who were unquestionably qualified to vote under the constitution, and it would at least take a provision in the Washington constitution expressly providing that the women should vote. Now, I will ask how is that?

Mr. EICHNOR. If Mr. Richards is right here, they should have been permitted to vote in the of Washington.

Mr. THURMAN. I am asking for Information, not for the purpose of provoking a running discussion. You have examined it. Did the constitutional convention provide in the constitution that the women might vote on the question of separate submission?

Mr. EICHNOR. No, sir.

Mr. THURMAN. Then of course, they had no right to vote. It was not a part of the constitution until it became so by the vote of the people, as a separate article, but here we undertake to say in this Constitution that political distinctions are abolished, both as to suffrage and as to the right to hold office. We place women in the Constitution upon an absolute equality with men in those respects, and there is nowhere in the Constitution, excepting this proposition that we are now considering, where we undertake to make any sort of distinction. The question was asked by the gentleman from Salt Lake, Mr. Squires, as to the political complexion of these gentlemen who had rendered an opinion. If there were four democrats and one republican, or four republicans and one democrat, or if they were evenly divided, I fail to see what the political complexion of those men had to do with the question under consideration, unless we have reached the point at last where this question of wonan's suffrage and political rights for women is indeed a party question. I do not understand that we have. If women ever have a right to vote in this State at all, it will be because republicans voted for it and because democrats voted for it, because as far as democrats alone are concerned, if every one of them had voted for it, they never could have given suffrage to woman. {1642} So it is not a party question, and those things ought not to be injected either by inuendo[*note*], or otherwise, into this debate. They cloud the judgment of members. They preclude us from giving consideration to this question_that fair consideration and deliberation that ought to given to it, and so far as I am concerned, I want to keep that thing out of my mind in what little I have to say. I desire now to read the Enabling Act, and I want to say, Mr. Chairman, I am directing my remarks more particularly to this question of a separate submission. On the question of ratifying the Constitution, that seems to me to be the path of safety. Anything else would seem to me to be the reverse. It itis true that in the qualification of delegates to this Convention, Congress undertook to say just what those qualifications should be, and limited them to male citizens, residents of the Territory for one year. Now, at the end of that same section, right in connection with the delegates, it says what shall be the qualification of delegates to this Convention. Congress undertook to say to this Convention that those men should not be excluded from the right to vote upon the ratification or adoption of the Constitution, and that is what it means. It did not mean in that section to establish the qualification of the members on the adoption or ratification of the Constitution, but it meant to

say to this Convention that whatever may be the qualification that you give to the voters of the proposed State, these men, whom we say are qualified to vote for the delegates to the Convention, shall also have a right to vote on the question of its adoption or rejection. That is the meaning of that section, if I am capable of construing the language at all.

Now, when we come to section 4, there we must look to find who shall vote upon the ratification or adoption. And I want to say, Mr. Chairman and gentlemen of this committee, if it means what the honorable gentleman from Salt Lake contends for, it is the most curious language that was ever used by an intelligent body of men in order to convey that idea. Why shouldn't they have said this, that in case the Constitution and State government shall be formed, in compliance with the provisions of this act, the Convention forming the same shall provide all ordinances for submitting said Constitution, not to the people of the State, but to the people of the Territory? We are still a Territory and in the same line of thought for its ratification or rejection at an election to be held on the Tuesday next after the first Monday in November, 1895, at which election, the qualified voters_not of the Territory, not of any particular area of land, but the qualified voters of the proposed State. Let me pause one moment, gentlemen, to ask you a question. What is a state? A state is the people, within a given area, in their organized capacity. If the state is the people in their organized capacity, the proposed State then will be that which we propose to be the State in its organized capacity. What is that? You have got to look into our Constitution to see what the organized capacity of the people will be, and in that the question of suffrage, and who has a right to vote under the State, becomes a very important feature. Can you imagine that Congress used such language as that, if it meant what gentlemen on the other side contend for? How easy it would be to say “the qualified voters of the Territory, except as otherwise provided in this act?” Combine that with the closing words of section 2, and you will get all the voters qualified to vote in the State.

Mr. CANNON. Would the qualified voters of the Territory be the same as those that were allowed to vote for the delegates to this Convention?

Mr. THURMAN. I was just explaining that. I say that, combined with what Congress has said on the subject, {1643} would make up the legal voters. But they did not do that. They say, “the qualified voters of the proposed State.” My friend, who sits at my right here, comments upon that language by saying it does not say the proposed voters of the State but the qualified voters of the proposed State. I ask you again, what is the proposed State of Utah. Is it that section of country bounded by the lines mentioned here in our article on boundaries? Is that the State? If so, we have had a State government all the time. We have had a State ever since we came here, if that is a State. It does not mean that, gentlemen, and you know it. It means that area of country and the people that inhabit it in its organized capacity as a sovereignty, limited, subjected only to the Constitution of the United States, as a sovereign power. When we consider the qualified voters of the proposed State in that light and strip from our minds that the word state there simply means a certain area of country bounded by certain lines, we then get down to what Congress evidently meant. What is there wrong, gentlemen, in those whom we say are qualified to vote for State officers through all coming time voting at all public elections? What is there wrong in principle in saying that they also shall vote rather that we shall have a State? Otherwise you are forcing upon them conditions which probably they do not want. You are forcing them into line here and

giving them qualifications to do this or that or the other thing in a sovereign capacity, which if they had a voice they would probably say, “we do not want that.” In fact, it has been contended here by some gentlemen that the women do not want to vote. If I was in that position, and was actuated by selfish motives, and took that view, I would say, “let them vote. Kill the Constitution.” But that thought does not enter my mind as to how they are going to vote, but the question is have they the right? And that is what we are here seeking to determine. I say it is open to doubt. I say the only safe proposition, as far as this question is concerned, is to provide, even if there is an expense attached, for a separate vote of the female voters. If it should be determined they are not qualified to vote, no harm is done. If it should be determined that they are qualified to vote, their vote can be beadded and counted and canvassed with the rest of the vote or in addition thereto, and it will be absolute safety. I take it, that no gentleman, after all the work we have done here, wants in either case to see that work thrown away and become of no effect, because we have not followed the provisions of the Enabling Act.

Mr. ROBERTS. Mr. Chairman, I would be opposed to the amendment offered by the gentleman from Weber (Mr. Maloney), in the first place, because I think it would come in conflict with the parts of the Constitution preceding that, which we have already amended. In line 8, the proviso begins, that all male citizens over the age of 21 years who have resided in this Territory one year next prior to such election, and are qualified voters, are hereby authorized to vote for or against the adoption of this Constitution; and the amendment by the gentleman from Weber would make it say, “all electors qualified to vote under this Constitution may vote.” I do not know whether the amendment was drawn with a view of having a separate vote cast by the women of the Territory or not, but if it was not so drawn, then it renders this section, as I look at it, incongruous, and it ought not to be adopted, unless we contemplate striking out the first part of that proviso. The question proposed this morning, as I understand it, may be viewed in two aspects. It seems that there are some gentlemen who believe that the women of this proposed new State may vote for the adoption of the Constitution itself. Others, as I understand {1644} it, hold that they cannot vote for the Constitution itself, but they may vote for the State officers to be elected. I think, sir, that the first proposition is a very unusual one. I remember in the debates on the question of granting suffrage to women, that I made the statement that such a thing as permitting those whom we propose to enfranchise voting upon the question whether they should be enfranchised or not, was an unheard of proceeding, at least either in England or in the United States; that no precedent of the kind could be cited, and I hold to the opinion that I then expressed that I do not believe it is a proper thing to submit this to the women of this proposed new State as to whether they shall be enfranchised or not. So that I am against that part of the proposition, and I am equally against the subsequent proposition, to permit them to vote for the State officers. Now, sir, it needs, in my opinion, no legal acumen to carry one to that conclusion. It seems to me that a very simple process of reasoning, without any straining or effort whatever, carries one to the conclusion that they ought not to vote, and cannot rightfully vote at this first election, even for State officers, and that line of reasoning is simply this, the women of the proposed new State are not enfranchised until you adopt this Constitution, and I think gentlemen will not contend that unenfranchised citizens are qualified to vote. Now, sir, that is the way this proposition presents itself to me. The contention here, and as I must think, the evidently strained efforts to permit this class of voters who are to-day unenfranchised and will remain unenfranchised until this Constitution is adopted, and until the proclamation of the President of the United States shall complete our work by

permitting the State to enter the Union, is an absurdity upon its face_to contend that unenfranchised factors of the State shall vote. Of course, it may be said that my prejudices against woman's suffrage would perhaps lead me to take this view of the case, and, of course, it is quite possible that one may be unconsciously influenced by his prejudices, and I am willing to admit that, looking upon the enfranchisement of women as an evil, I would like to postpone that coming evil just as long as I can. I think we will have enough of it when it comes; that the time will come when we will all be heartily sick of it, and I therefore am in favor of postponing it.

Mr. BOWDLE. Mr. Chairman, if I understand the proposition, it is this, that the women shall be allowed to vote separately upon whether they will adopt this Constitution or not. When that vote is taken and canvassed, if there are enough men that have voted to adopt the Constitution, we do not care anything about the women. That, I understand, is Mr. Richards's position; that if the vote by the male portion of this Territory shall be sufficient to adopt the Constitution, the others will be left out, but if there are not enough men to vote to ratify the Constitution, then we will as a hazard, peradventure, try the other and see if Grover will let us through on that line. That is, as I understand, the proposition exactly. Now, gentlemen, if I wanted to defeat this Constitution, I would take that tack exactly, because if there are anything like enough men to defeat it, and you put it in that shape that number will increase, and if it is safe now in the hands of the men, it will be safer in the hands of the men to let it alone and not use that uncertain element_that contingent vote that you propose here to use, because if there has been some feeling worked up in this Territory, on the question, and it is a recognized fact that there is an antagonism now being waged against woman's suffrage here, that will still affect the vote on the Constitution. If you permit, by this schedule, the women to vote on the ratification {1645} of the Constitution, you will increase that antagonism, and you will then be compelled to depend for the ratification of the Constitution upon the women, and if the powers that be shall say that that is not constitutional, I believe your Constitution will be gone. I am sorry that the gentlemen themselves have lost confidence in themselves and now they want the women to come to the rescue and help them through. I say, gentlemen, let that thing stand just as it is, just as the section now stands with the amendments that have already been adopted, and I believe the Constitution will be safe and that it will be ratified, and I doubt if it will be if you put that in.

Mr. MURDOCK (Beaver). Mr. Chairman, as it was remarked here this morning, I am neither a lawyer nor a son of a lawyer, but it seems to me this is a very plain proposition. In the second section of the Enabling Act, it says what kind of voters shall vote. That is, every male citizen. Then, they go to the fourth section and there it says every qualified voter may vote. Now, the question is very comprehensive to me, and I presume is to some of the members if not all, if qualified voters shall vote, when are the women qualified voters? When this Constitution makes them so, and the people of the Territory ratify the labors of this Convention and the President has had it submitted to him and he also ratifies it. Then they become legal voters and not till then, according to my judgment. While I am quite in favor of equal suffrage, yet I think it would be very unreasonable to say that they should vote upon their own acts, just as an individual might if he had a great point to gain, that he should have the privilege also to vote upon it, that those in favor of him might have the advantage of his vote also. And so I regard it in this matter, that the women portion are not legal voters, are not competent voters, consequently I should be opposed to that amendment,

Mr. RALEIGH. Mr. Chairman, I trust this amendment will not prevail, for the reason that I don't believe it would place us in keeping with the provisions of the Enabling Act. Now, it may be presumption for me to speak on this question before this Convention, not being a practical lawyer, but I will state for the comfort of the gentlemen on this floor, that I have been studying the constitutional law for almost forty years, and when I read several weeks ago, this Enabling Act, came to the conclusion that it would not allow those whom we have made eligible to vote on the Constitution, to vote; that is, that we have made eligible to vote and have placed it in our Constitution_it would not allow them to vote at that time, but after that, of course, if the Constitution is ratified, they will be eligible to vote on any question. Now, I don't know why it is that men will contend here on this floor that they are eligible to vote. I have never discovered any language at all that they have the right to vote at that time, and hence I hope the amendment will not prevail.

Mr. MALONEY. Mr. Chairman, I believe one thing before the house now is the consideration of the amendment proposed by myself, which is to insert {1646} the words read. “All electors qualified to vote under this Constitution may vote.” Now, Mr. Chairman, the object is to allow the women of this Territory who have been enfranchised by the provisions of this section, to vote for State officers at the coming election, on the first Tuesday after the first Monday in November, 1895. I never knew that there was any diversity of opinion, even among the distinguished luminaries of the Salt Lake bar, on this question. I thought it was unanimously agreed, that if we provided by ordinance in this Constitution for the women of the Territory to vote for State officers, that they could vote for such State officers, but I understood there was a diversity of opinion with regard to their qualification to vote for or against the Constitution. My position, Mr. Chairman, is that the women of the Territory cannot, under the Enabling Act, vote for or against the ratification of this Constitution. And it strikes me the Enabling &et is clear. The act of Congress, section 2, provides that all male citizens over the age of 21 years, who have resided in the Territory for one year next prior to the election, may vote for delegates to this Convention. The latter part of the section provides that persons possessing the qualifications entitling them to vote for delegates shall be entitled to vote on the ratification or rejection of the Constitution, under such rules and regulations as the Convention may prescribe, not in conflict with this act. Now, I take it for granted, that that language is clear that the ladies cannot vote for the rejection or adoption of this Constitution, and there is no provision in this Enabling Act saying that we, as delegates to this Constitutional Convention, may provide that the women can vote. The women may vote for State officers at the coming election if we so provide by this schedule, or if it is provided in the Enabling Act.

Mr. ROBERTS. Are the women of this State enfranchised until after the adoption of this Constitution?

Beginning in 1887, the Tucker-Edmunds bill took away suffrage from the women in Utah. That has not yet been restored, except this Enabling Act provides that we may by schedule or ordinance say who shall vote for State officers, to be elected in 1895, but we have not been authorized to say that women may vote for or against the ratification of this Constitution. So far as that is concerned, I agree with my friend, the delegate from Davis County. In other words, it is a question like a man being dead voting to make himself alive, or somebody out here in charge of the warden voting to get himself out. I agree with the gentleman that far, but I do contend that under this Enabling Act we have a right to say whether or not the women, as we have provided in this Constitution, may vote for State officers. And if we shall, in our Constitution, provide that under the Enabling Act, we have a perfect right to say that the women may vote for State officers at the coming election.

Mr. ROBERTS. I think the gentleman did not understand my question. My question simply was, are the women of this Territory enfranchised before the adoption of this Constitution, or can they be?

Mr. MALONEY. No, sir; but I do say that we can, under the Enabling Act, by ordinance, permit them to vote at the coming election for State officers. They are not enfranchishedin so far as {1647} the adoption or rejection of this Constitution is concerned. I make a distinction there, and I think the Enabling Act authorizes and recognizes a distinction. I am not willing to put anything in this Constitution by which it could be endangered; above all things in this world, I think I do desire statehood for Utah. I would sacrifice woman's suffrage for statehood, because while I am for woman's suffrage, and always have been, we could postpone that rather than defer statehood, as we could get it as soon as the Legislature met. I have been from the first for woman's suffrage. It is true I was willing to delay this petition if they saw proper to do so, but whenever the question came on the final vote, I was determined that they should vote so far as my vote went, and that they might have all the rights that men are entitled to, because they were equally entitled to them.

Mr. VARIAN. I desire to ask the gentleman from Weber two questions. First, entertaining the views that he does concerning the main proposition, why he offered that amendment, which in terms provides that women shall vote upon the adoption or rejection of the Constitution?

Mr. MALONEY. I did not offer any amendment, Mr. Chairman, authorizing the women of the Territory to vote for or against the adoption of the Constitution. It provides for their voting for State officers in the coming election, and no farther.

Mr. VARIAN. Then I misunderstood the effect of it.

Mr. MALONEY. The amendment was drawn up very hurriedly because I came in after the article

came up, and if it is not distinctly worded, I will ask to amend it. The object I had in mind was that they might be allowed to vote at the coming election for State officers.

The CHAIRMAN. The chair is of the opinion that the amendment would permit women to vote both for the Constitution and for the State officers.

Mr. MALONEY. Then, I will ask that it be made to read so that they will vote for State officers only.

Mr. VARIAN. That is what drew out my remarks heretofore made. I want to ask the gentleman a second question.' I presume the gentleman will admit, by way of a premise, that this matter of enfranchising a class of persons is a purely legislative matter. I want him to point out in this Enabling Act where that grant of authority and power is conferred upon this Constitutional Convention.

Mr. MALONEY. I think it is section 4, if I am not mistaken.

Mr. THURMAN. If your position is right, clearly they have a right to vote for the Constitution. You have been contending here that they have no right to vote for or against the Constitution, but may vote for State officers.

Mr. MALONEY. I did not understand that there was ever any trouble or disagreement among constitution makers with regard to that.

Mr. VARIAN. Well, there is.

Mr. MALONEY. But I do hold that they have a right to vote for State officers.

Mr. RICHARDS. Is it not a fact that if the construction contended for by Judge Sutherland, Judge Henderson, and others, is correct, a failure on the part of this Convention to provide for submitting this Constitution to the vote of all the electors of the proposed State might result in the failure of the Constitution; that is, that it might be held that the election was illegal, because it had not been submitted to all the legal electors?

Mr. MALONEY. If I understand your question, it is that if they were permitted to vote for or against the Constitution, it might endanger statehood?

Mr. RICHARDS. No, sir; if the position taken by Judge Sutherland, Judge Henderson, and the other gentlemen who signed this opinion that I read, is correct, and the women have a {1648} right to vote on the Constitution and for State officers, is it not a fact that if the Constitution did not afford them that right and the vote was taken only of the male electors, it might be said that the Constitution had not been properly submitted, and therefore, that it had not been properly ratified?

Mr. MALONEY. That could be avoided by your proposition having the vote counted separately.

Mr. MALONEY. It might be.

Mr. RICHARDS. If that be so, what is the objection to having a separate submission of this matter and having the women vote?

Mr. MALONEY. I am not objecting to your separate submission article. Your amendment is not before the house, and I am not objecting to the question of taking the women's vote separately.

Mr. RICHARDS. But it is involved in this question in this way, that I propose as an amendment to your amendment_the insertion of these words before the vote for the Constitution, so that it will apply to voting on the Constitution as well as for State officers.

Mr. MALONEY. It strikes me that if the women of this Territory are permitted to vote for or against the Constitution, statehood will be endangered, but I do not think there is any question but what if we provide that they may vote for State officers at the coming election_

Mr. RICHARDS. Will you answer me how statehood will be endangered if they vote separately on this proposition?

Mr. MALONEY. I do not say that if they vote separately it will be endangered. I did not understand that that question was before the house at all. I understood Mr. Richards read what he moved as an amendment. I say they cannot vote for or againsthe Constitution, and that if we permit them to vote, not taking the vote separately, but if they vote for or against this Constitution, with the male voters of this Territory, it will endanger statehood; but I say if there is an amendment that the women of the Territory may vote separately, I have no objection to it. Then, it will be easily eliminated. We will know just exactly what the male vote of the State was.

Mr. VARIAN. I would like the gentleman to answer my question_to point out in the Enabling Act where the authority is given to this Convention to legislate a class of voters into existence to vote on anything.

Mr. MALONEY. By our having the authority in this Enabling Act to provide by the schedule for the voters of this proposed State.

Mr. VARIAN. Will the gentleman point it out?

Mr. MALONEY. That is exactly where I place it. I say we have the authority under the Enabling Act to say by schedule or ordinance who shall vote for State officers at the coming election.

Mr BARNES. Mr. Chairman and gentlemen, I am not a lawyer nor the son of a lawyer, as my distinguished friend from Weber remarked, and shall not attempt to argue this matter from a legal standpoint at all. There is a matter, however, of right involved here that I think we ought not to lose sight of. The question presents itself to me in this light: Do the women of Utah to-day hold

the right to vote? I say no. They will not hold that right until after the Constitution is ratified. It is clearly, then, I think, out of order for us to contemplate giving them the right to vote until after the ratification of the Constitution. That is my position exactly.

Mr. THORESON. What right have the men of the Territory to vote for State officers before the Constitution is adopted?
{1649}
Mr. BARNES. They hold that right, as I understand it, by the Enabling Act. The Enabling Act clearly says who shall vote.

Mr. JAMES. Mr. Chairman, I do not propose to discuss this question from its legal standpoint. It has been ably handled by the legal gentlemen upon this floor, but I do want to say that I believe that the adoption of such a provision is purely revolutionary, and I think it endangers our Constitution, and there might be a great deal said to this Convention upon this subject if it was not evident that the temper of the Convention is such that it will not adopt any such amendment as has been offered here on the floor. But I wish to say a word or two regarding the convention that was held in Virginia in 1829. We had some remarks upon this absolute proposition from Mr. John Randolph and Mr. Nicholas and others. It was contended that conceding the right of the general assembly, by its second act, to provide for the calling and organization of the convention, it trans-scended its power in authorizing that body to submit the result of its labors to anybody but the freeholders themselves. Thus Mr. Randolph said:

By whose authority did the legis-ture pass the act under which we are assembled here? By the authority of their constituents. And who are their constituents? The freeholders of the commonwealth. By whose authority do we sit here? Whence is our power? From our constituents. And who are our constituents? The same answer must be given_the freeholders of the commonwealth. Now, the freeholders of the commonwealth having given their sanction to the act of the legislature_I refer to the first as well as the second act on the subject of a convention, and deputed us here to propose amendments to the old constitution, or the draft of a new one, to whom, I ask, in the nature of things, did the freeholders suppose the new constitution was to be submitted for adoption or rejection? Must it not have been to that original authority, to that source and fountain from whence is derived all our authority as a convention? I mean to themselves. Let me suppose a case. A majority of the freeholders of Virginia, being the body politic of Virginia, have consented that a convention shall assemble for the purpose of devising amendments to the existing constitution or proposing a new constitution in its stead. Now, sir, the freeholders of Virginia have not yet decided_though they have decided that amendments shall be submitted to them_that, with worse than the stupidity of Esau, they shall be deprived of their birthright. The convention are proposing that the former limits of the right of suffrage shall be extended, I will say, ad infinitum. Who is to decide on this question? Those to whome we propose to extend the right? Unquestionably, no; no more than the people of Ohio or Pennsylvania have a right to decide it. They have no right whatever; they have not a shadow of a right. Sir, it is plain as any proposition in Euclid_sir, it is plainer; it is selfe-vident that no other power on earth, save. that power from which this convention derives all its authority to propose any constitution at all, can rightfully pronounce on the validity of our acts, or decide upon the acceptance or rejection of such constitution as we shall make.

Mr. EVANS (Weber). Mr. Chairman and gentlemen of the Convention, many of the statements

which have been made may be admitted, and at the same time it will not change any phase of the question. We sometimes forget the power and authority which a constitutional convention possesses. As I understand it, section 2 of the Enabling Act undertook to enfranchise a class of people in this Territory who had, prior to that time, been disfranchised; that is to say, those who lived in violation of the laws of the United States. In the latter part of the same section, Congress undertook to say that that class of people, whom it enfranchised, should not be disfranchised when it came to voting upon the ratification of the Constitution. So far as section four is concerned, respecting the right of the proposed voters of the State to vote upon the ratification of the Constitution, I think that it is in some doubt, and I shall not undertake to decide that question now. But I do mean to say {1650} that the rule of construction with respect to a matter of this kind is this, that where the authority which calls a constitutional convention together, whether it be an Enabling Act passed by Congress, or whether it be a legislative enactment for the revision of a constitution, or where there is no expressed limitation upon the right of the convention to prescribe the qualification of voters, that it is the absolute and unqualified and inherent right to bring in a new class of voters and permit them to vote upon the ratification of that instrument. That is the rule of construction. We stand here now prescribed only by the Enabling Act passed by Congress. Section 4 limits this Convention with respect to the class of voters who shall vote for the adoption of the Constitution; then we cannot go beyond it. If it does not, we then have the power in this body to prescribe the qualification of electors, Is there anything in the instrument, gentlemen, which limits this body? That is the inquiry to be made. If there be, then we cannot go beyond it. I doubt seriously whether there is anything intended in this instrument to limit this body on the question as to who shall vote for the ratification of that Constitution, but the remedy which has been offered upon that question is fair. If women have not the right to vote upon the ratification of the Constitution, then by putting their votes in a separate box, no harm can possibly result. But gentlemen, there is another question, about which I believe there can be no doubt, and that is, the right of women to vote for State officers and members of the Legislature. I have yet failed to hear any lawyer doubt or express at least a doubt upon that proposition. A constitutional convention, in its very nature, is revolutionary. It may be a peaceable revolution, changing from one form of government to another, but in the absence of any restriction, it has the right to form such government as it pleases. It has the right to prescribe the qualification of the electors of the political subdivision. It has the right to say who shall be its officers, who shall administer its affairs, and no constitutional lawyer will question this proposition. Revolutionary? Why, of course. Why should not it be? It may be by force of arms. It may be peaceful. We are sitting here now as a peaceable revolutionary body, under authority of the act of Congress to form a state government. Anything which does not restrict us, we have the power to do, and we are supreme in the exercise of that power. The gentleman from Davis County has remarked that it is a strange thing_an anomalous thing, that a class of voters who are disfranchised should be permitted to vote to enfranchise themselves. Mr. Jameson in his work on constitutional conventions, has laid it down that a constitutional convention, in the absence of any restriction, has the right to disfranchise any class of citizens and it likewise has the right to enfranchise any class of citizens. The particular paragraph read by my friend from Salt Lake is only the expression of opinion of Mr. Randolph. In the same article people express a contrary opinion, and the author himself says that this power exists to either disfranchise or to enfranchise in the absence of any restriction. I have not had the time to read it. If I had I should take it up and go into it in more detail, but let me remind the gentleman from Davis who lays down his proposition

that it is an anomalous thing that that class of people who are not entitled to vote should not have the right to vote upon the question of enfranchising themselves, not even for State officers; why, does he not know that State officers will not be the officers of the new State unless the Constitution itself be adopted? Does he not know that the Convention is creating these officers? We are here in a revolutionary capacity {1651} so far as that is concerned. These State officers will never take their seats, will never act under the authority of the State unless the Constitution itself be adopted. In so far as that question of State officers is concerned, this Convention has plenary power over the question as to who shall vote for their election.

The Enabling Act itself provides, in section 19, that the Constitutional Convention may, by ordinance, provide for the election of officers for a full State government, including members of the Legislature and representatives in the 54th Congress, at the time of the election for the ratification or rejection of the Constitution. Further down in the section, it is provided that the State government formed in pursuance of the Constitution, as provided by the Constitutional Convention, shall proceed to exercise all the functions of State officers. Why, gentlemen, there is no doubt, as Mr. Randolph stated in the article_if Mr. James had read a little further; this proposition, is as clear as any principle in Euclid, that this Convention has the absolute and unqualified power to confer upon women the right to vote for State officers. And, gentlemen, I take it that we would be recreant to the duty which we owe that class of voters, whom we have enfranchised in this Constitution, if we were to postpone their right to participate in this matter. There were twelve states where the question came up upon the right of the convention to prescribe qualifications of voters, of classes different from those which were prior to that time enfranchised, and five out of the twelve states, which had no power at all by the Enabling Act, or by the legislative enactment which called the convention, to prescribe qualifications of voters, brought in new classes of voters and they were permitted to vote upon the ratification of the constitution. But I do not go this far, and will not. I do not care. It does not serve the purpose of the argument, because the proposition to put these votes in a separate box will obviate that difficulty; but will any gentleman upon this floor deny the right of women under this Constitution, if we provide for it by ordinance, or in this schedule, to vote for State officers?

Mr. VARIAN. Yes, I do.

Mr. EVANS (Weber). Mr. Varian says he does. Why, gentlemen, a constitutional convention has the power in itself, when it is legally organized in the absence of any restriction, to say who shall be its State officers. We have the right to say the number. We may cut them down. We may enlarge them. We may say who shall vote for them, and they do not take their offices, they do not exercise any of the functions of their offices until the Constitution itself is adopted. When it is adopted, it is a matter purely with the State and not with the United States or any power higher than that of this Convention. I take it, gentlemen, that it is simply a question of postponing the right of women to vote for an indefinite length of time.

Mr. VARIAN. Mr. Chairman, I want to call the attention of the chair, and the gentleman who has just spoken, to the fact that he, unintentionally, of course, completely reversed and misstated the proposition as to the general rule, as to the increasing of the franchise under circumstances like this. (Reads.)

Mr. ROBERTS. I wish to ask the gentleman if he understood me to question the right of this Convention to enfranchise a body of people not now em franchised?

Mr. EVANS (Weber). No, sir; I did not.

Mr. ROBERTS. I understood the gentleman to take that position, and I wish to say that it was not my position. My position, Mr. Chairman, is simply this, that you have no right, and this Convention has no right to enfranchise any class of citizens or any class of people in this Territory, but through the Constitution and its adoption. You cannot enfranchise people before the adoption of that Constitution that are not now enfranchised.

Mr. EVANS (Weber). I have been asked these questions and I have not had an opportunity to answer them. In the authority read by Mr. Varian, the position which I took is supported, except that there were seven states instead of five in favor of my proposition.

Mr. VARIAN. No.

Mr. EVANS (Weber). Of course, we cannot go over this carefully.    Mr. Varian and I both looked over this matter before we came into the Convention. The position taken by Mr. Roberts is a very peculiar one. Suppose we were here without any authority at all of law, making a revolutionary Constitution, and had no laws governing us at all, wouldn't that body have the right to prescribe who should be qualified to vote upon the ratification of the Constitution? In other words, suppose all the people were disfranchised; take any revolutionary government, where all the people were disfranchised; they get together by their representatives and form the constitution and then they submit the constitution to a certain class of voters, who in the constitution are qualified to vote. That is the position in which we are now, except where there are restrictions upon us, and I say in this matter of State officers, there are no restrictions, and we are supreme upon that question and have the right to extend the franchise.

Mr. HAMMOND. Mr. Chairman, this is a matter that I have listened to with a great deal of

interest and I find from the arguments, as far as I can follow them, that the evidence is certainly in favor of Mr. Maloney's amendment, backed up by able jurists here, such as Dave Evans, Thurman, and a host of others. Now, sir, I am for the voting for this amendment, that the women shall have the right to vote for their officers at the coming election. I believe it is right.

The amendment of Mr. Maloney was rejected.

The amendment of Mr. Goodwin was adopted.

The amendment of Mr. Richards was rejected.

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

AFTERNOON SESSION.

The committee re-assembled pursuant to adjournment, and resumed consideration of the article entitled schedule.
{1653}
Section 10 was read.

Mr. RICKS. Mr. Chairman, I notice that in the article on public lands, it provides for the election of three land commissioners. I move as an amendment to this section that we insert in line 7, between “judges” and “and,” the words “three land commissioners.”

The amendment was agreed to.

Section 11 was read.

Mr. KIMBALL (Weber). Mr. Chairman, I move to strike out, in lines 3 and 4, the words “judges of the district court,” and let it apply to all officers.

Mr. RICKS. That would make this board, secretary of state, governor, and treasurer, a board to pass upon their qualifications for office. I hardly think it would be consistent.

The amendment was rejected.

The CHAIRMAN. I would like to suggest to the chairman of the committee, why judges of the supreme court are not also included in that list.

Mr. RICKS. The opinion was that the judges of the supreme court, being State officers, would be passed upon in the regular manner provided by territorial law, but the district judges, being a little different from State officers, being voted for by districts, we thought we would make the provision to cover district judges only.

The CHAIRMAN. Then, would not the judges of the supreme court have the right to pass upon

the qualification of their election?

Mr. RICKS. No, sir, I think not; I think it would have to be done by the territorial board.

The CHAIRMAN. Suppose an appeal was taken.

Mr. RICKS. Then, sir, I think it would be handled by the territorial supreme court.

Sections 12, 13, and 14 were read.

Mr. SQUIRES. Mr. Chairman, I notice that section 14 reads, “the provisions of this Constitution shall be in force on the day on which the President shall issue his proclamation,” and then down further it says, that the terms of all officers elected at the first election under the provisions of this Constitution shall commence on the first Monday next succeeding the issuance of the proclamation. There would be a lapse. We would* have a State Constitution without any officers, from the time the President issued his proclamation until the next Monday.

Mr. RICKS. There would be only three or four days at the most. I hardly see that there would be any objection to it. The territorial officers hold until they are succeeded by the officers under this Constitution, and if the President should issue his proclamation on Tuesday, there would only be until the next Monday for the territorial officers to hold. I do not think it amounts to much.

Mr. EICHNOR. Of course, when the President issues his proclamation, it would be in force whether we say so or not.

Mr. MALONEY. Mr. Chairman, I have a section which I would like to present as follows:
All officers elected or appointed in the State of Utah shall serve during their respective terms and until their successors shall be elected and qualified.

Mr. RICKS. Mr. Chairman, I do not understand that that is necessary. I think that section 14, that we have just passed, covers that.

Mr. KIMBALL (Weber). That only refers to officers elected at the first election.

Mr. MALONEY. I wish to say to the committee that I presented it at the request of the chairman of the judiciary committee. I do not think the ground is covered by any other provision in the Constitution.

Mr. EICHNOR. Mr. Chairman, I think it is unnecessary. The terms of the officers who are elected are fixed by the Constitution. Those terms which are not fixed by the Constitution, no doubt will be fixed by the Legislature.
{1654 - CORPORATIONS}
It looks to me like lumbering up the schedule.

Mr. RICKS. Mr. Chairman, section 13. it seems to me, covers that. It provides for all officers that

are not specially provided for in this Constitution, that the Legislature at its first session shall provide for the election of all officers whose election is not provided for elsewhere in this Constitution. If they meet within three months after the adoption of this Constitution, which they will, the first Monday in January, then it seems to me they will be able to provide by law for all officers not herein provided for.

The section proposed by Mr. Maloney was rejected.

The committee then arose and reported as follows:

Mr. President, your committee of the whole have had under consideration the article on schedule, and beg leave to report that they have considered the same and recommend that it be placed upon the calendar for third reading. They have likewise had under consideration the article on public buildings, and ask a like disposition to be made.

The following communication was read:

To the honorable president, officers, and members of the Constitutional Convention, Gentlemen:

The women of Salt Lake City, who appreciate the labors of the Convention in the interest of the coming State, desire the pleasure of entertaining the delegates and their ladies, including officers of the assembly, at a reception given in their honor at the Templeton hotel in this city on Thursday, May 2nd, from 9 o'clock until 11 in the evening. The reception is tendered the Convention in behalf of the women of Utah.

Very respectfully.

P. S. The invitation is without signature as it was thought possible some members might ask how many yards of names there were attached.

Mr. BARNES. Mr. President, is not there something wrong with regard to the date, Thursday would be the second.

Mr. EVANS ( Weber). I would like to inquire whether that communication was sent in before the action of the committee this morning upon the right of women to vote?

The PRESIDENT. I think it came into possession of the house before that.

Mr. SQUIRES. Mr. President, there is one thing about the communication that we ought to ascertain, that is, whether it is genuine or not. There should be certainly some signature here to signify that it means something. You will notice that there is no signature to the communication, and that the date stated is conflicting.

The motion to lay on the table was agreed to.

An invitation to witness an exhibition by the Salt Lake fire department was read and accepted.
The Convention then proceeded to the third reading of the article entitled corporations other than municipal.

Sections 1 and 2 were read.

Mr. RICHARDS. Mr. President, I understood that section 2 was stricken out. No, I think I am mistaken. I desire, however, to call attention to one imperfection that occurs to me with reference to this section, and that is in the provision contained in the fourth and fifth lines. I desire to know if the chairman can tell me what that means?

Mr. JAMES. That means simply this, that no set of men will have an opportunity to apply for charters for certain lines of business under the present laws, and pigeonhole them and have them {1655} for sale after the Constitution goes into force.

Mr. RICHARDS. Suppose a franchise has been granted, say the week before the State government went into effect, and that franchise provided that an acceptance should be had within thirty or sixty days, or any other time, would not this provision exclude the exercise of any privileges under that franchise?

Mr. JAMES. I think not,

Mr. RICHARDS. Well, it seems to me that it would.

Mr. JAMES. And I would answer that question further in this, that this provision is almost a universal provision in the constitutions of the states.

Mr. RICHARDS. I heartily approve of it, if it does not reach too far.

Mr. JAMES. And not only that, I will answer the question by asking one. If it would not be better to hold off a franchise for a week than to allow it to be pigeonholed and then held out for sale?

Mr. RICHARDS. That may be true but I think we can make this Constitution mean just what we do want, when we can find out what we want.

Mr. PRESTON. Mr. President, I move to strike out that section 2.

Mr. KIESEL. Mr. President, I have an amendment; after the word Constitution, in line 5, make it within three months after the adoption of this Constitution; that will be the limit of time.

The amendment was rejected.

The motion to strike out was rejected.

Sections 3, 4, 5, 6, and 7 were read.

Mr. JAMES. Mr. President, section 7, if you will remember, is the section that I called the attention of the Convention to in committee of the whole. I also have had a consultation with the gentleman from Utah County (Mr. Thurman), and asked him as a legal gentleman to suggest something that would relieve this section from some of its objectionable features, and I would like to ask him if he has anything to offer the Convention?

Mr. THURMAN. I have no amendment prepared, but I will suggest what I think ought to be. “No corporation shall lease.” I think that “lease” ought to be stricken out. The reason for that is this, you take a franchise, say like a street railway, and if the corporation had not a right to lease the franchise for a given number of years to raise money upon it without the franchise being liable for debts incurred in the operation or enjoyment of the franchise, it would effectually exclude them from leasing it. I think they ought not to have the power to grant it absolutely.

The PRESIDENT. There is no motion before the house.

Mr. JAMES. Mr. President, I move to strike out the entire section.

Mr. EVANS (Weber). Mr. President, I think that is one of the most important sections in this article, and I believe when the Convention understands its force it will not strike it out. Even the suggestion made by Brother Thurman would be a dangerous suggestion, because it would amount simply to this, that if a corporation can lease its franchises and its property, and thereby relieve itself of individual liability, the persons who might be injured in the operation of the corporation would be without remedy. Now, let me bring to your mind an illustration. Take any of these transcontinental railways that have charters, and let them lease those rights to other companies, and suppose the companies to whom they are leased are impecunious, they have nothing; simply leasing the road and the rolling stock and all the property connected with it. If any liability should occur by reason of the operation of those roads while in the possession of the lessee, there would be no remedy whatever to enforce a judgment which might {1656} be obtained. The lessee would be penniless. The corporation would own the property, it could not be touched, and the result would be that every man who was injured or every man who made a contract with the lessee would be without remedy. That is just exactly what this section is intended to prevent. You know, gentlemen, that if any man were a corporation lawyer, or if any man were engaged in the business of running corporations, he would take advantage of the law, or the absence of any law, in order to relieve the company and its property from liability by leasing its property and franchises to some irresponsible person, and the result would be that the company would be receiving all the benefits, and the person who contracts with the lessee, or

who is injured by reason of the operation of the road by the lessee, would be remediless. When you understand this, surely you will not strike this out. It is not right that it should be done. If you do it, you put into the power of corporations to relieve themselves of any law liabilities, or contract liabilities, so far as the lessee is concerned. There is nothing to prevent it at all.

Mr. MALONEY. Mr. President, I trust the section will not be stricken out. It is in the constitution of Washington. Take, for instance, the Oregon Short Line, which is a branch of the Union Pacific system. The Union Pacific is in the hands of a receiver. Where, I ask any gentleman of this Convention, is there a remedy for a man who has contracted with this railway? The people along the line are simply helpless. I am not able to see any good reason for striking this out. The lessee should be held responsible, and when the lessee is operating the road the property should be held responsible. I repeat, Mr. Chairman, I cannot understand why the chairman of the committee leads the assault on the articles which he has reported.

Mr. JAMES. Mr. President, I arise to a question of personal explanation. The gentleman knows very well that I said to him that I was in doubt about that section and wanted it corrected. Mr. Thurman and other gentlemen know that I did not want anything to go into this article that was not for the best interests of the State. I am just as anxious to protect the public against corporations as any other gentleman. Now, I appeal to a gentleman right over there_Mr. Ryan. Do not you know, Mr. Ryan, that that would shut out every leaser of mines in this Territory. Why? Because he goes to Mr. Ryan, or he goes to Mr. Evans, to lease his mine; under this provision he would be unable to lease that mine unless he would be able to put up a large bond. You know it has become a great industry in this Territory. Large numbers of men are engaged in our camps in leasing mines, and in leasing mines they go to the proprietors of those mines and make contracts. Now, what is our system in contracting with those gentlemen in leasing the mines? Our system is this, that we bind them not to run the mine in debt, and the law requires of us_so the legal fraternity advise us, and I have followed their advice, and that we are compelled to put up a notice on our mining claim that the mine is leased, and that they must look to the lessor for their pay. That is our method of proceeding in leasing our property, Now, what would a poor fellow do when he comes to us? Why, we cannot lease it to him under that provision, because it is absolutely held for the debt he contracts, and we cannot get away from it. So am I held for the debt contracted. Now, the result will be the man would be shut out, or he must furnish a large bond before he can secure that property, or he cannot run that property in debt. Now, that is the reason I want this thing amended, and I was in hopes it could be amended {1657} so that franchises could not be alienated and avoid their debts, but so that you could contract to lease that farm, or mine, or anything else you own, and make liable the party who leases the property from you.

Mr. THURMAN. Do you not understand that a mine or a farm or any property of that kind is not a franchise?

Mr. JAMES. Why, my mine is a franchise. I have several of them in the Territory.

Mr. THURMAN. Franchise is a mere right to act_to enjoy a privilege.

Mr. EVANS (Weber). Let me ask Mr. James a question. Take the case you put and suppose there is a loss, would not it be as well that the owners of the property would stand the loss as the poor fellow who works for the lessee?

Mr. JAMES. Why, certainly, if the poor fellow was not aware of the fact that he took chances when he went to work for the man on his being able to pay, and we are compelled to do that under the law. We have to put up notices on our claims to notify the poor man that we have leased that mine, and that he must look to the man who leased it for his pay. Now, that is the rule that governs, under this provision, and I am so informed by good attorneys. The poor fellow could be shut out and could not make any lease under this.

Mr. ANDERSON. Mr. President, I do not think that we should strike this section out. I do not think it will work a hardship on the mining industry, and I do not think that any corporation should be relieved from liability on account of a lease. It does not appear just to me. Therefore, I am opposed to striking this out.

Mr. SQUIRES. Mr. President, the gentleman from Utah asked Mr. James a question, which I do not think he would have asked if he had carefully read this section. Now, I am in this position personally, that I am leasing a mine from an incorporated company, and I have got a two years' lease on that property. If this section is going to operate in a way to prevent one from leasing a mine from a corporation, then I do not want it in there. If any amendment can be made to except mining property from the provisions of this section, I am in favor of that, and in order to test the sense of the Convention, I move to insert after the word property, in the third line, the words, “except mining property.”

Mr. RYAN. Mr. President, I cannot see anything wrong with the section. I think it is quite full and complete, and the objection raised by Mr. Squires I do not think is very good, because if he leases a property, he leases it with the obligations against it at the time of the lease, and that could not be disturbed thereafter.

Mr. SQUIRES. I did not lease it with any obligations against it.

Mr. RYAN. And if it were sold, or sold under execution even for a debt contracted afterwards, it would not disturb your right to it at all. I think the section is a good one.

The PRESIDENT. There was no second to Mr. Squires's motion.

Mr. BOWDLE. Mr. President, I am a little bit at a loss to know exactly how to interpret part of this section. I do not just understand what property would be held under a franchise. I do not quite understand the meaning of that, as it has been interpreted here. Now, I move to strike out, commencing with the word “or,” in line 2, and ending with the word “thereunder,” in line 3; the franchise covers the property, and it seems to me that it relieves the objection that has been made with reference to mining property entirely.

Mr. MALONEY. Mr. President, the {1658} section does not cover mining property, and was never intended to.

The motion to strike out was rejected.

Section 9 was read.

Mr. BOYER. Mr. President, I would move to amend in line 5, by striking out the word “requiring,” and inserting in lieu thereof, the words “first obtained.”

Mr. KIMBALL (Salt Lake). Mr. President, I move to amend by inserting after the word “authorities,” in the sixth line, the words, “and two-thirds of the people of that district.”
I would like to explain one reason I have. The city council has given a franchise to a little railroad that runs out to the Hot Springs and Bountiful. If I understand right, the franchise was granted for a street railroad, electric or cable, In place thereof they put on a locomotive dummy, smoky arrangement. The people have petitioned against it time and again, and have no redress. We have entered suit against the railroad for injuring our property. We claim that they have depreciated our property fully forty per cent. The people have no say as to giving that franchise. Now, I desire very much that the people should have a vote in these matters, and that if their property is going to be depreciated by a franchise given to a railroad company or any corporation, that they should have something to say about it.

Mr. SQUIRES. I would like to inquire what the gentleman intends to include by the word district?

Mr. KIMBALL (Salt Lake). The district of country or the street on which the railroad or telegraph line is running.

Mr. SQUIRES. Why do you not put it street, then?

Mr. KIMBALL (Salt Lake). It might be in a locality where there is no street. I will accept of the amendment.

Mr. RICHARDS. Mr. President, I desire to suggest to the gentleman who proposes the amendment that I do not think it covers exactly what he intends, by saying the residents on the street. He means, I guess, the property owners.

Mr. KIMBALL (Salt Lake). The property owners.

Mr. RYAN. Mr. President, as I seconded the motion, I would like to say that I like that principle and I would like to see it applied to all cities and towns. I think the power conferred on city councils, and even county commissioners, is altogether too extensive, and I would like to see that reservation held with the people, that the people should have the right to say whether a franchise

was correct or whether the franchise was wanted by the people or not. I like the principle, that is all.

Mr. RALEIGH. Mr. President, I move to amend, by saying a majority of the property holders instead of two-thirds.

Mr. BUTTON. Mr. President, I move to strike out “requiring,” in line 5. I do not see what it is there for.

The PRESIDENT. There are two amendments now here.

Mr. KIMBALL (Salt Lake). Mr. President, this was gotten up in a hurry, and if we have not the right wording, I would like to ask to have it suggested. Mr. Squires made a suggestion.

Mr. SQUIRES. My suggestion was that the amendment which Mr. Kimball offered should come at the end of the section; if it comes after “authorities” it interferes with the wording of the section.

Mr. KIMBALL (Salt Lake). I will accept of that.

Mr. MALONEY. Mr. President, supposing that the ordinance of the city or town or incorporated village through which this railroad or telegraph line is proposed to be extended should require that before any thing of that sort should be done, two-thirds of the qualified voters, or two-thirds of the property owners, on that street were required; then, if that be true, none of these {1659} amendments are necessary. In other words, the local authorities would not grant it unless the ordinance requiring this had been complied with.

Mr. EVANS (Weber). Mr. President, I hope this amendment will not prevail. The gentleman who offered the amendment understands that this is simply a restriction upon the Legislature to granting any railroad company or telegraph company or telephone company the right to use its streets without the consent of the local authorities of the cities; that is all it means. It is a restriction upon the Legislature, to allowing these grants in the face of the local authorities. Now, the balance of it, so far as the consent of the property owners is concerned, is a mere matter of detail which may very properly be left with the Legislature. Besides all that, I think in principle that it is not right that a majority of the property holders should be consulted respecting a matter of this kind. The streets belong to the public. They do not belong to the adjacent owners of the property; and you put in a provision of this kind into the Constitution, and if some great railway enterprise desires to have depot facilities in some great city, you will find that a majority of the property owners along on the street where they desire to intersect the city will simply hold that company up for a large amount of money. It is an unusual provision, one that I never saw, but it may exist.

Mr. SQUIRES. You say truly that the street does not belong to the property holders along the street, but if any damage comes to the property, they own the property that is damaged, do they not?

Mr. JAMES. Mr. President, I am very glad that Mr. Evans made these remarks, because that is just exactly what this section is in there for, and what it covers, and if it is stricken out, just what he suggests to you will occur. It would have been impossible for the D. & R. G. railway company to have ever gone through this city, if they had to contract with the property holders. They never would have got through, and you would just simply have sent the road around the town or something else. It is a provision that, as the gentleman says, restrains, but does not go so far as to legislate and leave the matter open to the Legislature.

Mr. KIMBALL (Salt Lake). I hope that before we have finished this Constitution we can make some provision in it, if this does not pass, to protect the property owners against those corporations. There are not less than three streets down in the locality I live in that have now been almost ruined for residence property. Poor people that settled there many years ago and erected nice structures and taken pride in their homes_corporations have received their franchises from the city councilors, without those people having the least privilege of redress, or if they have made a petition they have paid no attention to it. Lawsuit_you know what it means to law against a railroad corporation, with {1660} poor people especially. Now, homes have been ruined, and I say that before these things have gone so far as to ruin the homes of the poor people, something should be done in the way of protecting them, that they may not have to wait until their homes have been tumbled down by the jarring, and dragged through the ruinous effect of the traveling trains, and their white walls blackened with the smoke, and all these disagreeable features, saying nothing of the danger that our children are subjected to by those trains running without regard to schedule time. I submit if this is not the proper provision, that we get something that will protect the people against it.

Mr. EVANS (Weber). Do you observe that this section only provides for street railways, telegraph, telephone, and electric light plants? Was it the street railways that damaged the property?

Mr. KIMBALL (Salt Lake). That is what I had reference to. The franchise was given to this company for a street railway, and they have gone to work and used a locomotive on it_a regular trunk railway.

Mr. RALEIGH. Mr. Chairman and gentlemen, I think this city would have failed to be built up as it is now, if railroad corporations could not have had the right of way through the streets. Now, these railroads that have been constructed, as mentioned here, have all been done under my

observation. I helped to pike the way myself for the first one_that is the Rio Grande Western from its depot northwards, and I was about two months_well from April. to June, getting that through the city council, with all the opposition of all that street, on each side of it, against me, together with the Union Pacific folks helping to fight with the people against it. I understood as clearly then as I do now, that it was a very great convenience and benefit to Salt Lake City; that at that time grading, gravel at about a dollar a load_and the streets would not have been graveled up from that time to this if we had not got that through to the gravel beds north. Now, I know that we did not come here as a people with a view to building up a city and being independent gentlemen, having an independent fortune, to do it with, in some other way than by railroads_that is, the corporation of railroads to help us, and I am in favor all the time of the franchise being granted and granted by the city council of any city, that know better what to do. It is their business to look ahead and see and examine the facilities that they need to build up a city, and private individuals are not very likely to be acquainted with that fact. They have their little homes here and there along the street, but they do not contemplate the wants of a city, nor the facilities which are necessary to build up a city, and consequently, I am not in favor of this amendment at all, but I move an amendment to make it a less majority than two-thirds majority.

Mr. EVANS (Weber). Mr. Chairman, I want to make a suggestion before the vote is taken. This thing is so far reaching, that I want the gentlemen to understand it; that before a franchise could be granted to construct a street railway, or telegraph, or telephone, or electric light plant in this city, it would be necessary that two-thirds, or a majority, as the case might be, vote for it.

Mr. BUTTON. I think the gentleman is going to change that.

Mr. EVANS ( Weber). I am speaking of it as it is now. While I am on my feet, I want to show how broad it is, what a wide sweep it takes; take a street railway company that desires to construct through all the streets of the city, if it had to get the consent of a majority of the citizens of the city, do you think it would ever be built? Never in the world. We could not carry on that kind of enterprises with such a provision in the Constitution. It would {1661} be the same with the telephone, telegraph, or electric light company. Take an electric light plant, with poles throughout the city, and to say that they have got to get a majority of the people of Salt Lake City, for instance_could they ever build in it the world? You know before people would permit that, they would ask some consideration for it. The result would be we would have no improvement at all in this city.

Mr,ANDERSON. Mr. Chairman, I am opposed to this amendment. I think it is wrong in principle. The streets of the town belong to the general public, and I do not think they should be controlled by a certain few.

The amendment to the amendment was rejected.

Mr. KIMBALL (Salt Lake). Mr. Chairman, I was going to change my amendment to “steam.” I do not think it could apply to this.

The amendment was rejected.

Mr. BOYER. Mr. Chairman, I move to strike out, in line 5, the word “requiring.”

The amendment was agreed to.

Section 10 was read.

Mr. KIESEL. Mr. President, I want to add an amendment, “No corporation shall do business in this State,” I want to add, “without first filing a certificate of its charter with the secretary of state.” I think it is customary. I know I have been required to do that.

Mr. RICKS. I would like to ask Mr. Kiesel if that is not already provided in section 2?

Mr. KIESEL. I guess it is safe enough to leave it that way.

Mr. THURMAN. I second the amendment proposed by the gentleman.

Mr. IVINS. Section 2 does not refer to the matter of his amendment at all.

Mr. JAMES. I understand the gentleman withdrew his amendment.

Mr. KIMBALL (Weber). Mr. President, I move to amend that amendment by striking out the word. “charter” and inserting the words, “incorporation and.”

Mr. KIESEL. Mr. President, the legal gentleman suggests that instead of certificate it should be a certified copy, and I will amend it in that way.

Mr. THURMAN. Add your amendment to the section as it stands. It will read better.

Mr. KIESEL. All right. I will accept that.

The amendment was agreed to.

Section 11 was read.

Mr. STREVELL. I would like to ask. the chairman of the committee a question in regard to this matter. I would like to get this idea clear in my mind. For instance, I remember of an incorporation that was doing a merchandise business, in a certain line of business; supposing we wanted to add another line, would we be obliged, in order to do it, to reincorporate?

Mr. JAMES. That was discussed for half a day and amended by Mr. Thatcher, so that it would cover everything.

Mr. STREVELL. If we incorporated in a certain way, and a year after that we wanted to add

another line to our business, would we have to amend our articles of incorporation?

Mr. JAMES. Yes, sir.

Mr. KIESEL. Mr. President, I move to strike out this section, because I think it amounts to a restriction in the way of business. It is just as Mr. Strevell states, there are things occurring in the way of business every day nearly, and we could not keep track of business unless this article was disposed of. I want corporations that are endowed with a certain amount of capital to have the same rights as individuals have, and I do not see why they should not have if they go into an association and put up the capital. It amounts to a restriction of business and enterprise, and I am opposed to it on that ground.
{1662}
Mr. EVANS (Weber). Mr. President, I am afraid my friend from Weber does not understand the full import of this. The public have a right to know some things, when they grant privileges and rights. They have a right to look into the articles of incorporation and ascertain what the particular business is which that corporation has been carrying on. That is all there us about it. We leave it so open that you can incorporate just as many lines of trade or business as you please, but we say that they must be designated in the articles, so that the public may see what it is and ascertain its status. I think it ought to remain, and I think that if my brother, Kiesel. would examine the matter carefully, he would not object to it.

Mr. KIESEL. I want to ask you why you do not require that of individuals? The corporations associate themselves for the purpose of business, just the same as individuals go into business, and I think the effect of it will be to restrict business. The public is always guarded. There are a number of agencies in this country. Take, for instance, Dun's or Bradstreets', that keep track of all these institutions, and there should not be any restriction on a business that I can conceive of, that it will damage the public at large.

Mr. EVANS (Weber). An individual does not receive any franchises or immunities from the law or from the lawmaking power. He is an individual, and is at liberty to engage in business just as he pleases, and the individual doing business with him knows that, and makes his inquiry accordingly. Corporations receive their franchises from the government or from the state, and therefore, they are regulated by law; but another thing about this, that is suggested, as the law now stands, no corporation can do business in any line, except that which is designated in the articles of incorporation, and it is so everywhere. Every corporation man ought to designate in his articles the particular character of business which he is carrying on, for the protection of the public. It does not injure him any. If he wants to add another line or branch of business, all he has to do is to have his articles of incorporation amended, and then go on and carry it right along.

Mr. RICHARDS. I desire to ask Mr. Evans a question. Is it not a fact that this is not only a declaration of the statute law as it now prevails in this Territory, but that it is a declaration of the common law, and that in the absence of a statute the court would hold it ultra vires to do business not specified in the article?

Mr. EVANS (Weber). That is true, an incorporation is an artificial person under the law, and its

powers must be restricted by law.

Mr. KIESEL. Mr. President, I contend that if this article prevails, it will be in the interest of the lawyer.

Mr. JAMES. Mr. President, I hope the gentlemen will not strike this out, and I know if Mr. Kiesel had been here through our long debate on this question, he would not raise the question at all. It is one of the most liberal provisions in any constitution in the United States.

The motion to strike out was rejected.

Sections 12 and 13 were read.

Mr. RYAN. Mr. President, as section 14 was stricken out, I desire to offer the following section:

No discrimination in charges or facilities for transportation shall be made by any railroad or transportation company between places or persons, and all railroad companies shall receive and transport each other's passengers and freight, without discrimination or unnecessary delay.

The proposed section was rejected.

Mr. JAMES. Mr. President, in section 13, I want to strike out the words, “all railroads,” in line 3, and add in lieu thereof, the words, “and such.” That is a mistake in some way after it left the hands of the committee.

The amendment was agreed to.

Mr. Maloney offered the following section as section 14:

Every corporation doing business in this State shall be liable for all damages sustained by any person, including employesof the company, in consequence of any neglect of the agents or other employesof the corporation, to any person sustaining such damage.

Mr. EICHNOR. Mr. President, I offer a substitute for the whole section,

The PRESIDENT. There was an amendment previous to yours, offered by Mr. James.

Mr. VARIAN. Mr. President, the substitute offered by Mr. Maloney proposes to disturb the existing law to this extent, and I apprehend this is the sole purpose of it. As the law stands today,

an employeof a company engaged in, we will say, hazardous service, is adjudged to take upon himself as a part of the risks of his employment the possible negligence of persons engaged with him in the same particular branch or line of service. Now, as I understand this, if adopted, it will hold every corporation or individual absolutely liable in all cases, where the injury or accident is caused by the negligence of any one of the servants of that person or corporation. Of course, that is the meaning of it, is it not? I doubt very much whether that is in accordance with natural justice. I am quite sure that it would be a matter for serious question if it were presented in a legislative assembly, whether a state should go so far as to make all persons engaged in hazardous or risky employment, employing large numbers of men, the insurers of the lives and persons of those who are willing to risk themselves for the sake of gaining employment in that service.

Mr. BOWDLE. Was not that very bill brought before the Legislature a year ago, to cover that same thing.

Mr. VARIAN. I do not remember. If I had a chance to vote on it, I think I voted no.

Mr. IVINS. It was.

Mr. VARIAN. Because it would tend, in my judgment, to impede the proper enterprise of the country. The law is generous enough now, if it is properly administered. If it is properly administered through courts and juries, there is no trouble about it, but to say that no man can enter into the business of mining, which necessarily involves the risk of life everywhere, or in the business of railroading, which necessarily involves the risk of life and limb, at all times, and upon all occasions, or it may be indefinitely pursued into different employments and avocations, which in a more or less degree involve these risks. Men are supposed to take that upon themselves, and their employers are liable for the negligence of those in authority over them. That is just and right. That is the law as it stands, but this provision is designed to reach a case not covered by existing law, and whether it be a person or corporation, to make it absolutely liable for the neglect of any employe[*note*]. Two section men on a railroad, both undertaking the same line of employment; two miners in the breast under ground a thousand feet; both undertaking the same employment, entering upon it with a knowledge of the risk; one commits some fault, omits to do something, or does something in a negligent way, and his fellow servant is injured, the employer is to be held liable for that. {1664} That is a very different proposition from holding the employer, if the foreman or the man who has charge of the thework omits to do something and is guilty of negligence.

Mr. EICHNOR. Mr. President, I am in favor of the amendment and also of the substitute. I will state my reasons. This doctrine that the master would not be liable for one of his servants, if that servant was negligent, and through that negligence a fellow servant was injured, is the doctrine found in the old Roman law. That principle was adopted by the English common law. The first decisions we have had in the United States, I believe were in Massachusetts and South Carolina. Now, what is the status of this doctrine today? The status of this doctrine is that if a switchman opens a switch and a freight train is ditched and the engineer is killed, the company goes into court and says it is the negligence of a fellow servant, and the judge grants a motion for a non-

suit on motion of the attorney for the company. That is the rule here. Now, what is the history of this in the case where it was first adopted? France, in 1834, provided an article similar to this. England, the very place where this doctrine started, has repudiated it. England, in 1880, employed what is known as the employer's act.

Mr. VARIAN. Are you sure of that fact?

Mr. EICHNOR. Yes; I have it right here if you wish to see it. Prussia, which is quite extensively engaged in mining and manufacturing, in 1881, repudiated this doctrine that they had received from the Roman law, and in all the countries in Europe where this doctrine was adopted, that the master was not responsible for the negligence of a fellow servant, it has been repudiated. The United States retains it in some of the states, and in some of the states statutes have been passed, and they have been declared constitutional, to like effect.

The state of Iowa has a statute right in line with this substitute and the supreme court of the United States lately has declared that statute constitutional. Kansas has a similar statute, and a number of other states. Now, I believe that I have been classed among my fellow delegates here as a corporation man, but I state right here, that I believe in giving corporations everything that is right, but I believe in giving the individuals some protection.

Mr. CHIDESTER. In any other constitution that you have mentioned, is this incorporated? That was in the statute law.

Mr. EICHNOR. I looked this morning, but I was not able to find it.

Mr. CHIDESTER. That is a proper provision to put in the statute, but not in the Constitution.

Mr. STREVELL. It is in Wyoming.

Mr. EICHNOR. Now, this is the state of affairs to-day, that no man that works either for an individual or for a corporation or for a partnership has any protection, if a co-laborer of his is negligent, and he loses his life_his heirs are absolutely without remedy. I challenge any one to bring the proof here to the contrary. With regard to the law that was enacted in 1881, in Prussia, to which I referred, it was claimed that the exigencies of the time demanded a closer construction in favor of the public. If we place this substitute in our Constitution, what will we have? What will be the result? The result will be that men that employ laborers will not simply employ cheap labor, but will employ competent men. They will see to it. That will be the effect, and the public will be finally benefitedby it as well as the corporations or individuals, or partnerships, whichever the case may be. Clinging to an old doctrine that has been exploded in the very countries that have adopted the civil law_I think it is what the gentleman termed {1665} some time ago on this floor, a relic of barbarism.

Mr. BOWDLE. Mr. President, I believe that I have never spoken a single word on this floor against the poor man, his interests, or a laborer, or his interests, and I do not expect to. But
I am not in sympathy with this amendment, and I think that I will have to answer my brother over

there and accept the challenge that he has thrown out. This, as I understand it, is the law at the present time on that subject: If a corporation or an individual hires an incompetent and careless man and knows that he is such, although he is a fellow-servant, and a fellow-servant is injured, the corporation would be held liable, because of hiring a negligent, unworthy, and untrustworthy man and putting him there. But, as our law is here at present, if any person, corporation, or individual employs competent men, and through the negligence of one of those competent men the fellow-servant is injured, then the fellow-servant has no remedy. If you adopt any other rule than that, you make the person doing the hiring an insurance company to insure every single act of every one of his fellow-servants. Now, I submit to you that that would be a hardship. It would be unjust and unfair, because the corporation or person hiring has done its duty when it has put a careful man there. It has exercised due care in doing that, and the man that is working with him knows whether he is a careful and competent man or not. He knows that if he is not careful and competent, he is the very one to avail himself of that knowledge and immediately complain to the authorities that put him there and get his release, and I submit it as a proposition that if a fellow- servant knowing that another fellow-servant is incompetent and careless, and he were to give notice to the employer of that fact, and he was injured, he would get his remedy for it. I think the courts have construed that law, and would hold that the company was then negligent and should be held, because it had notice of the incompetency of that servant.

Mr. THURMAN. Do you think this proposed amendment affects the question of notice at all_not the law of negligence that you are speaking of? Wouldn't the man still fail in his demands to recover damages if it were shown that he knew?

Mr. BOWDLE. I think so. I think, under that amendment, he would fail, because then would come in the doctrine of contributory negligence, and would defeat the very action.

Mr. EICHNOR. I would like to ask Mr. Bowdle another question. Do you mean to say, as an attorney, that if that substitute were adopted, it would disturb the doctrine of contributory negligence?

Mr. BOWDLE. No, sir; I do not understand so. That was not in accord with the answer I gave Mr. Evans at all. Mr. Evans asked me the question if the person knew that the other was negligent, even if this amendment would prevail, would it affect his right to recover? I say, I do not think it would.

Mr. RICKS. I want to ask Mr. Varian a question. If this substitute passes, and any farmer sent two men out to mow hay, for instance, and one of them, through the carelessness of the other, got his leg cut, if he could sue that farmer for damages?

Mr. VARIAN. I see no reason why he should not.

Mr. HAMMOND. Mr. President, am opposed to the amendment if that is the case. If I hire a broncho rider to break in mustang horses, and be knows the business better than I do and is acquainted with it, and I agree with him to break a mustang for five dollars or ten dollars, now, if that fellow breaks his neck in the business, am I to be hung for him? I do not think this thing is

right.

Mr. EVANS (Weber). Mr. President, {1666} if Mr. James's amendment were to prevail, the question asked of Mr. Varian is properly answered. If any farmer, mechanic, or any other individual engaged in business sends two employesout together and one injures the other through his carelessness, the liability would follow as against the employer. This doctrine of fellow- servants is one which has been construed so many times by the courts and left in so much confusion that it is very difficult to harmonize the decisions. Parliament has recently passed an act, as has been stated, called the employers' act, which makes railroad companies alone responsible in case one employe[*note*], through his negligence, injures another. It seems to have been the recent trend of legislation in some of the states. Notably Kansas, I know, has a legislative provision to that effect, and within the last few days the supreme court of Kansas, passing upon a provision identical with this, has held such provision to be constitutional. But I want to say, gentlemen, for the information of the Convention, without giving any particular opinion, that the meaning of this section is this: If it be adopted without the amendment of Mr. James, that if any railroad company employs a number of men and one of those men engaged in the same department or line of business injures another through his negligence, the company is responsible for it, and it has been held by the supreme court of the United States under the law as it now stands, that where a, person in the employ of the company holds some superior position and directs the work to be done, that liability follows as against the company, because it is held that they are not fellow-servants and do not stand upon an equal footing.

Those people who favor the idea of making railroad companies responsible for the negligence of a fellow-servant, use this argument, as a rule, that it imposes a greater care upon the company in the selection of its servants and employes[*note*], and accidents are less liable to occur, whereas, on the other hand railroad companies or individuals say that they have performed their whole duty when they are careful in the selection of their employes[*note*]; that if liability follows where two men are working in the same line of employment, the liability should not fall upon the company. The question Mr. Bowdle puts, as relating to the question of employing competent employes[*note*], the company is always liable if it fails to employ competent persons and an injury results by reason of that fact, and that is one of the strong arguments used on the other side. I only say this much for the purpose of showing you what the section means and its results and what people claim for it on both sides. As far as I am concerned, on this question, I will not vote at all, because I feel myself so directly interested, having prosecuted so many companies for injuries to employes[*note*], that I do not feel I ought to vote upon that question.

Mr. VARIAN. Mr. President, I submit this is a matter purely of legislation, and that if it goes into this Constitution, there is a matter of expediency that ought to be considered. Every railway company east and west and every corporation in the land will lend its influence to defeat this Constitution.

Mr. JAMES. I want to ask Mr. Varian if it was not as just to compel the farmer to pay for the fellow who got his leg cut off, as it would be to compel the railroad or miner to pay the fellow who got his finger knocked off by the sledge hammer?

The amendment of Mr. James was rejected.

The section offered by Mr. Maloney was rejected.
{1667}
Sections 15, 16, 17, 20 and 21 were read.

Mr. ANDERSON. Mr. President, I move we strike out section 21. This is class legislation, and I do not think it should be incorporated in our Constitution.

The motion was rejected.

Mr. ANDERSON. Mr. President, I move as an amendment to this section to strike out the words “employe[*note*], attorney, or agent.”

Mr. EVANS (Weber). Mr. President, I raise the point of order that that has been passed upon.

The point of order was overruled.

The motion was rejected.

Mr. Kimball, of Salt Lake, offered the following as section 22:

No steam railroad corporation shall enjoy the franchise on streets of any city, without first obtaining consent of a majority of the people whose property may be damaged thereby.

Mr. RICHARDS. Mr. President, I move to strike out the words, “telegraph and telephone,” in the sub-head.

The motion was agreed to.

Section 22 was read.

Mr. VARIAN. Mr. President, after the word “others,” in line 6, I move to insert the word “written,” It is suggested that telephone messages are not written. It has reference to transferring from one company to another.

Mr. RICHARDS. Mr. President, I hardly think the gentleman realizes the force of that amendment. In case of a telephone company, suppose they were connected with each other and in order to let a person talk over two lines, they would have to be connected? That would not be a

written message.

Mr. VARIAN. I did not anticipate it would be possible that there would be such a connection as that.

Mr. RICHARDS. Suppose there was one telephone line extending from here to Ogden, and another from there to Logan?

Mr. VARIAN. Then, I suppose they ought to write out the message if they want it transmitted.

Mr. RICHARDS. No; they transmit their own messages over the telephone wires.

Mr. VARIAN. That does not authorize, as I understand it, the actual use by one company of another's paraphernalia of office.

Mr. RICKS. I suggest to Mr. Varian, would not the word business in there answer the purpose?

Mr. VARIAN. That would be better than just to leave it messages.

The amendment was rejected.

Mr. RICHARDS. Mr. President, I think that this section either ought to be stricken out or reconstructed. I therefore move to strike it out. I take it, that it does not mean anything more than would exist if this were not in the Constitution. No question about that. It does not pretend to give them any franchise or anything of that sort, but simply gives them the right to enter into this kind of business, and any one would have a right to do that, without any constitutional provision. It was claimed in the committee that this was new matter, that was not provided for, and that is the only thing that there is new about it: “And said companies or individuals shall receive and transmit each other's messages without discrimination or unnecessary delay.” The other provision, that the right of eminent domain is hereby extended to all telegraph and telephone companies, would be provided for in the absence of this. So I say that the sec-asit stands ought not to remain, and I do not think anything would suffer by striking it all out.

Mr. MALONEY. Mr. President, I do not see any reason why this should be stricken out. I could not hear all that Mr. Richards said, but it ought not to be stricken out without some reason being given for it. I say that a message transmitted from one line to {1668} the other ought to be transmitted without discrimination or unnecessary delay. There are a great many reasons why we should have such a section as this. It was fully discussed in the committee. It compels the companies to transmit on being paid their charges.

Mr. RICHARDS. Is it not a fact that the Legislature would have authority to provide for that?

Mr. MALONEY. I don't know whether it would or not, but it provides for it here. I will say to Mr. Richards, I have no confidence in the Legislature legislating against corporations, when they are always so represented in the Legislature, as they have been for ten years. This is a more

representative body than the Legislature, not because we have more talent, but the people are better represented. Every county is represented here.

The motion to strike out was agreed to.

Mr. EVANS (Weber). Mr. President, I move to insert, after section 22, the following section, to be numbered section 23:

No railroad or other transportation company shall grant free passes, or sell tickets or passes at a discount, other than as sold to the public generally, to any member of the Legislature, or to any person holding any public office under this State.

Mr. THATCHER. Mr. President, think I could vote for this section if I was not quite certain that it would be inoperative. I have had something to do with railroads and know how difficult it is to control this pass business. But I take it, there is not a railroad in the United States that would not favor the passage of this section. They are all working to that end. The pass matter is something that they hardly know how to deal with; but I say to my friend on the right here, that when they are disposed to give to any other person, whether official or otherwise, transportation, they can easily manage it, even though you might have a dozen such sections in your fundamental law.

Mr. VARIAN. Mr. President, take the case of a public officer_for instance a judge, if there is a prohibition by positive law against it, you would not expect such officer to violate the law himself, would you? He is there to administer the law. He does not break it.

Mr. THATCHER. At the same time a railroad company could hand him a ticket and he could pay the money for it, just as we all do when we buy a ticket, and I take it, if the railroad company were to remit that money, later on, there would be no very great objection to it.

Mr. EICHNOR. Mr. President, I presume the gentlemen who are anxious to pass this section, have never traveled on passes.

Mr. EVANS (Weber). I would like to pass this section and I have never traveled on passes.

Mr. HOLLIDAY[*note*]. I will vote for it, and I have traveled on passes.

Mr. EVANS (Weber). In every Legislature in this Territory all the members have come here on passes, haven't they, since the railroad was built?

Mr. EICHNOR. I don't know.

Mr. EVANS (Weber). That is a fact. That is historic. Could you expect the Legislature to pass such a provision with a pass in the pocket of every member?

Mr. EICHNOR. I will answer that question by saying that if it is purely legislative the Legislature will deal with it. I say that any man that can be bought with a pass is the poorest trash. I will say this, that you can call the yeas and nays on this, and I shall vote against the section, because I do not think that there is any railroad corporation that can buy me with a railroad pass.

Mr. CORAY. Mr. President, I have a substitute I would like to offer for this section:
Any pass or rebate on transportation granted by any transportation company shall be deemed a bribe and be punished in accordance with law.

The section proposed by Mr. Coray was rejected.

Mr. MALONEY. Mr. President, I am opposed to passes in any way, shape, or form_contributions, or rebates, call it what you please. Railroad companies never grant passes unless they have an object in view. They expect to be compensated. Judges and legislators ride all over this Territory, and into foreign states with passes in their pockets. They naturally feel inclined to repay the railroad companies in some way. It said that if something of this kind is not done, for these State officials, these State officials will unconsciously do something for the railroads; that is not in the interest of the people. I have seen too much of legislating for the benefits of railroad corporations, and I have seen the evil effects of it. Whenever a railroad company puts a pass in the pockets of an officer, it does not do it unless it expects to get the benefit of it.

The roll being called on the section offered by Mr. Evans, of Weber, the result was as follows:

AYES_33.
Adams
Call
Chidester
Coray
Corfman
Creer
Cunningham

NOES_43
Allen
Anderson
Barnes
Bowdle
Boyer
Brandley
Button
Clark
Eichnor
Emery
Engberg
Farr
Green
Hammond
Haynes
Heybourne
Hill

ABSENT_30.
Buys
Cannon
Christiansen
Crane
Cushing
Eldredge
Francis
Gibbs
Goodwin
Hart
Hughes
Keith
Kearns
Kerr
Lambert
Larsen, C. P.

The president declared the substitute lost.

Mr. EVANS (Weber). Mr. President, before we get down to section 32, I desire now to reinsert section 25. It is the section, gentlemen, which makes stockholders of insurance companies individually liable for the payment of losses.

The question being taken on the motion, the Convention divided, and by a vote of 45 ayes to 24 noes, the motion was agreed to.

Mr. IVINS. Mr. President, I move now a reconsideration of the vote by which this section was just reinstated. I voted in the affirmative. Had the question been debated at all, before the motion was put to reinsert it, I do not know that I should have said anything, but I want to ask this body of men why each stockholder of any insurance company shall be individually responsible for all of the liabilities of that corporation, when such a law applies to the individual members of no other corporation?

Mr. EVANS (Weber). Banks.

Mr. IVINS. Well, banks, under certain conditions. It seems to me there are other corporations in which there is just as great an opportunity to defraud creditors as in the insurance business, and I can see no reason why this special legislation should be passed here. And that it is legislation there is no doubt in my mind. The question was fully debated in the committee of the whole and was stricken out. Now, there ought to be some good reason why it should be reinserted, and I want to ask what those reasons were. That was my reason in asking that this vote be reconsidered. There may be some good reasons. I am not specially interested in this section, but I believe the action of the committee of the whole was a wise one, and that whole article on insurance ought to be left to the Legislature to handle and determine. It is not a question that ought to go into the Constitution at all, in my opinion.

Mr. THATCHER. Did you vote on the section on banking, that requires double liability?

Mr. THATCHER. I am engaged somewhat in the banking business and am in favor of the double liability. The reason I am so is to protect depositors. I am not only in favor of a double liability, but I believe that a man should be to the full extent of his ability. And certainly banking is not more hazardous than insurance, and for the protection of the general public I have voted for double liability as restored under the motion of Mr. Evans. We would not require it of corporations in merchandise, because there is not the risk which is found in banking and in conducting the business of insurance for the public, and I vote for this double liability for another reason. There is but one home company of which I have any knowledge whatever, and in the interest of that company, I vote for this section, for if it is once known (and it will become known after this Convention shall have adjourned) that there is no liability other than that of the fully {1671} paid up stock, it will greatly injure the business of the home company. If you want to build up a prosperous business in this country, you must assure the people that the foundation is broad and deep and that the risk is not great, and I think we ought to retain this section in the Constitution. Therefore, I voted for its restoration and I shall now vote against its reconsideration.

Mr. KIMBALL (Salt Lake). Mr. President, when this matter came up in committee of the whole, I took the same position as Mr. Thatcher, at which time I inquired of the management of the home company, and I found that it was through their solicitation to a very great extent that this was placed in there as a protection. On inquiry I found that the company was having a very hard row to hoe. The non-union companies have come in here and cut the prices to such an extent that it is a very hard matter for our home company to stand. It has been a very hard matter to get people to subscribe to stock in the home company, and if this section remains in, they apprehend that they will not be able to get any assistance further to strengthen their hands. I am convinced, since voting to the contrary, that we should strike this out, and I will vote contrary to what I did in committee of the whole, and reconsider this matter.

Mr. WELLS. I wish to ask Mr. Thatcher a question. Is it your understanding that this provision in section 25, if adopted, applies to the insurance company that is now chartered in this State or Territory?

Mr. THATCHER. It could not apply to that, because they have had their charter. We cannot make any law retroactive, of course.

Mr. WELLS. I understood you to say it would.

Mr. EVANS (Weber). Mr, President, it seems to me that this Convention is here legislating in the interests of the people and not in the interests of any particular corporation. You examine the laws and constitutions of other states, gentlemen, and you will find this provision a very common one, and not only that, but they usually go very much further than this, and require large deposits of money. It is not only in the interests of the people to do that, but it is in the interests of the companies themselves, as has been stated by Mr. Thatcher. Who are there among you who would insure in the home company, if it is in the condition, or believed to be in the condition that the

gentleman from Salt Lake says, having a hard struggle to get along, with no property at all, except its franchise, and its stock, which amounts to nothing? That is all it has, unless it owns real estate, or if it owns money, it is very easily disposed of, but you once make the stockholder individually liable and it will give stability to the business. Men who desire to insure will go to the company, because they will say that this is a solvent company. The individual stockholders are personally responsible. We have confidence and faith in their ability, even should the company fail; therefore, we will do business with them. Whereas, if you simply permit a wildcat insurance company to exist, do you suppose that it can thrive, and do business at all? Why, certainly not. Besides all that, gentlemen, when we legislate, we ought to legislate not so much in the interest of the particular company which desires to do business, as in the interests of this people, who unsuspectingly are doing business with such companies.

Mr. SQUIRES. Would not this action kill the company that is in existence here?

Mr. EVANS (Weber). That question has been amply answered, and I do not care to go into authorities on it. It is held, and properly, too, that we cannot make a Constitution here that will violate the obligations of an existing contract.
{1672}
Mr. SQUIRES. That is not my question. If the additional stability which would come to an insurance company by the adoption of this article is what is to be desired, would not the absence of it in the case of the present company be hurtful to this company?

Mr. EVANS (Weber). It may. I do not know, but I am quite sure that the presence of such a liability would assist it. They could come in and secure future legislation and come under the provisions of this Constitution and have the advantages of the stability that I have named. Gentlemen, an insurance company exists for the purpose of making money from the policy holders, for the purpose of extracting the money from people, and it is expected when they do that, that if losses occur, they will return to the persons who have sustained the losses the money which they have contracted to pay. Now, why is it, in this Convention, when we are considering the article on private corporations, that an insurance company is outside the Constitution or the law? Every section relating to insurance has been stricken out, and some people have been rash enough to say that the reason why it has been done is because of the presence upon the floor of this house of men interested in insurance companies. Can we afford to rest under a suspicion of that kind? Let us legislate in the interests of the people, and it will be in the interests of the company that the section remain as it is, and that the motion to reconsider will not prevail.

Mr. JAMES. Mr. President, I deprecate that any gentleman should make remarks upon this floor that partake of the insinuations just made, that it was owing to lobbyists upon this floor. Now, Mr. President, I repudiate any such an insinuation. I moved to strike that proposition out, as I have stated before this Convention, because I found on investigation that it was an injustice. I found that we were trying to tie down and make responsible a company here doing business in this community when it did not do one-hundredth part of the business, and the business was all done by foreign companies that we could not reach. I offered an amendment here that would put all companies on an equal footing, that would compel the Legislature to require of every company doing business in this community that they should secure the policy holder against loss.

That was my proposition.

Mr. EVANS (Weber). How long do you suppose people would put their deposits in banks and do business with banks, if the stockholders were not individually liable for those deposits?

Mr. JAMES. If we could not reach the stockholders who lived in foreign countries, legislation of that kind would be absolutely useless, and then we would go to the Legislature and enact laws; because foreign companies are doing all our banking here in this Territory, and we cannot reach them with our legislation_enact laws that would compel them to hold property or put up securities, so that our funds will be secured, and that we cannot be robbed. I understand that Mr. Barnes is a member of the home insurance company. Mr. Barnes do you give any security to the public to protect them against their losses, should you fail to pay your losses in case of fire?

Mr. BARNES. The company has assets amounting to $380,000.

Mr. JAMES. Where do you keep those assets?

Mr. BARNES. They are invested in various companies and in real estate in this city and in other places.

Mr. EVANS (Weber). Do I understand now that this legislation is in the interests of a delegate upon this floor?

Mr. JAMES. No, sir; it is in the interests of the public. I simply asked Mr. Barnes a question for information, that is all. Now, I want to state to you, Mr. President, that there is a provision {1673} in this article that requires corporations to file an acceptance of the provisions of this article in order to benefit by future legislation. Now, you are going to have a company doing business here that is unable to be benefittedby future legislation unless it accepts those provisions. And it is, as Mr. Wells asked Mr. Thatcher, a few moments ago, retroactive; practically under that provision it is. You cannot get away from it. Now, we have heard of gentlemen here on this floor_that you have an insurance company here that holds property in this community that does guarantee the property holder against loss to a reasonable extent. What guaranty have you from foreign companies? Is there any? I would like to know if there is, where it is. Now, why should this style of legislation be had? I say, Mr. President, that we should be just.

Mr. EVANS (Weber). Do you not know that these fire insurance companies that are the most stable and most reliable are required by the laws of the several states, wherever they exist and where they are created, to make large deposits of money, and also that the stockholders are individually liable?

Mr. JAMES. That is true. The stockholders in New York are held responsible, and they are also required to hold property or put up a guaranty fund. But now I want to call the gentleman's attention to a company that I called attention to a few days ago upon this floor, that owns a building in New York that cost three millions of dollars, and they have assets of over three

millions more, and still here is one of our best known citizens in this town_for two years, he cannot collect one cent, after paying over five thousand dollars on the policy. Now, can we legislate to reach that company that beat that man and his heirs out of that honest money? Now, I do not want to say much more, but I do regret that a gentleman gets up on this floor and makes reflections upon me for making an effort to do the very best I can in the interest of the people and for the good of our State.

Mr. KIMBALL (Salt Lake). Do you understand that the merchants of Salt Lake scarcely get enough fire insurance to-day?

Mr. JAMES. That is the information that comes to me.

Mr. KIMBALL (Salt Lake). You have gone to work and struck out everything here in committee of the whole which protects the people against the foreign companies, and we want to leave that section in that will crush the home company. I do not think it is fair, is the reason I have changed my vote. I ask Mr. Evans, are you willing to reinstate section 26 or something similar, to protect the people against the foreign companies?

Mr. THURMAN. Yes, sir.

Mr. EVANS (Weber). I certainly am, but I do not know whether the chairman is or not. He is the proper person. I think, to appeal to.

Mr. KIMBALL (Salt Lake). I ask, do you make the proposition to reinsert section 25?

Mr. EVANS (Weber). My record is that way all through this Convention, to do anything that will protect the people.

Mr. KIMBALL (Salt Lake). That will include my vote. After seeing section 26 stricken out, discrimination against the home company, I changed my vote.

Mr. ROBERTS. I wanted to ask Mr. James a question, as the chairman of the committee on corporations other than municipal, and also in view of his remarks a few moments ago. Mr. James, I wanted to know if you were in favor of section 32 and voted to retain it?

Mr. JAMES. I was in favor of the bankers being responsible for the amount of the stock, but on consultation {1674} with banking men, they suggested that we ought to make them responsible for double the amount, and I said all right, gentlemen, I have no objection; I want to protect the people wherever I can. I supported the section and voted for it all the way through.

Mr. ROBERTS. I would say, Mr. President, that since the gentleman announced in his remarks a few moments ago that he was pre-eminently and all the time in favor of justice, why is it that he is not willing to protect the people against insurance companies as well as banking companies? I take it, sir, the gentleman who has voted in favor of section 32 in the interests of the community, as against corporations, ought not to object to the protection of the public against insurance

companies as provided for in section 25.

Mr. BARNES. Mr. President, I doubt very much whether I can make myself understood with regard to this matter. I will try, however. My friend, Mr. Evans, asked the question, whether it was fair to legislate in favor of any particular delegate. I will say no, and I am sure that I do not ask any person here to grant me any favors, neither do I, as a representative of the home insurance company, ask any favor for them. All we ask is what is right. We ask that we be treated just the same as any other insurance company. Now, gentlemen, is there anything unfair in that? I submit that there is not. I am interested in banks, as well as I am in the insurance company. I say banks, because I am interested in more than one. and I think the responsibility of a stockholder in a bank is ten times greater than that of a stockholder in an insurance company. That is the view that I take of it. I differ very materially with the honorable Mr. Thatcher, with regard to that, and I think that any stockholder in a bank ought to be held liable, not only for the amount of his stock, but for an amount equal to it, in addition, but I do not hold that it is fair for an insurance company to be held. I think, too, that the honorable Mr. Evans did not understand Mr. Kimball. The Home Fire Insurance company is able to meet its liabilities and never has failed to meet any just liability yet, and I presume never will, while the present company hold the stock. Now, that is the view I take of it.

Mr. KIMBALL (Salt Lake). May I ask a question? The difficulty has been the war in the main?

Mr. BARNES. Most assuredly. They are not bankrupt. You can go to the treasurer, gentlemen, if any of you doubt the assertion I make, and you can examine the stocks. I grant you they would allow the privilege. What makes it hard getting along, as the gentleman has just stated, is the rate war that has been going on. They are not making any money. Stop and think a moment and see what they have made in the past, and then consider the war that is now on and that has been raging here for some time, and the amount that they are making_I doubt if it would pay expenses. But that is not the idea. The idea with me is this, you cannot get that from any other company that is here in this section. Then, why should you demand it of the home company? If you could treat all companies alike_there are seventy-eight insurance companies doing business here in this city.

Mr. JAMES. Excuse me, Mr. Barnes, there are over a hundred, including fire and life.

Mr. BARNES. Now, the one is to be singled out and the rest go without this provision; why should it be? You may say it will not affect them, but should they undertake to reincorporate, won't it affect them? Most assuredly it will. Let us do justice to a home institution as well as those that live at a distance.
{1675}
Mr. MALONEY. Mr. President, if sections 26 and 27 were adopted, would not that help very materially the home company in increasing their business? In other words would not it run out the side companies and keep only those that are perfectly solvent in the Territory?

Mr. BARNES. Well, as to that, I really could not say. There have been but few losses sustained by the citizens of this Territory from fire insurance but what have been met in a fair and reasonable way. Probably there have been one or two companies that have failed, but I think they

have been few; that is my understanding of it, and that there are but little losses sustained on that account.

Mr. EVANS (Weber). Mr. President, I arise to a point of personal privilege. The gentleman has misunderstood me if he thought I meant any reflection on him, respecting the question which Mr. James asked. What I said then was intended to emphasize the fact that in making a Constitution we should keep steadily in mind a principle in regard to an individual or corporation. And I desire yet to emphasize that fact, but not for the purpose of casting any reflection upon the honorable gentleman.

Mr. BARNES. I agree with Mr. Evans exactly.

Mr. THATCHER. May I ask the gentleman a question? Did I understand you to say that the home company was solvent?

Mr. BARNES. Yes, sir.

Mr. THATCHER. That is as I understood you_that there is no danger now to the policy holders?

Mr. BARNES. Not the slightest, no more than there has been from the day of its commencement.

Mr. THATCHER. Did I understand you correctly in the statement that there would be no danger?

Mr. BARNES. I do not think there will, sir.

Mr. THATCHER. Then, why fear this double liability?

Mr. BARNES. I do not fear it, only upon the principle that it is unjust.

Mr. THATCHER. But let me call attention to this fact. If Mr. Barnes' statements are correct, then we ought not to attach double liability to the banks, for the reason that there are millions of dollars in this city to-day that render no help whatever to the territorial government, on the ground that it is foreign capital, and is not therefore taxed, so that in that respect I do differ with my friend on the right in this, that while being engaged in three banks, one here in Salt Lake, one at Ogden, and one at Logan, organized under the laws of the Territory, the difference between himself and myself is this: Notwithstanding my interest in those institutions, I stand up and vote for a double liability for the protection of the people, and my friend on the right, because we have a little company here, stands up and votes against it_quite a difference.

Mr. BARNES. I yielded to Mr. Thatcher's questions and he proceeded to make a speech, and I thought I would wait. I do not understand that there are millions of dollars invested in this city of outside capital In banks.

Mr. IVINS. Mr. President, I wish to ask the gentleman from Weber a question. I want to know who it is that says that the members of this commit tee were influenced by lobbyists when they

struck out this section? Can Mr. Evans answer that?

Mr. EVANS (Weber). The records will not show that I said that. I said that there were members interested in this home insurance company who were upon the floor of this house, and asked the question whether that had influenced any one upon this question. That is substantially what I stated. I never have become very personal yet.

Mr. IVINS. The gentleman stated it had been said. I want to know if the {1676} gentleman says this was done by the lobbyists?

Mr. EVANS (Weber). I do not know. They have used no influence so far as I am concerned. They know me too well.

Mr. IVINS. I want to say no one has mentioned this to me who is connected with insurance companies, and I am not connected with them at all. It has been said that section 26 should be retained. I should be just as much opposed to retaining section 26 as I am to retaining section 25, because I can tell you if the restrictions there provided for are placed upon insurance companies, it is my opinion that it will result in a withdrawal of companies from this State, and it is a. fact that insurance cannot be secured here to-day_there are firms here that want insurance and cannot place it, so that there is no superabundance of opportunities. On the other hand, if you leave this as it was left by the committee, of the whole, insurance companies will bring their moneys here. Their bylaws prevent them from investing moneys in territories, but the moment Utah is admitted as a State, those restrictions will be withdrawn and insurance money will come here for investment. You will find that to be the case, and buildings will be erected. There are millions of dollars of insurance money waiting now for investment at low rates of interest, and I know that negotiations are oh foot for its investment, much of it in this Territory when Utah shall be admitted; but you place such restrictions as this upon those companies and they will do just as they have in Arizona, where the same law has been made operative; they will withdraw, until to- day, in that territory, you cannot find companies that will write the insurance that is demanded. Now, these are facts, and, therefore, one of these sections, if reinstated, requires that this whole insurance article shall be taken up and debated and discussed again, and every section of it will probably occupy an hour or two of time, and Mr. Ricks will be calling me to order more than once if this thing is undertaken, because I shall have something to say about it. I believe it ought all to be left to the Legislature. Let them determine what these conditions are. They will be better acquainted with the facts. I submit there are very few members upon this floor who know anything about insurance or insurance companies, unless they are wiser than I am. I know very little about it, and I feel reluctant to vote either in favor of the section or striking of it out. I believe it is safer to leave it just as it is left in committee of the whole. Gentlemen stand here and argue that if banks are to be made responsible, insurance companies ought to be made responsible, too. That is no argument to me at all. I do not say that banks ought not to be made responsible. If they ought, that might not be a reason why insurance companies should, and if it is an injustice to insurance companies, this section, as it stands, because there is a similar section which applies to banks, that is no reason why this should be left out. It is not logic. It is not argument. I hope the vote will be reconsidered and that it will be left as it was left in committee of the whole.

Mr. IVINS. I do not know who will be affected. I do not know whether this will affect the home company or whether it will not.

The previous question was ordered.

The PRESIDENT. The question now is the reconsideration of section 25.

The question being taken, the Convention divided, and by a vote of 36 ayes to 29 noes, the motion was agreed to.
{1677}
The PRESIDENT. The question before the house is the section.

Mr. EVANS (Weber). Mr. President, on that question, I desire to speak.

Mr. SNOW. I raise the point of order that this section was reinstated and a motion to reconsider leaves it just where it was before, stricken out.

The PRESIDENT. Yes, it is stricken out.

Mr. EVANS (Utah). Mr. President, while that is a fact, there is a motion here to insert it, and we are considering that.

Mr. CHIDESTER. Mr. President, I arise to a point of order. The point of order is, it stands in the same condition it was before, and those who spoke on it before cannot speak on it now.

The PRESIDENT. The point of order is well taken.

Mr. EVANS (Weber). Mr. President may I state my point of order?

The PRESIDENT. You may.

Mr. EVANS (Weber). The first vote reinstated that section. Mr. Ivins then moved to reconsider the vote by which the section was reinstated, and that motion to reconsider was passed upon favorably, Now, the section remains there, because we voted it in on the first vote. It stands there, and now the vote by which it was inserted was reconsidered.

The PRESIDENT. The reconsideration casts the section out. That would be the judgment of the chair.

Mr. EVANS (Weber). I dislike very much to do it, but I will appeal from the decision of the chair on that question.

Mr. EVANS (Weber). Mr. President, is not it debatable?

The PRESIDENT._those opposed no. The ayes have it. The chair is sustained.

Mr. EVANS (Utah). Mr. President, I submit to you_

Mr. EVANS (Weber). I challenge the
vote. Certainly let us vote understandingly, anyway, even if we cannot speak.

Mr. JAMES. I arise to the point of order, the chair has announced the vote.

Mr. ROBERTS. Mr. President, I arise to a point of order for once, and that is that this matter of appeal from the chair was voted upon without giving gentlemen an opportunity to discuss that question, and I hold that it is. debatable.

The PRESIDENT. The house has voted upon it. They can reconsider if they want to.

Mr. ROBERTS. Yes, sir; but they voted upon it without having an opportunity to discuss it.

Mr. EVANS (Utah). Mr. President, I make this point of order. While I think the decision of the chair is proper, it has been passed upon by the house as being sustained, it simply puts this question back where it was before, and we have a right to debate it. There is a motion before this house, to insert this. It was carried. That vote was reconsidered, and that, placed this thing back before this Convention, with a motion here to reinsert that, and I take the ground that we have a right to speak upon it_every man who has not spoken upon the question.

The PRESIDENT. The decision of the chair is that there is no question before the house.

Mr. EVANS (Utah). I appeal from the decision of the chair upon that question.

Mr. RICKS. I raise a point of order, that Ave have just settled that appeal.

The PRESIDENT. That is what the chair understood.

Sections 32, 37, and 38 were read.

Mr. BUTTON. Mr. President, I offer a new section, as follows:

All corporations, partnerships, or individuals, shall be liable for all damages sustained by any person, including employesof such corporations, partnerships, {1678} or individuals, in consequence of their negligence, or of any of their agents, servants, or employes[*note*].

Mr. EVANS (Weber). Mr. President, I desire to move to reinsert section 33. I want to state that when that went out, I do not believe the Convention understood the real effect of it. A bank bill is that which passes from hand to hand, as the money of the bank. It goes out among people everywhere, and it should be first redeemed when the bank fails, because a man holding a bill in his pocket as money_circulating medium_has no means of ascertaining the solvency of the bank The depositor has. He knows something about the bank. He keeps track of its statement. Now, gentlemen may say that we have no state bank bills at present. That A true, on account of the state tax of ten per cent. on state banks, but if that tax should be repealed (and you know, all of you, that it is a national question which is agitating the minds of the people a great deal), then there will be a large volume of bank bills circulating as money. Now, when a bank fails, gentlemen, I will leave it to you if those men who hold the money in their pockets should not be the first to go to the bank and have it redeemed before depositors or anybody else. The act of Congress is exactly similar to this section. It is in almost the same words, making the bill holders preferred. I think we voted it out when we were not thinking what we were doing. At that time I tried to speak and the motion was called upon me like it was a little while ago.

The question being taken the Convention divided, and by a vote of 29 ayes to 41 noes, the motion was rejected.

Mr. MURDOCK (Wasatch). Mr. President, I move to strike out section 38. I think it is striking at the interests of the farmers and of associations that are organized in the Territory in different parts for the protection of the price of the products of the soil, and I think when we get to legislating against that class of people, we are making a mistake.

Mr. ROBERTS. Mr. President, among the few virtues that this article on corporations possesses I think that this is the choicest and best of all. The one redeeming feature out of the few that remain in this article on corporations is this section 38. It prevents combination between individuals, corporations, associations, or either, having for its object the effect of controlling the price of any product of the soil or of any article of manufacture or commerce, or of the cost or charge of transportation. Now, sir, I submit that if there is one thing more important than another to the industrial welfare of this Territory, it is to prevent the combination of corporations and associations looking to the control of prices in this Territory. In other words, it is a prohibition of the formation of trusts and combines to check the industrial interests of this Territory; and I sincerely hope that the Convention is not in a temper to destroy this provision. The matter was discussed perhaps incidentally the other day, and yet sufficiently, I take it, to point out the virtues of this section, and certainly it is not my purpose to go over the ground of discussion, but simply call the attention of the Convention to the importance of retaining this article.
Mr. ANDERSON. I would like to ask Mr. Roberts, if this section is retained, would not it prevent the farmers combining as a farmers' union to regulate the price of wheat or any other of their products?
{1679}
Mr. ROBERTS. It is possible it may do so.

Mr. JAMES. Mr. President, I hope this section will not be stricken out, and I think the gentleman from Wasatch misunderstands it I would like to ask him if he ever knew of farmers combining to hold to their prices, and if they did, when and where?

Mr. MURDOCK (Wasatch). I know there is a similar association in Provo City to-day, existing there as to prices of grain and vegetables.

Mr. ROBERTS. I would like to ask Mr. James if it has ever been found possible for farmers to do that thing?

Mr. JAMES. Why, it seems improbable to me. Now, gentlemen, this provision was put in to protect the farmer. It. was put into operate against such institutions as the big trusts_the elevator trusts that sell millions of bushels of wheat and speculate on it when they never had a pound in their elevator. The beef trust, as you observed to-day, has raised the price of beef to an enormous price, but what does it say to the producer? Why, you find recently, they turned around, and just arbitrarily, in opposition to all that Mr. Morton, secretary of agriculture could do, and out of pure cussedness, lowered the price to the producer, a cent a pound, as much as to say to him, “we will show you you cannot manipulate our affairs and we will manipulate them to suit ourselves.” Now, that is an actual fact, gentlemen, and that is what this provision is put in here for, and if you take the whole of the article that is left now_my friend, Mr. Roberts says, there is not much left, but I am proud of the article, with the exception of one section. If section 7 was regulated so that it would not be misconstrued, we would have a splendid, good article, and this one, in combination with the others, is what hinges the whole business together, and if you strike it out, you are going to weaken the article.

Mr. SNOW. I would like to ask Mr. Roberts if this would affect the farmers exchange?

Mr. ROBERTS. My answer is that if it does not affect the individuals, it will affect, and does affect, corporations who could combine unless you had some such provision prohibiting it.

Mr. NEBEKER. Mr. President, I think that the appeal that the gentleman from Wasatch has made to the farmers on this question is not well taken, because it is certainly a fact that farmers have never been able to combine to hold tip the price of their products, and one reason for that is because there are too many of us. Now, the question is, as farmers, when we are not able to combine and control the price of our products are we going to stand here and support a

proposition that will enable other people to combine and hold up the price of their products? If there is no other section retained in this article, but the first and the last, it is worthy of our consideration.

Mr. BOWDLE. Mr. President, if the farmers could do that thing, I would be {1680} perfectly in favor of them doing it, and perhaps you all remember the great effort that was made all through the eastern states, and in fact through the western states, by what was called the grangers, to accomplish that very object, and they could not do it because of the very fact that they were men that were compelled, as soon as they had the products ready for market, to sell them; their interests were such that they could not hold, and the consequence is that the whole organization has nearly or quite gone to pieces, because they could not accomplish the very object that they theywere trying to accomplish; and I do not think that it would help the farmers a particle if we were to leave that in, but it might, as Mr. Nebeker says, work exactly against it.

Mr. CANNON. I would like to ask if this section can be enforced by any action of the courts, where two men or more than that number desire to work together and combine_whether they can enforce it_so that farmers could not get together and regulate the price if they want to?

Mr. BOWDLE. I suppose, Mr. Cannon, that if you and I and any other man were running farms together we could say that we won't sell until we get such a price, and they could not prevent us from doing that.

Mr. CANNON. Then, what is the use of the section?

Mr. BOWDLE. I don't know that it would be effectual. I am not prepared to say that it would, but it aims at an evil, that if we can by any legislation reach, I am in favor of reaching it.

The motion was rejected.

Mr. VARIAN. Mr. President, I want to call attention to line 4 of section 37; in accordance with the suggestion the other day, the word maliciously ought to be inserted in there.

Mr. BOYER. Mr. President, I desire to offer as an amendment to the amendment to section 37 the following: Strike out all of lines 1 and 2, and strike out the words in six and seven, “or obtained from any other corporation or person.” Now, I find that the citizen is sufficiently protected under the article of labor for the securing of his labor, and he is sufficiently protected therein; and striking out the words in lines 6 and 7 will obviate the difficulty that I apprehend might arise.

Mr. VARIAN. Let me suggest that that is not germane to this amendment. This could be disposed of, and then Mr. Boyer's motion, which relates to other parts of the section, might be considered.

The amendment of Mr. Varian was agreed to.

Mr. THURMAN. Mr. President, before roll call, I desire to say, I have not said one word this afternoon on this article, but I am going to vote against it. There is no virtue left in it. It is completely emasculated of everything that gave it vitality and usefulness; there is not one thing in it that the Legislature cannot do_not one. There is not a single limitation on the power of the Legislature. I shall vote no, and I take this occasion to say that, because I do not believe that men have a right to get up after a roll call has commenced and vote no, and give their reasons for it.

Mr. PRESTON. Mr. President, I wish to say the same. There is nothing to this article now.

Mr. EVANS (Weber). Mr. President and gentlemen, I want to say that I will vote against the article as heartily as anything I ever did in my life. It is, as has been stated, completely emasculated; all the vitality has been taken from it. Every move that has been made in regard to this article on private corporations, one of the most important things we have had to deal with, has been in the Interests of corporate power, and I will never cast my vote in favor of such a skeleton as that, {1681} without a single limitation or restriction upon the powers of corporations.

Mr. FARR. Mr. President and gentlemen, I presume you will all recollect several days ago, when this subject was brought up, I had a very important amendment to introduce to this article, and I gave my reasons for it, and I was satisfied when I had read the whole article that the whole business of it could be provided for in that amendment. Now, we have spent two or three days on it, and cut the bill up, and taken from it, so that we can hardly tell what it is. My amendment was to strike out the enacting clause, because there is no enacting clause. I presume when they come to a vote on the ayes and noes that the word no means to strike out the enacting clause. Consequently I shall vote no.

Mr. EMERY. Mr. President, I would like to ask a question in relation to section 10. Will that section prevent any foreign corporation coming to Utah and selling merchandise or any other article, without first filing the articles of incorporation with the secretary of state?

The PRESIDENT. I presume it would affect all companies and corporations.

Mr. EMERY. Then, if this prevails, an agent could not be sent to Utah to sell merchandise without being confined by that provision?

Mr. CANNON. The latter construction is evidently not that that would be placed upon it. This provides that no corporation shall do business in this State. In other words, they shall not come in here and have an office or something of that kind and pretend to do business, and yet have no place where you might serve process upon them. It is customary in all states to have a similar provision to this.

Mr. EMERY. If that is as far as it goes, I have no objection to it, but if it would prevent a gentleman coming and selling merchandise for another corporation I think it goes too far.

Mr. EVANS (Weber). Is not it a fact that it will require a majority of all the members elected to this Convention to pass this article now?

The PRESIDENT. I believe under the rule that would be the case.

Mr. IVINS. Now, gentlemen, I wish to call attention to this condition that confronts us. I think there is a great deal of good left in this article yet. I know that there has been an effort made all over the floor of this house to prevent its passing, and I want to get up here and say publicly what has been said privately, and I hope that men will stand by their previous vote and that this measure will be passed. [Applause.]

Mr. VARIAN. Mr. President, I move we adjourn.

The motion was rejected.

Mr. JAMES. Mr. President, I want to say a word. I am not pandering to the favor of any individual living. I care but very little whether gentlemen on this floor attempt to do a thing that will reflect an injury on the public and the people or not, but I do rise here, Mr. President, to say a word of encouragement to the manly position of the gentleman from Washington County. I knew this thing was going on around this room this evening before he rose from his seat and made the announcement. It came to me, that if we cannot carry our point we will put our {1682} foot on this business and destroy the whole thing. Now, Mr. President, that is all I wish to say, but I do not wish to be misunderstood.

Mr. ROBERTS. Mr. President, I take the position that this article has been mutilated in some of its most important parts, much of that that is left, or so that that which is left is of but little or no use for the purposes for which it was designed. I not only take exceptions to some of the mutilations of this article, but I also take exceptions to the arbitrary manner in which discussions of some parts of it have been enforced, and that there ought to have been opportunity afforded for discussion of some of the measures, which by parliamentary railroading was excluded, and I say frankly, that until an opportunity is granted to consider some parts of this article, that we were prohibited from properly considering, I shall vote against what parts are left of it.

Mr. BUTTON. Mr. President, I move we adjourn.

Mr. EVANS (Utah). I arise to a point of order. There has no business been done since the motion to adjourn was killed.

The PRESIDENT. The gentleman's point of order is well taken.

AYES_49.
Allen
Anderson
Barnes
Bowdle
Brandley
Button
Cannon
Chidester
Christiansen
Clark
Coray
Crane
Driver
Eichnor
Emery
Green
Heybourne
Hill
Howard
Hyde
Ivins
James
Jolley
Kimball, Weber
Lambert
Larsen, L.
Lemmon
Lowe, Peter
Lund
Maloney
McFarland
Murdock, Beaver
Murdock, Summit
Nebeker
Page
Partridge
Peterson, Grand
Peterson, Sanpete
Robertson
Robinson, Kane
Robison, Wayne
Snow

NOES_26.
Boyer
Call
Corfman
Creer
Cunningham
Engberg
Evans, Weber
Evans, Utah
Farr
Hammond
Haynes
Halliday
Johnson
Kimball, Salt Lake
Maeser
Morris
Murdock, Wasatch
Preston
Ricks
Roberts
Sharp
Thatcher
Thoreson
Thorne
Thurman
Whitney.

ABSENT_31.
Adams
Buys
Cushing
Eldredge
Francis
Gibbs
Goodwin
Hart

During the roll call, the following statements were made:

Mr. RICKS. Mr. President, I wish to change my vote from aye to no, with notice that I will move a reconsideration if this article is lost.

Mr. KIMBALL (Salt Lake). Mr. President, with prospects of reconsideration, I will vote no.
    
Mr. ROBERTS. Mr. President, I {1683} arise to a point of order on these gentlemen changing their votes. I hold, sir, that we are now on the final passage of this.

The PRESIDENT. A man can change his vote at any time before the declaration of the result.

Mr. ROBERTS. My point of order is, that it would be out of order to reconsider this matter and ask for a ruling on that question.

The PRESIDENT. The chair would rule that the gentleman is out of order.

Mr. ROBERTS. I appeal from the decision of the chair.

Mr. THATCHER. Mr. President, he did not understand you. There is no gentleman on this floor that does not understand that a person voting in the affirmative on ordinary questions, may do so

for the purpose of reconsideration, but the point of order is whether an article on its final passage can be reconsidered.

Mr. ROBERTS. That is it.

The secretary then announced the result of the roll call.

Mr. THURMAN. Mr. President, I arise to a point of order. There is no motion before the house to reconsider. There is nothing for the chair to rule upon. The gentlemen simply gave notice, or stated that they changed their votes for that purpose. There is no motion before the house.

The PRESIDENT. The result of the vote is 49 ayes to 26 noes. The gentleman gave notice he would call for a reconsideration to-morrow.

Mr. VARIAN. Mr. President, I move we adjourn.

The motion was agreed to, and the Convention then, at 5:50 p. m., adjourned.